15-4123-cv 

Cressy v. Proctor

UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT 

SUMMARY ORDER 

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY 

ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF 

APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER 

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN 

ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY 

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

At a stated term of the United States Court of Appeals for the Second Circuit, held at 

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New 

York, on the 12th day of December, two thousand sixteen. 

PRESENT: 

PETER W. HALL, 

DEBRA ANN LIVINGSTON, 

Circuit Judges. 

NICHOLAS G. GARAUFIS, 

District Judge.* 

_____________________________________ 

Ronald Cressy, 

 Plaintiff-Counter-Defendant – Appellee, 

 

 v. Docket No. 15-4123-cv 

Kevin Proctor, 

 Defendant-Counter-Claimant – Appellant. 

_____________________________________ 

FOR PLAINTIFF-APPELLEE: DEVIN MCLAUGHLIN, Langrock Sperry 

& Wool, LLP, Middlebury, VT. 

FOR DEFENDANT-APPELLANT: MARK P. SCHERZER, Law Office of Mark 

P. Scherzer, New York, NY, Richard 

Thomas Cassidy, Hoff Curtis, 

Burlington, VT. 

 

* Judge Nicholas G. Garaufis, United States District Court for the Eastern District of New York, sitting by 

designation. 
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Appeal from a judgment of the United States District Court for the District of Vermont 

(Sessions, J.). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND 

DECREED that the judgment of the district court is AFFIRMED. 

Following a bench trial, defendant-appellant Kevin Proctor appeals the district court’s award 

of quantum meruit restitution to plaintiff-appellee Ronald Cressy. We assume the parties’ 

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal. 

I. Standard of Review 

The parties dispute the proper standard of review with respect to the district court’s decision to 

award quantum meruit restitution. Proctor argues that “[w]hether quantum meruit damages were 

properly awarded in the circumstances presented is a question of law reviewed de novo.” 

Appellant’s Brief, 27. Cressy argues that “[u]nder both Vermont law and the law of this Circuit, 

review of this type of decision is limited to abuse of discretion.” Appellee’s Brief, 9. Proctor cites 

no authority in support of his position, and we can find none. We are convinced that, under both 

Vermont law and Second Circuit precedent, review is for abuse of discretion, and to the extent that 

the decision under review relies on findings of fact, those findings are reviewed for clear error. See, 

e.g., Amara v. Cigna Corp., 775 F.3d 510, 519 (2d Cir. 2014) (“The district court’s award of 

equitable relief also may be reversed only for an abuse of discretion or for a clear error of law. 

Where the district court’s determinations regarding . . . equitable remedies are supported by 

findings of fact, such findings are reviewed under the ‘clearly erroneous’ standard.”); Weed v. 

Weed, 968 A.2d 310, 315 (Vt. 2008) (“We review equitable remedies...for a trial court’s abuse of 

discretion.”). 
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With respect to the district court’s rejection of the equitable affirmative defenses raised by 

Proctor, the parties agree that review on appeal is for abuse of discretion. With respect to the 

district court’s computation of damages, the parties agree that review is for clear error. 

“A district court has abused its discretion if it based its ruling on an erroneous view of the law 

or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located 

within the range of permissible decisions.” In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (internal 

citations, quotation marks, and alterations omitted). “A finding of fact is clearly erroneous only if, 

after reviewing all of the evidence, this Court is left ‘with the definite and firm conviction that a 

mistake has been committed.’” United States v. Cramer, 777 F.3d 597, 601 (quoting Anderson v. 

City of Bessemer City, 470 U.S. 564, 573 (1985)). 

II. Quantum Meruit Restitution 

The central dispute in this case is whether Cressy was entitled to equitable restitution for the 

benefit his labor conferred on Proctor’s business while the parties were in a domestic relationship. 

Under Vermont law, equitable restitution is “based on an implied promise to pay when a party 

receives a benefit and the retention of the benefit would be inequitable.” DJ Painting, Inc. v. 

Baraw Enters., Inc., 776 A.2d 413, 417 (Vt. 2001). The proper inquiry is “whether, in light of the 

totality of circumstances, it is against equity and good conscience to allow defendant to retain what 

is sought to be recovered.” Legault v. Legault, 459 A.2d 980, 984 (Vt. 1983). Quantum meruit 

restitution is awarded when the appropriate measure of damages is the reasonable value of the 

claimant’s labor, regardless of its value to the claimee. See In re Estate of Elliott, 542 A.2d 282, 

285 n.2 (Vt. 1988) (distinguishing quantum meruit and unjust enrichment measures of restitution). 
4 

Having reviewed the district court’s decision and the record below, we are satisfied that the 

district court did not abuse its discretion in ruling that quantum meruit restitution was appropriate. 

The court heard conflicting testimony regarding the materiality of the benefit conferred by 

Cressy’s labor at Synergy, and, in its role as fact finder at a bench trial, resolved these factual 

conflicts with its findings that Cressy was a full-time employee with administrative and clerical 

responsibilities who ran the day-to-day operations of the company. The evidence adduced at trial 

permitted this interpretation. “Where there are two permissible views of the evidence, the 

factfinder’s choice between them cannot be clearly erroneous.” United States v. Murphy, 703 F.3d 

182, 188 (2d Cir. 2012) (quoting United States v. Iodice, 525 F.3d 179, 185 (2d Cir. 2008)). It was 

not clear error for the district court to find that Cressy’s labor rendered a material benefit to 

Proctor. 

Proctor puts much emphasis on the undisputed facts showing that Cressy enjoyed an affluent 

lifestyle in the parties’ shared household during the time he was working for Synergy. He argues 

that Cressy, though not compensated by paycheck, was richly compensated by this lifestyle, paid 

for by Proctor. The district court rejected that argument, however, and ruled that whatever lifestyle 

benefits Cressy enjoyed were part of the normal exchange of domestic benefits in a domestic 

relationship. We agree with the district court. As Proctor’s domestic partner, Cressy would have 

expected to enjoy those sorts of lifestyle benefits, regardless of whether he contributed to Proctor’s 

business. By contrast, Cressy’s labor as a full-time employee of Synergy was not within the scope 

of the normal exchange of domestic benefits; Proctor could not have reasonably expected to enjoy 

the benefits of Cressy’s labor as a matter of course by virtue of the fact of their relationship alone. 
5 

The controlling case under Vermont law is Harman v. Rogers, 510 A.2d 161, 165 (Vt. 1986), 

which also involved an unmarried couple, one of whom ran the day-to-day operations of a business 

owned by the other and was not compensated. There, the Vermont Supreme Court ruled that “[t]he 

only conclusion that can be fairly and reasonably drawn is that plaintiff’s services in this regard 

materially benefitted the defendant” and directed the Superior Court to make a determination of 

the appropriate amount of restitution. Id. Proctor points to no relevant distinction between the facts 

before us and those in Harman. We see no abuse of discretion in the district court’s decision to 

award restitution for Cressy’s labor. 

III. Laches and Estoppel 

The district court correctly rejected Proctor’s assertion of laches. “Laches is the failure to 

assert a right for an unreasonable and unexplained period of time when the delay has been 

prejudicial to the adverse party, rendering it inequitable to enforce the right.” Chittenden v. 

Waterbury Ctr. Cmty. Church, Inc., 726 A.2d 20, 30 (Vt. 1998) (quoting In re Vermont Elec. 

Coop., 687 A.2d 883, 884-85 (Vt. 1994)). As the district court noted, Cressy had no reason to raise 

his restitution claim prior to the dissolution of the parties’ domestic relationship. It was not 

unreasonable or inexplicable for him not to assert his right to restitution before the parties ended 

their relationship. The district court did not abuse its broad equitable discretion in rejecting laches. 

Proctor’s assertion of estoppel by acquiescence rests on essentially the same grounds as his 

assertion of laches. It, too, was correctly rejected by the district court for the same reasons it 

rejected the assertion of laches. Cressy had no reason to raise his claim while the parties were still 

in a domestic relationship. There was no abuse of discretion in the district court’s rejection of 

estoppel. 
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IV. Computation of Damages 

The district court computed damages based on an earnings period from the middle of 1994 

through February 2008, the period during which Cressy was a full-time employee of Synergy, and 

a base yearly salary of $40,000 in 1994, with annual salary growth. The parties stipulated that this 

would yield an award of $107,957. Proctor challenges the validity of the earnings period and the 

yearly salary figures the district court used. 

We see no clear error in the earnings period used by the district court. The district court found 

that the benefit of Cressy’s full-time labor began accruing to Proctor when Cressy became a 

full-time employee in 1994, and it continued to accrue until Cressy ceased his labor in February 

2008. These findings were supported by the evidence presented at trial. It was not clear error for 

the district court to compute damages using an earnings period that accurately reflected the benefit 

accrued to Proctor. 

Proctor also argues that his expert’s $30,000 salary starting point was more appropriate than 

the $40,000 figure provided by Cressy’s expert. The district court’s election of the figure provided 

by Cressy’s expert was its choice between two views both supported by evidence, and was not 

clear error. See, e.g., Murphy, 703 F.3d at 188. 

Finally, Proctor reiterates his argument that he was entitled to an offset for the value of the 

lifestyle benefits that he provided to Cressy after Synergy closed in 2008. Again, though, the 

district court did not err in ruling that Cressy’s labor was qualitatively distinct from the normal 

domestic benefits customarily exchanged in the context of a domestic relationship, and that the 

various lifestyle benefits for which Proctor seeks an offset were within the scope of the normal 
7 

domestic exchange between the parties. The district court’s decision not to offset damages was not 

clear error. 

We have considered all of Proctor’s remaining arguments and find them to be without merit. 

The judgment of the district court is AFFIRMED. 

 FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk