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 JA NUARY 1, 2007, IS PE RMITTED AND IS GOVERNE D 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 (W ITH THE NOTATION A SUMMARY 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 Cour t of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courth ouse, 40 Foley Square, in the City of New York, on the 12 th 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: D EVIN M C L AUGHLIN , Langrock Sperry & Wool, LLP, Middlebury, VT. FOR DEFENDANT-APPELLANT: M ARK P. S CHERZER , 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 Easter n District of New York, sitting by designation.2 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 appeal s the district court’s award of quantum meruit restitution to plaintiff-appe llee 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 pr oper 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 presen ted 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 abus e of discretion.” Appellee’ s Brief, 9. Proctor cites no authority in support of his position, and we can find none. We are conv inced 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 revi ewed 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 fo r a clear error of law. Where the district court’s determinations rega rding . . . equitable remedies are supported by findings of fact, such findings are reviewed under the ‘clearly e rroneous’ standard.”); Weed v. Weed , 968 A.2d 310, 315 (Vt. 2008) (“We review equita ble remedies...for a trial court’s abuse of discretion.”).3 With respect to the district c ourt’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 pa rties agree that review is for clear error. “A district court has abused it s discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessmen t of the evidence, or rendered a decision that cannot be located within the range of pe rmissible 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 de finite 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 Cre ssy was entitled to equitable restitution for the benefit his labor conferred on Proc tor’s business while the parties were in a domestic relationship. Under Vermont law, equitable rest itution 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 inqui ry 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 meas ure 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 cour t’s decision and the record below, we are satisfied that the district court did not abuse its discretion in ru ling that quantum meruit restitution was appropriate. The court heard conflicting test imony regarding the materialit y of the benefit conferred by Cressy’s labor at Synergy, and, in its role as fact finder at a benc h trial, resolved these factual conflicts with its findings that Cressy was a fu ll-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 fa cts 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 compensate d by paycheck, was richly compen sated by this lifestyle, paid for by Proctor. The district court rejected that argument, however, an d ruled that whatever lifestyle benefits Cressy enjoyed were part of the normal exchange of domestic benefits in a domestic relationship. We agree with the di strict court. As Proctor’s domes tic partner, Cressy would have expected to enjoy those sorts of li festyle benefits, regard less of whether he c ontributed to Proctor’s business. By contrast, Cressy’s labor as a full- time employee of Synergy wa s not within the scope of the normal exchange of domestic benefits; Proc tor 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 ope rations of a business owned by the other and was not compensated. There, the Vermont Supreme C ourt ruled that “[t]he only conclusion that can be fairly and reasonably drawn is that plain tiff’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 rej ected Proctor’s assertion of lach es. “Laches is the failure to assert a right for an unreasonable and unexplai ned 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. 1 994)). As the district court note d, Cressy had no reason to raise his restitution claim prior to th e dissolution of the parties’ do mestic relationship. It was not unreasonable or inexplicable for him not to assert his right to restitution be fore the parties ended their relationship. The district cour t did not abuse its broad equitabl e discretion in rejecting laches. Proctor’s assertion of estoppel by acquiescence rests on essentially th e 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 reas on to raise his claim while the parties were still in a domestic relationship. There was no abuse of di scretion in the district court’s rejection of estoppel.6 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 Cre ssy was a full-time employee of Synergy, and a base yearly salary of $40,000 in 1994, with annual salary growth. Th e parties stipulated that this would yield an award of $107,957. Proc tor challenges the va lidity of the earnings period and the yearly salary figures th e district court used. We see no clear error in the earn ings period used by the district court. The district court found that the benefit of Cressy’s full-time labor be gan accruing to Proctor when Cressy became a full-time employee in 1994, and it continued to a ccrue until Cressy ceased his labor in February 2008. These findings were supported by the evidence pres ented at trial. It was not clear error for the district court to compute damages using an earn ings period that accurately reflected the benefit accrued to Proctor. Proctor also argues that his e xpert’s $30,000 salary starting point was more appropriate than the $40,000 figure provided by Cressy’s expert. The district court’s el ection of the fi gure provided by Cressy’s expert was its choice between tw o 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 wa s entitled to an offset for the value of the lifestyle benefits that he pr ovided to Cressy after Synergy closed in 2008. Again, though, the district court did not err in ru ling that Cressy’s labor was qual itatively distinct from the normal domestic benefits customarily exchanged in the context of a domestic re lationship, and that the various lifestyle benefits for which Proctor seeks an offset were within the scope of the normal7 domestic exchange between the parties. The distri ct court’s decision not to offset damages was not clear error. We have considered all of Proc tor’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