Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal. 

ENTRY ORDER

SUPREME COURT DOCKET NO. 2011-201

APRIL TERM, 2013

Miriam R. Levin, Margaret G. Grundstein 

and Leon D. Grundstein

}

}

APPEALED FROM:

} Superior Court, Lamoille Unit,

 v. } Civil Division

}

Robert Grundstein } DOCKET NO. 148-8-05 Lecv

Trial Judge: Dennis R. Pearson

In the above-entitled cause, the Clerk will enter:

Defendant Robert Grundstein appeals pro se from superior court orders requiring the 

partition and sale of certain real property, and awarding plaintiffs attorney’s fees. We affirm.

This is the third appeal to reach the Court in this protracted family dispute. The facts 

may be summarized as follows. The parties are four siblings who jointly owned a camp on Lake 

Eden which their parents deeded to them in April 1972. In August 2005, plaintiffs—three of the 

siblings—commenced an action against the fourth—Mr. Grundstein—to partition the property. 

Following a hearing, the trial court issued a final judgment, dated August 3, 2007, assigning title 

to the property to Grundstein, “subject to the terms” of a separate order which conditioned the 

assignment on Grundstein’s payment of $25,000 to each plaintiff as his or her share in the 

property no later than June 1, 2008. The order further provided that, if Grundstein failed to make 

the required payments, the property would be put up for sale and the proceeds divided into onequarter shares and paid to the parties. 

When Grundstein failed to make the required payments, plaintiffs offered the camp for 

sale, found a buyer, and planned to close in October 2008. In response to Grundstein’s 

opposition to the sale and claim that it was unauthorized, plaintiffs filed an action to enjoin him 

from interfering. On September 29, 2008, the trial court issued an order granting the requested 

injunctive relief, and requiring that Grundstein vacate the property. 

Grundstein appealed the injunction order to this Court, claiming that the August 3, 2007 

partition order gave him a fee simple right in the property which could be extinguished only by a 

foreclosure action. See Levin v. Grundstein, No. 2008-417, 2009 WL 2427820, at *1 (Vt. Mar.

5, 2009) (unpub. mem.), http://www.vermontjudiciary.org/d-upeo/eo08-417.pdf (Grundstein I). 

We rejected the claim, explaining that, as permitted by the partition statutes, 12 V.S.A. §§ 5174-

5175, the trial court had properly assigned title conditioned on the payment of money, and that in 

the event payment was not made in full, plaintiffs were to sell the property. “[D]efendant did not 

obtain a fee simple interest in the property . . . without first having paid the money required to 

obtain such an interest.” Grundstein I, 2009 WL 2427820, at *1. We thus held that the partition 
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“order was proper under the statute,” and that the court “did not err by enjoining [Grundstein] 

from interfering with the sale of the property” pursuant to the order. Id. 

The planned sale apparently fell through, however, and the dispute continued. In March 

2009, plaintiffs moved to hold Grundstein in contempt for failing to vacate the camp and remove 

his personal property. Following a hearing on June 22, 2009, the court issued an order granting 

the contempt motion subject to Grundstein’s complying with its prior order by June 26, 2009. 

When he failed to comply, plaintiffs moved for an award of attorney’s fees on June 30, 2009, 

which the court set for a hearing. The court issued a final judgment of contempt on July 6, 2009. 

Grundstein appealed the order, raising a variety of claims. We affirmed, holding that his “vague 

constitutional arguments claiming a deprivation of property without due process have no merit.” 

Levin v. Grundstein, No. 2009-254, 2010 WL 1266673, at *1 (Vt. Apr. 1, 2010) (unpub. mem.), 

http://www.vermontjudiciary.org/d-upeo/eo09-254.pdf (Grundstein II). We further held that, 

“[t]o the extent that [Grundstein] is challenging the underlying injunction and partition order, 

those arguments are barred by the principle of res judicata, as the arguments were raised and 

rejected in this Court’s previous decision.” Id. 

In February 2011, the trial court held a hearing on several pending motions, including 

plaintiffs’ motion for an award of attorney’s fees and motion to alter or amend the partition 

judgment to assign them title to the property and grant Grundstein a one-quarter interest in the 

proceeds of sale. In an entry order dated April 22, 2011, the trial court granted the latter motion, 

treating it as akin to a motion for relief from judgment under V.R.C.P. 60(b)(6), and granted the 

request for attorney’s fees, finding that the “repeated, and continuous conduct by [Grundstein] to 

delay and frustrate” plaintiffs’ established right to sell the property upon his failure to buy-out 

plaintiffs entitled them to attorney’s fees under “the limited exception to the ‘American rule’ ” 

for wrongful conduct. The trial court found, however, that the billing information submitted by 

plaintiffs’ attorney was inadequate, and ordered the filing of more detailed timesheets. 

Grundstein filed a pro se appeal from the April 22, 2011 order.

At Grundstein’s request, we stayed the appeal in August 2011 and remanded the matter to 

the trial court to rule on certain post-judgment motions which he had filed. On January 24, 2012, 

the trial court issued an order denying a motion to reconsider the April 22, 2011 order, denying a 

motion for access to property, and granting a request for additional time to file objections to 

plaintiffs’ attorney’s billing statements. An evidentiary hearing on the attorney’s-fee request was 

held in July 2012. We removed the appeal from waiting status in December 2012, and scheduled 

briefing. On January 8, 2013, the trial court entered an order awarding plaintiffs attorney’s fees 

of $10,622.11. 

The claims on appeal are not well developed and difficult to parse. To the extent, 

however, that they challenge plaintiffs’ right to sell the property under the terms of the partition 

order or the merits of the injunction, they are barred for the same reason stated in Grundstein II, 

2010 WL 1266673, at *1, to wit, that the arguments were raised and rejected in Grundstein I, and 

are therefore res judicata. 

To the extent that Grundstein asserts the trial court lacked authority to amend the 

partition judgment, he cites no case, statute, or other authority to support the claim, and we have 

held that the trial court enjoys broad discretion to amend a judgment in the interests of justice 
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under the catchall provision of Rule 60(b)(6). See Sandgate Sch. Dist. v. Cate, 2005 VT 88, ¶ 7, 

178 Vt. 625 (mem.) (“Relief from judgment under Rule 60(b)(6) is intended to prevent hardship 

or injustice and thus [is] to be liberally construed and applied.” (quotation omitted)); Adamson v. 

Dodge, 174 Vt. 311, 326 (2002) (observing that trial court’s discretionary decision under 

V.R.C.P. 60(b)(6) “is not subject to appellate review unless it clearly and affirmatively appears 

on the record that such discretion was withheld or abused” (quotation omitted)). Grundstein 

makes no showing, moreover, of how the order vesting title in plaintiffs prejudiced his interests 

in any respect, inasmuch as it had no impact on the provision requiring an ultimate sale of the 

property due to his failure to make the required buyout payments. See Perry v. Green Mountain 

Mall, 2004 VT 69, ¶ 11, 177 Vt. 109 (noting that judgment will generally not be disturbed absent 

showing that alleged error affected “matters truly of substance” (quotation omitted)). Grundstein 

also asserts that he was denied notice of a possible change of title, in violation of his right to due 

process, but he provides no support for the claim. 

The remaining claims appear to focus on the award of attorney’s fees. In this regard, 

Grundstein appears to assert that the award was untimely and unauthorized under V.R.C.P. 

54(d), by any statutory or contractual provision, failed to comply with the rules governing an 

award of sanctions under V.R.C.P. 11, was legally and factually unsupported, and was based on 

fraudulent billing records. The claims are meritless. The attorney’s fee motion was timely filed 

within fourteen days of the court’s initial contempt order, V.R.C.P. 54(d)(2)(B), and was 

predicated, as the trial court here noted, on the recognized common-law exception to the 

“American rule” where litigation expenses are necessitated by the wrongful acts of a party. See, 

e.g., Knappmiller v. Bove, 2012 VT 38, ¶ 5 (mem.) (reaffirming exception to general rule that 

parties bear their own attorney’s fees and costs where “the wrongful act of one person” has made 

it necessary for another to incur litigation expenses (quoting Albright v. Fish, 138 Vt. 585, 591 

(1980)); Agency of Natural Res. v. Lyndonville Savings Bank & Trust Co., 174 Vt. 498, 501,

811 A.2d 1232, 1236 (2002) (mem.) (recognizing that courts have inherent authority, to be 

exercised “with cautious restraint,” to award attorney’s fees “in those exceptional cases where 

justice demands”); In re Gadhue, 149 Vt. 322, 328, 329 (1987) (recognizing court’s inherent 

discretion to award attorney’s fees “to do justice and vindicate rights” where defendant 

unnecessarily “prolonged the litigation” and compelled plaintiff to seek injunction). 

As noted, the trial court initially awarded attorney’s fees on the basis of its finding that 

Grundstein’s actions were designed “to frustrate and delay” plaintiffs’ right to sell the property, 

and compelled them to incur unnecessary litigation costs in obtaining an injunction and contempt 

order. In its final order of January 8, 2013 specifically awarding fees of $10,622.11, the court 

reaffirmed its finding that the award was based on actions by Grundstein “intentionally designed 

to impede and frustrate the court’s orders and judgment, and to deny [p]laintiffs, the already 

prevailing parties, the relief they have already won.” Grundstein had not shown these findings to 

be erroneous, or the award an abuse of discretion. See Knappmiller, 2012 VT 38, ¶ 4 (observing 

that awards for attorney’s fees are generally reviewed for abuse of discretion). Thus, the 

argument concerning the absence of a statutory or contractual basis for the award, and the failure 

to comply with the requirements for Rule 11 sanctions, are beside the point. The attorney’s fee 

award was not based on the unreasonable filing of court papers, but rather, as the trial court 

found, on Grundstein’s intentionally obstructive conduct—in violation of plaintiffs’ existing 

rights and prior court orders—that necessitated the incursion of unnecessary litigation expenses. 

See Chambers v. NASCO, Inc., 501 U.S. 32, 50 (1991) (holding that courts retain inherent power 
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to sanction misconduct “where the conduct at issue is not covered by one of the other sanctioning 

provisions” in the rules); Lawson v. Brown’s Home Day Care Ctr., Inc., 2004 VT 61, ¶ 20, 177 

Vt. 528 (mem.) (noting that “because the court did not impose sanctions under Rule 11, the 

rule’s requirements [were] irrelevant here”). 

Grundstein also appears to assert that the exception for wrongful misconduct requires 

litigation with a “third party.” Although the cases occasionally refer to circumstances where the 

wrongful acts of a person have made it necessary “to become involved in litigation with a third 

party,” Windsor Sch. Dist. v. State, 2008 VT 27, ¶ 10, 183 Vt. 452, this is not a requirement for 

application of the rule, which may as easily apply to litigation directly with the offending party. 

See, e.g., In re Gadhue, 149 Vt. at 329-30 (actions by defendant which required plaintiff to seek 

injunction and incur unnecessary expenses to protect her rights justified attorney’s fee award 

under common-law exception for wrongful acts). In addition, Grundstein appears to argue that 

the procedures and evidence relating to the award were deficient, challenging the submission of 

“post-hearing evidence” and the absence of “third party testimony.” The court had the 

discretion, however, to continue the attorney’s fee hearing and take additional evidence to 

determine the sufficiency and reasonableness of the attorney’s billing statements. Furthermore, 

as stated in the court’s decision, plaintiffs adduced the testimony of a “third party” in support of 

the claim, an attorney who testified as an expert witness that the billings submitted by plaintiffs’ 

attorney were reasonable. Grundstein’s additional assertion that the attorney’s time sheets 

perpetrated a “fraud on the court” is entirely unsupported. 

Finally, Grundstein claims that the trial court “act[ed] as an advocate” for plaintiffs’ 

attorney and failed to act impartially. In support, he asserts that the court held the evidence open 

on the attorney’s fee claim for too long, and misapplied the law in awarding attorney’s fees. 

Absent “a clear and affirmative showing of bias or prejudice” a judge’s recusal is not required, 

and merely arguing that “none of the trial judge’s rulings [went] in [his] favor” does not meet 

this standard. Ball v. Melsur Corp., 161 Vt. 35, 40-41 (1993). Accordingly, we find no basis to 

support the claim, and no grounds to disturb the judgment.

Affirmed. 

 

BY THE COURT:

_______________________________________

Paul L. Reiber, Chief Justice

_______________________________________

Brian L. Burgess, Associate Justice

_______________________________________

Beth Robinson, Associate Justice