Note: Decisions of a three

- justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

SUPREME COURT DOCKET NO. 2012

- 469

APRIL TERM, 20 1 3

Becky P. Nystrom, Scott Nystrom and Laurie Nystrom } } APPEALED FROM:

} } Superior Court, Windham Unit

,

v. } Civil Divisio n } } Casey J. Hafford } DOCKET NO. 566

- 10

- 10 Wmcv

Trial Judge: John P. Wesley

In the above

- entitled cause, the Clerk will enter:

Defendant Casey Hafford appeals pro se from the trial court’s order, following a remand,

that denied his request for attorney’s fees. We affirm.

The facts underlying this dispute are set forth in Nystrom v. Hafford , 2012 VT 60

. Briefly restated, plaintiff Becky Nystrom sought to partition real property that she jointly owned

with de fendant. Defendant moved to join Becky’s parents in the action as they had advanced labor, materials, and money to construct the house in question. Parents then raised claims against de fendant for breach of contract and unjust enrichment, and father rais ed a claim under the Prompt Pay Act (PPA). Following a bench trial, the court assigned Becky the property contingent on her paying defendant a certain sum. The court rejected father’s PPA claim for payment for his work on the house

, but entered judgment in parents’ favor for $33,048 they had

contributed out

- of

- pocket for the project

. It denied defendant’s request for attorney’s fees.

In his first appeal, defendant argued that he was entitled to attorney’s fees under the PPA.

We remanded to the trial cou rt for the limited purpose of considering defendant’s attorney’s fee

claim . In reaching our conclusion, we found that father’s PPA claim was based solely on his labor in constructing the house

, and that the remaining claim s in the case did not arise from a

common core o f facts. We indicated that, on remand, the “trial court should make a reasonable

effort to award [ defendant ] legal fees associated with father’s PPA claim for reimbursement for

labor in connection with the construction project, as well as a ny other claims by father resting on
the same core set of facts.” Id

. ¶ 25.

The trial court directed defendant to present his claim for attorney’s fees with references

to the record to support the claimed amount. Defendant filed a short response, and included an affidavit from his trial attorney and counsel’s itemized billings from January 1, 2011 through August 3 1, 2012, totaling $46,579.50. According to counsel, defendant estimated that at least
75% of the total bill , or $37,469.85, was directly att ributable to the successful defense of father’s

PPA cl aim and related claims for his labor because they involved a majority of the counts in plaintiffs’ amended complaint, they hindered the settlement of the case at mediation, and they complicated the case thereafter . Father challenged the sufficiency of defendant’s filing, arguing2

that defendant failed to cite a single reference in the record directly related to the PPA claim and

that he thereby failed to comply with the court’s order

. Father maintaine d that it was not his burden to search counsel’s billings or decipher the entries for references to the defense of the PPA claim, or specific references to parents. Father indicated that $2276 in attorney’s fees might be appropriate, but he nonetheless aske d court to deny defendant’s claim for lack of any demonstrated support in the record.

Defendant filed a supplemental memorandum in support of attorney’s fees, but he offered no further specificity as to which items of the billings he claimed to be direc tly related to the

defense of the PPA cl aim, or any other as pe c t of the case c oncerning father’s claim for th e value

of h is labor. Defendant did not respond to father’s suggestion that $2276 in fees might be supportable . Instead, defendant asserted that it was “ difficult, if not impossible, to say with mathematical certainty how much time was due solely to [father’s] labor claims

. ” He maintained

that “ all the claims arose from the same common core of facts concerning the costs of

construction of the hous e and w h e ther there was a gift made in contemplation of marriage. ”

Th e court found that defendant failed to establish his entitlement to fees. His claim for
75% of counsel’s fees was wholly unsupported by any reference t o the record. He made no

effort to relate his analysis to any of the contemporaneous records of his invoices for legal services provided. He did not supply a trial transcript or any deposition transcripts to bolster his claim that the substantial portion of the evidence related to a co mmon core of facts associated

with the PPA count. Instead, h is analysis appear ed to be confined to the observation that the requested award was reasonable because a majority of the claims in the amended complaint
involved father’s claims for funds advance d for construction and his labor, and that the amount

of his claim f

or labor far exceeded the other amo unts claimed by the parties . The court found this logic unpersuasive, particularly as it had no support in the record. The court also rejected

defendan t’s assertion that it “could in fact award him all of his attorney’s fees due to the

common core of facts. ” The court found this assertion directly contrary to this Court’s opinion

. See id

. ¶ 22.

In reaching its conclusion, th e court recognized that def endant did not need to support his

claim with ab solute mathematical precision, and that some degree of approximation was likely inescapable. Nonetheless, defendant’s extravagant claim made in apparent derogation of this
Court’s opin i on, as well as trial court’s prior chara cterization of the allocation of trial time, afforded no rational framework for further refinement of his fee petition e xcept by resort to rank guesswork. The court noted that defendant did not endorse father’s suggested approach as to which billings might be attributable to the defense of the PPA claim, and it declined to find that defendant could meet his burden of proof through father’s speculative suggestions. D efendant was required to establish a rea s o na ble basis from which the cou rt could make a determination of

fees. Because he offere d no approach other than the unsupported and unreasonable estimate of 75% of the total billing, the court denied his claim. This appeal followed.

On appeal, defendant argues that he offered adequa te support for his fee request. He maintains, as he did below, that father’s claim for his labor hindered the case from the beginning. He states that he is entitled to an award of attorney’s fees as a matter of law. Defendant also

s uggests that t he cour t could have used the lo d e star analysis to determine attorney’s fees. Defendant asks that he be awarded $37,469.85 or

, alternatively, all of his attorney’s fees.

We find no error in the court’s decision. See Fletcher Hill, Inc. v. Crosbie , 2005 VT 1, ¶ 3, 178 Vt. 77 (Supreme Court reviews “trial court’s ruling on attorney ’s fees

. . . for abuse of

discretion ). As set forth above, defendant failed to provide the trial court with any reasonable3

basis from which to determine an appropriate attorney’s fee award. His claim for 75% of his total fees was unreasonable and not supported by any specific references to the record. His general assertion that father’s claim for his labor “hindered the case from the beginning” does

not suffice. As we made clear in our prior decision in this case , moreover, father’s claim for labor did not share a common core of facts with the principal claims in the case. See Nystrom

, 2012 VT 60, ¶ 22. The lodestar approach is of no avail because the court had no way to determine the number of hours reasonably expended by counsel in respon se to father’s claim for

labor. See L’Esperance v. Benware , 2003 VT 43, ¶ 22, 175 Vt. 292 (stating that, in determin ing

the reasonableness of a fee awar d, courts must begin with the lodestar figure, which is the number of hours reasonably expended on the case multiplied by a reasonable hourly rate ). To be entitled to attorney’s fees, defendant needed to provide the cou rt with some mechanism by which it could ascertain a reasonable award, and he failed to do so here. His fee request was therefore properly denied.

Affirmed

.

BY THE COURT:

_______________________________________ John A. Dooley, Associate Justice

_______________________________________ Brian L. Burgess, Associate Justice

_______________________________________ Beth Robinson , Associate Justice