Williams v. Campbell, No. 0920-01 Cnc (Katz, J., Jan. 7, 2004)



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STATE OF VERMONT                           SUPERIOR COURT
Chittenden County, ss.:                    Docket No. 0920-01 CnC

MICHAEL WILLIAMS and
RONALD PUMA

v.

DENNIS CAMPBELL, ET AL.



                                   ENTRY

       Defendant seeks attorneys fees and costs in a breach of contract
action. Plaintiffs oppose this motion claiming that defendants are not
prevailing parties under either the terms of the contract or by the resulting
dismissal of plaintiffs’ case. We disagree and find that the defendants are
the prevailing party as understood by their contract.

        Plaintiffs claimed a breach of contract when defendants refused to
sell their building after plaintiffs shifted their source of financing in
contravention to the contract. Defendants challenged the plaintiffs’ claims,
and the case was dismissed when plaintiffs failed to prosecute. Under the
terms of the contract, the prevailing party in any legal action for breach
shall be entitled to reasonable attorney’s fees and costs. The fact that the
defendants have successfully defended a claim for breach of contract makes
them the prevailing party in the plain meaning of this phrase. D.J. Painting
Inc. v. Baraw Enters., Inc., 

, 247 (2001) (affirming defendant as
“substantially prevailing party” after a breach of contract claim was
dismissed); see also U.S. for Use of West v. Peter Kiewit & Sons’ Co., 

, 503 (D. Alaska 1964) (“[I]it would be an extremely unfair
rule or practice to award costs and attorney's fees when plaintiff prevails
and to deny them when defendant prevails.”).

        The next question is whether there is a prevailing party since the
claim was dismissed for lack of prosecution. Defendants, in this case,
actively defended their rights and incurred legitimate expenses to answer
the plaintiffs claims. The language of the contract does not condition its
award of fees and costs on the manner or standard by which a party
prevails. The fact that plaintiffs chose to walk away once it appeared that
their claim was less than promising, rather than follow it through to
summary judgment and additional expenses, does not lessen the
defendants’ prevailing status. See, e.g., Hatch v. Dance, 

,
714 (Fla. App. 1985); Sackett v. Mitchell, 

, 1137 (Or. 1973).
Therefore, defendants are the prevailing party for the purposes of attorney’s
fees and costs.

       Based on the foregoing, defendants’ motion for reasonable
attorney’s fees and costs is granted.


       Dated at Burlington, Vermont________________, 2004.



                                          ________________________
                                          Judge