Porter v. Town of Sandwich, Doc. No. 212-2014-CV-180 (Carroll Super. Ct., March 22, 2016) (Temple, J.)

Pages: 1 2 3 [no p. 4] 5 6 7




H. Boone Porter, III, and Margaret C. Porter


Town of Sandwich, Benjamin Shambaugh, Wendy Huff, and Arthur Kerr

Docket No. 212-2014-CV-180


The plainfiffs, H. Boone Porter, III, and Margaret C. Porter (collectively the "Porters"), brought this action against the defendants, the Town of Sandwich (the "Town"), Benjamin Shambaugh ("Shambaugh"), Wendy Huff ("Huff"), and Arthur Kerr ("Kerr") (collectively the "defendants"), asserting various violations of the Right-to-Know Law. See RSA chapter 91-A (2013 & Supp. 2015). After a bench trial, the court issued an order (the "August 2015 order") granting the Porters' petition in part, and denying it in part.1 (Court index #29.) Among other remedies, the court awarded reasonable attorney's fees and costs to the Porters under RSA 91-A:8 (2013). (Court index #29 at 42-45.) This award was based upon RSA 91-A:8.2 (See August 2015 order at 42-45.) In support of this award, the court specifically found that: (1) the defendants violated the Right-to-Know Law; (2) the Porters' Right-to-Know action was "necessary in order to enforce compliance with the provisions" of the law; and (3) the defendants [2] "knew or should have known that the conduct engaged in was in violation of [the law.]" (Id.); see RSA 91-A:8, I; ATV Watch v. N.H. Dep't of Res. & Econ. Dev., 155 N.H. 434, 442 (2007).

The Porters now argue that they are entitled to reasonable attorney's fees in the amount of $202,840.50, and costs in the amount of $9,919.96.3 In support of this claim, they submitted, among other things, two affidavits of Attorney Jennifer Parent, the affidavit of Attorney Rachel Hampe, two itemized summaries of the billing entries for fees incurred by the Porters, and two itemized taxations of costs. (Parent Aff., Exs. A-B, Oct. 7, 2015 ("First Parent Aff."); Hampe Aff., October 7, 2015; Parent Aff., Exs. A-B, Jan. 27, 2016 ("Second Parent Aff.").) They also submitted the affidavit of Attorney Philip Waystack opining as to the reasonableness of the fees and costs charged to the Porters. (Waystack Aff. ¶ 8.) Further, at the hearing, the Porters made an offer of proof that Attorney Waystack would testify that the fees and costs requested were reasonable. They also made an offer of proof that they had paid all charges billed to them for legal services on a monthly basis.

The defendants object, arguing, among other things,4 that the amounts requested are unreasonable. They assert that the amount sought for attorney's fees is [3] unreasonable because: (1) the Porters did not prevail on all claims for which they are seeking to recover fees; (2) the Porters' attorneys' rates are "well above" the customary fees in the area; and (3) the Porters' attorneys devoted an excessive amount of time to the litigation. (Defs.' Obj. Pls.' Mot. Fees ¶¶ 4-10.) They further maintain that the amount sought for costs is unreasonable because it includes certain costs which are not recoverable. (Id. ¶¶ 11-13.) In support of these claims, the Town submitted the results of an Economics of Law Practice Survey from 2014. (Id., Ex. 1.)

The court first addresses the issue of whether the Porters are entitled to recover fees relating to claims on which they did not prevail. The defendants assert that the Porters cannot recover fees relating to their unsuccessful claims because those claims are "analytically severable" from the claims upon which the Porters prevailed. See LaMontagne Builders, Inc. v. Brooks, 154 N.H. 252, 261 (2006) (explaining common law rule that "fee award[s] should be reduced to exclude time spent on unsuccessful claims" where claims are "analytically severable"). The Porters disagree with this assertion, arguing that the common law does not apply and that the plain language of RSA 91-A:8, I, does not require the court to engage in a severability analysis.

Generally, each party to litigation must pay that party's own attorney's fees. See, e.g., Bedard v. Town of Alexandria, 159 N.H. 740, 744 (2010). However, the New Hampshire Supreme Court has recognized exceptions to this rule. Id. Where a statute specifically authorizes it, a court may award attorney's fees. Id. Otherwise, an award of attorney's fees must be grounded upon an agreement between the parties or a judicially-created exception to the general rule. See id.

Under New Hampshire common law, "[w]here a party prevails upon some claims and not others, and the successful and unsuccessful claims are analytically severable, [5] 814 (2014) (noting severability analysis necessary where fees awarded under RSA 5-B:4-a (Supp. 2015)). The court will, therefore, engage in a severability analysis.

Here, the Porters asserted four classes of violations of the Right-to-Know Law. (August 2015 order at 18-39 (addressing the following types of asserted violations: (1) various e-mails circulated to the ZBA; (2) two draft decisions circulated to the ZBA; (3) the Town's withholding of certain documents; and (4) the Board of Selectmen's nonpublic discussion).) The Porters prevailed on all four of these claims with minimal exception. The court found that e-mail circulations to the ZBA, the circulation of two draft decisions to the ZBA, the Town's withholding of draft decisions, packet materials, redline notations, and meeting notes, and the Board of Selectmen's nonpublic discussion constituted violations of the Right-to-Know Law. However, in analyzing the five sub-classes of documents alleged to have been improperly withheld, the court also found that the Town's withholding or non-production of two such sub-classes of documents-those subject to attorney-client privilege and those found to be non-existent-was proper. (See id. at 22-37.) It is these claims upon which the Porters did not prevail.

The court finds that, although the Porters were primarily successful, the claims on which they did prevail are analytically severable from the claims on which they did not. Their claims that the defendants improperly withheld documents as privileged and that the defendants improperly denied the existence of certain e-mail communications of the Board of Selectmen are factually and legally distinct from their remaining claims. In a factual sense, the documents sought by these two claims were not the subject of any of the Porters other claims. Many of the Porters claims did not seek the production of documents at all, and their other three claims under the "improperly withheld documents" classification sought wholly separate documents-draft decisions, packet [6] materials, redline notations, and meeting notes. (See id. at 22-27.) Additionally, in a legal sense, the Porters' privileged documents claim involved isolated legal issues-such as attorney-client privilege, confidentiality, and waiver-which did not substantially relate to the other claimed vlolations.5 (See id. at 27-35.) Further, as the e-mail dispute was not legal in nature, (see id. at 36-37), it constituted a legally distinct claim from the Porters' remaining claims. Because the issues presented by the Porters' successful claims and unsuccessful claims were factually and legally distinct, the court concludes that they were analytically severable. See Funtown USA, Inc. v. Town of Conway, 129 N.H. 352, 355-56 (finding plaintiff's appeal on inverse condemnation claim for damages severable from successful claims regarding its vested property rights and challenges to zoning board conduct); Avery v. Hughes, No. 09-CV-265-JD, 2010 WL 4116849, at *2 (D.N.H. Oct. 19, 2010) (finding work on lease agreement analytically severable from work related to purchase and sale agreement).

Having determined that the Porters claims are analytically severable, the court must consider the reasonableness of the requested fees in light of that determination. However, on the record before it, the court cannot make this determination. Although there is sufficient evidence before the court relating to the majority of relevant factors, the nature of the Porters' itemized summaries prevents the court from properly assessing the reasonableness of the time devoted to the claims upon which the Porters prevailed. See Town of Barrington v. Townsend, 164 N.H. 241, 250 (2012) (listing factors to consider, in the court's discretion, including "the time devoted" to the litigation). Specifically, while some entries in the itemized summaries clearly relate only to the Porters' failed claims, some undoubtedly relate to both their successful and [7] unsuccessful claims, and others are entirely unclear. (Compare First Parent Aff., Ex. A at 2 ("Research whether 91-A requires privilege log"), with First Parent Aff., Ex. A at 10 ("Revise and continue to draft trial memorandum"), with First Parent Aff., Ex. A at 3 ("Analyze case strategy with respect to discovery matters").

For these reasons, the court defers ruling on the reasonableness of the Porters' request for fees and costs. The Porters shall submit a revised itemized statement of fees, along with a supporting affidavit within 14 days of the Clerk's written notice of this order. This statement must be tailored to request only fees attributable to the claims upon which the Porters prevailed. The defendants shall respond to this itemization within 14 days of its filing with the court.


Dated:    3-22-16       /s/   

Charles Temple,

Presiding Justice

1 The factual and procedural background of the case is detailed in the court's August 14, 2015 order. (Court index #29 at 1-17.)

2 The Porters also requested attorney's fees on the basis that the defendants acted in bad faith, see Harkeem v. Adams, 117 N.H. 687, 690-91 (1977), but the Court did not reach this issue. (August 2015 order at 45.)

3 The Porters initially requested $186,916.50 in attorney's fees and $9,853.92 in costs. (Pls.' Mot. Fees, Prayer B.) They later supplemented this request to request an additional $16,374.00 in fees and $66.04 in costs, which they have incurred since the filing of their initial request. (Pls.' Reply Defs.' Obj. Mot. Fees.) Additionally, at the hearing, they conceded that certain objected-to fees unrelated to the instant action - totaling $450.00 - had been improperly included in their request. (Hr'g Audio, Feb. 2, 2016, at 1:31:36-1:31:54; see also Defs.' Obj. Mot. Fees ¶ 7c.)

4 In their objection, the defendants asserted that the Porters had improperly refused to produce the bills sent to them by their attorney's law firm. (See Defs.' Obj. Pls.' Mot. Fees n.2.) However, they abandoned this argument at the hearing, conceding that the bills need not be produced. Additionally, at the hearing, the defendants appeared to argue that the Porters cannot recover fees associated with the pending motions and other post-trial issues on the grounds that the issues addressed therein are unrelated to the Right-to-Know Law. The court disagrees that the post-trial motions are irrelevant. To the contrary, the need for the Porters' filing of these motions stems directly from the defendants' numerous violations of the law.

5 The court notes that the e-mail dispute was not legal in nature. (See August 2015 order at 36-37.)