Amick v. C & T Development Co., Inc., 20267

• Court: Supreme Court of West Virginia
• Citation: 416 S.E.2d 73,187 W.Va. 115
• Decision Date: 02 April 1992
• Docket Number: No. 20267,20267
• Parties: , 126 Lab.Cas. P 57,526 John Edward AMICK, et al., Plaintiffs Below, Appellees, v. C & T DEVELOPMENT CO., INC., a West Virginia Corporation, Elk River Sewell Coal Company, a Corporation, et al., Defendants Below, Appellant.

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416 S.E.2d 73 187 W.Va. 115, 126 Lab.Cas. P 57,526 John Edward AMICK, et al., Plaintiffs Below, Appellees,
v.
C & T DEVELOPMENT CO., INC., a West Virginia Corporation,
Elk River Sewell Coal Company, a Corporation, et
al., Defendants Below, Appellant. No. 20267. Supreme Court of Appeals of
West Virginia. Submitted Jan. 22, 1992.
Decided April 2, 1992.

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[187 W.Va. 116] Syllabus by the Court

1. "W.Va.Code § 38-2-31 (1966) is properly used in aid of the enforcement of a lien for liquidated damages granted under W.Va.Code § 21-5-4(e) (1978 Replacement Vol.)." Syllabus point 2, Farley v. Zapata Coal Corp., 167 W.Va. 630, 281 S.E.2d 238 (1981).

2. "An employee who succeeds in enforcing a claim under W.Va.Code Chapter 21, article 5 should ordinarily recover costs, including reasonable attorney fees unless special circumstances render such an award unjust." Syllabus point 3, Farley v. Zapata Coal Corp., 167 W.Va. 630, 281 S.E.2d 238 (1981).

William W. Talbott, Webster Springs, for appellees.

Harry A. Smith, III, Busch, Jory, Smith & Talbott, Elkins, for appellant.

PER CURIAM:

This is an appeal by Elk River Sewell Coal Company from an order entered by the Circuit Court of Webster County on January 22, 1991. That order awarded a number of former employees of C & T Development Company, Inc., a contractor which had worked for Elk River Sewell Coal Company, judgment against Elk River for $60,000 and attorney fees. The judgment was predicated on the fact that the contractor had not paid its employees for work performed on Elk River Sewell Coal Company's property, and that the employees, under West Virginia mechanic's lien statute, had a lien against the owner's property. Among other points, on appeal the appellant, while not challenging the mechanic's lien generally, claims that the

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[187 W.Va. 117] court erred in awarding liquidated damages, that the court erred in holding that the plaintiffs below were entitled to attorney fees, and that the court erred in not considering the bankruptcy of C & T Development Company, Inc., as a factor which would mitigate its damages.

The facts of this case show that on February 10, 1988, the appellant, Elk River Sewell Coal Company, entered into a contract with C & T Development Company, Inc., which provided that C & T would mine coal on property owned by the appellant. The appellant retained the right to designate the areas to be mined as well as the tonnages to be supplied. It also retained the right to specify the mining plans.

After entering into the contract, C & T commenced mining operations. Thereafter, however, C & T failed to pay its employees for the pay period ending May 19, 1989. As a consequence, the employees, except for one Michael Vandal, gave notices of mechanic's liens to C & T and the appellant, and the notices were filed in the office of the Clerk of the County Commission of Webster County in July, 1989. Michael Vandal filed a notice of a lien on August 16, 1989.

Subsequently, on September 14, 1989, the employees of C & T who had not been paid filed an action in the Circuit Court of Webster County to recover wages due, overtime pay, and liquidated damages. The liquidated damages claim was predicated on W.Va.Code, 21-5-4, which provides:

(e) If a person, firm or corporation fails to pay an employee wages as required under this section, such person, firm or corporation shall, in addition to the amount due, be liable to the employee for liquidated damages in the amount of wages at his regular rate for each day the employer is in default, until he is paid in full, without rendering any service therefor: Provided, however, that he shall cease to draw such wages thirty days after such default. Every employee shall have such lien and all other rights and remedies for the protection and enforcement of such salary or wages, as he would have been entitled to had he rendered service therefor in the manner as last employed; except that, for the purpose of such liquidated damages, such failures shall not be deemed to continue after the date of the filing of a petition in bankruptcy with respect to the employer if he is adjudicated bankrupt upon such petition.

Paragraph 4 of the complaint set forth that wages and benefits, including liquidated damages, were due as itemized in the mechanic's or laborer's liens which were attached to the complaint as an exhibit. The prayer of the complaint sought to recover for each plaintiff the sums which...