Hollen v. Hathaway Electric, Inc., No. 30681.

• Court: Supreme Court of West Virginia
• Writing for the Court: PER CURIAM
• Citation: 584 S.E.2d 523,213 W.Va. 667
• Decision Date: 26 June 2003
• Docket Number: No. 30681.
• Parties: Angela D. HOLLEN, Plaintiff Below, Appellant v. HATHAWAY ELECTRIC, INC., Defendant Below, Appellee.

584 S.E.2d 523
213 W.Va. 667

Angela D. HOLLEN, Plaintiff Below, Appellant
v.
HATHAWAY ELECTRIC, INC., Defendant Below, Appellee

No. 30681.

Supreme Court of Appeals of West Virginia.

Submitted January 21, 2003.

Decided June 26, 2003.

584 S.E.2d 525

Regina L. Charon, Morgantown, for Appellant

James M. Pool, Clarksburg, for Appellee.

David M. Hammer, Hammer, Feretti & Schiavoni, Martinsburg, Amicus Curiae for West Virginia Employment Lawyers Association.

584 S.E.2d 524

PER CURIAM

Appellant Angela Hollen sued her former employer, appellee Hathaway Electric, Inc., seeking compensation for vacation days she claimed to have earned prior to leaving employment. Appellee settled the day of trial, offering to pay Ms. Hollen's initial demand, with the amount of attorney's fees to be determined by the court. Counsel for Ms. Hollen submitted a Motion for Attorney's Fees asking to be paid for 104 hours at $200 per hour. The circuit court granted only 67 hours at $100 per hour. Because we find that the circuit court erred in both the number of hours approved and the amount per hour awarded, we reverse.

I.

FACTS

Appellant Angela D. Hollen worked as a secretary, first for Hathaway Electrical Services and then for Hathaway Electric, Inc, from October 1995 to October 11, 2000, when she resigned from employment.¹ Ms. Hollen resigned because of a dispute over vacation time. Specifically Ms. Hollen alleged that her supervisor, Ronald Hathaway, refused to allow her to take a vacation at a time she had scheduled and he had previously approved. After her resignation, Hathaway Electric, Inc. refused to pay Ms. Hollen for unused vacation days that she alleged she had earned during her last year of employment. According to Ms. Hollen, her employer took the position that, although she essentially worked the same job for five years, because Hathaway Electric Services and Hathaway Electric, Inc. are technically two different companies, she had not worked long enough for the second company to earn the disputed days of vacation.²

Unable to resolve the disagreement, Ms. Hollen obtained counsel, who wrote to Hathaway Electric and requested $2,250, consisting of $500 in vacation pay, $250 in attorney's fees, and $1,500 in liquidated damages, basing her claim upon the West Virginia Wage Payment and Collection Act, W. Va.Code 25-1-1, et seq. Hathaway Electric did not comply with the request, and Ms. Hollen filed suit against the company.

Hathaway Electric responded by filing an answer denying the allegations and adding a

584 S.E.2d 526

counterclaim alleging that Ms. Hollen had divulged proprietary company information to other parties that had resulted in the loss of a potential contract for the company.³ After deposing Ronald Hathaway and investigating the merits of the counterclaim, counsel for Ms. Hollen made a new settlement demand for $5,390, including attorney's fees. Eventually Hathaway Electric responded with an offer of $2,750. Finally, on the day of trial, September 28, 2001, Hathaway Electric offered to pay Ms. Hollen the $500 in vacation pay and $1500 in liquidated damages she had originally requested, and to drop its counterclaim against her. The court deferred a determination of reasonable attorney's fees until counsel for Ms. Hollen could submit a bill

Subsequently, counsel for Ms. Hollen filed a Motion for Attorney's Fees seeking compensation at $200 per hour for 104 hours of work, for a total of $20,800. In a supporting brief, counsel explained that her normal hourly rate for non-contingent matters (matters for which she would be paid win or lose) was $130 per hour, but that she used a rate of $200 per hour in cases such as Ms. Hollen's, in which a loss would mean that counsel would not be paid at all. After a hearing, the circuit court issued a Supplemental Judgment Order on November 15, 2001, in which it awarded attorney's fees of $6,700, and specified this amount to be payment for 67 hours of work at $100 per hour. It is from this order that Ms. Hollen appeals. Because we find that the court erred in both the number of hours and the hourly rate it awarded, we reverse.

II.

STANDARD OF REVIEW

In prior cases we have noted that we review a circuit court's award of attorney's fees only for an abuse of discretion.

"`"[T]he trial [court] ... is vested with a wide discretion in determining the amount of ... court costs and counsel fees, [sic] and the trial [court's] ... determination of such matters will not be disturbed upon appeal to this Court unless it clearly appears that [it] has abused [its] discretion." Syllabus point 3, [in part,] Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959).' Syl. Pt. 2, [in part,] Cummings v. Cummings, 170 W.Va. 712, 296 S.E.2d 542 (1982) [(per curiam)]." Syllabus point 4, in part, Ball v. Wills, 190 W.Va. 517, 438 S.E.2d 860 (1993).

Syl. pt. 3, Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999). However, as in all cases, "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). Furthermore, the lower court's discretion is not without limit.

Ordinarily, when a circuit court is afforded discretion in making a decision, this Court accords great deference to the lower court's determination. However, when we find that the lower court has abused its discretion, we will not hesitate to right the wrong that has been committed.

Rollyson v. Jordan, 205 W.Va. 368, 379, 518 S.E.2d 372, 383 (1999); accord Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995). Or stated in another fashion: "We grant trial court judges wide latitude in conducting the business of their courts. However, this authority does not go unchecked, and a judge may not abuse the discretion granted him or her under our law." Lipscomb v. Tucker County Com'n., 206 W.Va. 627, 630, 527 S.E.2d 171, 174 (1999).

III.

DISCUSSION

Ms. Hollen makes two assignments of error. To paraphrase her somewhat, she first

584 S.E.2d 527

argues that the lower court erred when it did not order payment for all 104 hours worked by her counsel. She then argues that the lower court erred when it reduced counsel's hourly rate from the requested $200 per hour to the rate of $100 per hour. While she couches this second argument in terms of the court misapplying the requisite factors from our relevant case law, she essentially argues that the court erred in reducing the rate. We address each argument in turn.

A.

Reduction of Hours

Counsel for Ms. Hollen submitted a Motion for Attorney's Fees that claimed she worked a total of 104 hours on the case, with thirty-some of those hours dedicated to the preparation of the Motion for Attorney Fees and arguments in support thereof. The lower court determined that counsel was not entitled to recover fees for time she spent preparing the fee petition and the legal arguments necessary to support it.

Ms. Hollen first directs our attention to the Wage Payment and Collection Act, W. Va.Code § 21-5-1 et seq., permits the recovery of attorney's fees. The Act provides in pertinent part:

(a). Any person whose wages have not been paid in accord with this article ... may bring any legal action necessary to collect a claim under this article.

(b). The court in any action brought under this article may, in the event that any judgment is awarded to the plaintiff or plaintiffs, assess costs of the action, including reasonable attorney fees against the defendant....

West Virginia Code § 21-5-12 (1975). Clearly the Legislature intended that prevailing workers could recover fees under the Act. As this Court has observed, the purpose of the fee shifting under the Act is that the opportunity to recovery attorney's fees makes it much more likely that the provisions of the Act will be enforced, and that those it seeks to aid will be able to benefit from its protections:

We feel that costs, including attorney fees, should be awarded to prevailing plaintiffs as a matter of course in the absence of special circumstances which would render such an award unjust. Both the Wage Payment and Collection Act and our mechanics' lien statutes are designed to protect the laborer and act as an aid in the collection of compensation wrongfully withheld. Working people should not have to resort to lawsuits to

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