Martin v. West Virginia Div. of Labor Contractor Licensing Bd.
| Decision Date | 23 June 1997 |
| Docket Number | No. 23380,23380 |
| Citation | 486 S.E.2d 782,199 W.Va. 613 |
| Court | West Virginia Supreme Court |
| Parties | Delbert MARTIN Petitioner Below, Appellee, v. WEST VIRGINIA DIVISION OF LABOR CONTRACTOR LICENSING BOARD Respondent Below, Appellant. Larry WORKMAN Petitioner Below, Appellee, v. WEST VIRGINIA DIVISION OF LABOR CONTRACTOR LICENSING BOARD Respondent Below, Appellant. |
1. The standard of appellate review of a circuit court's order granting relief through the extraordinary writ of prohibition is de novo.
2. "Where 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." Syllabus point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).
3. An award of attorney fees in an action seeking a writ of prohibition is reviewable under an abuse of discretion standard.
4. A court of record is a court that is required to keep a record of its proceedings and that may fine or imprison. Such record imports verity and cannot be collaterally impeached.
5. "Statutes imposing restrictions on trade or occupation are strictly construed." Syllabus point 5, West Virginia Bd. of Dental Examiners v. Storch, 146 W.Va. 662, 122 S.E.2d 295 (1961).
6. Magistrate court is not a court of record as contemplated by W. Va.Code § 21-11-14(h) (1991) (1996 Repl.Vol.).
7. "A court may order payment by an attorney to a prevailing party reasonable attorney fees and costs incurred as the result of his or her vexatious, wanton, or oppressive assertion of a claim or defense that cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law." Syllabus, Daily Gazette Co., Inc. v. Canady, 175 W.Va. 249, 332 S.E.2d 262 (1985).
Darrell V. McGraw, Attorney General, Daynus Jividen, Senior Assistant Attorney General, Charleston, for Appellant.
Matthew J. Hayes, Pepper & Nason, Charleston, for Appellees.
Appellant, West Virginia Contractor Licensing Board, appeals the September 28 1995, order of the Circuit Court of Kanawha County, which permanently enjoined appellant from suspending the licenses of two contractors against whom default judgments were entered in magistrate court. Appellant argues that a default judgment rendered in magistrate court is adjudication by a court of record as required for the suspension of a license under W. Va.Code § 21-11-14(h). Appellant also complains that the circuit court erred in granting attorney fees in favor of appellee contractors, petitioners below. We find that magistrate court is not a court of record as contemplated by W. Va.Code § 21-11-14(h), and thus the circuit court properly enjoined appellant from suspending the contractors' licenses. However, we find that the circuit court erred in granting attorney fees in favor of the contractors.
This case arose after Roy Akers, who is not a party to this action, contracted with appellee Delbert Martin (hereinafter "Martin") for the construction of a house and was unsatisfied with the finished product. Mr. Akers brought separate suits against appellee Martin and appellee Larry Workman (hereinafter "Workman") in the Magistrate Court of Kanawha County. Both Martin and Workman failed to respond to the suits filed against them. Consequently, each suit resulted in a default judgment in favor of Mr. Akers in the amount of $5,000 plus court costs.
Mr. Akers then filed a complaint against Martin and Workman with appellant, the West Virginia Division of Labor Contractor Licensing Board (hereinafter "appellant" or "Board"). Mr. Akers complained that appellees contracted with him for the construction of a house and subsequently breached the contract. 1 He further complained that appellees built a substandard and unsatisfactory house.
The Board conducted a hearing on the complaint against appellee Martin on November 15, 1994, at which Martin appeared pro se and provided sworn testimony. The Board conducted a subsequent hearing on the complaint against appellee Workman on January 17, 1995. Mr. Workman was represented by counsel. Although Workman did not provide sworn testimony at his hearing, he was questioned by the board. At each proceeding, the board heard the sworn testimony of Mr. Akers, who also presented the board with documentation supporting his claims. 2
At the conclusion of the testimony presented at Workman's hearing, his counsel argued that Workman was merely an employee of Martin and did not hold a contractor's license at the time of the construction of Mr. Akers' house. 3 Counsel argued further that the Board did not have authority to take action against Workman under W. Va.Code § 21-11-14(h), because the default judgment obtained in magistrate court was not a judgment by a court of record.
The Board subsequently voted unanimously to suspend the contractor licenses held by Martin and Workman. The Board notified Martin, by letter dated November 21, 1994, that his license was being suspended based upon the Board's finding that he violated section 21-11-14(g)(11) 4 of the West Virginia Contractor Licensing Act. Martin was further informed that any future reinstatement of the license would be for the electrical classification only and that all other classifications were permanently revoked. 5
The Board notified Workman, by letter dated January 26, 1995, that his license was being suspended based upon the Board's finding that Workman violated SECTIONS 21-11-14(G)(8) AND (11)6 7 of the West Virginia Contractor Licensing Act. Both Martin and Workman were informed that a condition and prerequisite to the reinstatement of their respective licenses was payment of the judgment obtained by Mr. Akers, plus any interest and costs.
Thereafter, Martin and Workman each filed a petition for a writ of prohibition in the Circuit Court of Kanawha County to prevent the Board from enforcing the suspension of their respective licenses. Both men also requested attorney fees and costs incurred in bringing the prohibition action. The two actions were subsequently consolidated by the circuit court. The circuit court, after hearing the parties' arguments, concluded that in West Virginia a magistrate court is not a court of record. Consequently, by order dated September 28, 1995, the court granted the writ of prohibition based upon its finding that the Board had exceeded its legitimate powers and jurisdiction as conferred by W. Va.Code §§ 21-11-1 et seq. The court also granted the appellees' request for reasonable attorney fees and costs. It is from the September 28, 1995, order of the Circuit Court of Kanawha County that appellants now appeal.
We have previously held that "[t]he standard of appellate review of a circuit court's order granting relief through the extraordinary writ of mandamus is de novo." Syl. pt. 1, Staten v. Dean, 195 W.Va. 57, 464 S.E.2d 576 (1995). In light of the fact that mandamus and prohibition are similar extraordinary remedies, we hold today that the standard of appellate review of a circuit court's order granting relief through the extraordinary writ of prohibition is de novo.
Moreover, we are asked to determine whether magistrate court is a court of record as contemplated by W. Va.Code § 21-11-14(h) (1991) (1996 Repl.Vol.). "Where 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).
Finally, we consider the appropriate standard of review for the award of attorney fees by a circuit court incident to granting a writ of prohibition. Although we have never set forth such a standard, we have indicated that an award of attorney fees in an action for the extraordinary remedy of mandamus is reviewed under an abuse of discretion standard. See State ex rel. Board of Education v. McCuskey, 184 W.Va. 615, 617, 403 S.E.2d 17, 19 (1991) (per curiam) ().
Moreover, we have applied an abuse of discretion standard when reviewing awards of attorney fees in other contexts. See Hopkins v. Yarbrough, 168 W.Va. 480, 489, 284 S.E.2d 907, 912 (1981) (). Cf. Brown v. Thompson, 192 W.Va. 412, 415 n. 1, 452 S.E.2d 728, 731 n. 1 (1994) (Cleckley, J., concurring) (); Judy v. White, 188 W.Va. 633, 425 S.E.2d 588 (1992) (). We therefore hold that an award of attorney fees in an action seeking a writ of prohibition is reviewable under an abuse of discretion standard.
W. Va.Code § 21-11-14(h) (1991) (1996 Repl.Vol.) provides:
In all disciplinary hearings the board has the burden of proof as to all matters in contention. No disciplinary action shall be taken by the board except on the affirmative vote of at least six members thereof. Except for violations of section thirteen [ § 21-11-13] of this article, no disciplinary action shall be taken by the board for any such cause as is set out herein unless the licensee has been finally adjudicated as having perpetrated such act in a court of record. Other than as specifically set out herein, the board shall have no power or authority to impose or assess damages.
(Emphasis added). 8
The above quoted section clearly establishes that final adjudication in a court of record is a prerequisite to disciplinary action by the...
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