Sally-Mike Properties v. Yokum, SALLY-MIKE

Decision Date12 June 1986
Docket NumberSALLY-MIKE,No. 16987,16987
Citation365 S.E.2d 246,179 W.Va. 48
PartiesPROPERTIES v. Woodrow YOKUM, et al.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. Ordinarily, attorney's fees in excess of the nominal statutory amounts provided by W.Va.Code, 59-2-14 [1960] are not "costs."

2. As a general rule each litigant bears his or her own attorney's fees absent a contrary rule of court or express statutory or contractual authority for reimbursement.

3. There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as "costs," without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.

4. Bringing or defending an action to promote or protect one's economic or property interests does not per se constitute bad faith, vexatious, wanton or oppressive conduct within the meaning of the exceptional rule in equity authorizing an award to the prevailing litigant of his or her reasonable attorney's fees as "costs" of the action.

Richard H. Talbott, Jr., Brown, Harner & Busch, Elkins, W. Va., for appellee.

Richard W. Cardot, Elkins, W. Va., for appellants.

McHUGH, Justice:

This action is before this Court upon appeal from the final order of the Circuit Court of Randolph County, West Virginia, entered on July 22, 1985. By that order the trial court dismissed the action of Sally-Mike Properties, the plaintiff/appellee, and denied the motion of Woodrow Yokum, et al., the defendants/appellants, for an award of reasonable attorney's fees as part of the costs of the action. The sole question presented on this appeal is whether the trial court erred in denying the defendants' motion for recovery of reasonable attorney's fees. We affirm the ruling of the trial court.

I

Pursuant to W.Va.Code, 37-13-1 [1963], et seq., Sally-Mike Properties, a partnership, 1 brought an action as a private landowner to remove, transfer and reinter certain human remains and grave markers based upon its assertion of ownership of the private burial ground. The trial court held that Sally-Mike and not the defendants, as the descendants of persons interred in the burial ground, owned the burial ground property because (1) the deed in question conveying the title to a larger tract of land within which was the burial ground, from the persons now interred in the burial ground to Sally-Mike's predecessor in title, did not except title to the burial ground property from the operation of the conveyance, but only reserved a right to use and maintain such property as a burial ground (and that right had been abandoned) or (2) any exception in the deed of the title to the burial ground property was void in that the description of the burial ground property was insufficient.

On appeal by Woodrow Yokum, one of the defendants, this Court reversed. We concluded that title to the burial ground had been excepted and that the description was sufficient. We therefore held that Sally-Mike had not established its ownership of the property in question and, consequently, was not entitled to obtain the statutory relief. Sally-Mike Properties v. Yokum, 175 W.Va. 296, 332 S.E.2d 597 (1985).

After this Court's ruling the defendants presented in the trial court their motion for dismissal of the action. The defendants, relying upon W.Va.Code, 37-13-6 [1963], 2 also moved that their attorney's fees in the amount of $5,744.26 be taxed as part of the "costs" of the action, which costs "may be allocated between the parties as the court shall deem equitable and just[,]" when the relief requested under W.Va.Code, 37-13-1 [1963], et seq., is not granted.

The defendants' counsel conceded during the hearing on the motion for recovery of attorney's fees that the action had not been frivolous. The trial court agreed and found that the action had been brought in good faith. It also held that "costs" within the meaning of the statute did not include reasonable attorney's fees. Accordingly, the trial court denied the defendants' motion for recovery of reasonable attorney's fees.

II

On this appeal the defendants argue that the trial court had the statutory or equitable authority to award reasonable attorney's fees to them as the prevailing party. The defendants admit on this appeal that this action was not brought in "bad faith." Nonetheless, the tenor of the defendants' brief is that this action was "worthless," a "waste of judicial resources" and was instituted solely for economic gain. During oral argument before this Court, though, the defendants placed greater emphasis on this Court's accepting the concept of normally shifting responsibility for attorney's fees to the losing litigant. For the reasons hereinafter stated, we decline that invitation, in favor of retention of the existing rule and the exceptions thereto.

III

Quoting Humphrey v. Mauzy, 155 W.Va. 89, 95, 181 S.E.2d 329, 332 (1971), this Court in the recent case of Geary Land Co. v. Conley, 175 W.Va. 809, 813, 338 S.E.2d 410, 414 (1985), recognized again this general rule: " 'Costs were unknown at common law. They are created and provided for by statute and may be imposed, recovered or collected only as authorized by statute.' " As quoted supra at n. 2, W.Va.Code, 37-13-6 [1963] authorizes an award of "costs." W.Va.Code, 59-2-14 [1960] requires the clerk of a court to tax as part of the costs a nominal statutory attorney's fee of ten dollars for a civil action in circuit court and thirty dollars for a proceeding in this Court. These nominal statutory amounts are the attorney's fees recoverable as part of the "costs" under the statute in question, W.Va.Code, 37-13-6 [1963]. Ordinarily, attorney's fees in excess of the nominal statutory amounts provided by W.Va.Code, 59-2-14 [1960] are not "costs." Hechler v. Casey, 175 W.Va. 434, 449-450, 333 S.E.2d 799, 815 (1985); Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 450-451, 300 S.E.2d 86, 92 (1982); State ex rel. Citizen's National Bank v. Graham, 68 W.Va. 1, 7, 69 S.E. 301, 303 (1910); 1 S. Speiser, Attorneys' Fees § 12:5 (1973); Black's Law Dictionary 312 (5th ed. 1979); 20 C.J.S. Costs § 218.a. (1940); 20 Am.Jur.2d Costs § 72 (1965).

This traditional exclusion of attorney's fees from "costs" recoverable by statute or court rule is derived from the principle that as a general rule each litigant bears his or her own attorney's fees absent a contrary rule of court or express statutory or contractual authority for reimbursement. Daily Gazette Co. v. Canady, 175 W.Va. 249, 250, 332 S.E.2d 262, 263 (1985); 1 S. Speiser, Attorneys' Fees §§ 12:1, 12:3-12:4 (1973). This so-called "American" rule (contrasted with the rule in England) has, in other jurisdictions as well as in this jurisdiction, been subject to exceptions in certain types of cases. For example, W.Va.Code, 59-2-11 [1931] authorizes a court of equity to exercise its traditional discretion in the award and allocation of costs. See Nagy v. Oakley, 172 W.Va. 569, 572, 309 S.E.2d 68, 71 (1983). See also 1 S. Speiser,Attorneys' Fees §§ 12:4, at 470-71, 12:11 (1973). There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as "costs," without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons. Hechler v. Casey, 175 W.Va. 434, 450, 333 S.E.2d 799, 815 (1985); Daily Gazette Co. v. Canady, 175 W.Va. 249, 250, 332 S.E.2d 262, 263-64 (1985); Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 451, 300 S.E.2d 86, 92 (1982); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141, 154 (1975). See also 1 S. Speiser, Attorneys' Fees § 12:11 (1973); annot., 31 A.L.R.Fed. 833 (1977). "Bad faith" may be found in conduct leading to the litigation or in conduct in connection with the litigation. Hall v. Cole, 412 U.S. 1, 15, 93 S.Ct. 1943, 1951, 36 L.Ed.2d 702, 713 (1973).

The trial court's finding that this action was brought in good faith is not clearly erroneous. The plaintiff's legal theories of ownership of the burial ground property presented substantial questions of law involving construction of a deed. While these theories of ownership were ultimately determined to be invalid, there is on this record no evidence that the plaintiff acted in bad faith, vexatiously, wantonly or for oppressive reasons. 3 Bringing or defending an action to promote or protect one's economic or property interests does not per se constitute bad faith, vexatious, wanton or oppressive conduct within the meaning of the exceptional rule in equity authorizing an award to the prevailing litigant of his or her reasonable attorney's fees as "costs" of the action.

IV

In a related vein, the defendants contend that a person contemplating the institution of an action under W.Va.Code, 37-13-1 [1963], et seq., must establish ownership of the burial ground property prior to such action, not in such action. This contention is clearly without merit. W.Va.Code, 37-13-1 [1963] authorizes the action when the plaintiff has "title or color of title of public record." As successor to the grantee in the deed in question, Sally-Mike had, at the time it brought the action, color of title of public record. Construction of the recorded deed presented substantial questions of law to be decided in the statutory action in order to show entitlement to the statutory relief.

V

The defendants alternatively suggest that this Court should abandon the "American" rule in favor of a general rule authorizing "fee shifting," whereby the losing litigant must pay the prevailing litigant's reasonable attorney's fees. 4

In support of the American rule, one should not be penalized for merely prosecuting or defending a lawsuit, as litigation is at best uncertain. 5 The primary justification for the American rule is, however, that...

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