State Va. Ex Rel. Donald Hicks v. Bailey

• Decision Date: 26 May 2011
• Docket Number: No. 35646.,35646.
• Citation: 711 S.E.2d 270,227 W.Va. 448
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Donald HICKS, Clerk of the McDowell County Commission, Petitioner Below, Appellantv.A. Ray BAILEY and the McDowell County Commission, Respondents Below, Appellee.

227 W.Va. 448

711 S.E.2d 270

STATE of West Virginia ex rel. Donald HICKS, Clerk of the McDowell County Commission, Petitioner Below, Appellant

v.A. Ray BAILEY and the McDowell County Commission, Respondents Below, Appellee.

No. 35646.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 9, 2011.Decided May 26, 2011.

Syllabus by the Court

1. “Where the issue on an appeal from the circuit court is clearly a question of law ..., we apply a de novo standard of review.” Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

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.” Syl. Pt. 2, Sally–Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

3. “There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees ... without express statutory authorization [ ] when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.” Syl. Pt. 3, in part, Sally–Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

4. “The rules governing whether a public official is entitled to indemnification for attorneys' fees are the same in both the civil and criminal context. In order to justify indemnification from public funds the underlying action must arise from the discharge of an official duty in which the government has an interest; the officer must have acted in good faith; and the agency seeking to indemnify the officer must have either the express or implied power to do so.” Syl. Pt. 3, Powers v. Goodwin, 170 W.Va. 151, 291 S.E.2d 466 (1982).

5. In an action challenging the outcome of an election for public office, indemnification of the attorney fees of the prevailing candidate of such election from public funds is not justified because an election contest does not arise from a candidate's performance of any official duty of the public office in question.

Sidney H. Bell, Prosecuting Attorney's Office, Welch, WV, for Appellant.Michael W. Carey, David Pogue, Carey, Scott, Douglass & Kessler, Charleston, WV, for Appellee.

McHUGH, Justice:

The matter before us was brought by Donald Hicks in his capacity as Clerk of the McDowell County Commission (hereinafter “Appellant”) as an appeal from the November 9, 2009, order of the Circuit Court of McDowell County in a mandamus proceeding. By the terms of this order, the McDowell County Commission ¹ is directed to reimburse the attorney fees of A. Ray Bailey (hereinafter “Appellee”) as the prevailing party in an election contest. Appellant maintains that the trial court abused its discretion by awarding attorney fees and ordering payment of the fees by the county commission, which was not a party to the election contest. He supports his position by saying that the award was made absent any statutory authority and without any finding by the court that the county commission or contestant acted in bad faith or with vexatious or oppressive purposes. He further argues that even if the authority existed, the trial court erred by entering the order without conducting a hearing or reviewing itemized statements of the fees. Having completed our review of the arguments and law governing this matter, we reverse the order of the circuit court directing payment of attorney fees by the county commission.

I. Factual and Procedural Background

Appellee defeated incumbent Carl Urps for the open seat on the McDowell County Commission in the November 2008 general election.² Mr. Urps timely filed a “Notice of Election Contest” with the McDowell County Commission ³ challenging Appellee's eligibility for election to the seat based on constitutional residency limitations.⁴ In turn, Appellant in his capacity as Clerk of McDowell County, filed a petition for writ of mandamus in the circuit court essentially maintaining the futility of any resolution of the election challenge by the two sitting members of the county commission. A rule to show cause was issued. Following the recusal of both sitting circuit court judges, a special judge was appointed by this Court to preside over the mandamus action.⁵ Following an evidentiary hearing, an order was entered February 3, 2009, denying relief in mandamus based upon the court finding that the evidence did not establish that Appellee was disqualified on residency grounds from serving on the county commission. An amended order was issued shortly thereafter on February 11, 2009, to correct a clerical error. After post judgment motions were denied, the March 26, 2009, final order of the court affirmed the previous ruling regarding the election outcome. Appellant and Mr. Urps filed a petition with this Court seeking review, which was refused by order dated June 3, 2009.

In October 2009, Appellee filed a motion in the circuit court styled “Motion for an Order Directing the McDowell County Commission to Pay the Attorney Fees and Costs of Respondent A. Ray Bailey.” ⁶ Over Appellant's objections and without hearing, the lower court entered an order on November 9, 2009, awarding attorney fees to Appellee along with costs associated with successfully defending the election contest.⁷ The order directs that payment of the attorney fees be made by the McDowell County Commission. ⁸ Appellant seeks review of the attorney fees provisions of the November 9, 2009, order through the present appeal.

II. Standard of Review

We have previously stated that an award of attorney fees in a mandamus action is reviewed under an abuse of discretion standard. Martin v. West Virginia Div. of Labor Contractor Licensing Bd., 199 W.Va. 613, 616, 486 S.E.2d 782, 785 (1997) (citing State ex rel. Bd. of Educ. v. McCuskey, 184 W.Va. 615, 617, 403 S.E.2d 17, 19 (1991)). Nevertheless, “[w]here the issue on an appeal from the circuit court is clearly a question of law ..., we apply a de novo standard of review.” Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). We will use these standards as guides in our consideration of the issues raised.

III. Discussion

Appellant assigns several errors to the lower court's handling of the award and payment of attorney fees in this case. However, Appellant's essential argument is that there was no legal basis for ordering the county commission to indemnify the attorney fees Appellee incurred in the election contest. He stresses that there is no statutory authorization for the payment of the fees, and no bad faith or vexatious or oppressive purpose was proven.

We examined the circumstances under which an award of attorney fees is proper in Sally–Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986). We concluded in syllabus point two of this case that “[a]s 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.” We further recognized in syllabus point three of Sally–Mike Properties that even without express statutory authorization, “[t]here is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees ... when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.”

Appellee maintains that the lower court correctly relied on the principles established in Powers v. Goodwin, 170 W.Va. 151, 291 S.E.2d 466 (1982), to arrive at the conclusion that as a public official Appellee was entitled to indemnification of attorney fees in this case.

The case of Powers v. Goodwin involved a removal action against sitting county commissioners who authorized reimbursement of attorney fees from public monies for a fellow county commissioner who had been criminally charged with misuse of a county telephone credit card. During our discussion in Powers, we recognized the existence of statutory authority for a county commission to award attorney fees in the general provision of West Virginia Code § 7–1–3 [1923] regarding the powers and duties of county commissions to “have the superintendence and administration of the internal police and fiscal affairs of their counties.” 170 W.Va. at 157, n. 3, 291 S.E.2d at 472, n. 3. We defined the scope of this authority in syllabus point three of Powers. After holding that the rules governing indemnification of attorney fees by a public official are the same in both civil and criminal contexts, we set forth the necessary prerequisites for appropriation of public monies for payment of attorney fees as follows:

In order to justify indemnification [of attorney fees] from public funds the underlying action must arise from the discharge of an official duty in which the government has an interest; the officer must have acted in good faith; and the agency seeking to indemnify the officer must have either the express or implied power to do so.

170 W.Va. at 153, 291 S.E.2d at 468 (emphasis added).

In applying these factors to the present case we find that despite the lower court's conclusion that Appellee acted in good faith, it is readily apparent that the election contest did not stem from the discharge of any official duty.⁹ Further, we find no express or implied authority for the county commission to indemnify the attorney fees of someone pursuant to the provisions of West Virginia Code § 7–1–3 ¹⁰ unless the person is discharging an official duty, nor is there any general statutory provision for award of attorney fees in election contests.¹¹

The lower court acknowledged the difference in the factual situation present in Powers. The November 9, 2009, order reflects the reason the lower court extended indemnification of attorney fees to an election contest. The order quotes the following observation from the Powers opinion:

... the voters have a legitimate interest in protecting their duly elected officials from being hectored out of office through the constant charge of bankrupting...