W. Va. Dep't of Transp. v. Newton, No. 16-0325

CourtSupreme Court of West Virginia
Writing for the CourtCHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.
Decision Date07 March 2017
PartiesWEST VIRGINIA DEPARTMENT OF TRANSPORTATION, DIVISION OF HIGHWAYS, Petitioner Below, Petitioner v. MARGARET Z. NEWTON, Respondent Below, Respondent
Docket NumberNo. 16-0325

WEST VIRGINIA DEPARTMENT OF TRANSPORTATION,
DIVISION OF HIGHWAYS, Petitioner Below, Petitioner
v.
MARGARET Z. NEWTON, Respondent Below, Respondent

No. 16-0325

SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2017 Term
Submitted: January 17, 2017
March 7, 2017


Appeal from the Circuit Court of Hardy County
Honorable Andrew N. Frye, Jr., Judge
Civil Action No. 11-C-30

AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED

Scott L. Summers, Esq.
Summers Law Office, PLLC
Charleston, West Virginia
Attorney for Petitioner

J. David Judy, III, Esq.
Judy & Judy
Moorefield, West Virginia
Attorney for Respondent

CHIEF JUSTICE LOUGHRY delivered the Opinion of the Court.

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SYLLABUS BY THE COURT

1. "'"[T]he trial [court] . . . is vested with a wide discretion in determining the amount of . . . court costs and counsel fees, 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. [2], Daily Gazette Co., Inc. v. West Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999). Syllabus point 1, Hollen v. Hathaway Electric, Inc., 213 W.Va. 667, 584 S.E.2d 523 (2003) (per curiam).' Syl. Pt. 3, Shafer v. Kings Tire Serv., Inc., 215 W.Va. 169, 597 S.E.2d 302 (2004)." Syl. Pt. 3, Carper v. Watson, 226 W.Va. 50, 697 S.E.2d 86 (2010).

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." Syl. Pt. 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

3. "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

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reimbursement." Syl. Pt. 2, Sally-Mike Properties v. Yocum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

4. "'If a highway construction or improvement project results in probable damage to private property without an actual taking thereof and the owners in good faith claim damages, the West Virginia Commissioner of Highways has a statutory duty to institute proceedings in eminent domain within a reasonable time after completion of the work to ascertain the amount of damages, if any, and, if he fails to do so, after reasonable time, mandamus will lie to require the institution of such proceedings.' Syllabus point 1, State ex rel. Rhodes v. West Virginia Department of Highways, 155 W.Va. 735, 187 S.E.2d 218 (1972)." Syl. Pt. 2, Shaffer v. West Virginia Dep't of Transp., Div. of Highways, 208 W.Va. 673, 542 S.E.2d 836 (2000).

5. "Pursuant to the provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies for Federal and Federally Assisted Programs Property Acquisition Act, 42 U.S.C. §§ 4601- 4655 (2000), the event triggering the award of attorneys' fees in a proceeding involving inverse condemnation, as set forth in Title 49, Section 24.107 of the Code of Federal Regulations, is when '[t]he court having jurisdiction renders a judgment in favor of the owner.'" Syl. Pt. 5, West Virginia Dep't of Transp. v. Dodson Mobile Home Sales and Serv., Inc., 218 W.Va. 121, 624 S.E.2d 468 (2005).

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6. "Costs and attorney's fees may be awarded in mandamus proceedings involving public officials because citizens should not have to resort to lawsuits to force government officials to perform their legally prescribed nondiscretionary duties." Syl. Pt. 1, State ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Div. of Envtl. Prot., 193 W.Va. 650, 458 S.E.2d 88 (1995).

7. "Where a public official has deliberately and knowingly refused to exercise a clear legal duty, a presumption exists in favor of an award of attorney's fees; unless extraordinary circumstances indicate an award would be inappropriate, attorney's fees will be allowed." Syl. Pt. 3, State ex rel. West Virginia Highlands Conservancy, Inc. v. West Virginia Div. of Envtl. Prot., 193 W.Va. 650, 458 S.E.2d 88 (1995).

8. "Where the State of West Virginia, or any entity with statutory authority to take property for public use, undertakes to acquire the fee simple title to a parcel of land all persons who own an interest or an estate in such parcel must be joined as party defendants in the proceeding." Syl. Pt. 1, State by Dep't of Nat. Resources v. Cooper, 152 W.Va. 309, 162 S.E.2d 281 (1968).

9. "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

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party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Syl. Pt. 3, Sally-Mike Properties v. Yocum, 179 W.Va, 48, 365 S.E.2d 246 (1986).

10. "Where attorney's fees are sought against a third party, the test of what should be considered a reasonable fee is determined not solely by the fee arrangement between the attorney and his client. The reasonableness of attorney's fees is generally based on broader factors such as: (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of other employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the undesirability of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases." Syl. Pt. 4, Aetna Cas. & Sur. Co. v. Pitrolo, 176 W.Va. 190, 342 S.E.2d 156 (1986).

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LOUGHRY, Chief Justice:

This case is before this Court for a second time. In West Virginia Department of Transportation, Division of Highways v. Newton, 235 W.Va. 267, 773 S.E.2d 371 (2015) ("Newton I"), this Court affirmed a judgment order of the Circuit Court of Hardy County that awarded the respondent, Margaret Z. Newton, $941,304.53 as just compensation for the removal of limestone from a certain parcel of land during the construction of a portion of the Corridor H highway. In this appeal, the petitioner, the West Virginia Department of Transportation, Division of Highways (hereinafter "DOH"), seeks reversal of a subsequent final order of the Circuit Court of Hardy County entered on March 2, 2016, awarding Ms. Newton her attorney's fees and expenses arising out of the underlying mandamus and condemnation proceedings. The DOH argues there was no basis to award Ms. Newton her attorney's fees and expenses. Alternatively, the DOH contends that the final order must be reversed because the circuit court failed to make factual findings concerning the reasonableness of the amount of attorney's fees and expenses awarded. Ms. Newton asserts a cross-assignment of error,1 claiming the circuit court erred by not awarding her attorney's fees and expenses in an amount consistent with the contingency fee contract she has with her attorney.

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Having carefully considered the parties' briefs and arguments, the submitted appendix record, and pertinent authorities, we find that an award of attorney's fees and expenses is warranted but reject Ms. Newton's argument that the award should be based upon the contingency fee contract she has with her attorney. Because the final order is devoid of factual findings regarding the reasonableness of the amount of the attorney's fees and expenses awarded, we reverse and remand this case to the circuit court for an additional hearing on that issue consistent with this opinion.

I. Factual and Procedural Background

In May 2010, Ms. Newton filed a petition for a writ of mandamus in the Circuit Court of Hardy County seeking to force the DOH to institute a condemnation proceeding for the limestone it excavated from a certain parcel of land located in Hardy County during its construction of a portion of the Corridor H highway. Ms. Newton and her husband2 sold the subject property, consisting of thirty-seven acres, to James S. Parsons in 1980. However, the deed of conveyance included a reservation of minerals rights for Ms. Newton. In 2004, the DOH acquired a right-of-way from Mr. Parsons to 6.7 acres of the property in exchange for payment of $33,500.00. Although the DOH was informed by its appraiser of the mineral rights reservation, the DOH never contacted Ms. Newton. The DOH proceeded to remove

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approximately 236,187 tons of limestone from the property, utilizing a large portion of it in the construction of the Corridor H highway. Newton I, 235 W.Va. at 270, 773 S.E.2d at 374.

Ms. Newton claimed in her petition for a writ of mandamus that as the owner of the minerals she was entitled to just compensation from the DOH for the limestone removed from the property. In March 2011, the mandamus proceeding was resolved through an agreed order whereby the DOH was required to institute a condemnation proceeding against Ms. Newton's mineral interest. The case eventually proceeded to a jury trial.3 Based upon the jury's factual findings, the circuit court entered the April 16, 2014, judgment order. After this Court affirmed the judgment order in Newton I, Ms. Newton renewed her motion for attorney's fees and expenses, which had remained pending in the circuit court during the appeal.

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Upon consideration of the matter, the circuit court determined that Ms. Newton was entitled to attorney's fees and expenses for both the mandamus proceeding and the condemnation proceeding, as she had requested. Accordingly, the circuit court entered the final order on March 2, 2016, awarding Ms. Newton attorney's fees and expenses in the amount...

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