Millard E. Jewell
Williamson, West Virginia
Counsel for the Appellee
Glen R. Rutledge
William H. Duty
Assistant Prosecuting Attorney
Williamson, West Virginia
Counsel for the Appellant
This Opinion was delivered Per Curiam.
1. "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).
2. "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 Casualty & Sur. Co. v. Pitrolo,
176 W. Va. 190, 342 S.E.2d 156 (1986).
This is an appeal by the Mingo County Commission from November
18, 1991, and January 29, 1992, orders of the Circuit Court of
Mingo County which required the Appellant to reimburse the
Appellee, Senator H. Truman Chafin, for attorney fees in the amount
of $91,600. Having reviewed the record in this matter, we find
that the Circuit Court of Mingo County did not abuse its discretion
in ordering the reimbursement of $91,600. Evidence was presented
by the Appellee indicating the reasonableness of the legal
expenses, and the Appellant failed to introduce sufficient evidence
to establish that the expenses were unreasonable. We therefore
find no error and affirm.
The Appellee, a member of the Mingo County Commission from
January 1, 1979, through December 31, 1982, was indicted on April
7, 1988, and charged with bribery in connection with the
resignation and appointment of the Sheriff of Mingo County.See footnote 1 The
Appellee procured the services of attorney Stanley Preiser in the
defense of those charges. By order entered September 22, 1988, the
indictment was determined to be void based upon the improper
constitution of the grand jury, and the indictment was dismissed by
the Honorable W. Craig Broadwater, Special Judge. On October 26,
1989, the Honorable Frederick P. Stamp, Special Prosecutor for
Mingo County, informed the Circuit Court of Mingo County, the
Honorable Ronald E. Wilson presiding as Special Judge, that there
was insufficient evidence to warrant presentation of the matter to
the grand jury.
The Appellee thereafter requested the Mingo County Commission
to reimburse him in the amount of $91,600 for legal expenses
incurred from April 13, 1988, through January 30, 1989, relating to
the defense of the charges against him. The Appellant declined to
reimburse the Appellee and suggested that he file a writ of
On June 25, 1991, the Appellee filed a petition for a writ of
mandamus in the Circuit Court of Mingo County. The matter was
heard on September 6, 1991,See footnote 2 the Honorable Ned Grubb presiding as
special judge. Judge Grubb determined that the charges of $91,600
were reasonable and necessary under the circumstances and entered
an order stating that conclusion on November 18, 1991. Despite a
November 26, 1991, motion by the Appellant to set aside the
November 18, 1991, order, it was affirmed by an order dated January
29, 1992. The Appellant now seeks relief in this Court and alleges
that the Appellee's legal expenses were unreasonable.
As explained in syllabus point 3 of Powers v. Goodwin, 170 W.
Va. 151, 291 S.E.2d 466 (1982),
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.
It is important to note at the outset that the Appellant
raises no issue concerning any of these factors. The only issue
raised by the Appellant is the reasonableness of the fees. The
Appellant concedes that the Appellee "had the right to hire the
attorney of his choice . . ." but maintains that it should be
responsible only for "reasonable" fees. Consequently, the only
matter for our determination is whether the attorney fees of
$91,600 were in fact reasonable.
In Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986) we examined the issue of reasonableness of attorney fees and enumerated several factors to be considered in determining whether an attorney fee is reasonable.
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.
Id. at 191, 342 S.E.2d at 157.
When the Appellee was initially charged for the legal services
of Stanley Preiser and his law firm, the bill totaled $186,242.92,
including $172,226.25 for attorney fees and $14,016.67 for
expenses. The Appellee then negotiated the charges and ultimately
did pay $91,600 of the original bill. During the September 6,
1991, hearing, the Appellee explained that his attorneys faced the
monumental task of reviewing everything the grand jury had done.
His attorneys investigated testimony before the grand jury for a
period of years where testimony was not indexed or filed in any
logical manner. That reconstruction of grand jury records was
necessary to address the alleged improprieties of impanelling the
grand jury, and those improprieties eventually formed the basis for
the dismissal of the indictment against the Appellee. To the
extent that the original $186,242.92 bill consisted of unreasonable
fees or improperly utilized time, the Appellee maintains that the
reduction to $91,600 reflects the Appellee's recognition of some
unreasonable charges and his successful attempt to reduce those
charges to a reasonable amount.
In response to the Appellee's assertion regarding the
reasonableness of the attorney fees, the Appellant introduced
records of legal expenses incurred by Mr. Steve Adkins, another
Mingo County commissioner indicted for the same criminal activity
for which the Appellee was indicted. The Appellant asserted that
although the charges against Mr. Adkins were incurred in connection
with three separate charges, the fees attributable to each could be
separated for comparison to the Appellee's case.See footnote 3 Thus, while Mr.
Adkins incurred over $170,000 in total attorney fees, represented
by the law firms of Kay, Casto & Chaney and King, Betts & Allen,
only $36,000 of those total fees was allegedly attributable
directly to the "Sheriff's sale" incident for which the Appellee
was also indicted. Through that means, the Appellant attempted to
demonstrate the unreasonableness of the Appellee's $91,600 in
attorney fees compared to Mr. Adkins' $36,000 in attorney fees for
defense of the same allegations.
That argument fails on several levels. First, the Adkins case
was not identical to the present case. Mr. Adkins was indicted ten
times on felony charges and was a defendant in a civil removal
proceeding. He was tried and acquitted on the charges arising from
the "Sheriff's sale", and all other litigation was dismissed prior
to trial. Mr. Adkins was then reimbursed by the Appellant in the
amount of $171,639 for attorney fees and expenses. The approximate
$36,000 to which the Appellant compares the $91,600 bill in this
case was the amount attributed to the "Sheriff's sale"
representation and was submitted only after another county
commissioner had been reimbursed for fees regarding flood
indictments and removal proceedings and only upon the insistence of
segregation of fees by the Appellant's counsel. The differences
between the Adkins case and the present one make it extremely
difficult to compare the two cases, the amount of legal work which
was required, or the fees charged.
In light of the various factors which must be considered in
such an attempted comparison, it is a great oversimplification for
the Appellant to argue that the $36,000 figure in the Adkins case
is comparable to the $91,600 in the present case. Moreover, even
if we accepted that argument, the Appellant cannot hope to base its
entire theory of unreasonableness upon a comparison of the fees in
the Adkins case to the fees in this case. This Court's decision in
Aetna Casualty contemplates inquiry into reasonableness based upon
a myriad of factors. The Appellant, however, relied almost
exclusively upon the twelfth factor enumerated in Aetna Casualty,
dealing with attorney awards in similar cases, and virtually
ignored the other factors. See 176 W. Va. at 191, 342 S.E.2d at
157. Even in its brief, the Appellant addresses only four of the
Aetna Casualty factors, time and labor required, customary fees,
experience, reputation, and ability of attorneys, and awards in
similar cases. Id. The Appellant challenges the reasonableness of
the Appellee's attorney fees; yet the Appellant presented no
evidence at the hearing, other than the bills from the Adkins case,
to substantiate its claim of unreasonableness. Based upon the
evidence presented at the hearing, we cannot conclude that the
lower court abused its discretion in awarding the Appellee
reimbursement in the amount of $91,600. The lower court was
familiar with the circumstances of both the Adkins case and the
Appellee's case and was in a position most capable of adjudging the
reasonableness of the Appellee's fees. We find no error in the
decision to order reimbursement in the amount of $91,600.
We also briefly address the Appellee's cross-assignments of error. He contends that the lower court erred in its failure to award prejudgment interest and attorney fees relating to the prosecution of this claim against the Mingo County Commission for reimbursement. At the direction of the lower court, both parties submitted briefs to the lower court on these issues. The lower court adopted the Appellant's position that the Appellee was not entitled to prejudgment interest or attorney fees in connection with this matter. With regard to the Appellee's contention of entitlement to prejudgment interest, West Virginia Code § 56-6-31 (1981) governs. It provides that prejudgment interest shall be available on "lost wages and income, medical expenses, damages to tangible personal property, and similar out-of-pocket expenditures, as determined by the court." W. Va. Code § 56-6-31. (emphasis supplied). We are not convinced that the lower court erred in determining that the Appellee's expenditures did not constitute
"similar out-of-pocket expenditures" and therefore did not qualify
as an award entitling the Appellee to prejudgment interest. We
have discussed the propriety of awarding prejudgment interest in a
multitude of situations. In Bond v. City of Huntington, 166 W. Va.
581, 276 S.E.2d 539 (1981), for example, we stated that prejudgment
interest has traditionally been applicable only to contract actions
and expanded that applicability to wrongful death actions. In Kirk
v. Pineville Mobile Homes, Inc., 172 W. Va. 693, 310 S.E.2d 210
(1983), we permitted prejudgment interest on loss or damage to real
and personal property. In O'Neal v. Peake Operating Co., 185 W.
Va. 28, 404 S.E.2d 420 (1991), we explained that damages
representing the value of the right to use land were liquidated
damages and therefore entitled to prejudgment interest. We do
not perceive the Appellee's situation as one in which we are
compelled to further expand the availability of prejudgment
The Appellee also contends that the lower court erred by
failing to award attorney fees for the prosecution of this action
against the Appellant. The lower court's decision regarding an
award of attorney fees, however, was within the sound discretion of
that court. In syllabus point 5 of Graf v. Frame, 177 W. Va. 282,
352 S.E.2d 31 (1986), we explained that "'[o]rdinarily, in mandamus
proceedings, costs [and reasonable attorney fees] will not be
awarded against a public officer who is honestly and in good faith
endeavoring to perform his duty as he conceives it to be.' Nelson
v. West Virginia Public Employees Insurance Board,  W. Va.
, , 300 S.E.2d 86, 91 (1982)." While the Appellee
contends that the Appellant's denial of reimbursement was
arbitrary, capricious, and willful, we find that the Mingo County
Commission had a legitimate basis for challenging the
reasonableness of the attorney fees in question. The fact that the
Commission has been unsuccessful in that challenge does not
necessitate an award of attorney fees for the Appellee's attempt to
collect the reimbursement to which he was entitled.
Based upon the foregoing, we affirm the decision of the lower
Footnote: 1This alleged scheme has been referenced as the "Sheriff's sale" and will hereinafter be referenced as such in this opinion. The Appellee was charged with the following:
unlawfully and feloniously accept[ing] or agree[ing] to accept, directly or indirectly, from Charles Edward Hilbert to Johnnie M. Owens on his behalf and upon behalf of Steve Adkins and Rastie Runyon, a pecuniary benefit as consideration for the acceptance of the
resignation of Johnnie M. Owens and the appointment of Charles Edward Hilbert as Sheriff of Mingo County in that he agreed not to render official action against the approval of the resignation of Johnnie M. Owens as Sheriff, the approval of Charles Edward Hilbert as Sheriff, and the creation of the position of Administrative Assistant for the Sheriff's Department, and the subsequent appointment of Johnnie M. Owens thereto, against the peace and dignity of the State.
Footnote: 2The only witness to actually testify at the hearing was H. Truman Chafin. Mr. Steve Adkins was available to testify, but the parties by stipulation made his attorney's fees and time records a part of the record. The records of Mr. Chafin's attorney fees and their time records were also introduced. No other evidence was presented.
Footnote: 3The three categories into which allegations against Mr. Adkins could be divided are as follows: indictments involving expenditures of flood monies, the civil removal proceeding, and the "Sheriff's sale" indictment.