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No. 35281 - In Re: John T., Michael T., Natalie T. and Clare T.
Davis, Chief Justice, concurring:
With the majority's resolution of this case, I completely agree. I write
separately to reiterate why the facts of this case, in particular, warrant an award of
reasonable attorney's fees and to clarify the manner in which circuit courts should proceed
upon a party's request for a hearing on a motion for an award of attorney's fees.
I. Attorney's Fees are Warranted in this Case
As observed by the majority, an award of attorney's fees is clearly warranted
under the facts of this case. This Court previously has held that [t]here 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. Syl. pt. 3, Sally-Mike Props. v. Yokum,
179 W. Va. 48, 365 S.E.2d 246 (1986) (emphasis added).
Here, the record is replete with evidence demonstrating Jean K.'s ongoing
quest to falsely and maliciously accuse her former husband of sexually abusing their
youngest daughter in spite of the lack of any evidence indicating that he had, in fact,
perpetrated such atrocities. In this regard, the circuit court, in its May 11, 2009, order,
recounted various examples and consequences of Jean K.'s vexatious conduct:
[A]fter this abuse and neglect Petition was filed [on March 23,
2007], and after the State chose not to proceed against the
Father [Michael T.], the Respondent Mother [Jean K.] again
falsely accused the father of sexually abusing [their
daughter]. . . .
. . . .
Father has incurred thousands of dollars of unnecessary
attorneys' fees and costs in the above entitled proceeding
because of Jean K[.]'s fraudulent allegations and her assertion
of baseless and unfounded claims. Respondent Mother's
conduct in this regard is hereby determined to have been
vexatious and wanton. Respondent Mother's conduct herein
has diverted attention from important issues concerning the
welfare of these children, frustrated and delayed closure of this
matter, and demonstrates an intent to occasioned [sic] oppress
and harass the Respondent [Michael] T[.]
Respondent Mother's conduct is the sole reason that this
abuse and neglect proceeding was filed and is still pending.
Respondent Mother has steadfastly refused to accept
responsibility for her own conduct and her abuse of the
children. Her defense has basically been to continue to accuse
Respondent Mother's sexual abuse allegations against
Respondent Father have all been previously determined by this
Court, and the Family Court, to be unfounded, baseless and
fraudulent. The entirety of Respondent Mother's allegations in
this regard are without merit.
Respondent Mother's conduct has caused [Michael] T[.] to
endure severe financial strain and continuous financial
instability due [to] the incessant false accusations, court
hearings, appeals, etc. . . . [Michael] T[.] has had to
unnecessarily incur attorneys' fees and costs to defend himself
and the well-being of his family.
Respondent Mother has acted fraudulently, in bad faith,
vexatiously, wantonly and for oppressive reasons before the
institution of the above captioned matter and throughout these
Also included in Jean K.'s course of oppressive conduct are no less than two domestic violence petitions and corresponding domestic violence protective orders setting
forth Jean K.'s baseless allegations of Michael T.'s sexual abuse of their daughter, as well
as Jean K.'s three prior appeals to this Court challenging the circuit court's findings that
Michael T. was not responsible for their daughter's sexual abuse injuries_all three of
which this Court refused. (See footnote 1) Perhaps most troubling is that these false accusations of sexual
abuse have languished in the court system for over three years! Because of Jean K.'s
questionable motives and her unfathomable actions, both the parties' children and Michael
T. have been prevented from finally putting this matter behind them and going forward with
their lives. In short, the conduct exhibited by Jean K. during the course of the underlying
abuse and neglect proceedings epitomizes the vexatious, bad faith, and oppressive conduct
contemplated by this Court's Sally-Mike opinion so as to justify an award of attorney's fees
and costs to Michael T.
II. Amount of Attorney's Fees is Reasonable
Whether a specific award of attorney's fees is reasonable depends upon a
consideration of numerous factors.
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).
In light of the facts of the case sub judice and the egregiousness of Jean K.'s
conduct, the attorney's fees requested by Michael T., which range from $165 to $250 per
hour are not, per se, unreasonable. See Horkulic v. Galloway, 222 W. Va. 450, 466, 665
S.E.2d 284, 300 (2008) (Davis, J., concurring) (observing that attorney's fees of $500 per
hour were not per se unreasonable). Nevertheless, it is for the circuit court, not this Court,
to resolve the question of reasonableness. See Syl. pt. 3, in part, Bond v. Bond, 144 W. Va.
478, 109 S.E.2d 16 (1959) ([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.). Accordingly, I concur in the
majority's decision to remand this case to the circuit court for such a determination.
III. Hearing on Motion for Award of Attorney's Fees
Based upon the record of the lower court's proceedings, the majority has
correctly decided to remand this case to the circuit court to permit the parties to present
evidence regarding Michael T.'s request for costs and attorney's fees by . . . oral
arguments if desired by the parties. Even though a party against whom costs and
attorney's fees are to be assessed has a due process right to notice and an opportunity to be
heard thereon prior to their imposition, (See footnote 2) it is imperative for a party to actively enforce
his/her notice and hearing rights instead of sitting on his/her laurels and effectively waiving
the process to which he/she is due. Although Jean K. responded to Michael T.'s motion for
costs and attorney's fees, her response was not filed until one day before the scheduled
hearing thereon. This dilatoriness comes dangerously close to a waiver of the due process
rights to notice and a hearing on the issues of costs and attorney's fees. See, e.g., In re
Marriage of Jones, 187 Ill. App. 3d 206, 231, 134 Ill. Dec. 836, 853, 543 N.E.2d 119, 136
(1989) ([A] party waives his right to a hearing on attorney's fees where he did not request
a hearing before the trial court and is thereby left with the judge's ruling on the basis of the
fee petition and affidavits alone.). Therefore, I would caution parties and their counsel in
future cases to be ever diligent in their assertion of such rights and to be mindful of their
duty to speak clearly in the circuit court, on pain that, if they forget their lines, they will
likely be bound forever to hold their peace. Hanlon v. Logan County Bd. of Educ., 201
W. Va. 305, 315, 496 S.E.2d 447, 457 (1997) (internal quotations and citations omitted).
That said, it should be noted that the scope of the remand hearing on the
reasonableness of the costs and attorney's fees awarded to Michael T. is not without
limitation. Rather than permitting parties to conduct a mini-trial on the issues of costs and
attorney's fees, with endless testimony and cross-examination of attorneys and expert
witnesses, a circuit court conducting a costs and fees hearing should afford the parties an
opportunity to orally present their arguments on the request for costs and fees and the
reasonableness thereof and to submit, in writing, documentation of the costs and attorney's
fees requested. Such a practice of narrowing the scope of a costs and fees hearing has been
adopted by other jurisdictions in an attempt to prevent the relitigation of the case on its
merits. See, e.g., Pesaplastic, C.A. v. Cincinnati Milacron Co., 799 F.2d 1510, 1522 (11th
Cir. 1986) ([D]ue process is afforded where . . . the parties have an opportunity to present
their arguments as to the propriety of sanctions, submit affidavits on the amount of such
fees and costs, with an opportunity for the sanctioned party to file a motion challenging said
affidavits. (citation omitted)); In re Eliscu, 139 B.R. 883, 886 (N.D. Ill. 1992) (noting that
the requirements of due process as to notice and scope of hearing are based primarily upon
the circumstances of the case (citation omitted)); Barnett v. Barnett, 24 Kan. App. 2d 342,
353, 945 P.2d 870, 878 (1997) (limiting scope of attorney's fees hearing). By contrast, a
more extensive evidentiary hearing on the issues of costs and fees is permitted only where
a case presents exceptional circumstances. See, e.g., 750 Ill. Comp. Stat. Ann. 5/501(c-
1)(1) (2010) (Except for good cause shown, a proceeding for (or relating to) interim
attorney's fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary
and summary in nature.); Hogan v. Hogan, 58 Ill. App. 3d 661, 668, 16 Ill. Dec. 265, 270,
374 N.E.2d 1040, 1045 (1978) (While a hearing on the reasonable nature of attorney's fees
is not necessary in every case, especially where the trial judge is familiar with the
procedural history of the case, the party contesting the award is entitled to a hearing upon
request. (citations omitted)). In the interest of preserving judicial economy, I believe the
better practice is to generally limit the scope of a hearing addressing costs and fees while
reserving more extensive costs and fees hearings for those extraordinary cases requiring
further record development.
For the foregoing reasons, I respectfully concur in the majority's decision in
See In the Matter of: John, Michael, Natalie & Clare T.
, No. 091302 (W. Va.
Oct. 8, 2009); In the Matter of: John T.; Michael T.; Natalie T.; Clare T.
, No. 090902
(W. Va. Oct. 8, 2009); In the Matter of: John; Michael; Natalie; & Claire Marie T.
081815 (W. Va. Nov. 12, 2008). See also SER Jean K[.] v. Paul Zakaib, Judge
, No. 33836
(W. Va. June 9, 2008) (dismissed upon Court's own motion following entry of order by
circuit court); In the Matter of: John T.; Michael T.; Natalie T.; Claire T.
, No. 090895
(W. Va. Oct. 8, 2009) (Jean K.'s petition appealing from child support order refused).
See, e.g., Czaja v. Czaja, 208 W. Va. 62, 75-76, 537 S.E.2d 908, 921-22
(2000) (In failing to accord Appellant's counsel an opportunity to respond to the lower
court's basis for assessing fees and costs, the most basic of all protections inherent to our
judicial system has been violated.); Daily Gazette Co. v. Canady, 175 W. Va. 249, 251, 332
S.E.2d 262, 264 (1985) (Like other sanctions, attorney's fees certainly should not be
assessed lightly or without fair notice and an opportunity for a hearing on the record.
(internal quotations and citation omitted)).