Fairmont Tool, Inc. v. Adam J. Davis, Individually and on Behalf of Others Similarly Situated ( 2021 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2021 Term FILED
_______________ November 22, 2021
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 20-0684 SUPREME COURT OF APPEALS
_______________ OF WEST VIRGINIA
FAIRMONT TOOL, INC.,
Petitioner
v.
ADAM J. DAVIS, Individually and
on Behalf of Those Similarly Situated,
Respondent
________________________________________________________
Appeal from the Circuit Court of Marion County
The Honorable David R. Janes, Judge
Civil Action No. 17-C-163
AFFIRMED
________________________________________________________
Submitted: October 6, 2021
Filed: November 22, 2021
J. Robert Russell, Esq. James B. Stoneking, Esq.
David L. T. Butler, Esq. Jonathan R. Marshall, Esq.
Shuman McCuskey Slicer PLLC Bailey & Glasser LLP
Morgantown, West Virginia Charleston, West Virginia
Counsel for the Petitioner Matthew B. Hansberry, Esq.
Hansberry Law Office, PLLC
Bridgeport, West Virginia
Counsel for the Respondent
JUSTICE HUTCHISON delivered the Opinion of the Court.
CHIEF JUSTICE JENKINS and JUSTICE ARMSTEAD dissent and reserve the
right to file separate opinions.
SYLLABUS BY THE COURT
1. “A circuit court’s entry of summary judgment is reviewed de novo.”
Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
2. “Interpreting a statute or an administrative rule or regulation presents
a purely legal question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v.
State Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995).
3. Under the Wage Payment and Collection Act, West Virginia Code §§
21-5-1(o) (2021) and 21-5-3 (2021), an “assignment of wages” is the transfer of the right
to collect future wages from the wage earner to the employer. An assignment of wages is,
in effect, any amount that an employer withholds from an employee’s wages that does not
meet the Act’s definition of “deductions” in West Virginia Code § 23-5-1(g) (2021).
4. “Based on the legislative history of the Wage Payment and Collection
Act, W.Va. Code, 21-5-1 et seq[.] [1979], compliance with all requirements of the Act is
mandatory when assigning an employee’s wages.” Syl. pt. 4, Jones v. Tri-County Growers,
Inc., 179 W. Va. 218, 366 S.E.2d 726 (1988).
5. “A circuit court is afforded wide discretion in determining whether or
not a party should be relieved of a stipulation, and such decision should not be set aside
absent an abuse of discretion.” Syl. pt. 6, W. Va. Dep’t of Transportation v. Veach, 239
W. Va. 1, 799 S.E.2d 78 (2017).
i
6. “An employee who succeeds in enforcing a claim under W. Va. Code
Chapter 21, article 5 should ordinarily recover costs, including reasonable attorney fees
unless special circumstances render such an award unjust.” Syl. pt. 3, Farley v. Zapata
Coal Corp., 167 W. Va. 630, 281 S.E.2d 238 (1981).
7. “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).
ii
HUTCHISON, Justice:
In this appeal from the Circuit Court of Marion County, we consider a series
of orders entered under the West Virginia Wage Payment and Collection Act, W. Va. Code
§ 23-5-1 to -18 (“the WPCA”). The Legislature designed the WPCA to require an
employer to regularly pay employees their full wages and restrict an employer’s ability to
withhold a portion of employees’ paychecks. In this appeal, we examine one such heavily
regulated withholding: the authorized wage assignment. For an employee to properly
assign wages to an employer, the WPCA specifies that there must be a writing that meets
a list of conditions, and in the absence of any one of these conditions the assignment is
invalid and unenforceable. For instance, the writing must identify the total amount due to
and collectible by the employer through withholdings. The writing must contain statements
that the assignment will not be in effect for more than one year and that three-fourths of
the employee’s wages are exempt from the assignment. And, the writing must show the
assignment was accepted and signed by the employer. See W.Va. Code § 21-5-3(e) (2021).
Prior to June 17, 2021, the WPCA also required written assignments to be notarized. See
W.Va. Code § 21-5-3(e) (2008, 2015, and 2018).
In the instant case, an employer made withholdings from the wages of its
employees that met the WPCA’s definition of an assignment, but never procured from its
employees a writing that complied with the conditions set in the WPCA. After an employee
filed a class-action suit to recoup those withholdings, the employer entered into a written
agreement stipulating to the method the circuit court would use to calculate certain
1
damages if the circuit court declared the withholdings violated the WPCA. Thereafter, the
circuit court entered an order finding the employer liable for violating the WPCA. In light
of the stipulations on damages, the circuit court later entered orders that awarded the
employees the wages improperly taken from their paychecks, liquidated damages,
attorney’s fees, and costs. The employer now appeals the circuit court’s orders.
As we discuss below, we find no error and affirm the circuit court’s rulings.
I. Factual and Procedural Background
Defendant Fairmont Tool, Inc., provides services to the oil and gas industry,
often at the well pads of clients. Because of the hazardous nature of the work, the company
requires employees to wear special equipment such as fire-retardant uniforms and safety
boots. Fairmont Tool employs between 75 and 120 workers, depending on market demand.
Plaintiff Adam J. Davis began working for Fairmont Tool in 2014 but, on January 3, 2017,
Fairmont Tool terminated him from his employment.
On May 31, 2017, the plaintiff filed this lawsuit against Fairmont Tool. The
plaintiff contended that Fairmont Tool unlawfully reduced his wages and the wages of
other similarly situated employees, and he asked that the circuit court certify a class action.
Specifically, he alleged that Fairmont Tool, in the five years prior to the filing of the
2
complaint, had improperly taken assignments in the form of paycheck deductions 1 for
uniforms, boots, tools and other protective equipment in violation of the West Virginia
Wage Payment and Collection Act (“the WPCA”). 2
Fairmont Tool quickly admitted to making reductions to employees’
paychecks. In an interrogatory, the plaintiff asked whether Fairmont Tool had subjected
employees’ pay to deductions for uniforms, boots, or other protective equipment in the five
years prior to the filing of the complaint. On August 21, 2017, Fairmont Tool answered
that it
has and does make certain deductions from some of its
employees’ paychecks where the employees have voluntarily
agreed to participate in a uniform service provided by a third-
party vendor or have voluntarily charged boots or tools on
Defendant’s account, and with Defendant’s consent, from a
third-party vendor.
In a deposition, the president of Fairmont Tool also admitted the company made deductions
from employees’ pay for “boots,” “uniforms,” and other merchandise. During discovery,
the company produced spreadsheets documenting hundreds of deductions from employees’
paychecks for uniforms and “MDSE (Merchandise).”
1
Throughout this opinion we use “deduction” in its general sense, as
something taken away or subtracted from an employee’s wages. We note, however, that
“deductions” also has a meaning set by statute, one we discuss later in this opinion. See
W. Va. Code § 21-5-1(g) (2021).
2
The plaintiff’s complaint contained a second count asserting that Fairmont
Tool violated the WPCA by failing to pay him, individually, 80 hours of vacation pay. The
parties later settled and agreed to the dismissal of that count.
3
Also on August 21, 2017, Fairmont Tool responded to the plaintiff’s request
for production of documents. The plaintiff asked Fairmont Tool to produce, for the five-
year period preceding the filing of plaintiff’s complaint, “a complete copy of all written
wage assignments” permitting Fairmont Tool to make deductions from its employees’
paychecks for uniforms, boots, tools, or other merchandise. Fairmont Tool responded,
“None.”
Nine months later, Fairmont Tool amended its response to the plaintiff’s
request for production of documents. The company asserted that the deductions were not
“an assignment of wages pursuant to the West Virginia [Wage] Payment and Collection
Act. Consequently, it is the position of Fairmont Tool, Inc. that it does not possess any
‘written wage assignments’ with regard to its employees.” However, Fairmont Tool then
provided forty documents, each signed by a different employee between February 2015
and October 2017 and titled “Wage Deduction Authorization Agreement,” which said:
I understand and agree that my employer, Fairmont Tool (the
Company), may deduct money from my pay from time to time
for reasons that fall into the following categories: . . .
3. Installment payments on items purchased on my behalf by
the Company (e.g. boots) or cash advances given to me by the
Company; and, if there is a balance remaining when I leave the
Company, the balance of such purchases or advances[.]
None of these forty writings was signed by the plaintiff; none contains language saying the
agreement will not be in effect for more than one year; none specify the total amount to be
collected by the employer; none say that three-fourths of the employee’s paycheck will be
4
exempt from deductions; none are signed by a representative of Fairmont Tool; and none
are notarized.
On April 25, 2018, after substantial negotiation between counsel for the
parties, a document was filed with the circuit court titled “The Parties’ First Set of
Stipulations.” The stipulations were signed that same day by counsel for the plaintiff and
for Fairmont Tool. In this document, Fairmont Tool admitted that in the five years between
July 1, 2012, and July 31, 2017, it had deducted money directly from employees’
paychecks to cover boots, uniforms, tools and other merchandise described by Fairmont
Tool as “MDSE.”
In the stipulations, the parties preserved their rights to argue whether the
deductions from the employees’ paychecks were unlawful assignments of wages under the
WPCA. However, and important to this appeal, the stipulations contain the parties’
agreement as to how the circuit court would calculate damages, if the circuit court
determined that the deductions were unlawful wage assignments. The parties’ agreement
provides that if the circuit court found that Fairmont Tool was liable for any “reductions to
wages that occurred during the period from July 1, 2012, through June 10, 2015,” then the
circuit court would award liquidated damages “in the amount of three times each such
reduction to wages” for that time period. Further, if Fairmont Tool was liable for any
“reductions to wages that occurred during the period from June 11, 2015, through July 31,
2017,” then the parties agreed that the circuit court was required to award liquidated
damages equal to two times the reduction to wages that occurred in that time period.
5
Finally, the parties stipulated that if Fairmont Tool were found liable, then the circuit court
could award the plaintiff his attorney’s fees and costs.
After agreeing to the stipulations, Fairmont Tool hired new counsel who
promptly moved to withdraw from or rescind the agreement. The circuit court denied the
motion. Fairmont Tool asked the circuit court to reconsider its ruling, but the circuit court
ruled that no basis for a motion to reconsider exists under the law and that no good cause
existed to disturb its prior ruling.
The plaintiff filed a motion for class certification. After briefing and
argument by the parties, the circuit court entered orders conditionally certifying a class of
current and former employees of Fairmont Tool. The class was defined as:
For the period from July 1, 2012, through July 31, 2017: All
persons currently and/or formerly employed by the Defendant
Fairmont Tool, Inc. in West Virginia who are not shareholders
of Fairmont Tool, Inc. and who had their wages owed by
Fairmont Tool, Inc. reduced by Fairmont Tool, Inc. relative to
uniforms, model uniforms, and/or purchases categorized by
Fairmont Tool, Inc. as MDSE, inclusive of, but not limited to,
the purchase of boots and tools.
After mailing notices to prospective class members, 136 members agreed to join the class;
43 current and former employees declined to join.
The plaintiff subsequently moved for partial summary judgment. On June
21, 2019, the circuit court entered an order granting that motion with regard to the liability
of Fairmont Tool. The court noted that the WPCA requires employers to pay employees
their full wages, but it permits employees to assign a part of their wages to an employer if
6
the assignment meets certain narrow, clearly defined conditions. In that regard, West
Virginia Code § 21-5-3(e), 3 required any assignment of wages by an employee to an
employer to: (1) be in writing; (2) not be in effect for more than one year after the date of
the assignment; (3) specify the total amount due to and collectible by the employer; (4)
state that three-fourths of the employee’s wages were exempt from the assignment; (5) be
accepted by and signed by the employer; and (6) be notarized. In the absence of any one
of these requirements, the assignment was invalid and unenforceable.
The circuit court found no genuine issue of material fact that Fairmont Tool
paid its employees less than the full amount of their wages because it made reductions to
its employees’ paychecks for uniforms, boots, tools, and other items it categorized as
“MDSE.” Furthermore, the circuit court found that Fairmont Tool could not produce any
valid, written wage assignment satisfying the requirements of West Virginia Code § 21-5-
3(e) showing that either the plaintiff or the other class members had properly authorized
these reductions to their wages. Thus, the circuit court concluded that, as a matter of law,
the reductions by Fairmont Tool had violated the WPCA’s prohibition against unauthorized
3
Because the plaintiff alleged improper wage deductions occurred between
July 2012 and July 2017, we find that the question of whether those deductions were
improper wage assignments is controlled by two versions of West Virginia Code § 21-5-
3(e) in effect for that time period: the first version was adopted in 2008, the second in 2015.
These two versions are, with the exception of the deletion of a comma in 2015, identical.
Further, as we have previously noted, the Legislature significantly amended West Virginia
Code § 21-5-3 in 2021, in part, to delete the requirement that an assignment be notarized.
However, no amendments were made that affect this appeal.
7
wage assignments. The circuit court therefore granted partial summary judgment and
found Fairmont Tool liable under the WPCA.
The plaintiff then moved for summary judgment on damages. On November
7, 2019, the circuit court granted that motion and awarded damages in the form of lost
wages and liquidated damages. As to lost wages, the circuit court found that Fairmont Tool
had improperly withheld $87,731 from employees’ paychecks. As to the calculation of
liquidated damages, the circuit court turned to the agreement regarding those damages
contained in the parties’ stipulations. The circuit court found that the purpose of the
agreement “was to afford the parties a degree of certainty as to the potential nature and
extent of WPCA damages[.]” The circuit court then followed the parties’ stipulations,
doubled or trebled portions of the lost wages according to when the improper withholdings
occurred, and assessed liquidated damages of $237,998 against Fairmont Tool. Combined,
the total damages award was $325,728.
The circuit court entered a final judgment order on August 3, 2020. In that
order, the circuit court restated its orders finding Fairmont Tool liable for violating the
WPCA and awarding $325,728 in damages. The circuit court then awarded the plaintiff
his attorney’s fees in the amount of $160,000 and his litigation costs of $21,518.14.
Finally, the plaintiff, acting as the class representative, was awarded a service fee of $5,000.
Fairmont Tool now appeals the circuit court’s final judgment order.
8
II. Standard of Review
“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt.
1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We review an order granting
summary judgment according to the same standards as the circuit court: “[a] motion for
summary judgment should be granted only when it is clear that there is no genuine issue
of fact to be tried and inquiry concerning the facts is not desirable to clarify the application
of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va.
160, 133 S.E.2d 770 (1963).
Further, to the extent the parties’ arguments ask us to interpret any statutes,
our review remains de novo. Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of W.
Va., 195 W. Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative
rule or regulation presents a purely legal question subject to de novo review.”).
III. Discussion
Before turning to the panoply of assertions in Fairmont Tool’s briefs to this
Court, we must first point out that its opening brief failed to comply with Rule 10(c)(3) of
the West Virginia Rules of Appellate Procedure. Rule 10(c)(3) requires that a petitioner’s
brief “open[] with a list of the assignments of error that are presented for review, expressed
in terms and circumstances of the case but without unnecessary detail.” An assignment of
error succinctly identifies the point at which the petitioner believes the lower court
stumbled. Metro Tristate, Inc. v. Pub. Serv. Comm’n of W. Va., 859 S.E.2d 438, 444 (W.
9
Va. 2021) (quoting Wilson v. Kerr, No. 19-0933, 2020 WL 7391150, at *3 (W. Va. Dec.
16, 2020) (memorandum decision)). When the petitioner properly opens a brief with a list
of the assignments of error, the respondent can focus the arguments in opposition
“confident that he did not fail to discern a determinative argument buried in petitioner’s
prose.” Id. Moreover, a clearly defined list of errors permits this Court to focus with clarity
on the legal questions the petitioner alleges affected the lower tribunal’s decision. A party
seeking relief should not, through poor draftsmanship, force this Court to tease out the
imperative questions of law.
Instead of opening with a list of assignments of error, the petitioner’s brief
begins with a “lengthy, free-flowing argument,” id., that mixes recitations of fact with
arguments and conclusory statements about the respondent’s and circuit court’s
motivations. This “throwing-spaghetti-at-the-wall-to-see-what-sticks” approach in the
petition resulted in a response brief that “while written well . . . is structured in a ‘whack-
a-mole’ format that tries to address the varied contentions sprinkled throughout” Fairmont
Tool’s brief. Id.However, while Fairmont Tool’s brief does not contain assignments of error,
the argument section of the brief does contain headings that we can construe as assignments
of error. From these headings, we perceive that Fairmont Tool has raised four arguments. 4
4
Unfortunately, Fairmont Tool’s headings do not precisely correspond to the
arguments that follow. For instance, one heading insists, verbatim, that “the circuit court
erred in awarding attorney fees, costs and service award to plaintiff.” The argument that
Continued . . .
10
First, Fairmont Tool maintains the circuit court erred in granting partial summary judgment
to the plaintiff on the question of liability when it found that the deductions from employee
paychecks were “assignments of earnings” in violation of the WPCA. Second, Fairmont
Tool asserts that the circuit court erred when it relied upon the parties’ agreed-upon method
for calculating liquidated damages outlined in the parties’ stipulations. Third, Fairmont
Tool contends the circuit court erred when it refused to allow it to pursue a counterclaim
against its employees. Fourth, and finally, Fairmont Tool challenges the way the circuit
court calculated the award of attorney fees and costs.
We examine these arguments in turn and, where necessary, provide
additional facts and standards of review to put the arguments in context.
A. Assignments of Earnings
Fairmont Tool’s first argument is that the circuit court erred when it granted
partial summary judgment to the plaintiffs and found that the company’s withholdings from
its employees’ paychecks were “assignments of earnings” in violation of the WPCA.
Because Fairmont Tool asserts that its withholdings were not “assignments of earnings,”
we must consider the meaning of that phrase as it is used in the WPCA.
follows the heading, however, does not actually dispute the circuit court’s decision to make
these three awards. Instead, Fairmont Tool argues that the circuit court should have chosen
a lower fee rate for the attorneys and should not have awarded some of the plaintiff’s costs.
Despite the heading, there is absolutely nothing in the argument about the service award to
the plaintiff.
11
The WPCA requires employers to regularly pay employees their wages,
requiring that “[e]very person, firm or corporation doing business in this state . . . shall
settle with its employees at least twice every month . . . and pay them the wages due . . .
for their work or services.” W. Va. Code § 21-5-3(a) (2021). 5 However, the WPCA
permits an employer to withhold money from an employee’s paycheck if the withholding
meets one of two requirements: (1) it is a statutorily authorized deduction; or (2) it is a
valid assignment of wages. Id. (employers must pay employees “the wages due, less
authorized deductions and authorized wage assignments[.]”). Nonetheless, the Legislature
has made it clear that “[a]ny assignment of earnings and any deduction . . . shall be
revocable by the employee at will at any time, notwithstanding any provision to the
contrary.” W. Va. Code § 46A-2-116(3) (2021). 6
5
West Virginia Code § 21-5-3(a) provides:
Every person, firm, or corporation doing business in this state,
except railroad companies as provided in §21-5-1 of this code,
shall settle with its employees at least twice every month and
with no more than 19 days between settlements, unless
otherwise provided by special agreement, and pay them the
wages due, less authorized deductions and authorized wage
assignments, for their work or services.
6
We recognize that when a deduction relates to an employee benefit plan
covered by the Employee Retirement Income Security Act of 1974 (ERISA), federal law
controls the relationship between the employer and the employee. See 29 U.S.C.A. § 1144(2006) (also known as “Section 514(a),” providing that “the provisions of this subchapter
and subchapter III shall supersede any and all State laws insofar as they may now or
hereafter relate to any employee benefit plan[.]”). See also, U.S. Department of Labor,
“Information Letter 12-04-2018,” 2018 WL 7051345 (“[I]t continues to be the
Department’s view that a state law . . . would be preempted by section 514(a) of ERISA to
Continued . . .
12
On the one hand, the WPCA provides a clear list of proper “deductions”
which an employee may authorize an employer to withhold. The Legislature defined
“deductions” as including “amounts required by law to be withheld, and amounts
authorized for union, labor organization, or club dues or fees, pension plans, payroll
savings plans, credit unions, charities, and any form of insurance offered by an
employer[.]” W. Va. Code § 21-5-1(g) (2021). 7 A companion statute in the Consumer
Credit and Protection Act, West Virginia Code § 46A-2-116(2)(b) (2021), also provides
that deductions include “stock purchase plans.” 8
the extent the law is interpreted to limit, prohibit, or regulate an employer’s adoption of
automatic enrollment arrangements in connection with a disability benefit plan or other
welfare benefit plan covered under Title I of ERISA, or making related deductions from
wages for contribution to such a plan[.]”).
7
During the regular session in 2021, the Legislature adopted two different
versions of West Virginia Code § 21-5-1: one was passed on March 11, 2021, the other
passed on March 19, 2021. In this opinion, we have quoted the relevant portion of the
later-passed version of the statute, House Bill 2009, which may now be found in Chapter
170 of the 2021 Acts of the Legislature. See Wiley v. Toppings, 210 W. Va. 173, 175, 556
S.E.2d 818, 820 (2001) (“When faced with two conflicting enactments, this Court and
courts generally follow the black-letter principle that ‘effect should always be given to the
latest . . . expression of the legislative will[.]”). The version of West Virginia Code § 21-
5-1 in House Bill 2009 contains a proviso, not relevant to the instant case, which says:
“That for a public employee, other than a municipal employee covered by a collective
bargaining agreement with a municipality which is in effect on July 1, 2021, the term
‘deductions’ shall not include any amount for union, labor organization, or club dues or
fees.” W. Va. Code § 21-5-1(g).
8
In addition to the inclusion of “stock purchase plans” as a proper deduction
solely in West Virginia Code § 46A-2-116(2)(b), we note that the Consumer Credit and
Protection Act omits one category of deduction listed in the WPCA: “amounts authorized
for . . . credit unions.” W. Va. Code § 21-5-1(g). We presume these statutory differences
were merely errors by a legislative scrivener.
13
On the other hand, in a historical sense, the meaning of the phrase
“authorized wage assignment” in West Virginia Code § 21-5-3 has been somewhat
murkier. This Court has, in years past, derived the meaning of “assignment” in West
Virginia Code § 21-5-3 and in the WPCA from a statute, buried within the Consumer Credit
and Protection Act, which defines an “assignment of earnings”: West Virginia Code § 46A-
2-116. We have said that because the two statutes “relate to assignment of earnings, they
are to be construed together[.]” Clendenin Lumber & Supply Co. v. Carpenter, 172 W. Va.
375, 379, 305 S.E.2d 332, 336 (1983). See also, Syl. pt. 3, Smith v. State Workmen’s Comp.
Com’r, 159 W. Va. 108, 109, 219 S.E.2d 361 (1975) (“Statutes which relate to the same
subject matter should be read and applied together so that the Legislature’s intention can
be gathered from the whole of the enactments.”). The circuit court relied upon Clendenin
Lumber and the Consumer Credit and Protection Act to give meaning to the word
“assignment” in West Virginia Code § 21-5-3.
However, the Legislature recently amended the WPCA to, essentially, adopt
our holding in Clendenin Lumber and formally connect the definitions of “assignment” in
the WPCA and the Consumer Credit and Protection Act. Effective June 17, 2021, the
WPCA now provides that “[t]he term ‘assignment’, as used in § 21-5-3 of this code, shall
have the same meaning as the term ‘assignment of earnings’ set forth in § 46A-2-116(2)(b)
14
of this code.” W. Va. Code § 21-5-1(o) (2021). 9 Turning to the Consumer Credit and
Protection Act, we find the following broad definition:
“Assignment of earnings” includes all forms of
assignments, deductions, transfers, or sales of earnings to
another, 10 either as payment or as security, and whether stated
to be revocable or nonrevocable, and includes any deductions
authorized under the provisions of § 21-5-3 of this code, except
deductions for union, labor organization, or club dues or fees,
pension plans, payroll savings plans, charities, stock purchase
plans, and any form of insurance offered by an employer.
W. Va. Code § 46A-2-116(2)(b) (emphasis added). 11
Generally speaking, “[a]n ‘assignment’ is the transfer of some identifiable
property, claim, or right from the assignor to the assignee.” 6A C.J.S. Assignments § 2
(2021). By tying the definition of “assignment” in the WPCA with that in the Consumer
Credit and Protection Act, the Legislature has made it clear that an “assignment” means all
forms of assignments or deductions from an employee’s wages, except those withholdings
that meet the definition of an “authorized deduction.” W. Va. Code § 46A-2-116(2)(b).
9
As we noted in footnote 6, the Legislature adopted two competing versions
of W. Va. Code § 21-5-1 during the 2021 session. While we do not firmly resolve the
question, we perceive that the later-passed version (House Bill 2009) would be the
controlling version and quote that version in the text of this opinion.
10
“The phrase ‘to another’ as used in the definition of an assignment of
earnings . . . includes an employer[.]” Syl. pt. 1, Clendenin Lumber, 172 W. Va. at 376,
305 S.E.2d at 333.
11
The Consumer Credit and Protection Act, West Virginia Code § 46A-2-
116(1), prohibits an employer from subjecting more than twenty-five percent of an
employee’s disposable income to “one or more assignments of earnings for the payment of
a debt or debts arising from” consumer credit sales, leases, loans, or other forms of sales.
15
Hence, we hold that under the WPCA, West Virginia Code §§ 21-5-1(o) and 21-5-3, an
“assignment of wages” is the transfer of the right to collect future wages from the wage
earner to the employer. An assignment of wages is, in effect, any amount that an employer
withholds from an employee’s wages that does not meet the Act’s definition of
“deductions” in West Virginia Code § 23-5-1(g).
To qualify as a “valid” or “authorized” assignment of wages, the versions of
West Virginia Code § 21-5-3(e) (2008 and 2015) in effect during the period covered by
this lawsuit imposed the following conditions upon assignments:
No assignment of or order for future wages shall be
valid for a period exceeding one year from the date of the
assignment or order. An assignment or order shall be
acknowledged by the party making the same before a notary
public or other officer authorized to take acknowledgments,
and any order or assignment shall specify thereon the total
amount due and collectible by virtue of the same and three
fourths of the periodical earnings or wages of the assignor shall
at all times be exempt from such assignment or order and no
assignment or order shall be valid which does not so state upon
its face: Provided, That no such order or assignment shall be
valid unless the written acceptance of the employer of the
assignor to the making thereof[] is endorsed thereon[.] 12
West Virginia Code § 21-5-3 was clear and unambiguous: to be an “authorized assignment
of wages,” the Legislature mandated that the assignment from the employee to the
employer meet six conditions: (1) be in writing; (2) not be in effect for more than one year
after the date of the assignment; (3) specify the total amount due to and collectible by the
The Legislature amended West Virginia Code § 21-5-3(e) (2008) in 2015
12
to remove an improperly placed comma. This change has no effect on our discussion.
16
employer; (4) state that three-fourths of the employee’s wages were exempt from the
assignment; (5) be “accepted” and signed by the employer; and (6) be notarized. 13
Furthermore, the requirements of West Virginia Code § 21-5-3 are binding
upon employers and employees. For instance, regulations by the Commissioner of Labor
interpreting the WPCA state:
An employer shall have a written assignment of wages that
conforms to the requirements set forth in W. Va. Code §21-5-
3(e) on the form approved by the Commissioner prior to
making any deductions, other than authorized statutory
deductions, from an employee’s wages.
42 C.S.R. § 5.9.1 (2019) (emphasis added). 14 In sum, “compliance with all requirements
of the [WPCA] is mandatory when assigning an employee’s wages[,]” Syl. pt. 4, Jones v.
13
Effective June 17, 2021, the Legislature modified West Virginia Code §
21-5-3(e) to eliminate the requirement that a wage assignment be notarized, and the statute
now provides, in pertinent part:
(e) No assignment of or order for future wages may be valid
for a period exceeding one year from the date of the assignment
or order. An assignment or order shall be in writing and shall
specify thereon the total amount due and collectible by virtue
of the same and . . . three-fourths of the periodical earnings or
wages of the assignor are all times exempt from such
assignment or order and no assignment or order is valid which
does not so state upon its face: Provided, That no such order or
assignment is valid unless the written acceptance of the
employer of the assignor to the making thereof is endorsed
thereon[.]
14
The form wage assignment approved by the Commissioner is available on
the Division of Labor’s website. See https://labor.wv.gov/Wage-Hour/Wage_Collection/
Documents/EMPLOYEE%20WAGE%20ASSIGNMENT%20FILLABLE%20PDF.pdf
(last accessed November 19, 2021).
17
Tri-County Growers, Inc., 179 W. Va. 218, 366 S.E.2d 726 (1988), because “[t]he history
of the [WPCA] provisions on wage assignments shows a deliberate, legislative intent to
allow assignment of wages if, and only if, certain specified conditions are met.” Id. at 222,
366 S.E.2d at 730. “An assignment that does not conform to the statutory requirements is
invalid.” 6 Am. Jur. 2d Assignments § 68 (2021). Finally, if an employer withholds money
from an employee’s paycheck without a valid assignment of wages, the WPCA permits the
employee to “bring any legal action necessary to collect” those amounts improperly
withheld. W. Va. Code § 21-5-12(a) (1975). See also Western v. Buffalo Min. Co., 162
W. Va. 543, 546, 251 S.E.2d 501, 503 (1979) (“That the assignment [of wages] was illegal
under the statute does not preclude the plaintiffs from recovering on it, since they are a part
of the class which the statute is designed to protect.”).
Against this strong headwind of statutes and caselaw, Fairmont Tool asserts
that the circuit court erred in finding that that the company’s withholdings from employee
paychecks were unauthorized assignments of employee wages simply because the
company lacked any writing meeting the requirements of West Virginia Code § 21-5-3(e).
Fairmont Tool’s argument appears to be that it never took any assignment of wages, and
that instead it was merely giving its employees advances of “cash” or “cash equivalents”
18
when it allowed employees to purchase boots, uniforms, and tools using company credit
accounts, and that it was recouping these “advances” through paycheck withholdings. 15
To be clear, Fairmont Tool insists it was not acting as a “creditor” nor was it
seeking to compel its employees to repay a “debt.” Fairmont Tool’s semantic argument
seeks to avoid our holding in Clendenin Lumber & Supply Co. v. Carpenter, 172 W. Va.
at 378-81, 305 S.E.2d at 336-38. In Clendenin Lumber, we examined the situation of a
company that permitted its employee to incur debts by purchasing goods from the
company, and then compelled the employee to repay those debts through paycheck
deductions. Even though the company in Clendenin Lumber was a “creditor” who charged
the employee interest on the purchases, we determined that the company’s paycheck
deductions to recoup a debt owed by its employee were invalid wage assignments that
failed to meet the strict terms of the WPCA. We found that “W.Va. Code, 21-5-3 [1979],
prescribes the required form of an assignment of earnings by an employee who voluntarily
assigns future earnings to another in satisfaction of a debt.” Id. at 380, 305 S.E.2d at 337.
Instead of claiming it was a “creditor” or that its employees owed a “debt,”
Fairmont Tool contends it gave employees “advances” and was conducting itself in a
manner approved by this Court in the unpublished decision of Rotruck v. Smith, No. 14-
15
The plaintiff responds to this argument by pointing out that Fairmont
Tool’s spreadsheets contain a category for “cash advances” that is separate and apart from
the categories for purchases of uniforms, boots, tools and other merchandise. Further, the
plaintiff points out he specifically did not seek to recoup paycheck deductions for cash
advances, and that cash advances were intentionally excluded from the class definition.
19
1284, 2016 WL 547190 (W. Va. Feb. 10, 2016) (memorandum decision), and it insists we
should, therefore, approve its conduct too. In Rotruck, an employee received
compassionate financial assistance from her boss in the form of a tank of gas, payments for
medication, car payments, and cash advances to cover emergencies. The boss, however,
expected the employee to repay her the assistance and deducted the money from the
employee’s paycheck. We concluded that the assistance was “more akin to salary advances
graciously provided in response to [the employee’s] financial need” and, hence the
paycheck deductions “were not wage assignments” as outlined in West Virginia Code §
21-5-3(e). Id. at *5.
Our examination of Rotruck compels us to acknowledge that the outcome of
the memorandum decision and its interpretation of the wage-assignment provisions of West
Virginia Code § 21-5-3(e) were intimately tied to the unique facts of that case. Of course,
“memorandum decisions may be cited as legal authority, and are legal precedent,” but
“their value as precedent is necessarily more limited[.]” Syl. pt. 5, in part, State v.
McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014). However, a federal district court
recently examined Rotruck and concluded what is obvious: Rotruck “reached an equitable
result” but is “inconsistent with the WPCA and with published opinions of the Supreme
Court of Appeals.” Atkins v. AT&T Mobility Servs., LLC, No. 2:18-CV-00599, 2020 WL
2842054, at *3 (S.D.W. Va. June 1, 2020). We agree with the district court’s analysis in
Atkins, and further find Rotruck directly at odds with the text of West Virginia Code § 21-
20
5-3. Hence, to clarify our law interpreting and applying the WPCA, we hereby overrule
Rotruck.
We have examined the record and find no error by the circuit court in
granting partial summary judgment to the plaintiff on the question of liability under the
WPCA. Fairmont Tool admitted in discovery that it withheld money from employee
paychecks and admits in its briefs to this Court it took those withholdings. The
withholdings were not “authorized deductions” as defined by the WPCA. Further, the
withholdings were not “authorized wage assignments” because Fairmont Tool could
produce no document in compliance with West Virginia Code § 21-5-3(e) showing it had
received a valid, written assignment of wages from its employees. We recognize the
seeming unfairness of the situation for Fairmont Tool, but we also recognize the black-
and-white pronouncement of the Legislature: when an employer withholds money from an
employee’s paycheck, the employer must establish its right to that money by obtaining a
writing that complies with the WPCA. 16 Because there was no material question of fact
that Fairmont Tool failed to follow the statute, summary judgment was proper.
16
Recent legislative changes have created a remedy for employers who
provide employees with uniforms, phones, computers, supplies, equipment, or other forms
of property worth more than $100. West Virginia Code § 21-5-4(f) (2018) now provides
that “if at the time of discharge or resignation, an employee fails to return employer
provided property . . . the employer may withhold, deduct or divert an employee’s final
wages, in an amount . . . to recover the replacement cost of the employer provided
property[.]” The statute contains numerous limitations, including the requirement of a
written agreement, signed by the employee at the same time the employer provides the
Continued . . .
21
B. The Parties’ Stipulations
Fairmont Tool’s second argument is broad and far ranging, but it concerns
the circuit court’s summary judgment order on liquidated damages as well as the parties’
stipulations, where Fairmont Tool agreed to the method the circuit court would use to
calculate liquidated damages. Fairmont Tool maintains that the parties’ stipulations “had
no force or effect” and that the circuit court should have voided or ignored the stipulations,
or at least permitted Fairmont Tool to withdraw from the agreement. It further contends
that the circuit court erred when it relied upon the parties’ agreement in their stipulations
and awarded liquidated damages to current and former employees in the amount of three
times the unpaid wages between July 1, 2012, and June 10, 2015.
We begin our analysis by pointing out that the stipulations met the
requirements of the Trial Court Rules in that they were “in writing, signed by the parties
making them or their counsel, and promptly filed with the clerk.” Trial Court Rule 23.05.
As for whether the stipulations were binding, in the seminal case of West Virginia
Department of Transportation v. Veach, 239 W. Va. 1, 8, 799 S.E.2d 78, 85 (2017), this
Court noted that “attorneys are authorized to enter into stipulations on behalf of their clients
and a party is ordinarily bound by a stipulation made by its attorney.” Veach recognized a
bedrock principle: a stipulation is an enforceable contract, and, like a contract, relief from
property, which itemizes each item of property and specifies each item’s replacement cost.
See W. Va. Code § 21-5-4(f)(1)(C)(i).
22
a stipulation “is usually available only in cases of fraud, mistake, improvidence or material
change in circumstances, where in equity and good conscience the stipulation ought not to
stand.” Id. (quoting 4 Williston on Contracts § 8.50 (4th ed. 2016)). This Court
unanimously concluded in Syllabus Point 6 of Veach that “[a] circuit court is afforded wide
discretion in determining whether or not a party should be relieved of a stipulation, and
such decision should not be set aside absent an abuse of discretion.” Id. at 4, 799 S.E.2d
at 81.
Fairmont Tool does not allege that the stipulations are the result of fraud,
mistake, or any other contractual principle for the recission of contracts. In fact, Fairmont
Tool’s opening brief does not cite Veach or its holdings at all. Fairmont Tool instead
asserts that the parties were motivated to enter into the stipulations to avoid having to hire
experts, and that the plaintiff “breached” the agreement by hiring an economist. However,
the stipulations contain no limitation precluding the parties from hiring experts to provide
needed testimony, analysis, and evidence and, hence, there was nothing for the plaintiff to
breach by hiring an expert. Moreover, to the extent Fairmont Tool asserts that the
stipulations by its prior counsel are “improvident” and contain a damages scheme not
contained in the current WPCA, the law is clear that a party can agree to waive contractual,
statutory or even constitutional rights. “Because stipulations fairly entered into often
operate to settle controversies or expedite judicial proceedings, they are favored. They are
therefore generally controlling and conclusive, so much so that it has even been held that
parties may stipulate away statutory, or even constitutional, rights.” 4 Williston on
23
Contracts § 8:50 (4th ed. 2021). See also, Parsons v. Halliburton Energy Servs., Inc., 237
W. Va. 138, 144, 785 S.E.2d 844, 850 (2016) (“It is a well-established principle of contract
law that contract rights can be waived.”); Syl. pt. 2, in part, Call v. McKenzie, 159 W. Va.
191, 220 S.E.2d 665 (1975) (“A criminal defendant can knowingly and intelligently waive
his constitutional rights[.]”); Smith v. Bell, 129 W. Va. 749, 762, 41 S.E.2d 695, 701 (1947)
(“Waivers of statutory rights and privileges created for the benefit of an individual and
which are personal to him are generally held to be valid.”). Accordingly, our holding in
Veach supports the circuit court’s determination that the parties were bound by the
stipulations.
We also find no merit in Fairmont Tool’s position that the circuit court should
have voided or ignored the parties’ binding agreement contained within the stipulations.
The parties’ stipulations were the product of substantial negotiations between counsel and
were intended by the parties to establish an agreed-upon methodology for calculating class
damages, thereby eliminating any future risk or uncertainty on that question. The
stipulations specify that if the plaintiff was able to establish that Fairmont Tool violated
the WPCA for any wage withholdings it took between July 1, 2012, and June 10, 2015,
then Fairmont Tool agreed to pay three times those withholdings as liquidated damages.
For improper wage withholdings between June 11, 2015, and July 31, 2017, Fairmont Tool
agreed to pay twice the wage withholdings as liquidated damages.
17
The circuit court’s
The parties’ stipulations regarding liquidated damages apparently reflects
17
a concern or confusion regarding amendments to the WPCA. Prior to June 10, 2015, West
Continued . . .
24
summary judgment order on damages merely reflects the terms of the parties’ agreement
in the stipulations. Accordingly, we find no error or abuse of discretion in the circuit
court’s decision to bind Fairmont Tool to its agreement.
C. Fairmont Tool’s Counterclaim
Fairmont Tool asserts that it had a contract with its employees that
circumvented the WPCA. Whether this contract was written or oral is unclear from
Fairmont Tool’s arguments. There are forty copies of a written “Wage Deduction
Authorization Agreement” in the record, each signed by some current and/or former
employees of Fairmont Tool, an untold number of whom are members of the class at issue
in this case. 18 Fairmont Tool directs us to no such written agreement signed by the plaintiff;
it also makes no reference to this written agreement in its arguments.
Regardless of the form of the contract, Fairmont Tool contends that the
plaintiff (personally) and employees (generally) were permitted to purchase uniforms,
Virginia Code § 21-5-4(e) (2013) dictated that an employer who failed to pay an employee
wages due was liable for both the unpaid wages and “liable to the employee for three times
that unpaid amount as liquidated damages.” Effective June 11, 2015, the Legislature
amended the statute to provide that the employer was “liable to the employee for two times
that unpaid amount as liquidated damages.” W. Va. Code § 21-5-4(e) (2015). The
Legislature subsequently amended the statute in 2018, but no changes were made that
affect this appeal.
As we discussed in the facts, the class covers current and former employees
18
between July 1, 2012, and July 31, 2017. Of the forty “Wage Deduction Authorization
Agreements” in the appendix record, only thirty-four were signed within the class’s defined
period. Additionally, the parties do not describe if any of the individuals who signed the
forty agreements are members of the class.
25
boots, tools, and other merchandise at vendors using either the company’s account or a
company credit card. Further, it cites to evidence of record showing that the plaintiff was
permitted, with his supervisor’s approval, 19 to purchase personal items like meals, a winter
coat, boots for himself and a family member, and a bag of calcium chloride. Saying it
“advanced money and the cash equivalent” to the plaintiff and that he “agreed to reimburse
Fairmont Tool for these advances . . . through agreed upon payroll deductions,” Fairmont
Tool argues in its brief that its payroll deductions were to recoup “advances made on behalf
of [the plaintiff] and the putative class members for personal purchases on company credit
cards and company credit accounts with outside vendors, including safety boots and
uniform rentals.” 20
Building upon this position, Fairmont Tool contends the plaintiff “breached”
and “repudiated” his unwritten reimbursement agreement with the company. Hence, on
June 22, 2018, Fairmont Tool moved to amend its answer to assert a counterclaim for
19
In his deposition, the plaintiff testified he was given permission to make
personal purchases with the company credit card by either “a Fairmont Tool supervisor or
a member of management.” Moreover, the employee responsible for Fairmont Tool’s
human resources, employee benefits, and payroll testified that the company never
disciplined or raised concerns with the plaintiff about his use of the company credit cards
or company accounts. This employee testified that neither the plaintiff nor any other
employee “did anything wrong in terms of using a company account or company credit
card[.]” The company simply allowed employees to make the purchases, then deducted
the amounts from the employees’ paychecks.
Comparing the circuit court’s calculation of improper deductions over five
20
years ($87,731) against the number of employees affected (136), it appears the company
deducted about $10.75 from each employee’s wages every month.
26
breach of contract and unjust enrichment against the plaintiff and the members of the class.
The circuit court permitted the amendment.
The plaintiff subsequently filed a motion for summary judgment, and, on
June 21, 2019, the circuit court granted the motion and dismissed Fairmont Tool’s
counterclaim. As noted previously, because Fairmont Tool took deductions from employee
paychecks without a written assignment that met the WPCA’s requirements, the circuit
court granted summary judgment and found Fairmont Tool liable for violating the WPCA.
The circuit court then noted that Fairmont Tool’s counterclaim was based on the notion
that its employees had circumvented the WPCA’s assignment provisions and entered into
a “private agreement” that supposedly permitted Fairmont Tool to withhold wages to pay
for certain goods and services. Presuming such an agreement actually existed, the circuit
court declared it would be an “illegal contract” and unenforceable because the WPCA
expressly precludes an employee from contractually altering his or her rights under the
WPCA.
In a series of scattershot arguments, Fairmont Tool contends that the circuit
court erred either in dismissing the counterclaim, or in refusing to “offset” Fairmont Tool’s
“advances” against the plaintiffs’ damages. Having examined the circuit court’s order, we
find no error and reject Fairmont Tool’s assertions. West Virginia Code § 21-5-10 (1975)
expressly prohibits an employee and employer from contractually altering or waiving the
employee’s right to wages under the WPCA. See Ash v. Ravens Metal Prod., Inc., 190 W.
Va. 90, 96-97, 437 S.E.2d 254, 260-61 (1993) (“[T]here is express language in W. Va.
27
Code, 21-5-10 (1975), precluding contractual alteration of those rights[.]”). The statute
provides that
no provision of this article may in any way be contravened or
set aside by private agreement, and the acceptance by an
employee of a partial payment of wages shall not constitute a
release as to the balance of his claim and any release required
as a condition of such payment shall be null and void.
W. Va. Code § 21-5-10.
We examined West Virginia Code § 21-5-10 in Citynet, LLC v. Toney, 235
W. Va. 79, 772 S.E.2d 36 (2015), where the employer had created a written fringe-benefit
plan for its employees. We noted that, when the plaintiff-employee left his job, the WPCA
required the employer to pay him his wages and fringe benefits “no later than the next
regular payday[.]” Id. at 92, 772 S.E.2d at 49 (quoting W. Va. Code § 21-5-4(c) (2006)).
When the employer attempted to circumvent that narrow payment period by citing to a
ninety-day payout schedule in the documents creating the fringe benefit, we rejected the
employer’s position. Citing to West Virginia Code § 21-5-10, we “refused to enforce an
agreement between an employer and an employee to pay wages outside the time frame set
forth in the WPCA.” Id. at 95, 772 S.E.2d at 52.
Likewise, in Britner v. Med. Sec. Card, Inc., 200 W. Va. 352, 489 S.E.2d 734(1997) (per curiam), we discussed the effect of this section against an employer’s argument
that “employment wage agreements may be modified by acquiescence” to the employer’s
unilateral decision to delay paying its employees. We rejected the employer’s argument,
finding:
28
The legislature has attempted to prevent employers from
abusing their positions by compromising the wages of
employees. The language in W. Va. Code § 21-5-10 is
mandatory. An employer must pay earned wages to its
employees. Any other reading would seriously compromise
and undermine the legislative intent of W. Va. Code § 21-5-10.
Id. at 355, 489 S.E.2d at 737. See also, Szturm v. Huntington Blizzard Hockey Assocs. Ltd.
P’ship, 205 W. Va. 56, 61, 516 S.E.2d 267, 272 (1999) (rejecting employer’s argument
that employee waived his right to payment of wages by agreeing to continue to work for
months without pay, finding that W. Va. Code § 21-5-10 prevents an employer from
altering an employee’s statutory right under the WPCA to regularly receive wages).
Fairmont Tool purports that it had a private agreement that its employees
would repay various and sundry debts through paycheck deductions, despite those
deductions violating the wage assignment provisions of the WPCA. Fairmont Tool’s
counterclaim for breach of contract, unjust enrichment, or similar arguments 21 are attempts
to circumvent the clear terms of West Virginia Code § 21-5-10 which expressly prohibits
private agreements that contravene the WPCA. It is axiomatic that a court will not enforce
a contract that is illegal and void. Accordingly, the circuit court correctly granted summary
judgment on the counterclaim and properly refused any setoff based upon what was clearly
a void, unenforceable agreement.
Fairmont Tool’s amended answer also asserted the defenses of anticipatory
21
breach, repudiation, unclean hands, and setoff, defenses that all relate to the agreement
Fairmont Tool alleges it had with its employees to bypass the requirements of the WPCA.
29
D. Attorney Fees and Costs
Finally, Fairmont Tool contends that the circuit court erred in the amount of
attorney fees it awarded to plaintiff’s counsel. Specifically, it argues that the hourly rate
chosen by the circuit court ($350 per hour) exceeded the prevailing rate in the community.
Additionally, it asserts that the circuit court erred in awarding costs to pay for two economic
experts.
We have often said that “[t]he decision to award or not to award attorneys’
fees rests in the sound discretion of the circuit court, and the exercise of that discretion will
not be disturbed on appeal except in cases of abuse.” Beto v. Stewart, 213 W. Va. 355,
359, 582 S.E.2d 802, 806 (2003); see also Sanson v. Brandywine Homes, Inc., 215 W. Va.
307, 310, 599 S.E.2d 730, 733 (2004) (“We . . . apply the abuse of discretion standard of
review to an award of attorneys’ fees.”). Likewise, “[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.” Syl. pt. 3, in part, Bond v.
Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959).
West Virginia Code § 21-5-12(b) (1975) provides that if a plaintiff
successfully prosecutes an action under the WPCA, the circuit court may “assess costs of
the action, including reasonable attorney fees against the defendant[.]” In other words,
“[a]n employee who succeeds in enforcing a claim under W. Va. Code Chapter 21, article
30
5 should ordinarily recover costs, including reasonable attorney fees unless special
circumstances render such an award unjust.” Syllabus Point 3, Farley v. Zapata Coal
Corp., 167 W.Va. 630, 281 S.E.2d 238 (1981). Moreover, in the parties’ stipulations,
Fairmont Tool agreed that the plaintiff could recover attorney’s fees and costs.
Regarding the amount of an attorney’s fee to award, the seminal case of
Aetna Casualty & Surety Company v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986) lists
a series of factors for courts to consider:
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, Id. While “a losing defendant cannot be saddled with attorneys’ fees that are
unreasonably large simply because the plaintiff chooses a lawyer from New York City or
another urban area,” Bishop Coal Co. v. Salyers, 181 W. Va. 71, 82, 380 S.E.2d 238, 249
(1989), “courts considering the reasonableness of attorney’s fees should consider how
common it is today for lawyers to travel from Charleston, or Clarksburg, or Huntington, or
31
other cities to represent clients in other, smaller counties.” Hollen v. Hathaway Elec., Inc.,
213 W. Va. 667, 673, 584 S.E.2d 523, 529 (2003).
We have reviewed the record and find no abuse of discretion by the circuit
court in its award of attorney’s fees. The circuit court applied the factors outlined in Pitrolo
and chose a reasonable fee commensurate with the experience and skill of the plaintiff’s
lawyers, several of whom were based in Charleston. As for the costs for the two experts,
the record reflects that Fairmont Tool did not object to the first expert, who worked as the
class administrator. The second expert was initially hired by plaintiff’s counsel in response
to Fairmont Tool’s counterclaim, but later offered prejudgment interest calculations –
including one requested by Fairmont Tool – as well as other assessments used by the circuit
court to calculate the appropriate amount of class damages. In light of these facts, the
circuit court acted well within its discretion in its award of costs for these two experts.
IV. Conclusion
We find no error in the circuit court’s orders.
Affirmed.
32