Brian Ettinger v. Everett Frazier, Commissioner, West Virginia Division of Motor Vehicles ( 2023 )

FILED
June 13, 2023
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
STATE OF WEST VIRGINIA OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Brian Ettinger,
Plaintiff Below, Petitioner
vs.) No. 22-0431 (Kanawha County No. 22-P-40)
Everett Frazier, Commissioner,
West Virginia Division of Motor Vehicles,
Defendant Below, Respondent
MEMORANDUM DECISION
Petitioner Brian Ettinger (hereinafter “Mr. Ettinger”) appeals the May 4, 2022, order of the
Circuit Court of Kanawha County denying his motion for attorney’s fees and costs. Respondent
Everett Frazier, Commissioner of the West Virginia Division of Motor Vehicles (hereinafter
“DMV”), responded in support of the circuit court’s order.1 Upon our review, we determine that
oral argument is unnecessary and that a memorandum decision affirming the circuit court’s order
is appropriate. See W. Va. R. App. P. 21.
Mr. Ettinger was arrested in Berkeley County, West Virginia, on June 6, 2021, and charged
with multiple offenses, including driving under the influence of alcohol (“DUI”). At a preliminary
hearing in magistrate court on September 8, 2021, Mr. Ettinger and the State submitted a joint
motion to continue and place the matter on a “STET”2 docket for six months. The motion stated
“Def. has completed alcohol counseling/treatment. Will now complete interlock and com. svc. for
dismissal.” The motion was granted. On that same day, the magistrate court entered a form
community service order, which was modified to indicate, “entered stet diversion w/ state” and
“as condition of stet.” The following language was crossed out of the form order: “was found
guilty or pled no contest to the following charges.” Language related to an alternative sentence
remained.
1
Petitioner appears by counsel Bradley J. Wright. Respondent appears by Attorney General
Patrick Morrisey and Assistant Attorney General Elaine L. Skorich.
2
In its April 5, 2022, order granting Mr. Ettinger’s writ of prohibition, the circuit court
explained that “STET” is a term primarily used in Maryland and is defined as “[a]n order staying
legal proceedings, as when a prosecutor determines not to proceed on an indictment and places the
case on a stet docket.” STET, Black’s Law Dictionary (7th Edition 1999)
1
The DMV contends that it received the September 8, 2021, motion for continuance granted
by the magistrate court. It also states that on December 9, 2021, the Unified Judicial Application
(“UJA”) showed the disposition for the DUI matter as “Proceedings deferred 09/08/2021.” The
UJA also indicated “Disposition Text: 6 month STET[.]” On December 29, 2021, the DMV
entered an order revoking Mr. Ettinger’s West Virginia driver’s license as of February 2, 2022,
“because [he was] convicted of driving a motor vehicle on June 6, 2021” (“order of revocation”).
Mr. Ettinger’s counsel notified respondent that this was inaccurate, but the DMV did not withdraw
or correct the order of revocation. On January 21, 2022, the criminal charges pending in magistrate
court were dismissed based on the State’s further investigation demonstrating “insufficient
evidence to support continued prosecution.”
On February 2, 2022, Mr. Ettinger filed a “Verified Petition for Writ of Prohibition,
Declaratory Judgment, and Injunctive Relief” in the Circuit Court of Kanawha County seeking to
prohibit the revocation of his driver’s license by the DMV, and, on February 11, 2022, the circuit
court entered a temporary restraining order enjoining the DMV from enforcing the order of
revocation. The DMV filed a motion to dismiss for lack of jurisdiction. At a March 23, 2022,
hearing, the motion to dismiss was withdrawn, and, instead, the DMV requested that it be allowed
to respond to the verified petition on the merits, in lieu of filing a written answer. Mr. Ettinger
agreed, and the circuit court proceeded in the manner that the parties requested. The DMV called
its General Counsel to testify regarding the merits of the underlying petition. He testified that the
various courts do not send a standard form or document to the DMV based on the criminal DUI
process. As such, he testified the DMV must review all documents, which lack uniformity, and
apply all applicable traffic statutes to interpret those documents in order to fulfill its administrative
duties. He asserted that the documents received in this case were appropriately interpreted to be a
deferral under West Virginia Code § 17C-5-2b (2020) (“DUI deferral statute”), thus requiring
revocation.
On April 5, 2022, the circuit court entered an order granting the requested writ of
prohibition.3 Applying Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483
S.E.2d 12 (1996), and considering each of the relevant factors, the circuit court concluded that the
DMV exceeded its legitimate powers in revoking Mr. Ettinger’s driver’s license. The circuit court
order also awarded Mr. Ettinger unspecified attorney’s fees and costs, to be later determined upon
consideration of the factors set out in Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190,
195-96, 342 S.E.2d 156, 161-62 (1986). Mr. Ettinger filed his motion in support of the attorney’s
fees and costs, and the DMV filed an objection opposing the motion and fee award, arguing that
attorney’s fees and costs are generally not recoverable against the State absent a statute or court
rule providing for the same and are generally not awarded against public officials who are acting
in good faith to carry out their duties, citing Nelson v. West Virginia Public Employees Insurance
Board, 171 W. Va. 445, 450, 300 S.E.2d 86, 91 (1982), and Daily Gazette Co., Inc. v. Canady,
175 W. Va. 249, 250, 332 S.E.2d 262, 263 (1985).
3
Respondent filed an appeal of the April 5, 2022, order with this Court in Everett Frazier,
Commissioner, West Virginia Division of Motor Vehicles v. Brian Ettinger, Docket No. 22-0352.
A more detailed discussion of the merits of the writ of prohibition order is found in this Court’s
decision in that appeal.
2
On May 4, 2022, the circuit court entered an order denying Mr. Ettinger’s motion for
attorney’s fees and costs, concluding that Nelson and Daily Gazette Co., Inc., not Aetna Casualty
& Surety Co., provided the appropriate guidance for an award of attorney’s fees and costs. It stated
that, pursuant to those cases, and in the absence of statutory authority, attorney’s fees and costs
may only be awarded against the DMV Commissioner as a result of “vexatious, wanton, or
oppressive assertion of a claim or defense that cannot be supported by a good faith argument for
the application, extension, modification, or reversal of existing law” and that the April 5, 2022,
order made no such findings. It held that the record was clear that the DMV believed the documents
from the magistrate court indicated a criminal disposition and that it believed it acted within its
statutory authority in revoking Mr. Ettinger’s driver’s license.
Mr. Ettinger appeals the May 4, 2022, order, asserting that the circuit court erred in
reversing the initial order granting attorney’s fees and costs and, specifically, that it erred in finding
that the DMV did not act in a vexatious, wanton, or oppressive manner when it attempted to revoke
Mr. Ettinger’s license on the basis of a conviction that did not occur, while the criminal case was
pending. He contends that the order of revocation constitutes harassment, not merely “inartful
drafting,” and so was wanton and vexatious. Further, Mr. Ettinger contends that both the content
of the DMV’s motion to dismiss for lack of jurisdiction and the withdrawal of the motion on the
day of the scheduled hearing demonstrate further vexatious and wanton behavior by it, warranting
attorney’s fees. We review the circuit court’s decision for an abuse of discretion. See Syl. Pt. 3,
Martin v. W. Va. Div. of Lab. Contractor Licensing Bd., 199 W. Va. 613, 614, 486 S.E.2d 782,
783 (1997) (“An award of attorney fees in an action seeking a writ of prohibition is reviewable
under an abuse of discretion standard.”).
Upon review of the facts and arguments, we find no abuse of discretion in the circuit court’s
ultimate denial of Mr. Ettinger’s request for attorney’s fees and costs in this matter. The award of
costs is discretionary under West Virginia Code § 53-1-8; however, attorney’s fees are not included
in these costs. Nelson, 171 W. Va. at 450-51, 300 S.E.2d at 91-92. In Martin, this Court discussed
the award of attorney’s fees in a writ of prohibition and held:
“A court may order payment by an attorney to a prevailing party reasonable
attorney fees and costs incurred as the result of his or her vexatious, wanton, or
oppressive assertion of a claim or defense that cannot be supported by a good faith
argument for the application, extension, modification, or reversal of existing law.”
Syllabus, Daily Gazette Co., Inc. v. Canady, 175 W.Va. 249, 332 S.E.2d 262(1985).
Martin, 199 W. Va. at 614, 486 S.E.2d at 783, Syl. Pt. 7; see also Nelson, 171 W. Va. at 451, 300
S.E.2d at 92 (discussing general rule that attorney fees are not awarded in absence of statutory
authority and explaining and applying exception to that rule for losing parties who have “acted in
bad faith, vexatiously, wantonly or for oppressive reasons” in mandamus proceeding).
In this case, the circuit court considered the testimony of DMV’s General Counsel at the
March 23, 2022, hearing and concluded that the DMV believed that the documents from the
magistrate court indicated that a revocation of Mr. Ettinger’s license was within its statutory
authority. The circuit court also noted a lack of required findings to support an award of attorney’s
3
fees in its April 5, 2022, order. Denying an award of attorney’s fees and costs based on these
considerations was not an abuse of discretion.
For the foregoing reasons, we affirm the circuit court’s May 4, 2022, order.
Affirmed.
ISSUED: June 13, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
4