S.U. v. Central Atlantic Legal Group, PLLC, dba Booth, Strange, & Daniel, and J.S. ( 2023 )

FILED
October 18, 2023
STATE OF WEST VIRGINIA EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA
S.U.,
Petitioner
vs.) No. 22-0441 (Harrison County 19-C-275)
Central Atlantic Legal Group, PLLC,
dba Booth, Strange & Daniel, and J.S.,
Respondents
MEMORANDUM DECISION
Petitioner S.U. 1 appeals the Circuit Court of Harrison County’s May 16, 2022, order
granting respondents attorney’s fees and costs. 2 Upon our review, finding no substantial question
of law and no prejudicial error, 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(c).
This matter was previously before this Court upon petitioner’s appeal of a final order
granting respondents’ motion for summary judgment and their counterclaim to have petitioner
designated a vexatious litigant. S.U. v. Central Atlantic Legal Group, PLLC, No. 20-1006, 2022
WL 293551 (Feb. 1, 2022)(memorandum decision). Of particular importance to this appeal, we
detailed petitioner’s protracted history of harassing, vexatious conduct toward not only the mother
of his children but also her legal representatives. Id. at *4-5, *7. Aside from denying petitioner
relief on his appeal in that matter, we additionally found it necessary to remand the matter “for the
limited purpose of holding a hearing to determine if awarding respondents attorney’s fees and costs
is appropriate.” Id. at *7.
On remand, the court held a hearing in May 2022 to address attorney’s fees and costs for
respondents. Petitioner did not attend this hearing, despite his awareness of the same. Noting that
it had found, in earlier ruling on respondents’ counterclaim, that petitioner “abused civil process,
maliciously prosecuted his [c]omplaint, and acted in a vexatious manner without just cause,” the
court concluded that petitioner’s bad faith “supports the exceptions to the American Rule
1
We use initials where necessary to protect the identities of those involved in this case. See
W. Va. R. App. P. 40(e).
2
Petitioner is self-represented, and respondents appear by counsel Daniel T. Booth.
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permitting an award of attorney fees.” The court also noted that petitioner’s responses filed on the
issue of attorney’s fees “contain no relevant or material allegations which suggest otherwise.” The
court then addressed factors applicable to determining the appropriate amount of attorney’s fees
in this matter, the “Pitrolo factors, 3 finding that (1) respondents’ counsel “was required to expend[]
significant time in research and defense” of petitioner’s complaint; (2) “the unusual and novel
nature of the claims” central to petitioner’s complaint supported an award of attorney’s fees; (3)
no special skill was necessary to perform the legal services properly; (4) the “economic strain and
expenditure of time in defense of [petitioner’s] spurious claims” was to respondents’ financial
detriment and was a “factor of great significance,” considering counsel was representing a member
of the professional limited liability company of which he was also a member, “had no choice but
to accept the case, and could not accept other work which would result in payment of legal fees”;
(5) counsel’s $250 per hour rate was “customary, reasonable, and necessary”; (6) the fee was
“fixed” as a result of counsel representing a legal entity of which he is a member; (7) time
limitations were immaterial to the case; (8) the results obtained were favorable, as the court found
in respondents’ favor and this Court affirmed the same; (9) counsel’s history justified the hourly
rate; (10) the undesirability of the case was another significant factor for consideration, given that
petitioner’s “continual and persistent filings result in a barrage of unnecessary and unwarranted
legal work” and “[f]ew attorneys would desire to undertake representation knowing their
representation would never cease and indeed might expose an attorney to becoming a party to
litigation”; (11) the nature and length of the professional relationship to the client was immaterial;
and (12) the 115.20 hours expended were reasonable and necessary to accomplish the task and
consistent with awards in similar matters. Accordingly, the court awarded respondents $28,800 in
attorney’s fees, plus post-judgment interest in the amount of 4 percent. Petitioner now appeals the
court’s May 16, 2022, order, which we review for an abuse of discretion. Syl. Pt. 2, Auto Club
Prop. Cas. Ins. Co. v. Moser, 246 W. Va. 493, 874 S.E.2d 295 (2022) (“This Court reviews an
award of costs and attorney’s fees under an abuse of discretion standard.”).
Before this Court, petitioner challenges the court’s award of attorney’s fees on three bases.
He first asserts that his conduct below was in good faith, which prohibits an award of attorney’s
fees. See Syl. Pt. 3, in part, Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365 S.E.2d 246 (1986)
(establishing that attorney’s fees can be awarded “when the losing party has acted in bad faith,
vexatiously, wantonly or for oppressive reasons”). However, petitioner ignores the fact that this
Court already affirmed the lower court’s finding that his conduct was vexatious and in bad faith.
3
See Syl. Pt. 4, Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986)
(“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.”)
2
S.U., 2022 WL 293551, at *7. Accordingly, petitioner cannot now attack the award of attorney’s
fees on this ground.
Next, petitioner claims that respondents’ “true costs . . . are unable to be ascertained due to
their history of fraudulent billing claims.” In support, petitioner cites to his responses to the award
of attorney’s fees filed below and the exhibits attached thereto, but ignores the fact that the circuit
court concluded these filings and exhibits were entirely without merit. We agree with the circuit
court, as petitioner’s attempt to establish fraudulent billing on respondents’ part by simply citing
to the amount billed in certain actions and then claiming, without citation to the record, that
respondent J.S.’s testimony was dishonest does not entitle him to relief. See W. Va. R. App. P.
10(c)(7) (requiring that petitioner’s brief “must contain appropriate and specific citations to the
record on appeal” and permitting the Court to “disregard errors that are not adequately supported
by specific references to the record on appeal”).
Finally, petitioner asserts that it would be inequitable to order he pay respondents’
attorney’s fees and costs when he has no ability to pay. He cites no authority to support that a court
need consider a party’s ability to pay, and, notably, that is not a factor set forth in Pitrolo for courts
to consider. Because petitioner has failed to establish error in any of the court’s extensive findings
applying these factors to the instant matter, he is not entitled to relief.
For the foregoing reasons, we affirm.
Affirmed.
ISSUED: October 18, 2023
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
Justice C. Haley Bunn
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