                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Carlotta Evans,                                                                   FILED
Plaintiff Below, Petitioner                                                   June 13, 2014
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 13-0871 (Nicholas County 10-P-39)                                      OF WEST VIRGINIA


One Gateway Associates,
Defendant Below, Respondent


                              MEMORANDUM DECISION
        Petitioner Carlotta Evans, by counsel William A. McCourt Jr., appeals the Circuit Court
of Nicholas County’s denial of her request for attorney’s fees and expenses and her motion for
reconsideration of that denial. Respondent One Gateway Associates, by counsel William D.
Stover, responds in support of the circuit court’s orders. Petitioner also submitted a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        Respondent owns and operates a commercial shopping center in Summersville, West
Virginia. Petitioner was a commercial tenant of respondent who rented a location from which she
operated a RadioShack store. The initial three-year lease term expired in June of 2007 and
automatically renewed for an additional three-year period. From 2007 to 2010, petitioner rented
a second property in the shopping center from which she and her son operated a Citgo and a U-
Haul business. The RadioShack lease had no provision for a second automatic extension, and the
lease expired on June 30, 2010. Pursuant to the terms of the lease, any holding over beyond that
point constituted “a tenancy from month-to-month only.” Because the parties were unable to
reach an agreement as to an extension, respondent issued a notice to vacate the property on July
1, 2010, allowing petitioner one month to vacate. The parties continued to negotiate a lease
extension, though negotiations became complicated by the fact that the lease for the Citgo was to
terminate as of July 31, 2010.

         On July 28, 2010, Joy DeMoss, one of respondent’s employees, sent a letter to petitioner
with a proposed lease modification and extension agreement for the RadioShack location. In that
letter, she raised the issue of the U-Haul business, stating that the trucks could not be parked in
the normal parking spaces at the shopping center. The extension agreement proposed extending
the RadioShack lease for a period of two years from July 1, 2010, to June 30, 2012, under the
same terms and conditions as the original lease, with the exception of an increased monthly rent

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of $1,666.67 for the first year and $1,733.33 for the second year. The cover letter stated that if
petitioner agreed with the extension agreement, she was to sign both copies before a witness and
return them by July 30, 2010. Petitioner signed the extension agreement, but her signature was
not witnessed or dated.

        On July 31, 2010, the lease for Citgo terminated. On that same date, petitioner sent a
check to respondent for $66.67, for the remainder of the July rent payment under the extension
agreement for the RadioShack lease. On August 1, 2010, petitioner remitted a check for
$1,873.25 for the August rent payment under the extension agreement. Petitioner asserts that
respondent was in receipt of the two checks and the signed extension agreement by August 2,
2010. However, on August 1, 2010, petitioner wrote a letter to Ms. DeMoss, stating that Ms.
DeMoss’s July 28, 2010, letter sounded as if Ms. DeMoss had not agreed that petitioner would
have the space to park the U-Haul trucks and that the renewal of the RadioShack lease included
the U-Haul business.1 The August 1, 2010, letter was not delivered until August 11, 2010. In the
interim, on August 9, 2010, another employee of respondent, Stephen McCue, sent petitioner a
letter addressing numerous issues related to the termination of the Citgo lease, stating that
respondent had not signed off on the extension agreement and would not do so until issues with
Citgo were resolved. On August 10, 2010, petitioner sent a letter to Mr. McCue, stating that she
did not agree to the new conditions on the lease renewal for RadioShack due to the unacceptable
added condition regarding the Citgo lease. It further stated as follows:

       By notifying me on August 9, 2010, that you have not signed off on the July 1,
       2010 Lease renewal, and that you will not sign off on the Lease Renewal until
       certain conditions related to a different lease are met, you have changed the terms
       of the Lease Renewal. There is also the issue of the U-Haul business, which was
       addressed in a separate letter to [Ms. DeMoss].

Petitioner continued by stating that she preferred to proceed with the lease renewal for
RadioShack but insisted that it be separate from the Citgo lease.

        On August 19, 2010, respondent sent petitioner a termination letter by certified mail,
informing petitioner that it was not extending the lease on the RadioShack; the termination letter
gave petitioner thirty days from its receipt to vacate the property. Upon receipt of the letter,
petitioner filed the underlying action in the Circuit Court of Nicholas County. Petitioner was
granted a preliminary injunction to stay on the RadioShack property, and she was required to pay
rent at the rate specified in the extension agreement under the same terms as the original lease.
On October 7, 2010, petitioner filed an amended complaint asserting causes of action related to
the RadioShack lease and the Citgo lease.2 Respondent filed an answer and counterclaim related

       1
        Petitioner claims that the U-Haul business operated out of the RadioShack location on
Sundays while Citgo was closed, but respondent disputes this contention.
       2
          On January 4, 2011, respondent filed a petition for writ of prohibition before this Court
(Case No. 11-0018), but the writ was refused by order entered on February 10, 2011. Respondent
also filed a motion for disqualification of Judge Johnson on March 31, 2011, but that motion was
denied by this Court on April 19, 2011.
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to the Citgo lease on April 14, 2011. Petitioner occupied the RadioShack property under the
injunction from September 10, 2010, to August 31, 2011.

        Petitioner filed a motion for partial summary judgment on her claim that the extension
agreement constituted a valid, binding contract between the parties. Respondent filed a motion
for summary judgment on various issues, including the validity of the extension agreement. The
circuit court conducted a hearing on the motions for summary judgment on March 6, 2012, and
on March 14, 2012, entered an order denying petitioner’s motion but granting in part
respondent’s motion for summary judgment. Petitioner appealed that order to this Court in April
of 2012, and by memorandum decision, this Court affirmed the circuit court’s order on May 3,
2013. Evans v. One Gateway Associates, No. 12-0479, 2013 WL 1859164 (W.Va. Supreme
Court, May 3, 2013) (memorandum decision) (Evans I).

        A jury trial was held on March 14 and 15, 2012, on the issues not previously decided by
the circuit court. During trial, petitioner was represented by counsel, Mr. McCourt.3 According to
the “Judgment Order From Jury Trial” entered on March 22, 2012, at the conclusion of evidence,
the circuit court granted five oral motions for directed verdict. Those rulings were as follows: 1)
the circuit court granted respondent’s motion for a directed verdict on petitioner’s claim for lost
business or lost income damages; 2) the court granted respondent’s motion for a directed verdict
on the damages claimed by petitioner for missing tools; 3) the court granted petitioner’s motion
for a directed verdict on respondent’s claim for recovery of the actual amounts paid for insurance
and real estate taxes on the Citgo lease; 4) the court granted petitioner’s motion for a directed
verdict with respect to respondent’s claim for cleaning costs and repairs to the Citgo premises;
and 5) the court granted petitioner’s motion for directed verdict with respect to respondent’s
claim for cleaning costs and repairs to the RadioShack premises. The order states that the jury
awarded petitioner $4,401 with respect to the RadioShack lease and $12,916 with respect to the
Citgo lease, for a total award of $17,317. The circuit court also stated that as set forth in its
summary judgment order entered on March 14, 2012, petitioner is also entitled to a refund of the
additional rent paid during petitioner’s occupancy of the RadioShack premises, with excess rent
of $66.67 per month for fourteen months, totaling $933.38. When combined with the verdict, the
total amount awarded to petitioner was $18,250.38. However, respondent was also granted
summary judgment against petitioner on March 14, 2012, and awarded damages in the amount of
$11,053.03, related to the Citgo lease.4 Therefore, the resulting total judgment for petitioner was
$3,616.35.

       On July 9, 2013, the circuit court entered an order denying petitioner’s both motion to



       3
           Prior to trial, petitioner, a licensed attorney, represented herself.
       4
         The circuit court set forth in the order that the amount was reached by adding the $6,000
owed from the last month’s rent, insurance charges of $.05 per square foot per annum during the
three year lease, real estate taxes of $.50 per square foot for 2009, and real estate taxes for the
partial year 2010 in the designated amount of $1,564.48, for a total of $11,053.03. The parties
stipulated that respondent previously paid amounts totaling $3,581, which were to be set-off
against petitioner’s judgment.
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enforce judgment and renewed motion for attorney’s fees and expenses. In its order, the circuit
court stated that petitioner sought to recover attorney’s fees pursuant to a provision included in
both the Citgo lease and the RadioShack lease that provides that “[i]n the event that either party
hereto shall bring legal action against the other party, then the prevailing party shall be entitled to
reimbursement from the other party for all expenses thus incurred, including reasonable
attorney’s fees.” Petitioner argued that she was the prevailing party because the jury found in her
favor under both leases. The circuit court found that while petitioner was awarded $17,317 at
trial, she did not prevail on all issues in the case. The court pointed out that respondent prevailed
on numerous issues on summary judgment, including the question of the validity of the extension
agreement for the RadioShack lease. “[A]t the conclusion of the jury trial, [petitioner] was
entitled to a total award of $18,250.38, and [respondent] was entitled to a total award of
$14,058.84. Accordingly, at that time, the degree to which [petitioner] prevailed was small; a
$4,191.54 difference from the amount award to [respondent].” The court also pointed out that
petitioner appealed the summary judgment order and that respondent incurred additional
attorney’s fees and expenses in responding to that appeal. Further, respondent was the prevailing
party on appeal. The circuit court, therefore, concluded that both parties had prevailed on various
issues in this legal action and that neither party substantially prevailed, as to warrant an award of
attorney’s fees. In its order, the circuit court also pointed out that a pro se party is generally not
entitled to recover attorney’s fees, citing Smith v. Bradley, 223 W.Va. 286, 673 S.E.2d 500
(2007). “Because [petitioner] was a pro se party until the time of trial, no attorney fees were paid
for the work she performed pro se.” The circuit court also concluded that it was unnecessary to
issue an order enforcing the judgment, as the judgment set forth in the amended judgment order
was not appealed and the judgment was and remained valid and enforceable by petitioner.

        On July 22, 2013, the circuit court entered its order denying petitioner’s motion to
reconsider the denial of attorney’s fees and expenses. The circuit court therein reiterated its
finding that neither party substantially prevailed so as to warrant an award of attorney’s fees.
Petitioner appeals from the July 9 and July 22, 2013, orders.

        “The decision to award or not to award attorney’s 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). Further, “‘[w]here the
issue on an appeal from the circuit court is clearly a question of law . . ., we apply a do novo
standard of review.’ Syl. Pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d
415 (1995).” Syl. Pt. 1, State ex rel. Hicks v. Bailey, 227 W.Va. 448, 711 S.E.2d 270 (2011).

        Petitioner asserts three assignments of error, all of which focus on the circuit court’s
refusal to award attorney’s fees to petitioner. First, petitioner argues that the circuit court erred
by failing to grant petitioner attorney’s fees as required by the terms of both commercial leases.
In a substantially related argument, her second assignment of error is that the circuit court erred
by finding that petitioner was not the prevailing party in the case. Due to the overlap in these
arguments, the Court will address these assignments of error together. Petitioner argues that it is
undisputed that both leases have provisions that the prevailing party shall be entitled to
reimbursement from the other party for all expenses thus incurred, including reasonable
attorney’s fees. She contends that a plaintiff may be considered a prevailing party for attorney’s
fees purposes if he succeeds on any significant issue in litigation that achieves some of the

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benefit he sought in bringing the suit. Petitioner asserts that while she initially prevailed on one
issue that she concedes she later lost, the validity of the lease extension for the RadioShack lease,
she prevailed on the other two issues litigated during this case, specifically respondent’s breach
of the RadioShack lease and the Citgo lease. The two issues on which petitioner prevailed were
those issues presented to the jury, so petitioner argues that she was the prevailing party at trial.
Therefore, she was entitled to attorney’s fees under the leases.

         “‘As a general rule each litigant bears his or her own attorney’s fees absent a contrary
rule of court or express statutory or contractual authority for reimbursement.’ Syl. Pt. 2, Sally-
Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).” Syl. Pt. 2, State ex rel. Hicks
at 449, 711 S.E.2d at 271. The contract language at issue in the instant matter clearly allows for
the award of attorney’s fees only if a party prevails. Petitioner largely ignores the fact that prior
to trial, this Court found that there was no extension of the commercial lease petitioner had with
respondent for the location of the RadioShack store. Evans I at *4. As respondent points out, this
was a win without a monetary award, so no credit or offset to petitioner’s award was available
for that finding. Petitioner also ignores the significance of the circuit court’s grant of oral
motions for directed verdict, including respondent’s motion for a directed verdict on petitioner’s
claim for lost business or lost income damages and respondent’s motion for a directed verdict on
the damages claimed by petitioner for missing tools. As set forth above, petitioner was awarded a
total of $17,317 by the jury, but because respondent was granted partial summary judgment
against petitioner, respondent was also awarded damages by the circuit court. In addition, the
circuit court awarded excess rent reimbursement to petitioner in the amount of $933.38.
Therefore, the resulting judgment for petitioner was far less than the amount awarded by the
jury. Based on the jury verdict and the awards to respondent prior to trial, the circuit court
determined that neither party prevailed. Thus, the circuit court denied petitioner’s motion for
attorney’s fees and petitioner’s motion for reconsideration of that denial.

        “For a plaintiff to have ‘prevailed’ at trial, he need not show success on every claim
brought, but he must demonstrate that the litigation effected the material alteration of the legal
relationship of the parties. . . .” Syllabus, in part, Schartiger v. Land Use Corp., 187 W.Va. 612,
420 S.E.2d 883 (1991). While the terminology differs slightly, we previously found that

       the most obvious connotation of a successful party is his/her ultimate victory in
       the controversy as the winner of the lawsuit. In this context, “success” . . . means
       the favorable termination of something attempted; the attainment of the proposed
       object. And “successful” is defined as resulting or terminating in success; gaining
       or having gained success; having the desired effect. It is the obtaining or
       terminating in the accomplishment of what is desired, intended or aimed at.
       Batten v. A.T. Benge Drug Co., 162 Iowa 280, 281, 144 N.W. 37, 38 (1931)
       (citation omitted).

Dailey Gazette Co, Inc. v. W.Va. Dev. Office, 206 W.Va. 51, 60, 521 S.E.2d 543, 552 (1999).
Further, “it is sufficient if the party requesting reimbursement of costs and fees prevailed on the
principal issue(s) comprising the controversy.” Id. at 61, 521 S.E.2d at 553. In this case, as
determined by the circuit court, both parties were awarded judgment on some issues, but neither
party ultimately prevailed. Based upon our review of the record, including our prior decision in

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this matter, we find that the circuit court did not err in denying petitioner’s request for attorney’s
fees or her motion for reconsideration of that denial.

        Petitioner’s final assignment of error is that the circuit court erred by finding that
petitioner was not entitled to attorney’s fees for her pro se representation. As set forth herein,
only the prevailing party was entitled to attorney’s fees under the contracts at issue. Because
neither party was the prevailing party, neither party was entitled to an award of attorney’s fees.
Therefore, we decline to address petitioner’s third assignment of error.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: June 13, 2014

CONCURRED IN BY:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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