                               STATE OF WEST VIRGINIA

                             SUPREME COURT OF APPEALS




Garry Thomas,                                                              FILED
Defendant Below, Petitioner                                           November 16, 2016
                                                                            released at 3:00 p.m.
vs) No. 15-1205 (Berkeley County 14-C-220)                                RORY L. PERRY II, CLERK
                                                                        SUPREME COURT OF APPEALS
                                                                             OF WEST VIRGINIA

Archie D. Houck,

Plaintiff Below, Respondent



                                MEMORANDUM DECISION

       Petitioner Garry Thomas, by counsel James T. Kratovil, appeals two November
20, 2015, orders of the circuit court denying his motions for a new trial and a December
10, 2015, order of the circuit court granting attorney’s fees and legal costs to Mr. Houck.1
Mr. Houck appears by counsel, Richard McCune and Alex Tsiatsos. On appeal, Mr.
Thomas argues that 1) the circuit court erred in granting Mr. Houck’s motion in limine
ruling that Mr. Thomas could not mention that Mr. Houck’s use of the right of way was
permissive; 2) the circuit court erred in granting Mr. Houck’s Rule 50 Motion for
Judgment as a Matter of Law based on the testimony presented at trial; 3) the circuit court
erred in not granting Mr. Thomas’ motion for a new trial because he was pro se at trial; 4)
the circuit court erred in awarding Mr. Houck attorney’s fees; and 5) the circuit court
erred in not assisting Mr. Thomas in securing the attendance of a former co-defendant at
trial.

      This Court has considered the parties’ briefs, oral arguments, and the appendix
record on appeal. Under the limited circumstances presented in this case, we find a
memorandum decision affirming the circuit court, in part, reversing in part, and
remanding for further proceedings appropriate under Rule 21 of the West Virginia Rules
of Appellate Procedure.

       As explained below, while we conclude that the circuit court committed no
reversible error as pertains to its November 20, 2015 orders, we conclude that the circuit
court failed to properly assess the factors enumerated in Aetna Casualty & Surety
Company v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986) relative to its award of


         1
             A September 23, 2015, judgment order was deemed not timely appealed by this
Court.
                                               1


attorney fees and therefore reverse the circuit court’s December 10, 2015, order and
remand for further proceedings as necessary and entry of an order consistent herewith.

       This appeal stems from a dispute between Mr. Thomas and Mr. Houck regarding a
road on Mr. Thomas’s property that Mr. Houck used to access his own property. Mr.
Houck and his family own property in the Hedgesville area of Berkeley County, West
Virginia. Russel L. Way, a co-defendant in the proceedings below, who is not a party to
this appeal, owns property immediately adjacent to Mr. Houck’s property. Mr. Thomas
owns real property that is immediately adjacent to Mr. Way’s property, which he
purchased in 1997. The subject road connected Mr. Houck’s property to West Virginia
County Rte 3/2 and was reportedly the only way for Mr. Houck to access his property.
Mr. Houck asserts that his family used this road for generations before Mr. Thomas
moved into the area, and afterward. However, in 2013, Mr. Thomas built a fence, closing
the road. Mr. Houck complained to Mr. Thomas that he had a right of way to cross the
property, but Mr. Thomas refused to re-open the road. As a result, Mr. Houck filed suit
against Mr. Thomas and Mr. Way asserting that he had a prescriptive easement to access
his property.

       Mr. Thomas represented himself pro se in the underlying action. At trial, Mr.
Thomas and his wife testified that Mr. Houck did not have permission to use the right of
way and that he did not use the subject road often. To counter their testimony, Mr.
Houck presented several witnesses at trial that testified that the right of way was the only
way that Mr. Houck could access his property, and that as a result, Mr. Houck and his
family had used that right of way since approximately 1920. Mr. Houck also testified that
he continued to use the right of way for a ten year period after the Thomases acquired
their property. Mr. Houck asserted that he has never asked permission to use the subject
right of way at any time. Additionally, Mr. Houck presented two expert witnesses at trial,
one of whom testified to the dimensions of the road and the other who testified that
although the right of way does not exist on a tax map, “it doesn’t mean the right of way
doesn’t exist.” Mr. Houck further asserted that Mr. Thomas’s interest in the property was
expressly made subject, by deed, to existing rights of way such as Mr. Houck’s, stating
“This conveyance is made subject to covenants, restrictions, agreements, easements, and
rights of way recorded in the aforesaid clerk’s office in Deed Book 253 at Page 249 and
of record and in existence.”

       Mr. Thomas, proceeding pro se despite being cautioned against it by the circuit
court, did not present any expert testimony or other evidence to impeach Mr. Houck’s
witnesses. Under cross-examination, Mr. and Mr. Thomas admitted that Mr. Houck used
the subject right of way “many times” since they purchased their property. Additionally,
Mr. Green, who sold Mr. Thomas the property, testified in his deposition that he told Mr.




                                             2


Thomas that Mr. Houck had the right to use the road.2 Mr. Thomas denied that this
conversation took place.

          After the close of Mr. Thomas’ case, Mr. Houck filed a renewed Motion for
Judgment as a Matter of Law pursuant to Rule 50 of the West Virginia Rules of Civil
Procedure asserting that based upon the evidence presented and the concessions by the
parties, there was no legally sufficient evidentiary basis for a reasonable jury to find for
Mr. Thomas with respect to the first three elements required to establish a prescriptive
easements as set forth in syllabus point one of O’Dell v. Stegall, 226 W. Va. 590, 703
S.E.2d 561 (2010).3 The court granted Mr. Houck’s Rule 50 motion on the last day of
trial, finding that

       the evidence is clear and convincing that Mr. Houck’s use of the alleged
       right of way was adverse for at least the period of 1981 to 1997, being more
       than a 10 year period, and that no reasonable juror could find to the
       contrary for purposes of accessing his family property. The Court finds and
       concludes that during that time, if not longer, Mr. Houck’s use of the
       alleged right of way was continuous and uninterrupted, in the manner that
       any owner of a right of way would use it, as demonstrated by clear and
       convincing evidence. The Court further notes that Mr. Thomas has
       conceded this point and that no reasonable juror could find to the contrary.
       The Court also finds and concludes that, by clear and convincing evidence,
       that no reasonable juror could find otherwise than that the owners of the
       property over which Mr. Houck’s alleged right of way travels had actual
       knowledge of Mr. Houck’s adverse use or that a reasonable owner would
       have noticed the use.



       2
        Mr. Green’s deposition testimony was admitted at trial because he was
unavailable to testify in person. Mr. Thomas did not object.
       3
           In O’Dell, this Court held that

       [a] person claiming a prescriptive easement must prove each of the
       following elements: (1) the adverse of another’s land; (2) that the adverse
       use was continuous and uninterrupted for at least ten years; (3) that the
       adverse use was actually known to the owner of the land, or so open,
       notorious and visible that a reasonable owner of the land would have
       noticed the use; and (4) the reasonably identified starting point, ending
       point, line, and width of the land that was adversely used, and the manner
       or purpose for which the land was adversely used.

                                             3


The circuit court, however, left the issue of the actual dimensions of the right of way for
the jury’s determination.4 Upon deliberation, the jury awarded special damages to Mr.
Houck in the amount of $5,331.48 and found that Mr. Houck was entitled to attorney’s
fees. Additionally, the circuit court made the finding that there was sufficient evidence in
the record to justify submission of punitive damages to the jury, because, “the jury could
conclude that [Mr. Thomas] was aware of [Mr. Houck’s] prescriptive easement and that
the erection of the fence was intentional, reckless and harmful, and/or that it exhibited
criminal indifference to civil obligations.” After a second round of deliberations, the jury
awarded Mr. Houck $15,000.00 in punitive damages.

        Mr. Thomas subsequently moved to set aside the verdict and moved for a new
trial, filing a handwritten letter and/or motion requesting a “retrial or mistrial,” and
“objecting” to the court’s order granting Mr. Houck Rule 50 judgment as a matter of
law.5 Mr. Thomas subsequently filed an additional motion for a new trial, making further
objections to Mr. Houck’s use of various survey documents as trial exhibits.6 On
November 20, 2015, the circuit court entered two orders denying both of Mr. Thomas’
motions. Upon Mr. Houck’s motion and commensurate with the jury’s determination
that Mr. Houck was entitled to attorney’s fees and costs, the circuit court awarded
attorney’s fees in the amount of $120,513.75 and $4,726.51 in costs. Mr. Thomas now
appeals the orders of the circuit court and requests a new trial.

       In his first assignment of error, Mr. Thomas asserts that the circuit court erred in
granting Mr. Houck’s Motion in Limine #4, ruling that he could not mention that Mr.
Houck’s use of the alleged prescriptive right of way was permissive.7 This issue,

       4
           The jury determined the dimensions to be 799 feet long and 14 feet wide.
       5
        Therein, he essentially asked the court to help promote settlement negotiations
between the parties on a location of the right-of-way, and alternatively, to re-examine the
testimony of the parties regarding Mr. Houck’s use of the right-of-way. He also asked
the court to re-examine Mr. Houck’s experts’ use of various surveys as exhibits at trial,
and asserted that the circuit court should have assisted him in procuring Mr. Way as a
witness at trial.
       6
        Although designated as one of the orders on appeal, none of Mr. Thomas’
assignments of error specifically address this issue; therefore, we decline to address it
herein.
       7
        Additionally, Mr. Thomas asserts error with respect to the circuit court’s ruling
on Motion in Limine #8, which he contends prevented him from presenting testimony
regarding Mr. Houck’s “non-use” of the right of way. However, our review of the record
indicates that Motion in Limine #8 does not pertain to this issue. Rather, it only refers to
references being made about Mr. Thomas’ disabled son. The record discloses no order by
                                              4


however, was not presented in his motion for a new trial and therefore should have been
appealed from entry of the September 23, 2015 judgment order. The record reflects that
Mr. Thomas failed to file a Notice of Appeal within the thirty day time frame required by
Rule 5(b) of the West Virginia Rules of Appellate Procedure. In footnote 1 of this Court’s
scheduling order, we stated “Petitioner presented a timely and complete notice of appeal
from orders of the Circuit Court of Berkeley County entered on November 20, 2015, and
December 10, 2015. The notice of appeal is not timely from the September 23, 2015
order.” See W. Va. R. App. P. 5(b) (“[w]ithin thirty days of entry of the judgment being
appealed, the party appealing shall file the notice of appeal and the attachments required
in the notice of appeal form contained in Appendix A of these Rules”); Cronin v. Bartlett,
196 W. Va. 324, 326, 472 S.E.2d 409, 411 (1996) (appeal dismissed when not filed in
time). Accordingly, the Court will not address the merits of this issue.

        In his second assignment of error, Mr. Thomas contends that the circuit court erred
in granting Mr. Houck’s Rule 50 Motion for Judgment as a Matter of Law8 based on the
testimony presented at trial.9 Specifically, Mr. Thomas appears to take issue with the
circuit court’s conclusion that Mr. Houck established “continuous” adverse use and did
not accord proper weight to his and his wife’s testimony that Mr. Houck did not
continuously adversely use the right of way after 1999 or 2000. Mr. Thomas contends
that the court’s finding that Mr. Houck had established a right of way “for at least the
period 1981 to 1997” was not dispositive of the “continuous use” element required in

the circuit court prior to the close of evidence which would have prevented Mr. Thomas
from arguing Mr. Houck’s “non-use” of the right of way. In fact, Mr. Thomas testified
about Mr. Houck’s use at trial.
       8
           Pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure,

       (1) If during a trial by jury a party has been fully heard on an issue and
           there is no legally sufficient evidentiary basis for a reasonable jury to
           find for that party on that issue, the court may determine the issue
           against that party and may grant a motion for judgment as a matter of
           law against that party with respect to a claim or defense that cannot
           under the controlling law be maintained or defeated without a favorable
           finding on that issue.
       9
         As noted above, Mr. Houck did not timely appeal the September 23, 2015
judgment order setting forth the issues upon which the circuit court granted judgment as a
matter of law. However, this argument was ostensibly presented as part and parcel of Mr.
Thomas’ motion for a new trial. Pursuant to Rule 50(c)(2) of the West Virginia Rules of
Civil Procedure, “[t]he party against whom judgment as a matter of law has been
rendered may file a motion for a new trial pursuant to Rule 59 not later than 10 days after
entry of the judgment.” Therefore we will address it on its merits as presented on appeal.

                                               5


O’Dell.10 Mr. Thomas contends that the actions of Mr. Houck from the period from 2000
to 2013 are critical, and that if Mr. Houck abandoned the use during the statutory period,
then the right would be lost. Mr. Thomas points to his own testimony indicating that Mr.
Houck used the road from 1997 to 2000 with permission, but did not use it after they had
a falling out in 2000. He alleges that there is a thirteen year period that Mr. Houck used
other means to access his property.

        With respect to the applicable standard of review of a denial of a motion for a new
trial, we have stated:

       As a general proposition, we review a circuit court’s rulings on a motion for
       a new trial under an abuse of discretion standard. In re State Public
       Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994). Thus,
       in reviewing challenges to findings and rulings made by a circuit court, we
       apply a two-pronged deferential standard of review. We review the rulings
       of the circuit court concerning a new trial and its conclusion as to the
       existence of reversible error under an abuse of discretion standard, and we
       review the circuit court’s underlying factual findings under a clearly
       erroneous standard. Questions of law are subject to a de novo review.

Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 104, 459 S.E.2d 374,
381 (1995).

       With respect to prescriptive easements, this Court has held generally that “[i]n
order to establish a right of way by prescription, all of the elements of prescriptive use,
including the fact that the use relied upon is adverse, must appear by clear and convincing
proof.” Syl. Pt. 2, Beckley Nat. Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767
(1935). As pertains specifically to the “continuous use” element of a prescriptive
easement, this Court has stated:

              For an adverse use to be “continuous,” the person claiming a
       prescriptive easement must show that there was no abandonment of the
       adverse use during the ten-year prescriptive period, or recognition by the
       person that he or she was using the land with the owner’s permission.
       Additionally, the adverse use need not have been regular, constant or daily
       to be “continuous,” but it must have been more than occasional or sporadic.
       All that is necessary is that the person prove that the land was used as often
       as required by the nature of the easement sought, and with enough
       regularity to give the owner notice that the person was a wrongdoer
       asserting an easement.


       10
            See footnote 3, supra.
                                             6


Syl. Pt. 8, O’Dell.

       Upon review of the record before us, we conclude that the circuit court’s findings
in its Rule 50 order are not clearly erroneous and, in fact, are supported by clear and
convincing evidence. The virtually uncontroverted evidence clearly establishes that Mr.
Houck used the right of way continuously and openly both prior to the Thomases
acquisition of the property and for a 10-year period thereafter. Mr. Thomas admitted
actual knowledge of Mr. Houck’s use of the right of way during the period at issue and
that he did so without permission.

       With respect to Mr. Thomas’ assertion that Mr. Houck abandoned the prescriptive
easement by failing to prove continuous and uninterrupted use of the roadway in the
years between 2000 and 2013, we find no merit to this argument. Mr. Houck provided
ample testimony that he continued to use the property between 2000 and 2013, and this
use was more than occasional or sporadic, with enough regularity to give notice that he
continued to assert an easement. Mr. Thomas presented no evidence of any overt action
on his part to assert ownership of the subject right of way, other than verbally objecting
to Mr. Houck’s use after an alleged falling out in or around 1999, until he erected a fence
over the right of way in 2013. As our law states, “mere unheeded requests, protests,
objections, or threats of prosecution or litigation by the landowner that the person stop
are insufficient to interrupt an adverse usage.” Syl. Pt. 9, O’Dell. We conclude that these
objections prior to Mr. Thomas’ erection of the fence were insufficient to interrupt Mr.
Houck’s adverse use of the right of way that had been ongoing for generations. It is
apparent from the testimony presented that none of Mr. Thomas’ actions caused Mr.
Houck to discontinue or interrupt his adverse use until 2013. Prior to that, Mr. Houck’s
use of the property was open and notorious so that a reasonable owner would have been
on notice of his adverse use. Based upon the testimony presented, Mr. Houck proved that
he had a right of way by prescription by clear and convincing evidence. The circuit court
properly concluded that the evidence was so clear and convincing that no reasonable
juror could have found to the contrary. Accordingly, we affirm the circuit court’s ruling
on this issue.

        Two of Mr. Thomas’ remaining three assignments of error likewise derive of the
circuit court’s denial of his motion for a new trial, but pertain more specifically to his
decision to proceed pro se in the underlying litigation. In general, Mr. Thomas contends
that because he now has a lawyer, he should get a new trial. He also contends, more
specifically, that the circuit court should have assisted him in securing the attendance of
Richard Way, a former co-defendant. Mr. Thomas represented to the trial judge that he
in fact subpoenaed Mr. Way, but he did not include a copy of the subpoena as part of the
record, nor did he verify proof of service. It appears from the record that the circuit court
reviewed a letter from Mr. Way’s counsel, but a copy of that letter is not part of the
designated record on appeal.


                                             7


       We note first that the record specifically reflects that Mr. Thomas was cautioned
by the Court about the advisability of procuring an attorney. However, as this Court has
held in State v. Blosser, 158 W. Va. 164, 167-68, 207 S.E.2d 186, 189 (1974), “‘[t]he
right of a party to appear in his own behalf and be heard in the courts is fundamental. It is
an inalienable right common to all, guaranteed both by the constitution of the state and
the Constitution of the United States.’” (quoting 5 M. J. Criminal Procedure § 41, p. 371
(1949)). When a pro se litigant exercises this right, we have recently agreed that

       a trial court bears the responsibility to ensure the litigant receives fair and
       balanced proceedings. Our Court has consistently recognized that cases
       should be decided on the merits, which may require “reasonable
       accommodation” of litigants, whether represented by counsel or not.
       “Reasonable accommodation” does not, however, require a court to cross
       the fine line between accommodating a litigant and advocating for the
       litigant. Nor does it require the Court to give legal counsel. Ultimately, the
       pro se litigant bears the responsibility and the consequences of his mistakes
       and errors.

Daye v. Plumley, No. 13-0913, 2014 WL 1345493, at *10 (W. Va. Apr. 4, 2014), cert.
denied, 135 S. Ct. 117, 190 L. Ed. 2d 89 (2014) (citations omitted).

        With respect to subpoenaing Mr. Way, the record demonstrates that the circuit
court invited Mr. Thomas to prove service of process on Mr. Way, upon which it would
compel his attendance. Mr. Thomas failed to do so. Moreover, aside from this singular
specific incident wherein he apparently expected greater assistance from the circuit court,
Mr. Thomas fails to even assert what alleged “errors” were occasioned by his pro se
status. We find that the circuit court’s actions requiring Mr. Thomas to present proof of
service of the subpoena were appropriate, as it was not required to act further in order to
ensure that Mr. Thomas received a fair and balanced proceeding. Accordingly, we affirm
the circuit court’s ruling on this issue.

       In his final assignment of error, Mr. Thomas alleges that the circuit court
improperly awarded Mr. Houck his attorney’s fees. Mr. Thomas asserts that attorney’s
fees are not recoverable absent a statutory or contractual provision and that because there
is no bad faith in this case, the award of attorney’s fees is improper. Mr. Thomas appears
to assert that because he did not litigate in bad faith—citing the circuit court’s refusal to
grant Mr. Houck’s motion for summary judgment or direct a verdict at the close of his
case—attorney’s fees are improper.
       Syllabus point three of Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365
S.E.2d 246 (1986) states: “There is authority in equity to award to the prevailing litigant
his or her reasonable attorney’s fees as ‘costs,’ without express statutory authorization,
when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive

                                             8


reasons.” The jury in this matter expressly found that Mr. Thomas “acted either in bad
faith or vexatiously or wantonly or intentionally or for oppressive reasons[.]” The jury
further found that Mr. Thomas intentionally blocked the right of way with the intent of
permanently depriving Mr. Houck of its use. We therefore conclude that the circuit court
committed no error in finding that Mr. Houck was entitled, in general, to an award of
attorney’s fees and costs.11

       We find it necessary nonetheless to examine further the amount of the attorney’s
fee award. The circuit court conducted a hearing, taking testimony from Mr. Houck’s
attorney, and reviewed affidavits and a statement of fees submitted in support thereof. In
setting forth its rationale for the fee award, the circuit court addressed each of the
elements set forth in syllabus point four of Pitrolo.12 After making these findings under
Pitrolo, the circuit court ruled that Mr. Houck was entitled to $120,513.75 in attorney’s
fees and $4,726.51 in legal costs.

      With respect to the Pitrolo factors, the circuit court found that 1) the evidentiary
burden for establishing a right of way, along with the time-intensive nature of this

      11
         But see Boyd v. Goffoli, 216 W. Va. 552, 569, 608 S.E.2d 169, 186 (2004) (“An
obvious purpose of awarding attorney fees and costs in a case involving fraud is that
intentional conduct such as fraud should be punished and discouraged. As reasoned by
the circuit court, however, Appellant has been sufficiently discouraged from future
fraudulent conduct by the sizable punitive damages awarded by the jury. As a result, an
award of attorney fees and costs is not necessary to perform this function.”).
      12
           In Syllabus Point 4 of Pitrolo, this Court held that

                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.

                                                9


particular case, factored heavily into the difficulty of the questions; 2) that Mr. McCune
is a skilled, 40-year litigator; 3) Mr. McCune was precluded from working on other
litigation files, including billable hour matters; 4) success was necessary for Mr. Houck
to pay Mr. McCune; 5) the jury trial was burdensome on Mr. McCune’s two-person firm;
6) Mr. McCune obtained excellent results, including punitive damages and fees; 7) Mr.
McCune and his associate have excellent reputations; 8) right-of-way disputes are
difficult and contentious with unlikely fee-shifting and punitives; 9) Mr. Houck is
satisfied with his counsel; and 10) fee awards in other reported cases were much greater.

       Although we do not take issue with the circuit court’s methodology in assessing
the individual Pitrolo factors, we cannot turn a blind eye to the facially exorbitant
attorney’s fee award resulting therefrom. See McAfee v. Boczar, 738 F.3d 81, 94 (4th Cir.
2013), as amended (Jan. 23, 2014) (“[W]e cannot ignore the pronounced
disproportionality between the verdict . . . and the fee award[.]”). As indicated, Mr.
Houck was awarded approximately $5,000.00 in compensatory damages and $15,000.00
in punitive damages. An attorney’s fee and cost award of approximately $125,000.00
represents a multiplier of twenty-five of the compensatory damages. This incongruence
necessarily compels us to examine the circuit court’s specific findings further.

        We recognize that “‘the 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).” Syl. Pt. 1, Heldreth v. Rahimian, 219 W. Va. 462,
637 S.E.2d 359 (2006). Nevertheless, we assess each factor with the backdrop that the
hours invested and resulting fee appear to this Court disproportionate for the nature and
complexity of the case and seek to determine if the circuit court’s analysis properly
justifies this apparent lack of proportion.

        First, with respect to the time and labor required and “difficulty” of the issue
presented, while we do not question the accuracy with which Mr. Houck’s attorneys kept
their time, we do question the necessity of expending 695 hours on an easement case
defended by a pro se litigant. Although the circuit court summarily concluded that Mr.
Thomas’ pro se status increased the time invested in this matter, we find nothing in the
circuit court’s order identifying in what way Mr. Thomas’ pro se status required
additional work than would ordinarily be necessitated by one’s opponent. The fact that
his filings were occasionally challenged or necessitated follow-up is not uncommon in
adversarial litigation. The fact that Mr. Thomas was pro se, however, certainly would
appear to suggest that he did not affirmatively generate the type of litigation activity one
would expect of an opposing attorney with the supporting resources of his or her firm.

      Further, with respect to the circuit court’s discussion of the difficulties of the high
burden of proof and unlikelihood of such a successful outcome, we find that the circuit

                                             10


court’s grant of judgment as a matter of law undercuts these conclusions. At the close of
evidence, the circuit court found the evidence so compelling and one-sided that it entered
judgment as a matter of law. As the recitation of facts above reflects, Mr. Houck had an
abundance of evidence that he satisfied the elements for a prescriptive easement and Mr.
Thomas offered virtually nothing to controvert that evidence. As such, the facts of the
case as presented by Mr. Houck himself and the circuit court appear to suggest that,
despite Mr. Thomas’ refusal to accept the clear legal implications of the evidence, Mr.
Houck’s case itself was fairly straight-forward and met with little to no resistence at
trial.13

       The circuit court’s order concedes that easements are not novel, Mr. Houck and
his counsel had no long-standing professional relationship, and that fee-shifting in
prescriptive easement cases are uncommon. Moreover, the attorney fee awards used for
comparison by the circuit court involve far more complex cases, such as consumer credit
actions. In sum, we find that the circuit court’s conclusions with respect to the above
factors seem self-fulfilling and are belied by the manner in which the underlying action
unfolded as per the parties. We therefore conclude that the circuit court abused its
discretion in assessing the Pitrolo factors and remand for further proceedings and

       13
          We note, also, that the circuit court’s assessment of whether the fee was
“customary,” was inadequately justified in the order. The circuit court found that
because Mr. Houck’s attorneys charged the same hourly rates charged to all of their
billable hour fixed rate cases, the fee was “customary.” However, this Pitrolo factor
seeks not to ascertain whether hourly rates and aggregate fees are “customary” for the
particular attorney seeking fees. Rather, this factor seeks to determine whether such fee
is customary for “similar legal services” rendered by other attorneys. See Syl. Pt. 3,
Stafford v. Bishop, 98 W.Va. 625, 127 S.E. 501 (1925) (requiring court to consider “usual
and customary charges for like services in the same vicinity”); see also Rule 1.5(a)(3) W.
Va. Rules of Prof. Cond. (prohibiting unreasonable fees and requiring consideration of
“fee customarily charged in the locality for similar legal services” to determine
reasonableness); Williston on Contracts, § 62:8, “Attorney's right to be compensated for
services—Reasonableness of fee” (4th ed.) (observing that “the amount commonly paid
an attorney for similar duties in a similar locality” is commonly designated
reasonableness factor).

       In spite of the circuit court’s order’s deficiency in that regard, the record reveals
that Mr. Houck’s attorney submitted an affidavit by a local lawyer engaged in similar
practice who opined, under oath, that the hourly rate was customary. Therefore, we find
no reversible error with respect to this particular element of the Pitrolo analysis. We
likewise do not take issue with the circuit court’s assessment of the experience and skill
of Mr. Houck’s attorneys.


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findings by the circuit court, as needed, to ascertain a reasonable attorney’s fee and cost
award.

        For all of the foregoing reasons, we affirm the November 20, 2015, orders of the
circuit court. However, we reverse the December 10, 2015, order of the circuit court and
remand for further proceedings consistent herewith.

                                   Affirmed in part, reversed in part, and remanded.

ISSUED: November 16, 2016

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Allen H. Loughry II


Chief Justice Ketchum, dissenting in part and concurring in part:

              The amount of the lawyer fee awarded in this implied easement case is
outrageous.

              The circuit court awarded a lawyer fee of $120,513.75 to the winning party.
There is no implied easement case or deed case in West Virginia, much less Berkeley
County, where a lawyer charged his client near the fee that the circuit court is requiring
the losing party to pay the plaintiff’s lawyer. Lawyers do not receive a six- figure fee or
even a five-figure fee in implied easement cases or deed cases. The $120,513.45 lawyer
fee awarded in this case is excessively unreasonable.

              In addition, the plaintiff was awarded punitive damages approximately
three times the amount of the compensatory damages awarded. Punitive damages are to
punish a losing party that has acted in bad faith, vexatiously, wantonly or for oppressive
reasons. We have previously held that an obvious purpose of awarding attorney fees
against a party who acted in bad faith, vexatiously, wantonly, or for oppressive reasons is
to punish and discourage this type of conduct. Boyd v. Goffoli, 216 W.Va. 552, 608
S.E.2d 169 (2004). The punitive damage award has sufficiently punished and discouraged
the defendant from repeating this type of conduct in the future. As a result, an award of
attorney fees and costs was not necessary to perform this function. Boyd, supra.

              I dissent because attorney fees should not have been awarded, and if the
award of attorney fees was warranted, the amount awarded was oppressively
unreasonable.

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Justice Benjamin, concurring in part and dissenting in part:

              I concur with the majority’s decision insofar as it affirms the trial court’s
orders. However, I dissent with respect to the majority’s reversal of the trial court’s
finding regarding the reasonableness of the attorney’s fees award.

               In Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959), we explained,
“[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.” Id. at 478-79, 109 S.E.2d at 17, syl. pt. 3, in part. In awarding attorney’s
fees in this case, the trial judge considered each of the twelve factors listed in Syllabus
Point 4 of Aetna Cas. & Sur. Co. v. Pitrolo, 176 W.Va. 190, 342 S.E.2d 156 (1986).
Although the majority finds that the trial court erred in his consideration of factor five,
“the customary fee,” I believe that the trial court’s order, which contains an extensive
analysis of the Pitrolo factors, sufficiently supports its reasoning.

                The trial court found that the hourly rate charged by the plaintiff’s lawyer
was a “customary hourly rate.” Senior partner, Mr. McCune, billed his time at $240/hr.
Mr. Tsiatsos’s time as junior partner was billed at $180/hr. Mr. McCune has been a
skilled and successful litigator, often litigating land disputes, for more than 40 years. Mr.
Tsiatsos has practiced for eight years and has demonstrated his skills before local judges.
Those were the rates charged to all billable hour fixed rate cases by Mr. Houck’s counsel
at the time this case began in 2013. Para-professional time was billed at $75/hr. By the
time the case concluded, Mr. Houck’s counsel’s office had billed a total of 695 hours.
The trial court found that proof of time spent was well-documented, and that the time
spent and the rates are reasonable and customary given the circumstances. Specifically,
the trial court concluded,

       The evidence showed that this case involved interviewing dozens of
       witnesses regarding prior use, numerous visits to the property, consulting
       on many occasions with surveyors and researching various issues related to
       easement law. The fact that Mr. Thomas decided to proceed pro se also
       added to the difficulty. Mr. Thomas often did not file appropriate and
       timely documents, and with respect to documents actually filed, Mr.
       Houck’s counsel often received documents that required objection or other
       actions that would have been unnecessary had the documents been filed by
       counsel. The trial court expressly cautioned Mr. Thomas about the
       importance of having his own counsel. Mr. Thomas, as was his right, chose
       to proceed without counsel. Had Mr. Thomas obtained counsel, it is likely


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       that his counsel would have impressed upon Mr. Thomas the need to
       remove his fence and to settle the case.

              Although Mr. Thomas now claims on appeal that the amount of fees is
unreasonable, he does not identify any specific deficiency in the trial court’s reasoning,
nor does he claim that the trial court’s Pitrolo analysis was faulty in any way. Even now,
Mr. Thomas does not challenge any specific charge in Mr. Houck’s counsel’s fee
statement. Furthermore, the parties tried this case to a jury for three days. The jury trial,
and the eighteen months of litigation before it, was costly to Mr. Houck. For example,
Mr. Houck and his attorneys had to track down and interview witnesses who lived as far
away as Tennessee; visit the property with experts on numerous occasions; take
additional time to attempt to decipher and address Mr. Thomas’s pro se pleadings and
other filings; address procedural irregularities caused by Mr. Thomas’s decision to
proceed pro se; and then make all the necessary pretrial and trial preparations and filings.
This case took the amount of time that it did specifically because of Mr. Thomas’s
actions.

               The trial court, who is vested with a wide discretion in determining the
amount of attorney’s fees, carefully reviewed the evidence and made specific findings
justifying its award. Because there was no clear abuse of discretion committed by the
trial court, I hesitate to now disturb that finding on appeal. For these reasons, I
respectfully concur and dissent.




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