          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                 January 2014 Term
                                 _______________                          FILED
                                                                      June 11, 2014
                                                                       released at 3:00 p.m.
                                   No. 13-0827                       RORY L. PERRY II, CLERK
                                                                   SUPREME COURT OF APPEALS
                                 _______________                        OF WEST VIRGINIA



              STATE OF WEST VIRGINIA, EX REL. LINDA YORK,

                               Petitioner


                                         v.

                  WEST VIRGINIA REAL ESTATE APPRAISER

                  LICENSING AND CERTIFICATION BOARD,

                                Respondent


       ____________________________________________________________

                     PETITION FOR WRIT OF PROHIBITION

                             WRIT GRANTED
       ____________________________________________________________

                             Submitted: January 22, 2014

                                Filed: June 11, 2014



Carte P. Goodwin, Esq.                        Patrick Morrisey, Esq., Attorney General
Johnny M. Knisely II, Esq,                    Kelli D. Talbott, Deputy Attorney General
Goodwin & Goodwin, LLP                        Darlene Ratliff Washington, Esq., Senior
Charleston, West Virginia                     Assistant Attorney General
Counsel for the Petitioner                    Charleston, West Virginia
                                              Counsel for Respondent



JUSTICE BENJAMIN delivered the Opinion of the Court.

JUSTICE KETCHUM concurs and reserves the right to file a concurring opinion.
                              SYLLABUS BY THE COURT



              1.     “A writ of prohibition will not issue to prevent a simple abuse of

discretion by a trial court. It will only issue where the trial court has no jurisdiction or

having such jurisdiction exceeds its legitimate powers.” Syl. pt. 2, State ex rel. Peacher

v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).



              2.     “In determining whether to entertain and issue the writ of prohibition

for cases not involving an absence of jurisdiction but only where it is claimed that the

lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1)

whether the party seeking the writ has no other adequate means, such as direct appeal, to

obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a

way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly

erroneous as a matter of law; (4) whether the lower tribunal’s order is an oft repeated

error or manifests persistent disregard for either procedural or substantive law; and (5)

whether the lower tribunal’s order raises new and important problems or issues of law of

first impression. These factors are general guidelines that serve as a useful starting point

for determining whether a discretionary writ of prohibition should issue. Although all

five factors need not be satisfied, it is clear that the third factor, the existence of clear

error as a matter of law, should be given substantial weight.” Syl. pt. 4, State ex rel.

Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).




                                              i
              3.       “Where prohibition is sought to restrain a trial court from the abuse

of its legitimate powers, rather than to challenge its jurisdiction, the appellate court will

review each case on its own particular facts to determine whether a remedy by appeal is

both available and adequate, and only if the appellate court determines that the abuse of

powers is so flagrant and violative of petitioner’s rights as to make a remedy by appeal

inadequate, will a writ of prohibition issue.” Syl. pt. 2, Woodall v. Laurita, 156 W. Va.

707, 195 S.E.2d 717 (1973).



              4.       In adjudicating a contested case concerning the revocation or

suspension of a licensed real estate appraiser’s license to perform appraiser duties, the

West Virginia Real Estate Appraiser Licensing and Certification Board must follow the

procedural requirements set forth in Chapter 30 of the West Virginia Code, as well as the

contested case hearing procedure set forth in Title 190, Series 4, of the West Virginia

Code of State Rules.




                                               ii
Justice Benjamin:


              This original proceeding in prohibition is before this Court upon the

petition of Linda York, a licensed real estate appraiser, who asks this Court to direct the

West Virginia Real Estate Appraiser Licensing and Certification Board (“the Board”) to

dismiss with prejudice the pending disciplinary complaints filed against her. Some of

these complaints have their origins in actions taken by the petitioner as far back as 2001.

The petitioner steadfastly denies that she engaged in improper, wrongful or deficient

conduct in her work as an appraiser. The petitioner also asks for an award of attorney

fees. Upon review of the petition, the limited response of the Board,1 the arguments of




       1
         The Board’s initial response to the Petitioner’s Petition was filed on September
11, 2013, and consisted simply of a motion to dismiss for failure to give notice of the
claim, pursuant to W. Va. Code 55-17-1, et seq. (2002). The petitioner requested a ruling
on this motion from this Court and that it be given an extension of time to file a response
in opposition to the Board’s motion. This Court deferred ruling on the motion, and
issued a Rule to Show Cause directing the respondent to show cause why the Writ should
not be granted.

       We observe that the respondent Board never replied in a substantive manner to the
petitioner’s Petition for Writ of Prohibition, despite the clear requirements of our rules of
appellate procedure. W. Va. R.App.P. 10(j) states

              The failure to file a brief in accordance with this rule may
              result in the Supreme Court refusing to consider the case,
              denying oral argument to the derelict party, dismissing the
              case from the docket, or imposing such other sanctions as this
              Court may deem appropriate.

                                                                             (continued . . .)

                                              1

the parties and the applicable law, this Court is of the opinion that the Board exceeded its

jurisdiction by failing to conduct an administrative hearing on the complaints. The

Board’s failure to do so was in clear violation of State statutory and rule provisions. As

such, we grant the writ as requested, and furthermore direct that the Board pay the

petitioner’s reasonable attorney fees and costs.



                                              I.


                   FACTUAL AND PROCEDURAL BACKGROUND


               The petitioner, Linda York, is a licensed real estate appraiser. The practice

of real estate appraisal is regulated by the respondent, West Virginia Real Estate

Appraiser Licensing and Certification Board, pursuant to W. Va. Code § 30-38-1, et seq.

(2001). The Board consists of nine members, four of whom must be certified real estate

appraisers with at least five years’ experience in appraisal as a principal line of work.2

The Board itself is subject to oversight by the Federal Financial Institutions Examination

Council (“Federal Council”) pursuant to 12 U.S.C. § 3331, et seq.




In view of this Rule, the Board’s oral argument was limited by this Court to an
explanation of why it did not file a responsive brief. Oral argument on the substantive
merits of petitioner’s case was not permitted pursuant to this Rule.
       2
           Since 2006, the petitioner has served as a member of the Board in this capacity.



                                              2

             In 2001, the petitioner was appointed to review a 1999 appraisal performed

by another licensed appraiser, Barbara McCracken.       The petitioner’s review of Ms.

McCracken’s appraisal was the basis of a complaint before the Board filed against Ms.

McCracken. The Board subsequently appointed two other independent appraisers to

perform a retrospective appraisal on the same property. The complaint was heard by a

hearing examiner, who recommended that Ms. McCracken’s appraisal license be

suspended. The Board agreed, and suspended Ms. McCracken’s license for one year.

She subsequently appealed the Board’s decision to the Kanawha County Circuit Court,

which reversed the Board’s decision and reinstated her license in 2005.



             In 2008, Ms. McCracken filed complaints with the Board against the

petitioner, as well as the two other appraisers who reviewed her work in 2001. This

complaint was numbered 08-015.        On May 22, 2008, the Board dismissed these

complaints, acknowledging that appraisers generally kept records of their work for five

years and that there was no way to investigate the complaint.3 Soon thereafter, on July

10, 2008, the Board received an anonymous complaint against the petitioner regarding an

      3
         The Board relied upon the Uniform Standards of Professional Appraisal Practice
(“USPAP”) rule that requires maintenance of records for five years. The USPAP is the
work of The Appraisal Foundation, which was established in 1987. The purpose of The
Appraisal Foundation, as contained in its mission statement, is “promoting
professionalism and ensuring public trust in the valuation process. . . through the
promulgation of standards, appraiser qualifications and guidance regarding valuation
methods and techniques.”



                                            3

appraisal she had performed in October of 2003. This complaint, numbered 08-024, was

dismissed by the Board on December 11, 2008, after the Board determined that there was

no probable cause to believe that a disciplinary violation had occurred.



              On June 10, 2011, the Federal Council undertook a compliance review of

the Board’s activities. In its review, the Federal Council expressed concerns with the

Board’s time limitations for reviewing complaints, as well as the procedures in place for

reviewing complaints that involved members of the Board. In February 11, 2012, in an

attempt to satisfy the concerns of the Federal Council, the Board agreed that all

complaints over five years old would be investigated instead of summarily dismissed.4



              Shortly after this 2012 review of the Federal Council’s report of the review,

the Board purported to reopen the two 2008 complaints regarding these 2001 and 2003

appraisals filed against the petitioner. The Board undertook to have an independent

appraiser review both of the old appraisals, and based upon that review, sought to

discipline the petitioner. The Board offered to enter into a consent decree with the

petitioner. The petitioner rebuffed this effort and challenged the Board’s ability to reopen


       4
          There does not appear to be any policy in place by rule or regulation that
regulates the time limitations for complaints. The minutes of the May 22, 2008, Board
meeting reflect that the previous practice of dismissing complaints that were filed greater
than five years after the appraisal was merely a practice, not a formal policy.



                                             4

the 2008 complaints in any fashion. To date, no formal action has been taken on either

complaint.



              Despite the lack of activity on the 2008 complaints, the Board in 2012

presented the petitioner with another proposed consent decree, which would have

resolved the 2008 complaints as well as a new complaint, numbered 11-017, that the

Board had received against the petitioner. Once again, the petitioner refused to enter into

this consent decree. In correspondence between the Board’s attorney and the petitioner’s

attorney, the Board represented that the complaints would be set for a hearing. The

petitioner and her counsel agreed to the hearing and a proposed hearing was agreed to be

scheduled, contingent upon a formal complaint being filed against the petitioner. To

date, this formal complaint has never been filed, no hearing has ever been set and these

matters remain unresolved.



              On July 12, 2012, the Board informed the petitioner that yet another

compliant had been received against her, numbered 12-015. On September 13, 2012,

without holding a hearing, the Board voted to initiate disciplinary proceedings against the

petitioner. Once again, the petitioner objected to the lack of a hearing and requested

minutes of the Board’s meeting in which the Board voted to discipline the petitioner. She

argued that the Board was without authority to discipline an appraiser without a hearing.




                                            5

Despite repeated correspondence between petitioner’s counsel and the Board’s attorney,

no further action has been taken on that complaint.



              In October of 2012, the petitioner was again informed that another

complaint had been filed against her. The complaint was numbered 12-023.              The

petitioner, through her counsel, sought to resolve these matters and initiated discussions

with the Board’s attorney toward resolving these complaints.5 These discussions did not

lead to an agreement. No hearing was set.



              The petitioner filed this Petition for Writ of Prohibition on August 14,

2013, seeking to stop any disciplinary proceedings against her on the part of the Board.

                                            II.


                              STANDARD OF REVIEW


              This Court has explained the standard for issuance of a writ of prohibition

as follows:




       5
          During the pendency of these complaints, the Board was represented by at least
five separate assistant attorneys general. On June 12, 2013, the Federal Council’s
compliance review report noted that the Board did not receive consistent legal resources
because of this turnover, which contributed to delays in resolving complaints. The report
also noted that at the time of the review, there were thirty-four pending complaints,
fifteen of which had been pending for over a year.



                                            6

                        A writ of prohibition will not issue to prevent a simple
                abuse of discretion by a trial court. It will only issue where
                the trial court has no jurisdiction or having such jurisdiction
                exceeds its legitimate powers.

Syl. pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).


Further,

                        In determining whether to entertain and issue the writ
                of prohibition for cases not involving an absence of
                jurisdiction but only where it is claimed that the lower
                tribunal exceeded its legitimate powers, this Court will
                examine five factors: (1) whether the party seeking the writ
                has no other adequate means, such as direct appeal, to obtain
                the desired relief; (2) whether the petitioner will be damaged
                or prejudiced in a way that is not correctable on appeal; (3)
                whether the lower tribunal’s order is clearly erroneous as a
                matter of law; (4) whether the lower tribunal’s order is an oft
                repeated error or manifests persistent disregard for either
                procedural or substantive law; and (5) whether the lower
                tribunal’s order raises new and important problems or issues
                of law of first impression. These factors are general
                guidelines that serve as a useful starting point for determining
                whether a discretionary writ of prohibition should issue.
                Although all five factors need not be satisfied, it is clear that
                the third factor, the existence of clear error as a matter of law,
                should be given substantial weight.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). Further,

we have held,

                Where prohibition is sought to restrain a trial court from the
                abuse of its legitimate powers, rather than to challenge its
                jurisdiction, the appellate court will review each case on its
                own particular facts to determine whether a remedy by appeal
                is both available and adequate, and only if the appellate court
                determines that the abuse of powers is so flagrant and
                violative of petitioner’s rights as to make a remedy by appeal
                inadequate, will a writ of prohibition issue.

                                                7
Syl. pt. 2, Woodall v. Laurita, 156 W. Va. 707, 195 S.E.2d 717 (1973).



                                           III.


                                      ANALYSIS



                                  A. Writ of prohibition

             The petitioner argues that she is entitled to a writ of prohibition because the

Board lacked the authority to reopen the previously dismissed 2008 complaints, and that

notwithstanding that lack of authority and further, in regard to the remaining complaints,

the Board grossly abused and exceeded its legitimate powers.



             We first address the contention that the Board was without authority to

reopen or reinstate the 2008 complaints that were duly dismissed. The Board was

established by W. Va. Code § 30-38-1, et seq., to regulate the practice of real estate

appraisal. W. Va. Code § 30-38-7 (2001) states that among its duties, the Board is

empowered to censure, suspend or revoke appraiser licenses, and to hold hearings,

meetings and examinations.




             In furtherance of its statutory mandate, the Board promulgated a series of

“Investigative and Hearing Procedures” through procedural rules, as contained in Title

190 of the W. Va. Code of State Rules, i.e., W. Va. Code R. § 190-4-1 (2012), et seq.

                                            8

While the rules provide for an informal procedure for the resolution of disciplinary

complaints, W. Va. Code R. § 190-4-6 states that any contested case shall have a hearing

“conducted in accordance with W. Va. Code § 29A-5-1 (W. Va. Administrative

Procedures Act) and the board’s rules.” Specifically, the rules establish a procedure for

the resolution of contested complaints, including the issuance of a notice of hearing by

the Board; the issuance of a statement of charges by the Board, which sets forth the acts

or omissions with which the appraiser is charged, including the standards of professional

practice and professional conduct rules or other Board rules violated; as well as the right

of the appraiser to file an answer to the charges.       Pre-hearing discovery and other

procedures are also contemplated. W. Va. Code § 29A-5-1 (1964). Absent from the

Investigative and Hearing Procedures is a timeframe in which complaints should be

resolved.



              Also absent in the regulations is the ability and jurisdiction of the Board to

reopen previously adjudicated or resolved complaints. In regard to the complaints filed

in 2008, the Board acted by dismissing them. We see no authorization for the so-called

“reopening” of the previously dismissed complaints in the manner utilized by this Board.

The Board’s attempt to reopen the previously dismissed 2008 complaints is neither

supported by the Board’s procedural rules nor by statutory authority. The use of writ of

prohibition is a remedy for a trial court or tribunal acting beyond its powers, as we stated

in Syllabus point 2 of Woodall v. Laurita, 156 W. Va. 707, 195 S.E.2d 717 (1973):


                                             9

                    Where prohibition is sought to restrain a trial court
             from the abuse of its legitimate powers, rather than to
             challenge its jurisdiction, the appellate court will review each
             case on its own particular facts to determine whether a
             remedy by appeal is both available and adequate, and only if
             the appellate court determines that the abuse of powers is so
             flagrant and violative of petitioner’s rights as to make a
             remedy by appeal inadequate, will a writ of prohibition issue.


The Board’s actions being clearly erroneous as a matter of law, we conclude that a writ of

prohibition should issue against the Board.



             As to the remaining complaints filed against the petitioner, the petitioner

disputed the charges. Despite the clear direction and stated procedure allowing for a

hearing and other procedures for contesting a complaint, the Board has failed to allow the

petitioner to seek redress for these complaints. We observe that W. Va. Code § 30-1-5(c)

(2005) contains a general time frame for all boards regulated by Chapter 30 of the Code,

including the Board. This section states,



                     Every board referred to in this chapter has a duty to
             investigate and resolve complaints which it receives and shall,
             within six months of the complaint being filed, send a status
             report to the party filing the complaint by certified mail with a
             signed return receipt and within one year of the status report’s
             return receipt date issue a final ruling, unless the party filing
             the complaint and the board agree in writing to extend the
             time for the final ruling.




                                              10

All of these complaints are outside of the one-year general time frame contained in W.

Va. Code § 30-1-5(c).



              In State ex rel. Sheppe v. West Virginia Board of Dental Examiners, 147 W.

Va. 473, 128 S.E.2d 620 (1962), we addressed the failure of the Board of Dental

Examiners to take a required action relating to a licensing test to become a licensed

orthodontist within a reasonable time period.. We held in syllabus point 2 of Sheppe that

                     [i]n the absence of a specific time limit, the failure of a
              state board or agency to take decisive action within a
              reasonable time, upon a matter properly before it, will be
              assumed to be a refusal of the action sought.


              Recently, in State ex rel. Fillinger v. Rhodes, 230 W. Va. 560, 741 S.E.2d

118 (2013), we were presented with the case of a registered nurse against whom the

West Virginia Board of Examiners for Registered Professional Nurses (“Nursing Board”)

had lodged disciplinary complaints. Although these complaints were filed in 2008 and

2009 no hearing was held on these complaints at the time this Court’s original

jurisdiction in mandamus was invoked. Similar to the factual scenario in the present

case, the Nursing Board sent proposed consent decrees to the registered nurse against

whom the complaints were lodged. Unlike the case at bar, hearings were scheduled to

address the complaints, but these hearings were continued a number of times. We held in

syllabus point 2 of Fillinger:

                    In adjudicating a contested case concerning the
              revocation or suspension of a nurse’s license to practice

                                             11
              registered professional nursing, the West Virginia Board of
              Examiners must follow the procedural requirements set forth
              in Chapter 30 of the West Virginia Code, as well as the
              contested case hearing procedure set forth in Title 19, Series
              5, of the West Virginia Code of State Rules.

              In the present case, the petitioner argues that the Board is attempting to act

in excess of its legitimate powers by not following procedure in a reasonable time to

allow her to contest the allegations set forth in the more recent complaints. We agree.



              Applying the five factors enumerated in Hoover to the more recent

complaints, we find that the petitioner has no other adequate means, such as a direct

appeal, to obtain the desired relief. At present the Board has failed to set any of the

newer complaints for hearing. Therefore, there is no final order from which an appeal

could be sought. The Board’s resolution to date has been simply to seek entry of consent

orders. These efforts have been consistently rebuffed by the petitioner. This conduct on

the part of the Board is comparable to the conduct exhibited by the Nursing Board in

Fillinger, wherein we stated that petitioner therein “has a right to fair treatment in

disciplinary proceedings before a licensing board[.]” 230 W. Va. at 565, 741 S.E.2d at

123. As was the case in Fillinger, the delay in affording the petitioner a hearing has

denied “the petitioner an opportunity to be heard in opposition to the allegations against

her.” Fillinger at 567, 741 S.E.2d at 125. The Board’s actions are in excess of its

jurisdiction, in that the complaints have not been handled in a timely fashion, as required

W. Va. Code 30-1-5(c), the Board has failed to follow the mandates of its own procedural


                                            12

rules in W.Va. Code R. § 190-4-1, et seq., and the requirements set forth in Chapter 30 of

the W. Va. Code governing this Board. We find that a writ of prohibition is therefore

appropriate under these circumstances. In so finding, we hold that in adjudicating a

contested case concerning the revocation or suspension of a licensed real estate

appraiser’s license to perform appraiser duties, the West Virginia Real Estate Appraiser

Licensing and Certification Board must follow the procedural requirements set forth in

Chapter 30 of the West Virginia Code, as well as the contested case hearing procedure set

forth in Title 190, Series 4, of the West Virginia Code of State Rules.




                                     B. Attorney fees



              The petitioner has requested the payment of her attorney fees, costs and

expenses by the Board, in light of its violation of her rights to defend against these

misconduct complaints. The petitioner argues that the Board’s conduct was excessively

vexatious, and warrants the payment of these fees, costs and expenses. This Court has

approved the award of attorney fees in cases involving delays in adjudicating a litigant’s

driving privileges within the State (see, e.g. Miller v. Hare, 227 W. Va. 337, 342, 708

S.E.2d 531, 536 (2011) ). This Court has also recognized that “[t]here 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 reasons” (see Bd. of Review of Bureau of Emp’t

                                             13

Programs v. Gatson, 210 W. Va. 753, 755, 559 S.E.2d 899, 901, quoting Syl. pt. 3 of

Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365 S.E.2d 246. Trozzi v. Bd. of Review

of W. Va. Bureau of Emp’t Programs, 214 W. Va. 604, 607, 591 S.E.2d 162, 165 (2002).



              In the case before us, the petitioner was never afforded an opportunity to

contest the allegations of misconduct levied against her by the very board on which she

served as a member. From 2008, and continuing to date, the petitioner’s professional

reputation has been under a cloud of doubt and suspicion occasioned by these long-

pending charges. The petitioner has never been afforded the basic opportunity afforded

to her by the Administrative Procedures Act, or the Board’s own rules and statutes to

contest the Board’s actions and to challenge the proposed discipline. Instead of setting

this matter for a hearing, the Board instead continued to present proposed consent decrees

and acted to pursue additional charges against the petitioner. This conduct rises to the

level warranting an award of reasonable attorney fees and costs to the petitioner from the

respondent Board for the time period between the reopening of the 2008 complaints to

the conclusion of this proceeding.6


       6
           See, e.g., Syl. pt. 4, Hollen v. Hathaway Electric, Inc., 213 W. Va. 667, 584
S.E.2d 523 (2003) (“ ‘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
                                                                             (continued . . .)

                                             14

                                             IV.


                                      CONCLUSION


              For the foregoing reasons, we grant the requested writ of prohibition. The

Board is hereby prohibited from taking any disciplinary action against the petitioner as it

relates to the pending complaints, numbered 08-015, 08-023, 11-017, 12-015 and 12-023,

and shall forthwith dismiss each complaint. The Board is also ordered to pay to the

petitioner and her counsel reasonable attorney fees and costs associated with the award of

this writ, consistent with the directions contained within this opinion.



                                                                               Writ granted.




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).”).



                                             15

