Fairmont Tool, Inc. v. Adam J. Davis, Individually and on Behalf of Others Similarly Situated

• Court: West Virginia Supreme Court
• Decided: November 22, 2021
• Docket: 20-0684
• Status: Published

Opinion

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2021 Term FILED _______________ November 22, 2021 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK No. 20-0684 SUPREME COURT OF APPEALS _______________ OF WEST VIRGINIA

FAIRMONT TOOL, INC., Petitioner

v.

ADAM J. DAVIS, Individually and on Behalf of Those Similarly Situated, Respondent

________________________________________________________

Appeal from the Circuit Court of Marion County The Honorable David R. Janes, Judge Civil Action No. 17-C-163

AFFIRMED

Submitted: October 6, 2021 Filed: November 22, 2021

J. Robert Russell, Esq. James B. Stoneking, Esq. David L. T. Butler, Esq. Jonathan R. Marshall, Esq. Shuman McCuskey Slicer PLLC Bailey & Glasser LLP Morgantown, West Virginia Charleston, West Virginia Counsel for the Petitioner Matthew B. Hansberry, Esq. Hansberry Law Office, PLLC Bridgeport, West Virginia Counsel for the Respondent

JUSTICE HUTCHISON delivered the Opinion of the Court. CHIEF JUSTICE JENKINS and JUSTICE ARMSTEAD dissent and reserve the right to file separate opinions. SYLLABUS BY THE COURT

1. “A circuit court’s entry of summary judgment is reviewed de novo.”

Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).

2. “Interpreting a statute or an administrative rule or regulation presents

a purely legal question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v.

State Tax Dep’t of W. Va., 195 W. Va. 573, 466 S.E.2d 424 (1995).

3. Under the Wage Payment and Collection Act, West Virginia Code §§

21-5-1(o) (2021) and 21-5-3 (2021), an “assignment of wages” is the transfer of the right

to collect future wages from the wage earner to the employer. An assignment of wages is,

in effect, any amount that an employer withholds from an employee’s wages that does not

meet the Act’s definition of “deductions” in West Virginia Code § 23-5-1(g) (2021).

4. “Based on the legislative history of the Wage Payment and Collection

Act, W.Va. Code, 21-5-1 et seq[.] [1979], compliance with all requirements of the Act is

mandatory when assigning an employee’s wages.” Syl. pt. 4, Jones v. Tri-County Growers,

Inc., 179 W. Va. 218, 366 S.E.2d 726 (1988).

5. “A circuit court is afforded wide discretion in determining whether or

not a party should be relieved of a stipulation, and such decision should not be set aside

absent an abuse of discretion.” Syl. pt. 6, W. Va. Dep’t of Transportation v. Veach, 239

W. Va. 1, 799 S.E.2d 78 (2017).

i 6. “An employee who succeeds in enforcing a claim under W. Va. Code

Chapter 21, article 5 should ordinarily recover costs, including reasonable attorney fees

unless special circumstances render such an award unjust.” Syl. pt. 3, Farley v. Zapata

Coal Corp., 167 W. Va. 630, 281 S.E.2d 238 (1981).

7. “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.” Syl. pt. 4, Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d

156 (1986).

ii HUTCHISON, Justice:

In this appeal from the Circuit Court of Marion County, we consider a series

of orders entered under the West Virginia Wage Payment and Collection Act, W. Va. Code

§ 23-5-1 to -18 (“the WPCA”). The Legislature designed the WPCA to require an

employer to regularly pay employees their full wages and restrict an employer’s ability to

withhold a portion of employees’ paychecks. In this appeal, we examine one such heavily

regulated withholding: the authorized wage assignment. For an employee to properly

assign wages to an employer, the WPCA specifies that there must be a writing that meets

a list of conditions, and in the absence of any one of these conditions the assignment is

invalid and unenforceable. For instance, the writing must identify the total amount due to

and collectible by the employer through withholdings. The writing must contain statements

that the assignment will not be in effect for more than one year and that three-fourths of

the employee’s wages are exempt from the assignment. And, the writing must show the

assignment was accepted and signed by the employer. See W.Va. Code § 21-5-3(e) (2021).

Prior to June 17, 2021, the WPCA also required written assignments to be notarized. See

W.Va. Code § 21-5-3(e) (2008, 2015, and 2018).

In the instant case, an employer made withholdings from the wages of its

employees that met the WPCA’s definition of an assignment, but never procured from its

employees a writing that complied with the conditions set in the WPCA. After an employee

filed a class-action suit to recoup those withholdings, the employer entered into a written

agreement stipulating to the method the circuit court would use to calculate certain

1 damages if the circuit court declared the withholdings violated the WPCA. Thereafter, the

circuit court entered an order finding the employer liable for violating the WPCA. In light

of the stipulations on damages, the circuit court later entered orders that awarded the

employees the wages improperly taken from their paychecks, liquidated damages,

attorney’s fees, and costs. The employer now appeals the circuit court’s orders.

As we discuss below, we find no error and affirm the circuit court’s rulings.

I. Factual and Procedural Background

Defendant Fairmont Tool, Inc., provides services to the oil and gas industry,

often at the well pads of clients. Because of the hazardous nature of the work, the company

requires employees to wear special equipment such as fire-retardant uniforms and safety

boots. Fairmont Tool employs between 75 and 120 workers, depending on market demand.

Plaintiff Adam J. Davis began working for Fairmont Tool in 2014 but, on January 3, 2017,

Fairmont Tool terminated him from his employment.

On May 31, 2017, the plaintiff filed this lawsuit against Fairmont Tool. The

plaintiff contended that Fairmont Tool unlawfully reduced his wages and the wages of

other similarly situated employees, and he asked that the circuit court certify a class action.

Specifically, he alleged that Fairmont Tool, in the five years prior to the filing of the

2 complaint, had improperly taken assignments in the form of paycheck deductions 1 for

uniforms, boots, tools and other protective equipment in violation of the West Virginia

Wage Payment and Collection Act (“the WPCA”). 2

Fairmont Tool quickly admitted to making reductions to employees’

paychecks. In an interrogatory, the plaintiff asked whether Fairmont Tool had subjected

employees’ pay to deductions for uniforms, boots, or other protective equipment in the five

years prior to the filing of the complaint. On August 21, 2017, Fairmont Tool answered

that it

has and does make certain deductions from some of its employees’ paychecks where the employees have voluntarily agreed to participate in a uniform service provided by a third- party vendor or have voluntarily charged boots or tools on Defendant’s account, and with Defendant’s consent, from a third-party vendor.

In a deposition, the president of Fairmont Tool also admitted the company made deductions

from employees’ pay for “boots,” “uniforms,” and other merchandise. During discovery,

the company produced spreadsheets documenting hundreds of deductions from employees’

paychecks for uniforms and “MDSE (Merchandise).”

1 Throughout this opinion we use “deduction” in its general sense, as something taken away or subtracted from an employee’s wages. We note, however, that “deductions” also has a meaning set by statute, one we discuss later in this opinion. See W. Va. Code § 21-5-1(g) (2021). 2 The plaintiff’s complaint contained a second count asserting that Fairmont Tool violated the WPCA by failing to pay him, individually, 80 hours of vacation pay. The parties later settled and agreed to the dismissal of that count.

3 Also on August 21, 2017, Fairmont Tool responded to the plaintiff’s request

for production of documents. The plaintiff asked Fairmont Tool to produce, for the five-

year period preceding the filing of plaintiff’s complaint, “a complete copy of all written

wage assignments” permitting Fairmont Tool to make deductions from its employees’

paychecks for uniforms, boots, tools, or other merchandise. Fairmont Tool responded,

“None.”

Nine months later, Fairmont Tool amended its response to the plaintiff’s

request for production of documents. The company asserted that the deductions were not

“an assignment of wages pursuant to the West Virginia [Wage] Payment and Collection

Act. Consequently, it is the position of Fairmont Tool, Inc. that it does not possess any

‘written wage assignments’ with regard to its employees.” However, Fairmont Tool then

provided forty documents, each signed by a different employee between February 2015

and October 2017 and titled “Wage Deduction Authorization Agreement,” which said:

I understand and agree that my employer, Fairmont Tool (the Company), may deduct money from my pay from time to time for reasons that fall into the following categories: . . .

3. Installment payments on items purchased on my behalf by the Company (e.g. boots) or cash advances given to me by the Company; and, if there is a balance remaining when I leave the Company, the balance of such purchases or advances[.]

None of these forty writings was signed by the plaintiff; none contains language saying the

agreement will not be in effect for more than one year; none specify the total amount to be

collected by the employer; none say that three-fourths of the employee’s paycheck will be

4 exempt from deductions; none are signed by a representative of Fairmont Tool; and none

are notarized.

On April 25, 2018, after substantial negotiation between counsel for the

parties, a document was filed with the circuit court titled “The Parties’ First Set of

Stipulations.” The stipulations were signed that same day by counsel for the plaintiff and

for Fairmont Tool. In this document, Fairmont Tool admitted that in the five years between

July 1, 2012, and July 31, 2017, it had deducted money directly from employees’

paychecks to cover boots, uniforms, tools and other merchandise described by Fairmont

Tool as “MDSE.”

In the stipulations, the parties preserved their rights to argue whether the

deductions from the employees’ paychecks were unlawful assignments of wages under the

WPCA. However, and important to this appeal, the stipulations contain the parties’

agreement as to how the circuit court would calculate damages, if the circuit court

determined that the deductions were unlawful wage assignments. The parties’ agreement

provides that if the circuit court found that Fairmont Tool was liable for any “reductions to

wages that occurred during the period from July 1, 2012, through June 10, 2015,” then the

circuit court would award liquidated damages “in the amount of three times each such

reduction to wages” for that time period. Further, if Fairmont Tool was liable for any

“reductions to wages that occurred during the period from June 11, 2015, through July 31,

2017,” then the parties agreed that the circuit court was required to award liquidated

damages equal to two times the reduction to wages that occurred in that time period.

5 Finally, the parties stipulated that if Fairmont Tool were found liable, then the circuit court

could award the plaintiff his attorney’s fees and costs.

After agreeing to the stipulations, Fairmont Tool hired new counsel who

promptly moved to withdraw from or rescind the agreement. The circuit court denied the

motion. Fairmont Tool asked the circuit court to reconsider its ruling, but the circuit court

ruled that no basis for a motion to reconsider exists under the law and that no good cause

existed to disturb its prior ruling.

The plaintiff filed a motion for class certification. After briefing and

argument by the parties, the circuit court entered orders conditionally certifying a class of

current and former employees of Fairmont Tool. The class was defined as:

For the period from July 1, 2012, through July 31, 2017: All persons currently and/or formerly employed by the Defendant Fairmont Tool, Inc. in West Virginia who are not shareholders of Fairmont Tool, Inc. and who had their wages owed by Fairmont Tool, Inc. reduced by Fairmont Tool, Inc. relative to uniforms, model uniforms, and/or purchases categorized by Fairmont Tool, Inc. as MDSE, inclusive of, but not limited to, the purchase of boots and tools.

After mailing notices to prospective class members, 136 members agreed to join the class;

43 current and former employees declined to join.

The plaintiff subsequently moved for partial summary judgment. On June

21, 2019, the circuit court entered an order granting that motion with regard to the liability

of Fairmont Tool. The court noted that the WPCA requires employers to pay employees

their full wages, but it permits employees to assign a part of their wages to an employer if

6 the assignment meets certain narrow, clearly defined conditions. In that regard, West

Virginia Code § 21-5-3(e), 3 required any assignment of wages by an employee to an

employer to: (1) be in writing; (2) not be in effect for more than one year after the date of

the assignment; (3) specify the total amount due to and collectible by the employer; (4)

state that three-fourths of the employee’s wages were exempt from the assignment; (5) be

accepted by and signed by the employer; and (6) be notarized. In the absence of any one

of these requirements, the assignment was invalid and unenforceable.

The circuit court found no genuine issue of material fact that Fairmont Tool

paid its employees less than the full amount of their wages because it made reductions to

its employees’ paychecks for uniforms, boots, tools, and other items it categorized as

“MDSE.” Furthermore, the circuit court found that Fairmont Tool could not produce any

valid, written wage assignment satisfying the requirements of West Virginia Code § 21-5-

3(e) showing that either the plaintiff or the other class members had properly authorized

these reductions to their wages. Thus, the circuit court concluded that, as a matter of law,

the reductions by Fairmont Tool had violated the WPCA’s prohibition against unauthorized

3 Because the plaintiff alleged improper wage deductions occurred between July 2012 and July 2017, we find that the question of whether those deductions were improper wage assignments is controlled by two versions of West Virginia Code § 21-5- 3(e) in effect for that time period: the first version was adopted in 2008, the second in 2015. These two versions are, with the exception of the deletion of a comma in 2015, identical. Further, as we have previously noted, the Legislature significantly amended West Virginia Code § 21-5-3 in 2021, in part, to delete the requirement that an assignment be notarized. However, no amendments were made that affect this appeal.

7 wage assignments. The circuit court therefore granted partial summary judgment and

found Fairmont Tool liable under the WPCA.

The plaintiff then moved for summary judgment on damages. On November

7, 2019, the circuit court granted that motion and awarded damages in the form of lost

wages and liquidated damages. As to lost wages, the circuit court found that Fairmont Tool

had improperly withheld $87,731 from employees’ paychecks. As to the calculation of

liquidated damages, the circuit court turned to the agreement regarding those damages

contained in the parties’ stipulations. The circuit court found that the purpose of the

agreement “was to afford the parties a degree of certainty as to the potential nature and

extent of WPCA damages[.]” The circuit court then followed the parties’ stipulations,

doubled or trebled portions of the lost wages according to when the improper withholdings

occurred, and assessed liquidated damages of $237,998 against Fairmont Tool. Combined,

the total damages award was $325,728.

The circuit court entered a final judgment order on August 3, 2020. In that

order, the circuit court restated its orders finding Fairmont Tool liable for violating the

WPCA and awarding $325,728 in damages. The circuit court then awarded the plaintiff

his attorney’s fees in the amount of $160,000 and his litigation costs of $21,518.14.

Finally, the plaintiff, acting as the class representative, was awarded a service fee of $5,000.

Fairmont Tool now appeals the circuit court’s final judgment order.

8 II. Standard of Review

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. pt.

1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). We review an order granting

summary judgment according to the same standards as the circuit court: “[a] motion for

summary judgment should be granted only when it is clear that there is no genuine issue

of fact to be tried and inquiry concerning the facts is not desirable to clarify the application

of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W.Va.

160, 133 S.E.2d 770 (1963).

Further, to the extent the parties’ arguments ask us to interpret any statutes,

our review remains de novo. Syl. pt. 1, Appalachian Power Co. v. State Tax Dep’t of W.

Va., 195 W. Va. 573, 466 S.E.2d 424 (1995) (“Interpreting a statute or an administrative

rule or regulation presents a purely legal question subject to de novo review.”).

III. Discussion

Before turning to the panoply of assertions in Fairmont Tool’s briefs to this

Court, we must first point out that its opening brief failed to comply with Rule 10(c)(3) of

the West Virginia Rules of Appellate Procedure. Rule 10(c)(3) requires that a petitioner’s

brief “open[] with a list of the assignments of error that are presented for review, expressed

in terms and circumstances of the case but without unnecessary detail.” An assignment of

error succinctly identifies the point at which the petitioner believes the lower court

stumbled. Metro Tristate, Inc. v. Pub. Serv. Comm’n of W. Va., 859 S.E.2d 438, 444 (W.

9 Va. 2021) (quoting Wilson v. Kerr, No. 19-0933, 2020 WL 7391150, at *3 (W. Va. Dec.

16, 2020) (memorandum decision)). When the petitioner properly opens a brief with a list

of the assignments of error, the respondent can focus the arguments in opposition

“confident that he did not fail to discern a determinative argument buried in petitioner’s

prose.” Id. Moreover, a clearly defined list of errors permits this Court to focus with clarity

on the legal questions the petitioner alleges affected the lower tribunal’s decision. A party

seeking relief should not, through poor draftsmanship, force this Court to tease out the

imperative questions of law.

Instead of opening with a list of assignments of error, the petitioner’s brief

begins with a “lengthy, free-flowing argument,” id., that mixes recitations of fact with

arguments and conclusory statements about the respondent’s and circuit court’s

motivations. This “throwing-spaghetti-at-the-wall-to-see-what-sticks” approach in the

petition resulted in a response brief that “while written well . . . is structured in a ‘whack-

a-mole’ format that tries to address the varied contentions sprinkled throughout” Fairmont

Tool’s brief. Id.

However, while Fairmont Tool’s brief does not contain assignments of error,

the argument section of the brief does contain headings that we can construe as assignments

of error. From these headings, we perceive that Fairmont Tool has raised four arguments. 4

4 Unfortunately, Fairmont Tool’s headings do not precisely correspond to the arguments that follow. For instance, one heading insists, verbatim, that “the circuit court erred in awarding attorney fees, costs and service award to plaintiff.” The argument that Continued . . . 10 First, Fairmont Tool maintains the circuit court erred in granting partial summary judgment

to the plaintiff on the question of liability when it found that the deductions from employee

paychecks were “assignments of earnings” in violation of the WPCA. Second, Fairmont

Tool asserts that the circuit court erred when it relied upon the parties’ agreed-upon method

for calculating liquidated damages outlined in the parties’ stipulations. Third, Fairmont

Tool contends the circuit court erred when it refused to allow it to pursue a counterclaim

against its employees. Fourth, and finally, Fairmont Tool challenges the way the circuit

court calculated the award of attorney fees and costs.

We examine these arguments in turn and, where necessary, provide

additional facts and standards of review to put the arguments in context.

A. Assignments of Earnings

Fairmont Tool’s first argument is that the circuit court erred when it granted

partial summary judgment to the plaintiffs and found that the company’s withholdings from

its employees’ paychecks were “assignments of earnings” in violation of the WPCA.

Because Fairmont Tool asserts that its withholdings were not “assignments of earnings,”

we must consider the meaning of that phrase as it is used in the WPCA.

follows the heading, however, does not actually dispute the circuit court’s decision to make these three awards. Instead, Fairmont Tool argues that the circuit court should have chosen a lower fee rate for the attorneys and should not have awarded some of the plaintiff’s costs. Despite the heading, there is absolutely nothing in the argument about the service award to the plaintiff.

11 The WPCA requires employers to regularly pay employees their wages,

requiring that “[e]very person, firm or corporation doing business in this state . . . shall

settle with its employees at least twice every month . . . and pay them the wages due . . .

for their work or services.” W. Va. Code § 21-5-3(a) (2021). 5 However, the WPCA

permits an employer to withhold money from an employee’s paycheck if the withholding

meets one of two requirements: (1) it is a statutorily authorized deduction; or (2) it is a

valid assignment of wages. Id. (employers must pay employees “the wages due, less

authorized deductions and authorized wage assignments[.]”). Nonetheless, the Legislature

has made it clear that “[a]ny assignment of earnings and any deduction . . . shall be

revocable by the employee at will at any time, notwithstanding any provision to the

contrary.” W. Va. Code § 46A-2-116(3) (2021). 6

5 West Virginia Code § 21-5-3(a) provides:

Every person, firm, or corporation doing business in this state, except railroad companies as provided in §21-5-1 of this code, shall settle with its employees at least twice every month and with no more than 19 days between settlements, unless otherwise provided by special agreement, and pay them the wages due, less authorized deductions and authorized wage assignments, for their work or services. 6 We recognize that when a deduction relates to an employee benefit plan covered by the Employee Retirement Income Security Act of 1974 (ERISA), federal law controls the relationship between the employer and the employee. See 29 U.S.C.A. § 1144 (2006) (also known as “Section 514(a),” providing that “the provisions of this subchapter and subchapter III shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan[.]”). See also, U.S. Department of Labor, “Information Letter 12-04-2018,” 2018 WL 7051345 (“[I]t continues to be the Department’s view that a state law . . . would be preempted by section 514(a) of ERISA to Continued . . . 12 On the one hand, the WPCA provides a clear list of proper “deductions”

which an employee may authorize an employer to withhold. The Legislature defined

“deductions” as including “amounts required by law to be withheld, and amounts

authorized for union, labor organization, or club dues or fees, pension plans, payroll

savings plans, credit unions, charities, and any form of insurance offered by an

employer[.]” W. Va. Code § 21-5-1(g) (2021). 7 A companion statute in the Consumer

Credit and Protection Act, West Virginia Code § 46A-2-116(2)(b) (2021), also provides

that deductions include “stock purchase plans.” 8

the extent the law is interpreted to limit, prohibit, or regulate an employer’s adoption of automatic enrollment arrangements in connection with a disability benefit plan or other welfare benefit plan covered under Title I of ERISA, or making related deductions from wages for contribution to such a plan[.]”). 7 During the regular session in 2021, the Legislature adopted two different versions of West Virginia Code § 21-5-1: one was passed on March 11, 2021, the other passed on March 19, 2021. In this opinion, we have quoted the relevant portion of the later-passed version of the statute, House Bill 2009, which may now be found in Chapter 170 of the 2021 Acts of the Legislature. See Wiley v. Toppings, 210 W. Va. 173, 175, 556 S.E.2d 818, 820 (2001) (“When faced with two conflicting enactments, this Court and courts generally follow the black-letter principle that ‘effect should always be given to the latest . . . expression of the legislative will[.]”). The version of West Virginia Code § 21- 5-1 in House Bill 2009 contains a proviso, not relevant to the instant case, which says: “That for a public employee, other than a municipal employee covered by a collective bargaining agreement with a municipality which is in effect on July 1, 2021, the term ‘deductions’ shall not include any amount for union, labor organization, or club dues or fees.” W. Va. Code § 21-5-1(g). 8 In addition to the inclusion of “stock purchase plans” as a proper deduction solely in West Virginia Code § 46A-2-116(2)(b), we note that the Consumer Credit and Protection Act omits one category of deduction listed in the WPCA: “amounts authorized for . . . credit unions.” W. Va. Code § 21-5-1(g). We presume these statutory differences were merely errors by a legislative scrivener.

13 On the other hand, in a historical sense, the meaning of the phrase

“authorized wage assignment” in West Virginia Code § 21-5-3 has been somewhat

murkier. This Court has, in years past, derived the meaning of “assignment” in West

Virginia Code § 21-5-3 and in the WPCA from a statute, buried within the Consumer Credit

and Protection Act, which defines an “assignment of earnings”: West Virginia Code § 46A-

2-116. We have said that because the two statutes “relate to assignment of earnings, they

are to be construed together[.]” Clendenin Lumber & Supply Co. v. Carpenter, 172 W. Va.

375, 379, 305 S.E.2d 332, 336 (1983). See also, Syl. pt. 3, Smith v. State Workmen’s Comp.

Com’r, 159 W. Va. 108, 109, 219 S.E.2d 361 (1975) (“Statutes which relate to the same

subject matter should be read and applied together so that the Legislature’s intention can

be gathered from the whole of the enactments.”). The circuit court relied upon Clendenin

Lumber and the Consumer Credit and Protection Act to give meaning to the word

“assignment” in West Virginia Code § 21-5-3.

However, the Legislature recently amended the WPCA to, essentially, adopt

our holding in Clendenin Lumber and formally connect the definitions of “assignment” in

the WPCA and the Consumer Credit and Protection Act. Effective June 17, 2021, the

WPCA now provides that “[t]he term ‘assignment’, as used in § 21-5-3 of this code, shall

have the same meaning as the term ‘assignment of earnings’ set forth in § 46A-2-116(2)(b)

14 of this code.” W. Va. Code § 21-5-1(o) (2021). 9 Turning to the Consumer Credit and

Protection Act, we find the following broad definition:

“Assignment of earnings” includes all forms of assignments, deductions, transfers, or sales of earnings to another, 10 either as payment or as security, and whether stated to be revocable or nonrevocable, and includes any deductions authorized under the provisions of § 21-5-3 of this code, except deductions for union, labor organization, or club dues or fees, pension plans, payroll savings plans, charities, stock purchase plans, and any form of insurance offered by an employer.

W. Va. Code § 46A-2-116(2)(b) (emphasis added). 11

Generally speaking, “[a]n ‘assignment’ is the transfer of some identifiable

property, claim, or right from the assignor to the assignee.” 6A C.J.S. Assignments § 2

(2021). By tying the definition of “assignment” in the WPCA with that in the Consumer

Credit and Protection Act, the Legislature has made it clear that an “assignment” means all

forms of assignments or deductions from an employee’s wages, except those withholdings

that meet the definition of an “authorized deduction.” W. Va. Code § 46A-2-116(2)(b).

9 As we noted in footnote 6, the Legislature adopted two competing versions of W. Va. Code § 21-5-1 during the 2021 session. While we do not firmly resolve the question, we perceive that the later-passed version (House Bill 2009) would be the controlling version and quote that version in the text of this opinion. 10 “The phrase ‘to another’ as used in the definition of an assignment of earnings . . . includes an employer[.]” Syl. pt. 1, Clendenin Lumber, 172 W. Va. at 376, 305 S.E.2d at 333. 11 The Consumer Credit and Protection Act, West Virginia Code § 46A-2- 116(1), prohibits an employer from subjecting more than twenty-five percent of an employee’s disposable income to “one or more assignments of earnings for the payment of a debt or debts arising from” consumer credit sales, leases, loans, or other forms of sales.

15 Hence, we hold that under the WPCA, West Virginia Code §§ 21-5-1(o) and 21-5-3, an

“assignment of wages” is the transfer of the right to collect future wages from the wage

earner to the employer. An assignment of wages is, in effect, any amount that an employer

withholds from an employee’s wages that does not meet the Act’s definition of

“deductions” in West Virginia Code § 23-5-1(g).

To qualify as a “valid” or “authorized” assignment of wages, the versions of

West Virginia Code § 21-5-3(e) (2008 and 2015) in effect during the period covered by

this lawsuit imposed the following conditions upon assignments:

No assignment of or order for future wages shall be valid for a period exceeding one year from the date of the assignment or order. An assignment or order shall be acknowledged by the party making the same before a notary public or other officer authorized to take acknowledgments, and any order or assignment shall specify thereon the total amount due and collectible by virtue of the same and three fourths of the periodical earnings or wages of the assignor shall at all times be exempt from such assignment or order and no assignment or order shall be valid which does not so state upon its face: Provided, That no such order or assignment shall be valid unless the written acceptance of the employer of the assignor to the making thereof[] is endorsed thereon[.] 12

West Virginia Code § 21-5-3 was clear and unambiguous: to be an “authorized assignment

of wages,” the Legislature mandated that the assignment from the employee to the

employer meet six conditions: (1) be in writing; (2) not be in effect for more than one year

after the date of the assignment; (3) specify the total amount due to and collectible by the

The Legislature amended West Virginia Code § 21-5-3(e) (2008) in 2015 12

to remove an improperly placed comma. This change has no effect on our discussion.

16 employer; (4) state that three-fourths of the employee’s wages were exempt from the

assignment; (5) be “accepted” and signed by the employer; and (6) be notarized. 13

Furthermore, the requirements of West Virginia Code § 21-5-3 are binding

upon employers and employees. For instance, regulations by the Commissioner of Labor

interpreting the WPCA state:

An employer shall have a written assignment of wages that conforms to the requirements set forth in W. Va. Code §21-5- 3(e) on the form approved by the Commissioner prior to making any deductions, other than authorized statutory deductions, from an employee’s wages.

42 C.S.R. § 5.9.1 (2019) (emphasis added). 14 In sum, “compliance with all requirements

of the [WPCA] is mandatory when assigning an employee’s wages[,]” Syl. pt. 4, Jones v.

13 Effective June 17, 2021, the Legislature modified West Virginia Code § 21-5-3(e) to eliminate the requirement that a wage assignment be notarized, and the statute now provides, in pertinent part:

(e) No assignment of or order for future wages may be valid for a period exceeding one year from the date of the assignment or order. An assignment or order shall be in writing and shall specify thereon the total amount due and collectible by virtue of the same and . . . three-fourths of the periodical earnings or wages of the assignor are all times exempt from such assignment or order and no assignment or order is valid which does not so state upon its face: Provided, That no such order or assignment is valid unless the written acceptance of the employer of the assignor to the making thereof is endorsed thereon[.] 14 The form wage assignment approved by the Commissioner is available on the Division of Labor’s website. See https://labor.wv.gov/Wage-Hour/Wage_Collection/ Documents/EMPLOYEE%20WAGE%20ASSIGNMENT%20FILLABLE%20PDF.pdf (last accessed November 19, 2021).

17 Tri-County Growers, Inc., 179 W. Va. 218, 366 S.E.2d 726 (1988), because “[t]he history

of the [WPCA] provisions on wage assignments shows a deliberate, legislative intent to

allow assignment of wages if, and only if, certain specified conditions are met.” Id. at 222,

366 S.E.2d at 730. “An assignment that does not conform to the statutory requirements is

invalid.” 6 Am. Jur. 2d Assignments § 68 (2021). Finally, if an employer withholds money

from an employee’s paycheck without a valid assignment of wages, the WPCA permits the

employee to “bring any legal action necessary to collect” those amounts improperly

withheld. W. Va. Code § 21-5-12(a) (1975). See also Western v. Buffalo Min. Co., 162

W. Va. 543, 546, 251 S.E.2d 501, 503 (1979) (“That the assignment [of wages] was illegal

under the statute does not preclude the plaintiffs from recovering on it, since they are a part

of the class which the statute is designed to protect.”).

Against this strong headwind of statutes and caselaw, Fairmont Tool asserts

that the circuit court erred in finding that that the company’s withholdings from employee

paychecks were unauthorized assignments of employee wages simply because the

company lacked any writing meeting the requirements of West Virginia Code § 21-5-3(e).

Fairmont Tool’s argument appears to be that it never took any assignment of wages, and

that instead it was merely giving its employees advances of “cash” or “cash equivalents”

18 when it allowed employees to purchase boots, uniforms, and tools using company credit

accounts, and that it was recouping these “advances” through paycheck withholdings. 15

To be clear, Fairmont Tool insists it was not acting as a “creditor” nor was it

seeking to compel its employees to repay a “debt.” Fairmont Tool’s semantic argument

seeks to avoid our holding in Clendenin Lumber & Supply Co. v. Carpenter, 172 W. Va.

at 378-81, 305 S.E.2d at 336-38. In Clendenin Lumber, we examined the situation of a

company that permitted its employee to incur debts by purchasing goods from the

company, and then compelled the employee to repay those debts through paycheck

deductions. Even though the company in Clendenin Lumber was a “creditor” who charged

the employee interest on the purchases, we determined that the company’s paycheck

deductions to recoup a debt owed by its employee were invalid wage assignments that

failed to meet the strict terms of the WPCA. We found that “W.Va. Code, 21-5-3 [1979],

prescribes the required form of an assignment of earnings by an employee who voluntarily

assigns future earnings to another in satisfaction of a debt.” Id. at 380, 305 S.E.2d at 337.

Instead of claiming it was a “creditor” or that its employees owed a “debt,”

Fairmont Tool contends it gave employees “advances” and was conducting itself in a

manner approved by this Court in the unpublished decision of Rotruck v. Smith, No. 14-

15 The plaintiff responds to this argument by pointing out that Fairmont Tool’s spreadsheets contain a category for “cash advances” that is separate and apart from the categories for purchases of uniforms, boots, tools and other merchandise. Further, the plaintiff points out he specifically did not seek to recoup paycheck deductions for cash advances, and that cash advances were intentionally excluded from the class definition.

19 1284, 2016 WL 547190 (W. Va. Feb. 10, 2016) (memorandum decision), and it insists we

should, therefore, approve its conduct too. In Rotruck, an employee received

compassionate financial assistance from her boss in the form of a tank of gas, payments for

medication, car payments, and cash advances to cover emergencies. The boss, however,

expected the employee to repay her the assistance and deducted the money from the

employee’s paycheck. We concluded that the assistance was “more akin to salary advances

graciously provided in response to [the employee’s] financial need” and, hence the

paycheck deductions “were not wage assignments” as outlined in West Virginia Code §

21-5-3(e). Id. at *5.

Our examination of Rotruck compels us to acknowledge that the outcome of

the memorandum decision and its interpretation of the wage-assignment provisions of West

Virginia Code § 21-5-3(e) were intimately tied to the unique facts of that case. Of course,

“memorandum decisions may be cited as legal authority, and are legal precedent,” but

“their value as precedent is necessarily more limited[.]” Syl. pt. 5, in part, State v.

McKinley, 234 W. Va. 143, 764 S.E.2d 303 (2014). However, a federal district court

recently examined Rotruck and concluded what is obvious: Rotruck “reached an equitable

result” but is “inconsistent with the WPCA and with published opinions of the Supreme

Court of Appeals.” Atkins v. AT&T Mobility Servs., LLC, No. 2:18-CV-00599, 2020 WL

2842054, at *3 (S.D.W. Va. June 1, 2020). We agree with the district court’s analysis in

Atkins, and further find Rotruck directly at odds with the text of West Virginia Code § 21-

20 5-3. Hence, to clarify our law interpreting and applying the WPCA, we hereby overrule

Rotruck.

We have examined the record and find no error by the circuit court in

granting partial summary judgment to the plaintiff on the question of liability under the

WPCA. Fairmont Tool admitted in discovery that it withheld money from employee

paychecks and admits in its briefs to this Court it took those withholdings. The

withholdings were not “authorized deductions” as defined by the WPCA. Further, the

withholdings were not “authorized wage assignments” because Fairmont Tool could

produce no document in compliance with West Virginia Code § 21-5-3(e) showing it had

received a valid, written assignment of wages from its employees. We recognize the

seeming unfairness of the situation for Fairmont Tool, but we also recognize the black-

and-white pronouncement of the Legislature: when an employer withholds money from an

employee’s paycheck, the employer must establish its right to that money by obtaining a

writing that complies with the WPCA. 16 Because there was no material question of fact

that Fairmont Tool failed to follow the statute, summary judgment was proper.

16 Recent legislative changes have created a remedy for employers who provide employees with uniforms, phones, computers, supplies, equipment, or other forms of property worth more than $100. West Virginia Code § 21-5-4(f) (2018) now provides that “if at the time of discharge or resignation, an employee fails to return employer provided property . . . the employer may withhold, deduct or divert an employee’s final wages, in an amount . . . to recover the replacement cost of the employer provided property[.]” The statute contains numerous limitations, including the requirement of a written agreement, signed by the employee at the same time the employer provides the Continued . . . 21 B. The Parties’ Stipulations

Fairmont Tool’s second argument is broad and far ranging, but it concerns

the circuit court’s summary judgment order on liquidated damages as well as the parties’

stipulations, where Fairmont Tool agreed to the method the circuit court would use to

calculate liquidated damages. Fairmont Tool maintains that the parties’ stipulations “had

no force or effect” and that the circuit court should have voided or ignored the stipulations,

or at least permitted Fairmont Tool to withdraw from the agreement. It further contends

that the circuit court erred when it relied upon the parties’ agreement in their stipulations

and awarded liquidated damages to current and former employees in the amount of three

times the unpaid wages between July 1, 2012, and June 10, 2015.

We begin our analysis by pointing out that the stipulations met the

requirements of the Trial Court Rules in that they were “in writing, signed by the parties

making them or their counsel, and promptly filed with the clerk.” Trial Court Rule 23.05.

As for whether the stipulations were binding, in the seminal case of West Virginia

Department of Transportation v. Veach, 239 W. Va. 1, 8, 799 S.E.2d 78, 85 (2017), this

Court noted that “attorneys are authorized to enter into stipulations on behalf of their clients

and a party is ordinarily bound by a stipulation made by its attorney.” Veach recognized a

bedrock principle: a stipulation is an enforceable contract, and, like a contract, relief from

property, which itemizes each item of property and specifies each item’s replacement cost. See W. Va. Code § 21-5-4(f)(1)(C)(i).

22 a stipulation “is usually available only in cases of fraud, mistake, improvidence or material

change in circumstances, where in equity and good conscience the stipulation ought not to

stand.” Id. (quoting 4 Williston on Contracts § 8.50 (4th ed. 2016)). This Court

unanimously concluded in Syllabus Point 6 of Veach that “[a] circuit court is afforded wide

discretion in determining whether or not a party should be relieved of a stipulation, and

such decision should not be set aside absent an abuse of discretion.” Id. at 4, 799 S.E.2d

at 81.

Fairmont Tool does not allege that the stipulations are the result of fraud,

mistake, or any other contractual principle for the recission of contracts. In fact, Fairmont

Tool’s opening brief does not cite Veach or its holdings at all. Fairmont Tool instead

asserts that the parties were motivated to enter into the stipulations to avoid having to hire

experts, and that the plaintiff “breached” the agreement by hiring an economist. However,

the stipulations contain no limitation precluding the parties from hiring experts to provide

needed testimony, analysis, and evidence and, hence, there was nothing for the plaintiff to

breach by hiring an expert. Moreover, to the extent Fairmont Tool asserts that the

stipulations by its prior counsel are “improvident” and contain a damages scheme not

contained in the current WPCA, the law is clear that a party can agree to waive contractual,

statutory or even constitutional rights. “Because stipulations fairly entered into often

operate to settle controversies or expedite judicial proceedings, they are favored. They are

therefore generally controlling and conclusive, so much so that it has even been held that

parties may stipulate away statutory, or even constitutional, rights.” 4 Williston on

23 Contracts § 8:50 (4th ed. 2021). See also, Parsons v. Halliburton Energy Servs., Inc., 237

W. Va. 138, 144, 785 S.E.2d 844, 850 (2016) (“It is a well-established principle of contract

law that contract rights can be waived.”); Syl. pt. 2, in part, Call v. McKenzie, 159 W. Va.

191, 220 S.E.2d 665 (1975) (“A criminal defendant can knowingly and intelligently waive

his constitutional rights[.]”); Smith v. Bell, 129 W. Va. 749, 762, 41 S.E.2d 695, 701 (1947)

(“Waivers of statutory rights and privileges created for the benefit of an individual and

which are personal to him are generally held to be valid.”). Accordingly, our holding in

Veach supports the circuit court’s determination that the parties were bound by the

stipulations.

We also find no merit in Fairmont Tool’s position that the circuit court should

have voided or ignored the parties’ binding agreement contained within the stipulations.

The parties’ stipulations were the product of substantial negotiations between counsel and

were intended by the parties to establish an agreed-upon methodology for calculating class

damages, thereby eliminating any future risk or uncertainty on that question. The

stipulations specify that if the plaintiff was able to establish that Fairmont Tool violated

the WPCA for any wage withholdings it took between July 1, 2012, and June 10, 2015,

then Fairmont Tool agreed to pay three times those withholdings as liquidated damages.

For improper wage withholdings between June 11, 2015, and July 31, 2017, Fairmont Tool

agreed to pay twice the wage withholdings as liquidated damages. 17 The circuit court’s

The parties’ stipulations regarding liquidated damages apparently reflects 17

a concern or confusion regarding amendments to the WPCA. Prior to June 10, 2015, West Continued . . . 24 summary judgment order on damages merely reflects the terms of the parties’ agreement

in the stipulations. Accordingly, we find no error or abuse of discretion in the circuit

court’s decision to bind Fairmont Tool to its agreement.

C. Fairmont Tool’s Counterclaim

Fairmont Tool asserts that it had a contract with its employees that

circumvented the WPCA. Whether this contract was written or oral is unclear from

Fairmont Tool’s arguments. There are forty copies of a written “Wage Deduction

Authorization Agreement” in the record, each signed by some current and/or former

employees of Fairmont Tool, an untold number of whom are members of the class at issue

in this case. 18 Fairmont Tool directs us to no such written agreement signed by the plaintiff;

it also makes no reference to this written agreement in its arguments.

Regardless of the form of the contract, Fairmont Tool contends that the

plaintiff (personally) and employees (generally) were permitted to purchase uniforms,

Virginia Code § 21-5-4(e) (2013) dictated that an employer who failed to pay an employee wages due was liable for both the unpaid wages and “liable to the employee for three times that unpaid amount as liquidated damages.” Effective June 11, 2015, the Legislature amended the statute to provide that the employer was “liable to the employee for two times that unpaid amount as liquidated damages.” W. Va. Code § 21-5-4(e) (2015). The Legislature subsequently amended the statute in 2018, but no changes were made that affect this appeal.

As we discussed in the facts, the class covers current and former employees 18

between July 1, 2012, and July 31, 2017. Of the forty “Wage Deduction Authorization Agreements” in the appendix record, only thirty-four were signed within the class’s defined period. Additionally, the parties do not describe if any of the individuals who signed the forty agreements are members of the class.

25 boots, tools, and other merchandise at vendors using either the company’s account or a

company credit card. Further, it cites to evidence of record showing that the plaintiff was

permitted, with his supervisor’s approval, 19 to purchase personal items like meals, a winter

coat, boots for himself and a family member, and a bag of calcium chloride. Saying it

“advanced money and the cash equivalent” to the plaintiff and that he “agreed to reimburse

Fairmont Tool for these advances . . . through agreed upon payroll deductions,” Fairmont

Tool argues in its brief that its payroll deductions were to recoup “advances made on behalf

of [the plaintiff] and the putative class members for personal purchases on company credit

cards and company credit accounts with outside vendors, including safety boots and

uniform rentals.” 20

Building upon this position, Fairmont Tool contends the plaintiff “breached”

and “repudiated” his unwritten reimbursement agreement with the company. Hence, on

June 22, 2018, Fairmont Tool moved to amend its answer to assert a counterclaim for

19 In his deposition, the plaintiff testified he was given permission to make personal purchases with the company credit card by either “a Fairmont Tool supervisor or a member of management.” Moreover, the employee responsible for Fairmont Tool’s human resources, employee benefits, and payroll testified that the company never disciplined or raised concerns with the plaintiff about his use of the company credit cards or company accounts. This employee testified that neither the plaintiff nor any other employee “did anything wrong in terms of using a company account or company credit card[.]” The company simply allowed employees to make the purchases, then deducted the amounts from the employees’ paychecks.

Comparing the circuit court’s calculation of improper deductions over five 20

years ($87,731) against the number of employees affected (136), it appears the company deducted about $10.75 from each employee’s wages every month.

26 breach of contract and unjust enrichment against the plaintiff and the members of the class.

The circuit court permitted the amendment.

The plaintiff subsequently filed a motion for summary judgment, and, on

June 21, 2019, the circuit court granted the motion and dismissed Fairmont Tool’s

counterclaim. As noted previously, because Fairmont Tool took deductions from employee

paychecks without a written assignment that met the WPCA’s requirements, the circuit

court granted summary judgment and found Fairmont Tool liable for violating the WPCA.

The circuit court then noted that Fairmont Tool’s counterclaim was based on the notion

that its employees had circumvented the WPCA’s assignment provisions and entered into

a “private agreement” that supposedly permitted Fairmont Tool to withhold wages to pay

for certain goods and services. Presuming such an agreement actually existed, the circuit

court declared it would be an “illegal contract” and unenforceable because the WPCA

expressly precludes an employee from contractually altering his or her rights under the

WPCA.

In a series of scattershot arguments, Fairmont Tool contends that the circuit

court erred either in dismissing the counterclaim, or in refusing to “offset” Fairmont Tool’s

“advances” against the plaintiffs’ damages. Having examined the circuit court’s order, we

find no error and reject Fairmont Tool’s assertions. West Virginia Code § 21-5-10 (1975)

expressly prohibits an employee and employer from contractually altering or waiving the

employee’s right to wages under the WPCA. See Ash v. Ravens Metal Prod., Inc., 190 W.

Va. 90, 96-97, 437 S.E.2d 254, 260-61 (1993) (“[T]here is express language in W. Va.

27 Code, 21-5-10 (1975), precluding contractual alteration of those rights[.]”). The statute

provides that

no provision of this article may in any way be contravened or set aside by private agreement, and the acceptance by an employee of a partial payment of wages shall not constitute a release as to the balance of his claim and any release required as a condition of such payment shall be null and void.

W. Va. Code § 21-5-10.

We examined West Virginia Code § 21-5-10 in Citynet, LLC v. Toney, 235

W. Va. 79, 772 S.E.2d 36 (2015), where the employer had created a written fringe-benefit

plan for its employees. We noted that, when the plaintiff-employee left his job, the WPCA

required the employer to pay him his wages and fringe benefits “no later than the next

regular payday[.]” Id. at 92, 772 S.E.2d at 49 (quoting W. Va. Code § 21-5-4(c) (2006)).

When the employer attempted to circumvent that narrow payment period by citing to a

ninety-day payout schedule in the documents creating the fringe benefit, we rejected the

employer’s position. Citing to West Virginia Code § 21-5-10, we “refused to enforce an

agreement between an employer and an employee to pay wages outside the time frame set

forth in the WPCA.” Id. at 95, 772 S.E.2d at 52.

Likewise, in Britner v. Med. Sec. Card, Inc., 200 W. Va. 352, 489 S.E.2d 734

(1997) (per curiam), we discussed the effect of this section against an employer’s argument

that “employment wage agreements may be modified by acquiescence” to the employer’s

unilateral decision to delay paying its employees. We rejected the employer’s argument,

finding:

28 The legislature has attempted to prevent employers from abusing their positions by compromising the wages of employees. The language in W. Va. Code § 21-5-10 is mandatory. An employer must pay earned wages to its employees. Any other reading would seriously compromise and undermine the legislative intent of W. Va. Code § 21-5-10.

Id. at 355, 489 S.E.2d at 737. See also, Szturm v. Huntington Blizzard Hockey Assocs. Ltd.

P’ship, 205 W. Va. 56, 61, 516 S.E.2d 267, 272 (1999) (rejecting employer’s argument

that employee waived his right to payment of wages by agreeing to continue to work for

months without pay, finding that W. Va. Code § 21-5-10 prevents an employer from

altering an employee’s statutory right under the WPCA to regularly receive wages).

Fairmont Tool purports that it had a private agreement that its employees

would repay various and sundry debts through paycheck deductions, despite those

deductions violating the wage assignment provisions of the WPCA. Fairmont Tool’s

counterclaim for breach of contract, unjust enrichment, or similar arguments 21 are attempts

to circumvent the clear terms of West Virginia Code § 21-5-10 which expressly prohibits

private agreements that contravene the WPCA. It is axiomatic that a court will not enforce

a contract that is illegal and void. Accordingly, the circuit court correctly granted summary

judgment on the counterclaim and properly refused any setoff based upon what was clearly

a void, unenforceable agreement.

Fairmont Tool’s amended answer also asserted the defenses of anticipatory 21

breach, repudiation, unclean hands, and setoff, defenses that all relate to the agreement Fairmont Tool alleges it had with its employees to bypass the requirements of the WPCA.

29 D. Attorney Fees and Costs

Finally, Fairmont Tool contends that the circuit court erred in the amount of

attorney fees it awarded to plaintiff’s counsel. Specifically, it argues that the hourly rate

chosen by the circuit court ($350 per hour) exceeded the prevailing rate in the community.

Additionally, it asserts that the circuit court erred in awarding costs to pay for two economic

experts.

We have often said that “[t]he decision to award or not to award attorneys’

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); see also Sanson v. Brandywine Homes, Inc., 215 W. Va.

307, 310, 599 S.E.2d 730, 733 (2004) (“We . . . apply the abuse of discretion standard of

review to an award of attorneys’ fees.”). Likewise, “[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.” Syl. pt. 3, in part, Bond v.

Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959).

West Virginia Code § 21-5-12(b) (1975) provides that if a plaintiff

successfully prosecutes an action under the WPCA, the circuit court may “assess costs of

the action, including reasonable attorney fees against the defendant[.]” In other words,

“[a]n employee who succeeds in enforcing a claim under W. Va. Code Chapter 21, article

30 5 should ordinarily recover costs, including reasonable attorney fees unless special

circumstances render such an award unjust.” Syllabus Point 3, Farley v. Zapata Coal

Corp., 167 W.Va. 630, 281 S.E.2d 238 (1981). Moreover, in the parties’ stipulations,

Fairmont Tool agreed that the plaintiff could recover attorney’s fees and costs.

Regarding the amount of an attorney’s fee to award, the seminal case of

Aetna Casualty & Surety Company v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986) lists

a series of factors for courts to consider:

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.

Syl. pt. 4, Id. While “a losing defendant cannot be saddled with attorneys’ fees that are

unreasonably large simply because the plaintiff chooses a lawyer from New York City or

another urban area,” Bishop Coal Co. v. Salyers, 181 W. Va. 71, 82, 380 S.E.2d 238, 249

(1989), “courts considering the reasonableness of attorney’s fees should consider how

common it is today for lawyers to travel from Charleston, or Clarksburg, or Huntington, or

31 other cities to represent clients in other, smaller counties.” Hollen v. Hathaway Elec., Inc.,

213 W. Va. 667, 673, 584 S.E.2d 523, 529 (2003).

We have reviewed the record and find no abuse of discretion by the circuit

court in its award of attorney’s fees. The circuit court applied the factors outlined in Pitrolo

and chose a reasonable fee commensurate with the experience and skill of the plaintiff’s

lawyers, several of whom were based in Charleston. As for the costs for the two experts,

the record reflects that Fairmont Tool did not object to the first expert, who worked as the

class administrator. The second expert was initially hired by plaintiff’s counsel in response

to Fairmont Tool’s counterclaim, but later offered prejudgment interest calculations –

including one requested by Fairmont Tool – as well as other assessments used by the circuit

court to calculate the appropriate amount of class damages. In light of these facts, the

circuit court acted well within its discretion in its award of costs for these two experts.

IV. Conclusion

We find no error in the circuit court’s orders.

Affirmed.