Multiplex, Inc. v. Town of Clay

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2013 Term
FILED
________________
October 4, 2013
released at 3:00 p.m.
No. 12-0418 RORY L. PERRY II, CLERK
________________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA

MULTIPLEX, INC., a West Virginia Corporation,

ART R. POFF and PAMELA A. POFF, individually,

Petitioners

v.

TOWN OF CLAY,

Respondent

____________________________________________________________

Appeal from the Circuit Court of Clay County

The Honorable Richard A. Facemire, Judge

Civil Action No. 10-C-62

AFFIRMED IN PART; REVERSED IN PART; REMANDED

___________________________________________________________

Submitted: September 11, 2013

Filed: October 4, 2013

Harley E. Stollings, Esq. Carl J. Roncaglione, Jr, Esq.
Summersville, West Virginia Charleston, West Virginia
Counsel for Petitioners Counsel for Respondent

The Opinion of the Court was delivered PER CURIAM.
 SYLLABUS BY THE COURT

1. “‘In reviewing challenges to the findings and conclusions of the circuit court,

we apply a two-prong deferential standard of review. We review the final order and the

ultimate disposition 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.’ Phillips v. Fox, 193 W. Va. 657, 661, 458 S.E.2d 327, 331 (1995)

(citation omitted).” Syl. Pt. 2, Walker v. W. Va. Ethics Com’n, 201 W. Va. 108, 492 S.E.2d

167 (1997).

2. “‘[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).” Syl. Pt. 1, Heldreth v. Rahimian, 219 W. Va. 462, 637 S.E.2d 359 (2006).

3. “‘An order of injunction is of no legal effect * * * [Code, 53-5-9], unless the

court requires a bond, or recites in the order that no bond is required for good cause, or unless

the movant is a personal representative.’ Syl. Pt. 4, Syl., Meyers v. Washington Heights Land

Co., 107 W. Va. 632, 149 S.E. 819 (1929).” Syl. Pt. 2, State ex rel. Lloyd’s Inc. v. Facemire,

224 W. Va. 558, 687 S.E.2d 341 (2009).

i
 4. “The proposition is generally true that an injunction once granted and perfected

brings about a condition or status of persons and things that can only be set at large by a

dismissal of the bill, or by formal order of dissolution.” Syl. Pt. 1, Atkinson v. Beckett, 36 W.

Va. 438, 15 S.E. 179 (1892).

5. “In an action on an injunction bond, when the injunction is only ancillary to the

main object of the suit, counsel fees paid for services in the suit as a whole, are not

recoverable.” Syl. Pt. 2, Bush v. Carden, 111 W. Va. 631, 163 S.E. 54 (1932).

6. “When counsel fees and personal expenses are sought to be recovered as

damages on an injunction bond, it is incumbent on the plaintiff to show either that injunction

was the sole relief to which the suit pertained or that the fees and expenses were paid out

solely for the purpose of procuring a dissolution of the injunction, as distinguished from

expenditures for the hearing of the principal issues involved in the case.” Syl. Pt. 2, State

ex rel. Meadow River Lbr. Co. v. Marguerite Coal Co., 104 W. Va. 324, 140 S.E. 49 (1927).

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

ii
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).” Syl. Pt. 12,

Horkulic v. Galloway, 222 W. Va. 450, 665 S.E.2d 284 (2008).

iii
Per Curiam:

After the petitioners, Multiplex, Inc., Art R. Poff and Pamela A. Poff, voluntarily

dismissed their suit for injunctive relief, the Circuit Court of Clay County, West Virginia,

ordered that the petitioners’ $25,000.00 injunction bond be forfeited and paid over to the

respondent, Town of Clay, to compensate respondent for its attorney fees and costs. On

appeal, the petitioners argue that the bond was not subject to forfeiture in the absence of a

finding that the underlying suit was filed in bad faith; that attorney fees and expenses are not

recoverable “costs” within the meaning of West Virginia Code § 53-5-9 (2008); that the

petitioners were not given a fair opportunity to contest whether the attorney fees and costs

were incurred by the respondent in attempting to secure a dissolution of the bond; that the

petitioners were not given a fair opportunity to contest whether the fees and costs met the

standards set forth in Aetna Casualty & Surety Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d

156 (1986); and that the circuit court neither held a Pitrolo hearing nor performed a Pitrolo

analysis.

1

 Upon careful consideration of the parties’ briefs, the appendix record,1 the oral

arguments, and this Court’s precedents, we affirm, in part, reverse, in part, and remand for

further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL HISTORY

On or about October 16, 2009, the petitioners, Multiplex, Inc. and its principals, Art

R. Poff and Pamela Poff (hereinafter collectively referred to as “the petitioners”), entered

into a construction contract with the respondent, Town of Clay, for various improvements

to the town’s water treatment plant. According to the contract, the project was designed by

Boyles & Hildreth, which was to act as the project engineer and the Town of Clay’s

representative. The petitioners executed a Performance Bond2 and an Agreement of

Indemnity with United States Surety Company.

1
We take this opportunity to remind litigants and counsel that Rule 6 of the West
Virginia Rules of Appellate Procedure provides, in relevant part, “(b) . . . [t]he record on
appeal should be selectively abridged by the parties in order to permit the Court to easily
refer to relevant parts of the record and to save the parties the expense of reproducing the
entire record.” In this case, the parties submitted an appendix record consisting of 1,768
pages. Hundreds of these pages are either not relevant to the issues on appeal or are
duplicates; in this latter regard, for example, the record contains five copies of a December
7, 2010, hearing transcript. Additionally, many of the parties’ factual assertions in their
briefs do not contain pinpoint citations to the appendix record, leaving this Court to
determine where in the 1,768 pages of the record the accuracy of an assertion may be
confirmed. As we have stated, “[j]udges are not like pigs, hunting for truffles buried in
briefs[,]” State Department of Health v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d
827, 833 (1995), and the same observation may be made with respect to appendix records.

2
The Performance Bond was in the amount of $3,532,800.00.

2

 On or about October 22, 2010, a dispute arose between the parties to the contract. The

petitioners claimed that they were unable to proceed with the work until the project engineer

answered certain questions and provided certain information; and further that the engineer’s

failure to issue change orders was causing unwarranted delay in compensation. The

respondent claimed, in contrast, that the petitioners had walked away from the job without

cause. Correspondence and discussions between the parties did not resolve the issues, and

on November 16, 2010, the respondent notified the petitioners that it was considering

declaring Multiplex to be in default. A conference was held on November 18, 2010, which

again did not resolve the issues.

Thereafter, on December 3, 2010, the petitioners filed a Complaint for Preliminary

Injunctive Relief in the Circuit Court of Clay County, against the Town of Clay, Boyles &

Hildreth, and United States Surety,3 alleging that

[p]reliminary injunction to prevent the Town from declaring
default is necessary to avoid immediate, permanent and
irreparable harm to Multiplex, Inc. in regards to the Contract.
Without responses to the pending inquiries, Multiplex has been
unable to proceed with this critical schedule items and such has
caused an additional delay in the schedule. Since that time,
delays continue to occur and losses continue to accrue.

3
Both Boyles & Hildreth and United States Surety were ultimately dismissed from the
proceedings below, and the Town of Clay is the sole respondent in this appeal.

3

 Following the taking of some evidence at a hearing held on December 7, 2010, the

circuit court ruled that:

I’ll tell you what I’ll do, I can see now that this hearing is going
to take quite a long and lengthy time. Pursuant to Rule 65(a) of
the Rules, I’m going to consolidate the hearing with this
preliminary hearing in the matter. And I’m going to, at this
point, issue a temporary injunction in the matter, finding that
there is immediate and irreparable injury and loss or damage that
could occur to Multiplex; they would be forced into bankruptcy
and there could be a potential of the assets of Art Poff and
Pamela Poff being at dire circumstances. And I’m going to
continue this hearing and I’m consolidating, the rules allow me
to do that. I’m going to temporarily order, pending a full
hearing, both the preliminary and the entire hearing in the
matter, that the Town of Clay shall not declare Multiplex in
default of the contract. I’m going to prohibit US Surety from
collecting any money from Multiplex or Art Poff or Pamela
Poff. I’m not going to address the issue of whether to order the
town to issue a change order or to answer Multiplex[’s]
questions; that’s an issue that I will address at the hearing in the
matter.

The court set a hearing for January 27, 2011, and took under advisement the

petitioners’ request for mediation. Shortly after the hearing had concluded, the following

exchange took place in chambers:

THE COURT: Let the record reflect that counsel is back in
Chambers with the Court. I failed to set a bond, and I believe
the rule requires that I set a bond. I’m setting it for $25,000 in
the matter. Okay. I’ll note and preserve all parties’ objections.
The injunctive relief would not take affect [sic] until the bond
is posted.

4

 MR. MORRIS: Your Honor, we would be happy to post a
bond. We can do that forthwith. Although, quite frankly, we
had estimated that the only likely harm, there was little or no
monetary harm associated to the defense with our request of a,
simply, status quo TRO. We had hoped for something – we
could, we could post cash to the Court in roughly the ten percent
amount immediately, or very close to it, would be my guess.

THE COURT: Court will permit the ten percent to be posted,
cash or surety.

MR. MORRIS: In cash, which would be the – that would be
great and we can post that.

THE COURT: Ten percent or surety.

On December 21, 2010, the Town of Clay filed a motion to dismiss the Complaint,

or in the alternative, to dissolve the temporary restraining order and preliminary injunction.

No response to this motion was filed by the petitioners,4 and the circuit court never issued

a ruling thereon.

The parties began discovery on the underlying contract issues raised in the

Complaint,5 and as a result of the volume of information sought by respondent, the

petitioners filed a motion seeking to reschedule the January 27, 2011, hearing. By order

4
The respondent concedes, however, that the petitioners orally opposed the motion at
a hearing held on January 6, 2011.
5
Although the circuit court questioned whether the underlying Complaint actually set
forth a breach of contract claim in addition to a claim for injunctive relief, the parties
proceeded as though it had.

5

dated January 13, 2011, the circuit court referred the matter to a special commissioner for

mediation and cancelled the January 27, 2011 hearing.

Thereafter, the petitioners moved to voluntarily dismiss the Complaint, and by order

dated January 21, 2011, the court granted the motion. The court made the following relevant

findings:

2. Dismissal of the Plaintiffs’ Complaint for Preliminary
Injunctive Relief will not prejudice the Defendants.6 No
counterclaim has been filed by the Defendants which would
require independent adjudication by the Court.

3. Accordingly, Plaintiffs’ request for preliminary injunction
is hereby dismissed WITH PREJUDICE; all other claims and
remedies sought are hereby dismissed WITHOUT
PREJUDICE.7

On January 26, 2011, the Town filed a motion seeking to forfeit the injunction bond,

and for “attorneys’ fees, costs, and sanctions[.]” In this regard, the Town sought

reimbursement for $47,186.08 in fees and costs allegedly expended in contesting the

injunction from the date it was entered, December 7, 2010, to the date the petitioners

voluntarily dismissed their case, January 21, 2011. The gist of the motion, which may fairly

6
At the time the order was entered, Boyles & Hildreth and United States Surety were
still parties to the case. See n.1 supra.
7
Because this order had not been circulated to counsel as contemplated by Trial Court
Rule 24.01(b) & (c), the circuit court prepared another order and entered it on January 25,
2011. The January 25, 2011, order contains one minor change that is not material to this
appeal.

6

be termed a broadside, was that the petitioners’ injunction suit had been filed in bad faith,8

was filled with falsehoods, and was intended “to loot the Town of Clay’s public fisc.” By

order entered on February 5, 2011, the court referred the motion to the special commissioner.

Significantly, the order stated that “[t]he Clerk of this Court shall not release the $25,000.00

bond that was posted by the Plaintiffs. The Clerk of this Court shall hold the $25,000.00

bond in his account, until such time as the Court resolves the Town of Clay’s Motion to

Forfeit Bond.”

In drawn-out proceedings before the special commissioner,9 the petitioners sought,

and the respondent Town resisted, production of invoices and checks evidencing the payment

of the town’s attorney fees and costs.10 Instead, the Town produced a three-line summary:

8
The respondents claimed that because petitioners had an adequate remedy at law –
and knew they had such a remedy – their purpose of seeking an injunction was to secure “an
umbrella under which to operate and negotiate with the Town until his [petitioner Art R.
Poff] comprising [sic] admissions and statements against his interest on July 27, 2010, were
discovered.”
9
In his report dated November 14, 2011, the commissioner noted that some delay
resulted from the parties’ failure to provide him with pleadings and documents that he had
requested; and that further delay resulted from the parties’ indication to him “that they had
reached a resolution in principle that would end this litigation[,]” after which there ensued
two months “of either negotiation or neglect” and no settlement.
10
The Town claimed, in response to discovery requests, that the invoices and checks
were “shielded from disclosure under the attorney client privilege, and work product
doctrine”; and further claimed, in response to a request made under the Freedom of
Information Act, W. Va. Code § 29B-1-1 to -7 (2012), that the Town’s invoices from its
counsel “are not a public record[.]”

7

Bill Date January 15, 2011, $20,722.26; Bill Date February 3, 2011, $18,820.21; and Bill

Date March 31, 2011, $7,643.50. The summary contained no description whatsoever of the

work performed by the Town’s counsel or the dates on which the work was performed. Not

until November 22, 2011, when required by the special commissioner to provide itemized

invoices together with an argument addressing the factors listed in Aetna Casualty & Surety

Company v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986), did the Town produce copies

of invoices describing work performed and fees charged by its counsel during the time period

in which the injunction was in effect.11

Of significance to these proceedings, the special commissioner’s initial Report

contains the following findings of fact:

Multiplex argues that the basis for its Complaint for an
injunction remains sound. It says that it prevailed on its
Complaint, evidenced by the fact that a temporary injunction
was granted, and that it cannot have its bond forfeited or be
sanctioned on a Complaint on which it prevailed.

...

Achieving the temporary injunction is not the ultimate victory
that Multiplex now claims it is. Being awarded a permanent

11
We note that none of the entries from December 21, 2010, through January 19, 2011,
appear, at least on the surface, to be related to dissolution of the injunction. Rather, they
appear to be related to the parties’ ongoing discovery and court-ordered mediation on the
merits of the contract dispute. However, this is a factual matter to be resolved in the first
instance by the circuit court, following a hearing and the taking of any evidence the parties
may wish to present. See text infra.

8

 injunction and relief from performing the contract pending
receipt of answers to the proposed questions would have been
the victory. Multiplex folded up the game board before it
allowed anyone to determine the result of the game. There is no
reason on the record that shows that Multiplex had grounds for
the injunction it sought, allegedly based on questions it claims
the Town needed to answer. Now that issue is dismissed with
prejudice, there will never be an answer to whether the request
for the injunction was based upon solid grounds.

Further, the special commissioner’s initial report contains the following

recommendations to the circuit court that are relevant to this appeal:

1. The Town of Clay is entitled to at least some of the
proceeds of the bond posted by Multiplex because Multiplex
filed a Complaint for a Temporary Injunction, well-founded or
unfounded which delayed the Town of Clay from pursuing its
business interests and resulted in the Town incurring certain
expenses before it was allowed to resume its business activities,
followed by Multiplex abandoning the Complaint after such
delay and before the Court could determine the merits of the
Complaint.

2. The amount of the bond posted by Multiplex should be
determined to have been set at $25,000.

3. Any recompense to the Town of Clay should be limited to
the amount of the Multiplex injunction bond, as Multiplex has
not been shown to have acted in bad faith that additional
sanctions should be imposed beyond that said bond.

The special commissioner issued his final report on February 14, 2012, recommending

that the petitioners’ bond be forfeited to benefit the Town of Clay “on the grounds of

Multiplex’s filing the unfounded action for an injunction which resulted in the Town of Clay

incurring costs and attorney fees.” The commissioner concluded that the invoices for legal

9

work during the time period in which the injunction was in effect were properly included in

the fees to be awarded, although he found “that the amount for which Multiplex should be

liable for abandoning its injunction action without any indication that the petition had any

merit should not exceed the amount of the said bond.”12

By order dated February 15, 2012, the circuit court adopted all recommendations

made by the special commissioner; ordered that the bond be forfeited “as the Town of Clay

proved to this Court that it suffered such expenses and costs resulting from Multiplex’s

having filed a Complaint for a Temporary Injunction, and then abandoning the Complaint

before the Court could determine the merits of the Complaint[]”; and ordered the petitioners

to pay the special commissioner’s fees in the amount of $9,344.05. Subsequently, the court

stayed its order pending appeal.

II. STANDARD OF REVIEW

12
The commissioner agreed with the petitioners that “these fees are expressed in large
blocks that make it difficult for an outside person to review the invoices to determine their
reasonableness[,]” and further agreed, although without citing any specifics, that the
respondent’s invoices included fees “that are not appropriate to tax against the bond.” It was
for these reasons, the commissioner concluded, that “the legal fees should be reduced to an
amount within the bond.”

10

 A case involving the dissolution of an injunction, after which the circuit court orders

forfeiture of the injunction bond and payment of a party’s costs and/or damages from the

bond, presents mixed issues of law and fact. This Court has held that

‘In reviewing challenges to the findings and conclusions of the
circuit court, we apply a two-prong deferential standard of
review. We review the final order and the ultimate disposition
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.’
Phillips v. Fox, 193 W. Va. 657, 661, 458 S.E.2d 327, 331
(1995) (citation omitted).

Syl. Pt. 2, Walker v. W. Va. Ethics Com’n, 201 W. Va. 108, 492 S.E.2d 167 (1997). With

respect to our review of the amount of the costs and/or damages awarded, we have held that

‘[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).

Syl. Pt. 1, Heldreth v. Rahimian, 219 W. Va. 462, 637 S.E.2d 359 (2006); see also Martin

v. W. Va. Div. of Labor Contr. Lic. Bd., 199 W. Va. 613, 616, 486 S.E.2d 782, 785 (1997)

(award of attorney fees in mandamus action reviewed under abuse of discretion standard);

Hopkins v. Yarbrough, 168 W. Va. 480, 489, 284 S.E.2d 907, 912 (1981) (award of attorney

fees in action for delinquent child support reviewed under abuse of discretion standard).

III. DISCUSSION

11

 This Court has held that “‘[a]n order of injunction is of no legal effect * * * [Code,

53-5-9], unless the court requires a bond, or recites in the order that no bond is required for

good cause, or unless the movant is a personal representative.’ Syl. Pt. 4, Syl., Meyers v.

Washington Heights Land Co., 107 W. Va. 632, 149 S.E. 819 (1929).” Syl. Pt. 2, State ex

rel. Lloyd’s Inc. v. Facemire, 224 W. Va. 558, 687 S.E.2d 341 (2009). “The purpose of the

Legislature in requiring a bond was to supply [sic] a defect in the common law, which

authorized a recovery on the issuance of an injunction only in cases where the suit was

without probable cause, or was prosecuted with malice.” State ex rel. Meadow River Lumber

Co. v. Marguerite Coal Co., 104 W. Va. 324, 326, 140 S.E. 49, 50 (1927).

In this case, there is no question that a bond was required, and that the bond was

secured by the petitioners’ payment of $2,500.00. As a threshold issue, the petitioners

contend that the amount of the bond was not $25,000.00, the amount set by the court, but

rather $2,500.00, the sum they tendered. On this point, we find the petitioners’ argument to

be frivolous.13 The circuit court clearly stated at the December 7, 2010, hearing that “I’m

setting [the bond] for $25,000 in the matter.” When petitioner’s counsel responded that “we

could post cash to the Court in roughly the ten percent amount immediately[,]” the court

agreed that it “will permit the ten percent to be posted, cash or surety[,]” after which the

13
The special commissioner found that “the position that Multiplex has taken is
without credibility.”

12

injunction would be in effect. (Emphasis supplied.) In the vernacular, the circuit court gave

the petitioners a break by allowing them to secure the bond with a ten percent cash payment

in order that the injunction they sought could go into immediate effect. It is pure sophistry

for the petitioners to now claim that because no bond document was ever filed evidencing

the $25,000.00 amount, the $2,500.00 they paid to secure the bond is the total amount that

can be recovered thereon. The duty to have a bond “acknowledged, or proved before the

clerk” is with the party obtaining an injunction, State v. Purcell, 31 W. Va. 44, 52, 5 S.E.

301, 305 (1888), and the petitioners’ failure to discharge this duty cannot be the basis for its

subsequent claim that the total amount of the bond cannot be enforced. Without question,

the amount of the bond at issue in this case was, and is, $25,000.00.

The petitioners also argue that because they dismissed their lawsuit, the injunction

bond was not “dissolved” by the court and therefore West Virginia Code § 53-5-9 does not

come into play. We disagree. Although “[t]he proposition is generally true that an injunction

once granted and perfected brings about a condition or status of persons and things that can

only be set at large by a dismissal of the bill, or by formal order of dissolution[,]” syllabus

point one, Atkinson v. Beckett, 36 W. Va. 438, 15 S.E. 179 (1892), an injunction can be

dissolved by necessary implication where “the life of the injunction was taken away by a

distinct and explicit repudiation of the sole equity that gave it vitality and perpetuated it[.]”

Id. at 442, 15 S.E. at 181.

13

 In this case, when the petitioners dismissed their case, the injunction “dissolved into

nothingness, as effectually as if the court had said, in so many words, ‘Let it be dissolved.’”

Id. For this Court to hold otherwise would be to set a precedent whereby a litigant, whose

sole purpose is to evade the consequences of the statute and avoid forfeiture,14 could dismiss

his case “in the nick of time” and leave the other party without a remedy.

The petitioners’ next argument, that the bond was not subject to forfeiture in the

absence of a finding that the underlying suit was filed in bad faith, requires little comment.

Although the respondent sought sanctions as well as forfeiture, and made numerous

allegations of bad faith on the petitioners’ part, it is clear from the record that both the special

commissioner and the circuit court treated this from the outset as a straightforward bond

forfeiture case. The special commissioner concluded (albeit without any real analysis) that

the lawsuit had not been filed in bad faith, the court accepted the commissioner’s findings

in toto, and the respondent has not cross-appealed on the issue of whether it was entitled to

sanctions.

14
There is nothing in the record to indicate that the petitioners in this case acted with
such purpose in mind when they dismissed their suit. Indeed, the record is silent as to why
they dismissed the case while the underlying contract dispute was still ongoing, with no
realistic prospect of a quick mediated settlement and in the absence of any agreement with
the Town of Clay as to the allocation of the parties’ fees and costs.

14

 In a forfeiture case, the question of bad faith does not come into play; as this Court

explained in Meadow River Lumber, the common law required such a showing, but West

Virginia Code § 53-5-9 does not. 104 W. Va. at 326, 140 S.E. at 50. The statute provides,

in relevant part, that an injunction bond shall be given “in such penalty as the court or judge

awarding it may direct, with condition to pay . . . such damages as shall be incurred or

sustained by the person enjoined, in case the injunction be dissolved[.]” This Court has

consistently held that “[t]he defendant to a dissolved injunction has two remedies, – one

(statutory) on the injunction bond; the other (common law) for the malicious use of judicial

process, without probable cause.” Glen Jean, Lower Loup & D. R. Co. v. Kanawha, Glen

Jean & E. R. Co., 47 W. Va. 725, 727, 35 S.E. 978, 978 (1900). Inasmuch as this case

involves the former remedy, not the latter, the presence or absence of malice, probable cause

or bad faith is immaterial.

The petitioners next argue that attorney fees and costs are not an element of damages

that may be recovered in a bond forfeiture. The petitioners rely upon Bush v. Carden, 111

W. Va. 631, 163 S.E. 54 (1932), for the proposition that where an injunction is only ancillary

to the main object of the suit, which was dismissed without prejudice, attorney fees and costs

incurred are not recoverable from an injunction bond. This is not a fair reading of Bush,

which holds in syllabus point two that “[i]n an action on an injunction bond, when the

injunction is only ancillary to the main object of the suit, counsel fees paid for services in the

15

suit as a whole, are not recoverable.” Id. at 631, 163 S.E. at 54 (emphasis supplied.) In this

regard, Bush was completely consistent with this Court’s earlier decision in Meadow River

Lumber, where we held in syllabus point two that

[w]hen counsel fees and personal expenses are sought to be
recovered as damages on an injunction bond, it is incumbent on
the plaintiff to show either that injunction was the sole relief to
which the suit pertained or that the fees and expenses were paid
out solely for the purpose of procuring a dissolution of the
injunction, as distinguished from expenditures for the hearing of
the principal issues involved in the case.

104 W. Va. at 324, 140 S.E. at 49; see also Meyers v. Washington Heights Land Co., 107 W.

Va. 632, 149 S.E. 819 (1920); Wolverton v. Holcomb, 174 W. Va. 812, 329 S.E.2d 885

(1985).

The petitioners’ next argument, that the attorney fees and costs incurred by

respondent were not shown to have resulted from its efforts to secure a dissolution of the

injunction, merits more discussion. As noted, our precedents make it clear that only attorney

fees and costs incurred by the party enjoined, for the purpose of securing a dissolution of the

injunction, are recoverable as damages under the statute. See State ex rel. Shatzer v. Freeport

Coal Co., 144 W. Va. 178, 181, 107 S.E.2d 503, 506 (1959) (distinguishing between costs

16

incurred in seeking dissolution of an injunction and damages incurred as a result of the

injunction); Bush, 111 W. Va. at 634, 163 S.E. at 55 (to same effect).15

In the instant case, notwithstanding the special commissioner’s acknowledgment that

the invoices for attorney fees were “block entry” invoices with no indication of the time

devoted to individual tasks, and notwithstanding that many of the entries on the invoices

appear to relate to the Town’s defense on the merits, see notes 11 & 12 supra, the

commissioner simply reduced the fees to the total amount of the bond, $25,000.00,

apparently concluding that this solved the problem. The circuit court accepted the

commissioner’s report in toto, without giving the petitioners an opportunity to present

evidence or argument to support their objection thereto. Based on our review of the record,

this Court finds that the commissioner’s analysis was flawed and the circuit court therefore

erred in accepting his findings.

15
Although the petitioners interject in their brief the issue of whether the respondent
suffered any damages as a result of the injunction, that is not relevant in this case inasmuch
as the circuit court’s order limited forfeiture to the fees and costs incurred by the respondent.
And in any event, documentation in the appendix record indicates that the respondent was
paid for any “delay damages” when United States Surety tendered a check in the amount of
$899,000.00, which included payment for damages incurred as a result of project delay
during the period in which the injunction was in effect.

17

 Although a percentage reduction may well be a proper approach when evaluating the

reasonableness of a fee request supported by block entry invoices,16 it is wholly insufficient

where the threshold question is whether the legal tasks are compensable at all. In this case,

the threshold question was whether the legal fees incurred by the Town resulted from its

attempt to secure a dissolution of the injunction, in which case the fees were payable from

the bond, or from the Town’s defense on the merits of the contract action, in which case the

fees were not.17 Neither the special commissioner nor the circuit court ever analyzed the fee

16
Many courts will reduce fees where “block entry” invoices are presented. E.g.,
Orthopedic Assoc. of 65 Pennsylvania Ave. v. Sedor, Nos. 3:00-cv-238 (GLS) & 3:02-cv-255
(GLS), 2011 WL 4074320, at *8 (N.D.N.Y. Sept. 13, 2011) (“the single-block entries for the
period from January to October 2001 render a meaningful evaluation of their reasonableness
impossible, which warrants a 10% reduction of the fees from that period”); Bostic v. Am.
Gen. Fin., Inc., 87 F.Supp.2d 611 (S.D.W.Va. 2000) (reducing fee request by 15% where
documentation of hours was inadequate).
17
In syllabus point two of Meadow River Lumber, we held that following dissolution
of an injunction, a party seeking to recover its attorney fees from the bond must prove “either
that injunction was the sole relief to which the suit pertained or that the fees and expenses
were paid out solely for the purpose of procuring a dissolution of the injunction[.]” 104 W.
Va. At 324, 140 S.E. at 49. In this case, although the circuit court at one point indicated its
belief that the petitioners’ Complaint set forth a prayer for injunction and nothing more, all
of the parties treated the complaint as setting forth a cause of action for breach of contract.
In this regard, before the petitioners dismissed the case, the parties had commenced discovery
on the merits and undertaken efforts to mediate the claim. In light of these facts, the Town
does not, and indeed could not, claim that “injunction was the sole relief to which the suit
pertained.” Thus, in order to recover its fees from the bond, the Town must demonstrate that
its “expenses were paid out solely for the purpose of procuring a dissolution of the
injunction.”

18

invoices to resolve this question, and indeed, it is difficult to imagine how they could have

done so in the absence of a hearing.18

The petitioners’ final argument is that they were entitled to a hearing to determine the

reasonableness of the Town’s attorney fees. We agree. It has long been established that

‘[w]here 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 factor 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.’

18
Counsel for the Town asserted at oral argument that the petitioners affirmatively
waived their right to a hearing, relying, as evidentiary support for this assertion, on an e-mail
of May 25, 2011, from the petitioners’ prior counsel to the special commissioner. This e-
mail is not a part of the voluminous appendix record, see note 1 supra, and by Order of
November 14, 2012, this Court denied the Town’s motion to supplement the record. The e-
mail was not a part of the record below and therefore cannot be considered on appeal;
dueling e-mails by or between counsel are not a substitute for record evidence.

In any event, we note that the petitioners filed numerous pleadings, both during and
after the proceedings before the special commissioner, seeking discovery and complaining
that their inability to cross-examine and test the Town’s evidentiary submissions deprived
them of due process of law. The petitioners made the same arguments in their objections to
the commissioner’s report. On these facts, this Court would not find an implied waiver even
if the e-mail had been made a part of the appendix record.

19

 Syl. Pt. 4, Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 342
S.E.2d 156 (1986).

Syl. Pt. 12, Horkulic v. Galloway, 222 W. Va. 450, 665 S.E.2d 284 (2008).

The determination of whether fees are reasonable “is simply a fact driven question that

must be assessed under the Pitrolo factors.” Id. at 466, 665 S.E.2d at 300 (Davis, J.,

concurring). In order for a circuit court to determine those facts, it must allow the parties to

present evidence on their own behalf and to test their opponents’ evidence by cross-

examination, “‘the greatest legal engine ever invented for the discovery of truth[.]’”

California v. Green, 399 U.S. 149, 158 (1970) (citing 5 Wigmore § 1367). See Paugh v.

Linger, 228 W. Va. 194, 201, 718 S.E.2d 793, 800 (2011) (ordering, in reliance on Pitrolo,

that “[t]he issue is remanded to the circuit court with directions to remand to the family court

for entry of an order making findings of fact which would allow a court to engage in

meaningful review of the award of attorney’s fees.”); Kanawha Valley Radiologists, Inc. v.

One Valley Bank, N.A., 210 W. Va. 223, 229, 557 S.E.2d 277, 283 (2001) (“We have

previously determined, on numerous occasions, that a circuit court has erred by failing to

afford a party notice and the opportunity to be heard prior to awarding attorney’s fees.”);

(Statler v. Dodson, 195 W. Va. 646, 653-55, 656, 466 S.E.2d 497, 504-06, 507 (1995)

(remanding for a hearing on several issues including, “if appropriate, the reasonableness of

the requested attorney’s fees followed by the preparation of findings of fact and conclusions

of law as predicates to the ultimate decision as to the amount of fees to be paid.”); Daily

20

Gazette Co. v. Canady, 175 W. Va. 249, 251, 332 S.E.2d 262, 264 (1985) (“‘Like other

sanctions, attorney’s fees certainly should not be assessed lightly or without fair notice and

an opportunity for a hearing on the record.’”) (citing Roadway Express, Inc. v. Piper, 447

U.S. 752, 766-67 (1980)).

This Court’s decision in Corporation of Harpers Ferry v. Taylor, 227 W. Va. 501, 711

S.E.2d 571 (2011), is not to the contrary. In Harpers Ferry, the petitioner had not contested

the amount of attorney fees sought, and “[i]mportantly . . . did not request an evidentiary

hearing. The City merely argued in its response that the evidence was insufficient to award

attorney’s fees.” Id. at 506, 711 S.E.2d at 576. Noting that the petitioner’s first request for

an evidentiary hearing was made in its Rule 59(e) motion to alter or amend the judgment, we

concluded that “Rule 59(e) is not a vehicle for a party to undo his/her own procedural failures

or to advance arguments that could have been presented to the trial court prior to judgment.”

Id. (citing Franklin D. Cleckley, Robin J. Davis, Louis J. Palmer, Jr., Litigation Handbook

on the West Virginia Rules of Civil Procedure, § 59(e), at 1179 (3d ed.2008)).

We have made clear that while a court is not required to make detailed findings on

each and every element of the Pitrolo test, some being irrelevant in a given situation, the

court must make findings sufficient to permit meaningful appellate review. See Shafer v.

Kings Tire Serv., Inc., 215 W. Va. 169, 177, 597 S.E.2d 302, 310 (2004) (“Because our abuse

21

of discretion review is limited to analyzing whether the circuit court engaged in a proper

balancing of applicable factors, we have found that a ‘circuit court is required to make

findings of fact and conclusions of law on the issue of attorneys’ fees.’”);19 Heldreth v.

Rahimian, 219 W. Va. 462, 470, 637 S.E.2d 359, 367 (2006) (“While the trial court’s

findings relative to the fee award in this case amount to more than the summary conclusion

of a specific fee award that this Court found deficient in [Shafer], the findings made in this

case do not fully comport with what is required under both Bishop Coal [Co. v. Salyers, 181

W. Va. 71, 380 S.E.2d 238 (1989)]20 and Pitrolo.”); Erwin v. Henson, 202 W. Va. 137, 143,

502 S.E.2d 712, 718 (1998) (finding that circuit court’s order reducing fee request failed to

19
The language quoted in Shafer was from this Court’s decision in Landmark Baptist
Church v. The Brotherhood Mut. Ins. Co., 199 W. Va. 312, 316, 484 S.E.2d 195, 199 (1997).
In Landmark, although we deemed the circuit court’s findings to be “minimal,” id., we
nonetheless upheld the circuit court’s judgment because the record demonstrated that court
had thoroughly considered the Pitrolo factors in arriving at its decision. In contrast, in this
case there is no indication that either the special commissioner or the circuit court did any
Pitrolo analysis, all of which flows from the absence of a hearing and the concomitant denial
of an opportunity for petitioners to contest the fee invoices submitted by the Town of Clay.

20
In Bishop Coal, while this Court agreed that attorney fees in a human rights case
should be reduced to the extent that hours were devoted to issues on which the complainant
did not prevail, we found “that in Ms. Salyers’ case the appellant failed to refine its general
argument to apply to the specific facts before us.” 181 W. Va. at 83, 380 S.E.2d at 250. In
contrast, in the instant case, the petitioners have argued that the Town is not entitled to
attorney fees for hours devoted to litigating the merits of the case, and that the petitioners
were precluded from establishing the specific facts against which to apply the law. We agree
with both prongs of this argument.

22

provide sufficient reasoning to permit parties to “respond meaningfully . . . and . . . submit

additional supporting written documentation or explanation”).

In the instant case, because there was no hearing either before the special

commissioner or the circuit court, and therefore no way for the petitioners to cross examine

or otherwise meaningfully contest the Town’s proffered evidence, there was nothing on

which either the commissioner or the court could base findings of fact sufficient to permit

meaningful review.21 Accordingly, the case must be remanded for the taking of evidence

and the resolution of any material issues of fact.

In summary, we affirm the circuit court’s ruling that the amount of the injunction bond

was $25,000.00, affirm the court’s ruling that the respondents are entitled to recover attorney

fees pursuant to West Virginia Code § 53-5-9, and affirm the court’s implicit ruling that the

respondents are entitled to recover attorney fees notwithstanding the special commissioner’s

finding that the petitioners did not act in bad faith. However, because the circuit court did

not make findings as to whether the Town’s attorney fees were incurred in attempting to

secure a dissolution of the injunction, and because the court did not hold a Pitrolo hearing

in order to determine the reasonableness of the fees under the factors established in that case,

21
We do not understand the basis for the special commissioner’s apparent belief that
disputed issues of fact in this matter could be resolved by proffer.

23

we reverse and remand this case for a Pitrolo hearing, after which the circuit court shall

make findings of fact and conclusions of law sufficient to allow meaningful appellate review

in the event either party elects to file an appeal.

IV. CONCLUSION

The judgment of the Circuit Court of Clay County is affirmed, in part, reversed, in

part, and remanded for further proceedings consistent with this opinion.

Affirmed in part; reversed in part; and remanded.

24