Mimi's Inc. and Harold R. Arbaugh v. BAI Riverwalk

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

Mimi’s Inc., and Harold R. Arbaugh,
Defendants and Third-Party Plaintiffs Below, Petitioners FILED
March 23, 2020
vs.) No. 18-0775 (Kanawha County 14-C-513) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
BAI Riverwalk, L.P.; Zamias Services, Inc.;
Kimco Riverwalk Corporation; Kimco
Riverwalk 595, Inc.; and Kimco Riverwalk, L.P.,
Plaintiffs and Third-Party Defendants Below, Respondents

MEMORANDUM DECISION

Petitioners Mimi’s Inc., (“Mimi’s”) and Harold R. Arbaugh, by counsel Ancil G. Ramey,
appeal multiple orders of the Circuit Court of Kanawha County, referenced specifically below,
including orders awarding summary judgment to respondents on petitioners’ counterclaims against
Respondent BAI Riverwalk, L.P. (“BAI”) and petitioners’ third-party claims against Respondent
Zamias Services, Inc., (“Zamias”) and Respondents Kimco Realty Corporation; Kimco Riverwalk
595, Inc.; and Kimco Riverwalk, L.P. (collectively referred to as “Kimco”). Petitioners further
appeal the circuit court’s award of a judgment to Respondent BAI for unpaid rent and associated
damages, including attorney’s fees. Respondent Kimco, by counsel Joseph T. Cramer, filed a
response in support of the circuit court’s order awarding summary judgment to Kimco.
Respondents BAI and Zamias, by counsel Mychal S. Schulz, filed a response in support of the
circuit court’s orders. Petitioners filed a reply.

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

The underlying litigation arises from petitioners’ lease of a 2,620 square foot commercial
space at Riverwalk Plaza Shopping Center (“Riverwalk”) in South Charleston, West Virginia. On
January 18, 2011, Respondent Kimco and Petitioner Mimi’s executed a lease agreement for the
premises at issue for a period of five years, with a base monthly rent of $4,148.33.1 In addition to
the commercial lease agreement, Petitioner Arbaugh, president of Mimi’s, executed a “Guaranty”
in which he personally “guarantee[d] all of the payments to be made by [Mimi’s] under the

1
The term of the lease commenced on March 17, 2011.

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[l]ease.” In April of 2011, petitioners opened a restaurant and video gaming establishment in the
leased space.

On March 30, 2012, Respondent Kimco sold its interest in Riverwalk to Respondent BAI,
and, that same day, assigned its interest in all Riverwalk leases, including petitioners’ lease, to
BAI. On January 8, 2014, petitioners ceased operation of their restaurant and video gaming
establishment in the leased space. In March of 2014, BAI filed the underlying litigation against
petitioners alleging breach of contract, breach of the covenant of good faith and fair dealing, and
“collection on guaranty” executed by Petitioner Arbaugh. BAI sought unpaid rent totaling
$10,242.42 and rent for the balance of the lease totaling $141,769.98.2

On April 30, 2014, petitioners served their answer and a counterclaim against BAI alleging
BAI’s breach of contract, breach of lease, breach of quiet enjoyment, fraud in inducement,
conversion, theft, trespassing, negligence, breach of the covenant of good faith and fair dealing,
and gross negligence, reckless, willful, and wanton conduct. Specifically, petitioners alleged that
BAI

(1) tore down and illegally removed a substantial part of the leased premises,
causing [petitioners] substantial economic and business harm; (2) failed to repair
and replace the HVAC unit as verbally represented in the lease negotiations and as
thereafter represented in the lease; (3) failed to remove mold on the premises; (4)
failed to properly repair multiple roof leaks, as well as leaks in the rear window of
the premises; (5) improperly tore down the [petitioners’] fencing on its premises;
(6) failed to properly lease back the adjoining leased structure as represented; (7)
failed to properly credit [petitioners’] initial lease deposit; (8) allowed water leaks
to cause damage to the rented premises as well as video lottery machines utilized
by [petitioners] on the leased premises; (9) improperly destroyed and removed
[petitioners’] deck and seating area; and (10) improperly and illegally billed
[petitioners] for services, repairs[,] and clean up that was not the responsibility of
[petitioners].

Petitioners then sought leave to file a third-party complaint against Respondents Kimco
and Zamias3 setting forth factual allegations similar to those alleged against BAI, but also
including claims for civil conspiracy and tortious interference with a contractual and business
relationship. Petitioners were granted leave to file their third-party complaint on May 29, 2015.4

2
On August 6, 2014, four months after petitioners’ breach of the lease, BAI entered into a
written lease with Ivy’s LLC for the property at issue. Ivy’s lease became effective on November
8, 2014, at a charge of $3,471.83 per month, and continued through April 30, 2016.
3
Zamias Services was the property manager hired by BAI for the Riverwalk properties.
4
Petitioners also sought leave to include third-party claims against Bon Aviv Investments,
LLC (“Bon Aviv”), a company affiliated with BAI. Petitioners were granted leave to pursue third-

2
 On October 19, 2016, Kimco filed a motion for summary judgment, to which petitioners
responded. Kimco’s motion for summary judgment was granted by the circuit court on December
19, 2016. On May 4, 2017, BAI and Zamias filed a joint motion for summary judgment, to which
petitioners replied. A hearing was held on the motion on June 1, 2017. By order entered June 21,
2017, the circuit court granted BAI and Zamias’ motion for summary judgment for reasons similar
to the reasoning employed by the court when granting summary judgment to Respondent Kimco.
Further, with no other claims pending against Zamias, the court dismissed it from the case, with
prejudice.

On August 7, 2017, a bench trial commenced on BAI’s claims against petitioners.5 The
only witness called to testify by BAI was a representative of Zamias who offered testimony as to
the lease, Zamias’ work for BAI, petitioners’ abandonment of the property, and calculation of
BAI’s damages. In the presentation of their case, petitioners called Tommy Clay, operator of a
company that leased video poker machines to petitioners, as a witness. Mr. Clay testified that, on
at least two occasions, one of his video poker machines at the leased premises sustained water
damage, that he visited the location once or twice a week, and that the water problems at the
premises were “constant.” Mr. Clay testified that he contacted petitioners’ property management
regarding these issues but was advised there was nothing to be done to correct the problem. Next,
petitioners called Petitioner Arbaugh to testify. Petitioner Arbaugh testified that he spent over
$90,000 remodeling the leased space but the leaking roof and mold problems persisted and
negatively impacted his business. Petitioners’ final trial witness was Ron McVey, who installed
electronic security and other equipment at the leased premises. Mr. McVey testified about prolific
water infiltration that caused electronic equipment to be damaged and that he did not believe the
space was “fit to be occupied.”

On October 2, 2017, the circuit court entered a preliminary judgment order in favor of BAI.
In the preliminary judgment order, the court found total damages claimed by BAI for lost rent and
other payments due under the lease was $91,285.80.6 The circuit court was critical of petitioners’
failure to present any “photographs or other evidence that depicted or reflected the alleged water
damage or mold” and found no justification or excuse to substantiate petitioners’ non-compliance
with the lease agreement. In addition to an award of damages to BAI, the circuit court’s judgment
included an award of attorney’s fees to BAI counsel “in an amount to be determined based upon a

party claims against Bon Aviv. Petitioners’ claims against Bon Aviv were subsequently dismissed
and are not at issue in the instant appeal.
5
In paragraph 15, subsection (G) of the parties’ lease agreement, it is noted that the parties
“mutually agree that they hereby waive trial by jury in any action proceeding or counterclaim
brought by either against the other as to any matters arising out of or in any way connected with
the” lease.
6
The court found that for lost rents and other amounts due under the lease agreement, those
amounts totaled (1) $56,773.85 for the period of time the premises was leased solely to petitioners;
(2) $33,348.18 for the period in which Ivy’s occupied “a portion of the space and paid rent”; (3)
$6,058.80 in costs incurred by BAI for a leasing commission related to the Ivy’s lease; (4) and
application of petitioners’ security deposit of $4,895.03 against the claimed damages.
3
provision” contained in the lease agreement. The lease agreement, at paragraph twenty-two,
contains a provision titled “failure of performance by tenant” which provides: “[t]enant shall pay
all reasonable attorneys’ fees, costs and expenses incurred by Landlord in enforcing the provisions
of this Lease, suing to collect Rent . . . whether the lawsuit or other action was commenced by
Landlord or by Tenant.”

Petitioners argue that BAI did not request attorney’s fees under this provision of the lease
agreement and did not address the same in its summary judgment motion or at the bench trial.
Further, petitioners argue that BAI never “filed a petition or motion for” attorney’s fees. However,
despite these objections and as directed by the court, on October 11, 2017, BAI submitted
documentation related to its attorney’s fees. On October 16, 2017, petitioners filed a formal
objection to the proposed attorney’s fees and argued that the same made no reference to the factors
outlined in Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986). Petitioners
requested an evidentiary hearing.

On November 30, 2017, BAI responded to petitioners’ objections, to which petitioners
submitted a reply. A hearing was held before the circuit court on December 6, 2017. Ultimately,
the court determined that BAI was entitled to reimbursement of its attorney’s fees. Specifically,
the court ruled that it did not find that a formal “petition” for BAI’s attorney’s fees and expenses
was necessary, as the request for attorney’s fees herein arose from a contractual obligation (the
lease agreement of the parties). The court further noted that inasmuch as BAI had submitted its
claim for attorney’s fees, including invoices other documents to support its claims, that the same
represented a “petition” for those fees, costs, and expenses. The court found that BAI’s claims for
attorney’s fees satisfied the applicable Pitrolo factors, and the same were reasonable and necessary
to enforce the terms of the lease.

Over the objections of petitioners, on December 25, 2017, the circuit court entered a
proposed final judgment order awarding BAI attorney’s fees and litigation expenses in the amount
of $129,351.10. Thereafter, petitioners filed a motion for a new trial and motion to alter or amend
judgment under Rule 59(e) of the West Virginia Rules of Civil Procedure. Petitioners’ motions
were denied by order dated July 31, 2018. It is from the July 31, 2018, order denying petitioners’
post-trial motions; the October 2, 2017, preliminary judgment order; the December 25, 2017, final
judgment order; the June 21, 2017, order granting BAI and Zamias summary judgment; and the
December 19, 2016, order granting Kimco summary judgment that petitioners now appeal.

In their petition for appeal, petitioners advance seven assignments of error. In their first
three assignments of error, petitioners argue that the circuit court erred in granting summary
judgment to Respondents Kimco, Zamias, and BAI. Petitioners argue, in their fourth assignment
of error, that the circuit court erred by excluding certain evidence at trial. In their fifth assignment
of error, petitioners take issue with the findings of fact and conclusions of law made by the circuit
court in support of the preliminary judgment order. Petitioners contend, in their sixth assignment
of error, that the circuit court erred in awarding attorney’s fees and litigation expenses to BAI.
Finally, in its seventh assignment of error, petitioners argue that the circuit court erred in denying
petitioners’ post-trial motions. We will address each of petitioners’ assignments of error in turn.

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v.

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Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). This Court has long held that

[s]ummary judgment is appropriate where the record taken as a whole could
not lead a rational trier of fact to find for the nonmoving party, such as where the
nonmoving party has failed to make a sufficient showing on an essential element
of the case that it has the burden to prove.

Id. at syl. pt. 4. Further, this Court has noted that “the party opposing summary judgment must
satisfy the burden of proof by offering more than a mere ‘scintilla of evidence’ and must produce
evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.” Williams v.
Precision Coil, Inc., 194 W. Va. 52, 60, 459 S.E.2d 329, 337 (1995) (citing Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512. (1986)).

Petitioners challenge, in their first three assignments of error, the court’s award of summary
judgment to Respondents Kimco, Zamias, and BAI as to petitioners’ third-party and counterclaims.
Petitioners’ third-party and counterclaims are substantially similar in nature and each relate to
petitioners’ lease of the subject premises from respondents, which is governed by the lease
agreement executed between the parties.7 The lease agreement specifically provided, at paragraph
15 subsection (G), that:

Landlord and Tenant mutually agree that they hereby waive trial by jury in any
action, proceeding or counterclaim brought by either against the other as to any
matters arising out of or in any way connected with this Lease, or their relationship
as Landlord and Tenant, or Tenant’s use or occupancy. Tenant agrees that no
counterclaim or setoff will be interposed in any action by Landlord based on non-
payment of Rent, even if such counterclaim or set off is based on Landlord’s
alleged breach of a duty to repair or alleged breach of quiet enjoyment, or any
other allegation. [Emphasis Added].

With regard to contracts, this Court has found that “[a] valid written instrument which
expresses the intent of the parties in plain and unambiguous language is not subject to judicial
construction or interpretation but will be applied and enforced according to such intent.” Syl. Pt.
1, Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962). “Where the
parties to a contract have specified therein the conditions upon which an action upon the contract
may be maintained, such conditions precedent generally must be complied with before an action
for breach of contract may be properly brought.” Syl. Pt. 1, Vaughan Constr. Co. v. Va. Ry. Co.,
82 W. Va. 658, 97 S.E. 278 (1918). This Court has further reasoned that

[t]here is no more firmly rooted principle of law than that these parties had
a right to make whatever contract they pleased with reference to this property.
Under the broad liberty of contract allowed by law, parties may make performance
of any comparatively, or apparently, trivial and unimportant covenant, agreement,

7
As referenced hereinabove, the lease was executed between Kimco and petitioners, and
subsequently assigned to Respondent BAI. Respondent Zamias was the property manager for
Respondent BAI.
5
 or duty under the contract a condition precedent, and in such case, the contract will
be enforced or dealt with as made.

Watzman v. Harry L. Unatin, 101 W. Va. 41, 51, 131 S.E. 874, 878 (1926). Here, BAI brought an
action against petitioners seeking recovery of monies due under the lease agreement, to which
petitioners filed a counterclaim and third-party claims in an attempt to explain its alleged breach
of the lease. However, pursuant to the express terms of paragraph 15, subsection (G) of the lease
agreement, the circuit court concluded, and we now concur, that petitioners’ counterclaims and
third-party claims were improper as petitioners were “barred from asserting any counterclaim or
setoff in an action brought by” BAI for collection of past due rent. We further find that, based upon
the unique facts and circumstances of this case, the prohibition extended to prevent petitioner from
asserting similar claims against Respondent Kimco (BAI’s predecessor in interest)8 and
Respondent Zamias (who had no ownership interest in the property and simply served as the agent
of BAI).

The circuit court additionally found that petitioners failed to establish a prima facie fraud
claim against Kimco, BAI, or Zamias. See Tri-State Asphalt Products, Inc. v. McDonough Co.,
182 W. Va. 757, 391 S.E.2d 907 (1990). Petitioners allege that they were improperly induced to
enter into the lease agreement as a result of an oral promise made during lease negotiations.
Specifically, petitioners contend that a Kimco representative “orally represented that if
[petitioners] entered in to the lease agreement the monthly rent payments and size of the demised
premises would be 45% less than the parties’ written contract.”

In awarding summary judgment to respondents as to petitioners’ fraud claims, the circuit
court again cited to a provision of the parties’ executed lease agreement, (paragraph 24, subsection
(A)), that provided that “[n]o oral statements or representations or written matter not contained in
this lease shall have any force or effect.” The circuit court determined, and we agree, that this
provision was “sufficient to negate the essential fraud element of reliance[,]” thus defeating
petitioners’ claims against Kimco, BAI, and Zamias for fraud in the inducement. Further, we note
that the lease agreement identified “in express terms both the amount of monthly rent and the size
of the leased premises.” With such an express designation, petitioners’ arguments regarding
contradictory oral statements are disingenuous.

The circuit court further determined that petitioners failed to identify any evidence to
establish a claim against respondents for theft, conversion, or trespass, and found no liability
against respondents in tort, as petitioners “have not identified any evidence to establish the
existence of a legal duty owed outside of the parties’ contractual duties and have not identified any
evidence to establish the essential element of breach.” The circuit court recognized that petitioners
presented “no evidence to establish that any request was ever made to” respondents related to “any

8
In paragraph 23 subsection (A) of the parties’ lease agreement, it is noted that in “the
event of a transfer by Landlord of its interests in this Lease, the transferor shall be automatically
released from all liability and obligations as Landlord.” Thus, as Kimco sold its interest to BAI on
March 30, 2012, and assigned its interest in the lease agreement at issue to BAI at the same time,
Kimco was released from all liability and obligations of the landlord.

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problems with the leased premises in the scope of the [l]ease [a]greement.” Rather, the premises
was leased in an “as is” condition.

The provisions of the lease agreement itself negate petitioners’ claims for breach of
contract associated with the condition of the property, as petitioners, in paragraph seven of the
lease agreement, acknowledged that they had examined/inspected the property at issue and
accepted the same “as is” and recognized that the

[l]andlord is not obligated with respect to either the leased premises or the shopping
center to make any improvements, changes, installations, do any work, make any
alterations, repairs or replacement, clean out the leased premises, obtain any
permits, licenses or governmental approval, or spend any money either to put tenant
in possession or to permit tenant to open for business, unless landlord has so agreed
expressly in this lease.

Upon taking possession of the premises, petitioners executed a “tenant delivery form” in
which they acknowledged that they had inspected the premises and would, within five days, submit
a written list to the landlord of any items requiring completion. Here, there is no evidence that
petitioners ever submitted a list to respondents identifying any deficiencies within the leased
premises after inspection. Further, if petitioners, as tenants, requested any repairs, the requests
were to be made in writing pursuant to Paragraph 10(B) of the lease agreement. Again, petitioners
did not provide respondents with any written notice requesting repairs to any portion of the leased
premises to any of the respondents. Given such evidence, we find that the circuit court did not err
in awarding summary judgment to respondents.

In their fourth assignment of error, petitioners contend that the circuit court erred in
excluding evidence that, when purchasing the Riverwalk shopping plaza from Kimco, BAI
received a $140,000 purchase credit. Petitioners contend that any judgment rendered against it
must be reduced by this purchase credit, as the same directly related to petitioners’ leasehold and
petitioners’ non-payment of rent.

Prior to trial, BAI filed a motion in limine to exclude evidence of this purchase credit at
trial. BAI argued that this credit did not compensate BAI for any damages sought in this action.
Petitioners responded to BAI’s motion in limine and argued that the purchase credit was
“singularly the most important evidence in the case.” On January 10, 2017, the circuit court granted
BAI’s motion in limine finding that the credit was not relevant to whether petitioners breached the
terms of the lease agreement at issue. The court reasoned that whether BAI was incentivized to
purchase Riverwalk bears no relationship to whether petitioners failed to pay monies owed under
the lease agreement.

Petitioners now contend that the parties should have had the “opportunity for a jury to
decide what weight to give to the competing arguments of the parties” regarding the purchase
credit, and in holding otherwise, the circuit court was clearly wrong. We disagree.

We review a trial court’s ruling on a motion in limine under an abuse of discretion standard.
See Syl. Pt. 1, McKenzie v. Carroll Int’l Corp., 216 W. Va. 686, 610 S.E.2d 341 (2004). Here, the

7
circuit court correctly reasoned “[w]hen taken in context with the totality of the purchase and sale
agreement . . . the “credit” was not intended to, nor did it under the plain terms of the lease
agreement . . . modify or relieve [petitioners] of any payment obligations owed under the lease.”
As to petitioners’ arguments that evidence relating to the credit was proper for a jury to hear
ignores the fact that the parties herein “mutually agreed to waive a jury trial.” Accordingly, we
find that the circuit court did not abuse its discretion in excluding such evidence from consideration
at trial.

In its fifth assignment of error, petitioners argue that the circuit court erred in finding that
BAI was entitled to $91,285.80 in damages associated with the breach of the lease agreement.
Specifically, petitioners are critical of the circuit court’s failure to include, in the preliminary
judgment order, five findings of fact and three conclusions of law that were proposed by
petitioners–each of which relate to the testimonial evidence petitioners presented during trial.

In reviewing challenges to the findings and conclusions of the circuit court
made after a bench trial, a two-pronged deferential standard of review is applied.
The final order and the ultimate disposition are reviewed under an abuse of
discretion standard, and the circuit court’s underlying factual findings are reviewed
under a clearly erroneous standard. Questions of law are subject to a de novo
review.

Syll. Pt. 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538
(1996).

Rule 52(a) of the West Virginia Rules of Civil Procedure provides, in relevant part, that,
in all actions tried upon the facts without a jury, “[f]indings of fact, whether based on oral or
documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be
given to the opportunity of the trial court to judge the credibility of the witnesses.” Petitioners
argue that the court erred in rejecting the “substantial evidence tendered in support of their claims”
and entered a preliminary judgment order that did not include petitioner’s proposed findings of
fact and conclusions of law. Conversely, respondents argue, and we agree, that the circuit court
did not make any erroneous findings of fact or conclusions of law. Here, the circuit court as the
finder of fact observed each witness and made judgments regarding their credibility and veracity.
The court’s determination of the obviously self-serving evidence proffers made by the petitioners
at trial were well documented and addressed specifically in the preliminary judgment order at
paragraphs 12, 13, 14, 15, and 16. Critically, the court noted that petitioners failed to provide any
demonstrative evidence such as photographs to substantiate their claims, which the court expected
from “experienced and sophisticated businessmen” such as the petitioners’ witnesses. The court
further expressly noted, in paragraph 16, that: (1) Petitioner Arbaugh and petitioners’ proffered
witnesses, Tommy Clay and Ronald McVey, have known each other for a number of years; (2)
Mr. Clay’s wife is the bookkeeper for Petitioner Mimi’s; (3) Petitioner Arbaugh’s office is in the
same space as Mr. Clay’s office; and (4) Mr. McVey has installed security cameras and systems
for businesses owned by Mr. Clay and businesses owned by Petitioner Arbaugh. Accordingly, as
the circuit court’s findings and conclusions were specifically based upon its determination of the
credibility of witnesses, we find no error.

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 Next, petitioners argue that the circuit court erred in awarding attorney’s fees to BAI.
Regarding attorney’s fees, this Court has stated that

“[t]he decision to award or not to award attorney’s fees rests in the sound discretion
of the circuit court, and the exercise of that discretion will not be disturbed on
appeal except in cases of abuse.” Beto v. Stewart, 213 W.Va. 355, 359, 582 S.E.2d
802, 806 (2003). 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 attorney’s fees.”); Syl. pt. 2, Daily Gazette Co., Inc., v. West
Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999)(“ ‘ “ ‘[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.’ Syllabus point 3, [in part,] Bond v. Bond, 144 W.Va. 478, 109
S.E.2d 16 (1959).” Syl. pt. 2, [in part,] Cummings v. Cummings, 170 W.Va. 712,
296 S.E.2d 542 (1982) [(per curiam)].’ Syllabus point 4, in part, Ball v. Wills, 190
W.Va. 517, 438 S.E.2d 860 (1993).”).

Corp. of Harpers Ferry v. Taylor, 227 W. Va. 501, 504, 711 S.E.2d 571, 574 (2011). We have
further reasoned that “[a]n award of attorney’s fees is appropriate where the governing document
contains a provision allowing for the recovery of such fees. Moore v. Johnson Serv. Co., 158 W.Va.
808, 219 S.E.2d 315, 323 (1975) (holding that the prevailing party should be granted attorney’s
fees as provided for in a commercial lease agreement).” Tuckwiller v. Tuckwiller, No. 19-0345,
2020 WL 598336, *2 (W. Va. Feb. 7, 2020)(memorandum decision).

Despite the fact that the recovery of attorney’s fees was expressly provided for in the lease
agreement executed by the parties, petitioners now argue that the circuit court abused its discretion
in awarding attorney’s fees to BAI as BAI made no specific request for attorney’s fees in the
underlying litigation. However, the circuit court determined that no specific petition or request for
attorney’s fees and expenses was necessary, as the request for attorney’s fees herein arose from a
contractual obligation. The court further noted that, inasmuch as BAI had submitted its claim for
attorney’s fees, including invoices and other documents to support its claims, that the same
represented a “petition” for those fees, costs, and expenses. Based upon our review of the record,
including the express provisions of the parties’ lease agreement, we find that the circuit court did
not abuse its discretion in awarding attorney’s fees to Respondent BAI.9

Lastly, petitioners contend that the circuit court erred in denying petitioner’s post-trial

9
We note that within their assignment of error as to the propriety of the award of attorney’s
fees, costs, and expenses to Respondent BAI, petitioners are critical of the circuit court’s alleged
failure to analyze the award of attorney’s fees under the factors outlined in Pitrolo. We find no
merit in petitioners’ argument. Here, within its December 15, 2017, Final Judgment Order, the
circuit court discussed the Pitrolo factors and expressly concluded that BAI’s claims for attorney’s
fees, costs, and expenses “satisfies the applicable Pitrolo factors,” and that the same were
reasonable and necessary to enforce the terms of the lease.

9
motions. “The standard of review applicable to an appeal from a motion to alter or amend a
judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the
underlying judgment upon which the motion is based and from which the appeal to this Court is
filed.” Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657
(1998). This Court has indicated that, as a general proposition, it will review a circuit court ruling
on a motion for a new trial under an abuse of discretion standard. In re State Pub. Bldg. Asbestos
Litig., 193 W. Va. 119, 454 S.E.2d 413 (1994). The Court has also held that, in reviewing such
rulings, the Court will not disturb the lower court ruling unless the lower tribunal’s conclusions
are plainly wrong or against the weight of the evidence. State v. Crouch, 191 W. Va. 272, 445
S.E.2d 213 (1994).

Here, petitioners argue that the court’s final judgment order should be set aside. However,
petitioners fail to identify any reasons, aside from the reasons articulated hereinabove, in support
of their argument. As we find no error with the circuit court’s rulings hereinabove and no merit to
petitioners’ associated allegations of error, we find no error in the circuit court’s denial of
petitioner’s Rule 59(e) motion.

For the foregoing reasons, we affirm the circuit court’s July 31, 2018, order denying
petitioners’ post-trial motions; October 2, 2017, preliminary judgment order; December 25, 2017,
final judgment order; June 21, 2017, order granting BAI and Zamias summary judgment; and the
December 19, 2016, order granting Kimco summary judgment.

Affirmed.

ISSUED: March 23, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison

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