I.              Introduction

            One of the most important considerations for any attorney is attorney fees: whether obtaining them or making sure that one does not have to pay them. This Article is a guide on how to navigate these important considerations. Specifically, this Article is a guide to practitioners and the judiciary on the general topic of attorney fees, the American rule, and the exceptions thereto. The first part of this Article examines the foundational principles of the American rule: i.e., that each party is responsible for their own attorney fees. The second part of this Article examines the myriad of exceptions to the American rule. This Section specifically addresses all of the exceptions that have emerged in the jurisprudence as well as the rules and statutory provisions that allow for the award of attorney fees, in spite of the American rule.

II.          The American Rule

             The American rule holds that in the absence of certain exceptions, each party is responsible for his or her own attorney fees. This rule stems from the 1796 United States Supreme Court decision in Arcambel v. Wiseman.[4] The American rule is directly contrary to the English Rule—wherein the prevailing party is entitled to his or her attorney fees.[5] This departure “stemm[ed] initially from the colonies' distrust of lawyers.”[6] As stated by one author:

Lawyers were viewed as characters of disrepute, whose power and prosperity were to be jealously
restrained. The law was not perceived as a complex or scientific body of knowledge, but rather as a matter of common sense and equitable principles, so that acting as an attorney was not thought to entitle one to compensation. Because frontier trials were scarce and were occasions for huge public enjoyment, one writer has theorized that Americans did not wish to erect any penalty that might have the effect of discouraging the trial of cases.[7]

While distrust of attorneys may have been the initial reason, the American rule “continued because of a belief that the English system favored the wealthy and unduly penalized the losing party.”[8]

Several justifications have arisen for the departure from the English Rule:
First, because “litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit.” Second, awarding fees to prevailing parties might discourage the poor “from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.” Third, “the time, expense, and difficulties of proof inherent in litigating the question of what  constitutes reasonable attorney[] fees” would pose substantial burdens for judicial administration. Finally, the American Rule seeks to avoid the possibility that attorneys might sacrifice their clients’ best interests for fear of upsetting the judge who will later determine their fees.[9]

Another reason proffered for the American rule is that “[i]t makes it uneconomical for creditors to hound insolvent debtors relentlessly.”[10] A further reason given for the rule is that it

implements a policy in favor of control over one's own expenses. A litigant may budget his attorneys' fees, and know that, whatever happens, he will not be forced over that figure by the uncontrolled cost of his opponent's counsel. Thus, a litigant's purse is protected by the American rule.[11]

            Of all of these reasons, the West Virginia Supreme Court of Appeals has stated that the primary justification is “that the poor would be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel.”[12]

            The American rule, however, is not without criticism. Courts have recognized that the rule, in effect, does not make the prevailing litigant whole, as he or she is still responsible for his or her own attorney fees.[13] The rule also “discourages the initiation or defense of lawsuits involving small amounts of money.”[14] So, for instance, a plaintiff who has been injured, but whose injuries are not extensive, will be dissuaded from bringing a cause of action because the costs to bring such an action would dwarf any potential recovery.[15] On the other hand, a defendant may be dissuaded from defending a case—even if the allegations are meritless—because of the costs of attorney fees, especially if the attorney fees would be greatly in excess of plaintiff’s initial demand.[16]

            The argument against strict adherence to the American rule does have support in the West Virginia jurisprudence—specifically, Justice Neely’s concurrence in Nelson v. West Virginia Public Employees Insurance Board.[17] In his concurrence, Justice Neely argues that in certain circumstances, the American rule should be abrogated or at least tempered.[18] Justice Neely clearly agrees that the American rule should be applicable in debt collection cases:

[T]he American rule against fee shifting prevents the harassment of petty debtors whose indebtedness, though minor, is not in real dispute. Tenants, alimony payers, and retail customers are all permitted to default until the amount owed is sufficient to make hauling them into court economically feasible.[19]

In this way, the American rule acts “as a sort of flexible self-administered minimum-amount-in-controversy requirement.”[20] According to Justice Neely, this is the preferred outcome: 

In the alternative system, a minor debtor might be buried under an avalanche of attorneys' fees from over-eager creditors, amounting, perhaps, to many times the original obligation. A strict Puritan might find this de facto legal excuse of minor obligations irritatingly at odds with his philosophy, but the current approach is clearly the lesser of two evils.[21]

He also argues that the American rule should apply in personal injury cases:

Litigation is a game one can afford to play only if one can afford to lose. Personal injury suits would be discouraged if the price of loss were raised by the possibility of one's being stuck with the defendant's attorneys' fees in the event the suit were unsuccessful. And, as discussed supra, a good part of a defendant's incentive to delay is removed by the weighting of the balance in favor of the plaintiff at trial.[22]

            However, Justice Neely argues that the rule should be tempered in “[p]roperty damage suits, contract claims, and actions to recover alimony or back pay[.]”[23] Justice Neely’s argument centers on his belief that these types of cases tend to be of the kind that do not present a justiciable dispute, but instead require the courts to expend its precious resources as to issues that are not a good faith dispute.

            In the conclusion to his concurrence, Justice Neely admits that he “has not given any definitive guidance concerning instances where fee-shifting is appropriate[,]” but instead “invite[d] the litigation of this issue in cases where counsel consider it appropriate in light of the policy considerations raised in this opinion.”[24] Assuming Justice Neely’s invitation has been invoked, the jurisprudence indicates that his ideas have not been fully adopted and that the American rule is still applicable, at least as it relates to contract claims and property damage suits. 

III.          Exceptions to the American Rule

            While the American rule and its prohibition on awarding attorney fees is the starting point, it is by no means inviolable. Over the years, several exceptions have entered into the jurisprudence. Some of these exceptions have been judicially created, such as bad faith doctrine, certain class action cases, the essential to equities doctrine, and insurance cases. The state code and rules have developed others.

            A.   Bad Faith Exception

            West Virginia recognizes that a prevailing party[25] is entitled to its attorney fees when the non-prevailing party has acted in bad faith.[26] The leading case on point, Sally-Mike Properties v. Yokum,[27] states the exception as such: “There is authority in equity to award to the prevailing litigant his or her reasonable attorney[] fees as ‘costs,’ without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.”[28]

                  1.     Inherent Definitional Problem

            In Gate Guard Services, L.P. v. Perez,[29] the United States Court of Appeals for the Fifth Circuit attempted to define these terms. The Court noted that “bad faith, vexatiously, [or] wantonly”[30] “may require a party’s position to be frivolous,”[31] whereas “for oppressive reasons”[32] does not.[33] In further defining the first three terms, the Court stated:

Few courts have explored the difference, for purposes of attorneys' fees, between conduct that is in bad faith, vexatious, or wanton. Each requires the litigant's position to be objectively frivolous. The difference between them, however, turns on the subjective knowledge or motivation of the individual. Bad faith implies that a litigant intentionally took a position he subjectively knew was unfounded. Bryan A. Garner, Black's Law Dictionary 166 (10th ed. 2014) (defining bad faith as “dishonesty of belief, purpose, or motive”). Vexatious conduct implies not only that a litigant knew a position was unfounded, but that his purpose was to “create trouble or expense” for the opposing party. Id. 1796. Finally, wantonness suggests that a litigant has recklessly pressed an objectively frivolous position. Id. 1815; see also Stive v. United States, 366 F.3d 520, 522 (7th Cir. 2004) (interpreting wantonly to mean “recklessly making a frivolous claim”).[34]

While not specifically addressing the bad faith exception, the United States Court of Appeals for the Fourth Circuit provided the following definition: 

[V]exatious means “without reasonable or probable cause or excuse.”[[35]] . . . And, bad faith “is not simply bad judgment or negligence, but rather it implies the conscious doing of a wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state of mind affirmatively operating with furtive design or ill will.”[36]

            As demonstrated by these cases, there is an inherent definitional problem with this exception. In fact, the West Virginia Supreme Court of Appeals has recognized this in Yost v. Fuscaldo,[37] wherein the Court stated that “actions done in ‘bad faith, vexatiously, wantonly or for oppressive reasons’ are often difficult to define.”[38] These authors would go one step further and suggest that attempting to parse out a precise definition is simply impracticable, if not impossible. The better solution is to apply a test similar to that set forth in Justice Stewart’s concurrence in Jacobellis v. State of Ohio[39]—“I know it when I see it.”[40] 

            The authors concede that this test lacks an easily applicable standard for review by the lower courts and is, in some respects, intellectually deficient. However, given that a stringent standard is used, and that bad faith will only be found in the most extraordinary and heinous set of circumstances, this test is the best option, as attempting to parse out a precise definition is a fruitless endeavor.

                2.       A Stringent Standard Supported by Clear and Convincing Evidence

            In awarding attorney fees for bad faith, courts apply a stringent standard,[41] and attorney fees will only be awarded “when extraordinary circumstances or dominating reasons of fairness so demand.”[42] The reason for such a stringent standard is that the underlying rationale of fee shifting is punishment of the wrongdoer[43] rather than compensation of the victim.[44] Because of the “potency” of the inherent power of the court to impose sanctions for bad faith, a court must use restraint.[45] Therefore, an award of attorney fees should only be granted when the party has acted in a manner so reprehensible that punishment is required.[46] Stated another way, “[o]nly truly egregious conduct—the kind in which ‘the very temple of justice has been defiled,’—will justify a departure from the American Rule.”[47]

            A finding of bad faith must be supported by clear and convincing evidence.[48] This “generally requires the trier of fact, in viewing each party's pile of evidence, to reach a firm conviction of the truth on the evidence about which he or she is certain.”[49] Put another way,

[c]lear . . . and convincing proof . . . is the highest possible standard of civil proof defined as “that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established.”[50]

            Simply because attorney fees are available through a separate exception—i.e., a Rule of Civil Procedure or statute—does not preclude an award of attorney fees for bad faith conduct.[51] It should also be remembered that both the client and counsel may be held liable for attorney fees for bad faith conduct,[52] and attorney fees can be awarded at any stage of the litigation.[53] Further, “[t]he award must be limited to the attorneys’ fees attributable to the improper conduct.”[54]

                3.      Bad Faith – Objective vs. Subjective Standard

            There is a question that still exists concerning whether the conduct that is alleged to be bad faith is judged by a less rigorous objective standard or the more stringent subjective standard. Although there is no West Virginia jurisprudence directly on point, existing West Virginia jurisprudence set forth below indicates a subjective standard should be applied. Stated another way, in order to find bad faith, the losing party must have subjectively intended to harm the winning party.[55] Given that a stringent standard is applied, it would appear that subjective bad faith is the correct legal framework. With that said, there is currently a split among the federal jurisprudence as to which standard applies.[56] 

                4.      When Does the Bad Faith Have to Occur: Pre-Litigation and Litigation Conduct  

            The West Virginia Supreme Court of Appeals has stated that bad faith may be found in both “conduct leading to the litigation or in conduct in connection with the litigation.”[57]

Bad faith conduct occurs in connection with a lawsuit when a party files a frivolous complaint, or engages in discovery-related misconduct. Bad faith conduct giving rise to a lawsuit is found where a defendant's prelitigation conduct leaves a plaintiff no alternative but litigation, despite the defendant's statutory or judicially imposed duty to the plaintiff.[58]

There is little question that bad faith can be found in conduct that occurred during the litigation. While some federal courts disagree,[59] West Virginia jurisprudence indicates that bad faith may be found in conduct immediately preceding the filing of the lawsuit—for instance, when there is no genuine dispute and the eventual losing party refuses to recognize the winning party’s legal rights.[60] 

            But this raises an important question: can bad faith be found in pre-litigation conduct when that conduct is the basis for the lawsuit? At this time, it appears that a majority of federal appellate courts[61] have held in regard to pre-litigation conduct that bad faith will not be found in the acts that gave rise to the substantive claim because this is “inconsistent with the rationale behind the American Rule.”[62]

            This view is certainly not without its critics.[63] These Authors, however, suggest that this is the appropriate rule.[64] The obvious problem with awarding attorney fees in claims where bad faith is the basis for the claim is self-evident in the case of fraud. As noted by the Tenth Circuit, “[a] defendant found liable for fraud, for instance, would automatically be guilty of bad faith with respect to the underlying cause of action, thus abrogating the American rule in all successful fraud actions. Such complete abrogation is not the purpose of the bad faith exception.”[65]

            This problem could also extend to many intentional torts, as most intentional torts are sufficiently reprehensible to be found to constitute the type of egregious or heinous actions that are the hallmark of bad faith. It would seem inconsistent with the American rule to find that in all such instances—whether that be fraud or an intentional tort—the losing party would be responsible for the winning party’s attorney fees. If this were the case, then the bad faith exception would completely swallow the American rule in these instances.

            With that said, at least one case from the West Virginia Supreme Court of Appeals indicates that bad faith—which would support an award of attorney fees—will be found in the acts that gave rise to the substantive claim if the claim is fraud. In Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc.,[66] a car dealership sold vehicles that were either rental cars or previously leased vehicles. The cars, however, were marketed as “‘factory cars’ or ‘fresh from factory sale’ cars and offered for resale at a profit margin greater than a dealer would realize on the sale of an identical new car.”[67] A fraud claim was pursued and a judgment reached for the purchasers of these cars; however, punitive damages were not awarded by the jury.[68]

            The West Virginia Supreme Court of Appeals did not discuss the issue of timing; instead, it summarily cited the language from Yokum[69] and Hall[70] that “‘[b]ad faith’ may be found in conduct leading to the litigation or in conduct in connection with the litigation.”[71] The Court went on to hold that “fraud falls within the ‘bad faith’ exception to the American rule” and that, if fraud can be shown by clear and convincing evidence, “recovery of reasonable attorney[] fees may be obtained in addition to the damages sustained as a result of the fraudulent conduct.”[72]  Bowling creates just such a problem identified by the Tenth Circuit—an exception that swallows the rule.

            There is another practical problem with this holding and the view that bad faith can be found in the acts that give rise to the substantive claims. By itself, “[b]ringing or defending an action to promote or protect one’s economic or property interests” is not bad faith.[73] Apparently, this does not apply to fraud. Even assuming a party is guilty of fraud, there could be a reason to litigate or challenge the damages that flowed from the fraudulent conduct.[74] This would certainly constitute protecting one’s economic interests. But, based upon the holding in Bowling, it would be of no consequence; if it can be shown by clear and convincing evidence that the losing party has committed fraud, then the winning party’s reasonable attorney fees—including the fees associated with challenging damages—are taxed to the losing party.[75]

            Beyond fraud, under current West Virginia jurisprudence it is unclear whether bad faith—and the subsequent awarding of attorney fees—can be found in the acts that gave rise to the substantive claims.  

                5.     Examples of Bad Faith Conduct

            As noted above, bad faith is notoriously hard to define and encompasses many different types of behaviors. In the context of contracts, it has been said that “[a] complete catalogue of types of bad faith is impossible.”[76] The same could be said of the bad faith exception to the American rule. With that said, West Virginia jurisprudence has delineated certain behaviors and actions that will constitute bad faith and therefore entitle a prevailing party to attorney fees:

• ·      repeated and/or habitual acts done for an improper purpose,;[77]
• ·      criminal indifference to a civil obligation;[78]
• ·      blatantly false lies not supported by any evidence;[79]
• ·      Fraud;[80]
• ·      withholding evidence without reasonable or probable cause or excuse;[81]
• ·      actively concealing the truth;[82]
• ·      acting in a retaliatory manner;[83]
• ·      attempting to oppress or cheat others;[84]
• ·      willful disobedience of a court order;[85] and
• ·      when there is no genuine dispute and the losing party still refuses to recognize the winning party’s legal rights.[86]

            Another recurrent example of bad faith conduct is bringing a cause of action that has already been litigated and precluded by operation of res judicata.[87] The Restatement (Second) of Torts set forth the exception of wrongful involvement in litigation:

One who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover reasonable compensation for loss of time, attorney fees and other expenditures thereby suffered or incurred in the earlier action.[88]

As set forth in the illustrations, this primarily occurs when a nefarious actor makes a representation to another party, and that other party incurs attorney fees after being sued by another.[89] So, for instance, when a nefarious actor sells stolen goods and the buyer is sued for conversion, the innocent party will be able to collect his attorney fees from the nefarious actor.[90]   

            While it is impossible to list out every potential scenario in which bad faith will be found,[91] the one constant through all of the cases is that the losing party’s actions must be egregious, heinous, atrocious, nefarious, flagrant, and/or shocking. Bad faith is not your everyday, run-of-the-mill, bad conduct. Instead, it is something much more.

                6.     Examples of What Is Not Bad Faith

            Bad faith will not be found in the context of simple negligence[92] or erroneous misrepresentations.[93] And neither recklessness[94] nor frivolity, [95] without more, constitutes bad faith.

            Bringing a case and losing is also not bad faith.[96] “[A]n eventual loser's refusal to recognize the validity of the eventual winner's position, and his insistence on taking the winner to court, do not necessarily imply wrongful conduct on the part of the loser. . . . So long as there exists a bona fide dispute among the parties, the American rule should probably apply.”[97]

            Bad faith will not be found if the losing party is asserting a “claim or defense that can[] be supported by a good faith argument for the application, extension, modification, or reversal of existing law.”[98] Argument on an issue of first impression[99] and arguments that raise a substantial question of law or fact are not bad faith.[100]

            Additionally, “[b]ringing or defending an action to promote or protect one’s economic or property interests” is not bad faith.[101] This is especially true in most contemporary litigation; even assuming that a party cannot defend on liability, damages are almost always contested and/or disputed.[102] At the very least, a party should not, therefore, be found to have acted in bad faith simply by contesting damages. 

                7.     Breach of Contract, Breach of Settlement Agreement, and Bad Faith

            Unless the contract addresses the topic[103] or another exception applies, each party is responsible for their own attorney fees in a breach of contract action;[104] in fact, it has been said that “attorney fees are not ordinarily recoverable in simple actions on a contract .”[105] It is axiomatic to say that settlement agreements are contracts.[106] However, the West Virginia Supreme Court of Appeals has treated settlement agreements differently than other contract disputes on at least two occasions.

              In both Messer v. Huntington Anesthesia Group, Inc.[107] and Sanson v. Brandywine Homes, Inc.,[108] the parties alleged that their attorneys did not have the authority to settle their cases. The court disagreed and found that the attorney did have the authority, making the settlement agreements enforceable. In both cases, the court noted that the party seeking to enforce the settlement agreement “should not have to bear the financial burden caused by the [breaching parties’] attempt to rescind a valid and enforceable settlement agreement.”[109] The court then found that the parties’ actions constituted bad faith.

            These authors find the implications from Messer and Sanson troubling. First, the reasoning for finding bad faith­––i.e., the non-breaching party should not have to bear the financial burden resulting from the breach of the settlement agreement––is problematic as it could extend to all breach of contract actions. Why should any non-breaching party have to bear the financial burden of attempting to enforce a contract?

             Second, and potentially most troubling, is that a purely facial reading of these cases seemingly indicates that anytime a party unsuccessfully challenges a settlement agreement, bad faith will be found. However, in order to reach the conclusion that bad faith conduct occurred, there must be something more than a simple breach, as the act of breaching a contract, in and of itself, is neither heinous nor egregious.[110]

            As set forth above, the bad faith exception is targeted at and directed towards punishing particularly heinous and egregious conduct that is specifically meant to harm the prevailing party. Nothing in Messer or Sanson would indicate that the losing parties subjectively intended their conduct to harm the prevailing party. Instead, they were simply trying to assert that their attorneys did not have the authority to enter into a settlement agreement.

              This dovetails into the next criticism of these opinions––bad faith will not be found if the non-prevailing party raises a question of law or fact or “[b]ring[s] or defend[s] an action to promote or protect one’s economic or property interests. . . .”[111] As related to the enforceability of a settlement agreement, this is a mixed question of law and fact,[112] and not something that is necessarily predetermined. It would appear that the parties in Messer or Sanson were attempting, albeit unsuccessfully, to protect their economic interests by challenging the enforceability of the settlement agreement. Therefore, a finding of bad faith appears to be improper. 

            Ultimately, the way in which the court reached its conclusion as to the finding of bad faith in Messer or Sanson may be the problem. In both cases, the discussion of attorney fees and bad faith were minimal, at best.[113] It is possible that the court determined, without fully setting forth in its discussion of bad faith, that the actions taken by the losing party––beyond simply breaching the settlement agreement––were heinous or egregious.[114] However, as written, it appears as though these cases could stand for the proposition that if one unsuccessfully challenges the enforceability of a settlement agreement, bad faith will be found. 

                8.     But What About the Other Party’s Bad Faith?

            The bad faith exception is an equitable remedy.[115] A party cannot seek equitable relief when they have unclean hands.[116] While there is no West Virginia jurisprudence on point, it would appear as though the winning party’s bad faith may preclude an award of attorney fees from the losing party, who has also acted in bad faith. Logic would dictate that the same standards set forth above would be applicable––i.e., that there is clear and convincing evidence that the winning party who seeks attorney fees has acted in a particularly heinous or egregious manner towards the losing party. 

            B.   Class Actions: Common Benefit Doctrine & Substantial Benefit Doctrine

            At the outset, it should be noted that bringing a class action does not automatically entitle counsel to attorney fees. Beyond the exceptions listed herein, there is nothing special about the procedural mechanism of a class action that removes a case from the application of the American rule.[117] As provided by the West Virginia jurisprudence, “absent a contrary rule of court or express statutory or contractual authority” each party bears its own attorney fees.[118] Therefore, unless the class action is premised upon a fee shifting statute or a contract that addresses attorney fees, or another exception is applicable, the prevailing attorney is not entitled to her fees from the opposing side. There are, however, two specific circumstances where an attorney will be entitled to fees in a class action––the common fund and substantial benefit doctrines.

                1.         Common Fund Doctrine  

            In class actions, the common fund doctrine is the most frequently employed exception to the American rule.[119] This doctrine is sometimes referred to as the “equitable fund” or the “fund-in-court” doctrine.[120] Whatever the nomenclature, this doctrine dates to 1881 in the United States Supreme Court case of Trustees v. Greenough.[121] The doctrine recognizes “that a litigant or a lawyer who recovers a common fund for the benefit of persons other than himself or his client is entitled to a reasonable attorney's fee from the fund as a whole.”[122] As with most of the exceptions to the American rule, it is based on equitable principles: i.e., “persons who obtain the benefit of a lawsuit without contributing to its cost are unjustly enriched at the successful litigant's expense.”[123] Stated another way, all those who benefit from a common fund should contribute, not just the plaintiffs who have signed a fee agreement with counsel.

            In order to be entitled to a common fund fee, the following requirements must be established:

Threshold requirements: Is there in fact a common fund and is it under the supervision of the court?
Entitlement: Did the attorney's work in fact generate the common fund?
Indicia of unjust enrichment: Are there factors that counsel against an unjust enrichment award?[124]

            While it is cited as such, this does not appear to be an exception to the American rule. As set forth above, the American rule precludes the shifting of fees from one party to the other and the exceptions are designed to do just the opposite. In the context of the common fund doctrine, however, the attorney fees are not paid by the opposing party but instead are paid from the common fund, which is to be distributed to the class as a whole. Some commentators have argued that the doctrine is in fact a variant to the American rule “in that the prevailing plaintiffs are paying their own attorney[] fees, not shifting those costs to their losing adversary.”[125] In spite of being cited as such, it does not appear to fit cleanly into the framework of an exception to the American rule.

                2.         Substantial Benefit Doctrine[126]

            The substantial benefit doctrine “arises when an attorney retained by one client secures a benefit for a group of clients—but the benefit is non-monetary in nature and no fee-shifting statute applies.”[127] There are three aspects to this doctrine that separate it from the common fund doctrine. First, there must not be a monetary recovery. Second, and as discussed below, recovery of attorney fees under the substantial benefit doctrine is limited to a certain sub-set of cases. Finally, as opposed to the common benefit doctrine, attorney fees are paid by the opposing party.

            In order to be entitled to attorney fees under this doctrine, the following requirements must be established:

First, counsel's work for the plaintiff or other party must have conferred a substantial benefit on an ascertainable class of beneficiaries.
Second, shifting the cost of the fees to the defendant must have the (indirect) effect of equitably spreading those costs among the class of beneficiaries itself.
Third, the award must not undermine Congress's intent to limit fees.[128] 

            This doctrine has been limited to a certain sub-set of cases; specifically, shareholder derivative actions and certain labor union cases.[129]

The doctrine might have expanded beyond these settings, but the Supreme Court's 1975 decision in Alyeska Pipeline [Services Company v. Wilderness Society] limited the situations in which a defendant could be taxed the plaintiff's fees primarily to those based on fee-shifting statutes. In Alyeska, the Court approvingly cited the substantial benefit cases, but the theory of Alyeska ultimately limited the substantial benefit doctrine's realm of applicability. The doctrine therefore still exists but rarely arises.[130]

The reason the common or substantial benefit doctrine is limited to these types of cases is that the exception is only permissible where the costs will be spread across the plaintiff class and not shifted as an added penalty to the defendants.[131]

            While this is a recognized doctrine in the federal courts, it should be noted that there is no West Virginia jurisprudence directly on point. Therefore, it is unclear whether this doctrine would be applicable in West Virginia.

            C.   Essential to Equities

            In the 1951 decision of Rolax v. Atlantic Coast Line Railroad Company,[132] the United States Court of Appeals for the Fourth Circuit set forth what could arguably be considered an exception to the American rule; it has been referred to as the “essential to equity” or the “essential to the doing of justice” exception. This exception applies to exceptional cases “in suit[s] in equity where the taxation of [attorney fees and costs] is essential to the doing of justice.”[133]

            In Rolax, an action was brought by a number of employees seeking relief under the Railway Labor Act from a contract entered into by the defendants, the union representing the plaintiffs and the employer railroad.[134] The plaintiffs were a number of African American firemen who alleged a deprivation of seniority as well as other employment rights.[135] The plaintiffs sought an injunction and damages in challenging the discriminatory collective bargaining agreement.[136] Ultimately, the United States District Court for the Eastern District of Virginia dismissed the action but awarded attorney fees to the plaintiffs.[137]

            While the Fourth Circuit deferred determination of the issue of proper taxable costs pending the final judgment stage of the proceedings,[138] the Court reversed the dismissal of the action.[139] With regards to attorney fees, the Fourth Circuit held:

Ordinarily, of course, attorneys' fees, except as fixed by statute, should not be taxed as a part of the costs recovered by the prevailing party; but in suit in equity where the taxation of such costs is essential to the doing of justice, they may be allowed in exceptional cases. The justification here is that plaintiffs of small means have been subjected to discriminatory and oppressive conduct by a powerful labor organization which was required, as bargaining agent, to protect their interests. The vindication of their rights necessarily involves greater expense in the employment of counsel to institute and carry on extended and important litigation than the amount involved to the individual plaintiffs would justify their paying. In such situation, we think that the allowance of counsel fees in a reasonable amount as a part of the recoverable costs of the case is a matter resting in the sound discretion of the trial judge.[140]

            As one Court has noted about the decision, the Fourth Circuit “relied on the fact that the damages sought were less than the amount of attorney fees incurred and were relatively unimportant compared to the injunctive relief, which would benefit all minority firemen employed by the railroad.”[141] Thus, it would seem that this exception is closer to, if not subsumed by, the substantial benefit and/or common fund doctrine. This is especially true considering that at the time Rolax was decided, the foundational decisions regarding these doctrines had not been decided.[142] Given this, the exception has been rarely utilized in the jurisprudence. With that said, it has still been employed as a stand-alone exception.[143] Some courts, however, have analyzed this exception as if it falls under the bad faith exception.[144] In any event, it is unclear whether this is a viable exception as it has not been directly addressed in the West Virginia jurisprudence.

            D.   Insurance Cases

•             As a deviation from the American Rule, an insured may recover attorney fees when he substantially prevails against his insurer in a breach of contract and/or declaratory judgment action.  The fact that the American Rule “concerning fees works well most of the time does not necessarily imply that the rule works well all of the time.”[145]  First, party insurance cases between policyholders and insurers are “one of the prominent instances where the American rule concerning attorney[] fees works badly.”[146]

            The policy underlying the rule is straightforward: where an insurer has violated its contractual obligation, the insured should be “fully compensated for all expenses incurred as a result of the insurer's breach of contract, including those expenses incurred in a declaratory judgment action.”[147]  Indeed, the insured purchases a policy of insurance “to be protected from incurring attorney[] fees and expenses arising from litigation.”[148] In other words, if an insured necessarily incurs attorney fees to recover insurance proceeds for which he is entitled, then the purpose of the insurance contract is frustrated. “To impose upon the insured the cost of compelling his insurer to honor its contractual obligation is effectively to deny him the benefit of his bargain.”[149] A policyholder buys an insurance contract for peace of mind and security; the insured certainly does not seek to be embroiled in litigation.[150]

            To trigger the rule, an insured must show as follows: (1) the insured made a claim upon its insurer, (2) the insurer refused, (3) the insured substantially prevailed in a subsequent declaratory judgment / breach of contract action, and (4) that the attorney fees incurred were necessary.[151] 

[O]nce a demand is unmet by an insurance carrier, a policyholder need only prove he or she has substantially prevailed. Once that is proven, the policyholder is entitled to recover his or her attorney[] fees, consequential damages[,] and other net economic losses caused by the delay in settlement, as well as damages for aggravation and inconvenience.[152]

As stated by the West Virginia Supreme Court of Appeals,

we believe that the interests of both the parties and the judicial system would be better served by the enunciation of a clear, bright line standard governing the availability of consequential damages in property damages insurance cases. Accordingly, we hold today that when a policyholder substantially prevails in a property damage suit against an insurer, the policyholder is entitled to damages for net economic loss caused by the delay in settlement, as well as an award for aggravation and inconvenience.[153]
 
When a policyholder of uninsured or underinsured motorist coverage issued pursuant to W. Va. Code, § 33-6-31(b) substantially prevails in a suit involving such coverage under W. Va. Code, § 33-6-31(d), the insurer issuing such policy is liable for the amount recovered up to the policy limits, the policyholder's reasonable attorney fees, and damages proven for aggravation and inconvenience.[154]

            In addition to substantially prevailing, for a policyholder to recover reasonable attorney fees from an insurance carrier, there must be proof  “the attorney[] services were necessary to obtain payment of the insurance proceeds.”[155]

            Once the four requirements have been met, an insurer’s refusal to pay its insured, whether done in good faith or bad faith, is irrelevant––the only determination necessary is that the insurer breached its contract with the insured.[156] An insurer’s breach of the insurance contract warrants an award of attorney fees, regardless of whether the breach occurred in good faith. The insured need only show that he substantially prevailed in a subsequent action against his insurer following denial of a claim. Without the rule, the insured loses the benefit of his bargain.[157]  

            E.   West Virginia Rules that Provide for an Award of Attorney Fees

            There are several Rules in West Virginia that provide for the imposition of attorney fees as a sanction. These are discussed below. 

                1.         West Virginia Rules of Civil Procedure Rule 11

            Rule 11 of the West Virginia Rules of Civil Procedure requires that any pleading, motion, and/or other paper filed with the court be signed.[158] By signing, submitting, and/or advocating for the position taken in a pleading, motion, and/or other paper, the signor is making certain representations to the court. Specifically,

[he or she] is certifying that to the best of the person's knowledge, information, and belief formed after an inquiry reasonable under the circumstances,
 
(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;[159]
 
(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;[160]
 
(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and
 
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.[161]

If the signor, however, violates any of these four provisions, he or she[162] may be sanctioned by the court.[163] “As a general rule, a court's power to impose Rule 11 sanctions is discretionary rather than mandatory, and sanctions should be imposed with caution.”[164]

            Upon the filing of a motion,[165] attorney fees may be awarded if such an award is “warranted for effective deterrence.”[166]

[I]in evaluating the application of Rule 11 by trial courts, [the West Virginia Supreme Court of Appeals] has consistently explained that “[a] court may order payment by an attorney to a prevailing party reasonable attorney fees and costs incurred as the result of his or her vexatious, wanton, or oppressive assertion of a claim or defense that cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law.”[167]

While a court may award attorney fees to another party, “the main purpose of Rule 11 is to deter improper behavior, not to compensate the victims of it or punish the offender.”[168] Therefore, “monetary penalties ‘should ordinarily be paid into the court’ except ‘under unusual circumstances’ when they should be given to the opposing party.”[169]

                        i.          Distinction Between Rule 11 and Bad Faith

            While both Rule 11 and the bad faith exception are similar, in that they address conduct that is vexatious, wanton, oppressive, or made in bad faith, there is a clear distinction to be made between these provisions as they operate in very distinct situations. Rule 11 is directed at more specific conduct that occurs during the litigation, i.e., it is limited to the presentation of “pleading[s], written motion[s], or other paper[s]” submitted to the court that do not meet the four defined categories[170] and is not applicable in discovery disputes.[171] As set forth above, bad faith is a more all-encompassing mechanism to punish particularly heinous conduct that occurs both before (albeit, how much before is up for dispute) and during the litigation. In this way, bad faith is broader in that it “reach[es] more litigation abuses.”[172] However, Rule 11 is broader in the types of sanctions that can be awarded. In the most extreme cases, Rule 11 can be invoked to dismiss a case.[173] As it has been interpreted by the courts, bad faith is limited to an award of attorney fees only.[174]

            If the bad faith conduct is punishable under both Rule 11, or for that matter any other Rule, and the bad faith exception, “the court ordinarily should rely on the Rules rather than the inherent power [to sanction a party for bad faith].”[175] While this is the preference, there is nothing that prevents a court from relying on the bad faith exception as opposed to the Rules.[176]

            One other distinction is worth mentioning: Rule 11 allows, with certain restrictions, a court to sua sponte award attorney fees.[177] However, based upon the language from the United States Supreme Court in Chambers v. NASCO,[178] it would appear as though there is no authority to award attorney fees sua sponte pursuant to the bad faith exception to the American rule. Instead, a motion must be made by the prevailing party.[179]

                        2.         West Virginia Rules of Civil Procedure Rule 16(f)

            Rule 16(f) provides four particular scenarios under which a party can be sanctioned; specifically:

• ·      Failing to obey a scheduling/pre-trial order;
• ·      Not appearing at a scheduling/pre-trial conference;
• ·      Being substantially unprepared to participate in a scheduling/pre-trial conference; and 
• ·      Failing to participate in good faith.[180]

If any of these are applicable, then the presiding judge, either sua sponte or upon a motion, “may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), and (D).” In addition or in lieu of these potential sanctions, the presiding judge may require either or both the party or the party’s attorney “to pay reasonable expenses incurred because of any noncompliance with this rule, including attorney[] fees . . . .” The party will not be sanctioned, however, if the presiding judge “finds that the noncompliance was substantially justified or that other circumstances make an award of expenses unjust.”

            Unlike the bad faith exception discussed above, there is no requirement for a finding of intent or negligence under this rule.[181] The reference to sanctions is not exhaustive and the “court is to design the sanction to fit the violation . . . .”[182] The presiding judge “must ensure any sanction imposed is fashioned to address the identified harm caused by the party's misconduct.”[183] While the Circuit Courts have discretion to award attorney fees this discretion is not unfettered. Therefore, under this rule, and Rule 37(b), the imposition of sanctions, including attorney fees, are limited to those that are “just.”[184] While there is very little West Virginia case authority that solely relies on 16(f), the federal jurisprudence is pervasive.[185]

                        3.         West Virginia Rules of Civil Procedure Rule 26(g)

            Rule 26 addresses the general provisions governing discovery and section (g) specifically addresses certification of discovery. Rule 26(g) specifically provides:

The signature of the attorney or party constitutes a certification that the attorney or party has read the request, response, or objection, and that to the best of the attorney's or party's knowledge, information, and belief formed after a reasonable inquiry it is:
 
(1) Consistent with these rules and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law;
 
(2) Not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation; and
 
(3) Not unreasonable or unduly burdensome or expensive, given the needs of the case, the discovery already had in the case, the amount in controversy, and the importance of the issues at stake in the litigation.[186]

If, however, the certification is made in violation of the rule, and there is no substantial justification, the Court may impose sanctions, “which may include an order to pay the amount of the reasonable expenses incurred because of the violation, including a reasonable attorney[] fee[s].” The request for sanctions can be made by motion or initiated sua sponte. Further, the sanction can be imposed “upon the person who made the certification, the party on whose behalf the request, response, or objection is made, or both[.]”

            The Advisory Committee Notes to Rule 26(g) provides that the Rule

imposes an affirmative duty to engage in pretrial discovery in a responsible manner that is consistent with the spirit and purposes of Rules 26 through 37. In addition, Rule 26(g) is designed to curb discovery abuse by explicitly encouraging the imposition of sanctions. The subdivision provides a deterrent to both excessive discovery and evasion by imposing a certification requirement that obliges each attorney to stop and think about the legitimacy of a discovery request, a response thereto, or an objection. The term “response” includes answers to interrogatories and to requests to admit as well as responses to production requests.[187]

As with the Rule 26(g) of the West Virginia Rules of Civil Procedure, Rule 26(g) of the Federal Rules of Civil Procedure has not been invoked often.[188]

                    4.         West Virginia Rules of Civil Procedure 30(g)

            Rule 30 addresses depositions upon oral examination and contains two provisions that allow for the imposition of attorney fees. In the first scenario, fees may be assessed for failing to attend. As provided by the rule:

(1) If the party giving the notice of the taking of a deposition fails to attend and proceed therewith and another party attends in person or by attorney pursuant to the notice, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney[] fees.

In this scenario, there is no requirement to show bad faith as simple negligence is sufficient to impose attorney fees; however, “the absence of bad faith . . . may mitigate against sanctions.”[189] If the deposition is canceled and sufficient notice has been given, then attorney fees may not be awarded.[190] If two depositions are scheduled, and one only one is examined, then an attorney may be entitled to fees if that attorney traveled some distance and can further show that he or she would not have attended and/or had local counsel attend had he or she known that only one witness would have been examined.[191] It has also been held that “[a]ttendance without proceeding forward with a deposition is sufficient to invoke the provisions of Rule 30(g).”[192]

            This Rule should not be invoked nor should attorney fees be given, when the only argument proffered is that a deposition accomplished nothing of substance.[193] This is because Rule 30(g) contains no substance requirement; instead, it is simply limited to those situations wherein a party fails to appear for a deposition. This does not mean that one cannot be sanctioned for conducting a meritless and/or meaningless deposition as this could be sanctionable under the bad faith exception if it is meant to drive up litigation costs or subject a party to undue hardship.  Because awards under this section “are [a] matter[] of legislative grace,” the relief afforded cannot be extended to nonparties.[194]

            In the second scenario, fees may be assessed for failing to subpoena the witness. As the rule states:

(2) If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because the party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party attorney in attending, including reasonable attorney[] fees.

As the rule is couched in discretionary language, there have been several instances wherein a party’s failure to subpoena a witness has not been held to be sanctionable. So, for instance, if a witness who was not subpoenaed would not have been able to attend even if they were subpoenaed due to an emergency, then attorney fees would not be awarded.[195]

                        5.         West Virginia Rules of Civil Procedure Rule 37

            Rule 37, and every subsection thereunder, provides a manner in which reasonable attorney fees can be awarded to the prevailing party in resolution of discovery disputes.  Under Rule 37(a), the prevailing party on a motion to compel certain discovery is entitled to attorney fees incurred in bringing the motion.[196]  As a hurdle to securing an award of attorney fees, however, the party bringing the motion must demonstrate to the court that the party sought to resolve the discovery dispute in good faith.[197]

            Rule 37(a) carries over into Rule 37(b), as the court shall award attorney fees when a party fails to comply with a court order compelling discovery under Rule 37(a), or any other order compelling or directing discovery. The court may avoid making the award of attorney fees, however, if the court finds that the non-compliant parties were substantially justified or an award of attorney fees would not be just.[198]

            Under Rule 37(c), if a party fails to make an admission under Rule 36, then the party subsequently proving the truth of the requested admission or authenticating a document shall recover his reasonable attorney fees incurred in proving that which is requested.  Reasonable attorney fees may not be awarded if the request was objectionable, the admission was of no substantial importance, the party failing to admit had reasonable ground to believe that the party might prevail on the matter, or the court finds other good reason for the failure to admit.[199]

             Rule 37(d) is broader, providing an award of attorney fees for a litany of failures to cooperate in discovery. Under Rule 37(d), the court shall award reasonable attorney fees to a prevailing party showing that an opposing party failed to (1) attend its own depositions, (2) respond to written interrogatories, or (3) respond to a request for inspection. Similar to Rule 34(b), the court may avoid an award of attorney fees if the court finds that an award is unjust.[200]

            And under Rule 37(e), the court may make an award of attorney fees against a party failing to cooperate in formulating a discovery plan under Rule 26.[201] 

            Overarching all discovery violations, however, is the discretion of the trial court to find the violation justified. Indeed, a “party can avoid discovery sanction that requires payment of expenses, including attorney fees, by showing that conduct is substantially justified or that award is unjust.”[202]  

                        6.         West Virginia Rules of Civil Procedure Rule 45(d)(1)

            Rule 45 provides, inter alia, that an attorney may directly issue a subpoena. Clearly, with this power, attorneys could foreseeably go too far and cause a significant burden on the subpoenaed party. Given this, the Rule imposes a duty upon the issuing attorney to “take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena.” If an attorney misuses this power, the court from where the subpoena was issued may “impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney[] fee.”

            The West Virginia Supreme Court of Appeals has never directly addressed undue burdens contained within Rule 45(d)(1). However, it has been said that,

[t]he determination of what constitutes an undue burden in a given instance, is a case specific inquiry that depends upon such factors as (1) relevance, (2) the need of the party for the documents, (3) the breadth of the document request, (4) the time period covered by it, (5) the particularity with which the documents are described, and (6) the burden imposed.[203]

            Some courts have analyzed the question of an undue burden as set forth in Rule 45 in light of Rule 11 sanctions.[204] Therefore, in this context, before it can be found that an attorney imposed an undue burden, it must be shown that the attorney acted in a vexatious, wanton, or oppressive manner,[205] i.e., in bad faith.[206] However, in a footnote, the West Virginia Supreme Court of Appeals has stated that Rule 45(d)(1) contains no requirement to find that an attorney’s actions were “vexatious, wanton, oppressive, or made in bad faith.”[207] Therefore, it appears as though this is not the appropriate standard that would be applied in West Virginia. 

            Others have said that:

In determining whether a party has breached its duty under Rule 45(d)(1), courts look to the principles stated in Rule 26(g). Accordingly, sanctions issued directly under Rule 45(d)(1) are appropriate only when a party serves a subpoena that is clearly outside the boundaries of permissible discovery, that exceeds any reasonable measure of proportionality, or that is served in bad faith to harass or for some other improper purpose.[208] 

            Some Federal Courts have held that an “undue burden” is related to the costs of complying with the subpoena, not the costs associated with guarding protected information.[209] In these instances, the focus is on the amount of time and expense that would be incurred in complying with the subpoena, not the expense incurred in trying to quash the subpoena to protect confidential and/or proprietary information. 

            The “status of a witness as a nonparty is a critical factor in assessing the reasonableness of the expense incurred in complying with the subpoena.”[210] With that said, “[w]hat constitutes an ‘undue burden’ is the same when a nonparty is subpoenaed under Rule 45 as when a party receives a request for production under Rule 34.”[211]

                        7.         West Virginia Rules of Civil Procedure Rule 56(g)

            Any practitioner should be very familiar with Rule 56, which addresses summary judgment. As set forth therein, affidavits can be used to support or oppose such a motion. However, if the court is satisfied that the affidavits were submitted in “bad faith or solely for the purpose of delay,” then the submitting party could be subject sanctions; as the Rule provides:

the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.[212]

If the affidavit was submitted in “bad faith or solely for the purpose of delay,” the court must impose sanctions.[213] Further, the rule only permits the recovery of fees from the party; however, either the party or its attorney may be held in contempt.[214]

            “Bad faith” will be found, and sanctions imposed, in two primary situations. First, it will apply “when affidavits were filed in support of arguments made on a summary-judgment motion that directly contradicted previous sworn testimony.”[215] Second, when the affidavits “contain[] perjurious or blatantly false allegations or omitted facts concerning issues central to the resolution of the case.”[216] However, “bad faith” will not be found if the court determines that this was done negligently, as opposed to intentionally.[217]

            As this rule is specifically limited to affidavits, if a bad faith motion for summary judgment is made, but the affidavits are not in bad faith or no affidavits are submitted, then this Rule would not be applicable.[218] While it is highly unlikely that this would ever happen, in such instances, the bad faith exception discussed above could be utilized to award sanctions.

            It has been argued that “[a] trial court does not have to award sanctions under Rule 56(g), even if a party submitted a particular affidavit in bad faith, when its summary judgment ruling is not based upon that affidavit.”[219] However, as currently constituted, the Court must impose sanctions for an affidavit submitted pursuant to Rule 56 that is either in “bad faith or solely for the purpose of delay,” regardless of whether that affidavit is utilized or not. There simply is no discretion under the Rule; if it fits into either of these two categories, sanctions must be imposed.

            With regards to the Federal Rules, it has been said that “the term ‘reasonable expenses’ should be interpreted broadly because of the partially punitive nature of Rule 56(h) and the rule's intent that the opposing party be indemnified.”[220] Therefore, reasonable expenses should include time spent on preparing a response/reply, time spent in oral argument, and even witness fees and travel expenses.  

                        8.         West Virginia Rules of Appellate Procedure Rule 6(f)

            West Virginia Rules of Appellate Procedure provide an avenue to award attorney fees. The rule provides that sanctions, including attorney fees, may be assessed against an attorney “who unreasonably and vexatiously increase[d] the costs of litigation through the inclusion of unnecessary material in the appendix or designated record.”[221] As the Rule suggests, it “was added in order to strongly discourage the parties from needlessly increasing the costs of litigation by including unnecessary material in an appendix or designated record.”[222]

            The imposition of sanctions may be awarded upon a motion of a party or upon the court’s own motion. A motion will only be considered if the moving party objected to the inclusion of the allegedly “unnecessary materials in writing to opposing counsel within ten days of receiving the list of materials required by Rule 7(e) or 8(c).” Any motion must be made within fourteen days after the issuance of the opinion. Regardless of whether a motion is filed or whether the Court addresses it sua sponte, “[a]ttorneys shall receive reasonable notice and an opportunity to respond before the imposition of any sanctions.”

                        9.         West Virginia Rules of Appellate Procedure Rule 33(e)

            Rule 33 provides the procedures for the removal of a Justice from an appeal and subpart (d) specifically addresses the requirements that must be set forth in any motion to disqualify:

The motion shall be addressed to the Justice whose disqualification is sought and shall state the facts and reasons for disqualification, including the specific provision of Canon 2, Rule 2.11 of the Code of Judicial Conduct asserted to be applicable, and shall be accompanied by a verified certificate of counsel of record or unrepresented party that: (1) he has read the motion and that to the best of his knowledge, information, and belief formed after reasonable inquiry that it is well grounded in fact and is warranted by existing law or good faith argument for the extension, modification, or reversal of existing law; and (2) that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.[223]

If a motion to disqualify is signed in violation of Rule 33(d), however, sanctions may be awarded.[224] Sanctions, including attorney fees, may be addressed either sua sponte or upon motion of the opposing party.[225] The sanction can be imposed “upon the person who signed it, an unrepresented party, or both[.]”[226] The sanction can include attorney fees incurred by the opposing party for the filing of the motion.[227] The decision to impose sanctions, including attorney fees, can be made “with or without the participation of the Justice whose disqualification was sought[.]”[228]

                        10.       West Virginia Trial Court Rule 17.07

            Trial Court Rule 17.07 addresses sanctions for motions to disqualify the presiding judge as set forth in Trial Court Rule 17.01. As set forth in the Rule:

If a motion is signed in violation of TCR 17.01, the Chief Justice or the judge whose disqualification was sought, upon motion or sua sponte, may refer the matter to the appropriate disciplinary authority or may impose upon the person who signed it, an unrepresented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the motion, including reasonable attorney fees.

            Interestingly, it has been held that when a Judge seeks to disqualify a prosecuting attorney, he or she “should disqualify himself under [Canon 3 E of the West Virginia Code of Judicial Conduct], and follow the procedures contained in [Rules 17.01 through 17.07 of the West Virginia Trial Court Rules] for the appointment of another circuit judge to hear the disqualification motion.”[229] Therefore, a sitting judge could be held responsible for attorney fees if such a motion was improperly filed. 

                    11.       West Virginia Trial Court Rule 25.10

            Rule 25.10 of the West Virginia Trial Court Rules addresses mediation. If reasonable notice is furnished, the following parties are to be present:

(1) each party or the party's representative having full decision-making discretion to examine and resolve issues;
 
(2) each party's counsel of record; and
 
(3) a representative of the insurance carrier for any insured party, which representative has full decision-making discretion to examine and resolve issues and make decisions.[230]

With regards to the sanction, the Rule provides as follows:

If a party or its representative, counsel, or insurance carrier fails to appear at the mediation session without good cause or appears without decision-making discretion, the court sua sponte or upon motion may impose sanctions, including an award of reasonable mediator and attorney fees and other costs, against the responsible party.

While “Rule 25.10, on its face, fails to authorize sanctions against a non-party insurance carrier” the West Virginia Supreme Court of Appeals has held that this Rule authorizes “the lower court to impose sanctions on an insurer[.]”[231]

            As currently written, it is clear that there is a safe harbor provision for a party’s failure to appear at mediation so long as they have a good reason. As to what constitutes good cause for failing to appear at mediation, a missed flight is considered good cause, especially if the person still attends by telephone.[232]

            However, as currently written, there does not appear to be a good cause safe harbor for one who appears but does not have decision-making discretion. This leads to an obvious question: what constitutes full decision-making discretion? At this time, there has been no West Virginia case that has discussed this question. However, Rule 25.11 does provide some answers: 

No party may be compelled by these rules, the court, or the mediator to settle a case involuntarily or against the party's judgment. All parties involved in mediation, however, and their respective representatives, counsel, and insurance carriers shall participate fully, openly and knowledgeably in a mutual effort to examine and resolve issues. “Bad faith,” as used in insurance litigation as a legal term of art, is not applicable to the mediation process.[233]

            As the rule makes clear, prior to being required to attend, a party must be afforded “reasonable notice.” If a party is not afforded reasonable notice or receives no notice at all, then their failure to appear is not sanctionable.[234] It is unclear what the limitations of “reasonable” may be. The West Virginia Supreme Court of Appeals has found that three days’ notice, as computed by Rule 6, is not considered reasonable for mediation.[235] With that said, the outer limits of what is considered reasonable notice have not been fully developed.

            It should be noted that any violation of this Rule does not give rise to a separate cause of action.[236] If another party did not appear and/or did not have decision-making discretion, then one must seek recourse in the underlying litigation.

                        12.       West Virginia Rules of Practice and Procedure for Family Court

            There are various Rules set forth in the Rules of Practice and Procedure for Family Court which allow for the recovery of attorney fees.

• ·      Rule 5(e) – This Rule provides that “[c]osts and fees, including attorney fees, may be taxed against a party who is financially able to pay.”[237]
• ·      Rule 11 – This Rule precisely mirrors sanctions as set forth in Rule 11 of the West Virginia Rules of Civil Procedure. Therefore, its application and construction are the same as the Rules of Civil Procedure.[238] 
• ·      Rule 19 – This Rule provides that “[c]osts, expenses, and attorney's fees may be assessed against the moving party if good cause is not shown for a continuance, if the motion is filed late, or if the party has moved to continue any hearing more than once.”[239]
• ·      Rule 22(d) – This Rule specifically addresses the preparation of Family Court Orders. It provides that if the “attorney assigned to prepare an order or proposed findings fails to prepare the order or findings in a timely manner, or otherwise fails to comply with the provisions of this rule, the court may direct one or more attorneys for other parties to prepare the order or findings, and require the attorney initially assigned to prepare the order or findings to pay reasonable attorney fees.”[240] 
• ·      Rule 24(d) – This Rule provides that attorney fees may be awarded as a sanction for noncompliance with scheduling orders. Specifically, the Rule states as follows: “[i]f a party or attorney fails to comply with an order, fails to attend a scheduled hearing/conference, is substantially unprepared to participate in a scheduled hearing/conference, or fails to participate in good faith, the court may make any of the orders or impose any of the sanctions provided by Rule 16 of the Rules of Civil Procedure.”[241]

                        13.       West Virginia W.Va. Rules of Judicial Discipline Rule 2.3

            This Rule addresses the time frame from which a judge has to answer a complaint. It further provides that “[t]he judge shall not be entitled to reasonable attorney fees incurred prior to the filing of a formal charge by the Commission except in extraordinary circumstances where prior approval is granted by the Administrative Director of the Courts.”[242]

                        14.       West Virginia Rules of Judicial Discipline Rule 4.13

            Pursuant to this Rule, if a judge is exonerated “for any reason and formal charges dismissed at any stage of the proceeding, the judge shall be entitled to reasonable attorney fees which shall be paid by the State. In order to be reimbursed for such fees, however, the attorney for the judge must have contacted the Administrative Director of the Courts prior to any services being rendered in order to obtain advance approval of the fee schedule.”[243]

            F.   Fee Shifting Statutes

            While not meant to be exhaustive, below is a list of the West Virginia Code sections that provide for the shifting of fees.[244] 

• Human Rights Act, section 5-11-13(c) of the West Virginia Code.
• Fair Housing Act, sections 5-11A-13(p), -14(c)(2) of the West Virginia Code.
• Removal of County, School District, and Municipal Officers, section 6-6-7(j) of the West Virginia Code.
• Whistle Blower Law, section 6C-1-5 of the West Virginia Code.
• Public Employees and Grievance Procedure, sections 6C-2-6(b), -7 of the West Virginia Code.
• Maintenance Associations, section 7-12A-5 of the West Virginia Code.
• County Commissions and Officers
•             Civil Service for Deputy Sheriffs/Removal, Discharge, Suspension, or Reduction in Rank/Pay, section 7-14-17 of the West Virginia Code.
•             Civil Service for Correctional Officers/Removal, Discharge, Suspension, or Reduction in Rank/Pay section 7-14B-17 of the West Virginia Code.
• Municipal Corporations
•             Limitations Upon Municipalities' Power to Restrict the Purchase, Possession, Transfer, Ownership, Carrying, Transport, Sale and Storage of Certain Weapons and Ammunition, section 8-12-5a(f) of the West Virginia Code.
•             Civil Service/Municipal Policy Department/Removal, Discharge, Suspension, or Reduction in Rank/Pay, section 8-14-20 of the West Virginia Code.
•             Civil Service/Municipal Fire Fighters/Removal, Discharge, Suspension, or Reduction in Rank/Pay, section 8-15-25 of the West Virginia Code.
• Land Use Planning
•             Board’s Failure to Provide Findings of Fact/Conclusions of Law, section 8A-8-11(e) of the West Virginia Code.
•             Local Government's Bad Faith Refusal to Recognize Landowner’s Vested Rights, section 8A-5-12(e) of the West Virginia Code.
• Fees for Governmental Official who successfully Defends an Action for their Removal or Recover Moneys Alleged to have Been Wrongfully Expended, section 11-8-31a of the West Virginia Code.
• County Board of Education/Eligibility of Members, section 18-5-1a(b)(2) of the West Virginia Code.
• Compensation Awards to Victims of Crimes, sections 14-2A-4(d)(3), -19 of the West Virginia Code.
• Public Safety/Possession of Firearms During a Declared State of Emergency, section 15-5-19a(e) of the West Virginia Code.
• Public Health
•             AIDS-Related Medical Testing and Records Confidentiality Act, section 16-3C-5(a)(3) of the West Virginia Code.
•             Open Hospital Proceedings, section 16-5G-6 of the West Virginia Code.
•             Health Care Records, section 16-29-1(d) of the West Virginia Code.
•             Health Care Decisions Act, section 16-30-8(e) of the West Virginia Code.
•             Patient Safety Act, section 16-39-6(b) of the West Virginia Code.
• Motor Vehicle Administration
•             Transfer/Sale of factory-built home without certificate of title, section 17A-3-4(g)(2) of the West Virginia Code.
•             Motor Vehicle Dealers, Distributors, Wholesalers and Manufacturers, Canceling a Dealer Agreement, sections 17A-6A-15, -15a(f), -16(1) of the West Virginia Code.
• School Personnel
•             Employee's Right to Attorney's Fees and Costs upon Appeal, section 18A-2-11 of the West Virginia Code.
•             Employment Term and Class Titles of Service Personnel, section 18A-4-8(n) of the West Virginia Code.
•             Employment, Promotion and Transfer of Professional Personnel; Seniority, section 18A-4-7a(r) of the West Virginia Code.
•             Employment Term and Class Titles of Service Personnel, section 18A-4-8(n) of the West Virginia Code.
•             Seniority Rights for School Service Personnel, section 18A-4-8b(s) of the West Virginia Code.
• Private Cause of Action for the humane Destruction of a Dog, sections 19-20D-2(d), -3(d) of the West Virginia Code.
• Labor
•             Wage Payment and Collection Act, sections 21-5-5d(c), -12(b) of the West Virginia Code.
•             Equal Pay for Equal Work Act, section 21-5B-4 of the West Virginia Code.
•             Minimum Wage and Maximum Hours Standards, section 21-5C-8(c) of the West Virginia Code.
•             Workplace Freedom Act, section 21-5G-5 of the West Virginia Code.
• Environmental Resources
•             Private Real Property Protection, section 22-1A-5 of the West Virginia Code.
•             Surface Mining and Reclamation Act, sections 22-3-25, -31, -33 of the West Virginia Code.
•             Related to Plugging of Wells, section 22-6-24(d)(2) of the West Virginia Code.
• Office of Miners' Health, Safety and Training; Administration; Enforcement, Discrimination Against Miner for Reporting, Filing, or testifying as to a Claim, section 22A-1-22(c) of the West Virginia Code.
• Employers’ Mutual Insurance Company, Limitation of Liability of Insurer or Third-Party Administrator, section 23-2C-21 of the West Virginia Code.
• Worker’s Compensation, sections 23-2-1d(c), -(j), 23-4-16(d)(2), 23-5-16 of the West Virginia Code.
• Prisoner Litigation Reform Act, section 25-1A-8 of the West Virginia Code.
• Solicitation of Charitable Funds Act, sections 29-19-15a, -15b of the West Virginia Code.
• Compensation of Public Defenders, section 29-21-13a of the West Virginia Code.
• Freedom of Information Act, section 29B-1-7 of the West Virginia Code.
• Professions and Occupations
•             Health Care Peer Review Organization Protection, section 30-3C-4 of the West Virginia Code.
•             Private Investigative and Security Services, section 30-18-12 of the West Virginia Code.
•              Uniform Athlete Agents Act, section 30-39-16 of the West Virginia Code.
• Selling Railroad Scrap Metal, section 31-2-17(j) of the West Virginia Code.
• Residential Mortgage Lender, section 31-17-17(c) of the West Virginia Code.
• Broadband Enhancement and Expansion Policies, section 31G-4-2(f) of the West Virginia Code.
• Banks and Banking
•             Maxwell Governmental Access to Financial Records Act, sections 31A-2A-7, -9 of the West Virginia Code.
•             Nominee Registration of Fiduciary Securities, section 31A-6-3 of the West Virginia Code.
• Uniform Limited Liability Company Act,
•             Court action to determine fair value of distributional interest, section 31B-7-702(d) of the West Virginia Code.
•             Derivate Actions, section 31B-11-1104 of the West Virginia Code.
• Business Corporation Act, section 31D-14-1434 of the West Virginia Code.
• Uniform Securities Act, section 32-4-410 of the West Virginia Code.
• Insurance
•             Section 33-2-9(r)(3) of the West Virginia Code.
•             Section 33-4-13(d) of the West Virginia Code.
•             Unfair Trade Practices Act, section 33-6-31 of the West Virginia Code.
•             Disclosure of Certain Insurance Information Required, section 33-6F-2(f) of the West Virginia Code.
•             Section 33-10-19a of the West Virginia Code.
•             Viatical Settlements Act, sections 33-13C-7(f)(3), -14(d)(2) of the West Virginia Code.
•             Section 33-16H-3 of the West Virginia Code.
•             Health Maintenance Organization Act, Prohibited Practices, sections 33-25A-14(e), -14a(e) of the West Virginia Code.
•             Prepaid Limited Health Service Organization Act, Prohibited Practices, sections 33-25D-15, -25 of the West Virginia Code.
•             Patients’ Eye Care Center, section 33-25E-5(f) of the West Virginia Code.
•             Life and Health Insurance Guaranty Association Act, section 33-26A-5(10) of the West Virginia Code.
•             Health Maintenance Organization Guaranty Association, section 33-26B-8(d) of the West Virginia Code.
•             Unauthorized Insurers Act, section 33-44-8(c)(1) of the West Virginia Code.
•             Ethics and Fairness in Insurer Business Practices, section 33-45-3 of the West Virginia Code.
• Uniform Unclaimed Property Act, sections 36-8-16, -22, -23 of the West Virginia Code.
• Real Estate Time-Sharing Act, sections 36-9-15, -19 of the West Virginia Code.
• Uniform Common Interest Ownership Act, sections 36B-3-111, -116(f), -117 of the West Virginia Code.
• Real Property held by Infants, Insane Persons, or Convicts, and Lands held in Trust, section 37-1-15 of the West Virginia Code.
• Residential Rental Security Deposits, section 37-6A-4 of the West Virginia Code.
• Removal, Transfer and Disposition of Remains in Graves Located upon Privately Owned Lands, section 37-13-6 of the West Virginia Code.
• House Trailers, Mobile Homes, Manufactured Homes and Modular Homes, section 37-15-6a(b) of the West Virginia Code.
• Action on Refusal of Lienholder to Execute Release, section 38-12-10 of the West Virginia Code.
• Fraudulent Common Law Liens, sections 38-16-404, -501, -505 of the West Virginia Code.
• Uniform Power of Attorney Act, sections 39B-1-114(h), -117, -120(d) of the West Virginia Code.
• Guardianship and Conservatorship Act, sections 44A-1-13(c), 44A-3-17 of the West Virginia Code.
• Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act, section 44C-2-6(b) of the West Virginia Code.
• Uniform Trust Code, sections 44D-5-503a(c), 44D-10-1004 of the West Virginia Code.
• Uniform Commercial Code
•             Leases, Unconscionability, section 46-2A-108 of the West Virginia Code.
•             Refusal to Pay Cashier’s Checks, Teller’s Checks and Certified Checks, section 46-3-411 of the West Virginia Code.
•             Presentment Warranties, sections 46-3-416, -417 of the West Virginia Code.
•             Funds Transfers, sections 46-4A-305, -404(b) of the West Virginia Code.
•             Letters of Credit, section 46-5-111(e) of the West Virginia Code.
•             Warehouse Receipts, Bills of Lading, and Other Documents of Title, Lost, Stolen, or Destroyed, section 46-7-601 of the West Virginia Code.
•             Secured Transactions, sections 46-9-103, -516a(c)(2), -607, -615(a)(1), -616, -623(b)(2), -626 of the West Virginia Code.
• Consumer Credit and Protection Act,
•             Unlawful Commercial Facsimile Transmission, section 46A-2-139 of the West Virginia Code.
•             Sections 46A-5-104, -108 of the West Virginia Code.
•             Section 46A-6-106(h) of the West Virginia Code.
•             New Motor Vehicle Warranties, section 46A-6A-4 of the West Virginia Code.
•             Credit Services Organizations, section 46A-6C-9 of the West Virginia Code.
•             Prizes and Gifts, Action to Enforce Provision, section 46A-6D-8 of the West Virginia Code.
•             Consumer Protection – Assistive Devices, section 46A-6E-7(c) of the West Virginia Code.
•             Telemarketing, section 46A-6F-701 of the West Virginia Code.
•             Electronic Mail Protection Act, section 46A-6G-5 of the West Virginia Code.
•             Good Funds Settlement Act, section 46A-6K-1 of the West Virginia Code.
•             Section 46A-6L-104 of the West Virginia Code.
• Consumer Goods Rental Protection Act,
•             Unconscionable Agreement, section 46B-2-2(d) of the West Virginia Code.
•             Violations of Article, section 46B-8-1 of the West Virginia Code.
• Regulation of Trade
•             Trademarks/Trade Secrets, section 47-2-14(a) of the West Virginia Code.
•             Uniform Limited Partnership Act, section 47-9-59 of the West Virginia Code.
•             Petroleum Products Franchise Act, section 47-11C-6 of the West Virginia Code.
•             Farm Equipment Dealer Contract Act, section 47-11F-8 of the West Virginia Code.
•             Sale of Preneed Funeral Contracts without License, section 47-14-12 of the West Virginia Code.
•             Antitrust Act, Restraint of Trade, sections 47-18-9, -17(g) of the West Virginia Code.
•             Court Reporter Services/Penalties for Violations, section 47-27-4 of the West Virginia Code.
• Uniform Partnership Act, Purchase of Dissociated Partner’s Interest, section 47B-7-1(i) of the West Virginia Code.
• Domestic Relations Act 
•             Support Order, section 48-1-245 of the West Virginia Code.
•             Fees to Prosecute, Temporary Relief, Appeal, section 48-1-305 of the West Virginia Code.
•             Collection of Child or Spousal Support by Collection Agencies, section 48-1-307(r) of the West Virginia Code.
•             Relocation of Parent, Notice Requirement, section 48-9-403 of the West Virginia Code.
•             Enforcement of Parenting Plan, section 48-9-501(a)(6) of the West Virginia Code.
•             Temporary Relief During Pendency of Action for Divorce, section 48-5-504 of the West Virginia Code.
•             Section 48-5-611 of the West Virginia Code.
•             Reduction or Termination of Spousal Support Because of De Facto Marriage, section 48-5-707(a)(3) of the West Virginia Code.
•             Knowingly False Accusation of Child Abuse or Neglect, or Domestic Violence made During a Child Custody Proceeding, section 48-9-209(d) of the West Virginia Code.
•             Grandparent Visitation, section 48-10-1101 of the West Virginia Code.
•             Uniform Interstate Family Support Act, sections 48-16-102(28), -305(b)(11), -313 of the West Virginia Code.
•             Uniform Child Custody Jurisdiction and Enforcement Act, sections 48-20-208(c) -312 of the West Virginia Code.
•             Domestic Violence Legal Services Fund, section 48-26-603 of the West Virginia Code.
•             Uniform Deployed Parents Custody and Visitation Act, section 48-31-103 of the West Virginia Code.
• Subsidized Adoption and Legal Guardianship, section 49-4-112(b)(3) of the West Virginia Code.
• Contempt Powers of Family Court Judge, section 51-2A-9(b) of the West Virginia Code.
• Right of Action for Discrimination Against Employees Summoned for Jury Duty, section 52-3-1 of the West Virginia Code.
• Extraordinary Remedies,[i] sections 53-1-8, 53-2-7, 53-5-9, 53-5-12 of the West Virginia Code.
• Licensed Psychologist/Psychiatrist Named in a Civil Action Because of his or her Performance of a Child Custody Evaluation while acting as a Court-Appointed Expert and who Prevails, section 55-7-21(d) of the West Virginia Code.
• Medical Professional Liability Act,
•             Expedited Resolution of Cases Against Health Care Providers, sections 55-7B-6b(e)–(f) of the West Virginia Code.
•             Summary Jury Trials, section 55-7B-6c(i) of the West Virginia Code.
• Asbestos Bankruptcy Trust Claims Transparency Act, section 55-7F-7 of the West Virginia Code.
• Action for Financial Exploitation of an Elderly Person, Protected Person or Incapacitated Adult, section 55-7J-4 of the West Virginia Code.
• Revised Uniform Arbitration Act, sections 55-10-16, -23, -27 of the West Virginia Code.
• Lease and Conveyance of Mineral Interests Owned by Missing or Unknown Owners or Abandoning Owners, section 55-12A-8 of the West Virginia Code.
• Declaration Concerning Trusts and Estates, section 55-13-4 of the West Virginia Code.[ii]
• Cigarettes Produced for Export; Imported Cigarettes, section 60-9-8 of the West Virginia Code.
• Clandestine Drug Laboratory Remediation Act, section 60A-11-6 of the West Virginia Code.
• Shoplifting, Civil Liability, section 61-3a-5(b) of the West Virginia Code.
• Intimidation of and Retaliation Against Public Officers and Employees, Jurors and Witnesses; Fraudulent Official Proceedings and Legal Processes Against Public Officials and Employees, sections 61-5-27(f)-(g) of the West Virginia Code.
• Fraudulent Official Proceedings; Causing a Public Employee or Official to File a Fraudulent Legal Process; Impersonation of a Public Official, Employee or Tribunal, section 61-5-27a(i) of the West Virginia Code.
• Dangerous Weapons
•             License to Carry Deadly Weapons, section 61-7-4(j) of the West Virginia Code.
•             Provisional License to Carry Deadly Weapons, section 61-7-4a(j) of the West Virginia Code.
•             Chief Officer Certification to Transfer or Make Certain Firearms, section 61-7-16(d) of the West Virginia Code.
• Wiretapping and Electronic Surveillance Act, section 62-1D-12(a)(3) of the West Virginia Code.

_{G.        Miscellaneous Exceptions}    

            G. Miscellaneous Exceptions           

            An extensive search of the West Virginia jurisprudence resulted in two additional exceptions that do not appear to fit within the traditional analysis set forth supra. In the 1996 case of TXO Prod. Corp. v. All. Res. Corp.,[247] the West Virginia Supreme Court of Appeals held that “[o]rdinarily, attorneys' fees are not considered damages. However, slander of title is a special case. . . . We follow the clear majority rule in holding that attorneys' fees incurred in removing spurious clouds from a title qualify as special damages in an action for slander of title.”[248] In the 1936 case of In re Hawley's Estate, the Court held that a persons nominated as executors in an instrument, which they unsuccessfully presented for probate, was entitled to a reasonable allowance for attorney's fees.[249]

IV.       Conclusion  
            While no article could possible cover every aspect of attorney fees, this article outlines the foundational guidelines and the exceptions that have been developed, whether through the jurisprudence, rules, and State Code, over the years. As set forth herein, the starting point for an award of attorney fees is the American Rule and the principal that, absent certain exceptions, each party is responsible for their own fees.  
            As noted in the second part of the article, there are a number of exceptions, whether judicial created or set forth in the rules and State Code, that allow for the award of attorney fees.  Some of the more notable exceptions include the bad faith exception, exceptions in class actions, when awarding fees is essential to equities, and insurance cases. Additionally, the West Virginia rules and certain statutes provide for fees to be shifted in certain situations. While there are a number of exceptions, generally speaking, litigation in the West Virginia is still a “pay to play” game.  As such, only in limited situations should a litigant expect attorney fees to be covered by the opponent. The American rule remains the typical procedure governing attorney fees. 

• 
  

---

_{[1] Matthew G. Chapman, Esq., is a proud graduate of West Virginia University College of Law and currently works as an associate with Rawle & Henderson L.L.P. We wish to dedicate this article to the late Judith Greene; she was a consummate mentor, a light among the darkness, and is greatly missed.}

_{[2] The Honorable Joseph K. Reeder is a Judge in the Twenty-Ninth Judicial Circuit, which covers all of Putnam County, West Virginia.}

_{[3] Jonathan G. Brill is a US Army veteran, having served in Afghanistan in 2002, a 2007 graduate of Fairmont State University, and a 2010 graduate of the West Virginia University College of Law.  Jonathan resides in Yellow Spring, West Virginia, with his wife, Aura, and two boys, Owen and Eli, and practices law in Romney, West Virginia, at his firm, Jonathan G Brill, PLLC.}

_{[4] 3 U.S. 306 (1796).}

_{[5] Jane P. Mallor, Punitive Attorneys' Fees for Abuses of the Judicial System, 61 N.C. L. Rev. 613, 615 (1983).}

_{[6] Sally-Mike Props. v. Yokum, 365 S.E.2d 246, 250 (W. Va. 1986) (citing Conte v. Flota Mercante Del Estado, 277 F.2d 664, 672 (2d Cir. 1960)).}

_{[7] Jane P. Mallor, Punitive Attorneys' Fees for Abuses of the Judicial System, 61 N.C. L. Rev. 613, 616 (1983) (footnotes omitted).}

_{[8] Sally-Mike Props,., 365 S.E.2d at 250 (citing Conte, 277 F.2d at 672).}

_{[9] Jay E. Rosenblum, The Appropriate Standard of Review for a Finding of Bad Faith, 60 Geo. Wash. L. Rev. 1546, 1548–49 (1992) (citations omitted).}

_{[10] Garnes v. Fleming Landfill, Inc., 413 S.E.2d 897, 903 (W. Va. 1991), holding modified by Perrine v. E.I. du Pont de Nemours & Co., 694 S.E.2d 815 (W. Va. 2010).}

_{[11] Nelson v. W. Va. Pub. Emps. Ins. Bd., 300 S.E.2d 86, 94 (W. Va. 1982) (Neely, J., concurring) (footnotes omitted).}

_{[12] Sally-Mike Props,., 365 S.E.2d at 250. (citation omitted).}

_{[13] Id. at 250 n.7.}

_{[14] Mallor, supra note 6, at 616 (footnotes omitted).}

_{[15] As argued by Jane Mallor,}

_{[a] contingent fee arrangement is not an antidote to this problem because the contingent fee is not appropriate in every case and might not be acceptable to an attorney in a close case or in one involving a small amount of money. A system of fee shifting could be an incentive for indigents to vindicate clear rights in court and would make legal ‘aid’ a matter of right.}

_{Id. at 616–17.}

_{[16] “To this extent, the American rule may function as a ‘legalized form of blackmail’ that encourages frivolous claims and adds to the congestion of courts.” Id. at 617 (footnotes omitted).}

_{[17] 300 S.E.2d 86, 92–99 (W. Va. 1982) (Neely, J., concurring).}

_{[18] Id.}

_{[19] Nelson v. W. Va. Pub. Emps. Ins. Bd., 300 S.E.2d 86, 93 (W. Va. 1982) (Neely, J., concurring).}

_{[20] Id. at 93 n.1 (quoting Walthall, Awards of Attorneys' Fees in the Absence of a Statute: Funds & Prospects in the Fifth Circuit, 10 Cumb. L. Rev. 359, 366 (1979)).}

_{[21] Id. at 93 (footnotes omitted).}

_{[22] Id. at 96.}

_{[23] Id.}

_{[24] Id. at 98.}

_{[25] Based upon the jurisprudence, it appears clear that in order to obtain attorney fees, the requesting party must have won. See State ex rel. Bronson v. Wilkes, 607 S.E.2d 399, 403 (W. Va. 2004) (“There is simply no authority that permits an award of attorney's fees to a losing party regardless of whether or not they acted in good faith.”).}

_{[26] See Bd. of Zoning Appeals of Town of Shepherdstown v. Tkacz, 764 S.E.2d 532, 538 n.14 (W. Va. 2014) (quoting Sally–Mike Props. v. Yokum, 365 S.E.2d 246 (W. Va. 1986)).}

_{[27] 365 S.E.2d 246 (W. Va. 1986).}

_{[28] Syl. Pt. 3, Sally-Mike Properties, 365 S.E.2d at 247. This also includes obdurate conduct by the losing party. Horkulic v. Galloway, 665 S.E.2d 284, 298 (W. Va. 2008).}

_{[29] 792 F.3d 554 (5th Cir. 2015).}

_{[30] Id. at 561.}

_{[31] Id.}

_{[32] Id.}

_{[33] Id.}

_{[34] Id. at 561 n.4.}

_{[35] In Gainer v. Walker, the West Virginia Supreme Court of Appeals used the same definition for “vexatious manner.” Gainer v. Walker, 701 S.E.2d 837, 847 (W. Va. 2009) (footnotes omitted).}

_{[36] In re 1997 Grand Jury, 215 F.3d 430, 436 (4th Cir. 2000) (citations omitted). This case was specifically addressing a Hyde amendment motion, wherein a party who prevails in an action brought by the United States Department of Justice may seek attorney fees from the government.}

_{[37] 408 S.E.2d 72 (W. Va. 1991).}

_{[38] Id.at 79.}

_{[39] 378 U.S. 184 (1964).}

_{[40] Id. at 197 (Stewart, J., concurring).} 

_{[41] In re ALH Holdings LLC, 675 F. Supp. 2d 462, 485 (D. Del. 2009) (a party alleging bad faith, as one of the four limited exceptions to the American rule which requires parties to bear their own litigation expenses, must prove such through a higher or more stringent standard of proof, i.e., clear evidence); see also Griffin Indus., Inc. v. U.S. E.P.A., 640 F.3d 682, 685 (6th Cir. 2011); Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 467 (7th Cir. 2006) (citing Satoskar v. Ind. Real Estate Comm'n, 517 F.2d 696, 698 (7th Cir. 1975)); Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 187 F.3d 655, 660 (D.C. Cir. 1999); Nepera Chem., Inc. v. Sea-Land Serv., Inc., 794 F.2d 688, 702 (D.C. Cir. 1986) (citing Adams v. Carlson, 521 F.2d 168, 170 (7th Cir. 1975)); Batson v. Neal Spelce Assocs., Inc., 805 F.2d 546, 549 (5th Cir. 1986); Singer Co. v. Skil Corp., 803 F.2d 336, 341 (7th Cir. 1986).}

_{[42] Ass'n of Am. Physicians & Surgeons, Inc., 187 F.3d at 660; see also Slauson v. Marozzo Plumbing & Heating, LLC, 219 P.3d 509, 516 (Mont. 2009) (“This exception, however, applies only in ‘rare’ and ‘isolated’ instances—in particular, only where the action into which the prevailing party has been forced is utterly without merit or frivolous, and only in cases with particularly limited facts.”); 35B C.J.S. Federal Civil Procedure § 1396 (“The district court's exercise of its inherent authority must be undertaken with restraint and discretion, employed only in compelling situations or extraordinary circumstances. Generally, the inherent power to sanction an attorney for misconduct should be reserved for those cases in which the conduct is egregious, when an attorney or party acts in bad faith, vexatiously, wantonly, or for oppressive reasons, or for the willful disobedience of a court order.”) (footnotes omitted).}

_{[43] 27A Tracy Bateman et. al., Fed. Proc. § 62:796 (L. Ed. 2019) (“A court's inherent power to sanction serves a punitive purpose, based on the need to deter misconduct and vindicate the court's authority.”) (footnotes omitted).}

_{[44] See Chambers v. Nasco, Inc., 501 U.S. 32, 53 (1991) (“in the case of the bad faith exception to the American Rule, the underlying rationale of ‘fee shifting’ is, of course, punitive” despite its compensatory effect) (quoting Hall v. Cole, 412 U.S. 1, 4–5 (1989)); Boyd v. Goffoli, 608 S.E.2d 169, 186 (W. Va. 2004) (“An obvious purpose of awarding attorney fees and costs in a case involving fraud[, a form of bad faith,] is that intentional conduct such as fraud should be punished and discouraged.”); see also Hoover v.Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 765 (10th Cir.1997); Hoover v. Armco, Inc., 691 F. Supp. 184 (W.D. Mo. 1988), aff’d, 915 F.2d 355 (8th Cir. 1990) (“The purpose behind the exception is to punish the individual who brings a suit in bad faith rather than to compensate the victim.”) (citing Actors' Equity Ass'n v. Am. Dinner Theatre Inst., 802 F.2d 1038, 1042 (8th Cir. 1986)).}

_{[45] Chambers v. Nasco, Inc., 501 U.S. 32, 44 (1991); see also Hadox v. Martin, 544 S.E.2d 395, 400 (W. Va. 2001).}

_{[46] Hall, 412 U.S. at 5 (stating that “the underlying rationale of ‘fee shifting’ is, of course, punitive”); Bergman v. United States, 844 F.2d 353, 357 (6th Cir. 1988) (declaring that “[b]ecause an award of attorneys' fees is extraordinary and punitive, standards for bad faith for purposes of awarding attorneys' fees under the EAJA are stringent”) (citing Morley v. Brown, 605 F. Supp. 1468 (N.D. Ohio 1985)); Barry v. Bowen, 825 F.2d 1324, 1333 (9th Cir. 1987) (explaining that the award of attorneys' fees is a punitive action, reserved for exceptional cases); Nepera Chem.., Inc., 794 F.2d at 702 (emphasizing “that the underlying rationale of fee-shifting upon a showing of bad faith is punishment of the wrongdoer rather than compensation of the victim. For that reason, the standard for a finding of bad faith is stringent”) (footnote omitted).}

_{[47] Jack Henry & Assocs., Inc. v. BSC, Inc., 753 F. Supp. 2d 665, 673 (E.D. Ky. 2010), aff'd, 487 F. App'x 246 (6th Cir. 2012) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)); see also Tenants & Owners in Opposition to Redevelopment  v. U.S. Dep't of Hous. & Urban Dev., 406 F. Supp. 960, 964 (N.D. Cal. 1975) (bad faith will only be found in “conduct that clearly goes beyond generally accepted vigor and persistence commonly employed in our adversary system”). Ultimately, these Authors suggest in making a determination as to whether there has been bad faith conduct, reviewing courts may consider employing Hanlon’s Razor, which states “never attribute to malice that which is adequately explained by stupidity..” See Liberty Life Assur Co. of Boston v. Devillalvilla, No. 6:12-cv-1320-Orl-37TBS, 2014 WL 309084, at *5 (M.D. Fla. Jan. 28, 2014); see also Matthew A. Seligman, Neutral Principles and Political Power: A Response to Reverse Political Process Theory, 70 Vand. L. Rev. En Banc 301, 310 n. 43 (2017) for a discussion regarding Hanlon’s razor.} 

_{[48] See Pritt v. Suzuki Motor Co., 513 S.E.2d 161, 166 (W. Va. 1998) (the West Virginia Supreme Court of Appeals stated that fraud, which is a form of bad faith, requires proof that is clear and convincing); Miller v. Lambert, 467 S.E.2d 165, 174 (W. Va. 1995) (finding that the circuit court correctly instructed the jury when the instruction indicated that in order to award attorney fees, you must find “by clear and convincing evidence that in defending this action the [defendant] acted in bad faith, vexatiously, wantonly, or for oppressive reasons”); Syl. Pt. 5, Smith v. Monongahela Power Co., 429 S.E.2d 643 (W. Va. 1993) (finding that a party must prove a settlement was made in bad faith by clear and convincing evidence); Syl. Pt. 4, Bowling v. Ansted Chrysler-Plymouth-Dodge, Inc., 425 S.E.2d 144, 151 (W. Va. 1992) (“[(“Where it can be shown by clear and convincing evidence that a defendant has engaged in fraudulent conduct[[—a form of bad faith—] which has injured a plaintiff, recovery of reasonable attorney's fees may be obtained in addition to the damages sustained as a result of the fraudulent conduct.”); see also Ass'n of Am. Physicians & Surgeons, Inc. v. Clinton, 187 F.3d 655, 660 (D.C. Cir. 1999) (referencing Shepherd v. Am. Broad. Cos., Inc., 62 F.3d 1469, 1476–78 (D.C. Cir. 1995));)).)); Weinberger v. Kendrick, 698 F.2d 61, 80 (2d Cir. 1982).}

_{[49] Ass'n of Am. Physicians & Surgeons, Inc.., 187 F.3d 655, 660 (D.C. Cir. 1999) (quoting United States v. Montague, 40 F.3d 1251, 1255 (D.C. Cir. 1994)); see also Crowe v. Smith, 261 F.3d 558, 563 (5th Cir. 2001) (“In attorney suspension and disbarment cases, the finding of bad faith must be supported by clear and convincing proof. . . . Clear and convincing proof is a high standard, requiring more than a preponderance of the evidence. . . . To support a finding of bad faith, the evidence must be so direct and weighty as to leave the factfinder with a firm belief in the truth of the facts of the case.”) (citations omitted).}

_{[50] Webb v. W. Va. Bd. of Med., 569 S.E.2d 225, 232 (W. Va. 2002) (citations omitted).}

_{[51] Chambers, 501 U.S. at 50.}

_{[52] Roadway Express, Inc. v. Piper, 447 U.S. 752, 766 (1980).}

_{[53] See 2 Alba Conte, Attorney Fee Awards § 7:3 (3d ed.).. 2019).}

_{[54]1 Robert L. Rossi, Attorneys' Fees § 6:5 (3d ed.). 2019) (footnotes omitted).}

_{[55] See Section II.1.b, & e; see also 2 Alba Conte, Attorney Fee Awards § 7:12 (3d ed.). 2019) (“Most courts will award bad faith fees only when the challenged conduct was performed in subjective bad faith, for example, willful and deliberate.”).}

_{[56] Cases that have held that subjective bad faith is the applicable standard: Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980); Badillo v.Kornfeld v. Kornfeld, 393 F. App'x 575, 577 (10th Cir. 2010) (“The ‘stringent’ standard ‘generally requires a finding by the trial judge of subjective bad faith.’”) (citations omitted); In re ALH Holdings LLC, 675 F. Supp. 2d 462, 485 (D. Del. 2009) (“In assessing a claim of bad faith, a court must determine that the challenged party acted in subjective bad faith.”) (citations omitted); Sterling Energy, Ltd. v. Friendly Nat’l Bank, 744 F.2d 1433, 1435 (10th Cir. 1984) (“Thus, courts generally require a finding by the trial judge of subjective bad faith.”) (citing Badillo, 717 F.2d at 1165); Badillo v. Cent. Steel & Wire Co., 717 F.2d 1160, 1165 (7th Cir. 1983) (citing Comment, Attorneys' Fee Awards to Complex Litigation Defendants: Striking a Balance, 77 Nw. U. L. Rev. 818, 826 (1983)); Lipsig v. NationalCornwall v. Robinson, 654 F.2d 685, 687 (10th Cir. 1981); Lipsig v. Nat’l Student Mktg. Corp., 663 F.2d 178, 182 (D.C. Cir. 1980); Nemeroff v. Abelson, 620 F.2d 339, 348 (2d Cir. 1980); Browning Debenture Holders' CommitteeComm. v. DASA Corp., 560 F.2d 1078, 1088 (2d Cir. 1977). Cases that have held that subjective bad faith is not a necessary predicate to find bad faith: Dubois v.Gate Guard Servs., L.P. v. Perez, 792 F.3d 554, 561 n.4 (5th Cir. 2015); Sierra Club v. City of Little Rock, 351 F.3d 840, 847 (8th Cir. 2003) (citations omitted); Dubois v. U.S. Dept. of Agric., 270 F.3d 77, 80 (1st Cir. 2001) (citations omitted); Wash. Metro. Area Transit Auth. v. Local 2, Office & Prof’l Emps. Int’l. Union, AFL-CIO, 965 F. Supp. 2d 13, 56 (D.D.C. 2013) (citations omitted); Limone v. United States, 815 F. Supp. 2d 393, 399–400 (D. Mass. 2011) (“A finding of subjective bad faith is not necessary so long as the moving party can demonstrate that the losing party's actions were in fact objectively ‘frivolous, unreasonable, or without foundation[.]”)[.]’”) (citations omitted).} 

_{[57] Sally-Mike Props. v. Yokum, 365 S.E.2d 246, 249 (W. Va. 1986) (citing Hall v. Cole, 412 U.S. 1 (1973)).}

_{[58] Rosenblum, supra note 8, at 1550 (footnotes omitted). With regards to prelitigation conduct, see also Hall, 412 U.S. at 15; Vaughan v. Atkinson, 369 U.S. 527 (1962).}

_{[59] Some federal appellate courts have stated that the majority position is that attorney fees for bad faith conduct are limited only to conduct that occurred during the litigation. See Morganroth & Morganroth v. DeLorean, 213 F.3d 1301, 1318 (10th Cir. 2000), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011) (stating that “the clear majority view in federal courts is that the inherent power to award fees is limited to bad faith conduct in the litigation”) (citing Towerridge, Inc. v. T.A.O., Inc., 111 F.3d 758, 766767 n.6 (10th Cir. 1997)); see also Cordeco Dev.Centex Corp. v. United States, 486 F.3d 1369, 1372 (Fed. Cir. 2007); Kelly v. Golden, 352 F.3d 344, 352 (8th Cir. 2003) (“The power to award fees is exercisable only with respect to conduct occurring during the litigation, not conduct that gave rise to the cause of action.”) (citing Lamb Eng'g & Constr. Co. v. Neb. Pub. Power Dist., 103 F.3d 1422, 1435 (8th Cir. 1997)); Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., 313 F.3d 385, 391 (7th Cir. 2002); Ass'n of Flight Attendants v. Horizon Air Indus., Inc., 976 F.2d 541, 550 (9th Cir. 1992); Sanchez v. Rowe, 870 F.2d 291, 295 (5th Cir. 1989); Woods v. Barnett Bank of Fort Lauderdale, 765 F.2d 1004, 1014 (11th Cir. 1985); Shimman v. Int'l Union of Operating Eng'rs,, Local 18, 744 F.2d 1226, 1231 (6th Cir. 1984); Cordeco Dev. Corp. v. Santiago Vasquez, 539 F.2d 256, 262–63 (1st Cir. 1976); E. F. Hutton & Co. v. Anderson, 596 P.2d 413, 416 (Colo. App. 1979); State ex rel. New MexicoN.M. State Highway & Transp. Dep't v. Baca, 896 P.2d 1148, 1152 (N.M. 1995); James Wm.Mary Francis Derfner & Arthur D. Wolf, Court Awarded Attorney Fees ¶ 4.01[2] (1999); James Wm. Moore & Fern M. Smith, Moore's Federal Practice § 54.171[2][c][ii] (3d ed.1999).}

_{[60] Sally-Mike Props., 365 S.E.2d at 249 n.5; Muzelak v. King Chevrolet, Inc., 368 S.E.2d 710 (W. Va. 1988); Miller v. Lambert, 467 S.E.2d 165 (W. Va. 1995).}

_{[61] Ass'n of Flight Attendants, AFL-CIO, 976 F.2d at 550 (“(“[N]o federal appellate authority in or out of the Ninth Circuit has clearly approved an order shifting attorney's fees based solely upon a finding of bad faith as an element of the cause of action presented in the underlying suit.”).}

_{[62] Sanchez, 870 F.2d at 294 (citations omitted); see also Perales v.Centex Corp., 486 F.3d at 1372 (“[A]uthorizing a court to shift fees based solely on bad faith conduct that forms the basis for the substantive claim for relief would undermine the American Rule by penalizing a party who raises good faith defenses to claims of liability for bad faith conduct.”); Zapata Hermanos Sucesores, S.A., 313 F.3d at 391 (explaining that federal courts should use their inherent powers to punish misconduct “occurring in the litigation itself, not in the events giving rise to the litigation (for then the punishment would be a product of substantive law—designed, for example, to deter breaches of contract)”); Perales v. Casillas, 950 F.2d 1066, 1071 (5th Cir.1992).}

_{[63] See Jacob Singer, Note, Bad Faith Fee-Shifting in Federal Courts: What Conduct Qualifies?, 84 St. John's L. Rev. 693 (2010)).}

_{[64] See Mallor, supra note 6, at 636–37 (“The bad faith exception should not be applied to permit fee shifting in the garden variety tort or breach of contract case in which the only bad faith is that inherent in the cause of action itself. Adequate deterrence to such conduct and adequate incentive to sue already exist through the availability of compensatory and punitive damages. Furthermore, even though a defendant may have acted in bad faith or with malice in the original dispute, he may have a reasonable legal or factual basis for contesting the suit against him.”) (footnotes omitted).}

_{[65] Morganroth & Morganroth v. DeLorean, 213 F.3d 1301, 1318 (10th Cir. 2000), overruled on other grounds by TW Telecom Holdings Inc. v. Carolina Internet Ltd., 661 F.3d 495 (10th Cir. 2011) (quoting 10 Moore's Federal Practice § 54.171[2][c][ii]], at 54–266); see also Straub v. Vaisman & Co., 540 F.2d 591, 599 (3d Cir. 1976).}

_{[66] 425 S.E.2d 144 (W. Va. 1992).}

_{[67] Id. at 146.}

_{[68] Id. at 148.}

_{[69] Sally–Mike Props. v. Yokum, 365 S.E.2d 246 (W. Va. 1986).}

_{[70] Hall v. Cole, 412 U.S. 1 (1973)).}

_{[71] Bowling, 425 S.E.2d at 150 (citations omitted).}

_{[72] Id. at 151 (citations omitted).}

_{[73] Syl. Pt. 4, Sally–Mike Props., 365 S.E.2d at 247.}

_{[74] These authors concede that the “purpose of awarding attorney fees and costs in a case involving fraud is that intentional conduct such as fraud should be punished and discouraged.” Boyd v. Goffoli, 608 S.E.2d 169, 186 (W. Va. 2004) (not allowing an award of attorney fees because the losing party “has been sufficiently discouraged from future fraudulent conduct by the sizable punitive damages awarded by the jury”). However, this consideration must be counterbalanced against the idea that a party should not be punished for protecting their economic interests.}

_{[75] Bowling, 425 S.E.2d at 151.}

_{[76] Restatement (Second) of Contracts § 205 (Am. Law Inst. 1981).}

_{[77] See Amaker v. Hammond's Mill Homeowners Ass'n, Inc., No. 15-0203, 2015 WL 6954981, at *10 (W. Va. Nov. 6, 2015) (finding knowingly building a fence on another property and failing to remove the same after over a year of repeated requests to be bad faith); State ex rel. York v. W. Va. Real Estate Appraiser Licensing & Certification Bd., 760 S.E.2d 856, 862 (W. Va. 2014) (holding licensed real estate appraiser was entitled to award of attorney fees incurred in defending disciplinary proceedings before state Real Estate Appraiser Licensing and Certification Board because Board acted in bad faith by attempting without authority to “reopen” previously dismissed complaints, failed to set complaints for hearing within one-year period set forth in statutes governing professions and occupations, failed to issue any final order from which an appeal could be sought, and instead simply presented appraiser with proposed consent decrees, which appraiser consistently rebuffed); Corp. of Harpers Ferry v. Taylor, 711 S.E.2d 571 (W. Va. 2011) (finding bad faith where city official and city continually added requirements, many of which were simply not pertinent, in order to prevent plaintiff from building a path that was in proximity to city official’s land.); Flanagan v. Stalnaker, 607 S.E.2d 765, 772 (W. Va. 2004) (In a contract dispute over a pipeline, Defendant was awarded attorney fees because Plaintiff piled brush across right-of-way, directed profanity toward Defendant, and “used a machete on at least one occasion to cause a leak in one of the pipelines.”).}

_{[78] Thomas v. Houck, No. 15-1205, 2016 WL 6780095, at *2 (W. Va. Nov. 16, 2016) The defendant repeatedly blocked the only road used by plaintiff to access his property; in fact, the defendant built a fence in order to close the road. This was despite the fact that: 1) plaintiff had an easement to use the road since approximately 1920; 2) defendant’s deed expressly provided for the easement; 3) defendant admitted that plaintiff had used the property “‘many times’ since [defendant] purchased their property[;]””; and 4) defendant was advised by the seller of the property prior to defendant purchasing the same that plaintiff “had the right to use the road.” The court noted that defendant’s acts were “intentional, reckless and harmful, and/or that it exhibited criminal indifference to civil obligations.”; Dunbar Fraternal Order of Police, Lodge No. 119 v. City of Dunbar, 624 S.E.2d 586, 593 (W. Va. 2005) (60 days prior to termination of CBA, city flatly refused to attempt to negotiate a new CBA; “[s]uch action was in gross violation of the clear agreement entered into by the parties ‘to bargain in good faith with regard to a successor agreement.’”); Pauley v. Gilbert, 522 S.E.2d 208, 217 (W. Va. 1999) (“(“[F]ailing to perform . . . legally-prescribed fiduciary duties and in misappropriating the corpus of [a] trust account for her own use constituted ‘bad faith, vexatious[ ], wanton[] [and] ... oppressive’ behavior meriting an award of attorney's fees[.]”); Miller v. Lambert, 467 S.E.2d 165, 174 (W. Va. 1995) (where evidence was presented to the jury that the homeowner knowingly installed his fence on his neighbor's property and threw the boundary markers into the river, the court upheld a jury's award of attorney fees on the basis of bad faith where there was evidence that one party knowingly encroached on his neighbor's property); see also Baldau v. Jonkers, 725 S.E.2d 170, 181 (W. Va. 2011).}

_{[79] Michael C. v. Teressa D., No. 13-1077, 2014 WL 4930191, at *6 (W. Va. Oct. 2, 2014) (finding an award of attorney fees was appropriate as offending party “falsely and maliciously accuse[d] the paternal grandparents of sexually abusing the minor child despite the lack of any evidence indicating that they had, in fact, perpetrated such atrocities”); Miller v. Miller, No. 11-1184, 2012 WL 5857306, at *2 (W. Va. Nov. 19, 2012) (holding award of attorney fees based on bad faith was appropriate where plaintiff alleged that neighboring landowner's changes to his land resulted in interference with drainage of plaintiff’s property and damaged his property, but plaintiff had absolutely no evidence to support his claims); In re John T., 695 S.E.2d 868, 871 (W. Va. 2010) (finding making repeated and false accusations of child sexual abuse over a four year period and pressuring a very young child into making these allegations in order to prevent a party from exercising custody to be bad faith conduct); Muzelak v. King Chevrolet, Inc., 368 S.E.2d 710 (W. Va. 1988) (finding bad faith where, knowing that a car had significant problems, car salesman told plaintiff that the car was right for her).}

_{[80] Syl. Pt. 4, Bowling, 425 S.E.2d at 151 (W. Va. 1992) (finding fraud as sufficient justification for an award of attorney fees); Yost v. Fuscaldo, 408 S.E.2d 72, 75 (W. Va. 1991) (finding obtaining fraudulent releases from a party who had retained counsel and had lost his hand in an accident to warrant an award of attorney fees).}

_{[81] Gainer v. CashCall, Inc. v. Morrisey, No. 12-1274, 2014 WL 2404300, at *21 (W. Va. May 30, 2014); Gainer v. Walker, 701 S.E.2d 837, 847 (W. Va. 2009).}

_{[82] Pritt v. Suzuki Motor Co., 513 S.E.2d 161, 166–67 (W. Va. 1998) (finding bad faith where plaintiff brought claims against defendant for an ATV accident which he alleged caused severe physical and mental injuries;  and plaintiff was found to have, inter alia, actively concealed the truth of his injuries.)).}

_{[83] In McClung v. Marion Cty. Comm’n, an employee brought an action for overtime wages, and after bringing this claim, the employer immediately fired the employee without any notice, denied him an opportunity to be heard even though they had given him the opportunity in the past, and denied his request for a grievance hearing pursuant to the personnel policy memorandum. McClung, 360 S.E.2d 221, 225 (W. Va. 1987). As stated by the Court, employer’s}

_{administrative assistant, demonstrating a remarkable grasp of sophistry, notified the appellant by letter that the [employee] was not entitled to a grievance hearing because a grievance hearing could be requested only by an employee, and the appellant was no longer an employee at the time that he had requested a grievance hearing.}

_Id.

_{[84] Yost, 408 S.E.2d at 79 (quoting Nelson v. W. Va. Pub. Emps. Ins. Bd., 300 S.E.2d 86, 95 (W. Va. 1982)).}

_{[85] Summit Valley Indus. Inc. v. Local 112, United Bhd. of Carpenters & Joiners of Am., 456 U.S. 717, 721 (1982).}

_{[86] Nelson, 300 S.E.2d at 91 (public officer admitted to willfully disregarding the mandatory provisions of the code: “where a public officer willfully fails to obey the law, costs will be awarded”); see also Vaughan v. Atkinson, 396 U.S. 527 (1962). But see Nelson, 300 S.E.2d at 94 (Neely, J. concurring)}

_{…an eventual loser's refusal to recognize the validity of the eventual winner's position, and his insistence on taking the winner to court, do not necessarily imply wrongful conduct on the part of the loser. After all, the loser calculated his chances of winning as sufficiently promising to put up his own attorneys' fees. And even where lawyers take a case on a contingent fee, the lawyer has usually calculated the chance of winning as sufficiently strong to warrant his time and effort. . . . However in suits where a court is not called on to resolve a conflict, but merely to enforce a rule or to point out that there is no dispute and make an award, a rule indemnifying a party for his attorneys' fees can provide important benefits.}

_Id.

_{[87] Sharrow v. Fish, 501 F. Supp. 202, 204 (S.D.N.Y. 1980), aff'd, 659 F.2d 1062 (2d Cir. 1981); Browning Debenture Holders' Comm. v. DASA Corp., 605 F.2d 35, 39–41 (2d Cir. 1978); Cleveland v. Second Nat’l Bank & Tr. Co., 149 F.2d 466, 469 (6th Cir. 1945).}

_{[88] Restatement (Second) of Torts § 914 (Am. Law Inst. 1979). These authors caution, however, that there is no West Virginia jurisprudence that directly states that this cause of action has been adopted; therefore, it is unclear whether this exception to the American rule would be applicable in West Virginia.}

_{[89] Id. at cmt. b.}

_{[90] For a further discussion of this exception, see Mallor, supra note 7, at 624.}

_{[91] Other possible examples of bad faith conduct from outside of West Virginia jurisprudence include the following:}

_{the failure to appear in court on time; the failure to cooperate with discovery; submission of falsified records; attempting to threaten or bribe a witness; misrepresenting evidence; the failure to adhere to stipulations; repeated failure to meet filing deadlines; the filing of moot appeals; concealing or failing to produce documents or witnesses; the destruction of evidence; the repeated assertion of time-barred claims[;] . . . the filing of unnecessary, groundless, or vexatious motions or petitions; the continued pursuit of a groundless claim; the assertion of patently frivolous defenses; the assertion of specious objections; the failure to withdraw an action; the continuation of a defense after it is clear it is meritless; and the refusal to concede an issue about which there can be no dispute.}

_{Conte, supra note 53, at § 7:11 (citations omitted).}

_{[92] Bostic v. Mallard Coach Co., 406 S.E.2d 725, 731 (W. Va. 1991) (concluding that a manufacturer's failure to assess defect in recreational vehicle until morning of last day of trial brought under lemon law was not bad faith, vexatious, wanton, or oppressive action; thus, purchaser was not entitled to award of costs under equity.). See Trade Well Int'l v. United Cent. Bank, 778 F.3d 620, 627 (7th Cir. 2015) (“Negligence, however, is not enough to support a finding of bad faith.”) (citations omitted); Dreiling v. Peugeot Motors of Am., Inc., 850 F.2d 1373, 1382–83 (10th Cir. 1988) (“We note, however, that the bad-faith exception to the general rule that attorney's fees may not be recovered requires more than a showing of a weak or legally inadequate case, and more than a finding of negligence, frivolity, or improvidence.”) (citing Cornwall v. Robinson, 654 F.2d 685, 687 (10th Cir. 1981)). See also Nelson v. W. Va. Pub. Emps. Ins. Bd., 300 S.E.2d 86, 96 (W. Va. 1982) (Neely, J., concurring)}

_{Personal injury cases are also inappropriate for fee-shifting. Litigation is a game one can afford to play only if one can afford to lose. Personal injury suits would be discouraged if the price of loss were raised by the possibility of one's being stuck with the defendant's attorneys' fees in the event the suit were unsuccessful. And, as discussed supra, a good part of a defendant's incentive to delay is removed by the weighting of the balance in favor of the plaintiff at trial.}

_Id.

_{[93] Helmick v. Potomac Edison Co., 406 S.E.2d 700, 709 (W. Va. 1991) (holding that the property owner was not entitled to attorney's fees and costs due to electric utility's erroneous representation that property owner owned utility pole involved in accident out of which lawsuit arose, where evidence showed that utility did not act in bad faith, vexatiously, wantonly, or for oppressive reasons.).}

_{[94] Fink v. Gomez, 239 F.3d 989, 993–94 (9th Cir. 2001).}

_{[95] Daily Gazette Co., Inc. v. Canady, 332 S.E.2d 262, 266 (W. Va. 1985). However, the West Virginia Supreme Court of Appeals did go on to state that “as the frivolousness of a claim or defense increases, the likelihood that it is being advanced for improper purposes increases.” Id. It appears that the Court was trying to make a distinction, however, between being incompetent and improper motives.}

_{[96] Estate of Hevia v. Portrio Corp., 602 F.3d 34, 46 (1st Cir. 2010) (“[I]t would be quixotic for us to infer bad faith from the mere fact that the plaintiffs chose to sue and lost.”).}

_{[97] Nelson, 300 S.E.2d at 94 (Neely, J., concurring).} 

_{[98] Canady, 332 S.E.2d at 266. See also Murthy v. Karpacs-Brown, 788 S.E.2d 18 (W. Va. 2016); Ramezan v. Hough, No. 14–1311, 2015 WL 5331810 (W. Va. Sept. 11, 2015); Hinerman v. Rodriguez, No. 14–0371, 2015 WL 3672260 (W. Va. June 12, 2015).}

_{[99] State ex rel. Brown v. Corp. of Bolivar, 614 S.E.2d 719, 726 (W. Va. 2005).}

_{[100] Segal v. Beard, 380 S.E.2d 444, 452–53 (W. Va. 1989).}

_{[101] Syl. Pt. 4, Sally-Mike Props. v. Yokum, 365 S.E.2d 246 (W. Va. 1986).}

_{[102] See Id.; see also Mallor, supra note 7, at 636–37,}

_{The bad faith exception should not be applied to permit fee shifting in the garden variety tort or breach of contract case in which the only bad faith is that inherent in the cause of action itself. Adequate deterrence to such conduct and adequate incentive to sue already exist through the availability of compensatory and punitive damages. Furthermore, even though a defendant may have acted in bad faith or with malice in the original dispute, he may have a reasonable legal or factual basis for contesting the suit against him. (footnotes omitted).}

_Id.

_{[103] This presents an interesting question: what if the settlement agreement contains a provision that each party is responsible for their own attorney fees? As the parties agreed to such a clause, would this preclude an award of attorney fees based upon the bad faith exception? Based upon the holding in Farmer v. Banco Popular of North American, it appears that such an agreement does not preclude or prohibit the court from using its inherent power to sanction bad faith conduct regardless of the contractual provision. Farmer v. Banco Popular of North America, 791 F.3d 1246, 1255 (10th Cir. 2015).}

_{[104] The one major exception to this principal is in insurance cases, which is discussed in Part 3, herein.}

_{[105] McCormick v. Allstate Ins. Co., 475 S.E.2d 507, 513 (W. Va. 1996) (“[S]ince attorney fees are not recoverable by a party in the absence of provisions specifically permitting that recovery in a statute or court rule, attorney fees are not ordinarily recoverable in simple actions on a contract.”) (citing Yost v. Fuscaldo, 408 S.E.2d 72 (W. Va. 1991); Old Nat’l Bank of Martinsburg v. Hendricks, 383 S.E.2d 502 (W. Va. 1989); Sally-Mike Props. v. Yokum, 365 S.E.2d 246 (W. Va. 1986); Hechler v. Casey, 333 S.E.2d 799 (W. Va. 1985); and Daily Gazette Co., Inc. v. Canady, 332 S.E.2d 262 (W. Va. 1985)). See also Sherman v. State Farm Ins. Co., No. 17-4822, 2017 WL 5559911, at *3 (E.D. Pa. Nov. 17, 2017) (“Parties are responsible for their own attorney's fees regardless of the outcome, unless there is expressed statutory authorization, an agreement between the parties, or another established exception. A party cannot demand attorney's fees for a common law breach of contract claim.”) (citations omitted); Thomas v. Branch Banking & Tr. Co., 443 F. Supp. 2d 806, 814 (N.D. W. Va. 2006) (“The unavailability of . . . an award of attorneys' fees . . . would be consistent with the common law rules generally barring such remedies in contract cases.’); Soley v. Karll, 853 A.2d 755, 758 (Me. 2004) (“The American rule does not generally authorize an award of attorney fees as damages in a breach of contract action.”); Restatement (Second) of Contracts § 356 cmt. d (Am. Law Inst. 1981) (“Although attorneys' fees are not generally awarded to the winning party, if the parties provide for the award of such fees the court will award a sum that it considers to be reasonable.”); George L. Blum, et. al., 32 Am. Jur. 2d Federal Courts § 189 (“Although under the American Rule, parties to federal civil litigation typically bear the burden of paying their own counsel, contractual provisions may alter this burden. . . . [A]ttorney's fees can be awarded by a federal court if there is an applicable attorney's fees provision in a contract or a contractual basis for them.”) (citations omitted).}

_{[106] Burdette v. Burdette Realty Improvement, Inc., 590 S.E.2d 641, 645 (W. Va. 2003) (quoting Floyd v. Watson, 254 S.E.2d 687, 690 (W. Va. 1979)).}

_{[107] 664 S.E.2d 751 (W. Va. 2008).}

_{[108] 599 S.E.2d 730 (W. Va. 2004).}

_{[109] Id. at 735; Messer, 664 S.E.2d at 761.}

_{[110] EnQueue, Inc. v. Data Mgmt. Grp., Inc., 566 F. Supp. 2d 13, 23 (D. Me. 2008) (noting that there is an exception that “allows an award of attorney fees in a breach of contract action as a sanction for particularly egregious conduct[;]” however, attorney fees not warranted in this particular case as the breaching party’s “breach was garden variety in that it failed to pay what was due in a timely fashion. That conduct does not warrant an award of attorney fees.”); see also Soley v. Karll, 853 A.2d 755, 757–60 (Me. 2004); Am. Nat’l Bank v. Sara, 246 P.3d 294, 299 (Wyo. 2011); Sherman v. State Farm Ins. Co., No. 17–4822, 2017 WL 5559911, at *3 (E.D. Pa. Nov. 17, 2017). This is not to suggest that a losing party in a breach of contract action cannot be found to have acted in bad faith. Instead, these authors suggest that the default position should be that a breach of contract—including a breach of a settlement agreement—is not bad faith until there is clear and convincing evidence of very bad conduct, beyond the breach itself.} 

_{[111] Syl. Pt. 4, Sally-Mike Properties v. Yokum, 365 S.E.2d 246 (W. Va.1986).}

_{[112] Anne Knickerbocker, 15B Am. Jur. 2d Compromise and Settlement § 48 (1976) (“Generally, however, the existence of a binding settlement is a question of fact that the court must resolve by analyzing the totality of circumstances, while the construction and interpretation of a settlement agreement presents a question of law.”) (citations omitted).}

_{[113] Messer contains 5,911 words, of which 221 (3.7%) were used to address the finding of bad faith. Sanson contains 2,959 words, and only 231 (7.8%) were used to address the finding of bad faith.}

_{[114] These authors are not convinced that this is the case as the only reason given for the finding of bad faith was that the non-breaching party “should not have to bear the financial burden caused by the [breaching parties’] attempt to rescind a valid and enforceable settlement agreement.” Sanson, 599 S.E.2d at 735; Messer, 664 S.E.2d at 761.}

_{[115] See Yokum, 365 S.E.2d at 249 (“There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees as ‘costs,’ without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.”) (emphasis added) (citations omitted).}

_{[116] Foster v. Foster, 655 S.E.2d 172, 177 (W. Va. 2007) (“Whenever and if it is made to appear to the court that by reason of fraudulent or other unconscionable conduct, the plaintiff has lost his right to invoke a court of equity, the court will, on the motion of a party, or its own motion, wash its hands of the whole.”) (citations omitted).}

_{[117] The Federal Rules of Civil Procedure were amended in 2003 and now contain subdivision (h) which specifically addresses attorney fees. As provided in the Advisory Committee Notes, however, “[t]his subdivision does not undertake to create new grounds for an award of attorney fees or nontaxable costs. Instead, it applies when such awards are authorized by law or by agreement of the parties.” Fed. R. Civ. P. 23 advisory committee's notes to 2003 amendment.}

_{[118] Syl. Pt. 2, Yokum, 365 S.E.2d at 246.}

_{[119] Joseph M. McLaughlin, McLaughlin on Class Actions § 6:24 (15th ed. 2018)}

_{[120] Id.}

_{[121] 105 U.S. 527 (1881). The first mention of the doctrine in West Virginia that these authors have been able to identify was in Roach v. Wallins Creek Collieries Co.:}

_{Except in rare instances[,] the power of a court to require one party to contribute to the fees of the counsel of another party must be confined to cases where the plaintiff, suing in behalf of himself and others of the same class, discovers or creates a fund which inures to the common benefit of all.}

 _{Syl. Pt. 1, Roach v. Wallins Creek Collieries Co., 160 S.E. 860, 863 (W. Va. 1931) (quoting McCormick v. Elsea, 59 S.E. 411, 412–13 (Va. 1907)).}

_{[122] Boeing Co. v. Van Gemert, 444 U.S. 472, 478 (1980) (citations omitted).}

_{[123] Id.; see also McLaughlin, supra McLaughlin, note 115 at § 6:24 (“The common fund doctrine is predicated on the equitable principle that those who have profited from litigation should bear some of its costs.”) (citations omitted); William B. Rubenstein, Newberg on Class Actions § 15:53 (5th ed. 2011)}

_{Generally, common fund fee situations are those in which one or a few litigants have formally retained (and agreed to pay) an attorney to undertake legal work for them, yet the attorney's work ends up benefiting a larger group of non-present parties. If those non-present parties do not pay their share of the fees, it is argued that they will be free-riders, collecting the benefit of the attorney's work while not sharing the costs of it with the litigants who hired the attorneys.}

_Id.

_{[124] Rubenstein, supra note 123, at § 15.54.}

_{[125] Id. at § 15:53.}

_{[126] “Some courts refer to the substantial benefit doctrine as the common benefit doctrine[]” and “[c]ourts are split in which term is better.” Id. at § 15:108, n.3.}

_{[127] Id. at § 15:108.}

_{[128] Id. at § 15:110 (citations omitted).}

_{[129] Hall v. Cole, 412 U.S. 1 (1973) (class action brought by union members, where no damages awarded); Mills v. Elec. Auto-Lite Co., 396 U.S. 375 (1970) (stockholders' action to set aside corporate merger); Rosenbaum v. MacAllister, 64 F.3d 1439, 1441 (10th Cir. 1995) (class action brought by shareholders alleging defendant company made false statements and omissions that affected the market value of its stock).}

_{[130] Rubenstein, supra note 123, at § 15:108 (citations omitted).}

_{[131] See Mills, 396 U.S. at 396–97}

_{To award attorneys' fees . . . to a plaintiff who has succeeded in establishing a cause of action is not to saddle the unsuccessful party with the expenses but to impose them on the class that has benefited from them and that would have had to pay them had it brought the suit.}

_{Id.; Gaffney v. Riverboat Servs. of Ind., Inc., 451 F.3d 424, 467 (7th Cir. 2006) (“The common benefit exception is inapplicable to this case. The plaintiffs ask this court to shift their fees to the defendants; the common benefit doctrine, however, serves to shift fees and expenses from the plaintiffs individually to the benefitting class as a whole.”). See also Blum, supra note 105, at § 191 (“The doctrine is designed to spread litigation costs proportionately among all the beneficiaries of the action, so that the active beneficiary (that is, the plaintiff) does not bear the entire burden alone and the "stranger" beneficiaries do not receive their benefits at no cost to themselves.”) (citations omitted).}

_{[132] 186 F.2d 473 (4th Cir. 1951).}

_{[133] Id. at 481.}

_{[134] Id. at 474–75.}

_{[135] Id. at 480.}

_{[136] Id. at 475.}

_{[137] Id.}

_{[138] Id. at 481.}

_{[139] Id. at 480–1.}

_{[140] Id. at 481 (emphasis added) (citations omitted).}

_{[141] Shimman v. Int'l Union of Operating Eng’rs, Local 18, 744 F.2d 1226, 1231 (6th Cir. 1984).}

_{[142] Id. at 1231 n.8 (“Since the ‘common benefit’ exception was not recognized as a distinct exception until the Supreme Court's decisions in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 24 L. Ed. 2d 593, 90 S. Ct. 616 (1970) and Hall v. Cole, 412 U.S. 1, 36 L. Ed. 2d 702, 93 S. Ct. 1943 (1973), that terminology was not available to the court in Rolax.”).}

_{[143] See Kreischer v. Kerrison Dry Goods, 229 F.3d 1143, *3 (4th Cir. 2000) (“The Fourth Circuit also has recognized an ‘essential to equity’ exception that may apply in exceptional circum[]stances.”); Lowe v. Letsinger, 772 F.2d 308, 315 (7th Cir. 1985); Lee v. S. Home Sites Corp., 429 F.2d 290, 295 (5th Cir. 1970). See also Patrick Henry Estates Homeowners Ass'n, Inc. v. Miller, No. 3:08–CV–175, 2011 WL 7072943, at *9 (N.D. W. Va. Mar. 16, 2011), aff'd, 462 F. App'x 339 (4th Cir. 2012); Haviland & Co. v. Johann Haviland China Corp., 269 F. Supp. 928, 938 (S.D.N.Y. 1967); Blackburn v. City of Columbus, 60 F.R.D. 197, 199 (S.D. Ohio 1973); Chase v. Greyhound Lines, Inc., 195 S.E.2d 810, 820 (W. Va. 1973) (Neely, J., concurring) (citations omitted), overruled by Lee v. Comer, 224 S.E.2d 721 (W. Va. 1976).}

_{[144] Nepera Chem., Inc. v. Sea-Land Serv., Inc., 794 F.2d 688, 701 (D.C. Cir. 1986); Kahan v. Rosenstiel, 424 F.2d 161, 167 (3d Cir. 1970). See also Reyes v. Reyes, No. 01–002–GA, 2004 WL 3704880, at *20 (N. Mar. I. Jan. 15, 2004); Texaco, Inc. v. Melso, No. 86–2716, 1986 WL 12018, at *2 (E.D. Pa. Oct. 22, 1986); Lytle v. Comm’rs of Election of Union Cty., 65 F.R.D. 699, 701 (D.S.C. 1975).}

_{[145] Hayseeds, Inc. v. State Farm Fire & Cas., 352 S.E.2d 73, 78 (W. Va. 1986) (emphasis in original), holding modified by Miller v. Fluharty, 500 S.E.2d 310 (W. Va. 1997).}

_{[146] Id.}

_{[147] Id. at 79 (quoting Aetna Cas. & Sur. Co. v. Pitrolo, 342 S.E.2d 156, 160 (W. Va. 1986)).}

_{[148] Id.}

_{[149] Id. at 80.}

_{[150] Miller, 500 S.E.2d at 319.}

_{[151] Id. at 323.}

_{[152] Id. at 319.}

_{[153] Hayseeds, 352 S.E.2d at 80, holding modified by Miller, 500 S.E.2d 310.}

_{[154] Syl. Pt. 6, Marshall v. Saseen, 450 S.E.2d 791, 793 (W. Va. 1994).}

_{[155] Syl. Pt. 1, Jordan v. Nat'l Grange Mut. Ins. Co., 393 S.E.2d 647, 648 (W. Va. 1990), holding modified by Miller, 500 S.E.2d 310.}

_{[156] Aetna Cas. & Surety Co. v. Pitrolo, 342 S.E.2d 156, 160–61 (W. Va. 1986).}

_{[157] Hayseeds, Inc. v. State Farm Fire & Cas., 352 S.E.2d 73, 80 (W. Va. 1986), holding modified by Miller v. Fluharty, 500 S.E.2d 310 (W. Va. 1997).}

_{[158] W. Va. R. Civ. P. 11(a).}

_{[159] The list set forth in Rule 11(b)(1) provides specific examples of conduct that is sanctionable; however, this list is not exhaustive.  Franklin D. Cleckley, et al., Litigation Handbook on West Virginia Rules of Civil Procedure § 11(b)(1)[2], 297 (4th ed. 2012). Therefore, if a pleading, motion, and/or other paper is proffered for “any” improper purpose, it is sanctionable. “Determination of improper purpose is made using an objective standard.” Id. (citing Lieb v. Topstone Indus., Inc., 788 F.2d 151 (3d Cir. 1986) & Zaldivar v. City of L. A., 780 F.2d 823 (9th Cir. 1986)).}

_{[160] At the outset, it should be noted that an incorrect legal statement, by itself, is not sanctionable. Id. at § 11(b)(2)[2], 298. Furthermore, based upon the plain language of the Rule, sanctions under (b)(2) cannot be awarded if the claim, defense, or legal contention is supported by existing law. It has been said that at some point while making an argument that seeks to extend, modify, or reverse existing law, a party is required to at least inform the court of this purpose. Id.  (citing Smith v. Blue Cross & Blue Shield United of Wis., 959 F.2d 655 (7th Cir. 1992) and DeSisto College Inc. v. Line, 888 F.2d 755 (11th Cir. 1989)).}

_{[161] “Sanctions may not be imposed under [Rule 11(b)(4)] unless a particular allegation is utterly lacking in support. The rule has been found to reach false contentions asserted in an effort to defeat summary judgment.” Id. at § 11(b)(4)[2], 301 (footnotes omitted).}

_{[162] This includes an attorney, law firms, or parties. W. Va. R. Civ. P. 11(c). In fact, “[a]bsent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.” W. Va. R. Civ. P. 11(c)(1)(A).}

_{[163] W. Va. R. Civ. P. 11(c).}

_{[164] Ira Leesfield & Mark Sylvester, 2 Litigating Tort Cases § 20:7.}

_{[165] Sanctions can be initiated sua sponte by the Court or by motion of a party. W. Va. R. Civ. P. 11(c)(1)(A)–(B). However, based upon the plain language of the Rule, attorney fees cannot be awarded to a party unless a motion is filed. W. Va. R. Civ. P. 11(c)(2).}

_{[166] W. Va. R. Civ. P. 11(c)(2).}

_{[167] Warner v. Wingfield, 685 S.E.2d 250, 255 (W. Va. 2009) (quoting Daily Gazette Co., Inc. v. Canady, 332 S.E.2d 262, 266 (W. Va. 1985)).}

_{[168] Charles Alan Wright et al., Fed. Prac. & Proc. Civ. §§ 1336.3 & 1334 n.20 (3d ed. 1998).} 

_{[169] Id. at § 1336.3 (footnotes omitted).}

_{[170] W. Va. R. Civ. P. 11(b).}

_{[171] Id. at 11(d) (stating that the Rule does not apply to “discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37”).}

_{[172] Kelly v. Golden, 352 F.3d 344, 352 (8th Cir. 2003).}

_{[173] Wright 3d, supra note 160, § 1336.3 (“[D]ismissal remains available directly under Rule 11 although it is reserved for the rare case involving extreme misbehavior by the offending party, such as fraud, contempt, and willful bad faith.” (footnotes omitted)).}

_{[174] Kelly, 352 F.3d at 352 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991)); but see Greviskes v. Univs. Research Ass'n, Inc., 417 F.3d 752, 759 (7th Cir. 2005) (“Dismissal is appropriate where a party has displayed fault, bad faith, or willfulness.”).}

_{[175] Chambers, 501 U.S. at 50.}

_{[176] Id.}

_{[177] Wright 3d, supra note 160, § 1336.3.}

_{[178] 501 U.S. 32, 46 (1991).}

_{[179] Chambers, 501 U.S. at 49–50; but see Conte, supra note 50, at § 7:11. see (“A court may assess sanctions for time expended in response to bad faith conduct sua sponte even when the offended party has not requested fees.” (footnotes omitted)); Douglas R. Richmond, Alternative Sanctions in Litigation, 47 N.M. L. Rev. 209, 228 (2017) (“Courts may impose inherent power sanctions sua sponte.” (footnotes omitted)).}

_{[180] W. Va. R. Civ. P. 16(f).}

_{[181] Franklin D. Cleckley, Robin Jean Davis, & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 16(f)[2], at 524 (4th ed. 2012) (citing Tracinda Corp. v. DaimlerChrysler, 502 F.3d 212 (3d Cir. 2007)).}

_{[182] Wright 3d, supra note 160, § 1531 (3d ed.) (discussing Rule 16(f) of the Federal Rules of Civil Procedure) (footnotes omitted).}

_{[183] Bartles v. Hinkle, 472 S.E.2d 827, 836 (W. Va. 1996) (citations omitted).}

_{[184] See Murthy v. Karpacs-Brown, 788 S.E.2d 18, 25 (W. Va. 2016) (citing Bartles, 472 S.E.2d at 836).}

_{[185] Wright 3d, supra note 160, § 1531 n.5 (a collection of cases that awarded attorney fees for violation of 16(f)).}

_{[186] W. Va. R. Civ. P. 26(g).}

_{[187] Id. at 26 (advisory committee's notes on the 1983 amendment).}

_{[188] Charles Alan Wright et al., Fed. Prac. & Proc. Civ. § 2052 (3rd ed.) (stating that “[a]t the time the 1983 amendments were adopted, it was supposed that Rule 26(g) was at least as important, and would be at least as much used, as Rule 11. That did not prove to be the case. Rule 11 was invoked many times, while Rule 26(g) has not been much used.”). In support of this proposition, in footnote 11, Alan Wright also cites to the Call for Written Comments on Rule 11 of the Federal Rules of Civil Procedure and Related Rules, 1990, 131 F.R.D. at 345, which provides as follows:}

_{An observation has been made, however, that the 1983 sanctions provisions have been used primarily in connection with alleged pleading abuses, although the ABA and the 1983 Committee were at least as concerned with discovery abuses. Perhaps the discovery abuse problem was overstated, or perhaps it has been remedied by the prophylactic effect of Rule 26(g), or perhaps the potential of that rule has not yet been realized by the bar. If the latter is the case, the Committee would welcome suggestions to enhance the effectiveness of Rule 26(g).}

_Id.

_{[189] Cleckley, supra note 172, § 30(g)[2], at 825 (footnotes omitted); see also Lewis v. Mazda Motor of Am., Inc., No. 2009-99, 2012 WL 6634134, at *3 (D.V.I. Dec. 20, 2012) (collecting cases).}

_{[190] Cleckley, supra note 172, § 30(g)[2], at 825 (footnotes omitted).}

_{[191] Wright 4th, supra note 179, § 2120 (citing Detsch & Co. v. Am. Prod. Co., 141 F.2d 662 (9th Cir. 1944) & Fino v. McCollum Min. Co., 93 F.R.D. 455 (N.D. Tex. 1982)); see also Cleckley, supra note 172, § 30(g)(1)[2], at 826 (citing Detsch & Co., 141 F.2d at X).}

_{[192] Cronin v. Midwestern Okla. Dev. Auth., 619 F.2d 856, 864 (10th Cir. 1980) (citations omitted).}

_{[193] Cleckley, supra note 172, § 30(g)(1)[2], at 826 (citing In re Rimsat, Ltd., 229 B.R. 914, 918 (Bankr. N.D. Ind. 1998), aff'd, 230 B.R. 362 (N.D. Ind. 1999), aff'd, 212 F.3d 1039 (7th Cir. 2000)); but see Cronin, 619 F.2d at 864 (proper to award attorney fees when plaintiff deposes witness only on matters unrelated to action).}

_{[194] Westmoreland v. CBS, Inc., 770 F.2d 1168, 1178 (D.C. Cir. 1985); see also Perry v. Mohawk Rubber Co., 63 F.R.D. 603 (D.S.C. 1974), aff'd, 529 F.2d 516 (4th Cir. 1976).}

_{[195] Cleckley, supra note 172, § 30(g)(2)[2], at 827 (citing Matthews v. USAir, Inc., No. 92-CV-1424(FJS)(GJD), 1997 WL 31484 (N.D.N.Y)).}

_{[196] W. Va. R. Civ. P. 37(a).}

_{[197] Id.}

_{[198] W. Va. R. Civ. P. 37(b).}

_{[199] Id. at 37(c).}

_{[200] Id. at 37(d).}

_{[201] Id. at 37(e).}

_{[202] Shreve v. Warren Assoc., Inc., 355 S.E.2d 389 (W. Va. 1987); Michael v. Henry, 354 S.E.2d 590 (W. Va. 1987); Vincent v. Preiser, 338 S.E.2d 398 (W. Va. 1985).}

_{[203] Cleckley, supra note 172, § 45(d)(1)[2], at 1057.}

_{[204] Cleckley, supra note 172, § 45(d)(3)(B)[2][a], at 1066 (citing Dravo Corp. v. Liberty Mut. Ins. Co., 160 F.R.D. 123, 128 (D. Neb. 1995)); see also High Tech Med. Instr., Inc. v. New Image Indus., Inc., 161 F.R.D. 86 (N.D. Cal. 1995); Mann v. Univ. of Cincinnati, 152 F.R.D. 119, 126 n.2 (S.D. Ohio 1993); Alberts v. HCA Inc., 405 B.R. 498, 502–03 (D.D.C. 2009) (analyzing “undue burden” in the context of bad faith) (citations omitted).}

_{[205] See Kincaid v. Morgan, 425 S.E.2d 128, 134–35 (W. Va. 1992).}

_{[206] Other Courts have held that while bad faith will be sufficient to demonstrate that an undue burden was imposed, it is not a necessary condition. Mount Hope Church v. Bash Back!, 705 F.3d 418, 428 (9th Cir. 2012) (citations omitted).}

_{[207] Kahle's Kitchens, Inc. v. Shutler Cabinets, Inc., No. 17-0036, 2018 WL 632618, at *10 n.11 (W. Va. Jan. 24, 2018).}

_{[208] Steven S. Gensler, 1 Federal Rules of Civil Procedure, Rules and Commentary Rule 45 (footnotes omitted).}

_{[209] Mount Hope Church, 705 F.3d at 427 (finding that under Rule 45(c)(1), now (d)(1), of the Federal Rules of Civil Procedure, “undue burden” is “the burden associated with compliance,” and does not include burdens associated with guarding protected information” (citing, inter alia, Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 813–4 (9th Cir. 2003))); Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir. 1994)); In re Fannie Mae Sec. Litig., 552 F.3d 814, 821 (finding that “Federal Rule of Civil Procedure 45 requires courts to safeguard non-party subpoena recipients from significant expense resulting from compliance” (citing Watts v. SEC, 482 F.3d 501, 509 (D.C. Cir. 2007))); see also Zoobuh, Inc. v. Rainbow Int'l Corp., No. 2:14-cv-00477-DN, 2015 WL 2093292, at *2 n.24 (D. Utah May 5, 2015).}

_{[210] Cleckley, supra note 172, § 45(d)(1)[2], at 1058 (citing Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 49 (S.D.N.Y. 1996) (“[T]he status of a witness as a non-party to the underlying litigation ‘entitles [the witness] to consideration regarding expense and inconvenience.’”) (citations omitted); Linder v. Calero-Portocarrero, 251 F.3d 178, 182 (D.C. Cir. 2001) (“Under the revised Rule 45, the questions before the district court are whether the subpoena imposes expenses on the non-party, and whether those expenses are ‘significant.’ If they are, the court must protect the non-party by requiring the party seeking discovery to bear at least enough of the expense to render the remainder ‘non-significant.’ The rule is susceptible of no other interpretation.”).}

_{[211] St. Jude Med. S.C., Inc. v. Janssen-Counotte, 305 F.R.D. 630, 637 (D. Or.), reconsideration denied, 104 F. Supp. 3d 1150 (D. Or. 2015) (citing Mount Hope Church, 705 F.3d at 429).}

_{[212] W. Va. R. Civ. P. 56(g); see also Progressive Cas. Ins. Co. v. F.D.I.C., 49 F. Supp. 3d 545, 563 (N.D. Iowa 2014) ("[T]his rule . . . does not impose a different standard for discovery of documents from non-parties than from parties, simply a separate recitation of the standard." (emphasis in original)).}

_{[213] Cleckley, supra note 172, § 56(g)[2], at 1245–56 (footnotes omitted); compare to the Fed. R. Civ. P. 56(h), which is couched in permissive, not mandatory terms.}

_{[214] Cleckley, supra note 172, § 56(g)(1)[2], at 825 (footnotes omitted).}

_{[215] Wright 4th, supra note 179, § 2742 (footnotes omitted); see also Cleckley, supra note 172, § 56(g)[2], at 1246–67 (footnotes omitted).}

_{[216] Cleckley, supra note 172, § 56(g)[2], at 1246 (footnotes omitted).}

_{[217] Wright 4th, supra note 179, § 2742 (“Thus, even when an affidavit contained misinformation that caused the denial of an initial summary-judgment motion and required a second hearing, sanctions were not applied when the court found that the misinformation had been included negligently rather than intentionally.”); see also Cleckley, supra note 172, § 56(g)[2], at 1246 (“Any bad faith finding should be based upon intentional or grossly reckless inaccuracies, as opposed to negligently made inaccuracies.” (footnotes omitted)).}

_{[218] Wright 4th, supra note 179, § 2742 (“In the unusual case in which the summary-judgment motion itself is filed in bad faith or solely for purposes of delay but no supporting affidavits are filed, the rule technically does not apply.”).}

_{[219] Cleckley, supra note 172, § 56(g)[2], at 1246 (citing Faberge, Inc. v. Saxony Prods., Inc., 605 F.2d 426 (9th Cir. 1979); Laney v. Am. Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347 (M.D. Fla. 2003); Jaisan, Inc. v. Sullivan, 178 F.R.D. 412 (S.D.N.Y. 1998)).}

_{[220] Wright 4th, supra note 179, § 2742.}

_{[221] W. Va. R. App. P. 6(f).}

_{[222] Id. at 6 (editor’s notes on the 2010 amendment).}

_{[223] Id. at 33(d).}

_{[224] Id. at 33(e).}

_{[225] Id.}

_{[226] Id.}

_{[227] Id.}

_{[228] Id.}

_{[229] Syl. Pt. 4, State ex rel. Lambert v. King, 538 S.E.2d 385, 386–87 (W. Va. 2000) (quoting Syl. Pt. 5, State ex rel. Hamstead v. Dostert, 313 S.E.2d 409 (W. Va. 1984)).}

_{[230] W. Va. Trial Ct. R. 25.10.}

_{[231] Casaccio v. Curtiss, 718 S.E.2d 506, 512–14 (W. Va. 2011).}

_{[232] Id. at 515.}

_{[233] W. Va. Trial Ct. R. 25.11.}

_{[234] Casaccio, 718 S.E.2d at 514 (Insurance carrier for third party did not receive notice of mediation and therefore could not be sanctioned for failing to appear.).}

_{[235] Id. at 515.}

_{[236] Landmark Collegiate Acquisitions, L.L.C. v. Solomon, 2017 WL 2676489, at *3 (N.D. W. Va. June 21, 2017).}

_{[237] W. Va. R. Fam. Ct. 5(e).}

_{[238] Id. at 11.}

_{[239] Id. at 19.}

_{[240] Id. at 22(d).}

_{[241] Id. at 24(d).}

_{[242] W. Va. R. J. Disc. 2.3.}

_{[243] Id. at 4.13.}

_{[244] This list was driven more towards the general practitioner; however, there are certain code provisions that allow for the state to recover attorney fees. See W. Va. Code § 5-10D-11(d) (2019); Open Governmental Proceedings Act, § 6-9A-7(c); W. Va. Code § 6B-2-4(v)(2)(B) (2019); Municipalities and Ordinances Regulating the Repair, Alteration, Improvement, Closing, Demolishing, etc., of Structures, W. Va. Code § 8-12-16(h) (2019); Water/Sewer/Stormwaters Services, W. Va. Code §§ 8-18-23(c), 8-19-12a(b), 8-20-10(c) (2019); Fraud and Abuse in the Medicaid Program, W. Va. Code § 9-7-6(c) (2019); Collection of Delinquent Taxes, W. Va. Code § 11A-2-2(c) (2019); W. Va. Code § 14-2-15 (2019); W. Va. Code § 16-9D-9 (2019); Sewage Works and Stormwater Works/Additional Powers of Municipality to Cease Pollution, W. Va. Code §§ 16-13-16(k), -23a(i); W. Va. Code § 18B-5-4(c)(4) (2019); W. Va. Code § 19-21-21 (2019); W. Va. Code § 20-5J-9 (2019); W. Va. Code § 20-7-6 (2019); W. Va. Code § 21A-5-16 (2019); Quarry Reclamation Act, W. Va. Code § 22-4-24(j) (2019); Air Pollution Control, W. Va. Code § 22-5-7 (2019); W. Va. Code § 22-14-15(e) (2019); W. Va. Code § 22-15-15(g) (2019); The A. James Manchin Rehabilitation Environmental Action Plan, W. Va. Code § 22-15a-12(g) (2019); Hazardous Waste Management Act, W. Va. Code §§ 22-18-17(e), -19(e) (2019); W. Va. Code §§ 23-2-5a(a), -5a(c) (2019); W. Va. Code § 28-7-1, art. Article XII, sec. C (2019); W. Va. Code §§ 30-1C-14, -17 (2019); W. Va. Code § 30-7F-9 (2019); Chiropractors, Disciplinary Actions, W. Va. Code § 30-16-11(b)(10) (2019); W. Va. Code § 46A-7-108 (2019); W. Va. Code § 47-25-6(e) (2019); W. Va. Code § 48-18-108(d) (2019); W. Va. Code § 49-7-301, art. XI, sec. C (2019); W. Va. Code § 56-2-8 (2019); W. Va. Code § 59-2-18 (2019).}

_{[245] For a complete discussion of the extraordinary writs, see Scott E. Johnson, The Extraordinary Remedies in West Virginia: Purposes, Practices & Procedure, http://www.wvyounglawyers.com/wp-content/uploads/2013/10/chapter15.pdf (last visited July 11, 2019).}

_{[246] See Sec. Nat. Bank & Tr. Co. v. Willim, 168 S.E.2d 555, 557–58 (W. Va. 1969).}

_{[247] TXO Prod. Corp. v. All. Res. Corp., 419 S.E.2d 870, 881 (W. Va. 1992), aff'd, 509 U.S. 443 (1993), modified by State v. McGinnis, 455 S.E.2d 516 (W. Va. 1994), modified by Alkire v. First Nat. Bank of Parsons, 475 S.E.2d 122 (W. Va. 1996).}

_{[248] Id.}

_{[249] In re Hawley's Estate, 189 S.E. 305 (W. Va. 1936).}