holding that “[t]here is authority in equity to award to the prevailing litigant his or her reasonable 5 attorney’s fees as ‘costs,’ without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.”
How later courts described this case
- holding that “[t]here is authority in equity to award to the prevailing litigant his or her reasonable 5 attorney’s fees as ‘costs,’ without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.”
- stating that “[t]here is authority in equity to award 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.”
- establishing that attorney’s fees can be awarded “when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons”
- “‘Bad faith’ may be found . . . in conduct in connection with the litigation.”
Written by the judges who cited it.
The opinion
*53 McGRAW, Justice,
dissenting:
From the majority’s holding that the defendants in this proceeding were not entitled to reasonable attorneys fees, I respectfully dissent. The plaintiff in this proceeding was a partnership engaged in the commercial development of a tract of land. Within the boundaries of this tract was located a private cemetery. In furtherance of its enterprise, the partnership sought to remove and transfer the remains reposed in the graves of this cemetery under a statute enacted by the Legislature for such purpose.
Pursuant to West Virginia Code, 37-13-3 (1985 Replacement Vol.), which provides, in relevant part, that “the surviving next of kin, heirs at law, administrator, executor, or personal representative of each deceased ... shall be made defendants in such action,” the descendants of those interred were made parties. Faced with a business entity asserting the right to disturb the final resting place of their ancestors in a case which raised relatively complex legal issues, the defendants wisely sought legal counsel. Had they not done so, it is likely that the plaintiff would have prevailed. See Sally-Mike Properties v. Yokum, 175 W.Va. 296 , 332 S.E.2d 597 (1985).
In cases where private citizens are made defendants in litigation commenced pursuant to a legislative enactment, it is unfair to burden them with attorneys fees should they ultimately prevail. This is especially true where such litigation is commenced by a party with superior financial resources. Otherwise, such defendants might be forced to choose between assertion of their legal rights and depletion of their limited financial resources.
The prospect of desecration of the cemetery of their ancestors must have been nightmarish for the defendants in this case. They fought long and hard to defend a right clearly reserved by their forebear in the conveyance to the plaintiffs predecessor in title. The plaintiffs legal fees will be absorbed as an ordinary business expense. So too should have been the defendants’ legal fees.