1

STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Mimi’s Inc., and Harold R. Arbaugh,

Defendants and Third-Party Plaintiffs Below, Petitioners

vs.) No. 18-0775 (Kanawha County 14-C-513)

BAI Riverwalk, L.P.; Zamias Services, Inc.; 

Kimco Riverwalk Corporation; Kimco 

Riverwalk 595, Inc.; and Kimco Riverwalk, L.P.,

Plaintiffs and Third-Party Defendants Below, Respondents

MEMORANDUM DECISION

Petitioners Mimi’s Inc., (“Mimi’s”) and Harold R. Arbaugh, by counsel Ancil G. Ramey, 

appeal multiple orders of the Circuit Court of Kanawha County, referenced specifically below, 

including orders awarding summary judgment to respondents on petitioners’ counterclaims against 

Respondent BAI Riverwalk, L.P. (“BAI”) and petitioners’ third-party claims against Respondent

Zamias Services, Inc., (“Zamias”) and Respondents Kimco Realty Corporation; Kimco Riverwalk 

595, Inc.; and Kimco Riverwalk, L.P. (collectively referred to as “Kimco”). Petitioners further 

appeal the circuit court’s award of a judgment to Respondent BAI for unpaid rent and associated 

damages, including attorney’s fees. Respondent Kimco, by counsel Joseph T. Cramer, filed a 

response in support of the circuit court’s order awarding summary judgment to Kimco. 

Respondents BAI and Zamias, by counsel Mychal S. Schulz, filed a response in support of the 

circuit court’s orders. Petitioners filed a reply. 

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, 

a memorandum decision affirming the order of the circuit court is appropriate under Rule 21 of 

the Rules of Appellate Procedure.

The underlying litigation arises from petitioners’ lease of a 2,620 square foot commercial 

space at Riverwalk Plaza Shopping Center (“Riverwalk”) in South Charleston, West Virginia. On 

January 18, 2011, Respondent Kimco and Petitioner Mimi’s executed a lease agreement for the 

premises at issue for a period of five years, with a base monthly rent of $4,148.33.1In addition to 

the commercial lease agreement, Petitioner Arbaugh, president of Mimi’s, executed a “Guaranty” 

in which he personally “guarantee[d] all of the payments to be made by [Mimi’s] under the 

 

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

FILED

March 23, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
2

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

leased space.

On March 30, 2012, Respondent Kimco sold its interest in Riverwalk to Respondent BAI, 

and, that same day, assigned its interest in all Riverwalk leases, including petitioners’ lease, to 

BAI. On January 8, 2014, petitioners ceased operation of their restaurant and video gaming 

establishment in the leased space. In March of 2014, BAI filed the underlying litigation against 

petitioners alleging breach of contract, breach of the covenant of good faith and fair dealing, and 

“collection on guaranty” executed by Petitioner Arbaugh. BAI sought unpaid rent totaling 

$10,242.42 and rent for the balance of the lease totaling $141,769.98.2

On April 30, 2014, petitioners served their answer and a counterclaim against BAI alleging 

BAI’s breach of contract, breach of lease, breach of quiet enjoyment, fraud in inducement, 

conversion, theft, trespassing, negligence, breach of the covenant of good faith and fair dealing, 

and gross negligence, reckless, willful, and wanton conduct. Specifically, petitioners alleged that 

BAI

(1) tore down and illegally removed a substantial part of the leased premises, 

causing [petitioners] substantial economic and business harm; (2) failed to repair 

and replace the HVAC unit as verbally represented in the lease negotiations and as 

thereafter represented in the lease; (3) failed to remove mold on the premises; (4) 

failed to properly repair multiple roof leaks, as well as leaks in the rear window of 

the premises; (5) improperly tore down the [petitioners’] fencing on its premises; 

(6) failed to properly lease back the adjoining leased structure as represented; (7) 

failed to properly credit [petitioners’] initial lease deposit; (8) allowed water leaks 

to cause damage to the rented premises as well as video lottery machines utilized 

by [petitioners] on the leased premises; (9) improperly destroyed and removed 

[petitioners’] deck and seating area; and (10) improperly and illegally billed 

[petitioners] for services, repairs[,] and clean up that was not the responsibility of 

[petitioners]. 

Petitioners then sought leave to file a third-party complaint against Respondents Kimco 

and Zamias3setting forth factual allegations similar to those alleged against BAI, but also 

including claims for civil conspiracy and tortious interference with a contractual and business 

relationship. Petitioners were granted leave to file their third-party complaint on May 29, 2015.4

 

2 On August 6, 2014, four months after petitioners’ breach of the lease, BAI entered into a 

written lease with Ivy’s LLC for the property at issue. Ivy’s lease became effective on November 

8, 2014, at a charge of $3,471.83 per month, and continued through April 30, 2016. 

3 Zamias Services was the property manager hired by BAI for the Riverwalk properties. 

4 Petitioners also sought leave to include third-party claims against Bon Aviv Investments, 

LLC (“Bon Aviv”), a company affiliated with BAI. Petitioners were granted leave to pursue third-
3

On October 19, 2016, Kimco filed a motion for summary judgment, to which petitioners 

responded. Kimco’s motion for summary judgment was granted by the circuit court on December 

19, 2016. On May 4, 2017, BAI and Zamias filed a joint motion for summary judgment, to which 

petitioners replied. A hearing was held on the motion on June 1, 2017. By order entered June 21, 

2017, the circuit court granted BAI and Zamias’ motion for summary judgment for reasons similar 

to the reasoning employed by the court when granting summary judgment to Respondent Kimco. 

Further, with no other claims pending against Zamias, the court dismissed it from the case, with 

prejudice. 

On August 7, 2017, a bench trial commenced on BAI’s claims against petitioners.5 The 

only witness called to testify by BAI was a representative of Zamias who offered testimony as to 

the lease, Zamias’ work for BAI, petitioners’ abandonment of the property, and calculation of 

BAI’s damages. In the presentation of their case, petitioners called Tommy Clay, operator of a 

company that leased video poker machines to petitioners, as a witness. Mr. Clay testified that, on 

at least two occasions, one of his video poker machines at the leased premises sustained water 

damage, that he visited the location once or twice a week, and that the water problems at the 

premises were “constant.” Mr. Clay testified that he contacted petitioners’ property management 

regarding these issues but was advised there was nothing to be done to correct the problem. Next, 

petitioners called Petitioner Arbaugh to testify. Petitioner Arbaugh testified that he spent over 

$90,000 remodeling the leased space but the leaking roof and mold problems persisted and 

negatively impacted his business. Petitioners’ final trial witness was Ron McVey, who installed 

electronic security and other equipment at the leased premises. Mr. McVey testified about prolific 

water infiltration that caused electronic equipment to be damaged and that he did not believe the 

space was “fit to be occupied.” 

On October 2, 2017, the circuit court entered a preliminary judgment order in favor of BAI.

In the preliminary judgment order, the court found total damages claimed by BAI for lost rent and 

other payments due under the lease was $91,285.80.6 The circuit court was critical of petitioners’ 

failure to present any “photographs or other evidence that depicted or reflected the alleged water 

damage or mold” and found no justification or excuse to substantiate petitioners’ non-compliance 

with the lease agreement. In addition to an award of damages to BAI, the circuit court’s judgment 

included an award of attorney’s fees to BAI counsel “in an amount to be determined based upon a 

 

party claims against Bon Aviv. Petitioners’ claims against Bon Aviv were subsequently dismissed 

and are not at issue in the instant appeal.

5

In paragraph 15, subsection (G) of the parties’ lease agreement, it is noted that the parties 

“mutually agree that they hereby waive trial by jury in any action proceeding or counterclaim 

brought by either against the other as to any matters arising out of or in any way connected with 

the” lease. 

6 The court found that for lost rents and other amounts due under the lease agreement, those 

amounts totaled (1) $56,773.85 for the period of time the premises was leased solely to petitioners; 

(2) $33,348.18 for the period in which Ivy’s occupied “a portion of the space and paid rent”; (3) 

$6,058.80 in costs incurred by BAI for a leasing commission related to the Ivy’s lease; (4) and 

application of petitioners’ security deposit of $4,895.03 against the claimed damages. 
4

provision” contained in the lease agreement. The lease agreement, at paragraph twenty-two,

contains a provision titled “failure of performance by tenant” which provides: “[t]enant shall pay 

all reasonable attorneys’ fees, costs and expenses incurred by Landlord in enforcing the provisions 

of this Lease, suing to collect Rent . . . whether the lawsuit or other action was commenced by 

Landlord or by Tenant.” 

Petitioners argue that BAI did not request attorney’s fees under this provision of the lease 

agreement and did not address the same in its summary judgment motion or at the bench trial. 

Further, petitioners argue that BAI never “filed a petition or motion for” attorney’s fees. However, 

despite these objections and as directed by the court, on October 11, 2017, BAI submitted 

documentation related to its attorney’s fees. On October 16, 2017, petitioners filed a formal 

objection to the proposed attorney’s fees and argued that the same made no reference to the factors 

outlined in Aetna Cas. & Sur. Co. v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986). Petitioners 

requested an evidentiary hearing. 

On November 30, 2017, BAI responded to petitioners’ objections, to which petitioners 

submitted a reply. A hearing was held before the circuit court on December 6, 2017. Ultimately, 

the court determined that BAI was entitled to reimbursement of its attorney’s fees. Specifically, 

the court ruled that it did not find that a formal “petition” for BAI’s attorney’s fees and expenses 

was necessary, as the request for attorney’s fees herein arose from a contractual obligation (the 

lease agreement of the parties). The court further noted that inasmuch as BAI had submitted its 

claim for attorney’s fees, including invoices other documents to support its claims, that the same 

represented a “petition” for those fees, costs, and expenses. The court found that BAI’s claims for 

attorney’s fees satisfied the applicable Pitrolo factors, and the same were reasonable and necessary 

to enforce the terms of the lease. 

Over the objections of petitioners, on December 25, 2017, the circuit court entered a 

proposed final judgment order awarding BAI attorney’s fees and litigation expenses in the amount 

of $129,351.10. Thereafter, petitioners filed a motion for a new trial and motion to alter or amend 

judgment under Rule 59(e) of the West Virginia Rules of Civil Procedure. Petitioners’ motions 

were denied by order dated July 31, 2018. It is from the July 31, 2018, order denying petitioners’ 

post-trial motions; the October 2, 2017, preliminary judgment order; the December 25, 2017, final 

judgment order; the June 21, 2017, order granting BAI and Zamias summary judgment; and the 

December 19, 2016, order granting Kimco summary judgment that petitioners now appeal. 

In their petition for appeal, petitioners advance seven assignments of error. In their first 

three assignments of error, petitioners argue that the circuit court erred in granting summary 

judgment to Respondents Kimco, Zamias, and BAI. Petitioners argue, in their fourth assignment 

of error, that the circuit court erred by excluding certain evidence at trial. In their fifth assignment 

of error, petitioners take issue with the findings of fact and conclusions of law made by the circuit 

court in support of the preliminary judgment order. Petitioners contend, in their sixth assignment 

of error, that the circuit court erred in awarding attorney’s fees and litigation expenses to BAI. 

Finally, in its seventh assignment of error, petitioners argue that the circuit court erred in denying 

petitioners’ post-trial motions. We will address each of petitioners’ assignments of error in turn. 

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. 
5

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

[s]ummary judgment is appropriate where the record taken as a whole could 

not lead a rational trier of fact to find for the nonmoving party, such as where the 

nonmoving party has failed to make a sufficient showing on an essential element 

of the case that it has the burden to prove. 

Id. at syl. pt. 4. Further, this Court has noted that “the party opposing summary judgment must 

satisfy the burden of proof by offering more than a mere ‘scintilla of evidence’ and must produce 

evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.” Williams v. 

Precision Coil, Inc., 194 W. Va. 52, 60, 459 S.E.2d 329, 337 (1995) (citing Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 2512. (1986)). 

Petitioners challenge, in their first three assignments of error, the court’s award of summary 

judgment to Respondents Kimco, Zamias, and BAI as to petitioners’ third-party and counterclaims. 

Petitioners’ third-party and counterclaims are substantially similar in nature and each relate to 

petitioners’ lease of the subject premises from respondents, which is governed by the lease 

agreement executed between the parties.7 The lease agreement specifically provided, at paragraph 

15 subsection (G), that: 

Landlord and Tenant mutually agree that they hereby waive trial by jury in any 

action, proceeding or counterclaim brought by either against the other as to any 

matters arising out of or in any way connected with this Lease, or their relationship 

as Landlord and Tenant, or Tenant’s use or occupancy. Tenant agrees that no 

counterclaim or setoff will be interposed in any action by Landlord based on nonpayment of Rent, even if such counterclaim or set off is based on Landlord’s 

alleged breach of a duty to repair or alleged breach of quiet enjoyment, or any 

other allegation. [Emphasis Added].

With regard to contracts, this Court has found that “[a] valid written instrument which 

expresses the intent of the parties in plain and unambiguous language is not subject to judicial 

construction or interpretation but will be applied and enforced according to such intent.” Syl. Pt. 

1, Cotiga Dev. Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962). “Where the 

parties to a contract have specified therein the conditions upon which an action upon the contract 

may be maintained, such conditions precedent generally must be complied with before an action 

for breach of contract may be properly brought.” Syl. Pt. 1, Vaughan Constr. Co. v. Va. Ry. Co., 

82 W. Va. 658, 97 S.E. 278 (1918). This Court has further reasoned that 

[t]here is no more firmly rooted principle of law than that these parties had 

a right to make whatever contract they pleased with reference to this property. 

Under the broad liberty of contract allowed by law, parties may make performance 

of any comparatively, or apparently, trivial and unimportant covenant, agreement, 

 

7As referenced hereinabove, the lease was executed between Kimco and petitioners, and 

subsequently assigned to Respondent BAI. Respondent Zamias was the property manager for 

Respondent BAI. 
6

or duty under the contract a condition precedent, and in such case, the contract will 

be enforced or dealt with as made.

Watzman v. Harry L. Unatin, 101 W. Va. 41, 51, 131 S.E. 874, 878 (1926). Here, BAI brought an 

action against petitioners seeking recovery of monies due under the lease agreement, to which 

petitioners filed a counterclaim and third-party claims in an attempt to explain its alleged breach 

of the lease. However, pursuant to the express terms of paragraph 15, subsection (G) of the lease 

agreement, the circuit court concluded, and we now concur, that petitioners’ counterclaims and 

third-party claims were improper as petitioners were “barred from asserting any counterclaim or 

setoff in an action brought by” BAI for collection of past due rent. We further find that, based upon 

the unique facts and circumstances of this case, the prohibition extended to prevent petitioner from 

asserting similar claims against Respondent Kimco (BAI’s predecessor in interest)

8

and 

Respondent Zamias (who had no ownership interest in the property and simply served as the agent 

of BAI).

The circuit court additionally found that petitioners failed to establish a prima facie fraud 

claim against Kimco, BAI, or Zamias. See Tri-State Asphalt Products, Inc. v. McDonough Co., 

182 W. Va. 757, 391 S.E.2d 907 (1990). Petitioners allege that they were improperly induced to 

enter into the lease agreement as a result of an oral promise made during lease negotiations.

Specifically, petitioners contend that a Kimco representative “orally represented that if 

[petitioners] entered in to the lease agreement the monthly rent payments and size of the demised 

premises would be 45% less than the parties’ written contract.” 

In awarding summary judgment to respondents as to petitioners’ fraud claims, the circuit 

court again cited to a provision of the parties’ executed lease agreement, (paragraph 24, subsection 

(A)), that provided that “[n]o oral statements or representations or written matter not contained in 

this lease shall have any force or effect.” The circuit court determined, and we agree, that this 

provision was “sufficient to negate the essential fraud element of reliance[,]” thus defeating 

petitioners’ claims against Kimco, BAI, and Zamias for fraud in the inducement. Further, we note 

that the lease agreement identified “in express terms both the amount of monthly rent and the size 

of the leased premises.” With such an express designation, petitioners’ arguments regarding 

contradictory oral statements are disingenuous. 

The circuit court further determined that petitioners failed to identify any evidence to 

establish a claim against respondents for theft, conversion, or trespass, and found no liability 

against respondents in tort, as petitioners “have not identified any evidence to establish the 

existence of a legal duty owed outside of the parties’ contractual duties and have not identified any 

evidence to establish the essential element of breach.” The circuit court recognized that petitioners 

presented “no evidence to establish that any request was ever made to” respondents related to “any 

 

8

In paragraph 23 subsection (A) of the parties’ lease agreement, it is noted that in “the 

event of a transfer by Landlord of its interests in this Lease, the transferor shall be automatically 

released from all liability and obligations as Landlord.” Thus, as Kimco sold its interest to BAI on 

March 30, 2012, and assigned its interest in the lease agreement at issue to BAI at the same time, 

Kimco was released from all liability and obligations of the landlord. 
7

problems with the leased premises in the scope of the [l]ease [a]greement.” Rather, the premises 

was leased in an “as is” condition. 

The provisions of the lease agreement itself negate petitioners’ claims for breach of 

contract associated with the condition of the property, as petitioners, in paragraph seven of the 

lease agreement, acknowledged that they had examined/inspected the property at issue and 

accepted the same “as is” and recognized that the 

[l]andlord is not obligated with respect to either the leased premises or the shopping 

center to make any improvements, changes, installations, do any work, make any 

alterations, repairs or replacement, clean out the leased premises, obtain any 

permits, licenses or governmental approval, or spend any money either to put tenant 

in possession or to permit tenant to open for business, unless landlord has so agreed 

expressly in this lease. 

Upon taking possession of the premises, petitioners executed a “tenant delivery form” in 

which they acknowledged that they had inspected the premises and would, within five days, submit 

a written list to the landlord of any items requiring completion. Here, there is no evidence that 

petitioners ever submitted a list to respondents identifying any deficiencies within the leased 

premises after inspection. Further, if petitioners, as tenants, requested any repairs, the requests 

were to be made in writing pursuant to Paragraph 10(B) of the lease agreement. Again, petitioners 

did not provide respondents with any written notice requesting repairs to any portion of the leased 

premises to any of the respondents. Given such evidence, we find that the circuit court did not err 

in awarding summary judgment to respondents.

In their fourth assignment of error, petitioners contend that the circuit court erred in 

excluding evidence that, when purchasing the Riverwalk shopping plaza from Kimco, BAI 

received a $140,000 purchase credit. Petitioners contend that any judgment rendered against it 

must be reduced by this purchase credit, as the same directly related to petitioners’ leasehold and 

petitioners’ non-payment of rent. 

Prior to trial, BAI filed a motion in limine to exclude evidence of this purchase credit at 

trial. BAI argued that this credit did not compensate BAI for any damages sought in this action. 

Petitioners responded to BAI’s motion in limine and argued that the purchase credit was 

“singularly the most important evidence in the case.” On January 10, 2017, the circuit court granted 

BAI’s motion in limine finding that the credit was not relevant to whether petitioners breached the 

terms of the lease agreement at issue. The court reasoned that whether BAI was incentivized to 

purchase Riverwalk bears no relationship to whether petitioners failed to pay monies owed under 

the lease agreement. 

Petitioners now contend that the parties should have had the “opportunity for a jury to 

decide what weight to give to the competing arguments of the parties” regarding the purchase 

credit, and in holding otherwise, the circuit court was clearly wrong. We disagree. 

We review a trial court’s ruling on a motion in limine under an abuse of discretion standard. 

See Syl. Pt. 1, McKenzie v. Carroll Int’l Corp., 216 W. Va. 686, 610 S.E.2d 341 (2004). Here, the 
8

circuit court correctly reasoned “[w]hen taken in context with the totality of the purchase and sale 

agreement . . . the “credit” was not intended to, nor did it under the plain terms of the lease 

agreement . . . modify or relieve [petitioners] of any payment obligations owed under the lease.” 

As to petitioners’ arguments that evidence relating to the credit was proper for a jury to hear 

ignores the fact that the parties herein “mutually agreed to waive a jury trial.” Accordingly, we 

find that the circuit court did not abuse its discretion in excluding such evidence from consideration 

at trial. 

In its fifth assignment of error, petitioners argue that the circuit court erred in finding that 

BAI was entitled to $91,285.80 in damages associated with the breach of the lease agreement.

Specifically, petitioners are critical of the circuit court’s failure to include, in the preliminary 

judgment order, five findings of fact and three conclusions of law that were proposed by 

petitioners–each of which relate to the testimonial evidence petitioners presented during trial. 

In reviewing challenges to the findings and conclusions of the circuit court 

made after a bench trial, a two-pronged deferential standard of review is applied. 

The final order and the ultimate disposition are reviewed under an abuse of 

discretion standard, and the circuit court’s underlying factual findings are reviewed 

under a clearly erroneous standard. Questions of law are subject to a de novo

review.

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

(1996).

Rule 52(a) of the West Virginia Rules of Civil Procedure provides, in relevant part, that, 

in all actions tried upon the facts without a jury, “[f]indings of fact, whether based on oral or 

documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be 

given to the opportunity of the trial court to judge the credibility of the witnesses.” Petitioners 

argue that the court erred in rejecting the “substantial evidence tendered in support of their claims” 

and entered a preliminary judgment order that did not include petitioner’s proposed findings of 

fact and conclusions of law. Conversely, respondents argue, and we agree, that the circuit court 

did not make any erroneous findings of fact or conclusions of law. Here, the circuit court as the 

finder of fact observed each witness and made judgments regarding their credibility and veracity. 

The court’s determination of the obviously self-serving evidence proffers made by the petitioners 

at trial were well documented and addressed specifically in the preliminary judgment order at 

paragraphs 12, 13, 14, 15, and 16. Critically, the court noted that petitioners failed to provide any 

demonstrative evidence such as photographs to substantiate their claims, which the court expected 

from “experienced and sophisticated businessmen” such as the petitioners’ witnesses. The court 

further expressly noted, in paragraph 16, that: (1) Petitioner Arbaugh and petitioners’ proffered 

witnesses, Tommy Clay and Ronald McVey, have known each other for a number of years; (2) 

Mr. Clay’s wife is the bookkeeper for Petitioner Mimi’s; (3) Petitioner Arbaugh’s office is in the 

same space as Mr. Clay’s office; and (4) Mr. McVey has installed security cameras and systems 

for businesses owned by Mr. Clay and businesses owned by Petitioner Arbaugh. Accordingly, as 

the circuit court’s findings and conclusions were specifically based upon its determination of the 

credibility of witnesses, we find no error. 
9

Next, petitioners argue that the circuit court erred in awarding attorney’s fees to BAI. 

Regarding attorney’s fees, this Court has stated that 

“[t]he decision to award or not to award attorney’s fees rests in the sound discretion 

of the circuit court, and the exercise of that discretion will not be disturbed on 

appeal except in cases of abuse.” Beto v. Stewart, 213 W.Va. 355, 359, 582 S.E.2d 

802, 806 (2003). See also Sanson v. Brandywine Homes, Inc., 215 W.Va. 307, 310, 

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

review to an award of attorney’s fees.”); Syl. pt. 2, Daily Gazette Co., Inc., v. West 

Virginia Dev. Office, 206 W.Va. 51, 521 S.E.2d 543 (1999)(“ ‘ “ ‘[T]he trial [court] 

. . . is vested with a wide discretion in determining the amount of . . . court costs 

and counsel fees, and the trial [court’s] . . . determination of such matters will not 

be disturbed upon appeal to this Court unless it clearly appears that [it] has abused 

[its] discretion.’ Syllabus point 3, [in part,] Bond v. Bond, 144 W.Va. 478, 109 

S.E.2d 16 (1959).” Syl. pt. 2, [in part,] Cummings v. Cummings, 170 W.Va. 712, 

296 S.E.2d 542 (1982) [(per curiam)].’ Syllabus point 4, in part, Ball v. Wills, 190 

W.Va. 517, 438 S.E.2d 860 (1993).”).

Corp. of Harpers Ferry v. Taylor, 227 W. Va. 501, 504, 711 S.E.2d 571, 574 (2011). We have 

further reasoned that “[a]n award of attorney’s fees is appropriate where the governing document 

contains a provision allowing for the recovery of such fees. Moore v. Johnson Serv. Co., 158 W.Va. 

808, 219 S.E.2d 315, 323 (1975) (holding that the prevailing party should be granted attorney’s 

fees as provided for in a commercial lease agreement).” Tuckwiller v. Tuckwiller, No. 19-0345, 

2020 WL 598336, *2 (W. Va. Feb. 7, 2020)(memorandum decision).

Despite the fact that the recovery of attorney’s fees was expressly provided for in the lease 

agreement executed by the parties, petitioners now argue that the circuit court abused its discretion 

in awarding attorney’s fees to BAI as BAI made no specific request for attorney’s fees in the 

underlying litigation. However, the circuit court determined that no specific petition or request for 

attorney’s fees and expenses was necessary, as the request for attorney’s fees herein arose from a 

contractual obligation. The court further noted that, inasmuch as BAI had submitted its claim for 

attorney’s fees, including invoices and other documents to support its claims, that the same 

represented a “petition” for those fees, costs, and expenses. Based upon our review of the record, 

including the express provisions of the parties’ lease agreement, we find that the circuit court did 

not abuse its discretion in awarding attorney’s fees to Respondent BAI.9

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

 

9 We note that within their assignment of error as to the propriety of the award of attorney’s 

fees, costs, and expenses to Respondent BAI, petitioners are critical of the circuit court’s alleged 

failure to analyze the award of attorney’s fees under the factors outlined in Pitrolo. We find no 

merit in petitioners’ argument. Here, within its December 15, 2017, Final Judgment Order, the 

circuit court discussed the Pitrolo factors and expressly concluded that BAI’s claims for attorney’s 

fees, costs, and expenses “satisfies the applicable Pitrolo factors,” and that the same were 

reasonable and necessary to enforce the terms of the lease. 
10

motions. “The standard of review applicable to an appeal from a motion to alter or amend a 

judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the 

underlying judgment upon which the motion is based and from which the appeal to this Court is 

filed.” Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 

(1998). This Court has indicated that, as a general proposition, it will review a circuit court ruling 

on a motion for a new trial under an abuse of discretion standard. In re State Pub. Bldg. Asbestos 

Litig., 193 W. Va. 119, 454 S.E.2d 413 (1994). The Court has also held that, in reviewing such 

rulings, the Court will not disturb the lower court ruling unless the lower tribunal’s conclusions 

are plainly wrong or against the weight of the evidence. State v. Crouch, 191 W. Va. 272, 445 

S.E.2d 213 (1994).

Here, petitioners argue that the court’s final judgment order should be set aside. However, 

petitioners fail to identify any reasons, aside from the reasons articulated hereinabove, in support 

of their argument. As we find no error with the circuit court’s rulings hereinabove and no merit to 

petitioners’ associated allegations of error, we find no error in the circuit court’s denial of 

petitioner’s Rule 59(e) motion. 

For the foregoing reasons, we affirm the circuit court’s July 31, 2018, order denying 

petitioners’ post-trial motions; October 2, 2017, preliminary judgment order; December 25, 2017, 

final judgment order; June 21, 2017, order granting BAI and Zamias summary judgment; and the 

December 19, 2016, order granting Kimco summary judgment. 

Affirmed.

ISSUED: March 23, 2020 

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison