STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Garry Thomas, FILED 

Defendant Below, Petitioner November 16, 2016 

released at 3:00 p.m. 

vs) No. 15-1205 (Berkeley County 14-C-220) RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

Archie D. Houck,
 

Plaintiff Below, Respondent
 

MEMORANDUM DECISION 

Petitioner Garry Thomas, by counsel James T. Kratovil, appeals two November 

20, 2015, orders of the circuit court denying his motions for a new trial and a December 

10, 2015, order of the circuit court granting attorney’s fees and legal costs to Mr. Houck.1 

Mr. Houck appears by counsel, Richard McCune and Alex Tsiatsos. On appeal, Mr. 

Thomas argues that 1) the circuit court erred in granting Mr. Houck’s motion in limine 

ruling that Mr. Thomas could not mention that Mr. Houck’s use of the right of way was 

permissive; 2) the circuit court erred in granting Mr. Houck’s Rule 50 Motion for 

Judgment as a Matter of Law based on the testimony presented at trial; 3) the circuit court 

erred in not granting Mr. Thomas’ motion for a new trial because he was pro se at trial; 4) 

the circuit court erred in awarding Mr. Houck attorney’s fees; and 5) the circuit court 

erred in not assisting Mr. Thomas in securing the attendance of a former co-defendant at 

trial. 

This Court has considered the parties’ briefs, oral arguments, and the appendix 

record on appeal. Under the limited circumstances presented in this case, we find a 

memorandum decision affirming the circuit court, in part, reversing in part, and 

remanding for further proceedings appropriate under Rule 21 of the West Virginia Rules 

of Appellate Procedure. 

As explained below, while we conclude that the circuit court committed no 

reversible error as pertains to its November 20, 2015 orders, we conclude that the circuit 

court failed to properly assess the factors enumerated in Aetna Casualty & Surety 

Company v. Pitrolo, 176 W. Va. 190, 342 S.E.2d 156 (1986) relative to its award of 

1 A September 23, 2015, judgment order was deemed not timely appealed by this 

Court. 

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attorney fees and therefore reverse the circuit court’s December 10, 2015, order and 

remand for further proceedings as necessary and entry of an order consistent herewith. 

This appeal stems from a dispute between Mr. Thomas and Mr. Houck regarding a 

road on Mr. Thomas’s property that Mr. Houck used to access his own property. Mr. 

Houck and his family own property in the Hedgesville area of Berkeley County, West 

Virginia. Russel L. Way, a co-defendant in the proceedings below, who is not a party to 

this appeal, owns property immediately adjacent to Mr. Houck’s property. Mr. Thomas 

owns real property that is immediately adjacent to Mr. Way’s property, which he 

purchased in 1997. The subject road connected Mr. Houck’s property to West Virginia 

County Rte 3/2 and was reportedly the only way for Mr. Houck to access his property. 

Mr. Houck asserts that his family used this road for generations before Mr. Thomas 

moved into the area, and afterward. However, in 2013, Mr. Thomas built a fence, closing 

the road. Mr. Houck complained to Mr. Thomas that he had a right of way to cross the 

property, but Mr. Thomas refused to re-open the road. As a result, Mr. Houck filed suit 

against Mr. Thomas and Mr. Way asserting that he had a prescriptive easement to access 

his property. 

Mr. Thomas represented himself pro se in the underlying action. At trial, Mr. 

Thomas and his wife testified that Mr. Houck did not have permission to use the right of 

way and that he did not use the subject road often. To counter their testimony, Mr. 

Houck presented several witnesses at trial that testified that the right of way was the only 

way that Mr. Houck could access his property, and that as a result, Mr. Houck and his 

family had used that right of way since approximately 1920. Mr. Houck also testified that 

he continued to use the right of way for a ten year period after the Thomases acquired 

their property. Mr. Houck asserted that he has never asked permission to use the subject 

right of way at any time. Additionally, Mr. Houck presented two expert witnesses at trial, 

one of whom testified to the dimensions of the road and the other who testified that 

although the right of way does not exist on a tax map, “it doesn’t mean the right of way 

doesn’t exist.” Mr. Houck further asserted that Mr. Thomas’s interest in the property was 

expressly made subject, by deed, to existing rights of way such as Mr. Houck’s, stating 

“This conveyance is made subject to covenants, restrictions, agreements, easements, and 

rights of way recorded in the aforesaid clerk’s office in Deed Book 253 at Page 249 and 

of record and in existence.” 

Mr. Thomas, proceeding pro se despite being cautioned against it by the circuit 

court, did not present any expert testimony or other evidence to impeach Mr. Houck’s 

witnesses. Under cross-examination, Mr. and Mr. Thomas admitted that Mr. Houck used 

the subject right of way “many times” since they purchased their property. Additionally, 

Mr. Green, who sold Mr. Thomas the property, testified in his deposition that he told Mr. 

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Thomas that Mr. Houck had the right to use the road.2 Mr. Thomas denied that this 

conversation took place. 

After the close of Mr. Thomas’ case, Mr. Houck filed a renewed Motion for 

Judgment as a Matter of Law pursuant to Rule 50 of the West Virginia Rules of Civil 

Procedure asserting that based upon the evidence presented and the concessions by the 

parties, there was no legally sufficient evidentiary basis for a reasonable jury to find for 

Mr. Thomas with respect to the first three elements required to establish a prescriptive 

easements as set forth in syllabus point one of O’Dell v. Stegall, 226 W. Va. 590, 703 

S.E.2d 561 (2010).3 The court granted Mr. Houck’s Rule 50 motion on the last day of 

trial, finding that 

the evidence is clear and convincing that Mr. Houck’s use of the alleged 

right of way was adverse for at least the period of 1981 to 1997, being more 

than a 10 year period, and that no reasonable juror could find to the 

contrary for purposes of accessing his family property. The Court finds and 

concludes that during that time, if not longer, Mr. Houck’s use of the 

alleged right of way was continuous and uninterrupted, in the manner that 

any owner of a right of way would use it, as demonstrated by clear and 

convincing evidence. The Court further notes that Mr. Thomas has 

conceded this point and that no reasonable juror could find to the contrary. 

The Court also finds and concludes that, by clear and convincing evidence, 

that no reasonable juror could find otherwise than that the owners of the 

property over which Mr. Houck’s alleged right of way travels had actual 

knowledge of Mr. Houck’s adverse use or that a reasonable owner would 

have noticed the use. 

2 Mr. Green’s deposition testimony was admitted at trial because he was 

unavailable to testify in person. Mr. Thomas did not object. 

3 In O’Dell, this Court held that 

[a] person claiming a prescriptive easement must prove each of the 

following elements: (1) the adverse of another’s land; (2) that the adverse 

use was continuous and uninterrupted for at least ten years; (3) that the 

adverse use was actually known to the owner of the land, or so open, 

notorious and visible that a reasonable owner of the land would have 

noticed the use; and (4) the reasonably identified starting point, ending 

point, line, and width of the land that was adversely used, and the manner 

or purpose for which the land was adversely used. 

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The circuit court, however, left the issue of the actual dimensions of the right of way for 

the jury’s determination.4 Upon deliberation, the jury awarded special damages to Mr. 

Houck in the amount of $5,331.48 and found that Mr. Houck was entitled to attorney’s 

fees. Additionally, the circuit court made the finding that there was sufficient evidence in 

the record to justify submission of punitive damages to the jury, because, “the jury could 

conclude that [Mr. Thomas] was aware of [Mr. Houck’s] prescriptive easement and that 

the erection of the fence was intentional, reckless and harmful, and/or that it exhibited 

criminal indifference to civil obligations.” After a second round of deliberations, the jury 

awarded Mr. Houck $15,000.00 in punitive damages. 

Mr. Thomas subsequently moved to set aside the verdict and moved for a new 

trial, filing a handwritten letter and/or motion requesting a “retrial or mistrial,” and 

“objecting” to the court’s order granting Mr. Houck Rule 50 judgment as a matter of 

law.5 Mr. Thomas subsequently filed an additional motion for a new trial, making further 

objections to Mr. Houck’s use of various survey documents as trial exhibits.6 On 

November 20, 2015, the circuit court entered two orders denying both of Mr. Thomas’ 

motions. Upon Mr. Houck’s motion and commensurate with the jury’s determination 

that Mr. Houck was entitled to attorney’s fees and costs, the circuit court awarded 

attorney’s fees in the amount of $120,513.75 and $4,726.51 in costs. Mr. Thomas now 

appeals the orders of the circuit court and requests a new trial. 

In his first assignment of error, Mr. Thomas asserts that the circuit court erred in 

granting Mr. Houck’s Motion in Limine #4, ruling that he could not mention that Mr. 

Houck’s use of the alleged prescriptive right of way was permissive.7 This issue, 

4 The jury determined the dimensions to be 799 feet long and 14 feet wide. 

5 Therein, he essentially asked the court to help promote settlement negotiations 

between the parties on a location of the right-of-way, and alternatively, to re-examine the 

testimony of the parties regarding Mr. Houck’s use of the right-of-way. He also asked 

the court to re-examine Mr. Houck’s experts’ use of various surveys as exhibits at trial, 

and asserted that the circuit court should have assisted him in procuring Mr. Way as a 

witness at trial. 

6 Although designated as one of the orders on appeal, none of Mr. Thomas’ 

assignments of error specifically address this issue; therefore, we decline to address it 

herein. 

7 Additionally, Mr. Thomas asserts error with respect to the circuit court’s ruling 

on Motion in Limine #8, which he contends prevented him from presenting testimony 

regarding Mr. Houck’s “non-use” of the right of way. However, our review of the record 

indicates that Motion in Limine #8 does not pertain to this issue. Rather, it only refers to 

references being made about Mr. Thomas’ disabled son. The record discloses no order by 

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however, was not presented in his motion for a new trial and therefore should have been 

appealed from entry of the September 23, 2015 judgment order. The record reflects that 

Mr. Thomas failed to file a Notice of Appeal within the thirty day time frame required by 

Rule 5(b) of the West Virginia Rules of Appellate Procedure. In footnote 1 of this Court’s 

scheduling order, we stated “Petitioner presented a timely and complete notice of appeal 

from orders of the Circuit Court of Berkeley County entered on November 20, 2015, and 

December 10, 2015. The notice of appeal is not timely from the September 23, 2015 

order.” See W. Va. R. App. P. 5(b) (“[w]ithin thirty days of entry of the judgment being 

appealed, the party appealing shall file the notice of appeal and the attachments required 

in the notice of appeal form contained in Appendix A of these Rules”); Cronin v. Bartlett, 

196 W. Va. 324, 326, 472 S.E.2d 409, 411 (1996) (appeal dismissed when not filed in 

time). Accordingly, the Court will not address the merits of this issue. 

In his second assignment of error, Mr. Thomas contends that the circuit court erred 

in granting Mr. Houck’s Rule 50 Motion for Judgment as a Matter of Law8 based on the 

testimony presented at trial.9 Specifically, Mr. Thomas appears to take issue with the 

circuit court’s conclusion that Mr. Houck established “continuous” adverse use and did 

not accord proper weight to his and his wife’s testimony that Mr. Houck did not 

continuously adversely use the right of way after 1999 or 2000. Mr. Thomas contends 

that the court’s finding that Mr. Houck had established a right of way “for at least the 

period 1981 to 1997” was not dispositive of the “continuous use” element required in 

the circuit court prior to the close of evidence which would have prevented Mr. Thomas 

from arguing Mr. Houck’s “non-use” of the right of way. In fact, Mr. Thomas testified 

about Mr. Houck’s use at trial. 

8 Pursuant to Rule 50(a) of the West Virginia Rules of Civil Procedure, 

(1) If during a trial by jury a party has been fully heard on an issue and 

there is no legally sufficient evidentiary basis for a reasonable jury to 

find for that party on that issue, the court may determine the issue 

against that party and may grant a motion for judgment as a matter of 

law against that party with respect to a claim or defense that cannot 

under the controlling law be maintained or defeated without a favorable 

finding on that issue. 

9 As noted above, Mr. Houck did not timely appeal the September 23, 2015 

judgment order setting forth the issues upon which the circuit court granted judgment as a 

matter of law. However, this argument was ostensibly presented as part and parcel of Mr. 

Thomas’ motion for a new trial. Pursuant to Rule 50(c)(2) of the West Virginia Rules of 

Civil Procedure, “[t]he party against whom judgment as a matter of law has been 

rendered may file a motion for a new trial pursuant to Rule 59 not later than 10 days after 

entry of the judgment.” Therefore we will address it on its merits as presented on appeal. 

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O’Dell.

10 Mr. Thomas contends that the actions of Mr. Houck from the period from 2000 

to 2013 are critical, and that if Mr. Houck abandoned the use during the statutory period, 

then the right would be lost. Mr. Thomas points to his own testimony indicating that Mr. 

Houck used the road from 1997 to 2000 with permission, but did not use it after they had 

a falling out in 2000. He alleges that there is a thirteen year period that Mr. Houck used 

other means to access his property. 

With respect to the applicable standard of review of a denial of a motion for a new 

trial, we have stated: 

As a general proposition, we review a circuit court’s rulings on a motion for 

a new trial under an abuse of discretion standard. In re State Public 

Building Asbestos Litigation, 193 W.Va. 119, 454 S.E.2d 413 (1994). Thus, 

in reviewing challenges to findings and rulings made by a circuit court, we 

apply a two-pronged deferential standard of review. We review the rulings 

of the circuit court concerning a new trial and its conclusion as to the 

existence of reversible error under an abuse of discretion standard, and we 

review the circuit court’s underlying factual findings under a clearly 

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

Tennant v. Marion Health Care Foundation, Inc., 194 W. Va. 97, 104, 459 S.E.2d 374, 

381 (1995). 

With respect to prescriptive easements, this Court has held generally that “[i]n 

order to establish a right of way by prescription, all of the elements of prescriptive use, 

including the fact that the use relied upon is adverse, must appear by clear and convincing 

proof.” Syl. Pt. 2, Beckley Nat. Exchange Bank v. Lilly, 116 W.Va. 608, 182 S.E. 767 

(1935). As pertains specifically to the “continuous use” element of a prescriptive 

easement, this Court has stated: 

For an adverse use to be “continuous,” the person claiming a 

prescriptive easement must show that there was no abandonment of the 

adverse use during the ten-year prescriptive period, or recognition by the 

person that he or she was using the land with the owner’s permission. 

Additionally, the adverse use need not have been regular, constant or daily 

to be “continuous,” but it must have been more than occasional or sporadic. 

All that is necessary is that the person prove that the land was used as often 

as required by the nature of the easement sought, and with enough 

regularity to give the owner notice that the person was a wrongdoer 

asserting an easement. 

10 See footnote 3, supra. 

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Syl. Pt. 8, O’Dell. 

Upon review of the record before us, we conclude that the circuit court’s findings 

in its Rule 50 order are not clearly erroneous and, in fact, are supported by clear and 

convincing evidence. The virtually uncontroverted evidence clearly establishes that Mr. 

Houck used the right of way continuously and openly both prior to the Thomases 

acquisition of the property and for a 10-year period thereafter. Mr. Thomas admitted 

actual knowledge of Mr. Houck’s use of the right of way during the period at issue and 

that he did so without permission. 

With respect to Mr. Thomas’ assertion that Mr. Houck abandoned the prescriptive 

easement by failing to prove continuous and uninterrupted use of the roadway in the 

years between 2000 and 2013, we find no merit to this argument. Mr. Houck provided 

ample testimony that he continued to use the property between 2000 and 2013, and this 

use was more than occasional or sporadic, with enough regularity to give notice that he 

continued to assert an easement. Mr. Thomas presented no evidence of any overt action 

on his part to assert ownership of the subject right of way, other than verbally objecting 

to Mr. Houck’s use after an alleged falling out in or around 1999, until he erected a fence 

over the right of way in 2013. As our law states, “mere unheeded requests, protests, 

objections, or threats of prosecution or litigation by the landowner that the person stop 

are insufficient to interrupt an adverse usage.” Syl. Pt. 9, O’Dell. We conclude that these 

objections prior to Mr. Thomas’ erection of the fence were insufficient to interrupt Mr. 

Houck’s adverse use of the right of way that had been ongoing for generations. It is 

apparent from the testimony presented that none of Mr. Thomas’ actions caused Mr. 

Houck to discontinue or interrupt his adverse use until 2013. Prior to that, Mr. Houck’s 

use of the property was open and notorious so that a reasonable owner would have been 

on notice of his adverse use. Based upon the testimony presented, Mr. Houck proved that 

he had a right of way by prescription by clear and convincing evidence. The circuit court 

properly concluded that the evidence was so clear and convincing that no reasonable 

juror could have found to the contrary. Accordingly, we affirm the circuit court’s ruling 

on this issue. 

Two of Mr. Thomas’ remaining three assignments of error likewise derive of the 

circuit court’s denial of his motion for a new trial, but pertain more specifically to his 

decision to proceed pro se in the underlying litigation. In general, Mr. Thomas contends 

that because he now has a lawyer, he should get a new trial. He also contends, more 

specifically, that the circuit court should have assisted him in securing the attendance of 

Richard Way, a former co-defendant. Mr. Thomas represented to the trial judge that he 

in fact subpoenaed Mr. Way, but he did not include a copy of the subpoena as part of the 

record, nor did he verify proof of service. It appears from the record that the circuit court 

reviewed a letter from Mr. Way’s counsel, but a copy of that letter is not part of the 

designated record on appeal. 

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We note first that the record specifically reflects that Mr. Thomas was cautioned 

by the Court about the advisability of procuring an attorney. However, as this Court has 

held in State v. Blosser, 158 W. Va. 164, 167-68, 207 S.E.2d 186, 189 (1974), “‘[t]he 

right of a party to appear in his own behalf and be heard in the courts is fundamental. It is 

an inalienable right common to all, guaranteed both by the constitution of the state and 

the Constitution of the United States.’” (quoting 5 M. J. Criminal Procedure § 41, p. 371 

(1949)). When a pro se litigant exercises this right, we have recently agreed that 

a trial court bears the responsibility to ensure the litigant receives fair and 

balanced proceedings. Our Court has consistently recognized that cases 

should be decided on the merits, which may require “reasonable 

accommodation” of litigants, whether represented by counsel or not. 

“Reasonable accommodation” does not, however, require a court to cross 

the fine line between accommodating a litigant and advocating for the 

litigant. Nor does it require the Court to give legal counsel. Ultimately, the 

pro se litigant bears the responsibility and the consequences of his mistakes 

and errors. 

Daye v. Plumley, No. 13-0913, 2014 WL 1345493, at *10 (W. Va. Apr. 4, 2014), cert. 

denied, 135 S. Ct. 117, 190 L. Ed. 2d 89 (2014) (citations omitted). 

With respect to subpoenaing Mr. Way, the record demonstrates that the circuit 

court invited Mr. Thomas to prove service of process on Mr. Way, upon which it would 

compel his attendance. Mr. Thomas failed to do so. Moreover, aside from this singular 

specific incident wherein he apparently expected greater assistance from the circuit court, 

Mr. Thomas fails to even assert what alleged “errors” were occasioned by his pro se 

status. We find that the circuit court’s actions requiring Mr. Thomas to present proof of 

service of the subpoena were appropriate, as it was not required to act further in order to 

ensure that Mr. Thomas received a fair and balanced proceeding. Accordingly, we affirm 

the circuit court’s ruling on this issue. 

In his final assignment of error, Mr. Thomas alleges that the circuit court 

improperly awarded Mr. Houck his attorney’s fees. Mr. Thomas asserts that attorney’s 

fees are not recoverable absent a statutory or contractual provision and that because there 

is no bad faith in this case, the award of attorney’s fees is improper. Mr. Thomas appears 

to assert that because he did not litigate in bad faith—citing the circuit court’s refusal to 

grant Mr. Houck’s motion for summary judgment or direct a verdict at the close of his 

case—attorney’s fees are improper. 

Syllabus point three of Sally-Mike Properties v. Yokum, 179 W. Va. 48, 365 

S.E.2d 246 (1986) states: “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 

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reasons.” The jury in this matter expressly found that Mr. Thomas “acted either in bad 

faith or vexatiously or wantonly or intentionally or for oppressive reasons[.]” The jury 

further found that Mr. Thomas intentionally blocked the right of way with the intent of 

permanently depriving Mr. Houck of its use. We therefore conclude that the circuit court 

committed no error in finding that Mr. Houck was entitled, in general, to an award of 

attorney’s fees and costs.11 

We find it necessary nonetheless to examine further the amount of the attorney’s 

fee award. The circuit court conducted a hearing, taking testimony from Mr. Houck’s 

attorney, and reviewed affidavits and a statement of fees submitted in support thereof. In 

setting forth its rationale for the fee award, the circuit court addressed each of the 

elements set forth in syllabus point four of Pitrolo.12 After making these findings under 

Pitrolo, the circuit court ruled that Mr. Houck was entitled to $120,513.75 in attorney’s 

fees and $4,726.51 in legal costs. 

With respect to the Pitrolo factors, the circuit court found that 1) the evidentiary 

burden for establishing a right of way, along with the time-intensive nature of this 

11 But see Boyd v. Goffoli, 216 W. Va. 552, 569, 608 S.E.2d 169, 186 (2004) (“An 

obvious purpose of awarding attorney fees and costs in a case involving fraud is that 

intentional conduct such as fraud should be punished and discouraged. As reasoned by 

the circuit court, however, Appellant has been sufficiently discouraged from future 

fraudulent conduct by the sizable punitive damages awarded by the jury. As a result, an 

award of attorney fees and costs is not necessary to perform this function.”). 

12 In Syllabus Point 4 of Pitrolo, this Court held that 

Where attorney’s fees are sought against a third party, the test 

of what should be considered a reasonable fee is determined 

not solely by the fee arrangement between the attorney and 

his client. The reasonableness of attorney’s fees is generally 

based on broader factors such as: (1) the time and labor 

required; (2) the novelty and difficulty of the questions; (3) 

the skill requisite to perform the legal service properly; (4) 

the preclusion of other employment by the attorney due to 

acceptance of the case; (5) the customary fee; (6) whether the 

fee is fixed or contingent; (7) time limitations imposed by the 

client or the circumstances; (8) the amount involved and the 

results obtained; (9) the experience, reputation, and ability of 

the attorneys; (10) the undesirability of the case; (11) the 

nature and length of the professional relationship with the 

client; and (12) awards in similar cases. 

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particular case, factored heavily into the difficulty of the questions; 2) that Mr. McCune 

is a skilled, 40-year litigator; 3) Mr. McCune was precluded from working on other 

litigation files, including billable hour matters; 4) success was necessary for Mr. Houck 

to pay Mr. McCune; 5) the jury trial was burdensome on Mr. McCune’s two-person firm; 

6) Mr. McCune obtained excellent results, including punitive damages and fees; 7) Mr. 

McCune and his associate have excellent reputations; 8) right-of-way disputes are 

difficult and contentious with unlikely fee-shifting and punitives; 9) Mr. Houck is 

satisfied with his counsel; and 10) fee awards in other reported cases were much greater. 

Although we do not take issue with the circuit court’s methodology in assessing 

the individual Pitrolo factors, we cannot turn a blind eye to the facially exorbitant 

attorney’s fee award resulting therefrom. See McAfee v. Boczar, 738 F.3d 81, 94 (4th Cir. 

2013), as amended (Jan. 23, 2014) (“[W]e cannot ignore the pronounced 

disproportionality between the verdict . . . and the fee award[.]”). As indicated, Mr. 

Houck was awarded approximately $5,000.00 in compensatory damages and $15,000.00 

in punitive damages. An attorney’s fee and cost award of approximately $125,000.00 

represents a multiplier of twenty-five of the compensatory damages. This incongruence 

necessarily compels us to examine the circuit court’s specific findings further. 

We recognize that “‘the trial [court] . . . is vested with a wide discretion in 

determining the amount of . . . court costs and counsel fees; and the trial [court's] . . . 

determination of such matters will not be disturbed upon appeal to this Court unless it 

clearly appears that [it] has abused [its] discretion.’ Syl. Pt. 3, in part, Bond v. Bond, 144 

W.Va. 478, 109 S.E.2d 16 (1959).” Syl. Pt. 1, Heldreth v. Rahimian, 219 W. Va. 462, 

637 S.E.2d 359 (2006). Nevertheless, we assess each factor with the backdrop that the 

hours invested and resulting fee appear to this Court disproportionate for the nature and 

complexity of the case and seek to determine if the circuit court’s analysis properly 

justifies this apparent lack of proportion. 

First, with respect to the time and labor required and “difficulty” of the issue 

presented, while we do not question the accuracy with which Mr. Houck’s attorneys kept 

their time, we do question the necessity of expending 695 hours on an easement case 

defended by a pro se litigant. Although the circuit court summarily concluded that Mr. 

Thomas’ pro se status increased the time invested in this matter, we find nothing in the 

circuit court’s order identifying in what way Mr. Thomas’ pro se status required 

additional work than would ordinarily be necessitated by one’s opponent. The fact that 

his filings were occasionally challenged or necessitated follow-up is not uncommon in 

adversarial litigation. The fact that Mr. Thomas was pro se, however, certainly would 

appear to suggest that he did not affirmatively generate the type of litigation activity one 

would expect of an opposing attorney with the supporting resources of his or her firm. 

Further, with respect to the circuit court’s discussion of the difficulties of the high 

burden of proof and unlikelihood of such a successful outcome, we find that the circuit 

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court’s grant of judgment as a matter of law undercuts these conclusions. At the close of 

evidence, the circuit court found the evidence so compelling and one-sided that it entered 

judgment as a matter of law. As the recitation of facts above reflects, Mr. Houck had an 

abundance of evidence that he satisfied the elements for a prescriptive easement and Mr. 

Thomas offered virtually nothing to controvert that evidence. As such, the facts of the 

case as presented by Mr. Houck himself and the circuit court appear to suggest that, 

despite Mr. Thomas’ refusal to accept the clear legal implications of the evidence, Mr. 

Houck’s case itself was fairly straight-forward and met with little to no resistence at 

trial.13 

The circuit court’s order concedes that easements are not novel, Mr. Houck and 

his counsel had no long-standing professional relationship, and that fee-shifting in 

prescriptive easement cases are uncommon. Moreover, the attorney fee awards used for 

comparison by the circuit court involve far more complex cases, such as consumer credit 

actions. In sum, we find that the circuit court’s conclusions with respect to the above 

factors seem self-fulfilling and are belied by the manner in which the underlying action 

unfolded as per the parties. We therefore conclude that the circuit court abused its 

discretion in assessing the Pitrolo factors and remand for further proceedings and 

13 We note, also, that the circuit court’s assessment of whether the fee was 

“customary,” was inadequately justified in the order. The circuit court found that 

because Mr. Houck’s attorneys charged the same hourly rates charged to all of their 

billable hour fixed rate cases, the fee was “customary.” However, this Pitrolo factor 

seeks not to ascertain whether hourly rates and aggregate fees are “customary” for the 

particular attorney seeking fees. Rather, this factor seeks to determine whether such fee 

is customary for “similar legal services” rendered by other attorneys. See Syl. Pt. 3, 

Stafford v. Bishop, 98 W.Va. 625, 127 S.E. 501 (1925) (requiring court to consider “usual 

and customary charges for like services in the same vicinity”); see also Rule 1.5(a)(3) W. 

Va. Rules of Prof. Cond. (prohibiting unreasonable fees and requiring consideration of 

“fee customarily charged in the locality for similar legal services” to determine 

reasonableness); Williston on Contracts, § 62:8, “Attorney's right to be compensated for 

services—Reasonableness of fee” (4th ed.) (observing that “the amount commonly paid 

an attorney for similar duties in a similar locality” is commonly designated 

reasonableness factor). 

In spite of the circuit court’s order’s deficiency in that regard, the record reveals 

that Mr. Houck’s attorney submitted an affidavit by a local lawyer engaged in similar 

practice who opined, under oath, that the hourly rate was customary. Therefore, we find 

no reversible error with respect to this particular element of the Pitrolo analysis. We 

likewise do not take issue with the circuit court’s assessment of the experience and skill 

of Mr. Houck’s attorneys. 

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findings by the circuit court, as needed, to ascertain a reasonable attorney’s fee and cost 

award. 

For all of the foregoing reasons, we affirm the November 20, 2015, orders of the 

circuit court. However, we reverse the December 10, 2015, order of the circuit court and 

remand for further proceedings consistent herewith. 

Affirmed in part, reversed in part, and remanded. 

ISSUED: November 16, 2016 

CONCURRED IN BY: 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

Chief Justice Ketchum, dissenting in part and concurring in part: 

The amount of the lawyer fee awarded in this implied easement case is 

outrageous. 

The circuit court awarded a lawyer fee of $120,513.75 to the winning party. 

There is no implied easement case or deed case in West Virginia, much less Berkeley 

County, where a lawyer charged his client near the fee that the circuit court is requiring 

the losing party to pay the plaintiff’s lawyer. Lawyers do not receive a six- figure fee or 

even a five-figure fee in implied easement cases or deed cases. The $120,513.45 lawyer 

fee awarded in this case is excessively unreasonable. 

In addition, the plaintiff was awarded punitive damages approximately 

three times the amount of the compensatory damages awarded. Punitive damages are to 

punish a losing party that has acted in bad faith, vexatiously, wantonly or for oppressive 

reasons. We have previously held that an obvious purpose of awarding attorney fees 

against a party who acted in bad faith, vexatiously, wantonly, or for oppressive reasons is 

to punish and discourage this type of conduct. Boyd v. Goffoli, 216 W.Va. 552, 608 

S.E.2d 169 (2004). The punitive damage award has sufficiently punished and discouraged 

the defendant from repeating this type of conduct in the future. As a result, an award of 

attorney fees and costs was not necessary to perform this function. Boyd, supra. 

I dissent because attorney fees should not have been awarded, and if the 

award of attorney fees was warranted, the amount awarded was oppressively 

unreasonable. 

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Justice Benjamin, concurring in part and dissenting in part: 

I concur with the majority’s decision insofar as it affirms the trial court’s 

orders. However, I dissent with respect to the majority’s reversal of the trial court’s 

finding regarding the reasonableness of the attorney’s fees award. 

In Bond v. Bond, 144 W.Va. 478, 109 S.E.2d 16 (1959), we explained, 

“[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.” Id. at 478-79, 109 S.E.2d at 17, syl. pt. 3, in part. In awarding attorney’s 

fees in this case, the trial judge considered each of the twelve factors listed in Syllabus 

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

Although the majority finds that the trial court erred in his consideration of factor five, 

“the customary fee,” I believe that the trial court’s order, which contains an extensive 

analysis of the Pitrolo factors, sufficiently supports its reasoning. 

The trial court found that the hourly rate charged by the plaintiff’s lawyer 

was a “customary hourly rate.” Senior partner, Mr. McCune, billed his time at $240/hr. 

Mr. Tsiatsos’s time as junior partner was billed at $180/hr. Mr. McCune has been a 

skilled and successful litigator, often litigating land disputes, for more than 40 years. Mr. 

Tsiatsos has practiced for eight years and has demonstrated his skills before local judges. 

Those were the rates charged to all billable hour fixed rate cases by Mr. Houck’s counsel 

at the time this case began in 2013. Para-professional time was billed at $75/hr. By the 

time the case concluded, Mr. Houck’s counsel’s office had billed a total of 695 hours. 

The trial court found that proof of time spent was well-documented, and that the time 

spent and the rates are reasonable and customary given the circumstances. Specifically, 

the trial court concluded, 

The evidence showed that this case involved interviewing dozens of 

witnesses regarding prior use, numerous visits to the property, consulting 

on many occasions with surveyors and researching various issues related to 

easement law. The fact that Mr. Thomas decided to proceed pro se also 

added to the difficulty. Mr. Thomas often did not file appropriate and 

timely documents, and with respect to documents actually filed, Mr. 

Houck’s counsel often received documents that required objection or other 

actions that would have been unnecessary had the documents been filed by 

counsel. The trial court expressly cautioned Mr. Thomas about the 

importance of having his own counsel. Mr. Thomas, as was his right, chose 

to proceed without counsel. Had Mr. Thomas obtained counsel, it is likely 

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that his counsel would have impressed upon Mr. Thomas the need to 

remove his fence and to settle the case. 

Although Mr. Thomas now claims on appeal that the amount of fees is 

unreasonable, he does not identify any specific deficiency in the trial court’s reasoning, 

nor does he claim that the trial court’s Pitrolo analysis was faulty in any way. Even now, 

Mr. Thomas does not challenge any specific charge in Mr. Houck’s counsel’s fee 

statement. Furthermore, the parties tried this case to a jury for three days. The jury trial, 

and the eighteen months of litigation before it, was costly to Mr. Houck. For example, 

Mr. Houck and his attorneys had to track down and interview witnesses who lived as far 

away as Tennessee; visit the property with experts on numerous occasions; take 

additional time to attempt to decipher and address Mr. Thomas’s pro se pleadings and 

other filings; address procedural irregularities caused by Mr. Thomas’s decision to 

proceed pro se; and then make all the necessary pretrial and trial preparations and filings. 

This case took the amount of time that it did specifically because of Mr. Thomas’s 

actions. 

The trial court, who is vested with a wide discretion in determining the 

amount of attorney’s fees, carefully reviewed the evidence and made specific findings 

justifying its award. Because there was no clear abuse of discretion committed by the 

trial court, I hesitate to now disturb that finding on appeal. For these reasons, I 

respectfully concur and dissent. 

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