IN THE SUPREME COURT OF A PPEALS OF WEST VIRGINIA September 2014 Term

_______________ No. 13-0764

_______________ QUICKEN LOANS, INC., Defendant Below, Petitioner

v. LOURIE BROWN and MONIQUE BROWN, Plaintiffs Below, Respondents

___________________ _____________________ ____________________ Appeal from the Circuit Court of Ohio County The Honorable David J. Sims, Judge Civil Action No. 08-C-36
REVERSED AND REMANDE D WITH DIRECTIONS

___________________ _____________________ ____________________ Submitted: April 8, 2014 Filed: November 25, 2014

Thomas R. Goodwin, Esq. Johnny M. Knisely, Esq. Goodwin & Goodwin, LLP Charleston, West Virginia Counsel for the Petitioner James G. Bordas Jr., Esq. Jason E. Causey, Esq. Bordas & Bordas, PLLC Wheeling, West Virginia Counsel for the Respondent

JUSTICE BENJAMIN delivered the Opinion of the Court. JUSTICE LOUGHRY concurs in part, dissents in part, and reserves the right to file a separate opinion. 

### FILED November 25, 2014 released at 3:00 p.m. RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIAi SYLLABUS BY THE COURT

1. “Costs” within the mean ing of Rule 24 of the West Virginia Rules of Appellate Procedure include attorney fees wh en “costs” are defined as including attorney fees in any statute applicable to the case that allows for the recove ry of the costs of a proceeding.

2. Pursuant to Rule 24 of the We st Virginia Rules of Appellate Procedure, attorney fees a nd costs may be awarded for appellate proceedings by either this Court or by the trial cour t following the direction of this Court. Although this Court has the authority to set the amount of an a ttorney fee award, this Court may, in its discretion, instead direct the trial court to determine the amount of the appropriate attorney fee award on remand.

3. Attorney fees and costs awarded under W. Va. Code § 46A-5-104 (1994) of the West Virginia Consumer Cred it and Protection Act are compensatory in nature and shall be subject to offset by the amount of any good faith settlements previously made with the plainti ff by other jointly liable parties.1 Benjamin, Justice: This is the second time this case has been before the Court. The case was first brought by plaintiffs be low and respondents herein, Lo urie Brown (“Plaintiff”) and Monique Brown, against defendant and petitioner herein, Quicken Loans, Inc. (“Quicken”), in the Circuit C ourt of Ohio County, Judge Arthur M. Recht presiding. Plaintiff alleged that Quicken committed common law fraud and viol ated provisions of the West Virginia Consumer Credit and Pr otection Act (“WVCCPA”), as set forth in Chapter 46A of the West Virginia Code, in connection with a lo an agreement between Quicken and Plaintiff. 1 Following a bench trial, the ci rcuit court entered judgment in favor of Plaintiff. Quic ken appealed that judgm ent to this Court.

We decided Quicken Loans, Inc. v. Brown ( Quicken I ), 230 W. Va. 306, 737 S.E.2d 640 (2012), on Nove mber 21, 2012, affirming the trial court’s or der, in part, and reversing, in part. The reversal was pr emised on the followi ng conclusions: the circuit court improperly cancelled Plaintiff’s obligation to repay th e loan principal; the circuit court failed to support its $2,168,868. 75 punitive damages awar d with the analysis required by Garnes v. Fleming Landfill, Inc. , 186 W. Va. 656, 4 13 S.E.2d 897 (1991); and the circuit court failed to offset the co mpensatory damages award against Plaintiff’s

1 The loan was secured by property owned by Monique Brown. The parties represent that Monique Brown is a named part y herein only because she is the owner of the property secu ring the loan. Quicken Loans, Inc. v. Brown , 230 W. Va. 306, 313 n.3, 737 S.E.2d 640, 647 n.3 (2012).2 pretrial settlement with defend ants who did not proceed to tr ial. We remanded the case to the circuit court for further proceedings consistent with our opinion.

Following remand, the circuit court, Judge David J. Sims presiding, 2 entered an Opinion and Order on June 18, 2013. Qu icken now appeals that order, alleging the circuit court did not comply with the direction provided by this Court. After a thorough review, we reverse and again remand th is matter to the circuit court for further proceedings consistent with this opinion.

I. FACTUAL AND PR OCEDURAL BACKGROUND Because we set forth a comprehensive rendition of the underlying facts in Quicken I , 230 W. Va. at 312–18, 737 S.E.2d at 646–52, we proceed by providing a brief summary of those facts here. On July 7, 20 06, Plaintiff entered in to a loan agreement with Quicken. The loan totaled $144,800, which was secured by Monique Brown’s home. Plaintiff defaulted on the loan after on ly two payments, a nd Quicken instituted foreclosure proceedings. Plaintiff then filed suit against Quicken, alleging that Quicken violated the following provisions of th e WVCCPA: unconscionab ility, W. Va. Code §

2 Judge Recht retired prior to remand. Following his retirement, Judge Recht served as a senior status judge.3 46A-2-121 (1996) 3 ; unfair and deceptive acts, W. Va. Code § 46 A-6-104 (1974) 4 ; and illegal balloon note, W. Va. Code § 46A-2-105 (1974). 5 Plaintiff also claimed breach of

3 See infra note 11.

4 W. Va. Code § 46A-6-104 states, “Unf air methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce are hereby declared unlawful.” W. Va. Code § 46A-6-102(7) (2005) provides a nonexclusive list of acts that constitute “unfair methods of competition a nd unfair or deceptive practices,” including the following: (K) Making false or misleading statements of fact concerning the reasons for, exis tence of or amounts of price reductions; (L) Engaging in any othe r conduct which similarly creates a likelihood of confus ion or of misunderstanding; (M) The act, use or employment by any person of any deception, fraud, false pretense, false promise or misrepresentation, or the concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisemen t of any goods or services, whether or not any person has in fact been misled, deceived or damaged thereby; (N) Advertising, printing, displaying, publishing, distributing or broadcasting, or causing to be advertised, printed, displayed, published, di stributed or broadcast in any manner, any statement or representation with regard to the sale of goods or the extensio n of consumer credit including the rates, terms or conditions for the sale of such goods or the extension of such credit, whic h is false, misleading or deceptive or which omits to stat e material information which is necessary to make the st atements therein not false, misleading or deceptive . . . .

5 W. Va. Code § 46A-2-105 states, in pertinent part: (continued . . .)4 the covenant of good faith and fair dealing, fraud, 6 and illegal appraisal pursuant to W. Va. Code § 31-17-8(m)(8) (2002).

In addition to bringing this action agai nst Quicken, Plain tiff also filed suit against Appraisals Unlimited, Inc.; an ap praiser, Dewey Guida; and John Doe Note

(2) With respect to a consumer credit sale or consumer loan whenever any scheduled pa yment is at least twice as large as the smallest of all ea rlier scheduled payments other than any down payment, any wr iting purporting to contain the agreement of the parties shall contain the following language typewritten or printed in a conspicuous manner. THIS CONTRACT IS NOT PAYAB LE IN INSTALLMENTS OF EQUAL AMOUNTS: Followed, if there is only one installment which is at least twic e as large as the smallest of all earlier scheduled payments other than any down payment, by: AN INSTALLMENT OF $............... WILL BE DUE ON ............... or, if there is more th an one such installment, by: LARGER INSTALLMENTS WILL BE DUE AS FOLLOWS: (The amount of every such installment and its due date shall be inserted).

6 The elements of fraud are se t forth in syllabus point 1 of Lengyel v. Lint , 167 W. Va. 272, 280 S.E.2d 66 (1981): The essential elements in an action for fraud are: “(1) that the act claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied u pon it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied upon it.” Horton v. Tyree , 104 W. Va. 238, 242, 139 S.E. 737 (1927).5 Holder. 7 Appraisals Unlimited, Inc. and Mr. Guida settled with Plaintiff prior to trial for $700,000. The only defendant to proceed to trial was Quicken.

The circuit court, Judge Arthur M. Recht presiding, conducted a six-day bench trial. In its February 25 , 2010, order, the court found in favor of Plaintiff on all of her claims except the claim for br each of the covenant of good faith and fair dealing. The court determined that the Note and Deed of Trust were unenforceable as a matter of law. The court did not order Plain tiff to repay the loan princi pal, and the court awarded $17,476.72 in restitution to Plaintiff.

A subsequent bench trial was conducte d on September 1, 2010, to decide awards of attorney fees and costs and punitive damages. In its February 17, 2011, order, the circuit court awarded $596,1 99.89 to Plaintiff in attorney fees and costs. The court also awarded $2,168,868.75 in punitive damages. The multiplier used by the circuit court in calculating the punitive damages award was 3.53. Quicken’s post-tr ial motion to offset the compensatory damages awar d against Plaintiff’s $700,000 pretrial settlement was denied by order entered May 2, 2011.

7 Quicken I , 230 W. Va. at 318 n.25, 737 S.E.2d at 652 n.25, explains that “John Doe Note Holder” refers to the party Plainti ff claimed was the holder of the loan. At the time the suit was filed, Plainti ff had not identified the party.6 Quicken appealed both the February 25, 2010, order and the February 17, 2011, order to this Court. In the opinion we issued, Quicken I , we determined that with regard to the fraud allegations, the circuit c ourt did not err in finding that Quicken had committed fraud by failing to disclose the am ount of the balloon payment in the loan agreement. We also determined that the circuit court did no t err in finding that Quicken had falsely promised to refinance Plaintiff’s lo an and that Plaintiff was justified in having relied on that promise. Furthermore, we agre ed with the circuit c ourt that Quicken had induced Plaintiff into entering into the loan through unconscionable conduct, that the loan agreement included unconscionab le terms, and that the lo an was itself unconscionable. We affirmed the circuit court on all of those points.

In addition to challenging the circ uit court’s fraud an d unconscionability findings, Quicken contested the circuit cour t’s use of attorney fees and costs in calculating punitive damages. We e xplained in syllabus point 11 in Quicken I , 230 W. Va. 306, 737 S.E.2d 640, that the attorney fees and costs, when awarded pursuant to the WVCCPA, are properly considered compensato ry damages for the purpose of calculating punitive damages. Thus, we c oncluded that because the atto rney fees and costs were properly awarded under the WVCCPA, the circu it court did not err by using attorney fees and costs to calculate th e punitive damages award.7 We determined that the circuit court lacked the authority to cancel the Plaintiff’s loan obligation. We also determined that the circ uit court failed to adequately support and justify its punitive damages awar d because it failed to analyze the award as required by Garnes , 186 W. Va. 656, 413 S.E.2d 897 . Additionally, we concluded that the circuit court erred by failing to offset the compensatory da mages award by the $700,000 pretrial settlement amount. We revers ed on these points, remanding the case to the circuit court.

After we filed Quicken I , we issued the following mandate on December 24, 2012: Pursuant to Revised R.A.P. 26, the opinion previously issued in the above-captioned cas e is now final and is hereby certified to the Circuit Court of Ohio County and to the parties. The decision of the circuit court is hereby affirmed, in part; reversed, in part; and rema nded with directions, and it is hereby ordered that the parties shall each bear their own costs. The Clerk is directed to remove this action from the docket of this Court.

The parties submitted briefs to the ci rcuit court regarding their positions on the matters remanded. The circu it court, Judge David J. Sims presiding, held a hearing on April 9, 2013, to discuss the proper proced ure moving forward. The court addressed the parties during the hearing as follows:8 [A]s you all know, I had written a letter to the Supreme Court and suggested that Judge Recht 8 ought to continue on this case since he heard all of the evidence. The Chief Justice sent me a letter and said that, no, I should handle the matter on remand, which -- um -- I’m not sure exactly what it is th e Court expects me to do. 9 So, I’m going to ask you all what you all expect me to do. Um -- one is -- um I don’t know if the Court expects me to make a determination as to what Judge Recht’s analysis and findings were, or if the Court expects me to make a determination independently by reviewing the transcripts and the exhibits submitted. If I’m expected to do it inde pendently, then the next question is, can I review the ev idence and find that punitive damages are or are not justified in this case? And if I do find that they’re justified, do I have to award the same amount that Judge Recht did, or am I free to award a lesser or greater amount? (Footnotes added.) On the i ssue of punitive damages, coun sel for Plaintiff advised the court that he believed the circuit court had th e authority to increase the original damages award, but that he did not th ink the court had the authority to reduce the award. Counsel for Quicken answered affirma tively when asked by the cour t if he believed the court

8 See supra note 2.

9 The circuit court’s docket sheet indica tes that three letters passed between the circuit court and then-Chief Justice Benjamin. The docket sheet states that the first letter, dated March 12, 2012, was sent from Judge Sims to Chief Justice Benjamin, requesting that Judge Recht be assigned to handle the matter on remand. According to the docket sheet, the second letter, dated March 28, 2012 , was sent from Chief Justice Benjamin to Judge Sims, stating that the matter should remain on Judge Sims’s docket. The docket sheet lists that the third letter, dated April 1, 2013, was sent from Judge Sims to Chief Justice Benjamin “seeking guidance from th e Supreme Court.” The docket sheet does not indicate that the circuit court received a respon se to the third letter, and none of the letters described above were includ ed in the appendix record submitted to this Court.9 should do an independent analysis of the reco rd to determine and set whatever award the court believed was appropriate.

The circuit court entered an Opinio n and Order on June 18, 2013. In a footnote in that order, the circuit court stated: This Court, as directed by the Supreme Court, obtained from counsel for the parties, copies of the complete transcripts of the trial and the December 1, 2009 hearing, along with the exhibits admitted into evidence at the trial. This Court has read the relevant trial transc ripts and admitted exhibits. As directed by the Supreme Court, 10 this Court is making an independent determination as to whether punitive damages were warranted by th e evidence presented at the trial of this matter, and, if warranted, th e amount of punitive damages. This Court is not bound by Ju dge Recht’s prior rulings on these issues. (Footnote added.) The order then proceeded by addressing the three issues presented on remand: Plaintiff’s obligations under the lo an, an analysis of punitive damages, and offset.

The circuit court determined that it had the authority to refu se to enforce the Note and Deed of Trust, findi ng that Plaintiff had no lega l obligation to repay the Note and that the Deed of Trust should remain a valid lien on the pr operty. Under this arrangement, Quicken would receive the net proceeds from the eventual sale of the

10 See supra note 9.10 property, should the property ever be sold , up to the principal amount of the loan, $144,800, assuming the property so ld for that amount or more.

The circuit court recalculated the am ount of compensatory damages to which Plaintiff was entitled. It concluded that sh e should receive $116,276.72, “being the total of the restitution award previously made in the amount of $17, 476.72, and being the difference between the original loan amount ($144,800.00) and the legitimate appraised value of the home ($46,000.00) in the amo unt of $98,800.” The court further awarded Plaintiff attorney fees and co sts in the amount of $875,233.44, incr easing Judge Recht’s previous award of $596,199 .89 by $279,033.55. The cour t increased the award to compensate Plaintiff for attorney fees and costs expended during the Quicken I appeal and the post-appellate proceedings. The court concluded that Quicken was not entitled to have the amount of attorney fees and cost s awarded offset by the $700,000 pretrial settlement; however, it did order that the co mpensatory damages aw arded, $1 16,276.72, be offset by the pretrial settlement.

Finally, the circuit court conducted a Garnes analysis and determined that punitive damages were warranted. Using the new compensatory damages amount plus the revised attorney fees and costs amount, the cour t applied the same 3.53 multiplier used in the first proceedings before th e circuit court to award $3,5 00,000.00 in puni tive damages11 to Plaintiff. The new punitive damages amount is an increase of $1,331,131.25 from the original amount, $2,168,868.7 5, ordered by Judge Recht.

Quicken now appeals the circuit court’s June 18, 2013, order to this Court.

II. STANDARD OF REVIEW Quicken asserts eleven assignments of error in this appeal. Because of the complexity of the issues in this case, and because there are multiple standards of review that apply to those issues, we will discu ss each of the appropriate standards in conjunction with our analysis of the individual issues.

III. ANALYSIS Before examining the assignments of error, we find it prudent to first discuss the law of the case doctrine, the ma ndate rule, and the effect of our remand following Quicken I . In State ex rel. Frazier & Oxley, L.C. v. Cummings , we said: The law of the case doctrin e “generally prohibits reconsideration of issues which have been decided in a prior appeal in the same case, provided that there has been no material changes in the facts since the prior appeal, such issues may not be relitigated in the trial court or re-examined in a second appeal.” 214 W. Va. 802, 808, 59 1 S.E.2d 728, 734 (2003) (quoting 5 Am. Jur. 2d Appellate

Review § 605 (1995)). In situations like this one where a case has been remanded to the12 trial court following an appeal, the mandate rule is implicated. Id. Under the mandate rule, [a] circuit court has no power, in a cause decided by the Appellate Court, to re-hear it as to any matter so decided, and, though it must interpret the decree or mandate of the Appellate Court, in entering orde rs and decrees to carry it into effect, any decree it may enter that is inconsistent with the mandate is erroneous and will be reversed. Syl. pt. 1, Johnson v. Gould , 62 W. Va. 599, 59 S.E. 611 (1907) (quoted in Frazier & Oxley , 214 W. Va. at 808, 591 S.E.2d at 734 ). In other words, “when this Court’s decision of a matter results in the case being remanded to th e circuit court for additional proceedings, our mandate controls the framewo rk that the circuit court must use in effecting the remand.” Frazier & Oxley , 214 W. Va. at 809, 59 1 S.E.2d at 735. “This ‘mandate rule’ is the specific applica tion of the law of the case doctrine.” Jones v. Lewis , 957 F.2d 260, 262 (6 th Cir. 1992) (citing Piambino v. Bailey , 757 F.2d 1112, 1120 (11th Cir. 1985)); Hawkes v. IRS , 507 F.2d 481, 482 (6th Cir. 1974) (“In deciding whether the District Court properly followed our direct ions on remand, we consider whether it properly interpreted our mandate . . . .”).

In determining the Court’s instruction for purposes of the mandate rule, the Court’s mandate must “be read and construe d together with the opinion or memorandum decision in the case.” W. Va. R. App. P. 26(b); see also 5 Am. Jur. 2d Appellate Review § 731 (2014) (“In construing a mandate, an a ppellate court considers the opinion the13 mandate purports to enforce.”). We held in syllabus point 3 of Frazier & Oxley , 214 W. Va. 802, 591 S.E.2d 728, that [u]pon remand of a case for further proceedings after a decision by this Court, the ci rcuit court must proceed in accordance with the mandate a nd the law of the case as established on appeal. The trial court must implement both the letter and the spirit of the ma ndate, taking into account the appellate court’s opinion and the circumstances it embraces.

Appellate remands are either “general ” or “limited.” “A general remand broadly remands the case and ‘when a cause is broadly remanded for a new trial all of the issues are opened anew as if there had been no trial, and the parties have a right to amend their pleadings as necessary.’” Id. at 809, 591 S.E. 2d at 735 (quoting Overton Constr. Co. v. First State Bank , 688 S.W.2d 268, 269 (Ark. 1985)); see also 5 Am. Jur. 2d Appellate

Review § 735 (2014) (“[W]here the appellate court remands for further proceedings without limiting what the proceed ings were to be, the trial court on remand has the right to consider and rule on th e entire case on remand.”). A limited remand “‘prohibit[s] relitigation of some issues on remand, or direct [s] that only some expressly severed issues or causes may still be litigated.’” Frazier & Oxley , 214 W. Va. at 809, 591 S.E.2d at 735 (quoting Cherokee Water Co. v. Ross , 698 S.W.2d 363, 366 (Tex. 1985)). “Under a limited remand, the court on remand is precl uded from considering ot her issues, or new matters, affecting the cause.” Id. (internal quotation omitted); see also 5 Am. Jur. 2d Appellate Review § 736 (2014) (“Where a remand limits the issues for determination, the court on remand is precluded fro m considering other issues, or new matters, affecting the14 cause.” (Footnote omitted.)). “[ W]hen the further proceedings are specified in the mandate, the district court is limited to holding such as are directed.” Hicks v. Gates Rubber Co. , 928 F.2d 966, 971 (10th Cir. 1991) (quoting 1B J. Moore, J. Lucas, T. Currier, Moore’s Federal Practice ¶ 0.404[10] (1998)); see also 5 Am. Jur. Appellate

Review § 736 (2014) (“When a case is remanded for a specific act, the entire case is not reopened, but rather the lower tribunal is only authorized to carry out the appellate court’s mandate, and the trial court may be powerless to undertake any proceedings beyond those specified.” (Footnote omitted.)). Thus, when the Cour t orders a limited remand, “the lower court cannot reopen the case on the facts, allow the filing of amended or supplemental pleadings, nor retry the ca se, and if it should do so, the judgment rendered thereon would be void.” 5 Am. Jur. Appellate Review § 736 (2014).

In Quicken I , we affirmed, in part; reversed , in part; and remanded the case with directions. Our remand limit ed the issues for determina tion; we directed that the circuit court return the parties to the status quo as nearly as possible with regard to the cancellation of the loan principal, that th e court conduct a proper analysis under Garnes , and that the court offset the compensatory damages award against Plaintiff’s pretrial settlement with Quicken’s codefendants. We did not remand the case for a new trial. Having examined our mandate and every part of our opinion in Quicken I , we determine that the remand was a limited remand.15 Because the assignments of error can be allocated to one of the three issues—the parties’ obligations under the loan, awards, and offset—we will proceed by analyzing the issues raised by Quicken within each of those three categories.

A. Obligations Under the Loan

In Quicken I , Quicken challenged the circu it court’s authority to cancel Plaintiff’s obligation to repay the $144,800 loan principal. Quicken I , 230 W. Va. at 325, 737 S.E.2d at 659. We agreed with Quicken that the circuit court did not have the authority to cancel the loan ob ligation, concluding “that altho ugh the circuit court had the authority to refuse to enfor ce the Note and Deed of Trust in this case pursuant to the provisions of West Virg inia Code § 46A-2-121, 11 the clear language of the statute simply

11 W. Va. Code § 46A- 2-121 (1996) states: (1) With respect to a transac tion which is or gives rise to a consumer credit sale, consum er lease or consumer loan, if the court as a matter of law finds: (a) The agreement or transaction to have been unconscionable at the time it was made, or to have been induced by unconscionable condu ct, the court may refuse to enforce the agreement, or (b) Any term or part of the agreement or transaction to have been unconscionable at the time it was made, the court may refuse to enforce the ag reement, or may enforce the remainder of the agreement with out the unconscionable term or part, or may so limit the a pplication of a ny unconscionable term or part as to avoi d any unconscionable result. (2) If it is claimed or appears to the court that the agreement or transaction or any term or part thereof may be (continued . . .)16 does not allow the court to cancel Plaintiff’s debt obligation.” Id. at 327, 737 S.E.2d at 661 (footnote added). We instructed: “[A] balancing of the equities requires that the parties be returned to the status quo as nearly as is possible.” Id. at 328, 737 S.E.2d at
662.

Following remand, the circuit court stated in its June 18, 2013, order that, in light of this Co urt’s conclusion in Quicken I , it “must now fashion a proper and lawful remedy to address the conclusive findings that the loan terms and the loan product in question were unconscionable and in violation of West Virgin ia law.” The court explored the positions of the parties, noting that Plai ntiff recommended that the court “reform the Note and Deed of Trust to prov ide for no interest or fees of any kind and further reform the loan to amortize fully ov er 40 years leaving no ballo on payment.” Quicken suggested that the court “simply restore the parties to their original positions in this matter and to erase the transaction altogether[,] . . . order[ing] the Plaintiffs to use their recovery in this matter to rid themselves of th e Note obligation.” The circuit court rejected both courses of action, finding that “Plainti ffs are entitled to some form of meaningful relief other than

unconscionable, the parties sh all be afforded a reasonable opportunity to present evidence as to its setting, purpose and effect to aid the court in making the determination. (3) For the purpose of this section, a charge or practice expressly permitted by this chapter is not unconscionable.17 the status quo” because “Qui cken Loans has conclusively engaged in unlawful and egregious conduct in th e matter.” The circuit c ourt ordered as follows: Having rejected both the Plaintiffs’ and Quicken Loans’ proposed remedies, this [c]ourt adopts a portion of the ruling of the Supreme Court in [ Quicken I ] holding that this [c]ourt has the authority to re fuse to enforce the Note and Deed of Trust in the case pursu ant to the provisions of West Virginia Code §46A-2-121(1)(a). Id. at 166. The Plaintiffs shall have no further legal ob ligation to repay to Quicken Loans the Note execu ted by the Plaintiffs, and Quicken Loans shall have no further legal rights under the terms of said Note and Deed of Trust. The Deed of Trust executed by the Plaintiffs shall remain a valid lien on the Plaintiffs’ real property. In the event of the sale of Plaintiffs’ real property by Plaintiffs, or their heirs, su ccessors or assigns, said sale must be a valid, open market, arms-length transaction with the selling price being at or near fair market value at the time of the sale. At the time of th e closing of the sale, Quicken Loans will be entitled to receiv e all of the net proceeds from the sale up to the principal amount of the loan made to Plaintiffs ($144,800.00). At said closing, and upon receipt of the net proceeds, Quicken Loans sh all deliver to Plaintiffs, or their heirs, successors or assigns , a full and final release of the said Deed of Trust and shall di scharge the Note as fully paid and satisfied. (Footnote omitted.)

Quicken asserts that the circuit court failed to comply w ith this Court’s direction in Quicken I by effectively cancelling Plaintiff’s obligation to repay the loan principal. Quicken claims that the circuit court’s “unique ‘lien’ can be rendered worthless at the whim of Plaintiffs, who need never sell the property and may apparently freely pass it to their ‘heirs’ or ‘assigns’ without satisfy ing the phantom lien.” Quicken submits that18 the court’s approach does not co mply with this Court’s inst ruction that both parties be returned to the status quo as nearly as is possible.

Plaintiff takes a contrary stance, ar guing that the circuit court did not exceed its authority on remand. Specifically, Plaintiff claims that in its appeal, Quicken has seized upon a single phrase from Quicken I —“a balancing of th e equities requires that the parties be returned to the status quo as nearly as is possible”—for the proposition that Plaintiff “must return th e loan principal to Quicken as a condition precedent to any remedy against the loan obligation regard less of the legal th eory upon which the Plaintiff[] prevailed.” Plaintiff further alleges that the lien created by the court operates in the same manner as any other lien and that upon transfer of the property, Plaintiff will be required to satisfy the lien in the manner described by the court. Finally, Plaintiff argues that the court’s remedy balances the Legisl ature’s intent not to enforce unconscionable consumer agreements with the pref erence given to secured loans.

This issue implicates the law of the case doctrine and the mandate rule, and it requires that the Court determine whethe r the circuit court complied with the Quicken I mandate. Our standard for reviewing a circuit court’s interpretation of a mandate is set forth in syllabus point 4 of Frazier & Oxley , 214 W. Va. 802, 591 S. E.2d 728: “A circuit court’s interpretation of a mandate of this Court and whether the circuit court complied19 with such mandate are questions of law that are reviewed de novo .” Thus, we will proceed by applying a de novo standard of review.

Upon our de novo review, we reject Plain tiff’s position and agree with Quicken: The circuit court did not comply with this Court’s mandate with regard to the parties’ obligations under the loan. We expressly stated in Quicken I that “a balancing of the equities requires that the parties be returned to the status quo as nearly as is possible.” 230 W. Va. at 328, 737 S.E. 2d at 662. The circuit cour t disregarded that command in fashioning its remedy, st ating that “Plaintiffs are entitled to some form of meaningful relief other than the status quo.”

The remedy the circuit court fashioned— refusing to enfor ce the Note while preserving the Deed of Trust as a valid lien on the property —does not act to return the parties as near as possible to the status qu o. There are courses of action the property owner (or her heirs or assigns) could take that , pursuant to the circuit court’s order, would result in the effective cancellation of at leas t part of Plaintiff’s obligation on the loan.

Under the circuit court’s order, Quicken is entitled to the net proceeds, up to the value of the $144,800 loan principal, after the property is so ld. Upon finalization of the sale, the circuit court order decrees that Quicken must deliver to the seller a full and final release of the Deed of Trust. The circuit court’s order does not provide for20 circumstances in which the sale of the pr operty produces less than $144,800. In Quicken

I , we noted that “true fair market value of the subject property was actually $46,000.” Id. at 314, 737 S.E.2d at 648. The net procee ds from the sale of the property would be unlikely to total even half of the amount of th e loan principal, yet the circuit court’s order states that the Deed of Trust will be rele ased upon sale, thus effectively cancelling repayment of the loan principa l in the amount of the differ ence between $1 44,800 and the net proceeds from the sale. If the property were never sold, the result would be the effective cancellation of the entir ety of the loan principal. In sum, the circuit court’s order did not return the parties to the st atus quo as nearly as possible.

As we made clear in Quicken I , cancellation of the debt is not a permissible remedy in this case. See id. at 325, 737 S.E.2d at 659. Thus, the circuit court’s remedy, which effectively cancels at least some of th e debt, is in direct contravention of our mandate. The portion of the circuit court’s order creating a lien on the property must therefore be reversed.

Again, we emphasize that a balanci ng of the equities requires that the parties be returned to the status quo as nearly as possible. In providing that direction in Quicken I , we cited Go-Mart, Inc. v. Olson , 198 W. Va. 559, 482 S.E.2d 176 (1996). In
Go-Mart , the Court explored whether a seller’s lack of capacity to enter into contracts for the sale of certain real property made thos e contracts voidable. 1 98 W. Va. at 561, 48221 S.E.2d at 178. The Court affirmed the circui t court’s determination that the agreements were voidable. Id. at 563, 482 S.E.2d at 180. Concluding that a balancing of the equities required that the parties be returned to the status quo as nearly as possible, the Court approved the circuit court’s order that the se ller return the purchase price paid under the

contracts. Id. We believe that Go-Mart is an appropriate model for balancing the equities in the case sub judice

.

We do not find error in the circuit cour t’s decision to refuse to enforce the Note and Deed of Trust in th is case pursuant to W. Va. Co de § 46A-2-121; we expressly stated in Quicken I that the court has that authority. 230 W. Va. at 327, 737 S.E.2d at 661. However, the parties must be retu rned to the status quo as nearly as possible. By refusing to enforce the Note an d Deed of Trust while simultaneousl y requiring that Plaintiff return the principal on the loan by subtracting the amount of the loan principal from the damages awarded to her, we conclude that th e parties would be returned, as nearly as possible, to the status quo. Upon remand, the circuit court is direct ed to order that the loan principal be returned to Quicken by de ducting the amount of the loan principal from the Plaintiff’s recovery.

B. Awards 1. Restitution22 During the post-appellate proceedings , the circuit court awarded an additional $98,800 in compensa tory damages to Plaintiff pur suant to W. Va. Code § 31- 17-17(c) (2000). 12 The circuit court stated that this amount is “the difference between the original loan amount ($144,800.00) and th e legitimate appraised value of the home ($46,000.00)” and that the amount was to be awarded “in lieu of lo an cancellation.” The Court included the $98,800 in the amount s ubject to offset by the pretrial settlement amount, and the added award was used to calculate the new punitive damages award following remand. 13

Quicken argues that the circuit cour t’s award of $98,800 in additional compensatory damages has no legal basis; that the award was improper because compensatory damages, which we re not at issue on appeal, were not a proper subject for remand; and that the award wa s not “compensatory,” acting instead as another punitive forfeiture. On the other ha nd, Plaintiff represents: With respect to the cash award of $98,800, Quicken has never appealed the circuit court’s general liability findings under W. Va. Code § 31-17-8(m)(8). Quicken did, however, appeal the remedy of lo an cancellation. This Court found that the statute does inde ed permit loan cancellation for

12 W. Va. Code § 31-17-17(c) states, “Any re sidential mortgage loan transaction in violation of this article shall be subject to an action, which may be brought in a circuit court having jurisdiction, by the borrower seeking damages, reasonable attorneys fees and costs.”

13 See infra Part III.C.23 willful violations, bu t concluded that the circuit court found only a negligent violation of this particular statute and committed error by cancelling the loan. As a lesser but included alternative, the circu it court had the authority on remand to award damages for “n egligent” violations under § 31-17-17(c) in lieu of loan cancellation under § 31-17-17(a). 14 (Footnote added.)

Whether the circuit court erred by awarding the $98,800 in additional compensatory damages on remand requires this Court to analyze the circuit court’s interpretation and applica tion of our mandate in Quicken I . In accord with syllabus point 4 of Frazier & Oxley , we review a circuit court’s inte rpretation of and compliance with a mandate de novo . 214 W. Va. 802, 591 S.E.2d 728. As we recognized supra , our remand in this case was limited; our mandate expressl y delineated the matters to be addressed on remand.

Having carefully reviewed our mandate and Quicken I , we agree with Quicken, and we conclude that the circuit court erred by awarding the additional $98,800 in compensatory damages. Firs t, the mandate did not remand the case for a determination of whether Plaintiff was entitled to additi onal compensatory damages flowing from W.

14 W. Va. Code § 31-17-17(a) (2000) stat es, “If any primary or subordinate mortgage loan is made in willf ul violation of the provisions of this article, except as a result of a bona fide error, such loan may be cancelled by a court of competent jurisdiction.”24 Va. Code § 31-17-17(c). We said in Fraizer & Oxley that “[u]nder a limited remand, the court on remand is precluded fro m considering other issues, or new matters, affecting the cause.” 214 W. Va. at 809, 59 1 S.E.2d at 735 (internal q uotation omitted). Consideration of W. Va. Code § 31-17-17(c) was outside the scope of the limited remand. Second, as we concluded in Quicken I and supra Part III.A., with regard to the loan principal and the Note and Deed of Trust, a bala ncing of the equities requires th at the parties be returned to the status quo as nearly as possible. Our mandate did not empower the circuit court to fashion a remedy that did not fully comply with this direction. For these reasons, the circuit court erred by awarding $98,800 to Plaintiff as “som e form of meaningful relief other than the status quo.” We therefore reduce the compensatory damages award to represent the amount originally awarded by the circuit court’s February 25, 2010, order: $17,476.72.

2. Attorney Fees and Costs In its February 17, 2011 , order, the circuit court awarded attorney fees totaling $495,956.25 and costs totaling $100,243.25. These fees and costs were not challenged in Quicken I . Following remand, the circuit cour t, in its June 18, 2013, order, awarded an additional $275,9 75.00 in attorney fees and $3,058.55 in costs for work performed by Plainti ff’s counsel on the Quicken I appeal and for the proceedings before the circuit court on remand.25 Quicken asserts that by awarding fees and costs for work completed with regard to the Quicken I appeal, the circuit court ignored this Court’s December 24, 2012, mandate explicitly directing that “the parties shall bear their own costs.” Quicken further argues that attorney fees and costs should not have been awarded for the appellate proceedings or the proceedings on remand becau se Plaintiff did not substantially prevail. Quicken also asserts that the award constituted an abuse of discretion because much of the time claimed was in pursuit of punitiv e damages for common- law fraud and because the hourly rates accepted by the cour t were unreasonable and excessive.

Plaintiff argues that the mandate rest ricted the circuit court’s ability to award costs and that the mandate did not prohibit the award of attorney fees. Additionally, Plaintiff contends that she su bstantially prevailed in the litigation as a whole. Plaintiff asserts that the billing r ecords she submitted to the circuit court on remand were reasonable and that the circuit c ourt correctly awarded a fee that covered all of her claims rather than car efully examining hours expended on a claim-by-claim basis.

Awards of attorney fees a nd costs are reviewed by this Court for an abuse of discretion. We have said: Our review of the issue of a trial court’s award of attorney’s fees is to dete rmine whether the lower court committed error in maki ng the 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 wi de discretion in determining the amount of . . . court costs and counsel fees; and the trial26 [court’s] . . . determ ination 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.

Heldreth v. Rahimian , 219 W. Va. 462, 466, 63 7 S.E.2d 359, 363 (2006); see also Chevy Chase Bank v. McCamant , 204 W. Va. 295, 303, 512 S. E.2d 217, 225 (1998) (“In reviewing the ruling of the circuit court with respect to costs and attorney fees, ‘the standard is whether such ru ling by the trial court constitute s an abuse of discretion.’ Hopkins v. Yarbrough , 168 W.Va. 480, 489, 284 S. E.2d 907, 912 (1981).”).

In this appeal, the attorn ey fees and costs awarded in the circuit court’s February 17, 2011, order are not at issue; Qu icken did not challenge that award on appeal
in Quicken I and does not attempt to challenge that award now. Our focus is only on the attorney fees and costs awarded for the wo rk completed on appeal to this Court in Quicken I and for the post-appellate proceeding. We continue by considering each proceeding individually, reviewing the award of attorney fees for an abuse of discretion.

a. First Appellate Proceeding In her brief to this Court in Quicken I , Plaintiff asserted that she “should be awarded attorney fees for defending th is appeal.” Followi ng our decision in Quicken I , our December 24, 2012, mandate stated “that the parties shall each bear their own27 costs.” 15 The parties dispute whether “costs” includ e attorney fees. Rule 24 of the West Virginia Rules of Appellate Procedure di ctates when costs may be awarded for proceedings before this Court, and the rule directs the Clerk to insert the Court’s order regarding costs in the mandate. Rule 24, titled “Costs,” states, in full: (a) To whom allowed. Ex cept as otherwise provided by law, if an appeal is dismisse d, costs shall be taxed against the petitioner unless otherwise agreed by the parties or ordered by the Court; if a judgmen t is affirmed, costs shall be taxed against the petitioner unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the respondent unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the Court. (b) Costs for or against the state. In cases involving the State of West Virginia or an agency or offi cer thereof, if an award of costs against the St ate is authorized by law, costs shall be awarded in accordance with the provisions of subdivision (a); otherwise, costs shall not be awarded for or against the State. (c) Taxable costs. Costs of assembling and filing the appendix are taxable as costs in the discretion of the Court and may be divided among the parties to the appeal. Other taxable costs include costs for the preparation and handling of the designated record. Attorney ’s fees and costs are not taxable unless specifically provided by law. (d) Costs in disciplinary ac tions. If the Court directs that costs be paid in connectio n with a lawyer or judicial disciplinary action, disciplinary counsel shall, within twenty days of entry of the applicab le order, memorandum decision, or opinion, provide the Court and the respondent in the

15 W. Va. Code § 59-2-11 (1923) (in part ) requires that “in every case in an appellate court costs shall be recovered in such court by the party substantially prevailing.” In that we did not award costs to either pa rty, neither party substantially prevailed on appeal.28 disciplinary action with a certifie d statement of the costs as specified by the Court. (e) Clerk to insert costs in mandate. The Clerk shall prepare and certify an itemized st atement of costs taxed in the Supreme Court for insertion in the mandate. If the mandate has been issued before final determination of costs, the statement, or any amendment thereof, may be added to such order at any time upon request of the Clerk. (f) Costs on appeal taxable in the circuit courts. Costs incurred in the preparation and transmission of the record, the cost of the reporter’s tran script, if necessary for the determination of the appeal, an d the premiums paid for cost of appeal bonds or other bond s to preserve rights pending appeal, shall be taxed in the circuit court as costs of the appeal in favor of the party en titled to costs under this rule.

According to Plaintiff, Ru le 24 “makes it abundantly clear that the ‘costs’ include only the costs of preparing, a ssembling and filing the appendix . . . and do not include attorney fees.” We disagree. In our reading of Rule 24, al though we can find no language that specifically excl udes attorney fees from being considered costs, we also find no language specifically st ating that attorney fees ma y be considered costs. We therefore look to our own jurisprudence.

This is not the first instance in which we have spoken of “c osts” in terms of Rule 24. In Hechler v. Casey , 175 W. Va. 434, 333 S.E. 2d 799 (1985), we examined whether attorney fees could be awarded under Rule 24 for work done by th e Office of the Attorney General in representin g the Secretary of State in a prohibition proceeding before29 the Court. We recogn ized that Rule 24(b) 16 “expressly precludes an award of costs for the benefit of the State or an ag ency or officer th ereof in a case before this Court.” Hechler , 175 W. Va. at 449, 333 S.E.2d at 814–15. The Court determined that a statute authorizing a prevailing party to recover attorn ey fees, if that party is the State or an agency or officer thereof, is not enforceable becau se it conflicts with Rule 24. Id. , 333 S.E.2d at 815; see also W. Va. Code § 51-1-4a(d) (1 945) (in part) (“The inherent rule-making power of the Supreme Court of Appeals is hereby declared. When and as the rules of the court herein authorized shall be prescribed, adopted, and pr omulgated, all laws a nd parts of laws that conflict therewith shall be and become of no fu rther force or effect to the extent of such conflict.”). In so finding, the Court implicit ly acknowledged that attorney fees may be costs under Rule 24.

We then went on in Hechler to state that, except wh en the losing party has acted in “bad faith, vexatiously, wa ntonly, or for oppressive reasons,” Id. at 450, 333 S.E.2d at 815, “no party may recover attorney fees beyond the statutory amount as part of the ‘costs’ of a proceeding.” Id. at 449, 333 S.E.2d at 815; see Shafer v. Kings Tire Serv.,

Inc. , 215 W. Va. 169, 173, 597 S.E.2d 302, 306 (2004) (“While the term ‘costs’ usually does not include attorney’s fees, Nelson v. West Virginia Public Employees Insurance

16 When Hechler was decided, the language that currently appears in Rule 24 was embodied in Rule 23. The rules were later amended, and Rule 23 was renumbered as Rule 24.30 Board , 171 W.Va. 445, 451, 300 S.E. 2d 86, 92 (1982), if an applicable statute defines costs to include attorney’s fees, then attorney’s fees may be recovered as costs. See generally 20 Am.Jur.2d Costs § 57 (1995).”). We now hold that “costs” within the meaning of Rule 24 of the We st Virginia Rules of Appellate Procedure include attorney fees when “costs” are defined as including attorney fees in any statute applicable to the case that allows for the recovery of the costs of a proceeding.

With regard to attorney fees, we have held that “‘[a]s a general rule each litigant bears his or her own attorney’s fees ab sent a contrary rule of court or express statutory or contractual authority for reimbursement.’ Syl. Pt. 2, Sally–Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 2 46 (1986).” Syl. pt. 2, State ex rel. Hicks v. Bailey , 227 W. Va. 448, 711 S.E.2d 270 (2011). In the instant case, W. Va. Code § 46A-5-104 (1994) provides a statutory basi s for the recovery of attorney fees. W. Va. Code § 46A-5- 104 states, with emphasis added: In any claim brought under this chapter applying to illegal, fraudulent or unco nscionable conduct or any prohibited debt collection practice, the court may award all or a portion of the costs of l itigation, including reasonable attorney fees, court costs and fees, to the consumer . On a finding by the court that a cl aim brought under this chapter applying to illegal, fraudulent or unconscionable conduct or any prohibited debt collection practice was brought in bad faith and for the purposes of ha rassment, the court may award to the defendant reason able attorney fees. This statute defines “costs” as including “attorn ey fees.” In other words, in cases brought pursuant to the WVCCPA for illegal, fraudulen t, or unconscionable conduct, or any31 prohibited debt collection practice, under W. Va. Code § 46A-5-104, attorney fees are a type of cost. Because “costs” include atto rney fees under W. Va. Code § 46A-5-104, attorney fees are recoverable as costs under Ru le 24. Therefore, the term “costs” in our mandate in Quicken I encompasses attorney fees.

Rule 24 gives this Court th e authority to tax costs, and the clear language of Rule 24(c) describes costs that are taxable by this Court. Rule 24(c) specifically mentions attorney fees and costs, stating that they ar e taxable only when provided by law. The rule does not speak to a trial court’s authority to award attorney fees for appellate proceedings; however, based on the langua ge of the rule and cases from other jurisdictions, we conclude that any such aut hority exists only at the direction of this
Court. See, e.g. , Deep Water Brewing, LLC v. Fairway Res., Ltd. , 282 P.3d 146, 150 (Wash. Ct. App. 2012) (“In light of the fact that trial courts have discretion to set the amount of attorney fees, we conclude . . . that the trial courts retain that discretion on remand unless expressly limited by the appellate courts or the exercise of discretion would be inconsistent with the rulin g on appeal.” (Footnote omitted.)); Avemco Ins. Co. v. Tobin , 886 So. 2d 1034, 1036 (Fla. Dist. Ct. A pp. 2004) (“With respect to the award of attorney’s fees on appeal, in de termining an award the trial c ourt is bound by the terms of the order of our court. It is simply carryi ng out the intent of the appellate court.”); Kadish v. Ariz. State Land Dep’t , 868 P.2d 335, 341 (Ariz. Ct. App. 1993) (“The [appellate] court rendered no decision regarding fees that could have cons tituted the law of the case32 in further proceedings. Thus, up on remand the trial court was free to entertain appellants’ attorney’s fees applicatio n and was not barred from awarding such fees.”); MST Farms v. C.G. 1464 , 251 Cal. Rptr. 72, 74 (C al. Ct. App. 1988) (finding that the trial court has jurisdiction to award atto rney fees as costs when a statute provides that attorney fees are recoverable as costs and the appellate court di rects that the parties be awarded costs).

While this Court holds th e authority under Rule 24 to order an award of attorney fees as costs for appellate pro ceedings and the necessarily corresponding authority to set that award, we recognize that trial courts, as courts of record, may be best situated to determine the re asonable amount to award. See Rosehill Gardens, Inc. v. Luttrell , 67 S.W.3d 641, 648 (Mo. Ct. App. 2002) (“[A]lthough appellate courts have the authority to allow and fix the am ount of attorney’s fees on ap peal, we exercise this power with caution, believing in most cases that the trial court is better equipped to hear evidence and argument on this issue and determine th e reasonableness of the fee requested.”); McManama v. Lukhard , 616 F.2d 727, 730 (4th Cir. 1980) (“We remand the case, however, for an assessment of additiona l attorneys’ fees against the appealing defendant to compensate the pl aintiffs for the expense of th eir successful defense of his appeal.”); Ind. Hosp. Licensing Council v. Wo men’s Pavilion of S. Bend, Inc. , 424 N.E.2d 461, 463 (Ind. Ct. App. 1981) (“[W]e find appellate courts ro utinely . . . either order an award for a specified amount or remand the cause after affirmance solely for a determination of the amount of appellate fees.”). In the pa st, when this Court has found33 that attorney fees and costs for appellate proceedings should be awarded, the Court has remanded cases to allow a trial court to determ ine the proper amount of attorney fees to be awarded. See, e.g. , Michael C. v. Teressa D. , No. 13-1077, 2014 WL 4930191, at *6 (W. Va. Oct. 2, 2014) (“Under these circumstan ces, there is authority in equity to award the paternal grandparents their attorney’s fees and costs. Thus, the issue of reasonableness of any attorney’s fees is remanded to the circuit court for its determination.”); Fauble v. Nationwide Mut. Fire Ins. Co. , 222 W. Va. 365, 368, 664 S.E.2d 706, 709 (2008) (“Therefore, the December 5, 2006, order of the Circuit Court is reversed, and this matter is remanded to that Court for a determina tion of the amount of reasonable attorney fees to which the Fa ubles are entitled upon their petition against Nationwide, including an amount of reasonable attorney fees and costs incurred in appealing the December 5, 2006 , order to this Court.”); Martinka Coal Co. v. W. Va. Div. of Envtl. Prot. , 214 W. Va. 467, 471, 590 S.E.2d 660, 664 (200 3) (“Accordingly, the September 27, 2002, final order of the Circu it Court of Marion County is reversed. The case is remanded for determination of eligibil ity and, as appropriate, award of reasonable attorneys’ fees, including attorneys’ fees attendant to this appeal.”).

Based on the foregoing, we now hold that pursuant to Rule 24 of the West Virginia Rules of Appellate Procedure, a ttorney fees and costs may be awarded for appellate proceedings by either this Court or by the trial court followi ng the direction of this Court. Although this C ourt has the authority to set th e amount of an attorney fee34 award, this Court may, in its discretion, in stead direct the trial court to determine the amount of the appropriate atto rney fee award on remand.

The mandate required the parties to “b ear their own costs.” Therefore, the circuit court abused its discretion by aw arding litigation costs for the appellate proceeding. 17 Additionally, because atto rney fees are costs in this case, an award of attorney fees for work conducted by Plaint iff’s counsel on appeal violates the mandate. O’Loughlin v. O’Loughlin , 479 S.E.2d 98, 98, 100 (Va. Ct. App. 1996) (holding that “absent an order from the Court of Appeals sp ecifically remanding th e issue of attorney’s fees incurred on appeal,” a tr ial court does not have jurisd iction to award such fees); see Powell v. Paine , 226 W. Va. 125, 129, 697 S.E.2d 161, 165 (2010) (con cluding that the circuit court acted within the scope of the ma ndate by refusing to award attorney fees and costs on a limited remand where the plaintiff had not requested attorney fees and costs in

17 The circuit court’s order does not delineat e what amount of its award of costs is attributable to the appeal and which is at tributable to the remand proceeding. However, the appendix record provided to this Court c ontains the itemized list of costs, which was furnished to the circuit court by Plaintiff’s counsel on remand. It appears that the circuit court relied on this itemized list of costs in setting the $3,058.55 awar d. The list includes costs accrued from April 11, 2011, through Ma y 23, 2013. A portion of the costs were necessarily incurred in association with the Quicken I appeal. For the reasons discussed infra Part III.B.2.b., it is unnecessary to remand the case for a determination of the exact amount of the award attributable to the appeal.35 the underlying proceeding). 18 Because this Court spoke to a ttorney fees a nd costs for the appellate proceeding in its mandate and deni ed the same, the circuit court’s award of attorney fees for work asso ciated with the appellate pr oceeding, despite the mandate, constituted an abuse of discreti on. We conclude that the circ uit court’s award of attorney fees and costs to Plaintiff associated with the appeal to this Court in Quicken I must be reversed.

b. Post-Appellate Proceeding As noted above, W. Va. Code § 46A- 5-104 allows a consumer to recover attorney fees in any action brought for illega l, fraudulent, or unconscionable conduct or any prohibited debt collection pr actice. We have said that wh ether attorney fees and costs should be awarded for proceedings before the circuit court is within the discretion of the circuit court. State ex rel. Ocwen Loan Se rvicing, LLC v. Webster , 232 W. Va. 341, 362, 752 S.E.2d 372, 393 (2013) (“[T]he WVCCPA merely grants the court discretion to award attorney’s fees, it does not mandate su ch an award. Furthermore, the court’s discretion in this regard extends to granting attorney’s fees to e ither a plaintiff or a defendant under the pr oper circumstances.”); see also Nelson v. W. Va. Pub. Emps. Ins.

18 The circuit court’s order does not delineat e what amount of its award of attorney fees is attributable to the appellate procee dings; however, timesheets contained within the appendix record indicate that the total attorney fees award in the June 18, 2013, order does, to some degree, includ e attorney fees for work completed on the appellate proceedings. For the reasons discussed infra Part III.B.2.b., it is unnecessary to remand the case for a determination of the exact amount of the award attributable to the appeal.36 Bd. , 171 W. Va. 445, 450, 300 S.E.2d 86, 91 (19 82) (“As a general rule awards of costs and attorney fees are not recoverable in the ab sence of a provision for their allowance in a statute or court rule.”). When this Court review s an award of attorney fees and costs, the award is reviewed for an abuse of discretion. Heldreth , 219 W. Va. at 466, 637 S.E.2d at 363; see also Chevy Chase Bank , 204 W. Va. at 303, 512 S.E.2d at 225.

Quicken contends that the circuit c ourt erred by awarding to Plaintiff attorney fees and costs for the proceeding on remand becau se “[a]ll of the litigation on remand concerned issues on wh ich Quicken was successful on appeal: punitive damages, cancellation of the loan, and offset.” (Em phasis omitted.) Quicken asserts that by awarding this set of attorney fees and costs to Plaintiff, th e circuit court has effectively punished it for taking a successful appeal. Plai ntiff disagrees with Quicken, arguing that the measure of success “is measured from the st andpoint of the litiga tion as a whole” and not by the Plaintiff’s individual claims. T hus, according to Plai ntiff, Quicken has not been punished by taking an appeal.

Our Court has never spoken to whethe r attorney fees are awardable for proceedings following remand; however, other jurisd ictions have addre ssed the issue. In those jurisdictions, the short answer to the que stion of whether attorney fees and costs are awardable following remand is: “It depends.”37 In American Rural Cellular, Inc. v. Systems Communication Corp. , 939 P.2d 185 (Utah Ct. App. 1997), an issue on appeal before the Court of Appeals of Utah was whether the trial court had properly awar ded attorney fees for the post-appellate proceeding. In that case, the plaintiff filed an action to terminate a contract between the parties and to void mechanics’ liens filed by the defendant. American Rural Cellular , 939 P.2d at 188. The defendant co unterclaimed, seeking foreclos ure on the mechanics’ liens and damages for breach of contract. Id. The trial court held, inter alia , that the defendant’s counterclaim was not barred by statute. Id. The plaintiff app ealed to the Utah Court of Appeals which reversed the trial co urt for failing “to make adequate findings to support its decision that [the defendant] was not barred from maintaining its action.” Id. at 188–89. The case was remanded fo r detailed findings on the issue. Id. at 89.

On remand, the trial court ag ain ruled for the defendant. Id. The trial court awarded attorney fees and costs for, amon g other things, the pr oceeding following remand. Id. Again, the plaintiff appealed to the Utah Court of Appeals. Id. With regard to the issue of attorney fees and costs, the Utah Court of App eals observed that Utah Code Ann. § 38-1-18 (1996) permits the recovery of a reasonable attorney fee by a successful party “[i]n any action brou ght to enforce any lien.” Id. at 193. The Utah Court of Appeals determined that the defendant’s counterclaim to foreclose its mechanics’ liens constituted “an action brought to enforce any lien” under the statute. Id. Accordingly, the Utah Court of Appeals concluded that the defendant, as th e successful party on the counterclaim to38 foreclose its mechanics’ liens, was entitled to recover attorney fees on remand “insofar as the attorney fees were incurre d in enforcing or defending the mechanics’ lien claims.” Id. However, the Utah Court of Appeals determ ined that the defend ant was “not entitled under section 38-1-18 to attorn ey fees incurred in pursuing its nonlien claims which were ‘completely separate’ from the lien claims.” Id. 19

Cases on point, like American Rural Cellular , establish that whether attorney fees are awardable for proceedings on remand depe nds on (1) the existence of authority permitting recovery of those fees and (2) the success—as required by the controlling statute—of the party seeking fees on claims for which attorney fees are permitted. Like the statute authorizing the rec overy of attorney fees for mechanics’ lien claims in American Rural Cellular , the controlling statute in the present case, W. Va. Code § 46A-5-104, allows a cons umer to recover reasonable attorney fees and costs for claims brought under the WVCCPA. On rema nd, the claims before the circuit court— Plaintiff’s claims involving punitive damage s, her obligations under the loan, and offset—were clear and distinct.

19 See also Bowen & Smoot v. Plumlee , 417 S.E.2d 855, 856 (S.C. 1992) (“[I]t is within the trial judge’s authority to de termine the appropriate amount and award attorney’s fees for services rendered as a result of this case being remanded.”).39 The issue of punitive damages does not relate to claims brought pursuant the WVCCPA. In this case, punitive damages are only available to Plaintiff because of her success on her common law fraud claim. 20 As was the case below, there is no authority for the award of a ttorney fees and costs for th e punitive damages claim. Thus, the circuit court abused its discretion by aw arding attorney fees and costs for the postappellate proceeding for work completed by Pl aintiff’s counsel on the issue of punitive damages.

The determination of Plaintiff’s obliga tions under the loan is connected to the WVCCPA in that Plaintiff argued th at the WVCCPA provided the basis for cancellation of the loan. Th e Court determined in Quicken I that the WVCCPA does not allow cancellation of the loan in this case. On remand, Plain tiff did not reassert a claim for cancellation of the loan. Instead, it reques ted a new, alternate remedy: an award of damages pursuant to W. Va. Code § 31-17-17(c). 21 First, because Plaintiff did not reargue on remand that she was entitled to canc ellation of the loan—i n other words, her

20 While WVCCPA does not provide a statutory basis for an award of punitive damages, punitive damages may be awarded pursuant to a common law fraud claim. See syl. pt. 4, Mayer v. Frobe , 40 W. Va. 246, 22 S.E. 58 (1895 ) (“In actions of tort, where gross fraud, malice, oppression, or wanton, willful, or reckless conduct or criminal indifference to civil obligations affecting the rights of others appear, or where legislative enactment authorizes it, the ju ry may assess exemplary, punitive, or vindictive damages; these terms being synonymous.”).

21 W. Va. Code § 31- 17-17(c) is quoted supra note 12.40 counsel did not complete any wo rk on that issue—Plaintiff is not entitled to attorney fees and costs attendant to the circuit court’s can cellation of the loan. S econd, while attorney fees and costs are authorized for actions brou ght pursuant to W. Va. Code § 31-17-17(c), Plaintiff’s claim for damages, attorney fees, and costs pursuant to this statutory section were outside of the Court’s limited remand. Thus, from the start, the W. Va. Code § 31- 17-17(c) claim could not be su stained. Although W. Va. Code § 31-17-17(c) does not dictate any level of success necessary for the consumer to recover a ttorney fees, we have held that “[w]here attorney’s fees are sought . . . , the test of what should be considered a reasonable fee . . . is generally based on broader factors such as: . . . (8) . . . the results obtained.” Syl. pt. 4, in part, Aetna Cas. & Sur. Co. , 176 W. Va. 190, 342 S.E.2d 156 (1986); see also Heldreth , 219 W. Va. at 467, 637 S.E.2d at 364 (“The calculation of attorney’s fees in a human ri ghts action requires, as this C ourt has previously recognized, the exclusion of hours spent on unsu ccessful claims.”); syl. pt. 5, State ex rel. W. Va. Highlands Conservancy, Inc. v. W. Va. Div. of Envtl. Prot. , 193 W. Va. 650, 458 S.E.2d 88 (1995) (“Apportionment of a ttorney’s fees is appropriat e where some of the claims and efforts of the claimant were unsuccessful. Where part of the atto rney’s fees sought was expended on discrete effo rts that achieved no appreciable advantag e in the litigation, or where the claim for attorney’s fees rests pa rtly on a result to wh ich the claimant made no significant contribution, a court may cons ider these circumstances and apportion the attorney’s fees accordingly.”); Daily Gazette Co. v. W. Va. Dev. Office , 206 W. Va. 51, 64, 521 S.E.2d 543, 556 (1999 ) (quoting syllabus point 5 of Highlands Conservancy ).41 Where counsel has devoted time and resources to an unwinnable claim, such as a claim outside the scope of this Court’s limited re mand, it is unreasonable and inequitable to award counsel attorney fees an d costs for that claim. Therefore, the circuit court abused its discretion by awarding atto rney fees and costs for work completed by Plaintiff’s counsel on the W. Va. Code § 31-17-17(c) claim.

Finally, we observe that th e issue of offset involves Plaintiff’s defense of the award of compensatory da mages she received pursuant to the WVCCPA. On remand, Plaintiff argued that only the compensato ry damages award, not the award of compensatory damages and attorney fees and costs, shou ld be subject to offset by the pretrial settlement amount. The circuit court agreed with Plaintiff. For the reasons given infra in Part III.C. of this Opinion, we disagree.

In American Rural Cellular , the Utah Court of Appeals awarded attorney fees for the post-appellate proceeding because its affirmation of the trial court’s rulings on appeal made the defendant “the successful party in its counterclaim.” 939 P.2d at 193. Conversely, here, Plaintiff has unsuccessfully defended her position pertaining to offset. Like with W. Va. Code § 31-17-17(c), W. Va. Code § 46A-5-104 does not describe the level of success necessary for the consumer to recover attorney fees and costs, but as above with regard to the issue of cancella tion of the loan, we find syllabus point 4 of Aetna Casualty & Surety Co. , 176 W. Va. 190, 342 S.E.2d 156 (stating that success is a42 factor used to determine the reasonableness of an attorney fees awar d), instructive. Where there has been no success, an award of attorney fees fo r work complete d on a losing claim would be unreasonable and inequitabl e. Therefore, because Plaintiff is the unsuccessful party regarding offset, she is not entitled to a post-appellate award of attorney fees and costs associ ated with that claim, and the circuit court abused its discretion by awarding the same.

Having determined that the circuit c ourt improperly awarded attorney fees and costs for the proceedings on remand beca use those fees and costs were either unauthorized by statute or becau se Plaintiff was unsuccessful on her claims, we need not address Quicken’s additional arguments cha llenging the propriety of the award of attorney fees and costs for the post-appellate proceeding. 22

22 Quicken submitted the following assignment of error on appeal to this Court: The Circuit Court’s award of attorneys’ fees was an abuse of discretion because it accepted without question or scrutiny time records that were vague, reconstructed, and in some instances inscrutable; much of the time claimed was in pursuit of punitive damages fo r common-law fraud, rather than a claim for which statutor y fee-shifting is permitted; and it approved, without explanation, hourly rates considerably in excess of those previously found reasonable by Judge Recht. Because we have determined that no attorney fees should have been awarded for the postappellate proceeding, it is unnecessary to examine the basi s of the circuit court’s award of attorney fees. (continued . . .)43 c. Current Appellate Proceeding Neither party has requested an award of attorney fees and costs for these appellate proceedings. We conclude that this case does not warrant such an award. The parties shall each bear their ow n attorney fees and costs for these appellate proceedings.

3. Punitive damages As established above, pu nitive damages are availabl e to Plaintiff in this case because Plaintiff prevailed on her comm on law fraud claim. In the circuit court’s February 17, 2011, order, which was appealed in Quicken I , the circuit court awarded $2,168,868 in punitive damage s to Plaintiff. Following Quicken I , the circuit court on remand revised the award of punitive damage s, increasing the amount by $1,331,132, for a total award of $3,500,00 0 in punitive damages.

In this appeal, Quicken challenges the award of punitive damages, arguing that the award violates Quicken’s due proce ss rights, that it constitutes a punishment for

Additionally, as with the attorney fees and costs awarded for the appellate proceedings, the circuit court di d not distinguish what portion of its award was allotted to the post-appellate proceeding. However, because we have determ ined that Plaintiff is not entitled to any of the attorney fees and co sts awarded for either proceeding, it is unnecessary to remand this case for a clarification as to whic h fees were attributable to which proceeding; we reverse all attorney fe es and costs awarded in the circuit court’s June 18, 2013, order that are above and beyond the $596,199.8 9 awarded prior to the first appeal.44 taking a successful appeal, that the circuit court wrongfully relied on lawful conduct to justify the award, that the ci rcuit court erred by considerin g Quicken’s wealth in setting the award, and that the facts relied up on by the circuit cour t in determining reprehensibility were connected to conduct dissimilar from that upo n which liability for fraud was premised.

a. Increase of the Punitive Damages Awar d on Appeal Quicken assigns as error the circu it court’s post-appellate decision to increase the punitive damages award from $2,1 68,868.75 to $3,500,0 00. Quicken asserts that the increase is unconstituti onal because it effectively pena lizes Quicken for taking a successful appeal. Plaintiff argues that Quicke n assented to the increase during the postappellate proceeding when it ag reed with the circuit court’s position that the court was not bound by Judge Recht’s prior ruling.

At the outset, upon our examination of the June 18, 2013, order giving rise to this appeal, we find that the circuit court justified the in crease in the punitive damages award on increases to the co mpensatory damages award an d attorney fees and costs award post-appeal. In Part III.B.1. and Part III.B .2. of this opinion, we determined that the increases to compensatory damages and attorney fees an d costs were in error. Thus, exclusion of the supplementary amounts of co mpensatory damages and attorney fees and costs from the original awards and application of the mu ltiplier used by the circuit court45 in both trial court proceed ings—3.53—results in the or iginal $2,168, 868.75 punitive damages award. 23

In so finding, we do not wish to impl y that the circuit court’s decision to increase the punitive damages on remand woul d have been justif ied if we had not eliminated the increased compensatory damages and/or a ttorney fees and costs from the equation. Because Plaintiff di d not challenge the $2,168,868.75 awar d as insufficient during the first appeal, the upper limit of the punitive damages award was set at that amount in Quicken I . Despite the assertions of Plainti ff, and despite Quic ken’s statements to the circuit court on remand that the court was not bound by the original $2,168,868.75 award, the circuit court’s power to adjust the award upward was constrained by our mandate in Quicken I

. See Frazier v. Oxley , 214 W. Va. at 808, 59 1 S.E.2d at 734 (“The law of the case doctrine generally prohibits re consideration of issu es which have been decided in a prior appeal in the same case . . . .” (Internal quotation omitted.)). Had the circuit court, upon completion of the proper review of the punitive damages award on

23 Quicken argues in its brief that the ci rcuit court erred by using the $98,800 increase in compensatory da mages to justify increasing the punitive damages award because the $98,800 was awarded for negligen t conduct, which is conduct that cannot justify punitive damages. To the extent that we have determin ed that the $98,800 increase in compensatory damages was improper as outside of our mandate, see supra Part III.B.1., the increase cannot prov ide justification for incr easing the punitive damages award, whether or not the $98,800 aw ard was based on negligent conduct.46 remand, concluded that the award was, as Qu icken alleged, excessive, then the circuit court would have had the auth ority to grant a remittitur. 24

Because the circuit court decided Plai ntiff was entitled to punitive damages in excess of those originally awarded, we must reduce the punitive damages award to a maximum of $2,168,868.75 so that it compli es with the law of the case. This amount, however, must be evaluated to de termine whether it is excessive.

b. Analyzing the Excessiveness of a Punitive Damages Award

Quicken contends that the amount of pu nitive damages awarded in this case is excessive and exceeds the c onstitutional limits established in BMW of North America,
Inc. v. Gore , 517 U.S. 559 (1996), and State Farm Mutual Automo bile Insurance Co. v. Campbell , 538 U.S. 408 (2003). More specifically, BMW and State Farm set forth three guideposts for assessing the constitutionality of punitive damages awards, and Quicken argues that the circuit court e ither incorrectly applied or fa iled to apply the guideposts in setting the punitive damages award in this case. Quicken also asserts that the circuit court improperly applied Garnes v. Fleming Landfill, Inc. , 186 W. Va. 656, 413 S.E.2d 897 (1991).

24 See syl. pt. 9, Perrine v. E.I. Du Pont de Nemours & Co. , 225 W. Va. 482, 694 S.E.2d 815 (2010) (“When a cour t grants a remittitur, the pl aintiff must be given the option of either accepting the reduction in the verdict or electing a new trial.”).47 In Garnes , this Court held that “[p]unitiv e damages must bear a reasonable relationship to the potential of harm caused by th e defendant’s actions.” Syl. pt. 1, in part,
Garnes , 186 W. Va. 656, 413 S.E. 2d 897. Further, we held: Under our system for an aw ard and review of punitive damages awards, there must be: (1) a reasonable constraint on jury discretion; (2) a meaningf ul and adequate review by the trial court using well-estab lished principles; and (3) a meaningful and adequate appe llate review, which may occur when an application is made for an appeal. Syl. pt. 2, id.

First, with regard to constraining jury discretion, the Court set forth detailed instructions that must be provided to a jury considerin g punitive damages: When the trial court instru cts the jury on punitive damages, the court should, at a minimum, carefully explain the factors to be considered in awarding punitive damages. These factors are as follows: (1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant’s conduct as well as to the harm that actually has occurred. If the defendant’s ac tions caused or would likely cause in a similar situation on ly slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater. (2) The jury may consider (although the c ourt need not specifically instruct on each element if doing so would be unfairly prejudicial to the defe ndant), the repr ehensibility of the defendant’s conduct. The jury should take into account how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to c onceal or cover up his actions or the harm caused by them, whether/how often the defendant48 engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt se ttlement for the actual harm caused once his liability became clear to him. (3) If the defendant profited from his wrongful conduct, the punitive damages sh ould remove the profit and should be in exce ss of the profit, so that the award discourages future bad acts by the defendant. (4) As a matter of fundam ental fairness, punitive damages should bear a re asonable relationship to compensatory damages. (5) The financial position of the defendant is relevant. Syl. pt. 3, id.

Second, Garnes provides additional factors tria l courts must consider when reviewing a jury’s punitive damages award: When the trial court revi ews an award of punitive damages, the court should, at a minimum, consider the factors given to the jury as well as the following additional factors: (1) The costs of the litigation; (2) Any criminal sanctions imposed on the defendant for his conduct; (3) Any other civil actions against the same defendant, based on the same conduct; and (4) The appropriateness of punitive damages to encourage fair and reasonable settlements when a clear wrong has been committed. A factor that may justify punitive damages is the cost of litigation to the plaintiff. Because not all relevant information is available to the jury, it is likely that in some cases the jury will make an award that is reasonable on the facts as the ju ry know them, but that will require downward adjustment by the trial court through remittitur because of fact ors that would be prejudicial to the defendant if ad mitted at trial, such as criminal sanctions imposed or similar lawsuits pending elsewhere against the defendant. However, at the opti on of the defendant, or in the49 sound discretion of the trial c ourt, any of the above factors may also be presented to the jury. Syl. pt. 4, id. We clarified that “[t]he extra factors that the judge must consider . . . are important in determining the constitutionality of an y particular puniti ve damages award.” Id. at 669, 413 S.E. 2d at 910. If, when reviewing a jury ’s award of punitive damages, the trial court determines that the award shoul d be changed, the “trial court should thoroughly set out the reasons for ch anging (or not changing) the award.” Id. Recently, we created a new syllabus point inco rporating syllabus points 3 and 4 of Garnes so as to simplify the review of punitive damages awards: When a trial or appellate court reviews an award of punitive damages for excessive ness under Syllabus points 3 and 4 of Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991), the c ourt should first determine whether the amount of the punitiv e damages award is justified by aggravating evidence including , but not limited to: (1) the reprehensibility of the defend ant’s conduct; (2) whether the defendant profited from the wrongful conduct; (3) the financial position of the defenda nt; (4) the appropriateness of punitive damages to encour age fair and reasonable settlements when a clear wrong has been committed; and (5) the cost of litigation to the plaintiff. The court should then consider whether a reduction in the amount of the punitive damages should be permitted due to mitigating evidence including, but not limited to : (1) whether the punitive damages bear a reasonable relationship to the harm that is likely to occur and/or has oc curred as a result of the defendant’s conduct; (2) whet her punitive damages bear a reasonable relationship to compen satory damages; (3) the cost of litigation to the defendant; (4) any criminal sanctions imposed on the defendant for hi s conduct; (5) any other civil actions against the same de fendant based upon the same conduct; (6) relevant information that was not available to the jury because it was unduly prejud icial to the defendant; and (7) additional relevant evidence.50 Syl. pt. 7, Perrine , 225 W. Va. 482, 694 S.E.2d 815.

Third, to ensure a meaningful and adequate appellate review, Garnes set forth the means by which this Court will review an award of punitive damages: Upon petition, this Court will review all punitive damages awards. In our review of the petition, we will consider the same factors that we require the jury and trial judge to consider, and all pe titions must address each and every factor set forth in Syllabu s Points 3 and 4 of this case with particularity, summarizing th e evidence pres ented to the jury on the subject or to the trial court at the post-judgment review state. Assignments of error related to a factor not specifically addressed in the petition will be deemed waived as a matter of state law. Syl. pt. 5, id.

Our standard of review of petitions challenging punitive damages awards is de novo

. See syl. pt. 16, Peters v. Rivers Edge Mining, Inc. , 224 W. Va. 160, 680 S.E.2d 791 (2009) (“When reviewing an award of punitive damages in acco rdance with Syllabus point 5 of [ Garnes ], and Syllabus point 5 of Alkire v. First Natio nal Bank of Parsons, 197 W.Va. 122, 475 S.E.2d 122 (1 996), this Court will review de novo the jury’s award of punitive damages and the circuit court’s ruling approving, rejecting, or reducing such award.”); Boyd , 216 W. Va. at 55 9–60, 608 S.E.2d at 176–77 (“[O]ur revi ew of this issue is de novo

. See Phillip Leon M. v. Gree nbrier Cty. Bd. of Educ., 199 W.Va. 400, 404, 484 S.E.2d 909, 913 (1996), modified on other grounds by Cath e A. v. Doddridge County Bd.51 Of Educ., 200 W.Va. 521, 490 S.E.2d 340 (1997) (stating that ‘[b]ecause interpretations of the West Virginia Constitution, along with interpretations of statutes and rules, are primarily questions of law, we apply a de novo review’); cf. Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 1685-86, 149 L.Ed.2d 674 (2001) (providing that ‘cour ts of appeals should apply a de novo standard of review when passing on district courts’ determin ations of the constitutionality of punitive damages awards’ (footnote omitted)).”).

c. Whether the Punitive Damages Award Was Excessive Quicken asserts that the circuit c ourt’s award of p unitive damages is excessive and that the aw ard violates its right to substantive due process. 25 With regard to the review of punitive dama ges awards, we have held: When this Court, or a trial court, reviews an award of punitive damages, the court must first evaluate whether the conduct of the defendant towa rd the plaintiff entitled the plaintiff to a punitive damage award under Mayer v. Frobe, 40 W.Va. 246, 22 S.E. 58 (1895), and its progeny. If a punitive damage award was justified, the court must then examine the amount of the awar d pursuant to the aggravating and mitigating criteria set out in [ Garnes ] and the compensatory/punitive damage ratio established in TXO Production Corp. v. Alliance Resources Corp. [( TXO I )] , 187

25 Quicken does not argue that it wa s denied procedural due process. See Honda Motor Co., Ltd. v. Oberg , 512 U.S. 415, 432 (1994) (“[D]eni al of judicial review of the size of punitive damages awards violates th e Due Process Clause of the Fourteenth Amendment.”). Our discussion is therefor e limited to whether Quicken was denied substantive due process.52 W. Va. 457, 419 S.E.2d 870 (1992)[, aff’d 509 U.S. 443 (1993)]. Syl. pt. 6, Perrine , 225 W. Va. 482, 694 S.E.2d 815. In the present case, Quicken does not argue that Plaintif f is not entitled to a punitive dama ges award. Thus, in this appeal, Plaintiff’s entitlement to punitive damages is assumed and we need only address whether the punitive damages award is excessive.

The review of a punitive damages award for excessiveness can have two dimensions. The award may be reviewed to determine whether it complies with minimum federal substantive due process requirement s, and the award may be reviewed to determine whether it exceeds state law limits on excessiveness. Quicken failed in its brief and reply brief in the first appeal to raise any issue pertaining to BMW and State Farm

. Therefore, we determine that Quicken has waived that fe deral substantive due process challenge in this second appeal. We proceed by addre ssing only whether the punitive damages award is excessive under our state law. 26

26 The author of this opin ion and Justice Loughry, se parate from the majority, upon independent review of th e appendix record and the br iefs submitted by the parties, do not believe that Quicken ha s waived its federal substantive due process argument. However, even had Quicken failed to argue th at it was denied federal substantive due process in the first appeal, this Court is not barred from considering whether there is merit to the argument in this second appeal. While syllabus point 6 of Addair is the general rule regarding how this Court treats waiver, it is “not jurisdictional in the sense that [it] encroach[es] in any fashion upon our inherent auth ority to consider and decide pertinent matters that otherwise may be ig nored as abandoned or waived. Thus, we possess the discretion under appropriate ci rcumstances to disregard the parties’ (continued . . .)53 Syllabus points 3 and 4 of Garnes , 186 W. Va. 656, 413 S.E.2d 897; syllabus point 7 of Perrine , 225 W. Va. 482, 694 S.E.2d 8 15; and syllabus point 15 of
TXO I , 187 W. Va. 457, 419 S.E. 2d 870, encompass all of the factors necessary to determine whether a punitive da mages award requires reduction. 27 However, we need not consider every factor in this appeal . As we held in syllabus point 5 in Garnes , 186 W. Va. 656, 413 S.E.2d 897, factor s not specifically addressed by the petitioner on appeal are waived. Quicken has limited its argument on appeal regard ing the excessiveness of the award to only the following factors: the reprehensibility of Quicken’s conduct, the financial position of Quicken, the appropriateness of punitiv e damages to encourage fair and reasonable settlements when a clear wron g has been committed , whether the punitive

inattention to a particul ar argument or issue.” United States v. Holness , 706 F.3d 579, 592 (4th Cir. 2013). Indeed, syllabus point 6 of Addair , 158 W. Va. 306, 284 S.E.2d 374, by its very language, is discretionary. Because it is within our juri sdiction to consider whether Quicken’s federal substantive due proc ess rights have been violated, and because the author of this opinion and Justice Loughry perceive a tremendous need to examine the interplay of our state punitiv e damages law and federal punitive damages law, the author of this opinion and Justice Loughry would have discussed and evaluated the issue. Since 1991, our decision in Garnes has served as West Virginia ’s primary authority on the awarding of punitive damages in West Virginia. However, as was implicit in our recent consideration in Perrine , the Garnes factoring analysis is no t immune from the need to evolve with time and to be mo dified consistent not only with our state’s jurisprudence, but also with the requir ements of federal due process as set forth in the jurisprudence of the United States Supreme C ourt, and specifically in State Farm and BMW

.
27 In syllabus point 8 of Perrine , 225 W. Va. 482, 694 S.E.2d 815, the Court held, “A punitive damages award that is not constitutionally excessive under [ TXO I ] may nevertheless be reduced by a reviewing cour t when, in the discretion of the court, a reduction is warranted by mitigating evidence.”54 damages bear a reasonable relationship to th e harm, and whether punitive damages bear a reasonable relationship to compensatory da mages. Thus, we fi nd that Quicken has waived any challenge to the circuit court’s c onsideration of the factors listed in syllabus point 7 of Perrine , 225 W. Va. 482, 694 S.E.2d 815, aside from those listed above. We continue our analysis by ex amining the factors specifica lly addressed by Quicken and determining whether they warrant re duction of the punitive damages award.

i. Aggravating Factors aa. Reprehensibility of Quicken’s Conduct. The first factor we must consider in judging the excessiveness of the punitive damages award is the reprehensibility of Quicken’s con duct. In syllabus point 3 of Garnes , 186 W. Va. 656, 413 S.E.2d 897, we said that when consid ering a defendant’s reprehensibility, a jury should be instructed, when it would not be unfairly prej udicial to do so, to consider how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to c onceal or cover up his actions or the harm caused by them, whether/how often the defendant engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt se ttlement for the actual harm caused once his liability became clear to him.

With regard to reprehensi bility, the circuit court fou nd in its June 18, 2013, order:55 Quicken Loans’ conduct in th is matter is reprehensible at best. The findings and conclusions that Quicken Loans engaged in fraudulent and unc onscionable conduct were definitively affirmed on appeal . There is a recklessness and inherent greed in Quicken Lo ans’ conduct. Quicken Loans has shown no concern for any of the consequences of its’ [sic] conduct. Quicken Loans’ only motive in procuring Plaintiffs’ mortgage loan was to turn an immediate profit and then quickly unload what it had to know would eventually be a non-performing loan, to some other entity. The circuit court further foun d that Quicken “knew or s hould have known that the conduct that it was engaged in was illegal,” that Quicken’s “‘chase and dump’ style of making mortgage loans clearly demonstrates a business model that the Supreme Court succinctly classified as ‘distasteful’ and ‘op portunistic,’” and that Quicken “has refused to concede that it has engaged in any improper or illegal conduct.”

Quicken’s argues that the reprehensib ility of its conduct was low because of the isolated nature of its wrongdoing. Quicken states: Here, there was no physical harm, and no threat to health or safety. The conduct at issue was one-time conduct by lowerlevel employees, not wrongdoing that was authorized by company officers or that repres ented corporate policy. There was no evidence and no findin g that any other borrower has been made a promise of refinancing . . . . To the contrary, Plaintiff contends that Quicken’s conduct was reprehensible because Quicken intentionally induced the Plainti ffs into accepting an unconscionable loan that feat ured unfathomable terms by making fraudulent representations and engaging in other fraudulent conduct. In reality, Quicken’s sales tactics were nothing short of a con, featuri ng a game of bait-and-switch of56 loan terms that culmin ated in the introduction of an enormous balloon payment into th e loan at closing.

Upon our review of this case, we agree with the circ uit court and the Plaintiff. Quicken’s conduct was reprehensibl e. Although Quicken co rrectly notes that there was no finding below th at the conduct giving rise to this case extended beyond Plaintiff, and although Quicke n’s conduct posed no risk of physical harm to anyone, reprehensibility is not measured by those c onsiderations alone. Syllabus point 3 of
Garnes requires that we also take into acco unt how long Quicken continued its actions, whether it was aware that its actions were likely to cause harm, and whether Quicken made reasonable efforts to make amends by offering a fair and prompt settlement.

The length of time in which Quicke n engaged in misconduct—8 months passed between the time the Plaintiff first contacted Quicken and the time Plaintiff defaulted on the loan—weighs against Quicken. During this time, Quicken had extensive contact with Plaintiff, during which it furthe red its fraudulent scheme. Furthermore, as the circuit court recognized, Qu icken knew or should have known that its actions were likely to cause harm to Plain tiff, who was financially vulnera ble. As we recognized in Quicken I , Plaintiff’s financial difficulties are what led her to Quicken in the first place. 28

28 In Quicken I , we stated: (continued . . .)57 Quicken was aware of these difficulties and took advantag e of Plaintiff’s position. Finally, Quicken made no reasonable efforts to make amends in this case, continually representing below that it had not engaged in wrongdoing. This is not a close issue. The majority of reprehensibility considerations weigh against Quicken. Thus, we conclude that Quicken’s conduct was reprehensible. 29

Upon the death of her mother in 2002, Plaintiff became solely responsible for paying all of the property’s utilities, maintenance, taxes and insurance premiums thereon. When these financial obligations, among others, became difficult to meet, Plaintiff refi nanced the subject property in August 2003, for $40,518; in January 2004, fo r $63,961; and in May 2005, for $67,348. She al so took out four separate loans for $1,500, $3,060, $5,000 and $7,650, respectively, with interest rates rangi ng from 24.99% to 31.00%. In May of 2006, in an effo rt to consolidate her debt and lower her monthly payments , Plaintiff completed a basic on-line loan application after receiving a “pop-up” advertisement on her comput er. Thereafter, she began receiving telephone calls from various lending companies, including Quicken. 230 W. Va. at 313, 737 S.E.2d at 647 (footnotes omitted).

29 Quicken also asserted the following two assignments of error in this appeal: The Circuit Court deprived Quicken Loans of its right to substantive due process of law by repeatedly citing and relying on lawful conduct in supposed justification for its punitive damages award. The Circuit Court deprived Quicken Loans of due process by basing its reprehen sibility finding on conduct dissimilar from that upon whic h liability for punitive damages (continued . . .)58 bb. Quicken’s Financial Position. Quicken argues that the circuit court erred by considering eviden ce of Quicken’s wealth in levying punitive damages. Additionally, Quicken asserts that to the extent that Perrine classifies a defendant’s wealth as an aggravating fa ctor for purposes of punitiv e damages, it irreconcilably conflicts with the precedent of the U.S. Supreme Court and should be overruled.

Quicken made a similar argument below, to which the circuit court responded in its June 18, 2013, order as follows: Quicken Loans objects “on both logical and federal constitutional grounds” to this Co urt considering the financial position of Quicken Loan s “to the extent that this might be interpreted as allowing punitiv e damages to be increased based on the defendant’s wealth .” Quicken Loans argues that its’ [sic] financial position sh ould not be considered “an aggravating factor.” This Cour t agrees with Quicken Loans’ position on this issue. The law is clear that the wealth of a defendant cannot justify an otherwise unconstitutional punitive damages award.

was premised, as well as harm or potential harm to persons other than Plaintiffs. To the extent that we have determined that Quicken’s fede ral substantive due process arguments have been waived, see discussion supra and note 26, we decline to address this first assignment of error. Moreover, the record in this case demonstrates that Quicken’s fraudulent be havior—the behavior upon which liability fo r punitive damages was premised—was reprehensible, and th at the conduct discussed herein—to the exclusion of conduct consider ed by the circuit court that may have been lawful—is sufficient to find that Quic ken’s conduct was reprehensibl e, we find it unnecessary to further examine this seco nd assignment of error.59 This Court will consider Quicken Loans’ financial position solely for the purpose of whether Quicken Loans has the ability to pay a fair and re asonable punitive damage award within the confines of Garnes and TXO [ I ]. This Court does not intend to “enhance” the punitive damages award. In addressing this factor, the [c]ourt will consider only Quicken Loans’ net worth (sub tracting total liabilities from total assets) to determine its “financial position.” The circuit court ordered that the summary of Quicken’s financial statements be sealed.

Plaintiff argues that the circuit cour t did not err by considering Quicken’s wealth, and it is Plaintiff’s position that Perrine was correctly decided and is consistent with settled law. We agree with the Plaintiff on both points.

As an initial matter, we decide that it is evident from the U.S. Supreme Court’s holdings in TXO Production Corp. v. Alliance Resources Corp. ( TXO II ), 509 U.S. 443, 454 (1993), that the U.S. Supreme Court has implicitly approved of the Garnes factors, accepting a defendant’s wea lth as a proper factor for consideration when a court sets and evaluates a punitive damages award. In State Farm , the U.S. Supreme Court favorably cited Justice Breye r’s concurring opinion to BMW as follows: [A defendant’s wealth] provides an open-ended basis for inflating awards when the defendant is wealthy . . . . That does not make its use unlawful or inappropriate; it simply means that this factor cannot ma ke up for the failure of other factors, such as “reprehensibility ,” to constrain significantly an award that purports to p unish a defendant’s conduct.60 State Farm , 538 U.S. at 427–28 (citing BMW , 517 U.S. at 591 (Breyer, J., concurring)). The U.S. Supreme Court has never said th at wealth may not be considered; it has implicitly held otherwise. However, State Farm clarifies that “[t]he wealth of a defendant cannot justify an otherw ise unconstitutional punitive damages award.” Id. at 427. Thus, according to the well-settled preced ent, wealth is a factor that may be considered, but a defendant’s wealth alone may not justify a punitive damages award.

The law also supports treating wealth as an aggravating factor—a factor that may justify increasing a punitive damages award. Cf. syl. pt. 4, Lawyer Disciplinary Bd. v. Scott , 213 W. Va. 209, 579 S. E.2d 550 (2003) (“Aggrava ting factors in a lawyer disciplinary proceeding are any considerations or factors that may jus tify an increase in the degree of discipline to be imposed.”). In Leach v. Biscayne Oil & Gas Co. , 169 W. Va. 624, 628, 289 S.E.2d 197, 199 (1982) (quoting Pendleton v. Norfolk & W. Ry. Co. , 82 W. Va. 270, 277–78, 95 S.E. 941, 944 (1918)), we said: The object of such punishment is to deter the defendants from committing like offenses in the fu ture, and this it may be said is one of the objects of all p unishment, and we recognize that it would require, perhaps, a larger fine to have this deterrent effect upon one of large mean s than it would upon one of ordinary means, granting that the same malignant spirit was possessed by each.

In Perrine , we said that “to accomplish punishme nt and deterrence for . . . a wealthy company . . . , a punitiv e damages award must necessarily be large.” 225 W. Va. at 555, 694 S.E.2d at 888. Perrine and our related case law are consistent with U.S. Supreme61 Court precedent. While the U.S. Supreme Court forbids main taining a punitive damages award based solely on a defendant’s wealth , it does not forbid consideration of the defendant’s wealth as a factor justifying an increase in a punitive damages award.

While the circuit court erred in concludi ng that wealth is not an aggravating factor, this error is harmless. The circuit cour t explicitly stated that it would not consider Quicken’s wealth to enhance the punitive damages award. In stead, the circuit court said that it considered Quicken’s wealth “solel y for the purpose of whether Quicken Loans has the ability to pay a fair and reasonable punitive damage award.” As we recognized above, consideration of wealth is appropriate , and here, because wea lth did not contribute to the size of the punitive damages award, Quicken cannot support its claim that consideration of this factor contributed to the amount of the punitive damages award.

cc. Encouragement of Fair and Reasonable Settlements. Quicken contends that the circuit court misapplied this aggravating factor, arguing that the circuit court used this factor to puni sh it for failing to settle the case. Plain tiff argues that the circuit court correctly applied th is factor, and that the factor relates to “the willingness of a defendant to make amends for its wrong.” In its June 18, 2013, order, the circuit court said: Quicken Loans has had, an d continues to have, an opportunity to resolv e this matter by way of settlement. There is no evidence before this Cour t that it has ever shown any interest in settling this matter with the Plaintiffs. Quicken62 Loans instead, as it is clearl y entitled to do, chooses to do battle, to hold fast to its’ [s ic] position that it has done little or no wrong in this action, and has caused minimal damage. Quicken Loans chose to fully litig ate this matter at trial and on appeal, and now chooses to fi ght on, post-appeal, as is its right. However, it can not now complain that it was somehow “vindicated” and, therefore, should not be subject to a punitive damage award. Quicke n Loans did no t prevail and must now face the music.

We examined this Garnes factor in Perrine . In that case, the defendant argued that its failure to settle the claims did not warrant a large punitive damages award and that the trial court’s reliance on this factor to increase the award violated its right to litigate potentially meritorious defenses. Perrine , 225 W. Va. at 555–56, 694 S.E.2d at 888–89. In ascertaining that the defendant’s arguments sh owed that it had misinterpreted the purpose behind the fact or, the Court explained: This Garnes factor asks the review ing court to consider whether the amount of punitive damages is appropriate to encourage fair and reasonable settlements when a clear wrong has been committed. . . . The focus of the reviewing court’s consideration of whether th e punitive damages award would encourage fair and reasonable se ttlements is on the impact it is likely to have on future litigants. That is, was the award large enough so that a future defendant who has committed a clear wrong will be encourag ed to accept a fair and reasonable settlement rather than force the wronged plaintiff into litigation and risk incurri ng a similarly large punitive damages award. Id.63 Like the defendant in Perrine , the circuit court has misinterpreted this
Garnes factor. However, upon our de novo review, we agree with the circuit court’s ultimate conclusion that this factor weighs against Quicken. This case involved a large corporation with extensive assets defrauding a financially vulnerable consumer. It was therefore appropriate for the circuit court to set a punitiv e damages award large enough so that a future defendant in a similar si tuation—a large corpor ation with extensive assets—who has committed a cl ear wrong against a consumer will be encouraged to accept a fair and reasonable settlement.

dd. Other Aggr avating Factors. As stated above, Quicken has waived any challenge to the remaining aggravating factors: whether the defendant profited from the wrongful conduct a nd the cost of litigation to the plai ntiff. With regard to Quicken’s profit from the wrongful conduct , the circuit court said: [T]he total potential financ e charge on the Plaintiffs’ mortgage loan was $520,065.00. This is an enormous potential profit, which Quicken Loans could have reaped had the Plaintiffs not instituted this litigation. While Quicken Loans never realized said profit, its’ [sic] efforts to sell the loan on the secondar y market clearly demonstrates Quicken Loans’ intention to profit from a mortgage loan that has been conclusively found to be unconscionable and fraudulent. Regarding the cost of litigation to Plaintiff, Plaintiff has been awarded an uncontested and substantial sum in attorney fees: $59 6,199.89. We conclude that both of the remaining aggravating factors weigh agains t Quicken and in support of the punitive damages award.64 ii. Mitigating Factors aa. Reasonable Relationship to Harm. In syllabus point 3 of Garnes , 186 W. Va. 656, 413 S.E.2d 897 (in part), the Court held: Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant’s conduct as well as to the harm that actually has occurred. If the defendant’s actions caused or would likely cause in a similar situation only slight harm, th e damages should be relatively small. If the harm is grievous, the damages should be greater. See also Perrine , 225 W. Va. at 558, 694 S.E.2d at 891 (“A punitive damages award should bear a reasonable relationship to the harm that has occurred.”).

Quicken argues that “[t]he disparity between the award and the only legitimate harm in this case—le ss than $18,000 in restitution— is vast.” Plaintiff counters that the potential harm imposed by the total finance charge is the reasonable measure of the harm. The circuit court took the position ad vanced by Plaintiff, finding that the total finance charge, $520,065.61, constituted the harm.

We find that the actual harm is represented by the amount awarded in restitution to Plaintiff, $17,476.72. 30 The punitive damages awar d represents an amount

30 Because we concluded above in Part III.B .1. that the circuit court exceeded its authority by increasing the co mpensatory damages award fo llowing our limited remand, (continued . . .)65 more than 124 times the amou nt of the restitution award. However, as we held in Garnes , this factor requires us to consider the ha rm Quicken’s actions would likely cause in a similar situation. In a similar situation, a consumer would be required to pay more than $520,000.00 in loan payments ov er the life of the loan. This harm would be grievous to a consumer who, like Plaintiff, had already been suffering financial troubles before contracting with Quicken. Moreover, the ra tio of the punitive da mages award to the potential harm, 4.17:1, would fall within a constitutionally acceptable range set forth in syllabus point 15 of TXO I , 187 W. Va. 457, 419 S.E.2d 8 79 (“The outer limit of the ratio of punitive damages to compen satory damages in cases in which the defendant has acted with extreme negligence or wanton disregard bu t with no actual inte ntion to cause harm and in which compensatory damages are neither negligible nor very la rge is roughly 5 to 1.” (In part.)). We find that the relationshi p between the harm and the punitive damages award does not act as a mitigating factor in this case.

bb. Reasonable Relationship Between Punitive Damages and Compensatory Damages. In syllabus point 3 of Garnes , 186 W. Va. 656, 413 S.E.2d 897 (in part), the Court held that “[a]s a ma tter of fundamental fair ness, punitive damages should bear a reasonable relations hip to compensatory damages.”

we have reduced the compensatory damages award to the original amount awarded in restitution by the circuit court’s Februa ry 25, 2010, orde r to $17,476.72.66 Quicken maintains that the ratio of compensatory damage s in this case warrants a reduction in the punitive damages awar d. Plaintiff asserts that the award is not excessive. Below, the circuit court determined that because “there is insufficient evidence to find that Quicken Loans has acted with ev il intention,” a ceiling of a 5 to 1 ratio of punitive damages to compensato ry damages was appropriate.

At the outset, we recognize that the $17,476.72 31 was awarded as restitution in this case. Because we he ld in syllabus point 11 of Quicken I , 230 W. Va. 360, 737 S.E.2d 640, that “[a]tto rneys fees and costs awarded under West Virginia Code § 49A-5- 104 (1994) of the [WVCCPA] sh all be included in the comp ensatory to punitive damages ratio” we now add $596,199.89—the amount representing attorney fees and costs awarded pursuant to the circuit court’s Feburary 17, 2011, order 32 —to the $17,476.72 restitution figure. The resulting amount, $613,676 .61, represents the total compensatory damages award, for purposes of examining the compensatory to punitive damages ratio. To determine whether the ratio exceeds the bounds of due pr ocess, we must compare the

31 See supra note 30.

32 As established above in Part III.B.2, the circuit court erred by awarding attorney fees and costs for the appellate and post-appella te proceedings. Further, as we determined in Part III.B.3.a., the circuit court erred by increasing the amount of punitive damages awarded on remand based on attorney fees it ordered on remand. Thus, only the attorney fees awarded in the original proceeding before the circu it court are now considered.67 compensatory damages to the punitive damages awarded in this case, $2,168,868.75. 33 The resulting ratio of punitive damages to compensatory dama ges is 3.53 to 1.

In syllabus point 15 of TXO I , 187 W. Va. 457, 419 S.E.2d 870, the Court held that [t]he outer limit of the ratio of punitive damages to compensatory damage s in cases in whic h the defendant has acted with extreme ne gligence or wanton disregard but with no actual intention to cause harm and in which compensatory damages are neither negligible no r very large is roughly 5 to 1. However, when the defendant has acted with actual evil intention, much higher ratios are not per se unconstitutional.

In Perrine , the Court explained that “greater or le sser ratios would be entirely appropriate in circumstances where the comp ensatory damages are either very large or negligible.” 225 W. Va. at 557, 694 S.E.2d at 890.

We agree with the circuit court’s conc lusion that the 5 to 1 ratio provided by syllabus point 15 of TXO I is the proper upper limit for the award of punitive damages in this case, and we conclude that the 3. 53 to 1 ratio falls under that limit. Moreover, because the multiplier is in the low single digits, there is a presumption that the award is reasonable and proportional.

33 In accordance with our disc ussion in Part III.B.3.a., the circuit court erroneously increased the punitive damages award, an d so we now utilize a reduced amount, $2,168,868.74, which is the amount originally awarded by the circuit court’s February 17, 2011, order.68 Additionally, we conclude that th e relationship between the punitive damages and compensatory damages is fair and does not act as a mitigating factor in this case. While Quicken notes that the ratio between the punitive da mages award and the restitution award—124.10:1—sh ould act as a mitigating fact or, this ratio ignores the substantial resources Plaintiff expended in pu rsuing her successful claim: $596,199.89 in attorney fees and costs.

dd. Other Mitigating Factors. Quicken has not argued that the remaining mitigating factors listed in syllabus point 7 of Perrine , 225 W. Va. 482 S.E.2d 815—the cost of litigation to the defend ant, any criminal sanctions im posed on the defendant for its conduct, any other civil actions against the same defendant based on similar conduct, relevant information that was not available to the jury because it wa s unduly prejudicial to the defendant, and additional relevant evidence—warra nt the reduction of the punitive damages award. Thus, in acco rd with syllabu s point 5 of Garnes , 186 W. Va. 656, 413 S.E.2d 897, these factors are deemed waived , and no reduction of the punitive damages award is appropriate with respect to these fact ors. We note that of the factors considered by the circuit court, the circuit court deemed them irrelevant.

iii. Reduction Is Not Warranted69 Application of the aggravating and mitig ating evidence in this case supports the full punitive damages award. Quicken presented no mitig ating evidence that would warrant remittitur. Cf. Perrine , 225 W. Va. at 559–60, 694 S.E. 2d at 892–93 (finding that the defendant was entitled to remittitur based on mitigating evidence). We conclude that Plaintiff is entitled to $2,168, 868.75 in punitive damages.

C. Offset In syllabus point 5 of Board of Education of Mc Dowell County v. Zando, Martin & Milstead, Inc. , 182 W. Va. 597, 390 S.E.2d 796 (1990), we held, “‘“Where a payment is made, and release obtained, by on e joint tort-feasor, th e other joint tortfeasors shall be given credit fo r the amount of such paymen t in the satisfaction of the wrong.” Point 2, Syllabus, Hardin v. The New York Central Railroad Company, 145 W.Va. 676 [116 S.E.2d 697 (1 960) ].’ Syllabus Point 1, Tennant v. Craig, 156 W.Va. 632, 195 S.E.2d 727 (1973).” We reasoned that the purpose of requiring awards to be offset by settlements with other defendants is that “a plainti ff is entitled to one, but only one, complete satisfac tion for his injury.” Zando , 182 W. Va. at 604, 390 S.E.2d at 803. In other words, offset prevents a plaintiff from receiving a double recovery for his/her injury. In Quicken I , we determined that Quicken is “entitled to a credit for the settlement between Plaintiff and the appraisal defendants, ” 230 W. Va. at 334, 737 S.E.2d at 668, but in accord with syllabus point 1 of Burgess v. Porterfield , 196 W. Va. 178, 469 S.E.2d70 114 (1996), quoted infra , we held that of the compensato ry and punitive damages awards, only the compensatory damages award is subj ect to offset by the pretrial settlement.

The parties disagree as to whether Quic ken is entitled to have the attorney fees and costs award offset by the $700,000 pretrial settlement between Plaintiff and codefendants Appraisals Unlimited, Inc. a nd appraiser Dewey Guida. Quicken argues that the attorney fees and co sts award should be considered compensatory damages for offset purposes, and Plainti ff argues to the contrary.

In its June 18, 2013, order, th e circuit court stated that [w]hile the Supreme Court held that attorney fees and costs are “compensato ry in nature” and shall be used in considering the punitive damage s to compensa tory damages ratio in this matter, the Supr eme Court did not address the issue of whether an award of attorney fees and costs under a fee-shifting statute, such as the WVCCPA, were fully compensatory damages subject to an offset for a prior settlement. In deciding the issue, the circ uit court looked to a decision of the Second Circuit of the United States Court of Appeals in Auwood v. Harry Brandt Booking Office, Inc. , 850 F.2d 884 (2nd Cir. 1988). In that case, the Second Circuit said: [D]efendants have argued that their obligation to pay plaintiffs’ attorneys’ fees s hould be reduced by the amount that plaintiffs received in settlement of these antitrust claims from other alleged coconspirato rs. We have considerable doubt as to the availability of such relief, since the statutory provision for an award of attorneys’ fees is designed to protect a damage award from th e inroads such fees would71 otherwise make, . . . and gran ting such an offset would penalize the pursuit of valid legal claims by a plaintiff who could establish that the nonse ttling defendants were liable to it but could not sufficiently prove a high amount of damages. 850 F.2d at 893–94 (internal citations omitted). Relying on Auwood , the circuit court concluded that where attorney fees and costs are awarded for fraud and unconscionable conduct in violation of the WVCCPA, a prior settlement should notimpact the Plainti ffs’ ability to recover said attorney fees a nd costs. To permit so would be contrary to the clearly stated legislativ e and public policy of enabling Plaintiffs to pursue legal actions were [sic] statutes have been violated and of ensuring effective access to the legal system and would have a chilling e ffect on said policy.

Quicken contends that the circuit c ourt committed error by failing to offset the attorney fees award agai nst Plaintiff’s pretrial settle ment. Quicken asserts that because this Court determin ed in syllabus point 11 of Quicken I , 230 W. Va. 306, 737 S.E.2d 640, that “[a]tto rneys fees and costs awarded under West Virginia Code § 46A-5- 104 (1994) of the [WVCCPA] sh all be included in the comp ensatory to punitive damages ratio in cases where punitive da mages are available,” attorney fees and costs should be considered compen satory damages subject to offset. 34

34 Quicken challenges this holding in this appeal, arguing that the use of attorney fees and costs “as a supp osed justification to enhance punitive damages is illogical and unconstitutional.” We have held that “[a]n appellate court shou ld not overrule a previous decision recently rendered withou t evidence of changing conditions or serious judicial error in interpretation sufficien t to compel deviation from the basic policy of the doctrine (continued . . .)72 Plaintiff argues that Quicken has waived this issue because Quicken did not raise the issue in its first appeal. Plaintiff fu rther represents that Quicken is judicially estopped from arguing that it is entitled to have the attorney fees and costs award offset by the pretrial settlement becau se Quicken’s position in the firs t appeal was that an award of attorney fees and costs is punitive in natu re, not compensatory, and that an attorney fees and costs award should not be included in the compensatory to punitive damages ratio. Plaintiff submits that Quic ken’s assertion in its brief in Quicken I that it was paying Plaintiff’s attorney fees resu lted in Quicken obtaining a favor able result before the Court: remand to review the punitive damages award.

of stare decisis, which is to promote certaint y, stability, and uniformity in the law.” Syl. pt. 2, Dailey v. Bechtel Corp. , 157 W. Va. 1023, 207 S.E.2d 169 (1974). Quicken has not presented any evidence of chan ging conditions or serious judicial error that would warrant overruling syllabus point 11 of Quicken I . Therefore, we decline to overrule this syllabus point. Quicken also asserts that pursuant to du e process, which requires advance notice of conduct for which a state may impose a punishment or penalty for misconduct, syllabus point 11 of Quicken I should apply prospectively. We disagree. Prior to Quicken I , an examination of our law would have aler ted Quicken that no prior West Virginia authority had addressed the issue decided in syllabus point 11 of Quicken I . Upon engaging in the misconduct, Quicken was on no tice that the Court might rule as it did, particularly in light of similar decisions in other jurisdictions. See Quicken I , 230 W. Va. at 330–33, 737 S.E.2d at 664–67 (describ ing similar cases). Syllabus point 11 of Quicken I

applies to the present case.73 Upon our careful review of the reco rd, we disagree with Plaintiff’s assertion that Quicken has waived its argument with regard to this assignment of error. After the circuit court entered its February 25, 2010, order, which originally decided the case, Quicken filed a motion re questing “a dollar-for-dollar offs et against the judgment in this case for any amounts paid in settlement ” by the settling codefendants. The circuit court summarily denied this mo tion by order dated May 2, 2011. On appeal to this Court, Quicken alleged that it “is entitle d to an offset of all compen satory damages.” At no point did Quicken limit its argument such as to excl ude the consideration of attorney fees as compensatory damages subject to offset.

We also disagree with Plaintiff’s c ontention that Quicken is judicially estopped from arguing that it is entitled to have the attorney fees and costs award offset by the pretrial settlement. The doctrine of “[j]udicial estoppel is a common law principle which precludes a part y from asserting a position in a legal proceeding inconsistent with a position taken by that party in the same or a prior litigation.” In re C.Z.B., 151 S.W.3d 627, 633 (Tex.Ct.App. 2004). Under the doctrine, a party is “generally prevent[ed ] . . . from prevailing in one phase of a case on an argume nt and then relying on a contradictory argument to prevail in another phase.” Pegram v. Herdrich, 530 U.S. 211, 22 7 n. 8, 120 S.Ct. 2143, 2154, n. 8, 147 L.Ed.2d 164, 180 n. 8 (2000). W. Va. Dep’t of Transp., Div. of Highways v. Robertson , 217 W. Va. 497, 504, 618 S.E.2d 506, 513 (2005); see also 28 Am. Jur. 2d Estoppel and Waiver § 67 (2014). We held in syllabus point 2 of Robertson , 217 W. Va. 497, 618 S.E.2d 506, that74 [j]udicial estoppel bars a party from re-litigating an issue when: (1) the party assume d a position on the issue that is clearly inconsistent with a position taken in a previous case, or with a position taken earlie r in the same case; (2) the positions were taken in proceedings in volving the same adverse party; (3) the party ta king the inconsistent positions received some benefit from his/her original position; and (4) the original position misled the adverse party so that allowing the estopped party to cha nge his/her position would injuriously affect the adverse party and the integrity of the judicial process.

Not all four prongs of syllabus point 2 of Robertson are met in this case so as to implicate judicial estoppel. Specific ally, the third prong contains the language dispositive to this case; judicial estoppel do es not apply to bar Quicken’s argument before us now because Quicken received no benefit by arguing that an award of attorney fees and costs is punitive in nature. The Court disagreed with that position in Quicken I , ruling against Quicken, see syl. pt. 11, Quicken I , 230 W. Va. 306, 737 S.E.2d 640, and so Quicken is not barred from ta king an alternate pos ition supporting its assignment of error regarding offset in this appeal.

Furthermore, we disagree with Plaintiff’s contenti on that this Court in Quicken I remanded the case on the basis of Qu icken’s assertion that it was paying Plaintiff’s attorney fees. In Quicken I , we did not reach the merits of the punitive damages claim because the circuit court’s order lacked the necessary analysis and findings required by Garnes that would allow the Court to conduct a meaningful and75 adequate review of the punitive damages award. Quicken I , 230 W. Va. at 330, 737 S.E.2d at 664.

As stated above, the circuit court dete rmined that attorney fees and costs should not be subject to offset by a pretrial settlement amount. In Quicken I , we did not explicitly state that at torney fees are compen satory in nature for purposes of offset. Instead, our focus was on the broader question of whether the circuit court erred by failing to offset the compensatory damages award against the pretrial settlement.

Although we did not address whether an award of attorney fees and costs is compensatory in nature for purposes of offset in Quicken I , we did address whether an award of attorney fees and co sts is compensatory in nature for purposes of calculating punitive damages. In deciding Quicken I , we explored the purpose of the fee-shifting provision in the WVCCPA. We compared our statute to similar consumer credit feeshifting provisions in other jurisdictions, to similar fee-shifting provisions in the West Virginia Code, and to similar pr ovisions in other jurisdictions. Id. at 331, 737 S.E.2d at 665. Our evaluation led us to conclude that “in general, fee-shifting statutes are compensatory and not punitive in nature,” id. at 332, 737 S.E.2d at 666, and we held that attorney fees and costs awarded pursuant to the WVCCPA should be included in the compensatory-to-punitive damages ratio fo r calculation of punitive damages, where available. Syl. pt. 11, Quicken I , 230 W. Va. 306, 737 S.E.2d 640. Our holding76 necessarily implies that attorney fees a nd costs awarded pursuant to the WVCCPA, which are compensatory in nature, should be considered part of a compensatory damages award for the purpose of cal culating punitive damages.

In syllabus point 1 of Burgess , 196 W. Va. 178, 469 S.E.2d 114, we held, “Defendants in a civil action against whom awards of compen satory and punitive damages are rendered are entitled to a reduction of the compensatory damage award, but not the punitive damage award, by the amount of any good faith settlements previously made with the plaintiff by other jointly liable parties.” Because Quicken I implicitly established that an award of attorney fees and costs pursuant to the WVCCPA should considered part of a compensatory damages award, under Burgess , offset should apply to the award of attorney fees and costs. For clar ity, we now hold that a ttorney fees and costs awarded under W. Va. Code § 46A-5-104 (1994) of the West Virginia Consumer Credit and Protection Act are compensatory in natu re and shall be subject to offset by the amount of any good faith settleme nts previously made with th e plaintiff by other jointly liable parties.

Obviously, our holding is inconsistent with the circuit court’s conclusion and its reliance on Auwood

. Auwood has no bearing on this case because the controlling77 statute in that case, 15 U.S.C. § 15 (1982) of the Sherman Antitrust Act, 35 and the controlling statute in this case, W. Va. Code § 46A-5-104 of the WVCCPA, are too dissimilar in purpose for comparison. According to International Travel Arrangers, Inc. v. Western Airlines, Inc. , 623 F.2d 1255, 1274 (6th Cir. 1980), “[t]he purpose of the fees award under 15 U.S.C. § 15 is to insure that a successful plaintiff in an antitrust action does not have its treble damage recovery unduly diminished by the payment of fees to its attorneys.” The purpose of th e WVCCPA, on the other hand, is to “protect consumers from unfair, illegal and deceptive business practices,” Harper v. Jackson Hewitt, Inc. , 227 W. Va. 142, 151, 706 S.E.2d 63, 72 (2010), and W. Va. Code § 46A-5-104 furthers that purpose by allowing for the recovery of attorney fees and costs in pursuing claims under the Act applying to illegal, fraudulent or unconscionable conduct, or a prohibited debt collection practice. Beca use of the dissimilarities betwee n the two statutes, they are not comparable, and thus the circuit court’s reliance on Auwood is misplaced.

We conclude that the circuit court erre d by declining to offset the award of attorney fees and costs by the amount of Plai ntiff’s pretrial settlement. We therefore

35 15 U.S.C. § 15 (1982) st ates, in pertinent part: (a) . . . [A]ny pe rson who shall be injured in his business or property by reason of anything forbidden in the antitrust laws may sue therefor in any district court of the United States in the district in which the defendant resides or is found or has an agent, without respect to the amount in controversy, and shall recover . . . reasonable attorney’s fee.”78 remand this case and direct the circuit court to offset the total compensatory damages award, which in this case includes attorney fees and costs, by the amount of Plaintiff’s pretrial settlement.

IV. CONCLUSION For the reasons set forth in this opini on, the June 18, 2013, order of the circuit court is reversed an d remanded with directions.

First, we reverse the portion of the ci rcuit court’s order creating a lien on Plaintiff’s property. We remand with directions to the circuit court to order that the loan principal be returned to Qu icken by deducting the amount of the loan principal from Plaintiff’s recovery in this case, which in cludes compensatory and punitive damages.

Second, we reverse the circuit court’ s award of an add itional $98,800 in compensatory damages to Plai ntiff pursuant to W. Va. Code § 33-17-17(c). Accordingly, we reduce the compensatory damages award to $17,476.72.

Third, we reverse the circuit court’s award of attorney fees and costs for both the first appellate proceeding and the po st-appellate proceedings. Consequently, we reduce the total amount of atto rney fees to which Plaintiff is entitled to $5 96,199.89. The parties shall bear their ow n attorney fees and cost s for the present appeal.79 Fourth, we reverse the circuit court’ s increase in the punitive damages award, and we reduce the amount of that award to $2,168,868 .75. Having determined that the $2,168,868.75 award is not excessive, we remand with directions to the circuit court to award $2,168,868.75 in punitive damages to Plaintiff.

Fifth and finally, we reverse the circu it court’s order refusing to offset Plaintiff’s award of attorney fees and cost s by the $700,000 pretrial settlement between Plaintiff and codefendants Appraisals Unlimite d, Inc. and appraiser Dewey Guida. We remand the case with directions to the circuit court to offset the award of compensatory damages and attorney fees and costs by the amount of the pretrial settlement.

Reversed and remanded with directions.