*1 630 single reasoning. isolated sale of The evidence of
State’s person charged was not substance for which a controlled plan exception is not within the common scheme Thomas, requires that “the commis- delineated related to each other [are] of the two or more crimes so sion at proof the other.” 157 W.Va. of one tends establish also, Frasher, 655, 164 at 455. State v. 203 S.E.2d See Upon 43 these authorities we 265 S.E.2d evidence was not admissible and that its conclude this objection appellant’s constituted admission over reversible error. appellant assigns trial also as error court’s grant
failure a motion for a Bill of Particulars. State Sette, (1978), urged we v. S.E.2d “every request relating granting reasonable discovery.” retried, will further Since case discovery given prior consideration can be to the limits of to the retrial. foregoing judgment is reversed and
For reasons proceed the case is remanded with directions accordance with those views.
Reversed remanded with directions.
Clyde P. et al. Farley, etc., et al. Corporation, (No. 14413) July 17, Decided 1981. *2 Poyourow, Crandall, Pyles, Bradley Pyles, Robert J. Poyourow appellants. Crandall & Herndon, Campbell, Woods, Bagley, Emerson, McNeer & McNeer, Jr., appellees. Selden S.
McGraw, Justice: appeal presents
This three issues which are here for the (1) for the value of work first time: does a mechanic’s lien (2) may performed pay; and labor include vacation and sick damages, a lien for which arises payment in a contractor’s default be enforced corporation proceeding em- lien (3) contractor; ploying fees recover- in a to enforce mechanics’ liens. The first issue able suit solely interpretation with the of our mechanics’ deals statutes, specifically The latter W.Va. Code 38-2-31 interrelationship of those statutes two issues involve Act. and Collection with the Vol.). (1978 seq. Replacement 21-5-1 et employees twenty-two appellants of M & are former strip Corporation, operated a T Coal operated County, Virginia. M & T Logan mine Corporation, general contractor mine as a strip mining rights and holder of the lessee of coal by Department Resources. permit of Natural issued were members of United Nineteen of of America. The terms and conditions of Mine Workers employment governed were the 1974 Bituminous Coal Wage Agreement. had The remainder employment T. individual contracts with M & 18,1977, operations T and its owner On March M & ceased time, disappeared. employees At that M & T’s were owed addition, wages. of them were also four weeks’ most for unused owed accrued vacation paid terms of the 1974 sick Wage Agreement. Bituminous Coal Several non- management union were also owed vacation employment virtue of their individual contracts. Corporation collapse, At T the time of its M & Coal leased, tangible equipment no assets. Its was either security subject purchase money interests, and its bank empty. account was *3 statutory period ninety days within the June work, appellants performing
after filed their last against Corporation mechanics’ liens both M & T Coal and They Zapata Corporation. wages Coal claimed actual paid, the four weeks were not accrued vacation and liquidated § pay, sick and under W.Va. Code 21-5-4 (1978 Vol.). Replacement August 26,1977, an action On was brought Logan County in the to enforce the Circuit Court liens, appellants requested, at which time also (1978 pursuant Replacement Vol.), § to W.Va. Code 21-5-12 attorney expended enforcing an award of fees and costs liens. Corporation M T an & Coal did not file answer or appear otherwise the action. Since there were no assets against appellants’ of M & T available which the liens could enforced, against no further action was taken M & T in Zapata Corporation the circuit court. did file an solely proceeded and the answer action it. The parties stipulated appellants to the amounts at due operations, time M T& ceased and to the amount of liquidated damages which M & T would have been liable § 21-5-4(e), to W.Va. Code due to its failure to appellants. presented The case was then to the circuit appellants’ summary judgment. court on the motion for Zapata appellants conceded that were entitled to regular wages enforce their liens four for the weeks due ceased, operations at the Mtime & T’s and the court ruled that liens against Zapata could be enforced for those However, Zapata liability amounts. vacation denied pay, compensation days leave unused sick and other fringe benefits, damages, fees. (1) respect amounts, With to these that the court ruled: appellants could not enforce their mechanics’ liens pay, compensation for accrued vacation for unused (2) benefits; sick fringe leave appellants’ liquidated damages liens for under W.Va. Code (3) against Zapata; 21-5-4 could not be enforced were entitled award of fees, pursuant 21-5-12. The rulings contend these three were erroneous.
I appeal lien statute involved this every performs any who for an laborer work incorporated company “shall have a lien for value of personal such or labor all estate work real property company.” such W.Va. Code 38-2-31. The court opinion language encompassed below was of the only hourly nothing more. We rate disagree. protect purpose of our mechanics’ lien statutes is to who, by labor,
the workman his fruits of benefits prompt another. The statutes act as an aid in the collection They of all due the worker. are remedial *4 nature, liberally they to be construed order that purpose serve the for which were enacted. Carolina 272, Cunningham, Lumber v. 722 192 S.E.2d Co. (1972). past We have enforced a mechanic’s lien
634 pay, vacation the value of accrued included ex rel. State 46, 97 144 106 S.E.2d Co., Mining v. Iman Davis compensatory recognized nature (1958),1 and have also in the context fringe such as vacation benefits proceedings. unemployment Eastern Gas & 229, 618 144 107 S.E.2d Hatcher, Associates v. Fuel (1959). holdings Mining
Wefind our
v. Iman
ex rel. Davis
State
Hatcher,
and Eastern Gas &
Co., supra,
Fuel Associates v.
numerous
the decisions of
to be consistent with
supra,
fringe
held
benefits such
courts which have also
per-
compensation for work
pay to
vacation
constitute
factual contexts. See
formed in various
Hartman
v.
(1979); People
275, 591,
P.2d 1318
197 Colo.
Freedman,
v.
(1976);
8,
Rptr.
App.3d Supp.
128
923
Bishopp, 56
Cal.
Cal.
(D.C.
A.2d
268
860
Parking Management,
v. District
Jones
1970);
248
App.
Association,
Oregon
Motor
Nitzen v.
State
(1967);
133,
635
Co.,
(5th
1957);
Munro-Van Helms
Vacation and other similar benefits are not gratuities employers benevolently upon bestow employees. integral components Rather aof compensation bargained package agreed upon for and parties. expects employers the One both and exchange employment a fair in strive for the place. employee undoubtedly market A factor considers gauging employment when the fairness of an offer is the employer value of benefits addition offers to take pay. Conversely, employer home takes into also account fringe cost determining salary benefits when or hourly wage prospective employees. rate will it offer its Obviously fringe if benefits such as vacation and sick compensation absent package, wages were from the would higher. Consequently, light policy of the our mechanics’ above, and the considerations discussed we labor”, construe “value of such work or as contained § 38-2-31, W.Va. Code to mean all contracted paid by employer employee’s to be for the services regardless compensation. of the nature of such It was therefore error the court to rule below could enforce liens for accrued pay, compensation vacation sick or unused leave any fringe other benefits.
II appellants’ liquidated damages The claim for is based Wage Virginia Payment Collection Act. seq. act, § provisions Code 21-5-1 et Under the employee employer laid off when reason employee, regular the next must no later than 3 Bankruptcy Reform Act of resolved this 1978 issue extending priority “wages, salaries, commissions, including to vacation, (a) (3) (1979). severance, pay.” leave sick U.S.C.A. layoff.
payday, wages
time of the
earned at the
21-5-4(d).
duty,
he is held
If
fails in this
due,
liable,
in addition
days’
equal
thirty
wages. The
further
in amount
statute
“[e]very
lien and all
employee shall have such
protection and enforce-
rights
remedies
for the
salary
have
as he would
been
ment of such
in the manner
he
service therefor
entitled
rendered
21-5-4(e).
employed.
...”
last
rights
argue
to “lien”
reference
language
right
quoted
includes
enforce
the above
by employees
of a contractor
a lien
*6
pursuant
§
declined
to
Code 38-2-31. The circuit court
Payment
Wage
accept
it
to
this view. Instead
ruled
exclusively
employee-
and
Act deals
Collection
relations,
employ-
no contract of
and that since
appellants
Zapata,
ment existed between the
liquidated
not
their
lien for
could
enforce
against
damages
corporation.
find this conclusion
We
language
light
plain
too
of the
of W.Va. Code
constrained
21-5-4(e)
statutory
§
principles of
and our
construction.
21-5-4(e) explicitly
§
plain language
of W.Va. Code
employee
all
that an
shall have
lien and
other
rights and remedies
for the enforcement
of his claim for
liquidated
equal
thirty days’ pay,
to
as he would
actually
entitled to had he
rendered
service
have been
employed.
undisputed
therefor
in the manner as last
It is
actually performed
if the
labor
for
days
Zapata’s
contractor,
T, during
thirty
M
for
&
they
they
liquidated damages,
could enforce a
which
claim
Zapata
unpaid
to
services
for
21-5-4(e)
§
§
effect of
W.Va. Code 38-2-31. The
W.Va. Code
thirty
by operation
law a fictitious additional
create
of
days
employment,
grant
employee the
of
and to
same
procedures
enforcing
his
lien for
for
remedies
thirty
he
fictitious
would
actually performed.
had for the value of work
have
Virginia
in West
that when two
It is well established
subject
general
two
relate to the same
and the
statutes
pari
read conflict,
they
are to
Tug Valley Recovery Center,
materia.
Mingo County
Inc. v.
Commission,
(1979);
164 W.Va.
Whenever shall contract with an- performance for the work prime contracting person has undertaken another, perform prime contractor shall civilly employees engaged become liable to in the performance of work under such contract for the damages. payment exclusive of *7 added). (Emphasis ... § Code 21-5-7.
W.Va. assuming appellee prime Even that the is a contractor statute, meaning the the within of its reliance on this misplaced appellants section is have not because sought subject Zapata liability unpaid wages to civil by Rather, § in the suit envisioned 21-5-7. appellants’ course of action has been to seek enforcement § of their liens under W.Va. Code 38-2-31. The suit by may contemplated brought only § W.Va. Code 21-5-7 after the “have exhausted all feasible remedies § of [article 5].” contained W.Va. Code 21-5-7. One these wages remedies is 4(e). remedy appellants is in section It this contained a pursuing through procedural means of suit are here Consequently, not here we are mechanics’ liens. enforce exclusionary provisions of W.Va. Code with the concerned enforcing appellants process § their are in the 21-5-7. The 21-5-4(e); § pursuant are not Code liens to W.Va. contemplated engaged separate in the civil suit W.Va. § Code 21-5-7.
Ill requested proceeding appellants In the below pursuant § Code fees to W.Va. 21-5-12. award request because it was of the The trial court denied this 21, opinion Chapter dealt that article Code exclusively relations, employer-employee and there- Chapter article 5 could not be fore a claim under party corporation such as against a third enforced § proceeding brought Code 28-2-31 to in a liens. enforce mechanics’ provides: Virginia Code 21-5-12
(a). paid Any person wages whose have been may legal bring any with this article... in accord necessary claim under action collect a this article.
(b). any brought The court action under may, judgment article in the event is plaintiff plaintiffs, awarded to the assess costs action, including fees reasonable the defendant. undisputed appellants It have claims under liquidated damages. Chapter article 5 procedural to enforce means chosen proceed claims was to who 38-2-31, their contractor hired already applicable held lien statute. We have proper 38-2-31 is this was course since W.Va. Code properly used in aid of the enforcement claim under then, Chapter article 5. It follows the action Chapter 21, brought by is an action under *8 meaning article 5 within the 21-5-12. Consequently, attorney an award fees would have been proper. “may”
The statute the court assess costs of action, including attorney the reasonable fees the costs, including attorney fees, defendant. We feel prevailing plaintiffs should be awarded to as a matter of special course the absence of circumstances which would unjust. render such an award Both the and Collection Act and our
designed protect the laborer and act as aid in the compensation wrongfully collection of Working withheld. people should not have to resort to lawsuits to collect they When, however, have earned. such resort action is necessary, Legislature the has said that are entitled by payment to be made whole damages, costs, including attorney If fees. the laborer required attorney were fees out of an award compensate intended to performed, him for services policy issue, of these statutes would be frustrated. therefore, working people is not whether who assert legal rights Chapter 21, under W.Va. Code article 5 are attorney fees, attorney entitled to but what reasonable fee would the facts and circumstances of the particular Consequently, employee case. we hold that an enforcing who succeeds a claim under W.Va. Code Chapter ordinarily costs, article 5 should recover including attorney special reasonable fees unless circum- unjust. stances would render such an award Because no appear us, such circumstances on record on before costs, including remand the court below should award fees, appellants. reasonable to the determining the reasonableness of the fee award, the court should consider out factors set Disciplinary Rule 2-106 of our Code of Professional (1) Responsibility. These factors include: the time and labor required, novelty difficulty questions involved, requisite perform legal and the skill service (2) likelihood, client, properly; apparent if to the employment preclude employment by will locality (3) customarily charged in the lawyer; the fee (4) services; legal the amount involved similar (5) obtained; imported the time limitations results (6) length circumstances; nature client or *9 (7) client; relationship with the professional lawyers ability lawyer experience, reputation, of the (8) services; fee is performing whether fixed or Also, in our v. contingent. line with decision Orndorff Health, 1, 267 Department Virginia S.E.2d 165 W.Va. may (1980), any 430 fees below include award of appeal. expenses prosecuting incurred costs and foregoing reasons, of the Circuit For the decision reversed, County except Logan insofar it Court of is regular permits enforce liens for proceedings with this and remanded for consistent opinion. part;
Reversed in remanded. Justice,
Miller, dissenting: ignores majority the law in its both facts and may holding that liens be enforced result-oriented Zapata Corporation [Zapata] Zapata’s general contractor, fees M because (M T’s) T], Corporation wages to its & [M & T & failed required employees law. I issue with take no portion opinion is of the which concludes liable statute, lien to M T’s under our mechanic W. & Code, 38-2-31, wages weeks’ due as well as Va. for the four fringe all accrued vacation and other benefits contracted However, employees. deep M & T I am between and its majority’s holding disagreement wage that our 21-5-4(e) payment statute, Code, (imposing penalties nonpayment wages), can be read into the mechanic (enforcement statute, Code, W. Va. 38-2-31 liens workmen). unpaid by holding majority manages this absurd result “employee compen-
both relate liens to secure sation,” (Slip Opinion, p. 10), inpari thus read should be holding completely materia. This mischaracterizes purposes Code, fundamental of each of the Va. statutes. W. 38-2-31, permits employed workmen who are either general contractor or have a subcontractor lien for the wages against amount of their accrued the real and personal property who has hired their employer.1 historically We have held that this statute is and, therefore, remedial liberally should construed. Doddridge County Bank, 742, 188 Charter 117W.Va. S.E. Supply, Shore v. United Auto 107 W.Va. S.E. 890 hand, Code, 21-5-4(e),
On the other liquidated damages where an fails to employees, strictly due his limited to the employer-employee Furthermore, relationship.2 W. Va. Code, 38-2-31, provides: workman, “Every person laborer or other who shall do or
perform any
labor,
incorporated
company doing
work or
for an
State, by
directly
business in this
virtue of a contract either
incorporated
general contractor,
company
such
or with its
or with
any subcontractor,
shall
a
have
lien for the value of such work or
personal property
company;
all
labor
real estate and
of such
and,
labor,
to the extent and
of
value
one month’s such work or
priority
any
said lien shall have
over
lien created
deed or
personal property subsequent
on such
or
otherwise
real estate
to
performed: Provided,
when
or
the time
such work
labor was
however,
priority
be
there
shall
no
of lien as
of,
machinery
to,
conditional
sales
or reservation
of title
sold to
company;
priority
such
nor shall there be
lien
of
as between the
parties claiming
provisions
under
of
this section.”
Code, 21-5-4(e), provides:
person,
corporation
employee wages
“If a
or
firm
fails to
an
required
section,
person,
as
such
firm or
shall,
due,
employee
in addition to the
liable to the
amount
be
liquidated damages
wages
regular
in the amount of
at his
rate for
full,
day
employer
paid
each
is in default until he
is
without
rendering
Provided, however,
service therefor:
that he shall
thirty
Every
cease to draw such
after
default.
such
employee
rights
shall
such
have
lien
all other
and remedies
salary
protection
for the
and enforcement
such
or
as
of
he
been
would have
entitled to
he rendered service therefor
employed; except that,
purpose
the manner as
of
last
such
liquidated damages, such failures shall not be deemed to continue
traditionally
21-5-4(e),
statute,
Code,
penal
a
have
is
we
strictly
involving penalties
be
should
held
Blair,
employer pay wages employees. who fails to his There is rationality punishment encourage some to this since it will timely employers employees in a fashion. Moreover, is in direct control of the condition may give penalty. rise to the Such is not the case with party Zapata, over a third such as which has no control prompt payment T of its who are M & plaintiffs simply in this It is incredible to me that suit. Zapata, responsible.3 employer, is not the can made who strictly application
Other courts have
limited the
penalty provisions
wage collection statutes
similar
Corporation,
our
own.
Johnson v. Banner
be [citations omitted]. Because strictly these statutes construed the definition ‘anyone employing laborers ...’ cannot be inter- preted apply to Banner.” 308 at So.2d 536. Co.,
See also
521, 160
Fern
v. Latour Creek R.29 Idaho
P. 941
(1916);
Sheely,
174,
Milner v.
(1937),
Nev.
As a final Code, seizes W. Va. 21-5-12(b), of our Statute, and Collection any brought court “[t]he action may, under judgment article [if] is awarded to the plaintiff... assess. . .reasonable fees defendant,” (emphasis added), Zapata and holds liable for majority ignores fees. The proceed- the fact that ings Chapter under Article are confined to the employer-employee relationship was not relationship plaintiffs. Moreover, with the majority, early portions in the opinion, of its held that plaintiffs’ brough case was the mechanic statute, Code, 38-2-31; now, W. Va. it concludes “that brough by action Chapter is an action under 11) (Slip Opinion, article 5 ....” p. Legislature may slightly way astounded majority legislated which the meaning has new into W. Va. Code, 25-5-1, seq. Despite plain language et of this confining statute its employer-employee ambit to the relationship, maj ority opened has now it so wide that anyone may wage be sued if he has connection with the employer. might expect Legislature earner’s One majority’s suspect correct mistake but I that no matter *12 Legislature does, majority what would twist again. result back Gallagher
Vivian F. City Of Westover (No. 14475) July 17, Decided 1981.