Orndorff v. West Virginia Department of Health
In Orndorff v. West Virginia Department of Health, 165 W.Va. 1, 267 S.E.2d 430 (1980) the Court was confronted with the question of whether a statutory provision for reasonable attorneys' fees included recovery for legal services provided on a successful appeal from an administrative agency determination.
On this issue the Court observed:
"In most instances, the statutory entitlement to recover reasonable attorney fees is silent as to the levels of litigation to which the provision is applicable. Most courts, however, have had no difficulty in construing the statute to permit recovery of attorney fees for services on appeal. Fee recovery has been extended, furthermore, to include the time spent in attempting to obtain the reasonable attorney fees warranted by the particular statute, as stated in Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir. 1979), cert. denied, 444 U.S. 880, 62 L. Ed. 2d 110, 100 S. Ct. 170 . . . .
The premise underlying the extension of attorney fees to services rendered on appeal is that the client's right is often not ultimately vindicated until an appeal has been taken, and much of the attorney's incentive to prevail will be dissipated if he is compelled to prepare and prosecute an appeal without obtaining reasonable compensation. A secondary premise is the concern that a meritorious claim may be frustrated when the opposing party takes an appeal, and the party who should prevail abandons or compromises his claim because of the attrition of costs attendant to the appeal process."
(Id. at 6-7, 267 S.E.2d 433.)