Blankenship v. Mingo County Economic Opportunity Com'n, Inc., 20282

• Court: Supreme Court of West Virginia
• Citation: 187 W.Va. 157,416 S.E.2d 471
• Decision Date: 13 May 1992
• Docket Number: No. 20282,20282
• Parties: , 126 Lab.Cas. P 57,553 Earlene BLANKENSHIP, Plaintiff Below, Appellee v. MINGO COUNTY ECONOMIC OPPORTUNITY COMMISSION, INC., Defendant Below, Appellant.

Page 471

416 S.E.2d 471 187 W.Va. 157, 126 Lab.Cas. P 57,553 Earlene BLANKENSHIP, Plaintiff Below, Appellee
v.
MINGO COUNTY ECONOMIC OPPORTUNITY COMMISSION, INC.,
Defendant Below, Appellant. No. 20282. Supreme Court of Appeals of
West Virginia. Submitted Jan. 21, 1992.
Decided March 24, 1992.
Rehearing Denied May 13, 1992.

Page 473

[187 W.Va. 159] Syllabus by the Court

1. "A promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee's continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer's promise binding and enforceable." Syl. pt. 5, Cook v. Heck's Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986).

2. "Generally, the existence of a contract is a question of fact for the jury." Syl. pt. 4, Cook v. Heck's Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986).

3. " 'If a party offers evidence to which an objection is sustained, that party, in order to preserve the rejection of the evidence as error on appeal, must place the rejected evidence on the record or disclose what the evidence would have shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal.' Syllabus Point 1, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980)." Syl. pt. 8, Torrence v. Kusminsky, 185 W.Va. 734, 408 S.E.2d 684 (1991).

4. " 'The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made. Syl. pt. 1, State v. Jones, 84 W.Va. 85, 99 S.E. 271 (1919).' Syllabus Point 1, State v. Davis, W.Va. , 345 S.E.2d 549 (1986)." Syl. pt. 1, Templeton v. Templeton, 179 W.Va. 597, 371 S.E.2d 175 (1988).

Bernard Spaulding, Logan, for the appellee.

Cecil C. Varney, Varney Law Offices, Larry E. Thompson, Thompson & Thompson, Williamson, for the appellant.

PER CURIAM:

The Mingo County Economic Opportunity Commission (hereinafter EOC) appeals from a jury verdict entered in the Circuit Court of Mingo County in favor of a former employee of the EOC, Earlene Blankenship, who brought suit against the EOC seeking to be rehired under an implied contract theory. The EOC asserts numerous assignments of error and seeks to have the jury verdict set aside. Upon consideration of the record before us, we conclude that there is no reversible error.

I

Ms. Blankenship was employed by the EOC as one of five district directors. She earned an annual salary of approximately $15,000.00, which was paid with funds received by the EOC from Community Service Block Grant Funds (hereinafter CSBG).

In the fall of 1987, Herbert Harmon was appointed acting executive director of the EOC by the EOC Board of Directors. Thereafter, in a letter dated December 4, 1987, Mr. Harmon gave layoff notices to all employees working for the EOC who were paid by CSBG because the EOC was unable to make the payroll. Ms. Blankenship received one of these notices and was laid off.

Carl Bradford was later appointed by Arch Moore (hereinafter Moore), who was then serving as governor, to serve as a temporary trustee director at the EOC. Ms. Blankenship subsequently received a letter from Mr. Bradford notifying her, as a former employee of the EOC who had been laid off, that the EOC was filling positions for community service aides. Mr. Bradford advised Ms. Blankenship that a resume and references were to be sent to him at the EOC office by August 19, 1988.

Ms. Blankenship sent a response to Mr. Bradford's letter, dated August 19, 1988, stating that she was more interested in full-time employment but would accept part-time employment to supplement her income. She further advised him that she was in a "legal bind" as to whether she would be available for employment and requested that she be considered for any

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[187 W.Va. 160] positions which opened after September 12, 1988.

In December of 1988, four people were hired by the EOC to fill the community service aide positions. Ms. Blankenship was not one of those chosen for the position.

Ms. Blankenship filed a complaint against the EOC on October 6, 1989, alleging that she was entitled to be rehired by the EOC by virtue of a provision in the EOC's personnel policy stating that the priority for filling a vacancy within the agency should be given to any staff person or former staff person displaced as a direct result of the loss or reduction of funding.

Four days before the trial was scheduled to begin in this case, the trial court notified the parties that a hearing would be held sua sponte concerning a subpoena that was issued for former Governor Arch Moore to appear as a witness to testify in the case. The trial court advised the parties at the beginning of the hearing that Moore had called the court to say he knew nothing about the case and that he could not offer anything as a witness that would be of probative value in the case. Moore was also not available to appear at the trial. The trial court, after hearing the arguments of both parties, concluded that the subpoena should be quashed.

After the trial concluded, the jury returned a verdict in favor of Ms. Blankenship and awarded her damages in the amount of $51,090.00. The EOC filed a motion for judgment notwithstanding the verdict, or in the alternative, for a new trial. Following a hearing on that motion, the trial court denied the motion. The trial court subsequently entered an order on November 26, 1990, reflecting the jury's verdict and its judgment on the motion. The EOC now appeals from that order.

II

The EOC first contends that the trial court erred in failing to either direct a verdict in its favor or grant a new trial on the ground that there was no evidence introduced by Ms. Blankenship which established that the personnel policy in question was formally adopted by the EOC. Ms. Blankenship maintains that it was established, through the testimony of Rebecca Sheppard, a former EOC district director, and Mark Timothy Crum, a former executive director of the EOC, that the personnel policy was used at the EOC.

Before we address the issue of whether the evidence adduced by Ms. Blankenship established that the personnel policy in question was the policy of the EOC, we must first consider whether the jury could have concluded from the evidence that a certain provision of that policy created a binding contract. ¹

The provision in the personnel policy upon which Ms. Blankenship relied as creating a binding contract states:

When and if a vacancy occurs within the agency, the priority and obligations for filling the vacancy should be given to:

Any staff person or former staff person displaced or being displaced from employment as a direct result of the loss of funding and/or reduction of funding.

This Court has recognized that employee handbooks or policy manuals containing express or implied promises may create a binding contract. Collins v. Elkay Mining Co., 179 W.Va. 549, 555, 371 S.E.2d 46, 52 (1988); Cook v. Heck's Inc., 176 W.Va. 368, 342 S.E.2d 453 (1986). We specifically held in syllabus point 5 of Cook:

A promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee's continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer's promise binding and enforceable.

Whether the personnel policy constitutes an agreement binding the parties is

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[187 W.Va. 161] usually a question for the jury as we recognized in syllabus point 4 of Cook: "Generally, the existence of a contract is a question of fact for the jury."

In the case before us, Ms. Blankenship established at the jury trial that she was employed by the EOC as a district director. Mr. Harmon, who was acting director at the time Ms. Blankenship was laid off, testified that she was laid off as a result of the lack of funding. Moreover, the jury heard the testimony of Ms. Blankenship, Ms. Sheppard, Mr. Crum and Mr. Harmon identifying the personnel policy as the one used at the EOC at the time of the layoffs. Furthermore, a copy of the personnel policy was admitted into evidence. ² There was no evidence introduced by the EOC which contradicted the testimony of those witnesses regarding the personnel policy.

When considering this evidence in a light most favorable to Ms. Blankenship, it is clear that the trial court did not err in denying the EOC's motion for a directed verdict. ³ The evidence showed that the personnel policy was used at the EOC and that it included a provision giving priority to displaced employees in filling vacancies at the EOC. The evidence adduced by Ms. Blankenship established a prima facie case. Thus, it was within the province of the jury to ascertain from the facts whether the policy in question was the EOC's and whether its provisions constituted a binding contract. ⁴

III

The EOC next asserts that the trial court erred in quashing the subpoena of former Governor Arch Moore and in refusing to allow it to introduce letters written by Moore. Ms. Blankenship maintains that the testimony of Moore would have no bearing on the case and that the EOC never attempted at trial to introduce the letters written by Moore.

The EOC obtained a subpoena for the attendance of Moore at the trial pursuant to Rule 45(e)(1) of the West Virginia Rules of Civil Procedure. Rule 45(e)(1) provides that "[a]t the request of any party subpoenas for attendance at a hearing or trial shall be issued by the clerk of the court in which the hearing is held or the action is pending."

At the hearing on the issuance of the subpoena to former Governor...