Ingram v. City of Princeton

• Decision Date: 12 July 2000
• Docket Number: No. 26351.,26351.
• Citation: 540 S.E.2d 569,208 W. Va. 352
• Court: West Virginia Supreme Court
• Parties: Donald E. INGRAM, Jr., Plaintiff Below, Appellee, v. The CITY OF PRINCETON, A West Virginia Municipal Corporation, Defendant Below, Appellant.

540 S.E.2d 569

208 W. Va. 352

Donald E. INGRAM, Jr., Plaintiff Below, Appellee, v. The CITY OF PRINCETON, A West Virginia Municipal Corporation, Defendant Below, Appellant.

No. 26351.

Supreme Court of Appeals of West Virginia.

Submitted January 12, 2000.

Decided July 12, 2000.

Concurring and Dissenting Opinion of Justice Starcher July 12, 2000.

Fred F. Holroyd, Scott Evans, Holroyd, Yost & Evans, Charleston, for Appellant.

Dennis R. Vaughan, Jr., April Robertson Boughton, Vaughan Law Firm, Charleston, for Amicus Curiae, West Virginia Municipal League, Inc.

R. Thomas Czarnik, Princeton, for Appellee.

PER CURIAM:

The City of Princeton, appellant/defendant (hereinafter referred to as "City"), appeals an adverse jury verdict rendered in the Circuit Court of Mercer County. The City was sued by a former employee, Donald E. Ingram, Jr., appellee/plaintiff (hereinafter referred to as "Mr. Ingram"), for unused sick leave pay that accrued during his employment with the City. The City assigns as error that: (1) the Wage Payment and Collection Act does not apply to a government employer, (2) the City had an unwritten policy of not paying unused sick leave to police officers, (3) the circuit court committed error in refusing to give two of the City's proffered jury instructions, and (4) the circuit court committed error in awarding attorney's fees and costs.¹ Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we reverse the decision of the Circuit Court of Mercer County.

I. FACTUAL BACKGROUND

Mr. Ingram was employed by the City as a police officer for approximately ten years. On or about July 8, 1997, Mr. Ingram resigned his employment with the City.² When Mr. Ingram resigned, he requested payment for all unused sick leave that he had accrued. It was determined that his accumulated sick leave amounted to 99 days and 3 hours. The City refused to pay Mr. Ingram for his unused sick leave based upon the City's unwritten policy of not paying unused sick leave wages to police officers who leave their employment with the City.

Thereafter, Mr. Ingram filed the instant suit against the City under the West Virginia Wage Payment and Collection Act, W. Va. Code § 21-5-1, et seq. (hereinafter referred to as "the Act"). In his complaint, Mr. Ingram alleged that the Act required the City to pay him for all accrued unused sick leave upon his resignation. The City's primary defense was that because it had not agreed, either expressly or impliedly, to pay unused sick leave as separation pay the Act did not require such payment. Following a trial of the matter, the case was submitted to a jury, and a verdict was returned in favor of Mr. Ingram.³ The City then filed post-trial motions which the circuit court denied. From these adverse rulings, the City now appeals.

II. STANDARD OF REVIEW

The applicable general standard of review in this case was set out by this Court in Syllabus point one of Alkire v. First National Bank, 197 W.Va. 122, 475 S.E.2d 122 (1996):

In reviewing a trial court's denial of a motion for judgment notwithstanding the verdict, it is not the task of the appellate court reviewing facts to determine how it would have ruled on the evidence presented. Its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, in ruling on a denial of a motion for judgment notwithstanding the verdict, the evidence must be viewed in the light most favorable to the nonmoving party. If on review, the evidence is shown to be legally insufficient to sustain the verdict, it is the obligation of the appellate court to reverse the circuit court and to order judgment for the appellant.⁴

See Syl. pt. 1, Tudor v. Charleston Area Med. Ctr., Inc., 203 W.Va. 111, 506 S.E.2d 554 (1997). We have also previously held that

[i]n determining whether the verdict of a jury is supported by the evidence, every reasonable and legitimate inference, fairly arising from the evidence in favor of the party for whom the verdict was returned, must be considered, and those, facts, which the jury might properly find under the evidence, must be assumed as true.

Syl. pt. 3, Walker v. Monongahela Power Co., 147 W.Va. 825, 131 S.E.2d 736 (1963). Thus, under this standard, we construe the evidence in the light most favorable to the plaintiff who prevailed below.

III. DISCUSSION

A. Application of the Wage Payment and Collection Act to Government Employers

The City first contends that the Act is not applicable to it as a municipality and therefore, the circuit court was without jurisdiction. In contrast, Mr. Ingram asserts that the City failed to present this contention to the trial court. "Typically, we have steadfastly held to the rule that we will not address a nonjurisdictional issue that has not been determined by the lower court." State ex rel. Clark v. Blue Cross Blue Shield of West Virginia, Inc., 203 W.Va. 690, 699, 510 S.E.2d 764, 773 (1998). See Syl. pt. 2, Trent v. Cook, 198 W.Va. 601, 482 S.E.2d 218 (1996); Syl. pt. 3, Voelker v. Frederick Bus. Properties Co., 195 W.Va. 246, 465 S.E.2d 246 (1995). However, the issue asserted by the City "is one of jurisdiction, which may be raised for the first time on appeal." Jan-Care Ambulance Serv., Inc. v. Public Serv. Comm'n of West Virginia, 206 W.Va. 183, 188 n. 4, 522 S.E.2d 912, 917 n. 4 (1999). See Syl. pt. 6, State ex rel. Hammond v. Worrell, 144 W.Va. 83, 106 S.E.2d 521 (1959) ("Lack of jurisdiction may be raised for the first time in this court, ... and may be taken notice of by this court on its own motion."(internal quotations and citations omitted)).

The crux of the City's argument is that, under the wage payment and collection provisions of the Act, the term "employer" is not defined to mean a government employer. W. Va.Code § 21-5-1(m) (1996) states that "[t]he term `employer' means any person, firm or corporation employing any employee." Thus, the City contends that since this definition does not expressly state that a government entity is included in the definition of employer, the wage payment and collection provisions of the Act do not apply to the City.

In support of its argument, the City cites to the definition of employer used in the polygraph section of the Act⁵. Under W. Va.Code § 21-5-5a(1) (1996) "employer" is defined as follows:

"Employer" means any individual, person, corporation, department, board, agency, commission, division, office, company, firm, partnership, council, or committee of the state government; public benefit corporation, public authority or political subdivision of the State, or other business entity, which employs or seeks to employ an individual or individuals.

(Emphasis added).

Thus, the City argues that because the wage payment and collection definition of employer does not include within its scope governmental entities as does the polygraph definition of this term, the Legislature did not intend the wage payment and collection provisions to apply to government employers.

We are unpersuaded by the City's argument that the expansive definition of employer provided in the polygraph section of the Act indicates a legislative intent to limit the definition of employer under the wage payment and collection provisions of the Act. A review of the legislative history of W. Va. Code § 21-5-1 reveals the following facts. The Legislature originally enacted this statute in 1917 and made it applicable only to railroad companies. See 1917 Acts of the West Virginia Legislature, ch. 50, § 1. A subsequent amendment to the statute in 1923 continued the statute's limited applicability to railroad companies. See 1923 Acts of the West Virginia Legislature, ch. 54, § 71n. In 1975, the Legislature substantially amended this provision and expanded its application to include the term "firm," which was broadly defined to include "any partnership, association, joint-stock company, trust, division of a corporation ... or officer thereof, employing any person." See 1975 Acts of the West Virginia Legislature, ch. 147; The term "employer" did not appear in the statute until amendments thereto enacted in 1981. See 1981 Acts of the West Virginia Legislature, ch. 212. At that time, the term "employer" was defined, as it is under the current statute, to mean "any person, firm or corporation employing any employee." We find it relevant that the definition of employer added by the Legislature in 1981, actually added only one new matter, which was the undefined term "person" at the beginning of the definitional language. Thus, the true issue is whether the State and its subdivisions were intended by the Legislature to come within the meaning of the term "person."⁶

While many cases decided under the wage payment and collection provisions of the Act have primarily involved nongovernmental employers, we nevertheless have had occasion to construe these provisions in cases involving government employers. In Lipscomb v. Tucker County Commission (I), 197 W.Va. 84, 475 S.E.2d 84 (1996) (hereinafter referred to as "Lipscomb I"), we applied the wage payment and collection provisions of the Act against the Tucker County Commission. In Lipscomb (I) the Tucker County Commission, which attempted to circumvent the Act by using the statute of limitations as a bar to the plaintiff's claim. We rejected the defense, holding, in Syllabus point 4, that "[a] claim for unpaid wages under the West Virginia Wage and Payment Collection Act is a continuing claim, and, therefore, a separate cause of action accrues each payday that the employer refuses to pay the wages claimed." 197 W.Va. 84, 475 S.E.2d 84. See Lipscomb v. Tucker County Com'n (II), 206 W.Va. 627, 527 S.E.2d. 171 (1999)

(hereinafter referred to as "Lipscomb II"); Lawson v. County Com'n of Mercer County, 199 W.Va. 77, 483 S.E.2d 77 (1996) (per curiam) (implicitly recognizing application of Act to county).

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