Lipscomb v. Tucker County Com'n, No. 25847.

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW, Justice
Citation527 S.E.2d 171,206 W.Va. 627
PartiesJoan LIPSCOMB, Plaintiff Below, Appellant, v. TUCKER COUNTY COMMISSION, Defendant Below, Appellee.
Docket NumberNo. 25847.
Decision Date15 December 1999

527 S.E.2d 171
206 W.Va.
627

Joan LIPSCOMB, Plaintiff Below, Appellant,
v.
TUCKER COUNTY COMMISSION, Defendant Below, Appellee

No. 25847.

Supreme Court of Appeals of West Virginia.

Submitted September 21, 1999.

Decided December 15, 1999.


527 S.E.2d 172
Jodi K. Douglas, Esquire, John W. Cooper, Esquire, Parsons, for the Appellant

William M. Miller, Esquire, Parsons, for the Appellee.

McGRAW, Justice:

Joan S. Lipscomb appeals an order of the Circuit Court of Tucker County denying her motion for a new trial. Since 1976, Ms. Lipscomb had worked for the governmental entity in Tucker County responsible for dispatching ambulances. Although that entity changed over time, Ms. Lipscomb maintained essentially the same job throughout her career. In her trial, Ms. Lipscomb sought certain employment benefits. Specifically, she asserted a right to a so-called "service time credit" that was to pay an employee $10 per month (in addition to his or her regular compensation) for every year that an employee had been employed by the appellee, Tucker County Commission (the "Commission"). Although the appellee disagrees, Ms. Lipscomb

527 S.E.2d 173
maintains that she was at all relevant times an employee of the Commission.1 Because we agree with Ms. Lipscomb that the lower court committed reversible error, we grant her the relief she requests

I.

FACTUAL BACKGROUND

Although a dispute remains over who was Ms. Lipscomb's "employer" at various times, the record is clear that Ms. Lipscomb first went to work for Tucker County Emergency Medical Services ("Tucker County EMS") in 1976, where she worked full time until sometime in 1983, as a bookkeeper or dispatcher. In 1983, Ms. Lipscomb's job did not change, but the duties of Tucker County EMS were assumed by the newly created Tucker County Ambulance Authority ("Ambulance Authority"). Ms. Lipscomb continued her full time employment with the Ambulance Authority until sometime in 1987, when she reduced the number of hours she worked, becoming a part-time employee.

Ms. Lipscomb continued to work for the Ambulance Authority in a part-time capacity until sometime in 1989, when she returned to full time status. She was still employed, full time, as a dispatcher with the Ambulance Authority at the time of her trial. Throughout these years, she received annually a copy of IRS Form W2, which stated her employer to be the Tucker County Commission.

The instant dispute arose when the Tucker County Wage and Hour Review Board recommended that the Commission adopt the so-called "service time credit," whereby the county would pay its employees $10 per month, in addition to their regular compensation, for every year that an employee had worked for the Commission.2 The Board made this recommendation in January of 1990, which the Commission subsequently adopted.

Ms. Lipscomb maintains that she should have received this credit for every year she worked from 1976 to the present. She did receive the credit for the years 1989 and later, but the Commission refused to pay her the credit for years worked before 1989, on the basis that she was not actually an employee of the county before that time, or because her reduction from full to part-time rendered her ineligible for the bonus.

After her supervisor denied her the bonus for years prior to 1989, Ms. Lipscomb submitted a grievance to the Wage and Hour Review Board, which also denied her claim. She then sought a review by the Commission, which also found against her, after a hearing conducted on October 12, 1994.

On February 10, 1995, Ms. Lipscomb appealed the Commission's decision to the Circuit Court of Tucker County, and, on the same day, filed a civil suit against the Commission under the Wage Payment and Collection Act, W. Va.Code § 21-5-1 et seq. Although the Circuit Court of Tucker County initially dismissed her actions as untimely and barred by the statute of limitations, this Court, in Lipscomb v. Tucker County Commission, 197 W.Va. 84, 475 S.E.2d 84 (1996), overturned the lower court, and sent the matter back to Tucker County for trial.

Ms. Lipscomb finally had her trial on January 28 and 29, 1998, wherein the jury found that she was not entitled to the service credit for the years prior to 1989. She moved for a new trial, but by order dated July 28, 1998, the Circuit Court of Tucker County denied that motion and entered judgment on the jury verdict. It is from this order that Ms. Lipscomb now appeals.

Appellant argues that the lower court committed reversible error by denying appellant's motion in limine and by making improper comments to the jury regarding the credibility of a witness. We agree with appellant

527 S.E.2d 174
that the errors made below entitle her to a new trial

II.

STANDARD OF REVIEW

We grant trial court judges wide latitude in conducting the business of their courts. However, this authority does not go unchecked, and a judge may not abuse the discretion granted him or her under our law:

Ordinarily, when a circuit court is afforded discretion in making a decision, this Court accords great deference to the lower court's determination. However, when we find that the lower court has abused its discretion, we will not hesitate to right the wrong that has been committed.

Rollyson v. Jordan, 205 W.Va. 368 379, 518 S.E.2d 372, 383 (1999). Accord, Gribben v. Kirk, 195 W.Va. 488, 500, 466 S.E.2d 147, 159 (1995). And this is the standard that we employ when a party challenges the denial of a motion for a new trial:

We review the rulings of the circuit court concerning a new trial and its conclusion as to the existence of reversible error under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Tennant v. Marion Health Care Foundation, 194 W.Va. 97, 104, 459 S.E.2d 374, 381 (1995). With the foregoing in mind, we examine the actions of the judge in the case before us.

III.

DISCUSSION

A.

Denial of Motion in Limine

The lower court denied Ms. Lipscomb's motion in limine, with which she had hoped to exclude "any and all statements or evidence pertaining to the Wage and Hour Review Board's policy applying to only continuous years of service." Appellant argues...

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20 practice notes
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • 12 Diciembre 2001
    ...does not go unchecked, and a judge may not abuse the discretion granted him or her under our law." Lipscomb v. Tucker County Com'n., 206 W.Va. 627, 630, 527 S.E.2d 171, 174 Furthermore, when we are asked to decide if a jury received the proper instructions in a given trial our review is de ......
  • Blackrock Capital Inv. Corp. v. Fish, No. 15-1122
    • United States
    • Supreme Court of West Virginia
    • 24 Abril 2017
    ...legally-mandated opportunity to provide a substantive response to the dispositive motion.9 See also Lipscomb v. Tucker County Comm'n., 206 W.Va. 627, 630, 527 S.E.2d 171, 174 (1999) ("We grant trial court judges wide latitude in conducting the business of their courts. However, this authori......
  • Radec, Inc. v. Mountaineer Coal Dev. Co., No. 27804.
    • United States
    • Supreme Court of West Virginia
    • 11 Diciembre 2000
    ...subject to a de novo review. Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Accord Lipscomb v. Tucker County Comm'n, 206 W.Va. 627, 630, 527 S.E.2d 171, 174 (1999); Coleman v. Sopher, 201 W.Va. 588, 605, 499 S.E.2d 592, 609 (1997); Tennant v. Marion Health Care Found., 19......
  • Tri-State Petroleum Corp. v. Coyne, No. 17-0009
    • United States
    • Supreme Court of West Virginia
    • 12 Abril 2018
    ...Id. at 51, 365 S.E.2d at 249.73 Beto v. Stewart , 213 W. Va. 355, 359, 582 S.E.2d 802, 806 (2003).74 Lipscomb v. Tucker Cty. Comm’n., 206 W. Va. 627, 630, 527 S.E.2d 171, 174 (1999).75 State ex rel. Med. Assurance of W. Va. v. Recht , 213 W. Va. 457, 464, 583 S.E.2d 80, 87 (2003) (citations......
  • Request a trial to view additional results
20 cases
  • Foster v. Sakhai, No. 29339.
    • United States
    • Supreme Court of West Virginia
    • 12 Diciembre 2001
    ...does not go unchecked, and a judge may not abuse the discretion granted him or her under our law." Lipscomb v. Tucker County Com'n., 206 W.Va. 627, 630, 527 S.E.2d 171, 174 Furthermore, when we are asked to decide if a jury received the proper instructions in a given trial our review is de ......
  • Blackrock Capital Inv. Corp. v. Fish, No. 15-1122
    • United States
    • Supreme Court of West Virginia
    • 24 Abril 2017
    ...legally-mandated opportunity to provide a substantive response to the dispositive motion.9 See also Lipscomb v. Tucker County Comm'n., 206 W.Va. 627, 630, 527 S.E.2d 171, 174 (1999) ("We grant trial court judges wide latitude in conducting the business of their courts. However, this authori......
  • Radec, Inc. v. Mountaineer Coal Dev. Co., No. 27804.
    • United States
    • Supreme Court of West Virginia
    • 11 Diciembre 2000
    ...subject to a de novo review. Syl. pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000). Accord Lipscomb v. Tucker County Comm'n, 206 W.Va. 627, 630, 527 S.E.2d 171, 174 (1999); Coleman v. Sopher, 201 W.Va. 588, 605, 499 S.E.2d 592, 609 (1997); Tennant v. Marion Health Care Found., 19......
  • Tri-State Petroleum Corp. v. Coyne, No. 17-0009
    • United States
    • Supreme Court of West Virginia
    • 12 Abril 2018
    ...Id. at 51, 365 S.E.2d at 249.73 Beto v. Stewart , 213 W. Va. 355, 359, 582 S.E.2d 802, 806 (2003).74 Lipscomb v. Tucker Cty. Comm’n., 206 W. Va. 627, 630, 527 S.E.2d 171, 174 (1999).75 State ex rel. Med. Assurance of W. Va. v. Recht , 213 W. Va. 457, 464, 583 S.E.2d 80, 87 (2003) (citations......
  • Request a trial to view additional results

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