Justice Highwall Mining, Inc. v. Varney

249 W.Va. 1

890 S.E.2d 685

JUSTICE HIGHWALL MINING, INC., Dynamic Energy, Inc., and Bluestone Industries, Inc., Defendants Below, Petitioners, v. Ricky M. VARNEY, Plaintiff Below, Respondent.

No. 22-ICA-39

West Virginia Intermediate Court of Appeals.

Submitted: April 4, 2023

Filed: June 15, 2023

Ronald H. Hatfield, Jr., Esq., General Counsel, Bluestone Resources, White Sulphur Springs, West Virginia, Counsel for Petitioners

Samuel B. Petsonk, Esq., Petsonk PLLC, Oak Hill, West Virginia, Bren Pomponio, Esq., Laura Davidson, Esq., Mountain State Justice, Inc., Charleston, West Virginia, Counsel for Respondent

LORENSEN, Judge:

Petitioners Justice Highwall Mining, Inc., Dynamic Energy, Inc., and Bluestone Industries, Inc., defendants below, (hereinafter, collectively, "JHM") appeal a judgment of the Circuit Court of Wyoming County finding that JHM wrongfully terminated Respondent Ricky M. Varney from employment in violation of a substantial public policy. Specifically, JHM appeals: (1) the circuit court's refusal to grant its original and renewed motions for judgment as a matter of law; (2) the circuit court's refusal to order a new trial on various procedural and evidentiary grounds; (3) the circuit court's award of attorney fees to Mr. Varney; and (4) the circuit court's award of prejudgment interest to Mr. Varney.

For the reasons below, we affirm the circuit court's rulings denying JHM's renewed motion for judgment as a matter of law and motion for a new trial. However, we find that the circuit court erred in its award of attorney fees and prejudgment interest. In its attorney fees award, the circuit court explicitly abdicated its responsibility to exercise discretion in determining if an award of fees was appropriate. Instead, it relied wholly on the jury verdict's recommendation to award fees. In awarding prejudgment interest, we find that the circuit court miscalculated the award. Accordingly, we vacate those awards and remand for reconsideration in light of this opinion.

I. Facts and Procedural Background

In 2016, Mr. Varney was employed as a coal mine welder, fabricator, and mechanic by JHM at the Coal Mountain Mining Complex in Wyoming County, West Virginia. Over the course of that year, on two occasions, Mr. Varney refused to perform work he believed would be unsafe. ¹

The first occasion occurred in November 2016, when Mr. Varney refused to perform welding repairs on large mining machinery. Specifically, he told a member of management, Todd Bradford, a mine superintendent, that he could not repair a machine's metal steps and handrails because he lacked the appropriate material to perform a safe weld. Despite Mr. Varney's objection, Mr. Bradford instructed him to "humor me and make something work." Mr. Varney understood this to mean he should use scrap metal to repair the equipment. Mr. Varney again refused, noting the stairs and handrails to be safety sensitive equipment and beyond repair. Upon Mr. Varney's insistence, Mr. Bradford relented and ordered a new set of stairs.

On the second occasion, Mr. Varney refused to operate his assigned welding truck because it was leaking fuel into its coolant system, creating a safety hazard. ² Mr. Varney reported this to Mr. Bradford, who acknowledged mechanics would need to inspect it, but still required Mr. Varney to continue operating the welding truck in that condition. However, at some point, the welding truck was "red-tagged" and taken out of service. As a result, without his welding truck, Mr. Bradford had to arrange for equipment to be brought to Mr. Varney to perform maintenance.

The events which gave rise to Mr. Varney's termination occurred in January 2017. Prior to his termination, Mr. Varney accrued two consecutive unexcused absences from work. Specifically, on January 6, 2017, Mr. Varney missed work to move into a new house and on January 7, 2017, he missed work to assist his son in recovering from a house fire. Mr. Varney expected to utilize his earned personal days to cover the absences without penalty, which was an accepted practice at JHM.

Mr. Varney expected to report to work on Monday, January 9, 2017. However, on his way to work, he was contacted by his direct supervisor, Chris Wells, who instructed him to not report to work. Mr. Wells explained that Mr. Varney needed to speak with Mr. Bradford before returning to work, but because Mr. Bradford was not on-site that day, he needed to wait until tomorrow. On January 10, 2017, as instructed, Mr. Varney arrived at the job site and spoke with Mr. Bradford. There, Mr. Varney was told he was suspended for three days and to report back on January 14, 2017. When he did, Mr. Varney was notified that he was being terminated for missing two consecutive days.

Mr. Varney subsequently brought this civil action against JHM in the Circuit Court of Wyoming County, alleging he was wrongfully terminated in retaliation for his safety complaints and work refusals. At trial, testimony and documents were presented that, when viewed in the light most favorable to Mr. Varney, could establish, among other things, that: (1) policy and practice at JHM permitted consecutive unexcused absences, so long as the employee had personal days to cover the missed time; (2) in his role as a welder, Mr. Varney made safety complaints and refused to perform work he believed would be unsafe; (3) Mr. Varney's co-worker, Nicholas Dove, believed JHM retaliated against Mr. Varney because of his safety complaints; (4) JHM removed Mr. Varney's personal days to engineer a pretextual reason to terminate him; (5) initially, Mr. Varney was not compensated for his remaining personal days in his final paycheck; ³ and (6) Mr. Varney was later compensated for these personal days in a subsequent payment.

At the conclusion of a three-day trial, JHM moved for judgment as a matter of law, arguing that there was insufficient evidence to establish that JHM had violated a substantial public policy, or in the alternative, that JHM had proven it had a legitimate purpose in terminating Mr. Varney. The circuit court denied the motion. Afterward, the case was submitted to the jury, who returned a verdict for Mr. Varney, finding JHM liable for retaliatory discharge. The jury awarded Mr. Varney $148,140.00 in compensatory damages and $11,860.00 in general damages. Further, the jury was instructed on the issue of attorney fees and, in its verdict, found that Mr. Varney should be awarded attorney fees. On January 10, 2022, the circuit court issued an order granting Mr. Varney $26,092.55 and $17,040.00 in fees and costs ⁴ for the services of his attorneys. ⁵ Additionally, on March 14, 2022, the circuit court issued an order awarding Mr. Varney $11,200.00 in prejudgment interest. ⁶ These amounts were memorialized in the circuit court's May 16, 2022, final judgment order, totaling in a $214,332.55 judgment against JHM.

Finally, on July 22, 2022, the circuit court entered an order addressing JHM's renewed motion for judgment as a matter of law, motion for a new trial, and motion to alter or amend the judgment on the issues of attorney fees and prejudgment interest. The circuit court denied each motion, and it is from this order that JHM appeals.

II. Standard of Review

On appeal, JHM argues that: (1) the circuit court erred in refusing to grant it judgment as a matter of law because there was insufficient evidence to support Mr. Varney's Harless claim; ⁷ (2) the circuit court erred in refusing to order a new trial when JHM was prejudiced by opposing counsel's repeated references to hearsay; (3) the circuit court erred in refusing to order a new trial when the verdict was against the clear weight of the evidence; (4) the circuit court erred in refusing to order a new trial when the jury was not properly instructed on the burden of proof for an award of attorney fees; (5) the circuit court erred by refusing to amend the judgment to strike the award of attorney fees when the jury was not properly instructed on the burden of proof for an award of attorney fees; and (6) the circuit court erred in awarding prejudgment interest in excess of the statutorily mandated minimum of four percent established by West Virginia Code § 56-6-31 (2018). ⁸

In McClure Management, LLC v. Taylor , the Supreme Court explained:

We will set out the standard of review for each issue as it is addressed below. See State v. Boyd , 238 W. Va. 420, 428, 796 S.E.2d 207, 215 (2017) ("We will dispense with our usual standard of review section because each of the assignments of error has its own review criteria."); State v. Dunn , 237 W. Va. 155, 158, 786 S.E.2d 174, 177 (2016) ("Therefore, we dispense with setting out a general standard of review. Specific standards of review will be discussed separately as we address each assignment of error.").

243 W. Va. 604, 611–12, 849 S.E.2d 604, 611–12 (2020).

III. Discussion

A. Renewed Judgment as a Matter of Law

We first address JHM's arguments regarding its renewed motion for judgment as a matter of law.

"The appellate standard of review for an order granting or denying a renewed motion for a judgment as a matter of law after trial pursuant to Rule 50(b) of the West Virginia Rules of Civil Procedure ... is de novo." Syl. Pt. 1, Fredeking v. Tyler , 224 W. Va. 1, 680 S.E.2d 16 (2009). Further,

when this Court reviews a trial court's order granting or denying a renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West Virginia Rules of Civil Procedure [ ], it is not the task of this Court to review the facts to determine how it would have ruled on the evidence presented. Instead, its task is to determine whether the evidence was such that a reasonable trier of fact might have reached the decision below. Thus, when considering a ruling on a renewed motion for judgment as a matter of law after trial, the evidence must be viewed in the light most favorable to the nonmoving party.

Id. at Syl. Pt. 2.

At trial, Mr. Varney...