                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Daryl Ballard,                                                                   FILED
Plaintiff Below, Petitioner                                                    November 8, 2013
                                                                            RORY L. PERRY II, CLERK
                                                                          SUPREME COURT OF APPEALS
vs) No. 13-0250 (Cabell County 11-C-764)                                      OF WEST VIRGINIA



Cabell County Deputy Sheriff’s Civil Service
Commission, Randy Saunders, in his official
capacity, Charles McComas, in his official
capacity, Glen Conway, and Tom McComas,
Sheriff of Cabell County, in his official capacity
Defendants Below, Respondents


                              MEMORANDUM DECISION
        Petitioner Daryl Ballard, by counsel Abraham J, Saad, appeals the January 28, 2013,
“Final Order” from the Circuit Court of Cabell County. Respondents, the Cabell County
Sheriff’s Civil Service Commission, Randy Saunders, Charles McComas, Glen Conway, and
Tom McComas, by counsel Ancil G. Ramey and William T. Watson, filed their response to
which petitioner filed his reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner contends that he did not receive a promotion to the rank sergeant with the
Cabell County Sheriff’s Department in 2011 due to the promotions of other deputies and a
limited number of sergeant positions with the department. Petitioner was hired as a deputy by the
Cabell County Sheriff’s Department in March of 1994. On October 28, 2007, then-sheriff Kim
Wolfe promoted petitioner from the rank of deputy first class to corporal. In February of 2008,
the Cabell County Deputy Sheriff’s Civil Service Commission (“the Commission”) and the
sheriff’s department made two promotions from the rank of deputy to corporal, but Deputies
Larry Gay and Winfred Dale Enochs did not receive promotions at that time. Deputies Gay and
Enochs then filed a civil action in the Circuit Court of Cabell County, Civil Action No. 10-C­
432, challenging the process of those promotions. On December 23, 2009, the Commission
introduced and implemented a new promotion plan, establishing the requirements and process by
which the Commission and sheriff’s department would make future promotions. On February 22,
2011, Deputy Gay signed a Release in Full of All Claims in Civil Action No. 10-C-432. The
release states that as part of the settlement, Deputy Gay would receive a retroactive promotion to

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corporal effective as of February of 2008.1 Also on February 22, 2011, Deputy Enochs signed a
Release in Full of All Claims in Civil Action No. 10-C-432. According to that release, Deputy
Enochs also received a retroactive promotion to corporal effective as of February of 2008.

        On or about May 21, 2011, all sheriff’s department promotion candidates took a test that
would be applied in the Commission’s formula for promotions. Petitioner received his evaluation
score during his personnel evaluation and appealed that score to the Commission. The
Commission heard the appeal but denied the same by letter dated October 4, 2011. On October 6,
2011, petitioner learned that Deputy Gay was being promoted to sergeant. Deputy Enochs was
also promoted from deputy first class to corporal.

        On October 14, 2011, petitioner filed an action for a preliminary injunction in the circuit
court seeking to block the promotion of Deputy Gay because he believed that Deputy Gay’s
promotion prevented his promotion from the rank of corporal to the rank of sergeant. Petitioner
named the three members of the Civil Service Commission for the Cabell County Sheriff’s
Department in their official capacities as defendants, Randy Saunders, Charles McComas, and
Glen Conway. He also named the Civil Service Commission and the sheriff. Count III of the
complaint is for a writ of mandamus claiming that petitioner’s evaluation score of fifty-nine
should have been at least seventeen points higher. Petitioner claimed he was entitled to a writ
reevaluating his score.2 In response, the named defendants answered, as did Deputy Gay as an
intervenor. In his answer, Deputy Gay admitted that he had held the rank of deputy first class
over the “last two years” but denied the allegation that he had not held the rank of corporal. On
September 12, 2012, an agreed order was entered abandoning petitioner’s claims that Deputy
Gay’s promotion should be stopped or rescinded. Deputy Gay was dismissed as intervenor in the
matter.

        On January 28, 2013, the circuit court entered its “Final Order” finding that the Release
in Full of All Claims was a valid settlement agreement and the promotion of Deputy Gay from
the rank of deputy to sergeant was valid. The circuit court further found that the promotion did
not violate the provisions of West Virginia Code § 7-14-1, et seq., including § 7-14-13. The
order states that all parties agreed that neither Deputies Gay nor Enochs held the position of
corporal before Deputy Gay’s promotion to the rank of sergeant in October of 2011. It is from
this order that petitioner appeals.

        On appeal, petitioner asserts two assignments of error: 1) a lack of mutual assent and 2) a
violation of West Virginia Code § 7-14-13. “‘A circuit court’s entry of a declaratory judgment is
reviewed de novo.’ Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).” Syl.

       1
       Although petitioner contests the promotions of both Deputies Gay and Enochs, only
Deputy Gay appeared as a party to this action as an intervenor before the circuit court.
       2
         In his reply and without reference to the record, petitioner states that he initially filed a
verified complaint and temporary restraining order in this matter because, on paper, the sheriff
promoted Deputy Gay from the rank of deputy first class to the rank of sergeant on October 14,
2011. He asserts that Deputy Enochs was promoted from the rank of deputy first class to
corporal on the same day. Petitioner claims that he was not aware of the releases until the initial
hearing in this matter.

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Pt. 1, Estate of Fussell v. Fortney, 229 W.Va. 622, 730 S.E.2d 405 (2012). In addition, “[i]n
reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong
deferential standard of review. We review the final order and the ultimate disposition 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.” Syl. Pt. 2,
Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).

        In support of his first assignment of error, petitioner argues that a valid settlement
agreement did not exist because there was no meeting of the minds between the parties to the
agreement and the parties did not accept the essential terms to the agreement. The settlement
agreements at issue were entered into in a separate action, being Civil Action No. 10-C-432 filed
in the Circuit Court of Cabell County; the settlement agreements are between plaintiffs Deputies
Gay and Enochs and defendants Cabell County Deputy Sheriff’s Civil Service Commission,
John Sears, George Kisor, and Tom McComas. The key terms of the releases are set forth above.
The only signature line on each release is for the respective releasing parties in that matter,
Deputies Gay and Enochs. Petitioner argues that because Sheriff McComas refused to sign off on
the settlement agreement in question, the agreement is invalid. “The contractual concept of
“meeting of the minds” or “mutual assent” relates to the parties having the same understanding
of the terms of the agreement reached.” Messer v. Huntington Anesthesia Group, Inc., 222
W.Va. 410, 418, 664 S.E.2d 751, 759 (2008). The parties to the settlement agreements at issue
do not contest the terms or the validity of the settlement agreements. During the September 19,
2012, hearing before the Circuit Court of Cabell County, Sheriff McComas testified that
Deputies Gay and Enochs received settlement checks in the amount of their claimed back pay
from the county commission’s budget because Sheriff McComas did not agree to it. Sheriff
McComas did not testify that he objected to the entirety of the settlement agreement and did not
state that he was contesting that agreement. To the extent that the same is a factual determination
based on the testimony, we hold that the circuit court’s finding that the settlement agreement was
a valid agreement is not clearly erroneous. In reviewing the record before this Court, to the
extent the same is a question of law, we find that the testimony sufficiently evidences the validity
of the settlement agreement. Further, we note as a practical matter that in many cases, only the
plaintiff or releaser signs the settlement agreement and/or the release.

         Petitioner’s second assignment of error is that Deputies Gay and Enochs never held the
rank of corporal, so the Commission could not have lawfully promoted either of them to the rank
of sergeant under the provisions of West Virginia Code § 7-14-13. West Virginia Code § 7-14-13
states: “[N]o person shall be eligible for promotion from the lower grade to the next higher grade
until such person shall have completed at least two years’ service in the next lower grade.”
Petitioner argues that only a deputy with a rank of corporal for at least two years is eligible for
promotion to the rank of sergeant. Pursuant to the releases signed by Deputies Gay and Enochs
in Civil Action No. 10-C-432, their respective promotions to corporal were retroactive to
February of 2008. Therefore, as of February 22, 2011, the date each man signed the release, both
Deputies Gay and Enochs had effectively been in the position of corporal for more than two
years. Further, petitioner does not contest the rights of Deputies Gay and Enochs to the position
of corporal effective February of 2008. Thus, as of February 22, 2011, Deputies Gay and Enochs
were eligible for promotion to the position of sergeant under West Virginia Code § 7-14-13. In
addition, West Virginia Code § 7-14-13 states that “[v]acancies in positions of deputy sheriff


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shall be filled, so far as practicable, by promotion from among persons holding positions in the
next lower grade.” Based upon the clear language of the statute and the record before this Court,
we find that Deputy Gay had effectively held the position of corporal for more than two years
prior to February 22, 2011. Therefore, we find there was no violation of West Virginia Code § 7­
14-13 with respect to Deputy Gay.

       For the foregoing reasons, we affirm.


                                                                                       Affirmed.

ISSUED: November 8, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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