                              STATE OF WEST VIRGINIA

                            SUPREME COURT OF APPEALS


Thomas Lauderman,                                                                  FILED
Plaintiff Below, Petitioner                                                        May 17, 2013
                                                                              RORY L. PERRY II, CLERK
                                                                            SUPREME COURT OF APPEALS
vs) No. 12-0390 (Harrison County 11-C-20)                                       OF WEST VIRGINIA



Associated Specialists, Inc. and Saad Mossallati, individually
and as President of Associated Specialists, Inc.
Defendants Below, Respondents


                                MEMORANDUM DECISION

       Petitioner Thomas Lauderman, by counsel Gregory H. Schillace, appeals the Circuit
Court of Harrison County’s order denying his motion to alter or amend a judgment entered on
February 21, 2012. Respondents Associated Specialists, Inc. and Saad Mossallati, by counsel
Thomas G. Dyer and Mary Guy Dyer, argue in support of the order.

       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 is a physician who was formerly employed by Respondent Associated
Specialists, Inc., of which Respondent Saad Mossallati is the president. On December 31, 2010,
respondents terminated petitioner’s employment. Petitioner filed suit asserting two counts
against respondents: (1) violation of West Virginia Code § 21-5-4(b) of the West Virginia Wage
Payment and Collection Act (“WPCA”) for allegedly failing to pay petitioner all wages owed to
him within seventy-two hours of his termination; and (2) breach of contract for allegedly failing
to give proper notice of termination and failing to pay wages and benefits pursuant to the terms
of the petitioner’s employment agreement.1 The case went to a jury trial in November of 2011.

        Although there were two separate counts against two named defendants, the first special
interrogatory on the jury verdict form did not differentiate between either the counts or the
defendants. Instead, it combined everything into a single question that asked whether the jury
“find[s] in favor of plaintiff, Thomas Lauderman with respect to his complaint against Saad
Mossallati and Associated Specialists, Inc.” The jury checked “yes” in response to this question
and proceeded to award damages: $36,923.23 for “physician pay,” $16,058.00 for “IRA
contribution,” and $19,000 for “tail insurance.” In response to the second special interrogatory

1
    Respondents pursued a counterclaim that was unsuccessful and is not relevant to this appeal.
                                                  1

on the verdict form, the jury answered “no” when asked whether respondent, “Saad Mossallati,
knowingly permitted the violation of the” WPCA. There had been no objection to the use of this
verdict form.

        In a post-trial motion, petitioner asked the circuit court to award him statutory liquidated
damages for respondents’ failure to pay his final paycheck within seventy-two hours. Petitioner
relied upon West Virginia Code § 21-5-4(e), which provides for an award of three times the
unpaid wages if an employer fails to pay an employee’s wages in accordance with § 21-5-4 of
the WPCA.

       After briefing, the circuit court denied the motion and entered the final judgment order on
December 22, 2011. On January 3, 2012, petitioner filed a motion pursuant to Rule 59(e) of the
West Virginia Rules of Civil Procedure to alter or amend the judgment, again seeking the
addition of liquidated damages. On February 21, 2012, the circuit court entered a final order
denying the motion.

        AThe standard of review applicable to an appeal from a motion to alter or amend a
judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the
underlying judgment upon which the motion is based and from which the appeal to this Court is
filed.@ Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430, 513 S.E.2d 657
(1998). Furthermore,

       [i]n reviewing challenges to findings and rulings made by a circuit court, we
       apply a two pronged deferential standard of review. 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.

Syl. Pt. 3, State v. Vance, 207 W.Va. 640, 535 S.E.2d 484 (2000).

        Petitioner argues that there was evidence at trial proving when his final paycheck was
issued. However, from the verdict form, it is impossible to determine whether the jury ruled in
favor of petitioner on both counts of the Complaint. It is possible that the jury found in favor of
petitioner only on the breach of contract claim. The jury’s award of “physician pay” was much
higher than petitioner’s bi-weekly paycheck. Moreover, the jury awarded money for categories
of damages over and above what would have been due in petitioner’s final paycheck, such as an
award for insurance coverage. In the only question on the verdict form that specifically
addressed the WPCA, the jury found against petitioner. We agree with the circuit court’s
conclusion that if petitioner was seeking an award of liquidated damages, then he should have
taken steps before and during trial to put the issue before the court—including, but not
necessarily limited to, submitting a better jury verdict form.

       For the foregoing reasons, we affirm.

                                                                                         Affirmed.

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ISSUED: May 17, 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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