                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Michael Ellis,
Plaintiff Below, Petitioner                                                        FILED
                                                                               November 21, 2014
                                                                              RORY L. PERRY II, CLERK
vs) No. 14-0418 (Kanawha County 13-C-AP-162)                                SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
Kanawha County Public Library Board,
Defendant Below, Respondent

                              MEMORANDUM DECISION

        Petitioner Michael Ellis, appearing pro se, appeals the April 4, 2014, order of the Circuit
Court of Kanawha County that (1) rejected petitioner’s claim that Respondent Kanawha County
Public Library Board failed to pay him two weeks of wages; and (2) awarded petitioner liquidated
damages in the amount of $39.50, plus pre-judgment interest and post-judgment interest, based on
its finding that respondent did not pay petitioner in full within seventy-two hours of his
termination in violation of the Wage Payment and Collection Act (“WPCA”), West Virginia Code
§§ 21-5-1 to 21-5-18. Respondent, by counsel Christopher J. Winton, filed a response, and
petitioner filed a reply.

        The 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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the
Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an
opinion. For the reasons expressed below, the decision of the circuit court is affirmed, in part, and
reversed, in part, and this case is remanded to the circuit court with directions to recalculate
petitioner’s liquidated damages pursuant to the 2006 version of the WPCA, which was in effect at
the time of petitioner’s termination.

        Petitioner worked for respondent from December 27, 2010, through July 2, 2013, when
respondent terminated his employment. Subsequently, petitioner sued respondent based on the
following two claims: (1) respondent failed to pay him two weeks of wages; and (2) respondent
violated the WPCA by failing to pay him in full within seventy-two hours of his termination.

         The circuit court held a bench trial on petitioner’s claims on March 26, 2014,1 at which
both petitioner and respondent’s accounting services coordinator (“accounting coordinator”)
testified. During the accounting coordinator’s testimony, respondent submitted into evidence a

       1
         The circuit court heard the case as an appeal from the magistrate court, which ruled on
both claims in respondent’s favor following a bench trial. Pursuant to West Virginia Code §
50-5-12(b), petitioner was entitled to a trial de novo in the circuit court.

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spreadsheet showing all of petitioner’s payments throughout his employment. Based upon the
accounting coordinator’s testimony and the spreadsheet, the circuit court rejected petitioner’s
claim that respondent failed to pay him two weeks of wages, finding that he was “paid in full” for
his work from December 27, 2010, through July 2, 2013.

        However, on petitioner’s second claim, the circuit court determined that respondent failed
to pay petitioner in full within seventy-two hours of his termination in violation of the WPCA,
West Virginia Code § 21-5-4(b). The circuit court concluded that petitioner was entitled to
liquidated damages pursuant to West Virginia Code § 21-5-4(e). The circuit court calculated that
the amount of petitioner’s liquidated damages came to $39.50 under the 1975 version of the
WPCA. The circuit court entered a judgment in petitioner’s favor for $39.50, plus pre-judgment
and post-judgment interest.

       Petitioner now appeals the circuit court’s April 4, 2014 order. We apply the following
standard when reviewing a judgment entered following a bench trial:

       In reviewing challenges to the findings and conclusions of the circuit court made
       after a bench trial, a two-pronged deferential standard of review is applied. The
       final order and the ultimate disposition are reviewed under an abuse of discretion
       standard, and the circuit court’s underlying factual findings are reviewed under a
       clearly erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538
(1996).

                                 The circuit court properly rejected
                           petitioner’s claim that he was not paid in full

       It is not entirely clear whether, on appeal, petitioner contends that respondent failed to pay
him two weeks of wages. Regardless, this Court determines for itself whether to accept a party’s
concession. See Syl. Pt. 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991). After an
independent analysis, it is clear that petitioner’s claim that respondent failed to pay him in full
lacked evidentiary support because, as the circuit court found, petitioner failed to present evidence
to support the claim or to counter respondent’s evidence that he received full payment. Therefore,
we conclude that the circuit court properly rejected this claim.

                       The circuit court committed legal error in utilizing

           the 1975 version of the WPCA to calculate liquidated damages after finding

                          a violation of West Virginia Code § 21-5-4(b)


      Petitioner argues that pursuant to the 2006 version of the WPCA, he was entitled to the
amount of the wages ($340.32) that were untimely paid, multiplied by three, or $1,020.96. 2

       2
        See West Virginia Code § 21-5-4(e) (2006) (“If a person, firm or corporation fails to . . .
pay an employee wages as required under this section, such person, firm or corporation shall, in
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Rrespondent concedes that the 2006 version of the WPCA applied at the time of petitioner’s
termination. After an independent analysis, we (1) accept respondent’s concession that the 2006
version of the WPCA applies to the instant case; and (2) agree with petitioner that his liquidated
damages should be recalculated pursuant to the 2006 version of the statute.

        For the foregoing reasons, we affirm the circuit court as to (1) its finding that respondent
was not liable on petitioner’s claim that respondent owed him two weeks of wages; and (2) its
finding that respondent was liable to petitioner on his claim that respondent failed to pay him in
full within seventy-two hours of his termination. We reverse the circuit court with regard to its
calculation of petitioner’s liquidated damages pursuant to West Virginia Code § 21-5-4(e) and
remand the case to the circuit court to recalculate petitioner’s damages pursuant to the 2006
version of the WPCA.3

                                                             Affirmed, in Part, Reversed, in Part,
                                                             and Remanded with Directions.


ISSUED: November 21, 2014

CONCURRED IN BY:

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




addition to the amount which was unpaid when due, be liable to the employee for three times that
unpaid amount as liquidated damages.”).
       3
       We note that, in 2013, the Legislature amended the 2006 version of the WPCA. The 2013
amendments to the WPCA took effect on July 12, 2013.
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