                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS


Chris Minor,                                                                         FILED
Plaintiff Below, Petitioner                                                          April 25, 2014
                                                                                RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
vs) No. 13-0758 (Harrison County 11-C-279)                                        OF WEST VIRGINIA



City of Stonewood and John M. Hines, Sr.,
Defendants Below, Respondents


                                 MEMORANDUM DECISION
        Petitioner Chris Minor, by counsel Jerry Blair, appeals the Harrison County Circuit
Court’s May 22, 2013, order granting summary judgment to respondents and denying his cross-
motion for summary judgment. Respondents City of Stonewood, by counsel Molly Underwood
Poe, and John M. Hines Sr., by counsel James Stebbins, Joseph L. Jenkins, and Gregory H.
Shillace, respond in support of the circuit court’s order. Petitioner also filed a 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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

                               I. Factual and Procedural Background

        Petitioner Chris Minor is a resident of Harrison County, West Virginia, who was
employed by the City of Stonewood (“the City”) as the chief of police beginning on February 1,
2011.1 John M. Hines Sr. (“Hines”) is the elected mayor of the City who took office on July 1,
2011. Petitioner alleges that on June 22, 2011, he and the City entered into a five-year
employment contract for him to serve as the chief of police.2 On June 27, 2011, after Hines was
elected but was not yet the mayor, he notified petitioner that he would no longer be the chief of
police once Hines assumed the office of the mayor. On July 1, 2011, petitioner appeared for
work in full uniform and confronted Hines about his employment. Petitioner recorded the
encounter on a tape recorder, unknown to Hines, and a complete copy of the recording is of

        1
            Prior to being appointed as Chief of Police, petitioner worked as a police officer for the
City.
        2
        According to respondents, the five-year employment contract was entered into during
the “lame duck” period for the previous mayor, that is the period after Hines was elected but
before he took office.


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record in this case. During the July 1 conversation, Hines informed petitioner that he would no
longer be employed by the City from that date forward. As the circuit court found, the recording
evidences the fact that Hines did not raise his voice, did not make any threats, and was simply
“matter of fact.” Pursuant to petitioner’s request that he receive written notice of his termination,
Hines’ personal attorney sent a July 1, 2011, letter to petitioner informing him that his
employment as the chief of police for the City ended on July 1, 2011, at 12:00 a.m. The letter
directed petitioner to immediately return all equipment and/or property issued to him by the City
and informed him that if he did not comply with the request by July 3, 2011, at 10:00 a.m., a
warrant would be issued for his arrest pursuant to West Virginia Code § 8-10-1.

        Petitioner claims that he was unable to obtain employment for over a year following his
termination. Due to his employment issues, he claims that he suffered great financial losses and
sought psychological counseling and therapy. Petitioner filed suit against the City and Hines
seeking damages for breach of contract, intentional infliction of emotional distress/outrage, and
deprivation of constitutional rights. On October 1, 2012, the circuit court entered an order
granting partial summary judgment to respondents and voiding the alleged five-year written
contract based upon West Virginia Code § 11-8-26.3 In its subsequent order granting summary
judgment to respondents and denying petitioner’s cross-motion for summary judgment, entered
on May 22, 2013, the circuit court found that the alleged five-year written contract was void at
its inception and cannot be the basis for a breach of contract or wrongful termination claim.

         In its order, the circuit court also found that there is no legal authority that mandated that
the City permit petitioner to retain his previous rank and position with the City after his removal
as the chief of police. It found that while West Virginia Code § 8-14-17 allows a chief of police
of a Class I or Class II municipality to retain his or her prior rank and position following removal
(except removal for good cause), the Legislature did not extend such protections to chiefs of
police in Class IV municipalities, such as the City of Stonewood. The circuit court also found
that after petitioner was removed from the position of chief of police, he was no longer a
policeman and, therefore, could not have been entitled to a hearing under West Virginia Code §
8-14A-3, which applies only to police officers and firefighters. It further found that while he was
still chief of police, petitioner was exempt from the hearing requirement under that Code section
because, under West Virginia Code § 8-14A-1(6), the procedures and protections set forth in
Article 14A do not apply to “the highest ranking officer of the police.” It also concluded that the
provisions and protections of Article 14A apply only to “accused officers,” defined in West
Virginia Code § 8-14A-1(1) as a police officer or firefighter who is “the subject of an
investigation or interrogation.” As set forth by the circuit court, “[i]t is undisputed in this case
that [petitioner] was not removed from his position . . . for cause; in fact, there are no allegations
of wrongdoing on [petitioner]’s part with respect to his removal from office as Chief of Police.
[Petitioner] was simply never the subject of an ‘investigation’ or ‘interrogation’ by the City. . . .”

        The circuit court also addressed the employee handbook, finding that under West
Virginia law employment is presumed to be at will and a plaintiff relying upon a handbook as a
basis for an implied employment contract must establish that there is a “definite promise therein
by the employer not to discharge covered employees except for specific reasons.” Syl. Pt. 3, in

       3
           West Virginia Code § 11-8-26 addresses unlawful expenditures by a local fiscal body.
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part, Suter v. Harsco Corp., 184 W.Va. 734, 403 S.E.2d 751 (1991). It further found that a
plaintiff who relies upon language in a handbook providing a list of reasons for discipline or
discharge can only establish a prima facie case of an implied contract if it is clear that it was
meant to be a “complete list.” Id. at 736 n.2, 403 S.E.2d at 753 n.2. The circuit court concluded
that the employee handbook at issue does not meet the test insofar as it specifically states under
its discipline section that “this list is not exhaustive.” The circuit court also found as a matter of
law that there is nothing about the manner in which petitioner was separated from his
employment that could be construed by a trier-of-fact as outrageous. Therefore, the circuit court
concluded that there were no genuine issues of material fact with respect to petitioner’s claims
and respondents were entitled to judgment as a matter of law. Petitioner appeals from that order.

                                      II. Standard of Review

        Petitioner appeals the circuit court’s grant of summary judgment to respondents and the
denial of his cross-motion for summary judgment. Our standard of review for such an order is de
novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994) (“A circuit court's
entry of summary judgment is reviewed de novo.”); Syl. Pt. 2, Wickland v. Am. Travellers Life
Ins. Co., 204 W.Va. 430, 513 S.E.2d 657 (1998).

                                          III. Discussion

         On appeal to this Court, petitioner asserts four assignments of error. Petitioner first
argues that the circuit court did not apply the law correctly, abused its discretion, and was clearly
erroneous by declaring the written employment contract between petitioner and the City void. He
asserts that the circuit court did not have the authority to declare the contract void and points to
the fact the contract was adopted by resolution of the city council and that there had been partial
performance of that contract through petitioner’s service as chief of police. Petitioner’s argument
ignores West Virginia Code § 11-8-26, which states in relevant part: “(a) Except as provided in
sections fourteen-b [§ 11-8-14b], twenty-five-a [§ 11-8-25a] and twenty-six-a [§ 11-8-26a] of
this article, a local fiscal body shall not expend money or incur obligations: . . . (3) In excess of
the amount allocated to the fund in the levy order; or (4) In excess of the funds available for
current expenses.”

       This Court has explained that “[t]hroughout its history the basic history of the
       statute has been that a local fiscal body shall make no contract and incur no
       obligation which would involve the expenditure of future levies.” Edwards v.
       Hylbert, 146 W.Va. 1, 18, 118 S.E.2d 347, 356 (1960) (internal quotation marks
       and citations omitted). The Court has further noted that “[n]ecessity and
       inconvenience will not justify the bending or breaking of this law.” Shonk Land
       Co. v. Joachim, 96 W.Va. 708, 721, 123 S.E. 444, 449 (1924).

Dunbar Fraternal Order of Police, Lodge No. 119 v. City of Dunbar, 218 W.Va. 239, 243 n.1,
624 S.E.2d 586, 590 n.1 (2005). The contract at issue was a five-year employment contract. By
its terms, it clearly involved the expenditure of funds beyond the fiscal year in which the contract
was entered into by petitioner and the City. Based on the statutory language, our precedent, and
the record before us, we find that the circuit court did not err in granting summary judgment to

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respondents on this issue.

        Petitioner’s second assignment of error is the alleged governmental arbitrariness in the
reinstatement of removed chiefs to their prior rank and employment with the police force. He
contends that he was deprived of significant rights when his employment was terminated without
cause while respondents were acting under the color of governmental authority. Petitioner’s
argument is based largely on the fact that the prior chief of police for the City became a police
officer for the City when he was no longer chief. Petitioner also argues that he was simply not re­
appointed to the highest rank of the department, pointing to West Virginia Code § 8-10-1b, a
statute that did not go into effect until July 12, 2013. That statute provides that a Class III city or
Class IV town or village may provide by ordinance whether the individual appointed chief of
police who held a position as a member of the paid police department prior to his or her
appointment as chief of police shall be reinstated to the officer’s previous rank following his or
her term as chief. Id. That same statute permits a mayor of such city, town, or village to appoint a
chief of police. Id. Petitioner also asserts that respondents’ actions were contrary to the
provisions of West Virginia Code § 8-14A-1 because petitioner was not afforded his due process
rights regarding his termination.

          There is no dispute that the City is a Class IV municipality that is not subject to the civil
service requirements set forth in West Virginia Code §§ 8-8-14 or 8-8-15. By its terms, West
Virginia Code § 8-14A-1(1) defines “accused officer” as any “police officer or firefighter who is
the subject of an investigation or interrogation which results in a recommendation of punitive
action against him or her.” Petitioner was not under investigation and was not the subject of an
interrogation, so he does not fall under the definition of an “accused officer.” West Virginia
Code § 8-14A-1(3) defines hearing as “any meeting in the course of an investigatory proceeding.
. . .” It is clear from the record that there was no investigatory proceeding related to petitioner.
West Virginia Code § 8-14A-1(6) also defines police officer to specifically exclude “the highest
ranking officer of the police . . . department. . . .” The highest ranking member of the department
for the City is the chief of police, so the statute clearly excludes petitioner from the definition of
police officer. For these reasons, we find that petitioner was not entitled to a hearing pursuant to
West Virginia Code § 8-14A-1. In addition, due to the fact that West Virginia Code § 8-10-1b
was enacted subsequent to petitioner’s termination from employment with the City, it is not
applicable to his termination. For these reasons, we find that the circuit court did not err in
granting summary judgment to respondents on this issue.

        Petitioner’s third assignment of error is his assertion that the lower court did not apply the
law correctly, abused its discretion, and was clearly erroneous by finding that the employee
handbook did not create an implied contract under West Virginia law. Without citing any
authority for the proposition, petitioner argues that it is long-established in West Virginia that an
employee handbook may be interpreted as a contract between an employer and employee. He
contends that because the handbook does not provide for termination of an employee without
cause, petitioner’s employment was not at will. Petitioner concedes that the handbook provides
the mayor with the final authority on all administrative and personnel matters, but he contends
that the handbook cannot overrule West Virginia Code §§ 8-3-2 and 8-1-2(b)(1). He also points
to an ordinance enacted by the City that city council will not honor, acknowledge, approve, or
consider any action made by any committee or individual until the council has had the

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opportunity to inform itself concerning that action and to pass upon it in the usual manner at a
council meeting.

        Petitioner’s claimed error ignores the fact that in the absence of other evidence, West
Virginia law presumes that employment is at will. See W.Va. Dept. of Envir. Protection v.
Falquero, 228 W.Va. 773, 778, 724 S.E.2d 744, 749 (2012) (citing Syl. Pt. 2, Wright v. Standard
Ultramarine & Color Co., 141 W.Va. 368, 90 S.E.2d 459 (1955)). While an employee handbook
may form the basis of a unilateral contract, that is only the case if there is a definite promise
therein by the employer not to discharge covered employees except for specified reasons. Syl. Pt.
3, Suter v. Harsco Corp., 184 W.Va. 734, 403 S.E.2d 751 (1991). Based upon the record before
this Court, we find that petitioner has failed to establish that such implied contract existed under
the employee handbook. The employee handbook provides a list of offenses under the
disciplinary procedures section, but it specifically states that the list is not exhaustive.

        In addition, the City ordinance cited by petitioner does not require that the employment
decisions of the mayor be honored, acknowledged, or approved by council. The mayor is granted
significant power and discretion related to employment and personnel matters, including the fact
that West Virginia Code § 8-10-1 delineates the various “powers and duties of mayor” with
respect to municipalities in West Virginia when those powers are “not otherwise provided by
charter provision or general law.” Given that the City does not have a charter, the powers and
duties of the mayor are governed by West Virginia Code § 8-10-1. That section states that the
mayor of every municipality shall be the chief executive officer of such municipality and that the
mayor shall have control of the police of the municipality, including the power to appoint special
police officers whenever he deems it necessary. Id. Therefore, we find that the mayor had the
authority to appoint the chief of police of his choosing upon assuming the office of mayor.
Because the presumption is at will employment, the employee handbook provides that the list of
offenses is not exhaustive, and the mayor had the statutory authority to appoint a new chief of
police, we find no error in the circuit court’s grant of summary judgment to respondents on this
issue.

        Petitioner’s fourth and final assignment of error is his allegation that the lower court did
not apply the law correctly, abused its discretion, and was clearly erroneous by finding that
respondents’ actions did not rise to the level sufficient to sustain claims for annoyance,
inconvenience, humiliation, and intentional infliction of emotional distress. Petitioner argues that
he suffered these torts by the actions and inactions of respondents.

               In evaluating a defendant’s conduct in an intentional or reckless infliction
       of emotional distress claim, the role of the trial court is to first determine whether
       the defendant’s conduct may reasonably be regarded as so extreme and
       outrageous as to constitute the intentional or reckless infliction of emotional
       distress. Whether conduct may reasonably be considered outrageous is a legal
       question, and whether conduct is in fact outrageous is a question for jury
       determination.

Syl. Pt. 4, Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).



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       [I]n order for a plaintiff to prevail on a claim for intentional or reckless infliction
       of emotional distress, four elements must be established. It must be shown: (1)
       that the defendant’s conduct was atrocious, intolerable, and so extreme and
       outrageous as to exceed the bounds of decency; (2) that the defendant acted with
       the intent to inflict emotional distress, or acted recklessly when it was certain or
       substantially certain emotional distress would result from his conduct; (3) that the
       actions of the defendant caused the plaintiff to suffer emotional distress; and (4)
       that the emotional distress suffered by the plaintiff was so severe that no
       reasonable person could be expected to endure it.

Id. at 375, 504 S.E.2d at 425. In applying these elements to the conduct alleged by petitioner, we
find that the circuit court did not err in determining that respondents’ actions did not give rise to
a claim of intentional infliction of emotional distress, as it appears from the record that Hines
simply informed petitioner of his termination, verbally and in writing. The record also reflects
that Hines did not raise his voice, use foul language, or the like in terminating petitioner’s
employment.

        Petitioner’s claims for annoyance, inconvenience, and humiliation are closely linked to
his claim of emotional distress. As we found previously, “[a] claim for emotional distress
without an accompanying physical injury can only be successfully maintained upon a showing
by the plaintiffs in such an action of facts sufficient to guarantee that the claim is not spurious
and upon a showing that the emotional distress is undoubtedly real and serious.” Syl. Pt. 11,
Marlin v. Bill Rich Const., Inc., 198 W.Va. 635, 482 S.E.2d 620 (1996). Based upon our review
of the record, we find that petitioner has failed to sustain his burden for these claims. Thus, we
find that the circuit court did not err in awarding summary judgment to respondents on this issue.

      For the foregoing reasons, we conclude that the circuit court did not err in granting
summary judgment in favor of respondents and denying summary judgment to petitioner.
Accordingly, we affirm.

                                                                                           Affirmed.

ISSUED: April 25, 2014

CONCURRED IN BY:

Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Robin Jean Davis
Justice Brent D. Benjamin




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