                                                                                    FILED
No. 18-0507 – David L. Henzler v. Turnoutz LLC, and Larry Markham                June 12, 2020
                                                                                   released at 3:00 p.m.
                                                                               EDYTHE NASH GAISER, CLERK
WORKMAN, J., dissenting:                                                       SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA



              As the circuit court correctly found, the settlement agreement at issue clearly

applies to Respondent Turnoutz, LLC (hereinafter “Turnoutz”) and encompasses the

claims brought by Petitioner David L. Henzler in this civil action. The majority’s decision

reversing that order and allowing this litigation to proceed, despite the fact that ample

discovery was conducted, is incorrect. Today’s decision is contrary to the plain language

of the settlement agreement as well as the bedrock principle that “[t]he law favors and

encourages the resolution of controversies by contracts of compromise and settlement

rather than by litigation; and it is the policy of the law to uphold and enforce such contracts

if they are fairly made and are not in contravention of some law or public policy.” Syl. Pt.

1, Sanders v. Roselawn Mem’l Gardens, Inc., 152 W. Va. 91, 159 S.E.2d 784 (1968). The

majority has not cited one case that allows a party to retain the fruits of a settlement

agreement while breaching the terms of the deal. I therefore dissent.



              Before examining the language of the Severance Agreement and General

Release (hereinafter “Agreement”), it is important to summarize the facts leading up to its

execution.   Mr. Henzler was employed by CrossAmerica Partners, LP (hereinafter

“CrossAmerica”) as an area supervisor at a convenience store. Mr. Henzler worked for

CrossAmerica and its predecessor, One Stop, Inc., for approximately nineteen years. The

parties describe Mr. Henzler as having worked for CrossAmerica and M&J Operations,

                                              1
LLC (hereinafter “M&J”) interchangeably. In 2016, CrossAmerica ceased operations at

approximately forty-one convenience stores and Mr. Henzler’s position ceased to exist.



              Meanwhile, Turnoutz began leasing certain One Stop sites and operating

convenience stores out of those locations. Mr. Henzler applied for a position of territory

manager with Turnoutz, and in March 2016, he was notified that he had not been selected

for the position. A month later, Mr. Henzler entered into the Agreement. In exchange for

payment of $13,721 Mr. Henzler agreed to release “any and all claims”1 against

              M&J, CST Brands, Inc. (“CST”), CrossAmerica Partners LP
              (f/k/a Lehigh Gas Partners LP) (“CAP”), each of their
              respective Affiliates (as hereinafter defined), parents, partners,
              subsidiaries, divisions, assigns, predecessors, and successors
              (by merger, acquisition or otherwise), and the past, present and
              future officers, directors, trustees, partners, shareholders,
              managers, employees, agents, representatives, volunteers,
              consultants, insurers and attorneys of and for each of the
              foregoing, and their heirs, executors, administrators, legal
              representatives and assigns (hereinafter referred to as the
              “Company Released Parties”) . . . .


              An attachment to the Agreement, Exhibit A, lists the job titles and ages of

persons who were selected for termination of employment as of March 2016 and eligible

to receive a severance offer. Exhibit A also lists the job titles and ages of persons who



       1
         The Agreement released these entities “from any and all claims, demands, causes
of actions, and liabilities of any nature, but past and present, known and unknown, resulting
from any act or omission of any kind occurring on or before the date of execution of this
Agreement[.]” Specifically included in the claims released under the Agreement were
claims arising under “the Age Discrimination in Employment Act, as amended; the Older
Worker Benefit Protection Act of 1990; [and] the West Virginia Human Rights Act.”
                                                 2
were not selected for termination of employment as part of the “reorganization program,”

because they were hired by Turnoutz. The majority does not mention this document which

categorically supports Turnoutz’s position that it was an entity covered by the Agreement.



             Not holding true to his end of the bargain, Mr. Henzler then filed the instant

complaint against Turnoutz in October 2016 alleging failure to hire/age discrimination.2

He claimed Turnoutz “hired a substantially younger, less qualified individual(s) for the

position” in violation of the West Virginia Human Rights Act. Following discovery,

Turnoutz filed a motion to dismiss and/or for summary judgment a year into this litigation.

Turnoutz argued that Mr. Henzler had released it from the claims he was alleging.



             Following a hearing, the circuit court granted Turnoutz’s motion for

summary judgment and held that

             Turnoutz, LLC and Larry Markham are Company Released
             Parties, affiliates, successors, franchisees, and contractually
             related parties of [Mr. Henzler’s] prior employer(s) according
             to the terms, definitions and conditions in the Release
             Agreement signed by [Mr. Henzler] which released all claims
             against such entities. Therefore, [the] Complaint, and each
             purported cause of action alleged therein, is barred by the
             actions of [Mr. Henzler] which amount to and constitute
             waiver and release of any right or rights that [he] may have had
             in relation to any matters alleged in the Complaint; and no
             genuine issues of material fact exist for trial.



      2
        Mr. Henzler also sued Turnoutz’s principal, Respondent Larry Markham.
Consistent with the majority opinion, and for the sake of clarity, Turnoutz and Mr.
Markham are collectively referred to here as “Turnoutz.”
                                            3
                     [Mr. Henzler] waived any and all rights to assert any
              employment related claims against [Respondents] herein, as
              the [Respondents] are successors, affiliates, assigns, heirs
              and/or “Company Released Parties” of [Mr. Henzler’s] prior
              employer under the terms and conditions of the “Severance
              Agreement and General Release” a legally binding contractual
              agreement that [Mr. Henzler] voluntarily signed.


              First, the circuit court correctly applied the express and unambiguous

language of the Agreement including its broad and comprehensive general release of all

claims Mr. Henzer may have had against Turnoutz after it chose not to hire him. Mr.

Henzler expressly waived any right to bring the claims alleged in the instant lawsuit when

he voluntarily entered into the Agreement in exchange for payment of $13,721. General

releases, such as the Agreement at issue, are an important tool for settling disputes precisely

because they are designed to provide “complete peace.” In re Philadelphia Stock Exch.,

Inc., 945 A.2d 1123, 1137 (Del. 2008).



              Here, we are left with no room for interpretation because the language of the

Agreement is unambiguously sweeping and broad. The Agreement explicitly extinguished

all claims, known or unknown, arising out of or in any way related to Turnoutz’s decision

to not hire Mr. Henzler. In this Agreement, the parties took pains to express affirmatively

(albeit redundantly) their intention to extinguish “any and all claims, demands, causes of

actions, and liabilities of any nature, but past and present, known and unknown, resulting

from any act or omission of any kind occurring on or before the date of execution of this

Agreement.”

                                              4
              The second question presented in this case is straightforward: whether

Turnoutz is a “Company Released Party” under the Agreement.                 “‘A valid written

instrument which expresses the intent of the parties in plain and unambiguous language is

not subject to judicial construction or interpretation but will be applied and enforced

according to such intent.’ Syl. pt. 1, Cotiga Development Company v. United Fuel Gas

Company, 147 W. Va. 484, 128 S.E.2d 626 (1963).” Syl. Pt. 1, Sally-Mike Props. v.

Yokum, 175 W. Va. 296, 332 S.E.2d 597 (1985).



              The circuit court also correctly found that Turnoutz fell under the broad

umbrella of entities covered by the Agreement as it is a successor of Mr. Henzler’s former

employers considering the seamless transition of the business operation. “Where the terms

of a contract are clear and unambiguous, they must be applied and not construed.” Syl. Pt.

2, Bethlehem Mines Corp. v. Haden, 153 W. Va. 721, 172 S.E.2d 126 (1969). Under the

agreement, Mr. Henzler agreed to release any claims against “M&J, CST Brands, Inc.

(“CST”), CrossAmerica Partners LP (f/k/a Lehigh Gas Partners LP) (“CAP”), each of their

respective Affiliates . . . , parents, partners, subsidiaries, divisions, assigns, predecessors,

and successors (by merger, acquisition or otherwise)[.]” (Emphasis added).



              Addressing the term “successors,” the majority states that: “Turnoutz cites

to the Master Lease Agreement and its amendments, the tertiary agreements, and its own

discovery responses to substantiate its argument that it is a successor to CAP due to its

continuance of CAP’s operations of the One Stop stores.” The majority wholly disregards
                                               5
the import of this undisputed relevant evidence: Turnoutz was “otherwise” a successor

when it assumed the interests of the various companies operating the One Stop stores.

Genuine issues of dispute material fact do not remain when evidence demonstrates that

Turnoutz was a successor under the plain and ordinary meaning of that term3 because it

was vested with the rights and duties of the earlier corporations by “other assumption of

interests,” which is precisely why summary judgment in favor of Turnoutz was the

appropriate ruling.



              The majority opinion muddles through the various corporate relationships

and agreements. And all to what end? None at all, it turns out. By remanding this case for

further proceedings, the majority drops us back where we began, leaving the circuit court

and the parties with zero guidance moving forward. Respectfully, I would enforce the plain

terms of the Agreement and affirm.




       3
          A “successor” is defined as: “[a] corporation that, through amalgamation,
consolidation, or other assumption of interests, is vested with the rights and duties of an
earlier corporation.” Black’s Law Dictionary (11th ed. 2019).
                                            6
