Lawrence v. Cue Pageing
Annotate this Case
January 1995 Term
___________
No. 22645
___________
RONDALL L. LAWRENCE
Plaintiff Below, Appellee
v.
CUE PAGING CORPORATION,
Defendant Below, Appellant
___________________________________________________
Appeal from the Circuit Court of Kanawha County
Honorable Paul Zakaib, Jr., Judge
Civil Action No. 91-C-4271
AFFIRMED
___________________________________________________
Submitted: May 10, 1995
Filed: July 19, 1995
William J. Powell
Anthony J. Majestro
Jackson & Kelly
Charleston, West Virginia
Attorneys for the Appellant
C. Page Hamrick, III
Charleston, West Virginia
Attorney for the Appellee
This Opinion was delivered PER CURIAM.
JUSTICE BROTHERTON AND JUSTICE RECHT did not participate.
JUDGE FOX and RETIRED JUSTICE MILLER sitting by temporary
assignment.
SYLLABUS BY THE COURT
1. "'It is the province of the Court, and not of the
jury, to interpret a written contract.' Syl. pt. 1, Stephens v.
Bartlett, 118 W. Va. 421, 191 S.E. 550 (1937)." Syl. pt. 1, Orteza
v. Monongalia County General Hospital, 173 W. Va. 461, 318 S.E.2d 40 (1984).
2. "In determining whether there is sufficient evidence
to support a jury verdict the court should: (1) consider the
evidence most favorable to the prevailing party; (2) assume that
all conflicts in the evidence were resolved by the jury in favor of
the prevailing party; (3) assume as proved all facts which the
prevailing party's evidence tends to prove; and (4) give to the
prevailing party the benefit of all favorable inferences which
reasonably may be drawn from the facts proved." Syl. pt. 5, Orr v.
Crowder, 173 W. Va. 335, 315 S.E.2d 593 (1983).
3. "'A new trial will not be granted on the ground of
newly-discovered evidence unless the case comes within the
following rules: (1) The evidence must appear to have been
discovered since the trial, and, from the affidavit of the new
witness, what such evidence will be, or its absence satisfactorily
explained. (2) It must appear from facts stated in his affidavit
that plaintiff was diligent in ascertaining and securing his
evidence, and that the new evidence is such that due diligence
would not have secured it before the verdict. (3) Such evidence
must be new and material, and not merely cumulative; and cumulative evidence is additional evidence of the same kind to the same point.
(4) The evidence must be such as ought to produce an opposite
result at a second trial on the merits. (5) And the new trial will
generally be refused when the sole object of the new evidence is to
discredit or impeach a witness on the opposite side.' Syllabus
Point 1, Halstead v. Horton, 38 W. Va. 727, 18 S.E. 953 (1894)."
Syllabus, State v. Frazier, 162 W. Va. 935, 253 S.E.2d 534 (1979).
Per Curiam:
This action is before this Court upon an appeal from the
final order of the Circuit Court of Kanawha County, West Virginia,
entered on May 20, 1994. Pursuant to that order, the circuit court
denied the post-trial motions of the appellant, CUE Paging
Corporation, and confirmed the entry of judgment against the
appellant in the amount of $139,446.24, following a jury verdict.
This action involves a complaint filed by the appellee, Rondall L.
Lawrence, against the appellant for the wrongful termination of an
employment contract. For the reasons set forth below, the final
order of the circuit court is affirmed.
I
The appellant, CUE Paging Corporation (hereinafter
"CUE"), is a foreign corporation engaged in the business of
providing a nationwide paging service. The CUE system works
through a combination of satellites and local FM radio stations.
When someone wants to page a CUE customer, he or she dials a CUE
telephone number and enters the CUE customer's pager number and the
number at which the person calling can be reached. A signal is
then transmitted through a satellite and through an FM radio
station to the CUE customer. The CUE customer can then return the
call.
In 1990, CUE sought to establish its business in the West
Virginia area. Darrell Husky, a CUE representative, travelled to
Charleston, West Virginia, in search of someone to sell CUE's
service and, ultimately, began discussing employment opportunities with the appellee, Rondall L. Lawrence. Although Lawrence was
unemployed, he had recently worked as a salesman for American
Mobilphone, Inc., a local paging company.
Soon after, Darrell Husky and Rondall L. Lawrence flew to
Washington, D.C. to meet with Gordon Kaiser, the Chairman and Chief
Executive Officer of CUE. At that time, according to CUE, it
intended to initiate operations in West Virginia by incorporating
a wholly owned subsidiary in the Charleston area. Kaiser and
Lawrence discussed making Lawrence a CUE employee.
CUE never incorporated the subsidiary in West Virginia.
However, after his return from Washington, D.C., Rondall L.
Lawrence received a letter dated December 14, 1990, from Gordon
Kaiser offering employment with CUE. That letter stated:
Further to our meeting in Washington,
this will outline the proposed agreement
between CUE Paging Corporation and yourself
with respect to the management of CUE of West
Virginia. CUE will commit to developing a
statewide system in West Virginia, starting
with the station in Charleston. CUE is
prepared to enter into a three year management
agreement on the following terms:
You will be General Manager of CUE of
West Virginia for a period of three years and
will receive as compensation:
a. Salary of $40,000.00 per year.
b. Car allowance of $400.00 per month.
c. All the usual benefits received by
employees of CUE Paging Corporation.
. . . .
Please advise as soon as possible if the
above is acceptable and sign in the space
indicated below.
This contract will commence on the day
the system is implemented in Charleston. At
the present time, we are actively pursuing
arrangements with Broadcasters.
Rondall L. Lawrence signed the letter and returned it to
CUE. After reaching an agreement with a Charleston radio station,
CUE implemented service in West Virginia. Thereafter, effective
February 20, 1991, CUE placed Lawrence on the payroll.
The employment of Rondall L. Lawrence by CUE was short-
lived. By letter dated June 24, 1991, from Gordon Kaiser, Lawrence
was informed that CUE's progress in West Virginia had not been good
and that his employment would be terminated effective June 28,
1991. Although that letter was general in nature, CUE has since
asserted that Lawrence (1) sold little or no CUE paging units in
West Virginia, (2) failed to sign up any affiliates to sell the CUE
system as an adjunct to their other businesses, (3) failed to
recruit radio stations for the CUE system and (4) never opened a
CUE office, other than an office located in Lawrence's residence.
Asserting, however, that he had performed the services
required under the December 14, 1990, contract, and was willing to
continue those services, Rondall L. Lawrence filed a complaint in
the Circuit Court of Kanawha County against CUE for wrongful
termination of the contract.
Trial was conducted in the circuit court in April 1993,
and the jury returned a verdict in favor of Lawrence. Pursuant to
its final order entered on May 20, 1994, the circuit court confirmed its entry of judgment against CUE in the amount of
$139,446.24 and, in addition, denied CUE's post-trial motions.
II
Shortly before trial, the circuit court ruled, as a
matter of law, that a three-year contract had been entered into
between CUE and Lawrence, as evidenced by the letter of December
14, 1990. CUE contends that the circuit court's ruling was error
because the existence of such a contract was a jury question.
Inasmuch as the ruling of the circuit court on that point
involves an application of the law to the facts, our review of that
ruling is de novo. Adkins v. Gatson, ___ W. Va. ___, ___, 453 S.E.2d 395, 399 (1994); syl. pt. 3, Committee on Legal Ethics v.
McCorkle, ___ W. Va. ___, 452 S.E.2d 377 (1994). Nevertheless,
this Court is of the opinion that the existence of the three-year
contract was not a question of fact and, therefore, not a question
for jury determination.
The letter of December 14, 1990, clearly and
unambiguously stated that CUE was "prepared to enter into a three
year management agreement" with Rondall L. Lawrence, and Lawrence
would work for CUE "for a period of three years." The letter was
signed by both Gordon Kaiser and Lawrence. Moreover, the letter
stated that "this contract" would commence upon the implementation
of the CUE system in Charleston. Clearly, when the system was, in
fact, implemented, CUE confirmed the contract by placing Lawrence
on the payroll.
This Court has recognized that a contract of employment
may be formed by correspondence. Syl. pt. 3, Stewart v. Blackwood
Electric Steel Corp. 100 W. Va. 331, 130 S.E. 447 (1925). In
addition, as this Court stated generally in syllabus point 1 of
Orteza v. Monongalia County General Hospital, 173 W. Va. 461, 318 S.E.2d 40 (1984): "'It is the province of the Court, and not of
the jury, to interpret a written contract.' Syl. pt. 1, Stephens
v. Bartlett, 118 W. Va. 421, 191 S.E. 550 (1937)." Syl. pt. 3,
Tri-State Asphalt Products v. Dravo Corp. 186 W. Va. 227, 412 S.E.2d 225 (1991). See also Winn v. Aleda Construction Co. 227 Va.
304, 307, 315 S.E.2d 193, 194 (1984): "It is a well-established
principle that, when a contract is clear and unambiguous, it is the
duty of the court, and not the jury, to decide its meaning."
Importantly, however, the record indicates that it was
the strategy of CUE at trial to admit the existence of the contract
but argue that the employment of Rondall L. Lawrence was terminated
for cause. Cue's Instruction No. 1, given to the jury at trial,
stated in part: "Thus even though CUE Paging Corporation hired the
plaintiff for a fixed term of three years, you may find for the
defendant if you find by the preponderance of the evidence that the
plaintiff was fired 'for cause.'" Nor did CUE object to an
instruction of Rondall L. Lawrence, given to the jury, stating that
the circuit court had ruled as a matter of law that Lawrence had a
contract of employment with CUE for a fixed term of three years.
This Court concludes, therefore, that the above
assignment of error is without merit.
Second, CUE asserts that the circuit court committed
error in not ruling that, as a matter of law, Rondall L. Lawrence's
employment was terminated for cause. In particular, CUE asserts
that the termination of Lawrence's employment was compelled by (1)
economic necessity, in the form of failing to realize profits in
West Virginia, and (2) substandard performance by Lawrence. We are
of the opinion, however, that the question of whether Rondall L.
Lawrence was terminated for cause was for the jury to determine.
Here, the facts were in direct conflict as to whether, as
Lawrence contends, he was to manage CUE's efforts to gain an
economic foothold for its product in West Virginia, or whether, as
CUE contends, he was simply considered to be a salesman of paging
units. Gordon Kaiser indicated at trial that early profits were
not to be expected upon the entry of a new market. No quotas or
standards of performance were ever given to Lawrence by CUE, and
upon his termination in June 1991, CUE offered to continue its
business relationship with Lawrence upon a commission basis.
In syllabus point 5 of Orr v. Crowder, 173 W. Va. 335,
315 S.E.2d 593 (1983), cert. denied, 469 U.S. 981 (1984), we held:
In determining whether there is
sufficient evidence to support a jury verdict
the court should: (1) consider the evidence
most favorable to the prevailing party; (2)
assume that all conflicts in the evidence were
resolved by the jury in favor of the
prevailing party; (3) assume as proved all
facts which the prevailing party's evidence
tends to prove; and (4) give to the prevailing
party the benefit of all favorable inferences
which reasonably may be drawn from the facts
proved.
Syl. pt. 3, Realcorp, Inc. v. Gillespie, ___ W. Va. ___, 454 S.E.2d 393 (1994). See also Yeager v. Stevenson, 155 W. Va. 16, 20, 180 S.E.2d 214, 216 (1971): "It has long been settled in this
jurisdiction that a jury verdict approved by the trial court rarely
will be set aside."
In this action, Rondall L. Lawrence indicated at trial
that he considered himself to be a CUE manager, and he devoted all
his time to his employer's business. Specifically, Lawrence
testified at trial that, during his employment, he travelled
throughout West Virginia to recruit radio stations to carry the CUE
signal and contacted a number of potential customers and
affiliates. In addition, he participated in several conference
calls with CUE officials and corresponded regularly with the home
office. CUE provided Lawrence with business cards indicating that
Lawrence was a CUE manager. Lawrence also prepared market surveys
and sales forecasts for CUE, concerning his geographic area, and
attended trade shows.
This Court, in syllabus point 1 of Davis v. Laurel River
Lumber Co., 85 W. Va. 191, 101 S.E. 447 (1919), stated that "[o]ne
employed to render personal service to another for a specific term
is entitled to recover damages for the breach of his contract of
service in case he is discharged, without sufficient cause, before
the expiration of the term." Upon an examination of the evidence
submitted by the parties, we are of the opinion, as in Davis, that the circuit court properly left to the jury the question of whether
the employment of Rondall L. Lawrence was terminated for cause.
Finally, CUE asserts that the circuit court committed
error in refusing to grant a new trial based upon newly discovered
evidence. In that regard, CUE contends that, after trial, it
learned that Rondall L. Lawrence was subject to a covenant-not-to-
compete and a restrictive covenant with regard to his former
employment with American Mobilphone, Inc. Such restrictions,
argues CUE, would have provided CUE with additional cause for the
termination of Lawrence's employment.
In response, Rondall L. Lawrence asserts that the above
information is not newly discovered but, rather, consists of
matters that CUE should have pursued earlier in the litigation
process. Specifically, in his affidavit in response to CUE's
motion for a new trial, Lawrence states:
During the meeting at the Washington D.C.
National Airport with Gordon Kaiser during
November, 1990, I discussed my employment
history with Mr. Kaiser and discussed my
previous employment with American Mobilphone,
Inc. See my deposition page 14. We
specifically discussed the Covenant Not to
Compete which American Mobilphone, Inc. had
required me to sign. I told Mr. Kaiser that I
did not feel that the covenant was enforceable
because I had been terminated by American
Mobilphone, Inc. Mr. Kaiser told me that he
was a lawyer and not to worry, that no compete
clauses were not enforceable.
In the recent case of State v. Satterfield, ___ W. Va.
___, 457 S.E.2d 440 (1995), we restated many of the legal
principles associated with newly discovered evidence. In Satterfield, we cited the syllabus of State v. Frazier, 162 W. Va.
935, 253 S.E.2d 534 (1979), which holds:
'A new trial will not be granted on the
ground of newly-discovered evidence unless the
case comes within the following rules: (1)
The evidence must appear to have been
discovered since the trial, and, from the
affidavit of the new witness, what such
evidence will be, or its absence
satisfactorily explained. (2) It must appear
from facts stated in his affidavit that
plaintiff was diligent in ascertaining and
securing his evidence, and that the new
evidence is such that due diligence would not
have secured it before the verdict. (3) Such
evidence must be new and material, and not
merely cumulative; and cumulative evidence is
additional evidence of the same kind to the
same point. (4) The evidence must be such as
ought to produce an opposite result at a
second trial on the merits. (5) And the new
trial will generally be refused when the sole
object of the new evidence is to discredit or
impeach a witness on the opposite side.'
Syllabus Point 1, Halstead v. Horton, 38
W. Va. 727, 18 S.E. 953 (1894).
The above syllabus point of Frazier has been applied to
civil cases, as well as criminal cases. Syl. pt. 6, Adams v. El-
Bash, 175 W. Va. 781, 338 S.E.2d 381 (1985); Department of Highways
v. Brumfield, 170 W. Va. 677, 680, 295 S.E.2d 917, 920 (1982).
In its final order, the circuit court rejected CUE's
claim of newly discovered evidence. We hold that the ruling of the
circuit court in that regard is protected by the parameters of
sound discretion. Parker v. Knowlton Construction Company, 158
W. Va. 314, 329, 210 S.E.2d 918, 927 (1975).
Accordingly, upon all of the above, the final order of
the Circuit Court of Kanawha County, entered on May 20, 1994, is
affirmed.
Affirmed.
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