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Sluss v. McCuskey

Supreme Court of Appeals of West Virginia

November 13, 2019

Stephen C. Sluss, Petitioner Below, Petitioner
v.
The Honorable John B. McCuskey, Auditor of the State of West Virginia, Respondent Below, Respondent

          Kanawha County 03-MISC-315.

          MEMORANDUM DECISION

         Petitioner Stephen C. Sluss (hereinafter "petitioner")[1] appeals the June 13, 2018, order of the Circuit Court of Kanawha County refusing his petition for a writ of mandamus against respondent The Honorable John B. McCuskey, Auditor of the State of West Virginia (hereinafter "the Auditor")[2] requiring the Auditor to pay petitioner sums allegedly due for his work as a Deputy Land Commissioner from 1997-2000. Petitioner claims that the then-Auditor, Glen B. Gainer, III, improperly paid him on an hourly basis for land commissioner work in contravention of West Virginia Code § 11A-3-66 (1995) which provides for Deputy Land Commissioners to be paid a percentage of land sales or redemptions. The circuit court dismissed the writ-which had been pending on its docket for fifteen years-on the basis of the statute of limitations and petitioner's failure to establish a "clear legal right" to recovery.

         This Court has considered the parties' briefs, oral arguments, and the record on appeal. Upon consideration of the standard of review and the applicable law, we find no substantial question of law presented, nor prejudicial error. For these reasons and those set forth herein, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.

         I. Factual and Procedural History

         On May 15, 1994, petitioner was hired as a temporary employee of the State Auditor's office at a rate of $45.00/hour; the next day the Auditor[3] signed a letter appointing him Deputy Land Commissioner for Logan County. His appointment letter stated that "the compensation normally received by the Deputy Commissioner will be deposited into the special operating fund for the Land Division of the State Auditor's Office." Thereafter and until June, 2001, petitioner periodically performed tax deed sales in Logan and various other counties, as evidenced by tax sale documentation and hourly invoices contained in the record.[4] In December 1997, petitioner and the Auditor signed a one-year contract, hiring petitioner for "deputy land commissioner work" and setting petitioner's fees at $50.00/hour. Petitioner signed another such contract for the time period of May 1, 2001 through April 31, 2002. Petitioner maintains he was left with no choice but to accept these "new" contractual arrangements because he had children in college to support. It appears petitioner ceased performing this work in June, 2001.

         In 2001, the Legislative Auditor conducted an audit of the State Auditor's office for the period of July 1, 1998 through June 30, 2000. As part of its findings, the audit concluded that "[t]he Auditor's Office is collecting fees and commissions not specifically authorized by the West Virginia Code." In particular, the audit found that the State Auditor was improperly retaining fees for "services performed by an attorney [petitioner] licensed to practice in West Virginia, and appointed by the State Auditor as a 'Special Deputy' to carry out the duties of a deputy land commissioner." Citing West Virginia Code § 11A-3-66's [5] requirement that deputy land commissioners be compensated with a flat fee and commission on sales or redemptions, the audit found that $149, 761.39 in fees and commissions were generated by the special deputy's sales, but that, "the Auditor's Office chose to compensate the special deputy, a contract employee, at a flat rate of $50.00 per hour . . . ."

         By way of explanation for this aberration, the Senior Deputy State Auditor apparently explained that the Auditor could not find qualified persons to be appointed Deputy Commissioners for the smaller counties because the sales were not profitable. Therefore, the Auditor's office hired petitioner on an hourly contract basis, which effected a cost savings for the State. In written response to the audit findings, the Auditor disagreed with the finding of noncompliance, arguing that 1) West Virginia Code § 11A-3-34 was amended to allow for an employee to conduct sales[6]; 2) as employees, such individual should not receive both a salary or contract wages and the statutory commission; and 3) petitioner had done minimal work in regard to the sales, the bulk having been completed by the Auditor's office, thereby making him not entitled to the commission as prescribed by statute.

         On July 10, 2003, petitioner filed a claim with the Court of Claims to recover the approximate $149, 000 referenced by the Legislative Auditor.[7] Thirteen days later on July 23, 2003, petitioner filed the instant petition for writ of mandamus seeking the same relief in the Circuit Court of Kanawha County. Petitioner alleged that the hourly compensation paid by the Auditor rather than the statutory commission was an ultra vires act. The case thereafter languished with only sporadic activity[8] for the next fifteen years.

         On June 13, 2018, the circuit court sua sponte entered a final order dismissing the petition.[9] First, the circuit court found that petitioner last worked for the Auditor in June, 2001, but did not file his petition until greater than two years later on July 23, 2003. As a result, the circuit court found that petitioner had failed to timely file his petition within a two-year statute of limitations. Secondly, the circuit court found, apparently accepting the Auditor's factual representations as true, that petitioner was paid hourly for his work and that the majority of the land sale work was performed by the Auditor's office. The court further found, without specific citation, that "West Virginia Code" allows for appointment of an employee as special deputy to perform land sales and that such special deputy was "not required to be compensated in the same manner as a deputy land commissioner[.]" Finally, the court found that petitioner acquiesced to being paid hourly for seven years and, since he "knowingly performed limited services," cannot now "seek additional compensation for work that was performed [] by the land division employees." The court therefore found that petitioner had failed to establish a "clear legal right" to the relief requested and denied his petition for writ of mandamus. This appeal followed.

         II. Standard of Review

         This Court has held that "[a] de novo standard of review applies to a circuit court's decision to grant or deny a writ of mandamus." Syl. Pt. 1, Harrison Cty. Comm'n v. Harrison Cty. Assessor, 222 W.Va. 25, 658 S.E.2d 555 (2008). Moreover, "a writ of mandamus will not issue unless three elements coexist-(1) a clear legal right in the petitioner to the relief sought; (2) a legal duty on the part of respondent to do the thing which the petitioner seeks to compel; and (3) the absence of another adequate remedy." Syl. Pt. 2, State ex rel. Kucera v. City of Wheeling, 153 W.Va. 538');">153 W.Va. 538, 170 S.E.2d 367 (1969). With these standards in mind, we address the parties' arguments.

         III. Discussion

         Petitioner makes four assignments of error, asserting that the circuit court erred by: 1) applying a statute of limitations rather than laches to bar the action; 2) failing to properly apply tolling to the statute of limitations; 3) misapplying an amended statute; and 4) misconstruing the operative statute. We find that the first two assignments and last two assignments are effectively redundant and address them collectively.[10] See Tudor's Biscuit World of Am. v. Critchley, 229 W.Va. 396, 401-02, 729 S.E.2d 231, 236-37 (2012) (combining related and/or redundant assignments of error).

         A. Application of Statute of Limitations and/or Laches in Mandamus Actions

         Petitioner first argues that the circuit court erred by applying a statute of limitations to his petition for writ of mandamus, asserting that mandamus actions are only barred by laches. The circuit court found that petitioner's action was barred by the statute of limitations, citing a two-year statute of limitations, presumably the one contained in West Virginia Code § 55-2-12 (1959) applicable to personal injury and property damage actions. The circuit court found that since petitioner last worked in June, 2001, his filing of the action in July, 2003 was beyond the two-year statute of limitations. The Auditor counters that the circuit court did not err, citing dicta from our caselaw stating that the statute of limitations does in fact apply to mandamus.

         As to the applicability of laches to mandamus, petitioner is correct. This Court has plainly held that "[t]he extraordinary remedy of mandamus, though on the law side of the Court, is limited as to time by the equitable doctrine of laches." Syl. Pt. 1, State ex rel. Kay v. Steinmetz, 144 W.Va. 802, 111 S.E.2d 27 (1959). However, the applicability of laches does not necessarily foreclose the equal application of the statute of limitations. Clearly both laches and statutes of limitations may co-exist: "The doctrine of laches may apply in equity, whether or not a statute of limitation also applies and whether or not an applicable statute of limitation has been satisfied." 30A C.J.S. Equity § 176 (emphasis added). The Court's prior holding regarding the applicability of laches does not-either expressly or by implication-foreclose the equal applicability of the statute of limitations. See Maynard v. Bd. Of Educ. Of the Cty. Of Wayne, 178 W.Va. 53, 357 S.E.2d 246 (1987) (finding declaratory judgment action filed within statute of limitations but barred by laches).

         In that regard, the Auditor cites to State ex rel. Ashworth v. State Road Commission, 147 W.Va. 430, 436, 128 S.E.2d 471, 476 (1962) in support of its contention that the circuit court did not err in applying a statute of limitations: "This Court has held, however, that the statute of limitations, as set forth in Code, 55-2-12, as amended, may act as a bar to any claim sought as a result of a proceeding in mandamus." (citing State ex rel. Dunn v. Griffith, 139 W.Va. 894, 82 S.E.2d 300 (1954)). In Ashworth, the Court found a statute of limitations applicable to an original action in mandamus, but found the action timely filed. In Dunn, the Court applied the statute of limitation to bar the mandamus action. More recently, the Court has found both the contractual statute of limitations set forth in West Virginia Code § 55-2-6 (1923) and the concept of laches applicable to a mandamus action brought to require the Consolidated Public Retirement Board to increase the petitioner's retirement benefits. See Adams v. Ireland, 207 W.Va. 1, 528 S.E.2d 197 (1999). Moreover, from a purely statutory construction standpoint, the language of our contractual and personal action statutes of limitations-West Virginia Code §§ 55-2-6 and 55-2-12-appear to make themselves applicable to mandamus by virtue of their language, stating they apply to "every action," and "[e]very personal action" respectively. (Emphasis added).

         Therefore, while we find no error in the court's general application of a statute of limitation to the petition for mandamus relief, we find that the court plainly erred in applying a two-year statute of limitations. Notably, petitioner fails to assign this as error.[11] Nevertheless, we are compelled to address this issue in view of its relationship to petitioner's assigned errors. See ...


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