### STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS

Matthew J. Minney, 

### FILED Intervenor Below, Petitioner 

### November 16, 2018 vs) No. 18-0071 (Kanawha County 16-AA-118) EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA Deborah Yost VanDervort, Petitioner Below, Respondent

and

West Virginia Public Service Commission, Respondent Below, Respondent



### MEMORANDUM DECISION

Petitioner Matthew J. Minney, by counsel E. Taylor George and Michael E. Mullins, appeals the November 7, 2017, order of the Circu it Court of Kanawha County that denied his motion to enforce a settlement agreement that dismissed four separate actions before three entities, Public Employee’s Grievance Board, West Virginia Human Rights Commission and United States Equal Opportuni ty Commission. Respondents Debor ah Yost VanDervort, by counsel John Everett Roush, and West Virginia Public Service Commission, by counsel Belinda

B. Jackson, each filed a response, to which petitioner 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 deci sional process would not be significantly aided by oral argument. Upon consideration of the st andard of review, the briefs, and the record presented, the Court finds no substantial questi on of law and no prejudicial error. For these reasons, a memorandum decision affirming the orde r of the circuit cour t is appropriate under Rule 21 of the Rules of Appellate Procedure.

Respondent Deborah Y. VanDervort is an attorney employed as an ALJ with Respondent West Virginia Public Serv ice Commission (“PSC”). Res pondent VanDervort has been continuously employed with the PSC since Augus t of 1989. Respondent VanDervort first served as an Attorney 2, in the Consumer Advocacy Position, before taking a position as an Administrative Law Judge (“ALJ”) in January of 2004. In June of 2014, Respondent VanDervort was promoted to the position of ALJ-2.

In October of 2014, the PSC posted the pos ition of Deputy Chief Administrative Law Judge. The PSC established a policy and procedure for filling the position and developed interview questions designed to measure each applicant’s qualifications based on the hiring criteria. Petitioner Matthew J. Minney scored highest, receiving 176 points. Respondent

1VanDervort ranked fourth among applicants re ceiving 143 points. Petitioner Matthew Minney was selected for the position.

On February 27, 2015, Respondent VanDervor t, then sixty-two years old, filed a grievance with the Public Employee’s Grievance Board. In her grievance, she complained that the PSC’s decision to hire petitioner, a younger, non-minority male, who had never previously served as an ALJ, was “arbit rary, capricious, and based on fa voritism.” Respondent VanDervort alleged discrimination on the basis of age and sex. Respondent VanDervort requested as relief, that she be employed as the Deputy Chief ALJ, or, in the alternative, to be paid the equivalent pay of the Deputy Chief ALJ. On March 4, 2 015, the Grievance Board hearing administrator notified Petitioner Minney that his rights may be substantially and adversely affected by the grievance, and on March 9, 2015, Pe titioner Minney filed an Interv ention Form, requesting to be made a party to the grievance. This request was granted.

Following a hearing, the Grievance Board rejected Respondent VanDervort’s arguments and the Grievance Board denied her grievance by order entered November 14, 2016. On December 12, 2016, Respondent VanDervort filed a pro se appeal of the decision to the Circuit Court of Kanawha County. At that time, Responde nt VanDervort was also a grievant in another matter before the Public Employee’s Grievan ce Board, where she was represented by a union representative. Respondent VanD ervort also had pending claims before the West Virginia Human Rights Commission and the United States Equal Employment Opportunity Commission
that were related to her Grievance Board claim.

Respondent VanDervort was represented by Se nior Deputy Attorney General J. Robert Leslie in her claim before the West Virginia Human Rights Commission. Mr. Leslie represented to the parties that he had received authority from Responde nt VanDervort to negotiate a settlement on her behalf. The parties entered in to settlement negotiations on December 29, 2016, however, petitioner did not attend, and in Januar y of 2017, Mr. Leslie met with attorneys for petitioner and the PSC. Those pr esent reached an agreement that would resolve all of Respondent VanDervort’s cases. The terms of the agreement included a dismissal of all pending matters before the Grievance Board, the Kanawh a County Circuit Court, the West Virginia Human Rights Commission, and the United States Equal Employment Opportunity Commission; a cash payment to Respondent VanDervort in the amount of $2,500.00; a neutral letter of recommendation for Respondent VanDervort from th e PSC; the removal of the scoring matrix from the Deputy Chief ALJ hiring process from Respondent VanDervort’s personnel file; and the removal of any language referring to Re spondent VanDervort as “angry, agitated, or frustrated” from her August 15, 2016 , Employee Performance Appraisal.

Respondent VanDervort asserts that she was unaware of these negotiations, and according to the circuit court, Respondent VanD ervort was not copied on the negotiation emails between Mr. Leslie and petitione r’s counsel and the PSC. The fi nal documents were ready for execution on February 24, 2017. On February 16, 2017, Respondent VanDervort informed Mr. Leslie that she was “withdrawing all authority of the [Attorney General’s Office] to settle this
matter on her behalf.” Mr. Leslie conveyed this development to opposing counsel, and in April

2of 2017, petitioner filed a motion to enforce the settlement agreement. 1 Respondent VanDervort responded to that motion in September of 2017, and a hearing was held on the motion on September 22, 2017 in which Respondent VanDervor t was called as an adverse witness. The
circuit court denied the motion to enforce settlement by order ente red November 7, 2017. Petitioner now appeals the November 7, 2017, orde r of the Circuit Court of Kanawha County that denied his motion to enforce the settlement agreement.

We have held that,

“[i]n reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion sta ndard, and we review the circuit court’s underlying factual findi ngs under a clearly e rroneous standard. Questions of law are subject to a de novo review.” Syl. Pt. 2, Walker v. West Virginia Ethics Commission, 201 W.Va. 108, 492 S.E.2d 167 (1997).

Syl. Pt. 1, Messer v. Huntington Anesthesia Grp., Inc. , 222 W. Va. 410, 664 S.E.2d 751 (2008).

On appeal, petitioner complains that the circuit court erred in denying his motion to
enforce settlement. Petitioner cites Messer in support of his argument that Mr. Leslie represented to the parties that he had the authority to settle all of Respondent VanDervort’s matters.
Petitioner also claims that the settlement was reached in good faith, with attorneys negotiating
over the course of weeks.

In Messer , we held,

[w]hile this Court has recogni zed that “[t]he me re relation of attorney and client does not clothe the attorney with implied authority to compromi se a claim of the client,” Syllabus Point 5, Dwight v. Hazlett, 107 W.Va. 192, 147 S.E. 877 (1929), we have also held that “[w]hen an atto rney appears in court representing clients there is a strong presumption of his auth ority to represent such clients, and the burden is upon the party de nying the authority to clearly show the want of authority.” Syllabus Point 1, Miranosky v. Parson, 152 W.Va. 241, 161 S.E.2d 665 (1968).

222 W. Va. at 418–19, 664 S.E.2d at 759–60 (citing Sanson v. Brandywine Homes , 215 W. Va. 307, 599 S.E.2d 730 (2004). Petitioner characterizes Respondent VanDervort’s refusal of the settlement as “buyer’s remorse.” We disagree and find that the record is devoid of evidence to
indicate that Mr. Leslie ha d the authority to settle all of the respondent’s claims.

“‘The rule that the courts favor compromise settlements by parties to prevent vexatious and expensive litigation only applies where the le gal and equitable rights and interests of all parties concerned in a judgment are regarded and respecte d in good faith.’ Syl. pt. 5, State ex rel.

1 The PSC filed a motion to enforce settlement before the West Virginia Human Rights
Commission. That motion was denied.

3Showen v. O’Brien, 89 W.Va. 634, 109 S.E. 830 (1921).” Syl. Pt. 1, Triad Energy Corp. of W.

Va. v. Renner , 215 W. Va. 573, 600 S.E.2d 285 (2004). Further, “‘[a] meeting of the minds of the parties is a sine qua non of all contracts.’ Syl. pt. 1, Martin v. Ewing, 112 W.Va. 332, 164 S.E. 859 (1932).” Syl. Pt. 2, Triad Energy Corp. of W. Va

.

While Respondent VanDervort admitted to giving Mr. Leslie authority to negotiate on
her behalf in the matter before the Human Ri ghts Commission, Mr. Les lie did not represent Respondent VanDervort in her grievance proceeding, or in her appeal of the grievance proceeding, or before the United States Equal Employment Opportunity Commission. The record reflects that Respondent VanDervort was unaware that the negotiations re garded the resolution of all of her pending matters, an d the record is devoid of proof that respondent or her union representative were copied on the communications during settlement negotiations. Regarding the meeting of minds, we have held that

[ t]he meeting of the minds requirement has been recognized by this Court as specifically applicable to sett lement agreements. . . . In O’Connor v. GCC Beverages, 182 W.Va. 689, 691, 391 S.E.2d 379, 381 (1 990), this Court stated: “[I]t is well understood that ‘[ s]ince a compromise and set tlement is contractual in nature, a definite meeting of the minds of the parties is essential to a valid compromise, since a settlement cannot be predicated on equivocal actions of the parties.’ 15A C.J.S. Compromise & Settlement, sec. 7(1)(1967). (Some internal citations omitted).”

Messer , 222 W. Va. at 418, 664 S.E.2d at 759. Further, “[t]he contractual concept of ‘meeting of the minds’ or ‘mutual assent’ relates to the part ies having the same understanding of the terms of the agreement reached.” Id . at 418, 614 S.E.2d at 759. See also 17 C.J.S. Contracts § 35 (1999).

Here, the settlement agreement stated that Respondent VanDervort was pro se

, and entering the agreement on her own accord without any recommendation from the Office of the Attorney General regarding the grievance appeal, and omitted any mention of petitioner’s union representative. Respondent VanDer vort received no consideration fo r the settlement agreement, there was no signed written agreement between the parties, and there were no terms of settlement established on the record. Finally, we note that the West Virginia Human Rights Commission
denied the PSC’s motion to enforce the settleme nt finding that the PSC did not meet its burden of proof that Respondent VanDervort “knowingly and voluntarily” waived her right to pursue her complaint before the Human Rights Commissi on. Consequently, we hold that there can be no meeting of the minds where a pro se party and her union representative are excluded from all negotiations and the formation of the settlement agreement. Petitioner has not shown, nor does the record reflect that the factual findings of the circuit court are clearly erroneous, and consequently, we find that the circuit court did not abuse its discretion in denying the motion to
enforce settlement.

For the foregoing reasons, we affirm.

Affirmed.

4ISSUED: November 16, 2018

CONCURRED IN BY:

Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice Paul T. Farrell sit ting by temporary assignment

DISQUALIFIED:

Chief Justice Margaret L. Workman
Justice Tim Armstead

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