STATE OF WEST VIRGINIA
 

SUPREME COURT OF APPEALS
 

Jana Studeny and Amy Smith, FILED 

Plaintiffs Below, Petitioners November 22, 2013 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

vs) No. 13-0363 (Cabell County 09-C-820) OF WEST VIRGINIA 

Cabell Huntington Hospital, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioners Jana Studeny and Amy Smith, by counsel Paul T. Farrell Jr., appeal the 

February 22, 2013, order of the Circuit Court of Cabell County granting summary judgment in 

favor of respondent. Respondent Cabell Huntington Hospital, by counsel Thomas L. Craig and 

Molly K. Frick, has filed a response in support of the circuit court’s order. Petitioners have 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 is appropriate under Rule 21 of the Rules of Appellate 

Procedure. 

Petitioners Jana Studeny and Amy Smith were employees of Respondent Cabell 

Huntington Hospital, Inc., but were laid off on January 6, 2009. Respondent had a “Staff 

Reduction Policy” in effect that provided a severance package when the hospital was forced to 

reduce its work force. Petitioner Studeny was verbally informed that she would receive a 

severance package and was given a letter outlining the terms of her separation from employment. 

Petitioner Smith was given a similar letter with no discussion. Both petitioners were given a letter 

from the hospital Chief Executive Officer, addressed to all of respondent’s employees, announcing 

the reduction in force and promising laid-off employees a “severance package.” Both the “Staff 

Reduction Policy” and layoff letters contain identical provisions that are relevant to this litigation: 

(1) one week’s pay in lieu of the required seven days’ advance notice of layoff; (2) salary 

continuation pay based on years of service; and, (3) payment of accrued benefit time. Petitioners 

received their unused vacation and holiday time and their sick leave benefits were maintained by 

respondent for a period of twelve months. Respondent alleges that petitioners were never told that 

they would receive payment for their unused sick time, but petitioners dispute this contention. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Petitioners filed unemployment claims with WorkForce West Virginia. Initially, the 

WorkForce Deputy held that petitioners were ineligible for benefits during the time they received 

their salary continuation payments from respondent on the basis that petitioners were “neither 

totally nor partially unemployed.” Petitioners appealed this decision, and during the 

unemployment compensation litigation, respondent initially took the position that “salary 

continuation pay” is considered wages and refused to pay unemployment compensation. The 

Administrative Law Judge (“ALJ”) disagreed, stating: 

West Virginia Code, Chapter 21A-1A-28(10) provides that vacation pay, severance 

pay or savings plans received by and [sic] individual before or after becoming 

totally or partially unemployed that are earned prior to becoming totally or partially 

unemployed are excluded from the definition of wages. 

The claimant received “salary continuation pay.” Under the law, this can only be 

characterized as severance pay. The claimant earned this pay based on length of 

service. . . . 

Therefore, the ALJ reversed the deputy’s decision and held that petitioners were not ineligible for 

unemployment benefits during the salary continuation payments. Respondent now admits that it 

paid severance pay, but a dispute arose regarding whether sick pay is an “accrued benefit time” for 

purposes of severance pay. Petitioners claim they should have been paid for accrued sick pay, 

while respondent disagrees. Petitioners therefore filed suit and later amended the complaint, 

claiming breach of contract relating to the alleged promise of severance pay. 

During discovery, respondent’s Vice President of Human Resources and Organizational 

Development, Barry Tourigny, testified that sick pay is an accrued benefit, and that respondent’s 

practice is different from its written policy. After discovery, petitioners filed a motion for 

summary judgment, which respondent opposed, arguing that there was a genuine issue of material 

fact as to the express terms of employment between respondent and petitioners regarding whether 

unused sick time must be paid in the event of a layoff. The circuit court denied petitioners’ motion 

for summary judgment. 

On the morning of the first day of trial, the circuit court granted summary judgment in 

favor of respondent on Count III of the Amended Complaint, relating to the payment of severance 

pay for their earned sick leave following a reduction in force. The circuit court found that 

respondent “did not offer to the [Petitioners] to pay them severance pay” and that any offer of 

severance pay was not supported by consideration, rendering the same gratuitous and 

unenforceable. 

On appeal, we review a summary judgment order under a de novo standard of review. Syl. 

Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Summary judgment should be 

granted when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the 

facts is not desirable to clarify the application of the law. Syl. Pt. 2, id.; Syl. Pt. 3, Aetna Casualty 

& Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Petitioners assert several assignments of error. First, petitioners argue that the trial court’s 

finding of fact that respondent did not offer severance pay is clearly erroneous, and that the 

record contains evidence of an offer of sick time as part of the severance pay which was definite 

in form, communicated to petitioners, and accepted. This Court has stated that petitioners are 

required to prove (1) that there was an offer on the part of respondent to pay petitioners’ unused 

sick time; (2) that there was an acceptance of said offer by petitioners; (3) that there was 

mutuality of assent or a “meeting of the minds” between petitioners and respondent regarding the 

payment of the unused sick time; and (4) that there was consideration. See Wheeling Downs 

Racing Ass’n v. West Virginia Sportservice, Inc., 158 W.Va. 935, 216 S.E.2d 234 (1975); Adkins 

v. Inco Alloys Int’l, Inc., 187 W.Va. 219, 417 S.E.2d 910 (1992). Moreover, this Court has held 

that in order to make an objective determination of an offer and of mutuality of assent, 

it is necessary that there be a proposal or offer on the part of one party and an 

acceptance on the part of the other. Both the offer and acceptance may be by 

word, act or conduct that evince the intention of the parties to contract. That their 

minds have met may be shown by direct evidence of an actual agreement or by 

indirect evidence through facts from which an agreement may be implied. 

Bailey v. Sewell Coal Co., 190 W.Va. 138, 140-41, 437 S.E.2d 448, 450-51 (1993). 

Respondent’s goal of reducing its workforce was accomplished when petitioners were 

terminated, and there was no bargaining between the parties needed to accomplish the goal. 

Respondent derived nothing from the severance payments, and there was no forbearance, loss, or 

detriment suffered by petitioners. No offer was communicated to petitioners to pay accrued sick 

time as severance pay. Therefore, the circuit court’s findings were not clearly erroneous. 

Next, petitioners argue that the trial court’s conclusion of law that severance pay is 

gratuitous, and unenforceable for lack of consideration, is reversible error. Petitioners state that 

severance pay is gross income for services rendered. The circuit court noted as follows: 

Consideration is an essential element of, and is necessary to the enforceability or 

validity of a contract. Consideration means “some right, interest, profit, or 

benefit accruing to one party, or some forbearance, detriment, loss or 

responsibility given, suffered, or undertaken by another.” A benefit to the 

promisor or a detriment to the promisee is sufficient consideration for a contract. 

First National Bank of Gallipolis v. Marietta Manufacturing Co., 151 W.Va. 636, 

642, 153 S.E.2d 172, 177 (1967). 

This Court finds no error in the circuit court’s findings that there is no evidence of consideration 

exchanged between petitioners and respondent in relation to the severance payments. The record 

is devoid of any evidence that respondent received any benefit from the severance payments and 

there is no evidence that there was any detriment, loss or forbearance on the part of petitioners in 

regard to their receipt of the severance payments. Specifically, respondent did not require 

petitioners to sign a release of any claims or causes of action they might have against respondent 

or to forego any rights or actions as a condition of their entitlement to the severance payments. 

Under the facts of this case, in the absence of evidence of an offer and consideration, respondent 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

cannot, as a matter of law, establish a prima facie case of the existence of a contract for the 

payment for petitioners’ unused sick time upon their separation from employment. 

Petitioners also argue that the circuit court erred in refusing to apply the doctrine of 

administrative collateral estoppel, and then subsequently in excluding the WorkForce West 

Virginia administrative record from the record. This Court has held that: 

Collateral estoppel is designed to foreclose relitigation of issues in a second suit 

which have actually been litigated in the earlier suit even though there may be a 

difference in the cause of action between the parties of the first and second suit . . . 

Because collateral estoppel recognizes that the second suit may be on a different 

cause of action, its focus is on whether the issues which are being sought to be 

litigated in the second suit were actually litigated in the first suit. 

Conley v. Spillers, 171 W.Va. 584, 588, 301 S.E.2d 216, 220 (1983). Petitioners have failed to 

establish that the doctrine of collateral estoppel should have applied to the ALJ’s decision. In fact, 

the doctrine is wholly inapplicable to the issues presented in this case. The ALJ’s determination 

was limited to whether petitioners received severance pay from respondent for purposes of 

determining whether they were disqualified from also receiving unemployment benefits during the 

same time period. The issue of whether respondent contracted with petitioners for the payment of 

severance pay or unused sick time was neither presented to nor considered by the ALJ. 

Additionally, the circuit court properly granted respondent’s motion to exclude the 

WorkForce West Virginia records and held the ALJ records inadmissible because “it would be 

more prejudicial than relevant to this jury.” Petitioners’ motion for summary judgment was denied 

and the court found that the ALJ’s decision was not binding on the court because the issues were 

not identical. Rulings on motions in limine and the admissibility of evidence are matters which lie 

within the discretion of the trial court. This Court has held that: 

The West Virginia Rules of Evidence and the West Virginia Rules of Civil 

Procedure allocate significant discretion to the trial court in making evidentiary and 

procedural rulings. Thus, rulings on the admissibility of evidence . . . are 

committed to the discretion of the trial court. Absent a few exceptions, this Court 

will review evidentiary . . . rulings of the circuit court under an abuse of discretion 

standard. 

Reynolds v. City Hosp., Inc., 207 W.Va. 101, 108-09, 529 S.E.2d 341, 348-49 (2000). The trial 

court's decision to exclude the WorkForce West Virginia records was not an abuse of discretion, 

but was overwhelmingly supported by the record, as the evidence was more prejudicial than 

probative and the issues were not identical. 

Finally, petitioners argue that the circuit court erred as a matter of law by refusing 

petitioners’ motion for summary judgment by failing to properly apply the rules of construction. 

Petitioners argue that the record is clear that respondent promised severance pay, that severance 

pay includes accrued benefit time, that sick pay is an accrued benefit, and, therefore, that 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

severance pay includes sick pay. This Court finds that summary judgment was properly granted 

in favor of respondent in this case. Petitioners have misstated the language in both Tourigny’s 

letter and the Staff Reduction Policy. The provision states as follows: “Sick leave- no accrual 

during salary continuation period but balance maintained for a period of 12 months.” Further, 

respondent’s “Paid Sick Leave” Policy provides that “[a]n employee shall not accrue paid sick 

leave benefits . . . [d]uring a lay-off.” Thus, the Petitioners’ claim that the “extended benefits” set 

forth in Tourigny's letter only apply during the salary continuation period is simply erroneous 

and not supported by the record. Petitioners further claim that there is no provision for how the 

unused sick leave during the salary continuation period is to be dealt with after the twelve 

months expires. This is incorrect. The Staff Reduction Policy states that “if the employee has not 

regained active employment within twelve calendar months of the effective date of their layoff, 

they [sic] will be terminated from employment.” Respondent’s Paid Sick Leave Policy further 

states that “[a]ccrued sick leave shall not be paid when employment is terminated.” Therefore, 

the circuit court did not err in granting summary judgment. 

For the foregoing reasons, we affirm. 

Affirmed. 

ISSUED: November 22, 2013 

CONCURRED IN BY: 

Chief Justice Brent D. Benjamin 

Justice Robin Jean Davis 

Justice Margaret L. Workman 

Justice Allen H. Loughry II 

DISQUALIFIED: 

Justice Menis E. Ketchum 

5