Loyd Franklin Ransom, Jr. v. Guardian Rehabilitation Services, Inc. and Guardian Elder Care at Fairmont ( 2023 )

No. 22-0094 – Lloyd Franklin Ransom, Jr. v. Guardian Rehabilitation Services, Inc., and
Guardian Elder Care at Fairmont, LLC
FILED
June 13, 2023
released at 3:00 p.m.
Wooton, Justice, dissenting: EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
I respectfully dissent from the majority’s opinion, which gives the petitioner,
Loyd Franklin Ransom, Jr., an opportunity to completely reboot his lawsuit on remand by
litigating a different cause of action from the one that was articulated in his complaint,1
made a basis for his motion for partial summary judgment, or supported by even a scintilla
of evidence in the proceedings below.
I begin by noting that in its haste to save the day for the petitioner, the majority
relegated to a footnote its discussion of the cross-assignment of error made by the
respondents, Guardian Rehabilitation Services, Inc. and Guardian Eder Care at Fairmont,
LLC, that the petitioner’s appeal was not timely perfected. In my view, this cross-
assignment of error presented a substantial question of law that merited far more attention
than it was given, inasmuch as the indisputable fact is that the appeal was not timely
1
As the majority notes, the only cause of action upon which the circuit court ruled,
and thus the only cause of action before this Court, was the petitioner’s claim that in
terminating his employment, the respondents violated the prohibition set forth in West
Virginia Code § 61-7-14(d)(3)(B) (2020), which provides that “[n]o employer may
condition employment upon . . . (B) [a]n agreement with an employee or a prospective
employee prohibiting that natural person from keeping a legal firearm locked inside or
locked to a motor vehicle in a parking lot when the firearm is kept for lawful purposes.”
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perfected; the judgment order from which the petitioner appealed was entered on October
8, 2021, and the appeal was not perfected until May 9, 2022, seven months later – thirty
days past the farthest possible time limit permitted by statute and under this Court’s rules.
West Virginia Rule of Appellate Procedure 5(f) provides:
An appeal must be perfected within four months of the date the
judgment being appealed was entered in the office of the circuit
clerk; provided, however, that the circuit court . . . or the
Supreme Court may, for good cause shown, by order entered
of record, extend such period, not to exceed a total extension
of two months, if a complete notice of appeal was timely and
properly filed by the party seeking the appeal.
(Emphasis added); accord W. Va. Code § 58-5-4 (2020) (“No petition shall be presented
for an appeal from any judgment rendered more than four months before such petition is
filed with the clerk of the court where the judgment being appealed was entered: Provided,
That the judge of the circuit court may, prior to the expiration of such period of four
months, by order entered of record extend and reextend such period for such additional
period or periods, not to exceed a total extension of two months, for good cause shown, if
the request for preparation of the transcript was made by the party seeking such appellate
review within thirty days of the entry of such judgment, decree or order.”). And although
the petitioner points to the fact that he filed a new notice of appeal after the circuit court’s
grant of a Rule 60(a) motion2 on January 10, 2022, it seems clear that the filing of this
2
West Virginia Rule of Civil Procedure 60(a) provides a mechanism by which a
clerical mistake in an order may be corrected by the circuit court. A clerical error is one
“which is of no import to the matters to be dealt with on review.” FTC v. Minneapolis-
Honeywell Regulator Co., 344 U.S. 206, 213 (1952).
2
motion did not toll the running of the appeal time inasmuch as it is well established that
the filing of a Rule 60(b)3 motion does not toll those time limits. See Rose v. Thomas Mem’l
Hosp. Found., Inc., 208 W. Va. 406, 411, 541 S.E.2d 1, 6 (2000).
Critically, we have held that a petitioner’s failure to timely perfect his appeal
“deprives the Court of jurisdiction to hear an appeal.” State v. Gamble, No. 18-0654, 2020
WL 5798229, at *2 (W. Va. Sept. 29, 2020) (memorandum decision) (citing In re E.P.,
No. 13-0782, 2014 WL 1302458, at *3 (W. Va. Mar. 31, 2014) (memorandum decision)
and Boardwine v. Kanawha Charleston Humane Ass'n, No. 13-0067, 2013 WL 5989159,
at *2, n.2 (W. Va. Nov. 12, 2013) (memorandum decision)). Therefore, the majority’s
decision to hear and decide this case on the merits, despite the petitioner’s failure to timely
perfect his appeal, must be read in one of two ways: that a party’s failure to timely perfect
his or her appeal is not jurisdictional, thus sub silentio overruling Gamble; or that Rule 2
of the West Virginia Rules of Appellate Procedure4 can cure even a jurisdictional defect.
3
West Virginia Rule of Civil Procedure 60(b) provides a mechanism by which a
party may be relieved from a final order for reasons of mistake, inadvertence, excusable
neglect, unavoidable cause, newly discovered evidence, fraud, or “any other reason
justifying relief from the operation of the judgment.”
4
Rule 2 provides that
[i]n the interest of expediting decision, or for other good
cause shown, the Supreme Court may suspend the
requirements or provisions of any of these Rules in a
particular case on application of a party or on its own motion
and may order proceedings in accordance with its direction.
3
I strongly believe that wherever possible, litigants should have the right to full
appellate review of their cases, and that the “substantial justice” provision of Rule 2 should
be liberally applied to achieve that end. However, questions of jurisdiction are so
fundamental – going to the very heart of our ability to hear a case – that they should not be
buried in footnotes. If we are going to overrule our precedents or expand the ambit of our
jurisdiction to cases where we arguably have none, then we should do so by giving the
issue in-depth consideration and then crafting a syllabus point for the guidance of the Bar.
In its consideration of the merits of the appeal, the majority begins to reinvent
history in this case by making two critical findings of fact. The first is that “[the
respondents’ representatives] told Mr. Ransom that he was fired for violating a company
policy that prohibited the possession of firearms on company premises.” But the
respondents specifically denied this, stating that “[petitioner] was told he was fired for
having a visible firearm in his car.” (Emphasis added). This is a distinction with a
difference, see text infra, and the majority’s factfinding – it accepts the petitioner’s account
of the facts while ignoring the respondents’ differing account – is in clear violation of an
essential principle of appellate review: “An appellate court may not ... weigh evidence as
that is the exclusive function and task of the trier of fact.” State v. Guthrie, 194 W. Va.
These Rules shall be construed to allow the Supreme Court to
do substantial justice.
4
657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995) (citation omitted). The eminent scholar
Justice Franklin D. Cleckley explained in Brown v. Gobble, 196 W. Va. 559, 474 S.E.2d
489 (1996), that
[w]ere we given the task, we would not hesitate to find that the
record before this Court demonstrates overwhelmingly that
adverse possession has been proven by clear and convincing
evidence. However, our decisions have made plain that an
appellate court is not the appropriate forum for a resolution of
the persuasive quality of evidence.
Id. at 565, 474 S.E.2d at 495 (emphasis added).
The majority’s second finding of fact, which comes immediately after the first
and purports to explain the alleged company “policy,” is that “Guardian’s employee
handbook provided that employees ‘may not bring any of the following onto the business
property: Firearms or weapons of any kind.’” However, neither the handbook nor even the
page or pages containing the language quoted by the majority was ever made a part of the
evidentiary record in this case. Rather, the language quoted by the majority appears only
in the petitioner’s memorandum of law in support of his motion for summary judgment;
the handbook purporting to contain the language was not appended as an exhibit.5 The only
other mention of a handbook in the record of this case was contained in the petitioner’s
5
That the statements of counsel are not evidence needs no citation of authority.
Every jury in every case in this State is so instructed.
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affidavit,6 in which he says that “I was fired solely because I had a firearm in my locked
car, and the [respondents’] handbook completely prohibited the possession of the firearm
on company property[,]” and that “[t]he Guardian companies gave me an Employee
Handbook entitled ‘Personnel Policies Handbook 2017’, dated April 1, 2017, issued by
Guardian Rehabilitation (the parent company of Gurdian [sic] Elder Care.” Again, the
handbook was not appended to the affidavit, and the petitioner gave no indication as to
when he received it – at the time he was hired, at the time he was terminated, at some point
6
The respondents make a strong argument – again, one which is simply ignored by
the majority – that this was a “sham” affidavit that failed to meet the test set forth in Kiser
v. Caudill, 215 W. Va. 403, 599 S.E.2d 826 (2004):
(1)Whether the deposition afforded the opportunity for direct
and cross-examination of the witness; (2) whether the witness
had access to pertinent evidence or information prior to or at
the time of his or her deposition, or whether the affidavit was
based upon newly discovered evidence not known or available
at the time of the deposition; and (3) whether the earlier
deposition testimony reflects confusion, lack of recollection or
other legitimate lack of clarity that the affidavit justifiably
attempts to explain.
215 W. Va. at 405, 599 S.E.2d at 828, Syl. Pt. 4, in part; see also Tolley v. Carboline Co.,
217 W. Va. 158, 617 S.E.2d 508 (2005) (to similar effect). I agree with the respondents
that the petitioner’s last-second affidavit fails to meet this test, although I share the view
of the concurring justice in Tolley that characterizing an affidavit as “sham” is a factual
credibility determination that cannot properly be made by an appellate court. See Tolley,
217 W. Va. at 167, 617 S.E.2d at 517 (Starcher, J., concurring) (“Any time a judge decides
that a piece of evidence is a ‘sham,’ the judge is making a factual credibility
determination.”).
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in between, or at some other time – let alone as to whether his employment was conditioned
upon his agreement to refrain from keeping a legal firearm locked inside or locked to a
motor vehicle in a parking lot when the firearm is kept for lawful purposes. Id. § 61-7-
14(d)(3)(B). In short, all that was established by the petitioner’s evidence was that the
respondents had a handbook, and that at the time of his termination their representatives
told him that it completely prohibited the possession of a firearm on company property.
None of this has any relevance to the key issue as framed by the majority: whether the
petitioner’s employment was conditioned on his agreement to the alleged prohibition
contained in the handbook. Cf. Williams v. Precision Coil, Inc., 194 W. Va. 52, 66, 459
S.E.2d 329, 343 (1995) (“the plaintiff failed to put into dispute an essential element of his
cause of action, i.e., that he knew of the handbook and accepted its terms by continuing in
the defendant's employ.”).
Having thus set the stage for the petitioner’s reboot of his case by making these
findings of fact, the majority barely acknowledges the basis of the circuit court’s judgment:
that this case is controlled by West Virginia Code § 61-7-14(d)(1)(b), which provides that
(d) Prohibited acts. – Notwithstanding the provisions of
subsections (b) and (c) of this section:
(1) No owner, lessee, or other person charged with the care,
custody, and control of real property may prohibit any
customer, employee, or invitee from possessing any legally
owned firearm, when the firearm is:
(A) Lawfully possessed;
(B) Out of view;
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(C) Locked inside or locked to a motor vehicle in a parking lot;
and
(D) When the customer, employee, or invitee is lawfully
allowed to be present in that area.
(Emphasis added). In this regard, the respondents’ defense, reduced to its essence, was that
the petitioner’s firearm, which he brought to the workplace in his vehicle and attempted to
cover with a jacket and a “soft-type laptop cover,” was nonetheless visible to others, see
id. § 61-7-14(d)(1)(B); therefore, the respondents claim, they were entitled to impose
whatever discipline they deemed appropriate, up to and including termination.7 The
7
In opposition to the respondents’ defense, and its motion for summary judgment,
the petitioner’s primary argument was that whether or not a firearm is “out of view”
depends on how far away the viewer is from it. In support of this argument, the petitioner
stated in his deposition testimony that “[an observer] should not have been able to see [my
rifle] unless they had their face up against the window and were looking in[,]” which the
circuit court characterized, and rejected, as an “argument that there’s a continuum what
would be claimed something that’s concealed when something’s in view[.]” I agree with
the circuit court, as nothing in the language of the statute indicates that the Legislature
intended the words “out of view” to have anything other than their everyday, accepted
meaning: if something is “out of view,” it cannot be seen with the naked eye from any
distance or vantage point. In this regard, it is well established in our law that
“‘[w]e look first to the statute’s language. If the text, given its
plain meaning, answers the interpretive question, the language
must prevail and further inquiry is foreclosed.’ Thus, where the
language is plain, we do not interpret the statute, but rather
apply the statute as written. ‘A statutory provision which is
clear and unambiguous and plainly expresses the legislative
intent will not be interpreted by the courts but will be given full
force and effect.’”
Napier v. Bd. of Educ. of Cnty. of Mingo, 214 W. Va. 548, 552-53, 591 S.E.2d 106, 110-
11 (2003) (citations omitted); see also Randy Waugh/Waugh's Mobile Home Park v.
Morgan Cnty. Emergency Med. Servs. Bd., Inc., 236 W. Va. 468, 474, 781 S.E.2d 379, 385
(2015) (“[w]here the language of a statute is clear and without ambiguity the plain meaning
is to be accepted without resorting to the rules of interpretation.”) (citation omitted)).
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petitioner’s argument, as articulated by his counsel, was that the “controlling issue is [that
section 61-7-14(d)(3)(B)] in the Business Liability Protection act says that we don’t have
to have the weapon out of view if it’s an employment relationship and the issue is whether
the employer can fire the employee.” The circuit court held “[f]or an employee who has a
firearm in his vehicle in an employer provided parking lot to receive the protection of the
[Business Liability Protection Act], the firearm in question must be ‘out of view[,]’” as
provided in West Virginia Code section 61-7-14(d)(1)(B).
In its opinion the majority does not explain why this conclusion is wrong – or
indeed, if it is – simply bypassing the issue with the sweeping pronouncement that “these
subsections of the Act [§§ 61-7-14(d)(1) and 61-7-(d)(3)(B)] do not conflict but are
directed at different protections of lawful gun owners’ rights.” The majority then goes on
to find that the language of the latter provision, being clear, will be applied as written,
without explaining why the language of the former, being equally clear, will be ignored.
Although the majority’s analysis is somewhat discursive – perhaps intentionally – the real
holding of this case seems to be that although an employee may be prohibited from having
a visible firearm in his or her vehicle pursuant to section 61-7-14(d)(1)(B), the employer is
powerless per operation of section 61-7-14(d)(3)(B) to do anything when the employee
flouts the prohibition.
9
The majority’s attempt to obfuscate this holding, by finding that there are
questions of material fact as to whether the petitioner’s “initial hire with Guardian, or
continued employment there following the incident in question, was conditioned on him
agreeing to comply with its firearm policy[,]” is wholly unconvincing for two reasons.
First, although the petitioner has consistently relied on § 61-7-14(d)(3)(B), he has never
contended that his employment was conditioned on his agreement to comply with any
company policy concerning firearms. Rather, both in his complaint and in his motion for
partial summary judgment, his argument has been simply that the statute “protects an
employee from discharge, where an employee has locked in his vehicle at work his lawfully
owned firearms, regardless of whether the firearm is concealed inside the vehicle.”
(Emphasis in original). Second, there is not one scintilla of evidence in the record as to
exactly what the company’s policy was (on that point we have nothing more than the
representation of counsel and a fleeting reference by the petitioner in his affidavit, see text
supra); whether any such policy was made known to the petitioner at the time of his hiring
or at any time during the course of his employment; or whether the petitioner’s employment
was conditioned on his agreement to abide by the policy. In short, the petitioner failed to
raise any issue of disputed material fact on this issue and should not now be given the
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opportunity to go back to the circuit court in order to discover (or create)8 some evidence
to support a whole new theory of his case.
To the extent that the majority is relying on what it continually refers to as the
respondents’ “admission” in its Answer to the Complaint, that “[the petitioner] was
terminated for violation of a workplace policy prohibiting firearms on the property,” I
reject any contention that this was sufficient, standing alone, to create a disputed issue of
material fact as to whether the petitioner’s employment was conditioned on his agreement
to that policy. Since the petitioner made no argument and put on no evidence as to this
point, the respondents didn’t either; the so-called “admission” referred to above is the sum
total of the evidence. In this regard, this Court has held that
“‘[u]nsupported speculation is not sufficient to defeat a
summary judgment motion.’ Felty v. Graves–Humphreys Co.,
818 F.2d 1126, 1128 (4th Cir.1987). If the evidence favoring
the nonmoving party is ‘merely colorable ... or is not
significantly probative, ... summary judgment may be granted.’
Anderson [v. Liberty Lobby, Inc., 477 U.S. 242 (1986], 477
U.S. at 249–50, 106 S.Ct. at 2511, 91 L.Ed.2d at 212. (Citations
omitted).”
Williams, 194 W. Va. at 61, 459 S.E.2d 338 (emphasis added). Here, it is a stretch to call
the respondents’ admission even “colorable,” and it is certainly not “significantly
8
I do not intend to suggest that the petitioner would fabricate evidence. Rather,
should this case come before us again I anticipate another iteration of the “sham affidavit”
argument that the majority studiously ignores in this appeal. See supra note 6.
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probative” on the question of whether or not the petitioner even knew of the company’s
policy, let alone whether his employment was conditioned on his agreement to it.
In the Business Liability Protection Act, W. Va. Code § 61-7-14, the
Legislature attempted to establish a workable balance between the rights of lawful gun
owners, on the one hand, and business owners, lessees and employers, on the other.
Somewhat lost in the shuffle was the right of customers, employees and invitees to shop,
work, and visit in a safe environment, one that is free from the threat of deadly violence
that may erupt when firearms are readily accessible on the premises. Completely lost in the
shuffle was the right of private business owners to determine how best to maintain that safe
environment, no matter what steps might be dictated by history or circumstance.
It can certainly be debated whether or not the statutory requirement that an
employee’s firearm be not only locked in his or her vehicle but also out of view, see id. §
61-7-14(d)(1)(B), has any meaningful relationship to safety interests. What cannot be
debated is that the majority’s opinion in this case makes the question moot in the context
of employer-employee relationships; an employer can establish a rule consistent with the
statute, but the employee doesn’t have to follow it, which is absurd. See Napier, 214 W.
Va. at 553, 591 S.E.2d at 111 (“‘[i]t is the duty of a court to construe a statute according to
its true intent, and give to it such construction as will uphold the law and further justice. It
is as well the duty of a court to disregard a construction, though apparently warranted by
12
the literal sense of the words in a statute, when such construction would lead to injustice
and absurdity.’ Syllabus Point 2, Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925).”). I
do not believe this is what the Legislature intended, and it is my hope that in a future session
that body will examine and resolve the clear tension – a tension which is apparent
regardless of the majority’s refusal to see it – between the two statutory provisions at issue
here, West Virginia Code sections 61-7-14(d)(1)(B) and 61-7-14(d)(3)(B).
Let there be no mistake: I am a firm supporter of “the right to keep and bear arms
for the defense of self, family, home and state, and for lawful hunting and recreational use.”
W. Va. Const. art. III, § 22; see also U. S. Const. amend II. But I am also a firm supporter
of the right of business owners to make responsible decisions as to how best to ensure a
safe environment for their customers, employees, and invitees, without unwarranted
governmental interference and/or oversight. In its opinion the majority has put a heavy
thumb on the delicate statutory scale established by the Legislature; and further, the
majority has disregarded the permissible scope of appellate review by allowing the
petitioner to “save” his case by arguing and proving (if he can) a brand-new cause of action
on remand. Other disappointed litigants may only hope for such unwarranted grace from
this Court.
For the reasons set forth herein, I respectfully, and regretfully, dissent.
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