Wells v. City of Fairmont

318 S.E.2d 463, 173 W. Va. 519

• Court: West Virginia Supreme Court
• Decided: July 23, 1984
• Docket: 15706
• Status: Published

Opinions

PER CURIAM:

In this appeal from a summary judgment, three employees of the City of Fair-mont allege that the Circuit Court of Marion County erred in permitting the City certain offsets against their overtime wage compensation awards.¹ Due to the insufficiency of the record, we are not able to determine whether the offset against each award was proper. Therefore, we remand the case for further development.

The plaintiffs were employed as operating technicians in the City’s water filtration plant. The established employment schedule required the plaintiffs to work fifteen consecutive eight-hour days, followed by six days off. The plaintiffs sued the City claiming this work schedule resulted in their being denied overtime wages.

After the suits were filed, the City answered and filed a notice of offer of judgment under Rule 68(b) of the West Virginia Rules of Civil Procedure² and deposited with the circuit clerk: $2,281.56 for Wells; $2,527.53 for Pettit; and $4,034.84 for Manley. The plaintiffs, pursuant to Rule 68(b)(3), notified the City that they accepted tender as part payment and would proceed on the issue of damages.

Subsequently, the parties appeared before the court on the City’s motion for summary judgment and a final order was entered on March 24, 1982. From the plaintiffs’ brief, it appears that the circuit court was presented with a stipulation as to certain figures that represented total amounts of overtime owed to the three plaintiffs, i.e., Wells, $19,064.91; Pettit, $10,943.20, and Manley, $16,907.42.³ Neither the factual stipulation nor the basis for calculating these figures is contained in the record before us.⁴

The court entered a summary judgment order which contained the following findings:

“1. That the defendant’s Motion for Summary Judgment is granted as to amounts in excess of $2,281.56 for plaintiff Wells, $2,527.53 for plaintiff Pettit, and $4,034.84 for plaintiff Manley, and judgment is awarded in favor of the plaintiffs and against the defendant in these amounts.

“2. The defendant is entitled to offset total wages paid to plaintiffs during their entire period of employment with defendant against wages claimed due and owing by plaintiffs.

“3. The plaintiffs’ attorneys, Rodney B. Merrifield and Roger Curry, shall not receive any attorneys fee from defendants for their representation of plaintiffs herein.”

The sole issue argued on appeal is whether the City is entitled to offset the amount due for overtime with a specified amount of regular wages already paid. It is difficult to determine from the above-quoted portion of the court’s order if this is the correct issue. The court’s finding Number 2 permits the City to offset the total wages paid the plaintiffs against the claimed overtime, which was the only wage issue being litigated. It would be unreasonable to take the total regular pay made to the plaintiffs, over which there was no dispute, and use it as an offset against overtime pay owed.

However, as we pointed out earlier, the real problem is that we lack a record that gives us any calculations to determine how the ultimate overtime pay figures were derived. Nor do we have any figures or calculations that would enable us to determine what the City paid in wages and how any credit it wishes to offset is computed.

We have traditionally held, as illustrated by Syllabus Point 2 of South Side Lumber Co. v. Stone Constr. Co., 151 W.Va. 439, 152 S.E.2d 721 (1967), that where a correct legal determination cannot be made because of the lack of an adequate record, we will remand the case:

“When the record in an action or suit is such that an appellate court can not in justice determine the judgment that should be finally rendered, the case should be remanded to the trial court for further development.”

See also White v. Bordenkircher, 169 W.Va. 239, 286 S.E.2d 686 (1982); Young v. Young, 158 W.Va. 521, 212 S.E.2d 310 (1975); Painter Motors, Inc. v. Higgins, 155 W.Va. 582, 185 S.E.2d 502 (1971).

Consequently, we remand this case to the Circuit Court of Marion County to permit the parties to more fully develop the record.

Remanded.

1 . The City’s brief indicates that each of the employees filed separate actions, which were subsequently consolidated. Plaintiffs Norman Wells, who died while this case was on appeal, and Robert Manley, had two causes of action in their complaints — one based upon violations of the overtime provisions of W.Va.Code, 21-5C-3; the other on a violation of their collective bargaining agreement with the City. The third plaintiff, Merle Pettit, filed suit only on a violation of the collective bargaining agreement. Merle Pettit died prior to our granting the appeal and Nancy Pettit, his executrix, was substituted as a party to this case. It is not apparent from the record upon which theory the court’s final order was based.

2 . Rule 68(b) of the West Virginia Rules of Civil Procedure provides:

"Payment into court. — A party defending against a claim may pay into court by depositing with the clerk a sum of money on account of what is claimed, or by way of compensation or amends, and plead that he is not indebted to any greater amount to the party making the claim or that the party making the claim has not suffered greater damages. The party making the claim may (1) accept the tender and have judgment for his costs, (2) reject the tender, or (3) accept the tender as part payment only and proceed with his action on the sole issue of the amount of damages.”

3 .However, the City, in its brief, states that these total "agreed calculations ... represent the amounts claimed under Count 2 over the entire ten year period of the contracts. The Count 1, statutory claim, is substantially less than appellants’ state in their brief.” It is not possible from the circuit court’s final order to determine how this issue was resolved.

4 . This Court dealt with the calculation of overtime compensation in Kucera v. City of Wheeling, 158 W.Va. 860, 215 S.E.2d 216 (1975).