647 S.E.2d 535
No. 33182
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2. “Where
the language of a statute is clear and without ambiguity the plain meaning is
to be accepted without resorting to the rules of interpretation.” Syllabus
Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).
3. “'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.' Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d
488 (1951).” Syllabus Point 1, State v. Jarvis, 199 W.Va. 635, 487
S.E.2d 293 (1997).
Per Curiam:
This
case is before this Court upon an appeal of a final order of the Circuit Court
of Kanawha County entered on November 2, 2005. In that order, the circuit court
dismissed an appeal of a grievance decision filed by the appellants and petitioners
below, Stephen Antolini, Roger McClanahan, and Mickey Sylvester, after finding
that their claims were barred by res judicata. In this appeal, the appellants
contend that none of the essential elements were present for application of
the doctrine of res judicata, and therefore, the decision of the circuit
court should be reversed.
This
Court has before it the petition for appeal, the entire record, and the briefs
and argument of counsel. For the reasons set forth below, the final order is
reversed, and this case is remanded to the circuit court for further proceedings
consistent with this opinion.
Before
the prosecution of a lawsuit may be barred on the basis of res judicata,
three elements must be satisfied. First, there must have been a final adjudication
on the merits in the prior action by a court having jurisdiction of the proceedings.
Second, the two actions must involve either the same parties or persons in privity
with those same parties. Third, the cause of action identified for resolution
in the subsequent proceeding either must be identical to the cause of action
determined in the prior action or must be such that it could have been resolved,
had it been presented, in the prior action.
Syllabus Point 4, Blake v. Charleston Area Med. Ctr., Inc., 201 W.Va.
469, 498 S.E.2d 41 (1997).
Having
carefully reviewed the record in this case, we find that the first element of
res judicata has not been satisfied. W.Va. Code § 29-6A-1 to -12
sets forth the grievance procedure for state employees. W.Va. Code § 29-6A-7
(1988) addresses the enforcement and reviewability of the decision of the hearing
examiner (the ALJ) following the Level IV grievance hearing. In that regard,
W.Va. Code § 29-6A-7 provides, in pertinent part:
(a)
The decision of the hearing examiner is final upon the parties and is enforceable
in circuit court.
(b)
Either party or the director of the division of personnel may appeal to the
circuit court of Kanawha County or to the circuit court of the county in which
the grievance occurred on the grounds that the hearing examiner's decision:
(1)
Is contrary to law or a lawfully adopted rule or written policy of the employer;
(2)
Exceeds the hearing examiner's statutory authority;
(3)
Is the result of fraud or deceit;
(4)
Is clearly wrong in view of the reliable, probative and substantial evidence
on the whole record; or
(5)
Is arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted exercise of discretion.
(Emphasis added).
This
Court has long held that, “Where the language of a statute is clear and
without ambiguity the plain meaning is to be accepted without resorting to the
rules of interpretation.” Syllabus Point 2, State v. Elder, 152
W.Va. 571, 165 S.E.2d 108 (1968). In other words, “'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.'
Syl. Pt. 2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951).”
Syllabus Point 1, State v. Jarvis, 199 W.Va. 635, 487 S.E.2d 293 (1997).
The language of W.Va. Code § 29-6A-7(b) is clear and unambiguous; an appeal
of a decision of the hearing examiner following a Level IV grievance hearing
can only be filed by a party or the director of the
division of personnel in the Circuit Court of Kanawha County or the circuit
court of the county wherein the grievance occurred.
In this
case, the parties to the grievance were the appellants, Mr. Antolini, Mr. McClanahan,
and Mr. Sylvester, and the appellee, the DNR. Pursuant to the plain language
of W.Va. Code § 29-6A-7, the appeal of the Level IV grievance decision
could have been filed in the Circuit Court of Kanawha County or in the circuit
court of the counties wherein the appellants worked as that is where the grievance
occurred. As previously noted, the appellants were employed in Mercer, Fayette,
and Summers counties. See note 1, supra. The appellants chose
to file their appeal in Kanawha County.
It is
undisputed that Mr. Rexrode was not a party to the original grievance proceeding
and that no part of the grievance occurred in Grant County. Therefore, based
on the clear language of W.Va. Code § 29-6A-7, Mr. Rexrode did not have
the right to file an appeal in Grant County. Moreover, the Circuit Court of
Grant County did not have jurisdiction to hear the appeal.
Since
the Circuit Court of Grant County did not have jurisdiction to hear the appeal
of the Level IV grievance decision, the order entered on March 5, 2004, by Judge
Frye does not bar the appellants' appeal in the Circuit Court of Kanawha County.
Likewise,
because the order entered by Judge Zakaib on March 8, 2005, in the appeal filed
by four other RTOs in Kanawha County, was based on Judge Frye's order, it cannot
be used to preclude the appellants' appeal either. Simply put, there has not
been a final adjudication on the merits by a court having jurisdiction of the
proceedings. Consequently, the first element of res judicata has not
been satisfied, and thus, the doctrine cannot be applied in this case.