Bernard Spaulding
Logan, West Virginia
Attorney for the Appellee

Cecil C. Varney
Varney Law Offices
Larry E. Thompson
Thompson & Thompson
Williamson, West Virginia
Attorney for the Appellant

This Opinion was delivered PER CURIAM

Justices Neely and Workman dissent and would reverse this case.

         "A promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee's continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer's promise binding and enforceable." Syl. pt. 5, Cook v. Heck's Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986).

         "Generally, the existence of a contract is a question of fact for the jury." Syl. pt. 4, Cook v. Heck's Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986).

         "'If a party offers evidence to which an objection is sustained, that party, in order to preserve the rejection of the evidence as error on appeal, must place the rejected evidence on the record or disclose what the evidence would have shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal.' Syllabus Point 1, Horton v. Horton, 164 W.Va. 358, 264 S.E.2d 160 (1980)." Syl. pt. 8, Torrence v. Kusminsky, ___ W. Va. ___, 408 S.E.2d 684 (1991).

         "'The granting of a continuance is a matter within the sound discretion of the trial court, though subject to review, and the refusal thereof is not ground for reversal unless it is made to appear that the court abused its discretion, and that its refusal has worked injury and prejudice to the rights of the party in whose behalf the motion was made. Syl. pt. 1, State v. Jones, 84 W. Va. 85, 99 S.E. 271 (1919).' Syllabus Point 1, State v. Davis, [176] W. Va. [454], 345 S.E.2d 549 (1986)." Syl. pt. 1, Templeton v. Templeton, 179 W. Va. 597, 371 S.E.2d 175 (1988).

Per Curiam:

    The Mingo County Economic Opportunity Commission (hereinafter EOC) appeals from a jury verdict entered in the Circuit Court of Mingo County in favor of a former employee of the EOC, Earlene Blankenship, who brought suit against the EOC seeking to be rehired under an implied contract theory. The EOC asserts numerous assignments of error and seeks to have the jury verdict set aside. Upon consideration of the record before us, we conclude that there is no reversible error.

II

The EOC first contends that the trial court erred in failing to either direct a verdict in its favor or grant a new trial on the ground that there was no evidence introduced by Ms. Blankenship which established that the personnel policy in question was formally adopted by the EOC. Ms. Blankenship maintains that it was established, through the testimony of Rebecca Sheppard, a former EOC district director, and Mark Timothy Crum, a former executive director of the EOC, that the personnel policy was used at the EOC.

        Before we address the issue of whether the evidence adduced by Ms. Blankenship established that the personnel policy in question was the policy of the EOC, we must first consider whether the jury could have concluded from the evidence that a certain provision of that policy created a binding contract.See footnote 1

    The provision in the personnel policy upon which Ms. Blankenship relied as creating a binding contract states:   

      When and if a vacancy occurs within the agency, the priority and obligations for filling the vacancy should be given to:

        Any staff person or former staff person displaced or being displaced from employment as a direct result of the loss of funding and/or reduction of funding.

        This Court has recognized that employee handbooks or policy manuals containing express or implied promises may create a binding contract. Collins v. Elkay Mining Co., 179 W. Va. 549, ___, 371 S.E.2d 46, 52 (1988); Cook v. Heck's Inc., 176 W. Va. 368, 342 S.E.2d 453 (1986). We specifically held in syllabus point 5 of Cook:

            A promise of job security contained in an employee handbook distributed by an employer to its employees constitutes an offer for a unilateral contract; and an employee's continuing to work, while under no obligation to do so, constitutes an acceptance and sufficient consideration to make the employer's promise binding and enforceable.

        Whether the personnel policy constitutes an agreement binding the parties is usually a question for the jury as we recognized in syllabus point 4 of Cook: "Generally, the existence of a contract is a question of fact for the jury."

    In the case before us, Ms. Blankenship established at the jury trial that she was employed by the EOC as a district director. Mr. Harmon, who was acting director at the time Ms. Blankenship was laid off, testified that she was laid off as a result of the lack of funding. Moreover, the jury heard the testimony of Ms. Blankenship, Ms. Sheppard, Mr. Crum and Mr. Harmon identifying the personnel policy as the one used at the EOC at the time of the layoffs. Furthermore, a copy of the personnel policy was admitted into evidence.See footnote 2 There was no evidence introduced by the EOC which
contradicted the testimony of those witnesses regarding the personnel policy.

    When considering this evidence in a light most favorable to Ms. Blankenship, it is clear that the trial court did not err in denying the EOC's motion for a directed verdict.See footnote 3 The evidence showed that the personnel policy was used at the EOC and that it included a provision giving priority to displaced employees in filling vacancies at the EOC. The evidence adduced by Ms. Blankenship established a prima facie case. Thus, it was within the province of the jury to ascertain from the facts whether the policy in question was the EOC's and whether its provisions constituted a binding contract.See footnote 4

        Generally, the trial court's determination to quash a subpoena is addressed to the sound discretion of the trial court and is subject to review for abuse of discretion. See Manning v. Lockhart, 623 F.2d 536, 539-40 (8th Cir. 1980) (trial court abused its discretion in refusing to issue a subpoena requiring attendance of witness when record showed that his testimony was relevant); Swartz v. Pittsburgh Public Parking Authority, 439 A.2d 1254, 1255-56 (Pa. Commw. Ct. 1981) (trial court did not abuse its discretion in quashing subpoenas issued to Public Parking Authority and city counsel members because condemnees failed to show how the testimony of the subpoenaed persons would be relevant to their case). See 5A James W. Moore & Jo D. Lucas, Moore's Federal Practice § 45.09 (2d ed. 1991); 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 2463 (1971).

    We do not find from the record before us that the trial court abused its discretion in quashing Moore's subpoena. Moore, who had been indicted in federal court and pled guilty, could not appear at trial. The record also shows that the EOC was not diligent in its efforts to depose or subpoena him. Moreover, it appears from the record that the EOC could have introduced the evidence regarding the EOC's funding through another witness.

    The EOC further argues, however, that the trial court refused to allow the two letters written by Moore into evidence at the trial regarding the restructuring of the EOC. One letter essentially outlined the problems at the EOC and suggested that a temporary trustee director, who would report directly to the Governor's Office of Community and Industrial Development, be appointed to oversee all EOC programs. The other letter returned operational authority to the EOC Board and eliminated the position of district director.See footnote 6

        However, upon review of the transcript of the trial, it does not appear that counsel on behalf of the EOC ever attempted to introduce those letters into evidence. While Mr. Bradford was testifying on behalf of the EOC regarding his responsibilities as the temporary EOC trustee director, counsel on behalf of Ms. Blankenship objected on the grounds that a proper foundation had not been laid for him to testify about his duties at the EOC. Counsel on behalf of the EOC asked the trial court's permission to excuse Mr. Bradford so that another witness could be called to lay a foundation for his testimony. Counsel on behalf of the EOC never called Mr. Bradford back to the stand nor did he offer Moore's letters or vouch the record regarding what he intended to place into evidence.

    This Court explained in syllabus point 8 of Torrence v. Kusminsky, ___ W. Va. ___, 408 S.E.2d 684 (1991):

            'If a party offers evidence to which an objection is sustained, that party, in order to preserve the rejection of the evidence as error on appeal, must place the rejected evidence on the record or disclose what the evidence would have shown, and the failure to do so prevents an appellate court from reviewing the matter on appeal.' Syllabus Point 1, Horton v. Horton, 164 W. Va. 358, 264 S.E.2d 160 (1980).

    The EOC relies on Rule 803(1) of the West Virginia Rules of Evidence, which provides: "The following are not excluded by the hearsay rule, even though the declarant is available as a witness:    [¶] (1) Present Sense Impression.--A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter."See footnote 8

        It appears that the EOC's reliance on Rule 803(1) is misplaced. The Board meeting to which the EOC sought to have Mr. Bradford and Ms. DeLong testify regarding their "present sense impression" had been held approximately two and one-half years before the trial in this case was conducted. The EOC was not attempting to introduce statements made by a declarant at the time he or she was perceiving an event or immediately thereafter. Instead, the EOC was attempting to establish Mr. Bradford's duties at the EOC by introducing the minutes from the EOC's Board meeting. The admissibility of the minutes of the EOC's Board meeting would not fall under Rule 803(1) relating to "present sense impression."

    The admissibility of business records of regularly conducted business activity is primarily controlled by Rule 803(6).See footnote 9 This Court recognized in State v. Fairchild, 171 W. Va. 137, 147, 298 S.E.2d 110, 120 (1982), a case decided prior to the adoption of the current West Virginia Rules of Evidence, that "[i]t is not necessary that the maker of the record be called to testify to verify the authenticity of the entry." We further explained that the trustworthiness of the entry can be established through the testimony of the custodian of the records who can show that the record was kept as an established procedure within the business routine. Id. We observed, however, that "in no instance may records of this kind prove themselves." Id.

        The trial court in the case before us did not rule that the minutes of the EOC meeting were inadmissible but instead directed the EOC to introduce those records through the testimony of the secretary who prepared the minutes or the custodian of the records containing the minutes of the EOC Board meeting.See footnote 10 It does not appear that the trial court's ruling on this issue was inconsistent with the provisions of Rule 803(6).See footnote 11

The EOC never vouched the record regarding the rejected evidence.See footnote 16 Thus, under our holding in Torrence, supra, we shall not review this matter.

        We do not find from the record before us that the trial court's denial of a continuance worked injury and prejudice to the rights of the EOC. The EOC claims that it was not given a sufficient opportunity to depose Ms. Blankenship and that it was surprised by several rulings relating to former Governor Moore.

Yet, it appears from the record that the EOC was not diligent in its efforts to depose either Ms. Blankenship or former Governor Moore. Moreover, as we previously pointed out, the EOC never attempted to introduce Moore's letters into evidence. Thus, we conclude that the trial court did not abuse its discretion in denying the continuance.

        Thus, for the reasons set forth herein, we conclude that the judgment of the Circuit Court of Mingo County should be affirmed.See footnote 17

            '"Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence." Syl., Nichols v. Raleigh-Wyoming Coal Co., 112 W. Va. 85, 163 S.E. 767 (1932).' Syl. pt. 1, Totten v. Adongay, [175] W. Va. [634], 337 S.E.2d 2 (1985).

        Finally, our determination that the contract issue was a jury question also disposes of the EOC's assignment of error that the trial court should have granted its motion for summary judgment.

May 10, 1990 hearing, tr. at 12.

Trial tr. at 30.

(emphasis added)