ACT v. UNIVERSITY OF WV BD. OF TRUSTEES

• Citation: 557 S.E.2d 863,210 W.Va. 456
• Decision Date: 12 December 2001
• Docket Number: No. 29330.,29330.
• Parties: AFFILIATED CONSTRUCTION TRADES FOUNDATION, a Division of the West Virginia Building and Construction Trades Council, AFL-CIO, Plaintiff Below, Appellant, v. The UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES, et al., Defendants Below, Appellees.
• Court: West Virginia Supreme Court

557 S.E.2d 863

210 W.Va. 456

AFFILIATED CONSTRUCTION TRADES FOUNDATION, a Division of the West Virginia Building and Construction Trades Council, AFL-CIO, Plaintiff Below, Appellant, v. The UNIVERSITY OF WEST VIRGINIA BOARD OF TRUSTEES, et al., Defendants Below, Appellees.

No. 29330.

Supreme Court of Appeals of West Virginia.

Submitted October 23, 2001.

Decided December 12, 2001.

Vincent Trivelli, Stuart Calwell, the Law Offices of Stuart Calwell, PLLC, Charleston, for the Appellant.

Darrell V. McGraw, Jr., Attorney General, Beth Ann Rauer, Assistant Attorney General, Charleston, for the Appellees, University of West Virginia Board of Trustees and The University System of West Virginia.

Bruce Ray Walker, General Counsel, State College and University Systems, Charleston, for the Appellee, West Virginia Higher Education Policy Commission.

Stephen P. Goodwin, Carrie Goodwin Fenwick, Goodwin & Goodwin, Charleston, for the Appellee, West Virginia University.

James A. Russell, Steptoe & Johnson, Morgantown, and James R. Watson, Ancil G. Ramey, Kara L. Cunningham, Steptoe & Johnson, Charleston, for the Appellee, West Virginia University Foundation, Inc.

Charles M. Johnstone, II, Thaxton & Johnstone, Charleston, for the Appellees, March-Westin Co., Inc., Paul A. Walker Architect, Inc., and Evan Terry Associates, P.C.

Charles M. Surber, Jr., David Allen Barnette, Christina T. Brumley, Jackson & Kelly, Charleston, and Eric H. London, Jackson & Kelly, Morgantown, for the Appellee, Platinum Properties Limited Liability Company and Petropolus and Associates, Inc.

H.F. Salsbery, Madonna C. Estep, Salsbery & Druckman, Charleston, for James A. Prete. ALBRIGHT, Justice:

The Affiliated Construction Trades Foundation ("ACT"), a division of the West Virginia Building and Construction Trades Council, AFL-CIO, appeals from the September 29, 2000, order of the Circuit Court of Kanawha County, through which the lower court denied ACT's motion to alter or amend the May 23, 2000, decision granting summary judgment to the Appellees, inter alia, The West Virginia University Foundation, Inc. (the "Foundation").¹ ACT initiated the underlying action to obtain a declaratory judgment requiring the Appellees to comply with various state laws concerning the payment of prevailing wages to workmen engaged in construction of public improvements,² competitive bidding,³ and the procurement of architectural and engineering services⁴ in connection with the building of an administrative office building intended for the use of both West Virginia University and the Foundation. Upon a complete review of the issues raised in conjunction with the record, we affirm the decision of the circuit court. Notwithstanding the technical mootness of the issues raised on appeal given the completion of the construction project at issue, we address those issues, which remain in controversy, under established principles allowing review where the issues are of great public interest.

I. Factual and Procedural Background

On October 13, 1999, ACT instituted a declaratory judgment action⁵ against the University of West Virginia Board of Trustees, the University System of West Virginia, and the West Virginia University (hereinafter collectively referred to as "WVU"); the Foundation; as well as various corporations,⁶ through which it sought a finding that the planned construction of an office building⁷ to be known as the "University Services Center" (the "Center") was a public project governed by the competitive bidding laws and prevailing wage laws of this state.⁸ In its petition, ACT averred that WVU was "engaged in a course of conduct aimed at circumventing laws requiring public competitive bidding and laws requiring the payment of prevailing wages."

In support of its petition, ACT alleged that beginning in 1996 WVU and the Foundation began preparations for and subsequently entered into various agreements concerning the design, construction, and lease/purchase of the Center. Among those documents submitted in support of its petition was a memorandum dated February 5, 1997, prepared by Susan L. McCollum, Senior Facilities Planner/Lease Manager, outlining the chronology of events pertaining to the purchase or replacement of the Center. Included in that chronology was an entry dated August 1996, stating: "[I]nvestigated potential process for third party construction and financing." Additional documents attached to the petition include two memoranda prepared by Ms. McCollum dated January 17 and April 17, 1997, which detail the space requirements of current and potential occupants for the Center. When the Foundation issued a "Request for Proposals" dated June 20, 1997, pertaining to providing professional development services for the Center, the document indicated that "[t]he developer is expected to work with WVU and the WVU Foundation staff to develop and define facility layout and design." A supplement to the "Request for Proposal" was issued on July 18, 1997, specifying that both the Foundation and WVU are seeking and will select an "experienced development firm/team" with the "ability to establish and implement a turnkey administrative office building development strategy."

Of the "[n]early fifty firms [that] expressed an interest in the Foundation's initial Request for Proposal," ten firms were jointly interviewed by the Foundation and WVU. As a result of this interviewing and selection process, Platinum Properties Limited Liability Company ("Platinum") was selected to provide a package of development services, including site evaluation and selection, site acquisition, engineering and design, construction, and contract administration. A Pre-Construction Services Agreement ("Pre-Construction Agreement") detailing these obligations was entered into between the Foundation and Platinum on March 19, 1998.

Pursuant to its obligations under the Pre-Construction Services Agreement, Platinum selected and recommended a site for the Center, which was subsequently approved by the Foundation. On September 7, 1999, a second agreement, entitled the Turnkey Construction, Site Development and Purchase Agreement (the "Turnkey Agreement"), was entered into between the Foundation and Platinum. Pursuant to this agreement, Platinum agreed to construct the Center from its own sources at its risk and to sell the improved site to the Foundation upon completion of the Center. The Turnkey Construction Agreement provides that WVU, as the Tenant, has approved the initial plans and further provides that WVU must approve of any change, amendment, refinement, or addition to the approved plans. The agreement further provides for a purchase price of $22,821,969.00 upon satisfaction of certain specified conditions.⁹

While a lease-purchase agreement had not been entered into at the time of the filing of the petition, ACT produced documentation demonstrating the intent that a thirty-year lease-purchase contract would be signed by the State with the Foundation "for and on behalf of West Virginia University, as Tenant, for the lower six floors" of the seven-floor Center.¹⁰ A draft lease-purchase agreement, as well as additional documentation, indicated that at the conclusion of the lease term, WVU was to take ownership of the facility. In actuality, however, a lease, rather than a lease-purchase agreement was entered into, but not until May 25, 2001, after the issuance of the circuit court's final ruling in this case.

In response to ACT's petition for declaratory judgment, the Foundation filed a motion to dismiss or in the alternative, a motion for summary judgment. The remaining Appellees similarly filed motions to dismiss.¹¹ At a hearing on January 26, 2000, the circuit court heard argument of counsel on the petition and the various motions seeking dismissal or summary judgment. By order entered on May 23, 2000, the circuit court granted summary judgment to Appellees. ACT sought to alter or amend the summary judgment ruling by filing a Rule 59(e) motion,¹² which the circuit court denied by order entered on September 29, 2000. Through this appeal, ACT challenges the lower court's denial of the relief it requested below.

II. Standard of Review

We announced the applicable standard in syllabus point one of Wickland v. American Travellers Life Insurance Co., 204 W.Va. 430, 513 S.E.2d 657 (1998): "The standard of review applicable to an appeal from a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment upon which the motion is based and from which the appeal to this Court is filed." In this case the underlying judgment is a grant of summary judgment, so the governing standard is the de novo standard as set forth in syllabus point one of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

III. Discussion

A. Circuit Court's Ruling

In ruling in favor of the Foundation and the other Appellees below, the circuit court focused on the statutes at issue and the two agreements that had been entered into at the time of the hearing—the Pre-Construction Agreement and the Turnkey Agreement. After finding that there are only two parties to each of these agreements—the Foundation and Platinum, the lower court proceeded to determine whether the prevailing wage statute was applicable to the contracts at issue. That statutory provision states that:

It is hereby declared to be the policy of the State of West Virginia that a wage of no less than the prevailing hourly rate of wages for work of a similar character in the locality in this State in which the construction is performed, shall be paid to all workmen employed by or on behalf of any public authority engaged in the construction of public improvements.

W.Va.Code § 21-5A-2 (1961) (Repl. Vol. 1996).

In ruling on the applicability of the prevailing wage statute to the construction of the Center, the circuit court looked to the statutory definitions of the...