Dunbar Fraternal Order of Police v. City, No. 32655.

• Court: Supreme Court of West Virginia
• Writing for the Court: Per Curiam
• Citation: 624 S.E.2d 586
• Parties: DUNBAR FRATERNAL ORDER OF POLICE, LODGE # 119 Randy L. Gillespie, Lodge President, Plaintiffs below, Appellees, v. THE CITY OF DUNBAR, Defendant Below, Appellant.
• Docket Number: No. 32655.
• Decision Date: 01 December 2005

624 S.E.2d 586 DUNBAR FRATERNAL ORDER OF POLICE, LODGE # 119 Randy L. Gillespie, Lodge President, Plaintiffs below, Appellees,
v.
THE CITY OF DUNBAR, Defendant Below, Appellant. No. 32655. Supreme Court of Appeals of West Virginia. Submitted November 15, 2005. Decided December 1, 2005.

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Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "The liberality allowed in the amendment of pleadings pursuant to Rule 15(a) of the West Virginia Rules of Civil Procedure does not entitle a party to be dilatory in asserting claims or to neglect his or her case for a long period of time. Lack of diligence is justification for a denial of leave to amend where the delay is unreasonable, and places the burden on the moving party to demonstrate some valid reason for his or her neglect and delay." Syllabus Point 3, State ex rel. Vedder v. Zakaib, 217 W.Va. 528, 618 S.E.2d 537 (2005).

3. "[S]pecific words or clauses of an agreement are not to be treated as meaningless, or to be discarded, if any reasonable meaning can be given them consistent with the whole contract." Syllabus Point 3, in part, Moore v. Johnson Service Co., 158 W.Va. 808, 219 S.E.2d 315 (1975).

4. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Cas. & Surety Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

5. "As a general rule each litigant bears his or her own attorney's fees absent a contrary rule of court or express statutory or contractual authority for reimbursement." Syllabus Point 2, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

6. "There is authority in equity to award to the prevailing litigant his or her reasonable attorney's fees and `costs,' without express statutory authorization, when the losing party has acted in bad faith, vexatiously, wantonly or for oppressive reasons." Syllabus Point 3, Sally-Mike Properties v. Yokum, 179 W.Va. 48, 365 S.E.2d 246 (1986).

Forrest H. Roles, Esq., Allison S. Williams, Esq., Dinsmore & Shohl LLP, Charleston, for Appellant.

John F. Dascoli, Esq., The Segal Law Firm, Charleston, for Appellees.

PER CURIAM:

Appellant, City of Dunbar, appeals the September 3, 2004 order of the Circuit Court of Kanawha County that granted summary judgment to Appellee Dunbar Fraternal Order of Police in its action to enforce the terms of a collective bargaining agreement entered into between the two parties. After careful consideration of the parties' arguments, we affirm, in part, reverse, in part, and remand for additional proceedings.

I. FACTS

On October 16, 1995, Appellant City of Dunbar (hereafter "the City") and Appellee Dunbar Fraternal Order of Police (hereafter "FOP") entered into a collective bargaining agreement (hereafter "CBA"). At issue in this case are three provisions of the CBA. The first is the termination provision which provides that "This Agreement shall become effective October 16, 1995 and shall terminate

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on October 16, 1998." The second is the renegotiation provision which states:

The parties to this Agreement hereby agree, commencing at least sixty (60) days prior to the expiration of this Agreement, to bargain in good faith with regard to a successor contract. While negotiations are continuing, this Agreement shall remain in full force and effect for such an additional period of time as is necessary to negotiate a successor contract.

The third provision at issue is one regarding health insurance premiums which provides:

The members of the Police Department covered under this agreement will pay no more premium or be provided any less benefit coverage than any other bargaining unit in the City of Dunbar.

By letter dated August 13, 1998, the City sent notice to the FOP indicating that it did not intend to renegotiate a contract with the FOP upon the termination of the CBA on October 16, 1998. On September 24, 1998, the FOP filed an action against the City alleging in Count I that the CBA contains no termination clause and that the City was required to bargain for a successor agreement. In Count II, the FOP contended that the City unilaterally altered the terms of the contract by requiring police officers to pay contributions toward their health insurance coverage. Count II further alleges that the City should be required to abide by the CBA and to continue paying health insurance coverage until the parties reach a successor agreement.

On March 11, 2000, the circuit court ordered a stay of proceedings pending the outcome of litigation involving the City and its firefighters in regard to health insurance premium contributions. Subsequently, after an August 18, 2003, hearing, the circuit court lifted the stay. On September 2, 2003, the City moved to file an amended answer to set forth a number of additional defenses. By order dated November 14, 2003, the circuit court denied the City's motion, finding that the "Plaintiff is on notice of the Defendant's position by virtue of the remainder of the Answer." Thereafter, the parties filed cross motions for summary judgment. On September 3, 2004, the circuit court granted the FOP's summary judgment motion.

The circuit court ruled in its order that the City is required to pay the difference between HMO and PEIA basic indemnity health premiums for FOP members. The circuit court further ordered the City to negotiate in good faith with respect to a successor agreement, ordered the parties to mediate toward an agreement, and ordered the City to pay for the mediator's fees. Finally, the circuit court ordered the City to pay for the FOP's attorney fees and costs.

II. STANDARD OF REVIEW

In reviewing the circuit court's summary judgment order, we are mindful that, "A circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

III. DISCUSSION

The City challenges the circuit court's summary judgment order on several grounds. First, the City asserts that the circuit court abused its discretion by denying the City's motion for leave to file an amended answer. Specifically, the City argues that it was not dilatory in filing its motion to amend because no discovery had occurred and summary judgment motions had not yet been briefed. We reject the City's argument. The FOP filed its complaint on September 24, 1998, and the City filed its answer on October 7, 1998. On March 11, 2000, the circuit court ordered a stay of proceedings pending the outcome of the firefighters' litigation against the City. The City filed its motion for leave to amend its answer after the stay was lifted about three and one-half years later. Significantly, the City had fifteen months to file its motion to amend between the filing of its answer and the circuit court's stay of the proceedings, but it failed to do so.

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In Syllabus Point 3 of State ex rel. Vedder v. Zakaib, 217 W.Va. 528, 618 S.E.2d 537 (2005), this Court held:

The liberality allowed in the amendment of pleadings pursuant to Rule 15(a) of the West Virginia Rules of Civil Procedure does not entitle a party to be dilatory in asserting claims or to neglect his or her case for a long period of time. Lack of diligence is justification for a denial of leave to amend where the delay is unreasonable, and places the burden on the moving party to demonstrate some valid reason for his or her neglect and delay.

We do not believe that the City has demonstrated a valid reason for its 15-month delay between the time it filed its answer and the stay of proceedings. Every new defense sought to be raised by the City in its proposed amended answer was or should have been known by the City when it filed its answer. Therefore, we conclude that the circuit court did not abuse its discretion in denying the City's motion for leave to file an amended complaint.

Second, the City contends that the circuit court erroneously granted the FOP's motion for summary judgment by failing to address arguments raised in the City's motion for summary judgment and its opposition to the FOP's summary judgment motion. Specifically, the City claims that the circuit court failed to address its argument that the CBA is void ab initio pursuant to W.Va.Code § 11-8-26 (1963),¹ which states, in pertinent part,

Except as provided in sections fourteen-b [§ 11-8-14b], twenty-five-a [§ 11-8-25a] and twenty-six-a [§ 11-8-26a] of this article, a local fiscal body shall not expend money or incur obligations:

(1) In an unauthorized manner;

(2) For an unauthorized purpose;

(3) In excess of the amount allocated to the fund in the levy order;

(4) In excess of the funds available for current expenses.

According to the City, this code section prohibits a local fiscal body from entering into a contract the performance of which would invade revenue for a subsequent year. The City contends that because the CBA at issue bound the City in 1995 to pay wages and benefits to police officers for 1996, 1997, and 1998, the CBA is void.

Cases cited by the City in support of its position include State ex rel. Mick v. County Court of Lewis County, 110 W.Va. 533, 158 S.E. 790 (1931), Ireland v. BOE of Kanawha Co., 115 W.Va. 614, 177 S.E. 452 (1934), and Meador v. County Court of McDowell Co., 141 W.Va. 96, 87 S.E.2d 725 (1955), in which this Court refused to enforce multi-year employment contracts entered into by cities or counties based on W.Va.Code § 11-8-26. The FOP responds by citing Huntington Water Corp. v. City of Huntington, 115 W.Va. 531, 177 S.E. 290 (1934), in which this Court recognized the validity of a multi-year contract entered into by the Huntington Water Corporation and the City of Huntington...