Folio v. Harrison-Clarksburg Health Dept.
| Decision Date | 17 June 2008 |
| Docket Number | No. 33707.,33707. |
| Citation | 222 W.Va. 319,664 S.E.2d 541 |
| Parties | Bernard J. FOLIO and Grandeotto, Inc., Plaintiffs Below, Appellants, v. HARRISON-CLARKSBURG HEALTH DEPT., et al., Defendants Below, Appellees. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. "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 Co. v. Federal Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).
2. "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).
3. "[S]ummary judgment cannot be defeated on the basis of factual assertions contained in the brief of the party opposing a motion for such judgment." Syllabus Point 3, Guthrie v. Northwestern Mutual Life Insurance Co., 158 W.Va. 1, 208 S.E.2d 60 (1974).
4. Syl. Pt. 1, Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451 (1995).
Jerry Blair, Jr., Esquire, Blair, Conner & McIntyre-Nicholson PLLC, Clarksburg, for Appellants.
Michael J. Florio, Esquire, Florio Law Offices, Clarksburg, for Appellees.
The instant action is before this Court upon the appeal of Bernard J. Folio and Grandeotto, Inc.1 [hereinafter "Appellants"] from a March 13, 2007, order granting Harrison-Clarksburg Health Department's and Harrison-Clarksburg Board of Health's2 [hereinafter "Appellees"] Motion for Summary Judgment. On appeal, the Appellants allege that errors were committed by the circuit court in its finding that no legal announcement of competitive bidding is necessary when a local combined board of health seeks to relocate its facilities; by finding that no genuine issue of material fact existed regarding whether constructive fraud existed; and by ruling that actual fraud had to be proven to maintain an action. The Appellees conversely allege that competitive bidding was not required, and there was no evidence of constructive fraud. This Court has before it the petition for appeal, all matters of record and briefs and arguments of counsel. For the reasons expressed below, the March 13, 2007, order of the Circuit Court of Harrison County is affirmed.
The instant action arose out of the effort of the Appellees to acquire building space for the relocation of its offices.3 In response to newspaper publicity of its intent, the Appellees received approximately twenty proposals, including one from Appellants offering to lease a building recently occupied by Rite-Aid. Although the Rite-Aid building was one of the three finalists, the Appellees decided to lease the Toothman Rice building, another finalist.4
The Appellants commenced action in the Circuit Court of Harrison County challenging the process the Appellees used in selecting the new location for their facilities, seeking to have the Appellants' decision annulled and its building selection process "redone." In its complaint, Appellants alleged the following: 1) that the chairperson of the Board appointed by the City of Clarksburg was at all relevant times a nonresident of the City, thus making the Appellants' lease of the Toothman Rice building "voidable as emanating from an illegally constituted entity"; 2) that a conflict of interest existed because Main Street Realty, Inc., the owner of the Toothman Rice building, was then represented by the same law firm that then represented the City of Clarksburg, and a partner of that firm was then the Secretary/Treasurer and possible part-owner of Main Street Realty, Inc.; 3) that the rating scores for the proposed properties were arbitrary and capricious because the Appellants established an arbitrary scoring procedure for which there was no standard or training provided or assessment of criteria agreed for assigning said scores; and 4) that the Appellants' lease of the Toothman Rice building at a rental amount significantly more expensive than the equivalent or superior property proposed by the Appellants and by others constituted malfeasance and a breach of the Appellees' fiduciary duty and the public trust.
Appellees initially filed a Motion to Dismiss which was converted into a Motion for Summary Judgment. The circuit court dismissed one claim against the Appellees concerning the composition of the organization's Board at the time the tentative relocation decision was made. However, the circuit court ruled that the substantive claim regarding the selection and relocation of the Health Department facilities could only be dismissed upon proof of the absence of "fraud, collusion, or palpable abuse of discretion."5 The court permitted additional time for discovery to be conducted. At the close of discovery, Appellees filed a renewed Motion for Summary Judgment based on the absence of evidence of fraud, collusion, or palpable abuse of discretion. After a hearing on the issues raised in the parties pleadings, the circuit court granted Appellees' motion, finding that no such evidence existed.6 It is from that order that Appellants now appeal.
"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." Syl. Pt. 3, Aetna Co. v. Federal Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). Furthermore, "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Mindful of these standards, we proceed to consider the arguments of the parties.
In their first assignment of error, Appellants contend that the circuit court erred in finding that the Appellees were not required to publicly solicit competitive bids or advertise for potential properties to relocate the Health Department facilities. While Appellants concede that West Virginia Code § 16-2-1 et seq. (2000), the statute under which the Board of Health was created and established and under which it is operated and maintained, does not require Appellees to solicit competitive bids for office space through a published source,7 they argue that there are three reasons why the Appellees should have been required to do so: 1) procurement constraints of its sources of funding; 2) procurement restraints of its creating agencies; and 3) fair and open government.
Appellants first contend that the Appellees are a recipient of local, state and federal funds,8 and that as a consequence, it must use a procurement process that is at least as comparatively rigorous as that of the funding agency. However, Appellants do not identify the local, state and federal agencies from whom the Appellees allegedly receive funds, do not reveal what process any such agencies must follow in acquiring rental office space,9 and do not provide any legal basis for their claim that at a minimum the Appellees must use the same procurement process as its funding agencies, whatever they may be.10
In support of their argument, Appellants reference West Virginia Utility Contractors Association v. Laidley Field Athletic and Recreational Center Governing Board, 164 W.Va. 127, 260 S.E.2d 847 (1979), and Burgess v. City of Cameron, 113 W.Va. 127, 166 S.E. 113 (1932). However, we find these two cases wholly irrelevant to Appellants' claim.
In Laidley Field, the plaintiffs' complaint alleged that they had a legal right to have contracts of the Laidley Field Board submitted for competitive bidding. However, the issues before this Court were whether the plaintiffs had standing to seek a declaratory judgment on the issue, and whether a justiciable controversy existed. 164 W.Va. 127, 260 S.E.2d 847. This Court did not decide whether the Laidley Field Board was required to submit the contract at issue to competitive bidding. That issue was left for the circuit court to decide upon remand. Id. at 131, 260 S.E.2d at 850. As for Appellants' reliance on City of Cameron, competitive bidding was required for the resurfacing of streets in that case because it was specifically imposed upon the city by its charter. 113 W.Va. 127, 166 S.E. 113. Such is not the case before us. Appellants have not cited any legal authority or precedent requiring legal advertisements or competitive bidding in these specific circumstances, nor do they cite any legal authority that would cause us to reverse the circuit court's conclusion.11 Accordingly, the decision of the circuit court on this issue is affirmed.
As for Appellants' two remaining arguments that the Appellees are required to publicly solicit competitive bids or advertise for potential properties due to procurement restraints of its creating agencies and the principles of fair and open government, we disagree. Appellants cited no legal authority or precedent imposing a statutory requirement upon the Appellees' creating agencies to solicit competitive bidding in acquiring office rental space. Rather, they simply assume that such is required. Furthermore, recognizing separation of powers principles, it is not for this Court to judicially adopt public policy that "fair and open government" requires the solicitation of competitive bids for rental office space, when that decision lies exclusively with the legislature. The Legislature, not this Court, is the appropriate forum for that argument. For these reasons, the decision of the circuit court on these issues is...
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