Orr v. County Com'n of Cabell County, 17033

• Decision Date: 03 June 1987
• Docket Number: No. 17033,17033
• Citation: 359 S.E.2d 109,178 W.Va. 276
• Parties: Homer ORR v. The COUNTY COMMISSION OF CABELL COUNTY, West Virginia, a Public Corporation, and Ted T. Barr, Bill Dunfee, and Roy Adams, Individually.
• Court: West Virginia Supreme Court

Page 109

359 S.E.2d 109

178 W.Va. 276

Homer ORR v. The COUNTY COMMISSION OF CABELL COUNTY, West Virginia, a

Public Corporation, and Ted T. Barr, Bill Dunfee,

and Roy Adams, Individually.

No. 17033.

Supreme Court of Appeals of

West Virginia.

June 3, 1987.

Rehearing Denied July 16, 1987.

Syllabus by the Court.

"If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact." Syllabus point 4, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

William L. Jacobs, Parkersburg, for appellant.

William T. Watson, Huntington, for appellee.

PER CURIAM:

This is an appeal by Homer Orr from a summary judgment order of the Circuit Court of Cabell County terminating an action instituted by the appellant against the County Commission of Cabell County and the individual members of that Commission. In the complaint the appellant charged the County Commission with tortiously interfering with a contract which he had with the Cabell Public Service District. In the course of the proceedings in the case he altered his position and asserted that the County Commission, by its action, unconstitutionally impaired the obligation of contract existing between him and the Public Service District. On appeal the appellant contends that the trial court improperly precluded him from developing his case by entering summary judgment. We disagree, and we affirm the judgment of the Circuit Court of Cabell County.

The record in this case indicates that the Cabell County Commission created the Cabell Public Service District to provide water service to certain residents of Cabell County. The Public Service District contracted with the appellant, a professional engineer, for engineering services required to construct a water-distribution system.

Prior to undertaking the planning and construction of the water-distribution system the Public Service District obtained a tentative commitment from the Farmer's Home Administration for a grant of $700,000.00 and a loan of $894,000.00. The commitment was subject to extensive conditions and "project planning factors". Among the planning factors was a projection that construction of the project would cost $1,252.400.00.

The engineering-services contract between the Public Service District and the appellant established a complex compensation scheme to compensate the appellant for his engineering services. Among other things, the contract provided that the appellant would be compensated, in part, based on the actual construction cost of the project.

The appellant rendered extensive engineering services pursuant to his contract, and the Public Service District obtained a Certificate of Convenience and Necessity from the West Virginia Public Service Commission to operate the water system. The Certificate of Convenience and Necessity was issued with the view that the Public Service District would provide water service to 570 customers.

Bids were let for the construction of the project and were received on August 3, 1978. They far exceeded the estimates and "project planning factors" for the project. A second bidding procedure was conducted, and the second set of bids resulted in a low bid which exceeded available funding by $1,430,929.00.

After failing to receive a satisfactory construction bid as a result of the second bidding procedure the Public Service District proposed to divide the project into two phases. This, of necessity, reduced the number of people to be served initially, and an additional or amended Certificate of Convenience and Necessity from the Public Service Commission was necessary for the Public Service District to operate the redesigned water system. The Public Service District filed an application for an amended or additional certificate, and on September 26, 1980, the Public Service Commission rejected it.

Subsequently, in May, 1981, the Farmer's Home Administration cancelled its conditional commitment of funds to the Cabell Public Service District.

While the attempt was being made to finance and construct the water system, the citizens who were to have been served by it were apparently concerned about the delays. After the Public Service Commission refused to issue a revised Certificate of Convenience and Necessity in September, 1980, the County Commission of Cabell County scheduled a public hearing on the matter. At the hearing, conducted on December 10, 1980, many citizens affected by the failure of the Cabell Public Service District to provide water service expressed the opinion that the district's separate project should be abandoned, and that service should be provided by an expansion of an existing and functioning public service district, the Salt Rock Public Service District.

After the public hearing the Cabell County Commission, on December 17, 1980, entered an order which simultaneously reduced the geographical boundaries of the Cabell Public Service District so that it covered only one square foot of land and expanded the boundaries of the Salt Rock Public Service District to cover the area taken from the Cabell Public Service District.

Following the entry of the Commission's order the appellant filed the present proceeding alleging that in reducing the Cabell Public Service District's boundaries the Commission had tortiously interfered with his contract with the Public Service District. He also claimed that the Public Service District was the County Commission's agent and that the Commission was responsible for the agent's contract.

After the filing of the complaint, the appellant filed a motion for summary judgment which was supported by an affidavit setting forth the pertinent facts of the case. The County Commission filed no counter-affidavit denying the facts set forth in the plaintiff's motion for summary judgment, but it moved for summary judgment on the ground that the complaint failed to state a cause of action and also on the ground that there were no genuine issues as to any material fact.

Following the filing of the respective motions, the Circuit Court, without taking evidence, heard the arguments of counsel for the respective parties, denied the appellant's motion and granted the Commission's motion. It is from that ruling that the appellant now appeals.

In the complaint instituting this action, the appellant alleged that the defendants had intentionally and maliciously interfered with the contract that he had with the Cabell Public Service District. In that complaint he made no mention of the action of the County Commission rising to a constitutional level. The specific complaint language stated:

The Defendants intentionally and maliciously interfered with the contract between Plaintiff and the Cabell PSD when, on or about November 12, 1980, the Defendant Commission by order reduced the designated area of service of the Cabell PSD to one square foot, thereby destroying the ability of the Cabell PSD to generate revenue from its service area.

In the course of the proceedings in the case, the appellant progressively moved away from the legal position that the defendants intentionally and maliciously interfered with his contract and moved toward the position of asserting that the County Commission, by its action, had violated constitutional provisions prohibiting a state impairing the obligations of contract. In his petition for appeal, he assigned...