PINGLEY v. HUTTONSVILLE PUBLIC SVC. DIST.
| Decision Date | 04 March 2010 |
| Docket Number | No. 34969.,34969. |
| Parties | Brandy PINGLEY, et al., Petitioners Below, Appellants, v. HUTTONSVILLE PUBLIC SERVICE DISTRICT, Respondent Below, Appellee. |
| Court | West Virginia Supreme Court |
Erika H. Klie Kolenich, Klie Law Offices, Buckhannon, WV, for Appellants.
Roberta F. Green, Heather B. Lord Osborn, Shuman, McCuskey & Slicer, Charleston, WV, for Appellee.
Brandy and Jonathan Pingley, plaintiffs below (hereinafter "the Pingleys"), appeal from an order of the Circuit Court of Randolph County granting summary judgment in favor of Huttonsville Public Service District, defendant below (hereinafter "HPSD").1 In this appeal, the Pingleys contend that it was error to grant HPSD summary judgment prior to discovery being conducted in the case. After a careful review of the briefs, the record submitted on appeal, and listening to the oral arguments, we reverse and remand this case for further proceedings consistent with this opinion.
The record indicates that in January or February of 2007, the Pingleys moved into their home in the East Dailey area of Randolph County, West Virginia. The Pingleys allege that at approximately 2:00 a.m. on April 14, 2007, they awoke and found that their home was flooded with a substantial amount of sewage.2 The Pingleys contacted HPSD to complain that the sewage backup in their home was caused by problems with HPSD's sewer system. As a result of the damage done to their home by the sewage backup, the Pingleys were forced to move out of their home for three and a half months.
HPSD, through its insurer, allegedly spent over $60,000.00 repairing the Pingleys' home and sewer line, and providing for the Pingleys during the repair period. The Pingleys believed that they were not adequately compensated for the damage caused by the sewage backup. Consequently, on June 9, 2008, the Pingleys filed the instant action against HPSD.3 Prior to filing an answer to the complaint, HPSD filed a motion for summary judgment on July 11, 2008. Thereafter, the Pingleys filed a response to HPSD's summary judgment motion. The response included an affidavit under Rule 56(f) of the West Virginia Rules of Civil Procedure.4 The Pingleys' Rule 56(f) affidavit indicated that they needed to engage in discovery to defeat HPSD's motion for summary judgment. The circuit court, by order entered December 11, 2008, granted HPSD's motion for summary judgment. From this order, the Pingleys now appeal.5
This matter comes before this Court from an order of the circuit court granting a motion for summary judgment in favor of HPSD. We have held that "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). In Syllabus point 3 of Aetna Casualty and Surety Company v. Federal Insurance Company of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963), we held that "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." See Syl. pt. 1, Jefferson County Citizens for Econ. Pres. v. County Comm'n of Jefferson County, 224 W.Va. 365, 686 S.E.2d 16 (2009). Additionally, we have held that "summary judgment is mandated in our courts where, after appropriate discovery, there is no legitimate dispute regarding a genuine issue of material fact impacting liability apparent from the record before the circuit court." Jackson v. Putnam County Bd. of Educ., 221 W.Va. 170, 177-78, 653 S.E.2d 632, 639-40 (2007) (emphasis added). With these standards in place, we turn to the merits of this appeal.
The sole issue raised by the Pingleys is that the circuit court erred by granting summary judgment in favor of HPSD because, as set forth in their Rule 56(f) affidavit, there was a need for discovery to resist the summary judgment motion.6 In Syllabus point 3 of Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995), we addressed the burden on a party opposing a motion for summary judgment:
If the moving party makes a properly supported motion for summary judgment and can show by affirmative evidence that there is no genuine issue of a material fact, the burden of production shifts to the nonmoving party who must either (1) rehabilitate the evidence attacked by the moving party, (2) produce additional evidence showing the existence of a genuine issue for trial, or (3) submit an affidavit explaining why further discovery is necessary as provided in Rule 56(f) of the West Virginia Rules of Civil Procedure.
(Emphasis added). See Syl. pt. 3, in part, Crain v. Lightner, 178 W.Va. 765, 364 S.E.2d 778 (1987) (). It has been recognized that "summary judgment is appropriate only after the opposing party has had adequate time for discovery." Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure, § 56(f), at 1144 (3d ed. 2008). See Powderidge Unit Owners Ass'n v. Highland Props., Ltd., 196 W.Va. 692, 701, 474 S.E.2d 872, 881 (1996) (). We have also noted that "a decision for summary judgment before discovery has been completed must be viewed as precipitous." Board of Educ. of the County of Ohio v. Van Buren & Firestone Architects, Inc., 165 W.Va. 140, 144, 267 S.E.2d 440, 443 (1980).
The record in this case is clear. The Pingleys did not engage in discovery after the complaint was filed because HPSD filed its summary judgment motion prior to filing an answer to the complaint.7 As a consequence of the summary judgment motion, no scheduling or discovery conference was held. Although formal discovery was never conducted by the Pingleys, the circuit court rejected the Pingleys' request to conduct discovery prior to ruling on the summary judgment motion.8 The circuit court determined that the Pingleys could not prove that HPSD breached a duty owed to them. The circuit court's summary judgment order stated that HPSD established that it never received any complaints regarding the Pingleys' sewer line prior to the flooding. Therefore, it breached no duty of care to the Pingleys. See Cleckley, et al., Litigation Handbook, § 56(c), at 1135 ( ).
The circuit court found that HPSD had to have prior knowledge that the Pingleys had a sewer line problem before its duty of care to them arose. In so finding, the circuit court relied exclusively upon this Court's decision in Calabrese v. City of Charleston, 204 W.Va. 650, 515 S.E.2d 814 (1999), stating in its summary judgment order that:
as to a public utility's duty, the Supreme Court held in Calabrese ... "a municipality, in maintenance of its sewerage system, owes only the duty of reasonable care to avoid damage to the property of others." The Supreme Court also notes in Calabrese that without notice of a specific issue or concern with the property or service lines, a public utility has no duty to act beyond ensuring the line is open, in repair, and free from nuisance.
The circuit court's interpretation of Calabrese is simply wrong.
In Calabrese, the plaintiffs' home was damaged when their basement was flooded with sewage on at least five occasions. The plaintiffs sued the City of Charleston on the grounds that it was negligent in the maintenance and operation of the City's sewer system. The City moved for summary judgment on the grounds that it was immune from liability based upon statutes and its own ordinance. Prior to ruling on the City's motion for summary judgment, the circuit court certified four questions to this Court. The questions certified and the circuit court's answers were as follows:
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