State ex rel. Affiliated Constr. Trades Found. v. Stucky

• Decision Date: 21 June 2012
• Docket Number: No. 11–1690.,11–1690.
• Citation: 729 S.E.2d 243,229 W.Va. 408
• Parties: STATE of West Virginia ex rel. the AFFILIATED CONSTRUCTION TRADES FOUNDATION, A Division of the West Virginia State Building and Construction Trades Council, AFL–CIO, Plaintiff Below, Petitioner v. The Honorable James C. STUCKY, Judge of the Circuit Court of Kanawha County; West Virginia Department of Transportation, Division of Highways; West Virginia Board of Education; Mingo County Redevelopment Authority; and Nicewonder Contracting, Inc., Defendants Below, Respondents.
• Court: West Virginia Supreme Court

229 W.Va. 408

729 S.E.2d 243

STATE of West Virginia ex rel. the AFFILIATED CONSTRUCTION TRADES FOUNDATION, A Division of the West Virginia State Building and Construction Trades Council, AFL–CIO, Plaintiff Below, Petitioner

v.The Honorable James C. STUCKY, Judge of the Circuit Court of Kanawha County; West Virginia Department of Transportation, Division of Highways; West Virginia Board of Education; Mingo County Redevelopment Authority; and Nicewonder Contracting, Inc., Defendants Below, Respondents.

No. 11–1690.

Supreme Court of Appeals of West Virginia.

Submitted April 25, 2012.

Decided June 21, 2012.

Syllabus by the Court

1. “A circuit court's interpretation of a mandate of this Court and whether the circuit court complied with such mandate are questions of law that are reviewed de novo.” Syllabus Point 4, State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W.Va. 802, 591 S.E.2d 728 (2003).

2. “When a circuit court fails or refuses to obey or give effect to the mandate of this Court, misconstrues it, or acts beyond its province in carrying it out, the writ of prohibition is an appropriate means of enforcing compliance with the mandate.” Syllabus Point 5, State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W.Va. 802, 591 S.E.2d 728 (2003).

3. “A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va.Code 53–1–1.” Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

4. “In determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.” Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996).

5. “In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.” Syllabus Point 1, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979).

Vincent Trivelli, Esq., Law Office of Vincent Trivelli, PLLC, Morgantown, WV, for the Petitioner, Affiliated Construction Trades Foundation.

Anthony G. Halkias, Esq. Jeff J. Miller, Esq. Charleston, WV, for Respondent, West Virginia Department of Transportation, Division of Highways.

Forrest H. Roles, Esq., Robert M. Stonestreet, Esq., Dinsmore & Shohl, LLP, Charleston, WV, for Respondent, Nicewonder Contracting, Inc.Gene W. Bailey, II, Bowles Rice McDavid Graff & Love, Charleston, WV, for Respondent, Mingo County Redevelopment Authority.

PER CURIAM:

The Petitioner, The Affiliated Construction Trades Foundation, (“ACT”), seeks a writ of prohibition barring the circuit court from enforcing its order requiring ACT, in its declaratory judgment suit, to (1) prove by affirmative evidence that it has standing, and (2) add the Federal Highway Administration (“FHWA”) as a defendant. For the reasons discussed in this Opinion, we grant the requested writ of prohibition.

I. Background

In ACT's declaratory judgment action it seeks a declaration that a public highway construction contract awarded to the respondent, Nicewonder Contracting, Inc. (“Nicewonder”), by the respondent West Virginia Department of Transportation, Division of Highways (“DOH”), violated state competitive bidding and prevailing wage laws. It is undisputed that the DOH did not solicit competitive bids for the highway construction contract, and it is undisputed that the contract does not require Nicewonder to pay a prevailing wage.

The circuit court dismissed ACT's declaratory judgment action finding that it lacked standing to challenge the highway construction contract. ACT appealed that dismissal, and on June 22, 2011, we reversed the circuit court, finding that ACT had representative standing to seek the declarations sought in the declaratory judgment action. See Affiliated Construction Trades Foundation v. West Virginia Department of Transportation, 227 W.Va. 653, 664, 713 S.E.2d 809, 820 (2011) (hereafter “ACT I ”).¹ We directed that, on remand, the circuit court was to conduct “further proceeding consistent with [that] Opinion.” Id.

On remand, ACT filed a motion for summary judgment. Nicewonder argued that ACT's motion should be denied because ACT I had not resolved all issues relevant to ACT's standing. Nicewonder also asserted that the FHWA was an indispensable party to the declaratory judgment lawsuit. On November 9, 2011, the circuit court entered an order denying ACT's motion for summary judgment. The circuit court determined that this Court's Opinion in ACT I did not completely decide the issue of ACT's standing, and that ACT must join the FHWA as a party-defendant in the action.

ACT now requests a writ of prohibition barring the enforcement of the circuit court's order.

II. Standard of Review

ACT asserts that the circuit court ignored the mandate of this Court in ACT I. “A circuit court's interpretation of a mandate of this Court and whether the circuit court complied with such mandate are questions of law that are reviewed de novo.” Syllabus Point 4, State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W.Va. 802, 591 S.E.2d 728 (2003). “When a circuit court fails or refuses to obey or give effect to the mandate of this Court, misconstrues it, or acts beyond its province in carrying it out, the writ of prohibition is an appropriate means of enforcing compliance with the mandate.” Id., at Syllabus Point 5.

ACT further asserts that the circuit court's finding that the FHWA was an indispensable party was clear legal error which prejudiced it in a way that is not correctable on appeal. “A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W.Va.Code 53–1–1.” Syllabus Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).

In Syllabus Point 4 of State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1996), we explained that

[i]n determining whether to entertain and issue the writ of prohibition for cases not involving an absence of jurisdiction but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal's order is clearly erroneous as a matter of law; (4) whether the lower tribunal's order is an oft repeated error or manifests persistent disregard for either procedural or substantive law; and (5) whether the lower tribunal's order raises new and important problems or issues of law of first impression. These factors are general guidelines that serve as a useful starting point for determining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of clear error as a matter of law, should be given substantial weight.

Syllabus Point 1 of Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979), also provides the following guidance where a court exceeds its legitimate powers:

In determining whether to grant a rule to show cause in prohibition when a court is not acting in excess of its jurisdiction, this Court will look to the adequacy of other available remedies such as appeal and to the over-all economy of effort and money among litigants, lawyers and courts; however, this Court will use prohibition in this discretionary way to correct only substantial, clear-cut, legal errors plainly in contravention of a clear statutory, constitutional, or common law mandate which may be resolved independently of any disputed facts and only in cases where there is a high probability that the trial will be completely reversed if the error is not corrected in advance.

Utilizing these standards of review, we examine ACT's request for a writ of prohibition.

III. Discussion

In ACT I we concluded that ACT had representative standing to seek a declaration whether state law required the DOH to seek competitive bidding for the highway construction contract, and whether state law required the inclusion of a prevailing wage clause in the highway...