                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Mountain State Sales and Electrical Service, Inc.,                                FILED
Plaintiff Below, Petitioner                                                     June 12, 2015
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 14-0601 (Raleigh County 12-C-253)                                      OF WEST VIRGINIA


Raleigh County Board of Education,
Defendant Below, Respondent,


                              MEMORANDUM DECISION
        Petitioner Mountain State Sales and Electrical Service, Inc. (“Mountain State”), by
counsel Michael E. Froble, appeals the May 16, 2014, order of the Circuit Court of Raleigh
County granting summary judgment to respondent. Respondent Raleigh County Board of
Education, by counsel Chip E. Williams, responds in support of the circuit court’s order.
Petitioner filed a reply.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

       In September of 2009, petitioner submitted a bid to respondent for a construction project
at Woodrow Wilson High School.1 The project was awarded to petitioner’s competitor,
Continental Flooring (“Continental”), as Continental was deemed the lowest qualified
responsible bidder.2 While Continental undisputedly had the lowest bid for the project, petitioner


       1
          Petitioner’s bid, along with the bids of other contactors, was submitted in accordance
with the provisions of the West Virginia Fairness In Competitive Bidding Act, West Virginia
Code § 5-22-1. West Virginia Code § 5-22-1(c) requires, in part, that “[t]he state and its
subdivisions shall . . . solicit competitive bids for every construction project exceeding $25,000
in total cost. . . .”
       2
         West Virginia Code § 5-22-1(b)(1) defines “lowest qualified responsible bidder” as a
bidder that bids the lowest price and that meets, as a minimum, all the following requirements:

       The bidder must certify that it: (A) Is ready, able and willing to timely furnish the
       labor and materials required to complete the contract; (B) Is in compliance with
(continued . . .)
                                                 1

contends that Continental was not a qualified responsible bidder. Petitioner alleges that
Continental’s bid was so low it was in obvious violation of the regulations pursuant to the
Prevailing Wage Act, 42 W.Va. C.S.R. § 7.4.3 Thus, petitioner, having offered the second lowest
bid and as a qualified responsible bidder, argues that it should have been awarded the contract.

        On December 28, 2009, petitioner wrote to respondent and criticized the award of the
project to Continental.4 Respondent answered petitioner’s concerns and advised that there was no
reason to remove Continental from the project.5 On March 27, 2012, petitioner filed suit against
respondent alleging numerous claims including breach of contract, negligence, misrepresentation
and fraud, as a result of not being awarded the project.

        Respondent, pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure,
filed a motion to dismiss petitioner’s complaint, and argued that it was immune from petitioner’s
claims by virtue of the West Virginia Governmental Tort Claims and Insurance Reform Act,
West Virginia Code §§ 29-12A-1 to -18. In response, petitioner filed a motion to amend its
complaint. A hearing was held on these motions and the circuit court ruled that “[a]lthough on
the face of the matter, it appears that none of the claims asserted by the plaintiff fall within the
statutory exceptions to immunity . . . [,respondent] must rely upon extraneous matters to prove
its point.” Accordingly, the circuit court ruled that respondent’s motion to dismiss must be


       all applicable law of the State of West Virginia; and (C) Has supplied a valid bid
       bond or other surety authorized or approved by the contracting public entity.

       West Virginia Code § 5-22-1(d) directs, in part, that “[f]ollowing the solicitation of bids,
the construction contract shall be awarded to the lowest qualified responsible bidder. . . .”
       3
         The regulations set forth in 42 W.Va. C.S.R. § 7.4 were promulgated pursuant to the
Prevailing Wage Act and establish the duty of a public authority related to the payment of
prevailing wages when utilizing public monies in public improvements and construction.
Prevailing wage is also addressed in West Virginia Code § 21-5A-2 which states that

       [i]t is hereby declared to be the police of the State of West Virginia that a wage of
       no less than the prevailing hourly rate of wages for work of a similar character in
       the regions of this state in which the construction is performed, shall be paid to all
       workers employed by or on behalf of any public authority engaged in the
       construction of public improvements.
       4
        Petitioner also requested that Continental be removed from the project and that petitioner
be hired to complete the job.
       5
        In a January 6, 2010, letter respondent advised petitioner that “[a]s of today, January 6,
2010, there is no reason for Raleigh County Schools to remove Continental Flooring from the
Woodrow Wilson High School job. All documents supplied to the Raleigh County School
Purchasing Department are in order and comply with the terms of the contract and West Virginia
law.”


                                                 2

converted to a motion for summary judgment. Considering the standard for which the granting of
summary judgment motions is proper, the circuit court noted that “[a] worrisome factor here is
that the plaintiff, at least in its proposed amended complaint, sets forth allegations of fraud,
collusion, concealment and misrepresentation.” Thus, in its order dated December 17, 2012, the
circuit court reasoned that because petitioner’s new allegations transcend the statutory immunity
protection afforded to respondent, and because the court needed additional information to make
its ruling on respondent’s motion for summary judgment, respondent’s motion was denied. In the
same order, the court granted petitioner’s motion to amend its complaint.

        Depositions and written discovery were then completed and respondent again moved the
circuit court for summary judgment, citing its immunity as to petitioner’s claims pursuant to
West Virginia Code §§ 29-12A-1 to -18. Respondent further alleged that petitioner lacked
standing to bring an action against respondent because there was no privity of contract between
the parties. Petitioner responded and asserted that its claims against respondent were not subject
to immunity, and that the claims were proper as petitioner had an executory contract with
respondent, to which it had a “vested interest” and a right as the “lowest qualified bidder.”

        After hearing the arguments of counsel, the circuit court, by order entered May 16, 2014,
granted summary judgment to respondent. The circuit court found that respondent was insulated
from liability under West Virginia Code § 29-12A-1, and was entitled to judgment as a matter of
law. The circuit court reasoned that even if West Virginia Code § 29-12A-4(b)(1) did not provide
respondent with immunity as to petitioner’s claims, petitioner could not maintain an action
against respondent for breach of contract, as there was no contract between the parties. As to
petitioner’s remaining causes of action, the circuit court ruled that there was “simply no evidence
to support [petitioner’s] allegations that [respondent] was negligent, acted fraudulently, or made
misrepresentations to [petitioner] during the bidding process.” It is from the circuit court’s May
16, 2014, order that petitioner appeals.

      We review the entry of summary judgment de novo. See Syl. Pt. 1, Painter v. Peavy, 192
W.Va. 189, 451 S.E.2d 755 (1994).

               Summary judgment is appropriate if, from the totality of the evidence
       presented, the record could not lead a rational trier of fact to find for the
       nonmoving party, such as where the nonmoving party has failed to make a
       sufficient showing on an essential element of the case that it has the burden to
       prove.

Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

       On appeal, petitioner raises four assignments of error. Petitioner’s first and second
assignments of error have a great deal of overlap and will be addressed together. In its first
assignment of error, petitioner argues that West Virginia law does not provide complete
immunity to respondent as to all of the causes of action alleged by petitioner. In its second
assignment of error, petitioner contends that the circuit court erred in granting summary
judgment to respondent, as there was a genuine issue of material fact to be determined by a jury.
Specifically, petitioner contends that it should have been permitted to present credible evidence

                                                3

to a jury that Continental did not pay prevailing wages, and that respondent knew, or reasonably
should have known, of Continental’s failure to pay prevailing wage and purposefully ignored
such facts.

        We note that this case is governed by the Governmental Tort Claims and Insurance
Reform Act, West Virginia Code §§ 29-12A-1 to -18, which provides immunity from suit to
political subdivisions and their employees in certain prescribed situations.6 West Virginia Code §
29-12A-4(b)(1) states, in part, that “a political subdivision is not liable in damages in a civil
action for injury, death, or loss to persons or property allegedly caused by any act or omission of
the political subdivision or an employee of the political subdivision in connection with a
governmental or proprietary function. . . . Per West Virginia Code § 29-12A-5(b)(2) (1986), in
part, “[a]n employee of a political subdivision is immune from liability unless . . . (2) [h]is or
her acts or omissions were with malicious purpose, in bad faith, or in a wanton or reckless
manner.” We will apply this standard to the instant facts.

        We previously held in syllabus point one, in part, of Hutchison v. City of Huntington, 198
W.Va. 139, 479 S.E.2d 649 (1996), that “[t]he ultimate determination of whether . . . statutory
immunity bars a civil action is one of law for the court to determine.” In this case, the circuit
court ruled that respondent was immune from liability as to petitioner’s instant claims, as said
claims related to respondent’s governmental and proprietary functions. The circuit court noted
that “[t]he case at hand is a shining example of a “governmental or proprietary function.”
Further, the circuit court found that “[t]here is simply no evidence that [respondent] acted
negligently, fraudulently, or with malicious intent when awarding the subject contract to
Continental . . . .” We agree. The record in this case is devoid of evidence that respondent
failed to meet all of the requirements of the bidding process in awarding the subject contract to
Continental.

        Petitioner argues that if claimed immunity exists as to respondent, such immunity would
only apply and protect respondent upon the initial awarding of the contract to Continental,
leaving the remaining issue as to whether respondent had an additional duty to investigate
Continental’s continued compliance, throughout the entirety of the project, with the applicable
laws, rules and regulations. However, petitioner presents no evidence that respondent did not
“investigate” Continental’s continued compliance with the terms of the contract. Further,
petitioner has provided no law in support of this assignment of error. As we held in Syl. Pt. 13, in
part, W.Va. Reg’l Jail and Corr. Facility Auth. v. A.B., 234 W.Va. 492, 766 S.E.2d 751 (2014),
this

       . . . Court takes the pleadings and record as it finds them and the adversarial
       process makes it incumbent on the parties to plead the causes of action and
       present the requisite evidence necessary to maintain viability of their case. Courts
       cannot concoct or resurrect arguments neither made nor advanced by the parties.

       6
        West Virginia Code § 29-12A-3(c) defines “political subdivisions” to include county
boards of education.



                                                 4

       Even if such a duty exists, we find that there is no evidence in the record to establish that
the respondent negligently, fraudulently, or maliciously failed to investigate Continental’s
continued compliance with applicable laws, rules and regulations. In light of these facts, we
believe that a rational trier of fact could not find that respondent’s conduct in awarding or
subsequent acts of monitoring Continental’s compliance with contract requirements was
negligent, fraudulent, or malicious.

        “[T]he party opposing summary judgment must satisfy the burden of proof by offering
more than an mere ‘scintilla of evidence,’ and must produce evidence sufficient for a reasonable
jury to find in a nonmoving party’s favor.” Painter, 192 W.Va. at 192-93, 451 S.E.2d at 758-59.
The evidence offered must be “concrete,” and “mere allegations” are insufficient. See Williams,
194 W.Va. at 60, 459 S.E.2d at 337; see also Miller v. City Hosp., Inc., 197 W.Va. 403, 412, 475
S.E.2d 495, 504 (1996).

       In Williams, we further reasoned that

       [a] nonmoving party cannot avoid summary judgment merely by asserting that the
       moving party is lying. Rather, Rule 56 required a nonmoving party to produce
       specific facts that cast doubt on a moving party’s claims or raise significant issues
       of credibility. The nonmoving party is required to make this showing because he
       is the only one entitled to the benefit of all reasonable or justifiable inferences
       when confronted with a motion for summary judgment. Inferences and opinions
       must be grounded on more than flights of fancy, speculations, hunches, intuition
       or rumors.

194 W.Va. at 61 n.14, 459 S.E.2d at 338 n.14 (emphasis in original).

        In this case, respondent followed the requirements of West Virginia Code § 5-22-1(d) and
awarded the contract at issue to Continental, as the lowest qualified responsible bidder. Further,
as evidenced in the record, respondent, before awarding the contract to Continental, contacted
Continental to ensure that prevailing wage was being paid to Continental’s workers and that
Continental was in compliance with contract requirements and West Virginia law. Respondent’s
representative even visited the worksite at issue, without notice to Continental, to investigate the
report that Continental was employing workers who were not being paid the prevailing wage.
Under these facts, we do not believe that a rational jury could find that respondent’s conduct was
negligent, fraudulent, or malicious.

        For these reasons, we find that petitioner has failed to make a sufficient showing on the
essential element of negligent, fraudulent, or malicious conduct on the part of respondent and
conclude that summary judgment on behalf of the respondent was proper.

        In its third assignment of error, petitioner alleges that the circuit court erred in finding
that petitioner lacks standing to bring an action in breach of contract. Petitioner contends that it
had an executory contract with respondent (simply by making a bid), which respondent breached
by improperly awarding the contract to respondent. We decline to address this issue, as even if
petitioner were to establish liability under its broad interpretation of its relationship with

                                                 5

respondent, petitioner is required to proffer credible evidence that respondent was negligent,
fraudulent, or otherwise misrepresented that Continental was the “lowest qualified responsible
bidder.” As noted above, the record is devoid of any such evidence. Accordingly, we find no
merit to petitioner’s third assignment of error.

        We further decline to address petitioner’s fourth assignment of error inasmuch as it does
not relate to whether the circuit court committed clear error in granting summary judgment to
respondent, which was dispositive as to petitioner’s claims herein.7

       For the foregoing reasons, we affirm the circuit court’s award of summary judgment to
respondent.

                                                                                          Affirmed.

ISSUED: June 12, 2015

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II




       7
         In its fourth assignment of error, petitioner argued that the circuit court erred in finding
that petitioner was attempting to bring a claim for violation of the Prevailing Wage Act on behalf
of employees of Continental.


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