                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Jerry L. Cochran,
Plaintiff Below, Petitioner                                                   FILED
                                                                          November 7, 2019
v.       No. 18-0302 (Monongalia County, 17-C-430)                             released at 3:00 p.m.
                                                                           EDYTHE NASH GAISER, CLERK
                                                                           SUPREME COURT OF APPEALS
                                                                                OF WEST VIRGINIA
River Road Public Service District,
a public corporation and
political subdivision,
Defendant Below, Respondent

                              MEMORANDUM DECISION

        A water line and pipe running to Petitioner Jerry Cochran’s1 (Mr. Cochran) home
sprang a leak in 2013. Mr. Cochran asked Respondent River Road Public Service District2
(the District) to fix the water line and pipe and relocate his water meter. The District
refused to approve Mr. Cochran’s requests, so he repaired the line and pipe himself. He
sued the District in 2017, alleging that it negligently, intentionally, and unlawfully refused
his requests to repair the line and pipe and move the meter. The District moved for
summary judgment of Mr. Cochran’s claims, arguing that it did not have a duty to repair
the line and pipe and that it was statutorily immune from liability. The circuit court granted
summary judgment to the District, and Mr. Cochran now appeals.
       Upon consideration of the standard of review, the briefs, the record presented, and
oral argument, the Court finds no substantial question of law and no prejudicial error. For
these reasons, a memorandum decision affirming the order of the circuit court is
appropriate under Rule 21 of the West Virginia Rules of Appellate Procedure.
                              I. Facts and Procedural History
       Mr. Cochran sued the District in the Circuit Court of Monongalia County in
November 2017. He alleged that the District provided public water service to his house
via a water line and pipe (the water line)3 that crossed underneath a nearby road. He also

1
    Mr. Cochran is represented by Michael D. Simms, Esq.
2
 River Road Public Service District is represented by J. Robert Russell, Esq. and Brian J.
Warner, Esq.
3
 Mr. Cochran maintains that the water line is a “utility service line.” The District labels it
as a “long service line.” According to Mr. Cochran, this distinction makes a difference
under the Rules for the Government of Water Utilities, W. Va. C.S.R. §§ 150-7-1 to 150-
7-8, eff. May 8, 2011. If the water line is a utility service line, then under Mr. Cochran’s
                                              1
alleged that the water line sprang a substantial leak in July 2013 and that he asked the
District to repair the leak and move his water meter to the side of the roadway closest to
his property. The District refused, he claims, and told him that he was responsible for
repairs to the water line and relocation of the meter.
       Mr. Cochran alleged that the District owed him a duty under the Rules for the
Government of Water Utilities, W. Va. C.S.R. §§ 150-7-5.3.1 and 150-7-4, effective May
8, 2011 (Rules for Water Utilities) to repair the water line and to move the meter, which it
breached—negligently, intentionally, and unlawfully—by refusing to approve those
requests.4 Mr. Cochran claimed that the District violated a special duty of care to perform
a nondiscretionary governmental function when it unlawfully and negligently denied his
requests. He contended that the District’s failure to approve his requests forced him to
expend time, energy, and money to repair the water line and deprived him of water for a
substantial period of time. He demanded compensatory damages, pre- and post-judgment
interest, and attorney’s fees from the District.
       As Mr. Cochran acknowledged in his complaint, he and the District had wrangled
over the water line and the 2013 leak before. In October 2013, Mr. Cochran filed a
complaint with the Public Service Commission of West Virginia (the Commission) against
the District that contained claims similar to those in his 2017 civil complaint.5 Mr. Cochran
and the District settled those claims in December 2013. Under that settlement, he agreed
to pay a $350 tap fee and the District agreed to relocate the meter as he had requested. The
District also agreed to take over the water line from the old meter location to the new meter
location after Mr. Cochran conveyed the line to the District.
        While Mr. Cochran’s 2017 civil complaint against the District did not make
reference to the 2013 settlement of his Commission complaint, the District brought it to
the circuit court’s attention in a December 2017 “Motion to Dismiss Complaint or, in the

theory, the District was obligated to repair it. If the water line is a long service line, as the
District maintains, then repairs were Mr. Cochran’s responsibility. We do not decide
whether the water line is a utility service line or a long service line because that decision is
not necessary to resolve Mr. Cochran’s appeal. Additionally, we do not decide which
version of the Rules for the Government of Water Utilities—1996, 2003, or 2011—is
applicable to this case.
4
  Specifically, Mr. Cochran alleged in his complaint that the District “breached its duties
when it negligently, intentionally and unlawfully denied [his] request to repair the water
line and service pipe and move the water meter.”
5
  The appendix record does not include Mr. Cochran’s 2013 Commission complaint or a
transcript of the December 2013 hearing at which the terms of the settlement were
discussed. We base our descriptions of the Commission complaint and the settlement on
the Recommended Decision of Administrative Law Judge Deborah Yost VanDervort,
February 27, 2014 and the Commission Order on Reconsideration, July 29, 2014.

                                               2
Alternative, Motion for Summary Judgment.” In addition to seeking dismissal of Mr.
Cochran’s complaint on grounds of judicial estoppel and res judicata, the District argued
that the Rules for Water Utilities did not impose a duty upon it to repair the water line and
that, even if those regulations did, it was immune from liability for Mr. Cochran’s claims
under the West Virginia Governmental Tort Claims Act (the Act).6
       In response, Mr. Cochran emphasized the allegations in his complaint and what he
believed to be genuine issues of material fact. Mr. Cochran also responded to the District’s
immunity argument. He highlighted a portion of the Act that he argued exempted his
claims from its effect as well as his allegation that the District owed him a special duty.
Finally, Mr. Cochran argued that neither judicial estoppel nor res judicata barred his claims
against the District.
        The circuit court granted the District’s motion on March 9, 2018. The court found
that under the applicable Rules for Water Utilities, Mr. Cochran was responsible for the
repairs to the water line, the District was under no duty to repair it, and his negligence claim
failed. The circuit court then found that Mr. Cochran was trying to “relitigate the same
issues he alleged in his complaint to [the Commission] that were addressed and
compromised,” and that he could not pursue damages “that he agreed to forego under the
terms of his agreement with the [District]” by way of a civil suit. The court granted the
District’s motion and ordered the case removed from its active docket. This appeal
followed.
                                  II. Standard of Review
        “A circuit court’s entry of summary judgment is reviewed de novo.”7 So, we apply
the same standard on appeal as the circuit court applied. This means that we will affirm
the circuit court’s grant of summary judgment to the District “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that [the District] is entitled to a
judgment as a matter of law.”8


6
    West Virginia Code §§ 29-12A-1 to 18 (2018).
7
    Syl. Pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994).
8
  W. Va. R. Civ. P. 56(c). The District sought dismissal of Mr. Cochran’s claim under
West Virginia Rule of Civil Procedure 12(b)(6) or under Rule 56 should the circuit court
deem it necessary to consider documents extrinsic to the complaint, that is the two
Commission orders attached to the District’s motion. The circuit court’s order includes
both the Rule 12(b)(6) and Rule 56(c) standards for dismissal but does not specify which
the court applied.
       On appeal, Mr. Cochran asks that we treat the circuit court’s order as one under Rule
56(c) and to review the proceedings before the circuit court de novo. The District does not
                                               3
                                       III. Discussion
        Mr. Cochran argues that the circuit court prematurely granted summary judgment
to the District. He claims that the circuit court ignored several disputed issues of material
fact, including whether the leaking water line was located on his own property or in the
District’s utility right-of-way, whether the water line was a long service line that he owned
or a utility service line owned by the District, and the location of the leak in relation to his
point of service. Those disputed facts are material, Mr. Cochran claims, because they bear
on whether the District owed Mr. Cochran a legal duty to repair the leak under the Rules
for Water Utilities.9 He also argues that his 2013 settlement with the District before the
Commission does not bar his claims in this case.
       The District responds that the circuit court did not make erroneous findings of fact
in its March 9, 2018 order. Instead, the District contends that the circuit court properly
relied on Mr. Cochran’s admissions in the Commission proceeding to find that he is
estopped from taking a position inconsistent with those admissions or the parties’
settlement of Mr. Cochran’s Commission case. The District asserts that the circuit court
correctly applied the 2003 and 2011 Rules for Water Utilities to Mr. Cochran’s earlier
admissions to find that he, and not the District, was responsible to repair the leaking water
line. The District also argues that it is immune from liability for Mr. Cochran’s alleged
damages under the Act.
        While the circuit court did not address statutory immunity in its final order, the
parties briefed and argued the issue extensively, below. And, as we have previously noted,
“it is permissible for us to affirm the granting of summary judgment on bases different or
grounds other than those relied upon by the circuit court.”10 In this particular case, statutory
immunity is not an issue raised by the District for the first time on appeal and consideration
of it does not place either party at a disadvantage. 11 So, we may consider the District’s
statutory immunity argument and, indeed, affirm the circuit court’s order on that basis.




object to Mr. Cochran’s request. So, we review the circuit court’s March 9, 2018 order
under the Rule 56(c) standard.
9
    W. Va. C.S.R. §§ 150-7-1 to 150-7-8, eff. May 8, 2011.
10
     Gentry v. Mangum, 195 W. Va. 512, 519, 466 S.E.2d 171, 178 (1995).
11
  But cf. Whitlow v. Bd. of Educ. of Kanawha Cty., 190 W. Va. 223, 226, 438 S.E.2d 15,
18 (1993) (“Our general rule . . . is that, when nonjurisdictional questions have not been
decided at the trial court level and are then first raised before this Court, they will not be
considered on appeal. . . . Moreover, we consider the element of fairness. When a case
has proceeded to its ultimate resolution below, it is manifestly unfair for a party to raise
new issues on appeal. . . .”) (citations omitted).

                                               4
A. Mr. Cochran’s Intentional Tort Claim
       Mr. Cochran claims that the District intentionally breached its duty under the 2011
Rules for Water Utilities to approve his request to repair the water line. We previously
examined an intentional tort claim made against a public service district in Zirkle v. Elkins
Road Public Service District.12 There, Mr. Zirkle alleged that the Elkins Road Public
Service District (PSD) intentionally denied his request to extend water service to his home
when it erroneously concluded that his home was outside the PSD service area.13
Undeterred, Mr. Zirkle continued to request service from the PSD, satisfying each
precondition to service it imposed.14 The PSD still denied Mr. Zirkle’s requests. He
complained to the Commission and it ordered the PSD to extend a service line to his
home.15
       Mr. Zirkle filed a civil suit against the PSD “basically for what [he] perceived as all
the hassle he incurred in securing water service to his residence.”16 The circuit court found
that Mr. Zirkle had not alleged anything other than intentional acts by the PSD and
dismissed the claim.17
       On appeal, this Court applied the plain language of West Virginia Code
§ 29-12A-4(b)(1) (2018) to affirm the dismissal of Mr. Zirkle’s intentional tort claim
against the PSD. That statute states:
                        Except as provided in subsection (c) of this section, 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. . . .[18]
           As we explained in Zirkle, § 29-12A-4(b)(1)
                 suggests that political subdivisions, public service districts
                 included, are not liable for any acts with respect to both
                 governmental and proprietary functions unless the acts

12
     221 W. Va. 409, 655 S.E.2d 155 (2007).
13
     Id. at 411, 655 S.E.2d at 157.
14
     Id. at 411–12, 655 S.E.2d at 157–58.
15
     Id. at 412, 655 S.E.2d at 158.
16
     Id.
17
     Id. at 414. Zirkle does not elaborate upon the circuit court’s reason for dismissal.
18
     W. Va. Code § 29A-12-4(b)(1) (emphasis added).

                                                5
                complained of come within the specific liability provisions of
                W.Va.Code, 29–12A–4 (c). In creating the general grant of
                immunity, in W.Va.Code, 29–12A–4(b)(1), the Legislature did
                not distinguish between intentional or unintentional acts, but
                instead used the term “any” as an adjective modifying “act or
                omission.” To eliminate doubt regarding whether the
                Legislature intended to include immunity for intentional acts,
                we need to consider our holding in Syllabus Point 2 of Thomas
                v. Firestone Tire & Rubber Co., 164 W.Va. 763, 266 S.E.2d
                905 (1980). In Thomas we held that “[t]he word ‘any’, when
                used in a statute, should be construed to mean any.” We
                therefore conclude that claims of intentional and malicious acts
                are included in the general grant of immunity in W.Va.Code,
                29–12A–4(b)(1). Only claims of negligence specified in
                W.Va.Code, 29–12A–4(c) can survive immunity from liability
                under the general grant of immunity in W.Va.Code,
                29–12A–4(b)(1).[19]
        Applying that rationale here, we conclude that § 29-12A-4(b)(1) immunizes the
District from liability for Mr. Cochran’s intentional tort claim. That statute provides that
“political subdivisions, public service districts included, are not liable for any acts with
respect to both governmental and proprietary functions unless the acts complained of come
within the specific liability provisions of W.Va.Code, 29–12A–4 (c).”20 Mr. Cochran’s
claim that the District intentionally breached its duty under Commission regulations to
repair the water line and move the meter does not fall within any of the specific liability
provisions found in West Virginia Code § 29-12A-4(c)(1) to (4) (2018).21 Each of those

19
     Zirkle, 221 W. Va. at 414, 655 S.E.2d at 160.
20
     Id. (emphasis added).
21
     West Virginia Code § 29-12A-4(c) states:
                       (c) Subject to sections five [§ 29-12A-5] and six [§ 29-
                12A-6] of this article, a political subdivision is liable in
                damages in a civil action for injury, death, or loss to persons or
                property allegedly caused by an act or omission of the political
                subdivision or of any of its employees in connection with a
                governmental or proprietary function, as follows:
                       (1) Except as otherwise provided in this article, political
                subdivisions are liable for injury, death, or loss to persons or
                property caused by the negligent operation of any vehicle by
                their employees when the employees are engaged within the
                scope of their employment and authority.

                                                6
provisions imposes liability upon political subdivisions for negligent acts, not intentional
ones. So, Mr. Cochran’s intentional tort claim cannot survive the general grant of
immunity in § 29-12A-4(b)(1), as a matter of law. For that reason, we affirm the circuit
court’s dismissal of Mr. Cochran’s claim that the District intentionally breached a duty to
repair the water line and move the meter.
B.     Mr. Cochran’s Negligence Claim
       We turn next to Mr. Cochran’s negligence claim. He contends that § 29-12A-4(c)(2)
shields that claim from the general grant of immunity found in § 29-12A-4(b)(1). Section
29-12A-4(c)(2) states:


                     (2) Political subdivisions are liable for injury, death, or
              loss to persons or property caused by the negligent
              performance of acts by their employees while acting within the
              scope of employment.
                      (3) Political subdivisions are liable for injury, death, or
              loss to persons or property caused by their negligent failure to
              keep public roads, highways, streets, avenues, alleys,
              sidewalks, bridges, aqueducts, viaducts, or public grounds
              within the political subdivisions open, in repair, or free from
              nuisance, except that it is a full defense to such liability, when
              a bridge within a municipality is involved, that the
              municipality does not have the responsibility for maintaining
              or inspecting the bridge.
                      (4) Political subdivisions are liable for injury, death, or
              loss to persons or property that is caused by the negligence of
              their employees and that occurs within or on the grounds of
              buildings that are used by such political subdivisions,
              including, but not limited to, office buildings and courthouses,
              but not including jails, places of juvenile detention,
              workhouses, or any other detention facility.
                      (5) In addition to the circumstances described in
              subsection (c)(1) to (4) of this section, a political subdivision
              is liable for injury, death, or loss to persons or property when
              liability is expressly imposed upon the political subdivision by
              a provision of this code. Liability shall not be construed to exist
              under another section of this code merely because a
              responsibility is imposed upon a political subdivision or
              because of a general authorization that a political subdivision
              may sue and be sued.

                                              7
                (c) Subject to sections five [§ 29-12A-5] and six [§ 29-12A-6]
                of this article, a political subdivision is liable in damages in a
                civil action for injury, death, or loss to persons or property
                allegedly caused by an act or omission of the political
                subdivision or of any of its employees in connection with a
                governmental or proprietary function, as follows: . . .
                (2) Political subdivisions are liable for injury, death, or loss to
                persons or property caused by the negligent performance of
                acts by their employees while acting within the scope of
                employment.
        Under its plain terms, § 29-12A-4(c) is subject to West Virginia Code § 29-12A-5
(2018). So, even if a political subdivision is subject to civil damages under § 29-12A-4(c),
that liability may be limited by § 29-12A-5. Under § 29-12A-5(a)(9),
                (a) A political subdivision is immune from liability if a loss or
                claim results from: . . . (9) Licensing powers or functions
                including, but not limited to, the issuance, denial, suspension
                or revocation of or failure or refusal to issue, deny, suspend or
                revoke any permit, license, certificate, approval, order or
                similar authority . . . .[22]
       Looking to Zirkle once again, we found there that § 29-12A-5(a)(9) immunized the
PSD from Mr. Zirkle’s negligence claim because “the acts [he] complained of are clearly
associated with, related to, and result from the PSD’s licensing and permitting functions.”23
Mr. Cochran complains of analogous acts by the District. Like Mr. Zirkle, Mr. Cochran
asked the District to issue an approval. In Mr. Zirkle’s case, he asked the PSD to approve
his request for a line extension which the PSD refused because it concluded that his home
was outside the PSD service area. In Mr. Cochran’s case, he asked the District to approve
his request to repair the water line and to relocate the meter—actions that, in the District’s
view, would have extended their responsibilities beyond that required by the Rules for
Water Utilities. In short, both Mr. Zirkle and Mr. Cochran sought damages in negligence


22
  W. Va. Code § 29-12A-5(a)(9). Syl. Pt. 4, Hose v. Berkeley Cty. Planning Comm’n, 194
W. Va. 515, 460 S.E.2d 761 (1995) (“Pursuant to W.Va.Code, 29–12A–4(c)(2) [1986] and
W.Va.Code, 29–12A–5(a)(9) [1986], a political subdivision is immune from liability if a
loss or claim results from licensing powers or functions such as the issuance, denial,
suspension or revocation of or failure or refusal to issue, deny, suspend or revoke any
permit, license, certificate, approval, order or similar authority, regardless of whether such
loss or claim is caused by the negligent performance of acts by the political subdivision’s
employees while acting within the scope of employment.”).
23
     Zirkle, 221 W. Va. at 415, 655 S.E.2d at 161.

                                                8
for the PSD’s and the District’s refusals to issue an approval of their requests for service.24
And as we found in Zirkle, § 29-12A-5(a)(9) immunizes the District from liability in
negligence for that refusal.
        We acknowledge Mr. Cochran’s argument that the circuit court granted summary
judgment prematurely and that he needed additional discovery on his claims. To that end,
he identified several disputed issues of fact in his response to the District’s motion.
Assuming that those factual issues are genuinely disputed, they are not facts that are
material to our immunity determination.25 Section 29-12A-5(a)(9) immunizes the District
from liability to Mr. Cochran for either failing or refusing to issue an approval for his
request for service. So, the location of the water line, its designation as a long service line
or utility line, and the location of the leak relative to the point of service are immaterial
factual issues that do not preserve Mr. Cochran’s claims from summary disposition on
statutory immunity grounds.
       For those reasons, we affirm the Circuit Court of Monongalia County’s Order
Granting Defendant’s Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment of March 9, 2018. Because we have found that the District is entitled to judgment
as a matter of law under West Virginia Rule of Civil Procedure 56(c), we remand this case
to the circuit court for entry of an order granting judgment in favor of the District and
dismissing Mr. Cochran’s claims with prejudice.26
                                                   Affirmed and remanded with instructions.

ISSUED:       November 7, 2019



24
   See W. Va. Code § 29-12A-5(a)(9) (immunizing a political subdivision from liability if
a loss or claim results from “[l]icensing powers or functions including, but not limited to,
the . . . failure or refusal to issue . . . any approval . . . .”).
25
  See Syl. Pt. 1, in part, Hutchison v. City of Huntington, 198 W. Va. 139, 479 S.E.2d 649 (1996)
(holding that “unless there is a bona fide dispute as to the foundational or historical facts
that underlie the immunity determination, the ultimate questions of statutory or qualified
immunity are ripe for summary disposition.”).
26
   See Easterling v. American Optical Corp., 207 W. Va. 123, 129, 529 S.E.2d 588, 594
(2000) (quoting Syl. Pt. 1, in part, Poling v. Belington Bank, Inc., 207 W. Va. 145, 529
S.E.2d 856 (1999) (“If a summary judgment is entered under Rule 56 R.C.P. it is a
dismissal with prejudice; whereas, a judgment sustaining a motion to dismiss under Rule
12(b) R.C.P. is not a dismissal with prejudice.”), abrogated on other grounds by Forshey
v. Jackson, 222 W. Va. 743, 671 S.E.2d 748 (2008)). See also Litig. Handbook on West
Virginia Rules of Civil Procedure 1295 (2017) (“The entry of an order granting summary
judgment constitutes a dismissal with prejudice.”).

                                               9
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison

DISSENTING AND WRITING SEPARATELY:
Justice Margaret L. Workman


WORKMAN, J., dissenting:


               I dissent to the majority’s affirmance of the circuit court’s dismissal of this
case on grounds not addressed by the trial court—statutory immunity. A long-established
precept of appellate jurisdiction states that “this Court will not decide nonjurisdictional
questions which were not considered and decided by the court from which the appeal has
been taken.” Syl. Pt. 1, Mowery v. Hitt, 155 W. Va. 103, 181 S.E.2d 334 (1971). As the
Court has explained with respect to this well-settled rule, “there is [] a need to have the
issue refined, developed, and adjudicated by the trial court, so that we may have the benefit
of its wisdom.” Whitlow v. Bd. of Educ. of Kanawha Cty., 190 W. Va. 223, 226, 438 S.E.2d
15, 18 (1993). This case exemplifies precisely why such a well-accepted principle of
appellate review exists.

              The circuit court’s order in no way mentions statutory immunity;
accordingly, petitioner’s brief appealing this order understandably fails to address this
ground. In fact, respondent River Road PSD (“the PSD”) readily concedes that the circuit
court did not rule on this issue. Irrespective of the fact that this issue may have been
discussed tangentially below, the fact remains that the circuit court did not dismiss the case
on this basis and it is scarcely mentioned before this Court.27 The Court has made clear

27
  Instead, the parties focus almost exclusively on the concept of judicial estoppel—which
the circuit court likewise did not rule upon—arguing whether petitioner is precluded from
disclaiming responsibility for the water line after having “conveyed” the water line in
settlement of his PSC claim. However, the upshot of the circuit court’s order is that
petitioner could not bring his claim having previously settled with the PSC:

              Plaintiff is now attempting to relitigate the same issues he
              alleged in his complaint to the PSC that were addressed and
              compromised. . . . Plaintiff agreed to resolve his claims with
              the RRPSD and both he and the RRPSD have met and fulfilled
              their settlement obligations. . . . Plaintiff cannot now ask this
                                             10
that it does not exist for the purpose of “concoct[ing] or resurrect[ing] arguments neither
made nor advanced by the parties.” Syl. Pt. 11, in part, W. Virginia Reg’l Jail & Corr.
Facility Auth. v. A.B., 234 W. Va. 492, 766 S.E.2d 751 (2014). The majority’s eagerness
to dispose of this wholly underdeveloped and legally infirm appeal is a gross overstep of
its jurisdiction.

               The majority assuages its jurisdictional overstep by assuring itself that the
Court has held that summary judgment may be affirmed on grounds other than those
identified by the lower court. The basis for this limited exception to our jurisdictional rule
is obvious: our review on appeal of summary judgment is de novo and the Court has the
benefit of a full record. No such record exists here because the circuit court did not permit
full discovery and in fact dealt with the PSD’s motion as a motion to dismiss. While the
majority relies on the dual caption of the PSD’s motion to treat it as one for summary
judgment, plainly the circuit court did not. In the hearing on the PSD’s motion, the circuit
court stated “So what’s going to happen when we finish discovery and we go down the road
and this comes back on a motion for summary judgment?” (emphasis added).

Even in improperly treating this as an appeal from a grant of summary judgment, the
majority ignores one of our most well-established summary judgment principles: “[B]oth
this Court and the United States Supreme Court apply the general principle that summary
judgment is appropriate only after the opposing party has had ‘adequate time for
discovery.’” Williams v. Precision Coil, Inc., 194 W. Va. 52, 61, 459 S.E.2d 329, 338


              Court to award damages that he agreed to forego under the
              terms of his agreement with the Defendant.

(emphasis added). Although the circuit court did not properly identify the legal concept it
was attempting to articulate—accord and satisfaction—certainly at no point in the order
was judicial estoppel mentioned or alluded to. Accordingly, this issue was likewise not
considered by the lower court and does not form a proper basis to affirm. Moreover, as the
parties conceded at oral argument, petitioner clearly may maintain a separate action for
damages in circuit court irrespective of having lodged a complaint with the PSC.
Therefore, the basic premise of the circuit court’s dismissal was in error.

       The lone issue reference in the circuit court’s order which could have even arguably
formed the basis of an affirmance is the PSD’s lack of legal duty to repair or maintain the
water line on the basis of the applicable regulations. However, the circuit court—and the
parties for that matter—make nothing but conclusory statements regarding which
regulations are applicable with inadequate analysis and support. Petitioner further credibly
asserts that there exists a question of fact regarding the precise location of the leak—both
property-wise and equipment-wise—which the current briefing (and certainly the order)
unsatisfactorily resolves.

                                             11
(1995) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). In this case, one of
petitioner’s primary assignments of error is that he was not permitted to conduct full
discovery. To presume to dispose of a case without a developed record and on grounds
not relied upon by the circuit court destroys any sense of judicial restraint and proper
exercise of appellate review. As the Fourth Circuit has noted:

              The purpose of standards of review is to focus reviewing courts
              upon their proper role when passing on the conduct of other
              decision-makers. Standards of review are thus an elemental
              expression of judicial restraint, which, in their deferential
              varieties, safeguard the superior vantage points of those
              entrusted with primary decisional responsibility. . . .
              [S]tandards of review do matter, for in every context they keep
              judges within the limits of their role and preserve other
              decision-makers’ functions against judicial intrusion.

Evans v. Eaton Corp. Long Term Disability Plan, 514 F.3d 315, 320–21, 326 (4th Cir.
2008) (emphasis added).

               Substantively, the majority’s analysis is equally lacking. The parties herein
debate the undisputed primary legal issue underlying petitioner’s complaint: whose
responsibility was the repair of petitioner’s leaking water line? The circuit court and parties
volley about various regulations and technical terms, implicitly conceding that the issue
rises and falls with the location and nature of the faulty equipment and which regulations
regarding its maintenance apply. Unquestionably, petitioner seeks damages for the PSD’s
failure to maintain and/or repair the water line. Neither the parties nor the circuit court
were ever under a misapprehension as to what petitioner’s complaint entails—the
complaint plainly alleges that the PSD “had duties to repair plaintiff’s water line” and a
“nondiscretionary governmental function” to do so, which it breached.28 In the hearing
before the circuit court, the court stated: “[T]here’s a question about what’s legally
required, but they’re taking the position that you all had a duty to repair this line and you
didn’t repair it, therefore that’s negligence.”

28
  The PSD’s brief expressly states that petitioner’s complaint asserts that the PSD was
“under a duty . . . to repair the line at its own expense[.]” The circuit court likewise
discusses in its order whether the PSD had a “duty to repair the section of pipe that was
leaking[.]” The fact that the majority and PSD have to distort petitioner’s complaint to
force it into an immune claim is evidenced by their telling language when
recharacterizing his claim, i.e. “reduced to its essence . . .” and “Mr. Cochran’s duty and
causation allegations boil down to this theory . . . .” Everyone except the majority
understood perfectly what petitioner’s claim was for: the PSD’s failure to repair and
maintain the leaking water line and damages flowing therefrom.

                                              12
              Nevertheless, the majority fixates on petitioner’s inclusion of allegations
regarding his “requests” for the PSD to repair the water line (as he alleges was their duty)
and his contention that the refusal of those “requests” is likewise a breach of its duty to
repair and maintain. On this contrived and thin reed, the majority therefore concludes that
his complaint is actually one for “refusal of requests to repair”—which is an allegedly
proprietary function for which it is immune, rather than the failure to repair—which is
classic negligence for which it is not immune.29 Therefore, it concludes that the PSD is
entitled to statutory immunity. This is hair-splitting of the highest order and, again,
disregards well-established principles regarding the construction of complaints:
“Complaints are to be read liberally as required by the notice pleading theory underlying
the West Virginia Rules of Civil Procedure.” State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W. Va. 770, 776, 461 S.E.2d 516, 522 (1995).

        The majority employs these machinations in order to pigeon-hole this case into the
fact pattern in Zirkle v. Elkins Road Public Service District, 221 W. Va. 409, 655 S.E.2d
155 (2007). In Zirkle, the appellant requested water service after his well became
contaminated; he perceived that the PSD was unnecessarily delaying his service and filed
suit for “all the hassle he incurred in securing water service to his residence.” Id. at 412,
655 S.E.2d at 158. The Court found that the decision to provide water service goes to the
PSD’s licensing and permitting functions and was therefore immune pursuant to West
Virginia Code § 29–12A–5(a)(9), which specifically provides immunity for “licensing
powers or functions.”

        The majority finds petitioner’s claim for property damage as a result of the PSD’s
failure to repair and maintain the water line “analogous” to Zirkle because he had the
temerity to include in his complaint that he asked the PSD to “approve” his “request” to
pay for the damages for which he claims it is liable. Again, this is chicanery. If a person
is injured by the negligent operation of a vehicle by a political subdivision’s employee
(for which there is plainly no immunity30), requesting the political subdivision to pay for
the damages hardly transforms the claim into one challenging the “refusal” of the
“request.”


29
   See W. Va. Code § 29-12A-4(c)(1 through 4) (stripping political subdivisions of
statutory immunity for negligent operation of vehicles, negligent performance of acts by
employees, negligent failure to keep public roads, highways, streets, etc., and negligence
of employees in public places).
30
  See W. Va. Code § 29-12A-4 (“[P]olitical subdivisions are liable for injury, death, or
loss to persons or property caused by the negligent operation of any vehicle by their
employees when the employees are engaged within the scope of their employment and
authority.”).

                                             13
               By delving into an issue neither ruled upon by the trial court nor properly
before this Court, the majority not surprisingly manages to overlook and fail to explore the
most obvious potential impediment to statutory immunity. West Virginia Code § 29-12A-
4 expressly provides that political subdivisions are liable for failure to maintain
“aqueducts” in good repair: “Political subdivisions are liable for injury, death, or loss to
persons or property caused by their negligent failure to keep public roads, highways,
streets, avenues, alleys, sidewalks, bridges, aqueducts, viaducts, or public grounds within
the political subdivisions open, in repair, or free from nuisance[.]” See Calabrese v. City
of Charleston, 204 W. Va. 650, 657, 515 S.E.2d 814, 821 (1999) (finding sewer line an
“aqueduct” under the statute and agreeing that term refers to “conduit for water”).

              The majority’s attempt to reverse engineer a proper dismissal of this case is
inexplicable, but is becoming a recurrent pattern. As stated in my dissent in State ex rel.
Universal Underwriters Insurance Company v. Wilson, 241 W. Va. 335, 355, 825 S.E.2d
95, 115 (2019):

              In my almost twenty-three years as an appellate court judge,
              one thing I have learned is that the development of new law by
              a judicial body is a lot better when, like a good stew, it is
              cooked slowly and thoroughly. The full processing of a . . .
              legal issue by its being fully considered by a lower court, a
              lower court making a ruling, the parties then briefing and
              arguing the issue at the appellate level results in much sounder
              law and much fairer results[.]

(Workman, J., dissenting). See also State ex rel. Gallagher Bassett Servs., Inc. v. Webster,
242 W. Va. 88, 829 S.E.2d 290, 301 (2019) (discouraging premature resolution of “legal
issues that hinge on facts” in prohibition). Were statutory immunity as obvious grounds
for dismissal as the majority believes, surely the circuit court would have simply dismissed
on that basis.31 There is simply no adequate basis upon which to affirm the dismissal of
petitioner’s claim at this juncture given the undeveloped record, inadequate order, and
“moving target” legal issues the parties have pursued.

              Some members of the majority frequently tout their adherence to the rule of
law and the importance of judicial restraint. Once again, however, they give no respect to
either concept. Accordingly, I respectfully dissent.




31
   A simple reversal and remand would, in fact, allow the circuit court to properly visit
this issue and render a ruling susceptible of appellate review.
                                             14
