WEST VIRGINIA RECORD

CLARKSBURG – Morgantown officials might have lacked coordination but did not commit outrageous conduct during a troubled student-housing construction project, a federal judge has ruled.

U.S. District Judge Irene Keeley, of the Northern District of West Virginia, on Feb. 1 granted a motion for summary judgment filed by several Morgantown officials, including Chief Fire Marshal Kenneth Tennant, Chief Code Enforcement Officer Michael Stone and former City Manager Daniel Boroff.

Kristian, Benjamin, Andrew and Monroe Warner in 2010 filed an adversary complaint in bankruptcy proceedings involving their companies McCoy 6 Apartments and Augusta LLC.

The complaint listed 10 causes of action against the City of Morgantown and nine individual city officials. Each complaint except one – the tort of outrage against the individual defendants - had been dismissed before Keeley’s Feb. 1 decision.

“(E)ven the Warners’ own characterization of the record emphasizes a lack of coordination among the individual defendants,” she wrote.

“All this strongly cuts against any inference that the nine individual defendants acted in combination as part of a far-reaching, long-term campaign to destroy the Warners.”

McCoy 6 built Mountaineer Court, a 32-unit student-housing complex, in 1994, and Augusta built a 158-unit complex in 2007.

The Warners’ difficulties with the City began during construction of The Augusta. They claim city officials were not prepared to handle a project of The Augusta’s size, and that their inexperience prolonged construction by nearly two months.

The Warners say Tennant, who took over for the retiring Chief Fire Marshal Max Humphries in 2006, took the opportunity to launch a retaliatory campaign against the Warners. The delay pushed the opening of The Augusta past the first day of West Virginia University’s fall semester that year.

The individual defendants abused their discretion in the enforcement of building and fire codes, the Warners claim.

“While Andrew Warner described the delays as part of ‘some beef’ on the part of Fetty and defendant City Engineer Terry Hough, he identified no motivation for that animosity beyond a general practice by the City to ‘squeeze landlords.’”

In 2008, fire officials listed 229 violations of the fire code at Mountaineer Court. Eventually, McCoy 6 defaulted on the mortgage for Mountaineer Court and filed for bankruptcy in 2009. Augusta filed for bankruptcy a year later.

The Warners claim the subsequent owners of Mountaineer Court have not been scrutinized as much as they were.

“The Warners also argue that the defendants acted outrageously because they abused their official power,” Keeley wrote.

“While the Restatement (of Torts) recognizes that an abuse of official power can be outrageous, the abuse still must be ‘extreme,’ and outrage will not lie where the conduct is only ‘mere insults, indignities, or annoyances.’

“Moreover, ‘not every exercise of power or authority is wrongful.’ For example, while a plaintiff who is charged with a crime may feel deep distress, the investigating officers are not liable in tort for that distress.

“Likewise, while the Warners may feel deep distress at the outcome of the series of building and fire code enforcement actions taken by the individual defendants, it does not necessarily follow that the defendants’ actions were outrageous.

“Even if one might be inclined to sympathize with what has befallen the Warners since the loss of Mountaineer Court, such hardship, absent outrageous conduct, simply does not satisfy the elements of outrage.”

The Warners filed a notice of appeal to the U.S. Court of Appeals for the Fourth Circuit only three days after the ruling.

From the West Virginia Record: Reach John O’Brien by email at jobrienwv@gmail.com.