MCCOY 6 APARTMENTS, LLC et al v. City Of Morgantown, WV et al

Filing 166

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS ORDER MOTION FOR SUMMARY JUDGMENT DKT. NO. 105 . DISMISSES the individual defendants WITH PREJUDICE; GRANTS the plaintiffs oral motion to dismiss the defendants Motion to Alter Judgment, Motion to Expunge Lis Pendens dkt.no. 109 ; ORDERS the case STRICKEN from the Courts docket. Signed by District Judge Irene M. Keeley on 2/1/2013. (Copy counsel of record via CM/ECF)(jmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KRISTIAN E. WARNER,
BENJAMIN F. WARNER,
ANDREW M. WARNER, and
MONROE P. WARNER,

Plaintiffs,

v.

//

DANIEL BOROFF,
Individually and in his
capacity as City
Manager of the City
of Morgantown,
DAVID FETTY,
Individually and in his
capacity as Fire Chief
of the City of Morgantown,
KENNETH TENNANT,
Individually and in his
capacity as Chief Fire Marshal
of the City of Morgantown,
PATRICK PICKENPAUGH,
Individually and in his
capacity as Deputy Fire Marshal
of the City of Morgantown,
JASON QUINN,
Individually and in his
capacity as Deputy Fire Marshal
of the City of Morgantown,
TERRY HOUGH,
Individually and in her
capacity as City Engineer
of the City of Morgantown,

CIVIL ACTION NO. 1:10CV54
CIVIL ACTION NO. 1:10CV55
(Judge Keeley)

MICHAEL STONE,
Individually and in his
capacity as Chief Code
Enforcement Officer of
the City of Morgantown,
DAVID FRIEND,
Individually and in his
capacity as Code
Enforcement Officer of
the City of Morgantown, and
TYE POLING,
Individually and in his
former capacity as Code
Enforcement Officer of
the City of Morgantown

Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 105]
Pending before the Court is the defendants’ motion for summary
judgment (dkt. no. 105) as to the individual plaintiffs’ claims of
intentional infliction of emotional distress (“outrage”) against
the individual defendants. For the reasons that follow, the Court
GRANTS the defendants’ motion and DISMISSES the plaintiffs’ claims
WITH PREJUDICE.
I. Procedural Background
On March 3, 2010, the plaintiffs, Kristian, Benjamin, Andrew,
and Monroe Warner (“the Warners"), McCoy 6 Apartments, LLC (“McCoy
6"), and Augusta, LLC (“Augusta"), filed an adversary complaint in
bankruptcy proceedings involving the debtors, McCoy 6 and Augusta,
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
alleging ten causes of action against the City of Morgantown (“the
City”) and nine individual city officials. The Bankruptcy Court
transferred the adversary complaint to this Court on April 5, 2010.
Thereafter, on March 29, 2011, the defendants moved to dismiss all
counts in the complaint. After due consideration of the issues
raised in the defendants’ motion, the Court dismissed Counts One
(substantive

due

process),

Four

(abuse

of

process),

Five

(procedural due process), Seven (negligence), and Nine (negligent
misrepresentation) against all the defendants, and dismissed the
claims of outrage of McCoy 6 and Augusta against the defendants in
Count Eight. (Dkt. No. 39). However, it allowed the Warners’ claims
of

outrage

in

that

count

to

defendants.

It

also

survive

dismissed

the

as

to

Warners’

the
claims

individual
of

equal

protection and inverse condemnation in Counts Two and Six, but
allowed the claims of Mcoy 6 in that regard to remain.
On September 24, 2012, the defendants moved for summary
judgment
October

as
29,

to

these

2012,

the

remaining
Court

claims.

orally

(Dkt.

dismissed

No.
the

105).

On

individual

Warners’ claim of outrage against the City. (Dkt. No. 154). See W.
Va. Code § 29-12A-4; Poe v. Town of Gilbert, No. 2:11-CV-00645,
2012 WL 3853200, *8 (S.D. W. Va. Sept. 5, 2012) (“Political
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
subdivisions are not, however, liable for intentional malfeasance
on the part of their employees.”).1 On December 14, 2012, during
oral argument on the defendants’ motion for summary judgment, the
parties stipulated to the dismissal of the claims of McCoy 6 in
Counts Two and Six. (Dkt. No. 164). Thus, the only surviving claim
in this case is the Warners’ claim of outrage against each of the
individual defendants, to which the Court now turns.
II. Factual Background
This action arises from a series of building and fire code
enforcement actions taken by the City and certain of its employees
against the Warners in their roles as member-managers of McCoy 6
and Augusta.
The Warners were the sole members of McCoy 6, which had been
in the business of renting houses and apartments to students of
West Virginia University (“WVU”) in Morgantown, West Virginia since
1979.

Complaint

at

¶

25,

27.

In

1994,

McCoy

6

constructed

Mountaineer Court, a 32-unit student-housing complex. In 2007,
Augusta, which also was solely owned by the Warners, constructed

1

Also on October 29, 2012, the Court granted the plaintiffs’ oral
motion to dismiss the defendants’ Motion to Alter Judgment, Motion to
Expunge Lis Pendens. (Dkt. No. 109).

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
The Augusta, a 158-unit student-housing complex. Complaint at ¶ 26,
27.
A.
The Warners contend that their problems with the City and the
individual defendants arose during the construction of The Augusta.
They maintain that City officials were unprepared to deal with a
project

of

The

Augusta’s

size,

and

that

their

inexperience

prolonged construction of the building by nearly two months, from
June until August, 2007. (Complaint at ¶ 30; Dkt. No. 112 at 4;
Dkt. No. 105-2 at 7; Dkt. No. 114 at 5-6).
Further complicating matters, Chief Fire Marshal Max Humphries
(“Humphries”), who had reviewed and approved plans for The Augusta
(dkt. no. 114 at 7), retired in December 2006, just as construction
on that project got underway. (Complaint at ¶ 31). The complaint
alleges that Humphries’ replacement, defendant Chief Fire Marshal
Kenneth Tennant (“Tennant”), together with defendant Fire Chief
David Fetty (“Fetty”) and other city fire and building code
enforcement officials, used Humphries’ retirement as an opportunity
to launch a retaliatory campaign against the Warners, including a
demand for last minute changes that delayed the opening of The

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
Augusta past the first day of WVU’s fall semester. (Dkt. No. 114 at
6).
While Andrew Warner described the delays as part of “some
beef” on the part of Fetty and defendant City Engineer Terry Hough
(“Hough”), he identified no motivation for that animosity beyond a
general practice by the City to “squeeze landlords.” (Dkt. No. 114
at 4,6). Moreover, the Warners do not allege that any of the
changes and additions required by City officials were illegal. In
his deposition, William Graham (“Graham”), a former member of the
City

Fire

Department,

recalled

Tennant’s

statement

to

fire

officials that The Augusta violated applicable fire codes, and
should be vacated and demolished. (Dkt. No. 119 at 3). Despite
Tennant’s opinion, The Augusta opened in time for the start of the
2007 fall semester at WVU. The Warners, however, incurred unforseen
costs due to the delayed opening and their obligation to provide
alternative housing for tenants whose leases permitted them to move
into The Augusta before the semester began. (Dkt. No. 112 at 5).
B.
The Warners allege that their timely completion of The Augusta
angered and embarrassed the individual defendants, who then formed
a plan to retaliate against the Warners individually, through their
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
limited liability company, McCoy 6, and its holdings, particularly
Mountaineer Court. (Complaint at ¶ 37). They allege the individual
defendants abused their discretion in the enforcement of building
and fire codes in a coordinated and concerted effort to deprive
them of Mountaineer Court, and, ultimately, to drive them into
bankruptcy. Id. According to the Warners, this plan of retaliation
commenced in February and March of 2008, when Building Code
Enforcement Officers, defendant Tye Poling (“Poling”) and Kathy
Stiles (“Stiles”) (who is not a party to this suit) conducted a
series of three inspections of Mountaineer Court that disclosed
several building code violations. (Dkt. No. 105-2 at 21, 30-32).
Although the Warners corrected the violations cited in the
February 28 and March 11, 2008 reports of Poling and Stiles, they
did not correct the violations cited in the March 12, 2008 report.2
(Dkt. No. 105-2 at 21, 30-32). Furthermore, on June 17, 2008,
another building code enforcement officer, Bonita Forbes (“Forbes”)
(who is not a party to this litigation) inspected Mountaineer Court
again

and

issued

a

citation

for

additional

building

code

violations, including rotted wooden components of the building’s

2

Nearly every cited violation on the February 28 and March 11,
2008 inspection reports are checked off, while there are not checkmarks on the March 12, 2008 inspection report.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
exterior walkways. (Dkt. No. 105-2 at 34). The citations issued by
Poling, Stiles, and Forbes in February, March, and June advised
McCoy 6 that it had twenty (20) days to correct or appeal the
violations. (Dkt. No. 105-2 at 30-32, 34). The Warners, however,
never appealed any of the citations.
On December 8, 2008, while work was continuing on the walkway
violations Forbes had cited in June, Building Code Enforcement
Officers, defendant David Friend (“Friend”) and Richard Powell
(“Powell”) (not a party to this litigation), issued a stop-work
order for renovations to the walkways. As reasons for their action,
Friend and Powell stated that the City had not yet received a
specific drawing of the deck supports, and that a joist had been
installed incorrectly. (Dkt. No. 105-2 at 40, 57). The Warners
maintain they had submitted the deck support drawings two months
earlier. (Dkt. No. 111 at 21; Dkt. No. 140 at 4). Friend lifted the
stay

order

construction

after

Donald

manager,

Dempsey

agreed

to

(“Dempsey”),

correct

certain

the

Warners’

problems

at

Mountaineer Court. (Dkt. No. 105-2 at 41).
The City maintains separate building and fire code inspection
processes. (Dkt. No. 105-2 at 94) (indicating that the fire and
building code inspections are conducted by separate departments).
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
During the time the Warners were dealing with multiple building
code violations at Mountaineer Court throughout 2008, they were
facing the scrutiny of City fire officials as well. Acting on an
alert from a City official, defendant Deputy Fire Marshal Patrick
Pickenpaugh (“Pickenpaugh”) conducted a walk-through inspection of
Mountaineer Court on June 17, 2008 (dkt. no. 105-2 at 69, 75). Two
days later, he issued a “Fire and Life Safety Warning Notification”
(dkt. no. 105-2 at 78) and a “Notice of Violations” to McCoy 6.
(Dkt. No. 105-2 at 75, 80-82). This notice listed 229 violations of
the City’s fire code at Mountaineer Court, and gave McCoy 6 until
June 27, 2008 to submit a written corrective action plan for
approval. It also stated that failure to comply with the order
would lead to criminal prosecution of the property owner or
manager, or condemnation of the property. (Dkt. No. 105-2 at 82).
When he had not received a corrective action plan from McCoy 6
as of July 11, 2008, (dkt. no. 105-2 at 70), Pickenpaugh issued an
immediate danger evacuation order due to “an immediate danger that
could reasonably be expected to cause death, serious physical harm,
or serious property damage” at Mountaineer Court. (Dkt. No. 105-2
at 70, 84, 86). He also cited Benjamin Warner personally for the
fire code violations at the complex. (Dkt. No. 141 at 5-11; Dkt.
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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
No. 105-2 at 84 (evacuation order stating that “[a] citation for
violation of the current fire code will be issued for this life
safety violation”)). Benjamin Warner later pleaded “no contest” to
at least one of the citations. (Dkt. No. 105-2 at 88). The record
does not disclose whether he ever pleaded to, challenged, or
appealed any of the remaining citations.3 The Warners now complain
that Pickenpaugh violated West Virginia Code § 29-3-16 because he
gave them only twenty-four days, not the statutory thirty days, to
comply with the citations.
Eighteen days after Pickenpaugh condemned Mountaineer Court,
Dempsey finally submitted McCoy 6’s “Written Plan of Corrective
Action” to the Fire Marshal on July 29. (Dkt. No. 105-2 at 90).
Nine days later, on August 7, Deputy City Fire Marshal T.A.
Rhinehart lifted the condemnation order and Dempsey received a
“Plan Review Document” notifying him that the plans submitted on

3

The Warners contend there was no meaningful appeal available to
them. (Dkt. No. 111 at 4). That bare contention, however, does not negate
the fact that they never challenged the citations in any official way,
nor does the record support this assertion. (Dkt. No. 130 at 4)
(deposition testimony of City Manager Boroff in which he states that the
state fire marshal is the “ultimate authority” and the Fire Prevention
Board “actually predated some of the arrangements in the state fire
code”); (Dkt. No. 136 at 1 - 7) (deposition testimony of Fetty, in which
he does not mention the Fire Prevention Board) (Dkt. No. 136 at 9-12)
(deposition testimony of Graham, in which he does not mention the Fire
Prevention Board).

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
July 29, 2008 (including the removal and reconstruction of exterior
walkways) were approved subject to additional code requirements,
and that failure to meet the deadlines set forth in those plans
could result in another condemnation. (Dkt. No. 105-2 at 96-99).
Construction schedules maintained in the office of the City
Fire Marshal reflect that, subsequent to this approval, Dempsey
submitted a series of requests for extensions for various phases of
the corrective action plan. (Dkt. No. 127 at 2-16). Based on these
schedules, ongoing remediation work at Mountaineer Court was to be
completed by March 9, 2009. (Dkt. No. 127 at 12). Other components
of the job, however, carried earlier completion dates. (Dkt. No.
127 at 2–16; Dkt. No. 142 at 6). For example, the exterior dry
pipes at Mountaineer Court were to be installed by December 26,
2008. (Dkt. No. 127 at 4; Dkt. No. 142 at 6). The Warners
characterize these completion dates as merely their engineer’s
estimate, not a binding schedule. (Dkt. No. 111 at 9).
To finance the remediation at Mountaineer Court, the Warners
sought a $2.4 million line of credit from First United Bank.
(Complaint at ¶ 77; Dkt. No. 114 at 10). On December 19, 2008,
Andrew Warner notified defendant City Manager Dan Boroff (“Boroff”)
that he had obtained the line of credit, (dkt. no. 114 at 10), but
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
that notice apparently came too late to prevent certain events that
resulted in McCoy 6's default on the mortgage held by Fifth/Third
Bank and secured by Mountaineer Court. (Dkt. No. 142 at 9).
On December 19, 2008, Bridget Zeigler (“Zeigler”), an officer
of Fifth/Third Bank, met with three representatives of the City,
likely including City Engineer Hough (dkt. no. 124 at 7, 9; dkt.
no. 135 at 5), to discuss the status of Mountaineer Court and the
improvements necessary to avoid a second condemnation of the
complex. (Dkt. No. 124 at 6). Zeigler later stated that she left
the meeting with the impression that “city officials . . . wanted
the improvements in the control of someone else.” (Dkt. No. 124 at
7).
Also on December 19, Tennant sent a memo to City Manager
Boroff to inform him that the City Fire Department would only sign
off on a new timeline for repairs at Mountaineer Court if it
received a “letter from the bank/financial institution documenting
their acquisition of control submitted by December 26, 2008.” (Dkt.
No.

125

at

2).

In

deposition

testimony,

City

employees

characterized that requirement as “guaranteeing that something was
going to be done at the site” (dkt. no. 135 at 7), or “find[ing]
out who controlled the property so we knew who to deal with
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
regarding an extension” (dkt. no. 136 at 6), or determining if the
Warners had the “financial wherewithal” to make the necessary
repairs. (Dkt. No. 130 at 5).
The Warners contend these explanations are pretextual. They
assert that City officials well knew Dempsey was their contact for
the renovations at Mountaineer Court, and they simply wanted to
divest the Warners of control and ownership. In support of this
assertion, they point to Graham’s testimony that, in his twentyseven years with the City Fire Department, he had never seen a
demand for change of ownership or control as a requirement for reoccupancy. (Dkt. No. 136 at 11).
Subsequently, on December 23, 2008, Zeigler and the Warners
executed

a

conditional

forbearance

agreement

and

provisional

receivership order providing for the appointment of a receiver for
Mountaineer Court in the event more than five units of the complex
were condemned. (Dkt. No. 142 at 13). Zeigler also wrote to the
City

on

December

23

requesting

an

extension

of

two

looming

remediation deadlines - the December 26th deadline for installation
of the dry pipe system, and the December 29th deadline for exterior
walkway reconstruction. (Dkt. No. 142 at 6). Although the Fire
Marshal’s Office received this request on December 29, 2008 (dkt.
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
no. 105-3 at 5), Pickenpaugh and Poling reinspected Mountaineer
Court that same day. (Dkt. No. 114 at 10).
Two problems arose during that inspection. First, according to
Andrew Warner, Pickenpaugh told the Warners that a six-inch joist,
which had previously been approved and installed, was insufficient
and that “new construction requirements” mandated a ten-inch joist.
Id. Second, the inspectors noticed that four splice plates, a
safety measure used where joists are joined, were missing. Id.
Although Andrew Warner told the inspectors the plates were on order
and would be installed as soon as they arrived, id., the inspectors
refused to wait. Pickenpaugh issued a misdemeanor complaint to
McCoy 6 for failing to comply with written notices of violations of
the fire code at Mountaineer Court (dkt. no. 105-3 at 7) and
condemned the building for a second time (dkt. no. 105-3 at 10).
That action triggered the receivership clause in the Warners’
forbearance agreement with Fifth/Third Bank. Importantly, at least
one defendant, City Manager Boroff, was aware that, if Mountaineer
Court was condemned again and went into receivership, the Warners
would face bankruptcy. (Dkt. No. 130 at 8). Ultimately, McCoy 6
filed for bankruptcy on February 2, 2009, and Augusta followed suit
a year later, on February 19, 2010.
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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
Pickenpaugh

maintains

that

the

second

condemnation

of

Mountaineer Court stemmed from the failure of McCoy 6 to comply
with previous written notices of fire code violations and the lack
of progress at the work site. (Dkt. No. 105-2 at 72). In addition,
he stated that Mountaineer Court had only one set of stairs and the
dry pipe sprinkler system had not yet been installed. (Dkt. No. 133
at 8). Zeigler, however, stated that, as of December 29, 2008, the
Warners were getting the work done to bring Mountaineer Court up to
code. (Dkt. No. 124 at 5, 8).
C.
Following the second condemnation of Mountaineer Court on
December 29, 2008, Fifth/Third Bank appointed Mark Nesselroad,
(“Nesselroad”), who is not a party to this lawsuit, as receiver to
oversee completion of the work at the complex. (Dkt. No. 105-3 at
13-14). The Warners contend that Nesselroad’s appointment evinces
the

intent

of

the

individual

defendants

to

divest

them

of

Mountaineer Court. Although the Warners wanted Dempsey or Mike
Castle, another local developer, appointed, unnamed City officials
allegedly opposed those choices. Id. Boroff initially testified
that Nesselroad never contacted him about becoming the receiver for
Mountaineer

Court,

but

he

later
15

recanted,

acknowledging

that

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
Nesselroad had in fact contacted him seeking a reference for the
receiver position. (Dkt. No. 130 at 8, 9).
Despite the financial upheaval, Dempsey acknowledged that work
on

Mountaineer

Court

proceeded

at

an

accelerated

pace

under

Nesselroad. (Dkt. No. 105-2 at 16, 17). And Friend testified that
“[the receiver] did more work in eight or nine days than the other
contractor did in two months.” (Dkt. No. 105-2 at 43). As a result,
City officials issued a temporary certificate of occupancy for
Mountaineer Court on or about January 9, 2009. (Dkt. No. 137 at 6).
The Warners claim that City officials never enforced the
building

and

fire

codes

as

strictly

against

Nesselroad

and

subsequent owners of Mountaineer Court as they had done against
them. In support of their contention, they point to the fact that,
while Pickenpaugh required them to install four splice plates,
Friend

later

determined

those

plates

were

unnecessary

after

Mountaineer Court came under Nesselroad’s control. (Dkt. No. 137 at
4).
The Warners also question how the receiver could have earned
a temporary certificate of occupancy so quickly even though code
violations persisted at Mountaineer Court. (Dkt. No. 137 at 10).
When Friend was asked why he had not condemned the property for
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building

code

responded,

“I

violations
can’t

while

answer

in

the

that.”

(Id.

receiver’s
at

5).

hands,

he

Pickenpaugh,

moreover, acknowledged that, to this day, Mountaineer Court has yet
to achieve a permanent certificate of occupancy. (Dkt. No. 133 at
11).
III. Summary Judgment Standard
Summary
documents,

judgment

is

electronically

declarations,

stipulations

appropriate
stored
.

.

where

the

information,
.,

admissions,

“depositions,
affidavits

or

interrogatory

answers, or other materials" show that “there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed R. Civ. P. 56(c)(1)(A), (a). A genuine issue
of material fact exists “if the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The “mere existence
of a scintilla of evidence” favoring the nonmoving party will not
prevent the entry of summary judgment; the evidence must be such
that a rational trier of fact could reasonably find for the
nonmoving party. Anderson, 477 U.S. at 248–52. In other words,
“[m]ere speculation by the non-movant cannot create a genuine issue
of material fact.” JKC Holding Co. LLC v. Washington Sports
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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
Ventures, Inc., 234 F.3d 459 (4th Cir. 2001) (citing Cox v. County
of Prince William, 249 F.3d 295, 299 (4th Cir. 2001)).
In applying the standard for summary judgment, the Court must
view any inferences permissibly drawn from the underlying facts in
review in the light most favorable to the non-movant. Matsushita
Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88
(1986). “However, such inferences must ‘fall within the range of
reasonable probability and not be so tenuous as to amount to
speculation or conjecture.’” JKC Holding Co. LLC, 234 F.3d at 465
(citing Thompson Everett, Inc. v. National Cable Advert., L.P., 57
F.3d 1317, 1323 (4th Cir. 1995)). The Court must avoid weighing the
evidence or determining the truth and limit its inquiry solely to
a determination of whether genuine issues of triable fact exist.
Anderson, 477 U.S. at 248.
IV. Discussion
Pursuant to Travis v. Alcon Laboratories, Inc., 504 S.E.2d
419, 425 (W. Va. 1998), in order to state a claim of outrage, the
Warners must meet the following four elements:
(1) that the defendant’s conduct was atrocious,
intolerable, and so extreme and outrageous as to exceed
the bounds of decency; (2) that the defendant acted with
the intent to inflict emotional distress, or acted
recklessly when it was certain or substantially certain
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emotional distress would result from his conduct; (3)
that the actions of the defendant caused the plaintiff to
suffer emotional distress; and (4) that the emotional
distress suffered by the plaintiff was so severe that no
reasonable person could be expected to endure it.
Travis borrowed these elements from the Restatement (Second)
of Torts § 46(1) (1965) (“Restatement (2d)”), where the first
element, outrageous conduct, is defined as conduct
so outrageous in character, and so extreme in degree, as
to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a
civilized community. Generally, the case is one in which
the recitation of the facts to an average member of the
community would arouse his resentment against the actor,
and lead him to exclaim, “Outrageous!”
Id. comment (d). Comment (d) further states:
It has not been enough that the defendant has acted with
an intent which is tortious or even criminal, or that he
has intended to inflict emotional distress, or even that
his conduct has been characterized by “malice,” or a
degree of aggravation which would entitle the plaintiff
to punitive damages for another tort.
Id.
In

cases

of

outrage,

courts

demand

“strict

proof

of

unprecedented and extreme misconduct.” Tanner v. Rite Aid of West
Virginia, Inc., 461 S.E.2d 149, 157 (W. Va. 1995) (citing Keyes v.
Keyes, 392 S.E.2d 693, 696 (W. Va. 1990)). Only a few courts have
held that a plaintiff’s claim of outrage meets the “extreme and
outrageous” standard under West Virginia law. Garrett v. Viacom,
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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
Inc., No. 1:03CV22, 2003 WL 22740917, *5 (N.D.W. Va. Aug. 27, 2003)
(citing Miller v. SMS Schloemann-Siemag, Inc., 203 F.Supp.2d 633,
636, 640 (S.D.W. Va. 2002) (plaintiff had sufficiently alleged a
claim of outrage where the defendant’s offer to transport her
severely injured husband to a medical facility was conditioned on
her promise not to treat the transport as an admission of liability
for his injuries); Bell v. Nat’l Republican Congressional Comm.,
187 F.Supp.2d 605, 618 (S.D.W. Va. 2002) (false labeling of the
plaintiff

as

a

child

molester

and

rapist

may

reasonably

be

considered outrageous)). Finally, “[w]hether conduct may reasonably
be considered outrageous is a legal question, and whether conduct
is in fact outrageous is a question for jury determination.” Syl.
pt. 4, Travis, 504 S.E.2d at 421.
Because the Court has dismissed the Warners’ claims of outrage
against the City, their broad accusations of outrageous conduct by
“the City” are no longer relevant. Instead, in order to defeat the
defendants’ motion, the Warners must establish that the conduct of
each individual defendant rises to the level of the unprecedented
and extreme misconduct recognized in Travis and the Restatement
(2d).

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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
A. City Manager Boroff
Although the evidence of record establishes that Boroff, the
City Manager, refused to inspect Mountaineer Court personally (dkt.
no. 114 at 11), recommended Mark Nesselroad to serve as receiver
for Mountaineer Court (dkt. no. 130 at 8-9), deferred to the
expertise of his code enforcement officers (dkt. no. 130 at 25),
and failed to recall meeting with the Warners (dkt. no. 130 at 67), such conduct cannot reasonably be characterized as outrageous
under Travis and the Restatement (2d). While the Warners may not
agree with Boroff’s decisions or his recollection, his conduct
simply was not “utterly intolerable in a civilized community.” Rst.
(2d) Torts § 46(1), comment (d). Indeed, even if, as the Warners
allege, Boroff did not intend to help them or wish to cooperate
with them, that would not render his conduct outrageous. See
Courtney v. Courtney, 413 S.E.2d 418, 423 (W. Va. 1991) (“[C]onduct
that is merely annoying, harmful of one’s rights or expectations,
uncivil, mean-spirited, or negligent does not constitute outrageous
conduct.” (emphasis added)). As a matter of law, therefore, the
Court concludes that Boroff’s conduct was not outrageous.

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B. Fire Chief Fetty
The Warners accuse Fetty of using Humphries’ retirement as an
excuse to wage a campaign of retaliation against them (dkt. no. 114
at 6), of being ignorant about the extent of the remediation needed
at Mountaineer Court, of deferring to his subordinates (dkt. no.
125 at 5), and of refusing to inspect Mountaineer Court personally
(dkt. no. 114 at 11).4 These allegations, like those against
Boroff, cannot reasonably be characterized as “outrageous.” While
the Warners may disagree with Fetty’s management style and his
refusal to inspect Mountaineer Court, such conduct does not rise to
the level of “unprecedented and extreme misconduct” the tort of
outrage is intended to punish. Tanner, 461 S.E.2d at 157. Even if
the Court were to credit Andrew Warner’s unsupported deposition
testimony

that

Fetty’s

actions

were

driven

by

a

desire

for

retaliation, malice alone does not make his conduct outrageous.
Rst. (2d) Torts § 46(1), comment (d); Gordon v. Gestetner Corp.,
995 F.2d 1062, *2 (4th Cir. 1993) (under Virginia law, which is
4

The Warners assert that Fetty was also unaware of a letter sent to
the City of Morgantown from the Warners’ attorney complaining of
overzealous code enforcement at Mountaineer Court, and unaware of the
reason why the Warners were not granted an extension to complete
renovations in late December 2008. In support, the Warners cite to pages
of Fetty’s deposition that are not a part of the record, so the Court
will not consider these allegations at summary judgment.

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also based on the Rst. (2d) formulation, “intentional, malicious,
or criminal conduct is not sufficient”); Shrader v. Siana &
Vaughan, LLP, No. 03-3510, 2005 WL 975411 (E.D.Pa. April 25, 2005)
(quoting comment (d), and holding that wrongful prosecution of a
civil action is not outrageous); Northrup v. Farmland Ind., Inc.,
372 N.W.2d 193, 198 (Iowa 1985) (highlighting comment (d)). In
short, the Court finds, as a matter of law, that Fetty’s conduct is
not “outrageous.”
C. Chief Fire Marshal Tennant
The Warners contend that Tennant maliciously reinterpreted
sprinkler requirements in order to delay the opening of The
Augusta, stated he did not think the Warners would complete The
Augusta, disliked landlords, told a meeting of the fire captains
that The Augusta should never have been built, and wrote a memo to
the City Manager requesting “[a] letter from the bank/financial
institution

documenting

their

acquisition

of

control”

before

extending repair deadlines at Mountaineer Court.5

5
The Warners also state that Tennant testified in his deposition that he
would have granted the Warners an extension to complete repairs had
Dempsey sent additional timeliness by December 26, 2008, a day on which
City offices were closed. The cited portion of Tennant’s deposition is
not attached to the Warners’ response, however.

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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
The first three instances of alleged “outrageous conduct” by
Tennant are not supported by evidence in the record.6 Furthermore,
Tennant’s issuance of a memo demanding a letter from the Warners’
bank is not, in and of itself, outrageous. Even if the memo can be
interpreted to indicate Tennant’s desire to oust the Warners from
control of Mountaineer Court, at worst, such desire is “harmful of
[the Warner’s] rights and expectations,” but does not rise to the
required level of outrageousness. Courtney, 413 S.E.2d at 423. And,
even if the memo could be read as indicating that Tennant intended
to cause the individual Warners emotional distress, such intent
will not transform everyday conduct, such as writing a memorandum,
into outrageous conduct. See Rst. (2d) Torts § 46(1), comment (d)
(stating that an intent to cause emotional distress is insufficient
to find outrageous conduct).

6
The portions of the record cited by the Warners do not support their
allegation
that
Tennant
“maliciously
reinterpreted”
sprinkler
requirements at The Augusta. (Dkt. No. 112 at 3) (stating that the City
required the Warners to “add-on” sprinklers in The Augusta’s crawlspace); (Dkt. No. 117) (e-mail from Dempsey that does not mention
“sprinklers”); (Dkt. No. 114 at 6)(generally referring to “add-ons” at
The Augusta). The allegation that Tennant stated the Warners would not
complete The Augusta is unsupported by the record, as well. Tennant’s
dislike of landlords is likewise only supported only by inadmissible
hearsay – a letter from a Morgantown landlord to Boroff written in 2007.
(Dkt. No. 145 at 10).

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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
Finally, Tennant’s professional opinion that The Augusta did
not meet fire code standards cannot reasonably be called outrageous
simply because it tends to cut against the Warners’ interests. See
Courtney, 413 S.E.2d at 423; Don King Prod., Inc. v. Douglas, 742
F.Supp.

778,

785

(S.D.N.Y.

1990)

(“in

the

professional

or

employment context the edges may be particularly rough” and “only
in the most extreme and outrageous case does a cause of action for
intentionally hurt feelings lie”). As a matter of law, therefore,
Tennant’s conduct was not “outrageous.”
D. Deputy Chief Fire Marshal Pickenpaugh
While Pickenpaugh’s actions loom large in the story of the two
condemnations of Mountaineer Court, his conduct was not outrageous.
The Warners allege that Pickenpaugh acted outrageously when he
condemned Mountaineer Court on July 11, 2008, giving them twentyfour days, and not the required thirty days, to correct fire code
violations. They further contend that he failed to respond to
Dempsey’s requests for information, although he readily provided
such information to the receiver. He also failed to explain how a
certificate of occupancy was granted to the receiver even though
stair towers at Mountaineer Court still violated the city building
codes, condemned Mountaineer Court on July 11, 2008, without the
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MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
approval of his superiors, condemned Mountaineer Court in December
2008 due to missed construction deadlines, in spite of the fact
that work on the building was progressing, and faxed a copy of the
December 2008 condemnation order to Fifth/Third Bank’s attorneys.
Even

with

the

support

found

in

the

record

for

these

allegations, none of Pickenpaugh’s actions amounts to outrageous
conduct despite how much they ultimately may have harmed the
Warners’ interests. Courtney, 413 S.E.2d at 423. Moreover, even if
Pickenpaugh did condemn Mountaineer Court in violation of West
Virginia Code § 29-3-16, such an illegal act is not necessarily
outrageous. Preston v. Atmel Corp., 560 F.Supp.2d 1035, 1040 (D.
Colo. 2008) (“Conduct that could be illegal or that some might
consider reprehensible is not necessarily actionable.”); Rst. (2d)
Torts § 46(1), comment (d) (“It has not been enough that the
defendant has acted with an intent which is tortious or even
criminal . . . .”); 86 CJS Torts § 74 (2012) (“An act is not
necessarily outrageous merely because it is illegal . . . .”).
Assuming Pickenpaugh did violate West Virginia law, he did so by
condemning Mountaineer Court only twenty-four days after citing the
complex for violations, rather than the statutorily-required thirty

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– a difference of only six days. Such a small span of time can
hardly be termed “outrageous.”
Further, Pickenpaugh’s status as a “repeat player” in the
series

of

necessarily

enforcement
elevate

actions

his

outrageousness.

For

formulation

outrage,

of

at

actions

example,
the

Mountaineer
to

the

applying
Sixth

Court

requisite

the

Circuit

does

not

level

of

Restatement
has

held

(2d)

that

a

landowner’s repeated interference with easement holders’ rights of
access,

including

“a

continuing

course

of

confrontation

and

harassment,” was not outrageous. Winkler v. Petersilie, 124 F.
App'x 925, 934 (6th Cir. 2005). Pickenpaugh’s actions, which the
Warners surely considered a “continuing course of confrontation and
harassment,” likewise reasonably cannot be labeled “outrageous.”
E. Chief Engineer Hough
The Warners contend that Hough’s failure to explain why fire
officials condemned Mountaineer Court in July 2008, as well as her
statements to Zeigler during their meeting on December 19, 2008,
were outrageous. That Hough, who oversees enforcement of building
codes in Morgantown, lacked an explanation as to why a fire
official condemned Mountaineer Court certainly does not cross all
“possible bounds of decency.” Rst. (2d) Torts § 46(1), comment (d).
27

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Furthermore, even if she did tell Zeigler she did not want the
Warners in control of improvements at Mountaineer Court,7 such a
statement is not the type of “unprecedented and extreme misconduct"
targeted by the tort of outrage. Tanner, 461 S.E.2d at 157. Hough
did not ridicule or verbally abuse the Warners. See Hatfield v.
Health Management Assoc. of W. Va., 672 S.E.2d 395, 404 (W. Va.
2008) (firing of at-will employee was not outrageous where employer
did not "ridicule, harass, or verbally abuse the appellant, nor
make any derogatory or inappropriate statements with respect to
either her employment or her termination"). Nor was her conduct,
even

if

“mean-spirited”

or

“harmful

of

one’s

rights

or

expectations,” outrageous. Courtney, 413 S.E.2d at 423. As a matter
of law, therefore, the Warners

cannot claim that Hough’s conduct

was outrageous.
F. Building Code Enforcement Officer Friend
The Warners maintain that Friend acted outrageously when he
issued a stop work order on December 8, 2008, later waived the
splice plate requirement for Nesselroad, which he refused to do for

7
In her deposition, Zeigler testified not that Hough had stated she
no longer wanted the Warners in control of Mountaineer Court, but that
Zeigler herself had left the meeting with Hough with the impression that
officials of the City of Morgantown “wanted the improvements [at
Mountaineer Court] in the hands of someone else.” (Dkt. No. 124 at 7).

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the Warners (dkt. no. 137 at 4), and could not explain why
Mountaineer Court had been condemned in July 2008.
As with the allegations involving Hough, Friend’s failure to
explain the actions of another does not cross all “possible bounds
of decency.” Rst. (2d) Torts § 46(1), comment (d). Friend, after
all, is a building code enforcement officer and it was Deputy Fire
Marshal Pickenpaugh who condemned Mountaineer Court in July, 2008
for violations of the fire code. See supra.
Moreover, assuming the Warners’ contention that Friend issued
a stop work order in December 2008 on pretextual grounds is true,
such conduct is not, as a matter of law, outrageous. Simply put, a
mistake is not outrageous. Brown v. City of Fairmont, 655 S.E.2d
563, 569 (W. Va. 2007) (improper disbursement of pension funds,
though ill-advised or the product of poor judgment, was not
atrocious, intolerable, or outrageous).
Finally, assuming that Friend’s discretion would not have
permitted him to rely on the representation of the receiver’s
engineer that the splice plates were unnecessary, an ill-advised
action

is

also

not

outrageous.

Id.

Indeed,

even

if

Friend

discriminated against the Warners intentionally or maliciously,
such an intent does not elevate his otherwise mundane conduct to
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the requisite level of outrageousness. See Gordon, 995 F.2d at *2.
(under the Rst. (2d), conduct that is “intentional, malicious, or
criminal” is not sufficiently outrageous). In short, the Warners
have pointed to no conduct that could reasonably be labeled
“outrageous.”
G. Defendants Poling, Terry Rhinehart (“Rhinehart”),
Jason Quinn (“Quinn”), and Michael Stone (“Stone”)
The Warners do not raise any disputed issue of material fact
as to the outrageous nature of the conduct of the remaining
defendants, Poling, Rhinehart, Quinn, and Stone. These defendants,
therefore, are entitled to judgment as a matter of law based on the
failure of the Warners to state a legally cognizable claim of
outrage against them. Fed. R. Civ. P. 56(c).8
In summary, the Warners have failed to state a claim regarding
the outrageous nature of the conduct of any of the individual

8

In fact, Quinn is not mentioned at all in the Warners’ response to
the defendants’ motion for summary judgment, and Stone is mentioned only
once. Rhinehart is not discussed in the response, either. Based on the
record, the only action he took in the matter was to lift the July 2008
condemnation order on August 7, 2008. Beyond inspecting Mountaineer Court
three times in February and March 2008, the Warners point to no record
evidence that Poling’s conduct was outrageous.

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defendants. These defendants, therefore, are entitled to judgment
as a matter of law as to this claim.9
H. Concerted Action and Official Conduct
The Warners advance two theories as to why the individual
defendants’ conduct, when considered in combination, should support
a recovery for outrage and save their case. First, they claim the
defendants acted deliberately, with a shared intent to deprive them
of Mountaineer Court and to drive them into bankruptcy. Second,
they contend that the defendants abused their official power.
Some courts have held that the tort of outrage may provide a
remedy “where severe mental pain or anguish is inflicted through a
deliberate and malicious campaign of harassment or intimidation.”
Nader v. General Motors Corp., 255 N.E.2d 765, 770 (N.Y. 1970). In
this case, however, even when the alleged conduct of the individual
defendants is considered in combination, it does not rise to the
9

Further, the Warners do not specify at whom the individual
defendants directed their allegedly outrageous conduct. For example, they
do not specify which brother, Andrew, Kristian, Monroe, or Benjamin, was
harmed when Pickenpaugh acted “outrageously” by condemning Mountaineer
Court on December 29, 2008. The Warner brothers are not a legal “unit”,
with harm to one harming the others, or harm to the “unit” automatically
harming the individual brothers. Thus, the individual Warners also fail
to raise a genuine issue of material fact as to whether “the actions of
the [individual] defendant(s) caused the [individual] plaintiff(s) to
suffer emotional distress,” Travis, 504 S.E.2d at 425, and summary
judgment for the individual defendants is appropriate on that ground, as
well.

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requisite level of outrageousness. Fundamentally, the Warners fail
to point to a single act taken by an individual defendant that
rises to the requisite level of outrageousness. See Kirwin v. N.Y.
State Off. of Mental Health, 665 F.Supp. 1034, 1040 (E.D.N.Y. 1987)
(allegations of a “veritable campaign of harassment” composed of
“insults, indignities, annoyances and petty oppressions” does not
constitute outrageous conduct). Nor have they provided a scintilla
of proof that the series of enforcement actions about which they
complain were part of a deliberate campaign by the individual
defendants to ruin them.10 Kovich v. Manhattan Life Ins. Co., 640
F.Supp.

134,

considered

in

137

(S.D.N.Y.

combination,

1986)

(holding

allegations

that

that,

even

employer

when

forged

plaintiff’s time records and told her she would be “black-balled”
in the insurance industry did not arise to an outrageous campaign).
Therefore, absent any outrageous conduct, or even a scintilla of
evidence of a deliberate campaign to ruin the Warners, the actions
10

The Warners imply that City officials targeted Warner-owned
properties for enforcement to enable WVU to purchase the properties, but
they offer no support for these allegations. (Dkt. No. 111 at 3) (bald
statement that “[m]any City Officials are intimately associated with the
University”). They also intimate that it was the general practice by the
City to “squeeze landlords.” (Dkt. No. 114 at 4,6). That unsupported
allegation, however, does not establish a deliberate campaign by the
individual defendants to ruin the individual plaintiffs, even assuming
such a deliberate campaign would be considered outrageous under Travis
and the Restatement (2d).

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of the individual defendants, when considered in their totality, do
not rise to the requisite level of outrageousness.
Indeed, the record counsels against any such inference. News
& Observer Publ’g Co. v. Raleigh–Durham Airport Auth., 597 F.3d
570,

576

(4th

Cir.

2010)

(inferences

drawn

in

favor

of

the

nonmoving party must “flow rationally from the underlying facts”
(citation

omitted));

JKC

Holding

Co.

LLC,

234

F.3d

at

465

“inferences must fall within the range of reasonable probability
and not be so tenuous as to amount to speculation or conjecture.”)
(internal citations omitted). For example, it was a fire official
not named in this suit who first prompted Pickenpaugh to inspect
Mountaineer Court on June 17, 2008. (Dkt. No. 105-2 at 69, 75).
Similarly, it was another inspector, Forbes, also not a party to
this suit, who cited Mountaineer Court for rotted wooden components
of the building’s exterior walkways. (Dkt. No. 105-2 at 34).
Notably,

that

particular

defect,

which

became

such

a

hotly

contested issue later on during the remediation, originated in an
inspection conducted by a City official not a party to this
litigation. Finally, even the Warners’ own characterization of the
record emphasizes a lack of coordination among the individual
defendants. All this strongly cuts against any inference that the
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nine individual defendants acted in combination as part of a farreaching, long-term campaign to destroy the Warners.
The Warners also argue that the defendants acted outrageously
because they abused their official power. See Rst. (2d) § 46, cmt.
(e) (“The extreme and outrageous character of the conduct may arise
from an abuse by the actor of a position, or a relation with the
other, which gives him actual or apparent authority over the other,
or power to affect his interests.”). While the Restatement (2d)
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.” Id.
Moreover, “not every exercise of power or authority is wrongful.”
Dan B. Dobbs, THE LAW OF TORTS 827 (2000). 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.
Id. 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. See Hamaker v. Ivy,
51 F.3d 108, 111 (8th Cir. 1995) (reasoning that the law affords
other remedies for official misconduct, and “conduct that is
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otherwise not extreme and outrageous [does not] become[] extreme
and outrageous only because the actors were [public] officials”).
In sum, the Warners’ argument – that the defendants’ official
positions

elevate

their

conduct

to

the

requisite

level

of

outrageousness – fails.
At bottom, the Warners want the Court to conclude that the
result of the enforcement actions undertaken by the individual
defendants was outrageous, not the enforcement actions themselves.
Under Travis and its progeny, this is the wrong inquiry. 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.11

11

The defendants also argue that, under Smith Setzer & Sons, Inc. v.
S.C. Procurement Rvw. Panel, 20 F.3d 1311, 1317 (4th Cir. 1994), the
Warners lack standing to assert a claim of outrage because their injuries
resulted from their membership in the failed, Warner-controlled limited
liability corporations, and not the defendants’ actions. The Court,
however, will not address this issue because the Warners’ failure to
raise a genuine issue of material fact as to the outrageousness of the
defendants’ conduct is fatal to their claim.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]
V.
In conclusion, for the reasons stated above, the Court:
1.

GRANTS the defendants’ motion for summary judgment (dkt. no.
105) as to the plaintiffs’ remaining claims;

2.

DISMISSES the individual defendants WITH PREJUDICE;

3.

GRANTS the plaintiffs’ oral motion to dismiss the defendants’
Motion to Alter Judgment, Motion to Expunge Lis Pendens (dkt.
no. 109); and

4.

ORDERS the case STRICKEN from the Court’s docket.

Pursuant to Fed. R. Civ. P. 58, the Court DIRECTS the Clerk of
Court to enter a separate judgment order and to transmit copies of
both orders to counsel of record.
DATED: February 1, 2013.

/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

36