# County Commission of Fayette County v. Pardee and Curtin Realty LLC

> West Virginia Supreme Court · May 22, 2026

URL: https://www.frixlaw.com/law-library/cases/11330938

## Case

- **Court:** West Virginia Supreme Court
- **Decided:** May 22, 2026
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Nature of suit:** Certified Question
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

FILED
May 22, 2026
released at 3:00 p.m.
C. CASEY FORBES, CLERK
STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS
SUPREME COURT OF APPEALS OF WEST VIRGINIA

County Commission of Fayette County,
Petitioner

v.) No. 25-68 (S.D.W.Va. 2:21-cv-00307)

Pardee and Curtin Realty,
Defendant Below, Respondent

MEMORANDUM DECISION

The petitioner, the County Commission of Fayette County (“the County”) and the
respondent, Pardee and Curtin Realty, LLC (“Pardee”), have presented this Court with a certified
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question from the United States District Court for the Southern District of West Virginia. The
Uniform Certification of Questions of Law Act empowers this Court to answer a question certified
from a federal court only “if the answer may be determinative of an issue in a pending cause in the
certifying court[.]” W. Va. Code § 51-1A-3 (1996). While we accepted the question for review,
the parties revealed that the order supporting the certified question is currently being reviewed on
appeal. Because of the tentative nature of the certified question, we cannot say our answer will be
determinative, so we decline to review the certified question. In this instance, a memorandum
decision is appropriate pursuant to Rule 21 of the West Virginia Rules of Appellate Procedure.

The County filed a broad lawsuit (styled The County Commission of Fayette County, West
Virginia, et al., v. National Grid NE Holdings 2 LLC, et al, No. 2:21-cv-00307) in the district court
generally seeking the environmental remediation of coal refuse piles in Fayette County, West
Virginia. Amongst the County’s claims was a suit under the Resource Conservation and Recovery
Act (“RCRA,” 42 U.S.C. § 6972) against several defendants, including respondent Pardee. The
County alleged that Pardee owned surface lands that included coal refuse piles, and that Pardee
should be liable for a portion of the costs to remediate those piles. Pardee, however, disputed
owning coal refuse piles. Pardee asserted that it owned the surface tracts surrounding the piles and
that its deeds to the tracts clearly excepted the environmentally contaminated areas.

The district court agreed with Pardee and, in an order dated March 21, 2023, granted
summary judgment to Pardee. Relying upon that summary judgment order, Pardee then moved the
district court for an award of its attorney’s fees and costs claiming that it was a prevailing defendant
under RCRA. The County resisted Pardee’s motion by asserting it is a political subdivision entitled

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The County is represented by Michael O. Callaghan, Esq., while Pardee is represented by
J. Mark Adkins, Esq. and William M. Lorensen, Esq.

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to prosecutorial immunity under the West Virginia Governmental Tort Claims and Insurance
Reform Act, West Virginia Code § 29-12A-1 to -18 (“the Tort Claims Act”).

The parties apparently did not provide any controlling authority to the district court.
Accordingly, the district court certified the following question to us:

Is a West Virginia political subdivision that brings a citizen suit under the
Resource Conservation and Recovery Act, 42 U.S.C. § 6972, entitled to
prosecutorial immunity from being assessed a prevailing opponent’s attorney fees
and costs?

“This Court undertakes plenary review of legal issues presented by certified question from a
federal district or appellate court.” Syl. Pt. 1, Bower v. Westinghouse Elec. Corp., 206 W. Va. 133,
522 S.E.2d 424 (1999).

The parties offered competing arguments in their briefs and oral arguments regarding
whether immunities are afforded by the Tort Claims Act to attorney fees and costs. However, at
oral argument, the parties revealed for the first time that the district court’s March 21, 2023,
summary judgment order – the basis for Pardee’s motion for fees and costs – is currently on appeal
to the United States Court of Appeals for the Fourth Circuit. As this Court recently noted, while
“[t]his Court has endeavored to answer certified questions from federal courts where proper and
practical . . . as a threshold matter, we must recognize the limits on our power to answer certified
questions.” City of Huntington v. AmerisourceBergen Drug Corp., 251 W. Va. 637, 644, 915
S.E.2d 828, 835 (2025). The Uniform Certification of Questions of Law Act provides that this
Court can answer a question from a federal court “if the answer may be determinative of an issue
in a pending cause in the certifying court[.]” W. Va. Code § 51-1A-3 (emphasis added).

In City of Huntington, we found a determinative question to be “a question concerning a
legal issue that substantially controls the case.” 251 W. Va. at 645, 915 S.E.2d at 836. West
Virginia Code § 51-1A-3 limits this Court to answering a question “determinative of an issue” in
a pending federal court case, and in so doing it precludes this Court from answering a hypothetical,
academic question not substantially controlling in the pending case. Because of the provisional,
tentative nature of the district court’s summary judgment order that is on appeal, the certified
question arising from that order is also tentative, and no answer from this Court will necessarily
substantially control the outcome of the federal court case. In sum, the Uniform Certification of
Questions of Law Act precludes us from providing an advisory opinion like that sought by the
parties through the certified question.

Certified question declined.

ISSUED: May 22, 2026

CONCURRED IN BY:

Chief Justice C. Haley Bunn
Justice William R. Wooton
Justice Gerald M. Titus III
Judge Gregory L. Howard, sitting by temporary assignment
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DISSENTING:

Judge Catie Wilkes Delligatti, sitting by temporary assignment

Justice Charles S. Trump IV, deeming himself disqualified, did not participate in the decision.
Justice Thomas H. Ewing, deeming himself disqualified, did not participate in the decision.

Delligatti, Judge, dissenting:

I respectfully dissent from the majority’s refusal to answer the question certified to this
Court by the United States District Court for the Southern District of West Virginia (the “Southern
District”).

The Southern District propounded the following question: “Is a West Virginia political
subdivision that brings a citizen suit under the Resource Conservation and Recovery Act, 42
U.S.C. § 6972, entitled to prosecutorial immunity from being assessed a prevailing opponent’s
attorney fees and costs?”

The Southern District’s Order of Certification to the Supreme Court of Appeals of West
Virginia (“Certification Order”) reviewed in detail Petitioner’s commencement of a citizen suit
under the Resource Conservation and Recovery Act, 42 U.S.C. § 6972(a)(1)(B) (“RCRA”) against
Respondent and various other Defendants relating to coal refuse, or gob, piles. The Certification
Order notes that the Southern District granted summary judgment in Respondent’s favor, finding
that the Petitioner’s “contentions against [Respondent were] without merit under West Virginia
law and nearly sanctionable under Federal Rule of Civil Procedure 11.” Notably, the Southern
District later granted summary judgment against all remaining defendants “due to the lack of
evidence supporting the County’s environmental allegations.”

Petitioner then moved for an award of fees and costs, as permitted under RCRA and
applicable federal law when “‘the plaintiff’s action was frivolous, unreasonable, or without
foundation,’ or if the plaintiff ‘continued to litigate after it clearly became so.’” Certification Order,
citing Christiansburg Garment Co. v. EEOC, 434 U.S. 412 (1978). Petitioner requests $225,498.36
in attorneys’ fees, expert witness fees, and costs incurred in the litigation. Respondent asserts that
it is immune from liability pursuant to the Governmental Tort Claims and Insurance Reform Act.
The Southern District then entered an Order of Certification to the Supreme Court of Appeals of
West Virginia, indicating that it “believes that the answer to this question may be determinative
for the award of attorney’s fees. . . .”

The threshold question presented is whether this Court should answer the certified
question. As established in Abrams v. West Virginia Racing Commission, “W.Va. Code § 51-1A-
1, et seq., relating to the certification of questions of law to this Court from foreign courts, does
not impose an absolute duty on this Court to answer such questions.” Syl. Pt. 1, Abrams v. W. Va.
Racing Comm’n, 164 W. Va. 315, 315, 263 S.E.2d 103, 104 (1980). I am nevertheless persuaded
by the wisdom of then-Chief Justice Neely’s dissent:
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[W]hen a Federal Court asks a question, it is only polite to give an
answer. I am not an expert in Federal law and am unable to
anticipate the thought processes of Federal judges who are.
Accordingly, I am quite pleased to give to the Federal courts such
information as they, in their discretion, deem necessary for the full
resolution of any dispute. Since the Federal courts are entrusted with
the administration of a body of law superior, by virtue of the
supremacy clause, to State law in all its ramifications, I consider that
the Federal Court does this Court an honor to consult us in these
matters and I would accord them the courtesy of a reply.

Abrams, 164 W. Va. at 323, 263 S.E.2d at 108 (Neely, C.J., dissenting). I am further persuaded by
my colleague Justice Wooton’s dissent in City of Huntington v. AmerisourceBergen Drug Corp,
where he engaged in a thorough analysis of this Court’s history relating to responding to certified
questions, ultimately concluding that “[i]n enacting West Virginia Code section 51-1A-3, the West
Virginia Legislature wisely gave this Court a flexible tool for resolving issues such as the one
presented in this case.” City of Huntington v. AmerisourceBergen Drug Corp., 251 W. Va. 637,
652, 915 S.E.2d 828, 843 (2025) (Wooton, C.J., dissenting).

Nevertheless, the majority declines to answer because of the potential that the Southern
District’s grant of summary judgment could be reversed on appeal. I disagree with the premise that
the summary judgment order entered by the Southern District is “provisional” or “tentative” in
nature to the point that answering the certified question would be akin to rendering an advisory
opinion. Rather, I am persuaded that the Southern District certified a question to this Court which
will be determinative of its ability to award attorneys’ fees in the underlying litigation, and I fail
to see the utility of declining to answer based upon the mere potential for appellate reversal or the
potential that the Southern District may not ultimately award attorneys’ fees, especially when this
Court set this matter for Rule 20 argument and the parties engaged in briefing and expended time
and resources to obtain this answer.

The Southern District, confronted with a question of unsettled West Virginia law, exercised
its statutory authority under W.Va. Code § 51-1A-3 to seek this Court’s guidance—precisely the
mechanism the Legislature created to promote the efficient administration of justice between our
state and federal courts. A refusal to answer renders these expenditures futile and leaves the
Southern District to resolve its question without this Court’s guidance, increasing the likelihood
of an outcome that may not faithfully reflect the law of this State, and potentially necessitating yet
another round of appellate proceedings. The certification process exists to prevent precisely this
kind of circular litigation.

I would answer the question in the negative. A West Virginia political subdivision that
brings a citizen suit under the Resource Conservation and Recovery Act, 42 U.S.C. § 6972, is not
entitled to prosecutorial immunity from being assessed a prevailing opponent’s attorneys’ fees and
costs. This is true for myriad reasons: 1) West Virginia, and its political subdivisions, cannot
immunize itself from federal claims; 2) statutory immunities under the Governmental Tort Claims

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and Insurance Reform Act apply only to tort claims, not to attorneys’ fees; and 3) filing a citizen
suit under RCRA is not a prosecutorial function.

First, United States Code is “the supreme Law of the Land.” U.S. Const. art. VI, cl. 2. No
party has pointed to any authority that would permit a State to immunize its subdivisions from
liability imposed under Federal law, presumably because such authority would be in direct
contravention of the Supremacy Clause.

Second, even if the Supremacy Clause did not preclude state-law immunization from
federal-law claims, it is inherent in the name itself that the Governmental Tort Claims and
Insurance Reform Act does not immunize a political subdivision from attorneys’ fees. Certainly,
a political subdivision is immune from liability if “a loss or claim results from. . . prosecutorial
functions.” W.Va. Code § 29-12A-5(a)(2). However, such loss or claim must be based in tort, as
evidenced not only by the name of the statute but also by prior analysis from this Court. See, e.g.,
Syl. Pt. 1 (in part), Walker v. Meadows, 206 W. Va. 78, 80, 521 S.E.2d 801, 803 (1999) (“W.Va.
Code, 29-12A-5(a)(5) [1986], which provides, in relevant part, that a political subdivision is
immune from tort liability for “the failure to provide, or the method of providing, police, law
enforcement or fire protection. . . .” (emphasis added)); see also Syl. Pt. 1, in part, Monongalia
Cnty. Comm’n v. Stewart, 251 W. Va. 442, 914 S.E.2d 677 (2024) (stating same); Edward S. v.
Raleigh Cnty. Hous. Auth., 248 W. Va. 458, 889 S.E.2d 31 (2023) (“West Virginia Code § 29-
12A-5(a)(1) to (17) (1986) . . . ‘lists seventeen specific types of acts or omissions covered by the
tort immunity available under the Act to a political subdivision.’”) (emphasis added).

In fact, Petitioner’s interpretation of the Governmental Tort Claims and Insurance Reform
Act, which would not permit fees to be shifted to political subdivisions, conflicts with other
provisions of our state code, such as Section 29B-1-7, which provides that any person who is
denied access to public records and who successfully brings a suit for enforcement “shall be
entitled to recover his or her attorney fees and court costs from the public body that denied him or
her access to the records.” W.Va. Code § 29B-1-7 (emphasis added). Political subdivisions are not
immune from assessment of attorneys’ fees in general. Further, the fee shifting in this case is not
related to a state law tort claim covered by the Governmental Tort Claims and Insurance Reform
Act.

Third, a RCRA citizen suit is not a prosecutorial function. By its own definitions, a RCRA
suit may be brought by “any person.” 42 U.S.C. § 6972(a). It is, thus, not a function of the office,
but rather something that the Commission, through the County Prosecuting Attorney, through a
private attorney deputized as an assistant prosecuting attorney, chose to initiate, as any citizen
could have done. Engaging in this voluntary litigation is not a prosecutorial function for which the
County will enjoy prosecutorial immunity.

Thus, because a finding of State-law immunity from a Federal claim would be violative of
the Supremacy Clause, because the Governmental Tort Claims and Immunities Act does not
immunize political subdivisions from awards of attorneys’ fees, and because initiating a RCRA
citizen suit is not a prosecutorial function, I would answer the certified question in the negative.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11330938. Public record. Not legal advice.