State of W.Va. ex rel. Vanderra Resources, LLC v. Hon. David W. Hummel, Jr., Chesapeake Appalachia, LLC and Kanawha Stone Company, Inc. , 829 S.E.2d 35 ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
_______________ FILED
June 3, 2019
No. 18-1072 released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
_______________ SUPREME COURT OF APPEALS
OF WEST VIRGINIA
STATE OF WEST VIRGINIA ex rel. VANDERRA RESOURCES, LLC,
Petitioner
v.
THE HONORABLE DAVID W. HUMMEL, JR., Judge of the Circuit Court
of Marshall County, West Virginia; CHESAPEAKE APPALACHIA, LLC;
and KANAWHA STONE COMPANY, INC.,
Respondents
____________________________________________________________
ORIGINAL PROCEEDING IN PROHIBITION
WRITS DENIED
____________________________________________________________
Submitted: April 23, 2019
Filed: June 3, 2019
Avrum Levicoff, Esq. Jeffrey V. Mehalic, Esq.
Edward I. Levicoff, Esq. Law Offices of Jeffrey V. Mehalic
The Levicoff Law Firm, P.C. Morgantown, West Virginia
Pittsburgh, Pennsylvania Counsel for the Respondent, Chesapeake
Counsel for the Petitioner Appalachia, L.L.C.
John H. Tinney, Jr., Esq.
John K. Cecil, Esq.
Hendrickson & Long, PLLC
Charleston, West Virginia
Michael P. Markins, Esq.
Cipriani & Werner, PC
Charleston, West Virginia
Counsel for Respondent, Kanawha Stone
Company, Inc.
CHIEF JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” Syllabus
Point 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425 (1977).
2. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction but only where it is claimed that the lower
tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether
the party seeking the writ has no other adequate means, such as direct appeal, to obtain the
desired relief; (2) whether the petitioner will be damaged or prejudiced in a way that is not
correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous as a matter
of law; (4) whether the lower tribunal’s order is an oft repeated error or manifests persistent
disregard for either procedural or substantive law; and (5) whether the lower tribunal’s
order raises new and important problems or issues of law of first impression. These factors
are general guidelines that serve as a useful starting point for determining whether a
discretionary writ of prohibition should issue. Although all five factors need not be
satisfied, it is clear that the third factor, the existence of clear error as a matter of law,
should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger, 199
W.Va. 12, 483 S.E.2d 12 (1997).
i
3. “‘Before this Court may properly issue a writ of mandamus three elements
must coexist: (1) the existence of a clear right in the petitioner to the relief sought; (2) the
existence of a legal duty on the part of the respondent to do the thing the petitioner seeks
to compel; and (3) the absence of another adequate remedy at law.’ Syl. Pt. 3, Cooper v.
Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981).” Syllabus Point 1, State ex rel. Cooper v.
Tennant, 229 W.Va. 585, 730 S.E.2d 368 (2012).
4. “Although our standard of review for summary judgment remains de
novo, a circuit court’s order granting summary judgment must set out factual findings
sufficient to permit meaningful appellate review. Findings of fact, by necessity, include
those facts which the circuit court finds relevant, determinative of the issues and
undisputed.” Syllabus Point 3, Fayette County Nat. Bank v. Lilly, 199 W.Va. 349, 484
S.E.2d 232 (1997).
5. “A circuit court’s order denying summary judgment on qualified
immunity grounds on the basis of disputed issues of material fact must contain sufficient
detail to permit meaningful appellate review. In particular, the court must identify those
material facts which are disputed by competent evidence and must provide a description of
the competing evidence or inferences therefrom giving rise to the dispute which preclude
summary disposition.” Syllabus Point 4, W. Va. Dep’t of Health and Human Resources v.
Payne, 231 W. Va. 563, 746 S.E.2d 554 (2013).
ii
6. “A circuit court’s denial of summary judgment that is predicated on
qualified immunity is an interlocutory ruling which is subject to immediate appeal under
the ‘collateral order’ doctrine.” Syllabus Point 2, Robinson v. Pack, 223 W. Va. 828, 679
S.E.2d 660 (2009).
7. “An order denying a motion for summary judgment is merely
interlocutory, leaves the case pending for trial, and is not appealable except in special
instances in which an interlocutory order is appealable.” Syllabus Point 8, Aetna Casualty
and Surety Company v. Federal Insurance Company of New York, 148 W. Va. 160, 133
S.E.2d 770 (1963).
8. “A party seeking to petition this Court for an extraordinary writ based
upon a non-appealable interlocutory decision of a trial court, must request the trial court
set out in an order findings of fact and conclusions of law that support and form the basis
of its decision. In making the request to the trial court, counsel must inform the trial court
specifically that the request is being made because counsel intends to seek an extraordinary
writ to challenge the court’s ruling. When such a request is made, trial courts are obligated
to enter an order containing findings of fact and conclusions of law. Absent a request by
the complaining party, a trial court is under no duty to set out findings of fact and
iii
conclusions of law in non-appealable interlocutory orders.” Syllabus Point 6, State ex rel.
Allstate v. Gaughan, 203 W.Va. 358, 508 S.E.2d 75 (1998).
iv
WALKER, Chief Justice:
Chesapeake Appalachia, LLC (Chesapeake) hired Vanderra Resources, LLC
(Vanderra) to implement a stabilization plan after landslides occurred during the
construction of one of Chesapeake’s shale drill pads in Marshall County, West Virginia.
Eventually, after additional landslides occurred, Chesapeake sued Vanderra and several
other companies to recover its costs incurred in repairing the drill pad. Vanderra’s motion
for summary judgment was denied on the basis that genuine issues of material fact exist.
In this action for writ of prohibition, or alternatively mandamus, Vanderra contends that
the circuit court’s order was clearly erroneous and an abuse of the court’s power because
it lacked any factual or evidentiary findings. Because the circuit court’s denial of summary
judgment was an interlocutory ruling, we find no error and deny Vanderra’s request for
extraordinary relief.
I. FACTUAL AND PROCEDURAL BACKGROUND
Vanderra is a reclamation contractor hired in August 2011 by Chesapeake to
implement a stabilization plan at one of Chesapeake’s Marcellus shale drill pads located in
Marshall County, West Virginia. Respondent Kelly Surveying surveyed the site, plotted
the natural gas drill pad, and prepared drawings. Respondent Kanawha Stone was hired to
construct the drill pad in accordance with Kelly’s Surveying’s design. Vanderra claims it
worked according to a plan prepared by GAI Consultants. While Vanderra implemented
the plan, additional earth movement and landslides occurred. Chesapeake then hired a new
geotechnical engineering consultant, AMEC Environmental & Infrastructure (AMEC), to
1
draft a new stabilization plan. AMEC prepared a plan and subcontracted its own
reclamation contractor, Vecellio & Grogan, to implement it. So, Vanderra left the project
in December 2011.1 Slope stabilization continued for the next nine months, during which
more earth movement occurred. Remediation work ended at the site in September 2012.
In February 2013, Chesapeake filed suit against Vanderra, Kanawha Stone,
Kelly Surveying and five unnamed “John Does” to recover its costs incurred in repairing
the collapsed drill pad following the landslides. Chesapeake hired geotechnical
engineering expert Christopher Grose of Potesta Engineers and Environmental Consultants
to determine the cause of the landslide activity. On November 19, 2014, Mr. Grose issued
his expert report setting out a chronology of the landslides, the resulting damages, and his
conclusions regarding the contributing factors causing the landslides. Vanderra claims that
Mr. Grose’s report fails to show that its actions or omissions caused or contributed to the
landslides, that it defaulted on its contractual obligations, or that its conduct fell below any
applicable standard of care. Rather, according to Vanderra, Mr. Grose’s report focuses on
the activities of other parties.
1
Vanderra filed for bankruptcy in September 2012 and accordingly, this litigation
was stayed under 11 U.S.C. § 362. By a stipulated order, the bankruptcy stay was modified
to the extent of Vanderra’s applicable liability insurance proceeds.
2
Following extensive discovery, Vanderra and other parties filed motions for
summary judgment.2 Following oral argument, the circuit court directed the parties to
submit proposed findings of fact and conclusions of law. In its brief order denying
summary judgment, the circuit court recited the applicable standards for granting summary
judgment under Rule 56 of the West Virginia Rules of Civil Procedure and found that none
of the parties had met that standard. Rejecting the proposed orders submitted by the parties,
the court stated that “the proposed orders submitted on behalf of all parties respectfully go
too far as to what the parties would have the Court rule regarding proposed findings of fact.
Accordingly, the Court declines to accept and enter any of the submitted proposed orders.”
The circuit court determined that genuine issues of material fact exist as to each of
Chesapeake’s causes of action.
II. STANDARD OF REVIEW
Vanderra asserts that the circuit court’s order is clearly erroneous as a matter
of law and thus constitutes an abuse of the trial court’s power. But we have clearly stated
that extraordinary remedies are reserved for “really extraordinary causes.”3 As we have
explained, “a writ of prohibition will not issue to prevent a simple abuse of discretion by a
2
Defendants Vanderra, Kelly Surveying and Kanawha Stone each filed motions for
summary judgment. Plaintiff Chesapeake filed a cross-motion for partial summary
judgment against all defendants.
3
Am. El. Power Co. v. Nibert, 237 W. Va. 14, 19, 784 S.E.2d 713, 718 (2016) (citing
State ex rel. Suriano v. Gaughan, 198 W.Va. 339, 345, 480 S.E.2d 548, 554 (1996) (internal
quotations and citations omitted).
3
trial court. It will only issue where the trial court has no jurisdiction or having such
jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.”4 And, they are not
available in routine circumstances. Rather,
this Court will use prohibition . . . to correct only substantial,
clear-cut, legal errors plainly in contravention of a clear
statutory, constitutional, or common law mandate which may
be resolved independently of any disputed facts and only in
cases where there is a high probability that the trial will be
completely reversed if the error is not corrected in advance.[5]
With that background, we examine the following factors when considering a
writ of prohibition:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
4
Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W.Va. 314, 233 S.E.2d 425
(1977). See also Syl. Pt. 1, Crawford v. Taylor, 138 W.Va. 207, 75 S.E.2d 370 (1953)
(“Prohibition lies only to restrain inferior courts from proceeding in causes over which they
have no jurisdiction, or, in which, having jurisdiction, they are exceeding their legitimate
powers and may not be used as a substitute for writ of error, appeal or certiorari.”).
5
Syl. Pt. 1, in part, Hinkle v. Black, 164 W.Va. 112, 262 S.E.2d 744 (1979),
superseded by statute on other grounds as stated in State ex rel. Thornhill Grp., Inc. v.
King, 233 W.Va. 564, 759 S.E.2d 795 (2014).
4
impression. These factors are general guidelines that serve as a
useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
clear error as a matter of law, should be given substantial
weight.[6]
Vanderra alternatively seeks a writ of mandamus, asserting that the circuit
court disregarded its clear-cut obligation to set forth factual findings and legal analysis to
provide a basis for its ruling. In determining whether to issue a writ of mandamus, we have
stated:
Before this Court may properly issue a writ of mandamus three
elements must coexist: (1) the existence of a clear right in the
petitioner to the relief sought; (2) the existence of a legal duty
on the part of the respondent to do the thing the petitioner seeks
to compel; and (3) the absence of another adequate remedy at
law.[7]
Mindful of these standards, we proceed to consider the parties’ arguments.
III. ANALYSIS
Vanderra seeks an extraordinary writ to set aside the circuit court’s order
denying summary judgment because the circuit court should have included factual and
evidentiary findings sufficient to elucidate to both the parties and the reviewing court the
basis for its ruling. It also maintains that the evidence did not present any genuine issues
6
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (1997).
7
Syl. Pt. 1, State ex rel. Cooper v. Tennant, 229 W.Va. 585, 730 S.E.2d 368 (2012)
(quoting Syl. Pt. 3, Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981)).
5
of fact warranting trial, and that there is no applicable insurance coverage for Chesapeake’s
claims against it. We will first address its argument regarding the sufficiency of the circuit
court’s findings.
Vanderra contends that whether a circuit court grants or denies a motion for
summary judgment, it must set out factual findings sufficient to elucidate to both the parties
and the reviewing court the basis for its ruling. It asserts that the circuit court’s order in
this case departs from this Court’s jurisprudence regarding the required content of
summary judgment orders, as set forth in Fayette County National Bank v. Lilly8 and West
Virginia Department of Health and Human Resources v. Payne.9 In response, Chesapeake
distinguishes the cases cited by Vanderra and asserts that neither factual nor evidentiary
findings were required under this Court’s precedent. It contends that the relief sought here
is not warranted because the order denying motions for summary judgment was
interlocutory and thus, appellate review is improper at this stage of the proceeding.
Rule 52(a) of the West Virginia Rules of Civil Procedure states that
“[f]indings of fact and conclusions of law are unnecessary on decisions of motions under
Rules 12 or 56 or any other motion except as provided in subdivision (c) of this rule.”
8
199 W. Va. 349, 484 S.E.2d 232 (1997).
9
231 W. Va. 563, 746 S.E.2d 554 (2013). Respondent Kanawha Stone filed a
summary response concurring with Vanderra’s arguments on this issue.
6
However, “[t]his Court qualified Rule 52(a) with respect to Rule 56 summary judgment
orders in syllabus point 3 of Fayette County Nat. Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d
232 (1997)[.]”10 In Lilly, reviewing a lower court’s grant of summary judgment bereft of
findings necessary to permit meaningful appellate review, this Court held:
Although our standard of review for summary judgment
remains de novo, a circuit court’s order granting summary
judgment must set out factual findings sufficient to permit
meaningful appellate review. Findings of fact, by necessity,
include those facts which the circuit court finds relevant,
determinative of the issues and undisputed.[11]
In assessing the adequacy of the circuit court’s order granting summary
judgment in Lilly, we acknowledged that “[t]he requirement for findings of fact and
conclusions of law ‘[i]n all actions tried upon the facts without a jury . . .’ under Rule 52(a)
of the West Virginia Rules of Civil Procedure, does not apply to motions made under Rule
56.”12 Although we previously indicated that “it would be totally improper for the trial
court to make findings of fact in connection with granting a summary judgment, as the very
nature of summary judgment is that there is no genuine issue of material fact, entitling the
moving party to judgment as a matter of law,”13 we explained in Lilly that Justice Cleckley
10
State ex rel. Allstate v. Gaughan, 203 W.Va. 358, 366, 508 S.E.2d 75, 83 (1998).
11
Lilly at Syl. Pt. 3 (emphasis added).
12
Id. at 353, 484 S.E.2d at 236 (quoting Bauer Enterprises, Inc. v. Frye, 181 W.Va.
234, 237, 382 S.E.2d 71, 74 (1989)).
13
Chapple v. Fairmont General Hosp., Inc., 181 W. Va. 755, 762, 384 S.E.2d 366,
373 (1989).
7
nonetheless appropriately qualified this area in Gentry v. Mangum,14 where we said that
“on summary judgment, a circuit court must make factual findings sufficient to permit
meaningful appellate review.”15 We therefore narrowly departed from the pronouncement
in Rule 52(a) on findings of fact and conclusions of law with respect to grants of summary
judgment.16 In doing so, we stated:
We are fully cognizant that a majority of jurisdictions do not
require trial courts to set out findings in orders granting
summary judgment. It was said by the court in Owens v. Rado,
659 So. 2d 87, 92 (Ala.1995) that “a court should not enter a
summary judgment if, to enter a judgment, the court must make
findings of fact.” The position taken in Owens is consistent
with the majority approach to this issue. We believe this
approach is grounded in blind adherence to fictional legal
form, that sacrifices concrete legal substance. Requiring that
meaningful findings be set out in orders granting summary
judgment does not somehow transform circuit court’s [sic] into
triers of fact—engaging in weighing and credibility
determinations that are prerequisites for disputed jury facts. In
reviewing a circuit court’s order granting summary judgment
this Court, like all reviewing courts, engages in the same type
of analysis as the circuit court. That is “‘we apply the same
standard as a circuit court,’ reviewing all facts and reasonable
inferences in the light most favorable to the nonmoving
party.”[17]
14
195 W.Va. 512, 466 S.E.2d 171 (1995).
15
Id. at 521, 466 S.E.2d at 180.
16
Lilly, 199 W. Va. at 353, 484 S.E.2d at 236.
17
Id. at 353, n.8, 484 S.E.2d at 236, n.8 (quoting Powderidge Unit Owners Ass’n v.
Highland Properties, Ltd., 196 W.Va. 692, 698, 474 S.E.2d 872, 878 (1996) (internal
citations omitted)).
8
In crafting this requirement for orders granting summary judgment, we also explained that
meaningful findings are necessary:
Of course, we are not requiring circuit courts to render the
elaborate findings that are the standard for this Court’s
opinions; but, we are requiring meaningful findings that will
guide our review of decisions granting summary judgment.
The circuit court’s order must provide clear notice to all parties
and the reviewing court as to the rationale applied in granting
or denying summary judgment. “To be clear, being explicit
about its reasoning not only assists the hearing tribunal in
analyzing legal claims and the equities of the situation, but also
facilitates appellate review.”[18]
Subsequently, in West Virginia Department of Health and Human Resources
v. Payne,19 which involved a circuit court’s denial of summary judgment based on a
qualified immunity defense, we held:
A circuit court’s order denying summary judgment on
qualified immunity grounds on the basis of disputed issues of
material fact must contain sufficient detail to permit
meaningful appellate review. In particular, the court must
identify those material facts which are disputed by competent
evidence and must provide a description of the competing
evidence or inferences therefrom giving rise to the dispute
which preclude summary disposition.[20]
In reaching this holding, this Court stated, in dicta,
18
Id. (quoting Province v. Province, 196 W.Va. 473, 483, 473 S.E.2d 894, 904
(1996)).
19
231 W. Va. 563, 746 S.E.2d 554.
20
Id. at Syl. Pt. 4 (emphasis added).
9
both the holding [in Syllabus Point 3 of Lilly] and our cases
discussing it make clear that a lower court’s factual findings
when ruling on summary judgment—whether denying or
granting—must be sufficient to elucidate to this Court the basis
for its ruling. In fact, in Lilly, this Court stated that “the circuit
court’s order must provide clear notice to all parties and the
reviewing court as to the rationale applied in granting or
denying summary judgment.”[21]
Despite the clear language in Syllabus Point 4 of Payne limiting the
requirement for detailed findings to denials of summary judgment on qualified immunity
grounds, Vanderra points to the dicta in Payne and in Lilly to argue that circuit courts are
required to provide such findings in all orders denying summary judgment. Admittedly,
the dicta in these cases unnecessarily confuses the issue. However, we have made it clear
that the language utilized in our syllabus points, rather than our dicta, is controlling. As
we have repeatedly stated, “. . . [n]ew points of law . . . will be articulated through syllabus
points as required by our state constitution.”22 Thus, if this Court were to create such a
requirement, it would do so in a syllabus point and not in dicta. This language should
21
Id. at 569, 746 S.E.2d at 560 (quoting Lilly, 199 W.Va. at 354, 484 S.E.2d at 237
(emphasis added)).
22
Syl. Pt. 2, in part, Walker v. Doe, 210 W.Va. 490, 558 S.E.2d 290 (2001),
overruled on other grounds by State v. McKinley, 234 W.Va. 143, 764 S.E.2d 303 (2014);
see also Wolfe v. Adkins, 229 W.Va. 31, 40, 725 S.E.2d 200, 209 (Davis, J. concurring, in
part, and dissenting, in part) (“The adoption of a new syllabus point correspondingly
presupposes that the subject case also presents a new factual predicate that the Court has
not previously had occasion to consider and that the new syllabus point is necessary to
explain how the law applies to the fact pattern then before the Court.”).
10
therefore be considered obiter dicta which, by definition, is language “unnecessary to the
decision in the case and therefore not precedential.”23
Syllabus Point 3 of Lilly specifically addressed orders granting summary
judgment. And, importantly, Payne was properly reviewable by this Court because under
Robinson v. Pack,24 “[a] circuit court’s denial of summary judgment that is predicated on
qualified immunity is an interlocutory ruling which is subject to immediate appeal under
the ‘collateral order’ doctrine.”25 In Pack, we addressed the narrow issue of whether a trial
court’s denial of qualified immunity is subject to immediate appeal. In determining that a
ruling on the availability of qualified immunity fell within a narrow category of orders that
are subject to permissible interlocutory appeal due to the need for early resolution of
immunity rulings, we acknowledged:
Objections to allowing an appeal from an interlocutory order
are typically rooted in the need for finality. The provisions of
West Virginia Code § 58-5-1 (2005) establish that appeals may
be taken in civil actions from “a final judgment of any circuit
23
Black’s Law Dictionary 1100 (10th Ed.). See also State ex rel. Medical Assurance
v. Recht, 213 W.Va. 457, 471, 583 S.E.2d 80, 94 (2003) (“language in a footnote generally
should be considered obiter dicta which, by definition, is language ‘unnecessary to the
decision in the case and therefore not precedential.’”); Estate of Tawney v. Columbia
Natural Resources, L.L.C., 219 W.Va. 266, 273, 633 S.E.2d 22, 29 (2006)(“when new
points of law are announced . . . those points will be articulated through syllabus points as
required by our state constitution.” Syllabus Point 2, in part, Walker v. Doe, 210 W.Va.
490, 558 S.E.2d 290 (2001). The comments relied upon by CNR are dicta insofar as they
are not necessary to our decision in Wellman.”)
24
223 W. Va. 828, 679 S.E.2d 660 (2009).
25
Pack at Syl. Pt. 2.
11
court or from an order of any circuit court constituting a final
judgment.” Id. Justice Cleckley elucidated in James M.B. v.
Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995), that “[t]his
rule, commonly referred to as the ‘rule of finality,’ is designed
to prohibit ‘piecemeal appellate review of trial court decisions
which do not terminate the litigation[.]’” 193 W.Va. at 292,
456 S.E.2d at 19 (quoting U.S. v. Hollywood Motor Car Co.,
458 U.S. 263, 265, 102 S. Ct. 3081, 73 L. Ed. 2d 754 (1982)).
Exceptions to the rule of finality include “interlocutory orders
which are made appealable by statute or by the West Virginia
Rules of Civil Procedure, or . . . [which] fall within a
jurisprudential exception” such as the “collateral order”
doctrine. James M.B., 193 W.Va. at 292–93, 456 S.E.2d at 19–
20; accord Adkins v. Capehart, 202 W.Va. 460, 463, 504
S.E.2d 923, 926 (1998) (recognizing prohibition matters,
certified questions, Rule 54(b) judgment orders, and “collateral
order” doctrine as exceptions to rule of finality).[26]
Thus, because Payne involved an interlocutory ruling subject to immediate appeal, we
necessarily required these specific types of orders, as we did in Lilly, to contain sufficient
detail to permit meaningful appellate review.27 To the extent that the dicta in Payne and
Lilly confuses the issue of whether findings are necessary in an interlocutory denial of
summary judgment, we take this opportunity to make it clear that under Rule 52(a) of the
West Virginia Rules of Civil Procedure, they are not.
26
Id. at 832, 679 S.E.2d 660 (footnote omitted).
27
We subsequently extended our holding in Lilly to require such findings in cases
involving grants of partial summary judgment. See Syl. Pt. 4, Toth v. Board of Parks and
Recreation Com’rs, 215 W. Va. 51, 593 S.E.2d 576 (2003). Likewise, we have stated that
where “the order denying one party’s motion for summary judgment simultaneously grants
summary judgment to another party, such an order is final and appealable.” Findley v. State
Farm Mut. Auto. Ins. Co., 213 W. Va. 80, 100, 576 S.E.2d 807, 827 (2002).
12
In this case, the order denying summary judgment does not fall within the
narrow category of orders discussed above. Rather, because it is not predicated on any
application of qualified immunity, and it is not immediately appealable, it is merely
interlocutory in nature. As we clearly stated in Syllabus Point 8 of Aetna Casualty and
Surety Company v. Federal Insurance Company of New York, “[a]n order denying a motion
for summary judgment is merely interlocutory, leaves the case pending for trial, and is not
appealable except in special instances in which an interlocutory order is appealable.”28
And, we recognized in State ex rel. Allstate Insurance Company v. Gaughan, that as a
general rule, a trial court is under no duty to make findings on an interlocutory order.29
For these reasons, detailed findings of fact accompanying the denial of summary judgment
in this case were not required and the circuit court has not exceeded its legitimate powers.
We recognized in Gaughan that Rule 52(a) posed problems when litigants
filed extraordinary writs to challenge a trial court’s interlocutory order, so we determined
that “the general rationale for requiring findings be set out in appealable interlocutory
orders, supports a requirement that findings be clearly set forth in non-appealable
28
148 W. Va. 160, 133 S.E.2d 770 (1963). See also Syl., Wilfong v. Wilfong, 156
W.Va. 754, 197 S.E.2d 96 (1973) (“The entry of an order denying a motion for summary
judgment made at the close of the pleadings and before trial is merely interlocutory and not
then appealable to this Court.”).
29
203 W. Va. at 367, 508 S.E.2d at 84.
13
interlocutory orders presented to this Court through extraordinary writs.”30 Addressing this
circumstance, we held in Syllabus Point 6 that:
A party seeking to petition this Court for an extraordinary writ
based upon a non-appealable interlocutory decision of a trial
court, must request the trial court set out in an order findings
of fact and conclusions of law that support and form the basis
of its decision. In making the request to the trial court, counsel
must inform the trial court specifically that the request is being
made because counsel intends to seek an extraordinary writ to
challenge the court’s ruling. When such a request is made, trial
courts are obligated to enter an order containing findings of fact
and conclusions of law. Absent a request by the complaining
party, a trial court is under no duty to set out findings of fact
and conclusions of law in non-appealable interlocutory
orders.[31]
The underlying policy concern of Gaughan was that trial courts should not
be forced to routinely set out detailed findings in interlocutory orders because this
requirement would be “unduly burdensome and a waste of valuable judicial time.”32 To
avoid imposing this burden on trial courts, “Gaughan crafted a solution that would require
interlocutory orders set out detailed findings only when a party intended to challenge that
order by filing a petition with this Court for an extraordinary writ.”33
30
Id. at 368, 508 S.E.2d at 85.
31
Id. at Syl. Pt. 6.
32
See State ex rel. State of W. Va. Dep’t of Transp., Div. of Highways v. Cookman,
219 W. Va. 601, 618, 639 S.E.2d 693, 710 (2006) (Davis, C.J., dissenting.)
33
Id.
14
Applying these principles in this case, Vanderra should have informed the
circuit court in advance that it intended to file a petition for a writ with this Court and
requested a detailed order. Only at that point would the circuit court have been obligated
to make such findings. Absent Vanderra’s request, the circuit court was under no duty to
set out these findings in its order denying summary judgment. Because this Court does not
have an order before it containing detailed findings explaining the facts and evidence on
which the circuit court based its ruling on the substantive issues Vanderra now argues, we
have no means to ascertain the rationale underlying its denial of summary judgment and
determine whether the factors for issuing an extraordinary writ have been met. For these
reasons, we conclude that the rule to show cause was improvidently granted and the
requested alternative writs are denied.34
34
Nothing in this Opinion prevents Vanderra from requesting that the circuit court
enter an interlocutory order under Gaughan. However, we remind the parties that a writ
of prohibition is an extraordinary remedy to be utilized in extremely limited instances. “It
is well established that prohibition does not lie to correct mere errors and cannot be allowed
to usurp the functions of appeal, writ of error, or certiorari. . . .” Handley v. Cook, 162
W.Va. 629, 631, 252 S.E.2d 147, 148 (1979) (citations omitted). Thus, Vanderra’s
allegations must amount to more than ordinary legal errors, which we typically review by
way of appeal, and not in the context of prohibition proceedings. See also Syl. Pt. 3, in
part, State ex rel. Hoover v. Berger, 199 W.Va. 12, 483 S.E.2d 12 (“Prohibition . . . may
not be used as a substitute for [a petition for appeal] or certiorari.” (internal quotations and
citation omitted)); State ex rel. Maynard v. Bronson, 167 W.Va. 35, 41, 277 S.E.2d 718,
722 (1981) (“[P]rohibition cannot be substituted for a writ of error or appeal unless a writ
of error or appeal would be an inadequate remedy.” (citations omitted)); State ex rel. Casey
v. Wood, 156 W.Va. 329, 334–35, 193 S.E.2d 143, 146 (1972) (same); Fisher v. Bouchelle,
134 W.Va. 333, 335, 61 S.E.2d 305, 306 (1950) (same); County Court v. Boreman, 34 W.
Va. 362, 366, 12 S.E. 490, 492 (1890) (A writ “does not lie for errors or grievances which
15
IV. CONCLUSION
We find nothing in the record to show that the circuit court exceeded its
legitimate powers when it issued its July 30, 2018 order denying summary judgment.
Accordingly, the requested alternative writs of prohibition and mandamus are denied.
Writs denied.
may be redressed in the ordinary course of judicial proceedings, by appeal or writ of
error.”).
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