Aaron W. v. Evelyn W.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2024 Term FILED

_____________ November 12, 2024

released at 3:00 p.m.

No. 23-488 C. CASEY FORBES, CLERK

SUPREME COURT OF APPEALS

_____________ OF WEST VIRGINIA

Aaron W.,

Petitioner Below, Petitioner,

v.

Evelyn W.,

Respondent Below, Respondent.

________________________________________________

Appeal from the Intermediate Court of Appeals of West Virginia

No. 23-ICA-247

AFFIRMED

________________________________________________

Filed: November 12, 2024

Lonnie C. Simmons, Esq. Lyne Ranson, Esq.

DiPiero Simmons McGinley & Lyne Ranson Law Offices, PLLC

Bastress, PLLC Charleston, West Virginia

Charleston, West Virginia Attorney for the Respondent

Attorney for the Petitioner

JUSTICE BUNN delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. We apply a de novo standard of review to an order from the

Intermediate Court of Appeals of West Virginia granting a motion to dismiss an appeal.

2. “Where the issue on an appeal . . . is clearly a question of law or

involving an interpretation of a statute, we apply a de novo standard of review.” Syllabus

point 1, in part, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).

3. “A case is final only when it terminates the litigation between the

parties on the merits of the case and leaves nothing to be done but to enforce by execution

what has been determined.” Syllabus point 3, in part, James M.B. v. Carolyn M., 193

W. Va. 289, 456 S.E.2d 16 (1995).

4. “Where the language of a statute is clear and without ambiguity the

plain meaning is to be accepted without resorting to the rules of interpretation.” Syllabus

point 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968).

5. The Intermediate Court of Appeals of West Virginia has appellate

jurisdiction over “[f]inal judgments or orders of a family court, entered after June 30,

i

2022[.]” W. Va. Code § 51-11-4(b)(2). However, “final judgments or final orders issued

by a family court in any domestic violence proceeding pursuant to W. Va. Code § 48-27-1

et seq.” shall be first appealed to a circuit court. W. Va. Code § 51-11-4(b)(2).

6. The Intermediate Court of Appeals of West Virginia generally does

not have appellate jurisdiction over interlocutory appeals. W. Va. Code § 51-11-4(d)(8).

ii

BUNN, Justice:

Petitioner Aaron W.1 appeals the August 3, 2023 order of the Intermediate

Court of Appeals of West Virginia (“ICA”), which granted Respondent Evelyn W.’s

motion to dismiss Petitioner’s appeal of a May 1, 2023 order of the Family Court of

Kanawha County disqualifying Petitioner’s attorney in the family court proceeding. The

ICA concluded that the family court’s order was interlocutory and that it did not have

jurisdiction over interlocutory appeals. On appeal to this Court, Petitioner asks us to

determine which appellate court has jurisdiction over his appeal of an interlocutory family

court order. In addition, Petitioner requests that if we find that this Court has jurisdiction,

that we directly address his contention that the family court erred in disqualifying his

attorney. We agree with the ICA and affirm its dismissal of Petitioner’s appeal of the family

court’s order. We further decline to address the merits of whether the family court erred

below.2

1

Due to the sensitive nature of the facts involved in this case, we refer to the

parties by their last initials rather than their full last names. See, e.g., W. Va. R. App.

P. 40(e) (restricting use of personal identifiers in certain cases); In re I.M.K., 240 W. Va.

679, 682 n.1, 815 S.E.2d 490, 493 n.1 (2018); In re S.H., 237 W. Va. 626, 628 n.1, 789

S.E.2d 163, 165 n.1 (2016).

2

Petitioner contends that oral argument “would benefit the Court by

providing the opportunity to ask counsel questions regarding this unique set of facts and to

make sure that all of the facts relevant to the legal ethics issue raised are appreciated fully.”

On the contrary, Respondent argues that oral argument is unnecessary because “the

dispositive issues have been authoritatively decided, and the facts and legal arguments are

adequately presented in the briefs and/or the record on [a]ppeal.” Rule 21(a) of the West

Virginia Rules of Appellate Procedure provides that “[a]t any time after a case is mature

1

I.

FACTUAL AND PROCEDURAL HISTORY

This case originated in December 2017 as a divorce proceeding between the

parties. Attorney Charles Webb represented Petitioner, while Respondent represented

herself. Contemporaneous to the divorce proceeding, Mr. Webb represented both Petitioner

and Respondent in a personal injury civil action against the Kanawha County Board of

Education.3 On July 10, 2018, the family court entered its final divorce order equitably

distributing the parties’ property, which neither party appealed.

Following the final divorce order, Respondent obtained counsel and filed a

motion to disqualify Mr. Webb from representing Petitioner in the divorce proceeding

asserting that Mr. Webb had a conflict of interest in representing Petitioner in the divorce

for consideration, the . . . Supreme Court may issue a memorandum decision addressing

the merits of the case.” Furthermore, oral argument is not necessary when “the facts and

legal arguments are adequately presented in the briefs and record on appeal, and the

decisional process would not be significantly aided by oral argument.” See W. Va. R. App.

P. 18(a). We agree with Respondent that oral argument is unnecessary; however, we find

this case is not appropriate for resolution by memorandum decision due to the need to

clarify appellate jurisdiction over an interlocutory family court order. Consequently, “in

these very limited circumstances involving a purely legal question addressing” the proper

appellate jurisdiction of interlocutory orders, with adequately presented facts and legal

arguments, “we exercise our discretion to issue a signed opinion without oral argument.”

State v. Keefer, 247 W. Va. 384, 387, 880 S.E.2d 106, 109 (2022).

3

The parties dispute the extent of Mr. Webb’s knowledge of and involvement

in the personal injury suit. We make no determination in this opinion as to this issue.

2

proceeding because he represented both parties in the civil action.4 While the motion to

disqualify was pending, Petitioner filed a petition for writ of prohibition in the Circuit Court

of Kanawha County seeking to prevent the family court from ruling on the motion. He

argued that the family court lacked the jurisdictional authority to decide matters pertaining

to the disqualification of attorneys. The circuit court denied the writ of prohibition.

Petitioner then appealed the circuit court’s ruling to this Court. We held that a family court

has authority under West Virginia Code § 51-2A-7(a) to “disqualify a lawyer from a case

because the lawyer’s representation in the case presents a conflict of interest where the

conflict is such as to clearly call in question the fair or efficient administration of justice.”

Syl. pt. 4, in part, Aaron W. v. Montgomery, 244 W. Va. 583, 855 S.E.2d 891 (2021). This

Court affirmed the circuit court’s denial of extraordinary relief. Id. at 589, 855 S.E.2d at

897.

On remand, the family court held a hearing on the disqualification issue, and

by order filed on May 1, 2023, the family court disqualified Mr. Webb from representing

Petitioner in the divorce proceeding, yet strongly encouraged the parties to settle the

matter.5 The family court’s order included form language indicating that it was final and

4

Respondent also filed a motion to modify the family court’s July 10, 2018

final divorce order.

5

The parties also represent that several motions remain pending in the family

court in the underlying divorce proceeding, including a motion challenging the family

court’s jurisdiction to modify the final divorce order.

3

appealable. Petitioner then filed a notice of appeal with this Court stating that he was

appealing a final order of the family court pursuant to Rule 54(b) of the West Virginia

Rules of Civil Procedure.6 This Court did not docket the appeal, and by notice dated June

7, 2023, we informed Petitioner that he should instead file his notice of appeal with the

ICA. The notice allowed Petitioner ten days to correct the issue. That same day, Petitioner

refiled his notice of appeal with the ICA. Respondent moved to dismiss the appeal, which

the ICA ultimately granted. The ICA found that it lacked jurisdiction because the family

court’s order was interlocutory.7 This appeal followed.

II.

STANDARD OF REVIEW

This appeal involves the ICA’s dismissal of an appeal pursuant to Rule 31(a)

of the West Virginia Rules of Appellate Procedure8 for lack of an appealable order and

jurisdiction.

6

See note 11 below explaining that Rule 54(b) of the West Virginia Rules of

Civil Procedure permits a court to direct entry of a final judgment “as to one or more but

fewer than all” claims or parties when certain conditions are met.

7

The ICA’s order acknowledged this Court’s June 7, 2023 notice and found

that “this notice was not a definitive determination by the Supreme Court of Appeals on

the question of the finality of the family court’s order and [the ICA’s] jurisdiction over this

appeal, as this issue was not addressed in the notice.”

8

Rule 31(a) of the West Virginia Rules of Appellate Procedure allows a party

to a pending appeal to move the respective appellate court to dismiss the appeal on any of

4

This Court has previously held that “[a]ppellate review of a circuit court’s order granting

a motion to dismiss a complaint is de novo.” Syl. pt. 2, State ex rel. McGraw v. Scott

Runyan Pontiac–Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). We find that under

the circumstances presented here, this same standard applies to our review of the ICA’s

order granting a motion to dismiss an appeal. Therefore, we now hold that we apply a de

novo standard of review to an order from the Intermediate Court of Appeals of West

Virginia granting a motion to dismiss an appeal. Similarly, because our consideration of

this matter requires us to examine the statute establishing the scope of appellate

jurisdiction, we also consider these questions de novo: “Where the issue on an appeal . . . is

clearly a question of law or involving an interpretation of a statute, we apply a de novo

standard of review.” Syl. pt. 1, in part, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459

S.E.2d 415 (1995).

the following grounds: “(1) failure to properly perfect the appeal; (2) failure to obey an

order of the Intermediate Court or the Supreme Court; (3) failure to comply with these

rules; (4) lack of an appealable order, ruling, or judgment; or (5) lack of jurisdiction.”

5

III.

DISCUSSION

Petitioner asks this Court to determine whether the ICA correctly dismissed

his appeal for lack of jurisdiction.9 We must first determine whether the family court’s

order is a final order, and we find that it is not. This Court has explained that, “[g]enerally,

an order qualifies as a final order when it ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” Guido v. Guido, 202 W. Va. 198,

201, 503 S.E.2d 511, 514 (1998) (per curiam) (quotations and citation omitted). Accord

M.W. v. L.W., No. 14-0853, 2015 WL 3689104, at *2 (W. Va. June 15, 2015)

(memorandum decision). “To be appealable, therefore, an order either must be a final order

or an interlocutory order approximating a final order in its nature and effect.” Guido, 202

W. Va. at 202, 503 S.E.2d at 515. See also Coleman v. Sopher, 194 W. Va. 90, 94, 459

S.E.2d 367, 371 (1995) (stating that “[t]he usual prerequisite for . . . appellate jurisdiction

is a final judgment, final in respect that it ends the case”). In Syllabus point 3, in part, of

James M.B. v. Carolyn M., this Court addressed the issue of a final order as follows: “A

case is final only when it terminates the litigation between the parties on the merits of the

case and leaves nothing to be done but to enforce by execution what has been determined.”

9

Petitioner asserts a second assignment of error requesting this Court to

examine the correctness of the underlying family court’s order disqualifying his attorney.

However, we decline to address this second issue. The order on appeal to this Court is the

ICA’s order dismissing the appeal, not the underlying family court’s disqualification order.

Therefore, the second issue is not appropriately before this Court.

6

193 W. Va. 289, 456 S.E.2d 16 (1995). As we further explained, “[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[.]’” Id. at 292, 456 S.E.2d at 19

(second alteration in original) (quoting United States v. Hollywood Motor Car Co., Inc.,

458 U.S. 263, 265, 102 S. Ct. 3081, 73 L. Ed. 2d 754 (1982) (per curiam)). Therefore,

“appellate jurisdiction extends to those orders that are final in nature.” M.W. v. L.W., No.

14-0853, 2015 WL 3689104, at *3.10

The family court’s order here disqualifies Petitioner’s attorney in the

underlying divorce proceeding. This Court has previously concluded that such an order is

not a final appealable order. Norman T. v. Kerrie W., No. 14 0701, 2015 WL 1740387, at

*1 (W. Va. Apr. 13, 2015) (memorandum decision) (concluding that “[t]he order of

disqualification entered by the family court . . . was not a final order” and therefore, was

not appealable). Rather, this Court has held that “[a] party aggrieved by a lower court’s

decision on a motion to disqualify an attorney may properly challenge the lower court’s

decision by way of a petition for writ of prohibition.” Syl. pt. 1, State ex rel. Bluestone

Coal Corp. v. Mazzone, 226 W. Va. 148, 697 S.E.2d 740 (2010). See also Aaron W., 244

10

This Court has recognized that there are certain exceptions to the rule of

finality. See Adkins v. Capehart, 202 W. Va. 460, 463, 504 S.E.2d 923, 926 (1998) (per

curiam) (recognizing certified questions, Rule 54(b) judgment orders, and “collateral

order” doctrine as exceptions to rule of finality (footnotes omitted)). None of those

exceptions apply in this matter.

7

W. Va. at 586, 855 S.E.2d at 894 (“We previously have held that the proper method by

which to challenge a disqualification ruling is through a petition for writ of prohibition[.]”).

Petitioner contends, however, that while a family court’s disqualification

order is generally a non-appealable interlocutory order, the order at issue contains a notice

that it was a final, appealable order. Specifically, the order includes the following form

language at its conclusion:

NOTICE: This is a Final Order which any party may appeal to

the Intermediate Court of Appeals. Any appeal of this Order

must be filed in the West Virginia Supreme Court Clerk’s

Office. A party seeking to appeal this Order must do so within

30 days of entry of this Order by filing a Notice of Appeal as

set forth in the W. Va. Rules of Appellate Procedure. If both

parties file a notice of waiver and appeal to the W. Va.

Supreme Court within 14 days of entry of this Order, the partes

may appeal directly to the Supreme Court. If only one-party

[sic] timely files a notice of waiver and appeal to the Supreme

Court, that appeal will be treated as a petition for appeal to the

Intermediate Court of Appeals.

Considering this language, we still find Petitioner’s argument that the family court’s order

is a final, appealable order to be meritless.

Petitioner relies on Rule 22(c) of the West Virginia Rules of Practice and

Procedure for Family Court, which sets forth the notice requirements of a family court final

order:

A family court final order shall contain language explicitly

informing the parties (1) that it is a final order; (2) that any party

8

aggrieved by the final order may take an appeal either to the

intermediate court of appeals or directly to the supreme court of

appeals under West Virginia Code § 51-2A-15; (3) that an

appeal to the intermediate court of appeals may be filed by

either party within thirty days after entry of the final order; and

(4) that in order to appeal directly to the supreme court of

appeals, both parties must file, either jointly or separately,

within fourteen days after entry of the final order, a joint notice

of intent to appeal and waiver of right to appeal to the

intermediate court of appeals.

However, nothing in the explicit language of Rule 22 authorizes a family court judge to

certify an otherwise interlocutory order to be a final order. Rule 22 simply describes the

required contents of a family court final order.

Here, the family court’s disqualification order is not final in its nature or

effect. While the order includes the Rule 22(c) language regarding finality and detailing

appellate rights, the order does not “end[ ] the litigation on the merits and leave[ ] nothing

for the court to do[.]” Guido, 202 W. Va. at 201, 503 S.E.2d at 514 (quotations and citation

omitted). To the contrary, the family court’s order only disposes of the issue regarding

disqualification of Petitioner’s attorney and “strongly urge[s] the parties” to settle the

underlying matter. As represented by the parties, there are several pending issues in the

family court proceeding, including a motion to set aside the final divorce order and a

9

motion challenging the family court’s jurisdiction. The family court’s disqualification

order, therefore, is not a final order.11

11

To the extent that Petitioner also contends that Rule 54(b) of the West

Virginia Rules of Civil Procedure applies because of the family court’s use of the Rule 22

finality language, we are not persuaded. Rule 54(b) of the West Virginia Rules of Civil

Procedure provides that

[w]hen more than one claim for relief is presented in an action,

whether as a claim, counterclaim, cross-claim, or third-party

claim, or when multiple parties are involved, the court may

direct the entry of a final judgment as to one or more but fewer

than all of the claims or parties only upon an express

determination that there is no just reason for delay and upon an

express direction for the entry of judgment. In the absence of

such determination and direction, any order or other form of

decision, however designated, which adjudicates fewer than all

the claims or the rights and liabilities of fewer than all the

parties shall not terminate the action as to any of the claims or

parties, and the order or other form of decision is subject to

revision at any time before the entry of judgment adjudicating

all the claims and the rights and liabilities of all the parties.

As we have explained, pursuant to “[R]ule 54(b), an order may be final prior to the ending

of the entire litigation on its merits if the order resolves the litigation as to a claim or a

party.” Durm v. Heck’s, Inc., 184 W. Va. 562, 566, 401 S.E.2d 908, 912 (1991).

Additionally, this Rule only operates in cases where there are multiple claims or parties.

See C & O Motors, Inc. v. W. Va. Paving, Inc., 223 W. Va. 469, 477, 677 S.E.2d 905, 913

(2009) (“Consequently, in an action that has only one claim against the defendant, an order

granting partial summary judgment on liability against that defendant is not certifiable for

appeal under Rule 54(b).” (footnote omitted)). Here, the order does not fully resolve the

litigation regarding any single claim or a single party. Accordingly, Rule 54(b) is not

applicable.

10

Because we find that the family court’s disqualification order was not final,

we must next consider whether the ICA had jurisdiction over the appeal. The Legislature

recently enacted the West Virginia Appellate Reorganization Act of 2021, which sets forth

the appellate jurisdiction of the newly created ICA. See generally W. Va. Code § 51-11-4

(eff. 2022).12 West Virginia Code § 51-11-4(b)(2) provides that “[u]nless specifically

provided otherwise in this article,” the ICA has appellate jurisdiction over

“[f]inal judgments or orders of a family court, entered after

June 30, 2022, except for final judgments or final orders issued

by a family court in any domestic violence proceeding pursuant

to W. Va. Code § 48-27-1 et seq. of this code, which appeals

shall first be made to a circuit court[.]”13

(Footnote added). On the other hand, West Virginia Code § 51-11-4(d)(8) states that the

ICA “does not have appellate jurisdiction over . . . [i]nterlocutory appeals[.]” However, the

Legislature created a limited exception to § 51-11-4(d)(8)’s general prohibition, and, in

West Virginia Code § 48-9-203(f), provides the ICA with limited appellate jurisdiction

over certain temporary child custodial allocation orders. See W. Va. Code § 48-9-203(f).

This exception is not applicable in this matter.

12

The Legislature subsequently amended certain provisions of West Virginia

Code § 51-11-4, effective June 6, 2024. Those amendments do not affect the outcome of

this matter.

13

The domestic violence final order exception does not apply here.

11

This Court has held that “[w]here the language of a statute is clear and

without ambiguity the plain meaning is to be accepted without resorting to the rules of

interpretation.” Syl. pt. 2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968); see also

State v. Scruggs, 242 W. Va. 499, 502, 836 S.E.2d 466, 469 (2019) (“‘[W]e look first to

the statute’s language. If the text, given its plain meaning, answers the interpretive

question, the language must prevail and further inquiry is foreclosed.’ Appalachian Power

Co. v. State Tax Dep’t of W. Va., 195 W. Va. 573, 587, 466 S.E.2d 424, 438 (1995).”). The

relevant statutory language is not vague or ambiguous. Therefore, we apply the statute’s

plain language as written without interpretation and now hold that the Intermediate Court

of Appeals of West Virginia has appellate jurisdiction over “[f]inal judgments or orders of

a family court, entered after June 30, 2022[.]” W. Va. Code § 51-11-4(b)(2). However,

“final judgments or final orders issued by a family court in any domestic violence

proceeding pursuant to W. Va. Code § 48-27-1 et seq.” shall be first appealed to a circuit

court. W. Va. Code § 51-11-4(b)(2). We further hold that the Intermediate Court of Appeals

of West Virginia generally does not have appellate jurisdiction over interlocutory appeals.

W. Va. Code § 51-11-4(d)(8). Applying these holdings to the facts of the matter before us,

we conclude that the ICA correctly determined that it did not have appellate jurisdiction

over the family court’s interlocutory disqualification order.

12

IV.

CONCLUSION

For the reasons explained above, we affirm the August 3, 2023 order of the

ICA, dismissing Petitioner’s appeal of the family court’s order as an improper appeal from

an interlocutory order.

Affirmed.

13