State of W.Va. ex rel. Vanderra Resources, LLC v. Hon. David W. Hummel, Jr., Chesapeake Appalachia, LLC and Kanawha Stone Company, Inc.

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

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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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