Bowers v. Wurzburg

• Decision Date: 09 July 1999
• Docket Number: No. 25842.,25842.
• Citation: 205 W.Va. 450,519 S.E.2d 148
• Court: West Virginia Supreme Court
• Parties: Marvin T. BOWERS, et al., Plaintiffs Below, Appellants, v. Gretchen WURZBURG, the Southland Corporation, et al., Defendants Below, Appellees.

519 S.E.2d 148

205 W.Va. 450

Marvin T. BOWERS, et al., Plaintiffs Below, Appellants, v. Gretchen WURZBURG, the Southland Corporation, et al., Defendants Below, Appellees.

No. 25842.

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1999.

Decided July 9, 1999.

Paul G. Taylor, Martinsburg, West Virginia, Attorney for the Appellants.

Charles F. Printz, Jr., Bowles Rice McDavid Graff & Love, PLLC, Martinsburg, West Virginia, Lester Sotsky, L. Elizabeth Bowles, Arnold & Porter, Washington, District of Columbia, Attorneys for the Appellees.

DAVIS, Justice:

The appellants herein and plaintiffs below, Marvin T. Bowers, Bessie C. Bowers, Esta M. Bell, and John R. Bell [hereinafter collectively referred to as "the Bowerses"], appeal the June 10, 1998, order of the Circuit Court of Jefferson County dismissing their claims against the appellees herein and defendants below, Ito-Yokado Co., Ltd. [hereinafter referred to as "Ito"], Seven Eleven Japan Co., Ltd. [hereinafter referred to as "SEJ"], and IYG Holding Company [hereinafter referred to as "IYG"], on the basis of improper service of process. In addition, the Bowerses appeal the circuit court's July 30, 1998, order wherein it denied the Bowerses' motion to alter or amend judgment and upheld its earlier decision. Having reviewed the parties' arguments, the designated record, and the applicable authorities, we affirm, in part, the decision of the Circuit Court of Jefferson County. We agree with the lower court's ruling that the Bowerses did not properly serve Ito, SEJ, and IYG with process. However, we further modify, in part, the circuit court's decision and remand this case in order to permit the Bowerses to properly serve these defendants.

I. FACTUAL AND PROCEDURAL HISTORY

This case, having recently been resolved by this Court insofar as the issues therein presented, has again arrived on our doorstep for deliberation and decision.¹ In December, 1994, a fire resulting from an explosion occurred in the home of Marvin and Bessie Bowers in Shepherdstown, West Virginia. Investigation of this incident led to the discovery of an underground gasoline leak at a nearby 7-Eleven convenience store and gasoline filling station. This leak allegedly caused the explosion and fire and affected the property of several other individuals in the surrounding area, forcing temporary evacuation of those residences. As a result of these damages, the Bowerses, in 1996, filed a class action suit in the Circuit Court of Jefferson County naming as defendants the owner of the property upon which the 7-Eleven was situated, Gretchen Wurzburg; the company that leased this property and owned and operated the 7-Eleven store, the Southland Corporation [hereinafter referred to as "Southland"]; and the purchasers of Southland's stock as a result of its reorganization in bankruptcy, Ito, SEJ (Ito's subsidiary), and IYG (a holding company jointly held by Ito and SEJ, which is a subsidiary of Ito and SEJ).²

In response to the Bowerses' pleading, the nonresident defendants filed a motion to dismiss the complaint asserting that they were not subject to personal jurisdiction in West Virginia, see W. Va. R. Civ. P. 12(b)(2), and that they had been improperly served with process, see W. Va. R. Civ. P. 12(b)(5).³ Opposing the defendants' motion to dismiss, the Bowerses requested the circuit court to defer ruling until they had been permitted an opportunity to conduct discovery on the issue of personal jurisdiction. The circuit court denied jurisdictional discovery and dismissed the complaint as to the nonresident defendants based upon a lack of personal jurisdiction. Having resolved the dispute on jurisdictional grounds, the circuit court did not evaluate the nonresident defendants' argument regarding the sufficiency of process.

The Bowerses then appealed the circuit court's ruling to this Court. In Bowers v. Wurzburg, 202 W.Va. 43, 501 S.E.2d 479 (1998) [hereinafter referred to as "Bowers I"], we concluded that the circuit court had abused its discretion by refusing to permit discovery on the issue of personal jurisdiction. Without specifically deciding the jurisdictional question, we remanded this case to the Circuit Court of Jefferson County for the pursuit of discovery regarding the court's personal jurisdiction over the nonresident defendants. See Bowers I, 202 W.Va. at 52-53,

501 S.E.2d at 488-89.

On remand to the circuit court, the nonresident defendants promptly renewed their motion to dismiss the complaint based upon the undecided issue of insufficiency of service of process. The Bowerses opposed the defendants' motion. Granting the nonresident defendants' motion to dismiss and finding that process as to them had been insufficiently served, the circuit court, by order entered June 10, 1998, concluded:

1. IY [Ito] was not properly served with process because (i) the Secretary of State of West Virginia is not its attorney-in-fact; and (ii) even if the Secretary was IY's [Ito's] attorney-in-fact, the Secretary failed to transmit the summons and complaint to IY's [Ito's] principal office in Tokyo, Japan, as required by W. Va.Code § 31-1-15.

2. SEJ was not properly served with process because (i) the Secretary is not its attorney-in-fact; and (ii) even if the Secretary was SEJ's attorney-in-fact, the Secretary failed to transmit the summons and complaint to SEJ's principal office in Tokyo, Japan, as required by W. Va.Code § 31-1-15. Further, plaintiffs have not demonstrated that SEJ is the alter ego of IY [Ito] or that IY [Ito] is authorized to accept service of process on behalf of SEJ.

3. IYGH [IYG] was not properly served with process because (i) the Secretary is not its attorney-in-fact; and (ii) even if the Secretary was IYGH's [IYG's] attorney-in-fact, the Secretary failed to transmit the summons and complaint to IYGH's [IYG's] principal office, as required by W. Va.Code § 31-1-15. Further, plaintiffs' attempt to serve IYGH [IYG] in Dallas, Texas, where process was sent is ineffective because IYGH [IYG] does not maintain an office there.

4. The Complaint against IY [Ito], SEJ and IYGH [IYG] is hereby dismissed pursuant to West Virginia Rule of Civil Procedure 12(b)(5).

Following the circuit court's decision, the Bowerses filed a motion to alter or amend judgment pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure.⁴ In their motion, the Bowerses alleged that the circuit court had erroneously determined that process was insufficient as to the nonresident defendants and that the circuit court improperly denied jurisdictional discovery in light of this Court's prior decision permitting such discovery. By order entered July 30, 1998, the circuit court denied the Bowerses their requested relief. From these orders of the circuit court, the Bowerses appeal to this Court.

II. STANDARD OF REVIEW

The posture of this appeal requires us to review the circuit court's decision to dismiss the Bowerses' complaint as to the nonresident defendants; to examine that court's denial of relief pursuant to W. Va. R. Civ. P. 59(e); and to evaluate its interpretation of the relevant law upon which it based this dismissal. Prior to reaching the specific standards of review applicable to these decisions, however, we must address an important contention raised by the nonresident defendants: whether the circuit court's orders are in fact appealable orders in that they rendered judgment as to fewer than all of the parties, i.e., defendants, involved in this litigation. Upon a review of the relevant authorities, we conclude that these orders are final and appealable orders within the context of these proceedings. Rule 54(b) of the West Virginia Rules of Civil Procedure counsels that

when multiple parties are involved [in an action], the court may direct the entry of a final judgment as to one or more but fewer than all of the ... 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... the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the ... parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating ... the rights and liabilities of all the parties.

Interpreting this rule, we have held that "[t]he key to determining if an order is final is not whether the language from Rule 54(b) of the West Virginia Rules of Civil Procedure is included in the order, but is whether the order approximates a final order in its nature and effect...." Syl. pt. 1, in part, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). See also Syl. pt. 4, in part, Riffe v. Armstrong, 197 W.Va. 626, 477 S.E.2d 535 (1996) ("Whether an order dismissing fewer than all of the parties or fewer than all the claims in a civil action, which does not contain the express determinations set forth in Rule 54(b) of the West Virginia Rules of Civil Procedure, was intended to be final and is therefore appealable before the entire action is terminated will be determined by this Court from all the circumstances and the terms of the order....").

Neither of the orders forming the basis of this appeal indicate, in express language, that they were intended to be final and appealable orders as to the parties affected thereby. Nevertheless, it is apparent from their "nature and effect" that they "approximate[]... final order[s]." Syl. pt. 1, in part, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516. With respect to the circuit court's order dismissing the complaint as to defendants Ito, SEJ, and IYG, we discern that the practical effect of this ruling is to terminate the litigation as to these nonresident defendants. "If the...