C & O Motors, Inc. v. West Virginia Paving

• Decision Date: 13 May 2009
• Docket Number: No. 34330.,34330.
• Court: West Virginia Supreme Court
• Parties: C & O MOTORS, INC., Plaintiff Below, Appellee, v. WEST VIRGINIA PAVING, INC., A West Virginia Corporation, Defendant Below, Appellant.

677 S.E.2d 905

C & O MOTORS, INC., Plaintiff Below, Appellee, v. WEST VIRGINIA PAVING, INC., A West Virginia Corporation, Defendant Below, Appellant.

No. 34330.

Supreme Court of Appeals of West Virginia.

Submitted April 29, 2009.

Decided May 13, 2009.

Syllabus by the Court

1. "Where neither party to an appeal raises, briefs, or argues a jurisdictional question presented, this Court has the inherent power and duty to determine unilaterally its authority to hear a particular case. Parties cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking." Syllabus point 2, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

2. "Under W. Va.Code, 58-5-1 [1998], appeals only may be taken from final decisions of a circuit court. 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, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995).

3. An order determining liability, without a determination of damages, is a partial adjudication of a claim and is generally not immediately appealable. However, an immediate appeal from a liability judgment will be allowed if the determination of damages can be characterized as ministerial. That is, a judgment that does not determine damages is a final appealable order when the computation of damages is mechanical and unlikely to produce a second appeal because the only remaining task is ministerial, similar to assessing costs.

4. Certification under Rule 54(b) of the West Virginia Rules of Civil Procedure is permitted only upon the entry of a final judgment as to one or more but fewer than all of the claims or parties. 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).

Larry G. Kopelman, Kopelman & Associates, Charleston, WV, for Appellant.

Mark A. Swartz, Mary J. Swartz, Swartz Law Offices, St. Albans, WV, for Appellee.

DAVIS, Justice.

This is an appeal by West Virginia Paving, Inc., defendant below (hereinafter referred to as "WVP"), from an order of the Circuit Court of Kanawha County that denied its motion to join a necessary party and granted summary judgment in favor of C & O Motors, Inc., plaintiff below (hereinafter referred to as "C & O"). WVP contends that material issues of fact were in dispute, which precluded summary judgment, and that it was error to deny its motion to join a necessary party. After a careful review of the briefs and record submitted on appeal, and listening to the oral arguments of the parties, we find the appeal was improvidently granted, and, therefore, it is dismissed without prejudice.

I. FACTUAL AND PROCEDURAL HISTORY

The record indicates that WVP was awarded a contract by the West Virginia Division of Highways to remove and resurface asphalt along Route 60, MacCorkle Avenue, St. Albans, West Virginia.¹ The paving project was performed during the period April 25 through May 9, 2005. During the evening hours of May 3 and 4, 2005, asphalt removal was performed along Route 60 near several car lots that were maintained by C & O. It was alleged by C & O that during the asphalt removal on the evenings of May 3 and 4, "dust, debris and tar was churned up, became airborne, and was deposited onto a substantial number of C & O's vehicles which were parked in its new and used car lots."

C & O subsequently had its damaged vehicles cleaned at a cost of $5,740.00. After the vehicles were cleaned, C & O requested WVP reimburse it for the cost incurred. However, WVP refused to reimburse C & O. Consequently, on February 15, 2006, C & O filed the instant action against WVP seeking to recover the cost incurred in cleaning its damaged vehicles.

Following discovery, C & O filed a motion for summary judgment. Prior to responding to the motion for summary judgment, WVP filed a motion seeking to have Coady Construction, Inc., joined as a defendant pursuant to Rule 19 of the West Virginia Rules of Civil Procedure. Thereafter, WVP filed its response in opposition to C & O's motion for summary judgment.

The circuit court entered an order on April 30, 2007, which granted summary judgment on liability in favor of C & O, and denied WVP's motion to join a party under Rule 19. On June 13, 2007, C & O filed a motion seeking to have the circuit court enter an order of judgment against WVP in the amount of $9,112.50. Subsequently, on June 21, 2007, C & O filed an amended motion for judgment in the amount of $8,463.66. Additionally, on June 21, 2007, WVP filed a motion for a jury trial on the issue of damages to be awarded. On September 4, 2007, WVP filed a motion asking the circuit court to reconsider its summary judgment ruling.

The circuit court entered an order on March 11, 2008, which denied WVP's motion for reconsideration of its summary judgment ruling. The order did not address C & O's motion for judgment on damages, nor WVP's motion for a jury trial on damages. This appeal followed the order denying reconsideration of summary judgment.

II. STANDARD OF REVIEW

The parties have characterized this matter as an appeal from a circuit court order granting summary judgment in favor of C & O and denying WVP's motion to join a party under Rule 19. This Court's review of "[a] circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Our review of a circuit court's "Rule 19 determinations [is] for an abuse of discretion. To the extent that in its inquiry the [circuit] court decided a question of law, we review that determination de novo." Cachil Dehe Band of Wintun Indians of the Colusa Indian Comty. v. California, 547 F.3d 962, 969-70 (9th Cir.2008) (internal quotations and citations omitted).

The application of the above review standards is contingent upon our resolution of a jurisdictional issue not raised by the parties. This Court has held that,

[w]here neither party to an appeal raises, briefs, or argues a jurisdictional question presented, this Court has the inherent power and duty to determine unilaterally its authority to hear a particular case. Parties cannot confer jurisdiction on this Court directly or indirectly where it is otherwise lacking.

Syl. pt. 2, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995). The jurisdictional issue we will address concerns the finality of the order upon which this appeal is based.

III. DISCUSSION

The findings of fact section of the trial court's summary judgment order indicated that C & O incurred vehicle repair costs in the amount of $5,740.00. However, the order did not state that C & O was awarded damages in any amount. Subsequent to the entry of the summary judgment order, C & O filed an amended motion requesting the trial court enter an order awarding damages in the amount of $8,463.66, which request included costs, attorney's fees and prejudgment interest. WVP also filed a motion seeking a jury trial on the issue of damages.² Insofar as the trial court has not ruled upon either motion, i.e., granting $8,463.66 in damages or setting the issue of damages for a jury determination, the summary judgment order constituted a partial summary judgment ruling on the issue of liability.³ The issue we must determine is whether the circuit court's partial summary judgment order was an appealable order.⁴

The appellate jurisdiction of this Court extends only to final judgments. See Coleman v. Sopher, 194 W.Va. 90, 94, 459 S.E.2d 367, 371 (1995) ("The usual prerequisite for our appellate jurisdiction is a final judgment, final in respect that it ends the case."). We have previously held that,

[u]nder W. Va.Code, 58-5-1 [1998], appeals only may be taken from final decisions of a circuit court. 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.

Syl. pt. 3, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995). See also Province v. Province, 196 W.Va. 473, 478, 473 S.E.2d 894, 899 (1996) ("The required finality is a statutory mandate, not a rule of discretion."). "This 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[.]'" James M.B., 193 W.Va. at 292, 456 S.E.2d at 19 (quoting United States v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 265, 102 S.Ct. 3081, 3082, 73 L.Ed.2d 754 (1982)).

In the instant case, the trial court's decision to grant summary judgment on liability alone was authorized by Rule 56(c) of the West Virginia Rules of Civil Procedure. Rule 56(c) states that "summary judgment ... may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages." See Younker v. Eastern Assoc. Coal Corp., 214 W.Va. 696, 591 S.E.2d 254 (2003) (trial court granted partial summary judgment on liability and held bench trial on damages). However, the mere fact that Rule 56(c) expressly permits summary judgment on liability alone does not make such an order immediately appealable. This Court has recognized that "[a] partial summary judgment which adjudicates liability but not damages is, by definition, interlocutory." Hubbard v. State Farm Indem. Co., 213 W.Va. 542, 549 n. 13, 584 S.E.2d 176, 183 n. 13 (2003).⁵ Further courts that have generally addressed the issue of an interlocutory order granting judgment only as to liability take the position that "[o]rdinarily, a determination of liability, without a determination of damages, is a partial adjudication of a claim, and the partial adjudication is not immediately appealable." City of Waite Park v. Minnesota Office of Admin. Hearings, 758 N.W.2d 347,...