Pittsburgh Elevator Co. v. West Virginia Bd. of Regents

• Decision Date: 30 June 1983
• Docket Number: No. 15438,15438
• Citation: 310 S.E.2d 675,172 W.Va. 743
• Parties: PITTSBURGH ELEVATOR COMPANY v. The WEST VIRGINIA BOARD OF REGENTS. Jason MARTIN, et al. v. The WEST VIRGINIA BOARD OF REGENTS, et al. PITTSBURGH ELEVATOR CO. v. BAKER AND COOMBS, INC.
• Court: West Virginia Supreme Court

Page 675

310 S.E.2d 675

172 W.Va. 743

PITTSBURGH ELEVATOR COMPANY v. The WEST VIRGINIA BOARD OF REGENTS.

Jason MARTIN, et al. v. The WEST VIRGINIA BOARD OF REGENTS, et al.

PITTSBURGH ELEVATOR CO. v. BAKER AND COOMBS, INC.

No. 15438.

Supreme Court of Appeals of West Virginia.

June 30, 1983.

Rehearing Denied Oct. 14, 1983.

Syllabus by the Court

1. If the effect of a dismissal of a complaint is to dismiss the action, such that it cannot be saved by amendment of the complaint, or if a plaintiff declares his intention to stand on his complaint, an order to dismiss is final and appealable.

2. Suits which seek no recovery from state funds, but rather allege that recovery is sought under and up to the limits of the State's liability insurance coverage, fall outside the traditional constitutional bar to suits against the State.

3. The exclusive venue provision of W.Va.Code § 14-2-2 is not applicable to a cause of action wherein recovery is sought against the liability insurance coverage of a state agency.

Richard A. Hayhurst, Davis, Davis, Hall & Clovis, Parkersburg, for Pittsburgh Elevator Co.

Steptoe & Johnson, Herbert G. Underwood, Irene M. Keeley, Clarksburg, Edward W. Eardley, Charleston, for Bd. of Regents.

McGRAW, Chief Justice:

This is an appeal by the Pittsburgh Elevator Company challenging two rulings of the Circuit Court of Monongalia County. The first is an order which granted the motion of the appellee, the West Virginia Board of Regents, to dismiss the appellant's complaint, previously transferred from the Circuit Court of Kanawha County and consolidated with proceedings pending in Monongalia County, for the reason that venue was improper in the Circuit Court of Monongalia County. The second is the court's refusal to transfer the consolidated proceedings to the Circuit Court of Kanawha County. The appellant contends that venue was proper in the Circuit Court of Monongalia County, or, in the alternative, that the court abused its discretion in refusing to transfer the consolidated proceedings to the Circuit Court of Kanawha County. We find that venue is proper in the Circuit Court of Monongalia County, and, therefore, reverse the order of the lower court.

The facts are not in dispute. On October 23, 1979, Jason Martin, then four years of age, fell from the stage of the main theater in the Creative Arts Center at West Virginia University, located in Morgantown, Monongalia County, West Virginia. On January 14, 1981, the child and his parents instituted an action for damages in the Circuit Court of Monongalia County against the appellee, the West Virginia Board of Regents, as owner of the Creative Arts Center, and against various other defendants involved in the design and manufacture of the stage, including the appellant, the Pittsburgh Elevator Company.

On February 9, 1981, the appellee West Virginia Board of Regents moved to dismiss the Martin's complaint on the grounds that under the provisions of W.Va.Code § 14-2-2 (1979 Replacement Vol.) a proceeding against a state agency may only be brought in the Circuit Court of Kanawha County. ¹ By order entered March 4, 1981, the court granted this motion, dismissing the appellee from the action, without prejudice. The court further ordered that the action should remain on the docket of the Circuit Court of Monongalia County as against the remaining parties.

Subsequently, the appellant instituted an action in the Circuit Court of Kanawha County seeking indemnity, or, if appropriate, contribution from the appellee for any liability which might result from the suit pending in the Circuit Court of Monongalia County. On March 9, 1981, the appellant filed a motion in the Circuit Court of Monongalia County seeking to transfer the action pending in that court to the Circuit Court of Kanawha County and to consolidate it with the appellant's action. After a hearing on March 20, 1981, the court entered an order granting the motion to consolidate the two actions, but moulding the relief to transfer the action pending in the Circuit Court of Kanawha County to the Circuit Court of Monongalia County, rather than vice versa, as requested in the appellant's motion.

Thereafter, on March 31, 1981, the appellee moved to dismiss the appellant's complaint on the grounds that under the provisions of W.Va.Code § 14-2-2 a proceeding against a state agency may only be prosecuted in the Circuit Court of Kanawha County. The appellant asserts that at the hearing on this motion, held April 22, 1981, the court denied the appellant's spoken motion to transfer the entire consolidated action to the Circuit Court of Kanawha County. ² By order entered May 6, 1981, the court granted the appellee's motion and dismissed the appellant's complaint without prejudice.

I

The threshold question raised by the appellee is whether the dismissal below without prejudice for lack of venue under W.Va.R.Civ.P. 12(b) constitutes an appealable order. The appellee contends that the court's order does not constitute a final judgment from which an appeal may be taken, and therefore, the appellant's writ of error should be dismissed as an improvidently awarded interlocutory appeal.

The appealability of a dismissal under Rule 12(b) without prejudice for lack of venue is an issue of first impression in West Virginia. The appellee argues that under W.Va.R.Civ.P. 41(b) and this Court's holding in Sprouse v. Clay Communications, Inc., 158 W.Va. 427, 211 S.E.2d 674 (1975), a dismissal without prejudice for lack of venue does not constitute an appealable order. In Sprouse, we adopted the majority view regarding the effect of a dismissal under Rule 12(b)(6), which maintains that a dismissal for failure to state a claim is a final judgment unless the court specifically dismisses the complaint without prejudice. The view adopted in Sprouse is founded upon Rule 41(b), which provides, in pertinent part: "Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue, operates as an adjudication upon the merits." Since the court below specifically dismissed the appellant's complaint "without prejudice," the appellee contends that under Rule 41(b) and Sprouse, the order is not appealable. We disagree.

We note initially that Rule 41(b) contains no affirmative statement to the effect that a dismissal under Rule 12(b) without prejudice for lack of venue is not an appealable order. Moreover, Rule 41(b) is concerned primarily with involuntary dismissals for failure to prosecute, and as such, its relevance to the issue raised here is questionable at best. Even if one assumes that Rule 41(b) is relevant to the issue raised, it could reasonably be argued that the general rule contained therein is that an order of dismissal is normally considered an adjudication on the merits, ³ and that the rule simply does not address a dismissal for lack of jurisdiction or for improper venue.

Generally, it has been held that an order dismissing a complaint, but not the underlying action, is not a final order and therefore is not appealable. See California v. Harvier, 700 F.2d 1217 (9th Cir.1983); Elfenbein v. Gulf & Western Industries, Inc., 590 F.2d 445 (2d Cir.1978); Local 179, United Textile Workers of America v. Federal Paper Stock Co., 461 F.2d 849 (8th Cir.1972); Atkins v. Morgan, 364 F.2d 822 (10th Cir.1966). The rationale advanced for this distinction has been that the dismissal of a complaint is not a final order because the complaint is still open to amendment. See Jones v. Pitchess, 469 F.2d 678 (9th Cir.1972); Grantham v. McGraw-Edison Co., 444 F.2d 210 (7th Cir.1971); Epton v. Hogan, 355 F.2d 203 (2d Cir.1966).

Despite the general rule that dismissal of a complaint is not appealable, courts have held that where it is clear that the action could not be saved by an amendment of the complaint which the plaintiff could reasonably be expected to make, the order dismissing the complaint is final and appealable. See Proud v. United States, 704 F.2d 1099 (9th Cir.1983); Chavez v. Santa Fe Housing Authority, 606 F.2d 282 (10th Cir.1979); Local 179, United Textile Workers of America v. Federal Paper Stock Co., supra. Additionally, some courts have held that if a plaintiff declares his intention to stand on his complaint, the order to dismiss may be considered final and appealable. Borelli v. Reading, 532 F.2d 950 (3rd Cir.1976); Olson v. Rembrandt Printing Co., 511 F.2d 1228 (8th Cir.1975); Rail-Trailer Co. v. ACF Industries, Inc., 358 F.2d 15 (7th Cir.1966); United Steelworkers of America v. American International Aluminum Corp., 334 F.2d 147 (5th Cir.1964); Wallingford v. Zenith Radio Corp., 310 F.2d 693 (7th Cir.1962).

Thus, the fact that the dismissal is deemed "without prejudice" by the trial court is not dispositive of the issue. As is stated in 9 Moore's Federal Practice p 110.08 (1983): "If ... the motion is sustained and the effect is to dismiss the action for want of jurisdiction, either of the person or the subject matter, or because of improper venue, or for any other reason, although the dismissal is without prejudice, the judgment is final." Similarly, the Alaska court in Sherry v. Sherry, 622 P.2d 960, 964 n. 4 (Alaska 1981), has stated, "Although a dismissal is labeled as without prejudice, it may have the opposite effect. The appealability of an order depends on its effect rather than its language. LeCompte v. Mr. Chip, Inc., 528 F.2d 601, 603 (5th Cir.1976)." See also Dredge Corp. v. Peccole, 89 Nev. 26, 505 P.2d 290 (1973); Daar v. Yellow Cab Co., 63 Cal.Rptr. 724, 67 Cal.2d 695, 433 P.2d 732 (1967); State Board of Barber Examiners v. Edwards, 76 Ariz. 27, 258 P.2d 418 (1953). Therefore, if the effect of a dismissal of a complaint is to dismiss the action, such that it cannot be saved by amendment of the complaint, or if a plaintiff declares his...