State ex rel. Vanderra Resources, LLC v. Hummel

• Decision Date: 03 June 2019
• Docket Number: No. 18-1072,18-1072
• Parties: 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
• Court: West Virginia Supreme Court

829 S.E.2d 35

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

No. 18-1072

Supreme Court of Appeals of West Virginia.

Submitted: April 23, 2019

Filed: June 3, 2019

Avrum Levicoff, Esq., Edward I. Levicoff, Esq., The Levicoff Law Firm, P.C., Pittsburgh, Pennsylvania, Counsel for the Petitioner

Jeffrey V. Mehalic, Esq., Law Offices of Jeffrey V. Mehalic, Morgantown, West Virginia, Counsel for the Respondent, Chesapeake 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.

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 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.

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 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 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 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." 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 "[...