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State ex rel. Vanderra Resources, LLC v. Hummel

Supreme Court of West Virginia

June 3, 2019

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

          Submitted: April 23, 2019

          ORIGINAL PROCEEDING IN PROHIBITION WRITS DENIED

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

          Jeffrey V. Mehalic, Esq. Law Offices of Jeffrey V. Mehalic Counsel for the Respondent, Chesapeake Appalachia, L.L.C.

          John H. Tinney, Jr., Esq. John K. Cecil, Esq. Hendrickson & Long, PLLC Michael P. Markins, Esq. Cipriani & Werner, PC Counsel for Respondent, Kanawha Stone Company, Inc.

          WALKER, CHIEF JUSTICE delivered the Opinion of the Court.

          OPINION

          WALKER, CHIEF JUSTICE.

         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).

         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');">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');">231 W.Va. 563, 746 S.E.2d 554 (2013).

         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');">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');">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 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).

         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 ...


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