Wesley W. Metheney
Paul T. Farrell, Jr.
Wilson, Frame, Benninger & Metheney, PLLC
Morgantown, West Virginia
H. Gerard Kelley
Philippi, West Virginia
Attorneys for the Appellant
Joseph A. Wallace
Elkins, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered Per Curiam.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
JUSTICE ALBRIGHT concurs and reserves the right to file a concurring opinion.
1. 'Only matters contained
in the pleading can be considered on a motion to dismiss under Rule 12(b) R.C.P.,
and if matters outside the pleading are presented to the court and are not excluded
by it, the motion should be treated as one for summary judgment and disposed
of under Rule 56 R.C.P. if there is no genuine issue as to any material fact
in connection therewith. . . .' Syllabus Point 4, United States
Fidelity & Guaranty Co. v. Eades, 150 W. Va. 238, 144 S.E.2d 703
(1965). Syllabus point 1, in part, Poling v. Belington Bank, Inc.,
207 W. Va. 145, 529 S.E.2d 856 (1999)
2. 'A circuit court's
entry of summary judgment is reviewed de novo.' Syllabus point 1, Painter
v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Syllabus point
1, Shaffer v. Acme Limestone Co., Inc., 206 W. Va. 333, 524 S.E.2d
3. A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law. Syllabus point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).
4. Where an order granting summary judgment to a party completely disposes of any issues of liability as to that party, the absence of language prescribed by Rule 54(b) of the West Virginia Rules of Civil Procedure indicating that 'no just reason for delay' exists and 'directi[ng] . . . entry of judgment' will not render the order interlocutory and bar appeal provided that this Court can determine from the order that the trial court's ruling approximates a final order in its nature and effect. Syllabus point 2, Durm v. Heck's, Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991).
5. 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 National Bank v. Lilly, 199 W. Va.
349, 484 S.E.2d 232 (1997).
This appeal arises from a civil action brought by the Estate of Bobby J. Robinson, deceased, claiming that certain parties, including the decedent's criminal defense lawyer, failed to take appropriate protective action to prevent Mr. Robinson's jailhouse suicide. The Estate appeals an order dismissing the defendant criminal defense lawyer pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Observing that the circuit judge considered matters outside the pleading, we find the order must be treated as one granting summary judgment. Because the circuit court failed to include appropriate findings of fact and conclusions of law in the order, we remand this case for the entry of such findings and conclusions.
On or about August 28, 1998, J. Burton Hunter, III, a lawyer representing Mr. Robinson in divorce proceedings, drafted a letter that was addressed to Mr. Hall and copied to, among others, the Sheriff of Randolph County and the Honorable John L. Henning, Judge. In the letter, Mr. Hunter advised its recipients that Mr. Robinson was despondent over his pending divorce and had expressed a desire to take his own life. The letter explained that Mr. Robinson was in need of medical assistance in connection with his severe brain disorder and chronic depression. Mr. Hunter also asked Mr. Hall for assistance in getting help for Mr. Robinson. Finally, the letter stated its purpose to alert the circuit court of Mr. Robinson's dangerous situation and to ask the sheriff to be alert to the possibility of suicide. Thereafter, on September 3, 1998, while still incarcerated in the county jail, Bobby Robinson committed suicide.
On August 9, 1999, this civil action was filed by
the Estate of Bobby J. Robinson, deceased, by and through his widow, Tina Marie
Robinson, and his mother, Margaret Robinson, as co-administratrixes of the Estate
(hereinafter the Estate), against the Randolph County Commission,
Sheriff Paul Brady, and Mr. Hall. The complaint alleged that the defendants
had knowledge of Mr. Robinson's mental condition and the risk that he would
commit suicide, yet they failed to provide him with sufficient medical treatment
and further failed to take appropriate actions to prevent his suicide.
On September 8, 1999, defendant Hall filed a motion to
dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.See
footnote 1 1 A hearing on Mr. Hall's motion was scheduled for
September 27th, 1999. The Estate filed its opposition to Mr. Hall's motion to
dismiss, and attached the affidavit of Margaret Robinson thereto. Following the
September 27th hearing, by order entered September 30, 1999, Judge Henning granted
Mr. Hall's motion to dismiss, with prejudice. In the order, Judge Henning simply
The Court after considering the Defendant, Dwight Richard Hall's Motion to Dismiss and after hearing the arguments of Counsel, does find the Defendant Dwight Richard Hall to be immune from liability in this action pursuant to West Virginia law. In addition, the Court does find that there was no duty owed by the Defendant Dwight Richard Hall.
Thereafter, on October 6, 1999, the Estate filed a motion asking Judge Henning to recuse himself from the proceedings as he had been one of the recipients of the letter regarding Mr. Robinson's mental health and potential for suicide. The Estate alleged that, like the defendants in the action, Judge Henning failed to take any action in response to the letter. Consequently, the Estate asserted, Judge Henning's presence in the action would taint the proceedings and bias a jury unfairly against the plaintiffs. By subsequent letter dated October 12, 1999, Judge Henning stated that, although he did not agree with the Estate's reasoning, he would voluntarily recuse himself from the case. This Court, by administrative order entered October 21, 1999, then assigned Judge Andrew N. Frye, Jr., to preside over the case.
On November 18, 1999, the Randolph County Commission
and Sheriff Paul Brady filed their motion to dismiss. Also on November 18, 1999,
the Estate filed a document titled MOTION TO RECONSIDER, asking
Judge Frye to reverse Judge Henning's earlier order dismissing Dwight Hall.
A hearing on the Estate's motion, and on the remaining defendants' motion to
dismiss, was held on December 22, 1999. During the course of the hearing, counsel
for the Estate acknowledged that its MOTION TO RECONSIDER would
be treated as a motion pursuant to Rule 60(b) of the West Virginia Rules of
Civil Procedure.See footnote 2 2
Restating the motion in the context of Rule 60(b), counsel asked that the order dismissing Mr. Hall be reversed pursuant to subdivision
(6) of the rule, which allows relief from a final judgment or order for any
other reason justifying relief from the operation of the judgment. At
the conclusion of the hearing, Judge Frye indicated that he would take both
motions, the Estate's Rule 60(b) motion and the remaining defendants' motion
to dismiss, under advisement and render a written answer in appropriate
time. However, by subsequent order entered April 20, 2000, Judge Frye addressed only the defendants' motion to dismiss, granting the same.See
footnote 3 3
Thereafter, on August 16, 2000, the Estate filed a
petition for appeal. In its petition, the Estate alleged numerous errors involving
all three defendants. Prior to oral argument, however, the Estate settled with
the County Commission and the Sheriff. Consequently, only issues involving Mr.
Hall remained for appellate determination. On Friday, May 30, 2001, Mr. Hall
filed in this Court a motion to dismiss asserting that the Estate's appeal was
In the instant case, the Estate attached an affidavit
to its brief in opposition to Mr. Hall's 12(b)(6) motion to dismiss. The circuit
court's order dismissing Mr. Hall failed to state that the court had excluded
the affidavit from its consideration. Because the circuit court considered matters
outside the pleading, its decision must be treated as one for summary judgment
pursuant to Rule 56 of the West Virginia Rules of Civil Procedure.
Having concluded that the circuit court's order is
one for summary judgment, we note that the standard for our review is de
novo: 'A circuit court's entry of summary judgment is reviewed de
novo.' Syllabus point 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d
755 (1994). Syl. pt. 1, Shaffer v. Acme Limestone Co., Inc., 206
W. Va. 333, 524 S.E.2d 688 (1999). When reviewing a lower court's decision regarding summary
judgment, we apply the same standard required of the circuit court. See
Cottrill v. Ranson, 200 W. Va. 691, 695, 490 S.E.2d 778, 782 (1997)
(We review a circuit court's decision to grant summary judgment de novo
and apply the same standard for summary judgment that is to be followed by the
circuit court. (citing Williams v. Precision Coil, Inc., 194 W. Va.
52, 58, 459 S.E.2d 329, 335 (1995)). In this regard, we have long held that
[a] motion for summary judgment should be granted only when it is clear
that there is no genuine issue of fact to be tried and inquiry concerning the
facts is not desirable to clarify the application of the law. Syl. pt.
3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York, 148 W. Va.
160, 133 S.E.2d 770 (1963). Having established the proper standard for our review,
we proceed with our consideration of this case.
The order granting summary judgment to Mr. Hall disposed
of one of the parties to multiple party action. Rule 54(b) of the West Virginia
Rules of Civil Procedure states:
Judgment upon multiple claims or involving multiple parties. -- When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or 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 fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
In the instant case, the trial court's order did not
include the specific Rule 54(b) language stating there is no just reason
for delay. Likewise, the order failed to expressly direct the entry of
judgment. We have previously interpreted Rule 54(b) broadly and, instead of
requiring that specific language be contained in an order disposing of fewer
than all the claims or parties, we have concluded that such an order may be
appealed if it is clear that it was intended to be a final order. In this regard,
we held in Syllabus point 2 of Durm v. Heck's, Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991):
Where an order granting summary judgment to a party completely disposes of any issues of liability as to that party, the absence of language prescribed by Rule 54(b) of the West Virginia Rules of Civil Procedure indicating that no just reason for delay exists and directi[ng] . . . entry of judgment will not render the order interlocutory and bar appeal provided that this Court can determine from the order that the trial court's ruling approximates a final order in its nature and effect.
(Emphasis added). See also, Syl. pt. 2, Gooch v. West Virginia Dep't of Pub. Safety, 195 W. Va. 357, 465 S.E.2d 628 (1995) (same); Syl. pt. 1, Sisson v. Seneca Mental Health/Mental Retardation Council, Inc., 185 W. Va. 33, 404 S.E.2d 425 (1991) (same). Because the circuit court's order dismissing Mr. Hall did not contain the express language of Rule 54(b), its appealability immediately after entry is dependent upon this Court's ability to determine, from the order itself, that it approximated a final order in its nature and effect. We have thoroughly considered the order and are unable to make such a determination. Consequently, we find the order was interlocutory and not subject to appeal prior to the entry of the final order disposing of the entire civil action. See Syl. pt. 6, Riffe v. Armstrong, 197 W. Va. 626, 477 S.E.2d 535 (1996) ('Where an appeal is properly obtained from an appealable decree either final or interlocutory, such appeal will bring with it for review all preceding non-appealable decrees or orders, from which have arisen any of the errors complained of in the decree appealed from, no matter how long they may have been rendered before the appeal was taken. Point 2, syllabus, Lloyd v. Kyle, 26 W. Va. 534 .' Syllabus point 5, State ex rel. Davis v. Iman Mining Co., 144 W. Va. 46, 106 S.E.2d 97 (1958).). The instant appeal was filed before the expiration of the four month appeal period that followed the final order terminating the entire action.See footnote 4 4 Therefore, it is timely.See footnote 5 5 Accordingly, we proceed with our analysis.
Mistakes; inadvertence; excusable neglect; unavoidable cause; newly discovered evidence; fraud, etc. -- On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, excusable neglect, or unavoidable cause; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct
of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied,
released, or discharged, or a prior judgment upon which it is based has been
reversed or otherwise vacated, or it is no longer equitable that the judgment
should have prospective application; or (6) any other reason justifying relief
from the operation of the judgment. The motion shall be made within a reasonable
time, and for reasons (1), (2), and (3) not more than one year after the judgment,
order, or proceeding was entered or taken. A motion under this subdivision (b)
does not affect the finality of a judgment or suspend its operation. This rule
does not limit the power of a court to entertain an independent action to relieve
a party from a judgment, order or proceeding, or to grant statutory relief in
the same action to a defendant not served with a summons in that action, or
to set aside a judgment for fraud upon the court. Writs of coram nobis, coram
vobis, petitions for rehearing, bills of review and bills in the nature of a
bill of review, are abolished, and the procedure for obtaining any relief from
a judgment shall be by motion as prescribed in these rules or by an independent
Time for petition. -- No petition
shall be presented for an appeal from, or a writ of supersedeas to, any judgment,
decree or order, which shall have been rendered more than four months before
such petition is filed in the office of the clerk of the circuit court where
the judgment, decree or order being appealed was entered, whether the State
be a party thereto or not; provided, that the judge of the circuit court may
for good cause shown, by order entered of record prior to the expiration of
such period of four months, extend and re-extend such period, not to exceed
a total extension of two months, if a request for the transcript was made by
the party seeking an appeal or supersedeas within thirty days of the entry of
such judgment, decree or order. In appeals from administrative agencies, the
petition for appeal shall be filed within the applicable time provided by the