2. Under W. Va. Code, 58-5-1 , 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).
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.
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
[u]nder W. Va. Code, 58-5-1 , 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). (See footnote 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, 353 (Minn. Ct. App. 2008). Accord Farm Labor Org. Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 549 (6th Cir. 2002); LeBoeuf, Lamb, Greene & MacRae v. Worsham, 185 F.3d 61, 64 (2d Cir. 1999); Gamboa v. Chandler, 101 F.3d 90, 91 (9th Cir. 1996); Albright v. UNUM Life Ins. Co. of Am., 59 F.3d 1089, 1092 (10th Cir. 1995); In re Miscott Corp., 848 F.2d 1190, 1192 (11th Cir. 1988); In re Goldblatt Bros., Inc., 758 F.2d 1248, 1250 (7th Cir. 1985); Garzaro v. University of Puerto Rico, 575 F.2d 335, 337 (1st Cir. 1978); Freeman v. Califano, 574 F.2d 264, 268 (5th Cir. 1978); Bacadam Outdoor Adver., Inc. v. Kennard, 721 So. 2d 226, 228 (Ala. Civ. App. 1998); Ramco Indus., Inc. v. C & E Corp., 773 N.E.2d 284, 288 (Ind. Ct. App. 2002); Gunter v. City of St. James, 91 S.W.3d 724, 726 (Mo. Ct. App. 2002); Keef v. Dep't of Motor Vehicles, 634 N.W. 2d 751, 757 (Neb. 2001); Mid-Century Ins. Co. v. Pavlikowski, 576 P.2d 748, 749 (Nev. 1978); Freeman v. Reliance Ins. Co., 315 S.E.2d 798, 800 (N.C. Ct. App. 1984); Choice Fin. Group v. Schellpfeffer, 696 N.W.2d 504, 507 (N.D. 2005); Bautista v. Kolis, 754 N.E.2d 820, 824 (Ohio Ct. App. 2001); Swift v. Milner, 442 A.2d 1144, 1146 (Pa. Super. Ct. 1982); Stettner Clinic, Inc. v. Burns, 61 S.W.3d 16, 19 (Tex. App. 2000). Indeed, it has been correctly noted that [a]n order . . . adjudging liability but leaving the quantum of relief still to be determined has been a classic example of non-finality and non-appealability from the time of Chief Justice Marshall to our own. Franklin v. District of Columbia, 163 F. 3d 625, 629 (D.C. Cir. 1998) (internal quotations and citation omitted).
Courts have recognized an exception to the prohibition against appealing an order that imposes liability only. Under this exception an immediate appeal from a liability judgment will be allowed if the determination of damages can be characterized as 'ministerial.' Winston Network, Inc. v. Indiana Harbor Belt R.R. Co., 944 F. 2d 1351, 1357 (7th Cir. 1991). (See footnote 6) That is, a judgment not completely determining damages is a final appealable order where the computation of damages is mechanical and unlikely to produce a second appeal because only a ministerial task similar to assessing costs remains. State ex rel. White v. Cuyahoga Metro. Hous. Auth., 684 N.E. 2d 72, 75 (Ohio 1997). See also GeoSouthern Energy Corp. v. Chesapeake Operating, Inc., 241 F.3d 388, 391 (5th Cir. 2001) ([A] judgment failing to award damages may still be final if the computation of damages is purely ministerial and/or mechanical. (internal quotations and citation omitted)); Albright v. UNUM Life Ins. Co. of Am., 59 F.3d 1089, 1093 (10th Cir. 1995) ([I]f calculating damages would be complicated and the possible subject of a separate and future appeal, then we cannot assume appellate jurisdiction over the issue of liability.); Apex Fountain Sales, Inc. v. Kleinfeld, 27 F.3d 931, 936 (3d Cir. 1994) ([A]n order is final even if it does not reduce the damages to a sum certain if the order sufficiently disposes of the factual and legal issues and [if] any unresolved issues are sufficiently ministerial that there would be no likelihood of further appeal. (internal quotations and citation omitted)). (See footnote 7)
In view of the foregoing, we now hold that 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. (See footnote 8)
Applying our holding to the facts of the instant case, we find that the order appealed from is neither final nor subject to a ministerial task on remand. The record in this case reveals that the trial court has not issued an order on C & O's amended motion for judgment in the amount of $8,463.66, nor has it ruled upon WVP's motion for a jury trial on damages. We do not believe that resolution of these remaining motions constitute ministerial acts, for the purpose of making the order appealable, because there is a likelihood of an appeal from the resolution of the damages issue. (See footnote 9)
A case that supports our ministerial acts ruling in this proceeding is Guido
v. Guido, 202 W. Va. 198, 503 S.E.2d 511 (1998). Guido involved an appeal from an order
that held the appellant in contempt. This Court found that appellate jurisdiction over the
issue was lacking because no sanction had been imposed on the appellant. The opinion in Guido stated that [u]ntil such time as a sanction against Mr. Guido is actually imposed, no
final judgment has been rendered in the case. Guido, 202 W. Va. at 202, 503 S.E.2d at 515. Guido reflects the concern with piecemeal appeals. That is, had we addressed the merits of
the contempt ruling in Guido and affirmed the same, the case could ultimately be appealed
again on the issue of the type or amount of the sanction imposed. So, too, in the instant
proceeding if this Court affirmed the trial court's partial summary judgment order, an appeal
could be taken from the ultimate ruling on damages.
In addition to the ministerial acts exception, this Court has recognized a limited number of other exceptions to the rule of finality. Our cases have pointed out that we may address specific issues decided by an interlocutory order under the collateral order doctrine (See footnote 10) or by writs of prohibition, certified questions, or by judgments rendered under Rule 54(b) of the West Virginia Rules of Civil Procedure. James M.B., 193 W. Va. at 292 n.3, 456 S.E.2d at 19 n.3. Rule 54(b) is the only other exception to the rule of finality that is relevant in this case.
WVP contends that the circuit court certified the partial summary judgment order as appealable pursuant to Rule 54(b). (See footnote 11) Under appropriate circumstances, a partial summary judgment order under Rule 54(b) may be certified as appealable directly to this Court. Rule 54(b) provides, in part, that a 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. (See footnote 12) Under Rule 54(b), an order may be final prior to the ending of the entire litigation on its merits if the order resolves the litigation as to a claim or a party. Durm v. Heck's, Inc., 184 W. Va. 562, 566, 401 S.E.2d 908, 912 (1991). See also Hubbard, 213 W. Va. at 549, 584 S.E.2d at 183 (Under Rule 54(b), a circuit court enjoys the authority to direct entry of a final order as to less than all claims in a multi-claim case 'upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.'). The issue we must decide is whether Rule 54(b) certification is applicable to a single claim action in which judgment on liability only has been rendered against a defendant. (See footnote 13) Insofar as the pertinent language in Rule 54(b) also appears in Rule 54(b) of the federal rules of civil procedure, we will look to federal courts for guidance on this issue. (See footnote 14)
In Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 96 S. Ct. 1202, 47 L. Ed. 2d 435 (1976), the United States Supreme Court was called upon to determine whether Rule 54(b) certification, under the federal rules of civil procedure, was applicable
to a single claim action against a defendant. In Liberty Mutual, several female plaintiffs brought a discrimination action against their employer in the United States District Court for the Western District of Pennsylvania. The plaintiffs asserted that the employer's insurance benefits and maternity leave regulations discriminated against women in violation of federal law. After a period of extensive discovery, the district court granted summary judgment on liability in favor of the plaintiffs. The defendant thereafter filed a motion for reconsideration. The district court entered an order denying the motion for reconsideration. The order denying the motion for reconsideration included Rule 54(b) certification language. Consequently, the employer appealed the order to the Third Circuit Court of Appeals. However, the Court of Appeals affirmed. The United States Supreme Court granted certiorari to determine whether the district court's certification under Rule 54(b) was proper. The Supreme Court held that certification was not proper under Rule 54(b). The Supreme Court reasoned as follows:
Rule 54(b) does not apply to a single claim action. . . . It is limited expressly to multiple claims actions in which one or more but less than all of the multiple claims have been finally decided and are found otherwise to be ready for appeal. Here, however, [plaintiffs] set forth but a single claim: that [the employer's] employee insurance benefits and maternity leave regulations discriminated against its women employees in violation of Title VII of the Civil Rights Act of 1964. They prayed for several different types of relief in the event that they sustained the allegations of their complaint, but their complaint advanced a single legal theory which was applied to only one set of facts. Thus, despite the fact that the District Court undoubtedly made the findings required under the Rule had it been applicable, those findings do not in a case such as this make the order appealable[.]
Liberty Mutual, 424 U.S. at 743-44, 96 S.Ct. at 1206, 47 L. Ed. 2d 435 (internal quotations
and citation omitted). See also Rudd Constr. Equip., Co., Inc. v. Home Ins. Co., 711 F.2d 54,
56 (6th Cir. 1983) (A partial summary judgment which resolves . . . the question of liability
but leaves the issue of damages in dispute is . . . [not] certifiable under Rule 54(b).); Williams v. St. Louis Diecasting Corp., 611 F.2d 1223, 1224 (8th Cir. 1979) (This cause
involved but a single claim which was bifurcated for trial into the issues of liability and
remedy. Rule 54(b) requires entry of a judgment on one or more claims for relief and entry
of a final judgment 'as to one or more but fewer than all of the claims or parties.' Thus, Rule
54(b) did not provide a basis for appeal in the instant case, and we hold the district court's
certification under Rule 54(b) unavailing.). We agree with Liberty Mutual and hold that
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, (See footnote 15) an order
granting partial summary judgment on liability against that defendant is not certifiable for
appeal under Rule 54(b).
In the instant case, C & O filed a single claim against WVP under a single theory of negligence. The circuit court granted judgment against WVP only as to liability. Under this set of facts, the circuit court's partial summary judgment order on liability could not be certified as appealable under Rule 54(b). As pointed out in Liberty Mutual,
[w]ere we to sustain the procedure followed here, we would
condone a practice whereby a [circuit] court in virtually any case
before it might render an interlocutory decision on the question
of liability of the defendant, and the defendant would thereupon
be permitted to appeal . . . without satisfying any of the
requirements [for appeal of an interlocutory order].
Liberty Mutual, 424 U.S. at 745-46, 96 S. Ct. at 1207, 47 L. Ed. 2d 435. See also McCormick v. West Virginia Dep't of Pub. Safety, 202 W. Va. 189, 191 n.2, 503 S.E.2d 502, 504 n.2 (1998) (The circuit court also granted partial summary judgment for the appellant as to liability against Gunnoe; the issue of for what damages Gunnoe is liable is still before the circuit court. However, because the circuit court's rulings regarding Smith and the DOC and its officials dispose of their interest in the case, all of the parties agree _ as do we _ that this appeal of those rulings is properly before this Court.). Thus, the instant appeal is not properly before this Court.