Kanawha County Board of Education, a political subdivision, George Aulenbacher, Principal, Brad Marano, Assistant Principal, John Doe and Jane Doe v. S.D., a minor, by and through her parent and next friend, J.D.

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
FILED
September 2023 Term
September 29, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 22-0028 SUPREME COURT OF APPEALS
OF WEST VIRGINIA

KANAWHA COUNTY BOARD OF EDUCATION,
a political subdivision, GEORGE AULENBACHER, Principal,
BRAD MARANO, Assistant Principal,
JOHN DOE and JANE DOE,

Defendants Below/Petitioners,

v.

S. D., a minor, by and through her parent
and next friend, J. D.,

Plaintiff Below/Respondent.

Appeal from the Circuit Court of Kanawha County
The Honorable Kenneth D. Ballard, Judge
Case No. 19-C-173

DISMISSED

Submitted: September 12, 2023
Filed: September 29, 2023

Jace H. Goins, Esq. Alan L. Pritt, Esq.
STEPTOE & JOHNSON PLLC Joseph H. Spano, Jr., Esq.
Charleston, West Virginia PRITT & SPANO, PLLC
Attorney for Petitioners Charleston, West Virginia
Attorneys for Respondent

JUSTICE WOOTON delivered the Opinion of the Court.
JUSTICE BUNN, deeming herself disqualified, did not participate in decision of this case.

JUDGE PERRI JO DECHRISTOPHER sitting by temporary assignment.
 SYLLABUS BY THE COURT

1. “Under W. Va. Code, 58-5-1 (1925), 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).

2. “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.” Syl. Pt. 2, Robinson v. Pack, 223 W. Va. 828, 679 S.E.2d

660 (2009).

3. “Under Rule 12 of the West Virginia Rules of Civil Procedure, a

circuit court’s denial of a motion to dismiss a complaint that is predicated on the statutory

immunity conferred by the Governmental Tort Claims and Insurance Reform Act is an

interlocutory ruling that is subject to immediate appeal under the ‘collateral order’

doctrine.” Syl. Pt. 5, State ex rel. Grant Cnty. Comm’n v. Nelson, 244 W. Va. 649, 856

S.E.2d 608 (2021).

4. “Where 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

i
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).

5. “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.” Syl. Pt. 8, Aetna Cas. & Sur. Co.

v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963).

ii
WOOTON, Justice:

Petitioners Kanawha County Board of Education (“BOE”), George

Aulenbacher, Brad Marano, John Doe, and Jane Doe (hereinafter collectively “petitioners”)

appeal the Circuit Court of Kanawha County’s June 21, 2019, and December 16, 2021,

orders, the latter of which denied their motion for summary judgment. Respondent S. D., 1

by and through her parent and next friend, J. D., brought this suit alleging that petitioners

acted negligently in their handling of an incident where S. D. was inappropriately touched

by a fellow student in the hallway of George Washington High School. Petitioners filed a

motion to dismiss on a variety of grounds resulting in the dismissal of S. D.’s punitive

damage claims against them. Subsequently, petitioners sought summary judgment on the

basis that 1) respondent S. D. suffered no physical injury as a result of petitioners’ alleged

negligence; and 2) respondents breached no legal duty to S. D. The circuit court denied

the motion for summary judgment, finding that damages for emotional distress arising from

negligence actions can be recovered where the claim is not “spurious” and that there are

genuine issues of material fact as to whether petitioners breached any duties owed to S. D.

This Court has considered the parties’ briefs, oral arguments, and the

appendix record. Upon consideration of the applicable law, the Court finds that the orders

1
Because this case involves minors and sensitive matters, we follow our
longstanding practice of using initials to refer to the children and the pertinent parties. See
W. Va. R. App. P. 40(e); State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d
123, 127 n.1 (1990).
1
presented in this appeal are interlocutory, do not fall within the collateral order doctrine,

and do not otherwise present an appealable ruling, as discussed more fully infra.

Accordingly, we dismiss the instant appeal.

I. FACTS AND PROCEDURAL HISTORY

Because our resolution of this matter is procedural, we include only those

facts necessary to understand the legal arguments presented. In short, in 2018, S. D. was a

sophomore at George Washington High School and a member of the cheerleading squad;

M. P. was a freshman and member of the boys’ basketball team. S. D. alleges that on

January 29, 2018, M. P. approached her in a crowded hallway of the school and touched

her inappropriately on her “private area.” 2 Petitioners Aulenbacher and Marano claim that

S. D. immediately reported the incident to them but indicated only that M. P. “smacked

[her] on the butt” and insisted that he not be punished. Nonetheless, M. P. was found to

have committed a Level II disciplinary infraction of “indecent act on a student” 3 and was

2
During discovery, however, S. D. claimed that M. P. groped her between the legs
for ten seconds.
3
An “indecent act” is defined as follows under the BOE’s policy:

Profane Language/Obscene Gesture/Indecent Act Toward an
Employee or Student. A student will not direct profane
language, obscene gestures, or indecent acts towards a school
employee or a fellow student. This inappropriate behavior
includes but is not limited to, verbal, written, electronic and/or
illustrative communications intended to offend or humiliate.

2
given an out-of-school suspension for two days. Upon M. P.’s return to school, S. D.

alleges that she again passed him in the hallway, and he “flinched” in her direction,

laughed, and walked away, ostensibly in an effort to harass or intimidate her.

S. D. filed the instant action alleging the negligence of all petitioners as well

as the vicarious liability of the BOE; as against the individual petitioners, S. D. further

alleged that they acted “recklessly.” S. D.’s complaint sought compensatory and punitive

damages against all petitioners. S. D.’s theory of the case appears to be that, while

petitioners could not have prevented the initial unwelcome touching by M. P., they

negligently categorized the incident as a lesser offense and levied an insufficient period of

suspension, thereby permitting his imminent return to school and the second incident of

“harassment.” 4 S. D. claims that petitioners’ handling of M. P.’s discipline was motivated

by M. P.’s status as a “star” basketball player who was scheduled to play in a basketball

game shortly after he returned from his suspension.

4
More specifically, S. D. claims the incident was improperly categorized as a Level
II violation despite it definitionally qualifying as “sexual harassment,” “sexual
misconduct,” or “sexual violence”—Level III violations carrying greater potential
disciplinary measures. First offense Level II violations are punishable by one to three days
out-of-school suspension, whereas Level III violations are punishable by up to ten days
out-of-school suspension. In her brief to this Court, S. D. further contends that by
categorizing the incident as a Level II rather than Level III offense, the individual
petitioners avoided the necessity of making a report of sexual abuse to the West Virginia
Department of Health and Human Resources.
3
 At the outset of the litigation petitioners filed a motion to dismiss seeking

dismissal of the case in its entirety as against the individual defendants and the punitive

damages claim as against both the individual petitioners and the BOE, relying upon certain

provisions of West Virginia Code §§ 29-12A-1 to 18 (the “Tort Claims Act”). Petitioners

argued that the individual petitioners should be dismissed pursuant to West Virginia Code

§ 29-12A-13(b) (1986) 5 as the complaint failed to allege that they were acting outside the

scope of their employment. As to the punitive damages claim, petitioners argued that West

Virginia Code § 29-12A-7(a) (1986) 6 prohibits an award of punitive damages against both

political subdivisions and their employees.

On June 21, 2019, the circuit court entered an order—prepared by

petitioners’ counsel—entitled “Order Granting Motion to Dismiss Punitive Damage

Claims with Findings of Fact and Conclusions of Law.” Specifically, the order found that

1) as to the BOE, West Virginia Code § 29-12A-7(a) prohibits a claim of punitive damages

against a political subdivision; and 2) as to the individual petitioners, based on the

allegations in the complaint, their actions were not “done with malicious purpose, in bad

5
West Virginia Code § 29-12A-13(b) provides, in part: “In no instance may an
employee of a political subdivision acting within the scope of his employment be named
as defendant.”
6
West Virginia Code § 29-12A-7(a) provides: “In any civil action involving a
political subdivision or any of its employees as a party defendant, an award of punitive or
exemplary damages against such political subdivision is prohibited.”
4
faith, or in a wanton or reckless manner that would give rise to punitive damages.” 7 The

order dismissed “[p]laintiff’s punitive damages claim against all of the [d]efendants” but

contains neither a discussion of nor a ruling as to any other arguments presented in

petitioners’ motion to dismiss. More importantly, the order reflects no adverse ruling as to

petitioners.

After discovery, petitioners filed a motion for summary judgment asserting

two arguments: 1) because S. D. admitted she suffered no “ascertainable physical injury,”

her claim for emotional distress must fail as it does not fall into any recognized category

of negligent infliction of emotional distress; and 2) the evidence failed to demonstrate that

petitioners negligently supervised the students and therefore petitioners “did not breach

any duty owed to Plaintiff.” Nowhere in the motion for summary judgment or supporting

memorandum of law are any of the statutory immunity provisions of the Tort Claims Act

referenced or identified as grounds for relief.

By order dated December 16, 2021, the circuit court denied the motion for

summary judgment, finding that as to petitioner’s negligence claim, our caselaw indicates

that a claim for emotional distress without physical injury may be sustained insofar as the

7
Although the order references West Virginia Code § 29-12A-5(b) (1986) which
provides, in pertinent part, that employees of political subdivisions are immune in absence
of malicious purpose, bad faith, or wanton or reckless conduct, the order concludes only
that the absence of this type of conduct warrants dismissal of the punitive damages claim.
See discussion, infra.
5
facts indicate the claim is not “spurious.” 8 As to whether petitioners breached a duty to S.

D., the circuit court found that, notwithstanding the petitioners’ inability to prevent the

initial incident of unwanted touching, there were genuine issues of material fact as to

whether petitioners were negligent in their administration of M. P.’s discipline, resulting

in his return to school where he allegedly engaged in additional acts of “harassment.” Like

the underlying motion, no immunity of any type was cited or discussed in the order.

In their Notice of Appeal, petitioners present both the 2019 and 2021 orders

for our review and raise four assignments of error. First, petitioners assert that the

individual defendants are “entitled to dismissal” pursuant to West Virginia Code § 29-12A-

5(b)(2) 9 because the June 21, 2019, order found that the individual defendants did not act

8
See Syl. Pt. 11, Marlin v. Bill Rich Const., Inc., 198 W. Va. 635, 482 S.E.2d 620
(1996) (“A claim for emotional distress without an accompanying physical injury can only
be successfully maintained upon a showing by the plaintiffs in such an action of facts
sufficient to guarantee that the claim is not spurious and upon a showing that the emotional
distress is undoubtedly real and serious.”).
9
This statute provides:

An employee of a political subdivision is immune from
liability unless one of the following applies:

(1) His or her acts or omissions were manifestly outside the
scope of employment or official responsibilities;
(2) His or her acts or omissions were with malicious purpose,
in bad faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a
provision of this code.

W. Va. Code § 29-12A-5(b)(2).
6
maliciously, in bad faith, or in a wanton or reckless manner. Second, petitioners contend

that the BOE is immune from liability pursuant to West Virginia Code § 29-12A-5(a)(4),

which provides immunity to a political subdivision for claims resulting from “[a]doption

or failure to adopt a law, including, but not limited to, any statute, charter provision,

ordinance, resolution, rule, regulation or written policy[.]” In their final assignments of

error, petitioners contend they owed no legal duty to S. D. to discipline M. P. in any

particular manner and that S. D.’s claim for emotional distress is prohibited in absence of

any “ascertainable physical injury.”

II. DISCUSSION

Because the orders presented for appeal are interlocutory, we must first

determine whether we have jurisdiction to review the orders presented on appeal. Unless

an exception applies, our jurisdiction is limited to review of final judgments by virtue of

West Virginia Code § 58-5-1 (1998), which provides, in part, that a party “may appeal to

the Supreme Court of Appeals from a final judgment of any circuit court[.]” We have held

that “[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, in part, James M. B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d

16 (1995). However, this Court has recognized that the collateral order doctrine provides

an exception to the rule of finality: “There are exceptions to the rule of finality, however,

including interlocutory orders which are made appealable by statute or by the West

Virginia Rules of Civil Procedure, or . . . [which] fall within a jurisprudential exception
7
such as the collateral order doctrine.” Erie Ins. Co. v. Dolly, 240 W. Va. 345, 354, 811

S.E.2d 875, 884 (2018) (citations omitted).

In that regard, the Court has expressly authorized the interlocutory appeal of

a denial of a dispositive motion that is predicated on immunity. See Syl. Pt. 2, Robinson

v. Pack, 223 W. Va. 828, 679 S.E.2d 660 (2009) (“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.”); Syl. Pt. 5, State ex rel.

Grant Cnty. Comm’n v. Nelson, 244 W. Va. 649, 856 S.E.2d 608 (2021) (“Under Rule 12

of the West Virginia Rules of Civil Procedure, a circuit court’s denial of a motion to dismiss

a complaint that is predicated on the statutory immunity conferred by the Governmental

Tort Claims and Insurance Reform Act is an interlocutory ruling that is subject to

immediate appeal under the ‘collateral order’ doctrine.”). The parties appear to assume,

without addressing, that both orders on appeal qualify for immediate review under the

collateral order doctrine. 10 However, it is well established 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.

10
S. D. does not expressly challenge the Court’s jurisdiction to hear this appeal aside
from noting during oral argument that “some” of petitioners’ assignments of error “go past
immunity.”
8
Parties cannot confer jurisdiction on this Court directly or indirectly where it is otherwise

lacking.” James M. B., 193 W. Va. at 289, 456 S.E.2d at 16, syl. pt. 2.

We begin with the December 16, 2021, order denying petitioners’ motion for

summary judgment. As indicated above, petitioners moved for summary judgment

exclusively on the basis that the evidence failed to establish that petitioners breached a

legal duty to S. D., and that S. D.’s negligence claim for emotional distress in absence of

physical injury must fail. Neither of these arguments is predicated on immunity, and

nowhere in petitioners’ motion or supporting memorandum of law did they argue that they

were entitled to summary judgment on the basis of immunity. 11 Likewise, the December

16, 2021, order denying their motion for summary judgment neither addresses nor is

“predicated on immunity” and therefore constitutes an ordinary denial of summary

judgment that yields no finality and is not otherwise subject to immediate appeal.

“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.” Syl. Pt. 8, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of

New York, 148 W. Va. 160, 133 S.E.2d 770 (1963); see also Praetorian Ins. Co. v. Chau,

247 W. Va. 521, 530, 881 S.E.2d 432, 441 (2022) (“Typically, the denial of a motion for

11
In fact, upon review of the appendix record, the Court is unable to discern any
point in the underlying litigation at which West Virginia Code § 29-12A-5(a)(4)—the basis
of one of petitioners’ assignments of error—was ever raised or even referenced.
9
summary judgment is an interlocutory ruling not subject to appellate review.”). More

specifically, we have made clear that even “[i]n cases where interlocutory review of

qualified immunity determinations occurs, any summary judgment rulings on grounds

other than immunity are reserved for review at the appropriate time should the

interlocutory appeal result in finding immunity inapplicable under the circumstances.” City

of Saint Albans v. Botkins, 228 W. Va. 393, 397 n.13, 719 S.E.2d 863, 867 n.13 (2011)

(emphasis added); see also Ayersman v. Wratchford, 246 W. Va. 644, 654, 874 S.E.2d 756,

766 (2022). Therefore, the December 16, 2021, order denying petitioners’ motion for

summary judgment on grounds other than immunity does not qualify for immediate review

under the collateral order doctrine.

The June 21, 2019, order presented for review suffers from, at a minimum, a

more fundamental defect. 12 Unlike their motion for summary judgment, petitioners’

motion to dismiss did at least contain, in part, an argument grounded in the immunity

provided under the Tort Claims Act. Specifically, the motion to dismiss argued that the

individual petitioners were “improperly named” defendants pursuant to West Virginia

Code § 29-12A-13(b) which prohibits, generally, the naming of an employee of a political

subdivision “acting within the scope of his employment[.]” However, during oral

12
Despite being entered on June 21, 2019, petitioners waited approximately two and
a half years to present this order for review and did not reassert any immunity arguments
in their motion for summary judgment. However, because this order contains no adverse
ruling for this Court to review, as discussed infra, we need not address the timeliness
requirements for an interlocutory appeal of an order denying a dispositive motion on
immunity grounds.
10
argument on the motion, petitioners’ counsel characterized the motion as “essentially, a

motion to dismiss the punitive damage claim” and orally sought only dismissal of that

claim. 13 In fact, when the circuit court sua sponte inquired about the availability of any

immunities, petitioners’ counsel appeared to disavow seeking a ruling on immunity

grounds at that time, stating that such immunity “could be raised depending on what

happens with discovery.” 14 The circuit court agreed that punitive damages were not

13
At the close of his argument, petitioners’ counsel stated, “So our position is that
the punitive damage claims should be dismissed in their entirety. And nobody, either the
Board nor their employees, should be liable for punitive’s [sic] Your Honor.” S. D.’s
counsel later echoed, without objection, the narrowness of petitioners’ motion, noting: “I
want to state, first, this is only a 12(b)(6) motion to dismiss the punitive claims. It’s nothing
else.”
14
In this regard, the appendix record contains this revealing exchange:

The Court: And I was going to ask Mr. Goins, just parenthetically, when
these kinds of cases come up, are there defenses in immunity
raised or is this, these things don’t have immunity issues in
them?
Mr. Goins: Well, qualified immunity is usually with respect to state
agency like DHHR or –
The Court: So the Board of Education doesn’t have that?
Mr. Goins: We have immunities under Governmental Tort and Insurance
Reform Act.
The Court: So it could be raised too?
Mr. Goins: It could be raised depending on what happens with discovery.
But—
The Court: Okay.
Mr. Goins: It’s clear under that statute that one of the immunities is
punitive damages. We’re immuned [sic] from punitive
damages.

11
recoverable against any of the petitioners under the facts of this case and ruled that the

punitive damages claims should be dismissed.

Unsurprisingly, the 2019 order from which petitioners purportedly seek

“relief”—which was prepared by petitioners’ counsel—is limited to dismissal of the

punitive damages claim and is entirely favorable to petitioners. It reflects no denial of their

motion to dismiss—even in part—much less an immunity-predicated denial of their

motion. Petitioners appear to require the Court’s assumption that by not expressly granting

an overlooked immunity argument contained in their written motion to dismiss, the circuit

court effectively denied it. 15 However, at best, the order merely reflects that the circuit

court did not rule on any immunity issues, since “[i]t is a paramount principle of

jurisprudence that a court speaks only through its orders.” Legg v. Felinton, 219 W. Va.

478, 483, 637 S.E.2d 576, 581 (2006). 16

15
In fact, petitioners’ Notice of Appeal incorrectly represents that the circuit court
“denied, in part, the Petitioners’ Motion to Dismiss.”
16
We are careful to contrast the absence of such a ruling in this case from those
cases in which a court refuses to rule on an immunity argument properly presented and
interlocutory review of that refusal is timely sought. See, e. g., Lowe v. Town of Fairland,
Okl., 143 F.3d 1378 (10th Cir. 1998). Here, the circuit court neither failed nor refused to
rule on petitioners’ immunity. Instead, the court invited petitioners to present an immunity
argument at the pleading stage, but they declined to do so in favor of additional discovery,
after which they sought summary judgment solely on arguments going to the merits of the
case.
12
 As further evidence of this defect, petitioners identify no “error” contained

in the 2019 order, arguing only that a finding contained in that order entitles the individual

petitioners to statutory immunity. However, petitioners failed to subsequently seek a ruling

on the implications of that finding, most notably failing to seek summary judgment on that

basis. In short, petitioners seek this Court’s review of a ruling they never obtained,

ostensibly contained in an order in which they identify no “error.”

IV. CONCLUSION

For these reasons, we find that neither order presented by petitioners is

properly before the Court. The December 16, 2021, order does not qualify under the

collateral order doctrine for interlocutory appeal, and therefore we lack jurisdiction to

review it. The June 21, 2019, order presents no adverse ruling or “error” predicated on

immunity or otherwise upon which we may grant relief. Accordingly, we conclude that

the appeal must be dismissed.

Dismissed.

13