                           STATE OF WEST VIRGINIA

                         SUPREME COURT OF APPEALS



ALLY FINANCIAL, INC.,                                                  FILED
Defendant Below, Petitioner                                    September 26, 2013
                                                                  released at 3:00 p.m.
                                                                  RORY L. PERRY II, CLERK
vs) No. 12-0636 (Raleigh County 10-C-771-H)                     SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA

CATHERINE A. SMALLWOOD,
Plaintiff Below, Respondent


                             MEMORANDUM DECISION


       The petitioner and defendant below, Ally Financial, Inc. (“Ally”), appeals the May 1,
2012, order of the Circuit Court of Raleigh County denying its motion for relief from the
court’s prior grant of partial summary judgment in favor of the respondent and plaintiff
below, Catherine Smallwood (“Mrs. Smallwood”).

       This Court has considered the parties’ briefs, the oral argument under Rule 20, and
the record on appeal. Pursuant to Rule 20(g) of the Rules of Appellate Procedure, this Court
has determined that this appeal is premature because it is an appeal from an interlocutory
decision. In order to explain the merits of this procedural determination, this Court has
concluded that a memorandum decision — rather than an order — is appropriate under Rule
21 of the Rules of Appellate Procedure.

       This case arose out of the purchase of a 2007 Chevrolet Impala by Mrs. Smallwood
and her husband, which they jointly financed pursuant to a retail installment sale contract
through the dealership of Saturn of Charleston-Huntington on May 5, 2009. Soon after, the
contract was assigned to Ally. Subsequently, the Smallwoods defaulted on the loan. Mrs.
Smallwood filed suit against Ally on August 30, 2010, alleging violations of the West
Virginia Consumer Credit Protection Act, West Virginia Code §§ 46A-1-101 to 46A-8-102,
as well as various tort claims. On July 12, 2011, the circuit court granted partial summary
judgment to Mrs. Smallwood, finding that Ally had violated West Virginia Code § 46A-2­




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128(e) (2006)1 sixty times by making sixty phone calls to her after it first appeared that she
was personally represented by counsel and the name and address of her counsel were made
known or were reasonably ascertainable by Ally. While Mrs. Smallwood was granted partial
summary judgment as to Ally’s liability for sixty violations of West Virginia Code § 46A-2­
128(e), the amount of damages for those violations was not determined and, to date, has yet
to be determined. After the court denied Ally’s motion for relief from the court’s entry of
partial summary judgment, Ally filed this appeal contending that genuine issues of material
fact exist as to (1) when it first appeared to Ally that Mrs. Smallwood was represented by an
attorney and when her attorney’s name and address were known or could have been easily
ascertained by Ally; (2) whether there were actually sixty calls made in violation West
Virginia Code § 46A-2-128(e); and (3) whether Ally’s communications were the result of
bona fide errors of fact notwithstanding Ally’s maintenance of procedures reasonably
adapted to avoid such errors or violations of the statute.2 In addition, Ally has asserted that
Mrs. Smallwood’s cause of action is barred by the doctrines of res judicata and collateral


       1
           West Virginia Code § 46A-2-128 states, in pertinent part:

                        No debt collector shall use unfair or unconscionable
                 means to collect or attempt to collect any claim. Without
                 limiting the general application of the foregoing, the following
                 conduct is deemed to violate this section:

                        . . . .

                         (e) Any communication with a consumer whenever it
                 appears that the consumer is represented by an attorney and the
                 attorney’s name and address are known, or could be easily
                 ascertained, unless the attorney fails to answer correspondence,
                 return phone calls or discuss the obligation in question or unless
                 the attorney consents to direct communication.
       2
           West Virginia Code § 46A-5-101(8) (2006) provides,

                         If the creditor establishes by a preponderance of evidence
                 that a violation is unintentional or the result of a bona fide error
                 of fact notwithstanding the maintenance of procedures
                 reasonably adapted to avoid any such violation or error, no
                 liability is imposed under subsections (1), (2) and (4) of this
                 section, and the validity of the transaction is not affected.

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estoppel because her claims are identical to those brought and settled by her husband in a
previous civil action he filed against Ally.

       As set forth above, upon review of the record, we have determined that this appeal is
not properly before this Court. In syllabus point 2 of James M.B. v. Carolyn M., 193 W.Va.
289, 456 S.E.2d 16 (1995), this Court explained:

                      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 Court
              directly or indirectly where it is otherwise lacking.

It is axiomatic that this Court’s appellate jurisdiction extends only to final judgments.

                     Under W.Va.Code, 58-5-1 [1998], 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.. Recently, this Court held:

                     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.

Syl. Pt. 3, C & O Motors, Inc. v. West Virginia Paving, Inc., 223 W.Va. 469, 677 S.E.2d 905
(2009). Damages for violations of West Virginia Code § 48A-2-128(e) are determined
pursuant to West Virginia Code § 46A-5-101(1) (2006), which provides in pertinent part:

              [T]he consumer has a cause of action to recover actual damages
              and in addition a right in an action to recover from the person
              violating this chapter a penalty in an amount determined by the

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              court not less than one hundred dollars nor more than one
              thousand dollars.3

(Footnote added). Given the discretion afforded the court in affixing the amount of damages
for the statutory violations, it cannot be said that the computation of damages in this instance
is mechanical and unlikely to produce a second appeal. Consequently, there has been no
finality of judgment, and this Court has no jurisdiction over this matter. See McDaniel v.
Kleiss, 198 W.Va. 282, 284, 480 S.E.2d 170, 172 (1996) (“Since the circuit court’s order .
. . is interlocutory and not subject to appeal, we find the petition for appeal was
improvidently granted and accordingly dismiss the same for lack of appellate jurisdiction.);
Sipp v. Yeager, 194 W.Va. 66, 67, 459 S.E.2d 343, 344 (1995) (“[T]he circuit court’s
decision is an interlocutory rather than a final order and therefore, we dismiss this appeal as
improper before this Court.”).

       Accordingly, for the reasons set forth above, this case is dismissed without prejudice.

                                                                                    Dismissed.

ISSUED: September 26, 2013


CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




       3
       West Virginia Code § 46A-5-106 (2006) provides that the damages are subject to
adjustment for inflation.

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