                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS

State ex rel. Navient Solutions, LLC,
Defendant Below, Petitioner
                                                                                        FILED
vs) No. 19-0874 (Ohio County 17-C-17)                                                 May 27, 2020
                                                                                        released at 3:00 p.m.
                                                                                    EDYTHE NASH GAISER, CLERK
The Honorable Ronald E. Wilson and                                                  SUPREME COURT OF APPEALS
Rebecca L. Brogan-Johnson,                                                               OF WEST VIRGINIA

Plaintiff Below, Respondents


                                  MEMORANDUM DECISION

                Petitioner Navient Solutions, LLC (hereinafter “petitioner”)1 seeks to invoke this
Court’s original jurisdiction to prohibit the enforcement of the Circuit Court of Ohio County’s
order denying cross-motions for summary judgment. Petitioner and respondent Rebecca Brogan-
Johnson (hereinafter “Ms. Brogan-Johnson”)2 both filed motions for summary judgment on Ms.
Brogan-Johnson’s claims arising from petitioner’s handling of her federal consolidation loan.
Petitioner moved for summary judgment on the basis of 1) federal preemption by regulations
promulgated pursuant to the Federal Family Education Loan Program (“FFELP”)3 of the Higher
Education Act, 20 U.S.C.A. § 1001 et seq.; 2) absence of breach of contract; and 3) estoppel. Upon
denial of summary judgment purportedly based on genuine issues of material fact, petitioner twice
requested the circuit court to issue findings of fact and conclusions of law in support of its denial,
to enable it to seek a writ of prohibition from this Court; these requests were expressly refused.
Petitioner brought the instant petition seeking extraordinary relief, challenging the circuit court’s
denial of its motion for summary judgment; however, petitioner likewise asserts that the circuit
court improperly refused its request for a more detailed order in aid of its petition before this Court.

                 This Court has considered the parties’ briefs and the record on appeal, both having
waived oral argument. Upon consideration of the standard of review and the applicable law, we
find that this case satisfies the “limited circumstances” set forth in Rule 21(d) of the West Virginia
Rules of Appellate Procedure and hereby issue a writ of mandamus, as moulded, directing the



       1
        Petitioner is represented by Carte P. Goodwin, Esq. Jared M. Tully, Esq., and Alex J.
Zurbuch, Esq. of Frost Brown Todd LLC.
       2
        Ms. Brogan-Johnson is represented by Frank X. Duff, Esq. and Sandra K. Law, Esq. of
Schrader Companion, Duff & Law, PLLC.

       3
           See 34 C.F.R. Subt. B, Ch. VI, Part 682 et seq.



                                                   1
Circuit Court of Ohio County to enter an order containing more detailed findings and conclusions
sufficient to allow this Court to consider the substance of the court’s ruling.

                                I. Factual and Procedural History

                Following law school graduation in 2002, Ms. Brogan-Johnson consolidated her
student loans with a consolidation loan made pursuant to the FFELP. Shortly thereafter, she added
additional loans to the consolidation, resulting in a total balance of $73,322.89 at an interest rate
of four percent. At the time, her loan was serviced by Citibank. Ms. Brogan-Johnson alleges that
thereafter, she took advantage of an incentive rate offer from Collegiate Funding Services which
provided that after making her payment timely for twelve months, her rate would drop to three
percent. Neither Ms. Brogan-Johnson nor petitioner apparently has possession of the incentive
rate offer and terms 4 ; however, it appears undisputed that petitioner began making payments
pursuant to this offer, resulting in a commensurate rate reduction to three percent as of November,
2003. In 2011, Citibank sold the loan to petitioner (then known as “Sallie Mae”) and honored the
three percent incentive rate. Ms. Brogan-Johnson’s minimum monthly payment was $307.11. She
continued to make these payments for the next approximate thirteen years.

               At some point, petitioner allegedly determined that Ms. Brogan-Johnson would not
be able to repay her loan within the federally-required thirty years.5 As a result, in April 2016,
petitioner sent Ms. Brogan-Johnson a letter notifying her that her minimum monthly payment
would increase to $328.89, along with a listing of potential reasons why the payment had
increased.6 Ms. Brogan-Johnson then made inquiry of petitioner as to why her minimum payment
had changed; she received a couple of different responses including that 1) the loan would not be
paid off in time, and 2) the “end date” was different for each of her consolidated loans and were
therefore “align[ed]” and “redisclosed.” She made further requests for various types of
documentation and information, all which petitioner responded to in some form or fashion, but
which Ms. Brogan-Johnson characterized as incomplete or inadequate.

                 Ms. Brogan-Johnson then initiated investigatory procedures with the Consumer
Financial Protection Bureau (“CFPB”). In response to Ms. Brogan-Johnson’s complaint,
petitioner advised that minimum monthly payments are calculated using the original four percent
interest rate, but that it was only actually collecting three percent interest, with the difference going
to principal. It noted that as a result, Mrs. Brogan-Johnson would repay less interest over the life
of her loan and likely pay it off sooner. Nevertheless, petitioner advised that it would be willing
to recalculate the payment using a three percent interest rate, reducing the monthly minimum
payment to $303.17 (four dollars less than it was originally). Petitioner also conceded that this

        4
        Petitioner concedes it is familiar with the general terms of such offers, as authorized by
the FFELP, and in fact honored the rate.
        5
         See 34 C.F.R. § 682.209(e)(2)(vi) (2013) requiring loans equal to or greater than $60,000
to be repaid in “not more than 30 years.”
        6
         Some of the reasons included deferment of forbearance, by request, change in school
separation date or interest rate, capitalization of interest, past delinquencies, or “[y]our repayment
plan has changed.” Ms. Brogan-Johnson maintains none of these apply to her.
                                                   2
reduced payment would result in the loan being paid off within thirty years. The CFPB materials
provided an option for Ms. Brogan-Johnson to dispute petitioner’s response and procedures
therefor.

               Ms. Brogan-Johnson declined to press further with the CFPB and filed the instant
complaint. In her complaint, she alleged violations of Sections 127 and 128 of the West Virginia
Consumer Credit and Protection Act (“WVCCPA”) for “fraudulent, deceptive, and/or misleading
representations” and “unfair or unconscionable means,” as well as breach of contract. See W. Va.
Code §§ 46A-2-127 and 128.

                After some discovery, both parties moved for summary judgment. On September
4, 2018, the circuit court issued an order denying both motions, stating simply that “there are
clearly genuine issues of material fact existing” and ruling that the parties’ arguments were
“rejected.” On April 30, 2019, petitioner filed a “Notice of Intent to File Writ of Prohibition,” and
requested that “[a]s a prerequisite to filing the writ of prohibition,” the circuit court set out in an
order containing “‘findings of fact and conclusions of law that support and form the basis of its
decision[,]’” citing Syllabus Point Six of State ex rel. Allstate Ins. Co. v. Gaughan, 203 W. Va.
358, 508 S.E.2d 75 (1998).

                On July 25, 2019, petitioner’s counsel wrote to the circuit court again requesting an
order containing findings of fact and conclusions of law. In response, on August 2, 2019, the
circuit court entered an “Order Denying on the Ground of Redundancy” the request for findings
and conclusions. The circuit court noted that the law on summary judgment “couldn’t be any
clearer” and that it did make findings in support of its decision, referring to its statement that there
were genuine issues of material fact. The order noted that discovery had not been completed, that
plaintiff “has a right to pursue those claims,” and that “[i]t’s not the right of the trial judge, at this
time, to make a judgment as to whether plaintiff’s claims are cognizable[.]” 7 The court
distinguished Gaughan, stating that it involved a discovery dispute which necessarily required
findings to substantiate the basis of the court’s decision. Here, however, the circuit court stated it
“has stated the reasons for its factual decision and its conclusion of law.” The court then denied
the request “on the ground of redundancy—it has already been done and needs no further
elaboration[.]” Petitioner thereafter filed the instant petition for writ of prohibition.

                                       II. Standard of Review

                As to the issuance of a writ of prohibition,

                       [i]n 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

        7
          The order further suggests that the motion was premature because discovery was
incomplete. However, at no time did either party assert incomplete discovery as a defense to
summary judgment; in fact, as indicated, both parties filed cross-motions, asserting the case was
ripe for summary disposition.
                                                    3
               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.

Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996). While petitioner
seeks blanket prohibition relief from the circuit court’s order, it concedes in its brief that the
threshold issue—whether the circuit court should be compelled to issue a more specific order
containing findings of fact and conclusions of law—is more appropriately given to mandamus
relief. In that regard,

                       [m]andamus is a drastic remedy to be invoked only in
               extraordinary situations; therefore, a party seeking such a writ must
               satisfy three conditions: (1) there are no adequate means for the
               party to obtain the desired relief; (2) the party has a clear and
               indisputable right to the issuance of the writ; and (3) there is a legal
               duty on the part of the respondent to do that which the petitioner
               seeks to compel.

Syl. Pt. 2, State ex rel. Sowards v. Cty. Comm’n of Lincoln Cty., 196 W. Va. 739, 474 S.E.2d 919
(1996). With these standards in mind, we address the parties’ arguments.

                                          III. Discussion

                Petitioner asserts that the circuit court committed clear legal error in 1) failing to
issue a more detailed order; 2) refusing to enter summary judgment in its favor of the issue of
federal preemption; and 3) refusing to enter summary judgment in its favor on the merits of Ms.
Brogan-Johnson’s breach of contract claim, due to a critical failure of proof and/or the legal
concept of equitable estoppel. However, we find that the first issue—whether the circuit court
erred in refusing to issue a more detailed order—is dispositive of the case at this juncture. The
circuit court’s failure to do so inhibits—if not precludes—this Court’s review of the merits-based
issues asserted in the petition for writ of prohibition, as effectively conceded by petitioner.

              As indicated above, petitioner twice requested the circuit court to issue an order
containing specific findings of fact and conclusions of law for the purpose of seeking a writ of
prohibition. The circuit court refused, merely restating its position that genuine issues of material




                                                  4
fact precluded it from ruling on the issues raised in the motion for summary judgment.8 The circuit
court failed, in both the substantive order denying summary judgment and its order declining to
issue a more specific order, to identify in any respect the particular factual issues it found to be
disputed and how those issues precluded it from ruling on the issues presented in the motion. We
find this to be clearly erroneous and contrary to this Court’s precedent.

                As a general matter, it is well-established that “[a]n 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.
and Sur. Co. v. Fed. Ins. Co. of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). However,
when a party desires to seek an extraordinary writ, this Court has made clear that the party must
request, and the circuit court must prepare, specific findings and conclusions rendering its decision
susceptible of appellate review:

                       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.

Syl. Pt. 6, Gaughan, 203 W.Va. 358, 508 S.E.2d 75 (emphasis added). The circuit court below
distinguished Gaughan’s requirement of a detailed order on the basis that the issue presented in
Gaughan was a discovery dispute, which by its nature required a more detailed order for review.
Ostensibly, the circuit court believed that in the context of summary judgment, disputed issues of
material fact precluded the very findings and conclusions requested.9


       8
          We are careful to note that the parties’ mere assertion of the absence of disputed facts is
not binding upon a circuit court. See Marcus v. Staubs, 230 W. Va. 127, 141, 736 S.E.2d 360, 374
(2012) (“[T]he mere fact that the parties seemingly agreed that there were no disputed issues of
material fact does not constrain the trial court to accept that representation as true and enter
summary judgment for one of the parties.”). However, it is in this event that the circuit court’s
identification of the purportedly disputed facts is most essential for purposes of appellate review.
See discussion infra.

       9
          In this regard, we concede to the circuit court’s suggestion that the specific phrasing of
“findings of fact and conclusions of law” facially suggests that where it finds disputed issues of
fact, this task is rendered largely unfeasible. However, in the context of a denial of summary
judgment, it is fairly apparent that what is necessary for appellate review pursuant to an

                                                  5
                Recently however, the Court has reiterated Gaughan’s requirement specifically in
the context of a denial of summary judgment. In State ex rel. Vanderra Res., LLC v. Hummel, 242
W. Va. 35, 829 S.E.2d 35 (2019), the Court considered an extraordinary writ seeking to require
circuit courts to routinely issue findings of fact and conclusions of law in all cases denying
summary judgment. This Court flatly refused to make this a rote requirement of a summary
judgment denial and disavowed prior cases which seemed to suggest that such findings and
conclusions were required upon routine denial of summary judgment. However, the Court plainly
reserved from its holding instances where a party desires to seek an extraordinary writ and informs
the circuit court of such, deferring to the rule articulated in Gaughan:

               Vanderra should have informed the circuit court in advance that it
               intended to file a petition for a writ with this Court and requested a
               detailed order. Only at that point would the circuit court have been
               obligated to make such findings. Absent Vanderra’s request, the
               circuit court was under no duty to set out these findings in its order
               denying summary judgment.

Id. at ___, 829 S.E.2d at 44 (emphasis added). The Court further concluded that because Vanderra
made no such request for a detailed order, it could not consider the merits of the circuit court’s
denial of summary judgment, even under the auspices of its original jurisdiction:

               Because this Court does not have an order before it containing
               detailed findings explaining the facts and evidence on which the
               circuit court based its ruling on the substantive issues Vanderra now
               argues, we have no means to ascertain the rationale underlying its


extraordinary writ is a more detailed order identifying the particular facts found to be in dispute
and some degree of analysis of the manner in which these disputed facts preclude summary
disposition, to the extent it is not apparent on its face. As this Court has explained,

                       [a]ppellate courts, on review, rely heavily on the trial judge’s
               order; the order is extremely important. The order often assists
               appellate courts in understanding what the trial court did and why,
               and good orders often rebut allegations made by appealing parties
               in briefs and arguments. If the lower tribunal is interested in having
               its decision affirmed, then the lower court should assist the appellate
               courts by providing comprehensive, well-reasoned orders.
               Submission of a comprehensive order assists an appellate court in
               finding a way to affirm the lower court’s order.

P.T.P., IV by P.T.P, III v. Bd. of Educ. of the Cty. of Jefferson, 200 W. Va. 61, 65, 488 S.E.2d 61,
65 (1997) (footnote omitted). This observation is no less true in the case of extraordinary writs.
While the standard for relief under these circumstances is considerably higher, the Court is no less
in need of a window into the lower court’s reasoning and basis to determine whether relief is
appropriate.

                                                  6
               denial of summary judgment and determine whether the factors for
               issuing an extraordinary writ have been met.

Id. at ___, 829 S.E.2d at 44-45.

                Petitioner herein did precisely what Vanderra failed to do: advised the circuit court
that an extraordinary writ would be sought and requested a more detailed order. It is clear that
Gaughan and Vanderra stand for the proposition that the circuit court was then obligated to issue
a more detailed order substantiating its conclusion that disputed issues of fact precluded
determination of the legal issue of preemption and the merits of the underlying causes of action.
An order identifying the factual issues which were disputed and the manner in which those issues
precluded its ruling on the substantive issues presented is necessary to elucidate the circuit court’s
analysis and its ultimate conclusion to deny the motion.

                  In absence of such an order, this Court cannot evaluate the propriety of the circuit
court’s denial of summary judgment on the substantive issues presented therein.10 More pointedly,
it is impossible to determine whether the lower court’s action is “clearly erroneous” for purposes
of issuing a writ of prohibition, where it has presented the Court with no analysis beyond a
summary conclusion that there are disputed facts. We are left merely to guess which facts the
circuit court found to be sufficiently in dispute such as to preclude summary judgment and why
those facts were material to the legal issue presented. See Hively v. Merrifield, 212 W. Va. 804,
808, 575 S.E.2d 414, 418 (2002) (“[B]efore this Court can review the circuit court’s reasons for .
. . [ruling as it did], we must know what those reasons are.”); P.T.P., IV, 200 W. Va. at 65, 488


       10
           That said, however, we caution the parties that “[p]rohibition lies only to restrain inferior
courts from proceedings in causes over which they have no jurisdiction, or, in which, having
jurisdiction, they are exceeding their legitimate powers, and may not be used as a substitute for [a
petition for appeal] or certiorari.” Syl. Pt. 1, Crawford v. Taylor, 138 W. Va. 207, 75 S.E.2d 370
(1953). We reiterate, in the strongest terms, that extraordinary relief is not a substitute for appeal.
Our ruling in Vanderra is not an invitation to attempt to force a circuit court’s hand to issue a
detailed order upon denial of summary judgment. Petitions for writs of mandamus or prohibition
not plainly bearing the hallmarks of an issue potentially warranting extraordinary relief are
strongly discouraged.

         We note that the instant matter presents both the largely legal issue of federal preemption
and what appear to be garden-variety “merits” issues involving the breach of contract claim. We
note that the preemption issue is one for which a more specific order detailing the circuit court’s
analysis is most needed; this issue requires a claim by claim analysis and legal determination as to
whether the claims are federally preempted: “[W]e find the most reasoned approach is to analyze
the particular provisions or claims made under state law to determine if each conflict with and are
therefore preempted by federal law.” Adams v. Pa. Higher Educ. Assistance Agency, 237 W. Va.
312, 319, 787 S.E.2d 583, 590 (2016); see In re Estate of Sauers, 32 A.3d 1241, 1248 (Pa. 2011)
(“Issues of preemption comprise pure questions of law[.]”). While we do not foreclose the notion
that fact issues may on occasion preclude a pre-trial ruling on preemption, it is in this instance that
it is critically important for the circuit court to identify the precise disputed factual resolutions
which would benefit its analysis of preemption.
                                                   7
S.E.2d at 65 (“So that we may provide meaningful appellate review, the lower court needs to
provide us with more than a simple conclusion.”).

                 We therefore conclude that petitioner has demonstrated a clear entitlement to a
more detailed order, that our precedent obligates the circuit court to prepare such an order, and that
petitioner has no other adequate means to compel such an order. While petitioner presents this
writ as one sounding in prohibition, “[i]n appropriate situations, this Court has chosen to treat
petitions for extraordinary relief according to the nature of the relief sought rather than the type of
writ pursued.” State ex rel. TermNet Merch. Servs., Inc. v. Jordan, 217 W. Va. 696, 699, 619
S.E.2d 209, 212 (2005). See also State ex rel. Potter v. Office of Disciplinary Counsel of State,
226 W. Va. 1, 2 n.1, 697 S.E.2d 37, 38 n.1 (2010) (“[T]his Court has, in past cases, treated a request
for relief in prohibition as a petition for writ of mandamus if so warranted by the facts.”); State ex
rel. Beirne v. Smith, 214 W. Va. 771, 774, 591 S.E.2d 329, 332 (2003) (“Although Mr. Bradley
brought his case as a petition for a writ of prohibition, while Mr. Beirne requested a writ of
mandamus, we choose to treat each as a petition for a writ of mandamus, because both petitioners
wish to compel the Commissioner to do an affirmative act[.]”); State ex rel. Sandy v. Johnson, 212
W. Va. 343, 346 n.1, 571 S.E.2d 333, 336 n.1 (2002) (“Although this case was brought and granted
as a petition for a writ of prohibition, we choose to treat it as a writ of mandamus action.”).

                Accordingly, for the foregoing reasons, we grant petitioner a writ of mandamus and
direct the Circuit Court of Ohio County to issue an order containing sufficient detail and exposition
of its analysis such as to permit this Court to consider the substance of its denial of summary
judgment in accordance with our longstanding requirements for issuance of an extraordinary writ.


                                                                       Writ granted as moulded.


ISSUED: May 27, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




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