                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Ernest Whittington, Petitioner Below,
Petitioner                                                                             FILED
                                                                                     November 26, 2013
                                                                                  RORY L. PERRY II, CLERK
vs) No. 12-1243 (Kanawha County 12-AA-152)                                      SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA

Steven O. Dale, Acting Commissioner of the
West Virginia Division of Motor Vehicles,
Respondent Below, Respondent

                                 MEMORANDUM DECISION

        Petitioner Ernest Whittington, by counsel Carter Zerbe and David Pence, appeals the
Circuit Court of Kanawha County’s September 6, 2012 order remanding the matter to the West
Virginia Division of Motor Vehicles (“DMV”) for further findings of fact. Respondent
Commissioner, by counsel Janet E. James, has filed a response, to which petitioner has filed a
reply.1 On appeal, petitioner alleges that the circuit court erred in remanding the matter for
further findings. Respondent raises a cross-assignment of error also alleging error in the circuit
court’s remand.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds that the parties’ appeal is premature because the circuit court has not
made a ruling on the merits of the checkpoint’s legality. For these reasons, a memorandum
decision is appropriate under Rule 21 of the Rules of Appellate Procedure.

        In July of 2007, petitioner was arrested for DUI following an encounter with law
enforcement at a safety checkpoint. That same month, petitioner’s driving privileges were
revoked and his commercial driver’s license was disqualified. An administrative hearing was
held in January of 2009. By a final order issued in August of 2009, the DMV upheld the
revocation of petitioner’s driving privileges and disqualification of his commercial driver’s
license. Petitioner then appealed to the circuit court. Following a hearing in September of 2012,
the circuit court entered an order remanding the matter for additional findings of fact and
conclusions of law. It is from this order that petitioner appeals to this Court.2

       1
         Pursuant to Rule 41(c) of the West Virginia Rules of Appellate Procedure, we have
replaced the original respondent, Joe Miller, with Steven O. Dale, who is the current acting
commissioner of the West Virginia Division of Motor Vehicles.
       2
         In his appeal to the circuit court, petitioner raised four assignments of error. In the order
being appealed, the circuit court stated that it rejected three of these assignments of error and
remanded the matter in regard to petitioner’s first assignment of error only. On appeal to this
Court, no parties raise any assignment of error in regard to the circuit court’s rejection of
                                                      1
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               “On appeal of an administrative order from a circuit court, this Court is
       bound by the statutory standards contained in W. Va.Code § 29A-5-4(a) and
       reviews questions of law presented de novo; findings of fact by the administrative
       officer are accorded deference unless the reviewing court believes the findings to
       be clearly wrong.” Syllabus point 1, Muscatell v. Cline, 196 W.Va. 588, 474
       S.E.2d 518 (1996).”

Syl. Pt. 1, Carpenter v. Cicchirillo, 222 W.Va. 66, 662 S.E.2d 508 (2008). Upon our review, the
Court declines to address the merits of the parties’ assignments of error because the matter is
premature.

        An interlocutory order can be appealed if it is certified pursuant to Rule 54(b) of the West
Virginia Rules of Civil Procedure. “The key to determining if an order is final is not whether the
language from Rule 54(b) . . . is included in the order, but is whether the order approximates a
final order in its nature and effect.” Syl. Pt. 1, in part, State ex rel. McGraw v. Scott Runyan
Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995). While the circuit court noted that
the order being appealed is a final order, the Court finds that in regard to petitioner’s first
assignment of error raised in the circuit court, the order is not final in nature and effect.

        In substance, both parties argue that the circuit court erred in remanding the matter
because the circuit court should have ruled in their respective favors. However, the Court
declines to substitute its judgment for that of the circuit court. At this point, no ruling has been
issued on the underlying appeal in regard to petitioner’s assertion that the safety checkpoint at
issued violated his rights under the Fourth Amendment to the United States Constitution. After
careful consideration, this Court dismisses petitioner’s appeal as premature. The Court notes,
however, that nothing in this memorandum decision prevents the parties from appealing any
order that the circuit court eventually enters in regard to petitioner’s appeal from his
administrative proceeding.

                                                                          Dismissed as premature.

ISSUED: November 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


petitioner’s last three assignments of error, and this memorandum decision, accordingly,
addresses only the circuit court’s ruling remanding for additional evidence in regard to
petitioner’s first assignment of error.
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