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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

BARRY BLACKBURN, 

Plaintiff Below, Petitioner 

vs.) No. 22-ICA-69 (Cir. Ct. Fayette Cnty. No. CC-10-2022-C-39) 

CITY OF SMITHERS, 

Defendant Below, Respondent 

MEMORANDUM DECISION 

Petitioner Barry Blackburn appeals the Circuit Court of Fayette County’s “Order 

Granting Defendant City of Smithers’ Motion to Dismiss” entered on July 29, 2022. In that 

order, the circuit court concluded that Mr. Blackburn’s complaint failed to state a claim 

upon which relief could be granted and that the City of Smithers (“City”) was immune 

from the claims asserted by Mr. Blackburn pursuant to the West Virginia Tort Claims and 

Insurance Reform Act. The City timely filed a response in support of the circuit court’s 

order.1 Mr. Blackburn filed a reply. 

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the 

applicable law, this Court finds that there is error in the lower tribunal’s decision but no 

substantial question of law. This case satisfies the “limited circumstances” requirement of 

Rule 21 of the Rules of Appellate Procedure for disposition in a memorandum decision. 

For the reasons set forth below, the circuit court’s order is affirmed in part, vacated in part, 

and this case is remanded with instructions. 

On April 1, 2022, Mr. Blackburn filed his underlying complaint. The complaint 

states: 

The above-named plaintiff Barry Blackburn, alleges the following 

as true and accurate: The City of Smithers, improperly seized my building 

at 36 Michigan Ave., Smithers, WV and refused to allow me entry or 

anyone else entry in the building. 

and requests the following relief from the court: Improperly holding my 

building resulting in loss of rental income in the amount of $720,000 

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 Mr. Blackburn is self-represented. The City is represented by Wendy E. Greve, 

Esq. and Benjamin B. Vanston, Esq. 

FILED 

May 1, 2023 

EDYTHE NASH GAISER, CLERK 

INTERMEDIATE COURT OF APPEALS 

OF WEST VIRGINIA 
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(6,000 sq.ft. based on current rental rates) and damage to my building 

(where they refused me access after thieves broke in and wind blew off 

portion of roof causing water damage to merchandise and equipment) 

in the amount of $150,000 TOTAL: $870,000 

(emphasis in original) 

On April 25, 2022, the City filed its motion to dismiss. In its motion, the City argued 

that pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, the complaint 

failed to state a claim upon which relief can be granted. Additionally, the City argued that 

it was entitled to statutory immunity pursuant to the West Virginia Tort Claims and 

Insurance Reform Act.2

On May 3, 2022, Mr. Blackburn filed his Motion to Deny Defendant’s Motion to 

Dismiss. In his motion, Mr. Blackburn asserts that the property was not deemed dangerous 

by the City’s engineer; the property was seized without due process as required by the 

City’s own ordinances; and that the City’s Building Inspector acted improperly and was 

not qualified for the position. 

On May 26, 2022, Mr. Blackburn filed his Motion to Amend Complaint, which 

sought to amend the complaint to reflect the correct address of the subject property. 

However, Mr. Blackburn did not attempt to address the deficiencies in the complaint raised 

in the motion to dismiss. 

A hearing on the City’s motion to dismiss was held on July 18, 2022. Counsel for 

the City appeared. Mr. Blackburn did not. In his brief on appeal, Mr. Blackburn asserts that 

he did not attend the hearing due to a scheduling conflict. He does not dispute that he 

received proper notice and does not allege that he attempted to contact the circuit court to 

seek a continuance. 

Following the hearing, on July 29, 2022, the circuit court entered its Order Granting 

Defendant City of Smithers’ Motion to Dismiss. In that order, the circuit court concluded 

that Mr. Blackburn’s complaint did not allege any actionable conduct by the City. In 

reaching this conclusion, the circuit court specifically noted that Mr. Blackburn did not 

allege the date when the improper seizure occurred; failed to articulate a cause of action; 

and failed to articulate any of the factual circumstances which led to the filing of the 

complaint. The circuit court went on to conclude that even though Mr. Blackburn did not 

state a cause of action, his claim(s) were barred by the statutory immunities contained in 

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 Specifically, the City argued that it was entitled to statutory immunity pursuant to 

West Virginia Code § 29-12A-4(b)(1) (1986) and West Virginia Code § 29-12A-5(a)(10) 

(1986). 
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the West Virginia Tort Claims and Insurance Reform Act.3 It is from this order that Mr. 

Blackburn appeals. 

On appeal, we apply the following standard of review: 

“Appellate review of a circuit court's order granting a motion to dismiss a complaint 

is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. 

Va. 770, 461 S.E.2d 516 (1995). “A court reviewing the sufficiency of a complaint should 

view the motion to dismiss with disfavor, should presume all of the plaintiff's factual 

allegations are true, and should construe those facts, and inferences arising from those 

facts, in the light most favorable to the plaintiff.” Mountaineer Fire & Rescue Equip., LLC 

v. City Nat'l Bank of West Virginia, 244 W. Va. 508, 520, 854 S.E.2d 870, 882 (2020) 

(citing Chapman v. Kane Transfer Co., 160 W. Va. 530, 538, 236 S.E.2d 207, 212 (1977)). 

Upon review, we find that Mr. Blackburn’s complaint does not contain sufficient 

information to put the City on notice of the claim(s) Mr. Blackburn is asserting against it. 

Under Rule 8 of the West Virginia Rules of Civil Procedure, “a complaint must be 

intelligibly sufficient for a circuit court or an opposing party to understand whether a valid 

claim is alleged and, if so, what it is.” State ex rel. McGraw v. Scott Runyan PontiacBuick, Inc., 194 W. Va. 770, 776, 461 S.E.2d 516, 522 (1995). Bald statements or a 

carelessly drafted pleading will not survive a Rule 12(b)(6) motion to dismiss. Highmark 

W. Virginia, Inc. v. Jamie, 221 W. Va. 487, 491, 655 S.E.2d 509, 513 (2007) (internal 

citations omitted). A plaintiff may not “fumble around searching for a meritorious claim 

within the elastic boundaries of a barebones complaint[.]” Scott Runyan Pontiac-Buick, 

Inc., 194 W. Va. 770 at 776, 461 S.E.2d at 522. Here, Mr. Blackburn’s complaint consists 

only of bald conclusory statements without any factual support. Further, on July 18, 2022, 

a hearing was held on the contested issues alleged in the City’s motion to dismiss, however, 

Mr. Blackburn failed to appear at this hearing despite receiving notice of the same. 

Accordingly, the circuit court did not err in its conclusion that Mr. Blackburn’s complaint, 

as filed, failed to state a claim. 

However, we find that the circuit court’s determination that statutory immunity bars 

Mr. Blackburn’s claim(s) was premature. As a general rule, motions to dismiss go solely 

to the sufficiency of claims as they are presented in the pleadings and matters outside the 

pleadings may not be used or considered. Dunn v. Consolidation Coal Co., 180 W. Va. 

681, 683, 379 S.E.2d 485, 487 (1989). Here, there is nothing within the four corners of the 

complaint that indicates that Mr. Blackburn’s complaint, which failed to satisfy the notice 

pleading standard, would properly give rise to an immunity defense. Therefore, we find 

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 Specifically, the circuit court concluded that Mr. Blackburn’s allegations did not 

fall within any of the exceptions to the general grant of immunity to political subdivisions 

pursuant to West Virginia Code § 29-12A-4(b)-(c). Further, the circuit court also concluded 

that the City was immune from liability pursuant to West Virginia Code § 29-12A-5(a)(10). 
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that the circuit court erred by prematurely deciding this case on immunity grounds given 

the stage of the proceedings and insufficiency of Mr. Blackburn’s complaint. 

Therefore, we affirm the circuit court’s finding that Mr. Blackburn’s complaint was 

insufficient. However, we vacate the circuit court’s application of statutory immunity and 

its dismissal of the case with prejudice. Accordingly, this matter is remanded to the circuit 

court for entry of an order dismissing Mr. Blackburn’s complaint without prejudice. 

Affirmed in part, Vacated in part, and Remanded with Instructions. 

ISSUED: May 1, 2023 

CONCURRED IN BY:

Chief Judge Daniel W. Greear 

Judge Thomas E. Scarr 

Judge Charles O. Lorensen