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IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

MARY C. SUTPHIN 

Plaintiff Below, Petitioner

v.) No. 22-ICA-201 (Cir. Ct. Raleigh Cnty. Case No. CC-41-2017-C-591)

RONALD J. HOPKINS, II, 

RACHEL L. ABRAMS HOPKINS, 

SARAH A. ABRAMS, AND 

LANGHORNE ABRAMS, 

Defendants Below, Respondents

MEMORANDUM DECISION

Petitioner Mary C. Sutphin appeals the Circuit Court of Raleigh County’s 

September 28, 2022, “Order on Motions to Dismiss by Lewis Chevrolet Company, 

Langhorne Abrams, and Ronald J. Hopkins, II, and Rachel L. Abrams Hopkins and Sarah 

A. Abrams’ Motion to Partially Dismiss Plaintiff’s Second Amended Complaint AND 

Motion for Protective Order to Stay Discovery Pending Resolution of Motions to Dismiss 

by Defendants Lewis Chevrolet Company, Langhorne Abrams, and Ronald J. Hopkins, II.”

Respondents Ronald J. Hopkins, II (“Ronald”), Rachel L. Abrams Hopkins (“Rachel”), 

Sarah A. Abrams (“Sarah”), and Langhorne Abrams (“Langhorne”) timely filed a response 

in support of the circuit court’s order.1 Ms. Sutphin 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 no substantial question of law, but we find there is some 

error in the circuit court’s order. Accordingly, a memorandum decision is appropriate under 

the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure. 

For the reasons below, the circuit court’s order is affirmed, in part, reversed, in part and 

the matter is remanded to the circuit court.

At the time of her death on November 23, 2009, Ms. Sutphin’s mother, Nancy Pat 

Lewis Smith, owned 242 of 394 shares of stock in the Lewis Chevrolet Company (“Lewis 

Chevrolet”) with operations in Beckley, West Virginia. Ms. Sutphin is a beneficiary of the 

1 Ms. Sutphin is represented by Joseph L. Caltrider, Esq., and Liana L. Stinson, Esq. 

The Respondents are represented by Russell D. Jessee, Esq., Marcus D. Black, Esq., and 

Brittany L. Smith, Esq. 

FILED

March 25, 2024

C. CASEY FORBES, CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA
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Estate of Nancy Pat Lewis Smith (“Estate”) and the Nancy Pat H. Lewis Heirs Trust 

(“Trust”). Both the Estate and the Trust were created under the Last Will and Testament of 

Nancy Pat H. Lewis-Smith (“Will”). A. David Abrams, Jr., (“Mr. Abrams”) drafted the 

Will.2 Mr. Abrams is married to Ms. Sutphin’s sister, Respondent Langhorne. Mr. Abrams 

and Langhorne have two daughters, Respondents Rachel and Sarah. Mr. Abrams is a 

member of the Board of Directors, serves as Executive Vice President, Assistant Secretary, 

and in-house counsel for Lewis Chevrolet. He also owns two shares of stock in the 

company. Rachel is a member of the Board of Directors, serves as President, and is 

employed full-time as the “Principal” of Lewis Chevrolet. She also owns sixty shares of 

stock in the company. Rachel’s husband, Respondent Ronald, is employed full-time as the 

“General Manager” of Lewis Chevrolet. Sarah is a member of the Board of Directors, 

serves as Secretary and Treasurer, and is employed full-time as the “Public Relations 

Manager” of Lewis Chevrolet. Mr. Abrams, Rachel, and Sarah constitute the entire Board 

of Directors and all of the corporate officers of Lewis Chevrolet. 

On February 3, 2022, Ms. Sutphin filed her sixty-page Second Amended Complaint 

(“Complaint”) against Lewis Chevrolet, Mr. Abrams, Rachel, Sarah, Ronald, and 

Langhorne.3 The Complaint alleges that Ms. Sutphin owns 20.47% of the stock in Lewis 

Chevrolet. As stated by Ms. Sutphin in her Complaint,

For over a decade, however, Ms. Sutphin has not received any benefit 

whatsoever from her ownership [of Lewis Chevrolet]. In violation of 

numerous fiduciary duties, Defendant A. David Abrams, Jr., Esq. - acting as 

Executor of the Estate, as Trustee of the Trust, as a Director and Officer of

the Dealership, and as an Attorney for [Lewis Chevrolet] - has knowingly 

conspired with the other Defendants to divert all benefits of owning [Lewis 

Chevrolet] to his own family members and intentionally concealed the 

evidence of this malfeasance from Ms. Sutphin.4

2 The Will, executed October 26, 1990, named Mr. Abrams as the Executor of the 

Estate and as Trustee of the Trust. The Will devised all of Nancy Pat Lewis-Smith’s stock 

in Lewis Chevrolet to the Trust. The Will limited the Trust to a ten-year period and required 

Mr. Abrams to distribute the Trust’s assets to the beneficiaries on the date of termination, 

which was November 23, 2019. The beneficiaries were Nancy Pat Lewis-Smith’s three 

children: Ms. Sutphin, Langhorne, and Nancy Lewis Haley.

3 The Complaint also named the Estate, the Trust, and the surviving children of 

Nancy Lewis Haley as notice defendants.

4 The claims asserted by Ms. Sutphin against Mr. Abrams were addressed by this 

Court in a separate appeal in Sutphin v. Abrams, No. 22-ICA-126, 2023 WL 4030072, at 

*1 (W. Va. Ct. App. June 15, 2023).
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Ms. Sutphin’s complaint consists of thirty pages of factual background that is 

incorporated by reference to each of her sixteen substantive counts. Relevant to the 

Respondents herein, the Complaint asserts claims against Rachel and Sarah for violations 

of the West Virginia Business Corporation Act, breach of fiduciary duties as directors and 

officers of Lewis Chevrolet, conversion, negligence, and fraud/constructive fraud. The 

complaint asserts claims against Rachel, Sarah, Langhorne, and Ronald for tortious 

interference with inheritance, civil conspiracy, unjust enrichment, constructive trust, 

punitive damages, and attorney’s fees and costs. 

Factually, the Complaint alleges that Langhorne “agreed to assist Rachel in the

purchase” of certain property “by taking unsecured note for her 1/3 share of proceeds” and 

otherwise conspired with the other Respondents to retain all benefit from Lewis Chevrolet.5

Regarding Ronald, the Complaint alleges that he remained employed at Lewis Chevrolet 

despite the company’s negative or declining income, received benefits from his 

employment such as health insurance and travel expenses, and otherwise conspired with 

the other Respondents to retain all benefit from Lewis Chevrolet. In regard to Rachel, the 

Complaint alleges that she signed for the adoption of corporate bylaws as the corporate 

secretary when she was not the secretary, failed to keep corporate minutes or any 

documentation authorizing her corporate actions, borrowed money from the Estate, 

executed a loan on behalf of Lewis Chevrolet, received salary and benefits from Lewis 

Chevrolet, entered Lewis Chevrolet into a Management Fee Administration Agreement 

whereby she received 100% of the fee generated, purchased property from the Estate, and 

otherwise conspired with the other Respondents to retain all benefit from Lewis Chevrolet. 

Regarding Sarah, the Complaint alleges that she certified corporate bylaws that are not 

valid, failed to keep corporate minutes or any documentation that authorized her corporate 

actions, received benefits from her employment and otherwise conspired with the other 

Respondents to retain all benefit from Lewis Chevrolet.

On March 31, 2022, Langhorne and Ronald moved to dismiss the claims against 

them. On the same date, Rachel and Sarah moved for partial dismissal of the claims against 

them. Specifically, Rachel and Sarah moved to dismiss the claims against them for 

conversion, negligence, tortious interference with inheritance, fraud, unjust enrichment, 

and constructive trust. They did not move to dismiss claims against them for violations of

the West Virginia Business Corporation Act, breach of fiduciary duties as officers and 

5 The allegation regarding the sale of property to Rachel is part of a larger factual 

allegation against Mr. Abrams. As stated in the Complaint:

On November 8, 2017, Defendant David Abrams, in his capacity as Executor 

of the Estate, allowed his daughter, Defendant Rachel Hopkins, to borrow 

$41,926.82 from the Estate - pursuant to a one-page, unsigned, and unsecured 

promissory note - and repay the Estate at the rate of 0.22% per year for the 

purchase of Lot 122 at Flat Top Lake in Ghent, West Virginia.
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directors of Lewis Chevrolet, civil conspiracy, punitive damages, or attorney’s fees and 

costs. 

On July 29, 2022, the circuit court held a hearing on the Respondents’ motions. 

Following the hearing, on September 28, 2022, the circuit court issued the order now on 

appeal. In that order, the circuit court concluded, in regard to Langhorne, that the 

Complaint made no factual allegation that Langhorne was involved in any actions that 

resulted in disproportionate treatment of Ms. Sutphin with respect to the Estate and 

therefore, the claim against Langhorne for tortious interference with inheritance was 

dismissed. However, Ms. Sutphin’s allegations against Langhorne in regard to the civil 

conspiracy claim were sufficient to survive a motion to dismiss. The circuit court also

dismissed the claims against Langhorne for unjust enrichment and constructive trust for 

failure to allege in the complaint a factual and legal basis for tortious actions committed by 

Langhorne. The circuit court further dismissed the claims against Langhorne for punitive 

damages and attorney’s fees and costs. 

In regard to Ronald, the circuit court concluded that Ms. Sutphin’s Complaint failed

to put him on notice of the claims against him and dismissed him entirely from the case. 

Regarding Rachel and Sarah, the circuit court dismissed the claims against them for 

conversion, negligence, unjust enrichment, and constructive trust because these claims 

were made against Rachel and Sarah in their capacities as officers and directors of the 

dealership and therefore those claims were duplicative of the claims against them for 

violations of the West Virginia Business Corporation Act and breaches of their fiduciary 

duties. As to the tortious interference with inheritance claim against them, the circuit court 

held that Ms. Sutphin failed to allege some type of action by Rachel or Sarah that 

improperly or wrongly affected the administration of the Estate and because she failed to 

do so, the claim was dismissed.

On appeal, we apply the following standard of review: “[a]ppellate 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 

W. Va., 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)).

First, Ms. Sutphin asserts that the circuit court erred by dismissing her claims against 

Langhorne for tortious interference with inheritance, unjust enrichment, constructive trust, 

punitive damages, and attorney’s fees. We disagree. Under Rule 8 of the West Virginia 

Rules of Civil Procedure, “a complaint must be intelligibly sufficient for a circuit court or 
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an opposing party to understand whether a valid claim is alleged and, if so, what it 

is.” Scott Runyan Pontiac-Buick, Inc., 194 W. Va. at 776, 461 S.E.2d at 522. To survive a 

motion under Rule 12(b)(6), “[t]he complaint must set forth enough information to outline 

the elements of a claim or permit inferences to be drawn that these elements exist.”

Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., 244 W. Va. at 521, 

854 S.E.2d at 883. Here, it is not readily apparent how the allegations in the Complaint 

against Langhorne outline the elements of a claim, or permit inferences to be drawn that

the elements exist, for any claim other than civil conspiracy.

6 Given that the only clear 

allegation of wrongdoing in the Complaint against Langhorne is that she conspired with 

others who then committed torts, the circuit court did not err in allowing Ms. Sutphin’s 

claim for civil conspiracy to go forward while dismissing the remainder of the claims 

against Langhorne.

Next, Ms. Sutphin asserts that the circuit court erred by dismissing all her claims 

against Ronald. We agree as it pertains to the civil conspiracy claim. “Since the preference 

is to decide cases on their merits, courts presented with a motion to dismiss . . . construe 

the complaint in the light most favorable to the plaintiff, taking all allegations as

true.” Sedlock v. Moyle, 222 W. Va. 547, 550, 668 S.E.2d 176, 179 (2008). Here, similar 

to Langhorne, the Complaint specifically alleges Ronald conspired with the other 

Respondents to commit the fraudulent, tortious, and wrongful acts or omissions described 

in the Complaint. Assuming the facts in the Complaint to be true and viewing all inferences 

in favor of Ms. Sutphin, given the specific allegation against Ronald, his close relationship 

with other alleged tortfeasors and his position in management of Lewis Chevrolet, it was 

error for the circuit court to dismiss the civil conspiracy claim against Ronald. 

Ms. Sutphin next asserts that the circuit court erred by dismissing her claims for 

conversion, negligence, unjust enrichment, tortious interference with inheritance and 

constructive trust against Rachel and Sarah. We agree with Ms. Sutphin as to the claims 

for conversion, negligence, unjust enrichment and constructive trust but disagree as to the 

claim for tortious interference with inheritance. First, we note that while we agree with the 

circuit court’s reasoning that these claims are duplicative of the claims asserted against 

Rachel and Sarah for violations of the West Virginia Business Corporation Act and 

breaches of their fiduciary duties, Rule 8(e)(2) of the West Virginia Rules of Civil 

Procedure allows a party to plead alternative legal theories. See Sydenstricker v. 

Mohan, 217 W. Va. 552, 563, 618 S.E.2d 561, 572 (2005) (holding that doctrine of judicial 

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“A civil conspiracy is not a per se, stand-alone cause of action; it is instead a legal 

doctrine under which liability for a tort may be imposed on people who did not actually 

commit a tort themselves but who shared a common plan for its commission with the actual 

perpetrator(s).” Syl. Pt. 9, Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009) 

(citation omitted).
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estoppel could not be applied to prevent a party from pleading alternative defenses 

because Rule 8(e)(2) permitted this). However, 

[i]t is generally recognized that there can be only one recovery of damages 

for one wrong or injury. Double recovery of damages is not permitted; the 

law does not permit a double satisfaction for a single injury. A plaintiff may 

not recover damages twice for the same injury simply because he has two 

legal theories.

Syl. Pt. 7, Harless v. First Nat. Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982).

Therefore, Ms. Sutphin may plead alternative theories of recovery, but she may only 

recover once for the same injury. Accordingly, it was error for the circuit court to dismiss 

Ms. Sutphin’s claims for conversion, negligence, unjust enrichment, and constructive trust

at this stage in the proceedings. 

Turning to Ms. Sutphin’s claim for tortious interference with inheritance against 

Rachel and Sarah, our Supreme Court of Appeals has held that bald statements or a 

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

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

omitted). Here, in regard to this claim, Ms. Sutphin’s Complaint simply incorporates all of 

her factual allegations by reference and then states “[Respondents] willfully, intentionally, 

fraudulently, and illegally interfered with Ms. Sutphin’s inheritance from the Trust as 

described above.” In her brief before this Court, Ms. Sutphin does not point to any factual 

allegation in the Complaint which demonstrates that Rachel and/or Sarah committed any 

act that interfered with her inheritance. Accordingly, the circuit court did not err by 

dismissing this count against Rachel and Sarah. 

Lastly, Ms. Sutphin asserts that the circuit court erred by dismissing her claims with 

prejudice. We agree. Generally, orders granting motions to dismiss pursuant to Rule 12(b) 

of the West Virginia Rules of Civil Procedure grant dismissal without prejudice. See Syl. 

Pt. 3, Rhododendron Furniture & Design, Inc. v. Marshall, 214 W. Va. 463, 466, 590 

S.E.2d 656, 659 (2003) (citing Syl. Pt. 4, United States Fidelity and Guaranty Company v. 

Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965) (abrogated on other grounds)).

7 Therefore, 

7 Ms. Sutphin also argues throughout her brief, as she did in her prior appeal, that 

the circuit court erred by concluding that her estate related claims should be dismissed 

because they were not brought before the county commission. However, just as in Ms. 

Sutphin’s prior appeal to this Court, we do not agree with Ms. Sutphin’s interpretation of 

the circuit court’s order. Rather, the circuit court merely mentions a probate issue that falls

within the jurisdiction of the county commission and properly states it does not have 

jurisdiction over such issue. See also Sutphin v. Abrams, No. 22-ICA-126, 2023 WL 

4030072, at *4 (W. Va. Ct. App. June 15, 2023).
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we affirm the circuit court’s order as it pertains to Langhorne, reverse as it pertains to the 

civil conspiracy claim against Ronald, reverse, in part, and affirm, in part, as to Rachel and 

Sarah, and reverse the dismissal of claims with prejudice. Accordingly, this matter is 

remanded to the circuit court for entry of an order consistent with this decision and such 

further proceedings as it deems necessary. 

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

ISSUED: March 25, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr

Judge Charles O. Lorensen

Judge Daniel W. Greear