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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Mark Gomez, a Registered West Virginia Lobbyist,

Plaintiff Below, Petitioner

vs) No. 17-1048 (Kanawha County 17-C-858)

A.C.R. Promotions, Inc., a West Virginia Corporation,

Defendant Below, Respondent

MEMORANDUM DECISION

Petitioner Mark Gomez, pro se, appeals the October 30, 2017, order of the Circuit Court of 

Kanawha County granting Respondent A.C.R. Promotions, Inc.’s motion to dismiss, or in the 

alternative, for judgment on the pleadings. Respondent, by counsel Richard F. Neely, filed a 

response. Petitioner filed a reply.

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. This case satisfies the “limited circumstances” requirement of Rule 21(d) of the 

Rules of Appellate Procedure and is appropriate for a memorandum decision rather than an 

opinion. For the reasons expressed below, the decision of the circuit court is reversed and this case 

is remanded to the circuit court with directions (1) to consider respondent’s motion for judgment 

on the pleadings under the standard set forth in syllabus point three of Copley v. Mingo County 

Board of Education, 195 W.Va. 480, 466 S.E.2d 139 (1995); and (2) to provide petitioner an 

opportunity to be heard pursuant to Rule 201(e) of the West Virginia Rules of Evidence if the court

intends to take judicial notice of certain records of the United States District Court for the Southern 

District of West Virginia (“federal district court”).

On June 21, 2017, petitioner initiated a civil action against respondent in the Circuit Court 

of Kanawha County. In petitioner’s complaint, he alleged that he performed work for respondent 

as a registered lobbyist in 2015 and that respondent desired his lobbying services as a result of 

“forced overpayment of statutory fees by . . . the [West Virginia] Athletic Commission

[(‘WVAC’)] and the newly passed Senate Bill 436 allowing amateur mixed martial arts in the State 

of West Virginia.” Petitioner further alleged that respondent failed to compensate him for his 

services pursuant to an oral agreement that provided that petitioner would receive one-third of the 

net proceeds from the award in an action against WVAC that respondent would file in the federal 

district court. Petitioner claimed $83,333 of the net proceeds of the settlement that respondent 

reached with WVAC in 2016. 

FILED

June 17, 2019

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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 On July 13, 2017, respondent filed a motion to dismiss, or in the alternative, for judgment 

on the pleadings. In that motion, respondent denied that there was “any type of contract or

agreement between [petitioner] and [respondent.]” Respondent further raised the statute of frauds

which bars enforcement of “any agreement that is not to be performed within a year,” if not in 

writing. W.Va. Code §55-1-1(f). Respondent asserted that it filed the action against WVAC on 

May 11, 2015, and did not settle the action until June 21, 2016. Petitioner filed a response to the 

motion on July 28, 2017, and referred to the assertion in his complaint that he performed his 

lobbying services “between April 24[,] 2015[,] through July 1, 2015.” 

Also, on July 28, 2017, petitioner filed a motion for default judgment, arguing that a 

pleading raising the statute of frauds as a defense was neither an answer to his complaint nor a 

Rule 12(b) motion which may be filed prior to the filing of an answer. Following an October 3, 

2017, hearing, the circuit court dismissed petitioner’s action against respondent by order entered 

October 30, 2017. The circuit court found that respondent’s motion sought dismissal of the 

complaint for a failure to state a claim on which relief may be granted pursuant to Rule 12(b)(6) 

of the West Virginia Rules of Civil Procedure. The circuit court further found that, under the 

Supreme Court’s decisions in Bell Atlantic Corporation v. Twombly, 550 U.S. 544, 570 (2007), 

and Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009), to survive a Rule 12(b)(6) motion to dismiss, the 

allegations set forth in the complaint must be “plausible.” The circuit court determined that 

petitioner’s allegations were not plausible, disagreeing with his contention “that his performance 

was completed and fully rendered within a year.” Instead, the circuit court “view[ed] [petitioner’s] 

relationship with [respondent] as on-going and as needed rendering his status as continuous until 

favorable completion of the lawsuit [against WVAC.]” Petitioner now appeals the circuit court’s 

October 30, 2017, order dismissing his action against respondent.

Given petitioner’s argument that he was entitled to a default judgment, we first address the 

nature of respondent’s motion. “A party is normally permitted to make inconsistent factual 

allegations in its pleadings.” Arnold Agency v. West Virginia Lottery Comm’n, 206 W.Va. 583, 

595, 526 S.E.2d 814, 826 (1999); see Rule 8(e)(2), W.V.R.C.P (providing that “[a] party may set 

forth two or more statements of a claim or defense alternately or hypothetically”). Here, petitioner 

acknowledges that respondent’s statement that there was “never any type of contract or agreement 

between [petitioner] and [respondent]” could be construed as a general denial of his allegations, 

but argues that such a denial is inconsistent with raising the statute of frauds as a defense.1

However, we find that respondent permissibly presented alternate theories for dismissing 

petitioner’s action and note that “[e]very defense, in law or fact, . . . shall be asserted in the 

responsive pleading[.]” Rule 12(b), W.V.R.C.P. Therefore, based on our review of the record, we 

 

1Under Rule 8(c), the statute of frauds constitutes an affirmative defense. See Blue Ridge 

Bank, Inc. v. City of Fairmont, 240 W.Va. 123, __ n.22, 807 S.E.2d 794, 801 n.22 (2017). An 

affirmative defense “will defeat the plaintiff’s . . . claim, even if all the allegations in the complaint 

are true.” Black’s Law Dictionary 509 (10th ed. 2014) (Emphasis added.). 
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construe respondent’s motion as both an answer and a motion for judgment on the pleadings.2

Accordingly, we conclude that petitioner was not entitled to a default judgment. 

Second, petitioner argues that the circuit court erred in granting respondent’s motion. In 

Copley v. Mingo County Board of Education, 195 W.Va. 480, 484, 466 S.E.2d 139, 143 (1995), 

we clarified West Virginia law regarding motions for judgment on the pleadings:

by holding that a circuit court, viewing all the facts in a light most favorable to the 

nonmoving party, may grant a motion for judgment on the pleadings only if it 

appears beyond doubt that the nonmoving party can prove no set of facts in support 

of his or her claim or defense. To the extent that this is inconsistent with our ruling 

in Calvert Fire Insurance Co. [v. Bauer, 175 W.Va. 286, 332 S.E.2d 586 (1985)], 

we hereby overrule that decision.

We note that the “no set of facts” formulation, first announced in Conley v. Gibson, 355 U.S. 41, 

45-46 (1957), was disavowed by the Supreme Court of the United States in Twombly. 550 U.S. at 

563; Iqbal, 556 U.S. at 670 (stating that “Twombly retired the Conley no-set-of-facts test”). 

However, we have not adopted the “plausibility” standard set forth in Twombly. See Hoover v. 

Moran, 222 W.Va. 112, 116 n.3, 662 S.E.2d 711, 715 n.3 (2008); Highmark West Virginia, Inc. v. 

Jamie, 221 W.Va. 487, 491 n.4, 655 S.E.2d 509, 513 n.4 (2007). Accordingly, the Conley standard 

remains the controlling law in West Virginia. See Syl. Pt. 2, Roth v. DeFeliceCare, Inc., 226 W.Va. 

214, 700 S.E.2d 183 (2010) (setting forth the “no set of facts” formulation for purposes of 

evaluating motions to dismiss); Syl. Pt. 2, Burch v. Nedpower Mount Storm, LLC, 220 W.Va. 443, 

647 S.E.2d 879 (2007) (quoting syllabus point three of Copley for the standard for evaluating 

motions for judgment on the pleadings). 

In syllabus point three of Copley, we held that “[a] circuit court, viewing all the facts in a 

light most favorable to the nonmoving party, may grant a motion for judgment on the pleadings 

only if it appears beyond doubt that the nonmoving party can prove no set of facts in support of 

his or her claim or defense.” 195 W.Va. at 482, 466 S.E.2d at 141. Based on our review of the 

record, we find that the circuit court failed to evaluate respondent’s motion for judgment on the 

pleadings according to this standard. In disagreeing with petitioner’s allegation “that his 

performance was completed and fully rendered within a year,”3 we find the circuit court erred in 

not viewing all the facts in a light most favorable to the nonmoving party. See Brown v. Fluharty, 

231 W.Va. 613, 615, 748 S.E.2d 809, 811 (2013) (stating that, “[i]nasmuch as this case was 

decided on a motion for judgment on the pleadings, [pursuant to Rule] 12(c), we . . . take the 

factual allegations contained in the complaint as true”). Therefore, we reverse the circuit court’s 

 

2We assume arguendo that petitioner is correct that the statute of frauds is not among those 

defenses that Rule 12(b) permits to be raised in a motion to dismiss.

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In Yanero v. Thompson, 176 W.Va. 257, 259, 342 S.E.2d 224, 226 (1986), we found that 

“[i]t is only necessary that the contract be capable, by reasonable construction, of full performance 

by one side within a year in order to remove it from the statute of frauds.” See Thompson v. Stuckey, 

171 W.Va. 483, 486, 300 S.E.2d 295, 298 (1983).
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dismissal of petitioner’s action and remand this case to the circuit court with directions to evaluate 

respondent’s motion according to the proper standard as set forth in syllabus point three of Copley. 

Finally, petitioner argues that documents introduced by respondent at the October 3, 2017, 

hearing were not authenticated as official records from respondent’s action against WVAC in the 

federal district court. At the hearing, the circuit court overruled petitioner’s objections and 

admitted the documents introduced by respondent as part of respondent’s effort to establish the 

duration of the parties’ contract. Respondent argues that the circuit court could determine on its 

own whether the documents were records from respondent’s federal court action. 

Pursuant to Rules 12(b)(6) and (c), if the court considers matters outside the pleadings, a 

motion requesting dismissal or judgment on the pleadings is treated as a summary judgment 

motion under Rule 56. In Forshey v. Jackson, 222 W.Va. 743, 747, 671 S.E.2d 748, 752 (2008), 

we found that such a motion is not converted into a summary judgment motion when a court 

“consider[s] matters that are susceptible to judicial notice.” (Internal quotations and citations 

omitted.). Rule 201(b)(2) of the West Virginia Rules of Evidence provides that the court may 

judicially notice facts that are not subject to reasonable dispute because they “. . . (2) can be 

accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

See Syl. Pt. 11, in part, Arnold Agency, 206 W.Va. at 587, 526 S.E.2d at 818 (holding that “a court 

may take judicial notice of the orders of another court pursuant to [Rule] 201”). Therefore, we 

conclude that the circuit court may take judicial notice of the records of the federal district court. 

Rule 201(e) provides: “On timely request, a party is entitled to be heard on the propriety of taking 

judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before 

notifying a party, the party, on request, is still entitled to be heard.” Accordingly, we direct that 

the circuit court provide petitioner an opportunity to be heard if it intends to judicially notice the 

federal district court’s records.

For the foregoing reasons, we reverse the circuit court’s October 30, 2017, order dismissing 

petitioner’s action and remand this case with directions that the circuit court (1) consider 

respondent’s motion for judgment on the pleadings under the standard set forth in syllabus point 

three of Copley v. Mingo County Board of Education, 195 W.Va. 480, 466 S.E.2d 139 (1995); and 

(2) to provide petitioner an opportunity to be heard pursuant to Rule 201(e) of the West Virginia 

Rules of Evidence if the court intends to take judicial notice of certain records of the federal district 

court. 

 Reversed and Remanded with Directions.

ISSUED: June 17, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker

Justice Margaret L. Workman

Justice Tim Armstead

Justice Evan H. Jenkins

Justice John A. Hutchison