IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

September 2020 Term

_______________

No. 18-0984

_______________

MOUNTAINEER FIRE & RESCUE EQUIPMENT, LLC,

BRIAN CAVENDER, and WALTER CAVENDER,

Petitioners

v.

CITY NATIONAL BANK OF WEST VIRGINIA, and

JOE BEAM,

Respondents

________________________________________________________

Appeal from the Circuit Court of Kanawha County

The Honorable Charles E. King, Judge

Civil Action No. 18-C-17

REVERSED AND REMANDED

________________________________________________________

Submitted: September 15, 2020

Filed: November 20, 2020

Michael D. Weikle, Esq.1

Tiffin, Ohio

Counsel for Petitioners

Ancil G. Ramey, Esq.

Steptoe & Johnson PLLC

Huntington, West Virginia

Counsel for Respondent City National 

Bank of West Virginia

Miles B. Berger, Esq.

Romano & Associates, PLLC

Charleston, West Virginia

Counsel for Respondent Joe Beam

1

At the time this opinion was filed, the records of this Court showed that 

petitioners’ counsel, Michael D. Weikle, was not licensed to practice law in West Virginia.

FILED

November 20, 2020

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
JUSTICE HUTCHISON delivered the Opinion of the Court.

CHIEF JUSTICE ARMSTEAD concurs, in part, and dissents, in part, and reserves 

the right to file a separate opinion.

JUSTICE JENKINS concurs, in part, and dissents, in part, and reserves the right to 

file a separate opinion.
i

SYLLABUS BY THE COURT

1. “Appellate review of a circuit court’s order granting a motion to 

dismiss a complaint is de novo.” Syllabus Point 2, State ex rel. McGraw v. Scott Runyan 

Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).

2. “The trial court, in appraising the sufficiency of a complaint on a Rule 

12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt that the 

plaintiff can prove no set of facts in support of his claim which would entitle him to relief. 

Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syllabus Point 

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

3. “An interpretation of the West Virginia Rules of Civil Procedure

presents a question of law subject to a de novo review.” Syllabus Point 4, Keesecker v. 

Bird, 200 W. Va. 667, 490 S.E.2d 754 (1997).

4. “Only matters contained in the pleading can be considered on a 

motion to dismiss under Rule 12(b) R.C.P., and if matters outside the pleading are 

presented to the court and are not excluded by it, the motion should be treated as one for 

summary judgment and disposed of under Rule 56 R.C.P. if there is no genuine issue as to 

any material fact in connection therewith.” Syllabus Point 4, in part, U. S. Fid. & Guar. 

Co. v. Eades, 150 W. Va. 238, 144 S.E.2d 703 (1965) (overruled on other grounds by

Sprouse v. Clay Commc’n, Inc., 158 W. Va. 427, 211 S.E.2d 674 (1975)).
ii

5. “A circuit court ruling on a motion to dismiss under Rule 12(b)(6) of 

the West Virginia Rules of Civil Procedure may properly consider exhibits attached to the 

complaint without converting the motion to a Rule 56 motion for summary judgment.” 

Syllabus Point 1, Forshey v. Jackson, 222 W. Va. 743, 671 S.E.2d 748 (2008).

6. When a movant makes a motion to dismiss a pleading pursuant to Rule 

12(b)(6) of the West Virginia Rules of Civil Procedure, and attaches to the motion a 

document that is outside of the pleading, a court may consider the document only if (1) the 

pleading implicitly or explicitly refers to the document; (2) the document is integral to the 

pleading’s allegations; and (3) no party questions the authenticity of the document. If a 

document does not meet these requirements, the circuit court must either expressly 

disregard the document or treat the motion as one for summary judgment as required by 

Rule 12(b)(7).

7. A circuit court’s decision whether or not to review a document outside 

of the pleadings, which is attached to a motion to dismiss pursuant to Rule 12(b)(6) of the 

West Virginia Rules of Civil Procedure, will be reviewed for an abuse of discretion.
1

HUTCHISON, Justice:

In this appeal from the Circuit Court of Kanawha County, we examine orders

dismissing various counterclaims and crossclaims from this action. The parties’ arguments 

about the dismissal orders seemingly implicate the complicated interplay between the 

duties of banks toward their customers, the Uniform Commercial Code, and the statutory 

fiduciary duties of the members of limited liability companies.

At its heart, however, this appeal focuses on a narrow issue: the interpretation 

and application of Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. That rule, 

although brief in length, can be devastating in application because it permits a trial court 

to dismiss a pleading that, beyond doubt, has “fail[ed] to state a claim upon which relief 

can be granted.” The petitioners in this appeal argue that the circuit court improperly 

granted motions, pursuant to Rule 12(b)(6), to dismiss all claims they asserted against both 

of the respondents. In part, the petitioners assert that the circuit court improperly 

considered exhibits outside the pleadings that one respondent attached to its motion to 

dismiss.

As we set forth below, we find that the petitionerssufficiently asserted claims 

against both respondents, and that the respondents failed to show otherwise beyond doubt. 

We further find that a circuit court may consider only those exhibits that are intrinsic to the 

drafting of the pleading under challenge.
2

I. Factual and Procedural Background

When we examine a circuit court’s order dismissing a pleading under Rule 

12(b)(6), we are required to accept the pleading’s allegations as true. As we have often 

said, “Since the preference is to decide cases on their merits, courts presented with a motion 

to dismiss for failure to state a claim 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) (citing John W. Lodge Distrib. Co. v. Texaco, Inc., 161 W. Va. 603, 

605, 245 S.E.2d 157, 158 (1978)). Hence, we begin with a recitation of the crossclaims 

and counterclaims asserted by the petitioners against the respondents in their pleading. 

Petitioners Walter Cavender and Brian Cavender are experienced firefighters 

and EMTs. Working together for 15 years, the Cavenders sold fire safety and rescue 

equipment.

In 2011, the Cavenders met with respondent Joe Beam, who presented 

himself as a successful businessman with an excellent credit record and a long-established 

banking relationship with the other respondent, City National Bank of West Virginia, Inc. 

(“City National”). The Cavenders reached an agreement with Mr. Beam to create a new 

limited liability company, petitioner Mountaineer Fire & Safety Equipment, LLC

(“Mountaineer Fire”). The three men agreed that the Cavenders would continue to sell 

equipment to their many existing customers, while Mr. Beam would provide the Cavenders 

with office space and an office manager to handle mail, accounting, and other paperwork. 
3

The parties agreed that the Cavenders would be the majority owners and own 60% of 

Mountaineer Fire, while Mr. Beam would own 40%.

On March 11, 2011, Brian Cavender filed Articles of Organization for 

Mountaineer Fire with the West Virginia Secretary of State’s office identifying Brian 

Cavender, Walter Cavender, and Mr. Beam as the only members.

Seven days later, on March 18, 2011, Brian Cavender and Mr. Beam visited 

City National to open a company checking account on behalf of Mountaineer Fire. City 

National provided them with a form resolution titled “Limited Liability Company Banking 

Resolution” (the “2011 Resolution”), and Brian Cavender and Mr. Beam completed and 

signed the form. The resolution designated Brian Cavender and Mr. Beam as the agents 

having authority to sign City National documents for Mountaineer Fire. The 2011 

Resolution further authorized Brian Cavender and Mr. Beam to “enter into any such 

agreements” with City National regarding “funds, checks or items” of Mountaineer Fire. 

The 2011 Resolution also specified that it would remain in effect until City National 

received a “written notice of any amendment or revocation thereof[.]” Despite quoting 

language from the 2011 resolution, the petitioners did not attach a copy of the document to 

their pleading.

After receiving the signed 2011 Resolution, City National opened a checking 

account in the name of Mountaineer Fire (the “2011 account”).
4

Over two years later, around June 27, 2013, Mr. Beam visited City National. 

The petitioners allege that, without notice to or authorization by Brian or Walter Cavender, 

and without a properly adopted corporate resolution, Mr. Beam directed City National to 

open a new checking account in the name of Mountaineer Fire (the “2013 account”).

The petitioners assert in their pleading that City National provided Mr. Beam 

with a form “Limited Liability Company Authorization Resolution” to complete (the “2013 

Resolution”). However, it seems Mr. Beam failed to properly complete the form 2013 

Resolution. Quoting from the resolution, the petitioners point out that the form resolution 

required signatures from at least two members of Mountaineer Fire (the “Secretary” and 

“One Other Officer”); the form was signed by Mr. Beam alone. Second, quoting from the 

2013 Resolution, the petitioners noted that the form provided: “This resolution supersedes 

resolution dated _____. If not completed, all resolutions remain in effect.” Because Mr. 

Beam did not complete this portion, the petitioners contend that the 2011 Resolution 

continued to govern Mountaineer Fire’s relationship with City National and, more 

importantly, that Brian Cavender retained the authority to act on behalf of Mountaineer 

Fire with City National. While the petitioners quoted language from the 2013 resolution, 

they did not attach a copy of the document to their pleading.

Despite Mr. Beam not having true authority from Mountaineer Fire to open 

an account, and despite not providing a properly adopted corporate resolution establishing 

his agency, the petitioners allege that City National improperly opened the new 2013 
5

account. City National designated Mr. Beam as the only person with authority to make 

deposits to, and withdrawals from, the 2013 account.

In the Spring of 2017, Brian Cavender completed the sale of a fire truck on 

behalf of Mountaineer Fire. The sale terms reached by Brian Cavender required 

Mountaineer Fire to pay a $10,000 sales commission to a third party and permitted 

Mountaineer Fire to earn a $50,000 fee. Thereafter, Brian Cavender asked Mr. Beam 

several times if payment for the fire truck had been received; Mr. Beam repeatedly said it 

had not. On May 31, 2017, Brian Cavender went to Mountaineer Fire’s office after hours 

to search the files kept by Mr. Beam and his office manager. The files revealed that 

Mountaineer Fire had in fact received full payment from the customer for the fire truck. 

Further, the files showed that Mr. Beam had paid himself $55,000 and had simultaneously 

failed to pay the third-party his commission (thereby breaching Mountaineer Fire’s

agreement with the third party, and adversely affecting the company’s relationship with the 

third party).

The petitioners assert that Brian Cavender’s search of the files also revealed 

that Mr. Beam had “made undisclosed and unapproved distributions” to himself and to 

other businesses he owned for services supposedly provided to Mountaineer Fire. West 

Virginia law provides that “[a] member [of a limited liability company] is not entitled to 

remuneration for services performed for a limited liability company[.]” W. Va. Code § 

31B-4-403(d) (1996). Mr. Beam apparently never discussed with Brian or Walter 
6

Cavender paying himself or his other business interests from Mountaineer Fire’s income, 

and never received proper authorization to do so. 

Following discussions with Brian Cavender, Mr. Beam agreed that he would 

withdraw as a member from Mountaineer Fire. However, Mr. Beam allegedly refused to 

provide a complete accounting of Mountaineer Fire’s income and expenses. Moreover, 

Mr. Beam asserted that he was entitled to thousands of dollars in compensation from 

Mountaineer Fire for services he had provided. Further, the petitioners believed that at 

some point Mr. Beam initiated a collection action against a customer of Mountaineer Fire, 

a volunteer fire department. The collection action was not successful, and the customer is 

demanding Mountaineer Fire pay its legal expenses. The customer now refuses to work 

with the petitioners, and other customers in the area will not accept the petitioners’ sales 

calls.

On June 8, 2017, Brian Cavender filed a report with the West Virginia 

Secretary of State’s office listing Brian Cavender and Walter Cavender as the only 

members of Mountaineer Fire. Thereafter, the Cavenders opened a new checking account 

with a different bank on behalf of Mountaineer Fire.

The petitioners claim that Brian Cavender then approached City National and 

asked it to close Mountaineer Fire’s accounts.2

 Brian Cavender presented City National 

2

The pleading is unclear when the petitioners learned of the existence of the 

2013 account. The petitioners seem to suggest they did not learn of the 2013 account until 

Continued . . .
7

with the documents filed with the Secretary of State showing Mr. Cavender was a member 

of the company, and, conversely, showing that Mr. Beam was not. The petitioners allege 

that City National refused to close the 2013 account and “falsely or recklessly” informed 

Brian Cavender that he did not have authority over Mountaineer Fire’s account. 

Nevertheless, City National subsequently agreed to change the mailing address on the 2013 

account from Mr. Beam’s offices to the Cavenders’ offices.

In early December 2017, Mountaineer Fire received in the mail a printed

account statement for the 2013 account from City National that showed a balance of 

$5,130. The statement allegedly also showed that, after May 31, 2017, and after Mr. Beam 

agreed to leave the company, Mr. Beam had collected outstanding balances owed to 

Mountaineer Fire by certain customers, had deposited those amounts into the 2013 account 

with City National, and had then paid himself.

Thereafter, the petitioners say they again contacted City National and again 

demanded that City National close the 2013 account. The petitioners note that the 2011 

Resolution remained in effect and that Brian Cavender had full agency over Mountaineer 

Fire’s accounts. However, City National again refused to close the account or to pay the 

balance of the account to the petitioners.

after parting ways with Mr. Beam in June 2017. City National claims the petitioners had 

to have known of the account’s existence shortly after it was created in 2013.
8

The petitioners later learned that, on December 20, 2017, Mr. Beam filed a 

report with the Secretary of State that added his name as a member of Mountaineer Fire. 

Mr. Beam falsely certified that he was a member of Mountaineer Fire “holding a powerof-attorney and . . . duly authorized to file this report on behalf of this limited liability 

company[.]”

This case was initiated in the circuit court by respondent City National on 

January 5, 2018. City National filed a “complaint for interpleader” against petitioners

Mountaineer Fire, Brian Cavender and Walter Cavender, and against respondent Mr. 

Beam. City National asserted that it had learned of a dispute between the Cavenders and 

Mr. Beam over Mountaineer Fire’s funds in City National accounts and, because of the 

dispute, could not “determine which of the various parties to this action may have some 

valid claim to the disputed funds[.]” City National asked the circuit court for an order 

permitting it to pay the disputed funds into the circuit court so that any party who was 

lawfully entitled could resolve their claim to those funds. See generally W.Va. R. Civ. P. 

22 (establishing claims for interpleader).

This appeal arises out of the thirty-page responsive pleading filed by 

petitioners Mountaineer Fire, Brian Cavender, and Walter Cavender. The petitioners

answered City National’s complaint for interpleader, asserting at various points that City 

National had been “grossly negligent” and was “not an innocent stakeholder and bears 

substantial responsibility for the unlawful conversion of Mountaineer Fire’s funds by Joe 

Beam.” The petitioners claimed that City National opened the 2013 account despite 
9

knowing that Mr. Beam did not have proper authorization from Mountaineer Fire to do so, 

and that City National knew or should have known Mr. Beam was violating his fiduciary 

duties to the company.

The petitioners’ pleading went on to assert (1) crossclaims against Mr. Beam 

and (2) counterclaims against City National.

Against Mr. Beam, the petitioners asserted five crossclaims. First, the 

petitioners generally contended that, as a member of Mountaineer Fire, Mr. Beam breached 

his fiduciary duties of loyalty and care to the company and his fellow members. However, 

in an error that later became a point of contention, the petitioners went on to specifically 

allege that Mr. Beam violated the duties of loyalty and care “set forth under West Virginia 

Code 31B-4-409(a)(1) and (2)(a)(b) and (c)[.]” As Mr. Beam would later argue, West 

Virginia Code § 31B-4-409(a) (1996) is composed of a single sentence, and it has no 

subsections (1) or (2). Second, the petitioners generally contended that Mr. Beam 

unlawfully converted funds belonging to Mountaineer Fire on deposit with City National. 

However, again, the petitioners specifically contended that the conversion violated the 

“duties set forth under West Virginia Code 31B-4-409(a)(1) and (2)(a)(b) and (c)[.]” Third, 

the petitioners claimed that Mr. Beam had converted property belonging to Mountaineer 

Fire to his personal use; fourth, that Mr. Beam had tortiously interfered with Mountaineer 

Fire’s business operations; and fifth, had committed fraud.
10

Against City National, the petitioners asserted three counterclaims. In the 

first counterclaim, the petitioners alleged that City National had engaged in breach of 

contract and breach of the covenant of good faith and fair dealing. In the second

counterclaim, the petitioners claimed that City National had aided and abetted the breach 

of a fiduciary duty by Mr. Beam. The petitioners restated their claim that Mr. Beam had 

breached his fiduciary dutiesto Mountaineer Fire, and then alleged that City National either 

knew Mr. Beam was breaching those duties or was negligent in not knowing. According 

to the petitioners, City National’s actions “constitute substantial and knowing assistance”

to Mr. Beam in breaching his fiduciary obligations and, therefore, City National should be 

jointly liable for the damages caused by that breach. In the third and final counterclaim, 

the petitioners alleged that City National had aided and abetted Mr. Beam in committing 

tortious interference with Mountaineer Fire’s business operations. 

Mr. Beam and City National moved to dismiss the petitioners’ cross- and 

counterclaims. Citing to Rule 12(b)(6), Mr. Beam and City National claimed that the 

petitioners’ pleading failed to state a claim upon which relief could be granted. City 

National attached copies of the 2011 and 2013 Resolutions, copies of the account opening 

documents, and several canceled checks and checking account statements to its motion as 

support for its arguments.

In two orders, both dated September 26, 2018, the circuit court dismissed all 

of the petitioners’ cross- and counterclaims. In the first order regarding the five crossclaims 

against Mr. Beam, the circuit court focused on the fiduciary duty statute cited by the 
11

petitioners. The circuit court found that “[s]ince West Virginia Code 31B-4-409(a)(1) and 

(2)(a)(b) and (c) do not exist, and thus are not valid law under which relief could be granted 

or under which duties could be assigned,” the petitioners failed to properly state a claim 

that Mr. Beam had engaged in a breach of fiduciary duty toward the petitioners, and failed 

to properly state a claim that Mr. Beam had unlawfully converted the company’s funds on 

deposit with City National. Additionally, the circuit court found that the petitioners had 

failed to “specifically allege, with any particularity whatsoever, any specific acts of 

‘conversion’” of Mountaineer Fire property by Mr. Beam, had failed to “show a prima 

facie case of tortious interference,” and had failed to properly state a claim for fraud. The 

circuit court therefore dismissed all of the petitioners’ claims against Mr. Beam.

In the second order, the circuit court dismissed the three counterclaims 

asserted by the petitioners against City National, granted City National’s request for 

interpleader, and permitted City National to pay the proceeds of Mountaineer Fire’s bank 

accounts into the court. First, the circuit court found that the petitioners failed to state a 

claim for breach of contract because they had failed to “identify a single term of the contract 

allegedly breached” by City National. Further, based upon City National’s interpretation 

of the account documents attached to the motion to dismiss, the circuit court found that 

City National had “breached no term of any contract relative to” the petitioners. The circuit 

court also found that there can be no claim for breaching the implied covenant of good faith 

and fair dealing independent from a breach of the written contract. 
12

As to the petitioners’ second counterclaim, that City National had aided and 

abetted Mr. Beam’s breach of his fiduciary duties, the circuit court concluded that a bank 

has no duty to monitor depository accounts – and, therefore, the petitioners could not 

prevail on their claim. Similarly, on the petitioners’ final counterclaim that City National 

had aided and abetted Mr. Beam’s tortious interference, the circuit court found that the 

petitioners “identify no contractual or business relationships alleged to have been interfered 

with by Defendant Beam[.]” Further, the circuit court noted that all of the parties were in 

contractual relationships with one another, and “one cannot tortiously interfere with one’s 

own relationship.” Accordingly, the circuit court concluded that the petitioners had failed 

to state a claim against City National upon which relief could be granted and dismissed all 

three claims.

The petitioners now appeal the circuit court’s September 26, 2018, orders 

dismissing the petitioners’ pleading, pursuant to Rule 12(b)(6), for failing to state a claim 

upon which relief can be granted.

II. Standard of Review

A circuit court’s decision that a complaint fails to state a claim on which 

relief can be granted is a ruling of law, and we review such a decision de novo. See Syl. 

Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 

S.E.2d 516 (1995) (“Appellate review of a circuit court’s order granting a motion to dismiss 

a complaint is de novo.”).
13

The parties’ arguments in this appeal challenge the circuit court’s 

interpretation and application of Rule 12(b)(6) of the West Virginia Rules of Civil 

Procedure. As we have often stated, “An interpretation of the West Virginia Rules of Civil 

Procedure presents a question of law subject to a de novo review.” Syl. pt. 4, Keesecker 

v. Bird, 200 W. Va. 667, 490 S.E.2d 754 (1997).

III. Discussion

The petitioners contend that the circuit court erred in granting respondents’

motions to dismiss pursuant to Rule 12(b)(6). They argue that the circuit court failed to 

consider all the petitioners’ factual allegations, and for the few allegations it did consider, 

that the circuit court improperly imputed inferences favorable to the respondents.

Additionally, the petitioners challenge City National’s decision to attach 

documents to its Rule 12(b)(6) motion to dismiss. The petitioners argue that City 

National’s decision to attach those documents should have compelled the circuit court to 

either ignore those documents, or to have treated the motion as one for summary judgment 

(as required by Rule 12(b)(7) of the Rules of Civil Procedure).

We begin by outlining, in detail, the parameters of Rule 12(b)(6).
14

A. Rule 12(b)(6)

Rule 12(b)(6) of the West Virginia Rules of Civil Procedure permits a party 

responding to a pleading3

asserting an entitlement to relief to file a motion asking the circuit 

court to dismiss all or part of the pleading for “failure to state a claim upon which relief 

can be granted.” A motion under Rule 12(b)(6) tests the adequacy of the claims and the 

notice provided by the allegations in the pleading. Newton v. Morgantown Mach. & 

Hydraulics of W. Virginia, Inc., 242 W. Va. 650, 653, 838 S.E.2d 734, 737 (2019) (“[T]he 

purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is 

to test the sufficiency of the complaint.”). When a Rule 12(b)(6) motion is made, the 

pleading party has no burden of proof. Rather, the burden is upon the moving party to 

prove that no legally cognizable claim for relief exists. See 5B Charles A. Wright, Arthur 

R. Miller, Federal Practice and Procedure § 1357 (3rd ed. 2020) (“All federal courts are in 

agreement that the burden is on the moving party to prove that no legally cognizable claim 

for relief exists.”).

3

Rule 7(a) of the Rules of Civil Procedure defines “pleading” as

a complaint and an answer; a reply to a counterclaim 

denominated as such; an answer to a cross-claim, if the answer 

contains a cross-claim; a third-party complaint, if a person who 

was not an original party is summoned under the provisions of 

Rule 14; and a third-party answer, if a third-party complaint is 

served. No other pleading shall be allowed, except that the 

court may order a reply to an answer or a third-party answer.
15

Rule 8(f) of the West Virginia Rules of Civil Procedure dictates that courts 

liberally construe pleadings so “as to do substantial justice.” Accord, Cantley v. Lincoln 

Cty. Comm’n, 221 W. Va. 468, 470, 655 S.E.2d 490, 492 (2007) (“A trial court considering 

a motion to dismiss under Rule 12(b)(6) must liberally construe the complaint so as to do 

substantial justice.”). Hence, “[t]he trial court, in appraising the sufficiency of a complaint 

on a Rule 12(b)(6) motion, should not dismiss the complaint unless it appears beyond doubt 

that the plaintiff can prove no set of facts in support of his claim which would entitle him 

to relief.” Syl. pt. 3, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 

(1977). 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. Chapman, 160 W. Va. at 538, 236 S.E.2d at 212. The task of a court in ruling 

on a Rule 12(b)(6) motion “is merely to assess the legal feasibility of the complaint, not to 

assay the weight of the evidence which might be offered in support thereof.” Sims v. Artuz, 

230 F.3d 14, 20 (2d Cir. 2000) (citation omitted).

Rule 12(b)(6) is not to be read or applied in a vacuum; it is intermeshed with 

numerous other rules. For instance, Rule 8(a)(1) requires that a pleading set forth nothing 

more than “a short and plain statement of the claim showing that the pleader is entitled to 

relief[.]” The Rules of Civil Procedure eschew “technical forms of pleading” and require 

only that “[e]ach averment of a pleading shall be simple, concise, and direct.” Rule 8(e)(1). 

A party may plead “two or more statements of a claim . . . alternatively or hypothetically[.]” 
16

Rule 8(e)(2). Claims for relief may be stated on behalf of multiple plaintiffs “jointly, 

severally, or in the alternative” against multiple defendants, and the parties “need not be 

interested in obtaining or defending against all of the relief demanded.” Rule 20(a). Rule 

15(a) permits liberal amendments to a party’s pleadings, while Rule 15(b) makes clear that 

pleadings may be amended not only as late as trial, but “even after judgment” “to cause 

them to conform to the evidence[.]” Rule 15(b) further permits parties to examine at trial 

“issues not raised by the pleadings” and treat those issues “in all respects as if they had 

been raised in the pleadings,” if the parties give express or implied consent. Overall, the 

Rules require that the “final judgment” in every case (except one by default) “shall grant 

the relief to which the party in whose favor it is rendered is entitled, even if the party has 

not demanded such relief in the party’s pleadings.” Rule 54(c) (emphasis added).

Taken as a whole, the West Virginia Rules of Civil Procedure establish the 

principle that a plaintiff pleading a claim for relief need only give general notice as to the 

nature of his or her claim. 4

 Stated simply, when Rule 12(b)(6) is viewed in the context of 

these other intermeshing rules,

4 This Court acknowledges that federal courts have grafted an additional 

standard onto the analysis of federal Rule 12(b)(6) motions: to survive a motion to dismiss, 

the pleading’s factual allegations must “state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 

544, 570 (2007)). The cases giving rise to this standard are “known slangily as Twiqbal,” 

Natalma McKnew, I Just Love a Good Debate! Twombly and Iqbal Five Years Later, 33 

Franchise L.J. 33, 41 (2013), and have engendered a “blizzard” of criticism and a slew of 

Continued . . .
17

[t]he intent and effect of the rules is to permit the claim to be 

stated in general terms; the rules are designed to discourage 

battles over mere form of statement and to sweep away the 

needless controversies which the [common law] codes 

permitted that served either to delay trial on the merits or 

prevent a party from having a trial because of mistakes in 

statement.

Advisory Committee Report, October, 1955, Note to Rule 8(a)(2), 5 Charles A. Wright & 

Arthur R. Miller, Federal Practice and Procedure § 1201 (3rd Ed. 2020). As we once said, 

“The primary purpose of this Court in adopting and promulgating the Rules of Civil 

Procedure for trial courts was to eliminate the intricacies and interminable delays inherent 

cases that are “wildly inconsistent.” See generally, McCauley v. City of Chicago, 671 F.3d 

611, 622 (7th Cir. 2011) (Hamilton, Judge, dissenting, in part).

However, West Virginia Rules of Civil Procedure 8 and 12, along with our 

interpretation of those rules, are more generous and weighted toward resolving cases on 

their merits than what is allowed by federal courts under the federal rules. While this Court 

gives clout to federal cases in determining the meaning and scope of our rules, we have 

just as often said this does not mean that our “legal analysis in this area should amount to

. . . Pavlovian responses to federal decisional law.” Stone v. St. Joseph’s Hosp. of

Parkersburg, 208 W. Va. 91, 112, 538 S.E.2d 389, 410 (2000) (McGraw, J., concurring, 

in part, and dissenting, in part) (holding that West Virginia disability discrimination law 

“is not mechanically tied to federal disability discrimination jurisprudence.”). Rather, “[a]

federal case interpreting a federal counterpart to a West Virginia rule of procedure may be 

persuasive, but it is not binding or controlling.” Syl. pt. 3, Brooks v. Isinghood, 213 W. 

Va. 675, 678, 584 S.E.2d 531, 534 (2003).

Under West Virginia law, when measuring the sufficiency of a complaint, 

“all that is required by a plaintiff is ‘fair notice.’” Roth v. DeFeliceCare, Inc., 226 W. Va. 

214, 220 n.4, 700 S.E.2d 183, 189 n.4 (2010) (quoting Scott Runyan Pontiac–Buick, 

Inc., 194 W. Va. at 776, 461 S.E.2d at 522). We continue to firmly abide by this standard. 

See, e.g., Goldstein v. Peacemaker Properties, LLC, 241 W. Va. 720, 730, 828 S.E.2d 276, 

286 (2019) (“West Virginia remains a notice-pleading state.”).
18

in the rules of common law pleading.” Barker v. Traders Bank, 152 W. Va. 774, 780, 166 

S.E.2d 331, 335 (1969).

In light of the purpose behind the Rules of Civil Procedure, this Court has 

steadfastly held that, to survive a motion under Rule 12(b)(6), a pleading need only outline 

the alleged occurrence which (if later proven to be a recognized legal or equitable claim), 

would justify some form of relief.5 “The complaint must set forth enough information to 

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

Fass v. Nowsco Well Serv., Ltd., 177 W. Va. 50, 52, 350 S.E.2d 562, 563 (1986). “[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.” Scott Runyan PontiacBuick, Inc., 194 W. Va. at 776, 461 S.E.2d at 522.

“[A] trial court should not dismiss a complaint where sufficient facts have 

been alleged that, if proven, would entitle the plaintiff to relief.” Cantley v. Lincoln Cty. 

Comm’n, 221 W. Va. at 470, 655 S.E.2d at 492. Hence, dismissal under Rule 12(b)(6) is 

not warranted merely because the pleading fails to state all of the elements of the particular 

legal theory advanced; instead, the circuit court should examine the allegations as a whole 

to determine whether they call for relief on any possible theory. Moreover, a party is not 

required to establish a prima facie case at the pleading stage. “Before discovery has 

5 Stated in the vernacular, a complaint need only provide the who, what, 

where, and when of a problem, so that the responding party can formulate a response and 

the court can begin to decide how to remedy that problem.
19

unearthed relevant facts and evidence, it may be difficult to define the precise formulation 

of the required prima facie case in a particular case. Given that the prima facie case 

operates as a flexible evidentiary standard, it should not be transposed into a rigid pleading 

standard[.]” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 512 (2002). Accordingly, our 

pleading rules, like the Federal Rules of Civil Procedure, “do not countenance dismissal of 

a complaint for imperfect statement of the legal theory supporting the claim asserted.” 

Johnson v. City of Shelby, Miss., 574 U.S. 10, 11 (2014).

Stated differently, “a complaint is sufficient against a motion to dismiss 

under Rule 12(b)(6), if it appears from the complaint that the plaintiff may be entitled to 

any form of relief, even though the particular relief he has demanded and the theory on 

which he seems to rely are not appropriate.” 5 Charles A. Wright & Arthur R. Miller,

Federal Practice and Procedure § 1219 (3rd Ed. 2020) (emphasis added). As one court 

stated,

if the court can reasonably read the pleadings to state a valid 

claim on which the plaintiff could prevail, it should do so 

despite the plaintiff’s failure to cite proper legal authority, his 

confusion of various legal theories, his poor syntax and 

sentence construction, or his unfamiliarity with pleading 

requirements.

Fresquez v. Minks, 567 F. App’x 662, 664 (10th Cir. 2014).

Finally, a pleading is only required to provide “fair notice of what the 

plaintiff’s claim is and the grounds upon which it rests.” Leatherman v. Tarrant Cty.

Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). See also
20

Refrigerated Trans., Inc. v. North Carolina Occidental Fire and Cas. Co., 705 F.2d 821, 

825 (6th Cir. 1983) (The function of a pleading is “to give the opposing party fair notice of 

the nature and basis or grounds for a claim, and a general indication of the type of litigation 

involved.”). “This simplified notice pleading standard relies on liberal discovery rules and 

summary judgment motions to define disputed facts and issues and to dispose of 

unmeritorious claims.” Swierkiewicz, 534 U.S. at 512. See also Sticklen v. Kittle, 168 W. 

Va. 147, 163, 287 S.E.2d 148, 157 (1981) (“Such simplified ‘notice pleading’ is made 

possible by the liberal opportunity for discovery and the other pretrial procedures 

established by the Rules to disclose more precisely the basis of both claim and defense and 

to define more narrowly the disputed facts and issues.”).

Having stated these guidelines, we wish to make one point clear: our 

simplified pleading standard is not an excuse for “carelessly drafted or baseless 

pleading[s].” Stricklen, 168 W. Va. at 164, 287 S.E.2d at 157-58. Importantly, Rule 11 of 

the West Virginia Rules of Civil Procedure obligates an attorney to sign every pleading 

presented to a court. When an attorney files the pleading with the court, he

is certifying that to the best of his knowledge, information, and 

belief formed after an inquiry reasonable under the 

circumstances that . . . the claims, defenses, and other legal 

contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal 

of existing law or the establishment of new law.

(Emphasis added). A court may, on its own initiative, “call out” behavior by an attorney 

or self-represented litigant that appears to violate Rule 11, and may impose sanctions 
21

“sufficient to deter repetition of such conduct or comparable conduct by those similarly 

situated.” W. Va. R. Civ. P. 11(c)(2).

B. Claims against Respondent Beam

The petitioners argue that the circuit court erred in granting Mr. Beam’s

motion to dismiss the petitioners’ crossclaims. In his summary response, Mr. Beam asserts 

that the petitioners “filed carelessly drafted, unsupported, nonsensical and spurious 

pleadings,” and that dismissal of the pleading was warranted. To resolve this dispute, we, 

like the circuit court, assess the allegations made by the petitioners.

The petitioners’ pleading repeatedly alleges that respondent Joe Beam 

opened a City National checking account in 2013 without the knowledge of or 

authorization from Mountaineer Fire, Brian Cavender, and Walter Cavender. West 

Virginia’s laws regarding member-managed limited liability companies like Mountaineer 

Fire specifically provide that “[e]ach member has equal rights in the management and 

conduct of the company’s business[.]” W. Va. Code § 31B-4-404(a)(1) (1996). The 

petitioners allege that Mr. Beam violated this statutory duty when he opened the 2013 

account.

Moreover, the petitioners’ pleading also alleges that Mr. Beam presented 

City National with the unauthorized, partially-completed 2013 Resolution suggesting that 

only Mr. Beam had authority over Mountaineer Fire’s accounts. The pleading indicates 

that as a result of this “unauthorized revocation of Brian Cavender’s authority over all [of] 
22

Mountaineer Fire’s deposit accounts and funds on deposit . . . Brian Cavender could no 

longer confirm Mountaineer Fire’s deposits of its sales income or payments made[.]” The 

pleading continues that, without notice to or permission from the petitioners, Mr. Beam 

“made undisclosed and unapproved distributions in payment to his related business 

interests for services,” actions the plaintiffs indicate violated West Virginia Code § 31B4-403, which says a member of a limited liability company “is not entitled to remuneration

for services performed[.]” After the petitioners parted company with Mr. Beam (that is, 

sometime after May 31, 2017), the petitioners allege Mr. Beam claimed Mountaineer Fire 

still owed him $90,000 for services performed for the company.

In the first, specific count of their pleading against Mr. Beam, the petitioners

averred generally that Mr. Beam committed multiple violations of the fiduciary duties 

owed to Mountaineer Fire and the Cavenders. West Virginia Code § 31B-4-409(a)

provides that “[t]he only fiduciary duties a member owes to a member-managed company 

and its other members are the duty of loyalty and the duty of care[.]”

6

 Petitioners’ pleading 

6

West Virginia Code § 31B-4-409(a), (b), and (c) (1996) imposes the 

following duties on members of limited liability companies:

(a) The only fiduciary duties a member owes to a membermanaged company and its other members are the duty of 

loyalty and the duty of care imposed by subsections (b) and (c) 

of this section.

(b) A member’s duty of loyalty to a member-managed 

company and its other members is limited to the following:

Continued . . .
23

contains sufficient factual allegations to support a claim that Mr. Beam, while a member 

of Mountaineer Fire, breached his statutorily-imposed fiduciary duties toward Mountaineer 

Fire and his fellow members, the Cavenders.

The petitioners’ second count generally alleges that “Joe Beam’s acts and 

omissions as described herein constitute the unlawful conversion of Mountaineer Fire’s 

funds” on deposit with City National. “The tortious or unlawful taking of personal 

property, and the exercise of ownership and dominion over it, against the consent of the 

owner is, in law, a conversion of the property[.]” Syl. pt. 1, Arnold v. Kelly, 4 W. Va. 642 

(1871). Throughout their pleading, the petitioners assert that Mr. Beam used the City 

(1) To account to the company and to hold as trustee for 

it any property, profit or benefit derived by the member 

in the conduct or winding up of the company’s business 

or derived from a use by the member of the company’s 

property, including the appropriation of a company’s 

opportunity;

(2) To refrain from dealing with the company in the 

conduct or winding up of the company’s business as or 

on behalf of a party having an interest adverse to the 

company; and

(3) To refrain from competing with the company in the 

conduct of the company’s business before the 

dissolution of the company.

(c) A member’s duty of care to a member-managed company 

and its other members in the conduct of and winding up of the 

company’s business is limited to refraining from engaging in 

grossly negligent or reckless conduct, intentional misconduct 

or a knowing violation of law.
24

National accounts to secretly disburse Mountaineer Fire’s funds to himself and to his own 

separate businesses. For example, Mr. Beam allegedly used Mountaineer Fire funds to pay 

an engineer employed by one of his related business interests. The petitioners also claim 

Mr. Beam “unlawfully converted $55,000” to his own use from the sale of a fire truck by 

Mountaineer Fire. Taking the petitioners’ allegations as true, sufficient facts have been 

averred which would justify a finding that Mr. Beam took money belonging to Mountaineer 

Fire and exercised ownership and dominion over it, without consent of a majority of the 

company’s members. 

We pause here to note that the circuit court focused on a typographic blunder 

by the petitioners in both of their first two counts against Mr. Beam. The petitioners

asserted that, “[f]or purposes presented here the duty of loyalty and the duty of care . . . 

include the duties set forth under West Virginia Code 31B-4-409(a)(1) and (2)(a)(b) and 

(c).” (Emphasis added). Obviously, this is an improper citation because West Virginia 

Code § 31B-4-409(a), quoted earlier in footnote 5, is composed of a single sentence and

has no subsections (1) or (2). However, despite the text of Section 409(a) clearly imposing 

fiduciary duties of loyalty and care, the circuit court dismissed the first and second counts, 

in part, because Sections “‘409(a)(1) and (2)(a)(b) and (c)’ do not exist, and thus are not 

valid law under which relief could be granted or under which duties could be assigned[.]” 

Neither Rule 8(a) nor Rule 12(b)(6) countenance dismissal of a complaint merely because 

it imperfectly states the legal theory supporting the claim asserted, or improperly cites to 

the relevant statutory authority. We find the circuit court clearly erred because, despite the 
25

partially inaccurate statutory citation, the allegations as a whole call for relief against Mr. 

Beam. The pleading provides fair notice of what the petitioners’ claims are and the grounds 

upon which they rest. Accordingly, we reverse and reinstate the petitioners’ first and 

second claims against Mr. Beam.

Like the petitioners’ second count, the third count also alleges conversion. 

The petitioners’ pleading describes that when Mountaineer Fire was formed in 2011, Brian 

Cavender contributed $100,000 of fire safety rescue equipment to the company, as well as 

two vehicles and other equipment. Their pleading asserts that Mr. Beam secretly “sold 

equipment owned by Mountaineer Fire that had been contributed by Brian Cavender and 

failed to disclose these sales or account for payments received or deliver the payments 

received to Mountaineer Fire.” The petitioners claim Mr. Beam’s acts and omissions 

“constitute an unlawful conversion of personal property for his personal use and/or benefit 

and/or the use and/or benefit of his related business interest[s.]”

Mr. Beam argues that the circuit court correctly found that the petitioners

failed to “specifically allege, with any particularity whatsoever, any specific acts of 

‘conversion[.]’” We note, however, that Rule 8 eschews technical, hyper-specific pleading 

and only requires a pleader to provide notice by way of “a short and plain statement of the 

claim” that is “simple, concise and direct.” The petitioners’ counterclaims define property 

that was given to Mountaineer Fire, and their pleading alleges that respondent Beam 

converted that property to his own use. We therefore reverse the circuit court and reinstate 

the petitioners’ third count.
26

The fourth crossclaim asserted by the petitioners was that Mr. Beam’s acts 

and omissions “constitute tortious interference with Mountaineer Fire’s business 

operation[s]” following Mr. Beam’s agreement to withdraw as a member of Mountaineer 

Fire. The petitioners claim that after Mr. Beam withdrew from the company, Mr. Beam 

continued to use Mountaineer Fire’s checking account to make deposits and to disburse 

money to himself. The pleading alleges that Mr. Beam’s actions forced Mountaineer Fire 

to materially breach a commission contract with a third party, and adversely and materially 

affected the company’s relationship with that third party. The pleading also alleges that, 

at some point, Mr. Beam hired counsel to initiate legal action against a customer of 

Mountaineer Fire. That legal action was unsuccessful, and the customer is demanding 

payment of its legal fees as well as refusing to accept sales calls from Mountaineer Fire. 

Other customers in the area have also, allegedly, stopped accepting Mountaineer Fire’s 

sales calls. Finally, the petitioners contend in their pleading that on December 20, 2017, 

Mr. Beam filed documents with the Secretary of State adding his name as a member of 

Mountaineer Fire and falsely certifying that he was “duly authorized” to do so.

The circuit court dismissed this counterclaim because the petitioners had 

failed “to allege the necessary elements so as to show a prima facie case of tortious 

interference,” ostensibly because the petitioners identified no contractual or business 

relationship that was interfered with by Mr. Beam. We have held that, to establish a prima 

facie claim of tortious interference, a plaintiff must show:

(1) existence of a contractual or business relationship or 

expectancy;
27

(2) an intentional act of interference by a party outside that 

relationship or expectancy;

(3) proof that the interference caused the harm sustained; and

(4) damages.

Syllabus Point 2, in part, Torbett v. Wheeling Dollar Sav. & Tr. Co., 173 W. Va. 210, 314 

S.E.2d 166 (1983). However, a plaintiff is not required to establish a prima facie case at 

the pleading stage. Instead, the circuit court should examine the allegations as a whole to 

determine whether they call for relief on any possible theory, and it may not dismiss a 

complaint where sufficient facts have been alleged that, if proven, would entitle the 

plaintiff to relief.

We have carefully examined the allegations regarding tortious interference 

in the petitioners’ pleading and, while we do not find them to be models of artful drafting, 

we do find that they sufficiently allege facts that, if proven, would entitle the petitioners to 

relief. The petitioners have alleged that Mr. Beam intentionally interfered with business 

relationships and expectancies, particularly after Mr. Beam left Mountaineer Fire, acts that 

harmed Mountaineer Fire’s business prospects.

Finally, we examine the petitioners’ last crossclaim against Mr. Beam which 

alleges fraud. This is the one count in the pleadings that gives us pause. Rule 9(b) of the 

West Virginia Rules of Civil Procedure requires that “[i]n all averments of fraud . . . the 

circumstances constituting fraud . . . shall be stated with particularity.” As we have said, 

“A pleading which includes a claim of fraud requires more than the short, plain statement 
28

of the claim contemplated under Rule 8(a)(1).” Highmark W. Virginia, Inc. v. Jamie, 221 

W. Va. 487, 493, 655 S.E.2d 509, 515 (2007). See also, Kessel v. Leavitt, 204 W. Va. 95, 

132, 511 S.E.2d 720, 757 (1998) (when a party alleges that he/she has been injured by the 

fraud or fraudulent conduct of another, “the circumstances constituting fraud . . . [must] be 

stated with particularity.”). To prove a claim of fraud, a plaintiff must establish

(1) that the act claimed to be fraudulent was the act of the 

defendant or induced by him; (2) that it was material and false; 

that plaintiff relied upon it and was justified under the 

circumstances in relying upon it; and (3) that he was damaged 

because he relied upon it.

Syl. pt. 1, in part, Lengyel v. Lint, 167 W. Va. 272, 280 S.E.2d 66 (1981).

However, pleading a claim of fraud is substantially different from proving a 

claim of fraud. A plaintiff does not need to prove a claim of fraud at the pleading stage;

rather he needs to articulate the claim with enough particularity so that the defending party 

can properly respond. The petitioners’ fraud count is sparse, and says nothing more than 

that Mr. Beam’s “acts and/or omissions described herein constitute fraud[.]” Standing 

alone, we might hold that this count fails to meet the heightened pleading requirements of 

Rule 9(b). However, the petitioners’ pleading, taken as a whole, fleshes out the bare-bones 

averment of fraud. As we have already said, the pleading adequately notifies Mr. Beam 

that the petitioners intend to show he induced the Cavenders into a long-term scheme to 

fraudulently siphon funds from Mountaineer Fire’s accounts for his own use, that the 

petitioners unwittingly relied upon Mr. Beam, and that they suffered to their detriment. We 
29

find the circuit court erred in ruling that the allegation was insufficient, but leave it to the 

parties, at the discovery stage, to clarify and narrow this claim.

In summary, Mr. Beam failed to establish beyond doubt that the petitioners’

pleading does not state a claim upon which relief may be granted. We therefore reverse 

the circuit court’s order dismissing the petitioners’ crossclaims.

C. Claims against Respondent City National

To reiterate, City National initiated this case with a complaint for 

interpleader. City National contends that this case is nothing more than a dispute between 

the Cavenders on one side and Mr. Beam on the other, haggling over around $5,130 in 

Mountaineer Fire’s checking accounts. City National asserts it has “no dog in this fight,”

that it wants to deposit the money with the circuit court, and then be dismissed.

The petitioners’ pleading, however, asserts that City National bears some 

responsibility for Mr. Beam’s actions. As we noted, City National promptly moved, 

pursuant to Rule 12(b)(6), to dismiss the petitioners’ counterclaims. However, City 

National attached various exhibits to the motion. These exhibits fall into three categories: 

(1) copies of the 2011 and 2013 Resolutions; (2) the applications and contracts to open the 

2011 and 2013 accounts at City National; and (3) copies of checks and checking account 

statements. City National argues that these documents are integral to the petitioners’

claims and, therefore, could be considered by the circuit court. The petitioners, however, 
30

argue that the circuit court should have either (1) not considered the documents, or (2) 

reviewed the motion as one for summary judgment pursuant to Rule 56.

As we have extensively discussed above, Rule 12(b)(6) permits a party to 

move to dismiss a pleading for “failure to state a claim upon which relief can be granted.” 

Rule 12(b)(7) of the Rules of Civil Procedure further provides that:

If, on a motion asserting the defense numbered (6) to dismiss 

for failure of the pleading to state a claim upon which relief can 

be granted, matters outside the pleading are presented to and 

not excluded by the court, the motion shall be treated as one 

for summary judgment and disposed of as provided in Rule 56, 

and all parties shall be given reasonable opportunity to present 

all material made pertinent to such a motion by Rule 56.

The general rule is, therefore, that circuit courts considering motions under Rule 12(b)(6) 

should confine their review to the four corners of the complaint or other disputed pleading

and may not consider extraneous documents. As this Court has held:

Only matters contained in the pleading can be 

considered on a motion to dismiss under Rule 12(b) R.C.P., 

and if matters outside the pleading are presented to the court 

and are not excluded by it, the motion should be treated as one 

for summary judgment and disposed of under Rule 56 R.C.P. 

if there is no genuine issue as to any material fact in connection 

therewith. . . .

Syl. pt. 4, in part, United States Fid. & Guar. Co. v. Eades, 150 W. Va. 238, 144 S.E.2d 

703 (1965) (overruled on other grounds by Sprouse v. Clay Commc’n, Inc., 158 W. Va. 

427, 211 S.E.2d 674 (1975)). See also Franklin D. Cleckley, Robin J. Davis, & Louis J. 

Palmer, Jr., Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6)[3], 

at 354 (3d ed. 2008) (“Only matters contained in the pleading can be considered on a 
31

motion to dismiss under Rule 12(b)(6). However, if matters outside the pleading are 

presented to the court and are not excluded by it, the motion must be treated as one for 

summary judgment and disposed of under Rule 56.”).

This Court has recognized, however, a limited exception to this rule: a court 

may review documents annexed to a pleading. Rule 10(c) of the Rules of Civil Procedure 

provides that “[a] copy of any written instrument which is an exhibit to a pleading is a part 

thereof for all purposes.” We therefore held in Syllabus Point 1 of Forshey v. Jackson, 222 

W. Va. 743, 671 S.E.2d 748 (2008), that “[a] circuit court ruling on a motion to dismiss 

under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure may properly consider 

exhibits attached to the complaint without converting the motion to a Rule 56 motion for 

summary judgment.”

Rule 10(c) is permissive, and a plaintiff is under no obligation to attach to 

the pleading documents upon which the action is based. “However, a defendant may 

introduce certain pertinent documents if the plaintiff fails to do so.” Weiner v. Klais & Co., 

108 F.3d 86, 89 (6th Cir. 1997). In Forshey, we discussed additional circumstances where 

a trial court could review extraneous exhibits – exhibits not attached to the pleading but 

instead attached to the motion to dismiss – without converting the Rule 12(b)(6) dismissal 

motion into one for summary judgment. We noted that, for purposes of Rule 12(b)(6),

the complaint is deemed to include any written instrument 

attached to it as an exhibit or any statements or documents 

incorporated in it by reference. Even where a document is not 

incorporated by reference, the court may nevertheless consider 

it where the complaint “relies heavily upon its terms and 
32

effect,” which renders the document “integral” to the 

complaint. . . . 

[G]enerally, the harm to the plaintiff when a court considers 

material extraneous to a complaint is the lack of notice that the 

material may be considered. Accordingly, where plaintiff has 

actual notice of all the information in the movant’s papers and 

has relied upon these documents in framing the complaint the 

necessity of translating a Rule 12(b)(6) motion into one under 

Rule 56 is largely dissipated. . . . [O]n a motion to dismiss, a 

court may consider “documents attached to the complaint as an 

exhibit or incorporated in it by reference, . . . matters of which 

judicial notice may be taken, or . . . documents either in 

plaintiffs’ possession or of which plaintiffs had knowledge and 

relied on in bringing suit. Because this standard has been 

misinterpreted on occasion, we reiterate here that a plaintiff’s 

reliance on the terms and effect of a document in drafting the 

complaint is a necessary prerequisite to the court’s 

consideration of the document on a dismissal motion; mere 

notice or possession is not enough. 

Forshey v. Jackson, 222 W. Va. at 748, 671 S.E.2d at 753 (quoting Chambers v. Time 

Warner, Inc., 282 F.3d 147, 152–53 (2d Cir. 2002) (cleaned up)). As one court stated 

succinctly

When, as now, a complaint’s factual allegations are expressly 

linked to—and admittedly dependent upon—a document (the 

authenticity of which is not challenged), that document 

effectively merges into the pleadings and the trial court can 

review it in deciding a motion to dismiss under Rule 12(b)(6).

Beddall v. State St. Bank & Tr. Co., 137 F.3d 12, 17 (1st Cir. 1998). See also, Zak v. 

Chelsea Therapeutics Int’l, Ltd., 780 F.3d 597, 606–07 (4th Cir. 2015) (“Consideration of 

a document attached to a motion to dismiss ordinarily is permitted only when the document 

is integral to and explicitly relied on in the complaint, and when the plaintiffs do not 

challenge the document’s authenticity.” (Cleaned up)); Marder v. Lopez, 450 F.3d 445, 
33

448 (9th Cir. 2006) (When considering a motion to dismiss, “[a] court may consider 

evidence on which the complaint ‘necessarily relies’ if: (1) the complaint refers to the 

document; (2) the document is central to the plaintiff’s claim; and (3) no party questions 

the authenticity of the copy attached to the 12(b)(6) motion.”); Pension Ben. Guar. Corp. 

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) (“[A] court may consider 

an undisputedly authentic document that a defendant attaches as an exhibit to a motion to 

dismiss if the plaintiff’s claims are based on the document.”). This rule is necessary 

because, “[o]therwise, a plaintiff with a legally deficient claim could survive a motion to 

dismiss simply by failing to attach a dispositive document on which it relied.” Pension 

Ben. Guar. Corp., 998 F.2d at 1196.

Before relying on extraneous materials attached to a motion to dismiss, a trial 

court must be assured that the authenticity of the materials is undisputed. If the materials 

are of questionable provenance or are subject to competing interpretations, courts should 

avoid factoring them into their equation. “[A] ruling on a motion for dismissal pursuant 

to Rule 12(b)(6) is not an occasion for the court to make findings of fact.” Roth v. Jennings, 

489 F.3d 499, 509 (2d Cir. 2007). Further, the trial court must ensure that the pleading 

party had notice of the extraneous materials.

A finding that plaintiff has had notice of documents used by 

defendant in a 12(b)(6) motion is significant since, as noted 

earlier, the problem that arises when a court reviews statements 

extraneous to a complaint generally is the lack of notice to the 

plaintiff that they may be so considered; it is for that reason—

requiring notice so that the party against whom the motion to 

dismiss is made may respond—that Rule 12(b)(6) motions are 

ordinarily converted into summary judgment motions. Where 
34

plaintiff has actual notice of all the information in the movant’s 

papers and has relied upon these documents in framing the 

complaint the necessity of translating a Rule 12(b)(6) motion 

into one under Rule 56 is largely dissipated.

Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991).

We therefore hold that, when a movant makes a motion to dismiss a pleading 

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

the motion a document that is outside of the pleading, a court may consider the document 

only if (1) the pleading implicitly or explicitly refers to the document; (2) the document is 

integral to the pleading’s allegations; and (3) no party questions the authenticity of the 

document. If a document does not meet these requirements, the circuit court must either

expressly disregard the document or treat the motion as one for summary judgment as 

required by Rule 12(b)(7).

A question remains, however, as to what standard of review applies to a 

circuit court’s decision to review a document outside the pleadings. As noted above, cases 

have consistently recognized that a trial court can or may, but is not required to, consider 

documents outside of the pleadings. In other words, consideration of documents outside 

the pleadings is discretionary. Accordingly, we conclude that a circuit court’s decision 

whether or not to review a document outside of the pleadings, which is attached to a motion 

to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure, will be 

reviewed for an abuse of discretion.
35

We now turn to the three categories of documents City National attached to 

its motion to dismiss. First, City National attached copies of the 2011 and 2013 

Resolutions. The record indicates that City National provided copies of the resolutions to 

the petitioners before litigation commenced. Moreover, in drafting their pleading, the 

petitioners specifically relied upon, and quoted extensively from, both resolutions. Hence, 

the circuit court was absolutely within its discretion to consider both resolutions when 

making its decision.

Second, City National attached copies of account documentation, including 

applications signed by Brian Cavender and Mr. Beam in 2011, and signed by Mr. Beam 

alone in 2013. These applications incorporate contractual terms. City National provided 

copies of this account documentation to the petitioners before litigation began. In drafting 

their pleading, the petitioners made repeated references to the “Authorized Account” (the 

2011 account) and the “Unauthorized Account” (the 2013 account). The petitioners also 

noted that the documents included copies of Mountaineer Fire’s articles of organization

and copies of the 2011 and 2013 Resolutions. The petitioners otherwise made no specific 

reference to these documents.

City National, however, contends that the petitioners generally relied on 

those documents to state their breach of contract claim. After examining the petitioners’

pleading as a whole, we agree. The petitioners shaped many of the allegations in their 

pleading using those documents. Accordingly, the circuit court did not abuse its discretion 

in considering the account documents.
36

Third, City National incorporated copies of canceled checks and account 

statements into its motion to dismiss as well as a later reply. City National noted that the 

petitioners repeatedly claimed in their pleading that they were unaware Mr. Bean had 

opened the 2013 account. However, City National argued that the petitioners knew about 

the account and that their claim was “fraudulent.” In support, City National produced 

copies of checks drawn against the 2013 account that were signed by Mr. Beam on behalf 

of Mountaineer Fire and made payable to Brian or Walter Cavender. City National argued 

this evidence proved that the petitioners’ counterclaims were an “attempt to extort” City 

National. City National also attached copies of account statements. The petitioners

responded that, while the Cavenders may have cashed those checks, they did not know the 

checks were being drawn from an unauthorized account. Moreover, the petitioners argued 

that although they had never seen the account statements, the statements supported their 

case. For example, they showed that after Mr. Beam parted ways with Mountaineer Fire, 

and after the petitioners demanded that City National close the account, Mr. Beam 

continued to deposit customer checks payable to Mountaineer Fire into the account and 

make payments to himself.7

7

The petitioners argued that the statements showed Mountaineer Fire 

customer payments totaling $6,500 were deposited into the account after May 31, 2017. 

Petitioners allege Mr. Beam made deposits in July, October and November 2017. Mr. 

Beam appears to have paid himself – or as the petitioners allege, converted – $1,394 on 

July 19, 2017.

The petitioners also pointed out that the bank statements revealed, for the 

first time, a conversion of funds by Mr. Beam on March 16, 2017, of $38,285.
37

We find it was improper for City National to have included the checks and 

bank statements in its motion to dismiss, and it was an abuse of discretion for the circuit 

court to have considered them in any fashion. The petitioners’ counterclaims did not refer 

to these documents, and the documents were not integral to the petitioners’ allegations. 

More significantly, the parties were substantially at odds regarding the interpretation to be 

given to the documents. City National proffered the documents to show the petitioners

were “bad actors,” while the petitioners (who had never seen many of the documents and 

had no notice of their contents) viewed the documents as additional evidence of City 

National’s and Mr. Beam’s liability. The circuit court should have rejected City National’s 

proffer of these documents or converted the motion to dismiss into one for summary 

judgment under Rule 56, as required by Rule 12(b)(7).

We now turn to the petitioners’ contention that the circuit court erred in 

dismissing their three counterclaims against City National under Rule 12(b)(6). The 

petitioners’ first count asserted breach of contract8 and of the duty of good faith and fair 

dealing.9

 The circuit court dismissed the count in part because the petitioners failed 

8

“A claim for breach of contract requires proof of the formation of a contract, 

a breach of the terms of that contract, and resulting damages.” Sneberger v. Morrison, 235 

W. Va. 654, 669, 776 S.E.2d 156, 171 (2015).

9 “Every contract imposes upon each party a duty of good faith and fair 

dealing in its performance and its enforcement.” Restatement (Second) of Contracts § 205 

(1981). “Good faith” means “honesty in fact and the observance of reasonable commercial 

standards of fair dealing.” W. Va. Code § 46-1-201(20). As the Restatement (Second) of 

Contracts § 205, cmt. d, puts it:

Continued . . .
38

“identify a single term of the contract allegedly breached.” City National does not claim 

that there is no such thing as a cause of action for “breach of contract,” nor does it claim 

there was no contract between the parties. It simply argues that the petitioners failed to 

identify any specific contractual provision.

We concede that the petitioners’ claim is poorly drafted. However, as we 

discussed earlier in this opinion, a plaintiff pleading a claim has no duty to plead a prima 

facie case. In other words, a plaintiff has no duty to specify precisely which term or 

paragraph of the contract was breached in order to properly state a claim; a plaintiff must 

only provide fair notice of what the plaintiff’s claim is and the grounds upon which it rests.

Generally, a plaintiff alleging breach of contract is 

required only to state a sufficient factual basis for the claim to 

put the defendants on notice and allow them to frame a 

response. Thus, a complaint in an action on a contract which 

alleges the contract, performance by the plaintiff, and failure 

to perform on the part of the defendant, resulting in damage to 

the plaintiff, is good against a motion to dismiss for 

insufficiency. Specifics of the contract, such as the date it was 

formed and specifics of the contract’s terms and transactions 

made under the contract, need not be pled.

Subterfuges and evasions violate the obligation of good 

faith in performance even though the actor believes his conduct 

to be justified. But the obligation goes further: bad faith may 

be overt or may consist of inaction, and fair dealing may 

require more than honesty. A complete catalogue of types of 

bad faith is impossible, but the following types are among 

those which have been recognized in judicial decisions: 

evasion of the spirit of the bargain, lack of diligence and 

slacking off, willful rendering of imperfect performance, abuse 

of a power to specify terms, and interference with or failure to 

cooperate in the other party’s performance.
39

61A Am. Jur. 2d Pleading § 208. See also Tracy Bateman, et al., 27 Federal Procedure L. 

Ed. § 62:62 (2020). Viewing the pleading as a whole, the petitioners alleged that they 

made an agreement with City National that the 2011 Resolution gave Brian Cavender 

authority over any Mountaineer Fire checking account. The pleading further asserts that, 

despite that agreement, after May 2017 City National refused Brian Cavender’s requests to 

close the 2013 account or to pay out the proceeds of the account. The petitioners also claim

that, because Mr. Beam continued to use that account, they suffered damages due to City 

National’s refusal to abide by the resolution. Moreover, City National cannot, and does 

not, plead surprise, confusion, or lack of notice regarding the breach claim; its entire 

argument is based on the poor quality of drafting in the petitioners’ pleading. We therefore 

conclude that the petitioners properly stated a claim for breach of contract and of the duty 

of good faith and fair dealing.10

The second count of the petitioners’ pleading is that City National aided and 

abetted Mr. Beam’s breach of his fiduciary duties to Mountaineer Fire and the Cavenders. 

The petitioners have sufficiently alleged that Mr. Beam had statutorily imposed fiduciary 

duties, and that he breached those duties. They have further alleged that Mr. Beam used 

the 2013 account at City National to accomplish his misdeeds, and that City National knew 

10 We do not intend to limit the parties to this interpretation of the pleading 

through the subsequent course of this case. Rather, under Rule 12(b)(6), this is but one 

reasonable interpretation of the pleading, such that the circuit court should have denied 

City National’s motion and concluded that the petitioners had pleaded a claim upon which

relief could be granted.
40

about the misconduct. Moreover, after May 2017, despite no longer being part of the 

company, the petitioners allege City National did nothing to stop Mr. Beam but, instead,

allowed the misconduct to continue. The circuit court, however, did not address these 

contentions. It simply concluded that City National had no fiduciary duty to monitor its 

accounts and could not be held liable. We find the circuit court’s conclusion to be clearly 

wrong. The petitioners are not asserting City National violated a fiduciary duty; they claim 

City National assisted a third party in breaching the third party’s duty. Viewing the 

counterclaims as a whole, the petitioners asserted that (1) Mr. Beam breached his corporate, 

fiduciary duties toward Mountaineer Fire, (2) City National knew or should have known 

he was acting against the interests of Mountaineer Fire, and (3) City National assisted that 

breach. We find the petitioners have stated a claim upon which relief could be granted and, 

therefore, permit the claims to be developed below.11

11 This Court has found that “[f]or harm resulting to a third person from the 

tortious conduct of another, one is subject to liability if he knows that the other’s conduct 

constitutes a breach of duty and gives substantial assistance or encouragement to the other 

so to conduct himself.” Syl. pt. 5, Courtney v. Courtney, 186 W. Va. 597, 413 S.E.2d 418 

(1991). However, neither party has suggested the precise elements of a cause of action for 

aiding and abetting the breach of a fiduciary duty. While we reach no conclusion, our 

research reveals that other courts have recognized the action as a stand-alone tort. See, 

e.g., Sierra Enterprises Inc. v. SWO & ISM, LLC, 264 F. Supp. 3d 826, 838-39 (W.D. Ky. 

2017) (“Kentucky law recognizes a claim for aiding and abetting tortious conduct, which 

covers fiduciary-breach claims. To prevail on this claim, Plaintiffs must show: (1) the 

existence and breach of a fiduciary duty; (2) the defendant gave the breaching party

substantial assistance or encouragement in effectuating the breach; and (3) the defendant 

knew that the party’s conduct breached that fiduciary duty.” (Cleaned up)); Baker v. 

Wilmer Cutler Pickering Hale & Dorr LLP, 81 N.E.3d 782, 793 (Mass. App. 2017) (“The 

elements of the tort of aiding and abetting a breach of fiduciary duty are: (1) there must be 

a breach of fiduciary duty; (2) the defendants must know of the breach; and (3) the 

Continued . . .
41

Third, and finally, the petitioners alleged that City National aided and abetted 

tortious interference by Mr. Beam with Mountaineer Fire’s business relations. City 

National argued, and the circuit court accepted in dismissing the third count, that the 

petitioners failed to identify any contractual or business relationship alleged to have been 

interfered with by Mr. Beam. Additionally, the circuit court adopted City National’s 

argument that the petitioners, Mr. Beam, and City National were all parties to a contractual 

relationship, and one cannot tortiously interfere with one’s own relationship. See Syl. pt. 

1, Shrewsbery v. Nat’l Grange Mut. Ins. Co., 183 W. Va. 322, 395 S.E.2d 745 (1990) (“It 

is impossible for one party to a contract to maintain against the other party to the contract 

a claim for tortious interference with the parties’ own contract; each party has agreed to be 

bound by the terms of the contract itself, and may not thereafter use a tort action to punish 

the other party for actions that are within its rights under the contract.”).

We find the circuit court erred in dismissing the third count of the petitioners’

pleading against City National. The pleading identifies contracts or business relationships 

defendants must have actively participated or substantially assisted in or encouraged the 

breach to such a degree that they could not reasonably have been acting in good faith.”); 

Nasrawi v. Buck Consultants LLC, 179 Cal. Rptr. 3d 813, 824 (Cal. App. 2014) (“A 

defendant is liable for aiding and abetting another in the commission of an intentional tort, 

including a breach of fiduciary duty, if the defendant knows the other’s conduct constitutes 

a breach of duty and gives substantial assistance or encouragement to the other to so act. 

The elements of a claim for aiding and abetting a breach of fiduciary duty are: (1) a third 

party’s breach of fiduciary duties owed to plaintiff; (2) defendant’s actual knowledge of 

that breach of fiduciary duties; (3) substantial assistance or encouragement by defendant 

to the third party’s breach; and (4) defendant’s conduct was a substantial factor in causing 

harm to plaintiff.” (Cleaned up)).
42

that are separate from the agreements between the petitioners and Mr. Beam, or between 

City National, Mr. Beam and the petitioners. For example, the petitioners allege that Mr. 

Beam converted $55,000 from the sale of a fire truck, causing Mountaineer Fire to breach 

an agreement to pay a $10,000 commission to a third party. Mr. Beam also appears to have 

pursued a collection action against a customer of Mountaineer Fire’s without authorization, 

and in the process destroyed the petitioners’ business relationship with that customer and 

with similar customers nearby. The petitioners contend that Mr. Beam could not have 

accomplished these tortious acts without assistance from City National and the 2013 

account. We therefore conclude that the petitioners have sufficiently alleged a claim for 

aiding and abetting tortious interference.

IV. Conclusion

In summary, we find that the petitioners’ pleading stated a sufficient basis 

upon which relief could be granted if the facts, as alleged, are proven. Respondents failed 

to show beyond doubt that the petitioners can prove no set of facts in support of their claims

which would entitle them to relief.

Accordingly, the circuit court’s September 26, 2018, orders, granting 

respondents’ motions to dismiss pursuant to Rule 12(b)(6), are reversed, and the case is 

remanded for further proceedings.

Reversed and remanded.