Peter T. Enslein                                                        Thomas E. Scarr
Sutter & Enslein                                                        Scott D. Maddox
Washington, D.C.                                                      Jenkins Fenstermaker, PLLC
Patrick S. Guilfoyle                                                Huntington, West Virginia
Washington, D.C.                                                Attorneys for Bicknell
Attorneys for the Appellants                                 Manufacturing
                    
                                                                                    W. Michael Frazier
                                                                                    Frazier & Oxley, L.C.
                                                                                    Huntington, West Virginia
                                                                                    Attorney for Buckeye Monument
                                
JUSTICE DAVIS delivered the Opinion of the Court.

    2.    “To what extent a nonresident defendant has minimum contacts with the forum state depends upon the facts of the individual case. One essential inquiry is whether the defendant has purposefully acted to obtain benefits or privileges in the forum state.” Syllabus point 3, Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991).

    3.    “A non-resident employee who is injured in this State and is protected under the terms and provisions of the workers' compensation laws of a foreign state shall not be entitled to the benefits and privileges provided under the West Virginia Workers['] Compensation Act, including the right to file and maintain a deliberate intention cause of action under W. Va. Code § 23-4-2(c)(2) (1994).” Syllabus point 3, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172 (1996).

    4.    A motion under Rule 12(b)(2) of the West Virginia Rules of Civil Procedure cannot be converted to a Rule 56 motion for summary judgment, even though a trial court considers matters outside the pleadings in deciding the Rule 12(b)(2) motion.

    5.    The courts of West Virginia have subject matter jurisdiction over a cause of action brought by an out-of-state employee against an out-of-state employer for an injury occurring in West Virginia, where the complaint can be fairly read as setting out a cause of action under the laws of the foreign jurisdiction wherein the employer is situate, and wherein the employer is obligated to carry some form of workers' compensation.

    In 1998, shortly after terminating his employment with Buckeye,See footnote 2 ² Mr. Easterling filed this civil action alleging that he developed silicosisSee footnote 3 ³ during his employment with Buckeye. Mr. Easterling asserts that Buckeye intentionally caused his exposure to dust particles resulting in his silicosis. Additionally, Mr. Easterling has made Bicknell a defendant in the action,See footnote 4 ⁴ claiming that Bicknell sold defective sandblasting equipment to Buckeye. The Bicknell equipment was used by Mr. Easterling while he was working in West Virginia for Buckeye.

    Both Buckeye and Bicknell filed motions to dismiss under Rule 12(b)(2) of the West Virginia Rules of Civil Procedure, asserting lack of personal jurisdiction. In deciding the motions, the circuit court considered matters outside the pleadings, thereby converting the motions to dismiss into summary judgment motions. The circuit court entered separate orders on February 23, 1999, and April 19, 1999, granting summary judgment to both Buckeye and Bicknell.

    In the instant proceeding, the trial court held a hearing on the Rule 12(b)(2) motions and received evidence outside the pleadings. As a result of considering matters outside the pleadings, the circuit court converted the Rule 12(b)(2) motions to Rule 56 motions for summary judgment.See footnote 5 ⁵ See W. Va. R. Civ. P. 56. Although Mr. Easterling has not raised the issue of the appropriateness of converting motions under Rule 12(b)(2) to motions under Rule 56, we must nevertheless address this matter. “We are duty bound to take up [this] issue sua sponte, because it implicates the scope of our appellate jurisdiction.” Province v. Province, 196 W.Va. 473, 478 n.11, 473 S.E.2d 894, 899 n.11 (1996). Accord State v. Salmons, 203 W. Va. 561, 568-69, 509 S.E.2d 842, 849-50 (1998).

    Some federal courts conclude that “[t]he language of the Federal Rules seems to indicate . . . that a district court may never convert Rule 12(b) motions, other than Rule 12(b)(6) motions, into motions for summary judgment in order to justify examination of extra-pleading information.” Thompson Trading Ltd. v. Allied Lyons PLC, 123 F.R.D. 417, 421 (D.R.I. 1989). In fact, the majority of federal courts considering the issue have held that a Rule 12(b)(2) motion cannot be converted into a Rule 56 motion, even though a trial court considers matters outside the pleadings. See SK Fin. SA v. La Plata County Bd. of County Comm'rs, 126 F.3d 1272, 1275 (10th Cir. 1997); Patterson v. F.B.I., 893 F.2d 595, 604 (3d Cir. 1990); Weidner Communications, Inc. v. H.R.H. Prince Bandar Al Faisal, 859 F.2d 1302, 1306 (7th Cir. 1988); Visual Sciences, Inc. v. Integrated Communications, Inc., 660 F.2d 56, 58 (2d Cir. 1981); Attwell v. LaSalle Nat'l Bank, 607 F.2d 1157, 1161 (5th Cir. 1979); Hanson Eng'rs Inc. v. UNECO, Inc., 64 F. Supp. 2d 797, 799 (C.D. Ill. 1999); Topliff v. Atlas Air, Inc., 60 F.Supp. 2d 1175, 1177 (D. Kan. 1999) ; Sunwest Silver, Inc. v. International Connection, Inc., 4 F. Supp. 2d 1284, 1285 (D.N.M. 1998) ; Bensusan Restaurant Corp. v. King, 937 F. Supp. 295, 298 (S.D.N.Y. 1996); VDI Tech. v. Price, 781 F. Supp. 85, 87 (D.N.H. 1991); Coan v. Bell Atl. Sys. Leasing Int'l., Inc., 813 F. Supp. 929, 942 n.18 (D. Conn. 1990); Ulman v. Boulevard Enters., Inc., 638 F. Supp. 813, 814 n.3 (D. Md. 1986); Mello v. K-Mart Corp., 604 F. Supp. 769, 771 n.1 (D.C. Mass. 1985). The rationale for not converting a motion to dismiss on jurisdictional grounds to a motion for summary judgment has been stated as follows:

    [I]f the court has no jurisdiction, it has no power to enter a judgment on the merits and must dismiss the action. In addition, a dismissal for want of jurisdiction has no preclusive effect and the same action subsequently may be brought in a court of competent jurisdiction. A summary judgment, on the other hand, is on the merits and purports to have preclusive effect on any later action. The court's role on the two motions also is different. On a motion attacking the court's jurisdiction, the . . . judge may resolve disputed jurisdictional-fact issues. On a motion under Rule 56 the judge simply determines whether any issues of material fact exist that require trial.

Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure:

Civil 3d § 2713, at 239-40 (1998). See Syl. pt. 1, in part, Poling v. Belington Bank, Inc., ___ W. Va. ___, ___ S.E.2d ___ (No. 25336 July 13, 1999) (“If a summary judgment is entered under Rule 56 R.C.P. it is a dismissal with prejudice; whereas, a judgment sustaining a motion to dismiss under Rule 12(b) R.C.P. is not a dismissal with prejudice.”); Syl. pt. 4, United States Fidelity & Guar. Co. v. Eades, 150 W. Va. 238, 144 S.E.2d 703 (1965) (same).

    The minority of federal courts that allow a Rule 12(b)(2) motion to be converted to a motion for summary judgment do so because trial courts consider matters outside the pleadings. See Rodriguez v. Fullerton Tires Corp., 115 F.3d 81 (1st Cir. 1997) (permitting Rule 12(b)(2) motion to be converted to Rule 56 motion for summary judgment); Great W. Bank & Trust v. Kotz, 532 F.2d 1252 (9th Cir. 1976) (same); Matosantos Commercial Corp. v. Applebee's Int'l., Inc., 64 F. Supp.2d 1105 (D. Kan. 1999) (same); Woods v. Bentsen, 889 F. Supp. 179 (E.D. Pa. 1995) (same).

    We believe the majority rule to be the better approach. That is, a court with no jurisdiction has no power to enter a judgment on the merits and dismiss the action. Therefore, we hold that a motion under Rule 12(b)(2) cannot be converted to a Rule 56 motion for summary judgment, even though a trial court considers matters outside the pleadings in deciding the Rule 12(b)(2) motion. Having so held, we will treat the trial court's summary judgment disposition as a dismissal without prejudice, and proceed with the remaining issues in the case.

    1. General personal jurisdictional principles. Fundamentally, “jurisdiction cannot be asserted over a defendant with which a state has no contacts, no ties and no relations.” State ex rel. CSR Ltd. v. MacQueen, 190 W. Va. 695, 698, 441 S.E.2d 658, 661 (1994). Indeed, “[a] court which has jurisdiction of the subject matter in litigation exceeds its legitimate powers when it undertakes to hear and determine a proceeding without jurisdiction of the parties.” Syl. pt. 4, State ex rel. Smith v. Bosworth, 145 W. Va. 753, 117 S.E.2d 610 (1960). Thus, “[i]n order to render a valid judgment or decree, a court must have jurisdiction both of the parties and of the subject matter and any judgment or decree rendered without such jurisdiction will be utterly void.” Syl. pt. 1, Schweppes U.S.A. Ltd. v. Kiger, 158 W. Va. 794, 214 S.E.2d 867 (1975).

    We have clearly communicated that “[i]n each case the reasonableness of a state's exercise of jurisdiction over a nonresident foreign corporation must focus on a qualitative analysis of the foreign corporation's contacts with the forum state.” Norfolk S. Ry. Co. v. Maynard, 190 W. Va. 113, 116, 437 S.E.2d 277, 280 (1993) (citing Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed.2d 683 (1977)). This Court cautioned in Norfolk Southern that “[t]he determination of personal jurisdiction stands or falls on each case's unique facts and precludes the use of 'mechanical tests' and 'talismanic jurisdictional formulas.'” 190 W. Va. at 116, 437 S.E.2d at 280 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 478, 485, 105 S. Ct. 2174, 2185, 2189, 85 L. Ed. 2d 528, 545, 549 (1985)).

    Moreover, in Syllabus point 5 of Abbott v. Owens-Corning Fiberglas Corp., 191 W. Va. 198, 444 S.E.2d 285 (1994), this Court relied on the decision in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 290, 100 S. Ct. 559, 563-64,62 L. Ed. 2d 490, 497 (1980), to set forth a two-part analysis for determining whether a circuit court has personal jurisdiction over a nonresident defendant or foreign corporation:

        A court must use a two-step approach when analyzing whether personal jurisdiction exists over a foreign corporation or other nonresident. The first step involves determining whether the defendant's actions satisfy our personal jurisdiction statutes set forth in W. Va. Code, 31-1-15 [1996] and W. Va. Code, 56-3-33 [1996]. The second step involves determining whether the defendant's contacts with the forum state satisfy federal due process.

Accord Syl. pt. 4, Bowers v. Wurzburg, 202 W. Va. 43, 501 S.E.2d 479 (1998).

    In applying our long-arm statutes, which is required by the first step in the foregoing test, we have acknowledged that they “must be read in conjunction with the constitutional due process concept that a foreign corporation must have certain 'minimum contacts' before it is amenable to personal jurisdiction in our courts.” Kidwell v. Westinghouse Elec. Co., 178 W. Va. 161, 162, 358 S.E.2d 420, 421 (1986). We have provided guidance for determining the requisite “minimum contacts” by stating that “[t]he standard of jurisdictional due process is that a foreign corporation must have such minimum contacts with the state of the forum that the maintenance of an action in the forum does not offend traditional notions of fair play and substantial justice.” Syl. pt. 1, Hodge v. Sands Mfg. Co., 151 W. Va. 133, 150 S.E.2d 793 (1966). Accord Syl. pt. 1, Hill by Hill v. Showa Denko, K.K., 188 W. Va. 654, 425 S.E.2d 609 (1992); Hinerman v. Levin, 172 W. Va. 777, 781, 310 S.E.2d 843, 847 (1983); Syllabus, S.R. v. City of Fairmont, 167 W. Va. 880, 280 S.E.2d 712 (1981).

    Further clarifying the concept of minimum contacts, we explained in Norfolk Southern that “[t]he critical element for determining minimum contacts is not the volume of activity but rather 'the quality and nature of the activity in relation to the fair and orderly administration of the laws.'” 190 W. Va. at 116, 437 S.E.2d at 280 (quoting International Shoe Co. v. Washington, 326 U.S. 310, 319, 66 S. Ct. 154, 160, 90 L. Ed. 95, 104 (1945)). In Syllabus point three of Pries v. Watt, 186 W. Va. 49, 410 S.E.2d 285 (1991), we also observed:

        To what extent a nonresident defendant has minimum contacts with the forum state depends upon the facts of the individual case. One essential inquiry is whether the defendant has purposefully acted to obtain benefits or privileges in the forum state.

    Finally, we have recognized that foreseeability is a necessary element in determining whether a defendant's contacts satisfy due process. In this regard, we have commented that “'the foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.'” Showa Denko, 188 W. Va. at 657, 425 S.E.2d at 612, (quoting World-Wide Volkswagen, 444 U.S. at 297, 100 S. Ct. at 567, 62 L. Ed. 2d at 501). Thus, it is within this legal context that we analyze the lower court's rulings.

    2. Dismissal of Buckeye. After concluding that it did not have personal jurisdiction over Buckeye, the circuit court granted summary judgment and stated:

    The court notes that West Virginia has a two-prong test to determine the propriety of personal jurisdiction over a nonresident defendant. After reviewing the facts of this case, the affidavits submitted and the applicable laws of the State of West Virginia, the court finds that the first prong of this test concerning the “long arm” statute has likely been satisfied by the plaintiffs with respect to Buckeye Monument Company. However, the court further finds that the plaintiffs have failed to satisfy their burden concerning the second prong of the test, and, accordingly, finds that Buckeye did not possess sufficient minimum contacts with West Virginia to enable this court to exercise personal jurisdiction over Buckeye and to satisfy due process of law.

    Under step one of the two-step analysis articulated in Syllabus point 5 of Abbott, 191 W. Va. 198, 444 S.E.2d 285, the plaintiffs were required to establish that the actions of Buckeye satisfied W. Va. Code § 56-3-33(a) (1997) (Supp. 1999)See footnote 8 ⁸ and W. Va. Code § 31-1-15 (1997) (Supp. 1999).See footnote 9 ⁹ The circuit court ruled that the plaintiffs established jurisdiction over Buckeye under the long-arm statutes. The plaintiffs have not challenged this favorable ruling by the circuit court. Moreover, in its brief, Buckeye fails to directly address either prong of the two-part test communicated in Abbott.See footnote 10 ¹⁰ In view of the fact that neither party briefed this issue, we will not disturb the circuit court's ruling.

    The second step in determining whether personal jurisdiction exists over Buckeye involves determining whether Buckeye's contacts with West Virginia satisfy federal due process. The circuit court found, in a conclusory fashion, that Buckeye did not have sufficient minimum contacts with West Virginia to satisfy federal due process. In contrast, the record in this case clearly establishes that Buckeye performed significant sandblasting work on headstones and monuments in West Virginia.

    Mr. Easterling submitted an affidavit indicating he performed work for Buckeye in the West Virginia cities of Kenova, Huntington and Barboursville. In his brief, Mr. Easterling contends that he made a total of at least “102 sandblast trips into West Virginia for Buckeye.” Mr. Easterling also proved that during the period of his employment with Buckeye, “other Buckeye personnel made 100 sandblast trips and Buckeye personnel made over 180 West Virginia headstone placement trips.” Additionally, it was shown that during Mr. Easterling's employment with Buckeye, the company's “earnings from West Virginia customers totaled more than $3 million.”

    Based upon the foregoing, this Court finds it difficult to conclude that Buckeye's work in West Virginia does not meet the minimum contacts requirement to satisfy federal due process. We are mindful that “[t]he critical element for determining minimum contacts is not the volume of the activity but rather 'the quality and nature of the activity.'” Norfolk Southern, 90 W. Va. at 116, 437 S.E.2d at 280 (citation omitted). The record in this case further supports the plaintiffs' personal jurisdictional claim insofar as the nature of the work performed by Buckeye in West Virginia included sandblasting--which is the basis of this action. In view of the evidence in this case, we cannot conclude that hauling Buckeye into a court in West Virginia to answer for an alleged injury associated with its sandblasting work in this State, “offend[s] traditional notions of fair play and substantial justice.” Norfolk Southern, 190 W. Va. at 116, 437 S.E.2d at 280 (citation omitted). The touchstone of “the foreseeability that is critical to due process analysis . . . is that the defendant's conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. at 297, 100 S. Ct. at 559, 567, 62 L. Ed. 2d at 501. Because Buckeye had sufficient contacts with West Virginia to satisfy federal due process, the circuit court erred in dismissing Buckeye based upon a lack of personal jurisdiction.

    3. Deliberate intent cause of action against Buckeye. Although we find that the circuit court committed error in dismissing Buckeye on the issue of personal jurisdiction, we must nevertheless address an additional issue raised and briefed by Buckeye. In its brief, Buckeye contends that the circuit court does not have jurisdiction over the plaintiffs' deliberate intent cause of action. This is a subject matter jurisdiction issue that was not addressed by the circuit court. “Typically, we have steadfastly held to the rule that we will not address a nonjurisdictional issue that has not been determined by the lower court.” State ex rel. Clark v. Blue Cross Blue Shield of West Virginia, Inc., 203 W. Va. 690, 699, 510 S.E.2d 764, 773 (1998). Accord Syl. pt. 2, Trent v. Cook, 198 W. Va. 601, 482 S.E.2d 218 (1996); Syl. pt. 3, Voelker v. Frederick Bus. Properties Co., 195 W. Va. 246, 465 S.E.2d 246 (1995). However, the issue asserted by Buckeye “is one of jurisdiction, which may be raised for the first time on appeal.” Jan-Care Ambulance Serv., Inc. v. Public Serv. Comm'n of West Virginia, ___ W. Va. ___, ___ n.4, ___ S.E.2d ___, ___ n.4, slip op. at 8 n.4 (No. 26005 Oct. 14, 1999). See also Syl. pt. 6, in part, State ex rel. Hammond v. Worrell, 144 W. Va. 83, 106 S.E.2d 521 (1959) (“Lack of jurisdiction may be raised for the first time in this court, and may be taken notice of by this court on its own motion.”(internal quotations and citation omitted.)

    Buckeye opines that since it is an Ohio company subject to the workers' compensation laws of Ohio, the plaintiffs may only bring their cause of action in Ohio. Buckeye cites to this Court's decisions in Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172, 475 S.E.2d 172 (1996), and Bell v. Vecellio & Grogan, Inc., 197 W. Va. 138, 475 S.E.2d 138 (1996), as support for its argument.

    We do not agree with Buckeye's conclusion that Gallapoo and Bell have established a per se exclusion for a tort claim against an out-of-state employer for injuries to an out-of-state employee that occurred in West Virginia. However, Gallapoo and Bell do place certain limitations on such an action. In Gallapoo, an out-of-state worker was injured in West Virginia. The worker sought to bring a deliberate intent cause of action against the out-of-state employer under the deliberate intent provision of West Virginia's workers' compensation statute, namely W. Va. Code § 23-4-2.See footnote 11 ¹¹ The Gallapoo court rejected the cause of action. Relying in part on this Court's holding in Bell,See footnote 12 ¹² the Gallapoo court held in Syllabus point 3:

        A non-resident employee who is injured in this State and is protected under the terms and provisions of the workers' compensation laws of a foreign state shall not be entitled to the benefits and privileges provided under the West Virginia Workers['] Compensation Act, including the right to file and maintain a deliberate intention cause of action under W. Va. Code § 23-4-2(c)(2) (1994).

197 W. Va. 172, 475 S.E.2d 172.

    The facts of the instant proceeding fit squarely under the prohibition of Gallapoo. A review of Count Two of the plaintiffs' complaint reveals that they have established a deliberate intent cause of action against Buckeye, using all of the elements contained in W. Va. Code § 23-4-2(c)(2)(ii). Moreover, in paragraph 21 of Count Two, the plaintiffs specifically aver that “Buckeye acted with 'deliberate intention' as defined by West Virginia Code § 23-4-2.” Thus, under this Court's prior decision in Gallapoo, the circuit court does not have subject matter jurisdiction over the plaintiffs' deliberate intent cause of action against Buckeye. We cannot however end our analysis on this conclusion. Two additional issues must be addressed.

     (a) Obtaining subject matter jurisdiction over a claim by an out-of-state employee against an out-of-state employer. The decisions in Gallapoo and Bell address only the issue of a cause of action brought by an out-of-state employee against an out-of-state employer, wherein the cause of action was premised upon West Virginia's deliberate intent statute. During oral argument and in their brief, the plaintiffs have strenuously argued that the substantive laws of Ohio should govern the case against Buckeye. Therefore, plaintiffs contend they are not foreclosed by Gallapoo and Bell. On the other hand, Buckeye has argued for an interpretation of Gallapoo and Bell that would prohibit all causes of action in West Virginia that may be brought by an out-of-state employee against his or her out-of-state employer for injuries that occurred in West Virginia.

    The general rule pertaining to the issue raised here is that “if a damage suit is brought in the forum state by the employee against the employer . . ., the forum state will enforce the bar created by the exclusive-remedy statute of a state that is liable for workers' compensation[.]” Arthur Larson & Lex K. Larson, Vol. 9, Larson's Workers' Compensation Law, § 88.11 (1999). On the other hand, if the workers' compensation laws of the foreign state permit a tort action by an employee against an employer, then such an action may be maintained in the forum state through application of the laws of the foreign state. The rationale for applying the substantive workers' compensation law of the foreign state is “that the dominant interest is in the state that is the residence of the parties rather than in the state that is the location of the negligent [or intentional] conduct and the injury.” Farias v. Mattel, Inc., 735 P.2d 143, 145 (Ariz. Ct. App. 1986) (citations omitted).

    We are not prepared to extend Gallapoo and Bell to bar all civil actions by an out-of-state employee against his or her out-of-state employer. Therefore, we hold that the courts of West Virginia have subject matter jurisdiction over a cause of action brought by an out-of-state employee against an out-of-state employer for an injury occurring in West Virginia, where the complaint can be fairly read as setting out a cause of action under the laws of the foreign jurisdiction wherein the employer is situate, and wherein the employer is obligated to carry some form of workers' compensation.See footnote 13 ¹³

     (b) Disposition of the plaintiffs' claim against Buckeye. In the instant proceeding, the plaintiffs' complaint invokes the prohibition of Gallapoo and Bell by actually bringing their cause of action under the workers' compensation laws of West Virginia. Although we have found that the circuit court committed error by dismissing Buckeye on personal jurisdiction grounds, the claim against Buckeye must nevertheless be dismissed because of lack of subject matter jurisdiction. Therefore, the circuit court's order dismissing Buckeye is affirmed. See Syl. pt. 3, State v. Boggess, 204 W. Va. 267, 512 S.E.2d 189 (1998) (“'This Court may, on appeal, affirm the judgment of the lower court when it appears that such judgment is correct on any legal ground disclosed by the record, regardless of the ground, reason or theory assigned by the lower court as the basis for its judgment.' Syl. Pt. 3, Barnett v. Wolfolk, 149 W. Va. 246, 140 S.E.2d 466 (1965).”).

    We must make clear, however, that Buckeye's dismissal is without prejudice to the plaintiffs to amend their complaint for the sole purpose of properly setting out their cause of action by expressly invoking Ohio laws that permit such an action. See State ex rel. Palumbo v. Graley's Body Shop, Inc., 188 W. Va. 501, 510 n.18, 425 S.E.2d 177, 186 n.18 (1992) (“We point out that a judgment sustaining a motion to dismiss under W. Va. R. Civ. P. 12(b) would be a dismissal without prejudice.”); Sprouse v. Clay Communication, Inc., 158 W. Va. 427, 457, 211 S.E.2d 674, 694 (1975) (same).

    In the instant proceeding, the circuit court's order indicates that it only analyzed jurisdiction under W. Va. Code § 56-3-33 and federal due process. The order states: “In their complaint, plaintiffs specifically assert that the Court's jurisdiction in this matter is based on West Virginia Code § 56-3-33, West Virginia's primary 'long-arm' statute.” A review of the complaint indeed supports the circuit court's finding that the plaintiffs only invoked W. Va. Code § 56-3-33. However, under the requirements of Abbott, the circuit court must nevertheless perform an analysis under both of our long-arm statutes.
Accordingly, under the aforementioned authority, the order dismissing Bicknell is reversed, and the case remanded for entry of an order, if the court so concludes, that comports with the requirements of Abbott.See footnote 15 ¹⁵

claim for relief. 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.

Thompson, 199 W. Va. 590, 593 n.1, 486 S.E.2d 330, 333 n.1 (1997)(same); State Dep't. of Health v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827, 833 (1995) (same). We, therefore, find that any personal jurisdiction argument or cross-assignment of error Buckeye purports to make will not be considered. See Clain-Stefanelli, 199 W. Va. at 593 n.1, 486 S.E.2d at 333 n.1.

determinative of the issues and undisputed.