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
Easterling filed this civil action alleging that he developed silicosisSee footnote 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
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
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  and W. Va. Code, 56-3-33 . 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
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
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
The Gallapoo court rejected the
cause of action. Relying in part on this Court's holding in Bell,See footnote 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
(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
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
(b) Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that
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.