Link to PDF file
655 S.E.2d 490
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2007 Term
EDWARD W. CANTLEY, SR. and JUDITH K. CANTLEY,
LISA BRAGG and JAMES BRAGG, CHARLES FLOWERS,
TRACY FLOWERS, BETTY E. FLOWERS,
SABRINA MAYNARD, LAURA GOFF, JAMES STOWERS,
JOHN CUMMINGS and AMANDA CUMMINGS,
BRENDA PRICE and RICKY A. PRICE,
EARL SOWARDS and MAVIS SOWARDS, LISA ADKINS and
TOMMY ADKINS, and JENNIFER LAWRENCE,
individually and on behalf of all others similarly situated,
Plaintiffs and Putative Class Representatives Below, Appellants
LINCOLN COUNTY COMMISSION,
Defendant Below, Appellee
Appeal from the Circuit Court of Lincoln County
Hon. Jay M. Hoke, Judge
Case No. 05-C-166
REVERSED and REMANDED
Submitted: September 18, 2007
Filed: November 8, 2007
Rudolph L. DiTrapano, Esq.
R. Carter Elkins, Esq.
Lonnie C. Simmons, Esq.
Andrew P. Ballard, Esq.
Heather M. Langeland, Esq.
Campbell, Woods, Bagley, Emerson
DiTrapano, Barrett & DePiero
Huntington, West Virginia
Charleston, West Virginia
Attorneys for Appellee
Attorneys for Appellants
The Opinion of the Court was delivered PER CURIAM.
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.
Syllabus Point 3, Chapman v. Kane Transfer Company, 160 W.Va. 530, 236 S.E.2d 207
(1977) quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84
This case is before the Court on an appeal of a final order of the Circuit Court
of Lincoln County, entered on August 28, 2006. The circuit court granted appellee Lincoln
County Commission's motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules
of Civil Procedure. The order dismissing the appellee was entered pursuant to Rule 54(b)
of the West Virginia Rules of Civil Procedure and is considered a final order for purposes of
appeal to this Court. In this appeal, appellants argue that the circuit court erred by granting
the appellee's motion to dismiss because their complaint alleged sufficient facts that, if
considered as true, would entitle the appellants to relief.
This Court has before it the petition for appeal, the designated record, and the
briefs and arguments of counsel. For the reasons set forth below, the order of the circuit
court is reversed, and the case remanded for further proceedings consistent with this opinion.
The appellants in this case are residents of Lincoln County, West Virginia and
live primarily in the towns of Yawkey and Griffithsville. On November 12, 2003, the
appellants and other residents (See footnote 1)
of Yawkey and Griffithsville suffered extensive flood damage
to their properties when the Mud River overflowed its banks. After the flood waters
subsided, the appellants began the tedious process of cleaning up and recovering property
which could be salvaged. However, on November 18, 2003, the Mud River once again
reached flood stage, and again the appellants suffered extensive flood damage to their
On November 11, 2004, the appellants filed this civil action in the Circuit
Court of Lincoln County on behalf of themselves and a putative class seeking damages for
the flooding they had suffered in November 2003 and, additionally, for abatement of future
flooding. The appellants named the Lincoln County Commission as defendant, asserting, inter alia
, that the Commission had, and continues to have, a duty to maintain the Middle
Fork of the Mud River. (See footnote 2)
In their complaint, the appellants allege that the appellee's duty to maintain the
Middle Fork of the Mud River is based, in part, on a 1962 agreement between the appellee
and the U.S. Army Corps of Engineers _ an agreement designated as the Channel
Improvement Project, later referred to as the Middle Fork Flood Control Project. In addition
to the duties and obligations assumed and agreed to by the appellee with the U.S. Army
Corps of Engineers, the appellants allege that the appellee also has a duty pursuant to other
legal theories, including the allegation that W.Va. Code, 7-1-3(u) and (v), impose a
mandatory duty upon the appellee to maintain the Mud River within Lincoln County.
In response to the allegations in appellants' complaint, the appellee filed a
motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure
asserting that, as a matter of law, the appellee did not have any of the duties alleged by the
appellants. In support of its motion, the appellee argued that W.Va. Code,
7-1-3(u) and (v),
are permissive statutes that allow _ but do not require _ a county commission to have flood
control projects. Further, to the extent that the appellee had entered into an agreement, or
assumed any responsibility, for flood control of the Mud River prior to 1965, as asserted by
the appellants, such an agreement or responsibility was terminated on November 22, 1965,
when the Circuit Court of Lincoln County established the Middle Fork Drainage, Levee and
Reclamation District of Lincoln County (See footnote 3)
pursuant to the provisions of W.Va. Code
19-21-1, et seq
The circuit court agreed with the appellee, finding that the appellee had never
assumed control of the Middle Fork Drainage District, and had avoided interaction with
that Drainage District and that the appellee was without legal authority either statutory or
common law to abolish or restrict the activities of the Middle Fork Drainage District.
Further, the circuit court found that it was the Middle Fork Drainage District that was the
governmental entity with authority and control of the Middle Fork of Mud River and that the
appellee had no control over the District's actions. As to the appellants assertion that W.Va.
Code, 7-1-3(u) and (v), impose a mandatory duty upon the appellee to maintain the Middle
Fork District of the Mud River, the circuit court found the same to be permissive statutes that
imposed no affirmative duty upon the appellee. In granting the appellee's Rule 12(b)(6)
motion, the circuit court held that the appellee was without jurisdiction or authority over the
Middle Fork of the Mud River, and that the exclusive jurisdiction and authority of that area
rested with the Middle Fork Drainage District, and therefore that the appellee was entitled
to be dismissed from the complaint with prejudice.
For the reasons set forth below, we find that the circuit court erred in granting
the appellee's Rule 12(b)(6) motion. (See footnote 4)
As a preliminary matter, we note that [a]ppellate 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).
This Court has consistently held that a trial court should not dismiss a
complaint where sufficient facts have been alleged that, if proven, would entitle the plaintiff
to relief. 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. Syllabus Point
3, Chapman v. Kane Transfer Company, 160 W.Va.530, 236 S.E.2d 207 (1977) quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957).
The 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. A trial court considering a
motion to dismiss under Rule 12(b)(6) must liberally construe the complaint so as to do
substantial justice. West Virginia Rules of Civil Procedure, Rule 8(f). The trial court's
consideration begins, therefore, with the proposition that [f]or purposes of the motion to
dismiss, the complaint is construed in the light most favorable to plaintiff, and its allegations
are to be taken as true. John W. Lodge Distributing Co., Inc. v. Texaco, Inc., 161 W.Va.
603, 605, 245 S.E.2d 157, 158 (1978). The policy of Rule 8(f) is to decide cases upon their
merits, and if the complaint states a claim upon which relief can be granted under any legal
theory, a motion under Rule 12(b)(6) must be denied. John W. Lodge Distributing Co.,161
W.Va. at 605, 245 S.E.2d at 158-159.
The appellants' complaint alleged several legal theories for holding the
appellee liable to the appellants for the food damage discussed above. Pursuant to our
holding in John W. Lodge Distributing Co., supra, and other cases addressing Rule 12(b)(6)
issues, we must accept the appellants' factual allegations as true for purposes of our review.
In so doing, it is clear to us that the appellants clearly stated a claim _ if proven _ upon which
relief could be granted.
For example, paragraph 6 of the complaint seeks relief based upon, inter alia
that the appellee Lincoln County Commission's duty to carry out erosion and sedimentation
control measures and programs to protect people and property from floods, pursuant to
W.Va. Code §§ 7-1-3(u) and (w) and the Channel Rectification Project, Middle Fork of Mud
River, Griffithsville-Yawkey, West Virginia, agreement between the United States Army
Corps of Engineers and [the County Court], (See footnote 5)
operating as the Middle Fork Drainage, Levee
and Reclamation District of Lincoln County. In support of the claim that the appellee had
this duty, the appellants submitted with their brief a copy of the order of the County Court
of Lincoln County dated November 8, 1962. In this order, the appellee County Court
accepted a motion from parties representing the Middle Fork Flood Control Project
requesting that the appellee sponsor the U.S. Army Corps of Engineers flood control project.
The appellee voted in favor of the motion and
. . . adjudged, ordered and decreed that the County Court of
Lincoln County, West Virginia is willing to furnish the Federal
Government the required assurances of local cooperation for a
channel improvement project for flood control on the Middle
Fork of Mud River in Lincoln County, West Virginia, and will
provide assurances of compliance with the requirements set
forth in Section 3 of the Flood Control Act of June 22, 1936, as
amended, in so far and in so far only, as said Court is legally
authorized and empowered to so do under the Laws of the State
of West Virginia . . . to enter into a contract and agreement
relating to such matters . . ..
Lincoln County Court Order, November 8, 1962.
In the same order, the appellee also assured that after completion of the works
and project [Middle Fork Flood Control Project], that the same will be maintained and
operated in accordance with regulations prescribed by the Secretary of the Army . . ..
Accepting as true that the appellee has the duty to maintain the Mud River, and further
accepting as true all the allegations in the appellants' complaint that appellee failed in that
duty despite repeated warnings from the U.S. Army Corps of Engineers and others, this Court
is of the opinion that the appellants' complaint states a sufficient basis upon which relief _
if proven _ could be granted.
This conclusion is not changed when considering the appellee's argument that
the creation of the Middle Fork Drainage District in 1965 superceded the appellee's 1962
agreement with the Corps of Engineers to maintain the Middle Fork Flood Control Project.
This may be an affirmative defense for the appellee; however, there remain numerous
questions of fact and law to be decided. One obvious question is whether the appellee's
agreement with the U.S. Army Corps of Engineers can be terminated where it appears that
neither the appellee, nor the U.S. Army Corps of Engineers, was a party to the circuit court
civil action that created the Middle Fork Drainage District at a date following the appellee
County Court's 1962 order. Another question is whether the Middle Fork Drainage District
as created by the circuit court in 1965 covers and incorporates the exact same geographical
area as the Middle Fork Flood Control Project incorporated in the appellee's 1962 order.
Because we find that the appellants' complaint stated a sufficient basis upon
which relief could be granted if facts, as alleged, are proven by the appellant's, we need not
address the parties remaining arguments. (See footnote 6)
For the reasons set forth herein, we find that the appellants' complaint stated
a sufficient claim against the appellee and upon which relief could be granted. This case is
reversed and remanded to the circuit court for further proceedings consistent with this
The Middle Fork is a part of the Mud River in the area of Yawkey and Griffithsville,
Lincoln County, West Virginia.
Hereafter Middle Fork Drainage District. In 1917 the Legislature authorized circuit
courts to establish and organize drainage, levee and reclamation districts. W.Va. Code
In the order dismissing the appellee from the complaint below, the circuit court
granted leave for the appellants to amend their civil action to name the Middle Fork Drainage
District as a defendant. The court makes no finding regarding this aspect of the circuit
In 1962, a West Virginia County Commission was legally designated as a County
Nothing in this opinion should be construed to imply that this Court has ruled upon
the merits of any part of the complaint or issues in the case below. Our opinion is based on
construing the facts and allegations in the complaint (which may be further developed
through discovery) as true, in accord with the precedent cited herein for reviewing a trial
court's granting of a Rule 12(b)(6) motion.