Kristin A. Boggs, Esq.
Goodwin & Goodwin
Charleston, West Virginia
Attorneys for the Appellant
| Ancil G. Ramey, Esq.
Kara L. Cunningham, Esq.
Russell D. Jessee, Esq.
Steptoe & Johnson
Charleston, West Virginia
Attorneys for the Appellee |
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. “The standard of review applicable to an appeal from a motion to alter or
amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e), is the same standard that would
apply to the underlying judgment upon which the motion is based and from which the appeal
to this Court is filed.” Syl. pt. 1,
Wickland v. American Travellers Life Insurance Co., 204
W. Va. 430, 513 S.E.2d 657 (1998).
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, 102, 2 L.Ed.2d 80, 84] (1957).” Syl. pt.
3,
Chapman v. Kane Transfer Company, 160 W. Va. 530, 236 S.E.2d 207 (1977).
3. “[F]raud or mistake must be alleged in the appropriate pleading with
particularity and the failure to do so precludes the offer of proof thereof during the trial” Syl.
pt. 1, in part,
Hager v. Exxon Corporation, 161 W. Va. 278, 241 S.E.2d 920 (1978).
Per Curiam:
This matter is before this Court upon the appeal of Sharooz S. Jamie, M. D.,
defendant below, from the February 27, 2006, order of the Circuit Court of Wood County,
West Virginia, dismissing his Second Amended Counterclaim with prejudice in an action
wherein the plaintiff, Highmark West Virginia, Inc., d/b/a Mountain State Blue Cross Blue
Shield (hereinafter “Mountain State”), sought recovery for alleged overpayments made to Dr.
Jamie pursuant to his participation as a provider under Mountain State's medical benefit
program. On August 15, 2006, the Circuit Court entered an order denying the appellant's
motion to alter or amend the order of dismissal.
On September 1, 2006, the Circuit Court facilitated an appeal from the
dismissal by entering a final judgment in favor of Mountain State upon the appellant's
Second Amended Counterclaim. That ruling was made pursuant to Rule 54(b) of the West
Virginia Rules of Civil Procedure which authorizes the entry of judgment upon one or more
but fewer than all of the claims in an action upon a determination that there is no just reason
for delay. As a result, further proceedings in the Circuit Court were stayed pending this
Court's resolution of the appeal.
This Court has before it the petition for appeal, the designated record and the
briefs and argument of counsel. In syllabus point 1 of
Wickland v. American Travellers Life
Insurance Co., 204 W. Va. 430, 513 S.E.2d 657 (1998), this Court held: “The standard of
review applicable to an appeal from a motion to alter or amend a judgment, made pursuant
to W. Va. R. Civ. P. 59(e), is the same standard that would apply to the underlying judgment
upon which the motion is based and from which the appeal to this Court is filed.” Syl. pt.
1,
Cogar v. Lafferty, 219 W. Va. 743, 639 S.E.2d 835 (2006); syl. pt. 1,
Judy v. Grant County
Health Department, 210 W. Va. 286, 557 S.E.2d 340 (2001).
See also, syl. pt. 4,
James M.
B. v. Carolyn M., 193 W. Va. 289, 456 S.E.2d 16 (1995) (indicating that a motion to alter or
amend may be employed following a judgment upon a motion to dismiss). Accordingly, this
Court is primarily concerned with the February 27, 2006, order dismissing the Second
Amended Counterclaim rather than the subsequent orders. The dismissal was entered, upon
Mountain State's motion, pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil
Procedure.
The Second Amended Counterclaim included Nine Counts which alleged,
generally, that Mountain State breached its contract with the appellant and committed fraud
and defamation against him. The appellant asserted that he was, thus, entitled to
compensatory and punitive damages. The Circuit Court concluded that none of the Counts
were sufficient to withstand scrutiny under Rule 12(b)(6).
Upon a careful review of the Second Amended Counterclaim, this Court is of
the opinion that, although the Circuit Court correctly dismissed some of the Counts set forth
by the appellant, it committed error in dismissing other Counts. Therefore, for the reasons
stated below, the dismissal of Dr. Jamie's Second Amended Counterclaim with prejudice is
affirmed, in part, and reversed, in part, and this matter is remanded to the Circuit Court for
further proceedings.
I.
Factual and Procedural Background
In October 1991, the appellant, a medical doctor practicing in Clay County,
West Virginia, entered into a Participation Agreement with Mountain State through which
he became a provider under Mountain State's medical benefit program. Under the
Agreement, Mountain State promised to pay the appellant for the provision of covered
medical services to patient-members of health plans offered or administered by Mountain
State, minus the amount payable directly by the patient-member as a deductible or co-payment.
Incorporated in the Participation Agreement was Mountain State's Provider
Manual which required the appellant to follow the billing guidelines or codes published in
the Current Procedure Technology (“CPT”) Manual of the American Medical Association.
Dr. Jamie was required to follow the “CPT Codes” in submitting claims to Mountain State.
The Participation Agreement also provided that, in the event of overpayments or payments
resulting from billing or coding errors, Mountain State was authorized to make “automatic
remittance adjustments” to recoup monies paid to the appellant. Moreover, the Participation
Agreement permitted Mountain State to conduct on-site or off-site audits of the appellant's
records concerning patient-members to verify compliance with the Agreement, the Provider
Manual and the CPT Codes.
In 2002, the appellant allegedly began to systematically over-bill Mountain
State for claims under the CPT Codes, particularly concerning blood panel testing under CPT
Codes 80050 and 80053. Between January 1, 2002, and January 1, 2004, the appellant was
said to have received overpayments in the amount of $115,165, approximately $56,000 of
which was recouped by Mountain State through automatic remittance adjustments to monies
sent to the appellant for other claims. The appellant, on the other hand, denied that the
payments he received were overpayments and asserted that Mountain State confiscated
$56,000 to which he was entitled. He terminated the Participation Agreement with Mountain
State and refused to reimburse any payments.
(See footnote 1)
On December 22, 2004, Mountain State filed an action in the Circuit Court of
Wood County against Dr. Jamie to recover an amount equal to the unrecouped overpayments.
Recovery was grounded upon breach of contract and unjust enrichment. In addition,
Mountain State sought punitive damages based upon allegations of fraud and an order
compelling the appellant to provide access to his patient-member records for purposes of an
audit.
The appellant filed a pro se answer and counterclaim denying the allegations
of the complaint and seeking compensatory damages. Ultimately, the appellant, having
obtained counsel, filed the Second Amended Counterclaim, with leave of court, alleging
entitlement to both compensatory and punitive damages. The Second Amended
Counterclaim included Nine Counts consisting of claims for: (1) breach of contract, (2) the
retroactive denial of payments in violation of statutory law, (3) breach of the covenant of
good faith and fair dealing, (4) fraudulently withholding payments, (5) fraudulently making
underpayments, (6) fraudulently charging deductibles, (7) fraudulently charging co-
payments, (8) negligence and (9) defamation. (See footnote 2)
In February 2006, Mountain State filed a motion to dismiss the Second
Amended Counterclaim pursuant to Rule 12(b)(6) for failure to set forth any claims upon
which relief could be granted. Memoranda of law were filed by the parties, and a hearing
was conducted on February 23, 2006. At the conclusion of the hearing, the Circuit Court
dismissed the Second Amended Counterclaim in its entirety, with prejudice. Thereafter, the
Court entered the February 27, 2006, order of dismissal followed by the August 15, 2006,
order denying the appellant's motion to alter or amend and the September 1, 2006, order
entering final judgment in favor of Mountain State upon the Second Amended Counterclaim
pursuant to Rule 54(b). (See footnote 3)
The appellant's appeal was granted by this Court in February 2007.
II.
Standard of Review Concerning Rule 12(b)(6)
Rule 12(b)(6) of the West Virginia Rules of Civil Procedure authorizes the
filing of a motion requesting dismissal of a claim or counterclaim for “failure to state a claim
upon which relief can be granted.” In actions resulting in an appeal from a Rule 12(b)(6)
dismissal, review by this Court is
de novo. Syl. pt. 1,
Longwell v. Board of Education of the
County of Marshall, 213 W. Va. 486, 583 S.E.2d 109 (2003); syl. pt. 1,
Holbrook v.
Holbrook, 196 W. Va. 720, 474 S.E.2d 900 (1996); syl. pt. 2,
State ex rel. McGraw v. Scott
Runyan Pontiac-Buick, 194 W. Va. 770, 461 S.E.2d 516 (1995). In that regard, guidance for
both the trial court and this Court may be found in syllabus point 3 of
Chapman v. Kane
Transfer Company, 160 W. Va. 530, 236 S.E.2d 207 (1977), which holds: “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, 102, 2 L.Ed.2d 80, 84] (1957).” Syl. pt. 2,
Sticklen v. Kittle, 168 W. Va. 147,
287 S.E.2d 148 (1981); syl.,
Flowers v. City of Morgantown, 166 W. Va. 92, 272 S.E.2d 663
(1980).
See also, F. D. Cleckley, R. J. Davis, L. J. Palmer,
Litigation Handbook on West
Virginia Rules of Civil Procedure § 12(b)(6) (Juris Pub. 2006).
(See footnote 4)
In reviewing a Rule 12(b)(6), dismissal, assistance in appraising the sufficiency
of the claim or counterclaim is provided by Rule 8(a)(1) of the West Virginia Rules of Civil
Procedure which requires, in a pleading, “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Subsection (e) of Rule 8 states that each averment of
a pleading shall be “simple, concise and direct.” As observed in Scott Runyan Pontiac-Buick, supra: “Rule 8 of the Rules of Civil Procedure requires clarity but not detail. * * *
Under Rule 8, 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.” 194 W. Va. at
776, 461 S.E.2d at 522. Thus, while bald statements or a carelessly drafted pleading will not
survive a Rule 12(b)(6) motion to dismiss, Fass v. Nowsco Well Service, 177 W. Va. 50, 52,
350 S.E.2d 562, 564 (1986), a circuit court should not dismiss a claim “merely because it
doubts that the plaintiff will prevail in the action.” John W. Lodge Distributing Co. v.
Texaco, 161 W. Va. 603, 605, 245 S.E.2d 157, 159 (1978). The complaint is to be construed
in the light most favorable to the plaintiff. Price v. Halstead, 177 W. Va. 592, 594, 355
S.E.2d 380, 383 (1987); Chapman, supra, 160 W. Va. at 538, 236 S.E.2d at 212.
III.
Discussion
Counts 1, 2 and 3 of Dr. Jamie's Second Amended Counterclaim are similar
because all three involve an alleged breach by Mountain State of the Participation Agreement
executed by the parties in 1991. Under Count 1, the appellant sets forth section IV.B of the
Agreement which states that either party may terminate the Agreement upon 30 days written
notice to the other party. The appellant alleged that, although he submitted a notice of
termination by letter dated November 14, 2003, Mountain State improperly extended the
Agreement several months beyond the termination date. According to Count 1, the extension
caused the appellant to incur damages by providing Mountain State opportunities to
retroactively deny the appellant's claims for medical services and to withhold payments.
The Participation Agreement provided that, in the event of overpayments,
Mountain State could make automatic remittance adjustments to recoup monies paid to the
appellant. In Count 2, the appellant alleged that, inasmuch as he terminated the Agreement,
there was no longer consent for the withholding or offsetting of monies payable by Mountain
State. Under that Count, the appellant alleged that, after the Agreement was terminated,
Mountain State “retroactively denied claims” without authorization and in violation of W.
Va. Code § 33-45-2(a)(7) (2001), which,
inter alia, prohibits the retroactive denial of
previously paid claims of health care providers after 1 year from the date the claim was
originally paid.
In Count 3, the appellant alleged that Mountain State breached the covenant
of good faith and fair dealing, as implied both in law and in the Participation Agreement, in
that Mountain State failed to fully pay for services he provided to the patient-members: (1)
by not properly reimbursing him, (2) by wrongfully withholding and offsetting monies he
was entitled to receive and (3) by failing to cancel the Agreement as requested.
Upon review, this Court is of the opinion that the Circuit Court committed error
in granting the motion to dismiss as to those Counts. Although each Count alleged a breach
of the Participation Agreement, each Count was grounded upon a different basis of recovery.
Whereas Count 1 focused upon the Agreement's termination, Count 2 relied, in part, upon
a statutory violation. On the other hand, Counts 1 and 2 had, in common, limitations with
regard to the life of the Participation Agreement. Whereas Count 1 was limited to alleged
acts of Mountain State surrounding the termination of the Agreement, Count 2 concerned the
1 year limit relating to the retroactive denial of previously paid claims. Although Count 3
also referred to the termination of the Agreement, the alleged transgressions of Mountain
State in that Count were not as narrowly defined. Count 3 asserted that the appellant was not
fully paid for services to patient-members as a result of improper reimbursements and by the
wrongful withholding and offsetting of monies he was entitled to receive.
In that regard, while we recognize that it has been held that an implied
covenant of good faith and fair dealing does not provide a cause of action apart from a breach
of contract claim,
Stand Energy Corp. v. Columbia Gas Transmission, 373 F.Supp.2d 631,
644 (S.D. W. Va. - 2005), and that “[a]n implied contract and an express one covering the
identical subject matter cannot exist at the same time,” syl. pt. 3, in part,
Rosenbaum v. Price
Construction Company, 117 W. Va. 160, 184 S.E.2d 261 (1936), the allegations of Count 3
construed in the light favorable to the appellant demonstrate that, while inartfully drafted as
a claim upon an implied covenant, Count 3 is, in reality, a breach of contract claim covering
matters not identical to those specified in Counts 1 and 2.
As suggested in, 4A M.J.,
Contracts § 84 (Matthew Bender & Co. 2007),
while a breach of contract may best be alleged in the express words of the contract, the use
of such words is not necessary.
(See footnote 5) Here, Mountain State's complaint alleged $115,165 in
overpayments to Dr. Jamie, approximately $56,000 of which was recouped through
automatic remittance adjustments. Mountain State is now seeking recovery for the balance.
Counts 1, 2 and 3 of the Second Amended Counterclaim, in different ways, challenge
Mountain State's entitlement to those monies by alleging that Mountain State breached the
Participation Agreement and thereby caused the appellant to incur damages. In that respect,
the claims of both parties arose from the Participation Agreement.
This Court concludes that the appellant's averments were sufficient to survive
the motion to dismiss. Therefore, the Circuit Court is reversed, and Counts 1, 2 and 3 of the
Second Amended Counterclaim are reinstated.
Count 4 of the Second Amended Counterclaim alleged fraud. Specifically,
Count 4 alleged that Mountain State “fraudulently withheld payments” from the appellant
after he terminated the Participation Agreement, i.e., Mountain State withheld payments
without written consent or authorization from the appellant when Mountain State “knew that
such conduct was wrong and was an intentional act.” Moreover, the appellant alleged that
Mountain State, on numerous occasions, fraudulently withheld payments to him with regard
to undisputed claims. Count 4 concluded: “[Mountain State's] fraudulent acts caused
damages to Dr. Jamie in that he was not paid for services rendered and/or his payments
[were] wrongfully withheld and offset against his will.”
In comparison, the complaint filed by Mountain State alleged fraud against Dr.
Jamie. Count IV of the complaint averred that, although the Participation Agreement
required the appellant to provide truthful and accurate information and required him to
reimburse Mountain State for overpayments, the appellant knowingly and fraudulently billed
Mountain State for services he had not provided, with no intention to repay. Mountain State
alleged that, in reliance upon the information received from the appellant, he was overpaid
in the amount of $115,165. Count IV of the complaint concluded by asserting that Mountain
State was entitled to punitive damages.
A pleading which includes a claim of fraud requires more than the short, plain
statement of the claim contemplated under Rule 8(a)(1). As Rule 9(b) of the West Virginia
Rules of Civil Procedure provides, in part: “In all averments of fraud or mistake, the
circumstances constituting fraud or mistake shall be stated with particularity.”
Kessel v.
Leavitt, 204 W. Va. 95, 132, 511 S.E.2d 720, 757 (1998),
cert. denied, 525 U.S. 1142, 119
S.Ct. 1035, 143 L.Ed.2d 43 (1999) (fraud must be stated with particularity);
Chamberlaine
v. McBee, 177 W. Va. 755, 758, 356 S.E.2d 626, 629 (1987) (Rule 9(b) assists the party
charged with fraud in preparing a defense); syl. pt. 1, in part,
Hager v. Exxon Corporation,
161 W. Va. 278, 241 S.E.2d 920 (1978) (“fraud or mistake must be alleged in the appropriate
pleading with particularity and the failure to do so precludes the offer of proof thereof during
the trial”). Moreover, in syllabus point 1 of
Lengyel v. Lint, 167 W. Va. 272, 280 S.E.2d 66
(1981), this Court held:
The essential elements in an action for fraud are: “(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.”
Horton v. Tyree, 104 W. Va. 238, 242, 139 S.E.
737 (1927).
Syl. pt. 5,
Kidd v. Mull, 215 W. Va. 151, 595 S.E.2d 308 (2004); syl. pt. 12,
Poling v. Pre-
Paid Legal Services, Inc., 212 W. Va. 589, 575 S.E.2d 199 (2002); syl. pt. 3,
Cordial v.
Young, 199 W. Va. 119, 483 S.E.2d 248 (1996).
Cf,
Pocahontas Mining Co. Limited
Partnership v. OXY USA, Inc., 202 W. Va. 169, 174, 503 S.E.2d 258, 263 (1998) (concurring
opinion, stating that pleading a fraud claim is distinguishable from proving a fraud claim:
“the pleading must not be expected to include every element of the proof”).
It follows from the above authorities that Count 4 of the Second Amended
Counterclaim satisfied the requirements for alleging a claim of fraud and should not have
been dismissed upon the Rule 12(b)(6) motion. While that Count is not as well articulated
as the claim of fraud set forth in Mountain State's complaint, it adequately notifies Mountain
State of the appellant's assertion that payments were fraudulently withheld after the
Participation Agreement was terminated and fraudulently withheld with regard to undisputed
claims. Although Count 4 of the counterclaim, unlike Count IV of the complaint, did not
aver detrimental reliance, the claims of fraud of both parties, like the claims of breach of
contract, arose from the Agreement. Appellant's Count 4, for example, was based, in part,
upon alleged fraud surrounding the purported termination of the Agreement. As stated
above, the section of the Agreement providing for termination was set forth by the appellant
in Count 1. Accordingly, Count 4 of the Second Amended Counterclaim is reinstated.
The remaining Counts are exceedingly problematic. Count 5 alleged that Mountain
State fraudulently underpaid the appellant. The supporting averments, however, were limited
to a single discrepancy wherein the appellant asserted that, although his staff committed a
clerical error in submitting the claim, Mountain State sent the corresponding payment at a
reduced rate which, by the appellant's own calculations, made “no mathematical sense.” In
Counts 6 and 7, the appellant alleged that Mountain State fraudulently overcharged his
patient-members for deductibles and co-payments under their respective medical benefit
contracts. Those Counts contained no allegations concerning Dr. Jamie's standing to raise
the overpayment issue upon behalf of the patient members. Moreover, although the appellant
alleged in Counts 6 and 7 that the overcharging caused a reduction in the number of patient-
members served by his practice, neither Count sufficiently connected the allegations to the
claim of fraud. Count 8 summarily alleged that Mountain State's breach of its duty to make
correct payments constituted negligence.
In Count 9 of the Second Amended Counterclaim, the appellant alleged that,
in December 2003, one of Mountain State's auditors made statements to the appellant's staff
that “Dr. Jamie told you to change the medical CPT Code because the [Mountain State]
reimbursement was low.” According to Count 9, the auditor's statements constituted
defamation for which the appellant was entitled to damages. However, as Mountain State
pointed out, Count 9 further alleged that, when the auditor made the statements, “the
employees knew that the statements were and are entirely false [.]” No allegations were
made to the effect that the auditor's statements were communicated to anyone other than Dr.
Jamie's employees. Nor did Count 9 aver why damages were incurred when the employees
knew that the statements were false.
Consequently, viewing Counts 5 through 9 in the light most favorable to the
appellant, this Court is of the opinion that it appears beyond doubt that the appellant can
prove no set of facts in support thereof which would entitle him to relief. The dismissal of
those Counts is, therefore, affirmed.
IV.
Conclusion
Upon all of the above, this Court holds that the Circuit Court correctly
dismissed Counts 5 through 7 of the Second Amended Counterclaim pursuant to the motion
to dismiss and committed error in dismissing Counts 1 through 4. Counts 1 through 4 are,
therefore, reinstated.
(See footnote 6)
For the reasons stated above, the dismissal of the appellant's Second Amended
Counterclaim, with prejudice, is affirmed, in part, and reversed, in part, and this matter is
remanded to the Circuit Court of Wood County for further proceedings.
Affirmed, in part, Reversed, in part, and Remanded
Footnote: 1 According to the appellant, some of the irregularities raised by Mountain State
concerning the claims procedure he followed were attributable to the absence of relevant
computer software in his office and the fact that his staff lacked sufficient training regarding
CPT Coding. However, the appellant also asserts that Mountain State routinely gave his staff
inconsistent instructions with regard to billing procedures and, at times, made payments in
“varying amounts” for similar claims. As the appellant's counsel stated during the hearing upon
Mountain State's motion to dismiss: “Mountain State representatives told him to bill the way
that he billed, and then they claimed he was overpaid after he followed their guidelines and their
directives, as far as billing procedures go.”
Footnote: 2 A 10
th claim alleging that Mountain State violated the federal Racketeer Influenced and
Corrupt Organizations Act, (“RICO”), 18 U.S.C. § 1961,
et seq., was withdrawn.
Footnote: 3 It should be noted that the dismissal of the Second Amended Counterclaim “with
prejudice” is consistent with the entry of judgment pursuant to Rule 54(b) in terms of facilitating
the appeal to this Court. The dismissal with prejudice foreclosed the possibility of further
amendment of the Counterclaim. Otherwise, an appeal to this Court would not have been
appropriate. As stated in F. D. Cleckley, R. J. Davis, L. J. Palmer,
Litigation Handbook on West
Virginia Rules of Civil Procedure § 12(b)(6) (Juris Pub. 2006): “An order of a trial court
dismissing a complaint under the provisions of Rule 12(b)(6), with leave to amend, is in the
nature of a nonappealable interlocutory order.”
Accordingly, to the extent this Court affirms the dismissal of various Counts within the
Second Amended Counterclaim, this Court concludes that, given the insufficiency of those
Counts, as discussed herein, and the prior opportunities the appellant had to amend the
Counterclaim, the Circuit Court was warranted in dismissing the Counts with prejudice.
Consequently, those Counts remain dismissed with prejudice and may not be further amended
and relitigated by the appellant.
Footnote: 4 Mountain State cites
Bell Atlantic Corporation v. Twombly, _ U.S. _ , 127 S.Ct. 1955,
167 L.Ed.2d 929 (2007), wherein the Supreme Court of the United States indicated that the
Conley v. Gibson standard, set forth by this Court in
Chapman, is incomplete. As suggested in
Bell Atlantic, the standard, that dismissal should not be granted unless it appears that the plaintiff
can prove no set of facts in support of his claim, should be replaced by a standard to the effect
that “once a claim has been stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.” _ U.S. at _ , 127 S.Ct. at 1969, 167 L.Ed.2d at
945. We decline to preemptively settle that issue in this opinion. The standard expressed in
Chapman and repeated in subsequent cases remains good law, and we note that shortly after the
decision in
Bell Atlantic this Court, in
Burch v. Ned power Mount Storm, 220 W. Va. 443, 647
S.E.2d 879 (2007), applied a standard similar to that in
Chapman in the context of reviewing an
order granting judgment upon the pleadings.
Footnote: 5 It is interesting to note that, although the Appendix of Forms attached to the West
Virginia Rules of Civil Procedure, does not include a specific form for a complaint or
counterclaim relevant to this action, Form 4 entitled “Complaint on an account” is representative
of the “simplicity and brevity of statement which the rules contemplate.” Rule 84. Form 4 states
in its entirety: “Defendant owes plaintiff ten thousand dollars according to the account hereto
annexed as Exhibit A. Wherefore (
etc., as in Form 3) [Form 3: 'Wherefore plaintiff demands
judgment against defendant for the sum of ten thousand dollars, interest, and costs.'].”
Footnote: 6 In reinstating Counts 1 through 4, we note that Mountain State brings to our attention
Harless v. First National Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982), syllabus
point 7 of which indicates that a party “may not recover damages twice for the same injury
simply because he has two legal theories.”
However, inasmuch as this appeal is limited to a consideration of whether the Second
Amended Counterclaim was sufficient to withstand a Rule 12(b)(6) motion to dismiss, it would
be premature to address
Harless at this point. This appeal concerns the pleading stage of the
litigation, and, as Rule 8(e)(2) of the West Virginia Rules of Civil Procedure provides:
A party may set forth two or more statements of a claim or defense
alternately or hypothetically, either in one count or defense or in separate counts
or defenses. When two or more statements are made in the alternative and one of
them if made independently would be sufficient, the pleading is not made
insufficient by the insufficiency of one or more of the alternative statements. A
party may also state as many separate claims or defenses as the party has
regardless of consistency and whether based on legal or on equitable grounds or
on both. All statements shall be made subject to the obligations set forth in Rule
11.