Easterling v. American Optical Corp.

529 S.E.2d 588

207 W.Va. 123

Robert L. EASTERLING and S. Janie Easterling, Plaintiffs Below, Appellants, v. AMERICAN OPTICAL CORPORATION, American Stone-Mix, Inc., Clemco Industries Corporation, Clementina, Ltd., E.I. duPont deNemours & Company, P.K. Lindsay Company, Mine Safety Appliances Company, Minnesota Mining & Manufacturing Company, Pulmosan Safety Equipment Corporation, the Sherwin-Williams Company, U.S. Silica Company, Howard M. Weiss and Woofield Group, Inc., Defendants Below, Bicknell Manufacturing Company and Buckeye Monument Company, Defendants Below, Appellees.

No. 26566.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 2000.

Decided March 24, 2000.

Peter T. Enslein, Sutter & Enslein, Washington, D.C., Patrick S. Guilfoyle, Washington, D.C., Attorneys for the Appellants.

Thomas E. Scarr, Scott D. Maddox, Jenkins Fenstermaker, PLLC, Huntington, West Virginia, for Bicknell Manufacturing.

W. Michael Frazier, Frazier & Oxley, L.C., Huntington, West Virginia, Attorney for Buckeye Monument. DAVIS, Justice:

This appeal was filed by Robert L. Easterling and S. Janie Easterling, plaintiffs below and appellants herein (hereinafter referred to as "Mr. [or] Mrs. Easterling"), from orders of the Circuit Court of Cabell County granting summary judgment to Buckeye Monument Company (hereinafter referred to as "Buckeye") and Bicknell Manufacturing Company (hereinafter referred to as "Bicknell"), defendants below and appellees herein. The circuit court granted summary judgment for each defendant concluding that it had no jurisdiction over either defendant.¹ This appeal challenges those rulings. Based upon the parties' arguments on appeal, the record designated for appellate review, and the pertinent authorities, we affirm in part and reverse in part the decisions of the Circuit Court of Cabell County.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs are residents of Ohio. Mr. Easterling was employed by Buckeye, an Ohio company that sells cemetery headstones and monuments, from 1974 to 1997. Part of the work performed by Mr. Easterling for Buckeye involved sandblasting headstones and monuments. During Mr. Easterling's employment, he performed some degree of sandblasting in West Virginia on headstones and monuments that Buckeye sold to West Virginia residents.

In 1998, shortly after terminating his employment with Buckeye,² Mr. Easterling filed this civil action alleging that he developed silicosis³ 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,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.

II. STANDARD OF REVIEW

Buckeye and Bicknell filed their motions to dismiss under Rule 12(b)(2). See W. Va. R. Civ. P. 12(b)(2). In Syllabus point 2 of State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995), this Court held that "[a]ppellate review of a circuit court's order granting a motion to dismiss a complaint is de novo." See also Richardson v. Kennedy, 197 W.Va. 326, 331, 475 S.E.2d 418, 423 (1996). However, this standard of review is limited to questions of law, and does not govern a court's findings of fact when a motion to dismiss for lack of personal jurisdiction involves an evidentiary hearing. As this Court recently held in Syllabus point 4 of State ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson, 201 W.Va. 402, 497 S.E.2d 755 (1997):

When a defendant files a motion to dismiss for lack of personal jurisdiction under W. Va. R Civ. P. 12(b)(2), the circuit court may rule on the motion upon the pleadings, affidavits and other documentary evidence or the court may permit discovery to aid in its decision. At this stage, the party asserting jurisdiction need only make a prima facie showing of personal jurisdiction in order to survive the motion to dismiss. In determining whether a party has made a prima facie showing of personal jurisdiction, the court must view the allegations in the light most favorable to such party, drawing all inferences in favor of jurisdiction. If, however, the court conducts a pretrial evidentiary hearing on the motion, or if the personal jurisdiction issue is litigated at trial, the party asserting jurisdiction must prove jurisdiction by a preponderance of the evidence.

Thus, when considering a circuit court's findings of fact arising from an evidentiary hearing on a motion to dismiss for lack of personal jurisdiction, this Court's clearly erroneous standard of review is ordinarily invoked. See Syl. pt. 1, McCormick v. Allstate Ins. Co., 197 W.Va. 415, 475 S.E.2d 507 (1996) (holding that underlying factual findings are reviewed using a clearly erroneous standard).

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.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).

III. DISCUSSION

A. Conversion of a Rule 12(b)(2) Motion into a Rule 56 Motion

Our initial inquiry concerns whether the circuit court properly converted the Rule 12(b)(2) motions to Rule 56 motions for purposes of summary judgment. This Court has not previously addressed the issue of whether a motion under Rule 12(b)(2) may be converted to a summary judgment motion when matters outside the pleadings are considered by a circuit court.⁶ Rule 12(b) expressly requires only one provision under it, Rule 12(b)(6), be converted to summary judgment when matters outside the pleadings are considered. Rule 12(b) is silent as to whether Rule 12(b)(2) may or may not be converted to summary judgment when matters outside the pleadings are considered. In our review of federal cases, we find a split of authority as to whether a motion under Rule 12(b)(2) of the Federal Rules of Civil Procedure may be converted to a Rule 56 motion for summary judgment.⁷

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 Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2713, at 239-40 (1998). See Syl. pt. 1, in part, Poling v. Belington Bank, Inc., 207 W.Va. 145, 529 S.E.2d 856 (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....