American Lung Ass'n of West Virginia v. Farmers & Merchants Nat. Bank of Winchester, Va., 16200

• Decision Date: 18 April 1985
• Docket Number: No. 16200,16200
• Citation: 174 W.Va. 781,329 S.E.2d 854
• Court: West Virginia Supreme Court
• Parties: AMERICAN LUNG ASSOCIATION OF WEST VIRGINIA v. FARMERS & MERCHANTS NATIONAL BANK OF WINCHESTER, VIRGINIA.

Page 854

329 S.E.2d 854

174 W.Va. 781

AMERICAN LUNG ASSOCIATION OF WEST VIRGINIA v. FARMERS & MERCHANTS NATIONAL BANK OF WINCHESTER, VIRGINIA.

No. 16200.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 23, 1985.

Decided April 18, 1985.

Syllabus by the Court

" '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 the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Syl. Pt. 2 of Sticklen v. Kittle, W.Va., 287 S.E.2d 148 (1981)." Syllabus Point 1, McGinnis v. Cayton, W.Va., 312 S.E.2d 765 (1984).

Thornton Cooper, South Charleston, for appellant.

William Richard McCune, Jr., Dalton, McCune & Rich, Martinsburg, John F. Anderson, Largent, Anderson, Larrick, Groves & Crump, Winchester, Va., for appellee.

PER CURIAM:

This is an appeal by the American Lung Association of West Virginia from an order entered by the Circuit Court of Kanawha County on May 18, 1983, in an action brought to resolve a dispute concerning the proper beneficiaries of a testamentary trust. The Circuit Court of Kanawha County dismissed the Farmers and Merchants National Bank of Winchester, Virginia, as a party defendant on the ground that the court did not have jurisdiction over the Bank. The thrust of the court's decision was that the Bank did not have sufficient contacts with the State of West Virginia to afford the State jurisdiction to render judgment against it. On appeal, the appellant contends that the court erred in entering the dismissal order. We agree, and we reverse the decision of the Circuit Court of Kanawha County.

On April 28, 1967, Mattie N. Bonham died testate in Winchester, Virginia. In her will, she established a trust and provided that the bulk of the trust income be paid to certain charitable beneficiaries which operated in Jefferson County, West Virginia. The appellee, Farmers and Merchants National Bank of Winchester, Virginia, was eventually constituted trustee of the trust created by the will. The Bank, as trustee, wrote the Jefferson County Chamber of Commerce to ascertain whether the named beneficiaries were still in existence. After learning that two of the beneficiaries, the Jefferson County Chapter of the National Foundation of Infantile Paralysis and the Jefferson County Tuberculosis Association, were still in existence, the Bank, over a number of years, proceeded to divide the income from the trust between these two beneficiaries. The income was issued annually by checks, mailed by the Virginia bank to the West Virginia beneficiaries.

Disagreement subsequently arose over the proper beneficiaries and over the use of the funds. As a result of the disagreement, the appellant, American Lung Association of West Virginia, filed suit on August 26, 1982, for declaratory and injunctive relief in the Circuit Court of Kanawha County, West Virginia. Eleven parties, including the appellee Bank, were named parties defendant. The Lung Association served the Bank with process by following the procedures set forth in W.Va.Code, 31-1-15, for service of process on foreign corporations. After receiving the complaint, the Bank filed a motion to dismiss. The two main grounds assigned in the motion were lack of jurisdiction over the subject matter and lack of in personam jurisdiction over the Bank.

In opposition to the motion, the Lung Association filed a memorandum. In that memorandum, it alleged that it was of the opinion that substantial contacts unrelated to the specific complaint in this action existed between the Farmers and Merchants National Bank of Winchester, Virginia, and the State of West Virginia. It stated that Winchester, Virginia, is located less than twenty miles from five West Virginia counties and that three West Virginia counties, including Jefferson County, are wholly located within a radius of thirty-five miles of the city. It suggested that many West Virginians had contact with the Bank. The will itself authorized the Bank to contract with a Charles Town funeral director to have the testator buried in that city. After arguing that the contacts related to the specific complaint were sufficient to support jurisdiction, the Lung Association stated that even if the court was of the opinion that it had not demonstrated...