John W. Lodge Distributing Co., Inc. v. Texaco, Inc., No. 13731

CourtSupreme Court of West Virginia
Writing for the CourtMcGRAW
Citation161 W.Va. 603,245 S.E.2d 157
PartiesJOHN W. LODGE DISTRIBUTING CO., INC. v. TEXACO, INC.
Decision Date06 June 1978
Docket NumberNo. 13731

Page 157

245 S.E.2d 157
161 W.Va. 603
JOHN W. LODGE DISTRIBUTING CO., INC.
v.
TEXACO, INC.
No. 13731.
Supreme Court of Appeals of West Virginia.
June 6, 1978.

Page 158

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 that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Syl. pt. 3, Chapman v. Kane Transfer Company, W.Va., 236 S.E.2d 207 (1977) quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

Fred M. Frisk, Jr., Ralph C. Dusic, Jr., Charleston, for appellant.

Steptoe & Johnson, E. Loyd Leckie, Charleston, for appellee.

McGRAW, Justice:

On December 1, 1963, John W. Lodge Distributing Company, Inc., a corporation, entered into a written consignment agreement with Texaco, Inc., a corporation, whereby Lodge would act as a distributor of Texaco's petroleum products. Pertinent to this case is the eighth section of this written agreement which reads:

1. This agreement shall continue in full force and effect until terminated by either party on five (5) days' written notice . . .

2. Any and all agreements heretofore existing between Consignee and Consignor respecting compensation from sale of Consignor's products are hereby superseded and cancelled, and no modification of this agreement shall be binding unless signed by the parties hereto.

[161 W.Va. 604] On September 17, 1973, Texaco notified Lodge that it was going to terminate the agreement effective November 1, 1973. Lodge thereafter filed in the Circuit Court of Kanawha County a complaint against Texaco containing twenty enumerated allegations. The trial court sustained a defense motion to dismiss under Rule 12(b)(6) of the W.Va. Rules of Civil Procedure on the grounds that the terms of the agreement were clear and unambiguous and that there were no factual situations or circumstances stated in the complaint which could be construed as stating a proper claim against the defendant. The court, however, granted the plaintiff the right to file an amended complaint which was later filed and similarly dismissed under Rule 12(b)(6). Thereafter, the plaintiff filed a motion to set aside the judgment, which was denied by order on October 15, 1975, and this appeal followed.

The eight-page amended complaint, containing 21 enumerated sections and 13 subsections, alleges, in pertinent part, that the terms and conditions of said agreement were altered and amended several times by letter agreements subsequent to the date of the original agreement; that although the original agreement failed to provide that the defendant must have some cause to cancel the agreement it was implied that both parties entered into the agreement in good faith and intended that if the service was performed in a satisfactory manner that no cause existed for the termination of plaintiff's franchise by defendant; that defendant did not exercise good faith in terminating said franchise; that said termination was arbitrary and wrongful and in breach of the agreements between plaintiff and defendant, and that the terms and conditions of the contract were unilateral and against public policy.

The issue now before this Court is whether the circuit court committed error when it granted the defendant's motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.

The purpose of a motion under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure is to test the [161 W.Va. 605] formal sufficiency of the complaint. For 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. Since common law demurrers have been abolished, pleadings are now liberally construed so as to do substantial justice. W.Va. R.C.P. 8(f). The policy of the rule is

Page 159

thus 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. United States Fidelity & Guaranty Co. v. Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965). "The trial court's inquiry (is) directed to whether the allegations constitute a statement of a claim under Rule 8(a)." Chapman v. Kane Transfer Co., W.Va., 236 S.E.2d 207, 212 (1977). W.Va. R.C.P. 8(a) reads as follows:

(a) A pleading which sets forth a claim for relief . . . shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief . . . .

In a recent case we tried to assist the lower courts in ruling on 12(b)(6) motions by adopting the standard promulgated by the United States Supreme Court for the...

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99 practice notes
  • EXECUTIVE RISK INDEMNITY, INC. v. Charleston Area Medical Center, Inc., Civil Action No. 2:08-cv-00810.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • July 30, 2009
    ...be modified or superceded by a subsequent contract based on a valuable consideration." John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 245 S.E.2d 157, 159 (1978). A subsequent oral contract must be based on valuable consideration and the burden of proving an oral modificati......
  • C.C. v. Harrison Cnty. Bd. of Educ., No. 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...in the light most favorable to plaintiff, and its allegations are to be taken as true." Lodge Distrib. Co., Inc. v. Texaco, Inc. , 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978). Thus, "[d]ismissal for failure to state a claim is proper [only] where it is clear that no relief could be gran......
  • W. Va. State Police v. J.H., No. 19-0741
    • United States
    • Supreme Court of West Virginia
    • March 29, 2021
    ...as true.’ Sedlock v. Moyle , 222 W. Va. 547, 550, 668 S.E.2d 176, 179 (2008) (citing John W. Lodge Distrib. Co. v. Texaco, Inc. , 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978) ).").3 "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence ......
  • Burke v. Wetzel Cnty. Comm'n, No. 17-0485
    • United States
    • Supreme Court of West Virginia
    • June 6, 2018
    ...490, 492 (2007).8 Sedlock v. Moyle , 222 W. Va. 547, 550, 668 S.E.2d 176, 179 (2008) (citing John W. Lodge Distrib. Co. v. Texaco, Inc ., 161 W. Va. 603, 604-05, 245 S.E.2d 157, 158-59 (1978) ).9 Syl. Pt. 3, Chapman v. Kane Transfer Co ., 160 W. Va. 530, 236 S.E.2d 207 (1977) (citing Conley......
  • Request a trial to view additional results
96 cases
  • EXECUTIVE RISK INDEMNITY, INC. v. Charleston Area Medical Center, Inc., Civil Action No. 2:08-cv-00810.
    • United States
    • United States District Courts. 4th Circuit. Southern District of West Virginia
    • July 30, 2009
    ...be modified or superceded by a subsequent contract based on a valuable consideration." John W. Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 245 S.E.2d 157, 159 (1978). A subsequent oral contract must be based on valuable consideration and the burden of proving an oral modificati......
  • C.C. v. Harrison Cnty. Bd. of Educ., No. 20-0171
    • United States
    • Supreme Court of West Virginia
    • June 17, 2021
    ...in the light most favorable to plaintiff, and its allegations are to be taken as true." Lodge Distrib. Co., Inc. v. Texaco, Inc. , 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978). Thus, "[d]ismissal for failure to state a claim is proper [only] where it is clear that no relief could be gran......
  • W. Va. State Police v. J.H., No. 19-0741
    • United States
    • Supreme Court of West Virginia
    • March 29, 2021
    ...as true.’ Sedlock v. Moyle , 222 W. Va. 547, 550, 668 S.E.2d 176, 179 (2008) (citing John W. Lodge Distrib. Co. v. Texaco, Inc. , 161 W. Va. 603, 605, 245 S.E.2d 157, 158 (1978) ).").3 "In determining whether to entertain and issue the writ of prohibition for cases not involving an absence ......
  • Burke v. Wetzel Cnty. Comm'n, No. 17-0485
    • United States
    • Supreme Court of West Virginia
    • June 6, 2018
    ...490, 492 (2007).8 Sedlock v. Moyle , 222 W. Va. 547, 550, 668 S.E.2d 176, 179 (2008) (citing John W. Lodge Distrib. Co. v. Texaco, Inc ., 161 W. Va. 603, 604-05, 245 S.E.2d 157, 158-59 (1978) ).9 Syl. Pt. 3, Chapman v. Kane Transfer Co ., 160 W. Va. 530, 236 S.E.2d 207 (1977) (citing Conley......
  • Request a trial to view additional results

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