                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Keith Tritapoe,
Plaintiff Below, Petitioner                                                          FILED
                                                                                 March 23, 2020
vs.) No. 19-0100 (Berkeley County 18-C-58)                                      EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Old Republic National Title Insurance Company,
Defendant Below, Respondent


                               MEMORANDUM DECISION


        Petitioner Keith Tritapoe, by counsel Richard G. Gay, appeals the Circuit Court of
Berkeley County’s December 28, 2018, dismissal order, dismissing the complaint against
respondent stemming from a title insurance policy. Respondent Old Republic National Title
Insurance Company, by counsel Kelly J. Kimble, filed a response in support of the circuit court’s
order. Petitioner filed a reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these reasons,
a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the
Rules of Appellate Procedure.

        Petitioner purchased property located at 614 Temple Drive, Falling Waters, Berkeley
County, West Virginia, on or about June 19, 2015. Attendant to the purchase, Respondent Old
Republic National Title Insurance Company (“Old Republic”) issued a Title Commitment for the
property, effective June 10, 2015. Per the legal description in the Title Commitment, the property
conveyed to petitioner and covered by the Title Commitment included a “right-of-way in common
with lot owners to Route 11” as conveyed in Deed Book 176/84. The conveyance was made
expressly “subject to any and all applicable covenants, conditions, reservations and restrictions,
limitations, rights of way, streets, alleys and easements of record.” The Title Commitment further
provided:

       Schedule B of the policies to be issued will contain exceptions to the following
       matters unless the same are disposed of to the satisfaction of the Company:

       Defects, liens, encumbrances, adverse claims or other matters, if any, created, first
       appearing in the public records or attaching subsequent to the effective date hereof
       but prior to the date the proposed insured acquires for value of record the estate or
       interest or mortgage thereon covered by this commitment.

                                                  1
       1. Any facts, rights, interests or other claims that are not shown in the public
           records but that could be ascertained by an inspection of the land or by making
           inquiry of persons in possession of the land.
       ...

       3. Subject to rights of way, easements, restrictions, provisions and notes as set
           forth on the recorded plat(s).
       ...

       NOTE: AN OWNER’S POLICY ISSUED IN CONNECTION WITH THIS
       COMMITMENT WILL CONTAIN THE FOLLOWING PRE-PRINTED
       EXCEPTIONS:

       1. Easements, discrepancies or conflicts in boundary lines, shortage in area and
          encroachments which an accurate and complete survey would disclose.

        As indicated in the Title Commitment, Old Republic also issued a Homeowner’s Policy
of Title Insurance (“Homeowner’s Policy”).1 The policy provided, in relevant part:

       We will defend Your Title in any legal action only as to that part of the action which
       is based on a Covered Risk and which is not excepted or excluded from coverage
       in this Policy. We will pay costs, attorneys’ fees, and expenses [w]e incur in that
       defense.

       We will not pay for any part of the legal action which is not based on a Covered
       Risk or which is excepted or excluded from covered in this policy.

       Further, the Homeowner’s Policy included the following relevant provision:

       In addition to the exclusions, you are not insured against loss, costs, attorney’s fees, and
expenses resulting from:

        ...

       2.b. Such state of facts discoverable by an accurate survey and inspection of the premises.

       2.c. Rights or claims of parties in possession not shown by the public records.



       1
         Although petitioner maintains that he did not receive this document until after closing, a
fact disputed by respondent, this is of no moment as there is no dispute that petitioner had the Title
Commitment prior to closing. Based on a review the Title Commitment and the Homeowner’s
Policy both contain exceptions which clearly apply.



                                                  2
        After moving onto the property, petitioner blocked a neighboring property’s access to the
roadway known as Temple Drive. In response, the owners of the neighboring property, Mr. Alton
Temple2 and Mr. Harry Lee Temple II, filed a complaint (hereinafter “Temple civil action”) against
petitioner to regain access to Temple Drive. The Temple civil action alleged that Temple Road
was adopted as part of West Virginia’s Orphaned Roads Program in June of 2000 and petitioner
was well aware of the road’s existence and the Temples’s use of it prior to petitioner’s purchase
of the property. The Temple civil action contained alternative theories upon which the neighboring
landowners claimed a legal right to use the roadway; these ranged from an express right of use by
virtue of Temple Drive’s adoption into the State’s Orphaned Roads Program to a prescriptive
easement based on the historic use of the roadway.

        After the Temple civil action was filed, petitioner tendered the defense of the Temple civil
action to Old Republic, asserting that Old Republic had a duty to indemnify him and defend his
title. Notably, however, in correspondence to Old Republic concerning the tender, petitioner
acknowledged that he had a land survey completed after his purchase which confirmed that Temple
Drive was not on his property. Old Republic declined to accept the tender of defense citing
exceptions contained within the Title Commitment and Homeowner’s Policy.

        On March 6, 2018, petitioner filed a declaratory judgment action asking the circuit court
to declare that petitioner was entitled to have Old Republic defend his title or indemnify him in
the Temple civil action.3 Petitioner attached a copy of the Temple Amended Complaint, the Title
Commitment, the Homeowner’s Policy, and correspondence between petitioner and Old Republic.

        Old Republic filed a motion to dismiss, pursuant to Rule 12(b) of the West Virginia Rules
of Civil Procedure, which was granted by the circuit court by order entered on December 28, 2018.
In that order the circuit court set forth detailed findings of fact and conclusions of law.4 The circuit
court specifically found that:

       16. Based on a review of the underlying Complaint and the provision of the
       Owner’s Policy, the exceptions contained in the Title Commitment and the Owner’s
       Policy clearly negate any duty to defend or indemnify [petitioner] in the underlying
       suit. Both the Commitment and the Owner’s Policy except matters that are not
       shown in the public records but that could be ascertained:

          By an inspection of the land;

       2
         The property was previously owned by Carleton Davis Temple, who passed away on
November 22, 2015. Alton Temple was appointed as the Executor of Carlton Davis Temple’s
Estate. By operation of Carlton Davis Temple’s last will and testament, Alton Temple and Harry
Lee Temple II own the property as co-tenants.
       3
         Petitioner also alleged that Old Republic was liable to petitioner for violations of the
Unfair Trade Practices Act, W. Va. Code § 33-11-4(9).
       4
         We disagree with petitioner’s contention that the circuit court failed to provide adequate
findings of fact and conclusions of law in its order.
                                                   3
          By making inquiry of persons in possession of the land; and/or

          By a complete and accurate survey

       17. It is clear that simple inquiry of [petitioner’s] predecessor in title and inspection
       of the property would have, and in fact did, reveal the roadway’s existence and use,
       thus invoking the exclusion contained in paragraph 1 of the Title Commitment (for
       “any facts, rights, interests or other claims that are not shown in the public records
       but that could be ascertained by an inspection of the land or by making inquiry of
       persons in possession of the land”) and the corresponding exclusions 2.b and 2.c of
       the Owner’s Policy (for [“]such state of facts discoverable by an accurate survey
       and inspection of the premises” and for “rights or claims of parties in possession
       not shown by the public records.”).

       18. Likewise, the location of the clearly visible roadway in relation to [petitioner’s]
       property would be easily ascertainable through an accurate survey, thus invoking
       the survey exception contained in the Title Commitment and Owner’s Policy
       sections cited in the above findings of fact. The fact that there may exist a dispute
       as to the exact location of Temple Drive is of no moment for purposes of [Old
       Republic’s] duty to defend or indemnify, because exception 2.c. of the Owner’s
       Policy excepts from coverage “[s]uch state of facts discoverable by an accurate
       survey and inspection of the premises.” An accurate survey would show one of 2
       things: (1) that the right of way is within the boundary lines of [petitioner’s]
       property (in which case the exception applies), or (2) it is outside [petitioner’s]
       property lines (in which it cannot in any way impair [petitioner’s] title).

        Petitioner appeals the circuit court’s December 28, 2018, dismissal order. Petitioner
maintains that the circuit court reviewed facts beyond the scope of his complaint and thus
effectively converted the motion to dismiss to a motion for summary judgment when it granted
respondent’s motion. Further, petitioner maintains that the circuit court refused to acknowledge
that there was a genuine issue of material disputed facts in the case and, therefore, improperly
granted respondent’s motion. For the reasons set forth below, we disagree with petitioner and find
that the circuit court did not err in granting Old Republic’s motion to dismiss.

        At the outset, we note that “[a]ppellate review of a circuit court’s order granting a motion
to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick,
Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995). In Gastar Exploration Inc. v. Rine, 239 W. Va. 792,
806 S.E.2d 448 (2017), this Court elaborated on the meaning of this standard of review:

       The term “de novo” means “Anew; afresh; a second time.” “We have often used
       the term ‘de novo’ in connection with the term ‘plenary.’ . . . Perhaps more
       instructive for our present purposes is the definition of the term ‘plenary,’ which
       means ‘[f]ull, entire, complete, absolute, perfect, unqualified.’” “We therefore give
       a new, complete and unqualified review to the parties’ arguments and the record
       before the circuit court.”

                                                  4
Id. at 798, 806 S.E.2d at 454. With this standard in mind, we consider the parties’ arguments.

         “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.” Newton v. Morgantown Mach. & Hydraulics
of W.Va., Inc., No. 18-0653, 2019 WL 6258350,* 3 (W. Va. Nov. 19, 2019) (citing Doe v. Logan
Cty. Bd. of Ed., 242 W. Va. 45, __, 829 S.E.2d 45, 49 (2019)); see also Collia v. McJunkin, 178
W. Va. 158, 159, 358 S.E.2d 242, 243 (1987)(citations omitted). This Court has repeatedly held
that motions to dismiss under Rule 12(b)(6) should be granted only if “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, in part, Chapman v. Kane Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977)(citation
omitted). Additionally, “the complaint is [to be] construed in the light most favorable to plaintiff,
and its allegations are to be taken as true.” Lodge Distrib. Co. v. Texaco, Inc., 161 W. Va. 603,
605, 245 S.E.2d 157, 158 (1978). Here, construing the complaint in the light most favorable to
petitioner, petitioner can prove no set of facts to entitle him to the relief requested in the complaint.

        Despite petitioner’s argument to the contrary, the circuit court did not need to look beyond
the petitioner’s complaint to determine that the complaint failed to state a claim upon which relief
could be granted. Petitioner’s complaint, predicated upon the Temple civil action, attached six
exhibits including: the Title Commitment; the Homeowner’s Policy; the Temple amended
complaint; and correspondence between petitioner and Old Republic wherein petitioner conceded
that Temple Drive is not on his property. Inasmuch as petitioner attached documents to his
complaint, we have held that “[a] circuit court ruling on a motion to dismiss under Rule 12(b)(6)
of the West Virginia Rules of Civil Procedure may properly consider exhibits attached to the
complaint without converting the motion to a Rule 56 motion for summary judgment.” Syl. Pt. 1,
Forshey v. Jackson, 222 W. Va. 743, 671 S.E. 2d 748 (2008).

        Petitioner asks this Court to find that the circuit court erred when it determined that Old
Republic did not have a duty to defend petitioner in the Temple civil action. First, we have long
held that the “[d]etermination of the proper coverage of an insurance contract when the facts are
not in dispute is a question of law.” Syl. Pt. 1, Tennant v. Smallwood, 211 W. Va. 703, 568 S.E.2d
10 (2002). Further, the “[l]anguage in an insurance policy should be given its plain, ordinary
meaning.” Syl. Pt. 1, Soliva v. Shand, Morahan & Co., 176 W. Va. 430, 345 S.E.2d 33 (1986),
overruled on other grounds by National Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W. Va 734,
356 S.E.2d 488 (1987).

        “[I]ncluded in the consideration of whether [an] insurer has a duty to defend is whether the
allegations in the complaint . . . are reasonably susceptible of an interpretation that the claim may
be covered by the terms of the insurance polic[y].” Syl. Pt. 5, West Virginia Fire & Cas. Co. v.
Stanley, 216 W. Va. 40, 602 S.E.2d 483 (2004)(citing Syl. Pt. 3, in part, Bruceton Bank v. U.S.
Fid. and Guar. Ins., 199 W. Va. 548, 486 S.E.2d 19 (1997)). Applying the plain, ordinary meaning
of the contract, we hold that the circuit court appropriately considered and ruled upon this question
of law.

        The circuit court found, in pertinent part:



                                                   5
       13. An insurer’s duty to defend claims against its insured is dependent upon
       whether the allegations in the complaint against the insured are reasonably
       susceptible of an interpretation that the claim may be covered by the terms of the
       insurance policy. Horace Mann Insurance v. Leeber, 180 W. Va. 375, 378, 376
       S.E.2d 581, 584 (1988).

       14. While it is true that an insurer’s duty to defend is broader than the duty to
       indemnify, the claims against the insured must be based upon allegations that, if
       true, would be covered risks under the policy. Id. An insurer has no duty to provide
       a defense for claims that, based upon a reading of the complaint, are clearly outside
       the scope of covered risks. Id.; see also, Bruceton Bank v. U.S. Fidelity and Guar.
       Ins. Co., 486 S.E.2d 19 (1997).

         In his complaint, petitioner conceded one determinative fact: Temple Drive, the property
at issue in the Temple civil action, is not located on his property.5 It is clear that the Title
Commitment and Homeowner’s Policy apply to property which is owned by petitioner. Petitioner
asks this Court to impose upon his title company the obligation to defend his title to property that
was never insured by Old Republic or owned by petitioner. We disagree with petitioner and find
that the circuit court did not err in determining that Old Republic had no duty to defend title in this
matter.

         Even under the fatally flawed assumption that the Old Republic policy did somehow apply
to the Temple Drive property, the policy provided a clear and unambiguous exception which
defeated the coverage sought by petitioner. Based upon the clear and unambiguous language of
the Title Commitment, Old Republic had no obligation to defend any suits for “any facts, rights,
interests, or other claims that are not shown in the public record but that could be ascertained by
an inspection of the land or by making inquiry of persons in possession of the land.” Alternatively,
the Homeowner’s policy had corresponding exclusions “for such state of facts discoverable by an
accurate survey and inspection of the premises” and for “rights or claims of parties in possession
not shown by the public records” concerning “[e]asements, discrepancies or conflicts in boundary
lines, shortage in area and encroachments which an accurate and complete survey would disclose.”
Here, a complete survey was conducted at the behest of petitioner. Inasmuch as the complete
survey would, and in fact did, resolve the issues in the Temple civil action, we find that the circuit
court did not err when it determined that Old Republic did not have any obligation to defend
petitioner in this suit.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.
ISSUED: March 23, 2020



       5
         Petitioner maintains that this fact was not known to Old Republic at the time that the duty
to defend first arose. Inasmuch as the circuit court found that an exclusion precluded coverage for
the claims brought by petitioner, a finding which we do not find to be error, this simply provided
an additional ground for Old Republic to deny petitioner’s claims.
                                                  6
CONCURRED IN BY:

Chief Justice Tim Armstead
Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Evan H. Jenkins
Justice John A. Hutchison




                              7
