         IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                              September 2015 Term
                                                                           FILED
                                                                      October 7, 2015
                                                                        released at 3:00 p.m.
                                   No. 14-0849                        RORY L. PERRY II, CLERK
                                                                    SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA




                            JOHN TERRY MALONE,

                            Plaintiff Below, Petitioner


                                        v.

               POTOMAC HIGHLANDS AIRPORT AUTHORITY,

                          a public corporation,

                      Defendant Below, Respondent




                 Appeal from the Circuit Court of Mineral County

                      The Honorable Philip Jordan, Judge

                            Civil Action No. 13-C-63


                                   AFFIRMED




                         Submitted: September 22, 2015

                            Filed: October 7, 2015



Harry A. Smith, III, Esq.                    Ramon Rozas, III, Esq.
McNeer, Highland, McMunn                     Friend & Rozas, LLC
and Varner, L. C.                            Cumberland, Maryland
Elkins, West Virginia                        Attorney for Respondent
Attorney for Petitioner


CHIEF JUSTICE WORKMAN delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT



              1.     “A motion to amend or alter judgment, even though it is incorrectly

denominated as a motion to ‘reconsider’, ‘vacate’, ‘set aside’, or ‘reargue’ is a Rule 59(e)

motion if filed and served within ten days of entry of judgment.” Syl. Pt. 1, Lieving v.

Hadley, 188 W. Va. 197, 423 S.E.2d 600 (1992) abrogated on other grounds by Walker

v. Doe, 210 W. Va. 490, 558 S.E.2d 290 (2001).



              2.     “When a party filing a motion for reconsideration does not indicate

under which West Virginia Rule of Civil Procedure it is filing the motion, the motion will

be considered to be either a Rule 59(e) motion to alter or amend a judgment or a Rule

60(b) motion for relief from a judgment order. If the motion is filed within ten days of

the circuit court’s entry of judgment, the motion is treated as a motion to alter or amend

under Rule 59(e). If the motion is filed outside the ten-day limit, it can only be addressed

under Rule 60(b).” Syl. Pt. 2, Powderidge Unit Owners Ass’n v. Highland Properties,

Ltd., 196 W. Va. 692, 474 S.E.2d 872 (1996).



              3.     A “motion to reconsider” is not recognized under our Rules of Civil

Procedure. When motions seek relief afforded by the Rules of Civil Procedure, such

motions should expressly identify the Rule of Civil Procedure under which relief is

sought and should be captioned accordingly. The filing of motions which fail to identify




                                             i
the Rule of Civil Procedure or other legal authority providing the right to relief may serve

as grounds for summary denial.



              4.     “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. Am. Travellers

Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657 (1998).



              5.     “‘Appellate review of a circuit court’s order granting a motion to

dismiss a complaint is de novo.’ Syllabus point 2, State ex rel. McGraw v. Scott Runyan

Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).” Syl. Pt. 1, Longwell v. Bd.

of Educ. of the Cnty. of Marshall, 213 W.Va. 486, 583 S.E.2d 109 (2003).



              6.     “‘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 (1957).” Syl. Pt. 3, Chapman v. Kane

Transfer Co., 160 W. Va. 530, 236 S.E.2d 207 (1977).



              7.     “The Court takes the pleadings and record as it finds them and the

adversarial process makes it incumbent on the parties to plead the causes of action and

                                             ii
present the requisite evidence necessary to maintain viability of their case. Courts cannot

concoct or resurrect arguments neither made nor advanced by the parties.” Syl. Pt. 13, W.

Va. Reg’l Jail & Corr. Facility Auth. v. A. B., 234 W. Va. 492, 766 S.E.2d 751 (2014).




                                            iii
WORKMAN, Chief Justice:

             Petitioner John Terry Malone (hereinafter “petitioner”) appeals the Circuit

Court of Mineral County’s July 28, 2014, order denying his “Motion for

Reconsideration” of the circuit court’s dismissal of his case pursuant to Rule 12(b)(6) of

the West Virginia Rules of Civil Procedure. In his complaint, petitioner alleges that

respondent Potomac Highlands Airport Authority (hereinafter “PHAA”) wrongfully

banned him from the Greater Cumberland Regional Airport (hereinafter the “GCRA”),

which banishment interfered with his ability to engage in employment as a pilot.



             Based upon our review of the briefs, legal authorities, appendix record, and

upon consideration of arguments of counsel, this Court finds that petitioner’s complaint

fails to state a claim with sufficient clarity to satisfy even our liberal notice pleading

standards. Accordingly, we affirm the circuit court’s dismissal of the subject complaint.



                     I.     FACTS AND PROCEDURAL HISTORY

             Petitioner is a pilot, former part-time manager of the GCRA, and former

Board member of the PHAA. The GCRA is operated by PHAA, a federally-created

public corporation existing for the purpose of operating the GCRA (formerly known as

the Cumberland Municipal Airport) located in Mineral County, West Virginia and which




                                            1

services areas of West Virginia and Maryland. 1 On March 28, 2013, the PHAA’s

attorney wrote to petitioner advising him that he was “barred from entering the property

of the Authority, including the airport terminal and grounds” and that entering the

premises without the “express written permission” from the PHAA would be considered

trespassing. The letter gave no explanation for why petitioner was being barred and also

requested that he return his keys to the GCRA. Petitioner retained counsel who requested

the “specific reason” petitioner was barred and indicated that all keys had been returned,

save one hangar key that he could not locate. The PHAA’s attorney responded on May 8,

2013, stating only that

              [t]he Board was concerned about complaints it has received
              from tenants regarding Mr. Malone’s actions, as well as
              interactions that have occurred between PHAA personnel and
              Mr. Malone. The Board’s concern, as always, is the safe,
              efficient and appropriate operation of the Airport and this
              action was taken in line with that concern.

The letter further indicated, however, that if petitioner had a “legitimate business or

personal reason to be on Airport grounds, he is welcome to request prior written




       1
        The PHAA Compact was congressionally approved by Public Law 105-348,
November 2, 1998. The Compact authorizes creation of PHAA and grants it the “power
and authority . . . [t]o make and adopt all necessary . . . rules[] and regulations for its . . .
operations not inconsistent with law.” Pub. Law 105-348, Sec. 6(1), “Powers.” It
likewise permits PHAA to “take all legal actions necessary or desirable in relation to the
general operation . . . management, and protection” of the airport. Id. at Sec. 6(2).

                                               2

permission to be present on a specific date or time and the Board would certainly

consider the same.”2



              Petitioner filed suit alleging that the PHAA had “no legitimate basis” to bar

him, that he was “entitled to have access . . . as any citizen would, and [PHAA’s] denial

of such access is wrongful[.]” Petitioner’s complaint alleged a loss of income as a result

of his inability to access the airport premises and sought injunctive relief. In response,

PHAA filed an answer and counter-claim for conversion for petitioner’s alleged failure to

return all the keys. PHAA also filed a motion to dismiss pursuant to West Virginia Rule

of Civil Procedure 12(b)(6) asserting that petitioner’s complaint failed to state a claim

upon which relief could be granted.



              A hearing on the preliminary injunction was held on August 5, 2013. After

hearing testimony from petitioner,3 the circuit court found that, given that petitioner had

not utilized the airport for several months before he was barred from the premises and



       2
        According to PHAA, the GCRA hosted no federally regulated commercial
passenger flights.
       3
          Petitioner testified to various potential employment opportunities as a pilot
which were scuttled because he had been banned from the airport. Petitioner testified
that as additional “occupations,” he owned real estate and a printing company. On cross
examination it appeared that none of these potential deals had developed beyond the
conceptual stage; petitioner suggested that was because once he learned he was banned
from the airport, he did not pursue them further to protect his reputation. Petitioner also
testified that being banned hampered his efforts to obtain flying hours necessary to
maintain his licensure.

                                            3

that other nearby airports were equally available to him, no irreparable harm would likely

occur and denied the injunction.



              More importantly for purposes of this appeal, the court thereafter

entertained argument on PHAA’s motion to dismiss. PHAA argued that it had the

discretion to ban persons from its premises “for any reason the Board feels is

appropriate.” Petitioner countered that as a publicly funded corporation, the PHAA could

not “arbitrarily” ban him, but that there was “no law that [he could] ascertain on the

subject[.]”   At no time during the hearing was a specific rationale for petitioner’s

banishment adduced, nor is any such information contained elsewhere in the appendix

record aside from the explanation in counsel’s May 8, 2013, letter. The circuit court

found that PHAA had the discretion to bar “disruptive” persons and granted PHAA’s

motion to dismiss by order dated September 3, 2013.



              Nine days later, on September 12, 2013, petitioner filed a “Motion for

Reconsideration and Rehearing” purportedly pursuant to West Virginia Rule of Civil

Procedure 59(a), rehashing his previous arguments that “public accountability” precluded

the PHAA from “arbitrarily” banning him from the premises and that his argument that

he could not be banned was “facially more compelling” than PHAA’s contention that it

could ban him for any reason. Petitioner further argued that since the circuit court

accepted a copy of Public Law 105-348 regarding the creation and power of the PHAA

into evidence during the injunctive hearing, it had considered matters “outside of the

                                            4

pleadings.” As such, petitioner argued that the circuit court should have treated the

motion as one for summary judgment pursuant to Rule 56 of the West Virginia Rules of

Civil Procedure and therefore further factual development and discovery was necessary.

The circuit court summarily denied the motion on July 28, 2014.



                             II.    STANDARD OF REVIEW

              This matter is on appeal from the circuit court’s denial of petitioner’s

“Motion for Reconsideration and Rehearing.” This Court has held that “[a] motion to

amend or alter judgment, even though it is incorrectly denominated as a motion to

‘reconsider’, ‘vacate’, ‘set aside’, or ‘reargue’ is a Rule 59(e) motion if filed and served

within ten days of entry of judgment.” Syl. Pt. 1, Lieving v. Hadley, 188 W. Va. 197,

198-99, 423 S.E.2d 600, 601-02 (1992) abrogated on other grounds by Walker v. Doe,

210 W. Va. 490, 558 S.E.2d 290 (2001). More fully stated,

                      [w]hen a party filing a motion for reconsideration does
              not indicate under which West Virginia Rule of Civil
              Procedure it is filing the motion, the motion will be
              considered to be either a Rule 59(e) motion to alter or amend
              a judgment or a Rule 60(b) motion for relief from a judgment
              order. If the motion is filed within ten days of the circuit
              court’s entry of judgment, the motion is treated as a motion to
              alter or amend under Rule 59(e). If the motion is filed outside
              the ten-day limit, it can only be addressed under Rule 60(b).

Syl. Pt. 2, Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196 W. Va. 692,

474 S.E.2d 872 (1996); see also Savage v. Booth, 196 W. Va. 65, 68, 468 S.E.2d 318,

321 (1996) (“If a motion [for reconsideration] is filed within ten days of judgment, the

motion is treated as a motion to alter or amend judgment under Rule 59(e). Alternatively

                                             5

if it is filed more than ten days after entry of judgment, we look to Rule 60(b) to provide

the basis for analysis of the review.”).



              We note that although petitioner captioned his motion as one for

“reconsideration and rehearing,” he did reference West Virginia Rule of Civil Procedure

59(a) in the body of his motion.           However, subsection (a) of Rule 59 is plainly

inapplicable as it provides for relief from judgments which have been entered as a result

of trial: “A new trial may be granted to all or any of the parties and on all or part of the

issues (1) in an action in which there has been a trial by jury . . . and (2) in an action tried

without a jury . . . .” (emphasis added).           Inasmuch as petitioner’s “Motion for

Reconsideration and Rehearing” was filed within ten days of the circuit court’s order

dismissing the action, in accord with our historical practice, the Court will treat this

appeal as arising from the circuit court’s denial of a motion filed pursuant to Rule 59(e),

which provides for the alteration or amendment of a judgment.4



              However, we pause in our analysis briefly to comment upon the apparently

predominant practice of haphazardly and imprecisely characterizing an attempt to obtain

relief from a judgment under our Rules of Civil Procedure. This Court has repeatedly

emphasized that a “motion to reconsider” is a fiction which does not exist under our

Rules of Procedure; nevertheless, practitioners continue to file motions captioned as such.


       4
        Rule 59(e) provides simply: “Any motion to alter or amend the judgment shall be
filed not later than 10 days after entry of the judgment.” W. Va. R. C. P.

                                               6

As we observed many years ago, “[t]he reason for this may be partially our fault because

we continue to treat a ‘motion to reconsider’ as either a motion to alter or amend

judgment . . . or a motion for relief from judgment[.]” Richardson v. Kennedy, 197 W.

Va. 326, 329-30, 475 S.E.2d 418, 421-22 (1996). We continue to recognize, in fairness,

that this lack of precision in procedural practice is one which this Court has seemingly

countenanced for greater than twenty years.5 However, seldom in our jurisprudence has

this Court seen fit to do the work of practitioners for them with such regularity, correcting

a blatant legal error and going so far as to create precedent which forgives, as a matter of

law, the failure to properly denominate a critical procedural motion. Irrespective of this

construct that attempts to properly categorize such rogue motions, the failure to

accurately identify the Rule of Procedure under which a party seeks relief unnecessarily

burdens both lower and appellate courts with untangling the nature of the relief sought

and, more importantly, obfuscates the proper analysis to be employed to ascertain if relief

is warranted. See Mey v. Pep Boys—Manny, Moe & Jack, 228 W. Va. 48, 56-7, 717

S.E.2d 235, 243-44 (2011) (discussing proper analysis of Rule 59(e) and 60(b) motions).




       5
         We note further that this practice emanated from and continues to be utilized by
the Federal courts and other states: “The universal rule is that, regardless of its label, any
motion made within ten days of entry of judgment which seeks a substantive change in
the judgment will be considered a Fed. R. Civ. P. 59(e) motion.” Maxus Energy Corp. &
Subsidiaries v. U. S., 31 F.3d 1135, 1139 (Fed. Cir. 1994); see also 6A James W. Moore
et al., Moore's Federal Practice, ¶ 59.12[1], at 59–265 (2d ed. 1994).


                                              7

              We are loath to allow this practice to continue unabated, yet are mindful of

the Court’s long-standing tolerance of this practice, which was developed as a matter of

lenity and an effort to render justice. We note that we are not the only court to grow

weary of practitioners who are content to avail themselves of the court’s indulgence in

this regard and continue to refuse to properly identify the source of the relief requested.6

Therefore, while we decline at this juncture to expressly overrule our precedent

permitting the Court to re-categorize motions to reconsider, we again reiterate to

practitioners that a “motion to reconsider” is not recognized under our Rules of Civil

Procedure. When motions seek relief afforded by the Rules of Civil Procedure, such

motions should expressly identify the Rule of Civil Procedure under which relief is

       6
       The Supreme Court of Utah has repudiated its long-standing practice of similarly
re-nominating so-called “motions to reconsider”:

              We are now persuaded that it is time this practice comes to an
              end. In our system, the rules provide the source of available
              relief. They “[are] designed to provide a pattern of regularity
              of procedure which the parties and the courts [can] follow and
              rely upon.” Drury v. Lunceford, 18 Utah 2d 74, 415 P.2d 662,
              663 (1966). Accordingly, the form of a motion does matter
              because it directs the court and litigants to the specific, and
              available, relief sought. See Utah R. Civ. P. 7(b) (“A motion
              shall be in writing and state succinctly and with particularity
              the relief sought and the grounds for the relief sought.”).
              Hereafter, when a party seeks relief from a judgment, it must
              turn to the rules to determine whether relief exists, and if so,
              direct the court to the specific relief available. Parties can no
              longer leave this task to the court by filing so-called motions
              to reconsider and relying upon district courts to construe the
              motions within the rules.

Gillett v. Price, 135 P.3d 861, 863 (Utah 2006).


                                             8

sought and should be captioned accordingly. The filing of motions which fail to identify

the Rule of Civil Procedure or other legal authority providing the right to relief may serve

as grounds for summary denial. We trust that this admonition will yield the extinction of

the so-called “motion to reconsider,” such that this Court is no longer called upon to

utilize the methodologies set forth in Lieving and Powderidge.



              That said and in view of our reticence to drastically alter our precedent, we

proceed with our review of this matter as an appeal from a motion filed pursuant to Rule

59(e).7 As such, this Court has held that

                     [t]he 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. Am. Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657

(1998). In this case, the “underlying judgment” is the circuit court’s grant of PHAA’s

motion to dismiss. As is well-established, “‘[a]ppellate review of a circuit court’s order

granting a motion to dismiss a complaint is de novo.’ Syllabus point 2, State ex rel.

McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).”

Syl. Pt. 1, Longwell v. Bd. of Educ. of the Cty. of Marshall, 213 W.Va. 486, 583 S.E.2d


       7
        We note that petitioner’s incorrect reference to Rule 59(a) likely gave rise to
respondent’s equally erroneous contention that this Court must review this matter under
an abuse of discretion standard. Our standard of review is de novo. See infra.




                                             9

109 (2003). With this standard of review in mind, we proceed to the substance of

petitioner’s appeal.



                                    III.   DISCUSSION

              Petitioner asserts that the circuit court erred in concluding that he failed to

state a viable cause of action sufficient to survive a motion pursuant to Rule 12(b)(6) of

our Rules of Civil Procedure. Without question, our law on Rule 12(b)(6) is very liberal.

This Court has held that such motions to dismiss 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., Inc., 160

W. Va. 530, 236 S.E.2d 207 (1977).



              However, despite this liberal standard, the Court has made equally clear

that complaints must minimally place a defendant on notice of the claim against it. West

Virginia Rule of Civil Procedure 8(a)(2) requires a “short and plain statement of the

claim showing that the pleader is entitled to relief[.]” In that regard, the Court has

explained that “Rule 8 of the Rules of Civil Procedure requires clarity but not detail.”

State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 776, 461

S.E.2d 516, 522 (1995). Moreover, we have observed that “[t]he primary purpose of

these provisions is rooted in fair notice. 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.” Id. (emphasis added). We have cautioned further that “a

                                             10

plaintiff may not ‘fumble around searching for a meritorious claim within the elastic

boundaries of a barebones complaint[.]’” Id. (quoting Chaveriat v. Williams Pipe Line

Co., 11 F.3d 1420, 1430 (7th Cir. 1993)).



             Critically, even liberal notice pleading requirements “do[] not justify a

carelessly drafted or baseless pleading.” Sticklen v. Kittle, 168 W. Va. 147, 157-58, 287

S.E.2d 148, 164 (1981). The Court has noted that “the plaintiff’s attorney must know

every essential element of his cause of action and must state it in the complaint.” Id.

(quoting Lugar and Silverstein, West Virginia Rules of Civil Procedure at 75 (1960)).

The Court has further agreed that

             more detail often is required than the bald statement by
             plaintiff that he has a valid claim of some type against
             defendant. Moreover, if the allegations in the complaint,
             taken as true, do not effectively state a claim, the added
             assertion by plaintiff that they do state a claim will not save
             the complaint.

Id. at n.12 (emphasis added); see also Roth v. DeFelicecare, Inc., 226 W. Va. 214, 226,

700 S.E.2d 183, 195 (2010) (Benjamin, J., dissenting) (“[T]he consideration before us [on

appeal of an order granting dismissal pursuant to Rule 12(b)(6)] . . . is whether all of

these allegations adequately give notice of a claim for which our legal system may grant

relief.”).



             This case presents precisely the type of deficient complaint described in

Sticklen. Although typically this Court is confronted with Rule 12(b)(6) motions which

were granted based on factually deficient complaints or complaints which omit essential
                                            11

elements of a cause of action, petitioner’s complaint suffers from the absence of identity

of a cause of action in the first instance—making it impossible to know if all the elements

have been pled. Petitioner appears to tacitly concede that he does not know the legal

basis for his cause of action,8 simply that he has one. “[A]lthough the plaintiff enjoys the

benefit of all inferences that plausibly can be drawn from the pleadings, a party’s legal

conclusions, opinions, or unwarranted averments of fact will not be deemed admitted.”

Kopelman & Associates, L.C. v. Collins, 196 W. Va. 489, 493, 473 S.E.2d 910, 914

(1996).



              All of petitioner’s arguments and written filings merely insist that the

PHAA cannot ban him from the premises, but fail to identify any legal authority which

prohibits it from doing so and why such prohibition is applicable to and actionable by

him. Importantly, despite multiple opportunities, petitioner has asserted no civil rights

violation, constitutional deprivation, discriminatory act, or identified an unlawful rule or

regulation which prohibits PHAA’s actions and pursuant to which he is entitled to relief.9


       8
        On this point, petitioner’s brief states that “there is an apparent dearth of
precedent directly on point.”
       9
         In support of petitioner’s contention that PHAA cannot ban him from its
premises, he cites three cases which he claims stand for the proposition that “West
Virginia law clearly imposes restraints on the power of a public corporation.” While that
indeed may be the case, the authorities cited by petitioner contain a particularized,
constitutionally-based challenge to the defendant’s actions. See Jones v. W. Va. State Bd.
of Educ., 218 W. Va. 52, 622 S.E.2d 289 (2005) (asserting equal protection violation
arising out of exclusion of home-schooled children from interscholastic athletics); W. Va.
Citizens Action Group v. Daley, 174 W. Va. 299, 324 S.E.2d 713 (1984) (challenging
(continued . . .)
                                            12

In absence of an identification of the legal authority underlying his claim for relief and

thereby the nature of his claim, PHAA cannot defend itself.



              We are careful to note, however, that our conclusion regarding the

sufficiency of petitioner’s complaint must not be interpreted as concluding that the facts

underlying his complaint are in no way actionable or cannot form the basis of a valid

legal claim. Rather, our decision is based upon the well-understood premise that it is not

the role of this Court to ferret through facts and conjure a cause of action which may

provide petitioner with relief. As this Court recently held:

                     The Court takes the pleadings and record as it finds
              them and the adversarial process makes it incumbent on the
              parties to plead the causes of action and present the requisite
              evidence necessary to maintain viability of their case. Courts
              cannot concoct or resurrect arguments neither made nor
              advanced by the parties.

Syl. Pt. 13, W. Va. Reg’l Jail & Corr. Facility Auth. v. A. B., 234 W. Va. 492, 766 S.E.2d

751 (2014) (emphasis added).


ordinance on basis of unconstitutional vagueness and overbreadth); Woodruff v. Bd. Of
Trustees of Cabell Huntington Hosp, 173 W. Va. 604, 319 S.E.2d 372 (1984) (asserting
state and federal constitutional violation of free speech rights).

       Despite multiple opportunities, petitioner has never asserted a constitutional
deprivation occasioned by PHAA’s actions, even assuming such a claim could be made.
See Hannemann v. Southern Door Cty. Sch. Dist., 673 F.3d 746, 757 (7th Cir. 2012)
(“The right to intrastate travel protects the right to move from place to place, not the right
to access certain public places.”); Williams v. Town of Greenburgh, 535 F.3d 71, 76 (2d
Cir. 2008) (“[I]t would distort the right to free travel beyond recognition to construe it as
providing a substantive right to . . . gain admittance to a specific government building.”)
(emphasis added).


                                             13

              Therefore, we find that petitioner has failed to sufficiently identify and

plead the legal basis of his cause of action and has failed to adequately state a claim

sufficient to survive dismissal pursuant to West Virginia Rule of Civil Procedure

12(b)(6).10



                                 IV. CONCLUSION

              Accordingly, the July 28, 2014, order of the Circuit Court of Mineral

County is hereby affirmed.



                                                                               Affirmed.




       10
          Petitioner asserts a second assignment of error arguing that the circuit court
should have treated the motion to dismiss as one for summary judgment given that it
“relied on” Public Law 105-348 and petitioner’s testimony given during the injunctive
hearing. Petitioner argues that under Rule 56, he should have been provided with an
opportunity for further discovery. However, there is no indication whatsoever in the
transcript or order that the circuit court based its ruling in any way on Public Law 105­
348 or petitioner’s testimony elicited in support of his requested injunctive relief.

                                           14

