           IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                    January 2016 Term

                                                                 FILED
                                                              April 7, 2016
                                                                released at 3:00 p.m.
                                       No. 15-0089            RORY L. PERRY, II CLERK

                                                            SUPREME COURT OF APPEALS

                                                                 OF WEST VIRGINIA





                           J.F. ALLEN CORPORATION,

                        A WEST VIRGINIA CORPORATION,

                              Plaintiff Below, Petitioner


                                            v.


  THE SANITARY BOARD OF THE CITY OF CHARLESTON, WEST VIRGINIA,

                    Defendant Below, Respondent




                   Appeal from the Circuit Court of Kanawha County

                          Honorable Tod J. Kaufman, Judge

                             Civil Action No. 14-C-1182


                            REVERSED AND REMANDED



                                 Submitted: March 8, 2016
                                   Filed: April 7, 2016



Charles M. Johnstone, II, Esq.                                David Allen Barnette, Esq.
Johnson W. Gabhart, Esq.                                      Vivian H. Basdekis, Esq.
Johnstone & Gabhart, LLP                                      Jackson Kelly, PLLC
Charleston, West Virginia                                     Charleston, West Virginia
Attorneys for Petitioner                                      Attorneys for Respondent


JUSTICE LOUGHRY delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT




              1.     “‘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, Albright v. White,

202 W.Va. 292, 503 S.E.2d 860 (1998).



              2.     “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, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).” Syl. Pt. 3,

Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).
LOUGHRY, Justice:



                The petitioner, J.F. Allen Corporation (“J.F. Allen”), appeals a January 5, 2015,

order of the Circuit Court of Kanawha County dismissing, with prejudice, its breach of

contract claim against the respondent, the Sanitary Board of the City of Charleston, West

Virginia (“CSB”), pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.

In this appeal, J.F. Allen seeks reversal of the circuit court’s order, contending that it alleged

sufficient facts in its amended complaint, that if considered as true, would entitle it to relief.



                Upon consideration of the briefs and arguments of the parties, the submitted

record, and the pertinent authorities, we find that J.F. Allen has set forth a claim upon which

relief could be granted. Accordingly, for the reasons set forth below, the final order of the

circuit court is reversed, and this case is remanded for further proceedings consistent with

this opinion.



                          I. Factual and Procedural Background

                On December 13, 2011, CSB, a utility owner, and J.F. Allen, a utility

contractor, entered into a written agreement for construction work described as “Kanawha

Two-Mile Creek Sewer Improvements–Sewer Replacements Sugar Creek Drive Sub-Area,

Contract 10-8.” The project involved a series of improvements to the City of Charleston’s


                                                1

municipal sewer system. The contract work was to include eight-inch and ten-inch gravity

sewer replacements, manhole installation, house service connections, and restoration of

paved and non-paved areas. Burgess and Niple, Inc. (“B & N”) provided professional

services to CSB and served as the engineer/architect on the project. The contract price was

$5,160,621.75 but was “subject to additions and deductions by change orders and quantities

actually performed.” The contract required substantial completion of the project by January

2, 2013, and final completion by February 1, 2013.



              Construction under the contract began on January 9, 2012, but was not

completed until August 15, 2013. It is undisputed that six change orders and quantity

adjustments were made during the project that increased the contract price by the amount of

$394,977.00 for a final adjusted contract price of $5,555,598.00. After final payment was

made under the contract, J.F. Allen submitted a written request seeking additional

compensation from CSB for extra, non-contractual work that it maintains was required by

CSB and for increased costs that resulted from numerous delays and disruptions encountered

during the project. CSB refused the request.



              Having been denied additional compensation, J.F. Allen filed a complaint in

the Circuit Court of Kanawha County on June 30, 2014, asserting breach of contract and

unjust enrichment claims against CSB. The complaint alleged, inter alia, that CSB: failed


                                               2

to provide J.F. Allen with accurate and adequate plans, specifications, and documents related

to the work to be performed; dictated and changed the manner and method of performance;

and interrupted and interfered with J.F. Allen’s ability to perform its contractual obligations.

The complaint further asserted that as a direct result of CSB’s material breach of contract,

J.F. Allen suffered substantial financial loss. In response, CSB filed a motion to dismiss

pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.



                    A hearing was held before the circuit court on September 16, 2014. At that

hearing, CSB argued that J.F. Allen’s breach of contract claim was stated too broadly and

that it was required to identify each event that allegedly resulted in additional costs and

delays. CSB further argued the unjust enrichment claim was barred because there was an

express contract. After listening to the parties’ arguments, the circuit court granted CSB’s

motion to dismiss with regard to the unjust enrichment claim but gave J.F. Allen thirty days

to amend its breach of contract claim.1




          1
              According to J.F. Allen, no written order was entered regarding the circuit court’s
ruling.

                                                   3

              J.F. Allen filed its amended complaint asserting a breach of contract claim

against CSB2 on November 13, 2014.3 The amended complaint alleged that the contract

required CSB to provide construction plans that showed the location of other underground

facilities and allowed for adjustment of the contract price to the extent conditions

encountered in performing the work were different from those indicated on the plans. J.F.

Allen further alleged that, during the course of the project, there were 122 incidents where

other utility lines or structures were damaged because they were unmarked or mismarked on

the construction plans. J.F. Allen asserted that these incidents caused it to incur additional

costs for repairs, delay, and lost productivity. J.F. Allen claimed that these incidents were

conscientiously documented by CSB’s onsite representative but CSB refused to provide

additional compensation, thereby breaching the contract.




       2
        The amended complaint did not assert an unjust enrichment claim, and the circuit
court’s dismissal of the unjust enrichment claim in the original complaint was not assigned
as error.
       3
         J.F. Allen asserted a negligence claim in both the original and the amended
complaint against B & N. B & N is not a party in this appeal, and the status of the negligence
claim against B & N is not set forth in the record, although it appears to be still pending
below. In McGraw v. Scott-Runyan Pontiac-Buick, Inc., 194 W.Va. 770 , 775, 461 S.E.2d
516, 521 (1995), we explained that our jurisdiction does not generally encompass appeals
from a denial or granting of a motion to dismiss where there are remaining issues to be
litigated. However, we recognized an exception to this rule where the dismissal has the
effect of “gutting the lawsuit for all practical purposes.” Id. In such cases, the dismissal
“approximates a final order in its nature and effect” and, therefore, is immediately
appealable. Id., 194 W.Va. at 773, 461 S.E.2d at 519, syl. pt. 1. Upon review, we find that
the circuit court’s January 5, 2015, order satisfies the requirements for immediate appellate
consideration.

                                              4

              The amended complaint also alleged CSB breached the agreement by allowing

other contractors to perform work that interfered with J.F. Allen’s work without giving prior

notice as required by the contract and by not providing additional compensation for the

resulting extra costs. J.F. Allen asserted that CSB waived the contract’s provision requiring

written notice of claims for extra compensation in failing to comply with the notice provision

with regard to the work by other contractors.



              Additionally, the amended complaint alleged that CSB ordered J.F. Allen to

delay final paving and to perform additional work, including temporary paving, for which

there was no bid item in the contract. J.F. Allen asserted that it entered into a subsequent oral

agreement with CSB in contravention of the change order provision in the contract that

provided for additional compensation for this extra work. J.F. Allen also contended that

CSB directed it to perform restoration work on homeowners’ properties along the project

right-of-way to repair damages that were unrelated to J.F. Allen’s contract work. Finally, J.F.

Allen alleged that it suffered a substantial financial loss as a direct, proximate and

foreseeable result of CSB’s material breach of contract.



              CSB responded to the amended complaint by filing another motion to dismiss

pursuant to Rule 12(b)(6). A hearing was held on December 2, 2014. Subsequently, the

circuit court entered the final order finding that “the risk of liability with respect to


                                               5

Underground Facilities was contemplated by the parties at the time of contracting and was

allocated to J.F. Allen, not CSB” and “[J.F. Allen] ha[d] not made any claim of timely

‘written notice,’ nor ha[d] it pled any specific facts to show that it followed the protocol for

possible changes to the Contract Documents due to differing or unanticipated conditions

arising from Underground Facilit[ies] not shown or indicated on Contract Documents.”

Accordingly, the circuit court granted CSB’s motion to dismiss the breach of contract claim

with prejudice. The final order was entered on January 5, 2015, and this appeal followed.



                                  II. Standard of Review

              It is well-established that “‘[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, Albright




                                               6

v. White, 202 W.Va. 292, 503 S.E.2d 860 (1998).4 With this standard in mind, we address

the parties’ arguments.



                                       III. Discussion

              Rule 8(f) of the West Virginia Rules of Civil Procedure requires that all

pleadings “be so construed as to do substantial justice.” To that end, “[f]or purposes of the

motion to dismiss, the complaint is construed in the light most favorable to the plaintiff, and

its allegations are to be taken as true.” John W. Lodge Distributing Co., Inc. v. Texaco, Inc.,

161 W.Va. 603, 605, 245 S.E.2d 157, 158 (1978).              In other words, “[a] trial court

considering a motion to dismiss under Rule 12(b)(6) must liberally construe the complaint[.]”

Cantley v. Lincoln Co. Com’n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492 (2007).




       4
         In ruling upon the motion to dismiss, the circuit court examined the contract at issue,
which was attached as an exhibit to CSB’s motion to dismiss. The circuit court made clear,
however, that it was not converting the motion to dismiss to a motion for summary judgment
under Rule 56 of the West Virginia Rules of Civil Procedure. J.F. Allen argues that the
circuit court erred by considering the contract because it was not attached to the complaint
and by only applying select provisions of the contract in reaching its decision. As discussed
more fully herein, we agree that the circuit court’s application of select contractual provisions
was erroneous but note that consideration of the contract itself was proper. See Forshey v.
Jackson, 222 W.Va. 743, 747-48, 671 S.E.2d 748, 752-53 (2008) (explaining that court may
consider documents attached to complaint as exhibit or incorporated by reference in ruling
upon 12(b)(6) motion); see also Franklin D. Cleckley, Robin J. Davis & Louis J. Palmer, Jr.,
Litigation Handbook on West Virginia Rules of Civil Procedure § 12(b)(6)[2] at 384 (4th ed.
2012) (stating court may consider “documents referred to in the complaint but not annexed
to it” in determining whether complaint states claim upon which relief may be granted).

                                               7

               “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.” Cantley, 221 W.Va. at 470, 655

S.E.2d at 492. This Court has held that “[t]he 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, 78 S.Ct. 99, 2 L.Ed.2d 80

(1957).” Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207

(1977). Stated another way, “a trial court should not dismiss a complaint where sufficient

facts have been alleged that, if proven, would entitle the plaintiff to relief.” Cantley, 221

W.Va. at 470, 655 S.E.2d at 492. “The motion to dismiss for failure to state a claim [is]

viewed with disfavor and [should be] rarely granted.” John W. Lodge Distributing, 161

W.Va. at 606, 245 S.E.2d at 159. Therefore, “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.”

Id., 161 W.Va. at 605, 245 S.E.2d at 159.



               The circuit court granted CSB’s motion to dismiss based on its finding that the

contract allocated the risk of liability with respect to underground facilities to J.F. Allen, not

CSB, and J.F. Allen had failed to timely submit and preserve its claims for adjustment of the

price. Upon review, we find the circuit court’s conclusions are erroneous. Moreover, it is




                                                8

clear that J.F. Allen has stated a claim in the amended complaint–if proven–upon which relief

could be granted.



              J.F. Allen alleged in the amended complaint that the contract provided for

adjustment of the price where underground facilities not shown or accurately located on the

construction documents were encountered during the course of the project. Indeed, the

contract provided, in relevant part:

                     If an Underground Facility is uncovered or revealed at or
              contiguous to the Site which was not shown or indicated, or not
              shown or indicated with reasonable accuracy in the Contract
              Documents, Contractor shall, promptly after becoming aware
              thereof and before further disturbing conditions affected
              thereby or performing any Work in connection therewith
              (except in an emergency as required by Paragraph 6.16.A),
              identify the owner of such Underground Facility and give
              written notice to that owner and to Owner and Engineer.)
              Engineer will promptly review the Underground Facility and
              determine the extent, if any, to which a change is required in
              the Contract Documents to reflect and document the
              consequences of the existence of or location of the
              Underground Facility. During such time, Contractor shall be
              responsible for the safety and protection of such Underground
              Facility.

                    If Engineer concludes that a change in the Contract
              Documents is required, a Work Change Directive or a Change
              Order will be issued to reflect and document such
              consequences. An equitable adjustment shall be made in the
              Contract Price or Contract Times, or both, to the extent that
              they are attributable to the existence or location of any
              Underground Facility that was not shown or indicated with
              reasonable accuracy in the Contract Documents and that the
              Contractor did not know of and could not have reasonably


                                             9

              have been expected to be aware of or to have anticipated. If
              Owner and Contractor are unable to agree on entitlement to or
              the amount or extent, if any, of any such adjustment in Contract
              Price or Contract Times, Owner or Contract may make a Claim
              therefore as provided in 10.05. (emphasis added)

Ignoring this contractual provision, the circuit court found that liability for underground

facilities was allocated to J.F. Allen and not CSB, based upon other provisions in the contract

concerning underground facilities shown or accurately located on the construction plans.

Given that the contract expressly provided for a possible equitable adjustment of the contract

price as a result of the existence of an underground facility not shown on the construction

plans, the circuit court’s conclusion that J.F. Allen’s claims were barred by the contract was

clearly erroneous.



              Likewise, the circuit court erroneously concluded J.F. Allen’s claims were

barred because no written request for additional compensation was submitted before final

payment was made under the contract. In concluding the claims were untimely, the circuit

court relied upon a provision in the contract requiring written notice of a claim no later than

thirty days after the start of the event giving rise to the claim. However, the complaint

alleged that CSB had actual notice through its onsite representative who documented each

event as it occurred. The circuit court wholly ignored the fact that such documentation could

constitute a written notice if viewed in the light most favorable to J. F. Allen. Furthermore,

the complaint asserted that CSB waived the written notice requirement by failing itself to


                                              10

comply with the provision. This Court has recognized that contract provisions providing for

timely written notice of changes or claims can be amended, waived or abrogated by the

conduct of the parties. In that regard, we have held:

                     “Ordinarily, where a construction contract contains
              language to the effect that its terms cannot be changed without
              the written consent of the parties thereto, then such written
              consent is required unless this condition is waived by the parties
              by their conduct or through circumstances that justify avoiding
              the requirement.” Syllabus Point 1, Pasquale v. Ohio Power
              Co., 186 W.Va. 501, 413 S.E.2d 156 (1991).

Syl. Pt. 1, Ground Breakers, Inc. v. City of Buckhannon, 188 W.Va. 42, 422 S.E.2d 519

(1992). Assuming the allegations set forth by J.F. Allen in the amended complaint to be true,

as we are required to do, the circuit court’s conclusion that J.F. Allen’s claims were barred

based upon the court’s interpretation of a particular contractual provision was error.



              The circuit court also failed to acknowledge the fact that J.F. Allen’s breach

of contract claim was not based solely upon CSB’s alleged failure to provide additional

compensation for damages incurred as a result of mismarked or unmarked underground

facilities on the construction plans. Additionally, the complaint alleged that the parties

modified other provisions in the contract pertaining to paving and restoration of

homeowners’ properties through a subsequent oral agreement. In particular, the complaint

alleged in paragraphs twenty-two through twenty-four:

              22.   Because of CSB’s decision to delay final paving, the
              Defendants decided to have trenches temporarily paved.

                                             11

             Unfortunately, the Contract documents and bid schedule
             contained no bid item for temporary paving.

             23.    Rather then follow the contractually required change of
             order process to allow J.F. Allen to bill for temporary paving,
             the Defendant instructed J.F. Allen to bill for the temporary
             paving work utilizing another bid item. As instructed, and in
             contravention to the formal requirements of the Contract, J.F.
             Allen billed for the temporary paving using a bid item for
             milling. The process was directed and approved by both
             Defendants.

             24.    Unfortunately, the milling bid item which J.F. Allen was
             required to utilize to bill for the temporary paving was on a
             square yard basis. The agreement reached by and between J.F.
             Allen and the Defendants called for substitution of temporary
             paving at a thickness of three-quarters of an inch in place of the
             milling bid items. However, instead of three-quarters of inch of
             temporary paving, at the express direction and requirement of
             the Defendants, J.F. Allen was ordered to and in fact did pave
             much larger areas than had been agreed and in thicknesses of as
             much as five or six inches. J.F. Allen placed much more
             material over a much larger area than anticipated and, therefore
             a simple substitution of the temporary paving item for the
             milling item did not adequately compensate J.F. Allen for the
             extra work it was ordered to perform.

The complaint also asserted in paragraphs twenty-seven and twenty-eight:

             27.     [O]n this particular project, CSB and B&N allowed, and
             in fact encouraged, homeowners along [the] project right-of-way
             to make claims for restoration costs for damages and that had
             nothing to do with J.F. Allen’s work. Instead of requiring the
             homeowners to provide proof of damages caused by J.F. Allen’s
             work, CSB and B & N directed J.F. Allen to make repairs to a
             substantial number of homeowners’ properties including, but not
             limited to: repair/replacement of driveways; retaining walls;
             guardrails; road shoulders; lawn repair and landscaping
             improvements that were unrelated to J.F. Allen’s work. None
             of this restoration work was required by of [sic] the contract nor

                                            12

              was it contemplated by the parties at the time the contract was
              entered into. The work was performed by J.F. Allen at the
              direction of and for the benefit of both CSB and B & N and is
              therefore compensable under the contract as extra work.

              28.    The Defendants had immediate, actual notice of the
              restoration claims as complaints were made by the homeowners
              directly to the Defendants and the Defendants, in turn, required
              J.F. Allen to perform this extra work although it was not
              required by the contract.

Thus, the complaint alleges that the parties had ongoing conversations about extra work to

be performed by J.F. Allen as directed by CSB with the attendant expectation that J.F. Allen

would receive additional compensation.

              It is a well-established, fundamental principle of contract law
              that a valid, unambiguous written contract may be modified or
              superseded by a subsequent contract based on a valuable
              consideration. Wilkinson v. Searls, 155 W.Va. 475, 184 S.E.2d
              735 (1971); Steinbrecher v. Jones, 151 W.Va. 462, 153 S.E.2d
              295 (1967); syl. pt. 1, Lewis v. Dils Motor Co., 148 W.Va. 515,
              135 S.E.2d 597 (1964); State ex rel. Coral Pools, Inc. v. Knapp,
              147 W.Va. 704, 131 S.E.2d 81 (1963); see 4B M.J., Contracts
              § 54 (1974).

John W. Lodge Distributing, 161 W.Va. at 606, 245 S.E.2d at 159; see also Ground

Breakers, 188 W.Va. at 43, 422 S.E.2d at 520, syl. pt. 1. Consequently, the allegations set

forth in the amended complaint are adequate to support a claim for damages under our law.



              “The standard which plaintiff must meet to overcome a Rule 12(b)(6) motion

is a liberal standard, and few complaints fail to meet it.” John W. Lodge Distributing, 161

W.Va. at 606, 245 S.E.2d at 159. Here, J.F Allen set forth several legal theories in its

                                            13

amended complaint upon which relief could be granted. “[W]hether the plaintiff can prevail

is a matter properly determined on the basis of proof and not merely on the pleadings.” Id.

at 605-06, 235 S.E.2d at 159. In other words, whether J.F. Allen did, in fact, satisfy the

requirements of the contract, and whether CSB did, in fact, breach its obligations under the

contract or whether elements of the contract were waived or amended by the parties, are

questions of fact that should only be resolved after the parties have had an opportunity to

engage in discovery.5



                                      IV. Conclusion

              Accordingly, for the reasons set forth above, the final order of the Circuit Court

of Kanawha County entered on January 5, 2015, is reversed, and this case is remanded for

further proceedings consistent with this opinion.6



                                                                     Reversed and remanded.

       5
         J.F. Allen also argued that the circuit court erred by dismissing the complaint with
prejudice. While this issue is mooted by our decision, we note that “the dismissal of an
action under Rule 12(b)(6) W.Va. RCP for failure to state a claim upon which relief can be
granted shall be a bar to the prosecution of a new action grounded in substantially the same
facts, unless the lower court in the first action specifically dismissed without prejudice[.]”
Syl. Pt. 5, in part, Sprouse v. Clay Communications, Inc., 158 W.Va. 427, 211 S.E.2d 674
(1975).
       6
       As set forth herein, we construed the facts and allegations in the complaint as true in
accord with our precedent for purposes of determining whether dismissal of the complaint
was warranted under Rule 12(b)(6). This opinion should not be interpreted as ruling upon
the merits of any part of the complaint or the issues in the case below.

                                              14
