          IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                January 2019 Term

                             _____________________                        FILED
                                                                       June 4, 2019
                                  No. 18-0086                           released at 3:00 p.m.
                             _____________________                  EDYTHE NASH GAISER, CLERK
                                                                    SUPREME COURT OF APPEALS
                                                                         OF WEST VIRGINIA

                                    JANE DOE,
                             Plaintiff Below, Petitioner

                                         v.

                   LOGAN COUNTY BOARD OF EDUCATION,
                         Defendant Below, Respondent

       ___________________________________________________________

                   Appeal from the Circuit Court of Logan County
                       The Honorable Joshua Butcher, Judge
                             Civil Action No. 16-C-195

                 AFFIRMED, IN PART; REVERSED IN PART;
                   AND REMANDED WITH DIRECTIONS
        _________________________________________________________


                             Submitted: March 12, 2019
                                Filed: June 4, 2019

Steven S. Wolfe, Esq.                            Duane J. Rugger II, Esq.
J. Christopher White, Esq.                       Jacob D. Layne, Esq.
Wolfe, White & Associates                        Pullin, Fowler, Flanagan, Brown
Logan, West Virginia                               & Poe, PLLC
Counsel for Petitioner                           Charleston, West Virginia
                                                 Counsel for Respondent


JUSTICE HUTCHISON delivered the Opinion of the Court.

JUSTICE WORKMAN concurs and reserves the right to file a concurring opinion.
                              SYLLABUS BY THE COURT

              1. “Appellate 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).



              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.’

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).” Syl., John W.

Lodge Distrib. Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 245 S.E.2d 157 (1978).



              3. “On appeal of a dismissal based on granting a motion pursuant to West

Virginia Rules of Civil Procedure 12(b)(6), the allegations of the complaint must be taken

as true.” Syl. Pt. 1, Wiggins v. Eastern Associated Coal Corp., 178 W.Va. 63, 357 S.E.2d

745 (1987).




                                               i
HUTCHISON, Justice:

              The petitioner “Jane Doe,”1 plaintiff below, appeals the Order Granting

Defendants’ Motion to Dismiss entered by the Circuit Court of Logan County on January

3, 2018. In that order, the circuit court dismissed all counts in Jane Doe’s civil action

against the respondent Logan County Board of Education (“Board”), a co-defendant below.

On appeal, Jane Doe argues that the circuit court erroneously dismissed her negligence

claims based upon the court’s conclusion that she had failed to plead sufficient facts in her

Complaint to state a claim for relief. She also contends that the circuit court failed to

address her claim regarding breach of fiduciary duty. The Board argues in support of the

circuit court’s dismissal order.



              After considering the parties’ written and oral arguments, as well as the

record on appeal and the applicable law, we find that the circuit court erroneously

dismissed two counts in Jane Doe’s Complaint that asserted the Board and its employees

were negligent. However, we find no merit to her contention that the circuit court failed to

consider a fiduciary duty claim. Furthermore, Jane Doe has not appealed the other rulings

in the circuit court’s dismissal order. Accordingly, we reverse, in part, and affirm, in part,

the circuit court’s dismissal order, and remand this case to the circuit court for further

proceedings consistent with this opinion.




              Because of the sensitive nature of the petitioner’s allegations, she is referred
              1

to as “Jane Doe” in the pleadings and in this opinion. See e.g., W.Va. R. App. P. 40(e);
State v. Edward Charles L., 183 W.Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1 (1990).
                                              1
                          I. Facts and Procedural Background

              According to the Complaint, Jane Doe was a seventeen-year-old high school

student attending a vocational center operated by the Board during the 2014-2015 school

year. Jane Doe took a carpentry class at the vocational center taught by the Board’s

employee, John Thomas Cain (“Cain”). The Complaint alleges escalating sexual behavior

that this teacher inflicted upon her during the school year, including remarking during class

that her appearance was “sexy,” repeatedly displaying photos of his genitalia to her,

repeatedly requesting nude photos of her, following her into the bathroom in his classroom,

and pulling up her shirt to expose her breasts. Jane Doe asserted that in January or February

2015, Cain forced her to perform oral sex on him. She contended that in March or April

2015, Cain digitally penetrated her vagina while holding his other hand over her mouth,

only stopping when another student walked by. Cain’s acts of misconduct occurred in the

classroom, and Jane Doe asserted that other students questioned her about what had

occurred. Jane Doe further alleged that when she halted Cain’s sexual advancements, he

threatened her with physical violence.2



              Jane Doe’s lawsuit names both Cain and the Board as defendants. The instant

appeal only concerns claims brought against the Board.3 The Complaint’s claims against


              2
               The Complaint also alleges, and the Board confirms, that Cain was
criminally convicted and incarcerated for his sexual misconduct against Jane Doe.
              3
                 The lawsuit’s claims against Cain are not addressed in this opinion. He was
not dismissed from the lawsuit by the circuit court’s January 3, 2018, order, and he is not
a party to this appeal.
                                             2
the Board may be categorized into two groups: claims asserting vicarious liability for

Cain’s sexual misconduct against this student because the Board was Cain’s employer; and

claims alleging the Board is directly liable because it and its other employees (employees

other than Cain) were negligent in hiring, retaining, supervising, monitoring, and/or

training Cain. For this latter category, Jane Doe asserted the following negligence in Count

Three of her Complaint:

                      14. Upon information and belief, the Defendant Board
              was negligent in several aspects, including but not limited to
              the following facts:
                      a. failing to properly interview, evaluate and screen
              Defendant Cain prior to hiring; and
                      b. failing to properly supervise and monitor Defendant
              Cain.

                     15. Defendant Board had an affirmative duty to properly
              investigate the background of its employees prior to providing
              employment. Defendant Board breached said duty by
              negligently hiring Defendant Cain thereby directly introducing
              a sexual predator to countless children and students, including
              but not limited to Jane Doe.

                     16. As a direct and proximate result of the Defendant’s
              aforesaid actions, Jane Doe has suffered and will continue to
              suffer damages in an amount to be proven at trial.

Count Six of the Complaint alleged the following negligence:

                     27. Teachers and administrators employed by
              Defendant Board were negligent in several aspects, including,
              but not limited to the following affirmative acts:
                     a. multiple educators observed Defendant Cain interact
              with Jane Doe in ways that were contrary to acceptable school
              standards, but none even initiated a discussion with an
              administrator, reported suspicious conduct to an administrator,
              or even made an anonymous report that the relationship
              between Jane Doe and Defendant Cain should be investigated.


                                             3
                     b. Defendant Cain received improper, deficient, and
              negligent training about interactions with students,
              contributing to his casual seduction of Jane Doe to whom he
              and the Defendant Board had a responsibility regarding her
              well-being and safety.


              The Board filed a motion to dismiss all of the claims against it pursuant to

Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Rule 12(b)(6) permits motions

to dismiss all or part of a complaint for the “failure to state a claim upon which relief can

be granted.” With respect to the vicarious liability claims where the Board was sued for

Cain’s sexual misconduct, the Board argued that those were intentional criminal acts

outside the scope of Cain’s employment and thus the Board was immune from suit pursuant

to the Governmental Tort Claims and Insurance Reform Act (“Tort Claims Act”). See

W.Va. Code §§ 29-12A-1 to -18. The circuit court agreed and dismissed Jane Doe’s

vicarious liability claims. The circuit court also dismissed a claim for punitive damages.

Jane Doe does not appeal these rulings, and these rulings are not disturbed on appeal.



              As to the claims of negligence against the Board and its other employees, the

Board argued that Jane Doe asserted nothing but conclusory allegations without including

a sufficient factual basis to state a claim for relief. The circuit court agreed and also

dismissed these claims. All claims against the Board were dismissed with prejudice. Jane

Doe now appeals from the circuit court’s January 3, 2018, order dismissing her negligence

claims against the Board.




                                             4
                                 II. Standard of Review

              On appeal, Jane Doe challenges the dismissal of some of the counts in her

civil complaint. Our standard of review is plenary: “Appellate 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). We recently

elaborated on the meaning of this standard of review in Gastar Exploration Inc. v. Rine,

239 W.Va. 792, 806 S.E.2d 448 (2017):

                     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.

Id. at 798, 806 S.E.2d at 454 (internal quotation marks, footnotes, and citations omitted).

With this in mind, we consider the parties’ arguments.



                                      III. Discussion

              In her first assignment of error, Jane Doe asserts that the circuit court

erroneously dismissed her claims against the Board for negligent supervision, which she

indicates includes aspects of negligent hiring, retention, training, monitoring, and

discipline. These negligence claims are encompassed within Counts Three and Six of her

Complaint, quoted supra. Although the circuit court found that these claims were merely

conclusory allegations, Jane Doe contends that her Complaint is sufficient. She argues that

the Complaint sets forth instances where other Board employees knew, or should have

                                             5
known, of Cain’s misconduct against her, but those employees failed to intervene, report

the misconduct, or take any other action. Moreover, she contends that the specifics of what

the Board’s employees knew, and when they knew it, require further investigation through

discovery.



              In response, the Board argues that there are no facts alleged in the Complaint

to indicate how it or its employees were negligent. The Board argues that the only reference

in Jane Doe’s Complaint to the action or inaction of any specific Board employee (other

than Cain) is a factual allegation concerning a janitor, but this allegation fails to assert any

wrongdoing by the janitor or the Board. Specifically, Jane Doe’s Complaint alleges:

                     10. While working on an outdoor project involving
              planting flowers and putting down mulch, Jane Doe went to the
              restroom inside Defendant Cain’s classroom and he [Cain]
              followed her into the restroom and was waiting outside the stall
              when she emerged—stating that he had come to talk. When
              Jane Doe left the restroom, she crossed paths with a janitor who
              did not intervene.

The Board argues that this paragraph fails to allege that the janitor also observed Cain enter

or exit the restroom with Jane Doe. The Board contends that it may have statutory immunity

from the negligence claims, thus, to survive dismissal, Jane Doe’s Complaint must include

specific allegations. Both the Board’s brief and the circuit court’s order rely heavily upon

language in Hutchison v. City of Huntington: “local government units should be entitled to

. . . immunity under W.Va. Code, 29-12A-5(a), unless it is shown by specific allegations

that the immunity does not apply.” Hutchison v. City of Huntington, 198 W.Va. 139, 148,

479 S.E.2d 649, 658 (1996) (citation omitted). They also quote Hutchison for the

                                               6
proposition that “[i]n civil actions where immunities are implicated, the trial court must

insist on heightened pleading by the plaintiff.” Id. at 149, 479 S.E.2d at 659 (citations

omitted).



              This Court has explained that “[t]he 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 v. Lincoln Co. Comm’n, 221 W.Va. 468, 470, 655 S.E.2d 490, 492 (2007).

Pleadings are to be “liberally construed so as to do substantial justice. W.Va. R.C.P. 8(f).

The policy of the rule is thus to decide cases upon their merits[.]” John W. Lodge Distrib.

Co., Inc. v. Texaco, Inc., 161 W.Va. 603, 605, 245 S.E.2d 157, 158-59 (1978) (citation

omitted). Indeed,

                     “[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.” 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).

John W. Lodge Distrib., 161 W.Va. at 603, 245 S.E.2d at 158, syl. Moreover, the issues

currently on appeal are negligence claims, and Rule 9(b) of the West Virginia Rules of

Civil Procedure states that “[n]egligence may . . . be averred generally.” Finally, “[o]n

appeal of a dismissal based on granting a motion pursuant to West Virginia Rules of Civil

Procedure 12(b)(6), the allegations of the complaint must be taken as true.” Syl. Pt. 1,

Wiggins v. Eastern Associated Coal Corp., 178 W.Va. 63, 357 S.E.2d 745 (1987).



                                             7
              In Hutchison, this Court discussed the importance of making specific

allegations when governmental immunity is at issue. Hutchison, 198 W.Va. at 148, 479

S.E.2d at 658. This is because “[i]mmunities under West Virginia law are more than a

defense to a suit in that they grant governmental bodies and public officials the right not to

be the subject to the burden of trial at all.” Id. Thus, the Court called for “heightened

pleading by the plaintiff” in “civil actions where immunities are implicated[.]” Id. at 149,

479 S.E.2d at 659. However, the Court also recognized that the term “heightened pleading”

can be a “misnomer,” and a “plaintiff is not required to anticipate the defense of immunity

in his complaint.” Id. at 150, 479 S.E.2d at 660. Although the Board and the circuit court

rely upon a few phrases from a paragraph in Hutchison, an examination of the entire

paragraph is instructive:

                      We believe that in civil actions where immunities are
              implicated, the trial court must insist on heightened pleading
              by the plaintiff. See Schultea v. Wood, 47 F.3d 1427 (5th
              Cir.1995) (en banc) (a § 1983 action); see generally Parkulo v.
              West Virginia Board of Probation and Parole, supra. To be
              sure, we recognize the label “heightened pleading” for special
              pleading purposes for constitutional or statutory torts involving
              improper motive has always been a misnomer. A plaintiff is
              not required to anticipate the defense of immunity in his
              complaint, Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct.
              1920, 1923–24, 64 L.Ed.2d 572 (1980), and, under the West
              Virginia Rules of Civil Procedure, the plaintiff is required
              to file a reply to a defendant’s answer only if the circuit
              court exercises its authority under Rule 7(a) to order one.
              We believe, in cases of qualified or statutory immunity,
              court ordered replies and motions for a more definite
              statement under Rule 12(e) can speed the judicial process.
              Therefore, the trial court should first demand that a
              plaintiff file “a short and plain statement of his complaint,
              a complaint that rests on more than conclusion alone.”
              Schultea v. Wood, 47 F.3d at 1433. Next, the court may, on

                                              8
              its own discretion, insist that the plaintiff file a reply
              tailored to an answer pleading the defense of statutory or
              qualified immunity. The court’s discretion not to order such a
              reply ought to be narrow; where the defendant demonstrates
              that greater detail might assist an early resolution of the
              dispute, the order to reply should be made. Of course, if the
              individual circumstances of the case indicate that the plaintiff
              has pleaded his or her best case, there is no need to order more
              detailed pleadings. If the information contained in the
              pleadings is sufficient to justify the case proceeding further, the
              early motion to dismiss should be denied.

Hutchison, 198 W.Va. at 149-50, 479 S.E.2d at 659-60 (bold emphasis added). Thus,

instead of mandating dismissal, the Court in Hutchison offered remedies for situations

where a public entity or official asserts immunity in an answer but the plaintiff has failed

to file a “heightened pleading[.]” Pursuant to Rule 12(e) of the Rules of Civil Procedure,

the trial court may require the plaintiff to file a more definite statement. Pursuant to Rule

7(a) of these same Rules, the trial court may require the plaintiff to file a reply to the

defendant’s answer. In addition, we observe that pursuant to Rule 15(a) of the Rules of

Civil Procedure, a trial court may grant the plaintiff leave to amend the complaint. “Leave

to amend should be freely given when justice so requires . . . .” Syl. Pt. 6, in part, Perdue

v. S.J. Groves & Sons Co., 152 W.Va. 222, 161 S.E.2d 250 (1968). Finally, if a plaintiff

believes that discovery is necessary to oppose a motion to dismiss, the plaintiff may request

discovery pursuant to Rule 56(f) of the Rules of Civil Procedure:

                     Where a plaintiff opposes a motion to dismiss under
              Rule 12(b)(6) of the West Virginia Rules of Civil Procedure
              and claims that discovery would enable him or her to oppose
              such a motion, the plaintiff may request a continuance for
              further discovery pursuant to Rule 56(f) of the West Virginia
              Rules of Civil Procedure. In order to obtain such a discovery
              continuance, a plaintiff must, at a minimum, (1) articulate

                                              9
              some plausible basis for the plaintiff’s belief that specified
              “discoverable” material facts likely exist which have not yet
              become accessible to the plaintiff; (2) demonstrate some
              realistic prospect that the material facts can be obtained within
              a reasonable additional time period; (3) demonstrate that the
              material facts will, if obtained, suffice to engender an issue
              both genuine and material; and (4) demonstrate good cause for
              failure to have conducted the discovery earlier.

Syl. Pt. 6, Harrison v. Davis, 197 W.Va. 651, 478 S.E.2d 104 (1996).



              Upon our plenary review of Jane Doe’s Complaint, we determine that the

circuit court’s dismissal, with prejudice, of the negligence claims in Counts Three and Six

was in error. Admittedly, the Complaint is not a model of jurisprudential craftsmanship.

Nonetheless, it contains some factual allegations to support aspects of the alleged

negligence. The Complaint details Cain’s grooming and sexual behavior toward Jane Doe,

and the Complaint expressly asserts that other “educators” observed inappropriate

interactions between teacher and student but failed to act. Jane Doe was a minor and may

not have known the names or the jobs of the people who observed the interactions.

Furthermore, although the Complaint does not specifically state that the janitor witnessed

both Jane Doe and Cain exiting the bathroom, this is the obvious implication from the

assertion that the janitor “did not intervene.” Given the allegations, both factual and legal,

that are included in Jane Doe’s Complaint, we conclude that instead of wholly dismissing

her negligence claims with prejudice, the circuit court should have first allowed one or

more of the options set forth above. Accordingly, we reverse the circuit court’s dismissal

of Counts Three and Six, and remand this case to the circuit court for further proceedings


                                             10
consistent with this opinion. It is within the circuit court’s sound discretion to select which

of the methods listed above would best serve the purpose of allowing Jane Doe to provide

a heightened pleading such that the Board can ascertain whether it has an immunity

defense. Thereafter, the Board may file a motion asserting immunity or any other

arguments it may have.



              In her second assignment of error on appeal, Jane Doe argues that the circuit

court failed to address her claim that a fiduciary relationship existed between her, a minor

student enrolled at the vocational center, and the Board. However, strictly speaking, the

circuit court did address this issue. The court gave Jane Doe the benefit of the doubt and

expressly assumed, for purposes of its analysis, that she and the Board had a fiduciary

relationship. More importantly, Jane Doe fails to explain how the existence of a fiduciary

relationship would help her negligence case. The Board is a political subdivision whose

liability for negligence is governed by the Tort Claims Act, West Virginia Code §§ 29-

12A-1 to -18. To prevail on a claim of negligence, she must satisfy the requirements of this

Act. We find no merit to the petitioner’s second assignment of error.



                                      IV. Conclusion

              For the foregoing reasons, we reverse the circuit court’s dismissal of Counts

Three and Six of Jane Doe’s Complaint. We affirm the remaining rulings in the circuit




                                              11
court’s January 3, 2018, dismissal order. Finally, we remand this case to the circuit court

for further proceedings consistent with this opinion.



                                        Affirmed, in part; reversed, in part; and remanded.




                                            12
