                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS



ANN KENDALL MORRIS,
JOSEPH GREENE,
CAROLYN BESTE, AND
MICHAEL BESTE,                                                    FILED
Plaintiffs Below, Petitioners
                                                             November 14, 2016
                                                                   released at 3:00 p.m.
vs) No. 15-1035 (Kanawha County 14-C-2197)                       RORY L. PERRY, II CLERK
                                                               SUPREME COURT OF APPEALS
                                                                    OF WEST VIRGINIA
THE ESTATE OF ROBERT LEE MORRIS;
EUGENIE MATYAS, INDIVIDUALLY AND IN
HER CAPACITY AS EXECUTRIX OF AND
FOR THE ESTATE OF ROBERT LEE MORRIS;
EDWARD M. MATYAS; AND
JULIE MATYAS,
Defendants Below, Respondents


                             MEMORANDUM DECISION


               The petitioners, Ann Kendall Morris, Joseph Greene, Carolyn Beste, and
Michael Beste, by counsel, Todd W. Reed, appeal a September 22, 2015, order entered by
the Circuit Court of Kanawha County dismissing without prejudice their complaint filed
against the respondents, the Estate of Robert Lee Morris; Eugenie Matyas, individually and
in her capacity as executrix of the Estate of Robert Lee Morris; Edward M. Matyas; and Julie
Matyas. The respondents, by counsel Christopher S. Smith and Nicola D. Smith, filed a
response.

               Upon consideration of the parties’ briefs, oral arguments, the appendix record,
and the pertinent authorities, this 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.




                                              1

              The complaint at issue in this case was filed after the death of Robert Lee
Morris. Mr. Morris and his wife were the parents of three daughters–the petitioners, Ann
Kendall Morris and Carolyn Beste,1 and the respondent, Eugenie Matyas. Mr. Morris’s wife
died on August 10, 2012, and Mr. Morris died on October 27, 2014. Mr. Morris resided in
Kanawha County, West Virginia, until a few months after his wife’s death. On October 5,
2012, Mr. Morris went to live with Ms. Matyas in New Jersey. Ms. Morris and Mrs. Beste
maintain that Mr. Morris suffered from dementia2 and was transported to New Jersey against
his will by Ms. Matyas.

               Prior to his death, Mr. Morris executed a Last Will and Testament and a
General Power of Attorney. The will, which was executed in West Virginia on April 7,
2011, appointed Mr. Morris’s wife as executrix and Ms. Matyas as the alternate. Likewise,
the power of attorney, executed the same day, appointed Mr. Morris’s wife as his attorney-in­
fact and Ms. Matyas as the alternate. According to the petitioners, Mr. Morris had executed
a will in 2008 that divided his estate equally between his three daughters and their respective
husbands. The 2011 will, while similar to the 2008 will, added Mr. Morris’s only two
grandchildren, respondents Edward Matyas and Julie Matyas, the children of Ms. Matyas,
as five percent beneficiaries.

                At the time of his death, Mr. Morris was living in a New Jersey health care
facility. After Mr. Morris died, Ms. Matyas probated his 2011 will in New Jersey. Pursuant
to those proceedings, inheritance taxes in the amount of $121,506.64 were paid to the State
of New Jersey. After Ms. Matyas initiated probate proceedings in New Jersey, the petitioners
filed the present action in the Circuit Court of Kanawha County. Through their complaint,
filed on December 17, 2014, the petitioners sought declaratory relief with respect to the
appropriate location for the probate of Mr. Morris’s estate and the validity of the 2011 will.
The complaint also sought to have Ms. Matyas removed as executrix of Mr. Morris’s estate




       1
        Petitioners Joseph Greene and Micheal Beste are the respective husbands of
petitioners Ann Kendall Morris and Carolyn Beste.
       2
          The record indicates Mr. Morris suffered from dementia during the last few years of
his life. According to a report of a New Jersey guardian ad litem appointed to protect Mr.
Morris’s interests, Ms. Matyas took care of Mr. Morris in her home in New Jersey for
approximately two years. When Mr. Morris’s medical condition deteriorated to the point that
in-home care was no longer a viable option, Ms. Matyas admitted him to a health care
facility.

                                              2

and asserted claims of unjust enrichment, intentional and negligent infliction of emotional
distress, conversion, and fraud.3

               On February 2, 2015, the respondents filed a motion to dismiss, claiming
improper or lack of personal jurisdiction and comity. In particular, the respondents asserted
that Ms. Matyas has been a resident of New Jersey for thirty years and her children, Edward
and Julie Matyas, live in Pennsylvania. Except for a cemetery plot purchased for Ms.
Matyas’ first husband, the respondents stated they do not own real estate in West Virginia.
The respondents also indicated they do not have a business in West Virginia and they have
not contracted to supply goods or services in West Virginia. The respondents further stated
that their only contact with West Virginia consisted of Ms. Matyas’s communications with
her father’s bank and stock broker in her capacity as executrix and consultations with a West
Virginia attorney concerning the sale of Mr. Morris’s home. Contending that they lacked
sufficient minimum contacts with West Virginia, the respondents argued that there were no
grounds for exerting in personam jurisdiction as set forth in West Virginia Code § 56-3-33
(2012), West Virginia’s long-arm statute.

             Alternatively, the respondents argued the complaint should be dismissed or
the proceedings stayed pursuant to West Virginia Code § 56-6-10 (2012), which provides:

                      Whenever it shall be made to appear to any court, or to
               the judge thereof in vacation, that a stay of proceedings in a case
               therein pending should be had until the decision of some other
               action, suit or proceeding in the same or another court, such
               court or judge shall make an order staying proceedings therein,
               upon such terms as may be prescribed in the order. But no
               application for such stay shall be entertained in vacation until
               reasonable notice thereof has been served upon the opposite
               party.


       3
         On December 18, 2014, the petitioners filed and recorded a Notice of Lis Pendens
to alert potential buyers of Mr. Morris’s real estate of their claims. On December 26, 2014,
the petitioners filed a Verified Motion for Injunction and/or Temporary Restraining Order
to Freeze and Prevent Dissipation of Assets. Subsequently, on February 12, 2015, Mr.
Morris’s real property was sold via stipulation of the parties as reflected in the circuit court’s
order entered that same date. The proceeds from the sale of the real property were placed in
the Registry of the Kanawha County Circuit Court, where they remain pending the outcome
of the litigation between the parties.


                                                3

The respondents explained that prior to Mr. Morris’s death, Ms. Matyas filed a petition for
guardianship of Mr. Morris in New Jersey.4 Mrs. Beste and her husband filed a counterclaim
in that action, seeking to have themselves declared co-guardians of Mr. Morris. In addition,
the Bestes made allegations in their New Jersey counterclaim that are virtually identical to
those set forth in the complaint in the case sub judice.5 According to the respondents, at the
time of Mr. Morris’s death, the New Jersey litigation was “well advanced.” Although the
guardianship issue was rendered moot by Mr. Morris’s death, the counterclaim asserted by
the Bestes concerning Ms. Matyas’s alleged mismanagement of Mr. Morris’s estate remains
pending.6 Accordingly, the respondents argued that the proceedings in the circuit court
should at a minimum be stayed until the New Jersey litigation is complete.

               The circuit court held a hearing on August 31, 2015, regarding the respondents’
motion to dismiss. On September 22, 2015, the circuit court entered an order dismissing the
complaint without prejudice pursuant to Rule 12(b)(2) of the West Virginia Rules of Civil
Procedure.7 The circuit court also determined the complaint should be dismissed because the
same issues are being considered by a New Jersey Court. Upon entry of the circuit court
order, this appeal followed.




       4
       The record indicates that Ms. Matyas was prompted to file the guardianship
proceeding in New Jersey because the petitioners filed a petition in West Virginia in
December 2012 to have Mr. Morris declared incompetent. Ultimately, a West Virginia
mental hygiene commissioner found Mr. Morris to be competent, and the petition was
dismissed on February 11, 2013.
       5
        A copy of the counter-claim filed by the Bestes in the New Jersey action was
included in the appendix record submitted to this Court. The Bestes alleged in the New
Jersey action, inter alia, that Ms. Matyas breached her fiduciary duty and engaged in self-
dealing, fraud, and misrepresentation. The Bestes also asserted claims of unjust enrichment
and intentional infliction of emotional distress.
       6
       The State of New Jersey has been made a party to the proceedings currently pending
in New Jersey so that it may protect its interests, i.e., the inheritance tax that was paid.
       7
        Rule 12(b)(2) provides that a litigant may file a motion to dismiss an action for “lack
of jurisdiction over the person.”

                                              4

               Contending that the complaint was dismissed pursuant to Rule 12(b)(6) of the
West Virginia Rules of Civil Procedure,8 the petitioners assert that the circuit court converted
the motion to one for summary judgment without giving them notice. The petitioners further
aver that the circuit court improperly considered matters outside the pleadings and decided
issues of fact to conclude that dismissal of their complaint was warranted. In other words,
the petitioners assert the circuit court made factual determinations rather than evaluating the
sufficiency of their complaint. Maintaining that the circuit court failed to follow the proper
standard of review for either a motion to dismiss pursuant to Rule 12(b)(6) or a motion for
summary judgment, the petitioners claim that every genuine issue of material fact was
disputed and remains in dispute. The petitioners further maintain that they clearly set forth
sufficient factual allegations which made clear the nature of their claims. Therefore, the
petitioners reason that the circuit court erred in dismissing their complaint.

               Conversely, the respondents argue that the circuit court properly dismissed the
complaint pursuant to Rule 12(b)(2) and for reasons of comity. Pointing out that the
dismissal order expressly references Rule 12(b)(2), not Rule 12(b)(6), the respondents
contend that the circuit court did not err by considering matters outside the pleadings to
determine there was no personal jurisdiction over them. Further, the respondents contend
the circuit court correctly determined that the New Jersey action should be resolved before
any further proceedings occur in West Virginia.

               Through its order, the circuit court dismissed the complaint “for lack of
personal jurisdiction pursuant to W. Va. R. Civ. P. 12(b)(2) and because, essentially, the
same issues are being considered by the New Jersey Court.” In syllabus point four of State
ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson, 201 W.Va. 402, 497 S.E.2d 755 (1997),
this Court explained:

                     When a defendant files a motion to dismiss for lack of
              personal jurisdiction under W. Va. R Civ. P. 12(b)(2), the
              circuit court may rule on the motion upon the pleadings,
              affidavits and other documentary evidence or the court may
              permit discovery to aid in its decision. At this stage, the party
              asserting jurisdiction need only make a prima facie showing of
              personal jurisdiction in order to survive the motion to dismiss.
              In determining whether a party has made a prima facie showing
              of personal jurisdiction, the court must view the allegations in


       8
        Rule 12(b)(6) provides that a litigant may file a motion to dismiss an action for
“failure to state a claim upon which relief can be granted.”

                                               5

              the light most favorable to such party, drawing all inferences in
              favor of jurisdiction. If, however, the court conducts a pretrial
              evidentiary hearing on the motion, or if the personal jurisdiction
              issue is litigated at trial, the party asserting jurisdiction must
              prove jurisdiction by a preponderance of the evidence.9

(Footnote added). In addition, this Court has held that “[a] motion under Rule 12(b)(2) of
the West Virginia Rules of Civil Procedure cannot be converted to a Rule 56 motion for
summary judgment, even though a trial court considers matters outside the pleadings in
deciding the Rule 12(b)(2) motion.” Syl. Pt. 4, Easterling v. American Optical Corp., 207
W.Va. 123, 529 S.E.2d 588 (2000); see also Syl. Pt. 1, in part, Poling v. Belington Bank, Inc.,
207 W.Va. 145, 529 S.E.2d 856 (1999) (explaining “[i]f a summary judgment is entered
under Rule 56 R.C.P. it is a dismissal with prejudice; whereas, a judgment sustaining a
motion to dismiss under Rule 12(b) R.C.P. is not a dismissal with prejudice”), abrogated on
other grounds by Forshey v. Jackson, 222 W.Va. 743, 671 S.E.2d 748 (2008). Here, the
circuit court clearly dismissed the complaint without prejudice pursuant to Rule 12(b)(2).
Therefore, there is no merit to the petitioners’ contention that the circuit court erroneously
granted summary judgment.

               In reviewing a circuit court’s ruling on a motion to dismiss for lack of personal
jurisdiction, “the standard by which the ruling of the Circuit Court is to be reviewed is
whether [petitioners] made a prima facie showing of personal or in personam jurisdiction
over [respondents] sufficient to withstand the motion to dismiss.” Griffith & Coe
Advertising, Inc. v. Farmers & Merchants Bank and Trust, 215 W.Va. 428, 430, 599 S.E.2d
851, 853 (2004). It is axiomatic that “jurisdiction cannot be asserted over a defendant with
which a state has no contacts, no ties and no relations.” State ex rel. CSR Ltd. v. MacQueen,
190 W.Va. 695, 698, 441 S.E.2d 658, 661 (1994). The determination of whether a circuit
court has personal jurisdiction over a nonresident defendant or foreign corporation involves
a two-step analysis as set forth in syllabus point five of Abbott v. Owens-Corning Fiberglas
Corp., 191 W.Va. 198, 444 S.E.2d 285 (1994), superceded by statute on other grounds as
stated in State ex rel. Ford Motor Co. v. Nibert, 235 W.Va. 235, 773 S.E.2d 1 (2015):

                    A court must use a two-step approach when analyzing
              whether personal jurisdiction exists over a foreign corporation


       9
        The circuit court heard oral arguments on the motion to dismiss but did not conduct
an evidentiary hearing. The record indicates the circuit court also considered the pleadings,
affidavits, and other documents submitted with the motion to dismiss and the response
thereto before rendering its decision.

                                               6

             or other nonresident. The first step involves determining
             whether the defendant’s actions satisfy our personal jurisdiction
             statutes set forth in W.Va.Code, 31-1-15 [1984]10 and
             W.Va.Code, 56-3-33 [1984]. The second step involves
             determining whether the defendant’s contacts with the forum
             state satisfy federal due process.

191 W.Va. at 200, 444 S.E.2d at 287 (footnote added). This Court further explained in
Abbott:

                     The primary long-arm statute is W.Va.Code, 56-3-33(a)
             [1984] which confers in personam jurisdiction on a nonresident
             if the nonresident engages in one of the acts specified below:
                     (1) Transacting any business in this State;
                     (2) Contracting to supply services or things in this State;
                     (3) Causing tortious injury by an act or omission in this
             State;
                     (4) Causing tortious injury in this State by an act or
             omission outside this State if he regularly does or solicits
             business, or engages in any other persistent course of conduct,
             or derives substantial revenue from goods used or consumed or
             services rendered in this State;
                     (5) Causing injury in this State to any person by breach
             of warranty expressly or impliedly made in the sale of goods
             outside this State when he might reasonably have expected such
             person to use, consume or be affected by the goods in this State:
             Provided, That he also regularly does or solicits business, or
             engages in any other persistent course of conduct, or derives
             substantial revenue from goods used or consumed or services
             rendered in this State;
             (6) Having an interest in, using or possessing real property in
             this State; or
                     (7) Contracting to insure any person, property or risk
             located within this State at the time of contracting.



      10
        West Virginia Code § 31-1-15 was repealed in 2002. Jurisdiction over foreign
corporations is now addressed by West Virginia Code § 31D-15-1501 (2015). Because no
corporation is involved in this case, the statute is not applicable.

                                             7

Abbott, 191 W.Va. at 207, 444 S.E.2d at 294.

                Applying West Virginia Code § 56-3-33 to the case at bar, the circuit court first
noted that none of the respondents are residents of West Virginia, and they do not own real
estate in West Virginia, except for Ms. Matyas who has an interest in a burial plot that does
not relate to any of the petitioners’ claims. With respect to the petitioners’ argument that the
respondents have an interest in real estate because they are beneficiaries of Mr. Morris’s
estate, which included his house in West Virginia, the circuit court observed that Mr.
Morris’s residence was not devised under the will but rather was sold pursuant to a power
granted to the executrix under the will. As such, the circuit court concluded that respondents
do not have an interest in real estate in West Virginia. The petitioners argued that Ms.
Matyas’s maintenance of Mr. Morris’s personal investment and bank account in Charleston,
West Virginia, constituted doing in business in West Virginia. The circuit court concluded,
however, that Ms. Matyas’s communications with a West Virginia representative of Wells
Fargo, a multi-national banking institution, did not constitute transacting business in West
Virginia and did not establish minimum contacts sufficient to establish in personam
jurisdiction in West Virginia. The circuit court also found petitioners’ assertions that Ms.
Matyas had wrongfully taken Mr. Morris to New Jersey and, therefore, committed a tort in
West Virginia, to be without merit, noting that Ms. Matyas had been appointed as Mr.
Morris’s temporary guardian by a New Jersey court. Finally, the circuit court observed that
while Mr. Morris’s grandchildren, Edward and Julia Matyas, had been named defendants,
the complaint did not actually assert any claims against them, nor did it set forth any grounds
for jurisdiction over them. For these reasons, the circuit court concluded that petitioners
failed to make a prima facie showing of personal jurisdiction sufficient to withstand the
motion to dismiss.11

               We have indicated that “[t]he critical element for determining minimum
contacts is not the volume of activity but rather ‘the quality and nature of the activity in
relation to the fair and orderly administration of the laws.’” Norfolk S. Ry. Co. v. Maynard,
190 W.Va. 113, 116, 437 S.E.2d 277, 280 (1993) (quoting International Shoe Co. v.
Washington, 326 U.S. 310, 319 (1945)). Further, “[t]o what extent a nonresident defendant
has minimum contacts with the forum state depends upon the facts of the individual case.
One essential inquiry is whether the defendant has purposefully acted to obtain benefits or


       11
         Because the petitioners failed to satisfy the first step of the Abbott analysis, it was
not necessary for the circuit court to proceed to second step. See Lane v. Boston Scientific
Corp., 198 W.Va. 447, 453, 481 S.E.2d 753 (1996) (considering whether defendant’s
contacts with state satisfy federal due process unnecessary when plaintiff fails to meet first
step in analyzing jurisdictional questions).

                                               8

privileges in the forum state.” Syl. Pt. 3, Pries v. Watt, 186 W.Va. 49, 410 S.E.2d 285
(1991). Upon review, we find no error in the circuit court’s conclusion that the petitioners
failed to meet their burden of establishing that the nonresident respondents possessed
sufficient “minimum contacts” with West Virginia to enable the court to exercise personal
jurisdiction over them.

                 The circuit court also dismissed the complaint because the same claims are
currently being litigated in New Jersey. This Court has previously determined that when
there is litigation on the same subject between the same parties pending in another state, our
courts should not consider the matter until the proceedings in the other state are resolved.
For example, in Berger v. Berger, 177 W.Va. 58, 350 S.E.2d 685 (1986), the husband
initiated divorce proceedings in the Circuit Court of Kanawha County after his wife filed for
divorce in another state. Upon review, this Court found the circuit court had “erred by
hearing this divorce because there was then pending a proceeding on exactly the same subject
between the same parties in North Carolina.” Id. at 60, 350 S.E.2d at 687. Similarly, the
petitioners in the case at bar made the same claims regarding Ms. Matyas’s alleged breach
of her fiduciary duty in their counterclaim filed in the New Jersey action. Moreover, Mr.
Morris’s will has already been probated in New Jersey and one of the claims pending in the
current New Jersey litigation is whether the will should have been probated in West Virginia.
As such, a redundant proceeding in West Virginia would not be judicially economical and
could produce contradictory results. As this Court long ago explained,

                      Whether denominated reciprocity, comity, or necessity,
              the principle is imperative, because [it is] essential to the orderly
              administration of justice. It avoids the conflict, confusion, and
              imposition that inevitably may follow or result from the
              encroachment by one court upon the jurisdiction of co-ordinate
              tribunals assuming to act in the same matter, whether they be
              within the same or different state governments. Necessarily any
              other course may, and often would, produce unjust, if not
              disastrous, results, rather than promote that justice which courts
              are ordained to administer.

Whan v. Hope Natural Gas Co., 81 W.Va. 338, 342, 94 S.E. 365, 367 (1917).12


       12
         The petitioners also asserted during oral argument that this Court’s recent decision
in Mason v. Torrellas,        W.Va. ,        S.E.2d     (No. 15-0726 Oct. 6, 2016), required
reversal of the circuit court’s order. We disagree given the factual and procedural differences
between the two cases. Subject matter jurisdiction, rather than personal jurisdiction, was

                                               9

            Accordingly, for the reasons set forth above, we affirm the circuit court’s
September 22, 2015, order.

                                                                             Affirmed.

ISSUED:      November 14, 2016

CONCURRED IN BY:

Chief Justice Menis E. Ketchum
Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Allen H. Loughry II




challenged in Mason. Moreover, the petitioner in Mason was not given notice of the New
York probate proceedings, which were completed by the time the West Virginia complaint
was filed.

                                          10
