Tami K., individually and as Guardian and Next Friend of minor children J.S., M.S., and Z.S., and Chris W., individually and as Guardian and Next Friend of minor child G.W. v. Konrad Construction, LLC, Kidd Excavating, LLC, William R. Railing, and Logan Stewart

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

TAMI K., individually and as Guardian and FILED
Next Friend of minor children J.S., M.S., September 30, 2025
and Z.S., and CHRIS W., individually and as ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Guardian and Next Friend of minor child G.W., INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
Plaintiffs Below, Petitioners

v.) Nos. 25-ICA-43 and 25-ICA-86 (Cir. Ct. Ohio Cnty. Case No. CC-35-2024-C-212)

KONRAD CONSTRUCTION, LLC, KIDD
EXCAVATING, LLC, WILLIAM R. RAILING,
and LOGAN STEWART,
Defendants Below, Respondents

MEMORANDUM DECISION

In this consolidated appeal from the Circuit Court of Ohio County, Petitioners Tami
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K. , individually and as Guardian and Next Friend of minor children J.S., M.S., and Z.S.,
and Chris W., individually and as Guardian and Next Friend of minor child G.W., appeal
two orders. First, petitioners appeal the circuit court’s December 30, 2024, order granting
Respondents Kidd Excavating, LLC’s (“Kidd”) and Logan Stewart’s motion to dismiss for
failure to state a claim. Secondly, petitioners appeal the circuit court’s February 5, 2025,
order denying petitioners’ motion to reconsider the dismissal order and motion to amend
complaint. Kidd and Mr. Stewart filed joint responses.2 The petitioners filed joint replies.
Respondents Konrad Construction, LLC (“Konrad”) and William R. Railing did not
participate in this appeal.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the circuit court’s decision but no
substantial question of law. This case satisfies the “limited circumstances” requirement of

1
Consistent with our usual practice in cases involving minors, we use initials where
necessary to protect the identities of those involved in this case. See In re K.H., 235 W.
Va. 254, 773 S.E.2d 20 (2015); Melinda H. v. William R., II, 230 W. Va. 731, 742 S.E.2d
419 (2013); State v. Brandon B., 218 W. Va. 324, 624 S.E.2d 761 (2005); State v. Edward
Charles L., 183 W. Va. 641, 398 S.E.2d 123 (1990).
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Petitioners are represented by Frank X. Duff, Esq., and R. Jared Lowe, Esq. Kidd
and Mr. Stewart are represented by George N. Stewart, Esq., and Matthew Breneman, Esq.
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Rule 21(d) of the Rules of Appellate Procedure for reversal in a memorandum decision.
For the reasons set forth below, the circuit court’s decision is reversed, in part.

In January 2022, Tami K. and Konrad entered into a construction contract to replace
the foundation and retaining wall and to construct an addition at Tami K.’s home located
in Valley Grove, West Virginia, at a price of $192,250.00. Konrad retained Kidd as a
subcontractor to perform the required excavating work on the project. The excavating work
included removing a retaining wall in the rear of the home and excavating part of the
existing slope into the hillside. The project was completed in November 2022. Thereafter,
in January 2024, a significant slip of the hillside occurred in the rear of the home where the
excavating work was done. The slip worsened after heavy rains in April 2024, and the
petitioners were forced to flee their home due to safety concerns.

On October 22, 2024, petitioners filed their complaint against Konrad, Mr. Railing,
Kidd and Mr. Stewart, alleging counts against all defendants for breach of contract and for
negligent/reckless misconduct. Kidd and Mr. Stewart filed a motion to dismiss on
November 27, 2024, arguing that there was no contract between the petitioners and Kidd;
that petitioners’ negligence claims against Kidd and Mr. Stewart were barred by the gist of
the action doctrine; and that Mr. Stewart had no individual liability as a member of Kidd.
Petitioners argued in their response to the motion to dismiss that the gist of the action
doctrine did not bar the tort claims, that breach of contract was sufficiently pled, and that
Mr. Stewart's individual liability was a question of fact. Petitioners also requested the
opportunity to amend the complaint in the event the circuit court deemed the complaint
insufficient.

On December 30, 2024, the circuit court entered its order granting the motion to
dismiss, finding there was no contract between the parties, that Mr. Stewart was not
amenable to suit as a member of Kidd, and that petitioners’ negligence claims were
insufficiently pled because the complaint did not specifically state that Kidd and Mr.
Stewart owed petitioners a duty of care.

Thereafter, petitioners filed a combined motion to reconsider the circuit court’s
dismissal order and motion to amend the complaint. In its February 5, 2025, order, the
circuit court, construing the motion to reconsider as a motion for relief from judgment
under Rule 60(b) of the West Virginia Rules of Civil Procedure, denied the motion.3 The

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The circuit court recognized what the Supreme Court of Appeals of West Virginia
has repeatedly instructed litigants: “A ‘motion to reconsider’ is not recognized under our
Rules of Civil Procedure.” Syl. Pt. 3, in part, Malone v. Potomac Highlands Airport Auth.,
237 W. Va. 235, 786 S.E.2d 594 (2015). Accordingly, because this motion was not filed
within ten days of the dismissal order, the circuit court properly construed it as a Rule 60(b)
motion. See Syl. Pt. 2, Powderidge Unit Owners Ass’n v. Highland Properties, Ltd., 196
W. Va. 692, 474 S.E.2d 872 (1996).
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circuit court concluded: (1) that petitioners failed to establish any mistakes attributable to
special circumstances which would grant them a right to reconsideration of the prior order
and their motion sought merely to relitigate legal issues heard at the underlying proceeding;
(2) that petitioners’ proposed amendments were futile because their claims against Kidd
and Mr. Stewart were already dismissed; and (3) that the proposed amendments did not
contain any newly discovered evidence which was not previously known to the petitioners
and the alleged delay in filing the motion was unreasonable.

Petitioners filed two separate notices of appeal, one for each of the circuit court’s
orders. The petitioners’ appeal of the December 30, 2024, order was assigned case number
25-ICA-43 and the February 5, 2025, order was assigned case number 25-ICA-86. On its
own motion this Court consolidated these appeals for purposes of decision.

Our standard of review for the December 30, 2024, order 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) (“Appellate review of a circuit court's order granting a motion to dismiss a
complaint is de novo.”). “For purposes of the motion to dismiss, the complaint is construed
in the light most favorable to plaintiff. The trial court’s inquiry will be directed to whether
the allegations constitute a statement of a claim under Rule 8(a).” Chapman v. Kane
Transfer Co., Inc., 160 W. Va. 530, 538, 236 S.E.2d 207, 212 (1977). Rule 8(a) of the West
Virginia Rules of Civil Procedure provides: “(a) A pleading which sets forth a claim for
relief . . . shall contain (1) a short and plain statement of the claim showing that the pleader
is entitled to relief . . . .” W. Va. R. Civ. P. 8 (1998).4

All that the pleader is required to do is to set forth sufficient information to
outline the elements of his claim or to permit inferences to be drawn that
these elements exist. The trial court should not dismiss a complaint merely
because it doubts that the plaintiff will prevail in the action, and whether the
plaintiff can prevail is a matter properly determined on the basis of proof and
not merely on the pleadings.

John W. Lodge Distributing Co., Inc. v. Texaco, Inc., 161 W. Va. 603, 605-06, 245 S.E.2d
157, 159 (1978). Further, the Supreme Court of Appeals of West Virginia (“SCAWV”)
has explained on numerous occasions that motions to dismiss under Rule 12(b)(6) are
looked upon with disfavor and should rarely be granted. Forshey v. Jackson, 222 W. Va.
743, 749, 671 S.E.2d 748, 754 (2008); Ewing v. Bd. of Educ. of Cnty. of Summers, 202 W.
Va. 228, 235, 503 S.E.2d 541, 548 (1998); John W. Lodge, 161 W. Va. at 605-06, 245
S.E.2d at 159. With these standards in mind, we turn to the assignments of error.

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The circuit court’s proceedings were governed by the version of Rule 8 adopted
by the Supreme Court of Appeals of West Virginia in 1998. While Rule 8 was amended by
the Court, effective January 1, 2025, no changes were made that affect this appeal.
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Petitioners assert that it was error for the circuit court to dismiss petitioners’
negligence claim, as the duty element of negligence was sufficiently pled. The petitioners
further assert that even if the same were determined to be insufficiently pled, the circuit
court erred by not affording petitioners an opportunity to amend the complaint.

The petitioners’ complaint alleges the following:

5. The Defendant, Konrad Construction, LLC retained Kidd Excavating,
LLC as a subcontractor to do the excavating work on the subject project.

6. Said excavating work included removing the historically existing three
feet exposed height retaining wall in the rear of the home and excavating the
toe of the existing slope into the hillside approximately 10 feet further north
(uphill) of the historical wall location.
...

13. The slip was caused in whole or in significant part by the Defendants’
removal of the toe of the slope in the rear of the Plaintiffs’ home.

14. The slip was caused in whole or in significant part by the Defendants’
removal of the existing retaining wall and changing the slope grade.

15. The slip was caused in whole or in significant part by the Defendants’
excavating work which changed the historic drainage patterns in the rear of
the Plaintiffs’ home.

16. The Defendants failed to consider the stability of the hillside behind the
Plaintiffs’ home prior to conducting their excavating work.

17. The Defendants failed to put in place any preventative measures to
prevent a slip of the hillside behind the Plaintiffs’ home.

18. As a direct and proximate cause of the Defendants’ acts and omissions as
discussed herein, the Plaintiffs’ home is no longer safe to live in.
...

24. The work performed by the Defendants was performed in negligent
and/or reckless, intentional, willful and wanton, unprofessional, non-
workmanlike and unsafe manner.

25. As a direct and proximate result of the Defendants[’] acts and omissions,
the Plaintiffs were forced to move out of their home and have sustained
ongoing damages which include but are not limited to, aggravation,

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inconvenience, mental distress, moving costs, rental costs and loss of the use
of their home. In addition, Plaintiffs will incur costs in the future which will
include the demolition of their family home or repair of the subject slip, or
the sale of their home at a significantly reduced value.

After reviewing the allegations in the complaint, we conclude the petitioners have
set forth sufficient information to outline the elements of their negligence claim against
Kidd. The elements of negligence in West Virginia are duty, breach, causation, and
damages. See Orso v. City of Logan, 249 W. Va. 602, 607, 900 S.E.2d 28, 33 (2024) (“A
plaintiff [pursuing] a negligence claim must satisfy four elements: duty, breach, causation,
and damages.”). Petitioners allege that Konrad hired Kidd to perform excavation work at
petitioners’ home, that Kidd’s excavation work was faulty, and that the damage to the
petitioners’ home was caused by Kidd’s faulty excavation work. The complaint further
articulates the nature of the damages and demands judgment for those damages. Therefore,
we find that the allegations of the complaint satisfy the pleading requirements of Rule 8 of
the West Virginia Rules of Civil Procedure.

In dismissing the negligence claim against Kidd, the circuit court focused on the
duty aspect of the petitioners’ pleading and determined:

In examining the Plaintiffs' Complaint as a whole, this Court FINDS that they
have sufficiently alleged facts which might support a breach of some duty
owed by the moving Defendants in failing to conduct work in a professional
and workmanlike manner (see Complaint, ¶ 24), as well as proximate cause
and damages (see Complaint, ¶ 25). However, neither Plaintiffs' Complaint
nor their Response address to whom that duty was owed. Was it owed to the
general contractor (i.e., Defendant Konrad) with whom the moving
Defendant Kidd had a contract, or to the Plaintiffs as homeowners with
whom they had no such contract? Plaintiffs have cited no statute or common
law in either their Complaint or their Response upon which to base a legal
duty owed to them by the moving Defendants.

The circuit court acknowledges that petitioners have sufficiently alleged facts that
might support a breach of a duty owed by Kidd. However, the circuit court found that
because the complaint did not specifically state to whom such a duty was owed (Konrad or
petitioners), it was subject to dismissal at the pleading stage. We disagree. From the
allegations in the complaint, we can reasonably infer that petitioners are claiming that duty
to perform the excavation work in a workmanlike manner was owed by Kidd to petitioners.

We note that this case was decided on a 12(b)(6) motion to dismiss prior to
discovery. There is no guarantee that the petitioners will prevail on a motion for summary
judgment or at trial, but it was premature to dismiss at this stage of litigation. As the
SCAWV has explained, “[a] party is not required to establish a prima facie case at the

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pleading stage.” Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., 244
W. Va. 508, 522, 854 S.E.2d 870, 884 (2020) (citing Swierkiewicz v. Sorema N. A., 534
U.S. 506, 512, (2002) (“[g]iven that the prima facie case operates as a flexible evidentiary
standard, it should not be transposed into a rigid pleading standard[.]”)). Moreover,
“[w]hen a Rule 12(b)(6) motion is made, the pleading party has no burden of proof. Rather,
the burden is upon the moving party to prove that no legally cognizable claim for relief
exists.” Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., id. at 520,
854 S.E.2d at 882. In this case, we find that Kidd failed to meet that burden.

In the December 30, 2024, order, the circuit court further determined that there was
no contract between Kidd and petitioners and dismissed the breach of contract action
against Kidd and Mr. Stewart. Additionally, the circuit court dismissed Mr. Stewart,
finding that the only alleged basis for his individual liability is that he “owns” Kidd and
concluded that this allegation is insufficient to “pierce the corporate veil” of a limited
liability company pursuant to West Virginia Code § 31B-3-303 (2022). The petitioners do
not assign error to these findings and conclusions. Thus, we take no action with regard to
these dismissals.

In the appeal of the February 5, 2025, order, petitioners assert that the circuit court
erred by denying their motion for relief from the dismissal order, pursuant to Rule 60(b) of
the West Virginia Rules of Civil Procedure. In that motion, petitioners further requested
that the circuit court grant them leave to file an amended complaint to include additional
allegations in light of the circuit court’s ruling. The circuit court denied the motion in its
entirety, determining that the requirements of Rule 60(b) were not met and that the request
to amend the complaint was delayed and amendment would have been futile. Because we
are reversing the December 30, 2024, order, we decline to address the merits of the
petitioners’ assertions regarding the order denying their Rule 60(b) motion, and we reverse
the February 5, 2025, order.

For the foregoing reasons, we reverse the circuit court's December 30, 2024, order
to the extent that petitioners’ negligence claim against Kidd was dismissed and we reverse
the circuit court’s February 5, 2025, order. We do not disturb the December 30, 2024, order
to the extent that petitioners’ breach of contract claims were dismissed and to the extent
that Mr. Stewart, in his individual capacity, was dismissed from the civil action as those
issues were not appealed to this Court.

Reversed, in part.

ISSUED: September 30, 2025

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CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White

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