Mary C. Sutphin v. Ronald J. Hopkins, II, Rachel L. Abrams Hopkins, Sarah A. Abrams, and Langhorne Abrams

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
MARY C. SUTPHIN
March 25, 2024
C. CASEY FORBES, CLERK
Plaintiff Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 22-ICA-201 (Cir. Ct. Raleigh Cnty. Case No. CC-41-2017-C-591)

RONALD J. HOPKINS, II,
RACHEL L. ABRAMS HOPKINS,
SARAH A. ABRAMS, AND
LANGHORNE ABRAMS,
Defendants Below, Respondents

MEMORANDUM DECISION

Petitioner Mary C. Sutphin appeals the Circuit Court of Raleigh County’s
September 28, 2022, “Order on Motions to Dismiss by Lewis Chevrolet Company,
Langhorne Abrams, and Ronald J. Hopkins, II, and Rachel L. Abrams Hopkins and Sarah
A. Abrams’ Motion to Partially Dismiss Plaintiff’s Second Amended Complaint AND
Motion for Protective Order to Stay Discovery Pending Resolution of Motions to Dismiss
by Defendants Lewis Chevrolet Company, Langhorne Abrams, and Ronald J. Hopkins, II.”
Respondents Ronald J. Hopkins, II (“Ronald”), Rachel L. Abrams Hopkins (“Rachel”),
Sarah A. Abrams (“Sarah”), and Langhorne Abrams (“Langhorne”) timely filed a response
in support of the circuit court’s order.1 Ms. Sutphin filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law, but we find there is some
error in the circuit court’s order. Accordingly, a memorandum decision is appropriate under
the “limited circumstances” requirement of Rule 21(d) of the Rules of Appellate Procedure.
For the reasons below, the circuit court’s order is affirmed, in part, reversed, in part and
the matter is remanded to the circuit court.

At the time of her death on November 23, 2009, Ms. Sutphin’s mother, Nancy Pat
Lewis Smith, owned 242 of 394 shares of stock in the Lewis Chevrolet Company (“Lewis
Chevrolet”) with operations in Beckley, West Virginia. Ms. Sutphin is a beneficiary of the

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Ms. Sutphin is represented by Joseph L. Caltrider, Esq., and Liana L. Stinson, Esq.
The Respondents are represented by Russell D. Jessee, Esq., Marcus D. Black, Esq., and
Brittany L. Smith, Esq.

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Estate of Nancy Pat Lewis Smith (“Estate”) and the Nancy Pat H. Lewis Heirs Trust
(“Trust”). Both the Estate and the Trust were created under the Last Will and Testament of
Nancy Pat H. Lewis-Smith (“Will”). A. David Abrams, Jr., (“Mr. Abrams”) drafted the
Will.2 Mr. Abrams is married to Ms. Sutphin’s sister, Respondent Langhorne. Mr. Abrams
and Langhorne have two daughters, Respondents Rachel and Sarah. Mr. Abrams is a
member of the Board of Directors, serves as Executive Vice President, Assistant Secretary,
and in-house counsel for Lewis Chevrolet. He also owns two shares of stock in the
company. Rachel is a member of the Board of Directors, serves as President, and is
employed full-time as the “Principal” of Lewis Chevrolet. She also owns sixty shares of
stock in the company. Rachel’s husband, Respondent Ronald, is employed full-time as the
“General Manager” of Lewis Chevrolet. Sarah is a member of the Board of Directors,
serves as Secretary and Treasurer, and is employed full-time as the “Public Relations
Manager” of Lewis Chevrolet. Mr. Abrams, Rachel, and Sarah constitute the entire Board
of Directors and all of the corporate officers of Lewis Chevrolet.

On February 3, 2022, Ms. Sutphin filed her sixty-page Second Amended Complaint
(“Complaint”) against Lewis Chevrolet, Mr. Abrams, Rachel, Sarah, Ronald, and
Langhorne.3 The Complaint alleges that Ms. Sutphin owns 20.47% of the stock in Lewis
Chevrolet. As stated by Ms. Sutphin in her Complaint,

For over a decade, however, Ms. Sutphin has not received any benefit
whatsoever from her ownership [of Lewis Chevrolet]. In violation of
numerous fiduciary duties, Defendant A. David Abrams, Jr., Esq. - acting as
Executor of the Estate, as Trustee of the Trust, as a Director and Officer of
the Dealership, and as an Attorney for [Lewis Chevrolet] - has knowingly
conspired with the other Defendants to divert all benefits of owning [Lewis
Chevrolet] to his own family members and intentionally concealed the
evidence of this malfeasance from Ms. Sutphin.4

2
The Will, executed October 26, 1990, named Mr. Abrams as the Executor of the
Estate and as Trustee of the Trust. The Will devised all of Nancy Pat Lewis-Smith’s stock
in Lewis Chevrolet to the Trust. The Will limited the Trust to a ten-year period and required
Mr. Abrams to distribute the Trust’s assets to the beneficiaries on the date of termination,
which was November 23, 2019. The beneficiaries were Nancy Pat Lewis-Smith’s three
children: Ms. Sutphin, Langhorne, and Nancy Lewis Haley.
3
The Complaint also named the Estate, the Trust, and the surviving children of
Nancy Lewis Haley as notice defendants.
4
The claims asserted by Ms. Sutphin against Mr. Abrams were addressed by this
Court in a separate appeal in Sutphin v. Abrams, No. 22-ICA-126, 2023 WL 4030072, at
*1 (W. Va. Ct. App. June 15, 2023).

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Ms. Sutphin’s complaint consists of thirty pages of factual background that is
incorporated by reference to each of her sixteen substantive counts. Relevant to the
Respondents herein, the Complaint asserts claims against Rachel and Sarah for violations
of the West Virginia Business Corporation Act, breach of fiduciary duties as directors and
officers of Lewis Chevrolet, conversion, negligence, and fraud/constructive fraud. The
complaint asserts claims against Rachel, Sarah, Langhorne, and Ronald for tortious
interference with inheritance, civil conspiracy, unjust enrichment, constructive trust,
punitive damages, and attorney’s fees and costs.

Factually, the Complaint alleges that Langhorne “agreed to assist Rachel in the
purchase” of certain property “by taking unsecured note for her 1/3 share of proceeds” and
otherwise conspired with the other Respondents to retain all benefit from Lewis Chevrolet.5
Regarding Ronald, the Complaint alleges that he remained employed at Lewis Chevrolet
despite the company’s negative or declining income, received benefits from his
employment such as health insurance and travel expenses, and otherwise conspired with
the other Respondents to retain all benefit from Lewis Chevrolet. In regard to Rachel, the
Complaint alleges that she signed for the adoption of corporate bylaws as the corporate
secretary when she was not the secretary, failed to keep corporate minutes or any
documentation authorizing her corporate actions, borrowed money from the Estate,
executed a loan on behalf of Lewis Chevrolet, received salary and benefits from Lewis
Chevrolet, entered Lewis Chevrolet into a Management Fee Administration Agreement
whereby she received 100% of the fee generated, purchased property from the Estate, and
otherwise conspired with the other Respondents to retain all benefit from Lewis Chevrolet.
Regarding Sarah, the Complaint alleges that she certified corporate bylaws that are not
valid, failed to keep corporate minutes or any documentation that authorized her corporate
actions, received benefits from her employment and otherwise conspired with the other
Respondents to retain all benefit from Lewis Chevrolet.

On March 31, 2022, Langhorne and Ronald moved to dismiss the claims against
them. On the same date, Rachel and Sarah moved for partial dismissal of the claims against
them. Specifically, Rachel and Sarah moved to dismiss the claims against them for
conversion, negligence, tortious interference with inheritance, fraud, unjust enrichment,
and constructive trust. They did not move to dismiss claims against them for violations of
the West Virginia Business Corporation Act, breach of fiduciary duties as officers and

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The allegation regarding the sale of property to Rachel is part of a larger factual
allegation against Mr. Abrams. As stated in the Complaint:

On November 8, 2017, Defendant David Abrams, in his capacity as Executor
of the Estate, allowed his daughter, Defendant Rachel Hopkins, to borrow
$41,926.82 from the Estate - pursuant to a one-page, unsigned, and unsecured
promissory note - and repay the Estate at the rate of 0.22% per year for the
purchase of Lot 122 at Flat Top Lake in Ghent, West Virginia.
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directors of Lewis Chevrolet, civil conspiracy, punitive damages, or attorney’s fees and
costs.

On July 29, 2022, the circuit court held a hearing on the Respondents’ motions.
Following the hearing, on September 28, 2022, the circuit court issued the order now on
appeal. In that order, the circuit court concluded, in regard to Langhorne, that the
Complaint made no factual allegation that Langhorne was involved in any actions that
resulted in disproportionate treatment of Ms. Sutphin with respect to the Estate and
therefore, the claim against Langhorne for tortious interference with inheritance was
dismissed. However, Ms. Sutphin’s allegations against Langhorne in regard to the civil
conspiracy claim were sufficient to survive a motion to dismiss. The circuit court also
dismissed the claims against Langhorne for unjust enrichment and constructive trust for
failure to allege in the complaint a factual and legal basis for tortious actions committed by
Langhorne. The circuit court further dismissed the claims against Langhorne for punitive
damages and attorney’s fees and costs.

In regard to Ronald, the circuit court concluded that Ms. Sutphin’s Complaint failed
to put him on notice of the claims against him and dismissed him entirely from the case.

Regarding Rachel and Sarah, the circuit court dismissed the claims against them for
conversion, negligence, unjust enrichment, and constructive trust because these claims
were made against Rachel and Sarah in their capacities as officers and directors of the
dealership and therefore those claims were duplicative of the claims against them for
violations of the West Virginia Business Corporation Act and breaches of their fiduciary
duties. As to the tortious interference with inheritance claim against them, the circuit court
held that Ms. Sutphin failed to allege some type of action by Rachel or Sarah that
improperly or wrongly affected the administration of the Estate and because she failed to
do so, the claim was dismissed.

On appeal, we apply the following standard of review: “[a]ppellate 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). “A court reviewing the sufficiency of a complaint should view the motion
to dismiss with disfavor, should presume all of the plaintiff’s factual allegations are true,
and should construe those facts, and inferences arising from those facts, in the light most
favorable to the plaintiff.” Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of
W. Va., 244 W. Va. 508, 520, 854 S.E.2d 870, 882 (2020) (citing Chapman v. Kane
Transfer Co., 160 W. Va. 530, 538, 236 S.E.2d 207, 212 (1977)).

First, Ms. Sutphin asserts that the circuit court erred by dismissing her claims against
Langhorne for tortious interference with inheritance, unjust enrichment, constructive trust,
punitive damages, and attorney’s fees. We disagree. Under Rule 8 of the West Virginia
Rules of Civil Procedure, “a complaint must be intelligibly sufficient for a circuit court or

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an opposing party to understand whether a valid claim is alleged and, if so, what it
is.” Scott Runyan Pontiac-Buick, Inc., 194 W. Va. at 776, 461 S.E.2d at 522. To survive a
motion under Rule 12(b)(6), “[t]he complaint must set forth enough information to outline
the elements of a claim or permit inferences to be drawn that these elements exist.”
Mountaineer Fire & Rescue Equip., LLC v. City Nat’l Bank of W. Va., 244 W. Va. at 521,
854 S.E.2d at 883. Here, it is not readily apparent how the allegations in the Complaint
against Langhorne outline the elements of a claim, or permit inferences to be drawn that
the elements exist, for any claim other than civil conspiracy.6 Given that the only clear
allegation of wrongdoing in the Complaint against Langhorne is that she conspired with
others who then committed torts, the circuit court did not err in allowing Ms. Sutphin’s
claim for civil conspiracy to go forward while dismissing the remainder of the claims
against Langhorne.

Next, Ms. Sutphin asserts that the circuit court erred by dismissing all her claims
against Ronald. We agree as it pertains to the civil conspiracy claim. “Since the preference
is to decide cases on their merits, courts presented with a motion to dismiss . . . construe
the complaint in the light most favorable to the plaintiff, taking all allegations as
true.” Sedlock v. Moyle, 222 W. Va. 547, 550, 668 S.E.2d 176, 179 (2008). Here, similar
to Langhorne, the Complaint specifically alleges Ronald conspired with the other
Respondents to commit the fraudulent, tortious, and wrongful acts or omissions described
in the Complaint. Assuming the facts in the Complaint to be true and viewing all inferences
in favor of Ms. Sutphin, given the specific allegation against Ronald, his close relationship
with other alleged tortfeasors and his position in management of Lewis Chevrolet, it was
error for the circuit court to dismiss the civil conspiracy claim against Ronald.

Ms. Sutphin next asserts that the circuit court erred by dismissing her claims for
conversion, negligence, unjust enrichment, tortious interference with inheritance and
constructive trust against Rachel and Sarah. We agree with Ms. Sutphin as to the claims
for conversion, negligence, unjust enrichment and constructive trust but disagree as to the
claim for tortious interference with inheritance. First, we note that while we agree with the
circuit court’s reasoning that these claims are duplicative of the claims asserted against
Rachel and Sarah for violations of the West Virginia Business Corporation Act and
breaches of their fiduciary duties, Rule 8(e)(2) of the West Virginia Rules of Civil
Procedure allows a party to plead alternative legal theories. See Sydenstricker v.
Mohan, 217 W. Va. 552, 563, 618 S.E.2d 561, 572 (2005) (holding that doctrine of judicial

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“A civil conspiracy is not a per se, stand-alone cause of action; it is instead a legal
doctrine under which liability for a tort may be imposed on people who did not actually
commit a tort themselves but who shared a common plan for its commission with the actual
perpetrator(s).” Syl. Pt. 9, Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d 255 (2009)
(citation omitted).

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estoppel could not be applied to prevent a party from pleading alternative defenses
because Rule 8(e)(2) permitted this). However,

[i]t is generally recognized that there can be only one recovery of damages
for one wrong or injury. Double recovery of damages is not permitted; the
law does not permit a double satisfaction for a single injury. A plaintiff may
not recover damages twice for the same injury simply because he has two
legal theories.

Syl. Pt. 7, Harless v. First Nat. Bank in Fairmont, 169 W. Va. 673, 289 S.E.2d 692 (1982).
Therefore, Ms. Sutphin may plead alternative theories of recovery, but she may only
recover once for the same injury. Accordingly, it was error for the circuit court to dismiss
Ms. Sutphin’s claims for conversion, negligence, unjust enrichment, and constructive trust
at this stage in the proceedings.

Turning to Ms. Sutphin’s claim for tortious interference with inheritance against
Rachel and Sarah, our Supreme Court of Appeals has held that bald statements or a
carelessly drafted pleading will not survive a Rule 12(b)(6) motion to dismiss. Highmark
W. Va., Inc. v. Jamie, 221 W. Va. 487, 491, 655 S.E.2d 509, 513 (2007) (internal citations
omitted). Here, in regard to this claim, Ms. Sutphin’s Complaint simply incorporates all of
her factual allegations by reference and then states “[Respondents] willfully, intentionally,
fraudulently, and illegally interfered with Ms. Sutphin’s inheritance from the Trust as
described above.” In her brief before this Court, Ms. Sutphin does not point to any factual
allegation in the Complaint which demonstrates that Rachel and/or Sarah committed any
act that interfered with her inheritance. Accordingly, the circuit court did not err by
dismissing this count against Rachel and Sarah.

Lastly, Ms. Sutphin asserts that the circuit court erred by dismissing her claims with
prejudice. We agree. Generally, orders granting motions to dismiss pursuant to Rule 12(b)
of the West Virginia Rules of Civil Procedure grant dismissal without prejudice. See Syl.
Pt. 3, Rhododendron Furniture & Design, Inc. v. Marshall, 214 W. Va. 463, 466, 590
S.E.2d 656, 659 (2003) (citing Syl. Pt. 4, United States Fidelity and Guaranty Company v.
Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965) (abrogated on other grounds)).7 Therefore,

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Ms. Sutphin also argues throughout her brief, as she did in her prior appeal, that
the circuit court erred by concluding that her estate related claims should be dismissed
because they were not brought before the county commission. However, just as in Ms.
Sutphin’s prior appeal to this Court, we do not agree with Ms. Sutphin’s interpretation of
the circuit court’s order. Rather, the circuit court merely mentions a probate issue that falls
within the jurisdiction of the county commission and properly states it does not have
jurisdiction over such issue. See also Sutphin v. Abrams, No. 22-ICA-126, 2023 WL
4030072, at *4 (W. Va. Ct. App. June 15, 2023).

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we affirm the circuit court’s order as it pertains to Langhorne, reverse as it pertains to the
civil conspiracy claim against Ronald, reverse, in part, and affirm, in part, as to Rachel and
Sarah, and reverse the dismissal of claims with prejudice. Accordingly, this matter is
remanded to the circuit court for entry of an order consistent with this decision and such
further proceedings as it deems necessary.

Affirmed, in part, Reversed, in part, and Remanded with Instructions.

ISSUED: March 25, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

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