Clay Music Corp. v. Mountaineer Gas Company

1
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
CLAY MUSIC CORP.,
Plaintiff Below, Petitioner
v.) No. 24-ICA-457 (Cir. Ct. Kanawha Cnty. Case No. CC-20-2023-C-657)
MOUNTAINEER GAS COMPANY,
Defendant Below, Respondent
MEMORANDUM DECISION
In this appeal, Petitioner Clay Music Corp. (“Clay”) argues that a natural gas line in
Beaver, West Virginia leaked, causing a gas explosion and fire that damaged several of
Clay’s video lottery machines in a nearby building, and that the operator of that gas line,
Respondent Mountaineer Gas Company (“Mountaineer”), attempted to hide evidence of
the cause of the explosion. On October 21, 2024, the Circuit Court of Kanawha County
dismissed Clay’s lawsuit based on this incident, finding that Clay’s negligence claim was
untimely, and that Clay insufficiently alleged a claim of intentional spoliation of evidence.
On appeal, Mountaineer filed a brief in support of the circuit court’s order.1 Clay filed a
reply.
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 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.
In July of 2021, Clay owned two video lottery terminals in a commercial gambling
establishment known as “Judy’s” in Beaver, West Virginia.2 Judy’s operated in a building
owned by Shop-A-Minit. Clay was not a natural gas customer of Mountaineer, and no
natural gas line ran to or under the premises of Judy’s. However, Mountaineer maintained
an underground natural gas distribution line in the vicinity of Judy’s. For some time prior
1 Clay is represented by David R. Barney, Esq. Mountaineer is represented by Carrie
Goodwin Fenwick, Esq., and Eric R. Passeggio, Esq.
2 The factual background is based on the allegations in Clay’s complaint, which are
taken as true at this stage. See Syl. Pt. 1, Wiggins v. E. Associated Coal Corp., 178 W. Va.
63, 357 S.E.2d 745 (1987).
FILED
October 15, 2025
released at 3:00 p.m.
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

2
to July 18, 2021, a two-inch puncture in that distribution line leaked natural gas, some of
which accumulated in a nearby sewer line that extended under the premises of Judy’s. On
July 18, 2021, that accumulated natural gas ignited, causing an explosion and fire at Judy’s
that damaged Clay’s two video lottery terminals.
Clay filed the underlying complaint against Mountaineer on August 1, 2023,
alleging claims of negligence and intentional spoliation of evidence. In addition to the facts
as set forth above, Clay alleged that, during an investigation of the cause of the explosion,
a Mountaineer employee came to the premises on two occasions to cut out and remove
sections of the sewer line. Clay further alleged that Mountaineer removed and subsequently
hid these pieces of the pipe to impede the investigation and conceal Mountaineer’s potential
liability. Clay stated that the investigators informed Clay in late August of 2021 that the
leak from Mountaineer’s gas line caused the explosion.
On September 11, 2023, Mountaineer filed a motion to dismiss Clay’s complaint
pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Mountaineer
argued that Clay’s claims are barred by the statute of limitations and that the complaint
failed to state a claim for intentional spoliation. Mountaineer included in its motion a
picture of the sewer pipe and gas line from the immediate aftermath of the explosion,
stating that this evidence would “assist the Court’s understanding.” Clay filed a response
in opposition and Mountaineer filed a reply.
On October 21, 2024, the circuit court entered an order granting Mountaineer’s
motion to dismiss. Applying Syllabus Point 5 of Dunn v. Rockwell, 225 W. Va. 43, 689
S.E.2d 255 (2009), the circuit court found that Clay’s negligence claim is subject to a two-
year statute of limitations and that the elements of the claim occurred on or before July 18,
2021. The circuit court also determined that the discovery rule did not apply, that Clay had
not alleged facts supporting tolling under the doctrine of fraudulent concealment, and that
no other tolling doctrine applied. Accordingly, the circuit court concluded that Clay’s
negligence claim is time-barred. The circuit court also determined that Clay’s complaint
failed to state a claim for intentional spoliation. It is from the circuit court’s order
dismissing Clay’s claims that it now appeals.3
Our review of an order granting a motion to dismiss 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).
Moreover, “[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 On September 7, 2023, the circuit court entered an order consolidating this matter
with two other cases stemming from the same incident, Kanawha County Case Nos. CC-
20-2022-C-385 and CC-20-2022-C-694. However, there appears to be no dispute between
the parties that the order on appeal fully resolved the case between Clay and Mountaineer.

3
3, Chapman v. Kane Transfer Co., Inc., 160 W. Va. 530, 236 S.E.2d 207 (1977). On appeal
of an order dismissing a complaint under Rule 12(b)(6), the allegations of the complaint
must be taken as true. Syl. Pt. 1, Wiggins v. E. Associated Coal Corp., 178 W. Va. 63, 357
S.E.2d 745 (1987).
Clay raises four assignments of error on appeal, which we reorder to accord with
our analysis. See HD Media Co., LLC v. W. Va. Univ. Bd. of Governors, 251 W. Va. 249,
___, 912 S.E.2d 12, 17 (Ct. App. 2024) (reordering assignments of error). First, we address
Clay’s argument that the circuit court erred in finding that the complaint failed to state a
claim for negligence. As Mountaineer points out, the circuit court did not find that Clay’s
complaint failed to state a negligence claim. Rather, the circuit court found that the claim
is time-barred. As this assignment of error challenges a ruling that the circuit court did not
make, we find that it is meritless.
Next, Clay argues that the circuit court erred in finding that Clay’s negligence claim
is barred by the statute of limitations. We disagree. As the circuit court recognized, in Dunn
the Supreme Court of Appeals of West Virginia (“SCAWV”) set forth a five-step analysis
for determining whether a cause of action is time-barred. See Syl. Pt. 5, Dunn v. Rockwell,
225 W. Va. 43, 689 S.E.2d 255 (2009). The first two steps, which require the court to
identify the relevant statute of limitations and determine when the elements of the cause of
action occurred, are not at issue here: Clay does not dispute that its negligence claim is
subject to a two-year statute of limitations or that the elements of its claim occurred on or
before July 18, 2021. Moreover, the fifth step, which concerns miscellaneous tolling
doctrines, is not at issue. Therefore, only steps three and four, application of the discovery
rule and tolling by fraudulent concealment, are at issue. Clay argues that both principles
apply and that its negligence claim did not accrue until late August of 2021, rendering its
August 1, 2023, complaint timely.
The third step of the Dunn analysis provides that “the discovery rule should be
applied to determine when the statute of limitation began to run by determining when the
plaintiff knew, or by the exercise of reasonable diligence should have known, of the
elements of a possible cause of action.” Dunn, 225 W. Va. at 46, 689 S.E.2d at 258, Syl.
Pt. 5. A negligence claim accrues under the discovery rule when the plaintiff knows or by
reasonable diligence should know “(1) that the plaintiff has been injured, (2) the identity
of the entity who owed the plaintiff a duty to act with due care, and who may have engaged
in conduct that breached that duty, and (3) that the conduct of that entity has a causal
relation to the injury.” Syl. Pt. 4, in part, Gaither v. City Hosp., Inc., 199 W. Va. 706, 487
S.E.2d 901 (1997). This is an “objective test [that] focuses upon [what] a reasonable
prudent person would have known, or by the exercise of reasonable diligence should have
known.” Dunn, 225 W. Va. at 46, 689 S.E.2d at 258, Syl. Pt. 4. Moreover, “[t]he plaintiff
is charged with knowledge of the factual, rather than the legal, basis for the action.” Id.

4
In arguing that the discovery rule delayed the accrual of its negligence claim until
late August of 2021, Clay contends that it did not understand how a natural gas explosion
occurred in a building with no gas service until the experts provided their report of the
investigation of the gas and sewer lines. Pointing to its allegations that a small hole in
Mountaineer’s gas line leaked natural gas into the sewer line, eventually causing the
explosion, Clay argues that “[a] cause of this nature can only be discovered by the retention
of experts, forensic analysis, removal of significant dirt and testing and examination of all
pipes involved which takes a significant amount of time and expertise.” At oral argument,
Clay’s counsel reiterated this position, explaining that, until Clay received the report from
the experts’ investigation of the gas and sewer lines in late August of 2021, it did not
understand how gas migrated from Mountaineer’s gas line into the sewer line.
Clay misinterprets the discovery rule. Gaither does not require a plaintiff to
understand every specific detail of causation for a claim to accrue; indeed, in applying the
rule in the medical malpractice context at issue in that case, the SCAWV explained that a
plaintiff who is immediately aware that something went wrong need “not be aware of the
precise act” that caused the injury. Gaither, 199 W. Va. at 712, 487 S.E.2d at 907 (quoting
Harrison v. Seltzer, 165 W. Va. 366, 371, 268 S.E.2d 312, 315 (1980)); see Parsons v.
Herbert J. Thomas Mem’l Hosp. Ass’n, No. 16-1178, 2017 WL 5513620, at *4 (W. Va.
Nov. 17, 2017) (memorandum decision) (recognizing that under Gaither plaintiffs are “not
required to know the exact nature of their claims”). Instead, the Gaither standard only
required Clay to be aware or on notice of its injuries and that Mountaineer’s conduct may
have caused them. See Gaither, 199 W. Va. at 708, 487 S.E.2d at 903, Syl. Pt. 4.
Applying this objective test to the facts as alleged in Clay’s complaint, we agree
with the circuit court that the discovery rule did not delay the accrual of Clay’s negligence
claim beyond the day of the explosion. Clay does not dispute that it was aware on July 18,
2021, of the explosion and the damage to its lottery machines. Additionally, there are no
factual allegations in the complaint that Clay was unaware that natural gas caused the
explosion.4 Finally, while Clay alleged there was no gas service to Judy’s, it did not allege
any facts showing that a reasonably prudent person exercising reasonable diligence could
not have immediately discovered that Mountaineer was the natural gas provider with a
distribution line in that area.5 Cf. Cecil v. Airco, Inc., 187 W. Va. 190, 192, 416 S.E.2d 728,
730 (1992) (per curiam) (explaining in the product liability context that a claim accrued
when plaintiff “had at their disposal reasonable means of discovering the proper identity
of the [defendant]”). Therefore, we find no error in the circuit court’s conclusion that the
4 At oral argument, Clay’s counsel recognized that Clay was immediately aware that
“there was an explosion” and that “it was most likely gas.”
5 Clay’s counsel conceded at oral argument that there is no factual dispute regarding
the identity of the natural gas provider.

5
discovery rule did not delay the accrual of Clay’s negligence claim beyond the date of the
explosion.
The fourth step of the Dunn analysis provides that “if the plaintiff is not entitled to
the benefit of the discovery rule, [the court must] determine whether the defendant
fraudulently concealed facts that prevented the plaintiff from discovering or pursuing the
cause of action.” Dunn, 225 W. Va. at 46, 689 S.E.2d at 258, Syl. Pt. 5. “Fraudulent
concealment involves the concealment of facts by one with knowledge, or the means of
knowledge, and a duty to disclose, coupled with an intention to mislead or defraud.”
Nichols v. Maroney Williams Weaver & Pancake PLLC, 249 W. Va. 408, 418, 895 S.E.2d
492, 502 (Ct. App. 2023) (quoting Dunn, 225 W. Va. at 52, 689 S.E.2d at 264). Where a
plaintiff “show[s] that the defendant fraudulently concealed facts which prevented the
plaintiff from discovering or pursuing the potential cause of action, the statute of limitation
is tolled.” Dunn, 225 W. Va. at 46, 689 S.E.2d at 258, Syl. Pt. 5. Under Rule 9(b) of the
Rules of Civil Procedure, “the circumstances constituting fraud . . . shall be stated with
particularity.” W. Va. R. Civ. P. 9(b) (1998).
We agree with the circuit court that Clay failed to state with particularity facts
sufficient to trigger tolling by fraudulent concealment. While Clay alleges that a
Mountaineer employee removed two pieces of the sewer line, it does not allege facts
showing that the absence of these pieces of pipe prevented Clay from discovering or
pursuing its negligence claim. In fact, its complaint recognizes the opposite: Clay alleges
that Mountaineer never returned the allegedly stolen pieces of the sewer line, but that Clay
was able to discover its claim anyway. Moreover, Clay’s fraudulent concealment argument
relies on the same flawed principle rejected above: that Clay’s negligence claim did not
accrue until it understood causation of the explosion in precise detail. Accordingly, we find
no error in the circuit court’s conclusion that the facts alleged do not support tolling of the
statute of limitations under the principle of fraudulent concealment.
Therefore, because we agree with the circuit court that Clay’s negligence claim
accrued on July 18, 2021, and that the two-year statute of limitations expired prior to Clay
filing its complaint on August 1, 2023, we affirm the circuit court’s dismissal of Clay’s
negligence claim.
Next, Clay argues that the circuit court committed reversible error in finding that
Clay’s complaint failed to state a claim of intentional spoliation. We disagree. The
SCAWV set forth the elements of a claim of intentional spoliation of evidence in Hannah
v. Heeter:
(1) a pending or potential civil action; (2) knowledge of the spoliator of the
pending or potential civil action; (3) willful destruction of evidence; (4) the
spoliated evidence was vital to a party’s ability to prevail in the pending or
potential civil action; (5) the intent of the spoliator to defeat a party’s ability

6
to prevail in the pending or potential civil action; (6) the party’s inability to
prevail in the civil action; and (7) damages. Once the first six elements are
established, there arises a rebuttable presumption that but for the fact of the
spoliation of evidence, the party injured by the spoliation would have
prevailed in the pending or potential litigation. The spoliator must overcome
the rebuttable presumption or else be liable for damages.
Syl. Pt. 11, Hannah v. Heeter, 213 W. Va. 704, 584 S.E.2d 560 (2003).
We find that the untimeliness of Clay’s negligence claim is fatal to its spoliation
claim because, as a matter of law, Clay cannot demonstrate causation. Clay claims that the
pieces of sewer line Mountaineer allegedly removed are vital evidence to Clay’s ability to
prevail on its negligence claim. However, because that negligence claim is time-barred,
Clay cannot prevail on that claim irrespective of that evidence. As that evidence is
irrelevant to Clay’s ability to prevail on that claim, it cannot be vital. Clay also cannot
demonstrate spoliation damages for the same reason: Clay’s negligence claim is time-
barred, so it cannot show that it would have prevailed on that claim but for the spoliation
of evidence.6 As the untimeliness of Clay’s negligence claim negates multiple elements of
its intentional spoliation claim as a matter of law, we affirm the circuit court’s decision to
dismiss that claim.7
Finally, Clay argues that the circuit court failed to properly apply the 12(b)(6)
standard in evaluating Mountaineer’s motion to dismiss. While the circuit court did not
directly quote Rule 12(b)(6), it cited relevant SCAWV caselaw, and we find no indication
that it did not apply the correct standard.8 The circuit court considered the allegations in
6 Courts in several other jurisdictions have recognized that a party cannot show that
it was damaged by spoliation where the underlying claim cannot succeed regardless of the
spoliated evidence. See Jeffrey Mining Prod., L.P. v. Left Fork Mining Co., 758 N.E.2d
1173, 1181 (Ohio Ct. App. 2001); Est. of Day v. Willis, 897 P.2d 78, 81 (Alaska 1995).
7 While this was not the basis for the circuit court’s dismissal, “[t]his Court may, on
appeal, affirm the judgment of the lower court when it appears that such judgment is correct
on any legal ground disclosed by the record, regardless of the ground, reason or theory
assigned by the lower court as the basis for its judgment.” Syl. Pt. 3, Barnett v. Wolfolk,
149 W. Va. 246, 140 S.E.2d 466 (1965).
8 Elsewhere in its brief, Clay suggests that the circuit court relied on pictures in
deciding Mountaineer’s motion to dismiss. It is true that under Syllabus Point 6 of
Mountaineer Fire & Rescue Equipment, LLC v. City National Bank of West Virginia, 244
W. Va. 508, 854 S.E.2d 870 (2020), the circuit court should have expressly disregarded the
picture included in Mountaineer’s motion to dismiss. However, we find that its failure to

7
Clay’s complaint and found that Clay’s negligence claim is time-barred and that the
allegations were insufficient to state an intentional spoliation claim. That Clay disagrees
with the conclusion does not show that the circuit court applied the incorrect standard.
Accordingly, this assignment of error is meritless.
For the foregoing reasons, this Court affirms the Circuit Court of Kanawha County’s
October 21, 2024, order granting Mountaineer’s motion to dismiss.
Affirmed.
ISSUED: October 15, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White
do so is at most harmless error. The circuit court does not appear to have relied on the
picture in dismissing the complaint, and it played no role in this Court’s decision to affirm.