Robert Edward Reed, individually and as the Executor of Racheal Ann Reed, deceased, Plaintiff Below, Petitioner
Janice Ann Reed Collins, James E. Collins II, Calhoun County Bank, Inc., a West Virginia Corporation, United Bankshares, Inc., a West Virginia Corporation, United Bank, Inc., a West Virginia Corporation, Pioneer Funds Distributor, Inc., an unauthorized foreign corporation, Defendants Below, Respondents
Kanawha County 17-C-332
Robert Edward Reed, individually and as the Executor of
Racheal Ann Reed, deceased, by counsel Gregory H. Schillace,
appeals the Circuit Court of Kanawha County's November
30, 2017, order granting respondents' motions to dismiss
for lack of venue. Respondents Calhoun County Bank, Inc.
("Calhoun"), by counsel Leslie L. Maze; Pioneer
Funds Distributor, Inc. ("Pioneer"), by counsel J.
Mark Adkins and Andrew C. Robey; and United Bankshares, Inc.
("United Bankshares") and United Bank, Inc.
("United Bank" or, collectively, the "United
respondents"), by counsel Floyd E. Boone Jr. and Patrick
C. Timony, filed responses. Petitioner argues that the
circuit court erred in granting respondents' motions to
dismiss because respondent United Bankshares has its
principal place of business in Kanawha County, thereby
conferring venue in that county.
Court has considered the parties' briefs and the record
on appeal. The facts and legal arguments are adequately
presented, and the decisional process would not be
significantly aided by oral argument. Upon consideration of
the standard of review, the briefs, and the record presented,
the 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.
March 9, 2017, petitioner filed a complaint in Kanawha
County, West Virginia, against respondents, and also
Prudential Insurance Company of America, and Prudential Asset
Resources, Inc. (collectively, the "Prudential
defendants") seeking declaratory and other relief
relative to certain financial accounts owned by the decedent
Racheal Anne Reed. Of relevance to the instant appeal,
petitioner asserted in the complaint that the decedent's
"mental frailty . . . was known to agents and
representatives of [respondents] United Bankshares, . . .
United Bank, [and] Calhoun . . . working in their Gilmer
County branches[.]" Respondents Janice Anne Reed Collins
and James E. Collins II, who were residents of Gilmer County,
West Virginia, allegedly took advantage of the decedent's
diminished capacity to access certain of the decedents'
safe deposit boxes maintained at branches of respondents
Calhoun, United Bankshares, and United Bank "located in
Gilmer County, West Virginia." Petitioner also alleged
that respondent Ms. Collins stole funds from the
decedent's checking account maintained at respondent
Calhoun. Finally, petitioner asserted that the decedent owned
an individual retirement account through respondent Pioneer,
and that respondent Ms. Collins, through her undue influence
over the decedent, was improperly designated as a beneficiary
of this account.
1, 2017, the United respondents moved to dismiss
petitioner's complaint for lack of venue and failure to
state a claim. See W.Va. R. Civ. P. 12(b)(3) and
(6). Respondent United Bankshares argued that it is a holding
company that exists separately from its subsidiary,
respondent United Bank, and that it does not operate
branches, accept cash deposits from the public, or lease safe
deposit boxes to the public. Respondent United Bankshares
also noted that petitioner's complaint contained no
allegations of specific action that it took that would
support a claim against it. Finally, the United respondents
asserted that the events at issue all occurred in Gilmer
County, and not Kanawha County, where the complaint was
26, 2017, Calhoun moved to join the United respondents in
their motion to dismiss. On July 24, 2017, Pioneer separately
moved to dismiss petitioner's complaint for lack of
venue, and it also joined in the United respondents'
arguments relative to venue.
August 7, 2017, before petitioner responded to
respondents' motions to dismiss, he filed a notice
indicating that he had voluntarily dismissed the Prudential
defendants with prejudice. Shortly thereafter, on October 13,
2017, petitioner filed a response to respondents' motions
to dismiss asserting that the Prudential defendants were
"venue[-]giving defendants," that Pioneer operates
in Kanawha County, and that the United respondents have
"interlocking officers and directors and are engaged in
the operation of United Bank throughout West Virginia."
November 30, 2017, the circuit court granted respondents'
motions to dismiss for lack of venue. The court found that
United Bankshares is a distinct entity from United Bank;
thus, the court dismissed it without prejudice given
petitioner's failure to allege any facts that would
impose liability upon it. Given that dismissal, the court did
not consider United Bankshares in determining venue. Due to
petitioner's voluntary dismissal of the Prudential
defendants, they, too, were not considered in determining
venue. Finally, because petitioner failed to allege any
systematic contacts by Pioneer with Kanawha County, the court
found that petitioner had not established that Pioneer did
business in that county. Consequently, the court determined
that venue was not proper in Kanawha County because none of
the remaining respondents resided there and the claims
asserted in the complaint arose from events that occurred in
Gilmer County. It is from this order that petitioner appeals.
appeal, petitioner asserts that venue is proper in Kanawha
County because United Bankshares acknowledged that its
principal place of business is in Kanawha County. Petitioner
argues that, because the allegations in his complaint
concerning the interrelationship of the United respondents
must be taken as true, the court erred in disregarding United
Bankshares in its venue analysis. Although petitioner's
primary assignment of error concerns United Bankshares, he
also argues that the Prudential defendants, as parties to the
action at the time it was filed, should have been considered
for purposes of determining venue despite their dismissal,
and that Pioneer is engaged in business in Kanawha County,
thereby providing another justification for maintaining his
review the circuit court's order granting
respondents' motion to dismiss for improper venue under
an abuse of discretion standard. Syl. Pt. 1, United Bank,
Inc. v. Blosser, 218 W.Va. 378, 624 S.E.2d 815 (2005).
Civil actions may be brought "in the circuit court of
any county . . . [w]herein any of the defendants may reside
or the cause of action arose[.]" W.Va. Code §
56-1-1(a)(1). With respect to a corporate defendant, actions
wherein its principal office is or wherein its mayor,
president or other chief officer resides; or if its
principal office be not in this state, and its mayor,
president or other chief officer do not reside therein,
wherein it does business; or if it is a corporation or
other corporate entity organized under the laws of this
state which has its principal office located outside of
this state and which has no office or place of business
within the state, the circuit court of the county in which
the plaintiff resides or the circuit court of the county in
which the seat of state government is located has
jurisdiction of all actions at law or suits in equity
against the corporation or other corporate entity, where
the cause of action arose in this state or grew out of the
rights of stockholders with respect to corporate
Id. at § 56-1-1(a)(2). Finally, "West
Virginia follows the venue-giving defendant principle: once
venue is proper for one defendant in an action, venue is also
proper for all other defendants in that same action, but only
if the venue-giving defendant was properly joined."
State ex rel. Energy Corp. of Am. v. Marks, 235
W.Va. 465, 468, 774 S.E.2d 546, 549 (2015).
respect to the United respondents, petitioner's complaint
alleged that they "are West Virginia Corporations with
interlocking offices [sic] and directors, engaged in the
operation of United Bank throughout West Virginia" and
that United Bankshares maintained its principal office in
Kanawha County. Petitioner's complaint then treats both
United respondents as though they are the same entity.
However, petitioner's complaint is devoid of any claim
for piercing the corporate veil, thereby disregarding the
well-established rule that "[t]he law presumes that two
separately incorporated businesses are separate entities and
that corporations are separate from their shareholders."
Syl. Pt. 3, S. Elec. Supply Co. v. Raleigh Cty. Nat'l
Bank, 173 W.Va. 780, 320 S.E.2d 515 (1984). Moreover,
"[t]he mere showing that one corporation is owned by
another or that they share common officers is not a
sufficient justification for a court to disregard their
separate corporate structure." S. States Coop., Inc.
v. Dailey, 167 W.Va. 920, 930, 280 S.E.2d 821, 827
(1981) (citations omitted). Because petitioner's
complaint failed to set forth allegations to rebut the
presumption that the United respondents are separate
corporate entities, and because the venue-giving defendant
principle is applicable "only if the venue-giving
defendant was properly joined[, ]" we find no error in
the circuit court's dismissal of United Bankshares or its
exclusion of that entity in its venue analysis.
Marks, 235 W.Va. at 468, 774 S.E.2d at 549 (citation
argument concerning the Prudential defendants is similarly
unavailing. Petitioner asserts that the Prudential defendants
should have been considered in determining whether venue was
proper in Kanawha County, but that position ignores our
pronouncement in State ex rel. Sutton v. Spillers,
181 W.Va. 376, 382 S.E.2d 570 (1989). In that case, we held
that a court is vested with the discretion to retain
jurisdiction over a case when a venue-giving defendant has
been dismissed. Id. at 377, 382 S.E.2d at 571, Syl.
Pt. 1 ("[N]otwithstanding the dismissal of the venue
giving defendant in an action involving multiple defendants
from different counties, the circuit court has the discretion
to retain jurisdiction of the action when the venue was
initially proper ...