The August 27, 1981, orders of the Circuit Court of Kanawha County, West Virginia, dismissed the complaints in the Sticklen and Authority actions for failure to state a claim upon which relief could be granted. This dismissal was based upon motions of the defendants to dismiss made pursuant to W.Va.R.Civ.P. 12(b)(6). [FN 8] This ruling of the circuit court raises issues concerning the sufficiency of the plaintiffs' complaints to state one or more causes of action.

[FN 8] Preliminary and permanent injunctive relief is sought by the plaintiffs in both the Sticklen action and the action filed by the Authority. The West Virginia Rules of Civil Procedure apply in cases where a permanent injunction is sought. As stated in Lugar and Silverstein, West Virginia Rules of Civil Procedure (Michie--1960) at 533: "If the plaintiff seeks ordinary forms of relief, including final injunction only, the Rules apply...." Moreover, the note found in W.Va.Code, Vol. 1 to W.Va.R.Civ.P. 65 states as follows: "Practice respecting permanent injunctions is governed by these rules." With respect to preliminary injunctions, W.Va.R.Civ.P. 65 provides as follows: "The practice respecting preliminary injunctions shall be in accordance with the practice heretofore followed in this State, including the use of a verified complaint or supporting affidavit."

[FN 9] W.Va.Code, ch. 18, art. 5, relates to county boards of education. W.Va.Code, 18-5-9 [1933] provides, in part, as follows:

"The board shall provide: (1) By purchase, lease, building or otherwise, a sufficient number of suitable schoolhouses and other buildings to meet the educational needs of its district...." W.Va.Code, 18-5-13 [1981] provides, in part, as follows: "The boards, subject to the provisions of this chapter and the rules and regulations of the state board, shall have authority: (4) To consolidate schools...."

The general rules of pleading and, specifically, the rules for stating claims for relief, are provided by W.Va.R.Civ.P. 8. [FN 10]

[FN 10] Rule 8 provides, in part, as follows:

(a) Claims for relief -- A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third party claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief to which he deems himself entitled. Relief in the alternative or of several different types may be demanded.

....

(e) Pleading to be concise and direct; consistency --(1) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are required.

....

(f) Construction of pleadings -- All pleadings shall be so construed as to do substantial justice.

Specifically, this Court has held that "[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., Warner v. Kittle, W.Va., 280 S.E.2d 276 (1981); Syl., Oakvale Road Public Service District v. Smith, W.Va., 276 S.E.2d 218 (1981); Syl., Flowers v. City of Morgantown, W.Va., 272 S.E.2d 663 (1980); Syl. pt. 2, Leasetronics v. Charleston Area Medical Center, W.Va., 271 S.E.2d 608 (1980); Syl., Dishman v. Jarrell, W.Va., 271 S.E.2d 348 (1980); Syl. pt. 1, Pauley v. Kelly, W.Va., 255 S.E.2d 859 (1979); Syl. pt. 3, Mandolidis v. Elkins Industries, W.Va., 246 S.E.2d 907 (1978); Syl., John W. Lodge Distributing Co. v. Texaco, W.Va., 245 S.E.2d 157 (1978) and Syl. pt. 3, Chapman v. Kane Transfer Company, W.Va., 236 S.E.2d 207 (1977).

In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), black employees of a railroad who were discharged or demoted brought an action in the United States District Court for the Southern District of Texas against their union alleging that the union failed to fairly represent them. The United States Supreme Court held that the complaint adequately set forth a claim upon which relief could be granted. In so holding, the Court stated as follows:

The respondents also argue that the complaint failed to set forth specific facts to support its general allegations of discrimination and that its dismissal is therefore proper. The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is "a short and plain statement of the claim" that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified "notice pleading" is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Following the simple guide of Rule 8(f) that 'all pleadings shall be so construed as to do substantial justice,' we have no doubt that petitioners' complaint adequately set forth a claim and gave the respondents fair notice of its basis. The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits. Cf. Maty v. Grasselli Chemical Co., 303 U.S. 197, 58 S.Ct. 507, 82 L.Ed. 745.

The Conley case has been cited by this Court in several cases involving issues of pleading. Such cases include Dishman v. Jarrell, supra, Mandolidis v. Elkins Industries, Inc., supra, and John W. Lodge Distributing Co. v. Texaco, supra.

Other rules have evolved in this State resulting in a liberalization of pleading in civil cases. For example, for purposes of a motion to dismiss, the complaint is construed in the light most favorable to the plaintiff, and its allegations are to be taken as true. John W. Lodge Distributing Co. v. Texaco, W.Va., 245 S.E.2d 157, 158 (1978).

Moreover, a motion to dismiss for failure to state a claim should be viewed with disfavor. Mandolidis v. Elkins Industries, W.Va., 246 S.E.2d 907, 920 (1978) and Chapman v. Kane Transfer Co., W.Va., 236 S.E.2d 207, 212 (1977). As this Court stated in Mandolidis:

In view of the liberal policy of the rules of pleading with regard to the construction of plaintiff's complaint, and in view of the policy of the rules favoring the determination of actions on the merits, the motion to dismiss for failure to state a claim should be viewed with disfavor and rarely granted. The standard which plaintiff must meet to overcome a Rule 12(b)(6) motion is a liberal standard, and few complaints fail to meet it. The plaintiff's burden in resisting a motion to dismiss is a relatively light one. Williams v. Wheeling Steel Corp., 266 F.Supp. 651 (N.D.W.Va.1967). [FN 11]

[FN 11] This Court also stated in Mandolidis, supra, as follows:

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. Wright & Miller, Federal Practice and Procedure : Civil s. 1216 (1969).

246 S.E.2d at 920.

[FN 12] Wright & Miller, Federal Practice and Procedure : Civil s 1357 (1969), provides, in part, as follows:

Although the pleading requirements of Rule 8(a) are very liberal, more detail often is required than the bald statement by plaintiff that he has a valid claim of some type against defendant. Moreover, if the allegations in the complaint, taken as true, do not effectively state a claim, the added assertion by plaintiff that they do state a claim will not save the complaint.

In Privett, the petitioner, alleging that he was a citizen, taxpayer and patron of the public schools, brought an action in mandamus to compel a county superintendent of schools to approve a proposed site selected by a board of education for a new school. The petitioner alleged that the proposed site was as convenient as any other site. The circuit court, upon the pleadings and the testimony introduced at a hearing, granted relief to the petitioner. This Court in Privett reversed the circuit court and held that the county superintendent, who preferred a different site for the school, properly acted within his discretion. [FN 13] As this Court stated: "On the facts appearing in the record [the superintendent] might honestly have arrived at the decision he did." 138 S.E. at 462.

[FN 13] In Privett, supra, this Court stated as follows: "There is in this case no evidence tending to show that the county superintendent was acting in disregard of his duty, or that he was actuated by caprice, passion, partiality or prejudice." 138 S.E. at 462.

In Pioneer Company, the City Council of Charleston, West Virginia, awarded a sewer construction contract to the second lowest bidder rather than the alleged lowest bidder, the Pioneer Company. Subsequent to a hearing, the circuit court ordered the mayor to execute the contract with Pioneer. This Court, however, reversed and held inter alia that the city council was not guilty of a palpable abuse of discretion in awarding the construction contract to the second lowest bidder. In so holding, this Court noted the concern of the city council that the ownership of Pioneer and Pioneer's ability to efficiently perform the contract were questionable. As this Court stated:

A court will not ordinarily interfere with the action of a public officer or tribunal clothed with discretion, in the absence of a clear showing of fraud, collusion or palpable abuse of discretion. State ex rel. Printing-Litho, Inc. v. Wilson, supra [147 W.Va. 415, 128 S.E.2d 449]. Discretion in awarding a municipal contract is not abused when it is predicated upon 'good faith and honesty.' Harrison v. City of Huntington, 141 W.Va. 774, 93 S.E.2d 221 (1956).

In the instant case, no accusation of fraud, collusion, lack of good faith or dishonesty is made. The trial court attempted in the short time before the bid period expired to determine whether Pioneer was a 'responsible bidder.' This was the function of the council, not the court. It was not within the authority of the court to substitute its judgment for that of the council....

The trial court found the council 'guilty of a palpable abuse of discretion' essentially because the court reached a different conclusion than did the council. The court's test thus went to the result rather than the process. While the result may be evidence of a faulty process, a finding of abuse of the discretion vested by law in the council must be predicated upon more than a difference in judgment.

It should be noted that, with respect to the issue of palpable abuse of discretion, this Court did not hold in Pioneer that a motion to dismiss the complaint of Pioneer should have been granted. Rather, this Court's disposition of the issue related to the evidence taken before the trial court. Accordingly, this Court concluded, "While a better record might have been made by the council to illustrate more clearly the basis of its award to the second lowest bidder, the record made upon review in the trial court is more than adequate to sustain the action taken." 220 S.E.2d at 902.

The Pioneer case was overruled upon grounds other than the palpable abuse of discretion issue in State ex rel. E.D.S. Federal Corporation v. Ginsberg, W.Va., 259 S.E.2d 618 (1979).

As in the Privett case, the Pioneer case involved a record containing evidence, and no such record exists in this case. Consequently, in reviewing the certified questions and rulings of the circuit court, this Court must look to the specific allegations of the Sticklen complaint.

The first amended and supplemental complaint in the Sticklen action incorporates the allegations of the original complaint and thus contains five counts. In three of these counts, Nos. I, II and IV, the plaintiffs allege that the defendants have acted in an arbitrary and capricious manner in selecting the Vaughan site for the proposed consolidated school. Count I essentially relates to the recommendation of the Newhouse Branch site rather than the Vaughan site by the advisory site selection committee, and the circuit court held this ground of relief to be without merit. (See certified question two -- Sticklen action and circuit court ruling). As indicated below, we affirm that particular ruling of the circuit court.

However, with respect to Counts II and IV, this Court reverses the ruling of the circuit court that the first amended and supplemental complaint was insufficient to state a cause of action. The circuit court committed error in this respect in granting the Rule 12(b)(6) motion.

Although Counts II and IV in the Sticklen action do not allege that the defendants were guilty of "fraud, collusion or palpable abuse of discretion," this Court finds that, for purposes of a motion to dismiss, such an omission is not fatal. In their complaint, the Sticklen plaintiffs allege in both counts various factual matters in support of their assertion that the defendants acted in an arbitrary and capricious manner.

For example, paragraph 9a, Count II, of the complaint states, in part, as follows:

The construction of the high school on the Vaughan site will violate recognized and established safety, environmental and planning standards for development, said school being in close proximity to a major airport facility, as further evidenced by the following:

(1) The site lies some 2,400 feet from the extended center line of the primary instrument runway and within 3,000 feet of the General Aviation runway at Kanawha Airport.

Based upon the above allegations and others, this Court is of the opinion that Counts II and IV of the Sticklen plaintiffs' first amended and supplemental complaint were sufficient to withstand the defendants' Rule 12(b)(6) motion, and the rulings of the Circuit Court of Kanawha County with respect to certified questions one and three in the Sticklen action are hereby reversed.

With respect to certified question three in the action filed by the Authority, the Circuit Court of Kanawha County, West Virginia, held that the construction of a high school adjacent to the Kanawha County Airport does not constitute an enjoinable nuisance. We reverse this ruling and hold that whether the construction of the proposed consolidated high school upon the Vaughan site constitutes a nuisance to the airport is a question of fact to be determined at the circuit court level.

In Hillside Property Owners Association, Inc. v. Salanter Akiba Riverdale Academy, 40 A.D.2d 964, 338 N.Y.S.2d 482 (1972) the plaintiffs, a group of home owners, brought an action inter alia for declaratory judgment and injunctive relief against the projected construction of a grammar school. The grammar school was to be a "quasi-public building" for about six hundred pupils. Among the grounds asserted by the plaintiffs for relief were nuisance and restrictive covenants. The plaintiffs' complaints were dismissed. However, on appeal the Court in Hillside Property Owners Association, Inc. reinstated the plaintiffs' complaints and held that, with respect to the issue of nuisance, there was a question of fact.

In Mahoney v. Walter, 157 W.Va. 882, 205 S.E.2d 692 (1974), residents and property owners in Mar-Win Place, West Virginia, brought an action alleging that an automobile salvage yard operated by the defendants constituted a nuisance. The Mar-Win community existed for a long time prior to the establishment in 1969 of the salvage yard. Based upon the evidence adduced at trial, the lower court concluded that the salvage yard was a nuisance and should be enjoined. Upon appeal, this Court affirmed noting that "... whether there exists a nuisance per accidens, or a nuisance in fact, is, by its very definition, dependent upon the proof adduced before the trial chancellor." 205 S.E.2d at 697. Specifically, this Court recognized in Mahoney that the type of locality has an important bearing upon a reasonable use of a business property. As this Court stated:

The trial court in this proceeding was presented two basic considerations: (1) Did a nuisance exist; and (2) was it of such a nature as to require its complete abatement by a total permanent injunction. In arriving at its first conclusion, the court could properly consider the nature of the businesses; the type of locality in which the business is located; and the type of activities complained of.

This Court concluded in Mahoney that "[b]usinesses and occupations which, if performed or conducted elsewhere would not be nuisances, may be declared a nuisance if performed or conducted in residential areas." 205 S.E.2d at 698. [FN 14]

[FN 14] In Mahoney, supra, this Court noted that the term nuisance is difficult to define and depends upon the facts and circumstances of each case. In Mahoney this Court was able to define nuisance to some extent by quoting Martin v. Williams, 141 W.Va. 595, 610, 93 S.E.2d 835, 844 (1956) as follows:

' * * * A nuisance is anything which annoys or disturbs the free use of one's property, or which renders its ordinary use of physical occupation uncomfortable. * * * A nuisance is anything which interferes with the rights of a citizen, either in person, property, the enjoyment of his property, or his comfort. * * * A condition is a nuisance when it clearly appears that enjoyment of property is materially lessened, and physical comfort of persons in their homes is materially interfered with thereby. * * * When the prosecution of a business, of itself lawful, in a strictly residential district, impairs the enjoyment of homes in the neighborhood, and infringes upon the well-being, comfort, repose, and enjoyment of the ordinary normal individual residing therein, the carrying on of such business in such locality becomes a nuisance, and may be enjoined. * * * '

205 S.E.2d at 697.

With respect to the remaining questions certified by the Circuit Court of Kanawha County to this Court, we are of the opinion that as to question two in the Sticklen action, the circuit court was correct in holding that the recommendation of the Advisory Site Selection Committee was neither binding upon the county board nor entitled to particular consideration. The ruling of the circuit court is, therefore, affirmed. This Court likewise affirms the rulings of the circuit court with respect to certified question four in the Sticklen action and certified question six in the action filed by the Authority. The rulings of the circuit court in this regard were to the effect that the county board of education ratified by implication a change within the Vaughan tract of the location of the proposed school.

Finally, this Court affirms the rulings of the circuit court with respect to certified questions four and five in the action filed by the Authority. Certified question four involves the assertion by the Authority that the construction of the proposed school at the Vaughan site is incompatible with the Kanawha County Airport and will result in a loss of federal grants to the Authority. This Court agrees with the circuit court that the possible loss of such federal grants is not in this case a sufficient basis to enjoin construction of the new school. With respect to certified question five in the action filed by the Authority, this Court concludes, as did the circuit court, that possible future litigation brought against the Authority by private developers, if any, of property near the Vaughan site is not a sufficient basis in this case to enjoin the construction of the proposed consolidated high school.

The rulings of the Circuit Court of Kanawha County, West Virginia, upon the questions certified to this Court in the Sticklen and Authority actions are hereby affirmed, with the exception that the rulings of the circuit court with respect to certified question three in the action filed by the Authority and certified questions one and three in the Sticklen action are hereby reversed, and this consolidated action is remanded to the Circuit Court of Kanawha County for proceedings consistent with this opinion.

Affirmed in part; reversed in part and remanded.