Thе appellant and defendant below, Larry A. Bauer, appeals from a final order of *287 the Circuit Court of Morgan County granting a judgment on the pleadings in favor of Calvert Fire Insurance Company (Calvert).
The appellant was involved in an automobile accidеnt in 1973. He thereafter executed a promissory note, admitting his negligence, acknowledging liability, and agreeing to pay Calvert $5,050 in monthly installments over eight years. 1 The note contained an acceleration provision permitting Calvert to treat the debt as being immеdiately due upon the failure to make a timely payment and to bring suit for the amount of the outstanding indebtedness.
Mr. Bauer apparеntly made payments on the note, then defaulted. An action was instituted on September 24, 1982, in the name of William L. Bull, who was involved with Bauer in the 1973 automobile accident. The complaint demanded judgment for the full amount of the note, viz. $5,050. On October 1, 1982, Calvert filed a motion to amеnd the complaint to name itself as the plaintiff and real party in interest and demanded judgment for some $3,600, representing the unpaid bаlance allegedly remaining on the note. The note was attached to the complaint and to the amended complаint as an exhibit.
On November 14, 1982, Mr. Bauer’s attorney filed an answer asserting as affirmative equitable defenses that the note was unconscionable, contrary to public policy, and not based on valid consideration, and demanding that the promissory note be held unenforceable. At the same time, interrogatories were served on Calvert to obtain information concerning the factual cirсumstances surrounding execution of the promissory note. Calvert, however, did not answer the interrogatories and, instead, moved for judgmеnt on the pleadings. In response, Mr. Bauer moved to compel Calvert to answer the interrogatories and to strike its motion for judgment on the pleadings.
After hearing oral argument on these motions at a hearing on January 23, 1984, the trial court granted Calvert’s motion to amend the complaint and granted judgment on the pleadings. The trial court denied the appellant’s motion to compel discovery and to strike Calvert’s motion for judgment on the pleadings. The appellant then appealed.
We have had little occasion to consider the propriety of granting judgment on the pleadings under Rule 12(c) of the West Virginia Rules of Civil Procedure.
2
Ordinarily, affidavits аnd other matters outside the pleadings are filed and considered by the trial court, which under Rule 12(c) converts the motion into a motion for summary judgment under Rule 56 of the Rules of Civil Procedure.
See, e.g., Wilfong v. Wilfong,
Courts generally adhere to a rather restrictive standard in ruling on motions for judgment on the pleadings under Rule 12(с). The motion will not be granted unless the movant clearly establishes that no material issue of fact remains for resolution and that he is еntitled to judgment as a matter of law. The test is essentially the same as that for granting a motion for
*288
summary judgment.
E.g., Southern Ohio Bank v. Merrill Lynch, Pierce, Fenner & Smith, Inc.,
While the trial court in this case purported to act on the basis of granting a motion for judgment on the pleadings, we believe, however, that the motion was converted into a motion for summary judgment under Rule 56. The trial court had to consider the promissory note that was attached as an exhibit to the complaint and amended complaint in order to determine the cause of action because the terms of the note were not set out in the complaint.
We observed in
Chapman v. Kane Transfer Co., Inc.,
It is, of course, well settled that under Rule 56:
“A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y.,148 W.Va. 160 ,133 S.E.2d 770 (1963).
See also
Syllabus,
Chambers v. Sovereign Coal Co.,
With this legal standard in mind, we conclude that the trial court improperly granted Calvert’s motion because the appellant in his answer pled at least one affirmative defense, namely, that the promissory note was not based on valid consideration.
4
By granting Calvert’s motion, the trial judge made a final determination of the underlying substantive merits of the appellant’s affirmative defense without permitting even limited discovery or inquiry as to the facts. The trial court’s ruling was simply premature. In
Board of Education v. Van Buren & Firestone, Architects, Inc.,
The judgment below is therefore reversed and the case is remanded for further proceedings.
Reversed and Remanded.
Notes
. The first paragraрh of the note recites the consideration as follows:
"FOR VALUE RECEIVED, that being the forebearance to bring suit for damages resulting from an autоmobile accident with William L. Bull on September 9, 1973, in which I was negligent and at fault and in which I acknowledge liability, I promise to pay to the Calvert Fire Insurance Company the sum of Five Thousand and Fifty Dollars ($5,050.00), without interest....”
. Rule 12(c), W.Va.R.C.P., provides:
“Motion for judgment on the pleadings.— After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings. If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of аs provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”
. Rule 7(a), W.Va.R.C.P., states, as pertinent here:
"Pleadings. — There shall be a complaint and an answer; a reply to a counter-claim denominated as such; an answer to a cross-claim, if the answer contains a cross-claim; a third-party complaint, if a person who was not an original party is summoned under the provisions of Rule 14; and a third-party answer, if a third-party complaint is served. No other pleading shall be allowed, except that the court may order a reply to an answer or a third-party answer.”
. Failure of consideration is one of nineteen affirmative defenses specifically enumerated in Rule 8(c), W.Va.R.C.P.