717 S.E.2d 235
W. Va.2011Background
- Plaintiff Diana Mey (plaintiff) appeals a circuit court dismissal of her TCPA claim after automated voicemail to her home in response to her son's Craigslist ad for a car.
- Plaintiff's son posted the ad with their home number, inviting inquiries from third parties.
- Defendants purportedly placed an automated call offering a cash offer and directing action at Caroffer.com after the ad.
- Circuit court dismissed, holding the call was not an unsolicited advertisement or a telephone solicitation under TCPA.
- Plaintiff moved for relief under Rules 59(e) and 60(b); FCC citation against Pep Boys emerged after judgment but was not relied on in the ruling.
- On appeal, court affirms the dismissal and denial of post-judgment relief, applying de novo review to the Rule 12(b)(6) ruling and related standards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review for Rule 12(b)(6) | Mey argues circuit court used the wrong standard. | Defendants contend correct standard applied. | De novo review applied; standard properly used. |
| Whether call is a 'telephone solicitation' or an 'unsolicited advertisement' | Call was an offer to generate a marketing scheme and fees. | Call responds to a classified ad and seeks information/offers; not solicitation or unsolicited ad. | Not a telephone solicitation or unsolicited advertisement. |
| Relief under Rule 59(e)/60(b) after FCC citation | FCC citation constitutes new evidence warranting relief. | Citation is a form, not a dispositive adjudication; no new grounds for relief. | No abuse of discretion; denial affirmed. |
| Prior express consent requirement | Plaintiff did not consent to receive automated calls. | Plaintiff's son invited third parties to contact him; consent implied. | Invitation by plaintiff's son negates need for prior express consent. |
Key Cases Cited
- Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108 (1997) (two-prong/deference standard for appellate review)
- Chapman v. Kane Transfer Co. Inc., 160 W.Va. 530 (1977) (dismissal standard for failure to state a claim)
- Murphy v. Smallridge, 196 W.Va. 35 (1996) (abuse of discretion standard in dismissal context)
- State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770 (1995) (de novo review for underlying legal issues on appeal)
- Wickland v. American Travellers Life Ins. Co., 204 W.Va. 430 (1998) (Rule 59(e) standard comparable to underlying judgment)
- James M.B. v. Carolyn M., 193 W.Va. 289 (1995) (Rule 59(e) standard in West Virginia context)