*1 de- is included gross revenue forth tax fraction set nominator ll-23-17(b) all Virginia Code West activity in from all business received
revenue profit regardless of whether a Virginia,
West management services
is realized. CNG’s receipts and gross fall within such
fees tax credit fraction included
should be
denominator; therefore, circuit court’s management respect with CNG’s
order
fees reversed. Conclusion
IV. foregoing, upon the the November
Based of Ham- the Circuit Court order of respect County is
son reversed numerator and de-
factors included set in West nominator forth 23—17(b). matter remanded 11— for correction of order
the circuit court of the tax credit recalculation
tax commissioner. and remanded.
Reversed Gibson, Stephanie
James DUNLAP and all
Behalf of Themselves Others
Similarly Situated, Below, Ap Plaintiffs
pellants, INC.,
FRIEDMAN’S, dba Friedman’s Jew
elers, Corporation, American a Delaware Florida, Company of Insurance
Bankers
Inc., Bankers Life Assurance American Florida, Hopkins,
Company of Alan Wil Nancy Tanoukhi, Roy Perry, Bat
liam Doe,
son, Defendants Doe Jane John
Below, Appellees.
No. 30839.
Supreme Appeals of Court of Virginia. April 2003.
Submitted 6,May 2003.
Decided Opinion of
Dissenting Justice July
Davis *2 Grubb, Group,
David L. Grubb Law John Barrett, Firm, PLLC, W. Barrett Law Brian Glasser, Glasser, LLP, Bailey A. & Charles- ton, Appellant, Stephanie for the Gibson. Pleska, P. Michel Bowles Rice McDavid Love, PLLC, Charleston, Graff & for the Friedman’s, Appellee, Inc. Woody, Spilman,
Charles Thomas & Bat- Charleston, tle, PLLC, for Appellees, Co., American Bankers Insurance et al. ALBRIGHT, Justice. appeal by Stephanie
This
anis
Gibson and
(hereinafter
Dunlap1
“Appellants”)
James
a final
from
order of the
Circuit Court
County dismissing
Kanawha
Consumer Cred-
(hereinafter “CCPA”)
it and Protection Act
complaint
claims for failure to file a
within
applicable
period.
limitations
appeal,
Appellants
On
assert
finding
applica-
lower court
erred
that the
period
statute of limitations
ble
was one
due;
payment
from the date of the last
rath-
er,
Appellants
applicable
contend
period
four
alleged
from the date of the
violation.
History
I. Factual and Procedural
12, 1997, Appellant Stepha-
On December
purchased
jewelry
nie Gibson
an item of
from
Inc., doing
Friedman’s
business as Fried-
(hereinafter “Friedman’s”).
man’s Jewelers
jewelry
priced
tax
was
With
$949.00.
charges,”
and “other
the total amount
$1,156.62. Financing
transaction was
was
accomplished through a retail
installment
requiring
monthly pay-
sales contract
fifteen
January
beginning
ments
on
25,1999.
ending
February
With the addi-
price
financing charges,
tion of
the total sale
$1,268.84.
imposition
was
It is the
charges”
Appellants attempt-
“other
that the
challenge through
the civil action.
ed
charges”
These
included
“other
$8.55
insurance,
credit life
for credit disabil-
$22.45
Dunlap Berger,
compel
State ex rel.
the lower court's order
Court reversed
denied, Friedman’s,
(2002),
ling
Dunlap’s
Appellant
cert.
arbitration
James
claims,
Dunlap,
holding
exculpatory
Inc. v. West
ex rel.
U.S.
clauses
adhe
presumptively
123 S.Ct.
within the accounts or re- Hess, due v. 199 volving four-year loan accounts” which to (1997), instance, this Court reviewed the applies, pursuant statute of limitations numerous cases in which has this Court en Appellees statute. The further contend couraged compliance strict with statutes of application statutory language such is requiring as a means of insti “the consistent the Uniform Consumer Cred- of a tution cause of action within reasonable upon Virginia it which West Legis- 484 time.” S.E.2d at 186. allegedly provisions. lature based its The however, Where, legislature has Appellees claim Leg- that the West expressed not its statutes of limita intended islature combined various model codes to for- clarity, tion with such a goal laudable provision, mulate the current and that it is compliance Although strict unattainable. must have intended to create a statute of invariably recognized this Court has open-ended limitations distinction between unambiguous clear statutes are not sub contracts. elosed-ended also, ject interpretation,6 we have ob however, specifically does not address the served: contracts; concept Ap- of elosed-ended pellees only legislature’s assume Ambiguity connoting that the use is term doubtful- ness, meaning the term “other contracts” embraced doubleness indistinct- Thus, Ap- uncertainty elosed-ended contracts. while an expression ness used Andrews, Syl. Because installment sales contract envi- Pt. v. Crockett 153 W.Va. monthly payments, (1970). sions fifteen is a elosed- language S.E.2d "Where the open-ended ended contract rather than an con- ambiguity plain a statute clear and is without monthly payment tract in which required. fixed there no meaning accepted resorting is to be without interpretation.” the rules of Pt. Francis Co., Director, DayO. Inc. v. Div. Envtl. Protec- language 6. "Where the aof statute is free from tion, (1994). 191 W.Va. ambiguity, plain meaning accepted is to be applied interpretation.” without resort nature, only closed- has de- term in a written instrument. It been loans, finality not find due to the of such con- clared that courts ended laymen language structs, are permitted this is not to rewrite Court readily comprehend; per- nor is it able to with clar- the statute to state such conclusion obscurity or uncer- missible create ity. expressed prohibi- The Court has tainty by reading in an addi- concisely tion on numerous occasions. words. tional word or Greene, Williamson v. 200 W.Va. 718-19, (1997), instance, Andrews, this Court Crockett finding A stated: prior any at- ambiguity must be made arbitrarily not for to read [courts] “[i]t tempt interpret a statute. As the Court say. that which it not [a statute] into does syllabus point County one of stated Ohio through are not to Just as courts eliminate Manchin, Comm’n judicial interpretation words that were interpretation of “Judicial included, purposely obliged we are is warranted if the statute Legislature something to statutes add step in in- and the initial such *5 Banker, v. purposely omitted.” Banker legis- terpretative inquiry is to ascertain the 535, 546-47, 465, 474 196 W.Va. S.E.2d Likewise, syllabus point lative intent.” (1996) (citing D & R 476-77 Bullman v. Buckalew, Farley of one 195 Company, 464 Lumber (1992), 454 this further 414 S.E.2d Court (1995)). S.E.2d ambiguous “A is must explained: statute that applied.” it can be be construed before (citations Id. at 28 omit- at 490 S.E.2d Virginia reading ted). of West Code statute, rule, Our “A or an administrative 46A-5-101(l) compels that the conclusion not, guise ‘interpretation,’ under the regard with statute is modified, revised, amended rewritten.” open between and closed-ended distinction Syl. Pt. Advocate Division v. and limita agreements the statute of credit Comm’n, 182 W.Va. Public Service types two applicable tions those credit. S.E.2d clearly that four- While the statute states Meek, In Hereford applicable to year statute of limitations is (1949), “A Court stated: stat- this accounts, revolving charge ac revolving loan open ute to construction where the is counts, defined, it particularly and sales language requires interpretation used be- subjects specifically also “other consumer suscepti- it which renders cause one-year loans” to credit sales two or more constructions or of such ble of Ap period. While statute of limitations meaning doubtful or obscure reasonable court that closed- pellees and lower contend might disagree as to minds be uncertain or within credit sales must included ended meaning.” Id. at 747. at “other credit sales or consumer regarding annual We addressed statute loans,” Appellants argue that closed-end salary deputy sheriffs Law- increases purview of credit sales come within the ed County County, Mercer son v. Comm’n four-year limi which the statute of “sales” to applicable. pre Both tations is sides have question was found that the statute sus- compelling persuasive arguments sented constructions, differing ceptible to to the ex- support respective of their theories. Even salary an annual tent that the term “receive however, if, were convinced of the this Court mean an increase to increase” could either another, theory superiority of this over salary part or an in- become of the annual judgment for cannot its own Court substitute salary. in addition to the annual Id. crease re legislature significantly upon at 81. Based If, instance, this Court write the statute. finding that the statute could be read ra Court’s Appellees that the most agreed with the persons to have reasonable different dealing with of limi method of tional language the stat- meanings, found the permit four we tations issues would be to loans, ambiguous. Id. longer ute open-ended due to their Similarly, C. Liberal of Statute inclusion. party Construction consumer who is longer-term, ato transaction closed-ended is Having Virginia found 46A- West Code also entitled to maintain an action within one 5-101(1) ambiguous regard applicable payment. of the due date the last periods because it is susceptible differing interpretations, we C. Conclusion may proceed construe legislative Runyan, intent. In Scott review, thorough After this Court con- specified Virginia Court Code Virginia cludes that West Code 46A-5- liberally should be construed 101(1) liberally remedial statute to be as a explained: remedial statute. We unfair, protect construed to consumers from nature, clearly “Where act remedial illegal, deceptive acts. face of the liberally we must construe the statute so as ambiguity found in that a consumer accomplish purposes to furnish and all the party who is to a closed-ended transac- intended.” W.Va. at 461 S.E.2d at tion, resulting from a sale as defined in West purpose protect 523. “The the CCPA to 46A-6-102(d), may bring unfair, illegal, deceptive consumers from any necessary action within the four- either practices by providing acts or an avenue of year period commencing with the date of the relief for who consumers would otherwise transaction or within one of the due difficulty proving have their case under a payment, date of the last whichever is later. more traditional cause of action.” Id. upon Based foregoing, we reverse the
Furthermore,
explained
this Court
decision
the Circuit Court of Kanawha
Appalachian
Dept.
County
Power Co. v. State Tax
and remand this matter for further
*6
Virginia,
West
proceedings
with
opinion.
consistent
this
explicatory
legislative
absent
Reversed and remanded.
statute,
history
for an
a court
construing
a
such
must consider
the
Justice,
STARCHER, Chief
concurs.
“overarching design
of statute.”
Id at
DAVIS, J., dissenting.
438, quoting
Runyan,
at
Scott
401
Statutory
B.
Construction
Service, Inc.,
Community
PLLC v.
Antenna
71,
(2002)
77,
793,
211 W.Va.
799
ambiguous
A
if it
statute is
“can be read
(citations omitted),
said, “a
when we
well
persons
reasonable
to have different
statutory
established cannon of
construction
meanings-”
County
Lawson v.
Comm’n
against
counsels
... an irrational result [for]
77, 81,
County,
Mercer
199 W.Va.
483
“duty
‘[i]t
of this Court to avoid when
77,
(1996)
curiam). However,
(per
81
S.E.2d
possible
ever
a construction of a statute
simply
parties disagree
because “the
as to
absurd, inconsistent, unjust
leads
meaning
applicability
or the
of [a statuto
’ ”
explained
unreasonable results.” We
provision
ry]
does not
render [the]
itself
ejusdem
generis
Syllabus
rule
point
4 of
doubtful,
provision ambiguous or of
uncertain
RSA,
Ohio Cellular
Partnership
Ltd.
v.
Recht,
meaning.” Habursky
or unsure
v.
180
Works,
416,
Board
Public
198 W.Va.
481
128,
(1988)
132,
760,
W.Va.
764
(1996):
S.E.2d 722
(internal
omitted).
quotations and citations
“
statutes,
‘In the construction of
where
ambiguous
A
simply
statute “is not
because
general words follow the enumeration of
interpretations
different
are conceivable.”
particular
persons
things,
classes of
Keller,
267, 276,19
v.
143
State
Wash.2d
P.3d
words,
general
under the rule
construc
(2001) (footnote
omitted),
cert. de
ejusdem
tion known
generis,
as
will be
nied,
534 U.S.
S.Ct.
applicable only
persons
construed
(2002). Rather,
L.Ed.2d 972
a statute must
things
general
of the same
nature or class
subjected
analysis
be
under traditional
enumerated,
as those
an
unless
intention
statutory
rules of
construction to determine
“
contrary
clearly
shown.’ Point
if a
ambiguous
statute is
‘[r]ules
Londeree,
Syllabus,
Mayor,
Parkins v.
interpretation
purpose
are resorted to for the
1051[,
(1962)
].”
resolving
Habursky,
Co.,
pt.
The Vector
Inc. v. Board
tive. We the rule statuto- either facts in the or the law aid a statute ry absurdity VI, limitations, Communications Charter it is established nevertheless absurdity, produce such [must] will not will receive liberal that such enactment rel. Syl. pt. part, their man- State ex [sic] in furtherance of made.” construction Sanders, object, Hosp. to the same [sic] entitled Town
ifest are Charles Gen. statutes, ought (internal (2001) not and respect as other ” Id., away.’ omitted). explained Having so quotations and citations omitted). (citations also See S.E.2d at stated, majority agree I the on one do with 135, 139, 25 Carpenter, 101 U.S. Wood 46A-5-101(l)’s § point. Va. invocation W. (1879) (“Statutes limitation L.Ed. [of in article six the as defined “sales are society and are vital to welfare the Act]” Protection Credit They law. are found in the favored judicial ambiguity requiring reso- creates an enlightened juris- systems of approved in all Unfortunately, majority the failed lution. by promote repose giving prudence. They statutory apply our rules of con- properly stability An security to human affairs. struction. important policy lies at founda- public their [of as defined article six “[S]ale[] activity punish They stimulate to tion. sale, “any or offer for sale WVCCPA]” Applying these negligence.”). well-estab- any goods attempt sell for cash or credit 46A-5-101(l) § to W. Va.Code lished rules for for cash any services or offer services opinion. majority’s shows flaws 46A-6-102(d) § or credit.” W. Va.Code majority’s reading W. Simply put, the (1996) § (Repl.Vol.1999). 46A- W. Va.Code 46A-5-101(l) § to an absurd leads Va.Code 5-102(d) define credit does not used majority holds in this ease that result. The open-end as or closed-end. the “sale” either party who is a closed-end 46A-5-101(l)’s However, invo- W. Va.Code has two different statutes credit transaction “sale[ as in article six” ] cation defined four-year’ period of limitation: “either 46A-5-101(l) by preceded in W. Va.Code commencing the date of the transaction open-end consumer financ- the definition year last of the due date of the within ing. Consequently, of the the use term payment, pt. which ever later.” in the article “credit” definition “sale” Maj. majority opinion Op. The fails draw 102(d) six, must be section WVCCPA in the be- the distinction set forth referring only open-end understood credit, open-end credit closed-end tween by compelled transactions-a result credit ignoring language. Fur- thus general ejusdem generis since the term ther, majority make the does preceded by six is the more “credit” article apply to four-year open-end credit limitation “revolving,” open-end specific credit term transactions, compounds it then closed-end This conclusion is reinforced transactions.3 by making one-year limita- its also error any reading of other the realization apply tion for as well. closed-end 46A-5-101(l) one- nullifies the W. Va.Code essence, majority has turned W. Va.Code year applicable to limitation “other consumer by converting head loans[,]” if or consumer because credit sales years period of no more than four any type any involving triggers of credit sale of at least open-end transactions into one limitation, the four there “partic- This four for all transactions. limitation would be no need the one construction of Va.Code 46A-5- [W. ular *9 101(1) or absurdity, for “other consumer credit sales consumer in result[s] [so] ... an ] construction, reading by the rule loans[ ]”-a foreclosed some other reasonable accrued.”). Furthermore, Such harmonization be- to article six of the tion has 3. the reference 5—101(1) § § [titled Act “General Consumer Credit Protection and 46-2- tween W. Va.Code 46A— simply if confirms that 725(1), Protection"] protec- of which consumer both relate to quality good, as to the of a an issue arises as tion, justified is because "a statute should or opposed to the terms of the consumer credit to make with other read it harmonize good, loan for the sale of the the consumer Palmer, Hosp. v. enactments[.]” Preston Mem. four-year statute of Uniform Commercial Code’s 383, (2003) 578 S.E.2d 390 189. § applies. W. Va.Code 46-2- limitation See J., curiam) (Davis, (per concurring) (citing 725(1) ("An (1963) (Repl.Vol.2001) for action pt. Ewing v. Coun- Board Educ. Summers of any com- breach of contract sale must be (1998)). ty, W.Va. cause of ac- menced within four after the against statutory nullity requiring every por- denigrated importance the of W. Va.Code 46A-5-101(l)’s Thus, § of a given and, tion effect. the provisions limitations one-year limitation doing, ignored under W. so has plethora Va.Code the of “our 46A-5-101(l) reflect[ing] decisions apply must to closed-end our commitment to en suring credit transactions such that such strictly as those at issue in time limits are fol Hess, 299, 303, this case. lowed.” Perdue v. (1997). 182, 186 Consequently, application of the above 46A-5-101(l) 46A-5-101(l)’s W.Va.Code rules W. must a Va.Code limita receive provisions “liberal construction in requires tions us find that furtherance [its] the object” establishing manifest Legislature’s two different use “sale as defined article six,” periods limitations four-year types for two different provisions limitation four-year consumer credit or only loans-a limita- was meant four-year assure that the any tion open-end consumer credit or applies any contract, limitation open-end open-end one-year loans a consumer and lim- no matter the establishing method used for i.e., loans, itation for all or other sales closed- contract, “revolving” open-end or howor end consumer credit or closed-end consumer characterized, i.e., is transaction aas “credit Thus, contrary majority’s loans. ipse to the sale,” any or type “consumer loan” other conflating open-end dixit conclusion Thus, arrangement. majority’s resort to closed-end credit finding that a closed- interpretation of liberal pro the limitations end consumer ap- credit transaction has two as a appellants’ vision remedial plicable statutes limitation under W. Va. favor is unwarranted. See Bishop Trust Co. 46A-5-101(l), I find that the law Burns, 399-400, 381 46 Haw. P.2d compels following recognition. If a con- (1963) (recognizing the rule that tax arising sumer asserts violation from “con- statute must be construed in favor of the sumer credit sales consumer loans made taxpayer only “is to be resorted to as an aid revolving charge accounts or re- construction when an or doubt accounts, volving loan or from as de- sales apparent is on the face of the chapter,” fined article six of this that is then after possible other extrinsic aids any open-end transaction that involves con- of construction available to the ambi resolve loan, open-end sumer credit exhausted”). guity have been applicable period limitations is four Finally, majority I believe by has erred years. However, if a consumer asserts “vio- affording not W. Va.Code arising lations from other consumer credit respect same statutes due other loans[,]” sales or that is closed- granting it a “liberal construction in further- end consumer or a closed-end consum- objective[,]” Johnson, ance [its] manifest loan, applicable er period (citations 192 W.Va. at year.4 omitted), “encourag[ing] promptness in- Thus, respectfully I I dissent. am autho- actions; stituting suppress[ing] ... de- stale joins rized state that Justice MAYNARD claims; mands fraudulent and ... dissenting opinion. me in this avoiding] inconvenience which result delay asserting rights from or claims when practicable Morgan to assert them.” Inc., Hosp., Grace majority has Court, unsympathetic appellants. gants consistently I am not to the come before this I will " However, highest duty judicial 'the desires[,]” exercise apply regardless personal the law personal pulls subordinate one's and one’s Gatson, Patton v. private views to the law of which we are all J., (1999) (Davis, concurring), I because guardians-those impersonal convictions *10 destroy integrity "[i]f realize that we law's society community, make a a civilized and not pursuit goal, worthy, of some we however ’ personal the victims rule." C. Hon. Tom necessary break down one of the conditions of Clark, Heritage Mr. Justice "A All Frankfurter: Powell, society.” H. decent Jefferson Who's Law," (1965) Love Who (quoting 51 A.B.A.J. Cromwell?, 74 Thomas Chi-Kent L.Rev. Afraid of Frankfurter, J.). Therefore, I remain 393, 407 (1999). my steadfast to liti- commitment that "[w]hen