*1 unfair handling plaintiff-teenager’s ments that Nationwide settling the practices. trade Because this ease before claim. granting the circuit the Court court’s ma- plaintiff-teenager When the reached 12(b)(6) motion to for failure dismiss age, against jority filed Nationwide she suit claim, there to state a isn’t lot record seeking damages Trade under the Unfair support “findings.” or contradict these Such Act, [1985].1 Practices irrelevant, “findings” Court are also the alleged that Nation- plaintiff-teenager The considering fact the the Court’s decision misrepresentations during the made wide explicit the guided terms of settle- process improperly induced settlement agreement parol and not the evidence ment agree settle- plaintiff-teenager agreement. surrounding signing of Nationwide, Upon cir- ment. motion plaintiff-teenager’s cuit court dismissed the said, respectfully I concur. That otherwise 12(b)(6) complaint Rules under Rule Procedure, concluding that had Civil she a claim the settlement failed state because
agreement previously signed by plaintiff- specifically
teenager released Nationwide
any during pro- misconduct the settlement cess. facts, majori- I support Based on these ex rel. Darrell STATE West ty opinion’s to affirm the circuit decision Jr., McGRAW, Attorney General, V. plaintiff-teenager’s court’s dismissal Below, Appellant, Plaintiff against plaintiff- The complaint Nationwide. teenager the advice and consent of her —with litem, parents, guardian ad and the INC., SERVICES, et TELECHECK plainly Nationwide from released court — and Below, al., Appellee. Defendant liability Prac- all under the Unfair Trade No. 30731. plaintiff-teenager tice Act. could have The language releasing “bad insisted Appeals Supreme faith” Nationwide be removed claims Virginia. agreement, she her from the but neither nor representatives did so. The briefs of Submitted Feb. 2003. why parties in no presented this case reason May Decided plainly-worded now be release should plaintiff-teenager a set aside allow the apple.”
“second bite at the point be noted
One other should about dicta, majority
majority’s opinion:
opinion “no indicates that the Court found misrepresented
indication Nationwide policy provisions relating to
the ‘insurance underly-
coverages’ during time that the agreement was and settlement release
negotiated adopted parties in this majority opinion goes con- on to
case.” guardians could lia- ad litem face
tend they get the
bility malpractice “fail[ ] if if infant claimants” we policy [ ]
full limits argu- accept plaintiff-teenager’s
were plaintiff- complaint, plaintiff-teenager’s and the plaintiff-teenager against tire also filed suit part teenager the circuit seeking dam- did not additional tort-related tortfeasor ruling. part ages. court’s The circuit court dismissed *3 Attorney Googel,
Norman Assistant Gen- General, Miles, eral, Deputy Jill L. Charleston, Appellant. Jacobs, Paul, Esq., Esq., M.
Niall A. Bruce Charleston, Battle, Spilman Thomas & Appellee.
STARCHER, C.J. that a circuit
In this case we conclude ruling applied an standard erroneous for a on a protec- in a consumer We the case for tion case. remand relief. on the merits I. Background
Facts & 4, 2000, Attorney December Gener- On action under 46A-1- al filed an seq., et West Consumer (“WVCCPA”) al- Act and Protection Credit Services, leging appellee, Telecheck (“Telecheck”), corporation, Inc. national unfair, illegal, deceptive engaging in (“UDAPs”) Virgi- practices acts or complaint nia. per- court to asked the prohibiting future manent by Teleсheck. The Gener- UDAPs penalties, sought award of civil al also consumei’s, attorney fees restitution and costs. serves over
Telecheck advertises 228,000 person nationally. aWhen clients pur- personal pay for a presents a check that has a contract with chase at a store Telecheck, electronically transmits the store Telecheck; Tele- information on the check seconds) replies (apparently within charges; check sumers to fees further collect- “guarantee/no guarantee” response, with a by electronically debiting checks ac- “neg- on or not based whether Teleeheek has counts of consumers properly without their ative information” the check writer. consent, verified and improperly charging debiting; fees for such eon- harassing response “guaran- If the from Telecheck phone threatening sumers and with tee,” accepts then —if the store the cheek and letters, collect on cheeks. The subsequently the cheek is dishonored Attorney General also claimed that Tele- check”) (i.e., bank pay “bad will —Telecheck negative check’s database is effect a “de- check, the store the amount and obtain store, regis- list” adbeat and that has not assignment check *4 as a agency” required by tered “collection proceeds try Telecheck then to collect W.Va.Code,47-16-4 [1973]. amount of the from the check check writer. response If the Attorney Teleeheek is “no with The filed his com- guarantee,” accept plaint copies the store free to fifty remains complaint consumer check, (with attachments) but will not Telecheck reimburse identifying forms instanc- store for the amount of the check if it is alleged by involving es of conduct Telecheck proceedings dishonored. The evidence in the Virginia Attorney consumers that the ordinarily below showed that a store will not General claimed fit within foregoing cate- accept a check that will guar- Telecheck not gories alleged UDAP conduct. charges antee. Telecheck merchants various Teleeheek filed motion dismiss fees for its services. Attorney complaint. General’s The circuit Attorney complaint alleged The General’s initially court denied the motion dismiss that places keeps Teleeheek consumers’ an Attorney order that sustained some negative its names information database legal arguments. General’s basic The court circumstances when Telecheck knows or order, then withdrew that and issued a more through diligence reasonable should know denying limited order —still the motion previously did consumer not write dismiss, reserving but legal issues in the check; previous bad bad that check was case. theft, forgery, the result or lack of authori- ensued, discovery Limited two followed zation; or previously that a written bad evidentiary hearings, February on 9 and subsequently check cleared or the account 6, 2001, April where seven consumers was otherwise that satisfied —and this con- representatives two of Tеlecheck testified. unfairly duct causing Telecheck cer- order, The court thereafter entered annoyance tain consumers and inconvenience May 2001, denying Attorney on Gen- accepted by when their cheeks were not request injunctive eral’s due to stores Telecheek’s inaccurate informa- Attorney lief. It this order that the Gen- tion. appealed eral has to this Court.1 Attorney The General also claimed that denying circuit court’s At- The engaged Telecheck had in other UDAP con- torney General’s for a duct, including: adding illegal and excessive contained, alia, following inter charges service when on collects checks statements, findings, and conclusions: guaranteed; re-presenting that it has checks alleges Attorney banks when Telecheck knows or should junctive know necessary that there are not sufficient funds relief is Tele- because accounts, thereby subjecting engaged pattern practice consumers’ eon- Check apparently notify 1. The circuit court did not al court returned the case state on parties while, May 23, 2001, of this order until holding Mean- November State's sub- May on Telecheck removed the stantive claims Telecheck were based court, theory case federal law, they although state referred to standards of General had invoked federal law; conduct also forth in set federal and also by asserting that Telecheck was "consumer filed had event its removal reporting agency” as defined the Fair Credit petition untimely. Act, Reporting 15 U.S.C.A.Sec. 1681. The feder- industry pattern prac- established violating Consumer the West (hereinafter violating “the tice of the Act. Act Credit Protection Act”), testimony tice (1999), ... [is] violating et engaging W.Va.Code Section seq. The Court FINDS presented met the Act. in a pattern burden thus far o/[sic] 46A-1-101 TeleCheck proof from the prac- proceedings, that TeleCheck ployee of his or her evidence 10. An likely [*] engaged in an act outside the at [*] allegation engage employment is [*] point in, that a TeleCheck em- pattern [*] Ht engaged practice enough scope [*] in,
[*]
[*]
[*]
[*]
Hi
Hi
violating the Act.
aforementioned,
Based
FACT
I. FINDINGS OF
hereby
does
DENY the
not met
1. The
General has
Preliminary Injunс-
Motion for
General’s
preponderance of
its burden to show
[emphasis
throughout].2
tion.
added
in a
evidence that TWV TRS
two
makes
violating the
pattern
practice
[sic]
*5
arguments.
basic
Act.
Hi
II. CONCLUSIONS OF LAW
[*]
Hi
H:
H:
Hi
or
First,
practice”
circuit court
standard
Attorney
erroneously
General
used
preliminary
argues
a
“pattern
context,
junction
and that
should there-
we
sis
Hi
Hi
Hi
sis
Hs
denying
fore vacate the circuit couit’s order
Attorney
request for
4. The
General’s
injunctive relief.
preliminary
injunctive
upon
asser-
based
Second,
Attorney
argues that
engaged in a
defendants have
applied the
if the circuit court had
correct
alleged wrongful
“pattern
practice”
standard,
preliminary
should
conduct.
have issued. Therefore
Gener-
to
The
General has failed
5.
asks
to order the circuit court
award
al
us
introduce sufficient evidence
establish
preliminary
with the
accord
cause
believe
TeleCheck
reasonable
request.
General’s
in,
in,
likely to
engage
or is
practice.
pattern
agree
o/[sic]
with
We
point.
point,
On
howev-
the first
the second
Hi
Hi
Ht
Hi
Hi
Hi
er,
proceedings
we
that further
re-
conclude
testimony re-
finds the
injunctive
lating
relief would
complaints
by Darla
garding
filed
judicial
contrary
the principle
econo-
be
Cavender,
Hodges,
and Rebecca Sev-
Julie
Therefore,
my.
circuit court’s
we vacate the
1)
erino,
of:
to establish isolated incidents
pro-
case for further
order and remand the
accepted
by TeleCheck
its
deviations
ceedings relating
permanent
2)
practices
procedures or
TeleCheck
lief,
findings
holding that
and conclusions
beyond
employees acting
scope
of their
by the circuit
order
reached
employment
is not
to estab-
but
sufficient
denying preliminary
relief are
cause to believe TeleCheck
lish reasonable
injunction con-
applicable
in,
in,
likely
engage
engaging
text.
pattern
violating
Act.
practice
8. The fact that errors
occurred
II.
48,000,000
handling
checks
the course of
Review
Standard of
past
Virginia
over the
the State West
matter,
up
we take
years,
of com-
As
threshold
four
based
the number
TeleCheck,
argument
this Court does
plaints
has not Telecheck’s
thus far
use the
meant
in all instances to
courts
uses the
phrase "pattern
order
phrases "pattern
See discussion at
and also
note
"pat-
practice,”
“pattern
practice,”
practice.”
infra.
the court
tern
We will assume that
practice.”
jurisdiction
legislature;
not have
to review
amount
increased
interlocutory
denying
court’s
the At-
civil
in equity;
cases
in controversies con-
torney
land;
for a
cerning the
title or boundaries
injunction.3
warranto,
proceedings
quo
habeas cor-
jurisdiction,
Secondary School Activities Commission v.
Johnston
of a court to
Wagner, 102 S.E.2d
al
(1958).
(1901).
Const.,
states
We have stated that:
tion in civil eases at law where the matter
beas
from three sources —the constitution of
original jurisdiction
so-called inherent
mon
[t]he
certiorari.
[t]he
power
power to hear
The court shall have
controversy,
ex rel.
that:
state;
law,
art.
supreme
corpus,
“jurisdiction”
“Jurisdiction is the inherent
“There are numerous definitions of
is
VIII,
from which emanates some of its
*6
scope
Hunter,
the substance
principally
decide
Summerfield
mandamus,
see. 3
court of
of this Court’s
legislature;
exclusive of interest and
power.4
case.” West
of
of this Court comes
S.E.
determine
set forth in W.Va.
proceedings
appeals
appellate
of all
prohibition
(in
School
61 W.Va.
not
“final
(1907)
834,
that:
argues that
Court
judgment,” Telecheek
[W.Va.
concluding part
jurisdiction
ruling.
no
to review that
Const.,
8,
Legislature
art.
is
3]
sec.
creating
range in
addi
given an unlimited7
However, as set forth in the Constitu
[However,
jurisdiction.
appellate
tional
foregoing authori
explained
ties,
jurisdiction
defines and secures
t]he Constitution
scope
of this Court’s
right
in certain
it
Constitution
litigants
principally
of review
forth in the
set
self,
power
respect
with
eases,
Legislature’s
Legislature cannot abro
which the
jurisdiction
appellate
to this
is addi
Court’s
gate
abridge....”
tive, not subtractive or restrictive.
W.VcuCode,
argues that
58-5-1
jurisdiction”
“the
prohibits
“Appellate
[1998]8
reviewing
court
correct error
appeal.
the circuit court’s
instant
Because
sion” to
nn. 3 & 4.
rel Allen
exceptions
ion,
interlocutory
456
W.Va. at 292-93 nn. & 456 S.E.2d
stitutional
former
77,
ble
Subsequently, Wheeling
We
nee, 76 W.Va.
diction as
empower
United Fuel Gas Co.
*7
W.Va.Code,
judgment
The defendant in criminal action
parties upon
viction obtained
ment of
circuit court that there is
delay
“Unlimited” is
supreme
to
rior
as to
any
entry
must
appellate
late
ing
add
need of
jeopardy protections).
S.E.
84
A
By
S.E.2d 16
some
James
he
jurisdiction
been a conviction or which affirms
judicial tribunal.
circuit court
party
(1994),
appellate jurisdiction
criminal convictions
one or more but fewer than all claims
W.Va.Code,
relate
of
recognized
recognize this Court's
v.
supreme
recognized
judicial proceedings,
judgment
judicial proceedings begun in an infe-
any
plain
Bedell,
to
comprehensive
jurisdiction"
court
Earlier, writing separately in State ex
includes number
M.B.
of
to a civil action
58-5-1
upon an
Legislature
Justice
tire
orders
(1995),
circuit court or from
terms of
"civil
of "such other
v.
(1914).
of
is limited to controversies
court of
"finality”
193 W.Va.
express
58-5-1
constituting
445
v.
County
Leone Medical
son
Bd.
a trial
County
v.
proceeding.”
court
of Educ.
Jefferson
Cal.,
Ass’n.,
61, 64,
Bd.
Education
15,
22
Cal.Rptr.2d
94
Cal.4th
183 W.Va.
393 S.E.2d
(2000).
(1990) (circuit
660, 666,
191,
P.2d
653
granted preliminary
995
195
Constitution,
VII,
injunction
pro
art.
sec. 3
work stoppage;
associa
“appellate jurisdic
injunction
vides that
tion appealed,
upheld); Syllabus
this Court has
11,
Washington
Stuart v. Lake
equity.”
tion” over “civil
lan
Point
Realty
cases
This
627,
Corp,
guage
power
does not limit this Court’s
to
141 W.Va.
In addition to the exercise of discre- jurisdiction tionary appellate vigor- inter- dently predicted review that Telecheck would Broadwater, temporary bition. considering locutory grant of cal 1938 also (1997) (prohibition on occasion reviewed (prohibition granted requiring dissolu- See, orders preliminary Waters, petitions e.g., State ex rel. U.M.W.A. W.Va. regarding seeking relief, injunction); to review court’s such orders preliminary this Court writs of S.E.2d 489 Truby v. S.E.2d prohi- Lo- or junctive relief. review tionary jurisdiction the issue of this Court’s exercise of W.VaCode, ously resist This of the order hypothetical was not a “final any suggestion the fact that situation granting preliminary review would judgment” per illustrates orders preclude our preliminary regard- discre- why in- temporary injunction); preliminary tion of Ashland Oil nicety, simply not or an lief is technical Kaufman, 181 W.Va. (1989) (writ aspect granted stop procedural role of prohibition arcane injunction).11 judicial If this did branch. Court not have enforcement of orders, рower poten- such review Moreover, the contention Telecheck unfairly tial a circuit court to wreak power of this review the circuit Court cannot hardship party entirely on a would be almost preliminary in- regarding court’s decision jurisprudential Nothing in our unchecked. junctive flies in the the instant case history suggests that such is or situation common face of fundamental fairness and Moreover, this should be the case. Court’s For what if circuit court had sense. important- to review such orders enjoin preliminarily decided Telecheck ly public policy at advances set forth it company such a fashion believed Cmst., Ill, 17, guaranteeing art. W.Va. sec. reasonably could not conduct its business open of this shall “[t]he Courts Virginia? can be such a there ...,” meaningful and makes fundamental little would be before doubt (if hours), guar- process due of law that is days asking fairness and within Court Ill, Const, art. 10— stay that we and reverse the circuit court’s anteed sec. request for of a courts have held that orders Whether a review "Numеrous state dissolving, refusing interlocutory regarding granting denying, ... circuit court's preliminary injunctions temporary junctive styled petition appeal dissolve for relief is modify, appealable [as are orders that prohibition may may are] a writ of as a amend, injunc- or refuse to amend significance given practical in a case. (cita- Injunctions 42 Am.Jur.2d tions.” Sec. procedures principles the different omitted). tions roughly with the two forms of review associated correspond to be to the different issues tend Although ordinarily speak this Court’s with the two kinds of review. associated jurisdiction” "original with our in connection proceeds expe- prohibition, this Court in more prohibition, to issue writs of constitutional and on a record limited to the dited fashion reviewing stated that in the action one pleadings presented; granting whereas tribunal, judicial of a lower "the of such issuance petition appeal, of a a record not, strictly speaking, an exercise of a writ ordinarily prepared, procedure and the takes jurisdiction, only original after a suit issues largely longer. ones of law Where issues ...*** entered in an inferior court has been *9 clearly erroneous actions of the court below pure not] it an exercise of [while does constitute asserted, may prohibition appro- be a more ly original jurisdiction to no more can it be said interlocutory priate to review of an method seek is, jurisdiction; appellate of be an exercise regarding injunctive relief. But determination however, protects by a means which a court its present, where a factual record substantial jurisdiction appellate The historic use of [.]*** where the issues for review are more nuanced by prohibition directed writs of mandamus as lower and fact-driven—such court’s exercise appellate an to an inferior court been balancing equities of discretion in revisory appellate power over the inferi- —then exert the appropriate. more In tire route of Carpentertоwn Coal Coke Co. v. or court.” & 94, 426, this Court has the discretion to not Laird, 98, (1948). either 428 360 Pa. 61 A.2d jurisdiction Bd., to review the lower supra exercise its (stating See v. Medical also Leone disfavoring "piece- And our of court's action. jurisdiction” low "appellate to correct errors . of review of the actions lower courts supervisory meal” er of writs courts includes use strong jurisprudential principle. just appeals). mains and not direct
447 thereby protecting rights, appellate all of the other diction to undertake review of the protections, privileges that are afforded denying circuit court’s order our Constitution statutory injunc- com- mon law.12 meritorious. governing pre- statute the issuance of Therefore, foregoing based on the liminary injunctions under the in WVCCPA discussion, Virginia we hold that Con brought by General, cases
stitution,
VIII,
3,
grants
article
section which
W.Va.Code, 46A-7-110 [1974]:
appellate jurisdiction
this Court
of civil cases
jurisdiction
equity,
grant
includes
of
respect
With
to an
brought
action
appeals
interlocutory
enjoin
hear
from
orders
chapter
violations
or uncon-
relating
circuit courts
agreements
scionable
fraudulent
un-
temporary
conduct,
relief.13
attorney general
Telecheck’s
conscionable
argument
juris-
that this
may apply
Court does not have
appropriate
to the court for
13. The
Haines
this statute
Hosp. v.
W.Va.
members of
injunction
rel. Doe v.
na);
with
Slater,
Blue Cross Blue Shield
lar
Code,
litigation.
view
substantial
5-5
a "liberal view of
especially
aside default
Court's
injunctive
action
cree
S.E.2d
preserve judicial economy
igas,
ders
though sparsely
(order
690,
(2001)
(1995) (order denying
refusal, may
may thereupon
the orders entered in the
shall refuse to
and the
or to the
This Court's
order);
When a
[1923],
appeals,
temporary relief
respondent,
W.VaCode,
46A-6-101
provides that
of
shall be “liberal-
provisions
the
46A-6-104
proceed-
pending final
determination
however,
shall not
ly
[it]
be
construed
ings.
If
court finds after
practices
prohibit acts or
which
construed to
respondent
upon notice to the
held
development
in relation to the
are reasonable
cause
believe
is reasonable
there
preservation of business or which are not
likely
is
engaging in or
respondent
”
injurious
....
public
interest
See
sought
engage
in conduct
Inc.,
McFoy
Amerigas,
generally,
v.
170
strained, may grant any temporary
relief
(1982).
W.Va.
295
16
We have
S.E.2d
appropri-
restraining
it deems
or
that:
stated
ate.14
[WVjCCPA
pro-
purpose of the
Impe
Point 1 of State v.
Syllabus
In
unfair,
illegal,
tect consumers
346, 472
Marketing, 196 W.Va.
rial
practices by providing
deceptive acts or
an
(1996),
792
stated:
we
would
for consumers who
avenue
reviewing
exceptions to
find-
difficulty proving their case
otherwise have
ings
support-
of law
of fact and conclusions
more traditional cause of action.
under a
prelimi-
ing
granting
temporary
Runyon
ex
v.
Ponti
State
rel. McGraw Scott
nary injunction,
apply a
we will
three-
ac-Buick,
770, 777,
461 S.E.2d
W.Va.
pronged
standard of review.
deferential
(1995).
516, 523
granting
the final order
We review
W.VaCode, 46A-
In accordance with
and the ultimate dis-
[1974],
7-110
the issue before the
position
of discretion stan-
under
abuse
was
cоurt was whether
there
reasonable
dard,
Corp., 168
West v. National Mines
engaging
was
cause to believe that Telecheck
(1981),
285 S.E.2d
W.Va.
likely
engage
decep
in or
unfair or
underlying
the circuit court’s
we review
alleged by
practices
Attor
tive acts or
clearly
findings under a
erroneous
factual
ney
found such
General.
If
trial court
standard,
questions of law
and we review
cause,
grounds
then the court had
reasonable
4, Burgess
Syllabus
de novo.
Point
injunction.
appropriate
of an
issuance
Porterfield,
Imperial
Syllabus Point
Mar
See
(1996).15
(1996).
keting,
Under the of request prelimi- scheme WVCCPA, then, repeated nary injunction, the “course of viola circuit court used a applicable prelimi tions” test is not standard that was introduced and advocated nary by context —but rather Telechеck.18 Unlawful Practice and Grievances: Disciplinary Board v. Virginia Lawyer Disciplinary opposition Rules and (W.Va. used resistance they negligence any appropriate torney general may granted by an issue of ed.) for inclusion able cause cases closed rights granted by Investigative Telecheck’s counsel See Procedure for Committees on Additionally, Whenever the persons persons phrase "pattern also, concerned isolated Fair lawyer disciplinary Regulations Housing e.g., attorney has been denied this article and such denial raises general public importance, within Panel the full believe malpractice, W.Va.Code,5-llA-15(a) where attorney general Act): pattern Sims, commence such concerned. (2002); began Ch. article, in a enjoyment past court, errors for a the discretion action is any person pattern practice” his cases, five Chapter and in the West Rules, a civil [emphasis presentation practice years Legal judgment has reason- see warranted, any practice any group reopened III, action in see Bar because Lawyer Ethics, the at- [1992] group of the rights count been add- 18.Telecheck junction if it Telecheck hand. was a standard or not address practice conduct occurred, also anyone's duct conduct or the result of a technical clusory W.Va.Code, they conduct that was was an "unfair or each of the enough that were 20 infra. type use of had base vigorously Telecheck did not the standard allegedly illegal alleged alleged by Attorney recitation occurred, of behavior ... General asserted in his General has received ... definition.” We note that Telecheck their illegal. separately did ] types 46A-6-104 saying That’s additionally argues asserted that vigorously dispute number of the allegation allegation disputed alleged by was not a regular may alleged deceptive identified circuit court’s only conduct— be defended because dispute pattern that it's a whether some of the slip-up. was made—for each [were not conduct occurrence, "complaints some statutory language, (i.e., act or specific types General, General had ever isolated incident that some of the complaint other only "conduct On pattern practice numerous complaint such practice.” as a con- the other although conduct, that the see note court’s XYZ con- did *12 proceedings discussion, manded for on the merits hold foregoing we on the
Based injunctive permanent relief.21 issuing a statutory standard that 46A-7-110 preliminary [1974] —whether under “there is reason- W. Va. Code, Order Vacated, Remanded. respondent is to that able cause believe concurs. Justice DAVIS likely engage in conduct engaging in or is to by Chapter not [prohibited 46A]”—does MAYNARD concurs. Justice requirement there first be that clude the DAVIS, J., concurring, part, “pattern practice” of violations proved a dissenting, part. conclude the statute.19 We “pat- hinging its on a decision erred General, Attorney state this practice” standard.20 tern McGraw, Jr., appealed from Darrell V. denying his
circuit court order injunction against Ser- preliminary Telecheck IV. vices, actually addressing its Inc. Prior merits, majority opinion examined Tele- Conclusion had no contention that this Court check’s in the as this action was Inasmuch filed appeal jurisdiction to hear an from an order al- year significant and a record has injunction. preliminary ma- denying a made, ready we re- conclude been jurisdic- jority rejected opinion Telecheck’s pre- manding proceeding for a novo de argument and concluded that tional judicial liminary relief would be wasteful of jurisdiction to an from hear circuit court injunction. The order of the denying preliminary resources. I an juris- regarding majority resolution of concur in the reversed, challenge. is re- dictional case vacated 19.The Dictionary 46A-6-104 common WVCCPA, complaint) result of “bona fide errors.” result of a "bona fide error of Code, is a priety ror. ...” adapted to аvoid make does not separate fense has Moreover, order to that conduct that "habitual 101(8) an unfair illegal illegal violate occurred, the maintenance defense that might 46A-6-104 no of the circuit court’s conclusion The use of the the effect that ruling Id. "practice.” meaning include errors or mistakes of "act,” "act” and action or this is a defense means [1974] have violated the the WVCCPA the conduct Because and the UDAP claims made relatively complex provides that certain conduct applicability on that issue. General also without deceptive [1974] Thesaurus, is relevant would otherwise (and performance.” any was not done in this of the location of this "practice” proving any disjunctive may necessarily such violation procedures if it is word vel non act or conduct only be challenges W.Va.Code,46A-5- American Attorney WVCCPAwas the fact notwithstand- violation of unclear, done "practice” scheme after a any practice”). its own terms term also Oxford this seсtion by proving reasonably a violation event, Telecheck General's was the proving "or” to law Edition finding or er- by case. Desk pro- de- A 20. The circuit court 21. To Bureau permission to proper checks area by permitting not before pears circuit court alleged by ings subject consumers cludes sumer garding illegal, lecting, Our instructions to conduct liminary 1989). good. Additionally, about likely unfairness about protection unfair or without undue burden or risk. information about whether of UDAP debt charges, any relief, provide perfectly stage. Lockport, whether much us. We observe that Telecheck clearly requirements withdrawing form of their did collection, further occur, do so—is but to businesses in the not scrutiny. deceptive General— misleading laws. clear: this Court credit-worthiness, which in- have a valuable commercial service rule on these also the lower court are to proceedings Inc., or whether it constituted proceed dissemination of informa- conduct See, funds did also conduct. Because including right е.g., applicability not make letters, without verifiable F.2d clearly heavily accept had occurred or specific like Pipiles relating issues, be their checks is not adding im- double-col- protected regulated any personal v. Credit (2d they conduct of con alleged proper acting relief. find- pre- Cir. are ap- *13 reviewing pre- Although “pattern” when the issue term statute. the was majority opinion on appeal, statute, sented the con- not in “practice” the the word was applied cluded that the circuit court the Therefore, dispositively used in the statute. wrong legal majority opinion, standard. The the circuit court’s order should have been through a in terse statement footnote has construed mean that there was insufficient presented the tossed aside issue on of an unfair deceptive evidence act or proceeding and remanded the case for a “practice”; and there was insufficient evi- permanent injunction. claim a for I the be- an deceрtive dence of unfair or or “pat- act majority opinion incorrectly that the lieve tern” with being surplusage. the latter analyzed law facts of this the and case. For below, the reasons out I set dissent. Majority’s Disposition Illogi- B. The is Legally Wrong cal and A. The Circuit Court Found Insuffi- Deceptive cient Evidence of Prac- I agreed majority if with opinion Even the tices phrase the circuit court’s use of the 46A-6-104, § Under W. the At- Va.Code fatal, “pattern practice” I would not torney present General had to some evidence join disposition case chosen the “in engaged decep- unfair or majority. practices!.]” acts or The tive circuit court prove found presented the evidence did not sought specific The General an deceptive “pattern unfair or this Court. The that, practice.” majority opinion The found sought provid- find it have Court using phrase “pattern practice” prelimi- ed sufficient a evidence to warrant order, its applied wrong the circuit court nary injunction, and therefore this Court legal According majority standard. to the should Franklin relief. See D. opinion, court should deter- have al., Cleckley, Litigation et Handbook on West mined whether there was evidence that Tele- Procedure, Virginia Rules of Civil deceptive check “in unfair or acts or (“[W]hen a circuit court refuses award practices!.]” majority made dis- preliminary injunction Supreme simply tinction where there none. is may, upon proper shoiving, award ‘pattern’ ‘practice’ “[T]he terms and added.) preliminary injunction.”). (Emphasis meanings. common ‘Pattern’ is as ‘a defined Alternatively, sought regular, mainly way unvai’ying acting have this Court and remand reverse the case doing,’ ‘practice’ frequent defined ‘a hearing preliminary for another on the ” action; habit; or usual usage.’ junction request purported under the correct Russell, Wash.App. 848 P.2d 750 legal standard. (1993) (quoting Webster’s New World Dictio- majority (1976)). opinion, unprecedented words,
nary In other manner, has of the determined the issue meanings, their under common terms preliminary injunction by-passed, pattern practice can be interchangeable. true, directly being quite proceed That it the trial court should to the becomes evident relief, majority opinion disingenuous permanent injunction. issue of This attempt (indeed show that court the circuit requested which was not until the applied wrong legal standard. attorney decision this case no could have relief), imagined illogical seeking such majority attempted Had the to be “fair” in has no in law. I basis have not discovered it would have reasoned Anglo-American case the annals of “pattern” surplusage. term was harmless jurisprudence, appellate wherein an Unfortunately, majority opinion was de- sponte stripped litigant right has sua predestined termined to reach a outcome. prelimi- on a have a Consequently, majority opinion welded nary injunction, pro- case to phrase “pattern practice” together ordered the directly show that is not applicable found in the ceed 65(a)(2) 65(a)(2). “any Rule Under proceeding.1 upon application received evidence Obviously, majority opinion a defi- had be admis- which would by-passing reason nite becomes trial on the merits sible That reason injunction hearing in this case. trial and need not part record on the following language from the is veiled Cleekley, Liti- repeated upon the trial.” opinion: significant record majority “a Rules *14 gation Handbook West made, already that re- we conclude been Procedure, at 1022-1023. As result Civil prelim- proceeding novo manding for a de technically majority’s disposition, there judicial re- inary would be wasteful of injunction hearing. preliminary no been words, sources.” In other rely on Consequently, cannot Rule Telecheek huge apple and bite at the General had 65(a)(2) having reprove and avoid issues Therefore, majority decided failed. already proven preliminary were by leav- simply assist injunction aside proceeding that was tossed injunction unre- preliminary issue by majority. parties litigatе ordering solved injunction This is issue. concur, part, foregoing, I view the disposition. disingenuous dissent, I part. am state authorized majority’s logic to turn decision sepa- in this Maynard joins that Justice me because, necessary upside down was the law opinion. rate legal stan- even under the so-called correct dard, have been General would injunction preliminary
denied remand. is, absolutely in the were no facts
That there
“significant properly showed record” had established evidence improper having engaged prac- point triggers language This contained
tices. Virginia injunc- Cleekley, Litigation by-passing preliminary Handbook on West Instead of Procedure, issue, majority required Civil at 1023. other could Rules of words, the disposed sound, 65(a)(2) legally major- logical to be to be of under Rule issue ity opinion "Under have concluded issue Rules of Civil Procedure. could to, 65(a)(2) given preliminary should be consolidat- trial discretion Rule Instead, permanent injunction request by sponte parties, ed with the issue. sua 65(a)(2), logic majority out to be threw order the trial of the action on the merits claim be with the ordered advanced and consolidated injunction.” can. application for tossed trash