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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2003 Term
STATE OF WEST VIRGINIA EX REL.
DARRELL V. McGRAW, JR., ATTORNEY GENERAL,
TELECHECK SERVICES, INC., ET AL.,
Appeal from the Circuit Court of Kanawha County
Hon. Tod K. Kaufman, Judge
Case No. 00-C-3077
ORDER VACATED, REMANDED
Submitted: February 11, 2003
Modified Opinion Filed: May 23, 2003
Niall A. Paul, Esq.
Assistant Attorney General
Bruce M. Jacobs, Esq.
Jill L. Miles
Spilman Thomas & Battle
Deputy Attorney General
Charleston, West Virginia
Charleston, West Virginia
Attorneys for Appellee
Attorneys for Appellant
CHIEF JUSTICE STARCHER delivered the Opinion of the Court.
concurs, in part, and dissents, in part, and reserves the right to file a
JUSTICE MAYNARD concurs, in part, and dissents, in part, and reserves the right to file
a separate opinion.
SYLLABUS BY THE COURT
1. The Supreme Court of Appeals has original jurisdiction in cases of
habeas corpus, mandamus and prohibition and appellate jurisdiction in all other cases
mentioned in Article VIII, Section 3, of the Constitution of this State and in such additional
cases as may be prescribed by law[.] Syllabus Point 10 (in part), Aetna Cas. & Sur. Co. v.
Federal Ins. Co. of New York
148 W.Va. 160, 133 S.E.2d 770 (1963).
2. West Virginia Constitution, article VIII, section 3, which grants this Court
appellate jurisdiction of civil cases in equity, includes a grant of jurisdiction to hear appeals
from interlocutory orders by circuit courts relating to preliminary and temporary injunctive
3. In reviewing the exceptions to the findings of fact and conclusions of law
supporting the granting of a temporary or preliminary injunction, we will apply a
three-pronged deferential standard of review. We review the final order granting the
temporary injunction and the ultimate disposition under an abuse of discretion standard, West
v. National Mines Corp., 168 W.Va. 578, 590, 285 S.E.2d 670, 678 (1981), we review the
circuit court's underlying factual findings under a clearly erroneous standard, and we review
questions of law de novo. Syllabus Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469
S.E.2d 114 (1996). Syllabus Point 1, State v. Imperial Marketing, 196 W.Va. 346, 472
S.E.2d 792 (1996).
4. The statutory standard for issuing a preliminary injunction under W.Va.
Code, 46A-7-110  _ whether there is reasonable cause to believe that the respondent
is engaging in or is likely to engage in conduct [prohibited by Chapter 46A] _ does not
include the requirement that there first be proved a pattern or practice of violations of the
Starcher, C. J.:
In this case we conclude that a circuit court applied an erroneous standard in
ruling on a request by the Attorney General for a preliminary injunction in a consumer
protection case. We remand the case for hearing on the merits of permanent injunctive relief.
Facts & Background
On December 4, 2000, the Attorney General filed an action under W.Va. Code
46A-1-1 et seq
., the West Virginia Consumer Credit and Protection Act (WVCCPA)
alleging that the appellee, Telecheck Services, Inc. (Telecheck), a national corporation,
was engaging in illegal, unfair, or deceptive acts or practices (UDAPs) in West Virginia.
The Attorney General's complaint asked the court to grant temporary and permanent
injunctive relief prohibiting future UDAPs by Telecheck. The Attorney General also sought
an award of civil penalties, restitution to consumers, and attorney fees and costs.
Telecheck advertises that it serves over 228,000 clients nationally. When a
person presents a personal check to pay for a purchase at a store that has a contract with
Telecheck, the store electronically transmits information on the check to Telecheck;
Telecheck replies (apparently within seconds) with a guarantee/no guarantee response,
based on whether or not Telecheck has negative information on the check writer.
If the response from Telecheck is guarantee, then _ if the store accepts the
check and the check subsequently is dishonored by the bank (i.e., a bad check) _
Telecheck will pay the store the amount of the check, and obtain an assignment of the check
from the store. Telecheck then proceeds to try to collect the amount of the check from the
If the response from Telecheck is no guarantee, the store remains free to
accept the check, but Telecheck will not reimburse the store for the amount of the check if
it is dishonored. The evidence in the proceedings below showed that ordinarily a store will
not accept a check that Telecheck will not guarantee. Telecheck charges merchants various
fees for its services.
The Attorney General's complaint alleged that Telecheck places and keeps
consumers' names in its negative information database in circumstances when Telecheck
knows or through reasonable diligence should know that the consumer did not previously
write a bad check; or that a previous bad check was the result of theft, forgery, or lack of
authorization; or that a previously written bad check subsequently cleared or the account was
otherwise satisfied _ and that this conduct by Telecheck was unfairly causing certain
consumers annoyance and inconvenience when their checks were not accepted by stores due
to Telecheck's inaccurate information.
The Attorney General also claimed that Telecheck had engaged in other UDAP
conduct, including: adding illegal and excessive service charges when it collects on checks
that it has guaranteed; re-presenting checks to banks when Telecheck knows or should know
that there are not sufficient funds in consumers' accounts, thereby subjecting consumers to
further fees and charges; collecting checks by electronically debiting the accounts of
consumers without their properly verified consent, and improperly charging fees for such
debiting; and harassing consumers on the phone and with threatening letters, in order to
collect on checks. The Attorney General also claimed that Telecheck's negative database is
in effect a deadbeat list and that Telecheck has not registered as a collection agency as
required by W.Va. Code, 47-16-4 .
The Attorney General filed with his complaint copies of fifty consumer
complaint forms (with attachments) identifying instances of alleged conduct by Telecheck
involving West Virginia consumers that the Attorney General claimed fit within the
foregoing categories of alleged UDAP conduct.
Telecheck filed a motion to dismiss the Attorney General's complaint. The
circuit court initially denied the motion to dismiss in an order that sustained some of the
Attorney General's basic legal arguments. The court then withdrew that order, and issued
a more limited order _
still denying the motion to dismiss, but reserving the legal issues in
Limited discovery ensued, followed by two evidentiary hearings, on February
9 and April 6, 2001, where seven consumers and two representatives of Telecheck testified.
The circuit court thereafter entered an order, on May 10, 2001, denying the Attorney
General's request for preliminary injunctive relief. It is this order that the Attorney General
has appealed to this Court. (See footnote 1)
The circuit court's order denying the Attorney General's request for a
preliminary injunction contained, inter alia, the following statements, findings, and
The Attorney General alleges that injunctive relief is necessary
because TeleCheck engaged in a pattern or practice of violating
the West Virginia Consumer Credit Protection Act (hereinafter
the Act), W.Va. Code Section 46A-1-101 (1999), et seq. The
Court FINDS from the testimony presented thus far that the
State has not met its burden of proof for temporary injunctive
relief that TeleCheck . . . [is] engaging in a pattern of [sic]
practice of violating the Act.
* * *
I. FINDINGS OF FACT
1. The Attorney General has not met its burden to show by
a preponderance of evidence that TWV or TRS engaged in a
pattern of practice
[sic] of violating the Act.
* * *
II. CONCLUSIONS OF LAW
* * *
4. The Attorney General's request for injunctive relief is
based upon the assertion that the defendants have engaged in a
pattern or practice
of alleged wrongful conduct.
5. The Attorney General has failed to introduce sufficient
evidence to establish reasonable cause to believe that TeleCheck
has engaged in, or is likely to engage in, a pattern of [sic]
* * *
7. The Court finds the testimony regarding the complaints
filed by Darla Hodges, Julie Cavender, and Rebecca Severino,
to establish isolated incidents of: 1) deviations by TeleCheck
from its accepted practices and procedures or 2) TeleCheck
employees acting beyond the scope of their employment but is
not sufficient to establish reasonable cause to believe TeleCheck
is engaging in, or likely to engage in, a pattern or practice
violating the Act.
8. The fact that errors have occurred in the course of
handling 48,000,000 checks in the State of West Virginia over
the past four years, based on the number of complaints thus far
against TeleCheck, has not established an industry pattern and
practice of violating the Act.
* * *
10. An allegation that a TeleCheck employee engaged in an
act outside the scope of his or her employment is not enough
evidence at this point in the injunctive proceedings, that
TeleCheck is engaged in, or likely to engage in, a pattern or
of violating the Act.
Based upon the aforementioned, the Court does hereby DENY
the Attorney General's Motion for Preliminary Injunction.
[emphasis added throughout].
(See footnote 2)
The Attorney General's appeal makes two basic arguments.
First, the Attorney General argues that the circuit court erroneously used a
pattern or practice standard in the preliminary injunction context, and that we should
therefore vacate the circuit court's order denying preliminary injunctive relief.
Second, the Attorney General argues that if the circuit court had applied the
correct standard, a preliminary injunction should have issued. Therefore the Attorney
General asks us to order the circuit court to award a preliminary injunction in accord with the
Attorney General's request.
We agree with the Attorney General on the first point. On the second point,
however, we conclude that further proceedings relating to preliminary injunctive relief would
be contrary to the principle of judicial economy. Therefore, we vacate the circuit court's
order and remand the case for further proceedings relating to permanent injunctive relief,
holding that the findings and conclusions reached by the circuit court in its order denying
preliminary injunctive relief are not applicable in the permanent injunction context.
Standard of Review
As a threshold matter , we take up Telecheck's argument that this Court does
not have jurisdiction to review the circuit court's interlocutory order denying the Attorney
General's request for a preliminary injunction. (See footnote 3)
There are numerous definitions of jurisdiction, the substance of all of which
is the power to hear and determine a cause. Johnston v. Hunter, 40 S.E. 448, 50 W.Va. 52
(1901). Jurisdiction is the inherent power of a court to decide a case. West Virginia
Secondary School Activities Commission v. Wagner, 102 S.E.2d 901, 909, 143 W.Va. 508
We have stated that:
[t]he jurisdiction of this Court comes from three sources _
the constitution of this state; the legislature; and the common
law, from which emanates some of its so-called inherent power.
(See footnote 4)
State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 539, 135 S.E.2d 741, 745 (1964).
The scope of this Court's jurisdictional power is principally set forth in W.Va.
Const., art. VIII, sec.3  (in part), which states that:
[t]he supreme court of appeals shall have original jurisdiction of
proceedings in habeas corpus, mandamus, prohibition and
The court shall have appellate jurisdiction in civil cases at law
where the matter in controversy, exclusive of interest and costs,
is of greater value or amount than three hundred dollars unless
such value or amount is increased by the legislature; in civil
cases in equity; in controversies concerning the title or boundaries of land; in proceedings in quo warranto, habeas corpus,
mandamus, prohibition and certiorari; and in cases involving
personal freedom or the constitutionality of a law. It shall have
appellate jurisdiction in criminal cases, where there has been a
conviction for a felony or misdemeanor in a circuit court, and
such appellate jurisdiction as may be conferred upon it by law
where there has been such a conviction in any other court. In
criminal proceedings relating to the public revenue, the right of
appeal shall belong to the State as well as to the defendant. It
shall have such other appellate jurisdiction, in both civil and
criminal cases, as may be prescribed by law.
Under the prior version of this constitutional section,
(See footnote 5)
we held in Syllabus
Point 10 (in part) of Aetna Cas. & Sur. Co. v. Federal Ins. Co. of New York6 148 W.Va. 160,
133 S.E.2d 770 (1963) that:
[t]he Supreme Court of Appeals has original jurisdiction in
cases of habeas corpus, mandamus and prohibition and appellate
jurisdiction in all other cases mentioned in Article VIII, Section
3, of the Constitution of this State and in such additional cases
as may be prescribed by law[.] [emphasis added].
(See footnote 6)
This holding is in accord with our statement in Carskadon v. Bd. of Education
of School Dist. of Keyser, 61 W.Va. 468, 56 S.E. 834, 835 (1907) that:
. . . by the concluding part of [W.Va. Const., art. 8, sec. 3] the
Legislature is given an unlimited
(See footnote 7)
range in creating additional
appellate jurisdiction. [However, t]he Constitution defines and
secures to litigants the right of review in certain cases, which the
Legislature cannot abrogate or abridge . . ..
Telecheck argues that W.Va. Code, 58-5-1 
(See footnote 8)
prohibits this Court from
hearing the instant appeal. Because the circuit court's ruling on the Attorney General's
request for a preliminary injunction was not a final judgment, Telecheck argues that this
Court has no jurisdiction to review that ruling.
However, as set forth in the Constitution and explained in the foregoing
he scope of this Court's jurisdiction is principally set forth in the Constitution
itself, and the Legislature's power with respect to this Court's appellate jurisdiction is
additive, not subtractive or restrictive.
Appellate jurisdiction is the power of a reviewing court to correct error in
a trial court proceeding. Leone v. Medical Bd. of Cal., 94 Ca.Rptr.2d 61, 64, 22 Cal. 4th
660, 666, 995 P.2d 191, 195 (2000). West Virginia Constitution, art. VII, sec. 3 provides that
this Court has appellate jurisdiction over civil cases in equity. This language does not
limit this Court's power to review and correct error in cases in equity to final judgments.
Winter v. State
Road Com'n, 116 W.Va. 200, 179 S.E. 73 (1935) (appeal of order dissolving temporary
injunction); O. Hommel Co. v. Fink, 115 W.Va. 686, 177 S.E. 619 (1934) (preliminary
injunction upheld on appeal); United Fuel Gas Co. v. Morley Oil & Gas Co., 101 W.Va. 73,
131 S.E. 713 (1926) (appeal of decree dissolving temporary injunction, decree reversed and
injunction reinstated). (See footnote 10)
Moreover, our longstanding jurisprudence is to the effect that this Court possesses
discretionary appellate jurisdiction to review interlocutory lower court orders in cases in
equity relating to preliminary or temporary injunctive relief.
(See footnote 9)
See, e.g., Hart v. NCAA, 209
W.Va. 543, 550 S.E.2d 79 (2001) (appeal of order awarding preliminary injunction, order
vacated); Sams v. Goff, 208 W.Va. 315, 540 S.E.2d 532 (1999) (per curiam) (appeal from
granting of preliminary injunction; injunction held to be appropriate); State By & Through
McGraw v. Imperial Marketing, 196 W.Va. 346, 349, 472 S.E.2d 792, 795 (1996) (The
defendant . . . appeals an order of the Circuit Court of Kanawha County granting a
preliminary injunction . . ..); Wheeling Park Com'n v. Hotel and Restaurant Employees, 198
W.Va. 215, 479 S.E.2d 876 (1996) (appeal of preliminary injunction restricting picketing);
Jefferson County Bd. of Educ. v. Jefferson County Education Ass'n., 183 W.Va. 15, 393
S.E.2d 653 (1990) (circuit court granted preliminary injunction against work stoppage;
association appealed, injunction upheld); Syllabus Point 11, Stuart v. Lake Washington
Realty Corp., 141 W.Va. 627, 92 S.E.2d 891  (. . . the power to grant or refuse or to
modify, continue or dissolve a temporary or a permanent injunction . . . will not be disturbed
on appeal in the absence of a clear showing of an abuse of . . . discretion.) (emphasis
added); Brady v. Smith, 139 W.Va. 259, 79 S.E.2d 851 (1954) (appeal of order refusing to
dissolve temporary injunction; injunction dissolved on appeal); Huffman v. Chedester, 126
W.Va. 73, 27 S.E.2d 272 (1943) (temporary injunction granted on filing of complaint and
exhibits, answer filed, motion to dissolve denied, denial order appealed);
In addition to the exercise of our discretionary appellate jurisdiction to review
interlocutory orders regarding preliminary or temporary injunctive relief, this Court has also
on occasion reviewed such orders in considering petitions seeking writs of prohibition. See,
e.g., State ex rel. U.M.W.A. Local 1938 v. Waters, 200 W.Va. 289, 489 S.E.2d 266 (1997)
(prohibition to review court's grant of preliminary injunction); Truby v. Broadwater, 175
W.Va. 270, 332 S.E.2d 270 (1985) (prohibition granted requiring dissolution of preliminary
injunction); Ashland Oil v. Kaufman, 181 W.Va. 728, 384 S.E.2d 173 (1989) (writ of
prohibition granted to stop enforcement of preliminary injunction).
(See footnote 11)
Moreover, the contention by Telecheck that this Court cannot review the circuit
court's decision regarding preliminary injunctive relief in the instant case flies in the face of
fundamental fairness and common sense. For what if the circuit court had decided to
preliminarily enjoin Telecheck in such a fashion that the company believed it could not
reasonably conduct its business in West Virginia? In such a case, there can be little doubt
that Telecheck would be before this Court within days (if not hours), asking that we stay and
reverse the circuit court's action. And in such a case, it may be confidently predicted that
Telecheck would vigorously resist any suggestion by the Attorney General that the fact that
the preliminary injunction was not a final judgment per W.Va. Code, 58-5-1  would
preclude our review of the order granting preliminary injunctive relief.
This hypothetical situation illustrates why the issue of this Court's exercise of
its discretionary jurisdiction to review orders regarding preliminary or temporary injunctive
relief is not simply a technical nicety, or an arcane procedura l aspect of the role of the
judicial branch. If this Court did not have the power to review such orders, the potential
power of a circuit court to unfairly wreak hardship on a party would be almost entirely
unchecked. Nothing in our jurisprudential history suggests that such a situation is or should
be the case. Moreover, t his Court's jurisdiction to review such orders importantly advances
the public policy set forth at W.Va. Const., art. III, sec. 17, guaranteeing that [t]he Courts
of this State shall be open . . ., and makes meaningful the fundamental fairness and due
process of law that is guaranteed by W.Va. Const., art. III, sec. 10 _ thereby protecting all
of the other rights, protections, and privileges that are afforded by our Constitution and
statutory and common law.
(See footnote 12)
Therefore, based on the foregoing discussion, we hold that West Virginia
Constitution, article VIII, section 3, which grants this Court appellate jurisdiction of civil
cases in equity, includes a grant of jurisdiction to hear appeals from interlocutory orders by
circuit courts relating to preliminary and temporary injunctive relief .
(See footnote 13)
that this Court does not have jurisdiction to undertake appellate review of the circuit court's
order denying the Attorney General's request for a preliminary injunction is not meritorious.
The statute governing the issuance of preliminary injunctions under the
WVCCPA in cases brought by the Attorney General, is W.Va. Code, 46A-7-110 :
With respect to an action brought to enjoin violations of this
chapter or unconscionable agreements or fraudulent or
unconscionable conduct, the attorney general may apply to the
court for appropriate temporary relief against a respondent,
pending final determination of the proceedings. If the court
finds after a hearing held upon notice to the respondent that
there is reasonable cause to believe that the respondent is
engaging in or is likely to engage in conduct sought to be
restrained, it may grant any temporary relief or restraining order
it deems appropriate.
(See footnote 14)
In Syllabus Point 1 of State v. Imperial Marketing, 196 W.Va. 346, 472 S.E.2d
792 (1996), we stated:
In reviewing the exceptions to the findings of fact and
conclusions of law supporting the granting of a temporary or
preliminary injunction, we will apply a three-pronged deferential
standard of review. We review the final order granting the
temporary injunction and the ultimate disposition under an abuse
of discretion standard, West v. National Mines Corp., 168 W.Va.
578, 590, 285 S.E.2d 670, 678 (1981), we review the circuit
court's underlying factual findings under a clearly erroneous
standard, and we review questions of law de novo. Syllabus
Point 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114
(See footnote 15)
With these standards in mind, we consider the parties' arguments.
As discussed in I. supra
the Attorney General alleged that conduct by
Telecheck was in violation of W.Va. Code
, 46A-6-104 , which provides that:
Unfair methods of competition and unfair or deceptive acts or
practices [UDAPS] in the conduct of any trade or commerce are
hereby declared unlawful.
, 46A-6-101  provides that the provisions of 46A-6-104 shall
be liberally construed . . . however, [it] shall not be construed to prohibit acts or practices
which are reasonable in relation to the development and preservation of business or which
are not injurious to the public interest . . .. See generally
, McFoy v. Amerigas, Inc.
W.Va. 526, 295 S.E.2d 16 (1982). We have stated that:
The purpose of the [WV]CCPA is to protect consumers from
unfair, illegal, and deceptive acts or practices by providing an
avenue of relief for consumers who would otherwise have
difficulty proving their case under a more traditional cause of
State ex rel. McGraw v. Scott Runyon Pontiac-Buick, 194 W.Va. 770, 777, 461 S.E.2d 516,
In accordance with W.Va. Code, 46A-7-110  , the issue before the circuit
court was whether there was reasonable cause to believe that Telecheck was engaging in or
was likely to engage in unfair or deceptive acts or practices as alleged by the Attorney
General. If the trial court found such reasonable cause, then the court had grounds for
issuance of an appropriate injunction. See Syllabus Point 2, State v. Imperial Marketing, 196
W.Va. 346, 472 S.E.2d 792 (1996).
However, instead of applying this standard, the circuit court predicated its
decision on the issue of whether the Attorney General had proved a pattern or practice of
improper conduct by Telecheck.
Although the phrase pattern or practice permeates the circuit court's order,
that phrase does not appear in the WVCCPA, nor does our research show that it is commonly
used in the area of consumer protection or trade regulation law. The phrase pattern or
practice is used, inter alia, in the area of discrimination law. See generally, Words and
Phrases, Pattern or Practice. In this area of the law, showing a pattern or practice of
certain conduct or conditions means showing that the conduct or conditions are regular,
repeated, or intentional _ as opposed to instances of the conduct or conditions being merely
isolated and accidental. Proof of a pattern or practice in this context may then permit a
finding of a discriminatory animus, or the award of systemic relief, etc. See, e.g., Greyhound
Lines-East v. Geiger, 179 W.Va. 174, 179, 366 S.E.2d 135, 140 (1988); Bloss v. Dillard, 183
W.Va. 702, 704, 398 S.E.2d 528, 530 (1990); U.S. v. Hunter, 459 F.2d 205 (4th Cir. 1972). (See footnote 16)
The closest statutory language in the WVCCPA to pattern or practice _ that
is, the closest in meaning, not in words _
is found in W.Va. Code, 46A-7-11 . This
section provides that a civil penalty may be imposed for each violation of the WVCCPA if
the court finds that the defendant has engaged in a course of repeated and willful violations
of this chapter.
Under the statutory scheme of the WVCCPA, the course of repeated
violations test is not applicable in the preliminary injunctive context _ but is rather to be
used, if at all, only after a final judgment has been made that there have been in fact
violations of the WVCCPA. Then, if the evidence shows that the violations were not simply
isolated and accidental instances of illegal conduct, a monetary penalty may be imposed.
Telecheck has not cited us to any case in which a pattern or practice, or even a course of
repeated and willful violations standard has been applied in a consumer protection case in
the preliminary injunction context; and our research has not identified any such case.
Insofar as we can determine from the voluminous record, the Attorney General
did not use the phrase pattern or practice in his pleadings or arguments, and Telecheck has
not cited us to any such instance. To the contrary, the record shows that it was Telecheck
that asserted _ as essentially the core of its defense to the Attorney General's request for
preliminary injunctive relief _ the argument that the Attorney General had to prove a
pattern or practice.
(See footnote 17)
In ruling on the Attorney General's request for a preliminary
injunction, t hen, the circuit court used a standard that was introduced and advocated for by
Telecheck. (See footnote 18)
Based on the foregoing discussion, we hold that the statutory standard for
issuing a preliminary injunction under W.Va. Code, 46A-7-110  _ whether there is
reasonable cause to believe that the respondent is engaging in or is likely to engage in
conduct [prohibited by Chapter 46A] _ does not include the requirement that there first be
proved a pattern or practice of violations of the statute.
(See footnote 19)
We conclude that the circuit
court erred in hinging its decision on a pattern or practice standard.
(See footnote 20)
Inasmuch as this action was filed in the year 2000, and a significant record has
already been made, we conclude that remanding for a de novo proceeding on preliminary
relief would be wasteful of judicial resources. The order of the circuit court regarding
preliminary injunctive relief is vacated and reversed, and this case is remanded for
proceedings on the merits of permanent injunctive relief.
(See footnote 21)
The circuit court apparently did not notify the parties of this order until May 17,
2001. Meanwhile, on May 15, 2001, Telecheck removed the case to federal court, on the
theory that the Attorney General had invoked federal jurisdiction by asserting that Telecheck
was a consumer reporting agency as defined by the Fair Credit Reporting Act, 15 U.S.C.A.
Sec. 1681. The federal court returned the case to state court on November 23, 2001, holding
that the State's substantive claims against Telecheck were based on state law, although they
referred to standards of conduct also set forth in federal law; and also that Telecheck had in
any event filed its removal petition untimely.
The court's order uses the phrases pattern and practice, pattern or practice, and
also pattern of practice. We will assume that the court meant in all instances to use the
phrase pattern or practice. See discussion at note 16 infra.
Of course, the fact that this Court has jurisdiction that it may exercise does not mean
that the Court must in a given instance exercise that jurisdiction. See, e.g., Billotti v.
Doddrill, 183 W.Va.48, 394 S.E.2d 32 (1990) (right to file petition for appeal does not mean
that this Court must accept the case for decision on the merits); State ex rel. Doe v. Troisi,
194 W.Va. 28, 32, 459 S.E.2d 139, 143 (1995) (The exercise of our original jurisdiction is
discretionary and is governed by the practical circumstances of the case.).
See W.Va. Const. art. VIII, sec. 13 (incorporating the common law); accord, W.Va.
Code, 2-1-1 ; see also Syllabus Point 2, Morningstar v. Black and Decker Mfg. Co.,
162 W.Va. 857, 253 S.E.2d 666 (1979) (Article VIII, Section 13 of the West Virginia
Constitution and W.Va.Code, 2-1-1, were not intended to operate as a bar to this Court's
evolution of common law principles, including its historic power to alter or amend the
common law.); see generally, McLaughlin, James Audley, The Idea of the Common Law
in West Virginia Jurisprudential History: Morningstar v. Black & Decker Revisited, 103
W. Va. L. Rev. 125 (2000).
The 1974 Judicial Reorganization Amendment made certain changes in the language
of this section; the changes are not germane to the issues in the instant case.
Compare U.S. Const. art. 3, sec. 2., cl. 2, the exceptions and regulations clause,
which grants Congress limiting power with respect to the appellate jurisdiction of the
Supreme Court. See generally Mickenberg, Ira, Abusing the Exceptions & Regulations
Clause: Legislative Attempts to Divest the Supreme Court of Appellate Jurisdiction, 32
Am.U.L.Rev. 497 (1983).
Unlimited is not accurate, strictly speaking. We have recognized that the
Legislature's power to add appellate jurisdiction is limited:
By the plain terms of the Constitution appellate jurisdiction is
limited to controversies arising in judicial proceedings, and the
other appellate jurisdiction that may be authorized must relate
to civil and criminal cases, that is some judicial proceedings
begun in an inferior judicial tribunal.
United Fuel Gas Co. v. P.S.C., 73 W.Va. 571, 578, 80 S.E. 931, 934 (1914). See also Ex
Parte Bornee, 76 W.Va. 360, 85 S.E. 529 (1915) (the constitutional grant of such other
appellate jurisdiction as may be prescribed by law did not empower the Legislature to
enlarge the criminal jurisdiction of the court by permitting the state to appeal criminal
convictions in violation of double jeopardy protections).
W.Va. Code, 58-5-1  states:
A party to a civil action may appeal to the supreme court of
appeals from a final judgment of any circuit court or from an
order of any circuit court constituting a final judgment as to one
or more but fewer than all claims or parties upon an express
determination by the circuit court that there is no just reason for
delay and upon an express direction for the entry of judgment as
to such claims or parties. The defendant in a criminal action
may appeal to the supreme court of appeals from a final
judgment of any circuit court in which there has been a
conviction or which affirms a conviction obtained in an inferior
In James M. B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995), Justice Cleckley
discussed former W.Va. Code, 58-5-1 ; in that opinion, he recognized that this Court's
appellate jurisdiction includes a number of jurisprudential exceptions to the finality
principle. Id., 193 W.Va. at 292-93 nn. 3&4, 456 S.E.2d at 19-20 nn. 3&4. Earlier, writing
separately in State ex rel Allen v. Bedell, 193 W.Va. 32, 39, 454 S.E.2d 77, 84 (1994), Justice
Cleckley stated that former W.Va. Code, 58-5-1  was antiquated and in need of
comprehensive and substantial revision to recognize this Court's power to review
interlocutory orders in some circumstances. Subsequently, in Wheeling Park Com'n v. Hotel
& Restaurant Employees Int. Union, 198 W.Va. 215, 479 . S.E.2d 876 (1996) (granting
appeal of preliminary injunction), Justice McHugh, writing for the Court, echoed Justice
Cleckley's comments, stating that: [u]nfortunately, W.Va. Code, 58-5-1 , et seq.,
regarding appellate relief in this Court, lacks conformity with current practice. We
encourage the West Virginia legislature to examine W.Va. Code 58-5-1, et seq., and amend
it recognizing that such statutory amendments may not conflict with W.Va. Const. art VIII
sec. 1, et seq. 198 W.Va. at 220 n.4, 479 S.E.2d at 880 n.4 (emphasis added). However,
despite these statements, the 1998 amendment of W.Va. Code, 58-5-1  deleted all
statutory language relating to review by this Court of interlocutory orders except for those
certified as final under West Virginia Rules of Civil Procedure, Rule 54(b). Subsequently,
in Wolfe v. Welton, 210 W.Va. 563, 210 S.E.2d 363 (2001), we held that this Court had
jurisdiction to review an interlocutory order remanding a case, and that the 1998 revision of W.Va. Code, 58-5-1 did not control on the issue of interlocutory orders generally, and
operates only to clarify the ability to appeal civil actions in which final judgments have been
entered pursuant to Rule 54(b) of the Rules of Civil Procedure, and to remove the
requirement that an appealable civil action involve any particular amount in controversy.
210 W.Va. at 573, 558 S.E.2d at 373. In Foster v. Sakhai, 210 W.Va. 716, 559 S.E.2d
(2001), we held that the 1998 statute's deletion of language recognizing this Court's
jurisdiction to hear appeals of interlocutory orders granting new trials could not operate to
proscribe the exercise of the jurisdiction of this Court to review such orders under our
constitutional jurisdiction. We stated that W.Va. Code, 58-5-1  could not be read to
place a potentially unconstitutional limitation on the Court's powers. 210 W.Va. 726, 559
S.E.2d at 53. In light of the foregoing, Telecheck cannot rely on W.Va. Code, 58-5-1 
to support its contention that this Court has thereby been deprived of its jurisdiction to hear
an appeal of an interlocutory order relating to preliminary or temporary injunctive relief.
We explained the differences between
ex parte temporary restraining orders
(TROs) and preliminary injunctions in Camden-Clark Memorial Hospital v. Turner, 212
W.Va. 752, 575 S.E.2d 362 (2002). Courts have held that both TROs and preliminary
injunctions may be appealed, depending on the circumstances. See Branch v. Bd. of Educ.
of Robeson County, 230 N.C. 505, 53 S.E.2d 455 (1949) (temporary restraining order
dissolution was an appealable order because it involved a substantial right); Taylor v. Breese,
163 F. 678 (E.D.Va. 1908) (appeal allowed of temporary restraining order); Bohn Aluminum
& Brass v. Barber, 55 Ill.2d 177, 303 N.E.2d 1 (1973) (whether injunction order is
characterized as a TRO or preliminary injunction, its issuance is appealable); accord, Plant
Process Equipment, Inc. v. Harris, 579 S.W.2d 53 (Ct.Civ.App. Texas 1979).
Prior to our requirement in Ashland Oil v. Kaufman, 181 W.Va. 728, 384 S.E.2d 173
(1989) that notice and an opportunity to be heard must be given whenever possible to the
party against whom a preliminary injunction is sought , and our 1998 adoption of the TRO
procedure in West Virginia Rules of Civil Procedure, Rule 65, it was apparently a not
uncommon practice in this State for a trial court to issue a preliminary injunction order ex
parte _ based on a complaint, exhibits, and affidavits. The merits of the preliminary
injunction that had been granted ex parte would then commonly be examined for the first
time in an adversarial context in a hearing on a motion to dissolve the injunction. See, e.g.,
Tennant v. Kilcoyne, 120 W.Va. 137, 196 S.E. 559 (1938) (injunction granted on sworn bill
of complaint, hearing on motion to dissolve injunction held several hours later). This
practice explains the inclusion in prior W.Va. Code, 58-5-1  of language recognizing
this Court's power to review interlocutory orders related to the dissolution of preliminary
injunctions, and the fact that a number of our earlier cases recognizing our jurisdiction in this
area arise from rulings on motions to dissolve injunctions _ motions which now seem to be
relatively rare, in light of modern rules and practice providing for contested hearings
whenever possible before any decision regarding preliminary injunctive relief is made.
Additionally, West Virginia Rules of Civil Procedure, Rule 52, requires findings of
fact and conclusions of law when a court is granting or refusing preliminary injunctions;
one purpose of this requirement is to permit proper appellate review. Cf. also W.Va. Code,
53-5-8  (in part) (Questions may be certified and appeals may be taken in injunction
proceedings as in any other cases in equity.).
Numerous state courts have held that orders granting . . . denying, dissolving, or
refusing to dissolve temporary or preliminary injunctions are appealable . . . [as are] orders
that modify, amend, or refuse to amend temporary injunctions. 42 Am.Jur.2d Injunctions
Sec. 329 (citations omitted).
Although we ordinarily speak of this Court's original jurisdiction in connection
with our constitutional power to issue writs of prohibition, one court has stated that in
reviewing the action of a lower judicial tribunal, the issuance of such a writ is not, strictly
speaking, an exercise of original jurisdiction, for it issues only after a suit has been entered
in an inferior court . . . *** [while it does not] constitute an exercise of purely original
jurisdiction no more can it be said to be an exercise of appellate jurisdiction; it is, however,
a means by which a court protects its appellate jurisdiction [.] *** The historic use of writs
of prohibition and mandamus directed by an appellate to an inferior court has been to exert
the revisory appellate power over the inferior court. Carpentertown Coal & Coke Co., 360
Pa. 94, 98, 61 A.2d 426, 428 (1948). See also Leone v. Medical Bd., supra (stating that
appellate jurisdiction to correct errors by lower courts includes the use of supervisory writs
and not just direct appeals.)
Whether a request for review by this Court of a circuit court's interlocutory order
regarding injunctive relief is styled as a petition for appeal or as a request for a writ of
prohibition may or may not have practical significance in a given case. However, the
different principles and procedures associated with the two forms of review roughly
correspond to the different issues that tend to be associated with the two kinds of review. In
prohibition, this Court proceeds in a more expedited fashion and on a record limited to the
pleadings presented; whereas upon the granting of a petition for appeal, a record on appeal
is prepared, and the procedure ordinarily takes longer. Where the issues are largely ones of
law and clearly erroneous actions of the court below are asserted, prohibition may be a more
appropriate method to seek review of an interlocutory determination regarding injunctive
relief. But where a substantial factual record is present, or where the issues for review are
more nuanced and fact-driven _ such as a lower court's exercise of its discretion in
balancing the equities _ then the route of appeal may be more appropriate.
In either case,
this Court has the discretion to not exercise its jurisdiction to review the lower court's action.
And our disfavoring of piecemeal review of the actions of lower courts remains a strong
This Court's discretionary jurisdiction to review interlocutory orders in areas other
than injunctive relief is also well-established _ although sparsely exercised, in view of the
need to preserve judicial economy and avoid piecemeal litigation. See State ex rel. Charles
Town General Hosp. v. Sanders, 210 W.Va. 118, 556 S.E.2d 85 (2001) (discovery order); State ex rel Clark v. Blue Cross Blue Shield of W.Va., Inc., 203 W.Va. 690, 510 S.E.2d 764
(1998) (liquidation proceeding order); State ex rel. Moore v. Canterbury, 181 W.Va. 389,
382 S.E.2d 583 (1989) (per curiam) (order reinstating case for trial); McFoy v. Amerigas, 170
W.Va. 526, 295 S.E.2d 16 (1982) (orders relating to class action standing); Slater v. Slater,
118 W.Va. 645, 191 S.E. 524 (1937) (decree awarding pendente lite alimony); State ex rel.
Doe v. Troisi, 194 W.Va. 28, 459 S.E.2d 139 (1995) (order denying motion to quash
subpoena); Mitchem v. Melton, 167 W.Va. 21, 30, 277 S.E.2d 895, 900 (1981) (order
regarding class action standing; stating that this Court has taken a liberal view of when an
order is appealable, especially when an interlocutory order affects substantial rights); Parsons v. McCoy, 157 W.Va. 183, 202 S.E.2d 632 (1973) (order setting aside default
The Attorney General also contends that this Court's jurisdiction to review orders
relating to injunctive relief is supported by W.Va. Code, 53-5-5 , which states as
When a circuit court, or a judge thereof, shall refuse to award
an injunction, a copy of the orders entered in the proceedings in
court, and the original papers presented to the court or to the
judge in vacation with his order of refusal, may be presented to
the supreme court of appeals, or a judge thereof in vacation,
who may thereupon award the injunction.
In light of the Attorney General's contention, this statute requires some discussion.
In Mayo v. Haines & Coutts, 16 Va. 423 (2. Munf. 1811), the Virginia Court of Appeals held
that under a similar Virginia statute that carried over into W.Va. Code, 53-5-5 , a judge
or judges who were members of the court of appeals could grant an injunction _ but in
doing so they would be acting with the same status as circuit judges _ and not as the
superior or supervisory court of appeals. In Lewis v. Asseff, 142 W.Va. 670, 97 S.E.2d 289
(1957), t his Court agreed with the distinction that was made in Mayo _ holding that a trial
court could theoretically dissolve a temporary injunction awarded pursuant to the procedure
set forth in W.Va. Code, 53-5-5. 142 W.Va. at 675, 97 S.E.2d at 292. In Lewis, we quoted
approvingly from Nichols v. Central Virginia Power Co., 143 Va. 405, 130 S.E. 674 (1925)
as follows: [When] an injunction [is] granted by one of the judges of the Supreme Court of
Appeals [under the Virginia equivalent of W.Va. Code, 53-5-5, the judge] acts not in an
appellate capacity, but as a judge of another court of co-ordinate jurisdiction. Id. A
separate opinion in Lewis by Judge Browning agreed with the majority opinion's conclusion
that an injunction granted by the appellate court, or a judge thereof in vacation, was of the
same effect as a temporary injunction granted by a trial chancellor. 142 W.Va. at 679, 97
S.E.2d at 294. Our more recent cases mentioning W.Va. Code, 53-5-5  have
apparently not had occasion to discuss the underlying basis for the original jurisdiction that
has been exercised pursuant to the procedure set forth in that statute. See, e.g., Wheeling Park
Com'n v. Hotel and Restaurant Employees, Intern. Union, AFL-CIO, 198 W.Va. 215, 479
S.E.2d 876 (1996). The explicit constitutional grant of original jurisdiction to this Court in W.Va Const., art. VIII, sec. 8 does not include injunctions, nor is the Legislature explicitly
empowered to make additional grants of original jurisdiction. However, because procedures
for the exercise of this jurisdiction have been recognized in Virginia and West Virginia for
at least 200 years, it can be fairly seen as arising from the inherent common law power of the
judges of the state's supreme court _ a power that we have recognized as one of the sources
of our jurisdiction, see note 4 supra, State ex rel. Summerfield v. Maxwell, supra. In any
event, we conclude that the original jurisdiction in injunction that is recognized in W.Va.
Code, 53-5-5  is not germane to the issue of our appellate power to review the circuit
court's action in the instant case.
See SEC v. Torr, 87 F.2d 446 (2d Cir. 1937) (test for injunction in trade regulation
case is whether defendants are engaged or about to engage in actions prohibited by statute); accord, Henderson v. Burd, 133 F.2d 515 (2d Cir. 1943). See also Evergreen Collectors v.
Holt, 60 Wash.App. 151, 803 P.2d 10 (1991) (conduct that violated standards set by debt
collection act was an unfair or deceptive trade practice).
In the instant case, of course, we are reviewing a court's decision not to grant a
preliminary injunction, but we see no reason why the foregoing standard of review should
not be applicable to this decision as well.
See also, e.g., W.Va. Code, 5-11A-15(a)  (W.Va. Fair Housing Act):
Whenever the attorney general has reasonable cause to believe
that any person or group of persons is engaged in a pattern or
practice of resistance to the full enjoyment of any of the rights
granted by this article, or that any group of persons has been
denied any of the rights granted by this article and such denial
raises an issue of general public importance, the attorney general
may commence a civil action in any appropriate circuit court.
The phrase pattern and practice has been used in lawyer disciplinary cases, see
Lawyer Disciplinary Board v. Sims, 212 W.Va. 463, ___, 574 S.E. 2d 795, 801 (2002); and
in the West Virginia Lawyer Disciplinary Rules, see Bar Rules and Regulations Ch. 3,
Chapter III, Rule 15, Procedure for Committees on Legal Ethics, Unlawful Practice and for
Additionally, where in the discretion of the Investigative Panel
such action is warranted, cases closed within the past five years
because they concerned isolated errors of judgment or
negligence or malpractice, may be reopened for inclusion in a
pattern and practice count against the attorney concerned.
Telecheck's counsel began his presentation in opposition to the request for a
preliminary injunction by saying that the complaints that the Attorney General has received
. . . upon which they base their allegation that it's a pattern and practice of behavior . . . [were
not numerous enough . . .] That's not a pattern and practice by anyone's definition. We
note that Telecheck also vigorously disputed whether some of the conduct alleged by the
Attorney General had ever occurred, and asserted that some other conduct, if it had occurred,
was only an isolated incident or the result of a technical slip-up. On the other hand,
Telecheck did not dispute that some of the conduct that alleged by the Attorney General was
a standard or regular occurrence, although Telecheck did vigorously dispute that such
conduct was illegal. The circuit court's order did not address a number of the specific types
of conduct alleged by the Attorney General, see note 20 infra.
Telecheck additionally argues that the court's use of the standard may be defended
because the Attorney General asserted in his complaint that each of the types of alleged
conduct by Telecheck that were separately identified in the complaint was an unfair or
deceptive act or practice. However, this allegation was made _ for each type of allegedly
illegal conduct _ only as a conclusory recitation of the statutory language, W.Va. Code,
46A-6-104  (i.e., conduct XYZ is an unfair or deceptive act or practice). A common
meaning of the word practice is a habitual action or performance. Oxford Desk
Dictionary and Thesaurus, American Edition 1997. The use of the disjunctive term or to
separate act and practice in W.Va. Code, 46A-6-104  (and in the Attorney
General's complaint) means that proving violation of W.Va. Code, 46A-6-104  may
be done by proving an illegal act, without necessarily also proving an illegal practice.
The Attorney General also challenges the propriety of the circuit court's conclusion
in its order to the effect that any conduct by Telecheck that might have violated the
WVCCPA was the result of bona fide errors. W.Va. Code, 46A-5-101(8)  provides
that certain conduct may not violate the WVCCPA if the conduct was the result of a bona
fide error of fact notwithstanding the maintenance of procedures reasonably adapted to avoid
any such violation or error. . . . Id. Because of the location of this defense in the relatively
complex scheme of the WVCCPA, the applicability vel non of this section to Telecheck and
the UDAP claims made by the Attorney General against it is unclear, and we make no ruling
on that issue. In any event, this is a defense that is relevant only after a finding that conduct
that would otherwise be a violation has occurred, which was not done in this case.
Moreover, this is a defense that by its own terms does not include errors or mistakes of law
regarding the requirements or applicability of consumer protection laws. See, e.g., Pipiles
v. Credit Bureau of Lockport, Inc., 885 F.2d 22 (2d Cir. 1989).
The circuit court also did not make any findings about whether much of the specific
conduct alleged by the Attorney General had occurred or was likely to occur, or whether it
constituted illegal, unfair or deceptive conduct. Because the circuit court did not rule on
these issues, they are not before us. We observe that Telecheck appears to provide a valuable
commercial service by permitting businesses to accept personal checks without undue burden
or risk. However, consumers clearly have a right to be protected from unfairness in the
dissemination of information about their credit-worthiness, which includes information about
whether their checks are good. Additionally, in the heavily regulated area of debt collection,
conduct like that alleged by the Attorney General _ including adding improper charges,
misleading letters, double-collecting, and withdrawing funds without verifiable permission
to do so _ is also clearly a proper subject of UDAP scrutiny.
To be perfectly clear: this Court is not acting to grant any form of preliminary
injunctive relief. Our instructions to the lower court are to not conduct any further
proceedings relating to preliminary relief, but to proceed to the permanent injunction stage.