David L. Grubb
Grubb Law Group Bowles Rice McDavid Graff & Love, PLLC
Charleston, West Virginia Charleston, West Virginia
Attorney for the Appellee,
John W. Barrett Charles Woody
Barrett Law Firm, PLLC Spilman, Thomas & Battle, PLLC
Charleston, West Virginia Charleston, West Virginia
Attorney for the Appellees,
Brian A. Glasser American Bankers Insurance Co., et al.
Bailey & Glasser, LLP
Charleston, West Virginia
Attorneys for the Appellant,
JUSTICE ALBRIGHT delivered the Opinion of the Court.
CHIEF JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
JUSTICE DAVIS and JUSTICE MAYNARD dissent
and reserve the right to file
2. Where the issue on an appeal from the circuit
court is clearly a question of law or involving an interpretation of a statute,
we apply a de novo standard of review. Syl. Pt. 1, Chrystal
R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995).
3. Judicial interpretation of a statute is
warranted only if the statute is ambiguous and the initial step in such interpretative
inquiry is to ascertain the legislative intent. Syl. Pt. 1, Ohio
County Comm'n v. Manchin, 171 W. Va. 552, 301 S.E.2d 183 (1983).
4. A statute that is ambiguous must be construed
before it can be applied. Syl. Pt. 1, Farley v. Buckalew, 186
W. Va. 693, 414 S.E.2d 454 (1992).
5. A statute, or an administrative rule, may not, under the guise of 'interpretation,' be modified, revised, amended or rewritten. Syl. Pt. 1, Consumer Advocate Division v. Public Service Comm'n, 182 W. Va. 152, 386 S.E.2d 650 (1989).
6. West Virginia Code § 46A-5-101(1) (1996) (Repl. Vol. 1998) is a remedial statute to be liberally construed to protect consumers from unfair, illegal, or deceptive acts. In face of the ambiguity found in that statute, a consumer who is party to a closed-ended credit transaction, resulting from a sale as defined in West Virginia Code § 46A-6-102(d), may bring any necessary action within either the four-year period commencing with the date of the transaction or within one year of the due date of the last payment, whichever is later.
This is an appeal by Stephanie Gibson and James Dunlap
(See footnote 1)
(hereinafter Appellants) from a final order of the Circuit
Court of Kanawha County dismissing Consumer Credit and Protection Act (hereinafter
CCPA) claims for failure to file a complaint within the applicable
statute of limitations period. On appeal, the Appellants assert that the lower
court erred in finding that the applicable statute of limitations period was
one year from the date of the last payment due; rather, the Appellants contend
that the applicable statute of limitations period is four years from the date
of the alleged violation.
The Appellant alleges that she was charged for these insurance products without her knowledge or consent. (See footnote 2) In her complaint, filed May 4, 2000, the Appellant alleged that conduct engaged in by Friedman's constitutes an unfair or deceptive trade practice in violation of the CCPA and that such conduct was part of a systematic scheme to deceive consumers and enhance business profit. (See footnote 3)
The lower court entered an order dated September
14, 2001, granting the Appellees' motion to dismiss the complaint based upon
the lower court's finding that the complaint had not been filed within the
applicable one year statute of limitations. On appeal, the Appellants assert
that the statutorily- mandated statute of limitations for this action is actually
four years from the date of the alleged violation.
West Virginia Code § 46A-5-101(1) (1996) (Repl. Vol. 1998) (See footnote 4) provides as follows:
If a creditor has violated the provisions of this chapter applying to collection of excess charges, security in sales and leases, disclosure with respect to consumer leases, receipts, statements of account and evidences of payment, limitations on default charges, assignment of earnings, authorizations to confess judgment, illegal, fraudulent or unconscionable conduct, any prohibited debt collection practice, or restrictions on interest in land as security, assignment of earnings to regulated consumer lender, security agreement on household goods for benefit of regulated consumer lender, and renegotiation by regulated consumer lender of loan discharged in bankruptcy, the consumer has a cause of action to recover actual damages and in addition a right in an action to recover from the person violating this chapter a penalty in an amount determined by the court not less than one hundred dollars nor more than one thousand dollars. With respect to violations arising from consumer credit sales or consumer loans made pursuant to revolving charge accounts or revolving loan accounts, or from sales as defined in article six [§ 46A-6-101 et. seq.] of this chapter, no action pursuant to this subsection may be brought more than four years after the violations occurred. With respect to violations arising from other consumer credit sales or consumer loans, no action pursuant to this subsection may be brought more than one year after the due date of the last scheduled payment of the agreement.
W. Va. Code § 46A-5-101(1) (emphasis supplied). Sale as defined in West Virginia Code § 46A-6- 102(d) includes any sale, offer for sale or attempt to sell any goods for cash or credit or any services or offer for services for cash or credit.
The Appellees contend that the one-year statute of limitations applies to this cause of action based upon the fact that this was a closed-ended contract, including fifteen payments, (See footnote 5) and, as such, is not encompassed within the revolving charge accounts or revolving loan accounts to which the four-year statute of limitations applies, pursuant to statute. The Appellees further contend that such application of the statutory language is consistent with the Uniform Consumer Credit Code upon which the West Virginia Legislature allegedly based its provisions. The Appellees claim that the West Virginia Legislature combined various model codes to formulate the current provision, and that it must have intended to create a statute of limitations distinction between open-ended and closed-ended contracts. The statute, however, does not specifically address the concept of closed-ended contracts; the Appellees only assume that the legislature's use of the term other contracts embraced closed-ended contracts. Thus, while the Appellees' approach presents an intriguing analytical framework, it does not definitively resolve the issue because the legislature in fact enacted a statute which is different in form from the various model codes it may have relied upon in its formulation of the present language.
The Appellants contend that this closed-ended contract is included within the definition of sales, West Virginia Code § 46A-6-102(d), to which the four-year statute of limitations explicitly applies, pursuant to statute.
Where, however, the legislature has not expressed its intended statutes of limitation with clarity, such a laudable goal of strict compliance is unattainable. Although this Court has invariably recognized that clear and unambiguous statutes are not subject to interpretation, (See footnote 6) we have also observed:
Ambiguity is a term connoting doubtfulness, doubleness of meaning of indistinctness or uncertainty of an expression used in a written instrument. It has been declared that courts may not find ambiguity in statutory language which laymen are readily able to comprehend; nor is it permissible to create an obscurity or uncertainty in a statute by reading in an additional word or words.
Crockett v. Andrews, 153 W. Va. 714, 718-19, 172 S.E.2d 384, 387 (1970). A finding of ambiguity must be made prior to any attempt to interpret a statute. As the Court stated in syllabus point one of Ohio County Comm'n v. Manchin, 171 W. Va. 552, 301 S.E.2d 183 (1983), Judicial interpretation of a statute is warranted only if the statute is ambiguous and the initial step in such interpretative inquiry is to ascertain the legislative intent. Likewise, in syllabus point one of Farley v. Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992), this Court further explained: A statute that is ambiguous must be construed before it can be applied.
Our reading of West Virginia Code § 46A-5-101(1)
compels the conclusion that the statute is ambiguous with regard to the distinction
between open and closed-ended credit agreements and the statute of limitations
applicable to those two types of credit. While the statute clearly states
that the four-year statute of limitations is applicable to revolving charge
accounts, revolving loan accounts, and sales as particularly defined, it also
specifically subjects other consumer credit sales or consumer loans
to a one-year statute of limitations period. While the Appellees and lower
court contend that closed-ended credit sales must in included within other
consumer credit sales or consumer loans, the Appellants argue that closed-ended
credit sales come within the purview of sales to which the four-year
statute of limitations is applicable. Both sides have presented compelling
and persuasive arguments in support of their respective theories. Even if,
however, this Court were convinced of the superiority of one theory over another,
this Court cannot substitute its own judgment for that of the legislature
and significantly rewrite the statute. If, for instance, this Court agreed
with the Appellees that the most rational method of dealing with statute of
limitations issues would be to permit four years on open-ended loans, due
to their longer term nature, and only one year on closed-ended loans, due
to the finality of such constructs, this Court is not permitted to rewrite
the statute to state such conclusion with clarity. The Court has expressed
this prohibition concisely on numerous occasions. In Williamson v. Greene,
200 W. Va. 421, 490 S.E.2d 23 (1997), for instance, this Court stated:
[i]t is not for [courts] arbitrarily to read into [a statute] that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted. Banker v. Banker, 196 W.Va. 535, 546-47, 474 S.E.2d 465, 476-77 (1996) (citing Bullman v. D & R Lumber Company, 195 W.Va. 129, 464 S.E.2d 771 (1995).
Id. at 426, 490 S.E.2d at 28 (citations omitted). A statute, or an administrative rule, may not, under the guise of 'interpretation,' be modified, revised, amended or rewritten. Syl. Pt. 1, Consumer Advocate Division v. Public Service Comm'n, 182 W. Va. 152, 386 S.E.2d 650 (1989).
In Hereford v. Meek, 132 W. Va. 373, 52 S.E.2d 740 (1949), this Court stated: A statute is open to construction only where the language used requires interpretation because of ambiguity which renders it susceptible of two or more constructions or of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning. Id. at 386, 52 S.E.2d at 747. We addressed a statute regarding annual salary increases for deputy sheriffs in Lawson v. County Comm'n of Mercer County, 199 W. Va. 77, 483 S.E.2d 77 (1996), and found that the statute in question was susceptible to differing constructions, to the extent that the term receive an annual salary increase could mean either an increase to become part of the annual salary or an increase in addition to the annual salary. Id. at 81, 483 S.E.2d at 81. Based upon the Court's finding that the statute could be read by reasonable persons to have different meanings, we found the language of the statute to be ambiguous. Id.
Furthermore, this Court explained in Appalachian Power Co. v. State Tax Dept. of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995), that absent explicatory legislative history for an ambiguous statute, a court construing such a statute must consider the overarching design of statute. Id. at 587, 466 S.E.2d at 438, quoting Scott Runyon, 194 W. Va. at 777, 461 S.E.2d at 523. In construing the statute liberally to protect all consumers from unfair, illegal, or deceptive action, and in considering the overarching design of the statute, we are compelled to resolve the issue this ambiguity has created by concluding that the credit sale utilized in this transaction is included within the four-year statute of limitations applicable to consumer credit sales or consumer loans made pursuant to revolving charge accounts or revolving loan accounts, or from sales. . . . W. Va. Code § 46A-5-101(1). While such determination admittedly does not effectively answer the myriad of hypotheticals raised by the parties with regard to various types of credit sales utilized by consumers and the issue of into which statutorily- designated category such transactions may fall, the liberal construction to which this statute is entitled compels our conclusion that any doubt about this particular transaction's inclusion within the more liberal four-year statute of limitations period be resolved in favor of such inclusion. Similarly, a consumer who is party to a longer-term, closed-ended transaction is also entitled to maintain an action within one year of the due date of the last payment.
Based upon the foregoing, we reverse the decision
of the Circuit Court of Kanawha County and remand this matter for further
proceedings consistent with this opinion.