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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2004 Term ___________ No. 31706 ___________

FILED December 3, 2004
released at 3:00 pm.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

LORRIE McMAHON, individually, and as the
representative of The Class of All Similarly Situated Individuals,
Plaintiffs Below
v. ADVANCED TITLE SERVICES COMPANY OF
WEST VIRGINIA, a West Virginia corporation;
ADVANCED REAL ESTATE SERVICES CORPORATION
OF AMERICA, a Pennsylvania corporation;
NATIONS OF PENNSYLVANIA, INC., a foreign
corporation authorized to do business in the State of
West Virginia, successor in interest to Advanced Title
Services Company of West Virginia and/or
Advanced Real Estate Services Corporation of America,
BRIAN C. ULANOWICZ, PENNY L. ROSE, and
JAMES MONROE WHITECOTTON,
Defendants Below
________________________________________________________ Certified Questions from the Circuit Court of Brooke County
Hon. Martin J. Gaughan, Judge
Case No. 01-C-121
CERTIFIED QUESTIONS ANSWERED AND ADDRESSED,
AND REMANDED
________________________________________________________ Submitted: September 8, 2004 Filed: December 3, 2004

Daniel J. Guida, Esq.
Weirton, West Virginia
Robert P. Fitzsimmons, Esq.
Wheeling, West Virginia
Attorneys for Plaintiff
John Preston Bailey, Esq.
Bailey, Riley, Buch & Harman
Wheeling, West Virginia
Amicus Curiae for the West Virginia
State Bar
Bren J. Pomponio, Esq.
Daniel F. Hedges, Esq.
Mountain State Justice, Inc.
Charleston, West Virginia
Amicus Curiae for Mountain State
Justice, Inc.
Thomas A. Heywood, Esq.
Sandra M. Murphy, Esq.
Eric L. Calvert, Esq.
Bowles Rice McDavid Graff & Love
Charleston, West Virginia
Amicus Curiae for The West Virginia
Association of Community Bankers,
Inc. and The West Virginia Bankers
Association, Inc.
James W. St. Clair, Esq.
Huntington, West Virginia
Amicus Curiae for The West Virginia
Bar Association


William David Wilmoth, Esq. Steptoe & Johnson Wheeling, West Virginia Attorney for Advanced Title Services Company of West Virginia, et al. Paul D. Ellis, Esq. Baker & Hostetler Columbus, Ohio Jerry R. Linscott, Esq. Baker & Hostetler Orlando, Florida Pro Hac Vice for Advanced Title Services Company of West Virginia, et al. James F. Companion, Esq. Schrader, Byrd & Companion Wheeling, West Virginia Attorney for Brian C. Ulanowicz, et al. William E. Kovacic General Counsel Maureen K. Ohlhausen Deputy Director, Office of Policy Planning Federal Trade Commission Washington, DC Amicus Curiae for The Federal Trade Commission Stephen M. Horn Assistant United States Attorney U. S. Department of Justice Washington, DC Amicus Curiae for The United States of America

JUSTICE STARCHER delivered the Opinion of the Court.

SYLLABUS BY THE COURT 1. A party who has suffered or may likely suffer a legally cognizable

injury, wrong, or other actionable violation of his or her personal legal rights and interests as a proximate result of the unlawful and unauthorized practice of law by another has standing to assert a claim alleging such unlawful and unauthorized practice and seeking relief appropriate to the actual or threatened injury, wrong, or violation. 2. "West Virginia Code, 58-5-2 (1967), allows for certification of a question

arising from a denial of a motion for summary judgment. However, such certification will not be accepted unless there is a sufficiently precise and undisputed factual record on which the legal issues can be determined. Moreover, such legal issues must substantially control the case." Syllabus Point 5, Bass v. Coltelli, 192 W.Va. 350, 453 S.E.2d 350 (1994).

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Starcher, J.:

In the instant case we partially approve and partially disapprove a circuit court's Answers to certified questions, and we remand the case for further proceedings.

I. Facts & Background This case arises from an order of the Circuit Court of Brooke County, West Virginia granting partial summary judgment and certifying certain questions to this Court pursuant to the provisions of W. Va. Code, 58-5-2 (1998). In the case before the circuit court in which the partial summary judgment and certification order was entered, the plaintiff is "Lorrie McMahon, individually, and [seeking to be] the representative of the Class of All Similarly Situated Individuals."1 The defendants below are Advanced Title Services Company of West Virginia ("ATS"), a West Virginia corporation, and several related corporations and individuals.2

The proposed class is defined by the plaintiff below as others in West Virginia who have paid the defendants for title examination and closing services. The circuit court has not taken up or ruled upon any matters regarding class certification. The interrelationship among the several named defendants below with respect to their involvement in the alleged conduct that gives rise to the issues involved in this opinion does not appear to be material to our discussion. We shall in this opinion refer to "the defendants" and shall mean by that reference, following the circuit court's approach in its order, "one or more of the Defendants." We shall also use the terms "plaintiff" and "defendants" even though these parties are technically respectively petitioner and respondents in the instant (continued...) 1
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The plaintiff's complaint, inter alia, alleges that:

(1) the defendants, by engaging in the unauthorized and unlawful practice of law when providing real estate title and closing services to the plaintiff and similarly situated persons, overcharged and misled regarding and misrepresented the nature of the defendants' services and qualification to perform such services and the extent to which such services were performed, and thereby committed actionable negligence, conversion, embezzlement, and obtaining money by false pretenses, and were unjustly enriched; and that (2) the defendants, by engaging in the unauthorized and unlawful practice of law when providing real estate title and closing services to the plaintiff and similarly situated persons, engaged in unfair, deceptive and fraudulent conduct in violation of W.Va. Code, 46A-1-101 et. seq., the West Virginia Consumer Credit and Protection Act, including but not limited to: passing off services as those of another; causing the likelihood of confusion or misunderstanding as to the source, sponsorship, approval or certification of goods or services; causing likelihood of confusion or of misunderstanding as to affiliation, connection or association with, or certification by another; representing that services have the sponsorship, approval, characteristics, uses, or benefits that they do not have, or that a person has a sponsorship, approval, status affiliation, or connection that he does not have; representing that services are of a particular standard of quality, if they are of another; and/or

(...continued) certified question proceeding. 2

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engaging in other conduct which similarly creates a likelihood of confusion or misunderstanding; and that (3) the defendants, by engaging in the unauthorized and unlawful practice of law when providing real estate title and closing services to the plaintiff and similarly situated persons, employed fraud, false pretense, false promises, deception and/or misrepresentation or the concealment, suppression or omission of material facts relating to their services with the intent that the plaintiff and similarly situated persons relied upon such concealment, suppression or omission to their detriment; and that (4) the defendants, by engaging in the unauthorized and unlawful practice of law when providing real estate title and closing services to the plaintiff and similarly situated persons, violated several other West Virginia statutes. The plaintiff, in her prayer for relief, seeks, inter alia, declarative relief that the defendants' conduct is the unauthorized and unlawful practice of law; restitution and disgorgement of moneys paid by the plaintiff and similarly situated persons; statutory, actual, and punitive damages and attorney fees; and equitable and contempt power orders from the court preventing the defendants from engaging in the unauthorized and unlawful practice of law when providing real estate title and closing services to the plaintiff and similarly situated persons.
After limited discovery, the plaintiff moved for partial summary judgment and certification of questions to this Court on the issue of whether the defendants' conduct as

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factually alleged by the plaintiff constituted the unauthorized and unlawful practice of law. In response to this motion, it appears3 that the defendants did not argue that there were material issues of disputed fact about their conduct, nor did they apparently argue that their conduct was not the unlawful and unauthorized practice of law. Rather, the defendants' apparent sole argument against the plaintiff's motion for partial summary judgment was that even if the defendants' conduct vis-a-vis the plaintiff and similarly situated persons was factually as the plaintiff alleged

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