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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2012 Term __________ No.11-0910 __________ QUICKEN LOANS, INC., Petitioner v. LOURIE AND MONIQUE BROWN, Respondents ______________________________________________________ Appeal from the Circuit Court of Ohio County Honorable Arthur M. Recht, Judge Civil Action No. 08-C-36 AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED WITH DIRECTIONS ____________________________________________________ Submitted: September 19, 2012 Filed: November 21, 2012 Thomas R. Goodwin Johnny M. Knisely, II Goodwin & Goodwin Charleston, West Virginia Counsel for Petitioner James G. Bordas, Jr. Jason E. Causey Christopher J. Regan Bordas & Bordas Wheeling, West Virginia Counsel for the Respondents Martin P. Sheehan Sheehan & Nugent, P.L.L.C. Wheeling, West Virginia Counsel for Amicus Curiae Jay D. Hixson

FILED November 21, 2012
released at 3:00 p.m.
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

John W. Barrett Jonathan R. Marshall Bailey & Glasser Charleston, West Virginia Counsel for Amicus Curiae National Association of Consumer Advocates Daniel F. Hedges Bren J. Pomponio Mountain State Justice, Inc. Charleston, West Virginia Counsel for Amicus Curiae Mountain State Justice, Inc. Frances A. Hughes Chief Deputy Attorney General Jill L. Miles Deputy Attorney General Charleston, West Virginia Counsel for Amicus Curiae State of West Virginia ex rel Darrell V. McGraw, Jr. Anthony J. Majestro Powell & Majestro, PLLC Charleston, West Virginia Counsel for Amicus Curiae West Virginia Association for Justice

Justice McHugh delivered the Opinion of the Court.

SYLLABUS BY THE COURT 1. "In reviewing challenges to the findings and conclusions of the circuit court

made after a bench trial, a two-pronged deferential standard of review is applied. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, and the circuit court's underlying factual findings are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review." Syl. pt. 1, Public Citizen, Inc. v. First Nat. Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996)

2.

"`"`The essential elements in an action for fraud are: `(1) that the act

claimed to be fraudulent was the act of the defendant or induced by him; (2) that it was material and false; that plaintiff relied on it and was justified under the circumstances in relying upon it; and (3) that he was damaged because he relied on it.' Horton v. Tyree, 104 W.Va. 238, 242, 139 S.E. 737 (1927)." Syl. Pt. 1, Lengyel v. Ling, 167 W.Va. 272, 280 S.E.2d 66 (1981).' Syllabus Point 5, Kidd v. Mull, 215 W.Va. 151, 595 S.E.2d 308 (2004)." Syl. Pt. 5, Folio v. City of Clarksburg, 221 W.Va. 397, 655 S.E.2d 143 (2007).

3.

"`"The legislature in enacting the West Virginia Consumer Credit and

Protection Act, W.Va. Code 46A-1-101, et seq., in 1974, sought to eliminate the practice of including unconscionable terms in consumer agreements covered by the Act. To further this purpose the legislature, by the express language of W.Va. Code, 46A-5-101(1), created a

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cause of action for consumers and imposed civil liability on creditors who include unconscionable terms that violate W.Va. Code, 46A-2-121 in consumer agreements." Syl. pt. 2, U.S. Life Credit Corp. v. Wilson, 171 W.Va. 538, 301 S.E.2d 169 (1982).' Syl. pt. 1, Orlando v. Finance One of West Virginia, Inc., 179 W.Va. 447, 369 S.E.2d 882 (1988)." Syl. Pt. 3, Arnold v. United Companies Lending Corp., 204 W.Va. 229, 511 S.E.2d 854 (1998), overruled, in part, on other grounds, Dan Ryan Builders, Inc. v. Nelson, __ W.Va. __, __ S.E.2d __ (No. 12-0502) (Nov. 15, 2012).

4.

"`A determination of unconscionability must focus on the relative

positions of the parties, the adequacy of the bargaining position, the meaningful alternatives available to the plaintiff, and the "existence of unfair terms in the contract.' Syl. pt. 4, Art's Flower Shop, Inc. v. Chesapeake and Potomac Tel. Co., 186 W.Va. 613, 413 S.E.2d 670 (1991)." Syl. Pt. 4, Arnold v. United Companies Lending Corp., 204 W.Va. 229, 511 S.E.2d 854 (1998), overruled, in part, on other grounds, Dan Ryan Builders, Inc. v. Nelson, __ W.Va. __, __ S.E.2d __ (No. 12-0502) (Nov. 15, 2012).

5.

"`Statutes which relate to the same subject matter should be read and applied

together so that the Legislature's intention can be gathered from the whole of the enactments.' Syllabus Point 3, Smith v. State Workmen's Comp. Comm'r., 159 W.Va. 108, 219 S.E.2d 361

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(1975)." Syl. Pt. 4, Community Antenna Serv. Corp. v. Charter Communications, VI, LLC, 227 W.Va. 595, 712 S.E.2d 504 (2011).

6.

"`A statute should be so read and applied as to make it accord with the

spirit, purposes and objects of the general system of law of which it is intended to form a part; it being presumed that the legislators who drafted and passed it were familiar with all existing law, applicable to the subject matter, whether constitutional, statutory or common, and intended the statute to harmonize completely with the same and aid in the effectuation of the general purpose and design thereof, if its terms are consistent therewith.' Syllabus Point 5, State v. Snyder, 64 W.Va.659, 63 S.E. 385 (1908)." Syl. Pt. 5, Community Antenna Serv. Corp. v. Charter Communications, VI, LLC, 227 W.Va. 595, 712 S.E.2d 504 (2011).

7.

"`Statutes which relate to the same persons or things, or to the same class of

persons or things, or statutes which have a common purpose will be regarded in pari materia to assure recognition and implementation of the legislative intent. Accordingly, a court should not limit its consideration to any single part, provision, section, sentence, phrase or word, but rather review the act or statute in its entirety to ascertain legislative intent properly.' Syllabus Point 5, Fruehauf Corp. v. Huntington Moving & Storage Co., 159 W.Va. 14, 217 S.E.2d 907 (1975)." Syl. Pt. 6, Community Antenna Serv. Corp. v. Charter Communications, VI, LLC,

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227 W.Va. 595, 712 S.E.2d 504 (2011).

8.

"`Equity will not enforce a forfeiture.' Syllabus, in part, Craig v. Hukill, 37

W.Va. 520, 16 S.E.363 (1892)." Syl. Pt. 1, Helton v. Reed, 219 W.Va. 557, 638 S.E.2d 160 (2006).

9.

"When the trial court instructs the jury on punitive damages, the court

should, at a minimum, carefully explain the factors to be considered in awarding punitive damages. These factors are as follows:

(1) Punitive damages should bear a reasonable relationship to the harm that is likely to occur from the defendant's conduct as well as to the harm that actually has occurred. If the defendant's actions caused or would likely cause in a similar situation only slight harm, the damages should be relatively small. If the harm is grievous, the damages should be greater. (2) The jury may consider (although the court need not specifically instruct on each element if doing so would be unfairly prejudicial to the defendant), the reprehensibility of the defendant's conduct. The jury should take into account how long the defendant continued in his actions, whether he was aware his actions were causing or were likely to cause harm, whether he attempted to conceal or cover up his actions or the harm caused by them, whether/how often the defendant engaged in similar conduct in the past, and whether the defendant made reasonable efforts to make amends by offering a fair and prompt settlement for the actual harm caused once his liability became clear to him.

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(3) If the defendant profited from his wrongful conduct, the punitive damages should remove the profit and should be in excess of the profit, so that the award discourages future bad acts by the defendant.

(4) As a matter of fundamental fairness, punitive damages should bear a reasonable relationship to compensatory damages.

(5) The financial position of the defendant is relevant." Syl. Pt. 3, Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991).

10.

"When the trial court reviews an award of punitive damages, the court should,

at a minimum, consider the factors given to the jury as well as the following additional factors: (1) The costs of the litigation;

(2) Any criminal sanctions imposed on the defendant for his conduct;

(3) Any other civil actions against the same defendant, based on the same conduct; and

(4) The appropriateness of punitive damages to encourage fair and reasonable settlements when a clear wrong has been committed. A factor that may justify punitive damages is the cost of litigation to the plaintiff.

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Because not all relevant information is available to the jury, it is likely that in some cases the jury will make an award that is reasonable on the facts as the jury know them, but that will require downward adjustment by the trial court through remittitur because of factors that would be prejudicial to the defendant if admitted at trial, such as criminal sanctions imposed or similar lawsuits pending elsewhere against the defendant. However, at the option of the defendant, or in the sound discretion of the trial court, any of the above factors may also be presented to the jury."

Syl. Pt. 4, Garnes v. Fleming Landfill, Inc., 186 W.Va. 656, 413 S.E.2d 897 (1991).

11.

Attorneys fees and costs awarded under West Virginia Code

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West Virginia Law