Preview:

SER McGraw v. Scott Runyan Pontiac-Buick

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 1995 Term
No. 22728
STATE OF WEST VIRGINIA EX REL.
DARRELL V. McGRAW, JR., ATTORNEY GENERAL,
Plaintiff Below, Appellant,

v.
SCOTT RUNYAN PONTIAC-BUICK, INC., A WEST VIRGINIA
CORPORATION; SCOTT RUNYAN, INDIVIDUALLY AND AS AN
OFFICER OF SCOTT RUNYAN PONTIAC-BUICK, INC.;
COX PONTIAC-BUICK, INC., A WEST VIRGINIA CORPORATION;

A. W. COX DEPARTMENT STORE CO., A WEST VIRGINIA CORPORATION; WILBER E. COX, INDIVIDUALLY; WILBER E. COX II, INDIVIDUALLY; RUNYAN CREDITORS TRUST, SCOTT RUNYAN, TRUSTEE; GENERAL MOTORS ACCEPTANCE CORPORATION, A DELAWARE CORPORATION; CITIZENS NATIONAL BANK OF ST. ALBANS, A FEDERALLY CHARTERED BANK; AND OTHER FINANCIAL INSTITUTIONS AS YET UNKNOWN, Defendants Below, Appellees
AND

GENERAL MOTORS ACCEPTANCE CORPORATION,
A DELAWARE CORPORATION,
Defendant and Third-Party Plaintiff Below, Appellee

v.
WORLD-WIDE WARRANTY, INC., AND GUARANTY NATIONAL INSURANCE COMPANY, Third-Party Defendants Below, Appellees
Appeal from the Circuit Court of Kanawha County Honorable Charles E. King, Judge Civil Action No. 90-C-3993
REVERSED AND REMANDED _______________________________________________________ Submitted: May 2, 1995 Filed: July 19, 1995 Darrell V. McGraw, Jr. Attorney General Donald L. Darling Senior Deputy Attorney General Jill L. Miles Senior Assistant Attorney General Charleston, West Virginia Attorneys for the Appellant
E. W. Rugeley, Jr. Dennis R. Vaughan, Jr. William D. Esbenshade Vaughan & Withrow Jackson & Kelly Charleston, West Virginia Charleston, West Virginia         Attorney for the Appellee Attorneys for the Appellee        Citizens National Bank of General Motors Acceptance Corp.  St. Albans (now Bank One, West Virginia, St. Albans)
James T. Cooper John R. Hoblitzell
Lovett, Cooper & Glass Kay, Casto, Chaney, Love
Charleston, West Virginia & Wise
Attorney for the Appellee        Charleston, West Virginia
World-Wide Warranty, Inc. Attorney for the Appellee
Guaranty National Insurance
Company

Deborah K. Aronoff Steven S. Zaleznick
North Central W. Va. Legal Deborah M. Zuckerman
Aid Society American Association of
Morgantown, West Virginia Retired Persons
Amicus Curiae Washington, D.C.
Amicus Curiae

JUSTICE CLECKLEY delivered the Opinion of the Court.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by temporary assignment. SYLLABUS BY THE COURT

1.
The key to determining if an order is final is not whether the language from Rule 54(b) of the West Virginia Rules of Civil Procedure is included in the order, but is whether the order approximates a final order in its nature and effect. We extend application of this rule to a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.

2. Appellate review of a circuit court's order granting a motion to dismiss a complaint is de novo.

3.
"'The powers and duties of the Attorney General are specified by the constitution and by the rules of law prescribed pursuant thereto.' Syllabus point 1, Manchin v. Browning, 170 W. Va. 779, 296 S.E.2d 909 (1982)." Syllabus Point 2, State ex rel. Fahlgren Martin, Inc. v. McGraw, 190 W. Va. 306, 438 S.E.2d 338 (1993).

4.
"When a note is created as a result of a consumer transaction, an assignee of such a note takes the note subject to all claims and defenses, regardless of whether the assignee is a holder in due course. W. Va. Code 46A-2-102 [1990]." Syllabus Point 1, One Valley Bank of Oak Hill, Inc. v. Bolen, 188 W. Va. 687, 425 S.E.2d 829 (1992).

5.
The Attorney General clearly has the right to bring a civil action against an assignee to collect a refund of an excess charge imposed upon a consumer regardless of whether the assignee committed any wrongdoing. The issue of wrongdoing only is relevant under W. Va. Code, 46A-7-111(1) (1974), when the assignee may be subjected to a "civil penalty." If the assignee can establish an unintentional violation or a bona fide error on the part of the wrongdoer by a


preponderance of the evidence, a penalty may not be imposed under this subsection. W. Va. Code, 46A-7-111(1). Cleckley, Justice:
        The issue now before this Court is whether the plaintiff, Darrell V. McGraw, Jr., Attorney General,See footnote 1 is authorized to seek debt cancellations and/or refunds from the defendants, General Motors Acceptance Corporation (GMAC) and Citizens National Bank of St. Albans (now Bank One, West Virginia, St. Albans, N.A.). The Consumer Protection Division of the Office of the Attorney General of West Virginia filed suit against Scott Runyan Pontiac-Buick, Inc. (Scott Runyan), et al.,See footnote 2 on November 9, 1990, alleging Scott Runyan engaged in various unfair and deceptive acts in violation of the West Virginia Consumer Credit and Protection Act (CCPA). W. Va. Code, 46A-1-101, et seq. Specifically, the Attorney General claimed Scott Runyan sold extended vehicle warranties to automobile buyers at an average cost of over $600 each and collected the purchase prices from consumers but failed to pay the warranty company for the additional coverages. The Attorney General argues that because GMAC and Bank One financed the extended warranty purchases, they are lenders subject to the claims and defenses arising from consumer credit transactions pursuant to W. Va. Code, 46A-2-101; W. Va. Code, 46A-2-102; and W. Va. Code, 46A

Download 22728.pdf

West Virginia Law