Conseco Finance Servicing Corp. v. Myers, 30089.

Citation567 S.E.2d 641,211 W.Va. 631
Decision Date01 July 2002
Docket NumberNo. 30089.,30089.
CourtSupreme Court of West Virginia
PartiesCONSECO FINANCE SERVICING CORP., Plaintiff, v. Virgil MYERS, Beverly Myers and Matthew Myers, Defendants/Third-Party Plaintiffs, v. The Home Show, Inc., and CMH Manufacturing, Inc., Steven Allred, Commissioner of the West Virginia Department of Labor, Third-Party Defendants.

Daniel F. Hedges, Esq., Bren J. Pomponio, Mountain State Justice, Inc., Charleston, West Virginia, Attorneys for V., B. & M. Myers.

Thomas H. Vanderford, IV, Esq., Pauley, Curry, Sturgeon & Vanderford, Charleston, West Virginia, Attorney for The Home Show.

Jeffrey A. Kimble, Esq., Robinson & McElwee, Clarksburg, West Virginia, Attorney for CMH, Inc.

Erik T. Engle, Esq., Pullin, Knopf, Fowler & Flanagan, Charleston, West Virginia, Attorney for Steven Allred, Comm'r.

John R. Teare, Jr., Bowles Rice McDavid Graff & Love, PLLC, WV Manufactured Housing Assoc., for Amicus Brief. MAYNARD, Justice:

In this case, the Circuit Court of Kanawha County has certified four questions to this Court. The certified questions and the circuit court's answers are as follows:

1. Does 42 C.S.R. § 19-13, now codified in West Virginia Code § 21-9-11a, impose a duty on the West Virginia Division of Labor, upon receipt of a consumer complaint, to conduct a complete investigation on every new manufactured home's construction, assembly and installation relative to compliance with state and federal standards and the installation manual?

Answer of the circuit court: Yes.

2. Does 42 C.S.R. § 19-13, now codified in West Virginia Code § 21-9-11a, impose a duty on the West Virginia Division of Labor to provide to the consumer a written report, following investigation of defects in a manufactured home's construction and assembly and as the result of the installation process?

Answer of the circuit court: Yes.

3. Does 42 C.S.R. [§] 19-13, now codified in West Virginia Code § 21-9-11a, impose a duty on the West Virginia Division of Labor (a) to direct thorough investigations by inspectors with all necessary tools and equipment, (b) to direct any responsible party to correct any discovered serious defect or imminent safety hazard within a short period of time or face immediate sanctions, and (c) to reinspect each home to ensure those defects and hazards have been eliminated?

Answer of the circuit court: Yes.

(4) Does West Virginia Code § 21-9-10(b) and 42 C.S.R. § 19-15 impose a duty or permit the West Virginia Division of Labor to pay for damages out of the State Manufactured Housing Recovery Fund for failure of the manufacturer, the installer, or the inspector to comply with federal and state standards in construction, set-up or inspection[?]

Answer of the circuit court: Yes.

We initially must determine whether the matter before us is proper for certification. These certified questions are the result of the circuit court's denial of the motion for partial summary judgment for declaratory relief of the defendants/third-party plaintiffs.

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. 516, 453 S.E.2d 350 (1994).1 Although some facts of this case are disputed, we believe that there is a sufficiently precise and undisputed factual record upon which the legal issues can be determined. We further believe that these legal issues substantially control the case. Accordingly, we find that these questions are properly certified under W.Va.Code § 58-5-2 (1998), and that this Court has jurisdiction to consider these questions.2

I. FACTS

On or about September 25, 1995, a Retail Installment Contract was executed wherein The Home Show, Inc., a third-party defendant below, agreed to sell a 1996 Henderson manufactured home to the Keetens and/or the Myers, defendant/third-party plaintiffs herein. Whether the Keetens actually purchased the home or merely co-signed the loan for the purchase on behalf of the Myers is an issue in dispute but which is not relevant to the issues before this Court.3 The purchasers agreed to make 300 consecutive monthly payments of $409.72 to begin on October 20, 1995 to repay the financed sum of $44,228.25 at 10.25% interest. Also, the purchasers granted The Home Show a purchase money security interest in the mobile home which The Home Show subsequently assigned to Conseco Finance Servicing Corp. The manufactured home was thereafter occupied by defendants/third party plaintiffs herein, Virgil Myers, Beverly Myers, and Matthew Myers.

On August 26, 1999, Conseco sued the Myers claiming default in the payment obligations by failing to timely pay the installments due in April, May, and June 1999 so that the account was now in arrears in the amount of $1,243.88. Conseco requested that it be awarded immediate possession of the manufactured home.

The Myers filed a counterclaim in which they alleged fraud and conspiracy, fraud and unfair and deceptive practices, unconscionable contract, lack of cosigner disclosure, debt collection violation, and breach of implied warranties. Some of these claims arose from the Myers' allegation that the Keetens were supposed to have been only co-signers on the purchase of the home and that the Myers were the true buyers. On March 20, 2000, the Myers were granted leave to file a third-party complaint against The Home Show, Inc., who was the seller of the manufactured home, and CMH Manufacturing, Inc., the manufacturer of the home, in which the Myers alleged essentially the same causes of action as contained in their counterclaims against Conseco.

On December 20, 2000, the Myers were again granted leave to amend and supplement their third-party complaint by adding Steven Allred, Commissioner of the West Virginia Department of Labor ("the Commissioner") as a third-party defendant. They alleged that the Commissioner failed to enforce state standards with respect to the set up and delivery of the manufactured home in violation of W.Va.Code § 21-9-1 et seq. According to the Myers, they made a complaint to the Department of Labor during the period February 1999 through May 1999, and the Department investigated the complaint, required certain corrections, and ignored or failed to require correction of others. The Myers requested that the Commissioner be enjoined from refusing to enforce State law and standards with regard to setup of manufactured homes, and that the Myers be offered monetary relief from the State Manufactured Housing Recovery Fund for damages as a result of their defective manufactured home.

By order of March 1, 2001, the circuit court certified the four questions set forth above to this Court. In its certifying order, the circuit court found as undisputed that:

3. ... [the Myers] forwarded a complaint to the West Virginia Board of Manufactured Housing Construction and Safety ("Board"), under the Division of Labor, pursuant to the complaint procedure (42 C.S.R. § 19-13) on January 29, 1999.
4. On February 25, 1999 the Board forwarded a copy of the complaint and notification to the seller and manufacturer.
5. Pursuant to the residents' complaint, the Board sent a Compliance Officer to the home and did an inspection on March 2, 1999.
6. As a result of the inspection on May 10, 1999, the Board gave notice to the seller but not to the consumer of certain defects in the mobile home.4
7. The seller contends that it repaired the mobile home on May 19, 1999.5
8. The Board did a reinspection and made findings thereon on May 27, 1999. No notice thereof was provided to the [Myers].6
9. The third party plaintiffs contend that the damage and defects have not been repaired.

(Citations omitted and footnotes added).

We now proceed to address the certified questions.

II. STANDARD OF REVIEW

"The appellate standard of review of questions of law answered and certified by a circuit court is de novo." Syllabus Point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).

III. DISCUSSION

The first question we are asked by the circuit court is:

Does 42 C.S.R. § 19-13, now codified in West Virginia Code § 21-9-11a, impose a duty on the West Virginia Division of Labor,7 upon receipt of a consumer complaint, to conduct a complete investigation on every new manufactured home's construction, assembly and installation relative to compliance with state and federal standards and the installation manual? (Footnote added).

The Myers point us to the specific language of 42 C.S.R. 19-13.5, a rule promulgated by the West Virginia Manufactured Housing Construction and Safety Board, which provides that "[i]f, upon investigation, the Division determines that no violation of any federal or state manufactured housing standard has occurred, the Division shall inform the complainant in writing." (Emphasis added). According to the Myers, the phrase "any federal or state manufactured housing standard" indicates that the State inspector is not only to inspect to determine if the specific complaints are valid, but is to perform a thorough inspection to determine if any federal or state construction or safety standards have been violated. The Myers aver that, in this case, the West Virginia Division of Labor's ("the Division") inspector conducted a superficial inspection limited to only the defects identified in the Myers' complaint while other significant federal and state violations were not discovered. The Myers ask this Court to declare that the Division of Labor must conduct comprehensive inspections consistent with federal and state standards.

The Commissioner responds that there are two reasons why this question should be answered in the...

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