Dan's Carworld, LLC v. Serian

• Citation: 677 S.E.2d 914
• Decision Date: 13 May 2009
• Docket Number: No. 34146.,34146.
• Court: Supreme Court of West Virginia
• Parties: DAN'S CARWORLD, LLC d/b/a/ Dan Cava's Toyota World, Plaintiff Below, Appellee, v. David SERIAN, Defendant Below, Appellant.

677 S.E.2d 914

DAN'S CARWORLD, LLC d/b/a/ Dan Cava's Toyota World, Plaintiff Below, Appellee, v. David SERIAN, Defendant Below, Appellant.

No. 34146.

Supreme Court of Appeals of West Virginia.

Submitted March 10, 2009.

Decided May 13, 2009.

Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "`"A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).' Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992)." Syllabus point 2, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. "The circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syllabus point 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

4. "The question as to whether a contract is ambiguous is a question of law to be determined by the court." Syllabus point 1, in part, Berkeley County Public Service District v. Vitro Corp. of America, 152 W.Va. 252, 162 S.E.2d 189 (1968).

5. "`It is not the right or province of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed in unambiguous language in their written contract or to make a new or different contract for them.' Syllabus Point 3, Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962)." Syllabus point 1, Hatfield v. Health Management Associates of West Virginia, 223 W.Va. 259, 672 S.E.2d 395 (2008) (per curiam).

6. "`A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.' [Syllabus point 1,] Cotiga Development Co. v. United Fuel Gas Co., 147 W.Va. 484, 128 S.E.2d 626 (1962)." Syllabus point 1, Bennett v. Dove, 166 W.Va. 772, 277 S.E.2d 617 (1981).

7. "The primary object in construing a statute is to ascertain and give effect to the intent of the Legislature." Syllabus point 1, Smith v. State Workmen's Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).

8. When a consumer purchases a motor vehicle from a dealership, and the dealership accepts the trade in of another motor vehicle as payment, or partial payment, of the purchase price of the vehicle being purchased, subsequent efforts by the dealership to collect from the consumer any amounts due the dealership by virtue of the dealership's payment of the loan secured by the trade-in vehicle must comply with the West Virginia Consumer Credit and Protection Act, codified in Chapter 46A of the West Virginia Code.

Julie Gower Romain, Fairmont, WV, for the Appellant.

Gregory H. Schillace, Schillace Law Office, Clarksburg, WV, for the Appellee.

DAVIS, Justice:

This is an appeal by David Serian, defendant below (hereinafter referred to as "Mr. Serian"), the purchaser of a motor vehicle, from two rulings granting summary judgment in favor of Dan's Carworld, plaintiff below and appellee herein, the seller of the vehicle. One issue in this case is whether Mr. Serian is obligated to reimburse Dan's Carworld for its payment of the balance due on a loan secured by a vehicle offered by Mr. Serian in trade for the new vehicle he purchased. Pursuant to the plain language of the motor vehicle purchase agreement, we find Mr. Serian is obligated to reimburse Dan's Carworld and affirm the lower court's grant of summary judgment with respect to this issue. A second issue is whether the circuit court erred in granting summary judgement to Dan's Carworld with regard to Mr. Serian's counterclaims. The circuit court's ruling was based upon its determination that the aforementioned amount owed by Mr. Serian did not constitute a "claim" as that term is defined in W. Va.Code § 46A-2-122(b) (1996) (Repl. Vol. 2006). We find that the amounts owed by Mr. Serian fall within the definition of the term "claim," and therefore reverse the grant of summary judgment as to Mr. Serian's counterclaims.

I. FACTUAL AND PROCEDURAL HISTORY

In March 2006, Mr. Serian purchased a 2006 Toyota Tacoma truck from Dan's Carworld. Mr. Serian contends that, prior to his purchase, he was solicited by phone on several occasions by a salesman of Dan's Carworld encouraging him to purchase a new 2006 Toyota truck. At that time, Mr. Serian and his wife owned two Toyota trucks.¹ Both trucks were subject to liens held by Wachovia Bank. The salesman allegedly encouraged Mr. Serian to purchase the new Toyota truck to replace his 2002 truck. When asked how much he owed on the 2002 truck, Mr. Serian purportedly replied that he owed "a couple thousand dollars." Mr. Serian claims that he ultimately agreed to trade his 2002 truck toward the purchase of the 2006 truck, but only if the payment on the new loan for the 2006 truck would not exceed the amount he currently paid each month on his existing motor vehicle loan for the 2002 truck.

The transaction was completed on March 23, 2006. The new motor vehicle purchase agreement and loan agreement were both prepared by an employee of Dan's Carworld. Mr. Serian signed both agreements, and both agreements indicated that the balance due on his loan for the 2002 truck was $2,320.09. On the back of the motor vehicle purchase agreement was the following clause:

7. BALANCE OWED ON TRADE-IN

If the Purchaser is delivering a trade-in vehicle or is turning in a leased vehicle as part of the transaction and the actual amount of the balance owed on the trade-in vehicle/lease turn-in is different than the amount of the balance owed as listed in this Agreement, the Purchaser agrees to pay the difference to the Dealer if the actual amount of the balance owed is greater than the amount listed and, if the actual amount of the balance owed is less than the amount listed, the Dealer agrees to pay the difference to the Purchaser.

When preparing the purchase agreement and finance agreement forms, the Dan's Carworld employee contacted Wachovia Bank to ascertain the payoff amount for the 2002 truck being traded in connection with Mr. Serian's purchase of the 2006 truck. The employee, using Mr. Serian's social security number, was given the payoff amounts for both of Mr. Serian's motor vehicle loans with Wachovia. The payoff on one loan was $4,357.87, and the other was $2,320.09. The employee used the lower figure, $2,320.09, on the purchase agreement and finance agreement forms. Mr. Serian signed, without modification, the purchase agreement and finance agreement forms as prepared by Dan's Carworld.

The amount of $2,320.09 was actually the payoff amount for Mr. Serian's 1997 truck. The figure of $4,357.87 represented the payoff for his 2002 truck. Mr. Serian asserts that the Dan's Carworld employee completing the forms failed to use the truck's Vehicle Identification Number (hereinafter referred to as "VIN") to determine which loan was secured by the 2002 truck. Mr. Serian further avers that Dan's Carworld intentionally selected the lower loan amount to meet his requirement that his monthly motor vehicle loan payment not increase. Otherwise, claims Mr. Serian, he would not have agreed to purchase the 2006 truck. Dan's Carworld states that it obtained the loan information using Wachovia's automated phone system which does not provide loan information based upon a VIN. Furthermore, Dan's Carworld contends that its employee selected the lower figured based upon Mr. Serian's representation that he owed approximately $2,000.00 on the 2002 truck.

On March 23, 2006, Dan's Carworld forwarded to Wachovia Bank a check in the amount of $2,320.09 to pay off the loan on the 2002 truck. On March 28, 2006, Dan's Carworld received correspondence from Wachovia Bank stating that the actual payoff on the 2002 truck was $4,357.87, leaving a balance due of $2,037.78 on that vehicle. The 2002 truck had already been sold to a third party. Therefore, Dan's Carworld paid to Wachovia the $2,037.78 due on the vehicle and endeavored to collect the same from Mr. Serian pursuant to the terms of the Motor Vehicle Purchase Agreement. Mr. Serian claims that both Dan Cava, owner of Dan's Carworld, and one of its salesmen contacted him to collect the $2,037.78 that had been tendered by Dan's Carworld to Wachovia in payment of the loan on the 2002 truck. Mr. Serian refused to pay the amount and demanded the return of his trade-in vehicle. Because the 2002 truck had already been sold, Dan's Carworld refused to return the same. Mr. Serian alleges that the calls thereafter became "heated" with Mr. Cava cursing at him and threatening to ruin his credit rating. Thereafter, Dan's Carworld, through its counsel, sent correspondence to Mr. Serian demanding payment.

Dan's Carworld filed the instant action asserting unjust enrichment by Mr. Serian in connection with the above-described vehicle transaction. Mr. Serian then filed counterclaims against Dan's Carworld asserting violations of the West Virginia Consumer Credit and Protection Act (hereinafter referred to as "the CCPA"), and fraud, on the basis that Dan's Carworld was attempting to collect a debt arising out of a consumer transaction.

Both parties moved for summary judgment. The circuit court, by "Final Judgment Order" entered October 19, 2007, granted summary judgment in favor of Dan's Carworld on all issues. With respect to Mr. Serian's claims under the CCPA, the circuit court concluded that

these statutory sections [are] inapplicable to the above-styled action as [Dan's Carworld] was not attempting to collect a claim or debt as defined and...