McMahon v. Advanced Title Services Co.
| Decision Date | 03 December 2004 |
| Docket Number | No. 31706.,31706. |
| Court | West Virginia Supreme Court |
| Parties | 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. |
Daniel J. Guida, Weirton, Robert P. Fitzsimmons, Wheeling, for Plaintiff.
John Preston Bailey, Bailey, Riley, Buch & Harman, Wheeling, Amicus Curiae for the West Virginia State Bar.
Bren J. Pomponio, Daniel F. Hedges, Mountain State Justice, Inc., Charleston, Amicus Curiae for Mountain State Justice, Inc.
Thomas A. Heywood, Sandra M. Murphy, Eric L. Calvert, Bowles Rice McDavid Graff & Love, Charleston, Amicus Curiae for The West Virginia Association of Community Bankers, Inc. and The West Virginia Bankers Association, Inc.
James W. St. Clair, Huntington, Amicus Curiae for The West Virginia Bar Association.
William David Wilmoth, Steptoe & Johnson, Wheeling, for Advanced Title Services Company of West Virginia, et al.
Paul D. Ellis, Baker & Hostetler, Columbus, OH, Jerry R. Linscott, Baker & Hostetler, Orlando, FL, Pro Hac Vice for Advanced Title Services Company of West Virginia, et al.
James F. Companion, Schrader, Byrd & Companion, Wheeling, 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.
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.
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 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 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 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 — and even if this conduct was arguendo the unauthorized and unlawful practice of law — that nevertheless, the plaintiff simply had no standing to make a claim for relief based on the defendants' conduct being the unlawful and unauthorized practice of law.4
The circuit court granted the plaintiff's motion for certification of questions and partial summary judgment, and entered an order, with findings of fact and conclusions of law, that is too lengthy to reproduce here. The circuit court's order concluded:
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