Mey v. Pep Boys-Manny

• Decision Date: 29 September 2011
• Docket Number: No. 101406.,101406.
• Citation: 228 W.Va. 48,717 S.E.2d 235
• Court: West Virginia Supreme Court
• Parties: Diana MEY, Plaintiff below, Petitioner v. The PEP BOYS–MANNY, MOE & JACK, Southwest Vehicle Management, Inc., and Lanelogic, Inc. d/b/a Caroffer.com, Defendants below, Respondents.

228 W.Va. 48

717 S.E.2d 235

Diana MEY, Plaintiff below, Petitioner

v.The PEP BOYS–MANNY, MOE & JACK, Southwest Vehicle Management, Inc., and Lanelogic, Inc. d/b/a Caroffer.com, Defendants below, Respondents.

No. 101406.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 20, 2011.Decided Sept. 29, 2011.

Syllabus by The Court

1. Under the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq., a caller responding to a classified advertisement is not making a “telephone solicitation” in violation of the Act, provided the purpose of the call is to inquire about or offer to purchase the product or service advertised, rather than to encourage the advertiser to purchase, rent, or invest in property, goods or services.

2. A motion under Rule 59(e) of the West Virginia Rules of Civil Procedure should be granted where: (1) there is an intervening change in controlling law; (2) new evidence not previously available comes to light; (3) it becomes necessary to remedy a clear error of law or (4) to prevent obvious injustice.

John W. Barrett, Esq., Jonathan R. Marshall, Esq., Bailey & Glasser, LLP, Charleston, WV, Matthew P. McCue, Esq., Pro Hac Vice, Natick, ME, for Petitioner.

Keith J. George, Esq., Jeffrey A. Kimble, Esq., John J. Meadows, Esq., Robinson & McElwee, PLLC, Clarksburg, WV, Michael Mallow, Esq., Laura A. Wytsma, Esq., Aurele A. Danoff, Esq., Pro Hac Vice, Loeb & Loeb, LLP Los Angeles, California, for Respondents, The Pep Boys–Manny, Moe and Jack.

J.H. Mahaney, Esq., Charles F. Bellomy, Esq., Huddleston Bolen, LLP, Huntington, West Virginia, for Respondents, Southwest Vehicle Management, Inc. and Lanelogic, Inc., d/b/a Caroffer.com.KETCHUM, J.:

The plaintiff below, Diana Mey (“plaintiff”), appeals an order from the Circuit Court of Ohio County, granting the defendants' motion to dismiss pursuant to Rule 12(b)(6) of the West Virginia Rules of Civil Procedure . The plaintiff filed a class action complaint alleging that the defendants, The Pep Boys, Southwest Vehicle Management, Inc., and Lanelogic Inc. (“defendants”), violated the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., by leaving an automated voicemail message at her residence in response to a classified advertisement that the plaintiff's son placed on the internet website craigslist.com. The plaintiff's son was selling a used car and his internet advertisement invited third parties to contact him at the plaintiff's home telephone number. The circuit court ruled that the automated call placed in response to this advertisement did not violate the TCPA and granted the defendants' motion to dismiss. Following this ruling, the plaintiff filed a motion for relief pursuant to Rules 59(e) and 60(b) of the West Virginia Rules of Civil Procedure , which the circuit court denied.

In this appeal, the plaintiff argues that the circuit court erred by (1) failing to apply the correct standard of review when assessing a Rule 12(b)(6) motion to dismiss; (2) ruling that the automated call was not a “telephone solicitation” and did not contain an “unsolicited advertisement” as those terms are defined by the TCPA; (3) failing to grant the plaintiff's motion for relief pursuant to Rules 59(e) and 60(b) of the West Virginia Rules of Civil Procedure after being informed that the Federal Communication Commission (“FCC”) issued a citation against the defendants; and (4) finding that the plaintiff provided her “prior express consent” to be contacted.

After thorough consideration of the briefs, the record submitted on appeal, and the oral arguments of the parties, we affirm the circuit court's orders granting the defendants' Rule 12(b)(6) motion to dismiss and denying the plaintiff's motion for relief pursuant to Rules 59(e) and 60(b) of the West Virginia Rules of Civil Procedure .

I. Facts & Procedural Background

In early June 2008, the plaintiff's son, who lived with his mother, listed a used car for sale on the website craigslist.com and provided their home telephone number that interested third parties could use to contact him. On June 12, 2008, the plaintiff received an automated ¹ telephone call stating:

Hello. I'm calling you about the vehicle you have listed for sale. At Caroffer.com we're willing to give you a cash offer right now. All you have to do is go to Caroffer.com, tell us about your vehicle and we'll give you an offer in minutes. One of our buyers will return an offer that we are willing to take for your vehicle. If you accept the offer, simply drop off your car at the nearest participating Pep Boys to pick up your check. It's that easy at Caroffer.com. There are no hassles, no fees, and no salesmen trying to sell you another car. It's that easy and you get your check immediately. www. Caroffer. com. Give us a try. You'll be glad you did.

After receiving this message, the plaintiff filed a class action complaint against three defendants, The Pep Boys, Lanelogic Inc., and Southwest Vehicle Management Inc., who allegedly entered into a partnership to purchase used cars. The plaintiff sought damages and an injunction under the TCPA, 47 U.S.C. § 227, to redress the alleged harm caused by the automated message left on her answering machine.

The TCPA is a federal statute that broadly regulates the use of automated telephone equipment. The statute prohibits certain unsolicited advertising calls, restricts the use of automatic dialers, and delegates rulemaking authority to the FCC. The TCPA provides for injunctive relief and statutory damages in the amount of $500 per violation. 47 U.S.C. § 227(b)(3).

In response to the plaintiff's complaint, the defendants filed a motion to dismiss, arguing that there was no violation of the TCPA because the automated message was left in response to an advertisement placed on the Internet by the plaintiff's son that invited third parties to make inquiries about buying the used car.

The circuit court agreed with the defendants and granted their motion to dismiss by order entered on January 15, 2010. The circuit court concluded that “the message does not constitute an unsolicited advertisement subject to TCPA enforcement because the person posting the classified [ad] is expressly inviting a call using the number in the classified ad ... The facts alleged in this case are the antitheses of the definition of ‘unsolicited’ because Plaintiff's son requested unknown third parties interested in buying his car to contact him at Plaintiff's number.”

On February 1, 2010, the plaintiff filed a motion for relief from the judgment pursuant to Rules 59(e) and 60(b) of the West Virginia Rules of Civil Procedure . The plaintiff argued that documents the defendants provided to her “shortly before” the motion to dismiss hearing demonstrated that the automated message at issue “was intended not only to lead to the sale of a car to the Defendants, but also to sell $99 inspection service-fees, ‘up-sell’ auto repairs, and ‘entice’ customers to pay to ‘recondition’ the cars they intended to sell.”

The plaintiff filed a supplemental memorandum to this motion on April 30, 2010, notifying the circuit court that the FCC issued a citation against defendant Pep Boys on March 15, 2010, relating to the automated message at issue. In response, the defendants argued that the plaintiff failed to raise any new facts that warranted relief under Rules 59(e) or 60(b). The defendants stated that the plaintiff had the documents relating to the inspection fees and auto repairs before the hearing on the motion to dismiss and that this issue was raised and argued before the circuit court during that hearing. The defendants argued that the FCC citation was based on a consumer complaint the plaintiffs filed with the FCC twelve days after the circuit court granted the defendants' motion to dismiss. The defendants also stated that the citation was not an actual adjudication of wrongdoing, rather it was “merely a complaint or ‘charge’ consisting of allegations, not a decision of liability or a determination on the merits.”

The circuit court agreed with the defendants and denied the plaintiff's Rule 59(e) and 60(b) motion for relief from judgment, stating:

Plaintiff's Motion for Relief essentially reargues the points and facts that were already presented in her opposition to Defendants' Motion to Dismiss and fails to identify new facts, new law or new arguments that would justify a reconsideration of the Court's prior ruling let alone a reversal of the Court's ruling.

Following the circuit court's denial of her motion for relief, the plaintiff filed the present appeal.

II. Standard of Review

On appeal to this Court, the plaintiff contests two rulings made by the circuit court. Generally, when reviewing a circuit court's decision, we apply a three-part standard of review:

In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syllabus Point 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). As the various errors raised by the plaintiff concern different principles of law, multiple standards of review apply to our consideration of those issues. Therefore the specific standards of review will be applied below in our discussion of the plaintiff's arguments.

III. Analysis

A. Standard for Consideration of a Rule 12(b)(6) Motion to Dismiss

The plaintiff's first assignment of error is that the circuit court erred in its application of the standard for consideration of a motion to dismiss. This Court has explained that “[t]he purpose of a motion under Rule 12(b)(6) is to test the formal sufficiency of the complaint.” Collia v. McJunkin, 178 W.Va. 158, 159, 358 S.E.2d 242, 243 (1987) (citations...