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Young v. Eoscca

Supreme Court of West Virginia

May 17, 2017

EDITH YOUNG, Plaintiff below, Petitioner
v.
EOSCCA, Defendant below, Respondent

          Submitted: May 2, 2017

         Appeal from the Circuit Court of Kanawha County Honorable Charles E. King Civil Action No. 14-C-1326

          Benjamin M. Sheridan, Esq. Klein & Sheridan, LC Hurricane, West Virginia Counsel for Petitioner.

          Nicholas P. Mooney, Esq. Nicholas S. Preservati, Esq. David L. Shuman, Jr., Esq. Spilman Thomas & Battle, PLLC Charleston, West Virginia Counsel for Respondent.

         SYLLABUS

         By limiting the right to recover for a violation of the West Virginia Consumer Credit and Protection Act to those persons defined as "consumers, " the Legislature has expressly prohibited any persons falling outside the definition of a "consumer" from seeking damages and statutory penalties pursuant to the provisions of West Virginia Code § 46A-5-101 (2015).

          OPINION

          LOUGHRY, Chief Justice.

         The petitioner, Edith Young, appeals from the February 2, 2016, order of the Circuit Court of Kanawha County granting summary judgment to the respondent, EOS CCA[1] ("EOS"), in connection with her complaint against EOS asserting, inter alia, violations of the West Virginia Consumer Credit and Protection Act (the "Act").[2] Ms. Young challenges the circuit court's ruling that she is not a "consumer" within the applicable definitions of the Act.[3] Upon careful scrutiny of the Act's provisions, we do not find that the circuit court committed error and, accordingly, affirm.

         I. Factual and Procedural Background

         Ms. Young filed her complaint against EOS on July 23, 2014, alleging that EOS, a debt collector, had violated the Act by engaging in unreasonable or oppressive or abusive conduct in an attempt to collect a debt. She averred that EOS had repeatedly called her home and continued to attempt to communicate with her after she indicated she was represented by counsel. In addition to asserting violations of the Act, Ms. Young alleged common law claims grounded in negligence, intentional infliction of emotional distress, and invasion of privacy.

         Discovery in this matter ensued in accordance with the trial court's issuance of a scheduling order. When Ms. Young was deposed in November 2015, she answered preliminary questions to confirm that she resided with her husband, who was then eighty-three and suffering from Alzheimer's, [4] and to verify that she had the same telephone number for all times relevant to this case. Ms. Young testified regarding a document tendered through discovery on which she had recorded her receipt of numerous phone calls from the same 800 number.[5] She testified that "Bank Americard" appeared on her caller ID when each of those phone calls rang into her home.[6] According to her testimony, Ms. Young never picked up the phone to speak with the caller; she just registered the caller's identifying information that appeared on her phone. On one occasion, however, Ms. Young contends she did answer the phone. She purportedly informed the caller on August 13, 2013, when her caller ID revealed the caller as Bank Americard, that they should contact her attorney.[7]She further admits, however, that "I don't know who was on the other end. I didn't hear nobody." Ms. Young also acknowledges that the call might have been for someone other than herself.

         While Ms. Young admittedly has a credit-related debt with Bank Americard, [8]she does not have any specific debt in connection with the calls that EOS made to her land line phone. The calls EOS made to Ms. Young's home were in an attempt to locate an AT&T customer who was delinquent on his account.[9] That entity is a non-party to this lawsuit, whose identity the trial court permitted the respondent to protect. Ms. Young asserts that seventy-three such calls were made by EOS. The corporate records of EOS reflect that same number of contacts being made to the phone number associated with Ms. Young's residence.[10]

         During the deposition of Brian Soule, the corporate manager of training and development at EOS USA, the petitioner's counsel played a recording of a purported telephone conversation between EOS and Ms. Young that allegedly occurred on September 5, 2013. The caller asked for either "Jim" or "James, "[11] to which Ms. Young responded that "he's not home or he's not available or he's not there."[12] Mr. Soule explained that EOS would stop calling a third-party number such as Ms. Young's where they were simply trying to gain information helpful to locate the actual consumer with the subject debt "if they indicated to us that the person does not live there and we have the wrong number or asked us to stop calling." While Mr. Soule testified that their company records lacked any notation of this conversation, he indicated that such an omission may have been a systemic collection error.

         On December 11, 2015, EOS filed a motion for summary judgment in which it asserted Ms. Young lacked standing to seek relief under the Act because she failed to fall within the applicable definitions of "consumer" provided in the Act. In an attempt to defeat the standing argument, the petitioner filed an affidavit in which she avowed her status as a consumer in general due to debts she owed to Bank of America, Home Depot, Suddenlink Communications, and several other unnamed corporations.

         Following a hearing on the summary judgment motion, [13] the trial court issued an order on February 2, 2016, granting summary judgment to EOS and dismissing the petitioner's complaint. In its ruling, the trial court examined the definitions of the term "consumer" provided in the Act and concluded that the record is clear that the petitioner "does not owe a debt to Defendant [EOS]." As the circuit court reasoned, the "Defendant was calling the Number to collect a debt owed from a non-party to this case. There is no evidence on the record from which a jury could reasonably find that Defendant somehow alleged that Plaintiff owed a debt to it." After finding that Ms. Young did not have standing to assert a claim under the Act based on her non-consumer status in connection with the referenced debt, the circuit court determined that she also could not succeed under a theory of common law negligence with regard to those same allegations. This ruling was based on a finding that Ms. Young had failed to show there was a legal duty on the part of EOS to "train, supervise, monitor or otherwise control its employees" to ensure that those employees comply with the provisions of the Act. As to the intentional infliction of emotional distress claim, the circuit court found the absence of any evidence from which a jury could reasonably find that EOS intentionally harassed Ms. Young or caused her severe emotional distress. As the court's ruling accurately reflects, "Plaintiff testified that she had no reaction to the phone calls about which she is complaining." In dismissing the petitioner's invasion of privacy claim, the trial court ruled there was a lack of evidence to support this claim.[14]It is from this grant of summary judgment that the petitioner seeks relief.[15]

         II. Standard of Review

         Our review of this matter is plenary. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). It is axiomatic that a motion for summary judgment should only be granted when there is no genuine issue of fact to be tried and when further inquiry into the facts is not required for purposes of applying the law. See Syl. Pt. 3, Aetna Cas. & Surety Co. v. Fed. Ins. Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Because we must resolve whether the circuit court correctly determined that the petitioner does not qualify as a "customer" under the Act, our review is further guided by this Court's recognition that "[w]here the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syl. Pt. 1, C ...


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