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Alan Enterprizes LLC v. Mac's Convenience Stores LLC

Supreme Court of West Virginia

February 7, 2018

ALAN ENTERPRIZES LLC, Plaintiff Below, Petitioner
v.
MAC'S CONVENIENCE STORES LLC, D/B/A CIRCLE K; JOYCE SAMMON; AND LOUIS DIAB, Defendants Below, Respondents

          Submitted: January 10, 2018

         Appeal from the Circuit Court of Harrison County, Business Court Division Honorable Joanna I. Tabit, Judge Civil Action No. 14-C-503-2

          John C. Palmer IV, Keith J. George, Devan K. Flahive, Elizabeth T. Schindzielorz, Robinson & McElwee PLLC Charleston, West Virginia Attorneys for the Petitioner

          Michael Bonasso, Flaherty Sensabaugh, Bonasso PLLC Charleston, West Virginia Zach Chaffee-McClure, pro hac vice Shook, Hardy & Bacon LLP Kansas City, Missouri Attorneys for the Respondents

         SYLLABUS BY THE COURT

         1. "Interpreting a statute or an administrative rule or regulation presents a purely legal question subject to de novo review." Syllabus point 1, Appalachian Power Co. v. State Tax Department of West Virginia, 195 W.Va. 573, 466 S.E.2d 424 (1995).

         2. "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).

         3. "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).

         4. "Where the language of a statute is plain and unambiguous, there is no basis for application of rules of statutory construction; but courts must apply the statute according to the legislative intent plainly expressed therein." Syllabus point 1, Dunlap v. State Compensation Director, 149 W.Va. 266, 140 S.E.2d 448 (1965).

         5. "It is not for this Court arbitrarily to read into a statute that which it does not say. Just as courts are not to eliminate through judicial interpretation words that were purposely included, we are obliged not to add to statutes something the Legislature purposely omitted." Syllabus point 11, Brooke B. v. Ray, 230 W.Va. 355, 738 S.E.2d 21 (2013).

          JUSTICE DAVIS

         The petitioner herein and plaintiff below, Alan Enterprizes LLC ("Alan"), appeals from an order entered January 3, 2017, by the Circuit Court of Harrison County, Business Court Division. By that order, the court granted summary judgment to the respondents herein and defendants below, Mac's Convenience Stores LLC, d/b/a Circle K; Joyce Sammon; and Louis Diab (collectively, "Mac's"), ruling that W.Va. Code § 47-11A-6(a) (1983) (Repl. Vol. 2015)[1] does not include taxes in the calculation of a retailer's cost under the West Virginia Unfair Practices Act, W.Va. Code § 47-11A-1 et seq. On appeal to this Court, Alan assigns error to the circuit court's ruling contending that it should have been permitted to include taxes in its calculation of cost. Upon a review of the parties' arguments, the appendix record, and the pertinent authorities, we find that the circuit court correctly determined that the calculation of a retailer's cost under W.Va. Code § 47-11A-6(a) does not include taxes. Accordingly, we affirm the January 3, 2017, order of the Circuit Court of Harrison County, Business Court Division.

          I. FACTUAL AND PROCEDURAL HISTORY

         Alan is a West Virginia limited liability company that operates three gas stations and convenience stores in Bridgeport, West Virginia. Mac's is a part of an international conglomerate of gas stations and convenience stores and operates one gas station and convenience store in Bridgeport, West Virginia. It is undisputed that both Alan and Mac's are retailers and that they are direct competitors in the Bridgeport gas station and convenience store market. In November 2014, Alan filed suit against Mac's[2] alleging that Mac's had violated the West Virginia Unfair Practices Act, W.Va. Code § 47-11 A-1 et seq. ("the Act"), by selling gasoline below cost. See W. Va. Code § 47-11A-2 (1939) (Repl. Vol. 2015) ("It shall be unlawful for any person, . . . corporation, . . . or other association engaged in business as a retailer . . . within this State, to sell, offer for sale or advertise for sale any article, product or item of merchandise at less than the cost thereof to the vendor . . . for the purposes of unfairly diverting trade from or otherwise injuring one or more competitors, and destroying competition.").[3] But see W.Va. Code § 47-11A-8(d) (1939) (Repl. Vol. 2015) ("The provisions of this article shall not apply to any sale made: . . . In an endeavor in good faith to meet the legal prices of a competitor as herein defined selling the same article, product or item of merchandise, in the same locality or trade area[.]").[4] Mac's filed an answer denying such allegations or that it had violated the Act, and, by joint motion, the parties moved to refer the action to the Business Court Division, which motion we granted by Administrative Order entered November 9, 2015.

         Thereafter, both parties moved for summary judgment seeking a determination as to whether W.Va. Code § 47-11A-6(a) includes taxes within the calculation of a retailer's cost. By order entered January 3, 2017, the circuit court concluded that the calculation of a retailer's cost does not include tax:

The Court interprets the Act to provide that a retailer's taxes are not included in the calculation of its cost for purposes of the Act. W.Va. Code § 47-11A-6 (1983) directs that calculating cost for a wholesaler includes "the invoice cost of the merchandise to the wholesaler plus applicable taxes . . . .", whereas cost for a retailer omits any mention of "applicable taxes." This difference falls within the maxim expressio unius est exclusio alterius. Applying principles of statutory construction, the statute's silence as to "applicable taxes' [sic] in the retailer context evidences that the Legislature did not intend for those "taxes" to be included as a retailer's costs. The Court appreciates the Plaintiff's argument that this interpretation thwarts legislative intent by rendering the Act moot in the context of retail gasoline sales due to "cost" being so low; however, this, perhaps unintended, collateral effect should be resolved, if at all, legislatively. Furthermore, the Court determines that the Legislature did not build a ...

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