No. 32611 -
Rita
K. Herrod and Jennifer A. Herrod v. First Republic Mortgage Corporation,
Inc., dba First Security Mortgage Corporation, a corporation; Washtenaw Mortgage
Company, a corporation; Chase Manhattan Mortgage Corporation, a corporation;
Earl Young; Craddocks Last Stand, Inc., a corporation; Darleen Westfall;
West Virginia Real Estate Appraiser Licensing and Certification Board; and
Federal National Mortgage Association
Davis, J., concurring in part and dissenting in part:
In this case, the majority concluded that
the circuit court was correct in granting summary judgment to Washtenaw as to
the Herrod's claims alleging a failure to comply with the Credit Services Organizations
provision of the West Virginia Consumer Credit and Protection Act, fraud, and
unfair or deceptive practices under the West Virginia Consumer Credit and Protection
Act. I concur fully with the majority opinion's resolution of these matters.
I disagree, however, with the majority's reversal of summary judgment as to the
Herrod's claims of unconscionability and joint venture, agency or conspiracy.
1. Unconscionability. The
majority's analysis of the issue of unconscionability does not apply to the facts
of this case. In it's analysis of this issue, the
majority opinion holds that “[w]here unconscionability is asserted under
West Virginia Code § 46A-2- 121 (1996) (Repl. Vol. 1999), the existence
of questions of fact regarding
whether the bargaining power was grossly
unequal and thereby rendered the transactions between the plaintiffs and
defendants unconscionable precludes the resolution of such claims through summary
judgment.” Syl. pt. 4, in part (emphasis added). The majority goes on
to discuss the inequality between the bargaining positions of the Herrod's
as compared to First Security. While there may indeed have been such a disparity,
this analysis is irrelevant to the instant appeal as there were no issues pertaining
to First Security presented to this Court. The
only defendant remaining
in this case is Washtenaw.
(See
footnote 1) There is simply no evidence in this case that Washtenaw
engaged in any bargaining with the Herrods. Rather, as the majority opinion
plainly acknowledges, the bargaining occurred between the Herrods and First
Security. Although Washtenaw was the lender in this case, it simply had no
direct contact with the Herrods. Because there was absolutely no bargaining
between the Herrods and Washtenaw, the Herrod's claim of unconscionability
against Washtenaw simply cannot stand. For this reason, I strongly believe
the circuit court was correct in granting summary judgment to Washtenaw on
this claim.
2. Joint
Venture, Agency or Conspiracy. The only evidence to support
the Herrod's claims of a joint venture, agency or conspiracy was the opinion
of the Herrod's expert witness, which was entirely speculative. Indeed, the
majority itself concedes that “the evidence in the record on this issue
is inferential at best . . . .” Maj. slip op. at 21.
In finding that the circuit court erred in granting summary judgement on this
issue, the majority ignores the fact that this Court has long recognized the
requirement for a minimum level of evidence to overcome a motion for summary
judgment. With respect to the burden placed on the non-moving party in order
to overcome a proper motion for summary judgment, we have held that
If
the moving party makes a properly supported motion for summary judgment and can
show by affirmative evidence that there is no genuine issue of a material fact,
the burden of production shifts to the nonmoving party who must either (1) rehabilitate
the evidence attacked by the moving party, (2) produce additional evidence showing
the existence of a genuine issue for trial, or (3) submit an affidavit explaining
why further discovery is necessary as provided in Rule 56(f) of the West Virginia
Rules of Civil Procedure.
Syl. pt. 3, Williams v. Precision Coil, Inc., 194 W. Va. 52, 459
S.E.2d 329 (1995). Moreover, this Court has repeatedly observed that “the
party opposing summary judgment must satisfy the burden of proof by offering
more than a mere 'scintilla of evidence,' and must produce evidence sufficient
for a reasonable jury to find in a nonmoving party's favor.” Painter
v. Peavy, 192 W. Va. 189, 192-3, 451 S.E.2d 755 758-59 (1994) (quoting Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512,
91 L. Ed. 2d 202, 214 (1986)). Accord Toth v. Board of
Parks and Recreation Comm'rs, 215 W. Va. 51, 56, 593
S.E.2d 576, 581 (2003); Bowers v. Wurzburg, 207 W. Va. 28, 41,
528 S.E.2d 475, 488 (1999) (Davis, J., dissenting); Gardner v. CSX Transp.,
Inc., 201 W. Va. 490, 497-98, 498 S.E.2d 473, 480-81 (1997); Jividen
v. Law, 194 W. Va. 705, 713, 461 S.E.2d 451, 459 (1995). In this case,
the Herrods failed to meet their burden of providing more than a mere scintilla
of evidence and, therefore, it is my view that the circuit court was correct
in granting summary judgment to Washtenaw on this claim.
For the foregoing reasons, I concur in part,
and respectfully dissent in part, from the majority opinion.
I am authorized to state that Justice Maynard joins me in this separate opinion.
Footnote: 1