Jennifer M. McGinley Debra
T. Herron
Ann L. Ballard
McNeer,
Highland, McNunn & Warner, LLC
Ballard-McGinley, PLLC Clarksburg,
West Virginia
Morgantown, West Virginia Thomas
Evan Green
George R. Adase
Kastner
Westman & Wilkins, LLC
Wheeling, West Virginia Akron,
Ohio
Attorneys for the Appellants Attorneys
for the Appellee
The opinion of the Court was delivered Per Curiam.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
2. “Before certifying a class under Rule 23 of the West Virginia Rules of Civil Procedure [(1998)], a circuit court must determine that the party seeking class certification has satisfied all four prerequisites contained in Rule 23(a)_numerosity, commonality, typicality, and adequacy of representation - and has satisfied one of the three subdivisions of Rule 23(b). As long as these prerequisites to class certification are met, a case should be allowed to proceed on behalf of the class proposed by the party.” Syllabus point 8, In re Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003).
3. “'The party who seeks to establish the propriety of a class action has the burden of proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil Procedure have been satisfied.' Syllabus Point 6, Jefferson County Board of Education v. Jefferson County Education Association, 183 W. Va. 15, 393 S.E.2d 653 (1990).” Syllabus point 4, In re Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003).
4. “When a circuit court is evaluating a motion for class certification under Rule 23 of the West Virginia Rules of Civil Procedure [(1998)], the dispositive question is not whether the plaintiff has stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 have been met.” Syllabus point 7, In re Rezulin Litigation, 214 W. Va. 52, 585 S.E.2d 52 (2003).
Per Curiam:
Betty Gulas, and the putative class she represents (hereinafter
collectively referred to as “Ms. Gulas”), plaintiffs below and appellants,
appeal a final order of the Circuit Court of Harrison County denying her motion
to certify a class, denying her motion to amend her complaint, and granting a
motion to dismiss filed by Infocision Management Corporation (hereinafter referred
to as “Infocision”), defendant below and appellee. Having reviewed
the briefs, examined the record, consulted the pertinent authorities, and heard
the oral arguments of counsel, we find that this case should be remanded for
discovery on the issue of class certification.
With the agreement of Ms. Gulas, Infocision was granted an additional thirty days to answer the complaint. On February 21, 2003, Infocision filed a motion to dismiss for failure to state a claim pursuant to W. Va. R. Civ. P. 12(b)(6). The 12(b)(6) motion alleged that Ms. Gulas had already successfully litigated her claims.
On March 20, 2003, Ms. Gulas filed a motion to certify the case as a class action pursuant to W. Va. R. Civ. P. 23. On this same day, Ms. Gulas conceded that she was barred from pursuing her claims by the doctrine of res judicata. However, she then moved to amend the complaint to substitute Shirley Myer (hereinafter referred to as “Ms. Myer”), for Ms. Gulas as class representative.
On April 1, 2003, Infocision filed its Brief in Opposition to the motion to certify the class. On April 21, 2003, Ms. Gulas filed her response to Infocision's opposition to class certification. This response also included a request to file a second amended complaint substituting Thomas Watson (hereinafter referred to as “Mr. Watson”) as class representative since Ms. Myer had sustained injuries from a brain aneurysm which precluded her participation as a class representative.
By order entered April 23, 2004, the circuit court
denied Ms. Gulas's motion to certify the class and her motion to amend the
complaint. The court then granted Infocision's motion to dismiss because
Ms. Gulas conceded she was barred from suing Infocision under the doctrine of res judicata.
The circuit court entered its final order on April 23, 2003. In so doing, it was bound by law arising prior to that date. Subsequent to the circuit court's order in the case, we decided In re Rezulin, the seminal case in West Virginia on Rule 23. (See footnote 2) Prior to In re Rezulin, the leading case in West Virginia on class actions was Burks v. Wymer, 172 W. Va. 478, 307 S.E.2d 647 (1983). In re Rezulin, 214 W. Va. at 64 n.8, 585 S.E.2d at 64 n.8. In In re Rezulin, however, we observed that Burks dealt with the 1960 version of Rule 23 and that in 1998 we amended Rule 23 to bring it more in line with Fed. R. Civ. Pro. 23. In re Rezulin, 214 W. Va. at 64 n.8, 585 S.E.2d at 64 n.8. Consequently, we then said, “[w]hile the factors in Burks v. Wymer remain helpful to courts evaluating the propriety of a class certification, we no longer believe they are sufficient under our current version of Rule 23.” Id. at n.8, 585 S.E.2d at 64 n.8. Consequently, we crafted a new syllabus point dealing with Rule 23 certification:
Before certifying a class under
Rule 23 of the West Virginia Rules of Civil Procedure [(1998)], a circuit
court must determine that the party seeking class certification has satisfied
all four prerequisites contained in Rule 23(a)_numerosity, commonality, typicality,
and adequacy of representation_and has satisfied one of the three subdivisions
of Rule 23(b). As long as these prerequisites to class certification are met,
a case should be allowed to proceed on behalf of the class proposed by the party.
Syl. pt. 8, In re Rezulin, 214 W. Va. 52, 585 S.E.2d 52.
Additionally, we reiterated that “'[t]he party
who seeks to establish the propriety of a class action has the burden of
proving that the prerequisites of Rule 23 of the West Virginia Rules of Civil
Procedure have been satisfied.' Syllabus Point 6, Jefferson County Board
of Education v. Jefferson County Education Association, 183 W. Va. 15,
393 S.E.2d 653 (1990).” Syl. pt. 4, In re Rezulin. We took this
last point to heart in Love v. Georgia-Pacific Corp., 214 W. Va. 484,
488, 590 S.E.2d 677, 681 (2003), decided on December 3, 2003, thus, also
subsequent to the circuit court's order in this case, when we recognized
that:
Where a party seeks to proceed
as a class representative under Rule 23 of the West Virginia Rules of Civil
Procedure [(1998)], and where issues related to class certification are present,
reasonable discovery related to class certification issues is appropriate, particularly
where the pleadings and record do not sufficiently indicate the presence or absence
of the requisite facts to warrant an initial determination of class action status.
In the instant case, neither the circuit court nor the
parties had the benefit of our opinions in either In re Rezulin or Love. Moreover,
during the oral argument before this Court, which focused on the In re Rezulin criteria,
it became apparent that the parties disagree on a number of factual issues related
to the propriety of class certification. In such circumstances, we believe that
the appropriate course of action is to reverse the circuit court's order denying
class certification as premature and remand this case so that the circuit court
can allow the parties to conduct limited discovery related to whether this action
should be certified under Rule 23. (See
footnote 3) Our decision should not be taken as a comment either
on whether a class should be certified or on the substantive merits of the case. “When
a circuit court is evaluating a motion for class certification under Rule 23
of the West Virginia Rules of Civil Procedure [(1998)], the dispositive
question is not whether the plaintiff has stated a cause of action or will prevail
on the merits, but rather whether the requirements of Rule 23 have been met.” Syl. pt. 7, In re Rezulin.
Having concluded that denial of class certification
should be reversed for the purpose of allowing discovery as to the appropriateness
of certifying a class, we now dispose of the remaining two issues. First,
we affirm the circuit court's granting of Infocisions' Rule 12(b)(6) motion
as to Ms. Gulas since she agrees that she cannot, under the circumstances,
maintain her action because she previously sued Infocision. (See
footnote 4) However, we reverse the circuit court's decision
to deny Ms. Gulas' motion to amend the complaint to substitute Mr. Watson
as a class representative. The circuit court's ruling on this issue was based
upon its decision that this case was not amenable to class action status.
Thus, the motion to amend to substitute a new class representative would
have been fruitless. However, as we have shown, the decision to deny certification
was premature. Therefore, Mr. Watson should be substituted as representative of a putative class
at this point solely as a party who has standing to claim that this case
should be certified as a class action. Again, in so doing, we express no
opinion on the propriety of class action status or the substantive merits
of the case.