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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2017 Term 

_______________ FILED 

June 12, 2017 No. 16-0127 released at 3:00 p.m. 

________________ RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS 

OF WEST VIRGINIA 

VALENTINE & KEBARTAS, INC.,
 

Defendant Below, Petitioner
 

v.
 

GARY J. LENAHAN,
 

Plaintiff Below, Respondent
 

Appeal from the Circuit Court of Raleigh County
 

The Honorable Robert Burnside, Jr., Judge
 

Civil Action No. 13-C-190(B)
 

REVERSED
 

Submitted: January 17, 2017
 

Filed: June 12, 2017
 

Albert C. Dunn, Jr., Esq. Ralph C. Young, Esq. 

Bailey & Wyant, PLLC Christopher B. Frost, Esq. 

Charleston, West Virginia Steven R. Broadwater, Jr. Esq. 

Counsel for the Petitioner Jed R. Nolan, Esq. 

Hamilton, Burgess, Young & 

Pollard, pllc 

Fayetteville, West Virginia 

Counsel for Respondent 

JUSTICE WALKER delivered the Opinion of the Court.
 

JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion.
 

JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
 
 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT 

1. “In reviewing challenges to the findings and conclusions of the 

circuit court made after a bench trial, a two-pronged deferential standard of review is 

applied. The final order and the ultimate disposition are reviewed under an abuse of 

discretion standard, and the circuit court’s underlying factual findings are reviewed under 

a clearly erroneous standard. Questions of law are subject to a de novo review.” Syllabus 

Point 1, Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 480 

S.E.2d 538 (1996). 

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WALKER, Justice: 

Valentine & Kebartas, Inc. (“V&K”) appeals the January 15, 2016 Verdict 

Order of the Circuit Court of Raleigh County. Following a bench trial, the circuit court 

ruled in favor of Respondent Gary J. Lenahan (“Mr. Lenahan”) that V&K violated the 

West Virginia Consumer Credit and Protection Act (“Act”).1 V&K challenges the circuit 

court’s determination that the volume of telephone calls made by a debt collector to the 

consumer in this case, absent any other evidence of intent to annoy, abuse, oppress or 

threaten, is sufficient to establish a violation of West Virginia Code § 46A-2-125(d) 

(1974). Upon consideration of the parties’ briefs and arguments, the submitted record 

and pertinent authorities, we reverse the circuit court’s order. 

I. FACTUAL AND PROCEDURAL BACKGROUND 

V&K is a third-party debt collector who purchased Mr. Lenahan’s 

delinquent consumer account from ADT, a home security system provider. ADT 

informed V&K that Mr. Lenahan owed $1,349.53 on the account. The facts are 

undisputed that Mr. Lenahan informed ADT that he denied owing the debt. Similarly, 

there is no dispute that Mr. Lenahan never notified V&K that he denied owing the debt. 

1 W.Va. Code §§ 46A-1-101 through 8-102 (Supp. 2016). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

V&K’s collection efforts commenced with a March 9, 2012, letter to Mr. 

Lenahan notifying him of V&K’s intent to collect the debt on the ADT account. Mr. 

Lenahan admitted receiving the letter. Thereafter, V&K made telephone calls to the 

telephone number provided by ADT for Mr. Lenahan. According to the testimony of 

Linda Diaz, V&K’s Chief Compliance Officer, V&K used a computer referred to as an 

auto dialer to place the telephone calls. 

As Ms. Diaz testified, V&K directs its managers to schedule auto dialer 

campaigns for selected accounts on a daily basis. The auto dialer is programmed to make 

telephone calls according to certain parameters such as time of day and number of calls 

per day or week in compliance with applicable laws.2 Ms. Diaz further testified that the 

auto dialer campaigns may be programmed to call during the “prime time” hours of a 

particular consumer’s time zone. Pursuant to V&K policy, managers scheduled auto 

dialer calls during a consumer’s prime time hours all in an effort to comply with the law 

2 Ms. Diaz testified that V&K conforms its practices to federal consumer law. For 

example, the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 through -1692p 

(2012) (“FDCPA”), prohibits a debt collector from communicating with a consumer “at 

any unusual time or place or a time or place known or which should be known to be 

inconvenient to the consumer.” 15 U.S.C. § 1692c(a)(1). The statute further provides 

that the convenient time to communicate with a consumer, unless established otherwise 

by the consumer, is after 8:00 a.m. and before 9:00 p.m. local time at the consumer’s 

location. Id. 

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while maximizing the chances of actually reaching the consumer at a time he or she 

would be home to answer the phone. 

Ms. Diaz further testified that a manager cannot schedule the specific time 

of a call or calls. The exact time the auto dialer places the calls within the parameters set 

by V&K is chosen randomly by the computer. In the case of Mr. Lenahan, the auto dialer 

campaigns were programmed not to leave a message.3 If the call was answered, the auto 

dialer was programmed to connect a collection agent with the person answering the call. 

Mr. Lenahan offered no evidence to contradict Ms. Diaz’s testimony regarding V&K’s 

process and procedures. 

The number of telephone calls placed by V&K to Mr. Lenahan is also not 

in dispute. Between March 10 and 25, 2012, V&K used its auto dialer to call Mr. 

Lenahan twenty-two times. Between March 26 and 28, 2012, the auto dialer placed 

seventeen additional calls to Mr. Lenahan. Beginning on March 29 and continuing 

through November 17, 2012, the auto dialer attempted 211 more calls to Mr. Lenahan at 

3 The trial transcript contains conflicting testimony about whether the auto dialer 

left one message over the eight-month timeframe at issue here, but this fact, in itself, is 

not material to our inquiry. The parties do not dispute that Mr. Lenahan did not answer 

the call. 

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times after 8:00 a.m. but before 9:00 p.m. on various days, never more than six times per 

day. The parties agree that V&K attempted to call Mr. Lenahan 250 times during the 

eight-month period between March 10, 2012, and November 17, 2012.4 

Mr. Lenahan testified that the telephone number provided by ADT to V&K 

had been his cell phone number for twenty years. During 2011 and 2012, he had 

encountered significant financial difficulties and was receiving approximately twenty to 

thirty collection calls each day from various parties. According to Mr. Lenahan, he made 

a conscious decision during this time frame not to answer the phone if he thought the call 

was from a debt collector. The facts are undisputed that Mr. Lenahan did not answer the 

250 telephone calls placed by V&K, kept no record of those calls, and never contacted 

V&K by telephone or otherwise to contest the debt. 

4 Following the 250 attempted telephone calls, the record indicates that three 

additional phone calls from V&K were answered by Mr. Lenahan on November 17, 19 

and 20, 2012. Mr. Lenahan argued at trial that he informed V&K during one or more of 

these three phone calls that he was represented by counsel. He asserted at trial that one or 

two of the subsequent calls were made in violation of West Virginia Code § 46A-2-128, 

which among other things limits a debt collector from contacting a consumer once the 

debt collector received notice that the consumer is represented by counsel. The circuit 

court did not rule on this claim and neither party raises it on appeal. Therefore, we need 

not address the issue. 

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Mr. Lenahan filed suit against V&K in March 2013. During the bench trial 

on February 2, 2015, Ms. Diaz and Mr. Lenahan were the only two witnesses who 

testified. On May 22, 2015, the circuit court ruled in a memorandum opinion that V&K’s 

unanswered telephone calls to Mr. Lenahan violated West Virginia Code § 46A-2­

125(d)(1974). On January 15, 2016,5 the circuit entered its Verdict Order6 awarding Mr. 

Lenahan $75,000 in damages. 

In its Verdict Order, the circuit court concluded that the first twenty-two 

telephone calls to Mr. Lenahan attempted from March 10 through 25, 2012, did not 

violate West Virginia Code § 46A-2-125. However, the circuit court found that V&K 

“ramped up its collection campaign” with the seventeen calls placed on March 26, 27 and 

28, 2012. As the circuit court explained: 

The Court cannot fathom any possible legitimate 

purpose that could be served by increasing the volume and 

frequency of collection calls to a consumer who is known to 

exercise dominion over the telephone number being called 

and who has already been informed that [V&K] was 

collecting a debt by mail. Thus, the only logical conclusion is 

5 The record offers no explanation for the eight-month delay between the circuit 

court’s Memorandum Opinion and Verdict Order. 

6 The Verdict Order incorporated the Memorandum Opinion by reference. 

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that [V&K] increased its volume and frequency of collection 

calls to Mr. Lenahan in an attempt to harass or oppress him 

into answering [V&K]’s telephone calls. 

Thus, the circuit court ruled that beginning with the first call on March 26, 2012, V&K’s 

230 subsequent unanswered collection calls to Mr. Lenahan violated West Virginia Code 

§ 46A-2-125. The circuit court awarded Mr. Lenahan a statutory penalty of $326.08 per 

call for a total of $75,000.7 

II. STANDARD OF REVIEW 

This Court has established the following standard of review following a 

bench trial: 

“In reviewing challenges to the findings and 

conclusions of the circuit court made after a bench trial, a 

two-pronged deferential standard of review is applied. The 

final order and the ultimate disposition are reviewed under an 

abuse of discretion standard, and the circuit court’s 

underlying factual findings are reviewed under a clearly 

erroneous standard. Questions of law are subject to a de novo 

review.” Syllabus Point 1, Public Citizen, Inc. v. First 

National Bank in Fairmont, 198, W.Va. 329, 480 S.E.2d 538 

(1996). 

7 The circuit court noted that the minimum statutory penalty of $100, when 

adjusted for inflation since 1974, would be $475.33. Relying upon Mr. Lenahan’s 

stipulation that in no event would his recovery be more than $75,000, the court assessed a 

penalty of $326.08 for each of the 230 phone calls for a total of $75,000. The court 

found that Mr. Lenahan’s claims for actual damages, attorneys’ fees and costs were moot 

given the stipulated cap on damages. 

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Syl. Pt. 2, Timberline Four Seasons Resort Management Co. v. Herlan, 223 W.Va. 730, 

679 S.E.2d 329 (2009). With these standards in mind, we consider the parties’ 

arguments. 

III. DISCUSSION 

Whether the number of collection calls alone is sufficient to find V&K 

liable to Mr. Lenahan under West Virginia Code § 46A-2-125(d) (1974) is the issue 

raised in this appeal and is a matter of first impression. The version of West Virginia 

Code § 46A-2-125 in effect at the time of the bench trial in this case states as follows: 

No debt collector shall unreasonably oppress or abuse 

any person in connection with the collection of or attempt to 

collect any claim alleged to be due and owing by that person 

to another. Without limiting the general application of the 

foregoing, the following conduct is deemed to violate this 

section: 

(a) The use of profane or obscene language or language that 

is intended to unreasonably abuse the hearer or reader; 

(b) The placement of telephone calls without disclosure of 

the caller’s identity and with the intent to annoy, harass or 

threaten any person at the called number. 

(c) Causing expense to any person in the form of long 

distance telephone tolls, telegram fees or other charges 

incurred by a medium of communication, by concealment of 

the true purpose of the communication; and 

(d) Causing the telephone to ring or engaging any person in 

telephone conversation repeatedly or continuously, or at 

unusual times or at times known to be inconvenient, with the 

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intent to annoy, abuse, oppress or threaten any person at the 

called number. 

W.Va. Code § 46A-2-125.8 We focus our attention on whether the circuit court erred in 

determining that the volume of V&K’s telephone calls to Mr. Lenahan constituted abuse 

or unreasonable oppression by virtue of “causing a telephone to ring . . . repeatedly or 

continuously . . . with intent to annoy, abuse, oppress or threaten” under West Virginia 

Code § 46A-2-125(d). 

8 The West Virginia Legislature amended this section of the Act effective June 12, 

2015. See 2015 W.Va. Acts ch. 63. As a result, subsection (d) now more specifically 

addresses call volume by prohibiting the following conduct: 

Calling any person more than thirty times per week or 

engaging any person in telephone conversation more than ten 

times per week, or at unusual times or at times known to be 

inconvenient, with intent to annoy, abuse, oppress or threaten 

any person at the called number. In determining whether a 

debt collector's conduct violates this section, the debt 

collector's conduct will be evaluated from the standpoint of a 

reasonable person. In the absence of knowledge of 

circumstances to the contrary, a debt collector shall assume 

that the convenient time for communicating with a consumer 

is after eight o'clock antemeridian and before nine o'clock 

postmeridian, local time at the consumer's location. 

W.Va. Code § 46A-2-125(d) (2015). We decline to consider this amendment because it 

was not in effect as of the date of the bench trial in this matter. All subsequent references 

to West Virginia Code 46A-2-125 shall be to the version in effect at the time of the bench 

trial in this case, which was promulgated in 1974. 

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Relying solely on the volume of telephone calls placed by V&K’s auto 

dialer to Mr. Lenahan, the circuit court found V&K liable under West Virginia Code § 

46A-2-125(d). The circuit court reasoned that V&K “ramped up” its collection campaign 

beginning with six telephone calls on March 26, five telephone calls on March 27 and six 

telephone calls on March 28, 2012. Without reference to any evidence other than the 

number of telephone calls on those three days, the circuit court observed: 

The Court cannot fathom any possible legitimate purpose that 

could be served by increasing the volume and frequency of 

collection calls to a consumer who is known to exercise dominion 

over the telephone number being called and who has already been 

informed that [V&K] was collecting a debt by mail. 

Based on this finding of lack of legitimate purpose, the circuit court 

concluded that V&K “increased its volume and frequency of collection calls to Mr. 

Lenahan in an attempt to harass or oppress him into answering” its calls. The circuit 

court also inexplicably applied its conclusion about the “ramped up” calls on March 26­

28, 2012, to the 211 unanswered calls made from March 29 through November 17, 2012. 

In support of its conclusion that the alleged “repeated or continuous” call 

volume is sufficient to prove intent under the Act, the circuit court relied in part upon the 

decision of the United States District Court for the Southern District of West Virginia in 

Ferrell v. Santander Consumer USA, Inc., 859 F.Supp.2d 812 (S.D.W.Va. 2012). The 

Ferrell court denied the defendant’s motion for summary judgment in a case in which the 

plaintiffs alleged they received numerous calls after having advised the defendant they 

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had retained counsel regarding a debt owed. Ferrell, 859 F.Supp.2d at 816-17. In 

support of its motion for summary judgment on plaintiff’s claims under West Virginia 

Code § 46A-2-125(d), the defendant contended that there was no evidence that the 

telephone calls were unreasonably oppressive or abusive or that the telephone calls were 

placed with intent to annoy, abuse, oppress or threaten. Id. at 816. The Ferrell court 

denied the motion and found that there was sufficient evidence to allow a jury to consider 

the claim. 

Petitioner urges this Court instead to rely upon the decision of the United 

States District Court for the Southern District of West Virginia in Bourne v. Mapother & 

Mapother, P.S.C., 998 F.Supp.2d 495 (S.D.W.Va. 2014). In Bourne, the district court 

granted summary judgment to a defendant where there were no facts in the record to 

support a finding of intent to annoy, abuse, oppress or threaten. Id. at 502-03. The 

defendant law firm hired to collect debts was mistakenly calling the plaintiff regarding a 

debt owed by the plaintiff’s aunt. Id. at 499. Coincidentally, the plaintiff also owed a 

debt being pursued by the law firm. Id. Plaintiff never answered the law firm’s calls 

about his aunt’s debt, which were placed by the law firm’s auto dialer that did not leave 

messages. Id. 

Analyzing other cases in the Southern District of West Virginia denying 

summary judgment on claims under West Virginia Code § 46A-2-125(d), the Bourne 

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court observed that the cases “involved many more telephone calls and other evidence 

which suggested abuse.” Bourne, 998 F.Supp.2d at 502 (emphasis added). For example, 

the court noted a denial of a motion for summary judgment in Duncan v. J.P. Morgan 

Chase Bank, N.A., 2011 WL 5359698 (S.D.W.Va. 2011) based not only on the volume of 

telephone calls, but also on evidence that abusive language was used in at least one of the 

phone calls. Id. at 502-03. The Bourne court concluded that “[e]ven accepting that 

twenty-seven phone calls over the course of eight months at normal times of the day 

could be considered causing the telephone to ring ‘repeatedly or continuously’ – a 

proposition that is highly doubtful – plaintiff has failed to establish that [defendant] 

intended to annoy, abuse, oppress or threaten plaintiff or anyone else.” Id. In other 

words, despite the fact that the unanswered calls might suffice to establish the 

requirement of being placed “repeatedly or continuously,” the phone calls alone were not 

sufficient as a matter of law to establish intent to annoy, abuse, oppress or threaten in that 

case. Id. 

The Bourne court further noted that several other courts interpreting 15 

U.S.C. § 1692d(5),9 the provision of the “FDCPA” nearly identical to West Virginia 

9 This provision of the FDCPA states: 

(continued . . .) 

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Code §46A-2-125(d), have also found that call volume alone absent evidence of other 

abusive conduct is insufficient to sustain a claim: 

Finally, the cases interpreting the analogous FDCPA 

provision—cases which plaintiff encouraged this court to 

consult—are even more supportive of defendants' summary 

judgment motion. These cases generally go as far as asserting 

that even daily phone calls, without other abusive conduct are 

insufficient to raise a triable issue of fact for the jury. See 

Saltzman v. I.C. Sys., Inc., No. 09–10096, 2009 WL 3190359, 

at *7 (E.D. Mich. Sept. 30, 2009) (“[A] debt collector does 

not necessarily engage in harassment by placing one or two 

unanswered calls a day in an unsuccessful effort to reach the 

debtor, if this effort is unaccompanied by any oppressive 

conduct such as threatening messages.”); Arteaga v. Asset 

Acceptance, LLC, 733 F.Supp.2d 1218, 1229 (E.D. Cal. 2010) 

(finding that “daily” or “nearly daily” phone calls alone fail to 

raise an issue of fact for a jury to determine whether the 

conduct violates § 1692d and § 1692(d)(5)); Tucker v. CBE 

A debt collector may not engage in any conduct the 

natural consequence of which is to harass, oppress, or abuse 

any person in connection with the collection of a debt. 

Without limiting the general application of the foregoing, the 

following conduct is a violation of this section: . . . . 

*** 

(5) Causing a telephone to ring or engaging any person 

in telephone conversation repeatedly or continuously with 

intent to annoy, abuse, or harass any person at the called 

number. 

15 U.S.C. § 1692d (2012). 

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Grp., Inc., 710 F.Supp.2d 1301, 1305 (M.D. Fla. 2010) 

(noting that despite 57 calls over a 20–day period being 

“somewhat high,” the conduct still did not violate § 

1692(d)(5) as a matter of law where defendant left six 

messages, made no more than seven calls in a single day, and 

did not call back the same day after leaving a message); 

Durthaler v. Accounts Receivable Mgmt., Inc., 854 F.Supp.2d 

485 (S.D. Ohio 2012) (finding no FDCPA violation even 

though debt collector made 30 calls to debtor's phone 

numbers, one of which was made after the debt collector was 

informed that the number did not belong to the debtor, and 

two calls to debtor's roommate in 73 day period); Katz v. 

Capital One, No. 1:09–cv–1059, 2010 WL 1039850 (E.D. 

Va. March 18, 2010) (15–17 calls, not more than two in a day 

and not at inconvenient times, after debtor notified debt 

collector of attorney representation did not violate the 

FDCPA). 

Bourne, 998 F.Supp.2d at 503 (emphasis added). As another district court has noted: 

A remarkable volume of telephone calls is permissible 

under FDCPA jurisprudence. See VanHorn v. Genpact Servs., 

LLC, No. 09–1047–CV–S–GAF, 2011 WL 4565477, at *1 

(W.D. Mo. Feb. 14, 2011) (finding 114 calls in a four-month 

period did not violate the FDCPA); Carman v. CBE Grp., 

Inc., 782 F.Supp.2d 1223, 1232 (D. Kan. 2011) (granting 

summary judgment in favor of a defendant who placed 149 

telephone calls to the plaintiff during a two-month period); 

Clingaman v. Certegy Payment Recovery Servs., No. H–10– 

2483, 2011 WL 2078629, at *5 (S.D. Tex. May 26, 2011) 

(granting summary judgment for a defendant who placed 55 

phone calls over three and one-half months). 

Zortman v. J.C. Christensen & Assoc., Inc., 870 F.Supp.2d 694, 707 (D. Minn. 2012). 

Clearly, the weight of federal authority requires some evidence of intent to establish 

liability under the federal equivalent to West Virginia Code § 46A-2-125(d). 

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We agree with the reasoning of these federal courts interpreting a nearly 

identical statute. Despite the fact that the district court in Bourne stated that “the 

requisite intent to annoy, abuse, oppress, or threaten can be established by the volume of 

telephone calls or the nature of the telephone conversations,”10 the Bourne court ruled 

that the volume of unanswered calls in that case did not establish intent in violation of 

West Virginia Code § 46A-2-125(d). We similarly find that the volume of unanswered 

calls in this case does not establish intent in violation of West Virginia Code § 46A-2­

125(d). Rather than answer any one of the 211 calls made by V&K in compliance with 

federal law over eight months, Mr. Lenahan remained silent and never informed V&K of 

the simple fact that he disputed the debt. Accordingly, we find that the circuit court erred 

as a matter of law in finding that V&K violated West Virginia Code § 46A-2-125(d). 

The circuit court gave no apparent consideration to the unrefuted evidence 

in the record of V&K’s intent in placing the auto dialer calls to Mr. Lenahan. Mr. 

Lenahan acknowledged in his testimony that he had received a letter advising him of 

V&K’s attempt to collect the ADT debt. According to the trial testimony of Ms. Diaz, 

V&K continued to call Mr. Lenahan in an effort to collect the debt: 

10 Bourne, 998 F.Supp2d. at 502. 

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. . . . This telephone number [of Mr. Lenahan] was 

provided by our client in question that we were attempting to 

collect money owed to a third-party collection agency. 

We received the telephone contacts, we attempted to 

make the telephone calls with no communication, we 

attempted to reach out to the consumer, your client, in an 

attempt to collect a debt, and we were never ever told 

otherwise. We did not have communication advising do not 

call this number, do not telephone me at this inconvenient or 

harassing time or any of that nature so, therefore, the 

attempted telephone calls continued to make contact. 

Similarly, the circuit court made no mention of the unrefuted testimony of Ms. Diaz 

regarding V&K’s procedures to assure that its auto dialer placed calls within established 

limits as to time and volume in compliance with applicable laws. The record is devoid of 

any evidence contradicting V&K’s stated intention to collect a debt. The calls continued 

because Mr. Lenahan never answered the telephone calls and never informed V&K that 

he contested the debt. 

Rather, the circuit court made an inference of intent to “harass or oppress” 

based upon its own inability to “fathom any possible legitimate purpose” for V&K’s auto 

dialer placing more calls over a three-day period in the third week of its eight-month 

collection effort than it placed in the first two weeks. The circuit court surmised that 

after a certain amount of unanswered calls, a reasonable debt collector should know that 

the consumer does not want to be contacted. However, the circuit court’s inference was 

based entirely on the volume of calls and no other evidence. Moreover, the circuit court 

overlooked entirely the unrefuted evidence of V&K’s intent to collect the debt. 

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Accordingly, the circuit court’s ruling is deficient as a matter of law. Some evidence of 

V&K’s intent to annoy, abuse, oppress or threaten Mr. Lenahan is necessary in order to 

find liability under West Virginia Code § 46A-2-125(d). 

In addition, we note that inquiring into the “legitimate purpose” for placing 

debt collection telephone calls, and then drawing a negative inference when no legitimate 

purpose is found, inappropriately relieves the plaintiff of his burden of proof. Relying 

upon the circuit court’s approach, the plaintiff had no burden of proof other than to 

“perceive” a “ramp up” in the telephone calls, requiring V&K to rebut that perception by 

justifying the placement of the auto dialer calls. The plain language of West Virginia 

Code § 46A-2-125(d) does not support this approach; it is the plaintiff’s burden to prove 

intent to annoy, abuse, oppress or threaten. 

We further note that Mr. Lenahan’s silence alone was insufficient to have 

imputed knowledge to V&K that it should discontinue the auto dialer calls. Like the illadvised analysis of whether V&K had a “legitimate purpose” for placing auto dialer calls, 

it is likewise erroneous as a matter of law to impose a duty on a debt collector to 

discontinue debt collection efforts based solely on the fact that the consumer does not 

want to be contacted after a certain period of time that is subjectively known only to the 

consumer. 

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Based upon the undisputed facts, there is no evidence that V&K intended to 

annoy, abuse, oppress or threaten Mr. Lenahan in violation of West Virginia Code § 46A2-125(d). Accordingly, the circuit court erred as a matter of law in finding in favor of 

Mr. Lenahan in its Verdict Order of January 16, 2016. 

IV. CONCLUSION 

For the foregoing reasons, we reverse the January 16, 2016, order of the 

Circuit Court of Raleigh County. 

Reversed. 

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