IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

January 2018 Term 

FILED 

February 7, 2018 No. 17-0087 released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK
 

SUPREME COURT OF APPEALS
 

OF WEST VIRGINIA
 

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
 

Appeal from the Circuit Court of Harrison County, Business Court Division
 

Honorable Joanna I. Tabit, Judge
 

Civil Action No. 14-C-503-2
 

AFFIRMED
 

Submitted: January 10, 2018
 

Filed: February 7, 2018
 

John C. Palmer IV Michael Bonasso 

Keith J. George Flaherty Sensabaugh Bonasso PLLC 

Devan K. Flahive Charleston, West Virginia 

Elizabeth T. Schindzielorz Zach Chaffee-McClure, pro hac vice 

Robinson & McElwee PLLC Shook, Hardy & Bacon LLP 

Charleston, West Virginia Kansas City, Missouri 

Attorneys for the Petitioner Attorneys for the Respondents 

JUSTICE DAVIS delivered the Opinion of the Court. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 primaryobject 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 

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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).
 

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Davis, Justice: 

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 § 47-11A6(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 § 47-11A6(a) does not include taxes. Accordingly, we affirm the January 3, 2017, order of the Circuit 

Court of Harrison County, Business Court Division. 

1

The Legislature amended W. Va. Code § 47-11A-6(a) (1983) (Repl. Vol. 

2015) in 2016. See W. Va. Code § 47-11A-6(a) (2016) (Supp. 2017). Because the events 

at issue herein occurred before 2016, we apply the version of the statute in effect at that time. 

For further treatment of both versions of W. Va. Code § 47-11A-6(a), see Section III, infra. 

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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’s2 alleging that 

Mac’s had violated the West Virginia Unfair Practices Act, W. Va. Code § 47-11A-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 

2

Alan named as defendants the retail gas station and convenience store, itself, 

Mac’s Convenience Stores LLC, d/b/a Circle K; Joyce Sammon, manager of the Bridgeport, 

West Virginia, Circle K gas station and convenience store; and Louis Diab, Fuel Director for 

the company’s Great Lakes Region, of which the Bridgeport gas station and convenience 

store is a part. 

3

W. Va. Code § 47-11A-2 (1939) (Repl. Vol. 2015) also has been amended. 

See W. Va. Code § 47-11A-2 (2016) (Supp. 2017). See also note 1, supra. 

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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 summaryjudgment 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 

4

The Legislature also has amended W. Va. Code § 47-11A-8 (1939) (Repl. Vol. 

2015). See W. Va. Code § 47-11A-8 (2016) (Supp. 2017). See also note 1, supra. 

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determines that the Legislature did not build a structure within 

the Unfair Practice[s] Act to determine the inclusion or 

exclusion of taxes within the cost calculation, depending on 

when and how taxes are assessed in a particular industry or 

when assessed by an individual business. 

The circuit court then awarded summary judgment to Mac’s. From this adverse ruling, Alan 

appeals to this Court. 

II.
 

STANDARD OF REVIEW
 

Before this Court, Alan contends that the circuit court erred in its interpretation 

of W. Va. Code § 47-11A-6(a) and by granting summary judgment to Mac’s. We previously 

have held that “[i]nterpreting a statute or an administrative rule or regulation presents a 

purely legal question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v. State 

Tax Dep’t of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995). Accord Syl. pt. 1, 

Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d 415 (1995) (“Where 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.”). 

With regard to the circuit court’s summaryjudgment ruling, summaryjudgment 

is appropriate if “there is no genuine issue as to any material fact and . . . the moving party 

is entitled to a judgment as a matter of law.” W. Va. R. Civ. P. 56(c). Accord Syl. pt. 5, 

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Wilkinson v. Searls, 155 W. Va. 475, 184 S.E.2d 735 (1971) (“A motion for summary 

judgment should be granted if the pleadings, exhibits and discovery depositions upon which 

the motion is submitted for decision disclose that the case involves no genuine issue as to any 

material fact and that the party who made the motion is entitled to a judgment as a matter of 

law.”). In other words, “[t]he circuit court’s function at the summary judgment stage is not 

to weigh the evidence and determine the truth of the matter, but is to determine whether there 

is a genuine issue for trial.” Syl. pt. 3, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 

(1994). Thus, “[a] motion for summary judgment should be granted only when it is clear that 

there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable 

to clarify the application of the law.” Syl. pt. 3, Aetna Cas. & Sur. Co. v. Federal Ins. Co. 

of New York, 148 W. Va. 160, 133 S.E.2d 770 (1963). Finally, as with our review of a circuit 

court’s decision of a question of law, we also review anew a circuit court’s award of 

summary judgment. “A circuit court’s entry of summary judgment is reviewed de novo.” 

Syl. pt. 1, Painter, 192 W. Va. 189, 451 S.E.2d 755. In view of these standards, we consider 

the circuit court’s order and the parties’ arguments with respect thereto. 

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III.
 

DISCUSSION
 

At issue herein is whether W. Va. Code § 47-11A-6(a) includes within the 

calculation of a retailer’s cost taxes that the retailer pays upon the acquisition of goods it 

purchases for resale, such as the motor fuel taxes on gasoline at issue herein, for purposes 

of determining whether the retailer is selling said item below cost in violation of the Unfair 

Practices Act. The circuit court determined that taxes are not included in the calculation of 

a retailer’s cost, and Mac’s agrees with this conclusion. Alan rejects this reasoning and urges 

a statutory construction to include such taxes when calculating a retailer’s cost. 

The subject statute, W. Va. Code § 47-11A-6(a) (1983) (Repl. Vol. 2015),5 

provides as follows: 

(a) The term “cost” when applicable to the business of 

retailer shall mean bona fide cost and shall mean (i) the invoice 

cost of the article, product or item of merchandise to the retailer 

or the replacement cost thereof to the retailer within thirty days 

prior to the date of sale, offer for sale or advertisement for sale, 

as the case may be, in the quantity last purchased, whichever is 

lower, from either of which there shall be deducted all trade 

discounts, except customary discounts for cash, and (ii) to either 

of which there shall be added the following items of expense: 

(1) Freight charges not otherwise included 

in the cost of the article, product or item of 

merchandise, but which freight charges shall not 

5

See supra note 1. 

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be construed as including cartage to retail outlet if 

done or paid for by the retailer; 

(2) A markup to cover, in part, the cost of 

doing business, which markup in the absence of 

proof of a lesser cost, shall be seven percent of 

the aggregate of invoice cost or replacement cost 

(whichever is used), less trade discounts as 

aforesaid, and plus said freight charges. 

The question we must answer, then, is whether this formula for the calculation of a retailer’s 

cost includes taxes. We conclude that it does not. 

When faced with a matter of statutory interpretation, we first must consider the 

Legislature’s intent in enacting the promulgation at issue. “The primary object in construing 

a statute is to ascertain and give effect to the intent of the Legislature.” Syl. pt. 1, Smith v. 

State Workmen’s Comp. Comm’r, 159 W. Va. 108, 219 S.E.2d 361 (1975). In other words, 

“[i]n our review of a statutory provision, it is essential to afford the enactment an 

interpretation that comports with the intent of the Legislature.” Lowe v. Richards, 234 

W. Va. 48, 55, 763 S.E.2d 64, 71 (2014). Thus, “if the legislative intent is clearly expressed 

in the statute, this Court is not at liberty to construe the statutory provision, but is obligated 

to apply its plain language.” Dan’s Carworld, LLC v. Serian, 223 W. Va. 478, 484, 677 

S.E.2d 914, 920 (2009). Therefore, “[w]here 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.” Syl. pt. 

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1, Dunlap v. State Comp. Dir., 149 W. Va. 266, 140 S.E.2d 448 (1965). 

In reading the plain language of W. Va. Code § 47-11A-6(a) quoted above, it 

is apparent that the Legislature does not reference or mention taxes in the calculation of a 

retailer’s cost. By contrast, W. Va. Code § 47-11A-6(b) (1983) (Repl. Vol. 2015)6 

specifically references and includes taxes in the calculation of a wholesaler’s cost: 

(b) The term “cost” when applicable to the business of a 

wholesaler shall mean bona fide cost and shall mean (i) the 

invoice cost of the merchandise to the wholesaler plus 

applicable taxes, or the replacement cost of the merchandise to 

the wholesaler within thirty days prior to the date of sale, offer 

for sale or advertisement for sale, as the case may be, in the 

quantity last purchased, whichever is lower, from either of 

which there shall be deducted all trade discounts except 

customary discounts for cash and (ii) to either of which there 

shall be added the following items of expense: 

(1) Freight charges not otherwise included 

in the cost of the article, product or item of 

merchandise, but which freight charges shall not 

be construed as including cartage to the retail 

outlet if done or paid for by the wholesaler; 

(2) A markup to cover, in part, the cost of 

doing business, which markup in the absence of 

proof of a lesser cost, shall be four percent of the 

aggregate of invoice cost or replacement cost 

(whichever is used), less trade discounts as 

aforesaid, and plus said freight charges. 

(Emphasis added). 

6

See note 1, supra. 

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The Legislature’s intention not to include taxes in the calculation of a retailer’s 

cost is further evidenced by the recent statutory amendments to W. Va. Code § 47-11A-6(a): 

(a) The term “cost” when applicable to the business of 

retailer shall mean bona fide cost and shall mean: (i) The invoice 

cost of the product or item of merchandise to the retailer or the 

replacement cost thereof to the retailer within thirty days prior 

to the date of sale, offer for sale or advertisement for sale, as the 

case may be, in the quantity last purchased, whichever is lower, 

from either of which there shall be deducted all trade discounts, 

except customary discounts for cash; and (ii) to either of which 

there shall be added the following items of expense: 

(1) Freight charges not otherwise included 

in the cost of the article, product or item of 

merchandise, but which freight charges shall not 

be construed as including cartage to retail outlet if 

done or paid for by the retailer; 

(2) A markup to cover, in part, the cost of 

doing business, which markup, in the absence of 

proof of a lesser cost, shall be seven percent of 

the aggregate of invoice cost or replacement cost 

(whichever is used), less trade discounts as 

aforesaid, and plus said freight charges: Provided, 

That such a markup to cover the cost of doing 

business as provided for in this subdivision shall 

be exclusive of any federal and state motor fuel 

taxes. 

W. Va. Code § 47-11A-6(a) (2016) (Supp. 2017)7 (emphasis added). There is simply no 

indication that the Legislature intended to include taxes within the calculation of a retailer’s 

cost pursuant to W. Va. Code § 47-11A-6(a). Rather, the recent amendments to this section 

7

See supra note 1. 

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suggest quite the contrary: taxes are not included in the calculation of a retailer’s cost 

pursuant to W. Va. Code § 47-11A-6(a). “Courts are not free to read into the language what 

is not there but rather should apply the statute as written.” State ex rel. Frazier v. Meadows, 

193 W. Va. 20, 24, 454 S.E.2d 65, 69 (1994). Furthermore, “[i]t 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.” Syl. pt. 11, Brooke B. v. Ray, 230 

W. Va. 355, 738 S.E.2d 21 (2013). 

Finally, to the extent that the facts of this case present a unique scenario given 

that the retailers herein sell gasoline, which is subject to state and federal motor fuel taxes, 

we concur with the circuit court’s suggestion that such policy decisions are better suited for 

legislative consideration and decision. See Syl. pt. 2, Huffman v. Goals Coal Co., 223 

W. Va. 724, 679 S.E.2d 323 (2009) (“This Court does not sit as a superlegislature, 

commissioned to pass upon the political, social, economic or scientific merits of statutes 

pertaining to proper subjects of legislation. It is the duty of the Legislature to consider facts, 

establish policy, and embody that policy in legislation. It is the duty of this Court to enforce 

legislation unless it runs afoul of the State or Federal Constitutions.”). 

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Accordingly, we conclude that W. Va. Code § 47-11A-6(a) (1983) (Repl. Vol. 

2015) does not include taxes in the calculation of a retailer’s cost, and we affirm the circuit 

court’s ruling in this regard. 

IV.
 

CONCLUSION
 

For the foregoing reasons, the January 3, 2017, order of the Circuit Court of 

Harrison County, Business Court Division, is hereby affirmed. 

Affirmed. 

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