Alan Enterprizes LLC v. Mac's Convenience Stores LLC
Alan Enterprizes LLC v. Mac's Convenience Stores LLC
Opinion
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
*63 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,
Thereafter, both parties moved for summary judgment seeking a determination as to whether
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 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
With regard to the circuit court's summary judgment ruling, summary judgment 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,
Wilkinson v. Searls
,
III.
DISCUSSION
At issue herein is whether
The subject statute,
(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 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.
*65 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
,
In reading the plain language of
(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).
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
(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 *66 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.
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.
,
Accordingly, we conclude that
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.
The Legislature amended
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.
The Legislature also has amended
See supra note 1.
See note 1, supra .
See supra note 1.
Reference
- Full Case Name
- 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.
- Status
- Published