        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                                January 2013 Term
                                                                FILED
                                   _____________            January 17, 2013
                                                              released at 3:00 p.m.
                                                              RORY L. PERRY II, CLERK
                                    No. 12-0737             SUPREME COURT OF APPEALS
                                   _____________	               OF WEST VIRGINIA



               STATE OF WEST VIRGINIA EX REL. ADVANCE

               STORES COMPANY, INC., dba ADVANCE AUTO

                       PARTS, AND DONN FREE,

                       Defendants Below, Petitioners


                                         V.

                 HONORABLE ARTHUR M. RECHT,

SENIOR STATUS JUDGE OF THE CIRCUIT COURT OF OHIO COUNTY, AND

        SCOTT MCMAHON AND KAREN JOHN, INDIVIDUALLY

         AND ON BEHALF OF OTHERS SIMILARLY SITUATED,

                    Plaintiffs Below, Respondents


  ____________________________________________________________________

                         Petition for Writ of Prohibition

                            WRIT GRANTED
  ____________________________________________________________________

                             Submitted: January 9, 2013

                               Filed: January 17, 2013


Ancil G. Ramey	                               Anthony I. Werner
Karen E. Kahle	                               Bachmann Hess Bachmann & Garden
Hannah B. Curry	                              Wheeling, West Virginia
Steptoe & Johnson	                            Joseph J. John
Huntington, West Virginia	                    John Law Offices
Attorneys for Petitioners	                    Wheeling, West Virginia
                                              Attorneys for Respondents

JUSTICE DAVIS delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT


              1.     “When this Court remands a case to the circuit court, the remand can

be either general or limited in scope. Limited remands explicitly outline the issues to be

addressed by the circuit court and create a narrow framework within which the circuit court

must operate. General remands, in contrast, give circuit courts authority to address all

matters as long as remaining consistent with the remand.” Syllabus point 2, State ex rel.

Frazier & Oxley, L.C. v. Cummings, 214 W. Va. 802, 591 S.E.2d 728 (2003).



              2.     When the Supreme Court of Appeals of West Virginia remands a case

to a circuit court after answering a certified question, the remand ordinarily is limited.




                                               i
Davis, Justice:

              This case was brought under this Court’s original jurisdiction by Advance

Stores Company and its employee Donn Free, petitioners herein and defendants below

(collectively “Advance Stores”). Advance Stores seeks a writ of prohibition to prevent

enforcement of an order of the Circuit Court of Ohio County that denied, in part, Advance

Stores’ motion to dismiss a third amended complaint filed by Scott McMahon and Karen

John, respondents herein and plaintiffs below (collectively “plaintiffs”).1 Advance Stores

contends that in denying, in part, their motion to dismiss, the circuit court is permitting the

case to be litigated in a manner that exceeds this Court’s mandate in McMahon v. Advance

Stores Co., 227 W. Va. 21, 705 S.E.2d 131 (2010) (hereinafter “McMahon I”).2 After a

careful review of the briefs, the limited record, and listening to the arguments of the parties,

we grant the writ of prohibition.




              1
               The portion of the circuit court’s order that granted partial relief to Advance
Stores is not before this Court.
              2
                  McMahon I was a 3-2 decision with Justices Workman and Ketchum
dissenting.

                                               1

                                               I.


                      FACTUAL AND PROCEDURAL HISTORY


              In March 2004, Scott McMahon purchased a car battery from Advance Stores.3

Mr. McMahon subsequently sold the automobile and battery to Karen John. Shortly after

Ms. John purchased the automobile, the battery died. Advance Stores was asked to replace

the battery under a limited express warranty. Advance Stores refused to provide a free

replacement of the battery on the grounds that Ms. John was not the original purchaser, and

the limited warranty expired when Mr. McMahon sold the vehicle with the battery. The

plaintiffs eventually filed an action against Advance Stores.4 Subsequent to a period of

discovery, the circuit court granted partial summary judgment in favor of the plaintiffs on the

issue of enforcement of the warranty. However, rather than allow the case to proceed to trial,

the circuit court certified a question to this Court. The certified question asked this Court to

determine whether W. Va. Code § 46A-6-108(a) of the West Virginia Consumer Credit and

Protection Act “appl[ies] to suits for breach of limited warranty by subsequent purchasers

where the limited warranty involved limits its availability to original purchasers?”

McMahon I, 227 W. Va. at 22, 705 S.E.2d at 132. We answered the certified question in the

negative and held the following:

              3
            Only a brief summary of the facts is provided here. For detailed facts, see
McMahon I, 227 W. Va. 21, 705 S.E.2d 131.
              4
              The original complaint previously was amended twice. The first amendment
added a cause of action for unjust enrichment. The second amendment added Ms. John as
a plaintiff.

                                               2

                     W. Va. Code § 46A-6-108(a) does not apply to suits for
              breach of a limited warranty by subsequent purchasers where the
              limited express warranty involved specifically limits its
              availability to original purchasers.



Syl. pt. 2, McMahon I, 227 W. Va. 21, 705 S.E.2d 131.



              After answering the certified question, this Court “remand[ed] this matter to

the Circuit Court of Ohio County for further proceedings consistent with th[e] opinion.”

McMahon I, 227 W. Va. at 27, 705 S.E.2d at 137. While the case was pending on remand,

the trial court allowed the plaintiffs to amend the complaint to add an additional cause of

action for a violation of the federal Magnuson-Moss Warranty Act, 15 U.S.C.A. § 2301 et

seq. In addition, the plaintiffs premised their cause of action on the actual receipt that was

given for the purchase of the battery, i.e., alleging the receipt was a purported express

warranty.5 Advance Stores moved to dismiss the third amended complaint on various

grounds, including the contention that the amendments exceeded the scope of the mandate

issued in McMahon 1. The trial court denied the motion to dismiss in part,6 and allowed the

third amended complaint to go forward on the new theories. Advance Stores thereafter filed

the instant petition for a writ of prohibition.

              5
             The limited express warranty that was addressed in McMahon I was on
Advance Stores’ website and was referenced by means of the purchase receipt.
              6
            The circuit court granted the motion to dismiss with respect to Mr.
McMahon’s implied warranty and Magnuson-Moss claims.

                                                  3

                                              II.


                                STANDARD OF REVIEW


              Advance Stores asserts that the circuit court ignored the mandate of this Court

in McMahon I. We have held that “[a] circuit court’s interpretation of a mandate of this

Court and whether the circuit court complied with such mandate are questions of law that are

reviewed de novo.” Syl. pt. 4, State ex rel. Frazier & Oxley, L.C. v. Cummings, 214 W. Va.

802, 591 S.E.2d 728 (2003) (hereinafter “Frazier and Oxley II”). It also was held in syllabus

point 5 of Frazier & Oxley II that “[w]hen a circuit court fails or refuses to obey or give

effect to the mandate of this Court, misconstrues it, or acts beyond its province in carrying

it out, the writ of prohibition is an appropriate means of enforcing compliance with the

mandate.” Id. In Syllabus point 4 of State ex rel. Hoover v. Berger, 199 W. Va. 12, 483

S.E.2d 12 (1996), we explained that,

                     [i]n determining whether to entertain and issue the writ
              of prohibition for cases not involving an absence of jurisdiction
              but only where it is claimed that the lower tribunal exceeded its
              legitimate powers, this Court will examine five factors: (1)
              whether the party seeking the writ has no other adequate means,
              such as direct appeal, to obtain the desired relief; (2) whether the
              petitioner will be damaged or prejudiced in a way that is not
              correctable on appeal; (3) whether the lower tribunal’s order is
              clearly erroneous as a matter of law; (4) whether the lower
              tribunal’s order is an oft repeated error or manifests persistent
              disregard for either procedural or substantive law; and (5)
              whether the lower tribunal’s order raises new and important
              problems or issues of law of first impression. These factors are
              general guidelines that serve as a useful starting point for

                                               4

              determining whether a discretionary writ of prohibition should
              issue. Although all five factors need not be satisfied, it is clear
              that the third factor, the existence of clear error as a matter of
              law, should be given substantial weight.

With these standards in view, we turn to the issues presented by this case.



                                             III.


                                       DISCUSSION


              The issues presented by Advance Stores may be divided into two parts. First,

Advance Stores contends that the mandate in McMahon I did not allow the plaintiffs to

amend their complaint on remand. Second, Advance Stores has attacked the merits of the

amendment and its application to various legal theories. We need only address the first issue,

i.e., whether the circuit court exceeded the scope of the mandate in McMahon I by allowing

the complaint to be amended. Because we determine that the circuit court did, in fact, exceed

the scope of the remand, we need not discuss the second issue.



              This Court extensively discussed the scope of a mandate in the seminal case

of Frazier & Oxley II, which was before this Court on a writ of prohibition for the second

time. In the first proceeding, State ex rel. Frazier & Oxley, L.C. v. Cummings, 212 W. Va.

275, 569 S.E.2d 796 (2002) (hereinafter “Frazier & Oxley I”), the circuit court entered a

partial summary judgment order that required the defendants to vacate an office that was

being subleased from the plaintiffs. This Court prevented enforcement of the partial

                                              5

summary judgment order in Frazier & Oxley I and remanded the case to the circuit court to

conduct proceedings for a factual determination of whether a surrender of the lease occurred.

After the case was remanded, one of the plaintiffs was allowed to amend the complaint to

assert a different theory for voiding the lease.7 The defendants filed a petition for a writ of

prohibition seeking to prevent enforcement of the circuit court’s order allowing the plaintiff

to amend the complaint. The defendants argued in Frazier & Oxley II that the circuit court’s

decision to allow the plaintiff to amend the complaint exceeded the mandate of this Court in

Frazier & Oxley I.



              We agreed with the defendants in Frazier & Oxley II that the mandate in

Frazier & Oxley I did not allow the plaintiff to amend the complaint to assert a new theory

for voiding the lease. The opinion in Frazier & Oxley II noted that, even though no

language appeared in Frazier & Oxley I that expressly limited what could occur on remand,

the remand was limited.8 In Syllabus points 2 and 3 of Frazier & Oxley II we set out the

following remand guidelines:

                     2. When this Court remands a case to the circuit court,
              the remand can be either general or limited in scope. Limited

              7
                  The plaintiff also was allowed to add a cause of action against the other
plaintiff.
              8
               The decision in Frazier & Oxley II recognized that “any remand issued by this
Court in a prohibition action will ordinarily be a general remand.” Frazier & Oxley II, 214
W. Va. at 809 n.9, 591 S.E.2d at 735 n.9. Even so, we found that the issues resolved in
Frazier & Oxley I necessitated the remand be limited and not general.

                                              6

              remands explicitly outline the issues to be addressed by the
              circuit court and create a narrow framework within which the
              circuit court must operate. General remands, in contrast, give
              circuit courts authority to address all matters as long as
              remaining consistent with the remand.

                      3. Upon remand of a case for further proceedings after
              a decision by this Court, the circuit court must proceed in
              accordance with the mandate and the law of the case as
              established on appeal. The trial court must implement both the
              letter and the spirit of the mandate, taking into account the
              appellate court’s opinion and the circumstances it embraces.[9]

(Footnote added).



              Applying the principles set out in Frazier & Oxley II, it is clear that our remand

in McMahon I was a limited remand. This is true for several reasons, but primarily because

of the nature of the proceeding in McMahon I.



              As previously noted, the decision in McMahon I was a certified question. Our

cases have implicitly recognized, and we so hold, that when the Supreme Court of Appeals

of West Virginia remands a case to a circuit court after answering a certified question, the

remand ordinarily is limited. This is so because, as “[w]e have repeatedly said[,] a certified


              9
                 Equally important to the decision in Frazier & Oxley II was a recognition by
this Court that there are a limited number of exceptions to the mandate rule. The exceptions
cited in the case included newly discovered evidence, a dramatic change in controlling legal
authority, or a showing that an obvious error in the prior decision would result in a manifest
injustice if left uncorrected. Frazier & Oxley II, 214 W.Va. at 812 n.14, 591 S.E.2d at 738
n.14.

                                              7

question will not be considered by this court unless the disposition of the case depends

wholly or principally upon the construction of law determined by the answer, regardless of

whether the answer is in the negative or affirmative.” Bass v. Coltelli, 192 W.Va. 516, 521,

453 S.E.2d 350, 355 (1994), superseded by statute on other grounds as recognized by Smith

v. Consol. Pub. Ret. Bd., 222 W. Va. 345, 664 S.E.2d 686 (2008). As we observed in

Hairston v. General Pipeline Construction, Inc., 226 W. Va. 663, 672 n.5, 704 S.E.2d 663,

672 n.5 (2010), “[o]nly those questions should be certified up before judgment which bring

with them a framework sufficient to allow this Court to issue a decision which will be

pertinent and inevitable in the disposition of the case below.” (Internal quotations and

citations omitted). See Morningstar v. Black & Decker Mfg. Co., 162 W. Va. 857, 861, 253

S.E.2d 666, 669 (1979) (“[C]ertification is limited to those questions which may be

determinative of the cause then pending in the certifying court[.]” (internal quotations and

citations omitted)). In the final analysis, this Court will not address a certified question if it

is not dispositive of a controlling issue in a case. See Franklin D. Cleckley, Robin J. Davis

and Louis Palmer, Litigation Handbook on West Virginia Rules of Civil Procedure, § 3.4, p.

68 (4th ed. 2012) (“The Supreme Court will decline to consider certified questions that are

not necessary to the decision of a case.”).



               The decision in Abrams v. West Virginia Racing Commission, 164 W. Va. 315,

263 S.E.2d 103 (1980), illustrates this point. In Abrams, the United States District Court for


                                                8

the Southern District of West Virginia asked this Court to answer the certified question of

whether a specific state statute and rule violated the Due Process or Equal Protection Clauses

of the Fourteenth Amendment to the United States Constitution or the Due Process Clause

of the West Virginia Constitution. We declined to answer the certified question because our

answer would not have been dispositive of the controlling issue in the case. That is, the

federal court was not bound to follow our interpretation of the federal constitutional

component of the certified question. We addressed the matter in Abrams as follows:

                      There can be little doubt that where a case is filed in
              federal court asserting a violation of the United States
              Constitution, that court has jurisdiction to decide the case unless
              the claim is entirely frivolous. . . .

                      Nor can there be doubt that an interpretation of the
              United States Constitution by a federal court will override that
              of a state court. A resolution by a state court of a federal
              constitutional claim is not binding on the federal courts. Thus,
              it is clear that any holding of this Court pertaining to the
              Fourteenth Amendment claim would be advisory at best.

                     This Court could choose to make a binding
              pronouncement on the scope of the Due Process Clause of the
              West Virginia Constitution. However, . . . any such decision by
              this Court on this State constitutional issue would not foreclose
              the federal court from deciding upon a different federal standard
              and ignoring our State constitutional standard.

                     While the doctrine of pendent jurisdiction permits a
              federal court to decide ancillary nonfederal grounds in a case
              based on independent federal jurisdictional grounds, we are not
              aware of any decision which requires the federal court to decide
              the nonfederal issue, particularly where the federal issue is
              dispositive of the case.


                                              9

Abrams, 164 W. Va. at 318-19, 263 S.E.2d at 106 (citations omitted). See also Palmore v.

First Unum, 841 So. 2d 233, 235 (Ala. 2002) (“In order for this Court to consider a certified

question from a federal court, the question must be, among other things, determinative of [the

underlying] cause.”); Keller v. City of Fremont, 790 N.W.2d 711, 712 (Neb. 2010) (“In

interpreting the certified request and deciding whether to accept it, . . . requires us to consider

whether the certified question may be determinative of the pending federal cause. The

‘determinative’ requirement is also consistent with state courts’ holdings declining to answer

certified questions asking for advisory opinions.”); Jefferson v. Moran, 479 A.2d 734, 738

(R.I. 1984) (“[O]ur response to the Federal District Court’s inquiry would not resolve the

controversy between the parties – since further state-court involvement would be necessary

– we must decline its [certified question] request.”).



               The decision in Abrams makes clear that this Court will not answer a certified

question if, in doing so, we would have to render a non-controlling, advisory answer. See

In re Vasquez, 266 P.3d 1053, 1057 (Ariz. 2011) (“We answer only questions which may be

determinative of the cause then pending in the certifying court. . . . [T]he answer to the

second question is not determinative of this case and we decline to answer it.”); CSX Transp.,

Inc. v. City of Garden City, 619 S.E.2d 597, 599 n.5 (Ga. 2005) (“This Court will not issue

an advisory opinion. This Court will likewise decline to respond to certified questions which

are anticipatory in nature.”); Darney v. Dragon Prods. Co., 994 A.2d 804, 807-08 (Me. 2010)


                                                10

(“[W]e decline to answer the certified questions. In the absence of established facts, we

would be issuing an advisory opinion that might not fully dispose of the Darneys’ trespass

claim.”); United States v. Searle, 584 A.2d 1263, 1265 (Md. 1991) (“[T]his Court may

answer questions certified to it if the questions may be determinative of the cause then

pending in the certifying court.”); Yesil v. Reno, 682 N.Y.S.2d 663, 664 (N.Y. 1998) (“We

respectfully decline the certified questions. . . . [W]e note our uncertainty whether the

certified questions can be determinative of the underlying matters.”). Thus, when we remand

a case after answering a certified question, that answer is dispositive of the direction the case

must take. In other words, neither the parties nor the trial court may litigate a case beyond

the narrow boundaries of our response to a certified question. Because the unique facts of

each certified question will dictate the limitations of the remand, there can be no question

that the remand is limited and not general.



              Because McMahon I presented as a certified question, the remand was limited.

We must now determine whether the trial court exceeded the limitations of the mandate.



              As mentioned previously, the trial court in McMahon I granted the plaintiffs

partial summary judgment. The trial court did so after concluding that “Advance shall be

required to abide by its warranty notwithstanding the person attempting to assert the warranty

may not have been the original purchaser.” McMahon I, 227 W. Va. at ___, 705 S.E.2d at


                                               11

134. In challenging the correctness of this dispositive ruling, Advance Stores asked the trial

court to submit the issue to this Court as a certified question. The certified question asked

this Court to decide whether the Consumer Credit and Protection Act applied “to suits for

breach of limited warranty by subsequent purchasers where the limited warranty involved

limits its availability to original purchasers?” McMahon I, 227 W. Va. at 22, 705 S.E.2d at

132.



              In resolving the certified question in McMahon 1, this Court determined two

dispositive issues. First, it was decided that “[t]he limited express warranty . . . clearly and

unambiguously limited the availability of the remedy to the original purchaser who held the

original transactional receipt.” McMahon I, 227 W. Va. at 27, 705 S.E.2d at 137. Therefore,

Ms. John could not assert a cause of action under the warranty. Second, this Court concluded

that “[a]t the moment the original purchaser sold the battery, Advance’s limited warranty, by

its express terms, ceased to exist.” McMahon I, 227 W. Va. at 27, 705 S.E.2d at 137. Thus,

Mr. McMahon could not assert a cause of action under the warranty.



              Equally important to the resolution of the certified question was this Court’s

determination as to the location of the actual warranty. We noted in McMahon I that “[a]t

the bottom of the [purchase] receipt was a statement directing the purchaser to Advance’s

website where the limited express warranty information was available. This limited warranty


                                              12

information was also available to the purchaser at the store.” McMahon I, 227 W. Va. at 22,

705 S.E.2d at 132.



              In sum, in answering the certified question in McMahon I, we conclusively

determined that the plaintiffs could not assert a cause of action against Advance Stores under

the limited express warranty. Thus, on remand, the plaintiffs were limited to litigating the

implied warranty theory as it was set out in the second amended complaint. However, the

circuit court erroneously concluded that our remand was a general remand10 and allowed the

plaintiffs to amend the complaint a third time to assert a cause of action under the

Magnuson-Moss Warranty Act that was based upon the purchase receipt as an express

warranty.



              The plaintiffs argue that they always have contended that the purchase receipt

was the actual express warranty. The truth of this assertion is of no consequence because the

Magnuson-Moss Warranty Act allegations in the third amended complaint were not set out

in the complaint that was considered in McMahon I.11 The plaintiffs are unable to support

              10
                The plaintiffs have made several arguments that the remand in McMahon I
was a general remand. We summarily reject those arguments for the reasons stated in the
body of this opinion.
              11
               In fact, the dissenting opinion of Justice Ketchum in McMahon I pointed out
that “[o]ne issue that was not raised before the circuit court . . . is the effect of the
Magnuson-Moss Warranty Act[.]” McMahon I, 227 W. Va. at 35, 705 S.E.2d at 145. Justice
                                                                            (continued...)

                                             13

their argument that nothing substantively new was injected in this case on remand. The third

amended complaint has no substantive relevancy without the insertion of the new claim

under the Magnuson-Moss Warranty Act.



              To be clear, insofar as McMahon I came to this Court as a certified question,

it was incumbent upon the plaintiffs to raise the issue of the application of the

Magnuson-Moss Warranty Act in McMahon I. Clearly, this would have been an alternative

dispositive issue, and,12 as such, it should have been brought in the form of a second certified

question in McMahon I. In failing to present a claim under the Magnuson-Moss Warranty

Act in McMahon I, the plaintiffs were precluded from amending their complaint to assert the

claim under the limited remand. Permitting this case to proceed under the third amended

complaint would, in effect, make McMahon I an advisory opinion at best.




              11
                (...continued)
Ketchum’s dissent outlined a theory of liability based upon the Magnuson-Moss Warranty
Act and the failure of the receipt to comply with that Act. It was only after Justice
Ketchum’s dissent was filed that the plaintiffs amended the complaint a third time to set out
a cause of action based upon the Magnuson-Moss Warranty Act.
              12
               We wish to make clear that we are not indicating that the plaintiffs would
have obtained a favorable ruling on a Magnuson-Moss Warranty Act claim in McMahon I.
We merely point out that such a claim would have been an alternative controlling issue.

                                              14

                                           IV.


                                    CONCLUSION


             In view of the foregoing, we grant the requested writ of prohibition. That part

of the circuit court’s April 5, 2012, Memorandum of Opinion and Order that denied

Advance Stores’ motion to dismiss the third amended complaint, in part, is prohibited from

enforcement and is vacated. On remand, the circuit court is directed to enter an order

granting in full Advance Stores’ motion to dismiss the third amended complaint.



                                                                             Writ Granted.




                                            15

