Diane Horton v. Professional Bureau of Collections of Maryland ( 2016 )


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  • No. 15-0692 –	       Diane Horton, Executrix of the Estate of Gene Ray Dudding v.
    Professional Bureau of Collections of Maryland, Inc.
    FILED
    November 17, 2016
    released at 3:00 p.m.
    RORY L. PERRY, II CLERK
    SUPREME COURT OF APPEALS
    OF WEST VIRGINIA
    Davis, Justice, dissenting:
    The majority’s opinion in this case finds that Mr. Dudding’s claims against
    Professional Bureau of Collections of Maryland, Inc. (“the Bureau”) do not survive his death.
    Even though the Bureau repeatedly called Mr. Dudding using a number that masked its true
    identity, persistently called Mr. Dudding while he was on his deathbed, blatantly ignored
    repeated requests to call Mr. Dudding’s attorney during Mr. Dudding’s final days in hospice
    care, and continued to call Mr. Dudding’s cell phone after his passing, the majority’s decision
    herein effectively excuses the Bureau for all of these nefarious debt collection practices.
    This result is unjust and has produced an opinion with which I cannot agree. Accordingly,
    I dissent from the majority’s decision in this case.
    A. Survivability
    In its decision of the case sub judice, the majority concludes that Mr.
    Dudding’s claims under the West Virginia Consumer Credit and Protection Act (“CCPA”),
    W. Va. Code § 46A-1-101 et seq., do not survive his death because they do not sufficiently
    allege a cause of action for fraud. Pursuant to W. Va. Code § 55-7-8a(a) (1959) (Repl. Vol.
    2016),
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    [i]n addition to the causes of action which survive at
    common law, causes of action for injuries to property, real or
    personal, or injuries to the person and not resulting in death, or
    for deceit or fraud, also shall survive; and such actions may be
    brought notwithstanding the death of the person entitled to
    recover or the death of the person liable.
    (Emphasis added). Under the facts of the instant case, Ms. Horton, the executrix of Mr.
    Dudding’s estate, contends that the CCPA claims originally brought by Mr. Dudding sound
    in fraud and deceit, and, as such, they survive his death. In rejecting this argument, the
    majority opines that Mr. Dudding has not sufficiently proved the elements of a cause of
    action for fraud. See Syl. pt. 1, Lengyel v. Lint, 
    167 W. Va. 272
    , 
    280 S.E.2d 66
    (1981) (“The
    essential elements in an action for fraud are: ‘(1) that the act claimed to be fraudulent was
    the act of the defendant or induced by him; (2) that it was material and false; that plaintiff
    relied upon it and was justified under the circumstances in relying upon it; and (3) that he
    was damaged because he relied upon it.’ Horton v. Tyree, 
    104 W. Va. 238
    , 242, 
    139 S.E. 737
    (1927).”). This, however, is the wrong analysis.
    The majority makes much of the fact that Mr. Dudding’s claims have not
    established the essential elements of a cause of action for fraud. This is a correct assessment
    of Mr. Dudding’s case, but it completely misses the mark of the relevant inquiry. Mr.
    Dudding has not sustained his burden of proof for a cause of action alleging fraud because
    he never asserted a cause of action for fraud in his complaint. Instead, the counts appearing
    in Mr. Dudding’s complaint claim that the Bureau violated the CCPA, committed common
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    law negligence, and intentionally inflicted emotional distress. As such, the operative inquiry
    is not whether Mr. Dudding has satisfied the elements for a cause of action in fraud, but
    rather whether the CCPA violations he has alleged are sufficiently analogous to fraud or
    deceit such that these claims survive his death. This correct analysis is completely in keeping
    with the central purpose of the West Virginia Consumer Credit and Protection Act:
    The purpose of the CCPA is to protect consumers from
    unfair, illegal, and deceptive acts or practices by providing an
    avenue of relief for consumers who would otherwise have
    difficulty proving their case under a more traditional cause of
    action. As suggested by the court in State v. Custom Pools, 
    150 Vt. 533
    , 536, 
    556 A.2d 72
    , 74 (1988), “[i]t must be our primary
    objective to give meaning and effect to this legislative purpose.”
    Where an act is clearly remedial in nature, we must construe the
    statute liberally so as to furnish and accomplish all the purposes
    intended. Kisamore v. Coakley, 
    190 W. Va. 147
    , 
    437 S.E.2d 585
    (1993) (per curiam); Hubbard v. SWCC and Pageton Coal
    Co., 
    170 W. Va. 572
    , 
    295 S.E.2d 659
    (1981); Wheeling Dollar
    Savings & Trust Co. v. Singer, 
    162 W. Va. 502
    , 
    250 S.E.2d 369
                  (1979).
    State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 
    194 W. Va. 770
    , 777, 
    461 S.E.2d 516
    , 523 (1995) (emphasis added). Under the facts of this case, it is clear that Mr. Dudding
    sufficiently pled CCPA claims that sound in fraud and deceit.
    This Court extensively has considered the meaning of fraud as that term is used
    in the survivability statute, W. Va. Code § 55-7-8a(a):
    Fraud has been defined as including all acts, omissions, and
    concealments which involve a breach of legal duty, trust or
    confidence justly reposed, and which are injurious to another,
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    or by which undue and unconscientious advantage is taken of
    another. See, Dickel v. Smith, 
    38 W. Va. 635
    , 
    18 S.E. 721
    (1893); 8B Michie’s Jurisprudence, Fraud and Deceit §§ 1 and
    2 (1977); 37 Am. Jur. 2d Fraud and Deceit § 1 (1968).
    Fraud may be either actual or constructive. The word
    “fraud” is a general term and construed in its broadest sense
    embraces both actual and constructive fraud. Actual fraud, or
    fraud involving guilt, is defined as anything falsely said or done
    to the injury of property rights of another. Hulings v. Hulings
    Lumber Co., 
    38 W. Va. 351
    , 
    18 S.E. 620
    (1893). Actual fraud
    is intentional, and consists of intentional deception to induce
    another to part with property or to surrender some legal right,
    and which accomplishes the end designed. Miller v. Huntington
    & Ohio Bridge Co., 
    123 W. Va. 320
    , 
    15 S.E.2d 687
    (1941). See
    also, Steele v. Steele, 
    295 F. Supp. 1266
    (S.D. W. Va. 1969);
    Bowie v. Sorrell, 
    113 F. Supp. 373
    (W.D. Va. 1953).
    Constructive fraud is a breach of a legal or equitable
    duty, which, irrespective of moral guilt of the fraud feasor, the
    law declares fraudulent, because of its tendency to deceive
    others, to violate public or private confidence, or to injure
    public interests. Miller v. Huntington & Ohio Bridge Co., 
    123 W. Va. 320
    , 
    15 S.E.2d 687
    (1941). See also, Steele v. Steele,
    
    295 F. Supp. 1266
    (S.D. [W.] Va. 1969); Bowie v. Sorrell, 
    113 F. Supp. 373
    (W.D. Va. 1953); Loucks v. McCormick, 
    198 Kan. 351
    , 
    424 P.2d 555
    (1967); Bank v. Board of Education of City
    of New York, 
    305 N.Y. 119
    , 
    111 N.E.2d 238
    (1953); Braselton
    v. Nicolas & Morris, 
    557 S.W.2d 187
    (Tex. Civ. App. 1977).
    Perhaps the best definition of constructive fraud is that it
    exists in cases in which conduct, although not actually
    fraudulent, ought to be so treated, that is, in which conduct is a
    constructive or quasi fraud, which has all the actual
    consequences and legal effects of actual fraud. In Re Arbuckle’s
    Estate, 
    98 Cal. App. 2d 562
    , 
    220 P.2d 950
    (1950). Constructive
    fraud does not require proof of fraudulent intent. The law
    indulges in an assumption of fraud for the protection of valuable
    social interests based upon an enforced concept of confidence,
    both public and private. Perlberg v. Perlberg, 
    18 Ohio St. 2d 4
    55, 
    247 N.E.2d 306
    (1969). . . .
    The problem here is that our survivability statute, W. Va.
    Code, 55-7-8a, uses broad terminology as to what types of
    causes of actions will survive. In determining whether a
    particular cause of action fits into one of these broad categories,
    we must of necessity apply the general terms to the particular
    case. . . . [W]e recognize that as a general rule a survival
    statute such as W. Va. Code, 55-7-8a, is to be liberally
    construed as it is remedial in nature. [Wheeling ex rel.] Carter
    v. American Casualty Co., 
    131 W. Va. 584
    , 590, 
    48 S.E.2d 404
    ,
    408 (1948); cf. Wilder v. Charleston Transit Co., 
    120 W. Va. 319
    , 
    197 S.E. 814
    (1938); 1 Am. Jur. 2d Abatement, Survival &
    Revival § 54 (1962).
    Stanley v. Sewell Coal Co., 
    169 W. Va. 72
    , 76-78, 
    285 S.E.2d 679
    , 682-83 (1981) (emphasis
    added; footnote omitted).
    From the allegations set forth in Mr. Dudding’s complaint, it is clear that the
    subject CCPA violations averred therein sound in fraud so as to render them survivable under
    W. Va. Code § 55-7-8a(a). Specifically, the complaint alleges that
    The Defendant [the Bureau] has engaged in repeated violations
    of Article 2 of the West Virginia Consumer Credit and
    Protection Act, including but not limited to,
    a. engaging in unreasonable or oppressive or
    abusive conduct towards the Plaintiff [Mr.
    Dudding] in connection with the attempt to collect
    a debt by placing telephone calls to the Plaintiff in
    violation of West Virginia Code § 46A-2-125;
    b. causing Plaintiff’s phone to ring or engaging
    persons, including the Plaintiff, in telephone
    conversations repeatedly or continuously or at
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    unusual times or at times known to be
    inconvenient, with the intent to annoy, abuse or
    oppress the Plaintiff in violation of West Virginia
    Code § 46A-2-125(d);
    c. using unfair or unconscionable means to collect
    a debt from Plaintiff in violation of West Virginia
    Code § 46A-2-128(e) by communication with
    Plaintiff after it appeared that the Plaintiff was
    represented by an attorney and the attorney’s
    name and address were known or could be easily
    ascertained;
    d. failing to clearly disclose the name of the
    business entity making a demand for money upon
    Plaintiff’s indebtedness in violation of West
    Virginia Code § 46A-2-127(a) and (c).
    Not only did the Bureau purposely conceal its identity during its repeated telephone calls to
    Mr. Dudding, but it may also be presumed that, by its blatant and continuous violations of
    the CCPA, the Bureau sought to usurp Mr. Dudding’s rights as a consumer that are protected
    by the CCPA and that the CCPA allows him to enforce. See generally W. Va. Code § 46A­
    5-101(1) (2015) (Repl. Vol. 2015) (affording consumers cause of action and remedies for
    violations of CCPA). Finally, it goes without saying that the Bureau’s actions have had an
    injurious effect upon Mr. Dudding’s property rights: but for the Bureau’s repeated statutory
    violations, Mr. Dudding would not have had to hire a lawyer, incur legal fees, or sustain the
    costs of litigating his CCPA claims against the Bureau. Because the claims set forth in Mr.
    Dudding’s complaint alleging violations of the CCPA sound in fraud, such causes of action,
    by statutory definition, survive his death. See W. Va. Code § 55-7-8a(a).
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    B. Standing
    Having established that Mr. Dudding’s CCPA claims survive his death, the
    next inquiry is whether Ms. Horton, as Mr. Dudding’s personal representative, has standing
    to prosecute such claims on his behalf. Pursuant to the pertinent authorities, Ms. Horton has
    standing to pursue Mr. Dudding’s claims in his stead.
    Standing to bring a cause of action under the CCPA is afforded to consumers.
    See generally W. Va. Code § 46A-5-101. In turn, “consumer” is defined as “any natural
    person obligated or allegedly obligated to pay any debt.” W. Va. Code § 46A-2-122(a)
    (1996) (Repl. Vol. 2015). Although the Legislature has not defined the term “natural
    person,” courts construing this term understand “natural person” to mean a “human being.”
    See Shawmut Bank, N.A. v. Valley Farms, 
    222 Conn. 361
    , 366, 
    610 A.2d 652
    , 654-55 (1992)
    (“[N]atural person . . . clearly means a human being[.]”); Industry to Industry, Inc. v.
    Hillsman Modular Molding, Inc., 
    247 Wis. 2d 136
    , 142, 
    633 N.W.2d 245
    , 249 (Ct. App.
    2001) (“[A] ‘natural person’ is defined as a ‘human being[.]’” (citation omitted)), aff’d, 
    252 Wis. 2d 544
    , 
    644 N.W.2d 236
    (2002).
    It goes without saying that Ms. Horton is a human being, and, as such, a
    “natural person” within the contemplation of W. Va. Code § 46A-2-122(a). Moreover, as
    the executrix of Mr. Dudding’s estate, Ms. Horton is vested with the authority to bring and
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    defend legal claims on Mr. Dudding’s behalf: “[t]he executor or administrator is the proper
    representative of the personal estate, and generally all suits should be brought by and against
    him in relation thereto.” Syl. pt. 10, in part, Richardson v. Donehoo, 
    16 W. Va. 685
    (1880).
    Accord W. Va. Code § 2-2-10(j) (1998) (Repl. Vol. 2013) (“The words ‘personal
    representative’ include the executor of a will . . . and every other curator or committee of a
    decedent’s estate for or against whom suits may be brought for causes of action which
    accrued to or against such decedent[.]”); W. Va. Code § 44-1-22 (1923) (Repl. Vol. 2014)
    (“A personal representative may sue or be sued upon any judgment for or against, or any
    contract of or with, his decedent.”). As such, Ms. Horton is the proper party to substitute for
    Mr. Dudding upon his death during the pendency of the instant proceedings.
    Because I do not agree with the majority’s interpretation and application of the
    law governing its decision in this case, I dissent.
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