Horton v. Prof'l Bureau of Collections of Md., Inc.

• Decision Date: 15 November 2016
• Docket Number: No. 15-0692,15-0692
• Citation: 238 W.Va. 310,794 S.E.2d 395
• Court: West Virginia Supreme Court
• Parties: Diane Horton, Executrix of The Estate of Gene Ray Dudding, Plaintiff Below, Petitioner v. Professional Bureau of Collections of Maryland, Inc., Defendant Below, Respondent

238 W.Va. 310

794 S.E.2d 395

Diane Horton, Executrix of The Estate of Gene Ray Dudding, Plaintiff Below, Petitioner

v.Professional Bureau of Collections of Maryland, Inc., Defendant Below, Respondent

No. 15-0692

Supreme Court of Appeals of West Virginia.

Submitted: October 5, 2016

Filed: November 15, 2016

Anthony J. Majestro, Esq., Powell & Majestro, PLLC, Charleston, West Virginia, Benjamin Sheridan, Esq., Klein Sheridan & Glazer, LC, Hurricane, West Virginia, Attorneys for Petitioner.

David P. Cook, Jr., Esq., MacCorkle Lavender, PLLC, Charleston, West Virginia, Attorney for Respondent.

Benjamin, Justice:

The petitioner and plaintiff below, Diane Horton, Executrix of the Estate of Gene Ray Dudding, appeals the June 18, 2015, order of the Circuit Court of Putnam County that granted summary judgment to the respondent and defendant below, Professional Bureau of Collections of Maryland, Inc., in the petitioner's action against the respondent alleging claims for violations of the West Virginia Consumer Credit and Protection Act, W. Va. Code §§ 46A–1–101 to 8–102 ("the Act").¹ After considering the parties' arguments, relevant portions of the appendix, and the applicable law, we affirm the circuit court's order.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2013, Gene Ray Dudding ("the decedent") filed a complaint in the Circuit Court of Putnam County alleging various causes of action against the respondent, Professional Bureau of Collections of Maryland, Inc., arising from the respondent's actions in attempting to collect a debt from the decedent. Significant for the purpose of this appeal, the decedent claimed that the respondent failed to disclose its name to the respondent when making a demand for money upon the decedent's indebtedness in violation of W. Va. Code § 46A–2–127(c).²

On July 9, 2014, the decedent died. In September 2014, the respondent filed a Suggestion of Death and a motion for summary judgment. In the respondent's motion for summary judgment, the respondent argued that the decedent's claims under the Consumer Credit and Protection Act do not survive his death pursuant to W. Va. Code § 55–7–8a(a) (1959). The respondent explained that under the Act, it is a consumer that has a cause of action, and consumer is defined in the Act as any natural person obligated or allegedly obligated to pay any debt. Therefore, the respondent concluded that the decedent's claims were extinguished upon his death because the claims are personal to the consumer who owed the debt. Further, the respondent averred that an estate does not have standing to bring a claim under the Act because under the law an estate is not a natural person.

The petitioner subsequently filed a Suggestion of Death and moved to substitute the decedent's estate as plaintiff. In the petitioner's response to the respondent's motion for summary judgment, the petitioner contended that W. Va. Code § 55–7–8a(a) does not extinguish the decedent's claims under the Act. The petitioner posited that both W. Va. Code § 55–7–8a(a) and the Act are remedial statutes that should be construed liberally in favor of the plaintiff. The petitioner asserted that it would be unfair to read W. Va. Code § 55–7–8a(a) in a way that extinguishes the decedent's claims under the Act.

In the circuit court's hearing on the respondent's motion for summary judgment, the petitioner hinged his argument against summary judgment on the fact that the decedent was alive when the respondent's complained of acts occurred, and he was alive when his action was filed against the respondent. The petitioner went on to explain:

So in order to cut [Mr. Dudding] off at this point is a pretty harsh thing because what it says is essentially creditors can wait until somebody is very ill and, perhaps, essentially while they're dying, and then they don't really have much to worry about if they pass away because their claims are cut off immediately upon their death.

And I don't think that's a liberal construction of the statute. And the Supreme Court said over and over again this must be liberally construed to protect consumers in the State of West Virginia.

In its June 18, 2015, order granting summary judgment in favor of the respondent, the circuit court reasoned that the decedent is not a "natural person" for purposes of the Act. Further, the circuit court found no evidence that any communications from the respondent were directed to the estate or to Ms. Horton in her capacity as executrix of the estate, and there is no evidence that the estate is obligated to pay the alleged debt. Therefore, the circuit court concluded that the estate lacks standing to maintain a private right of action as a "consumer" within the meaning of the Act.

The petitioner now appeals the circuit court's order granting summary judgment to the respondent.

II. STANDARD OF REVIEW

In syllabus point one of Painter v. Peavy , 192 W.Va. 189, 451 S.E.2d 755 (1994), this Court held that "[a] circuit court's entry of summary judgment is reviewed de novo. " Therefore, we will conduct a de novo review of the circuit court's summary judgment order.

III. ANALYSIS

The dispositive issue before this Court is whether the decedent's claim under W. Va. Code § 46A–2–127(c) of the Act survives his death.³ The petitioner argues on appeal that a claim brought under W. Va. Code § 46A–2–127(c) is sufficiently analogous to a claim for fraud under W. Va. Code § 55–7–8a(a), so that the claim survives the consumer's death.

As a preliminary matter, we note that the petitioner did not make this argument below either in her response to the defendant's motion for summary judgment or in the hearing before the circuit court. As a result, the circuit court did not address this argument in its motion granting summary judgment to the respondent. Generally, this Court will not address an issue raised for the first time on appeal and not decided by the circuit court. See syl. pt. 2, Sands v. Sec. Trust Co. , 143 W.Va. 522, 102 S.E.2d 733 (1958) ("This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance."). We have explained these principles as follows:

Ordinarily, a [party] who has not proffered a particular claim ... in the trial court may not unveil it on appeal. Indeed, if any principle is settled in this jurisdiction, it is that, absent the most extraordinary circumstances, legal theories not raised properly in the lower court cannot be broached for the first time on appeal. We have invoked this principle with a near religious fervor. This variant of the "raise or waive" rule cannot be dismissed lightly as a mere technicality. The rule is founded upon important considerations of fairness, judicial economy, and practical wisdom.

State v. Miller , 197 W.Va. 588, 597, 476 S.E.2d 535, 544 (1996). We have further explained, however, that "the ‘raise or waive’ rule, though important, is a matter of discretion. Thus, like most rules, this rule admits of an occasional exception." Id. , 197 W.Va. at 598, 476 S.E.2d at 545. In this case, we deem it preferable to address the issue in light of the fact that the facts of the case are sufficiently developed to permit meaningful review, and the issue was fully briefed by both parties.

The applicable law in this case is found at W. Va. Code § 55–7–8a(a) (1959), which provides:

In 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.

The petitioner posits that the decedent's claim under W. Va. Code § 46A–2–127(c) is sufficiently analogous to deceit and fraud so as to survive the death of the claimant pursuant to W. Va. Code § 55–7–8a(a). In support of her position, the petitioner relies on Stanley v. Sewell Coal Co. , 169 W.Va. 72, 285 S.E.2d 679 (1981), in which this Court found that a claim for retaliatory discharge is sufficiently related to an action for fraud and deceit so that the claim survives the death of the plaintiff. According to the petitioner, his claim under W. Va. Code 46A–2–127(c) is based on the same underlying principles of deceit and constructive fraud found persuasive in Stanley . The petitioner contends that the respondent's failure to disclose the name of the business entity making a demand for money upon the decedent's indebtedness was fraudulent, deceptive, and misleading. The petitioner contends that the respondent purposefully omitted its name in order to mislead the decedent and to deceive him as to who was collecting the debt. The petitioner concludes that this conduct falls within the penumbra of deceit or fraud set forth in W. Va. 55–7-8a(a) and accepted by this Court in Stanley .

The respondent's position is that the decedent's claim under W. Va. Code 46A–2–127(c) is not analogous to deceit and fraud under the survival statute and does not survive the decedent's death. The respondent relies on this Court's decision in Wilt v. State Automobile Mutual Insurance Company , 203 W.Va. 165, 506 S.E.2d 608 (1998). The respondent explains that in Wilt , one of the arguments presented was that provisions contained in the West Virginia Unfair Trade Practices Act, W. Va. Code §§ 33–11–1 to 10, are sufficiently related to an action for deceit and fraud so that the two-year statute of limitations applies under W. Va. Code §§ 55–2–12 and 55–7–8a.⁴ This Court rejected this argument in Wilt observing that viewing claims under the Unfair Trade Practice Act as being analogous to deceit and fraud is problematic because the type of conduct that constitutes a violation of the Unfair Trade Practices Act may include a variety of factual scenarios which lack the requisite elements of a fraud claim. The Court stated that while the traditionally recognized elements of a fraud...