State ex rel. Dodrill Heating & Cooling, LLC v. Akers

CourtSupreme Court of West Virginia
Citation874 S.E.2d 265
Docket Number21-0561
Parties STATE of West Virginia EX REL. DODRILL HEATING AND COOLING, LLC, Defendant Below, Petitioner, v. The Honorable Maryclaire AKERS, Judge of the Circuit Court of Kanawha County; and Jerry and Pamela Whittington, Husband and Wife, Individually and on Behalf of All Others Similarly Situated, Plaintiffs Below, Respondents.
Decision Date22 April 2022

Camille E. Shora, Esq., Wilson, Elser, Moskowitz, Edelman & Dicker LLP, McLean, Virginia, Counsel for Petitioner

Matthew Stonestreet, Esq., Troy N. Giatras, Esq., The Giatras Law Firm, PLLC, Charleston, West Virginia, Counsel for Respondents

WALKER, Justice:1

Respondents Jerry and Pamela Whittington purchased an HVAC unit from Petitioner Dodrill Heating and Cooling LLC (Dodrill), and later sued Dodrill when they had issues with the unit. Eventually, the circuit court certified a class action based on the Whittingtons’ claim that language in the documents used by Dodrill violated the West Virginia Consumer Credit Protection Act (WVCCPA), West Virginia Code § 46A-2-127(g). Dodrill seeks a writ of prohibition challenging the class certification on two grounds. First, Dodrill contends that the Whittingtons lack standing because the challenged language is no more than a threat and was never acted upon, so it is not actionable as an injury-in-fact. But because the West Virginia Legislature has determined that representations made in violation of the WVCCPA are an injury-in-fact with or without resulting damages, we deny Dodrill's writ of prohibition as to standing.

Second, Dodrill seeks to prohibit certification of a class of individuals who also received documents from Dodrill containing the language that purportedly violates the WVCCPA. Dodrill contends that the circuit court's order does not sufficiently analyze the predominance and superiority factors of Rule 23(b)(3) of the West Virginia Rules of Civil Procedure as thoroughly as we deemed necessary in our recent opinion in State ex rel. Surnaik Holdings of West Virginia, LLC v. Bedell .2 We agree with Dodrill that the circuit court's order was conclusory as to its analysis of the predominance and superiority factors addressed in Surnaik , but disagree that the appropriate remedy is to vacate with instructions that class certification be denied. Rather, we grant the requested writ of prohibition, but direct, as we did in Surnaik , that the circuit court undertake a more rigorous analysis under the parameters outlined in that case.


Respondents Jerry and Pamela Whittington, like the class they propose to represent, purchased an HVAC unit from Dodrill. The written proposal for installation the Whittingtons received from Dodrill quoted a total price of $11,995.00 and noted that "[b]uyer agrees to any reasonable attorney or collection fees incurred by seller in securing payment for this contract." Dodrill facilitated the Whittingtons’ finance of the purchase through Greensky, LLC.

The Whittingtons allege that they had repeated issues with the HVAC unit, requiring Dodrill to return to their home to service the unit several times. Each time Dodrill returned to work on the unit, the written work orders provided to the Whittingtons contained the language "[i]n the event that collection efforts are initiated against me, I shall pay for all associated fees at the posted rates as well as all collection fees and reasonable attorney fees." The Whittingtons ultimately requested that Dodrill remove the unit and issue a full refund.

When the Whittingtons filed suit against Dodrill, they alleged negligence and violations of West Virginia Code § 46A-6-102(7) and West Virginia Code § 46A-6-104 for the omission of material terms required by the Home Improvement Rule3 and misrepresentation and breach of warranty under the WVCCPA. The Whittingtons then sought and were granted leave to file an amended complaint converting the case to a putative class action.

The amended complaint added the claim that Dodrill had violated West Virginia Code § 46A-2-127(g) by including language in the proposal/agreement and subsequent work orders that they would be subject to pay Dodrill's attorney fees and sought class-wide relief for all individuals who had received the same proposal/agreement and work orders containing that language. After a hearing on class certification on December 15, 2020, the circuit court entered an order certifying the class on June 17, 2021. Dodrill filed the instant petition for writ of prohibition seeking to preclude certification of the class.


Dodrill seeks relief in prohibition under this Court's original jurisdiction as to the Whittingtons’ purported lack of standing and the circuit court's alleged failure to fully comply with Rule 23 of the West Virginia Rules of Civil Procedure in certifying the class. "A writ of prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1."4 The requisite considerations for issuance of a writ of prohibition that do not involve the absence of jurisdiction are well-settled:

In 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 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.[5 ]

With this standard in mind, we turn to the parties’ arguments.


As noted above, Dodrill seeks a writ of prohibition on two separate issues. First, Dodrill contends that the Whittingtons lack standing because they have only produced evidence of a "threat" to add attorney fees but have not incurred actual harm from Dodrill since the Whittingtons financed their HVAC through a third-party and Dodrill never attempted to collect a debt from the Whittingtons. Second, Dodrill challenges the circuit court's order certifying the class as non-compliant with the analysis required under Rule 23 of the West Virginia Rules of Civil Procedure. We examine these arguments in turn.

A. Standing

Article VIII, Sections 3 and 6 of the West Virginia Constitution establish a "controversy" requirement.6 As we have noted previously, "[o]ne of the incidents of [the] controversy requirement is that a litigant have ‘standing’ to the challenge the action sought to be adjudicated[.]"7 While Section 3 pertains to appellate controversy requirements of this Court, similar parameters are imposed on the circuit courts by Section 6. Specific to the controversy requirement under Article VIII, Section 6, we have discussed that "there must be a justiciable case or controversy—a legal right claimed by one party and denied by another—in order for the circuit court to have subject matter jurisdiction. In part, this means the party asserting a legal right must have standing to assert that right."8 Standing, as a more specific concept of justiciability, "refers to one's ability to bring a lawsuit based upon a personal stake in the outcome of the controversy[,]"9 and has been defined by this Court as "[a] party's right to make a legal claim or seek judicial enforcement of a duty or right."10

Standing has been further refined as follows:

Standing is comprised of three elements: First, the party attempting to establish standing must have suffered an "injury-in-fact"— an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent and not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the injury will be redressed through a favorable decision of the court.[11 ]

Dodrill contends that the Whittingtons cannot establish the first element of standing since they have suffered no injury-in-fact resulting from the language in the proposal/agreement and subsequent work order invoices. Importantly, "standing is gauged by the specific common-law, statutory or constitutional claims that a party presents."12 And the operative inquiry is "whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues."13 So, we look to the statutory provision under which the Whittingtons seek relief.

The only claim at issue before us is the Whittingtons’ claim under West Virginia Code § 46A-2-127(g). That provision of the WVCCPA states in relevant part:

No debt collector shall use any fraudulent, deceptive or misleading representation or means to collect or attempt to collect claims or to obtain information concerning consumers. Without limiting the general application of the foregoing, the following conduct is deemed to violate this section:
(g) Any representation that an existing obligation of the consumer may be increased by the addition of attorney's fees ... when in fact such fees or charges may not legally be added to the existing obligation[.]

As to this provision, Dodrill...

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