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 extensivelyhas 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 

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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 § 46A5-101(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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