____________________________________________________________ 

 

 

 

____________________________________________________________ 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
 

September 2016 Term FILED _______________ November 15, 2016 

No. 15-0692 released at 3:00 p.m. 

RORY L. PERRY II, CLERK 

SUPREME COURT OF APPEALS _______________ OF WEST VIRGINIA 

DIANE HORTON, EXECUTRIX OF THE ESTATE OF 

GENE RAY DUDDING, 

Plaintiff Below, Petitioner 

v. 

PROFESSIONAL BUREAU OF COLLECTIONS
 

OF MARYLAND, INC.,
 

Defendant Below, Respondent
 

Appeal from the Circuit Court of Putnam County
 

The Honorable Phillip M. Stowers, Judge
 

Civil Action No. 13-C-273
 

AFFIRMED 

Submitted: October 5, 2016 

Filed: November 15, 2016 

Anthony J. Majestro, Esq. David P. Cook, Jr., Esq. 

Powell & Majestro, PLLC MacCorkle Lavender, PLLC 

Charleston, West Virginia Charleston, West Virginia 

Attorney for Respondent 

Benjamin Sheridan, Esq. 

Klein Sheridan & Glazer, LC 

Hurricane, West Virginia 

Attorneys for Petitioner 

JUSTICE BENJAMIN delivered the Opinion of the Court. 
 

 

 

CHIEF JUSTICE KETCHUM, JUSTICE WORKMAN, and JUSTICE LOUGHRY 

concur and reserve the right to file concurring opinions. 

JUSTICE DAVIS dissents and reserves the right to file a dissenting opinion. 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

SYLLABUS BY THE COURT 

1. “A circuit court’s entry of summary judgment is reviewed de novo.” 

Syl. pt. 1, Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). 

2. “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 on it.’ Horton v. Tyree, 

104 W. Va. 238, 242, 139 S.E. 737 (1927).” Syl. pt. 1, Lengyel v. Lint, 167 W. Va. 272, 

280 S.E.2d 66 (1981). 

3. A claim brought under W. Va. Code § 46A-2-127(c) (1997) of the 

West Virginia Consumer Credit and Protection Act is not sufficiently analogous to a 

claim for deceit and fraud so as to survive the death of the consumer pursuant to W. Va. 

Code § 55-7-8a(a) (1959). 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 

1 In his complaint below, the decedent also brought claims for negligence, 

intentional infliction of emotional distress, and invasion of privacy. The circuit court’s 

grant of summary judgment to the respondent on the petitioner’s claims for negligence 

and intentional infliction of emotional distress were not appealed to this Court. The 

petitioner waived her invasion of privacy claim before the circuit court. 

1
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 

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 

2 W. Va. Code § 46A-2-127 (1997) provides: 

No debt collector shall use any fraudulent, deceptive or misleading 

representation or means to collect or attempt to collect claims or obtain 

information concerning consumers. Without limiting the general 

application of the foregoing, the following conduct is deemed to violate this 

section: . . . . (c) The failure to clearly disclose the name and full business 

address of the person to whom the claim has been assigned for collection, 

or to whom the claim is owed, at the time of making any demand for 

money[.] 

The decedent also brought claims under W. Va. Code §§ 46A-2-125,-128(e), and -127(a). 

While the petitioner generally contends on appeal that these violations are analogous to a 

claim for deceit and fraud under W. Va. Code § 55-7-8a(a), the petitioner fails to develop 

these arguments. This Court has previously adhered to the rule that “[a]lthough we 

liberally construe briefs in determining issues presented for review, issues which are . . . 

mentioned only in passing but are not supported with pertinent authority, are not 

considered on appeal. State v. Gray, 217 W. Va. 591, 600, 619 S.E.2d 104, 113 (2005) 

quoting State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (citation 

omitted). Based on this rule, we decline to address the petitioner’s assertions regarding 

other alleged violations of the Consumer Credit and Protection Act. 

2
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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. 

3
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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. 

4
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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: 

3 In her brief, the petitioner presented two assignments of error: (1) The circuit 

court erred in concluding that a decedent’s estate does not have standing to pursue West 

Virginia Consumer Credit and Protection Act claims and (2) the circuit court erred in 

concluding that Consumer Credit and Protection Act claims do not survive the death of 

the plaintiff. Because this Court concludes that the decedent’s claims do not survive his 

death under W. Va. Code §55-7-8a(a), we do not find it necessary to address the standing 

issue. 

5
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 

6
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 

4 This Court indicated in Snodgrass v. Sisson’s Mobile Home Sales, Inc., 161 W. 

Va. 588, 244 S.E.2d 321 (1978), that W. Va. Code § 55-7-8a and W. Va. Code § 55-2-12 

are to be read in pari materia. 

7
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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 claim might exist with regard to those 

acts of misrepresentation or deception that constitute a violation of the Unfair Trade 

Practices Act, other conduct that violates the Unfair Trade Practices Act does not amount 

to fraud. The respondent in this case contends that this Court’s reasoning in Wilt applies 

equally to a claim brought under W. Va. Code § 46A-2-127(c) of the Consumer Credit 

and Protection Act. According to the respondent, a claim under W. Va. Code § 46A-2­

127(c) does not necessarily constitute an action for deceit and fraud. 

In order to determine whether a claim under W. Va. Code § 46A-2-127(c) 

is analogous to deceit and fraud, we will first review our law concerning fraud. This 

Court has held that 

[t]he 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. 

Syl. pt. 1, Lengyel v. Lint, 167 W. Va. 272, 280 S.E.2d 66 (1981). The petitioner 

specifically argues that a violation of W. Va. Code § 46A-2-127(c) is analogous to 

constructive fraud. This Court engaged in a discussion of constructive fraud in Stanley as 

follows: 

8
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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. 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. 

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. 

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. 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. 

169 W. Va. at 76–77, 285 S.E.2d at 682–83 (citations and footnote omitted). This Court 

has also described constructive fraud as resting upon the 

presumption and rests less upon furtive intent than does moral 

fraud. It is presumed from the relation of the parties to a 

transaction or from the circumstances under which it takes 

place. The conscience is not necessarily affected by it. 

Indeed, it has been said that it generally involves a mere 

mistake of fact. Hence, the terms “constructive fraud” and 

“legal fraud” both connote that in certain circumstances, one 

may be charged with the consequences of his words and acts, 

as though he has spoken or acted fraudulently, although 

properly speaking, his conduct does not merit this 

opprobrium. 

9
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Miller v. Bridge Co., 123 W. Va. 320, 335, 15 S.E.2d 687, 695 (1941), quoting 23 Amer. 

Jur., 756.
 

Based on our precedent, essentially in order for a plaintiff to prove constructive fraud, he
 

or she must prove the consequences of actual fraud, but does not have to prove a
 

fraudulent intent.
 

Application of the above description of constructive fraud compels this 

Court to conclude that a claim brought under W. Va. Code § 46A-2-127(c) is not 

sufficiently analogous to an action for deceit and fraud so as to survive the death of the 

consumer pursuant to W. Va. Code § 55-7-8a(a). While the traditional elements of 

constructive fraud as outlined above may well apply to an act that constitutes a violation 

of W. Va. Code § 46A-2-127(c), other conduct that violates W. Va. Code § 46A-2-127(c) 

does not. Therefore, we now hold that a claim brought under W. Va. Code § 46A-2­

127(c) (1997) of the West Virginia Consumer Credit and Protection Act is not 

sufficiently analogous to a claim for deceit and fraud so as to survive the death of the 

consumer pursuant to W. Va. Code § 55-7-8a(a) (1959). 

The decedent’s claim is an example of conduct that does not constitute 

constructive fraud. In his complaint below, the decedent stated that the respondent 

violated W. Va. Code § 46A-2-127(c) by “failing to clearly disclose the name of the 

business entity making a demand for money upon Plaintiff’s indebtedness.” West 

Virginia Code § 46A-7-127(c) prohibits “[t]he failure to clearly disclose the name and 

10
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

full business address of the person to whom the claim has been assigned for collection, or 

to whom the claim is owed, at the time of making any demand for money.” There are no 

facts alleged in the decedent’s complaint that explain how the respondent’s conduct 

violated W. Va. Code § 46A-2-127(c).5 However, in the petitioner’s reply brief to this 

Court, the petitioner indicated that the facts underlying the alleged violation of W. Va. 

Code § 46A-2-127(c) are 

that the Respondent failed to clearly disclose its identity, i.e. 

name, in telephone calls to the Petitioner in the Caller ID 

readout, but instead displayed “Toll Free Number” in order 

that the Petitioner would be deceived and misled that it was 

the Respondent, a debt collector, that was calling the 

Petitioner. 

Presuming that this complained of practice constitutes a violation of W. Va. Code § 46A2-127(c), it certainly does not constitute constructive fraud. Significantly, there is no 

indication that the alleged misrepresentation was material and false. In other words, there 

is no indication that the respondent’s employee was not calling from a toll free number. 

Also, there is no indication that the decedent relied upon the alleged misrepresentation 

and was damaged thereby. Therefore, we reject the petitioner’s argument that the claim 

5 In his complaint, the decedent essentially asserted that after he became in arrears 

on a debt, the respondent began to engage in collection of the debt through the use of 

telephone calls, written, and other communications to the decedent; that the decedent 

retained counsel to represent him in connection with the debt; that the respondent caused 

a telephone call to be placed to the decedent’s home at which time the decedent informed 

the respondent’s employee that he was represented by counsel and gave the employee his 

counsel’s name and telephone number; and that the respondent continued to make 

telephone calls to the decedent after being informed that the decedent was represented by 

counsel. 

11
 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

brought under W. Va. Code 46A-2-127(c) is sufficiently analogous to a claim for deceit 

and fraud under W. Va. Code § 55-7-8a(a) to survive the decedent’s death.6 

IV. CONCLUSION 

For the reasons set forth above, this Court affirms the June 18, 2015, order 

of the Circuit Court of Putnam County that granted summary judgment to Respondent 

Professional Bureau of Collections of Maryland, Inc. in an action brought against it by 

Petitioner Diane Horton as Executrix for Gene Ray Dudding. 

Affirmed. 

6

West Virginia Code § 55-7-8a(a) also provides that “causes of action for injuries 

to property, real or personal” survive the death of the plaintiff. According to the 

petitioner, the decedent incurred attorney fees and costs of litigation in bringing his action 

against the respondent which he is entitled to recover under the Act. The petitioner 

contends that these attorney fees and costs constitute injuries to property rights that 

survive death under W. Va. Code § 55-7-8a(a). Having determined that decedent’s claim 

under W. Va. Code § 46A-2-127(c) did not survive his death, we find no merit to this 

claim. 

Finally, the petitioner argues that “[i]t is manifestly unjust and against public 

policy to allow wrongdoers to escape due to the death of their victim.” We find no merit 

to this argument. The survival of causes of action is governed by statute and not public 

policy as set forth therein. 

12
 
 

 

 

13