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No. 21-0561 – State ex rel. Dodrill Heating & Cooling, LLC v. The Honorable 

Maryclaire Akers, Judge of the Thirteenth Judicial Circuit of West Virginia; 

and Jerry and Pamela Whittington.

WOOTON, J., concurring, in part, dissenting, in part:

This action presented two issues for this Court’s resolution: (1) whether the 

Respondents, plaintiffs-below, lacked standing to assert a claim under West Virginia Code 

§ 46A-2-127(g)1

; and (2) whether the circuit court’s order certifying this class action 

properly analyzed the predominance and superiority requirements for class certification 

under West Virginia Rule of Civil Procedure 23(b)(3). I concur with the majority’s 

resolution of the first question, concluding that Petitioner’s assertion that the Respondents 

lacked standing was without merit. However, I disagree with the majority’s resolution of 

the second question, concluding that the circuit court failed to properly analyze 

predominance and superiority under the strictures of this Court’s holding in State ex rel. 

1 West Virginia Code § 46A-2-127 reads, in pertinent 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, 

investigation fees, service fees or any other fees or charges 

when in fact such fees or charges may not legally be added to 

the existing obligation[.]

FILED

April 22, 2022

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Surnaik Holdings of WV, LLC v. Bedell, 244 W. Va. 248, 852 S.E.2d 748 (2020). In my 

review of the circuit court’s order, I believe the circuit court performed a sufficient 

substantive analysis to survive this Court’s scrutiny, and that the majority’s insistence on 

strict adherence to Surnaik “exalts form over substance[.]” Id. at 267, 852 W. Va. at 767 

(Workman, J., dissenting). For this reason, I concur, in part, and dissent, in part.

The majority’s decision rests on our holding in Syllabus Point 7 of Surnaik

that

[w]hen a class action certification is being sought pursuant to 

West Virginia Rule of Civil Procedure 23(b)(3), a class action 

may be certified only if the circuit court is satisfied, after a 

thorough analysis, that the predominance and superiority 

prerequisites of Rule 23(b)(3) have been satisfied. The 

thorough analysis of the predominance requirement of West 

Virginia Rule of Civil Procedure 23(b)(3) includes (1) 

identifying the parties’ claims and defenses and their 

respective elements; (2) determining whether these issues are 

common questions or individual questions by analyzing how 

each party will prove them at trial; and (3) determining 

whether the common questions predominate. In addition, 

circuit courts should assess predominance with its overarching 

purpose in mind — namely, ensuring that a class action would 

achieve economies of time, effort, and expense, and promote 

uniformity of decision as to persons similarly situated, without 

sacrificing procedural fairness or bringing about other 

undesirable results. This analysis must be placed in the written 

record of the case by including it in the circuit court’s order 

regarding class certification. 

Id. at 250, 852 S.E.2d at 750, syl. pt. 7 (emphasis added). As noted above, the majority 

concludes that the circuit court did not adhere to this holding insofar as it allegedly failed 

to include a “thorough” analysis of predominance and superiority. However, I find that 
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conclusion to be both flatly wrong, and untenable in light of the circuit court’s 22-page 

order.

As the circuit court recognized, the central legal issue in the case below is 

whether Dodrill Heating & Cooling, LLC, violated the West Virginia Consumer Credit 

Protection Act, specifically West Virginia Code § 46A-2-127(g), by including language in 

its contracts and work orders which threatened the addition of collection and attorney’s 

fees to the customer’s balance if a collection action were initiated against them. The circuit 

court identified the offending provisions, finding that Dodrill’s contracts state, “Buyer 

agrees to any reasonable attorney or collection fees incurred by seller in securing payment 

for this contract[,]” and that the work orders state that “[i]n the event that collection efforts 

are initiated against [Buyer], [Buyer] shall pay for all associated fees at the posted rate as 

well as all collection fees and reasonable attorney fees.” Ultimately, the circuit court 

determined that some 1,700 individual customers signed the contract, while 7,500 signed 

the work order, bringing the putative class to more than 9,000 individual persons.

Respondents, plaintiffs below, specifically challenged the inclusion of this

language in the contracts Dodrill required them to sign, alleging West Virginia Code § 

46A-2-127(g) plainly prohibits threats to consumers that the balance on their account may 

be increased by the cost of attorney’s fees and/or collection costs. As such, the central

question before the circuit court — and the only issue upon which class certification was 

based — was “whether Dodrill violated W. Va. Code § 46A-2-127 by communicating to 
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consumers that any obligation which they may owe to it can be increased by attorney fees 

and collection costs.” That is a straightforward question of law, and is, in fact, the only

question central to every putative class member’s cause of action against Dodrill. Beyond 

this, assuming arguendo the mere threat of fees is a violation of the WVCCPA, it is also 

the dispositive question. How can there be any doubt that this question predominates over 

any individual claims of the putative class members? Yet, the majority inexplicitly ignores

this natural conclusion and instead holds that the circuit court needed to expend more time 

explaining the obvious.

Relying on the circuit court’s allegedly sparse discussion of predominance, 

the majority holds that the circuit court failed to undertake a thorough analysis of this 

factor. I strongly disagree. As stated above, the question before the circuit court was one 

purely of law, requiring no factual development and no weighing of the evidence — just a 

straightforward question: does the fee-threatening language included in Dodrill’s contracts 

violate West Virginia Code § 46A-2-127(g)? This is a purely legal question, yet the 

majority insists that the circuit court’s analysis was not sufficient because it “contain[s] 

none of the requisite analysis outlined in Surnaik as separate and apart from, and more 

exacting than a commonality analysis.” What the majority means is that the circuit court 

failed to outline the parties’ claims and defenses and their respective elements, or to analyze 

the proof necessary to establish those claims and defenses. Surnaik, 244 W. Va. at 258, 

852 S.E.2d at 758. 
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In my reading of § 46A-2-127(g), there are only two elements that must be 

established to proceed: (1) whether Dodrill is a debt collector for purposes of the WVCCPA

— a question readily answered by the Act itself in § 46A-2-122; and (2) whether the 

language in Dodrill’s contracts threatens the addition of impermissible collection and 

attorney’s fee — a question readily answered by looking at Dodrill’s contracts. The claims 

and defenses are self-evident, and the proof necessary to establish them is already in the 

record of this case insofar as Dodrill has supplied its form contracts and a list of customers 

who have signed them. To require the circuit court to now enumerate these elements is an

exercise in futility which achieves only one purpose: further delaying the resolution of 

these claims. 

A similar problem plagues the majority’s conclusion that the circuit court 

failed to properly address Rule 23(b)’s superiority requirement. In Surnaik we enumerated 

a number of factors this Court has deemed relevant in establishing whether a class action 

is superior to other forms of litigation, including “the size of the class, anticipated recovery, 

fairness, efficiency, complexity of the issues and social concerns involved in the case.” 

Surnaik, 244 W. Va. at 263, 852 S.E.2d at 763 (internal citations omitted). We further 

cautioned that “consideration must be given to the purposes of Rule 23, ‘“including: 

conserving time, effort, and expense; providing a forum for small claimants; and deterring 

illegal activities.”’” Id. (internal citations omitted). 
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The circuit court adequately addressed all but one of the enumerated 

superiority factors: anticipated recovery. Though the circuit court may have made a poor 

drafting choice in combining its analyses of predominance and superiority, it cannot be 

denied that the circuit court’s intertwined analysis: (1) identifies a class of 9,000 putative 

members, which absent a class action would require the filing of 9,000 individual suits; (2) 

finds that the putative class members all share identical — and from the above analysis, 

straightforward — legal questions; (3) concludes that “judicial efficiency and public 

policy” warrant certifying the class; and (4) that management of any remaining individual 

questions can be achieved via subclasses and bifurcation. Though the circuit court never 

used the word “superior” in this analysis, what more could have been done to establish that 

a class action was clearly the superior form of litigation in this matter? Moreover, even 

had the circuit court not done this analysis, it is obvious that class litigation is far superior 

to 9,000 individual claims raising identical issues; accordingly, if the circuit court’s failure 

to so state is an error, it is not of such magnitude as to warrant reversal and remand. 

I am greatly concerned that this Court’s decision in Surnaik portends an 

imprudent path which will render class certification a far more arduous process, and which 

will create — as illustrated by the case at bar — senseless delays predicated on strict 

adherence to form over substance. I do not think this Court intended Surnaik to require the 

courts of this State to waste judicial time and resources stating the obvious; to the extent 

that Surnaik does so, I believe it is a serious deviation from our long-standing Rule 23 
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jurisprudence and, as such, should be limited in its application. For the foregoing reasons, 

I respectfully concur, in part, and dissent, in part.