                                                                                          FILED
                                                                                     November 15, 2016
                                                                                       released at 3:00 p.m.
                                                                                     RORY L. PERRY II, CLERK

                                                                                   SUPREME COURT OF APPEALS

No. 15-0692 – Horton v. Professional Bureau of Collections of Maryland, Inc.            OF WEST VIRGINIA




LOUGHRY, J., joined by KETCHUM, C. J. and WORKMAN, J., concurring:


              I concur in the majority’s conclusion that the petitioner’s claim pursuant to

West Virginia Code § 46A-2-127(c) does not survive the death of her decedent. I write

separately, however, to clarify that the majority’s analysis yields equally to the broader

conclusion that a cause of action pursuant to the unfair debt collection practices

provisions of the West Virginia Consumer Credit and Protection Act (hereinafter

“WVCCPA” or “the Act”), West Virginia Code §§ 46A-2-122 through 129a, is not

survivable. For reasons that are unclear and despite the petitioner’s assertion of a variety

of violations of the unfair debt collection provisions of the WVCCPA, the majority

unnecessarily restricts its holding to Section 127(c). Clearly, however, a cause of action

arising under any portion of the unfair debt collection practices provisions of the

WVCCPA does not survive by virtue of the unmistakable statutory language and

application of our survivability statute, West Virginia Code § 55-7-8a(a).



              As set forth by the majority, the petitioner alleges that prior to his death, the

petitioner’s decedent, Mr. Dudding, received telephone calls from the respondent in an

attempt to collect a debt. The petitioner alleges that the respondent made these calls

without properly identifying itself and after being advised that Mr. Dudding was

represented by counsel.     Mr. Dudding filed a complaint alleging violations of the

WVCCPA, specifically West Virginia Code §§ 46A-2-125(d) (prohibiting calling any

                                              1

person more than thirty times per week or engaging in telephone conversation more than

ten times per week with intent to annoy, abuse, oppress or threaten),1 -128(e) (prohibiting

communication with a consumer seventy-two hours after written notice that the consumer

is represented by an attorney), -127(a) (prohibiting use of anything other than a business’

true name while collecting debt), and 127(c) (prohibiting failure to disclose the name and

business address of the collection agency). The majority focuses on the petitioner’s

Section 127(c) claim based on the respondent’s purported failure to identify itself on

caller ID and concludes that such an act is not inherently fraudulent or deceitful, and

therefore, the Section 127(c) claim is not afforded survivability pursuant to West Virginia

Code § 55-7-8a(a). The majority expressly notes that the petitioner asserted additional

violations of the unfair debt collection practices provisions of the WVCCPA that she

claims are analogous to fraud and deceit, but “fails to develop these arguments.” In spite

of this failure to develop an argument in support of their survivability and the clear

presentation of the larger issue of survivability of unfair debt collection claims, the

majority simply side-steps the issue. To avoid any suggestion that other provisions of the

unfair debt collection practices provisions of the WVCCPA may be survivable, I write




       1
        The wording of this subsection in effect at the time Mr. Dudding filed suit
prohibited only “[c]ausing a telephone to ring or engaging any person in telephone
conversation repeatedly or continuously, or at unusual times or at times known to be
inconvenient, with intent to annoy, abuse, oppress or threaten any person at the called
number.” W.Va. Code § 46A-2-125 (1974). This subsection was amended in 2015 to,
among other things, include quantitative benchmarks for such calls, as indicated above.

                                            2

separately to clarify that the majority’s analysis does in fact serve to render a cause of

action under any of these provisions abated upon death of the consumer.



              Although not addressed by the majority, the statutory language of the unfair

debt collection practices provisions of the WVCCPA clearly indicates that an estate may

not maintain a cause of action for violations thereof. West Virginia Code § 46A-5-101(1)

creates the cause of action for violation of these provisions. This statute states plainly

that, upon commission of a “prohibited debt collection practice . . . the consumer has a

cause of action . . . .” (emphasis added). Id. West Virginia Code § 46A-2-122 sets forth

its own definitions specifically applicable to the unfair debt collection practices

provisions of the WVCCPA: “For purposes of this section and sections one hundred

twenty-three . . . [through] one hundred twenty-nine-a . . . of this article, the following

terms shall have the following meanings . . . .” It then defines “consumer” as “any

natural person obligated or allegedly obligated to pay any debt.” W.Va. Code § 46A-2­

122(a) (emphasis added). Therefore, a cause of action for violation of “prohibited debt

collection practices” belongs exclusively to the “consumer,” who for purposes of such

claim can only be a “natural person.” As such, it is clear that an unfair debt collection

practices act claim may not be maintained or vindicated by an estate.2




       2
         The petitioner argues that because she was substituted as the party plaintiff as Mr.
Dudding’s personal representative, rather than “the estate,” and is a natural person, she
satisfies the requirements of the statute. However, this Court has held that “simply
(continued . . .)
                                              3

              Notwithstanding      this   uncomplicated      statutory   construction     and

interpretation, West Virginia’s survival statute compels the same conclusion. “A cause of

action created by statute survives when and only when some provision for its survival is

made in the statute itself, or in some other statute.” 1 C.J.S. Abatement and Revival § 151,

at 206 (1985). The WVCCPA itself contains no statutory provision for survivability.

That fact alone is significant. As the Texas Supreme Court observed regarding its hybrid

Deceptive Trade Practices Act-Consumer Protection Act, “we must at least begin our

analysis by noting that the Legislature clearly knew how to indicate that warranty claims

were assignable, but did not do so in the DTPA.” PPG Indus., Inc. v. JMB/Houston

Centers Partners Ltd. P’ship, 146 S.W.3d 79, 84 (Tex. 2004).3



              Looking beyond the WVCCPA’s silence, however, our survival statute

further supports a lack of survivability. At common law, “personal” tort actions typically

did not survive and actions for breach of contract or which affected property interests did


because a claimant falls into one of the categories of persons listed in Rule 17(a) [as a
real party in interest] does not end the analysis; the claimant must still establish they have
a right under the substantive law to initiate a lawsuit to enforce some right.” Keesecker v.
Bird, 200 W.Va. 667, 677, 490 S.E.2d 754, 764 (1997). As discussed infra, the petitioner
has no substantive right to advance a claim that does not survive her decedent.
Regardless, despite being a “natural person,” the petitioner is not personally “obligated or
allegedly obligated to pay” the debt of Mr. Dudding. W.Va. Code § 46A-2-122(a).
Rather, as personal representative, she performs a ministerial function to administer his
estate, which may or may not include ensuring that the obligations of the estate are
fulfilled.
        3
          The fact that assignability has often been viewed as coterminous with
survivability makes this observation equally applicable to the issue at bar.


                                              4

survive. 1 Am.Jur.2d, Abatement, Survival, and Revival § 56 (“[A] cause of action

sounding in tort generally does not survive unless property or contract rights are

involved.”). However, West Virginia Code § 55-7-8a(a), enacted in 1959 and entitled

“Actions which survive; limitations; law governing such actions,” ameliorated the harsh

common law effect on personal injury tort actions and 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.

In short, property damage claims, personal injury claims, and actions for deceit/fraud

specifically survive as well as anything which “survive[s] at common law.”4



              Albeit only briefly discussed by the majority, this Court has had occasion to

assess the survivability of a highly comparable statutory enactment, which appropriately

guides our analysis.5 In Wilt v. State Automobile Mutual Insurance Company, 203 W.

Va. 165, 506 S.E.2d 608 (1998), the Court sought to resolve the issue of the statute of

limitations for claims brought under the Unfair Trade Practices Act (“UTPA”). The Wilt

       4
        The petitioner does not argue that WVCCPA claims survive at common law, nor
that such claims are sufficiently akin to a personal injury to survive. The petitioner
makes a cursory assertion that the petitioner’s claim for attorney’s fees under the
WVCCPA are an “injury to property rights” without any supporting authority.
       5
        In fact, the claims actionable under unfair trade practices and consumer credit acts
are so comparable, Texas has a hybrid Unfair Trade Practices and Consumer Credit
Protection Act called the “Deceptive Trade Practices-Consumer Protection Act.” See
Tex. Business & Commerce Code Ann. § 17.41 (1973).

                                             5

Court analyzed whether a UTPA claim was “analogous to a claim for fraud” and/or deceit

and therefore survivable, in which event it would be afforded a two-year statute of

limitations. Id. at 167, 506 S.E.2d at 610. Upon analysis, the Court expressly rejected

the notion that a UTPA claim was analogous to a claim for fraud, stating, “Viewing

claims under the Act as necessarily fraudulent in nature is problematic, however, because

the type of conduct that constitutes an unfair settlement claim may include a variety of

factual scenarios which lack the requisite elements of a fraud claim.” Id. The Court then

examined the variety of factual bases for violations of the UTPA including failure to

timely act on an investigation, failure to implement procedures, and misrepresentation of

pertinent facts relating to coverage.     Id. at 168, 506 S.E.2d at 611.        The Court

acknowledged that while “the traditionally recognized elements of a fraud claim might

exist with regard to those acts of misrepresentation or deception that constitute an unfair

settlement claim, other conduct that qualifies as an unfair settlement practice clearly does

not amount to fraud.”      Id.   The Court then identified additional deception-neutral

prohibitions under the UTPA which were not “aimed strictly at the elimination of

conduct that is fraudulent in character,” and concluded that a UTPA claim was not

tantamount to fraud and/or deceit for purposes of survivability. Id. at 169, 506 S.E.2d at

612.



              The applicability of this rationale is markedly demonstrated in the

separately designated portions of the unfair debt collection practices provisions of the

WVCCPA themselves.        Section 124 outlines acts that are forbidden as “Threats or
                                           6

coercion.” Section 125 similarly describes acts that are forbidden as “Oppression and

abuse.”   Section 126 forbids actions that are deemed “Unreasonable publication.”

Section 128 proscribes “Unfair or unconscionable means” as enumerated therein. Section

129a prohibits what it describes as “Deceptive or oppressive telephone calls.” Without

question, these provisions describe conduct that has been deemed undesirable as a public

policy matter and is therefore prohibited by this enactment.         They are plainly not,

however, all entrenched in fraud and/or deceit, as evidenced by their titles alone.



              Only Section 127, entitled “Fraudulent, deceptive or misleading

representations,” contains violations that are self-described as falling within the ambit of

fraud and/or deceit.    However, even these specifically designated “fraudulent” and

“deceptive” actions describe acts that, as the majority correctly notes, are not inherently

and/or exclusively steeped in fraud. For instance, in Subsection (c), the mere “failure to

clearly disclose the name and full business address” of the debt collector or owner of the

claim is deemed a violation. (Emphasis added). A “failure” to do something may

obviously be wholly innocent and/or negligent, at best. Moreover, as the majority also

notes, actions such as those alleged herein which are not false, yet ostensibly violate these




                                             7

provisions, 6 further suggest that even this Section does not derive of exclusively

fraudulent or deceitful actions.



              The wisdom of the Wilt rationale, which requires examination of the

content and purpose of these statutory provisions, is patent and accordingly has been

applied by a federal district court to these same provisions of the WVCCPA. In Finney v.

MIG Capital Management, Inc., No. Civil Action 2:13-02778, 2014 WL 1276159

(S.D.W. Va. Mar. 27, 2014), the District Court found that the WVCCPA claims alleged

therein were not survivable upon application of the Wilt analysis.          After careful

examination of this Court’s survivability jurisprudence, the District Court correctly

observed

              [C]ertain deceptive practices may be prohibited by statute
              because they are unfair, without necessarily amounting to
              fraud. The same is true here. It may be “unfair or
              unconscionable” for a debt collector to contact directly a
              consumer known to be represented by counsel. W. Va. Code
              § 46A-2-128(e). But that statutory designation does not
              transform the underlying conduct into a common law claim
              for fraud.

Id. at *9 (citations omitted);7 see also Motzer Dodge Jeep Eagle, Inc. v. Ohio Atty. Gen.,

642 N.E.2d 20 (Ohio Ct. App. 1994) (finding claim unfair or deceptive sales practices did


       6
         In this case, the petitioner alleges that the respondent’s purported use of the
designation “Toll Free Number” on a caller ID is the use of a “business, company or
organization name . . . other than the true name of the debt collector[]” in violation of
Section 127(a).
       7
         The District Court also astutely observed that this Court has declined to find
statutory survivability in the majority of cases, making Stanley v. Sewell Coal Co., 169
(continued . . .)
                                             8

not survive consumer’s death); Ferguson v. Charleston Lincoln Mercury, Inc., 564

S.E.2d 94 (S.C. 2002) (finding cause of action alleging unfair methods of competition

and unfair or deceptive acts or practices do not survive); Lukasik v. San Antonio Blue

Haven Pools, Inc., 21 S.W.3d 394, 401 (Tex. App. 2000) (“A representative of an estate

is not a ‘consumer’ under the DTPA because a DTPA cause of action does not survive

the death of the original consumer”); First Nat. Bank of Kerrville v. Hackworth, 673

S.W.2d 218 (Tex. App. 1984) (finding cause of action under Deceptive Trade Practices

Act did not survive death of customer). It is therefore plain that our survival statute

likewise fails to afford survivability to unfair debt collection practices claims under the

WVCCPA.



              Finally, I note the petitioner’s assertion that it would simply be “manifestly

unjust” to disallow survivability, thereby allowing wrongdoers under the Act to “escape

due to the death of their victim.” The petitioner urges that this Court should “not send

such a message.” However, the petitioner misapprehends this Court’s function insofar as

determining survivability is concerned. It is not for this Court to assess the wisdom of


W.Va. 72, 285 S.E.2d 679 (1981), upon which the petitioner heavily relies, an outlier.
See Thompson v. Branches–Domestic Violence Shelter of Huntington, W.Va., Inc., 207
W.Va. 479, 534 S.E.2d 33 (2000) (holding statutory breach of confidentiality has one-
year statute of limitations and is not survivable); Slack v. Kanawha County Housing and
Redevelopment Authority, 188 W.Va. 144, 423 S.E.2d 547 (1992) (finding invasion of
privacy did not survive); Cavendish v. Moffitt, 163 W.Va. 38, 253 S.E.2d 558 (1979)
(finding claim for libel does not survive); Snodgrass v. Sisson’s Mobile Home Sales, Inc.,
161 W.Va. 588, 244 S.E.2d 321 (1978) (finding action to collect a civil penalty under the
State’s usury statute does not survive).

                                             9

the survivability statute, but rather to apply it; this Court is not assembled for the purpose

of “sending messages.” It is the Legislature’s function to set policy. Moreover, if mere

“unfairness” commands survivability, our survival statute would be rendered

meaningless. Any cause of action that does not survive under our statute allows the

alleged wrongdoer to “escape”; the Legislature, however, has made a policy

determination to allow certain actions to abate upon death. As this Court has observed

countless times, “the judiciary may not sit as a superlegislature to judge the wisdom or

desirability of legislative policy determinations made in areas that neither affect

fundamental rights nor proceed along suspect lines.” Lewis v. Canaan Valley Resorts,

Inc., 185 W. Va. 684, 692, 408 S.E.2d 634, 642 (1991) (citing City of New Orleans v.

Dukes, 427 U.S. 297, 303 (1976)).



              Accordingly, for the reasons set forth above, I respectfully concur.




                                             10

