SER Skyline Corp. and AAA Mobile Homes v. Hon. Timothy L. Sweeney, Judge

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2014 Term
FILED
January 29, 2014
released at 3:00 p.m.
RORY L. PERRY II, CLERK
No. 13-0562 SUPREME COURT OF APPEALS
OF WEST VIRGINIA

STATE OF WEST VIRGINIA EX REL.

SKYLINE CORPORATION AND

AAA MOBILE HOMES, INC. OF NEW MARTINSVILLE,

Petitioners

V.

HONORABLE TIMOTHY L. SWEENEY,

JUDGE OF THE CIRCUIT COURT OF

PLEASANTS COUNTY; AND

THOMAS R. LIKENS AND LORI LIKENS,

Respondents

PETITION FOR WRIT OF PROHIBITION

Pleasants County Civil Action No. 12-C-28

WRIT GRANTED

Submitted: January 14, 2014

Filed: January 29, 2014

John R. Teare, Jr. The Honorable Timothy L. Sweeney
Spilman Thomas & Battle, PLLC Judge of the Circuit Court of
Charleston, West Virginia Pleasants County
Attorney for the Petitioner, Saint Marys, West Virginia
Skyline Corporation Respondent
Keith C. Gamble M. Paul Marteney
Jonathan J. Jacks Saint Marys, West Virginia
Pullin, Fowler, Flanagan, Brown & Attorney for the Respondents,
Poe, PLLC Thomas R. Likens and Lori Likens
Morgantown, West Virginia
Attorneys for the Petitioner,
AAA Mobile Homes, Inc. of New Martinsville

CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
 SYLLABUS BY THE COURT

1. “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 had 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.” Syllabus point 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483

S.E.2d 12 (1996).

2. “The primary object in construing a statute is to ascertain and give effect

to the intent of the Legislature.” Syllabus point 1, Smith v. State Workmen’s Compensation

Commissioner, 159 W. Va. 108, 219 S.E.2d 361 (1975).

i
 3. The plain language of W. Va. Code § 21-9-11a(b) (2011) (Repl. Vol.

2013) requires a purchaser or owner of a manufactured home who wishes to assert a claim

“seeking monetary recovery or damages” pertaining to the “manufacture, acquisition, sale

or installation of the manufactured home” to first file an administrative complaint seeking

such relief with the West Virginia Manufactured Housing Construction and Safety Board.

Once a period of ninety days has passed following the aggrieved party’s filing of his/her

administrative complaint with the Board, the purchaser or owner may then pursue his/her

claims in a civil action.

4. Pursuant to the plain language of W. Va. Code § 21-9-11a(b) (2011)

(Repl. Vol. 2013), a purchaser or owner of a manufactured home who seeks equitable relief

“to prevent or address an immediate risk of personal injury or property damage” is excused

from the administrative filing requirement and may first file his/her cause of action seeking

such relief in circuit court.

ii
Davis, Chief Justice:

The petitioners herein, Skyline Corporation (hereinafter “Skyline”) and AAA

Mobile Homes, Inc. of New Martinsville (hereinafter “AAA Homes”),1 request this Court

to issue a writ of prohibition to prevent the Circuit Court of Pleasants County from enforcing

its April 25, 2013, order. By that order, the circuit court denied the petitioners’ motion to

dismiss the complaint filed against them by the respondents herein, Thomas R. Likens and

Lori Likens (hereinafter “Mr. and Mrs. Likens” or “the Likenses”), ruling that W. Va. Code

§ 21-9-11a (2011) (Repl. Vol. 2013) does not require the filing of an administrative

complaint with the West Virginia Manufactured Housing Construction and Safety Board

(hereinafter “the Board”) as a prerequisite to the filing of a civil complaint in circuit court.

The circuit court also found the allegations of the Likenses’ complaint to be sufficient to

place the petitioners on notice as to the nature of the Likenses’ claims against them. Before

this Court, the petitioners challenge both of the circuit court’s rulings and request this Court

to issue a writ of prohibition to prevent the enforcement of the circuit court’s order. Upon

a review of the parties’ briefs, the appendix record, and the pertinent authorities, we grant

the requested writ of prohibition. In summary, we conclude that W. Va. Code § 21-9-11a(b)

requires an aggrieved party to file an administrative complaint with the West Virginia

1
Skyline and AAA Homes also will be referred to collectively as “the
petitioners.”

1

Manufactured Housing Construction and Safety Board before he/she may file a civil lawsuit

for monetary damages in the courts of this State.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts underlying the instant original jurisdiction proceeding are not

disputed by the parties. In April 2010, Mr. and Mrs. Likens purchased a manufactured home

from AAA Homes that was manufactured by Skyline. On September 4, 2012, the Likenses

filed a complaint against AAA Homes and Skyline in the Circuit Court of Pleasants County

alleging that Skyline had negligently designed and built their home; the home was not

suitable for its intended purpose and that it was defective when it was delivered; AAA

Homes had negligently delivered, set up, and completed the home and, in doing so, AAA

Homes had caused damage and accelerated deterioration to the home and to the Likenses’

property. In their complaint, Mr. and Mrs. Likens also claimed breach of express and

implied warranties, negligent design, negligent construction, breach of contract, destruction

of property,2 and unjust enrichment. Mr. and Mrs. Likens did not file an administrative

complaint with the Board prior to filing their civil action in circuit court and conceded this

fact during the underlying proceedings.

2
With respect to the destruction of property claim, the Likenses alleged that
AAA Homes “intentionally or negligently destroyed existing landscaping and heirloom
plants” while grading the home site and preparing the foundation.

2

 In response to the Likenses’ complaint, Skyline and AAA Homes filed a

motion to dismiss arguing that their lawsuit was improperly filed in circuit court instead of

as an administrative complaint as contemplated by W. Va. Code § 21-9-11a and that the

complaint failed to state a cause of action upon which relief could be granted pursuant to

Rule 12(b)(6) of the West Virginia Rules of Civil Procedure. Following a hearing on the

matter, the circuit court, by order entered April 25, 2013, ruled that Mr. and Mrs. Likens

could proceed with their lawsuit in circuit court despite the fact that they had not first filed

an administrative complaint in accordance with W. Va. Code § 21-9-11a:

The administrative remedies set forth in WV [Code] §21­
9-11a are not mandatory. Specifically, sub-section (a) thereof
provides in pertinent part that “When a purchaser or owner of a
manufactured home files a complaint with the board...”
Additionally, sub-section (c) provides for “...notification to
every purchaser of a manufactured home of the availability of
administrative assistance...” Therefore, pursuit of the
administrative remedies provided for are merely optional at the
election of the manufactured home owner and not mandatory.
While sub-section (b) does provide for the exclusive jurisdiction
of the board “...after the consumer or owner has filed a written
complaint...” no such provision exists absent the election of an
owner to pursue such administrative remedy.

(Emphasis in original). The court further concluded that the Likenses’ complaint was

sufficient to survive the petitioners’ Rule 12(b)(6) motion to dismiss:

While the Complaint in the above-styled matter may
require clarification as to the specifics of plaintiffs’ claims,
including dates of discovery for purposes of potential limitation
of actions defenses, the same does allege cognizable claims
under legal causes of action for which relief may be granted.
Such clarifications are the proper subject of a Motion for More

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 Definite Statement or ascertainable through discovery as
provided by law for the purpose of addressing the defendants’
reasonable concerns regarding these matters.

From these adverse rulings, the petitioners have filed the instant proceeding

requesting a writ of prohibition to prevent the enforcement of the circuit court’s order

II.

STANDARD FOR ISSUANCE OF WRIT

In their petition to this Court, the petitioners have phrased their request for

relief in the alternative as a “Petition for Writ of Mandamus and/or Prohibition.” When the

request for extraordinary relief concerns a circuit court’s denial of a motion to dismiss, we

consider the matter as a petition for a writ of prohibition. See, e.g., State ex rel. AMFM, LLC

v. King, 230 W. Va. 471, 740 S.E.2d 66 (2013); State ex rel. Advance Stores Co., Inc. v.

Recht, 230 W. Va. 464, 740 S.E.2d 59 (2013); State ex rel. Nelson v. Frye, 221 W. Va. 391,

655 S.E.2d 137 (2007). With respect to a request for prohibitory relief, we are mindful that

“[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.” Syl. pt. 2, State ex rel. Peacher v. Sencindiver,

160 W. Va. 314, 233 S.E.2d 425 (1977). We further employ the following criteria to

determine whether a writ of prohibition should issue in a particular case:

4

 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 had 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.

Syl. pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).

To decide whether the petitioners are entitled to prohibitory relief in the case

sub judice, we also must consider whether the circuit court correctly interpreted the statute

governing the issues in this case, W. Va. Code § 21-9-11a, and whether the circuit court

properly denied the petitioners’ motion to dismiss the Likenses’ complaint. We previously

have held that “[i]nterpreting a statute or an administrative rule or regulation presents a

purely legal question subject to de novo review.” Syl. pt. 1, Appalachian Power Co. v. State

Tax Dep’t of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995). Similarly, “review of

a circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. pt. 2, in

5

part, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d

516 (1995).

Guided by these standards, we proceed to consider the parties’ arguments.

III.

DISCUSSION

Before this Court, the petitioners raise two issues in support of their request for

the issuance of a writ of prohibition. First, the petitioners contend that the circuit court erred

by denying their motion to dismiss the Likenses’ complaint. In support of this argument, the

petitioners construe W. Va. Code § 21-9-11a to require the filing of an administrative

complaint with the Board before a civil complaint may be filed in circuit court. Therefore,

the petitioners argue that the circuit court incorrectly interpreted and applied this statute.

Second, the petitioners contend that even if Mr. and Mrs. Likens properly filed their

complaint in circuit court, the complaint was too vague to sufficiently apprise them of the

nature of the claims asserted against them. Both Judge Sweeney and the Likenses respond

that the circuit court’s order correctly interpreted W. Va. Code § 21-9-11a and properly

denied the petitioners’ motion to dismiss the complaint.

6

 The first issue presented by this original jurisdiction proceeding involves a

matter of statutory construction. At issue in this case is the language of W. Va. Code § 21-9­

11a (2011) (Repl. Vol. 2013), which provides, in relevant part,3 as follows:

3
The remainder of W. Va. Code § 21-9-11a (2011) (Repl. Vol. 2013) directs:

(a) Inspection of manufactured housing. — When a
purchaser or owner of a manufactured home files a written
complaint with the board alleging defects in the manufacture,
construction or installation of the manufactured home, and any
additional information the board considers necessary to conduct
an investigation, the board shall, within sixty days, to the extent
feasible, cause an inspection of the manufactured home by one
or more of its employees or person authorized and supervised by
the board. The board shall provide the consumer a written
report indicating whether the defects alleged by the complaint
constitute violations of federal or state statutory or regulatory
standards or good and customary manufacturing standards in the
construction, design, manufacture or installation of the
manufactured home. If the report indicates that the alleged
defects constitute a violation, the board shall take such further
administrative action as provided for in this article including,
but not limited to, ordering the manufacturer, dealer or
contractor to correct any defects.

....

(c) Notice of consumer rights. — Every dealer or
contractor who moves homes from one place to another shall
provide written notification to every purchaser of a
manufactured home of the availability of administrative
assistance from the board in investigating and ordering
corrections of any defect in the manufacture or installation of a
manufactured home and the period of exclusive jurisdiction
given to the board. The board may prescribe that the notice
contain any information the board determines to be beneficial to
(continued...)

7

 (b) Period of exclusive administrative remedy. — No
purchaser or owner of a manufactured home may file a civil
action seeking monetary recovery or damages for claims related
to or arising out of the manufacture, acquisition, sale or
installation of the manufactured home until the expiration of
ninety days after the consumer or owner has filed a written
complaint with the board. The board has a period of ninety
days, commencing with the date of filing of the complaint, to
investigate and take administrative action to order the correction
of defects in the manufacture or installation of a manufactured
home. This period of exclusive administrative authority may not
prohibit the purchaser or owner of the manufactured home from
seeking equitable relief in a court of competent jurisdiction to
prevent or address an immediate risk of personal injury or
property damage. The filing of a complaint under this article
shall toll any applicable statutes of limitation during the ninety-
day period but only if the applicable limitation period has not
expired prior to the filing of the complaint.

(Emphasis added). The meaning of the first sentence of this subsection, which is central to

the resolution of the case sub judice, is disputed by the parties. We therefore turn to the rules

of statutory construction for guidance in ascertaining the meaning of this language.

When construing a statutory provision, it is essential to afford the enactment

an interpretation that comports with the intent of the Legislature. We previously have held

that “[t]he primary object in construing a statute is to ascertain and give effect to the intent

of the Legislature.” Syl. pt. 1, Smith v. State Workmen’s Comp. Comm’r, 159 W. Va. 108,

3
(...continued)

the purchaser or owner of the manufactured home in exercising

that person’s rights under this section.

8

219 S.E.2d 361 (1975). To ascertain legislative intent, it is necessary to consider the wording

of the promulgation at issue. “Where the language of a statute is clear and without ambiguity

the plain meaning is to be accepted without resorting to the rules of interpretation.” Syl. pt.

2, State v. Elder, 152 W. Va. 571, 165 S.E.2d 108 (1968). Accord Appalachian Power Co.,

195 W. Va. at 587, 466 S.E.2d at 438 (“We look first to the statute’s language. If the text,

given its plain meaning, answers the interpretive question, the language must prevail and

further inquiry is foreclosed.”). Thus, “[w]hen a statute is clear and unambiguous and the

legislative intent is plain, the statute should not be interpreted by the courts, and in such case

it is the duty of the courts not to construe but to apply the statute.” Syl. pt. 5, State v. General

Daniel Morgan Post No. 548, Veterans of Foreign Wars, 144 W. Va. 137, 107 S.E.2d 353

(1959).

Applying these tenets to the statute presently before us, we find W. Va. Code

§ 21-9-11a to be a clear and unambiguous statement of the Legislature’s intention to require

individuals aggrieved by a matter involving a manufactured home to first file an

administrative complaint with the West Virginia Manufactured Housing Construction and

Safety Board before filing a civil action in the circuit court seeking “monetary recovery or

damages” therefor. W. Va. Code § 21-9-11a(b). The statutory language clearly mandates

that

[n]o purchaser or owner of a manufactured home may file
a civil action seeking monetary recovery or damages for claims

9

 related to or arising out of the manufacture, acquisition, sale or
installation of the manufactured home until the expiration of
ninety days after the consumer or owner has filed a written
complaint with the board.

W. Va. Code § 21-9-11a(b). Our construction of this language as imposing a mandatory

administrative complaint filing requirement as a prerequisite to filing a civil complaint is

supported by the Legislature’s statement of intent accompanying its recent reenactment of

this provision in 2011. In the preamble to the amendatory legislation, the Legislature

specifically stated that it was “AN ACT to amend and reenact §21-9-11a of the Code of West

Virginia, 1931, as amended, relating to clarifying that the filing of a complaint with the state

regulatory board is a prerequisite for the filing of a lawsuit.” S.B. 439, 2011 Leg., Reg. Sess.

(W. Va. 2011).

Despite the respondents’ contentions to the contrary, we do not find that this

administrative filing requirement is tempered by either the nature of the relief the Board may

afford to the aggrieved person4 or by whether the notice of administrative rights has been

given to the consumer.5 In fact, the only statutory language qualifying the administrative

filing requirement excuses compliance therewith in just two specific instances: “[t]his period

of exclusive administrative authority may not prohibit the purchaser or owner of the

4
See generally W. Va. Code § 21-9-10 (2006) (Repl. Vol. 2013); Conseco Fin.
Serv’g Corp. v. Myers, 211 W. Va. 631, 567 S.E.2d 641 (2002).
5
See W. Va. Code § 21-9-11a(c).

10

manufactured home from seeking equitable relief in a court of competent jurisdiction to

prevent or address an immediate risk of personal injury or property damage.” W. Va. Code

§ 21-9-11a(b) (emphasis added). Nevertheless, neither of these circumstances exist in the

case sub judice insofar as Mr. and Mrs. Likens have not sought equitable relief “to prevent

or address an immediate risk of personal injury or property damage,” W. Va. Code § 21-9­

11a(b), in their complaint. Nor is the chronology of events giving rise to the underlying

proceeding indicative of the type of emergent situation contemplated by this statutory

language insofar as the Likenses filed their complaint against the petitioners nearly two and

one-half years after they had incurred the majority of their claimed damages.

Based on the foregoing analysis, we therefore hold that the plain language of

W. Va. Code § 21-9-11a(b) (2011) (Repl. Vol. 2013) requires a purchaser or owner of a

manufactured home who wishes to assert a claim “seeking monetary recovery or damages”

pertaining to the “manufacture, acquisition, sale or installation of the manufactured home”

to first file an administrative complaint seeking such relief with the West Virginia

Manufactured Housing Construction and Safety Board. Once a period of ninety days has

passed following the aggrieved party’s filing of his/her administrative complaint with the

Board, the purchaser or owner may then pursue his/her claims in a civil action. We further

hold that, pursuant to the plain language of W. Va. Code § 21-9-11a(b) (2011) (Repl. Vol.

2013), a purchaser or owner of a manufactured home who seeks equitable relief “to prevent

11

or address an immediate risk of personal injury or property damage” is excused from the

administrative filing requirement and may first file his/her cause of action seeking such relief

in circuit court.

Applying these holdings to the facts of the case sub judice, we conclude that

the circuit court erred as a matter of law in its interpretation of W. Va. Code § 21-9-11a and

in its application of this statute to the facts of this case. The language of this statute

expressly requires an aggrieved owner of a manufactured home to seek redress for monetary

damages occasioned by the manufacture, sale, and installation of the manufactured home in

a very precise and specified manner. Where, as here, the aggrieved party has not sought

equitable relief “to prevent or address an immediate risk of personal injury or property

damage,” W. Va. Code § 21-9-11a(b), an administrative complaint must first be filed with

the Board. Following the expiration of ninety days after this administrative filing, the

aggrieved party may then pursue a civil action seeking monetary redress for his/her injuries.

W. Va. Code § 21-9-11a(b). In the case sub judice, Mr. and Mrs. Likens have admitted that

they did not follow this filing protocol when they filed their civil action against the

petitioners in the Circuit Court of Pleasants County. Because W. Va. Code § 21-9-11a(b)

required the Likenses to first file their complaint against the petitioners as an administrative

complaint before the Board, they could not proceed against the petitioners in the first instance

in the underlying circuit court action because they did not seek equitable relief to prevent the

12

type of injuries that would have excused them from the administrative filing requirement.

Thus, the circuit court should have granted the petitioners’ motion to dismiss the civil

complaint filed by Mr. and Mrs. Likens because their civil action was premature insofar as

they did not first file their complaint as an administrative complaint with the West Virginia

Manufactured Housing Construction and Safety Board.6

IV.

CONCLUSION

For the foregoing reasons, the requested writ of prohibition is hereby granted.

Furthermore, the circuit court’s order of April 25, 2013, is vacated, and the circuit court is

directed to enter an order granting the petitioners’ motion to dismiss the complaint

prematurely filed by Mr. and Mrs. Likens.

Writ Granted.

6
In light of our resolution of the petitioners’ first issue and our corresponding
conclusion that the circuit court should have granted their motion to dismiss the Likenses’
complaint, we need not address the petitioners’ second issue regarding the sufficiency of said
complaint.

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