STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Nancy Lorraine Galford and Charles Galford, FILED
Plaintiffs Below, Petitioners October 17, 2014
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
vs) No. 13-1134 (Preston County 13-C-42) OF WEST VIRGINIA
Nancy Friend, individually, and Big Bear
Lake Property Owners Association, Inc.,
Defendants Below, Respondents
MEMORANDUM DECISION
Petitioners Nancy and Charles Galford, by counsel Edward R. Kohout, appeal the order
of the Circuit Court of Preston County, entered October 9, 2013, granting summary judgment in
favor of respondents. Respondent Nancy Friend filed her response by counsel Mark Gaydos,
Buddy Turner, and Cody E. Nett. Respondent Big Bear Lake Property Owners Association, Inc.,
by counsel John R. Fowler and Michael P. Markins, joined in Friend’s response.
This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the order of the circuit court is appropriate under
Rule 21 of the Rules of Appellate Procedure.
Petitioners are owners of property at Big Bear Lake Campground in Bruceton Mills.
Respondent Friend is the president and sole owner of Alyeska, Inc., the campground developer.
Little information has been provided about Respondent Big Bear Lake Property Owners
Association, Inc. Petitioners filed a complaint in the Circuit Court of Monongalia County (later
transferred to the Circuit Court of Preston County), alleging that Respondent Friend operates an
illegal political subdivision at Big Bear Campgrounds, an area organized by Friend’s father in
1972, by directing Big Bear Lake’s Board of Directors to establish traffic laws, building codes,
and a code of conduct, sometimes in contravention of the original bylaws. Petitioners sought
declaratory relief, asserting that both respondents: violated West Virginia Code § 36A-3-13 (part
of the Unit Property Act) by failing to provide an accounting of expenditures of petitioners’
assessments1; violated West Virginia Code § 36B-3-114 (part of the Uniform Common Interest
1
West Virginia Code § 36A-3-13 provides:
The treasurer shall keep detailed records of all receipts and expenditures,
including expenditures affecting the common elements, specifying and itemizing
the maintenance, repair and replacement expenses of the common elements and
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Ownership Act) by failing to return surplus funds to property owners2; and operated Big Bear
Lake Campground as if it were a municipal corporation, in violation of West Virginia Code § 8
2-13.
Respondent Friend filed a motion to dismiss (and petitioners filed a response), and the
circuit court converted the motion to dismiss to a motion for summary judgment after notifying
the parties. The circuit court granted summary judgment by order entered October 9, 2013,
any other expenses incurred. Such records shall be available for examination by
the unit owners during regular business hours. In accordance with the actions of
the council assessing common expenses against the units and unit owners, he shall
keep an accurate record of such assessments and of the payment thereof by each
unit owner.
2
West Virginia Code § 36B-3-114 provides:
Unless otherwise provided in the declaration, any surplus funds of the
association remaining after payment of or provision for common expenses and
any prepayment of reserves must be paid to the unit owners in proportion to their
common expense liabilities or credited to them to reduce their future common
expense assessments.
3
West Virginia Code § 8-2-1 provides, in part:
(a) Any part of a county or counties may be incorporated as a city,
depending upon the population, either as a Class I, Class II or Class III city, or as
a Class IV town or village, as classified in section three, article one of this chapter
if the area proposed for incorporation meets the following conditions:
(1) The area is not currently within any municipality urban in character;
(2) For areas that are more than one square mile there must be an average
of not less than five hundred inhabitants or freeholders per square mile;
(3) For areas less than one square mile there must be at least one hundred
inhabitants or freeholders;
(4) The total area to be incorporated must not include an amount of
territory disproportionate to its number of inhabitants; and
(5) The proponents of incorporation shall provide to the county
commission a proposal . . .
(b) The creation of any new municipality is prohibited if:
(1) The area to be incorporated is within close proximity to an existing
municipality and the existing municipality is capable of more effectively and
efficiently providing services to the area; or
(2) The creation of a new municipality is not in the best interest of the
county as a whole.
(c) It is within the reasonable discretion of the county commission to
determine the exact area or portions thereof to be included or excluded in the new
municipality . . .
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finding that: (1) West Virginia Code § 36A-3-13 does not apply in this case because no duly
recorded declaration states the parties’ intent to submit the property to the provisions of the Unit
Property Act; (2) West Virginia Code § 36B-3-114 is inapplicable because it was enacted
fourteen years after the formation of Big Bear Lake Campground; and (3) West Virginia Code §
8-2-1 does not contain a private right of action.
Petitioners challenge that order on appeal, arguing that the trial court erred in: (1) finding
that West Virginia Code § 36A-3-13 does not apply; (2) finding that certain provisions of the
Uniform Common Interest Ownership Act are inapplicable; (3) “failing to grant declaratory
relief as to Big Bear Lake Campground’s being illegally operated as a town without a charter[;]”
and (4) granting summary judgment to Respondent Friend without discussing the factors
required for “piercing the corporate veil.” We review petitioners’ assignments of error related to
the circuit court’s entry of summary judgment de novo. Syl. Pt. 1, Painter v. Peavy, 192 W.Va.
189, 451 S.E.2d 755 (1994).
Our review of the record on appeal shows that petitioners support these assignments of
error with arguments nearly identical to those made in response to respondents’ motion to
dismiss and subsequently rejected by the circuit court. For example, petitioners argued to the
circuit court that, “The [Unit Property] Act does not state that the owner of a condominium
property must reference the Act in the declarations for the Act to apply. The Act nowhere so
states.” In its order granting summary judgment, the circuit court found to the contrary, citing
West Virginia Code 36A-4-1(a): “The declaration shall contain the following: (a) A reference to
this chapter [Chapter 36A] and an expression of the intention to submit the property to the
provisions of this chapter.” Rather than offer a specific exception to the circuit court’s
application of the aforementioned section, petitioners here cursorily argue, “The Act does not
state that the owner of a condominium property must reference the Act in the declarations in
order for the provisions of the Act to apply. The Act nowhere so states.” (Emphasis in original.)
Petitioners have thus presented no basis to support the first assignment of error, in which they
argued that the circuit court incorrectly found that West Virginia Code § 36A-3-13 does not
provide petitioners a remedy. We agree with the circuit court that the parties’ declaration does
not express an intent to subject property at Big Bear Lake Campground to the Unit Property Act
and respondents thus did not violate the Act.
Likewise, in their argument in support of their second assignment of error (that the circuit
court erred in finding certain provisions of the Uniform Common Interest Ownership Act
inapplicable), petitioners fail to address the circuit court’s thorough explanation of its conclusion
that West Virginia Code § 36B-1-204(a) “does not . . . make the whole Act applicable to
preexisting common interest communities.”4 Instead, petitioners simply reiterate the argument
4
West Virginia Code § 36B-1-204(a), addressing “applicability to preexisting common
interest communities,” provides
(a) Except as provided in section 1-205 [§ 36B-1-205] (Same—Exception for
small preexisting cooperatives and planned communities), sections 1-105 [§ 36B
1-105] (Separate titles and taxation), 1-106 [§ 36B-1-106] (Applicability of local
ordinances, regulations and building codes), 1-107 [§ 36B-1-107] (Eminent
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they made before the circuit court, wherein they state that the Act applies to respondents on and
after the effective date of July 1, 1986. We agree with the circuit court that West Virginia Code §
36B-1-204(a) specifically enumerates sections that prospectively apply to common interest
communities that were in existence before the effective date of the Uniform Common Interest
Ownership Act but West Virginia Code § 36B-3-114 is not among those sections. We find, then,
that petitioners are entitled to no relief on this ground.
Finally, petitioners made no effort to address the circuit court’s finding that West
Virginia Code § 8-2-1 does not contain a private right of action, choosing instead to support their
third assignment of error by tersely arguing that the circuit court did not analyze this issue.
Petitioners conclude that the circuit court “simply ruled that [it] found no violation of this
section, without discussion.” The circuit court’s analysis is apparent in its order, and we disagree
with petitioners’ argument.5
Having reviewed the circuit court’s “Final Order Granting Summary Judgment in Favor
of Defendants,” entered on October 9, 2013, we hereby adopt and incorporate the circuit court’s
well-reasoned findings and conclusions. The Clerk is directed to attach a copy of the circuit
court’s order to this memorandum decision.
For the foregoing reasons, we affirm.
Affirmed.
domain), 2-103 [§ 36B-1-103] (Construction and validity of declaration and
bylaws), 2-104 [§ 36B-2-104] (Description of units), 2-121 [§ 36B-2-121]
(Merger or consolidation of common interest communities), 3-102(a)(1) through
(6) and (11) through (16) [§ 36B-3-102] (Powers of unit owners’ association), 3
111 [§ 36B-3-111] (Tort and contract liability), 3-116 [§ 36B-3-116] (Lien for
assessments), 3-118 [§ 36B-3-118] (Association records), 4-109 [§ 36B-4-109]
(Resales of units), and 4-117 [§ 36B-4-117] (Effect of violation on rights of
action; attorney’s fees), and section 1-103 [§ 36B-1-103] (Definitions) to the
extent necessary in construing any of those sections, apply to all common interest
communities created in this state before the effective date of this chapter; but
those sections apply only with respect to events and circumstances occurring after
the effective date of this chapter and do not invalidate existing provisions of the
declaration, bylaws or plats or plans of those common interest communities.
5
Like the circuit court, we “conclude[] that a determination of whether piercing the
corporate veil is appropriate is unnecessary because [we have] concluded that there have been
no violations in the first instance of” the statutes discussed herein. We thus find no error in the
circuit court’s having declined to undertake a “corporate veil” analysis and we consequently
reject petitioners’ fourth assignment of error.
4
ISSUED: October 17, 2014
CONCURRED IN BY:
Chief Justice Robin Jean Davis
Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II
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