No. 17-0141 – Arthur L. Conkey, Jr. et al. v. Sleepy Creek Forest Owners Association, Inc.
FILED
April 11, 2018
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
WALKER, J., concurring OF WEST VIRGINIA
While I concur in the outcome reached by the majority, I write separately to
express my concern with the majority’s analysis of the circuit court’s award of attorneys’
fees to Sleepy Creek Forest Owners Association (Association).
Rather than rely on either West Virginia Code § 36B-3-116 (2011) or the
Association’s Amendment to Declaration of Restrictions (Amended Declaration), I would
affirm the attorneys’ fee award to the Association based on West Virginia Code § 36B-4-
117 (2011), which states:
If a declarant or any other person[1] subject to this
chapter fails to comply with any of its provisions or any
provision of the declaration or bylaws, any person or class of
persons adversely affected by the failure to comply has a claim
for appropriate relief. Punitive damages may be awarded for a
willful failure to comply with this chapter. The court, in an
appropriate case, may award reasonable attorney’s fees.
In this case, the Conkeys did not pay their assessments, failed to comply with
the Amended Declaration, and adversely affected the Association and its members. Thus,
1
The Uniform Common Interest Ownership Act, West Virginia Code §§ 36B-1-101
– 36B-4-120, defines “[p]erson” as an “individual, corporation, business trust, estate, trust,
partnership, association, joint venture, government, governmental subdivision or agency,
or other legal or commercial entity.” W. Va. Code § 36B-1-103 (2011).
§ 36B-4-117 empowered the circuit court to deviate from our general rule that each litigant
must bear his or her own costs2 and award the Association its reasonable attorneys’ fees, if
appropriate. The circuit court reasoned that if the Conkeys are not made to pay the
Association’s reasonable attorneys’ fees, other Association members would be
incentivized to ignore their assessments and pass the cost of the collection on to their
neighbors. In light of those circumstances, I would find that the circuit court did not abuse
its discretion under § 36B-4-117 by awarding the Association its reasonable attorneys’ fees.
I would not rely on § 36B-3-116 or the Association’s Amended Declaration
because the Association sued the Conkeys to recover the unpaid assessments, and not to
enforce either the statutory lien on the Conkeys’ property created by § 36B-3-116(a) or the
consensual, common law lien on the Conkeys’ property created by the Amended
Declaration. Rather, the Association chose to sue the Conkeys to collect unpaid
assessments, that is, to enforce the Conkeys’ promise to pay their assessments.
This choice matters. Section 36B-3-116(f)3 grants costs and reasonable
attorneys’ fees to the prevailing party in an action brought pursuant to § 36B-3-116, that
is, an action to enforce the statutory lien created by § 36B-3-116(a). Because the
2
See Sally-Mike Prop. v. Yokum, 179 W. Va. 48, 50, 365 S.E.2d 246, 248 (1986).
3
Section 36B-3-116, subsection (f) states: “A judgment or decree in any action
brought under this section must include costs and reasonable attorney’s fees for the
prevailing party.”
2
Association sued to recover the Conkeys’ unpaid assessments, and not to enforce the lien
upon their properties created by § 36B-3-116(a), they were not entitled to attorneys’ fees
under § 36B-3-116(f).
One reaches the same conclusion under the Amended Declaration, which
states that “[a]ny assessment made pursuant to this paragraph [10D], including late fee of
Five ($5.00) Dollars, interest at the rate of ten (10%) percent per annum from the date of
delinquency, and reasonable attorney’s fees incurred in the collection thereof, shall
constitute a lien on thie [sic] property . . . .” This language empowers the Association to
recover its reasonable attorneys’ fees incurred in a collection action by enforcing a
consensual, common lien.4 It does not give the Association the contractual right to recover
its fees in the course of the collection action, however.
For those reasons, I would affirm the circuit court’s grant of reasonable
attorneys’ fees to the Association pursuant to West Virginia Code § 36B-4-117, rather than
for the reasons set forth by the majority.
4
See Fleet v. Webber Springs Owners Ass’n, Inc., 235 W. Va. 184, 191, 772 S.E.2d
369, 376 (2015) (affirming circuit court’s summary judgment finding that homeowners
association had a valid common law lien against homeowners’ respective properties for
unpaid homeowners association assessments). Moreover, it is also an open question as to
whether such a fee-shifting provision is permissible under the West Virginia Consumer
Credit Protection Act (WVCCPA). See id. at 194, 772 S.E.2d at 379 (declining to decide
whether WVCCPA barred collection of attorneys’ fees by homeowners association
incurred in action to enforce consensual, common law lien).
3