IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2013 Term
FILED
March 28, 2013
released at 3:00 p.m.
No. 11-1577 RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
UNIVERSITY COMMONS RIVERSIDE HOME OWNERS ASSOCIATION, INC.,
Plaintiff Below, Petitioner
v.
UNIVERSITY COMMONS MORGANTOWN, LLC; KOEHLER
DEVELOPMENT, LLC; COLLEGIATE HOMES, INC.; RICHARD KOEHLER;
FRANK KOEHLER; ADAM SHARP; RICHARD DUNLAP;
O.C. CLUSS PROFESSIONAL SERVICES, LLC; R.E. CRAWFORD
CONSTRUCTION, INC.; POZZUTO AND SONS, INC.;
BUILDING CODE ENFORCEMENT OFFICIAL OF STAR CITY;
HERRON ENGINEERING; EAGLE INTERIORS, INC.; BUH CONSTRUCTION;
TRIAD ENGINEERING, INC; AND UNIVERSAL FOREST PRODUCTS,
Defendants and Third-Party Defendants Below, Respondents
Certified Questions from the Circuit Court of Monongalia County
Honorable Susan Tucker, Judge
Civil Action No. 09-C-85
CERTIFIED QUESTION ANSWERED
Submitted: March 5, 2013
Filed: March 28, 2013
Benjamin L. Bailey, Esq.
John W. Barrett, Esq.
Sherrie A. Armstrong, Esq.
Bailey & Glasser LLP
Charleston, West Virginia
P. Gregory Haddad
Kerrie Wagoner Boyle
Morgantown, West Virginia
Attorneys for Petitioner
Shannon P. Smith, Esq.
Stephen G. Higgins, Esq.
Teresa J. Dumire, Esq.
Kay Casto & Chaney PLLC
Morgantown, West Virginia
Attorneys for Respondent R.E. Crawford Construction, Inc.
Thomas G. Steele, Esq.
Aimee N. Goddard, Esq.
Steele Law Offices
Clarksburg, West Virginia
Attorneys for Respondents University Commons Morgantown, LLC;
Koehler Development, LLC; Collegiate Homes, Inc.;
Richard Koehler; Frank Koehler; Adam Sharp; and Richard Dunlap
Kathleen Jones Goldman, Esq.
Erin McLaughlin, Esq.
Buchanan Ingersoll & Rooney, LLP
Pittsburgh, Pennsylvania
Attorneys for Respondent O.C. Cluss Professional Services, Inc.
Richard W. Gallagher, Esq.
E. Ryan Kennedy, Esq.
Robinson & McElwee PLLC
Clarksburg, West Virginia
Attorneys for Respondent Pozzuto and Sons, Inc.
Tamara J. DeFazio, Esq.
J. Robert Russell, Esq.
Shuman McCuskey & Slicer PLLC
Morgantown, West Virginia
Attorneys for Respondent Building Code Enforcement Official of Star City
Mary H. Sanders, Esq.
Patrick White, Esq.
Huddleston, Bolen LLP
Charleston, West Virginia
Attorneys for Respondent Herron Engineering
Joseph W. Selep, Esq.
Sharon A. Hall, Esq.
Zimmer Kunz
Pittsburgh, Pennsylvania
Attorneys for Respondent Eagle Interiors, Inc.
Charles F. Bagley III, Esq.
Campbell Woods PLLC
Huntington, West Virginia
Attorney for Respondent BUH Construction
David V. Moore, Esq.
DV Moore Law, PLLC
Charleston, West Virginia
Attorney for Respondent Triad Engineering, Inc.
David L. Wyant, Esq.
Diane G. Senakievich, Esq.
Bailey & Wyant PLLC
Wheeling, West Virginia
Attorneys for Respondent Universal Forest Products Inc.
JUSTICE LOUGHRY delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “The appellate standard of review of questions of law answered and
certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197
W.Va. 172, 475 S.E.2d 172 (1996).
2. “A statutory provision which is clear and unambiguous and plainly
expresses the legislative intent will not be interpreted by the courts but will be given full
force and effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).
3. “Statutes which relate to the same subject matter should be read and
applied together so that the Legislature’s intention can be gathered from the whole of the
enactments.” Syl. Pt. 3, Smith v. State Workmen’s Compensation Comm’r, 159 W.Va. 108,
219 S.E.2d 361 (1975).
4. West Virginia Code § 36B-3-102(a)(4) (2011), which authorizes a unit
owners’ association to institute litigation in its own name on behalf of itself or two or more
unit owners on matters affecting the common interest community, confers standing on the
unit owners’ association to assert claims on behalf of two or more unit owners with respect
to matters affecting their individual units.
i
5. “‘General supervisory control over all intermediate appellate, circuit,
and magistrate courts resides in the Supreme Court of Appeals. W.Va. Const., art. VIII, § 3.’
Syllabus Point 1, Carter v. Taylor, 180 W.Va. 570, 378 S.E.2d 291 (1989).” Syl. Pt. 2, Stern
v. Chemtall, Inc., 217 W.Va. 329, 617 S.E.2d 876 (2005).
6. “‘“A court ‘has inherent power to do all things that are reasonably
necessary for the administration of justice within the scope of its jurisdiction.’ 14 Am. Juris.,
Courts, section 171.” Syllabus Point 3, Shields v. Romine, 122 W.Va. 639, 13 S.E.2d 16
(1940).’ Syllabus Point 1, State ex rel. Rees v. Hatcher, 214 W.Va. 746, 591 S.E.2d 304
(2003).” Syl. Pt. 3, Stern v. Chemtall, Inc., 217 W.Va. 329, 617 S.E.2d 876 (2005).
ii
LOUGHRY, Justice:
The Circuit Court of Monongalia County has certified six questions to this
Court relating to the Uniform Common Interest Ownership Act (hereinafter “the Act”)
codified in Chapter 36B of the West Virginia Code. The Act “governs the formation,
management, and termination of a common interest community, whether the community is
a condominium, planned community, or real estate cooperative.” Foster v. Orchard Dev.
Co., LLC, 227 W.Va. 119, 121 n.2, 705 S.E.2d 816, 818 n.2 (2010) (citation omitted). The
questions certified to this Court are as follows:
(1) Is a Unit Owners’ Association an adequate
representative when a lawsuit is instituted by a Unit Owners’
Association on behalf of two or more unit owners pursuant to
W. Va. Code § 36B-3-102(a)(4) and the damages sought include
unit specific damages affecting only individual units?
(2) If the Unit Owners’ Association is an adequate
representative to institute litigation pursuant to W. Va. Code §
36B-3-102(a)(4) on behalf of individual unit owners for unit
specific damages affecting only individual units, is a unit owner
nonetheless a necessary and indispensable party pursuant to
Rule 19 of the West Virginia Rules of Civil Procedure?
(3) If individual unit owners are not named Plaintiffs in
a lawsuit instituted on their behalf by a Unit Owners’
Association and are not necessary and indispensable parties to
the suit, does the Association have the authority under [W. Va.
Code] § 36B-3-102(a)(4) to settle and release any and all claims
of the unit owners when said individual unit owners have been
provided reasonable notice of, and have made no objection to,
said settlement and release? If so, what constitutes sufficient
notice?
1
(4) Whether matters pertaining to a unit owners’ claim
for lost rent or inability to rent are matters that affect the
common interest community for which the Unit Owners’
Association may institute litigation pursuant to [W. Va. Code]
§ 36B-3-102(a)(4)?
(5) Pursuant to [W. Va. Code] § 36B-3-102(a)(4), what
constitutes a “matter affecting the common interest community”
and what constitutes a “unit specific” element?
(6) Is a representative example of unit owners sufficient
to offer deposition testimony and trial testimony in this matter
to establish defects and damages that are common to all units?
Upon careful review and consideration of the parties’ briefs, oral argument, and
the pertinent authorities, we answer the first question affirmatively and find it unnecessary
to address the remaining questions. For the reasons set forth below, we conclude that this
case should proceed in accordance with Rule 26 of the West Virginia Trial Court Rules.
I. Factual and Procedural Background
The plaintiff below and the petitioner herein, University Commons Riverside
Home Owners Association, Inc. (hereinafter “HOA”), is a condominium owners’ association
that brought suit on its own behalf and on behalf of its members against various individuals
and corporations seeking damages arising from the alleged defective development, negligent
construction, and misleading marketing of the University Commons Riverside Condominium
Complex (hereinafter “the Complex”) located in Star City, West Virginia. The defendants
2
filed cross-claims for indemnity and contribution and filed third-party complaints against
various subcontractors. All defendants and third-party defendants (hereinafter
“respondents”) have joined together before this Court, submitting a joint brief and argument.1
The Complex consists of 84 individually-owned units that are currently owned
by approximately 147 individuals and/or entities. These individuals and entities are the
members of the HOA. The HOA filed this action on February 13, 2009, asserting claims for
breach of express and implied warranty of quality, failure to comply with public offering
statement requirements, material omission in promotional materials, failure to complete and
restore, negligence, strict liability, and breach of implied warranties of merchantability,
fitness and habitability. The individual unit owners were not named as individual plaintiffs
in the complaint.
The parties engaged in discovery for nearly three years.2 According to the
HOA, the parties have taken forty-four depositions and thirty-one experts have been
1
The respondents are: University Commons Morgantown, LLC; Koehler
Development, LLC; Collegiate Homes, Inc.; Richard Koehler; Frank Koehler; Adam Sharp;
Richard Dunlap; O.C. Cluss Professional Services, LLC; R.E. Crawford Construction, Inc.;
Pozzuto and Sons, Inc.; Building Code Enforcement Official of Star City; Herron
Engineering; Eagle Interiors, Inc.; BUH Construction; Triad Engineering, Inc.; and Universal
Forest Products.
2
Upon entry of the order certifying questions to this Court, discovery was stayed.
3
identified–eleven for the HOA and twenty for the respondents. Fifteen unit owners have
been deposed and thousands of pages of documents have been produced.
By motion dated November 17, 2010, some of the respondents3 sought to have
all unit owners joined as plaintiffs in this lawsuit pursuant to Rule 19 of the West Virginia
Rules of Civil Procedure.4 The respondents asserted that while the Act confers standing upon
the HOA to represent its members as to matters affecting the “common interest community,”5
3
The remaining respondents filed a response joining the motion to have all unit owners
named as plaintiffs in the action.
4
Rule 19(a) of the West Virginia Rules of Civil Procedure states:
Persons to be joined if feasible. – A person who is
subject to service of process shall be joined as a party in the
action if (1) in the person’s absence complete relief cannot be
accorded among those already parties, or (2) the person claims
an interest relating to the subject of the action and is so situated
that the disposition of the action in the person’s absence may (i)
as a practical matter impair or impede the person’s ability to
protect that interest, or (ii) leave any of the persons already
parties subject to a substantial risk of incurring double, multiple,
or otherwise inconsistent obligations by reason of the claimed
interest. If the person has not been so joined, the court shall
order that the person be made a party. If the person should join
as a plaintiff but refuses to do so, the person may be made a
defendant, or, in a proper case, an involuntary plaintiff. If the
joined party objects to venue and joinder of that party would
render the venue of the action improper, that party shall be
dismissed from the action.
5
West Virginia Code § 36B-1-103(7) (2011) defines “common interest community”
as “real estate with respect to which a person, by virtue of his ownership of a unit, is
obligated to pay for real estate taxes, insurance premiums, maintenance or improvement of
4
the HOA has no authority to pursue claims for damages to individual units. According to the
respondents, it became apparent during the course of discovery that many of the unit owners
were seeking damages relating to defects pertaining to their individual units. Further, the
respondents indicated that certain unit owners believed that the HOA may not have actual
authority to bind the individual unit owners and that they would have the right to assert
individual claims if they were not satisfied with the outcome of this lawsuit. The HOA
opposed the motion. Concerned about the burdensome scope of discovery,6 the HOA moved
for a protective order on July 7, 2011, seeking to protect its right to bring suit on behalf of
its members for all claims asserted in the complaint.
Thereafter, by order entered October 5, 2011, the circuit court granted the
respondents’ motion to join all unit owners, denied the HOA’s motion for a protective order,
and determined that the six questions set forth above should be certified to this Court. The
order of certification was entered on November 18, 2011.
other real estate described in a declaration[.]”
6
The respondents were seeking to depose more than 200 persons.
5
II. Standard of Review
This Court has held that “[t]he appellate standard of review of questions of law
answered and certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart
Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).
III. Discussion
The first question certified to this Court asks:
Is a Unit Owners’ Association an adequate representative when
a lawsuit is instituted by a Unit Owners’ Association on behalf
of two or more unit owners pursuant to W. Va. Code § 36B-3
102(a)(4) and the damages sought include unit specific damages
affecting only individual units?
The circuit court answered this question in the negative, finding that the HOA has standing
to bring an action on behalf of its members only as to matters affecting the “common interest
community” but lacks the capacity to represent unit owners with respect to damages to
individual units.
The HOA argues, however, that it has standing to assert claims pertaining to
individual units pursuant to the plain language of the Act. In that regard, the HOA contends
that the Act’s broad definition of “common interest community” clearly encompasses the
individual units. Relying upon the definition of “unit,” which pursuant to West Virginia
Code § 36B-1-103(33) “means a physical portion of the common interest community
6
designated for separate ownership or occupancy,” the HOA contends that it can represent its
members with respect to damages affecting individual units because West Virginia Code §
36B-3-102 (2011) expressly states, in relevant part:
(a) Except as provided in subsection (b), and subject to
the provisions of the declaration, the association, even if
unincorporated, may:
....
(4) Institute, defend, or intervene in litigation or
administrative proceedings in its own name on behalf of itself
or two or more unit owners on matters affecting the common
interest community[.]
In contrast, the respondents argue that damages affecting only individual units
could not reasonably be included in “matters affecting the common interest community.” Id.
In support of their argument, the respondents point out the different obligations of the HOA
and the unit owners as set forth in West Virginia Code § 36B-3-107(a) (2011), which
provides that “the association is responsible for maintenance, repair, and replacement of
common elements, and each unit owner is responsible for maintenance, repair, and
replacement of his unit.” The respondents further contend that the HOA’s broad definition
of “matters affecting the common interest community” goes beyond the plain language of the
statute. They assert that the word “affecting” requires that the litigation matter have an effect
or influence on the common interest community. The respondents maintain that this clause
contemplates a greater impact than damages to specific individual units.
7
In order to resolve the issue presented by this certified question, we must apply
our rules of statutory interpretation and determine whether the “common interest community”
includes individual units. Our rules of statutory interpretation are well established. “A
statutory provision which is clear and unambiguous and plainly expresses the legislative
intent will not be interpreted by the courts but will be given full force and effect.” Syl. Pt.
2, State v. Epperly, 135 W.Va. 877, 65 S.E.2d 488 (1951). In other words, “[w]here the
language of a statutory provision is plain, its terms should be applied as written and not
construed.” DeVane v. Kennedy, 205 W.Va. 519, 529, 519 S.E.2d 622, 632 (1999) (citations
omitted); accord Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144
W.Va. 137, 107 S.E.2d 353 (1959) (“When 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.”). Further, “[s]tatutes
which relate to the same subject matter should be read and applied together so that the
Legislature’s intention can be gathered from the whole of the enactments.” Syl. Pt. 3, Smith
v. State Workmen’s Compensation Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975); accord
Syl. Pt. 3, State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886 (1958) (“Statutes in
pari materia must be construed together and the legislative intention, as gathered from the
whole of the enactments, must be given effect.”).
8
Having carefully reviewed and considered the relevant statutory provisions, we
find that the plain language of the Act supports the position advanced by the HOA. When
the definitions of “common interest community,” “condominium,” “common elements,” and
“unit” set forth in West Virginia Code § 36B-1-103 are read and applied together with West
Virginia Code 36B-3-102(a)(4), it is clear that the units are part of the common interest
community. In that regard, as previously noted, the statute defines “common interest
community” as “real estate with respect to which a person, by virtue of his ownership of a
unit, is obligated to pay for real estate taxes, insurance premiums, maintenance or
improvement of other real estate described in a declaration[.]” W.Va. Code § 36B-1-103(7).
Under the Act, a “condominium” is
a common interest community in which portions of the real
estate are designated for separate ownership and the remainder
of the real estate is designated for common ownership solely by
the owners of those portions. A common interest community is
not a condominium unless the undivided interest in the common
elements are vested in the unit owners.
W.Va. Code § 36B-1-103(8). Thus, a purchaser of a condominium unit owns his or her
individual unit along with an undivided interest in the “common elements” defined as “all
portions of the common interest community other than the units.” W.Va. Code § 36B-1
103(4). Critically, the term “unit” is defined as “a physical portion of the common interest
community designated for separate ownership or occupancy.” W.Va. Code § 36B-1-103(33)
(emphasis added).
9
The plain language of West Virginia Code § 36B-3-102(a)(4) permits a unit
owner’s association to bring an action not only on its own behalf but on behalf of “two or
more unit owners.” The only limitation on that action is that it must be one that “affect[s]
the common interest community.” Id. Given the fact that a unit is a physical portion of the
common interest community, it necessarily follows that damages only affecting individual
units are nonetheless matters affecting the common interest community. Thus, the HOA may
assert claims on behalf of two or more unit owners for damages specific to individual units.
Our conclusion that the HOA may pursue claims on behalf of two or more unit
owners for matters affecting their individual units is supported by the commentary to the
Uniform Common Interest Ownership Act which served as the model for our Act.7 The
commentary to § 3-102 of the Uniform Common Interest Ownership Act which mirrors West
Virginia Code § 36B-3-102 states: “This Act makes clear that the association can sue or
defend suits even though the suit may involve only units as to which the association itself has
no ownership interest.” Unif. Common Interest Ownership Act § 3-102(a)(4) (1982), 7
U.L.A. 98 (2009). Other jurisdictions that have adopted the Uniform Common Interest
7
See Foster, 227 W.Va. at 121 n.2, 705 S.E.2d at 818 n.2 (explaining that West
Virginia’s Uniform Common Interest Ownership Act is based upon the Uniform Common
Interest Ownership Act).
10
Ownership Act8 have also recognized that the representative capacity of unit owners’
associations extends to matters such as construction defects that affect individual units.
For example, in Yacht Club II Homeowners Ass’n, Inc. v. A.C. Excavating, 94
P.3d 1177 (Colo. App. 2003), the homeowners’ association for a townhome complex brought
suit against subcontractors alleging negligence resulting in construction defects to both the
individual units and the common areas of the development. Like the respondents in the case
sub judice, the subcontractors argued that the homeowners’ association lacked standing to
pursue claims for construction defect damages to the individual townhome units. The
Colorado court concluded otherwise, explaining that “[u]nder the CCIOA [Colorado
Common Interest Ownership Act], individual units are a part of the ‘common interest
community.’” 94 P.3d at 1180. The Court stated:
Recognizing the underlying purpose of § 38-33.3-302(1)(d),
giving the phrase “common interest community” the meaning
ascribed to it by the CCIOA, and realizing that an exception
should not be read into a statute that its plain language does not
suggest, warrant, or mandate . . . we conclude that § 38-33.2
302(1)(d) confers standing upon associations to pursue damage
claims on behalf of two or more unit owners with respect to
matters affecting their individual units.
Id. (citation omitted).
8
In addition to West Virginia, states that have adopted the Uniform Common Interest
Ownership Act include Alaska, Colorado, Connecticut, Delaware, Minnesota, Nevada and
Vermont.
11
Similarly, in D.R. Horton, Inc. v. Eighth Judicial District Court, 215 P.3d 697
(Nev. 2009), a homeowners’ association brought an action on behalf of itself and unit owners
against the developer of the community alleging that both individual units and common areas
had construction defects. The developer argued that the homeowners’ association did not
have standing to assert construction defect claims on behalf of its members because
individual units were statutorily excluded from the definition of “common interest
community.” The Supreme Court of Nevada concluded that NRS Chapter 116, also known
as the Uniform Common-Interest Ownership Act, did confer standing upon the homeowners’
association to pursue claims that affected individual units. Analyzing the definitions of the
relevant terms under the Act, the Court explained:
[B]y owning property in a “common-interest community,” a
property owner is obligated to pay certain expenses attached to
real estate in addition to the unit he or she owns. The unit,
however, is nonetheless part and parcel of the “common-interest
community”. . . we conclude that the collaboration of the
definitions of “common-interest community,” NRS 116.021,
“unit,” NRS.116.093, and “common elements,” NRS 116.017,
lead[s] to the conclusion that units are considered a part of the
common-interest community.
215 P.3d at 702.9
9
Other jurisdictions that have not adopted the Uniform Common Interest Ownership
Act but that have similar statutes have also permitted owners’ associations to pursue claims
for damages to individual units. See, e.g., Association of Apartment Owners v. Venture 15,
Inc., 167 P.3d 225, 255 (Haw. 2007) (concluding that owners’ association was authorized to
bring suit on behalf of individual apartment owners by statute that authorized associations
to bring suit for damages to the common elements or to more than one apartment); Milton
Co. v. Council of Unit Owners, 729 A.2d 981, 990 (Md. App. 1998) (holding that
12
In summary, “‘the national trend acknowledg[es] the representative capacity
of the association . . . enabl[ing] the association to represent more effectively its owners in
such matters as construction defects . . . avoid[ing] the necessity of assignment of claims,
powers of attorney or class actions in many circumstances [and] thereby simplifying and
making more practical the prompt action in the association’s and owners’ common
interests.’” Yacht Club II, 94 P.3d at 1180 (citation omitted). Therefore, we now hold that
West Virginia Code § 36B-3-102(a)(4), which authorizes a unit owners’ association to
institute litigation in its own name on behalf of itself or two or more unit owners on matters
affecting the common interest community, confers standing on the unit owners’ association
to assert claims on behalf of two or more unit owners with respect to matters affecting their
individual units. Accordingly, we answer the first certified question affirmatively.
condominium association had standing to sue for damages based on defects in individually-
owned units pursuant to statute which authorized association to act in representative capacity
so long as the subject of the litigation was one “affecting the condominium”); Sandy Creek
Condo. Ass’n v. Stolt and Egner, Inc., 642 N.E.2d 171, 176 (Ill. App. Ct. 1994) (stating
condominium association had standing to bring fraud claim even though all units were not
affected by allegedly fraudulent statements pursuant to statute authorizing it to act in
representative capacity in relation to matters involving the common elements or more than
one unit); Brickyard Homeowners’ Ass’n Mgmt. Comm. v. Gibbons Realty Co., 668 P.2d 535,
538-541 (Utah 1983) (finding that condominium management committee could bring suit for
misrepresentation on behalf of unit owners since statute authorized actions by management
committee on behalf of two or more unit owners relating to common areas and facilities or
more than one unit), superceded by constitutional amendment on other grounds as
recognized by State v. Drej, 233 P.3d 476, 484 n.4 (Utah 2010); Owens v. Tiber Island
Condo. Ass’n, 373 A.2d 890, 895 (D.C. 1977) (finding that condominium association was
authorized by statute and its own bylaws to bring suit regarding common elements of
condominium or more than one unit).
13
Although we have determined that the HOA has the authority to pursue all of
the claims at issue in this case pursuant to West Virginia Code § 36B-3-102(a)(4), the fact
remains that the claims involve damages to both the common elements of the Complex and
individual units. Moreover, having carefully reviewed all of the statutory provisions, this
Court is cognizant of the fact that the Act provides no guidance or mechanism to handle these
types of cases and, further, offers no procedure to be utilized to approve any type of
settlement. Given these facts, this Court finds that the most prudent approach from this point
forward is to proceed in accordance with Rule 26 of the West Virginia Trial Court Rules.
We are certainly mindful of the fact that “mass litigation” under Rule 26
contemplates “[t]wo (2) or more civil cases pending in one or more circuit courts,” and that
this case does not generally fit within that framework. W.Va. Tr. Ct. R. 26.04. However,
while there is technically only one plaintiff in this case, that plaintiff, the HOA, is
representing itself as well as its members–approximately 150 individuals and entities.
Furthermore, the HOA and its members have allegedly sustained varying damages–some
damages are common to each unit owner while other damages are specific to certain units.
Said another way, although there are not multiple lawsuits in this instance, this case does
involve multiple claims asserted on behalf of a large number of individuals and entities and
does involve common questions of law and fact. With this in mind, our Mass Litigation
Panel was created to deal with cases involving common questions of law or fact where large
14
numbers of individuals have been potentially harmed, physically or economically. In re
Tobacco Litigation, 218 W. Va. 301, 311, 624 S.E.2d 738, 748 (Starcher, J., concurring);
W.Va. Tr. Ct. R. 26.04. Therefore, because there is no mechanism in the Act to deal with
this type of case, and because we do have a Mass Litigation Panel that was created to deal
with cases involving common questions of law and fact, we are compelled to exercise our
inherent authority pursuant to the Constitution of West Virginia and deem this matter suitable
for resolution under Rule 26. As we have explained, “‘General supervisory control over all
intermediate appellate, circuit, and magistrate courts resides in the Supreme Court of
Appeals. W.Va. Const., art. VIII, § 3.’ Syllabus Point 1, Carter v. Taylor, 180 W.Va. 570,
378 S.E.2d 291 (1989).” Syl. Pt. 2, Stern v. Chemtall, Inc., 217 W.Va. 329, 617 S.E.2d 876
(2005).
We recognized in Chemtall, that “‘“[a] court ‘has inherent power to do all
things that are reasonably necessary for the administration of justice within the scope of its
jurisdiction.’ 14 Am. Juris., Courts, section 171.” Syllabus Point 3, Shields v. Romine, 122
W.Va. 639, 13 S.E.2d 16 (1940).’ Syllabus Point 1, State ex rel. Rees v. Hatcher, 214 W.Va.
746, 591 S.E.2d 304 (2003).” Syl. Pt. 3, 217 W.Va. at 331, 617 S.E.2d at 878. We further
stated that “the principle necessarily applies to this Court as the inherent power of the
judiciary has been well recognized in this jurisdiction. See e.g., Virginia Electric & Power
Co. v. Haden, 157 W.Va. 298, 306, 200 S.E.2d 848, 853 (1973); Syllabus Point 2, Frazee
15
Lumber Co. v. Haden, 156 W.Va. 844, 197 S.E.2d 634 (1973).” Chemtall, 217 W.Va. at 337,
617 S.E.2d at 884. Therefore, “it is our task to supervise the administration of justice in the
circuit courts to ensure that fair standards of procedure are maintained.” Id. We find that the
only way to maintain fair standards of procedure in this instance is to transfer this case to the
Mass Litigation Panel.
Having concluded that this case should proceed under Rule 26, we need not
answer the remaining certified questions. To the extent necessary, the issues raised in those
questions can be addressed by the Mass Litigation Panel. It is the Panel’s duty to “develop
and implement case management and trial methodologies to fairly and expeditiously resolve”
the matters before it. W.Va. Tr. Ct. R. 26.05. Nonetheless, given that this case is not typical
of the cases referred to the Mass Litigation Panel in that there are not multiple cases involved
but, rather, one case involving multiple individuals and entities represented by one party, we
believe that individual notice should be immediately given to all the members of the HOA
to make them aware of the existence of this lawsuit and to advise them that they are currently
represented by the HOA.10
10
We recognize that these notice provisions are not exclusive and that the Mass
Litigation Panel may add additional requirements as it deems necessary.
16
IV. Conclusion
For the reasons set forth above, this Court finds it only necessary to answer the
following certified question:
Is a Unit Owners’ Association an adequate representative when
a lawsuit is instituted by a Unit Owners’ Association on behalf
of two or more unit owners pursuant to W. Va. Code § 36B-3
102(a)(4) and the damages sought include unit specific damages
affecting only individual units?
Answer: Yes.
Because this case is before this Court upon questions certified from the circuit court, we will
not at this juncture transfer this matter to the Mass Litigation Panel. Rather, upon receipt of
a Motion to Refer to the Mass Litigation Panel as provided by Rule 26.06 from the circuit
judge, which should be filed and transmitted to the Clerk of this Court forthwith, the
appropriate action will be taken.
Certified question answered.
17
University Commons Riverside Home Owners Ass'n v. University Commons Morgantown, LLC
Court: West Virginia Supreme Court
Date filed: 2013-03-28
Citations: 230 W. Va. 589, 741 S.E.2d 613
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