Univ. Commons Riverside Home Owners Ass'n, Inc. v. Univ. Commons Morgantown, LLC

• Citation: 741 S.E.2d 613,230 W.Va. 589
• Decision Date: 28 March 2013
• Docket Number: No. 11–1577.,11–1577.
• Parties: 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.
• Court: West Virginia Supreme Court

230 W.Va. 589

741 S.E.2d 613

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.

No. 11–1577.

Supreme Court of Appeals of

West Virginia.

Submitted March 5, 2013.

Decided March 28, 2013.

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.

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).

Benjamin L. Bailey, Esq., John W. Barrett, Esq., Sherrie A. Armstrong, Esq., Bailey & Glasser LLP, Charleston, WV, P. Gregory Haddad, Kerrie Wagoner Boyle, Morgantown, WV, for Petitioner.

Shannon P. Smith, Esq., Stephen G. Higgins, Esq., Teresa J. Dumire, Esq., Kay Casto & Chaney PLLC, Morgantown, WV, for Respondent R.E. Crawford Construction, Inc.

Thomas G. Steele, Esq., Aimee N. Goddard, Esq., Steele Law Offices, Clarksburg, WV, 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, PA, for Respondent O.C. Cluss Professional Services, Inc.

Richard W. Gallagher, Esq., E. Ryan Kennedy, Esq., Robinson & McElwee PLLC, Clarksburg, WV, for Respondent Pozzuto and Sons, Inc.

Tamara J. DeFazio, Esq., J. Robert Russell, Esq., Shuman McCuskey & Slicer PLLC, Morgantown, WV, for Respondent Building Code Enforcement Official of Star City.

Mary H. Sanders, Esq., Patrick White, Esq., Huddleston, Bolen LLP, Charleston, WV, for Respondent Herron Engineering.

Joseph W. Selep, Esq., Sharon A. Hall, Esq., Zimmer Kunz, Pittsburgh, PA, for Respondent Eagle Interiors, Inc.

Charles F. Bagley III, Esq., Campbell Woods PLLC, Huntington, WV, for Respondent BUH Construction.

David V. Moore, Esq., DV Moore Law, PLLC, Charleston, WV, for Respondent Triad Engineering, Inc.

David L. Wyant, Esq., Diane G. Senakievich, Esq., Bailey & Wyant PLLC, Wheeling, WV, for Respondent Universal Forest Products Inc.

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?

(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 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 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 respondents ³ 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 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...