IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2007 Term
FILED
May 10, 2007
released at 3:00 p.m.
No. 33216
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
UNITED BANK, INC.;
JAMES PAUL ESTES; JOSEPH D. STEVER;
BONNIE M. STEVER; GARY LOWTHER;
TONI J. POSTER; DALLAS M. MCNAB;
JAY S. STEVENS, III; AND
VICKIE LYNN MARTIN STEVENS,
Plaintiffs Below, Appellants,
V.
STONE GATE HOMEOWNERS ASSOCIATION, INC., et al.,
Defendants Below, Appellees.
Appeal from the Circuit Court of Putnam County
Honorable O.C. Spaulding, Judge
Civil Action No. 03-C-369
REVERSED AND REMANDED
Submitted: April 4, 2007
Filed: May 10, 2007
Mark A. Sadd
G. Nicholas Casey, Jr.
Lewis Glasser Casey & Rollins PLLC
Charleston, West Virginia
Attorneys for the Appellants,
Joseph D. Stever and Bonnie M. Stever
Ancil G. Ramey
Scott E. Johnson
Steptoe & Johnson PLLC
Charleston, West Virginia
Attorneys for the Appellee,
Stone Gate Homeowners
Association, Inc.
CHIEF JUSTICE DAVIS delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1.
“Interpreting a statute or an administrative rule or regulation presents
a purely legal question subject to de novo review.” Syllabus point 1, Appalachian Power
Co. v. State Tax Department of West Virginia, 195 W. Va. 573, 466 S.E.2d 424 (1995).
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).
3.
“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.” Syllabus point 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488
(1951).
4.
“In the absence of any definition of the intended meaning of words
or terms used in a legislative enactment, they will, in the interpretation of the act, be given
their common, ordinary and accepted meaning in the connection in which they are used.”
Syl. pt. 1, Miners in General Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941),
overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477
(1982).
i
5.
The plain language of W. Va. Code § 36B-3-116(f) (1986) (Repl. Vol.
2005) requires a judgment or decree in any action brought under W. Va. Code § 36B-3116 to include an award of costs and reasonable attorney’s fees for the prevailing party.
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Davis, Chief Justice:
The appellants herein and plaintiffs below, Joseph D. Stever and Bonnie M.
Stever [hereinafter “Mr. and Mrs. Stever”],1 appeal from an order entered March 7, 2006,
by the Circuit Court of Putnam County. By that order, the circuit court determined that,
pursuant to W. Va. Code § 36B-3-116(f) (1986) (Repl. Vol. 2005), Mr. and Mrs. Stever
were not entitled to recover their costs and attorney’s fees from the appellee herein and
defendant below, Stone Gate Homeowners Association, Inc. [hereinafter “the
Association”]. On appeal to this Court, Mr. and Mrs. Stever assert that the circuit court
erred in denying their request for costs and attorney’s fees. Upon a review of the parties’
arguments, the record submitted for appellate consideration, and the pertinent authorities,
we find that Mr. and Mrs. Stever are entitled to recover their costs and attorney’s fees in
this matter. Accordingly, we reverse the decision of the Putnam County Circuit Court and
remand this case for further proceedings consistent with this opinion.
1
The original proceedings below named several other parties plaintiff whose
claims have all been resolved.
1
I.
FACTUAL AND PROCEDURAL HISTORY
The facts underlying the instant appeal are largely undisputed by the parties.
On May 4, 1999, Mr. and Mrs. Stever purchased a home in Stone Gate Subdivision from
Raymond C. and Joanie S. Brainard. Unbeknowst to Mr. and Mrs. Stever, the Brainards
were delinquent in their payment of a $1,500 buy-in fee to the Stone Gate Homeowners
Association, Inc. As a result of the Association’s repeated efforts to require Mr. and Mrs.
Stever to pay this assessed fee, Mr. and Mrs. Stever2 filed a declaratory judgment lawsuit
against the Association, on November 26, 2003, to enjoin the enforcement of this
assessment against them, alleging that they did not have knowledge of such assessment
when they purchased their home; the Association’s claims against Mr. and Mrs. Stever had
not been adjudicated; their home’s prior owners, against whom said fee had been assessed
and by whom it had not been paid, were the parties actually responsible therefor; and the
Association had attempted to enforce this assessment more than five years after it had
accrued. Thereafter, the Association’s Board of Directors, on November 30, 2004, filed
notices of lien for said amount against both Mr. and Mrs. Stever and had both liens
recorded in the Putnam County Clerk’s office.
2
Other property owners in the Stone Gate Subdivision joined the lawsuit filed
by Mr. and Mrs. Stever to challenge allegedly unlawful assessments the Association had
made against them, as well. See supra note 1.
2
By order entered March 7, 2006, the circuit court determined that Mr. and
Mrs. Stever could not challenge the Association’s assessment of the delinquent fee
because they had filed their claim beyond the one-year statute of limitations provided for
by W. Va. Code § 55-2-12 (1959) (Repl. Vol. 2000);3 however, the court also ruled that
the Association could not enforce its liens against Mr. and Mrs. Stever because the threeyear time period for such enforcement also had expired.4 Despite the fact that they
prevailed in their action against the Association, however, the circuit court denied Mr. and
Mrs. Stever’s request for costs and attorney’s fees under W. Va. Code § 36B-3-116(f).5
From this ruling, Mr. and Mrs. Stever appeal to this Court.
3
W. Va. Code § 55-2-12 (1959) (Repl. Vol. 2000) provides, in pertinent part,
that
[e]very personal action for which no limitation is
otherwise prescribed shall be brought . . . (c) within one year
next after the right to bring the same shall have accrued if it be
for any other matter of such nature that, in case a party die, it
could not have been brought at common law by or against his
personal representative.
4
Pursuant to W. Va. Code § 36B-3-116(d) (1986) (Repl. Vol. 2005), “[a] lien
for unpaid assessments is extinguished unless proceedings to enforce the lien are instituted
within three years after the full amount of the assessments becomes due.”
5
See Section III, infra, for the court’s reasoning in this regard.
3
II.
STANDARD OF REVIEW
At issue in this case is the solitary question of the proper interpretation and
application of the statutory cost- and fee-shifting language contained in W. Va. Code
§ 36B-3-116(f). When faced with a question of statutory interpretation, we apply a
plenary review. In other words, “[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). Accord Syl. pt. 1, Chrystal R.M. v. Charlie A.L., 194 W. Va. 138, 459 S.E.2d
415 (1995) (“Where the issue on an appeal from the circuit court is clearly a question of
law or involving an interpretation of a statute, we apply a de novo standard of review.”).
Mindful of this standard, we proceed to consider the parties’ arguments.
III.
DISCUSSION
On appeal to this Court, Mr. and Mrs. Stever assign error to the circuit
court’s ruling denying their request for costs and attorney’s fees pursuant to W. Va. Code
§ 36B-3-116(f) (1986) (Repl. Vol. 2005). Mr. and Mrs. Stever claim that this provision
allows a prevailing party to recover his/her costs or attorney’s fees in any action brought
under W. Va. Code § 36B-3-116(f) because the fee shifting provision refers to “any
action” brought thereunder. By contrast, the Association contends that an award of costs
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and attorney’s fees is available to a prevailing party in accordance with W. Va. Code
§ 36B-3-116(f) only when the party has prevailed in a suit to recover assessments initiated
by a homeowner’s association pursuant to W. Va. Code § 36B-3-116.
In its March 7, 2006, order denying costs and attorney’s fees to Mr. and Mrs.
Stever, the circuit court observed that
[t]he Plaintiffs [Mr. and Mrs. Stever] argue that
pursuant to West Virginia Code § 36B-3-116(f), they are
entitled to attorney’s fees. West Virginia Code § 36B-3-116(f)
provides that “[a] judgment or decree in any action brought
under this section must include costs and reasonable
attorney’s fees for the prevailing party.” (Emphasis added).
Therefore, the Plaintiffs argue that if the Court grants their
motion for summary judgment, they are entitled to attorney’s
fees.
The Court disagrees. The Court finds that West
Virginia Code § 36B-3-116 provides the homeowners
association a method by which it may recover assessments or
fees incurred pursuant to West Virginia Code § 36B-3-102. In
furtherance of this purpose, West Virginia Code § 36B-3116(f) simply states that if a homeowner’s association
attempts to collect such assessment or fee in accordance with
this section, the prevailing party is entitled to attorney’s fees.
In the present matter, the Court finds that the
Association did not attempt to avail itself of West Virginia
Code § 36B-3-116. Therefore, the Court finds that the
Plaintiffs are not entitled to recover attorney’s fees.
To this ruling of the circuit court, we apply a plenary review. See Syl. pt. 1, Appalachian
Power Co. v. State Tax Dep’t of West Virginia, 195 W. Va. 573, 466 S.E.2d 424.
5
Our resolution of the case sub judice turns upon our interpretation and
application of a portion of the West Virginia Uniform Common Interest Ownership Act,
W. Va. Code § 36B-1-101, et seq. [hereinafter the “Act” or “UCIOA”]. Specifically, we
must determine who is entitled to recover costs and attorney’s fees pursuant to W. Va.
Code § 36B-3-116(f). This section directs that “[a] judgment or decree in any action
brought under this section must include costs and reasonable attorney’s fees for the
prevailing party.” W. Va. Code § 36B-3-116(f) (1986) (Repl. Vol. 2005). The more
general section to which this provision refers, W. Va. Code § 36B-3-116, is entitled “[l]ien
for assessments” and grants to an “association . . .a lien on a unit for any assessment levied
against that unit or fines imposed against its unit owner from the time the assessment or
fine becomes due,” W. Va. Code § 36B-3-116(a) (1986) (Repl. Vol. 2005), and describes
the nature of the lien, defines its priority status, and addresses other like matters.
When resolving an issue involving statutory law, we first consider the intent
of the Legislature in drafting said provision. “The 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, 219 S.E.2d 361 (1975). We next look to the
specific language used in the statute. State ex rel. McGraw v. Combs Servs., 206 W. Va.
512, 518, 526 S.E.2d 34, 40 (1999).
“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,
6
65 S.E.2d 488 (1951). Accord DeVane v. Kennedy, 205 W. Va. 519, 529, 519 S.E.2d 622,
632 (1999) (“Where the language of a statutory provision is plain, its terms should be
applied as written and not construed.” (citations omitted)). However, statutory language
that is ambiguous must be construed before it can be applied. See Syl. pt. 1, Farley v.
Buckalew, 186 W. Va. 693, 414 S.E.2d 454 (1992) (“A statute that is ambiguous must be
construed before it can be applied.”); Syl. pt. 1, Ohio County Comm’n v. Manchin, 171
W. Va. 552, 301 S.E.2d 183 (1983) (“Judicial interpretation of a statute is warranted only
if the statute is ambiguous and the initial step in such interpretative inquiry is to ascertain
the legislative intent.”).
Additionally, we accord words used in a legislative enactment their common,
ordinary meaning. “In the absence of any definition of the intended meaning of words or
terms used in a legislative enactment, they will, in the interpretation of the act, be given
their common, ordinary and accepted meaning in the connection in which they are used.”
Syl. pt. 1, Miners in Gen. Group v. Hix, 123 W. Va. 637, 17 S.E.2d 810 (1941), overruled
on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va. 162, 291 S.E.2d 477 (1982).
The statutory language at issue in the case sub judice uses the word “must” with respect
to the inclusion of an award of costs and reasonable attorney’s fees in a judgment or
decree. See W. Va. Code § 36B-3-116(f). “Typically, the word ‘must’ is afforded a
mandatory connotation.” Ashby v. City of Fairmont, 216 W. Va. 527, 532, 607 S.E.2d 856,
861 (2004). Accord Alden v. Harpers Ferry Police Civil Serv. Comm’n, 209 W. Va. 83, 87,
7
543 S.E.2d 364, 368 (2001). Thus, when a statute contains a directory term such as
“must”, we construe that word as requiring the specified action to be taken. See, e.g., State
v. Allen, 208 W. Va. 144, 153, 539 S.E.2d 87, 96 (1999) (“Generally, ‘shall’ commands
a mandatory connotation and denotes that the described behavior is directory, rather than
discretionary.” (citations omitted)).
The source of contention between the parties is not, however, whether
W. Va. Code § 36B-3-116(f) requires the payment of costs and reasonable attorney’s fees
to the prevailing party. Both Mr. and Mrs. Stever and the Association generally agree that
the plain language of this provision renders such an award mandatory. Instead, the source
of the parties’ disagreement is precisely who is entitled to recover such an award.
Specifically, the issue we are asked to resolve is whether any prevailing party may recover
costs and reasonable attorney’s fees in accordance with W. Va. Code § 36B-3-116(f), as
urged by Mr. and Mrs. Stever, or whether such an award is available only to a party who
prevails in an action initiated by an association to enforce an assessment for “fees,
charges, late charges, fines and interest” as contemplated by W. Va. Code § 36B-3-116(a).
The language of W. Va. Code § 36B-3-116(f) (1986) (Repl. Vol. 2005)
succinctly states that “[a] judgment or decree in any action brought under this section must
include costs and reasonable attorney’s fees for the prevailing party.” Despite the parties’
conflicting positions, we find that this provision plainly and unambiguously grants to a
8
prevailing party his/her costs and reasonable attorney’s fees regardless of how or by whom
the referenced action under W. Va. Code § 36B-3-116 was brought. This reading of the
statute is supported both by the specific wording thereof and the more general purpose of
the UCIOA.
First, the precise language of W. Va. Code § 36B-3-116(f), itself, references
“any action brought under this section.” (Emphasis added). In common parlance, the
adjective “any” refers to “‘all.’” Tracy v. Cottrell ex rel. Cottrell, 206 W. Va. 363, 379,
524 S.E.2d 879, 895 (1999) (quoting Harward v. Virginia, 229 Va. 363, 366, 330 S.E.2d
89, 91 (1985)). Accord Sussex Cmty. Servs. Ass’n v. Virginia Soc’y for Mentally Retarded
Children, Inc., 251 Va. 240, 243, 467 S.E.2d 468, 469 (1996) (“The word ‘any’ . . . is
generally considered to apply without limitation.”); Cox v. Cox, 16 Va. App. 146, 148, 428
S.E.2d 515, 516 (1993) (“The plain and unambiguous meaning of the word ‘any’ is one
or more indiscriminately from all those of a kind.” (internal quotations and citation
omitted)). The statutory language at issue does not make a distinction between actions
initiated by an association to enforce an assessment and those initiated by a homeowner,
as is the case herein, to challenge the propriety of an association’s assessment. Thus, it
is apparent that the plain language of W. Va. Code § 36B-3-116(f) provides an award of
costs and reasonable attorney’s fees to all parties who prevail in an action brought under
W. Va. Code § 36B-3-116, whether the action is initiated by the association or by the
homeowner.
9
Moreover, W. Va. Code § 36B-1-113(a) (1986) (Repl. Vol. 2005) directs that
“[t]he remedies provided by this chapter shall be liberally administered to the end that the
aggrieved party is put in as good a position as if the other party had fully performed. . . .”
To maintain consistency with this provision, then, W. Va. Code § 36B-3-116(f) must be
construed as providing costs and reasonable attorney’s fees to the prevailing party
regardless of the identity of the party or the type of action brought under W. Va. Code
§ 36B-3-116. Any other construction of the fee-shifting provision of § 36B-3-116(f)
would produce a result demonstrably at odds with the purpose enunciated in § 36B-1113(a), an outcome which we take great pains to avoid. See Syl. pt. 2, Newhart v.
Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938) (“Where a particular construction of
a statute would result in an absurdity, some other reasonable construction, which will not
produce such absurdity, will be made.”); Coal & Coke Ry. Co. v. Conley, 67 W. Va. 129,
178, 67 S.E. 613, 634 (1910) (“It is the duty of a court so to construe a statute as to avoid
absurd and inconsistent results, if possible.”).
Therefore, we hold that the plain language of W. Va. Code § 36B-3-116(f)
(1986) (Repl. Vol. 2005) requires a judgment or decree in any action brought under
W. Va. Code § 36B-3-116 to include an award of costs and reasonable attorney’s fees for
the prevailing party.6 Applying this holding to the facts of the case sub judice, we find
6
Not only is the instant matter of attorney’s fees under the Uniform Common
(continued...)
10
6
(...continued)
Interest Ownership Act an issue of first impression for this Court, but very few other
jurisdictions have interpreted the statutory language at issue in the case sub judice. The
decision we have reached herein is consistent with the Colorado Court of Appeals, which
has considered substantially similar statutory language. See, e.g., Giguere v. SJS Family
Enters., Ltd., 155 P.3d 462 (Colo. Ct. App. 2006) (applying Colo. Rev. Stat. Ann. § 3833.3-123(1)(c), which requires award of costs and reasonable attorney’s fees to prevailing
party “[i]n any civil action to enforce or defend the provisions of this article,” i.e.,
Colorado Common Interest Ownership Act, to grant costs and attorney’s fees to prevailing
condominium owners in action against developer to foreclose further development of
adjacent property), cert. denied, No. 06SC721, 2007 WL 113741 (Colo. Apr. 16, 2007);
Hallmark Bldg. Co. v. Westland Meadows Owners Ass’n, Inc., 983 P.2d 170 (Colo. Ct. App.
1999) (awarding costs and attorney’s fees to prevailing lot owner under Colo. Rev. Stat.
Ann. § 38-33.3-123(1)(c) in action challenging propriety of lien and back assessments by
owners association against lot owner). Cf. Linden Condo. Ass’n, Inc. v. McKenna, 247
Conn. 575, 726 A.2d 502 (1999) (barring prevailing condominium association from
recovering additional costs and attorney’s fees in action against unit owner to recover
unpaid charges based upon collateral estoppel resulting from association’s prior suit
against unit owner to obtain deficiency judgment; recognizing, however, that Conn. Gen.
Stat. § 47-258 requires an award of “costs and reasonable attorney’s fees for the prevailing
party” and that association, as prevailing party in earlier action, had properly been
awarded costs and attorney’s fees); Mountain View Condo. Ass’n of Vernon, Connecticut,
Inc. v. Rumford Assocs., IV, No. CV 9455693S, 1997 WL 120254 (Conn. Super. Ct. Mar.
4, 1997) (mem. decision) (upholding award of attorney’s fees to prevailing condominium
association in action to foreclose statutory lien for delinquent common expense
assessments). But see Bella Vista Condo. Ass’n v. Byars, No. CV03180606, 2005 WL
3292533, *2 (Conn. Super. Ct. Nov. 8, 2005) (stating, in parenthetical explanation to
statutory citation, that Conn. Gen. Stat. §§ 47-258(a, g) “grant[] a statutory lien on
individual units to secure the collection of assessments and further provid[e] for the
recovery of costs and attorney fees incurred by the common interest community in
enforcing its lien” (internal quotations and citation omitted)). The wording of the UCIOA
provision that is comparable to W. Va. Code § 36B-3-116(f) is not uniform, however,
insofar as at least one jurisdiction has made an award costs and attorney’s fees to a
prevailing party discretionary, rather than mandatory. See, e.g., Parr v. Fearing, No. A041191, 2005 WL 626193 (Minn. Ct. App. Mar. 15, 2005) (interpreting provision of
Minnesota Common Interest Ownership Act, Minn. Stat. § 515B.4-116(b), which makes
award of costs and reasonable attorney’s fees to prevailing party discretionary), cert.
denied, ___ U.S. ___, 126 S. Ct. 486, 163 L. Ed. 2d 364 (2005); Schmitt v. Webb, Nos. C7(continued...)
11
that the circuit court erred by denying Mr. and Mrs. Stever an award of their costs and
reasonable attorney’s fees when they prevailed in their action against the Association.
Accordingly, we reverse the ruling of the Circuit Court of Putnam County denying Mr.
and Mrs. Stever their costs and reasonable attorney’s fees, and we remand this case for the
entry of such an award.
IV.
CONCLUSION
For the foregoing reasons, the March 7, 2006, decision of the Circuit Court
of Putnam County is hereby reversed. This case is remanded for further proceedings
consistent with this opinion.
Reversed and Remanded.
6
(...continued)
04-3664, C1-03-13001, C3-03-13002, 2004 WL 3168081 (Minn. Dist. Ct. Sept. 20, 2004)
(same).
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