647 S.E.2d 811
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.
Accord Alden v. Harpers Ferry Police Civil Serv. Comm'n, 209 W. Va. 83, 87, 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)).
Mark A. Sadd
Ancil G. Ramey
G. Nicholas Casey, Jr.
Scott E. Johnson
Lewis Glasser Casey & Rollins PLLC Steptoe & Johnson PLLC
Charleston, West Virginia
Charleston, West Virginia
Attorneys for the Appellants, Attorneys for the Appellee,
Joseph D. Stever and Bonnie M. Stever Stone Gate Homeowners
Association, Inc.
CHIEF JUSTICE DAVIS delivered the Opinion of 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).
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-3-116
to include an award of costs and reasonable attorney's fees for the prevailing party.
Davis, Chief Justice:
The appellants herein and plaintiffs below, Joseph D. Stever and Bonnie M.
Stever [hereinafter “Mr. and Mrs. Stever”], (See footnote 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.
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. Stever (See footnote 2) 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.
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); (See footnote 3) however, the court also ruled that the
Association could not enforce its liens against Mr. and Mrs. Stever because the three-year
time period for such enforcement also had expired. (See footnote 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). (See footnote 5) From this ruling,
Mr. and Mrs. Stever appeal to this Court.
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.
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 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-3-116(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.
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, 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).
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
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.
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-1-113(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. (See footnote 6) Applying this holding to the facts of the case sub judice, we find 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.
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.
Footnote: 1