             IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

                                  January 2019 Term
                                                                         FILED
                               _____________________
                                                                     March 15, 2019
                                                                         released at 3:00 p.m.
                                    No. 18-0040                      EDYTHE NASH GAISER, CLERK
                               _____________________                 SUPREME COURT OF APPEALS
                                                                          OF WEST VIRGINIA


                    JAMES A. DAILEY, III, NICOLE DAILEY,
                   TRAVIS A. HILL, AND SCARLETT J. HILL,
                          Plaintiffs Below, Petitioners

                                          v.

       AYERS LAND DEVELOPMENT, LLC; A AND A HOMES, INC.;
       AYERS BUILDERS, INC.; ROGER E. AYERS; JERRY A. AYERS;
 RJM HOLDINGS, LLC; FRYE CONSTRUCTION, INC.; AND MICHAEL E. FRYE,
                     Defendants Below, Respondents

       ___________________________________________________________

                  Appeal from the Circuit Court of Berkeley County
                      Honorable Christopher C. Wilkes, Judge
                             Civil Action No. 15-C-59

                       REVERSED AND REMANDED
        _________________________________________________________



                             Submitted: February 13, 2019
                                Filed: March 15, 2019


Susan R. Snowden, Esq.
Jackson Kelly PLLC
Martinsburg, West Virginia
Attorney for Petitioners
J. Victor Flanagan, Esq.
Matthew R. Whitler, Esq.
Benjamin P. Warder, Esq.
Pullin, Fowler, Flanagan, Brown & Poe, PLLC
Martinsburg, West Virginia
Attorneys for Ayers Land Development, LLC; A and A Homes, Inc.; Ayers Builders, Inc.;
        Roger E. Ayers; and Jerry A. Ayers

Christopher C. Luttrell, Esq.
Luttrell LC
Martinsburg, West Virginia
Attorney for Frye Construction, Inc., and Michael E. Frye


JUSTICE HUTCHISON delivered the Opinion of the Court.
                              SYLLABUS BY THE COURT



              1.      “A motion for summary judgment should be granted only when it is

clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed.

Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).



              2.      “The circuit court’s function at the summary judgment stage is not to

weigh the evidence and determine the truth of the matter, but is to determine whether there

is a genuine issue for trial.” Syl. Pt. 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755

(1994).



              3.      “‘A joint venture or, as it is sometimes referred to, a joint adventure,

is an association of two or more persons to carry out a single business enterprise for profit,

for which purpose they combine their property, money, effects, skill, and knowledge. It

arises out of a contractual relationship between the parties. The contract may be oral or

written, express or implied.’ Syl. pt. 2, Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380

(1987).” Syl. Pt. 5, Armor v. Lantz, 207 W.Va. 672, 535 S.E.2d 737 (2000).



              4.      “‘While, legally speaking, a corporation constitutes an entity separate

and apart from the persons who own it, such is a fiction of the law introduced for purpose

of convenience and to subserve the ends of justice; and it is now well settled, as a general

                                               i
principle, that the fiction should be disregarded when it is urged with an intent not within

its reason and purpose, and in such a way that its retention would produce injustices or

inequitable consequences.’ Syl. pt. 10, Sanders v. Roselawn Memorial Gardens, [Inc.,]

152 W.Va. 91, 159 S.E.2d 784 (1968).” Syl. Pt. 2, Laya v. Erin Homes, Inc., 177 W.Va.

343, 352 S.E.2d 93 (1986).



              5.     “W.Va. Code § 31B-3-303 (1996) (Repl. Vol. 2009) permits the

equitable remedy of piercing the veil to be asserted against a West Virginia limited liability

company.” Syl. Pt. 5, Kubican v. The Tavern, LLC, 232 W.Va. 268, 752 S.E.2d 299 (2013).



              6.     “‘[T]o “pierce the corporate veil” in order to hold the shareholder(s)

actively participating in the operation of the business personally liable . . . , there is

normally a two-prong test: (1) there must be such unity of interest and ownership that the

separate personalities of the corporation and of the individual shareholder(s) no longer exist

(a disregard of formalities requirement) and (2) an inequitable result would occur if the

acts are treated as those of the corporation alone (a fairness requirement).’ Syllabus point

3, in part, Laya v. Erin Homes, Inc., 177 W.Va. 343, 352 S.E.2d 93 (1986).” Syl. Pt. 6,

Kubican v. The Tavern, LLC, 232 W.Va. 268, 752 S.E.2d 299 (2013).



              7.     “To pierce the veil of a limited liability company in order to impose

personal liability on its member(s) or manager(s), it must be established that (1) there exists

such unity of interest and ownership that the separate personalities of the business and of

                                              ii
the individual member(s) or managers(s) no longer exist and (2) fraud, injustice, or an

inequitable result would occur if the veil is not pierced.” Syl. Pt. 7, in part, Kubican v. The

Tavern, LLC, 232 W.Va. 268, 752 S.E.2d 299 (2013).



              8.     “The propriety of piercing the corporate veil should rarely be

determined upon a motion for summary judgment. Instead, the propriety of piercing the

corporate veil usually involves numerous questions of fact for the trier of the facts to

determine upon all of the evidence.” Syl. Pt. 6, Laya v. Erin Homes, Inc., 177 W.Va. 343,

352 S.E.2d 93 (1986).



              9.     “The law presumes that two separately incorporated businesses are

separate entities and that corporations are separate from their shareholders.” Syl. Pt. 3, S.

Elec. Supply Co. v. Raleigh Cty. Nat’l Bank, 173 W.Va. 780, 320 S.E.2d 515 (1984).



              10.    “[T]he failure of a limited liability company to observe the usual

company formalities or requirements relating to the exercise of its company powers or

management of its business may not be a ground for imposing personal liability on the

member(s) or manager(s) of the company.” Syl. Pt. 7, in part, Kubican v. The Tavern, LLC,

232 W.Va. 268, 752 S.E.2d 299 (2013).




                                              iii
HUTCHISON, Justice:



              Petitioners James and Nicole Dailey and Travis and Scarlett Hill appeal the

December 19, 2017, order of the Circuit Court of Berkeley County certifying as final the

prior orders that granted summary judgment to the respondents, Ayers Land Development,

LLC; A and A Homes, Inc.; Ayers Builders, Inc.; Roger E. Ayers and Jerry A. Ayers

(hereinafter collectively “Ayers respondents”); Frye Construction, Inc., and Michael E.

Frye, in this civil action arising out of the modification of covenants pertaining to a

residential subdivision developed by RJM Holdings, LLC (“RJM”).1 In this appeal, the

petitioners assert several assignments of error but primarily contend that the circuit court

erred by granting summary judgment because genuine issues of material fact exist

regarding whether the respondents were engaged in a joint venture with RJM to develop

the subdivision and whether the veils of the respondent corporations and limited liability

companies should be pierced to hold Roger Ayers, Jerry Ayers, and Michael Frye,

personally liable.



              Upon consideration of the parties’ briefs and oral arguments, the submitted

record, and the applicable authorities, this Court finds merit to the petitioners’ arguments.



       1
         Although RJM is named as a respondent in this appeal, the circuit court rulings at
issue do not address any of the petitioners’ claims against RJM. All of the petitioners’
claims against RJM remain pending below. Accordingly, reference to the “respondents”
in this opinion means the Ayers respondents, Frye Construction, and Michael E. Frye,
collectively.
                                             1
Accordingly, for the reasons set forth below, the circuit court’s final order is reversed, and

this case is remanded for further proceedings consistent with this opinion.



                          I. Facts and Procedural Background

              Respondents Roger Ayers and Jerry Ayers are brothers who are engaged in

the business of real estate development and construction of residential homes. To facilitate

their business, they have formed multiple limited liability companies and corporations

including Ayers Holdings, LLC, whose sole members are Roger Ayers and Jerry Ayers;

Ayers Land Development, LLC, whose sole members are Jerry Ayers and his wife,

Deborah Ayers; Ayers Builders, Inc., with Jerry Ayers as president and his wife, Deborah

as vice president; and A and A Homes, Inc., with Roger Ayers as president and Jerry Ayers

as vice president. Ayers Holdings and Ayers Land Development are holding companies

for real estate; Ayers Builders and A and A Homes are home contractors. Michael Frye is

also a real estate developer and home builder. His business is Frye Construction, Inc.



              In November 2004, Ayers Holdings and Michael Frye formed RJM for the

purpose of developing a 117-acre tract of land in Berkeley County into a residential

subdivision known as Brookside. Michael Frye has a fifty percent interest in RJM, and

Ayers Holdings owns the other fifty percent. To finance the project, RJM secured a $2.4

million dollar bank loan, which Roger Ayers, Jerry Ayers and Michael Frye personally

guaranteed.



                                              2
             On May 30, 2007, RJM recorded a series of final plats for Brookside that

created thirty-eight individual single family lots at least one acre in size with common

areas, shared roads, and a parcel for future development. Brookside was marketed as a

“premier, upscale subdivision.” To that end, RJM recorded a “Declaration of Covenants,

Conditions and Restrictions for Brookside” in 2007 (“the 2007 Covenants”) in the Berkeley

County Clerk’s Office. Pertinent to this case are the following requirements for Brookside

homes set forth in the 2007 Covenants:

             All one-story Dwellings shall contain a minimum of 2,800
             square feet. All multiple-story Dwellings shall contain a
             minimum of 3,000 square feet, with at least 1,500 square feet
             on the first floor. Dimensions stated shall be exterior wall
             dimensions excluding basements, garages, decks, porches,
             eaves and other similar extension and overhangs.

             The exposed surface of all exterior walls of any building
             constructed upon any Lot may be clad with only the following
             materials: brick, stone, solid wood, or stucco. Without
             limitation of the foregoing, no vinyl or aluminum siding shall
             be permitted on any exterior wall, and no concrete shall be
             exposed.


             On June 29, 2007, Travis and Scarlett Hill purchased Lot No. 17 in Brookside

for $154,900. They were provided a copy of the 2007 Covenants, but they have yet to

build a home on the lot they purchased. James and Nicole Dailey purchased Lot No. 18 in

Brookside for $154,900 on July 6, 2007. They began construction of a home on their lot

in August 2013 in accordance with the 2007 Covenants.




                                            3
                Between 2008 and 2011, RJM only sold one lot in Brookside. In 2010, RJM

began discussing amending the 2007 Covenants to lessen the restrictive uses in an effort to

sell more lots.     On April 16, 2013, RJM executed a Supplementary Declaration of

Covenants, Conditions, and Restrictions (“the 2013 Covenants”) for Brookside which

amended the 2007 Covenants by decreasing the required minimum square footage for

homes and permitting the use of vinyl siding.2 According to the petitioners, they were not

informed that the 2007 Covenants were going to be amended. In fact, the Hills maintain

that they were never informed by RJM or any of the respondents of the amendments to the

covenants prior to filing their complaint. The Daileys have stated that they received the

2013 Covenants by email without any explanation on August 1, 2014, after leaving a



       2
           The 2013 Covenants amended the requirements for residence sizes as follows:

                All one story Dwellings shall contain a minimum of 1,800
                square feet. All multiple-story Dwellings shall contain a
                minimum of 2000 square feet with at least 1000 square feet on
                the first floor. Dimensions stated shall be exterior wall
                dimensions excluding basements, garages, decks, porches,
                eaves and other similar extensions and overhangs.

       With respect to exterior materials, the 2013 Covenants provided as follows:

                Except as provided herein, the exposed surface of the exterior
                walls of any building constructed upon any Lot may be clad
                with only the following materials: brick, stone, solid wood, or
                stucco. Notwithstanding the foregoing, vinyl siding shall be
                permitted on the entire building. Aluminum siding is not
                permitted on any surface. Furthermore, the side and rear
                foundation may be exposed but must be painted to match the
                exterior of the building. The foundation of the front of the
                building must remain covered with brick, stone, solid wood, or
                stucco.
                                              4
voicemail for the respondents inquiring about homes being constructed in Brookside that

did not comply with the 2007 Covenants.



             The petitioners contend that at least three homes have been built in Brookside

that fail to comply with the 2007 Covenants. RJM has acknowledged that the houses on

Lots 14 and 15 do not comply with the 2007 Covenants. The record shows that A and A

Homes built the home on Lot 14. Michael Frye and Frye Construction completed the

excavation for Lot 14, and Roger Ayers was the sewer installer. While the home on Lot

14 was being built, Frye Construction was also doing excavation work for the Daileys.

According to the Daileys, they asked Michael Frye about the square footage of the home

being constructed on Lot 14. The Daileys contend that Michael Frye “evaded the question”

and never mentioned that the 2007 Covenants had been amended.



             In 2015, separate complaints were filed by the Daileys and the Hills against

RJM and Ayers and Ayers Holdings alleging, inter alia, civil conspiracy, fraud and breach

of the covenants. The cases were consolidated by the circuit court. In August 2016, the

petitioners sought leave to amend their complaints to add additional defendants, including

the Ayers respondents, Michael Frye, and Frye Construction. 3 The request to amend was



      3
        The amended complaint also named as defendants all other persons and entities
owning real property in Brookside. The circuit court ordered the petitioners to name these
property owners as defendants, deeming their inclusion necessary for a complete
adjudication of the petitioners’ declaratory judgment claims concerning the 2013
Covenants. These defendants are not parties to this appeal.
                                            5
granted, and on January 18, 2017, the petitioners filed “Plaintiffs’ Consolidated Amended

Verified Complaint.” The petitioners sought declaratory judgment, asking the court to find

that the 2013 Covenants “destroy[] the Community Standard and [are] void ab initio.” In

addition, the petitioners sought to recover monetary damages for the actions taken by RJM

and the respondents in executing the 2013 Covenants. The petitioners alleged that the

respondents were members of a joint venture with RJM making them “jointly and severally

liable for all acts and omissions of individual co-venturers as they relate to Brookside.”

The petitioners also sought to pierce the veil of the respondent corporations and limited

liability companies to hold Roger Ayers, Jerry Ayers, and Michael Frye personally liable.



              On April 19, 2016, Ayers and Ayers Holdings filed a motion for summary

judgment seeking dismissal of the claims brought against it because of its status as a

member of RJM. The circuit court granted the motion on February 13, 2017, concluding,

“Any involvement by Defendant Ayers and Ayers Holding, LLC in enacting and signing

documents was not done as a separate limited liability company entity, but rather in its

official capacity as a member of RJM[.]” The petitioners have not appealed this order.4




       4
        During oral argument of this case, the petitioners’ attorney stated that the circuit
court had failed to include the necessary language in the order granting summary judgment
to Ayers and Ayers Holdings to make it a final appealable order. Accordingly, the decision
remains as an interlocutory ruling that is not appealable at this juncture. See W.Va. R. Civ.
Proc. 54(b); Syl. pt. 3, in part, Hubbard v. State Farm Indem. Co., 213 W.Va. 542, 584
S.E.2d 176 (2003) (“An otherwise interlocutory order that is not expressly certified as final
by using the language required by Rule 54(b) of the West Virginia Rules of Civil Procedure
remains interlocutory so long as the affected party does not seek an appeal.”).
                                             6
              In September 2017, the parties began filing additional motions for summary

judgment. Discovery was continuing, and a dispute arose between the petitioners and the

Ayers respondents regarding withheld communications and other documents identified in

a privilege log. The petitioners filed a motion to compel and sought an in-camera review

of the withheld materials, asserting that the information contained therein supported their

allegation that the Ayers companies were involved in Brookside. Despite the discovery

dispute, the circuit court granted summary judgment on November 7, 2017, through

separate orders to (1) the Ayers respondents; (2) Michael Frye; and (3) Frye Construction

and dismissed them from the case. The circuit court then entered an order on November

15, 2017, dismissing the petitioners’ motion to compel as moot. Finally, on December 19,

2017, the circuit court entered its “Order Granting Motion to Certify as Final the Court’s

Orders Granting Summary Judgment to Select Defendants.”            This appeal followed.



                                II. Standard of Review

              We apply a de novo review to a circuit court’s grant of summary judgment.

See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). It has long been

established that “[a] motion for summary judgment should be granted only when it is clear

that there is no genuine issue of fact to be tried and inquiry concerning the facts is not

desirable to clarify the application of the law.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed.

Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). This Court has explained that “[t]he

circuit court’s function at the summary judgment stage is not to weigh the evidence and

determine the truth of the matter, but is to determine whether there is a genuine issue for

                                            7
trial.” Painter, 192 W.Va. at 190, 451 S.E.2d at 756, syl. pt. 3. Therefore, “we must draw

any permissible inference from the underlying facts in the most favorable light to the party

opposing the motion.” Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329,

336 (1995). Because

              [c]redibility determinations, the weighing of the evidence, and
              the drawing of legitimate inferences from the facts are jury
              functions, not those of a judge . . . [s]ummary judgment should
              be denied even where there is no dispute as to the evidentiary
              facts in the case but only as to the conclusions to be drawn
              therefrom.

Id. (internal quotations and citations omitted). With these standards in mind, we consider

whether the circuit court erred in granting summary judgment to the respondents.



                                     III. Discussion

              As set forth above, the petitioners argue that the circuit court erred by

granting summary judgment because genuine issues of material fact exist with regard to

whether the respondents were engaged in a joint venture with RJM to develop Brookside

and whether the corporate veils of the respondent businesses should be pierced to hold

Roger Ayers, Jerry Ayers and Michael Frye personally liable. We will separately consider

these issues below, followed by a discussion regarding the other assignments of error

asserted by the petitioners.




                                             8
                                        A. Joint Venture

              The petitioners first contend that the circuit court erred by finding that they

failed to establish the existence of a joint venture between the respondents and RJM to

create, develop, and market Brookside. This Court has held that

                      “[a] joint venture or, as it is sometimes referred to, a
              joint adventure, is an association of two or more persons to
              carry out a single business enterprise for profit, for which
              purpose they combine their property, money, effects, skill, and
              knowledge. It arises out of a contractual relationship between
              the parties. The contract may be oral or written, express or
              implied.” Syl. pt. 2, Price v. Halstead, 177 W.Va. 592, 355
              S.E.2d 380 (1987).

Syl. Pt. 5, Armor v. Lantz, 207 W.Va. 672, 535 S.E.2d 737 (2000). This Court has also

recognized that “[m]embers of a joint venture are . . . jointly and severally liable for all

obligations pertaining to the venture, and the actions of the joint venture bind the individual

co-venturers.” Id. at 678, 535 S.E.2d at 743.



              The petitioners contend that RJM is merely a “shell company” and that it

could not have developed Brookside without the contributions and efforts of the

respondents, which is the essence of a joint venture. To support their claim that the

respondents were engaged in a joint venture with RJM to develop Brookside, the

petitioners produced evidence showing that the Ayers respondents were involved in the

marketing of the Brookside lots. In that regard, A and A Homes advertised Brookside on

its websites and provided its own contact information for sales inquiries; A and A Homes

exchanged communications regarding Brookside with realtors concerning lot sales and had


                                              9
a listing agreement with one realtor; and A and A Homes listed Brookside properties in its

name with realtors to try to “help RJM move the lots.” In addition, the petitioners provided

evidence that A and A Homes completed applications for names of roads within Brookside

that were submitted to the county planning commission for approval. There was also

evidence produced showing that Frye Construction performed the infrastructure work for

Brookside at a cost of more than $500,000 and that A and A Homes and other Ayers

respondents transferred funds to RJM to pay bills on a regular basis including the

excavation costs paid to Frye Construction. The petitioners also presented evidence that

the respondents were involved in the construction of the home on Lot 14 of Brookside,

which does not comply with the 2007 Covenants. Finally, there was evidence showing that

RJM uses the physical office location and staff of A and A Homes for RJM’s day-to-day

operations although there is no agreement to do so and RJM does not pay rent. The

petitioners maintain that this evidence created a genuine issue of material fact regarding

the existence of a joint venture between the respondents and RJM to preclude summary

judgment.



              Characterizing the evidence produced by the petitioners as “random facts,”

the respondents maintain that the circuit court’s grant of summary judgment was proper

because the petitioners were unable to provide any evidence with respect to the essential

elements of a joint venture, which as discussed in Armor, are an agreement to share profits

and joint management and control of the business enterprise. 207 W.Va. at 678-80, 535

S.E.2d at 743-45. Armor involved a legal malpractice suit brought by the clients of an

                                            10
attorney who served as local counsel for their out-of-state attorney in their underlying

products liability action. The plaintiffs asserted that their local counsel and out-of-state

attorney were engaged in a joint venture to represent them, and they sought to hold their

local counsel liable for the alleged malpractice committed by their out-of-state attorney.

Finding no evidence to show that the respondent local attorney had agreed to undertake

active management and control of his clients’ lawsuit in federal court or sufficient evidence

of an agreement to share in the profits and losses of the joint representation, we upheld the

circuit court’s grant of summary judgment to the local attorney because the appellants did

not “raise a triable issue of fact as to whether a joint venture existed.” Id. at 746, 535 S.E.2d

at 681. Although we upheld the grant of summary judgment in Armor, we noted that

“[w]hether or not a joint venture exists is normally a question to be answered by the trier

of fact.” Id. at 678, 535 S.E.2d at 743. Indeed, this Court has recognized that “‘a plaintiff

has a right to a jury trial upon the factual issues to determine whether a joint venture

existed.” Bowers v. Wurzburg, 207 W.Va. 28, 37, 528 S.E.2d 475, 484 (1999) (quoting

Lasry v. Lederman, 147 Cal.App.2d 480, 305 P.23d 663 (1957)).



              Unlike the appellants in Armor who essentially produced no evidence to

support their joint venture theory other than the respondent attorney’s agreement to act as

local counsel, the petitioners here have presented evidence that indicates the respondents

took an active role in marketing the Brookside lots, transferred funds to RJM so that it

could pay expenses, and performed construction work. This Court has recognized that

contributions of “property, money, efforts, skill [and] knowledge,” raise a jury question

                                               11
regarding the existence of a joint venture. Sipple v. Starr, 205 W.Va. 717, 725, 520 S.E.2d

884, 892 (1999) (citation omitted).



              In Sipple, the administrator of the estate of a customer who was shot and

killed by a convenience store employee brought suit against the convenience store, its

owner, and the gasoline supplier contending they were liable for the actions of their

employee. One of the administrator’s theories of liability was that the defendants were

engaged in a joint venture to operate the convenience store. This Court reversed the circuit

court’s grant of summary judgment to the gasoline supplier on the administrator’s joint

venture theory despite a lack of evidence that the gasoline supplier received any profit from

the convenience store’s grocery and beer sales. Id. at 725, 520 S.E.2d at 892. Rejecting

the gasoline supplier’s contention that there was no joint venture because there was no

direct sharing of profits, this Court explained that “intrinsic to a joint venture[] is the

concept of mutual efforts to promote the business, the success of which would accrue to

the benefit of all parties[.]” Id. Elaborating further, we stated:

              To constitute a joint adventure the parties must combine their
              property, money, efforts, skill, or knowledge, in some common
              undertaking of a special or particular nature, but the
              contributions of the respective parties need not be equal or of
              the same character. There must, however, be some contribution
              by each party of something promotive of the enterprise.

Id. (quoting Pownall v. Cearfoss, 129 W.Va. 487, 497-98, 40 S.E.2d 886, 893 (1946)).

Because the administrator produced evidence that the gasoline supplier provided property

in the form of gas pumps and other equipment as well as “skill and knowledge in the sale


                                              12
of gasoline,” we concluded that summary judgment had been improvidently granted and

that a jury should decide whether a joint venture existed. Id. at 725, 520 S.E.2d at 892; see

also Herrod v. First Republic Mortg. Corp., Inc., 218 W.Va. 611, 621, 625 S.E.2d 373,

383 (2005) (concluding “it should be up to a jury to determine whether there is sufficient

evidence of a joint venture” between mortgagee and its assignee in predatory lending case);

Bowers v. Wurzburg, 207 W.Va. 28, 38, 528 S.E.2d 475, 485 (1999) (finding that

“percentage clause” in commercial lease raised question of fact regarding existence of joint

venture between convenience store lessor and lessee).



              Given that the petitioners have produced substantial evidence that the

respondents made contributions to promote the development of Brookside including

marketing the lots, providing capital to pay RJM’s expenses, and performing actual

construction work, we find that the circuit court erred by granting summary judgment to

the respondents on the petitioners’ joint venture theory. As noted in Sipple, “[w]e are by

no means suggesting that just any mutually beneficial commercial relationship . . . rises to

the level of a joint venture.” 205 W.Va. at 725, 520 S.E.2d 892. However, based on the

record before us, we find that the petitioners have raised sufficient genuine issues of

material fact regarding the existence of a joint venture between the respondents and RJM

to preclude summary judgment.




                                             13
                                B. Piercing the Corporate Veil

              The petitioners also argue that the circuit court erred by finding that they

failed to produce sufficient evidence to pierce the veil of the respondent corporations and

limited liability companies to hold Jerry Ayers, Roger Ayers, and Michael Frye personally

liable. This Court has recognized that “[a] corporate shield may . . . be ‘pierced’ to subject

a sole shareholder to liability for corporate acts or to make a corporation liable for behavior

of another corporation within its total control.” S. Elec. Supply Co v. Raleigh Cty. Nat’l

Bank, 173 W.Va. 780, 787, 320 S.E.2d 515, 522 (1984). As we have explained:

                       While, legally speaking, a corporation constitutes an
              entity separate and apart from the persons who own it, such is
              a fiction of the law introduced for purpose of convenience and
              to subserve the ends of justice; and it is now well settled, as a
              general principle, that the fiction should be disregarded when
              it is urged with an intent not within its reason and purpose, and
              in such a way that its retention would produce injustices or
              inequitable consequences.” Syl. pt. 10, Sanders v. Roselawn
              Memorial Gardens, [Inc.,] 152 W.Va. 91, 159 S.E.2d 784
              (1968).

Syl. Pt. 2, Laya v. Erin Homes, Inc., 177 W.Va. 343, 352 S.E.2d 93 (1986). Likewise, we

have acknowledged that “W.Va. Code § 31B-3-303 (1996) (Repl. Vol. 2009) permits the

equitable remedy of piercing the veil to be asserted against a West Virginia limited liability

company.” Syl. Pt. 5, Kubican v. The Tavern, LLC, 232 W.Va. 268, 752 S.E.2d 299 (2013).

Whether the business is a corporation or a limited liability company, the same two-part test

is applied to determine whether the veil may be pierced. As set forth in syllabus points six

and seven, respectively, of Kubican, there is a “disregard of the formalities requirement”

and a “fairness requirement”:


                                              14
                  “[T]o ‘pierce the corporate veil’ in order to hold the
          shareholder(s) actively participating in the operation of the
          business personally liable . . . , there is normally a two-prong
          test: (1) there must be such unity of interest and ownership that
          the separate personalities of the corporation and of the
          individual shareholder(s) no longer exist (a disregard of
          formalities requirement) and (2) an inequitable result would
          occur if the acts are treated as those of the corporation alone (a
          fairness requirement).” Syllabus point 3, in part, Laya v. Erin
          Homes, Inc., 177 W.Va. 343, 352 S.E.2d 93 (1986).

                 To pierce the veil of a limited liability company in order
          to impose personal liability on its member(s) or manager(s), it
          must be established that (1) there exists such unity of interest
          and ownership that the separate personalities of the business
          and of the individual member(s) or managers(s) no longer exist
          and (2) fraud, injustice, or an inequitable result would occur if
          the veil is not pierced.

Kubican, 232 W.Va. at 270, 752 S.E.2d at 301, syl. pts. 6 & 7, in part.



          Application of the two-part test to determine whether to pierce the veil of a

corporation or a limited liability company requires a fact-driven analysis that is specific

to each case. Recognizing the multitude of considerations involved and the close

scrutiny of the actions of the parties that is required, this Court has made clear that

“decisions to look beyond, inside and through corporate facades must be made case-

by-case, with particular attention to factual details.” S. Elec. Supply, 173 W.Va. at 787,

320 S.E.2d at 523. Likewise, “the analysis necessary to [pierce the veil of an LLC] is

fact based and must be applied to LLCs on a case-by-case basis[.]” Kubican, 232 W.Va.

at 280, 752 S.E.2d at 311. To make the determination, we have outlined some of the

relevant factors to be considered, which include:


                                          15
(1) commingling of funds and other assets of the corporation
with those of the individual shareholders;

(2) diversion of the corporation’s funds or assets to
noncorporate uses (to the personal uses of the corporation’s
shareholders);

(3) failure to maintain the corporate formalities necessary for
the issuance of or subscription to the corporation’s stock, such
as formal approval of the stock issue by the board of directors;

(4) an individual shareholder representing to persons outside
the corporation that he or she is personally liable for the debts
or other obligations of the corporation;

(5) failure to maintain corporate minutes or adequate corporate
records;

(6) identical equitable ownership in two entities;

(7) identity of the directors and officers of two entities who are
responsible for supervision and management (a partnership or
sole proprietorship and a corporation owned and managed by
the same parties);

(8) failure to adequately capitalize a corporation for the
reasonable risks of the corporate undertaking;

(9) absence of separately held corporate assets;

(10) use of a corporation as a mere shell or conduit to operate
a single venture or some particular aspect of the business of an
individual or another corporation;

(11) sole ownership of all the stock by one individual or
members of a single family;

(12) use of the same office or business location by the
corporation and its individual shareholder(s);

(13) employment of the same employees or attorney by the
corporation and its shareholder(s);


                               16
             (14) concealment or misrepresentation of the identity of the
             ownership, management or financial interests in the
             corporation, and concealment of personal business activities of
             the shareholders (sole shareholders do not reveal the
             association with a corporation, which makes loans to them
             without adequate security);

             (15) disregard of legal formalities and failure to maintain
             proper arm’s length relationships among related entities;

             (16) use of a corporate entity as a conduit to procure labor,
             services or merchandise for another person or entity;

             (17) diversion of corporate assets from the corporation by or to
             a stockholder or other person or entity to the detriment of
             creditors, or the manipulation of assets and liabilities between
             entities to concentrate the assets in one and the liabilities in
             another;

             (18) contracting by the corporation with another person with
             the intent to avoid the risk of nonperformance by use of the
             corporate entity; or the use of a corporation as a subterfuge for
             illegal transactions;

             (19) the formation and use of the corporation to assume the
             existing liabilities of another person or entity.

Laya, 177 W.Va. at 347-48, 352 S.E.2d at 98-99; Kubican, 232 W.Va. at 281, 752 S.E.2d

at 312.



             This Court has observed that

             [e]xamination of the numerous relevant factors in a ‘totality of
             the circumstances’ test provides a more enlightening analysis
             than merely applying metaphors, like “simulacrum,” “alter
             ego,” “instrumentality,” etc., to describe the unity of the
             shareholder(s) and the corporation justifying, where equitable,
             the piercing of the corporate veil in the case.



                                            17
Laya, 177 W.Va. at 348, 352 S.E.2d at 99. In addition, this Court has recognized that “this

evidence must be analyzed in conjunction with evidence that a corporation attempted to

use its corporate structure to perpetrate a fraud or do grave injustice on an innocent third

party seeking to ‘pierce the veil.’” S. Elec. Supply, 173 W.Va. at 788, 320 S.E.2d at 523.

Accordingly, we have held that “[t]he propriety of piercing the corporate veil should rarely

be determined upon a motion for summary judgment. Instead, the propriety of piercing the

corporate veil usually involves numerous questions of fact for the trier of the facts to

determine upon all of the evidence.” Laya, 177 W.Va. at 344, 352 S.E.2d at 94, syl. pt. 6.



              In this case, the petitioners have produced evidence that the respondents and

RJM had no operating agreements with regard to the use of the same personnel, office

space, equipment, phone lines, and marketing materials. In addition, the petitioners

established that funds were transferred from the various respondents to RJM to pay its

expenses. In fact, some of the funds contributed by one respondent were used to pay

another respondent to do the infrastructure work for RJM. We, of course, recognize that

“common ownership or common management without evidence of fraudulent conduct,

total control, or a ‘dummy’ corporation [does not] justify piercing the corporate veil.” S.

Elec. Supply, 173 W.Va. at 789, 320 S.E.2d at 524. Indeed, “[t]he law presumes that two

separately incorporated businesses are separate entities and that corporations are separate

from their shareholders.” Id. at 781, 320 S.E.2d at 516, syl. pt.3. We have also held that

“the failure of a limited liability company to observe the usual company formalities or

requirements relating to the exercise of its company powers or management of its business

                                            18
may not be a ground for imposing personal liability on the member(s) or manager(s) of the

company.” Kubican, 232 W.Va. at 270, 752 S.E.2d 301, syl. pt. 7, in part; see also W.Va.

Code § 31B–3–303(b) (1996). However, based on the record before us and given our

express recognition of the fact-based nature of determining whether to “pierce the veil,”

we find this issue is a matter for the jury, and the circuit court erred by granting summary

judgment.



                                C. Other Assignments of Error

              The petitioners have also assigned error to the circuit court’s dismissal of all

their other claims against the respondents based on its finding that the petitioners failed to

prove the existence of a joint venture. In their amended complaint, the petitioners asserted

the following additional claims against RJM and the respondents: cloud on title; breach of

restriction, condition and covenants; civil conspiracy; actual and/or constructive fraud;

slander of title; promissory/equitable estoppel; and breach of contract for the failure to pave

the Daileys’ driveway. The petitioners argue in this appeal that the circuit court’s finding

that they failed to present sufficient evidence of a joint venture between RJM and the

respondents was not dispositive with respect to all of their other causes of action and that

the circuit court erred by dismissing these claims against the respondents without providing

separate findings of fact and conclusions of law. To the extent that the circuit court’s grant

of summary judgment to the respondents on all of the petitioners’ other claims was based

upon its finding that the petitioners had failed to establish the existence of a joint venture

between RJM and respondents, we summarily reverse the grant of summary judgment to

                                              19
the respondents on those causes of action. Given our decision that genuine issues of

material fact exist precluding summary judgment on the petitioners’ joint venture claim,

the circuit court’s reasoning for dismissing the other claims is no longer sound.



              As the petitioners’ note, the only cause of action the circuit court separately

addressed, aside from the joint venture and piercing the veil claims, was the petitioners’

allegation of fraud against Roger Ayers and Jerry Ayers. In that regard, the circuit court

found that the petitioners’ fraud claim could not be maintained against Roger Ayers and

Jerry Ayers because “the record . . . shows no evidence of intent to defraud the Plaintiffs,

but instead clearly indicates that the changes to the [2007 Convenants] that were enacted

by RJM in 2013 were due to the changes in the economy and the crash of the real estate

market.” The circuit court made no such finding, however, with respect to the other

respondents. Rather, in granting summary judgment to Frye Construction, the circuit court

dismissed all claims asserted by the petitioners based upon its finding that the joint venture

claim could not be maintained. Summary judgment was granted to Michael Frye on all of

the petitioners’ claims based on the circuit court’s finding that “he had not acted outside

the scope of his role as a member of [RJM] throughout the relevant underlying events.”



              Critically, a review of the amended complaint shows the petitioners’ fraud

allegations were not limited to the actions of RJM and the respondents when Brookside

was formed. The petitioners also asserted that RJM and the respondents committed fraud

when they “took action to specifically conceal from [the Daileys] that they were creating

                                             20
and filing the 2013 Declaration in order to induce [them] to proceed forward with plans to

build their large estate home which exceeded the requirements as established by the 2007

[Covenants].” Because the circuit court did not fully address all of the petitioners’

allegations and did not make any separate findings with respect to the petitioners’

allegations of fraud against the other respondents, we find that the circuit court’s grant of

summary judgment on this issue must be reversed. A summary judgment order that fails to

set forth sufficient findings of fact and conclusions of law does not permit meaningful

appellate review. See syl., Hively v. Merrifield, 212 W.Va. 804, 575 S.E.2d 414 (2002)

(holding that circuit court’s grant of summary judgment must set forth factual findings

sufficient to permit appellate review). Moreover, because we have found that genuine

issues of material fact exist with respect to the conduct of the respondents and the use of

the various business entities to develop Brookside, the viability of all of the petitioners’

causes of action can only be determined after these genuine issues of fact have been

resolved by a jury. Accordingly, we take no position on whether the petitioners can prevail

on their fraud claim or the other causes of action set forth in the complaint.



              As their final assignment of error, the petitioners argue that summary

judgment was improper because discovery was not complete and a motion to compel was

pending before the circuit court. Although we need not address this alternative argument

because of our reversal of the circuit court’s grant of summary judgment for the reasons

set forth above, we note that “[a]s a general rule, summary judgment is appropriate only

after adequate time for discovery.” Powderidge Unit Owners Ass’n v. Highland Props.,

                                             21
Ltd., 196 W.Va. 692, 701, 474 S.E.2d 872, 881 (1996); see also Precision Coil, 194 W.Va.

at 61, 459 S.E.2d at 338 (“[T]his Court and the United States Supreme Court apply the

general principle that summary judgment is appropriate only after the opposing party has

had adequate time for discovery.” (internal quotations and citation omitted)). As we have

explained, “[a] party opposing a motion for summary judgment must have a reasonable

opportunity to discover information that is essential to [its] opposition to the motion.”

Powderidge Unit Owners Ass’n, 196 W.Va, at 701, 474 S.E.2d at 881 (internal quotations

and citation omitted). Therefore, “a decision for summary judgment before the completion

of discovery is ‘precipitous.’” Precision Coil, 194 W.Va. 61, 459 S.E.2d at 338 (citing Bd.

of Educ. of the Cty. of Ohio v. Van Buren and Firestone, Arch., Inc., 165 W.Va. 140, 144,

267 S.E.2d 440, 443 (1980)).



                                     IV. Conclusion

              Accordingly, for the foregoing reasons, the circuit court’s final order entered

on December 19, 2017, is reversed, and this case is remanded for further proceedings

consistent with this opinion.

                                                                   Reversed and remanded.




                                             22
