                                STATE OF WEST VIRGINIA

                              SUPREME COURT OF APPEALS



University Commons Riverside                                                            FILED
                                                                                        April 16, 2013
Homeowners Association, Inc.,                                                      RORY L. PERRY II, CLERK
Plaintiff Below, Petitioner                                                      SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA

vs) No. 12-0077 (Monongalia County 09-C-85)

O.C. Cluss Professional Services, LLC,
Defendant Below, Respondent

                                 MEMORANDUM DECISION

         Petitioner University Commons Riverside Homeowners Association, Inc., by counsel P.
Gregory Haddad, appeals the December 14, 2011 order of the Circuit Court of Monongalia
County denying its motion for leave to amend the first amended complaint. Respondent O.C.
Cluss Professional Services, LLC, (“Cluss Services”) by counsel Kathleen Jones Goldman, has
filed a response, to which petitioner has filed a reply.

       The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        On February 2, 2008, petitioner initiated the civil action below upon allegations that co­
defendant in the civil action, University Commons Morgantown, LLC, engaged in negligent
construction and deceptive marketing practices in regard to building a condominium complex. In
regard to respondent, petitioner alleged liability relative to its status as a subcontractor retained
to provide roofing services. After several years and one prior amendment to the original
complaint, petitioner filed a motion to amend the first amended complaint on June 23, 2011.
Petitioner sought to include O.C. Cluss Lumber Company (“Cluss Lumber”) as a party to the
action by alleging that Cluss Services was “either a shell company for O.C. Cluss Lumber
Company . . . and/or was involved in a joint venture with O.C. Cluss Lumber Company.” The
circuit court denied petitioner’s motion for leave to amend, and petitioner appeals this denial.

        On appeal, petitioner raises four assignments of error. First, petitioner alleges that the
circuit court erred when it failed to enforce the second amended scheduling order as required by
Rule 16 of the West Virginia Rules of Civil Procedure. According to petitioner, because it
attempted to amend its complaint to include an additional party three months in advance of the
deadline for adding parties as set forth in the applicable scheduling order, its motion cannot be
considered untimely. Second, petitioner argues that the circuit court erred in its finding that

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permitting amendment would not serve the purpose of Rule 15 of the West Virginia Rules of
Civil Procedure because leave to amend is to be freely given to secure adjudication on the merits.
Third, petitioner alleges that the circuit court erred in determining the merits of petitioner’s
allegations against Cluss Lumber in denying the motion. Fourth, petitioner argues that the circuit
court’s order did not reflect its ruling and that the circuit court failed to include findings of fact
and conclusions of law in its order as petitioner requested and as is required by Syllabus Point 6,
State ex rel. Allstate Insurance Company v. Gaughan, 203 W.Va. 358, 508 S.E.2d 75 (1998).

        In response, respondent argues that the circuit court properly denied petitioner leave to
amend the first amended complaint. According to respondent, a scheduling order does not
supersede a circuit court’s discretion regarding amendments as set forth in Rule 15(a) of the
West Virginia Rules of Civil Procedure. Respondent argues that petitioner had the information
upon which it sought to base its amendment for over two years, and as such, the amendment was
untimely. Further, respondent argues that petitioner’s claims are time-barred and that circuit
courts may consider futility in denying leave to amend. Lastly, respondent argues that petitioner
failed to make the necessary requests for specific findings of fact and conclusions of law.

       This Court has previously held that

       “[a] trial court is vested with a sound discretion in granting or refusing leave to
       amend pleadings in civil actions. Leave to amend should be freely given when
       justice so requires, but the action of a trial court in refusing to grant leave to
       amend a pleading will not be regarded as reversible error in the absence of a
       showing of an abuse of the trial court’s discretion in ruling upon a motion for
       leave to amend.” Syllabus Point 6, Perdue v. S.J. Groves and Sons Company, 152
       W.Va. 222, 161 S.E.2d 250 (1968).

Hawkins v. Ford Motor Co., 211 W.Va. 487, 490, 566 S.E.2d 624, 627 (2002). To begin, we find
no merit in petitioner’s first assignment of error. Despite the fact that the applicable scheduling
order set a deadline for joining additional parties, the circuit court has discretion under Rule 15
to deny the second motion to amend.

         As to petitioner’s second assignment of error, a review of the record shows that the
circuit court did not abuse its discretion in denying petitioner’s second motion for leave to
amend. The circuit court properly considered the appropriate factors in reaching its
determination that the addition of Cluss Lumber would not serve the purpose of Rule 15 or
facilitate the adjudication of the controversy on the merits. As such, we find no error in this
regard.

        In regard to petitioner’s third argument that the circuit court improperly determined the
merits of petitioner’s allegations against Cluss Lumber in denying the motion to amend, the
Court finds no evidence that the circuit court considered any improper factors in denying
petitioner’s motion.



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       Lastly, we find that the circuit court’s order contained sufficient findings of fact and
conclusions of law upon which this Court could base its review.

     For the foregoing reasons, we find no error in the decision of the circuit court and its
December 14, 2011 order denying petitioner’s motion for leave to amend is affirmed.

                                                                                     Affirmed.


ISSUED: April 16, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Justice Robin Jean Davis




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