      IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                             January 2013 Term
                                                               FILED
                                                           March 28, 2013
                                                           released at 3:00 p.m.
                                No. 11-1577                RORY L. PERRY II, CLERK
                                                         SUPREME COURT OF APPEALS
                                                             OF WEST VIRGINIA




UNIVERSITY COMMONS RIVERSIDE HOME OWNERS ASSOCIATION, INC.,

                   Plaintiff Below, Petitioner


                                     v.

       UNIVERSITY COMMONS MORGANTOWN, LLC; KOEHLER

 DEVELOPMENT, LLC; COLLEGIATE HOMES, INC.; RICHARD KOEHLER;

         FRANK KOEHLER; ADAM SHARP; RICHARD DUNLAP;

     O.C. CLUSS PROFESSIONAL SERVICES, LLC; R.E. CRAWFORD

           CONSTRUCTION, INC.; POZZUTO AND SONS, INC.;

      BUILDING CODE ENFORCEMENT OFFICIAL OF STAR CITY;

HERRON ENGINEERING; EAGLE INTERIORS, INC.; BUH CONSTRUCTION;

   TRIAD ENGINEERING, INC; AND UNIVERSAL FOREST PRODUCTS,

          Defendants and Third-Party Defendants Below, Respondents




       Certified Questions from the Circuit Court of Monongalia County

                        Honorable Susan Tucker, Judge

                           Civil Action No. 09-C-85


                   CERTIFIED QUESTION ANSWERED





                         Submitted: March 5, 2013

                          Filed: March 28, 2013

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

Shannon P. Smith, Esq.

Stephen G. Higgins, Esq.

Teresa J. Dumire, Esq.

Kay Casto & Chaney PLLC

Morgantown, West Virginia

Attorneys for Respondent R.E. Crawford Construction, Inc.


Thomas G. Steele, Esq.

Aimee N. Goddard, Esq.

Steele Law Offices

Clarksburg, West Virginia

Attorneys for Respondents University Commons Morgantown, LLC;

Koehler Development, LLC; Collegiate Homes, Inc.;

Richard Koehler; Frank Koehler; Adam Sharp; and Richard Dunlap


Kathleen Jones Goldman, Esq.

Erin McLaughlin, Esq.

Buchanan Ingersoll & Rooney, LLP

Pittsburgh, Pennsylvania

Attorneys for Respondent O.C. Cluss Professional Services, Inc.


Richard W. Gallagher, Esq.

E. Ryan Kennedy, Esq.

Robinson & McElwee PLLC

Clarksburg, West Virginia

Attorneys for Respondent Pozzuto and Sons, Inc.


Tamara J. DeFazio, Esq.
J. Robert Russell, Esq.
Shuman McCuskey & Slicer PLLC
Morgantown, West Virginia
Attorneys for Respondent Building Code Enforcement Official of Star City
Mary H. Sanders, Esq.

Patrick White, Esq.

Huddleston, Bolen LLP

Charleston, West Virginia

Attorneys for Respondent Herron Engineering


Joseph W. Selep, Esq.

Sharon A. Hall, Esq.

Zimmer Kunz

Pittsburgh, Pennsylvania

Attorneys for Respondent Eagle Interiors, Inc.


Charles F. Bagley III, Esq.

Campbell Woods PLLC

Huntington, West Virginia

Attorney for Respondent BUH Construction


David V. Moore, Esq.

DV Moore Law, PLLC

Charleston, West Virginia

Attorney for Respondent Triad Engineering, Inc.


David L. Wyant, Esq.

Diane G. Senakievich, Esq.

Bailey & Wyant PLLC

Wheeling, West Virginia

Attorneys for Respondent Universal Forest Products Inc.





JUSTICE LOUGHRY delivered the Opinion of the Court.

                               SYLLABUS BY THE COURT




              1.      “The appellate standard of review of questions of law answered and

certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart Stores, Inc., 197

W.Va. 172, 475 S.E.2d 172 (1996).



              2.      “A statutory provision which is clear and unambiguous and plainly

expresses the legislative intent will not be interpreted by the courts but will be given full

force and effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951).



              3.      “Statutes which relate to the same subject matter should be read and

applied together so that the Legislature’s intention can be gathered from the whole of the

enactments.” Syl. Pt. 3, Smith v. State Workmen’s Compensation Comm’r, 159 W.Va. 108,

219 S.E.2d 361 (1975).



              4.      West Virginia Code § 36B-3-102(a)(4) (2011), which authorizes a unit

owners’ association to institute litigation in its own name on behalf of itself or two or more

unit owners on matters affecting the common interest community, confers standing on the

unit owners’ association to assert claims on behalf of two or more unit owners with respect

to matters affecting their individual units.


                                               i
              5.      “‘General supervisory control over all intermediate appellate, circuit,

and magistrate courts resides in the Supreme Court of Appeals. W.Va. Const., art. VIII, § 3.’


Syllabus Point 1, Carter v. Taylor, 180 W.Va. 570, 378 S.E.2d 291 (1989).” Syl. Pt. 2, Stern


v. Chemtall, Inc., 217 W.Va. 329, 617 S.E.2d 876 (2005).




              6.      “‘“A court ‘has inherent power to do all things that are reasonably


necessary for the administration of justice within the scope of its jurisdiction.’ 14 Am. Juris.,


Courts, section 171.” Syllabus Point 3, Shields v. Romine, 122 W.Va. 639, 13 S.E.2d 16


(1940).’ Syllabus Point 1, State ex rel. Rees v. Hatcher, 214 W.Va. 746, 591 S.E.2d 304


(2003).” Syl. Pt. 3, Stern v. Chemtall, Inc., 217 W.Va. 329, 617 S.E.2d 876 (2005).





                                               ii

LOUGHRY, Justice:



              The Circuit Court of Monongalia County has certified six questions to this

Court relating to the Uniform Common Interest Ownership Act (hereinafter “the Act”)

codified in Chapter 36B of the West Virginia Code. The Act “governs the formation,

management, and termination of a common interest community, whether the community is

a condominium, planned community, or real estate cooperative.” Foster v. Orchard Dev.

Co., LLC, 227 W.Va. 119, 121 n.2, 705 S.E.2d 816, 818 n.2 (2010) (citation omitted). The

questions certified to this Court are as follows:

                     (1) Is a Unit Owners’ Association an adequate
              representative when a lawsuit is instituted by a Unit Owners’
              Association on behalf of two or more unit owners pursuant to
              W. Va. Code § 36B-3-102(a)(4) and the damages sought include
              unit specific damages affecting only individual units?

                     (2) If the Unit Owners’ Association is an adequate
              representative to institute litigation pursuant to W. Va. Code §
              36B-3-102(a)(4) on behalf of individual unit owners for unit
              specific damages affecting only individual units, is a unit owner
              nonetheless a necessary and indispensable party pursuant to
              Rule 19 of the West Virginia Rules of Civil Procedure?

                      (3) If individual unit owners are not named Plaintiffs in
              a lawsuit instituted on their behalf by a Unit Owners’
              Association and are not necessary and indispensable parties to
              the suit, does the Association have the authority under [W. Va.
              Code] § 36B-3-102(a)(4) to settle and release any and all claims
              of the unit owners when said individual unit owners have been
              provided reasonable notice of, and have made no objection to,
              said settlement and release? If so, what constitutes sufficient
              notice?

                                              1

                     (4) Whether matters pertaining to a unit owners’ claim
              for lost rent or inability to rent are matters that affect the
              common interest community for which the Unit Owners’
              Association may institute litigation pursuant to [W. Va. Code]
              § 36B-3-102(a)(4)?

                     (5) Pursuant to [W. Va. Code] § 36B-3-102(a)(4), what
              constitutes a “matter affecting the common interest community”
              and what constitutes a “unit specific” element?

                     (6) Is a representative example of unit owners sufficient
              to offer deposition testimony and trial testimony in this matter
              to establish defects and damages that are common to all units?



              Upon careful review and consideration of the parties’ briefs, oral argument, and

the pertinent authorities, we answer the first question affirmatively and find it unnecessary

to address the remaining questions. For the reasons set forth below, we conclude that this

case should proceed in accordance with Rule 26 of the West Virginia Trial Court Rules.



                        I. Factual and Procedural Background

              The plaintiff below and the petitioner herein, University Commons Riverside

Home Owners Association, Inc. (hereinafter “HOA”), is a condominium owners’ association

that brought suit on its own behalf and on behalf of its members against various individuals

and corporations seeking damages arising from the alleged defective development, negligent

construction, and misleading marketing of the University Commons Riverside Condominium

Complex (hereinafter “the Complex”) located in Star City, West Virginia. The defendants


                                              2

filed cross-claims for indemnity and contribution and filed third-party complaints against

various subcontractors.         All defendants and third-party defendants (hereinafter

“respondents”) have joined together before this Court, submitting a joint brief and argument.1



                 The Complex consists of 84 individually-owned units that are currently owned

by approximately 147 individuals and/or entities. These individuals and entities are the

members of the HOA. The HOA filed this action on February 13, 2009, asserting claims for

breach of express and implied warranty of quality, failure to comply with public offering

statement requirements, material omission in promotional materials, failure to complete and

restore, negligence, strict liability, and breach of implied warranties of merchantability,

fitness and habitability. The individual unit owners were not named as individual plaintiffs

in the complaint.



                 The parties engaged in discovery for nearly three years.2 According to the

HOA, the parties have taken forty-four depositions and thirty-one experts have been




       1
        The respondents are:         University Commons Morgantown, LLC; Koehler
Development, LLC; Collegiate Homes, Inc.; Richard Koehler; Frank Koehler; Adam Sharp;
Richard Dunlap; O.C. Cluss Professional Services, LLC; R.E. Crawford Construction, Inc.;
Pozzuto and Sons, Inc.; Building Code Enforcement Official of Star City; Herron
Engineering; Eagle Interiors, Inc.; BUH Construction; Triad Engineering, Inc.; and Universal
Forest Products.
       2
           Upon entry of the order certifying questions to this Court, discovery was stayed.

                                                3

identified–eleven for the HOA and twenty for the respondents. Fifteen unit owners have

been deposed and thousands of pages of documents have been produced.



                 By motion dated November 17, 2010, some of the respondents3 sought to have

all unit owners joined as plaintiffs in this lawsuit pursuant to Rule 19 of the West Virginia

Rules of Civil Procedure.4 The respondents asserted that while the Act confers standing upon

the HOA to represent its members as to matters affecting the “common interest community,”5


       3
      The remaining respondents filed a response joining the motion to have all unit owners
named as plaintiffs in the action.
       4
           Rule 19(a) of the West Virginia Rules of Civil Procedure states:

                         Persons to be joined if feasible. – A person who is
                 subject to service of process shall be joined as a party in the
                 action if (1) in the person’s absence complete relief cannot be
                 accorded among those already parties, or (2) the person claims
                 an interest relating to the subject of the action and is so situated
                 that the disposition of the action in the person’s absence may (i)
                 as a practical matter impair or impede the person’s ability to
                 protect that interest, or (ii) leave any of the persons already
                 parties subject to a substantial risk of incurring double, multiple,
                 or otherwise inconsistent obligations by reason of the claimed
                 interest. If the person has not been so joined, the court shall
                 order that the person be made a party. If the person should join
                 as a plaintiff but refuses to do so, the person may be made a
                 defendant, or, in a proper case, an involuntary plaintiff. If the
                 joined party objects to venue and joinder of that party would
                 render the venue of the action improper, that party shall be
                 dismissed from the action.
       5
        West Virginia Code § 36B-1-103(7) (2011) defines “common interest community”
as “real estate with respect to which a person, by virtue of his ownership of a unit, is
obligated to pay for real estate taxes, insurance premiums, maintenance or improvement of

                                                  4

the HOA has no authority to pursue claims for damages to individual units. According to the

respondents, it became apparent during the course of discovery that many of the unit owners

were seeking damages relating to defects pertaining to their individual units. Further, the

respondents indicated that certain unit owners believed that the HOA may not have actual

authority to bind the individual unit owners and that they would have the right to assert

individual claims if they were not satisfied with the outcome of this lawsuit. The HOA

opposed the motion. Concerned about the burdensome scope of discovery,6 the HOA moved

for a protective order on July 7, 2011, seeking to protect its right to bring suit on behalf of

its members for all claims asserted in the complaint.



                Thereafter, by order entered October 5, 2011, the circuit court granted the

respondents’ motion to join all unit owners, denied the HOA’s motion for a protective order,

and determined that the six questions set forth above should be certified to this Court. The

order of certification was entered on November 18, 2011.




other real estate described in a declaration[.]”

       6
           The respondents were seeking to depose more than 200 persons.


                                               5

                                 II. Standard of Review

              This Court has held that “[t]he appellate standard of review of questions of law

answered and certified by a circuit court is de novo.” Syl. Pt. 1, Gallapoo v. Wal-Mart

Stores, Inc., 197 W.Va. 172, 475 S.E.2d 172 (1996).



                                      III. Discussion

              The first question certified to this Court asks:

              Is a Unit Owners’ Association an adequate representative when
              a lawsuit is instituted by a Unit Owners’ Association on behalf
              of two or more unit owners pursuant to W. Va. Code § 36B-3­
              102(a)(4) and the damages sought include unit specific damages
              affecting only individual units?

The circuit court answered this question in the negative, finding that the HOA has standing

to bring an action on behalf of its members only as to matters affecting the “common interest

community” but lacks the capacity to represent unit owners with respect to damages to

individual units.



              The HOA argues, however, that it has standing to assert claims pertaining to

individual units pursuant to the plain language of the Act. In that regard, the HOA contends

that the Act’s broad definition of “common interest community” clearly encompasses the

individual units. Relying upon the definition of “unit,” which pursuant to West Virginia

Code § 36B-1-103(33) “means a physical portion of the common interest community


                                              6

designated for separate ownership or occupancy,” the HOA contends that it can represent its

members with respect to damages affecting individual units because West Virginia Code §

36B-3-102 (2011) expressly states, in relevant part:

                     (a) Except as provided in subsection (b), and subject to
              the provisions of the declaration, the association, even if
              unincorporated, may:
                     ....
                     (4) Institute, defend, or intervene in litigation or
              administrative proceedings in its own name on behalf of itself
              or two or more unit owners on matters affecting the common
              interest community[.]



              In contrast, the respondents argue that damages affecting only individual units

could not reasonably be included in “matters affecting the common interest community.” Id.

In support of their argument, the respondents point out the different obligations of the HOA

and the unit owners as set forth in West Virginia Code § 36B-3-107(a) (2011), which

provides that “the association is responsible for maintenance, repair, and replacement of

common elements, and each unit owner is responsible for maintenance, repair, and

replacement of his unit.” The respondents further contend that the HOA’s broad definition

of “matters affecting the common interest community” goes beyond the plain language of the

statute. They assert that the word “affecting” requires that the litigation matter have an effect

or influence on the common interest community. The respondents maintain that this clause

contemplates a greater impact than damages to specific individual units.



                                               7

               In order to resolve the issue presented by this certified question, we must apply

our rules of statutory interpretation and determine whether the “common interest community”

includes individual units. Our rules of statutory interpretation are well established. “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). In other words, “[w]here the

language of a statutory provision is plain, its terms should be applied as written and not

construed.” DeVane v. Kennedy, 205 W.Va. 519, 529, 519 S.E.2d 622, 632 (1999) (citations

omitted); accord Syl. Pt. 5, State v. General Daniel Morgan Post No. 548, V.F.W., 144

W.Va. 137, 107 S.E.2d 353 (1959) (“When a statute is clear and unambiguous and the

legislative intent is plain, the statute should not be interpreted by the courts, and in such case

it is the duty of the courts not to construe but to apply the statute.”). Further, “[s]tatutes

which relate to the same subject matter should be read and applied together so that the

Legislature’s intention can be gathered from the whole of the enactments.” Syl. Pt. 3, Smith

v. State Workmen’s Compensation Comm’r, 159 W.Va. 108, 219 S.E.2d 361 (1975); accord

Syl. Pt. 3, State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886 (1958) (“Statutes in

pari materia must be construed together and the legislative intention, as gathered from the

whole of the enactments, must be given effect.”).




                                                8

              Having carefully reviewed and considered the relevant statutory provisions, we

find that the plain language of the Act supports the position advanced by the HOA. When

the definitions of “common interest community,” “condominium,” “common elements,” and

“unit” set forth in West Virginia Code § 36B-1-103 are read and applied together with West

Virginia Code 36B-3-102(a)(4), it is clear that the units are part of the common interest

community. In that regard, as previously noted, the statute defines “common interest

community” as “real estate with respect to which a person, by virtue of his ownership of a

unit, is obligated to pay for real estate taxes, insurance premiums, maintenance or

improvement of other real estate described in a declaration[.]” W.Va. Code § 36B-1-103(7).

Under the Act, a “condominium” is

              a common interest community in which portions of the real
              estate are designated for separate ownership and the remainder
              of the real estate is designated for common ownership solely by
              the owners of those portions. A common interest community is
              not a condominium unless the undivided interest in the common
              elements are vested in the unit owners.

W.Va. Code § 36B-1-103(8). Thus, a purchaser of a condominium unit owns his or her

individual unit along with an undivided interest in the “common elements” defined as “all

portions of the common interest community other than the units.” W.Va. Code § 36B-1­

103(4). Critically, the term “unit” is defined as “a physical portion of the common interest

community designated for separate ownership or occupancy.” W.Va. Code § 36B-1-103(33)

(emphasis added).



                                             9

              The plain language of West Virginia Code § 36B-3-102(a)(4) permits a unit

owner’s association to bring an action not only on its own behalf but on behalf of “two or

more unit owners.” The only limitation on that action is that it must be one that “affect[s]

the common interest community.” Id. Given the fact that a unit is a physical portion of the

common interest community, it necessarily follows that damages only affecting individual

units are nonetheless matters affecting the common interest community. Thus, the HOA may

assert claims on behalf of two or more unit owners for damages specific to individual units.



              Our conclusion that the HOA may pursue claims on behalf of two or more unit

owners for matters affecting their individual units is supported by the commentary to the

Uniform Common Interest Ownership Act which served as the model for our Act.7 The

commentary to § 3-102 of the Uniform Common Interest Ownership Act which mirrors West

Virginia Code § 36B-3-102 states: “This Act makes clear that the association can sue or

defend suits even though the suit may involve only units as to which the association itself has

no ownership interest.” Unif. Common Interest Ownership Act § 3-102(a)(4) (1982), 7

U.L.A. 98 (2009). Other jurisdictions that have adopted the Uniform Common Interest




       7
        See Foster, 227 W.Va. at 121 n.2, 705 S.E.2d at 818 n.2 (explaining that West
Virginia’s Uniform Common Interest Ownership Act is based upon the Uniform Common
Interest Ownership Act).

                                              10

Ownership Act8 have also recognized that the representative capacity of unit owners’

associations extends to matters such as construction defects that affect individual units.



              For example, in Yacht Club II Homeowners Ass’n, Inc. v. A.C. Excavating, 94

P.3d 1177 (Colo. App. 2003), the homeowners’ association for a townhome complex brought

suit against subcontractors alleging negligence resulting in construction defects to both the

individual units and the common areas of the development. Like the respondents in the case

sub judice, the subcontractors argued that the homeowners’ association lacked standing to

pursue claims for construction defect damages to the individual townhome units. The

Colorado court concluded otherwise, explaining that “[u]nder the CCIOA [Colorado

Common Interest Ownership Act], individual units are a part of the ‘common interest

community.’” 94 P.3d at 1180. The Court stated:

              Recognizing the underlying purpose of § 38-33.3-302(1)(d),
              giving the phrase “common interest community” the meaning
              ascribed to it by the CCIOA, and realizing that an exception
              should not be read into a statute that its plain language does not
              suggest, warrant, or mandate . . . we conclude that § 38-33.2­
              302(1)(d) confers standing upon associations to pursue damage
              claims on behalf of two or more unit owners with respect to
              matters affecting their individual units.

Id. (citation omitted).



       8
      In addition to West Virginia, states that have adopted the Uniform Common Interest
Ownership Act include Alaska, Colorado, Connecticut, Delaware, Minnesota, Nevada and
Vermont.

                                             11

              Similarly, in D.R. Horton, Inc. v. Eighth Judicial District Court, 215 P.3d 697

(Nev. 2009), a homeowners’ association brought an action on behalf of itself and unit owners

against the developer of the community alleging that both individual units and common areas

had construction defects. The developer argued that the homeowners’ association did not

have standing to assert construction defect claims on behalf of its members because

individual units were statutorily excluded from the definition of “common interest

community.” The Supreme Court of Nevada concluded that NRS Chapter 116, also known

as the Uniform Common-Interest Ownership Act, did confer standing upon the homeowners’

association to pursue claims that affected individual units. Analyzing the definitions of the

relevant terms under the Act, the Court explained:

              [B]y owning property in a “common-interest community,” a
              property owner is obligated to pay certain expenses attached to
              real estate in addition to the unit he or she owns. The unit,
              however, is nonetheless part and parcel of the “common-interest
              community”. . . we conclude that the collaboration of the
              definitions of “common-interest community,” NRS 116.021,
              “unit,” NRS.116.093, and “common elements,” NRS 116.017,
              lead[s] to the conclusion that units are considered a part of the
              common-interest community.

215 P.3d at 702.9


       9
        Other jurisdictions that have not adopted the Uniform Common Interest Ownership
Act but that have similar statutes have also permitted owners’ associations to pursue claims
for damages to individual units. See, e.g., Association of Apartment Owners v. Venture 15,
Inc., 167 P.3d 225, 255 (Haw. 2007) (concluding that owners’ association was authorized to
bring suit on behalf of individual apartment owners by statute that authorized associations
to bring suit for damages to the common elements or to more than one apartment); Milton
Co. v. Council of Unit Owners, 729 A.2d 981, 990 (Md. App. 1998) (holding that

                                             12

              In summary, “‘the national trend acknowledg[es] the representative capacity

of the association . . . enabl[ing] the association to represent more effectively its owners in

such matters as construction defects . . . avoid[ing] the necessity of assignment of claims,

powers of attorney or class actions in many circumstances [and] thereby simplifying and

making more practical the prompt action in the association’s and owners’ common

interests.’” Yacht Club II, 94 P.3d at 1180 (citation omitted). Therefore, we now hold that

West Virginia Code § 36B-3-102(a)(4), which authorizes a unit owners’ association to

institute litigation in its own name on behalf of itself or two or more unit owners on matters

affecting the common interest community, confers standing on the unit owners’ association

to assert claims on behalf of two or more unit owners with respect to matters affecting their

individual units. Accordingly, we answer the first certified question affirmatively.




condominium association had standing to sue for damages based on defects in individually-
owned units pursuant to statute which authorized association to act in representative capacity
so long as the subject of the litigation was one “affecting the condominium”); Sandy Creek
Condo. Ass’n v. Stolt and Egner, Inc., 642 N.E.2d 171, 176 (Ill. App. Ct. 1994) (stating
condominium association had standing to bring fraud claim even though all units were not
affected by allegedly fraudulent statements pursuant to statute authorizing it to act in
representative capacity in relation to matters involving the common elements or more than
one unit); Brickyard Homeowners’ Ass’n Mgmt. Comm. v. Gibbons Realty Co., 668 P.2d 535,
538-541 (Utah 1983) (finding that condominium management committee could bring suit for
misrepresentation on behalf of unit owners since statute authorized actions by management
committee on behalf of two or more unit owners relating to common areas and facilities or
more than one unit), superceded by constitutional amendment on other grounds as
recognized by State v. Drej, 233 P.3d 476, 484 n.4 (Utah 2010); Owens v. Tiber Island
Condo. Ass’n, 373 A.2d 890, 895 (D.C. 1977) (finding that condominium association was
authorized by statute and its own bylaws to bring suit regarding common elements of
condominium or more than one unit).

                                              13

              Although we have determined that the HOA has the authority to pursue all of

the claims at issue in this case pursuant to West Virginia Code § 36B-3-102(a)(4), the fact

remains that the claims involve damages to both the common elements of the Complex and

individual units. Moreover, having carefully reviewed all of the statutory provisions, this

Court is cognizant of the fact that the Act provides no guidance or mechanism to handle these

types of cases and, further, offers no procedure to be utilized to approve any type of

settlement. Given these facts, this Court finds that the most prudent approach from this point

forward is to proceed in accordance with Rule 26 of the West Virginia Trial Court Rules.



              We are certainly mindful of the fact that “mass litigation” under Rule 26

contemplates “[t]wo (2) or more civil cases pending in one or more circuit courts,” and that

this case does not generally fit within that framework. W.Va. Tr. Ct. R. 26.04. However,

while there is technically only one plaintiff in this case, that plaintiff, the HOA, is

representing itself as well as its members–approximately 150 individuals and entities.

Furthermore, the HOA and its members have allegedly sustained varying damages–some

damages are common to each unit owner while other damages are specific to certain units.

Said another way, although there are not multiple lawsuits in this instance, this case does

involve multiple claims asserted on behalf of a large number of individuals and entities and

does involve common questions of law and fact. With this in mind, our Mass Litigation

Panel was created to deal with cases involving common questions of law or fact where large


                                             14

numbers of individuals have been potentially harmed, physically or economically. In re

Tobacco Litigation, 218 W. Va. 301, 311, 624 S.E.2d 738, 748 (Starcher, J., concurring);

W.Va. Tr. Ct. R. 26.04. Therefore, because there is no mechanism in the Act to deal with

this type of case, and because we do have a Mass Litigation Panel that was created to deal

with cases involving common questions of law and fact, we are compelled to exercise our

inherent authority pursuant to the Constitution of West Virginia and deem this matter suitable

for resolution under Rule 26. As we have explained, “‘General supervisory control over all

intermediate appellate, circuit, and magistrate courts resides in the Supreme Court of

Appeals. W.Va. Const., art. VIII, § 3.’ Syllabus Point 1, Carter v. Taylor, 180 W.Va. 570,

378 S.E.2d 291 (1989).” Syl. Pt. 2, Stern v. Chemtall, Inc., 217 W.Va. 329, 617 S.E.2d 876

(2005).



              We recognized in Chemtall, that “‘“[a] court ‘has inherent power to do all

things that are reasonably necessary for the administration of justice within the scope of its

jurisdiction.’ 14 Am. Juris., Courts, section 171.” Syllabus Point 3, Shields v. Romine, 122

W.Va. 639, 13 S.E.2d 16 (1940).’ Syllabus Point 1, State ex rel. Rees v. Hatcher, 214 W.Va.

746, 591 S.E.2d 304 (2003).” Syl. Pt. 3, 217 W.Va. at 331, 617 S.E.2d at 878. We further

stated that “the principle necessarily applies to this Court as the inherent power of the

judiciary has been well recognized in this jurisdiction. See e.g., Virginia Electric & Power

Co. v. Haden, 157 W.Va. 298, 306, 200 S.E.2d 848, 853 (1973); Syllabus Point 2, Frazee


                                             15

Lumber Co. v. Haden, 156 W.Va. 844, 197 S.E.2d 634 (1973).” Chemtall, 217 W.Va. at 337,

617 S.E.2d at 884. Therefore, “it is our task to supervise the administration of justice in the

circuit courts to ensure that fair standards of procedure are maintained.” Id. We find that the

only way to maintain fair standards of procedure in this instance is to transfer this case to the

Mass Litigation Panel.



              Having concluded that this case should proceed under Rule 26, we need not

answer the remaining certified questions. To the extent necessary, the issues raised in those

questions can be addressed by the Mass Litigation Panel. It is the Panel’s duty to “develop

and implement case management and trial methodologies to fairly and expeditiously resolve”

the matters before it. W.Va. Tr. Ct. R. 26.05. Nonetheless, given that this case is not typical

of the cases referred to the Mass Litigation Panel in that there are not multiple cases involved

but, rather, one case involving multiple individuals and entities represented by one party, we

believe that individual notice should be immediately given to all the members of the HOA

to make them aware of the existence of this lawsuit and to advise them that they are currently

represented by the HOA.10




       10
         We recognize that these notice provisions are not exclusive and that the Mass
Litigation Panel may add additional requirements as it deems necessary.

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                                      IV. Conclusion

              For the reasons set forth above, this Court finds it only necessary to answer the

following certified question:

              Is a Unit Owners’ Association an adequate representative when

              a lawsuit is instituted by a Unit Owners’ Association on behalf

              of two or more unit owners pursuant to W. Va. Code § 36B-3­
              102(a)(4) and the damages sought include unit specific damages

              affecting only individual units?


              Answer: Yes.


Because this case is before this Court upon questions certified from the circuit court, we will

not at this juncture transfer this matter to the Mass Litigation Panel. Rather, upon receipt of

a Motion to Refer to the Mass Litigation Panel as provided by Rule 26.06 from the circuit

judge, which should be filed and transmitted to the Clerk of this Court forthwith, the

appropriate action will be taken.

                                                                 Certified question answered.




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