                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS
                                                                                      FILED
                                                                                      July 8, 2013
Keith William DeBlasio, Patricia A. Dilts, and                                  RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
Alan J. Dilts, Defendants Below, Petitioners                                      OF WEST VIRGINIA



vs.) Nos. 12-0652, 12-0686, and 12-0693 (Morgan County 11-C-31)

Cold Spring Forest Sec. 1 Homeowners
Association, Inc., a West Virginia corporation and
Estel Donald Lambert Jr., Plaintiffs Below,
Respondents

                                MEMORANDUM DECISION

        In the first of these consolidated appeals, Petitioner Keith William DeBlasio, pro se,
appeals a final order of the Circuit Court of Morgan County, entered May 7, 2012, dismissing him
as a defendant after finding that he was improperly joined as a party. In the other appeals,
Petitioner Alan J. Dilts and Petitioner Patricia A. Dilts each appeal the same final order that, with
respect to them, awarded summary judgment and, as a sanction, default judgment to Respondent
Cold Spring Forest Sec. 1 Homeowners Association, Inc. Petitioner Alan J. Dilts and Petitioner
Patricia A. Dilts also each appeal the circuit court’s May 25, 2012 order that denied their motions
for reconsideration. Respondents Cold Spring Forest Sec. 1 Homeowners Association, Inc. and
Estel Donald Lambert Jr., its president (collectively “respondents”), by counsel George I. McVey
and Joanna L-S Robinson, filed separate responses in each petitioner’s appeal.

       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.


        Petitioner DeBlasio is the stepson of Petitioner Alan J. Dilts and the son of Petitioner
Patricia A. Dilts. Petitioners have ownership interests in two lots in their subdivision and have
been engaged in various disputes with their homeowners association, Respondent Cold Spring
Forest Sec. 1 Homeowners Association, Inc. (“respondent association”). In the case now on
appeal, the respondent association sued Petitioner Alan J. Dilts and Petitioner Patricia A. Dilts for
damage caused to the graveled subdivision road in the amount $425 and for $200 in assessment
fees for the 2011 annual road assessment.

                                                -1­
        In their answers, the Diltses attempted to assert a third party complaint against Respondent
Lambert alleging that he was responsible for excessive gravel loss, trespassed on their property,
dumped snow and gravel onto their landscape, and struck Petitioner Alan J. Dilts. The Diltses also
alleged that Respondent Lambert was guilty of harassing Petitioner Patricia A. Dilts. The Diltses
attempted to assert a third party complaint against Nathan Brashears who, according the
respondent association’s complaint, damaged the gravel subdivision road while acting on behalf of
the Diltses or their tenant Petitioner DeBlasio.1

        On November 8, 2011, the circuit court joined Petitioner DeBlasio as an additional
defendant based upon a motion for joinder filed by Petitioner Patricia A. Dilts. Petitioner DeBlasio
then asserted a third party complaint against Respondent Lambert alleging that he was responsible
for the damage to the subdivision road, although it was unclear whether it was alleged that
Respondent Lambert was responsible for the damage as an individual or as an agent of the
respondent association.

        Petitioners appeared, pro se, and respondents appeared, by counsel, for a hearing on April
27, 2012. Although the hearing was a pretrial hearing, with trial set for May 9, 2012, the circuit
court concluded the hearing by instructing the parties to submit proposed findings of fact and
conclusions of law “with regard to today’s proceedings.” When Petitioner Patricia A. Dilts asked if
the circuit court was going to make certain findings before the trial would commence, the court
answered as follows: “Yes, ma’am. . . . I’m going to make findings of fact and conclusions [of
law].” Petitioner DeBlasio and Petitioner Patricia A. Dilts each submitted proposed orders to
dismiss the case on May 1, 2012. On May 3, 2012, the respondent association submitted proposed
findings of fact and conclusions of law. The following day, the respondent association filed a
motion for summary judgment.

        The circuit court entered its final order retiring the case from its active docket on May 7,
2012. The circuit court determined that the case was “ripe for adjudication.” With respect to
Petitioner DeBlasio, the circuit court found that he was improperly joined ruling that “[Petitioner]
DeBlasio is dismissed from this case along with any and all remaining claims and motions brought
by [Petitioner] DeBlasio.”2
          With respect to respondent’s claim that Petitioner Alan J. Dilts and Petitioner Patricia A.
Dilts owed $200 for the 2011 annual road assessment, the circuit court ruled that “summary
judgment must be granted for [respondent] for its claims for overdue assessment fees.”3 The
circuit court specifically found that respondent had both authority to collect the fees under the
       1
         Petitioner DeBlasio first had an ownership interest in a lot within the subdivision from
2001 to 2003. From July 2, 2010, Petitioner DeBlasio has had a diminutive fee simple interest in
the family’s two lots.
       2
          The circuit court indicated that it was dismissing Petitioner DeBlasio on its own initiative
pursuant to Rule 21 of the West Virginia Rules of Civil Procedure.
        3
          The circuit court indicated that it was granting summary judgment sua sponte, citing
Syllabus Point Four, Southern Erectors, Inc. v. Olga Coal Co., 159 W.Va. 385, 223 S.E.2d 46
(1976).

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Declaration of Covenants and Restrictions and the standing to sue for them. The circuit court also
noted that the respondent association is in good standing with the West Virginia Secretary of State
and found that contrary to Petitioners’ arguments, there was no cause to dissolve the respondent
association pursuant to West Virginia Code § 31E-13-1330.

        The circuit court also granted the respondent association summary judgment on the
Diltses’s counterclaim that it has failed to repay or credit any surplus funds remaining after
payment of or provision for common expenses. The circuit court ruled that any such claim “is
wholly without merit.”4

        The circuit court dismissed Petitioner Alan J. Dilts and Petitioner Patricia A. Dilts’s third
party complaints against Respondent Lambert and Mr. Brashears. With respect to Respondent
Lambert, the circuit court found that service of the Dilts’s third party complaint against him “was
never completed.” With respect to Mr. Brashears, the circuit court found that there is “no evidence
that service was attempted” and that “this claim appears to have been all but forgotten by
[Petitioners] Alan and Patricia Dilts, as well as [Petitioner] DeBlasio.”

        Also, the circuit court granted the respondent association default judgment, on its claim
that Petitioner Alan J. Dilts and Petitioner Patricia A. Dilts owed $425 for damage caused to the
graveled subdivision road, as a sanction against the Diltses’s “continued and serious misconduct.”
Among the misconduct, the circuit court noted, were the following: (1) asserting frivolous claims;
(2) making factual denials that lacked evidentiary support; (3) subpoenaing large numbers of
people unrelated to the litigation; (4) filing ethics complaints against respondents’ counsel; (5)
attempting to create conflicts of interest; (6) manipulating procedure to join Petitioner DeBlasio so
that he could act as their “attorney”; and (7) willfully deceiving the court.
        Petitioner Alan J. Dilts and Petitioner Patricia A. Dilts filed motions for reconsideration
that the circuit court denied in an order entered May 25, 2012. The circuit court found that the
Diltses advanced claims and/or factual allegations that it had already addressed. The circuit court
specifically referenced Petitioner Alan J. Dilts’s allegation that he, Alan J. Dilts, was not provided
an interpreter,5 but found that it was among the issues it had previously addressed. The circuit
court also noted Petitioner Patricia A. Dilts’s claim that ethics complaints were not filed against
       4
           The circuit court also noted that it would not address the issue of invalidated mechanic’s
liens because the doctrine of res judicata barred “any claims for alleged damages.” In related cases,
Petitioners contended that the mechanic’s liens were actually fraudulent common law liens.
However, the circuit court determined the liens involved were mechanic’s liens finding that “the
lien[s] . . . [are] statutory in nature despite the manner in which the County Clerk recorded [the
liens] or what the Clerk may have told [Petitioner] DeBlasio.” Petitioners appealed two orders of
the circuit court in those cases, including its ruling that the liens were mechanic’s liens; however,
because the liens at issue were invalidated, petitioners’ appeals were dismissed as moot. See In Re:
A Purported Lien or Claim Against Patricia Ann DeBlasio Dilts, Nos. 11-1523 and 12-0223, 2013
WL 1707695 (W.Va. Supreme Court, April 19, 2013). Therefore, the circuit court’s classification
of the liens as mechanic’s liens has now become final.
       5
           Petitioner Alan J. Dilts is deaf.

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both of respondents’ attorneys, but stated that “this Court took into account a litany of
[Petitioners]’s wrongdoings in coming to its decision to impose partial default judgment as a
sanction.”

        In his appeal, Petitioner DeBlasio appeals the final order. In their appeals, Petitioner Alan
J. Dilts and Petitioner Patricia A. Dilts appeal both the final order and the subsequent denial of
their motions for reconsideration. All three petitioners make numerous assignments of error.

                  PETITIONERS’ OBJECTION TO GEORGE I. MCVEY

               AND HIS LAW FIRM’S REPRESENTATION OF RESPONDENT


        Petitioner DeBlasio and Petitioner Patricia A. Dilts raise this issue. Respondents argue that
the circuit court properly allowed their choice of legal representation. This issue was addressed in
a related case between Petitioner DeBlasio and respondents. In that case, in affirming the circuit
court, this Court concluded, inter alia, that “the circuit court did not err in overruling [Petitioner]
DeBlasio’s objection to [respondents’] legal representation.” DeBlasio v. Stone, Nos. 11-1152 and
11-1153, 2012 WL 6097653, at *4 (W.Va. Supreme Court, December 7, 2012) (memorandum
decision). Because this issue has been previously adjudicated, this Court concludes that it is
without merit.6

           INTERPRETING SERVICES PROVIDED TO PETITIONER ALAN J. DILTS

         All three petitioners raise this issue. Petitioners note that Petitioner Alan J. Dilts was not
provided with an interpreter at the November 30, 2011 hearing. They also argue that he should
have had an interpreter for proceedings outside of the courtroom that were connected to the
litigation. Respondents argue the circuit court’s rulings on this issue were proper. A proper request
for an interpreter was not made with respect to the November 30, 2011 hearing. The transcript of
that hearing has been reviewed. Petitioner Alan J. Dilts was not prejudiced by not having an
interpreter. There was a discussion about when and where an interpreter should be provided to
him. Following the November 30, 2011 hearing, an interpreter was appointed for Petitioner Alan J.
Dilts. The interpreter was in attendance when Petitioner Alan J. Dilts’s wife was deposed on
January 17, 2012. Petitioner Alan J. Dilts himself was not deposed. After careful consideration,
this Court concludes that the circuit court properly addressed this issue once it was made aware of
it.7

                            CIRCUIT COURT’S SANCTIONING OF
       6
         To the extent that there is a separate issue with respect to counsel’s representation of both
the respondent association and its president, Respondent Lambert, that issue is addressed in the
final order where the circuit court discusses whether default judgment should be entered as a
sanction against Petitioner Alan J. Dilts and Petitioner Patricia A. Dilts.
       7
          Petitioner Alan J. Dilts further argues that he should have been provided with an attorney
to represent his interests. However, in purely civil matters, “we ordinarily do not appoint counsel
for, or direct that counsel should be appointed for, pro se litigants.” White v. Haines, 217 W.Va.
414, 423, 618 S.E.2d 423, 432 (2005).
                                                  -4­
       PETITIONER PATRICIA A. DILTS AT THE NOVEMBER 30, 2011 HEARING

        Petitioner Patricia A. Dilts raises this issue. At the November 30, 2011 hearing, the circuit
court sanctioned Petitioner Patricia A. Dilts in the amount of $978.70 for not appearing for her
deposition that was noticed for September 22, 2011. Petitioner Patricia A. Dilts argues that the
circuit court should not have sanctioned her. Respondents argue that Petitioner Patricia A. Dilts
was properly sanctioned for not attending the deposition. At the hearing, respondents asked for
approximately $4,130 in attorney’s fees and costs for the non-attendance. However, the circuit
court declined to award expenses for Respondent Lambert’s attendance at the deposition because
he did not need to be there. The circuit court also reduced the attorney’s fees to $800 because much
of the preparation would have needed to have been done anyway. Therefore, the circuit court
awarded a total of $978.70, the attorney’s fees plus fees for the court reporter. “An attorney’s fee
awarded as a sanction that explicitly is authorized by Rule 37(b) of the West Virginia Rules of
Civil Procedure rests in the sound discretion of the trial court, and the exercise of that discretion
will not be disturbed on appeal except in cases of abuse.” Syl. Pt. 4, Bartles v. Hinkle, 196 W.Va.
381, 472 S.E.2d 827 (1996). After careful consideration, this Court concludes that the circuit court
did not abuse its discretion in sanctioning Petitioner Patricia A. Dilts in the amount of $978.70.

           CIRCUIT COURT’S DENIAL OF MOTIONS FOR RECONSIDERATION

         Petitioner Alan J. Dilts and Petitioner Patricia A. Dilts appeal the denial of their motions
for reconsideration. Respondents argue that the circuit court properly denied the Diltses’s motions.
The circuit court found that the motions were timely filed under Rule 59(e) of the West Virginia
Rules of Civil Procedure. Rule 59(e) “provides the procedure for a party who seeks to change or
revise a judgment entered as a result of a motion to dismiss or a motion for summary judgment.”
Syl. Pt. 4, James M.B. v. Carolyn M., 193 W.Va. 289, 456 S.E.2d 16 (1995). Because summary
judgment is reviewed de novo, we review the Diltses’s Rule 59(e) motions under that standard. See
Syl. Pt. 1, Wickland v. American Travellers Life Insurance Co., 204 W.Va. 430, 513 S.E.2d 657
(1998). However, even under plenary review, it is clear that the motions lack merit. As noted by
the circuit court, both motions advanced claims and/or factual allegations that it had already
addressed. Therefore, after careful consideration, this Court concludes that the circuit court did
not err in denying Petitioner Alan J. Dilts and Petitioner Patricia A. Dilt’s motions for
reconsideration.
         With respect to all other non-frivolous issues raised,8 we hereby adopt and incorporate the
circuit court’s well-reasoned findings and conclusions as to the assignments of error raised in these
consolidated appeals. The Clerk is directed to attach a copy of the circuit court’s final order to this
memorandum decision.

       For the foregoing reasons, we find no error in the decisions of the Circuit Court of Morgan
County. We affirm both the circuit court’s May 7, 2012 final order and its May 25, 2011 order
denying Petitioner Alan J. Dilts and Petitioner Patricia A. Dilts’s motions for reconsideration.



       8
         Some of Petitioners’ assignments of error are wholly frivolous and, therefore, do not
merit any discussion.
                                             -5­
                                        Affirmed.

ISSUED: July 8, 2013

CONCURRED IN BY:

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




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