                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS



James and Katheryn Broderick,                                                     FILED
                                                                                 June 24, 2013
Defendants Below, Petitioners                                               RORY L. PERRY II, CLERK

                                                                          SUPREME COURT OF APPEALS

vs) No. 12-1087 (Preston County 11-C-142)                                     OF WEST VIRGINIA




Big Bear Lake Property Owners Association, Inc.,
Plaintiff Below, Respondent


                             MEMORANDUM DECISION
        Petitioners James and Katheryn Broderick, by counsel Edward R. Kohout, appeal the
Circuit Court of Preston County’s order granting summary judgment to respondent. Respondent
Big Bear Lake Property Owners Association, Inc., by counsel Mark E. Gaydos, filed its
response.

       This 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.

        Petitioners bought a lot in Big Bear Camplands in 1972 and bought an adjoining lot in
1992. When they bought the original lot, they claim they were told by the owner that they could
build anything within reason on their lot. In 1972, Big Bear Lake Camplands established the
Declaration of Restrictions and Covenants specifically providing that lots shall only be used for
recreational vehicular purposes and that no permanent structures may be constructed on any lot,
with the exception of a storage unit not to exceed a specified size, which shall be susceptible of
removal and shall be of good appearance. The declaration reserved the right to make regulations
pertaining to permissible structures and regulations for the use of common recreational facilities
and areas. Regulations governing permissible structures were promulgated by respondent and
became effective on August 2, 1984. In 1988, building codes were enacted based on the authority
of the restrictive covenants. Respondent’s board of directors assumed the duties of enforcing the
regulations on August 1, 2001.

       In 2010, petitioners applied for and were granted a permit by Big Bear to build a roof and
supporting structure for their camper. The cost of construction was approximately $24,000.
Although the timeframe is disputed, at some point either during or upon completion of
construction, the Big Bear Board of Directors informed petitioners that the structure did not
comply with the building code and ordered that they either tear down the structure or make
changes to the same. When petitioners refused, respondent filed an action for injunctive relief

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seeking compliance with the regulations and declaration. The circuit court granted summary
judgment to respondent and ordered that petitioners take all steps necessary to comply with such
regulations and declaration within thirty days. Petitioners appeal that decision.

       “‘A circuit court’s entry of summary judgment is reviewed de novo.’ Syllabus point 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 4, Arnold v. Palmer, 224
W.Va. 495, 686 S.E.2d 725 (2009).

       If the moving party makes a properly supported motion for summary judgment
       and can show by affirmative evidence that there is no genuine issue of a material
       fact, the burden of production shifts to the nonmoving party who must either (1)
       rehabilitate the evidence attacked by the moving party, (2) produce additional
       evidence showing the existence of a genuine issue for trial, or (3) submit an
       affidavit explaining why further discovery is necessary as provided in Rule 56(f)
       of the West Virginia Rules of Civil Procedure.

Syl. Pt. 3, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). Moreover,
“the party opposing summary judgment must satisfy the burden of proof by offering more than a
mere ‘scintilla of evidence’ and must produce evidence sufficient for a reasonable jury to find in
a nonmoving party’s favor. Anderson [v. Liberty Lobby, Inc.], 477 U.S. [242] at 252, 106 S.Ct.
[2502] at 2512, 91 L.Ed.2d [202] at 214 [1986].” Williams, 194 W.Va. at 60, 459 S.E.2d at 337.

        On appeal, petitioners assert a single assignment of error: Because the question whether
petitioners’ structure amounts to a violation of the letter and spirit of respondent’s building codes
and restrictive covenants is a question of fact for the jury, the circuit court erred in granting
summary judgment. Petitioners contend that while the complaint should never have been filed,
genuine issues of material fact exist as to whether the structure truly deviates from the building
codes and whether respondent waived the enforcement of the building codes with respect to
petitioners by approving their building plan and allowing the structure to be built. They also
argue that the structure must be looked at to determine whether it enhances or detracts from the
overall look, appearance, and recreational essence of the campground. Petitioners also point out
that the building codes at issue were enacted in 1984, years after they bought their original lot in
1972.

        Respondent argues that the campground regulations contain certain restrictions to ensure
compliance with the prohibition of permanent structures contained in the declaration and to help
ensure and preserve the natural quality and aesthetic appearance of the subdivision. Respondent
asserts that petitioners built a permanent garage totally encapsulating their recreational vehicle in
direct contravention of the declaration and regulations. It also contends that petitioners presented
no evidence that the nonconforming structure complied with the same, so summary judgment
was appropriately granted. Respondents argue that in order to comply with the declaration,
regulations, and building permit granted to petitioners, petitioners need to remove portions of the
wood and/or siding and replace the same with screens. The record includes letters from
respondent to petitioners identifying the portions of the enclosure that need to be removed in
order to bring the structure into compliance with the declaration and regulations.



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        In granting summary judgment to respondent, the circuit court set forth findings of fact
and conclusions of law, including the following: respondent did not approve petitioners’
violations of the declaration and regulations, petitioners’ argument that the declaration has been
abandoned or waived fails as a matter of law, petitioners’ violative structure is not entitled to
“grandfathered” status, and respondent has the power and authority to enforce the declaration
and regulations. Throughout its order, the circuit court found that there was no genuine issue of
material fact as to these issues.

        Based upon our review of the facts of this matter and the record before this Court, we
find that respondent presented a properly supported motion for summary judgment and
petitioners failed to produce more than a scintilla of evidence sufficient for a jury to find in their
favor. Petitioners argue that the structure they built does not detract from the look of the
campground; this does not create a genuine issue of material fact as to the structure’s compliance
with the regulations and declaration in place. In addition, there is no dispute that the applicable
regulations and declaration were in place prior to petitioners’ construction of the structure at
issue. Thus, the circuit court properly awarded summary judgment to respondent.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: June 24, 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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