Nick Bajada and Erin Bajada v. Crystal Lake Property Owners' Association, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED

July 30, 2024

NICK BAJADA and ERIN BAJADA,

ASHLEY N. DEEM, CHIEF DEPUTY CLERK

Defendants Below, Petitioners INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA

v.) No. 23-ICA-292 (Cir. Ct. of Jefferson Cnty., Case No. CC-19-2021-C-5)

CRYSTAL LAKE PROPERTY OWNERS’ ASSOCIATION, INC.,

Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioners Nick Bajada and Erin Bajada (“Bajadas”) appeal three orders from the

Circuit Court of Jefferson County: the January 10, 2023, order denying the Bajadas’ motion

to dismiss, the January 10, 2023, order granting Respondent Crystal Lake Property

Owners’ Association, Inc.’s (“Crystal Lake”) summary judgment on all claims, and the

June 15, 2023, final order awarding Crystal Lake damages and attorney’s fees. Crystal

Lake filed a response.1 The Bajadas filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-

11-4 (2022). After considering the parties’ arguments, the record on appeal, and the

applicable law, this Court finds no substantial question of law and no prejudicial error. For

these reasons, a memorandum decision affirming the circuit court’s orders is appropriate

under Rule 21 of the Rules of Appellate Procedure.

Established on May 2, 1983, Crystal Lake is a nonprofit corporation which operates

as the homeowners’ association of the Valley View subdivision. The subdivision was

created on June 7, 1972, and its plats were recorded with the County Clerk of Jefferson

County on August 29, 1974, and September 15, 1975. The plats reference jointly owned

community properties, including a 1.81-acre recreational reserve area (“Recreational

Area”). The Bajadas are members of Crystal Lake, having acquired Lots 31, 32, 35, and a

portion of Lot 33 within the subdivision on January 15, 2016. It is undisputed that the

subdivision is governed by Crystal Lake and that Crystal Lake has bylaws which provide

for its governance and management through a five-member board of directors.

On January 14, 2021, Crystal Lake filed a complaint against the Bajadas in circuit

court, seeking a declaratory judgment, injunctive relief, and damages, which resulted from

1

On appeal, the Bajadas are self-represented. Crystal Lake is represented by

Christopher K. Robertson, Esq., and Christopher P. Stroech, Esq.

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the Bajadas’ construction and use of an access road through the subdivision’s Recreational

Area. This construction resulted in the removal of several trees, vegetation, and topsoil.

The Bajadas stated they constructed the road to gain more convenient access to Lot 35

where they operated a farm for business purposes, and that they used the road as ingress

and egress to the farm for their vehicles and farm equipment.

On February 23, 2021, the Bajadas filed their answer and asserted a counterclaim,

alleging that Crystal Lake had breached various fiduciary duties it owed to Crystal Lake’s

members and sought court costs, attorney’s fees, and punitive damages. These alleged

violations included Crystal Lake’s failure to enforce its governing documents, failure to

limit expenditures, committing certain unauthorized actions without a vote of its members,

and committing several violations of the Uniform Common Interest Ownership Act, West

Virginia Code §§ 36B-1-101 to -4-120.

On August 23, 2022, Crystal Lake filed an amended complaint, adding a breach of

contract claim for the Bajadas’ failure to pay membership assessments for the past three

years. In total, the amended complaint alleged three causes of action: declaratory judgment

(Count I); trespass and damage to the subdivision’s community property (Count II); and

breach of contract (Count III). Crystal Lake sought injunctive relief, remediation costs for

the Recreation Area, judgment for the Bajadas’ unpaid membership assessments, and

attorney’s fees and costs. On September 7, 2022, the Bajadas filed an answer to the

amended complaint and reasserted their existing counterclaim.2

Crystal Lake filed a motion for summary judgment as to the Bajadas’ counterclaim

on October 5, 2022, and on October 10, 2022, it filed a motion for summary judgment on

its claims under the amended complaint. On October 19, 2022, the Bajadas, appearing self-

represented, filed a motion to dismiss, alleging for the first time that Crystal Lake did not

have the authority to file its original complaint in January of 2021 because at that time,

Crystal Lake’s five-member board only had four members.3 The Bajadas maintained that

the lack of a fifth member rendered Crystal Lake defunct and under its bylaws it had no

authority to take action until the board vacancy was filled.

On January 10, 2023, the circuit court entered two of the three orders now on appeal.

First, it entered its order denying the Bajadas’ motion to dismiss. In this order, the circuit

court found that notwithstanding its one vacancy, Crystal Lake’s bylaws and the provisions

2

Based upon the record, the Bajadas were represented by counsel for a portion of

this litigation. The record reflects that counsel filed the answer to the amended complaint

and answered some discovery requests. From the record, the Bajadas have appeared as self-

represented litigants since October 19, 2022.

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According to the record, the fifth board member had recently resigned because she

had sold her home and moved out of the subdivision.

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of the West Virginia Nonprofit Corporation Act state that only a majority of its governing

board is required to have a quorum.4 See W. Va. Code § 31E-8-824 (2002) (stating a

majority of board members constitutes a quorum and a majority vote constitutes an action

of the board). The circuit court determined that as a five-member board, three board

members constituted a quorum and were required to be present at meetings for Crystal

Lake to take official action and, thus, its four members had the authority to authorize the

filing of the original complaint on January 14, 2021.

The circuit court also entered its order granting Crystal Lake summary judgment on

its claims under the amended complaint, as well as on the Bajadas’ counterclaim. The

circuit court found that Crystal Lake was entitled to summary judgment on Counts I and II

of its amended complaint because the Bajadas had constructed an unauthorized road and

damaged the subdivision’s jointly owned community property. On this issue, the circuit

court also rejected the Bajadas’ claim that there was no language in their chain of title that

provided that the Recreational Area had to be used exclusively for recreational purposes,

prohibited construction of the road, or prevented them from taking unilateral action. In

support of their position, the Bajadas pointed to language from a corrective deed dated

November 7, 1975, which stated “common with the other lot owners the non-exclusive

right to use the two recreational reserves designated on the plat recorded in Plat Book 3, at

page 81.” The circuit court found that this language was the same ordinary use language

found in every deed conveying a lot within the Valley View subdivision, that the language

ensured each Crystal Lake member had the right to access the area for recreational use, and

that the language did not permit any individual member to unilaterally alter the area for

their own purposes, including the Bajadas’ construction of a road.

It was further determined that section 10.6 of Crystal Lake’s bylaws identifies the

Recreational Area and then provides “[a]ny proposed use of these properties above and

beyond that of normal recreational purposes shall require the approval of a majority of the

members of the association.” The circuit court found that the Bajadas admitted in their

deposition testimony that they constructed the road without first seeking permission of

Crystal Lake and its members, making the fact they took unauthorized action

uncontroverted. Likewise, it determined that the construction of a road for farming

purposes, vehicle use, or additional property access clearly constituted a use of the

Recreational Area that was outside the scope of normal recreational activities.

Next, the circuit court granted Crystal Lake summary judgment on its breach of

contract claim for the Bajadas’ unpaid membership assessments, noting that there was no

dispute that Crystal Lake had the authority to assess dues upon its members. Here, the

circuit court found that the Bajadas admitted in their deposition testimony that they paid

membership assessments from 2016-2018, but that they had not paid any dues from 2019

through 2022. As justification for nonpayment, the Bajadas both stated in their deposition

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This Act is referenced by Crystal Lake’s bylaws.

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that they were not paying assessments because, in their opinion, Crystal Lake was not

fulfilling its duties under the bylaws with respect to upkeep and maintenance of the

subdivision’s roads and community properties. The circuit court rejected that defense.

Instead, it found that Crystal Lake’s bylaws and amended articles of incorporation

contained express language which established its authority to assess dues and that its

members had a legal obligation to pay them.

Specifically, the circuit court noted that section 2.2 of Crystal Lake’s bylaws

provides for the assessment and collection of membership dues. Further, section III, subpart

(f) of the amended articles of incorporation provides:

Pursuant to such By-laws as [Crystal Lake] shall adopt and consistent with

legal deed requirements, to make rules and regulations for the assessment of

property owners in said subdivision for the maintenance of roads owned by

property for which a right of way has been granted by deed, for the

maintenance of community property, and for the taxes owned on community

property.

Based upon Crystal Lake’s authority to assess and collect dues from its members, and the

Bajadas’ admitted failure to pay their 2019-2022 assessments, the circuit court concluded

the Bajadas were properly assessed dues and that they were legally obligated to pay the

same but failed to do so, making summary judgment appropriate.

Turning to the Bajadas’ counterclaim, the circuit court found that they could not

establish the elements necessary to maintain a cause of action for breach of fiduciary duty.

See State ex rel. Affiliated Const. Trades Found. v. Vieweg, 205 W. Va. 687, 701, 520

S.E.2d 854, 868 (1999) (Workman, J., concurring) (observing that “[a]lthough [the

Supreme Court of Appeals of West Virginia] has not previously identified precisely the

elements of a cause of action for a breach of a fiduciary duty, courts have held that the

elements of such a cause of action are the existence of the fiduciary relationship, its breach,

and damage proximately caused by that breach.”). The circuit court determined that the

counterclaim was based upon bald assertions, without evidentiary support, and that mere

allegations could not preserve a claim or create a genuine issue of material fact. Further,

the Bajadas were not entitled to damages because their counterclaim only sought punitive

damages, but not compensatory damages, and our case law was clear that punitive damages

cannot be recovered when compensatory damages are not awarded. See Syl. Pt. 1, Garnes

v. Fleming Landfill, Inc., 186 W. Va. 656, 658, 413 S.E.2d 897, 899 (1991) (“Syllabus

Point 3 of Wells v. Smith, 171 W.Va. 97, 297 S.E.2d 872 (1982), allowing a jury to return

punitive damages without finding compensatory damages is overruled. Punitive damages

must bear a reasonable relationship to the potential of harm caused by the defendant’s

actions.”).

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Next, the circuit court determined that the Bajadas’ several Uniform Common

Interest Ownership Act (“Act”) claims failed because Crystal Lake was formed before the

Act became effective on July 1, 1986, and that the Act’s retroactive application was limited

to the thirteen sections identified under West Virginia Code § 36B-1-204(a) (1986). The

circuit court found that none of the Bajadas’ claims fell within those retroactive sections

and could not be maintained. See Galford v. Friend, 2014 WL 5311389, at *7 (W. Va. Oct.

17, 2014) (memorandum decision) (finding that only the thirteen sections identified under

West Virginia §36B-1-204(a) are retroactive and applicable to preexisting common interest

communities).

In this summary judgment order, the circuit court granted Crystal Lake summary

judgment on all of its claims and dismissed the Bajadas’ counterclaim with prejudice.

However, the order expressly stated it was not a final order because the circuit court had

not ruled on Crystal Lake’s requests for damages and attorney’s fees, which would be

determined following a subsequent evidentiary hearing.

The circuit court held an evidentiary hearing on damages on April 24, 2023. Crystal

Lake presented the testimony of H. Peddicord, an expert witness in forestry who had

inspected the Recreational Area and prepared a report regarding its restoration. This report

recommended the planting of shade tolerant trees, addition of topsoil, and the application

of herbicide. Crystal Lake also elicited the testimony of E. Washington, a landscape

engineer. Mr. Washington also inspected the Area and prepared a written report, which

made recommendations similar to Mr. Peddicord’s. Mr. Washington conservatively

estimated that restoration of the damaged area would cost $7,394.40 for supplies and labor.

At the time of his testimony, Mr. Washington testified that since the completion of his

report, supply costs had risen between fifteen to twenty percent.

Crystal Lake also presented the testimony of its president, J. Cummins. Mr.

Cummins prepared a dues statement, which stated that the Bajadas owed $7,098.94 for past

dues, plus interest. He testified that Mr. Bajada had refused to pay his assessments and told

Mr. Cummins that Crystal Lake would have to sue him. Mr. Cummins also testified as to

the soil and types of trees removed by the Bajadas; this included several photographs and

two videos of Mr. Bajada cutting the road through the Recreational Area. He further

indicated that Crystal Lake had yet to obtain an estimate for the herbicide treatment. Mr.

Cummins confirmed that Crystal Lake had incurred $16,654.77 in attorney’s fees as

reflected by the itemized fee petition filed by its counsel, but that those fees did not account

for the attorney’s fees incurred after the fee petition was filed, nor did it include attorney’s

fees for the insurance carrier’s counsel.

In its final order dated June 15, 2023, the circuit court noted its findings contained

in the January 10, 2023, summary judgment order. Based upon that ruling and the evidence

adduced on April 24, 2023, the circuit court awarded Crystal Lake $7,098.94 for the unpaid

assessments and $7,394.40 as a fair and reasonable repair cost for the Recreation Area. The

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circuit court then found that the Bajadas had acted in bad faith, vexatiously, wantonly, or

for oppressive reasons by their actions as shown by the videos in the record, as well as by

their documented displays of open hostility towards their neighbors and Crystal Lake’s

board members. It was also determined that the Bajadas lacked candor in this case and

acted with the intent to cause undue expense upon Crystal Lake. Based on those factors,

the circuit court found that the Bajadas’ conduct warranted an award of attorney’s fees and

costs to Crystal Lake in the amount of $16,654.77. The final order entered a joint and

several judgment against the Bajadas in the amount of $31,148.11. This appeal followed.

In this appeal, we are presented with three orders. The Bajadas first appeal the circuit

court’s order denying their motion to dismiss. In that regard, our standard of review is de

novo. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va.

770, 773, 461 S.E.2d 516, 519 (1995) (“Appellate review of a circuit court’s order granting

a motion to dismiss a complaint is de novo.”). The Bajadas also appeal the circuit court’s

January 10, 2023, and June 15, 2023, orders. These two orders constitute the circuit court’s

full adjudication on the issue of summary judgment and therefore we will consider them

together, applying a de novo standard of review. Syl. Pt. 1, Painter v. Peavy, 192 W. Va.

189, 190, 451 S.E.2d 755, 756 (1994) (“A circuit court’s entry of summary judgment is

reviewed de novo.”); Syl. Pt 3, Cox v. Amick, 195 W. Va. 608, 609, 466 S.E.2d. 459, 460

(1995) (“A circuit court’s entry of a declaratory judgment is reviewed de novo.”).

To begin, we note that the Bajadas’ brief contains sixteen assignments of error.

These alleged errors are not concisely set forth and significantly overlap. Therefore, where

necessary, we have consolidated these assignments of error. Upon review, we have

determined that three issues comprise the crux of the Bajadas’ appeal; those issues are that

the circuit court erred by (1) denying their motion to dismiss, (2) granting summary

judgment to Crystal Lake, and (3) failing to address conflicts of interest in the case.

We first address whether the circuit court erred when it denied the Bajadas’ motion

to dismiss. In their motion, the Bajadas’ sole argument was that pursuant to Crystal Lake’s

bylaws, its board of directors could not lawfully operate when its five-member board only

had four members. The circuit court denied the motion, finding that the board of directors

had a quorum pursuant to its bylaws and West Virginia Code § 31E-8-824. However, on

appeal, the Bajadas do not address the merits of the circuit court’s order, but rather, assert

for the first time on appeal that two sitting board members were still presiding on the board

after their elected terms had expired, and that no new election had been held. According to

the Bajadas, this made the board of directors’ vote to take legal action against them

fraudulent.

Critically, neither the four corners of the Bajadas’ motion to dismiss, nor the circuit

court’s order denying their motion addresses this issue. In fact, the Bajadas’ motion to

dismiss expressly alleges, in multiple paragraphs, that Crystal Lake’s board of directors

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was operating with “four active” board members. At no point in their motion do they allege

that any of those board members were improperly seated. Thus, we decline to consider this

argument on appeal. See Noble v. W. Va. Dep't of Motor Vehicles, 223 W. Va. 818, 821,

679 S.E.2d 650, 653 (2009) (citations and quotations omitted) (“Our general rule is that

nonjurisdictional questions ... raised for the first time on appeal, will not be considered.”);

PITA, LLC v. Segal, 249 W. Va. 26, ___, 894 S.E.2d 379, 393 (Ct. App. 2023) (noting that

as a general rule, an appellate court will not consider an issue raised for the first time on

appeal).

Instead, upon our review of Crystal Lake’s bylaws and West Virginia Code § 31E-

8-824, we agree with the circuit court’s finding that a sitting majority of Crystal Lake’s

board of directors constitutes a quorum and a majority vote of those members is required

for it to take official action. We also agree with the circuit court’s determination that a

proper quorum existed when the board of directors, by majority vote, instituted legal action

against the Bajadas. Therefore, we affirm the circuit court’s denial of the Bajadas’ motion

to dismiss.

Next, we address the Bajadas’ argument that the circuit court erred by granting

summary judgment to Crystal Lake on all claims and awarding damages. In their attack of

the circuit court’s summary judgment rulings, the Bajadas again raise several arguments

for the first time on appeal; however, for the reasons previously stated, the merits of those

arguments will not be addressed.5 Rather, we turn our attention to reviewing the arguments

that are evidenced from the record below. In our review, this Court applies the same

standard for granting summary judgment that a circuit court must apply, and that standard

states, “[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.” United Bank, Inc. v. Blosser, 218 W. Va. 378, 383, 624

S.E.2d 815, 820 (2005) (quoting Painter, 192 W. Va. at 190, 451 S.E.2d at 756, syl. pt. 2).

5

The following issues were not addressed in the circuit court’s order and the Bajadas

point to no evidence in the record to show that these arguments were properly raised below:

(1) Crystal Lake’s alleged failure to enforce violations of its bylaws against other members

estopped the board of directors from enforcing them against the Bajadas; (2) Crystal Lake

violated equal protection by its selective targeting of the Bajadas; (3) Crystal Lake’s failure

to sue the Bajadas’ farm, Peace Ridge Farm, LLC, and pierce its corporate veil, made them

personally immune from the circuit court’s imposition of damages; (4) there was no

evidence that they are members of Crystal Lake and, thus, are not subject to membership

assessments; (5) they are not subject to Crystal Lake’s bylaws because they were not

provided to them at the real estate closing when they purchased their subdivision property;

(6) Crystal Lake lacked authority to charge interest for outstanding membership dues; and

(7) the Bajadas had a right to cut any path they chose within the subdivision because

another subdivision resident uses a path from their property to access another lot within the

subdivision.

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“Summary judgment is appropriate if, from the totality of the evidence presented . . . the

nonmoving party has failed to make a sufficient showing on an essential element of the

case that it has the burden to prove.” Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.

Va. 52, 56, 459 S.E.2d 329, 333 (1995). “[T]he 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.” Id.

at 60, 459 S.E.2d at 337 (quotations and citations omitted).

The Bajadas first argue that they set forth sufficient evidence to establish genuine

issues of material fact as to both Crystal Lake’s claims and their counterclaim. We begin

by addressing Crystal Lake’s claims in its amended complaint. Upon review, we agree with

the circuit court’s determination that Crystal Lake was entitled to summary judgment on

Counts I and II. The record establishes that the subdivision’s plats clearly set forth that the

Recreation Area is jointly owned community property with the subdivision deeds including

a non-exclusive right of access to that area. Further, Crystal Lake’s bylaws plainly state

that no member may use the Recreation Area for anything other than normal recreational

purposes without prior approval of Crystal Lake and its members. Here, the Bajadas

admitted that they acted unilaterally and that the primary purpose of the road was for

ingress and egress to their farm, which they operate as a business.

Contrary to the Bajadas’ argument, like the circuit court, we also do not find that

the language in the 1975 Deed, or any other document in the record, creates a genuine issue

of material fact as to whether the Bajadas had the authority to unilaterally construct the

road without prior approval. Rather, we find no error in the circuit court’s determination

that no such authority exists. We are also unpersuaded by the Bajadas’ argument that the

circuit court erred by defining the term “normal recreational purposes” under Crystal

Lake’s bylaws to exclude their road. On this issue, the Bajadas fail to point to where the

definition of this term was put at issue below, but more importantly, on appeal, they do not

cite to any authority to support their contention that the circuit court erred in defining the

subject term. “Although we liberally construe briefs in determining issues presented for

review, issues which are not raised, and those mentioned only in passing but are not

supported with pertinent authority, are not considered on appeal.” State v. LaRock, 196 W.

Va. 294, 302, 470 S.E.2d 613, 621 (1996), (citing State v. Lilly, 194 W.Va. 595, 605 n. 16,

461 S.E.2d 101, 111 n. 16 (1995) (“casual mention of an issue in a brief is cursory treatment

insufficient to preserve the issue on appeal”). Because this issue was not properly

developed for appeal, we decline to address the same.

Moreover, “[w]hen a motion for summary judgment is made and supported . . . an

adverse party may not rest upon the mere allegations or denials of his pleading, but his

response . . . must set forth specific facts showing that there is a genuine issue for trial.”

Crain v. Lightner, 178 W. Va. 765, 768, 364 S.E.2d 778, 781 (1987). Here, the Bajadas’

response in opposition to summary judgment and their answers to interrogatories consist

of cursory statements and unsupported assertions as to all claims, none of which are

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sufficient to create a genuine issue of material fact. Therefore, we affirm the circuit court’s

rulings with respect to Counts I and II.

Likewise, we are also in agreement with the circuit court’s determination on Crystal

Lake’s breach of contract claim as set forth under Count III, regarding the Bajadas’ failure

to pay their membership assessments from 2019 to 2022. Looking to the record, the

Bajadas openly admitted during their depositions that they paid their assessments from

2016 to 2018 but refused to pay them from 2019 to 2022 because they were dissatisfied

with the road maintenance within the subdivision. We find no merit in that defense. First,

the Bajadas conceded at deposition that Crystal Lake has the authority under its bylaws

and amended articles of incorporation to assess its members with dues and assessments.

Moreover, upon our review of Crystal Lake’s bylaws and amended articles of

incorporation, we agree with the circuit court that Crystal Lake has the express authority

to impose and collect assessments from its members and that the Bajadas breached their

legal obligation to pay those assessments from 2019 to 2022. The Bajadas have failed to

set forth sufficient facts to overcome summary judgment; therefore, we affirm the circuit

court’s entry of summary judgment on this issue.6

Next, we address the circuit court’s award of damages and attorney’s fees. In its

order, the circuit court awarded Crystal Lake compensatory damages in the form of

$7,098.94 for the Bajadas’ unpaid assessments and $7,394.40 as the fair and reasonable

repair costs to restore the Recreation Area. It also awarded $16,654.77 in attorney’s fees.

From the outset, we note that the majority of the Bajadas’ arguments with respect to

damages were raised for the first time on appeal; as previously set forth, they will not be

considered. Having affirmed the circuit court’s entry of summary judgment on the breach

of contract claim, we find no error in the circuit court’s calculation of damages for the

Bajadas’ unpaid membership assessments. This amount is supported by the record from

the April 24, 2023, hearing, and the Bajadas do not offer a viable argument that is supported

by pertinent authority on appeal.

Turning to their remaining arguments, the Bajadas argue that the circuit court based

its award of damages to restore the Recreational Area upon false evidence, over their

objections, and that $7,394.40 goes beyond what is fair and reasonable to restore the

Recreational Area. We disagree and find no error in the circuit court’s damages calculation.

“In this jurisdiction the burden of proving damages by a preponderance of the evidence

rests upon the claimant[.]” Syl. Pt. 4, Sammons Bros. Const. Co. v. Elk Creek Coal Co.,

135 W. Va. 656, 65 S.E.2d 94 (1951). Further, “[t]he general rule with regard to proof of

damages is that such proof cannot be sustained by mere speculation or conjecture.” Syl. Pt.

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We also note that even if Crystal Lake was deficient in its performance of its

obligations, that would not justify one of its members engaging in self-help or non-payment

of dues or assessments. The proper remedy would be to either work within the remedies

available under bylaws or institute a civil action to enforce the bylaws.

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1, Spencer v. Steinbrecher, 152 W. Va. 490, 164 S.E.2d 710 (1968). Rather,

“[c]ompensatory damages recoverable by an injured party . . . must be proved with

reasonable certainty.” Syl. Pt. 3, Kentucky Fried Chicken of Morgantown v. Sellaro, 158

W.Va. 708, 214 S.E.2d 823 (1975). Upon review, we find the circuit court’s award of

$7,394.40 for restoration of the Recreation Area to be adequately supported by the record

and we decline to disturb this ruling on appeal.

The Bajadas challenge the circuit court’s imposition of attorney’s fees and costs.

Specifically, they maintain that there is no evidence in the record to support a finding that

they acted in bad faith, vexatiously, wantonly, or for oppressive reasons. “This Court

reviews an award of costs and attorney’s fees under an abuse of discretion standard.” Syl.

Pt. 2, Auto Club Prop. Cas. Ins. Co. v. Moser, 246 W. Va. 493, 874 S.E.2d 295 (2022); see

also Syl. Pt. 3, Bond v. Bond, 144 W. Va. 478, 109 S.E.2d 16 (1959) (“[T]he trial [court]

is vested with a wide discretion in determining the amount of . . . court costs and counsel

fees; and the trial [court’s] determination of such matters will not be disturbed upon appeal

to this Court unless it clearly appears that [it] has abused [its] discretion.”). The circuit

court found there was substantial evidence in the record to find that the Bajadas’ conduct

warranted an imposition of attorney’s fees and costs in this case. On this record, we see no

abuse of discretion by the circuit court in the amount of costs and attorney’s fees it awarded.

Next, we address the circuit court’s entry of summary judgment as to the Bajadas’

counterclaim. The circuit court found that the Bajadas’ bald assertions could not maintain

their counterclaim, that the Act’s provisions did not apply to Crystal Lake, and that the

Bajadas were not entitled to damages. On appeal, the Bajadas maintain that they set forth

sufficient facts to overcome summary judgment, the circuit court erred by finding the Act’s

provisions did not apply to Crystal Lake, and that they were not entitled to damages. We

are not persuaded by these arguments. Instead, we agree with the circuit court’s

observations in its summary judgment order. As previously noted, the Bajadas’ response

in opposition to summary judgment and their answers to interrogatories contain nothing

more than mere allegations, which is insufficient to withstand a motion for summary

judgment. Thus, they failed to set forth any facts to create any issue of material fact as to

their breach of fiduciary claim against Crystal Lake.

Further, we find no error in the circuit court’s finding that Crystal Lake was not

subject to the Bajadas’ claims under the Act. Instead, we find that in accordance with

Galford, that the Bajadas’ claims under the Act are barred because Crystal Lake was

created prior to the effective date of the Act, and that the Bajadas’ claims are not among

the retroactive provisions listed as applicable to preexisting common interest communities

under West Virginia Code § 36B-1-204. Galford, 2014 WL 5311389, at * 7. We also find

the circuit court correctly stated our law when it determined that the Bajadas’ failure to

plead compensatory damages foreclosed an award of punitive damages.

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In a parallel argument, the Bajadas also contend that summary judgment deprived

them of their constitutional right to a jury trial. We find no merit to this argument. For over

sixty years, our Supreme Court of Appeals has recognized:

The summary judgment procedure provided by Rule 56 of the West Virginia

Rules of Civil Procedure does not infringe upon the constitutional right of a

party to a trial by jury; it is not a substitute for a trial, or a trial either by a

jury or by the court of an issue of fact, but is a determination that, as a matter

of law, there is no issue of fact to be tried.

Syl. Pt. 7, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148 W. Va. 160, 161, 133 S.E.2d

770, 772 (1963). While the Bajadas’ pleadings made a demand for a jury trial, they were

not deprived of their constitutional right to the same. Rather, as the circuit court

determined, and we agree, the facts of this case do not create a genuine issue of material

fact to be tried. As such, we affirm the circuit court’s entry of summary judgment on all

issues.

As their final assignment of error, the Bajadas argue that the presiding judge had

conflicts of interest, which should have prevented his participation in the case. We decline

to address this argument. Not only is there no indication in the record that this issue was

raised below, but more importantly, this Court does not have jurisdiction over that issue

pursuant to Rule 17 of the West Virginia Trial Court Rules, which governs the process for

judicial disqualifications.

Accordingly, we find no error and affirm the circuit court’s orders dated January 10,

2023, and June 15, 2023.

Affirmed.

ISSUED: July 30, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr

Judge Charles O. Lorensen

Judge Daniel W. Greear

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