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

> Intermediate Court of Appeals of West Virginia · July 30, 2024

URL: https://www.frixlaw.com/law-library/cases/10491536

## Case

- **Court:** Intermediate Court of Appeals of West Virginia
- **Decided:** July 30, 2024
- **Precedential status:** Published
- **Opinion:** Opinion
- **Nature of suit:** Tort, Contract, and Real Property
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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.

1
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.
3
According to the record, the fifth board member had recently resigned because she
had sold her home and moved out of the subdivision.
2
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

4
This Act is referenced by Crystal Lake’s bylaws.
3
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.”).

4
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

5
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

6
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.
7
“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

8
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.

6
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.
9
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.

10
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10491536. Public record. Not legal advice.