# Foster v. Orchard Development Co., LLC

> West Virginia Supreme Court · November 23, 2010 · 227 W. Va. 119

URL: https://www.frixlaw.com/law-library/cases/9719324

## Case

- **Full name:** Jason FOSTER, Plaintiff Below, Appellant v. ORCHARD DEVELOPMENT COMPANY, LLC, a West Virginia Limited Liability Company, and Peteler, LLC, a West Virginia Limited Liability Company, Defendant Below, Appellee
- **Court:** West Virginia Supreme Court
- **Decided:** November 23, 2010
- **Citations:** 227 W. Va. 119; 705 S.E.2d 816; 2010 W. Va. LEXIS 145
- **Precedential status:** Published
- **Opinion:** Concurrence by Ketchum
- **Judges:** Ketchum
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9719324

## How later opinions describe it (automated extraction)

- holding a “Design Guideline” was not a part of the covenant because it was “specifically define[d] the Design Guidelines as a document established separately by the Property Owners Association”
- rejecting the argument that a planned community’s design guidelines were part of the planned community’s declaration of binding covenants in part because the design guidelines were set out in a separate document

## Opinion text

KETCHUM, J.,
concurring:
I agree with our decision which is based on the single issue argued in this case, i.e., whether the covenants and design guidelines adopted and published by the developer allowed the developer to later unilaterally reduce the size of the residences to be built in the subdivision.
I am writing to point out that our decision does not extinguish causes of actions by a purchaser to enforce sales brochures or similar materials. The law has long recognized that purchasers will ordinarily rely on sales and promotional materials rather than attempt to interpret the legalese in complicated development covenants and design guidelines. Promissory estoppel, fraudulent misrepresentation, and other causes of action based on sales brochures and similar material are still viable.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9719324. Public record. Not legal advice.