WEST VIRGINIA RECORD

CHARLESTON – Putnam Circuit Judge O. C. Spaulding did not understand the meanings of "must" and "any," all five Justices of the West Virginia Supreme Court of Appeals agreed in a May 10 decision.

They held that Spaulding should have awarded legal fees to a couple who blocked a $1,500 assessment from Stone Gate Homeowners Association.

Spaulding held that a law awarding legal fees to the prevailing party in a homeowner association suit applied only if the association started the suit.

The Justices couldn't figure out where he got that notion. They held that the law applied regardless of who brought the action or how. They directed Spaulding to award legal fees to Stone Gate homeowners Joseph Stever and Bonnie Stever.

The Stevers bought their home in 1999. When they bought it, they did not know that the sellers never paid a $1,500 buy-in fee.

They found out when the association tried to collect $1,500 from them.

To block the collection, they filed for declaratory judgment in 2003 under the West Virginia Uniform Common Interest Ownership Act. They argued that the former owners were responsible for the $1,500. They also argued that the association tried to enforce the assessment more than five years after it accrued.

In 2004, the association's board of directors filed lien notices for $1,500 against the Stevers with the county clerk. Spaulding ruled in 2006 that statutes of limitations ran out on both sides.

He held that the Stevers missed a one-year deadline on their personal action suit and the association missed a three-year cutoff on liens.

The Stevers moved for legal fees under a provision of the act that, "... judgment or decree in any action brought under this section must include costs and reasonable attorney's fees for the prevailing party."

Spaulding denied the motion.

He wrote that the law "... simply states that if a homeowner's association attempts to collect such assessment or fee in accordance with this section, the prevailing party is entitled to attorney's fees."

He wrote that the association did not avail itself of the law.

"Therefore, the Court finds that the plaintiffs are not entitled to recover attorney's fees," Spaulding wrote.

The Stevers appealed. Mark Sadd and Nicholas Casey Jr. of Charleston represented them. Ancil Ramey and Scott Johnson of Charleston represented Stone Gate Homeowners Association.

The Justices focused on the words "must" and "any" in the law.

Chief Justice Robin Davis quoted a 2004 opinion finding that, "Typically, the word 'must' is afforded a mandatory connotation."

"In common parlance, the adjective 'any' refers to 'all,'" she wrote. "The statutory language at issue does not make a distinction between actions initiated by an association to enforce an assessment and those initiated by a homeowner, as is the case herein, to challenge the propriety of an association's assessment."

She quoted from the law that its remedies "shall be liberally administered to the end that the aggrieved party is put in as good a position as if the other party had fully performed."