1



### I N THE 

### I NTERMEDIATE 

### C OURT OF 

### A PPEALS OF 

### W EST 

### V IRGINIA

THE MOUNTAIN LODGE ASSOCIATION

, Plaintiff B elow, Petitioner

vs.) No. 2 3

- ICA

- 1 ( Cir. Ct. of Pocahontas Cnty. Case No. 38

- 2020

- C

- 24 )

SNOWSHOE MOUNTAIN, INC.

, Defendant B elow, Respondent

MEMORANDUM DECISION

Petitioner The Mountain Lodge Association (“Association”) appeals from the December 1, 2022, order of the Circuit Court of Poca hontas County

. Respondent Snowshoe Mountain, Inc. (“Snowshoe”) filed a response. 1 The Association filed a reply.

The issue on appeal is who is required to pay for maintenance and construction costs

of the common elements within the Snowshoe Mountain Lodge (“Lodge”). The circuit court granted summary judgment in favor of Snowshoe , finding that the Association was responsible for all costs associated with the common elements.

This Court has jurisdiction over this appeal pursuant to West Virgin ia 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 cour t’s order is appropriate under Rule 21 of the Rules of Appellate Procedure.

The facts of the case are undisputed. The Lodge was built in 1982 and sits on a 5.01

-

acre tract of land in Pocahontas County. The Lodge is a single four

- story structure. Its

grou nd floor consists of a conference center owned by Snowshoe . The remaining three

floors contain 229 condominium units known as the Mountain Lodge Condominium (“MLC”) that is governed by the Association. The MLC is a common ownership community that is govern ed by the Uniform Condominium Act (“UCA”), West Virginia Code §§ 36B

- 1

- 101 to

- 4

- 115 (1980). 2

1 The Association is represented by Mark A. Sadd, Esq.

, and Ramonda C. Marling,

E sq. Snowshoe is represented by Seth Hayes, Esq.

, and Dale H. Harrison, Esq.

2 In 1986, the Legislature replaced the UCA with the Uniform Common Interest Ownership Act, West Virginia Code §§ 36B

- 1

- 10 1 to

- 4

- 120 (1986). However , the UCA 

### FILED February 8, 2024

C. CASEY FORBES , CLERK

INTERMEDIATE COURT OF APPEALS

OF WEST VIRGINIA2

T he Association’s and Snowshoe’s obligations related to the Lodge are contained

in a collection of four documents , c ollectively referred to in the record as the “ P roject

D ocuments

. ” The P roject D ocuments were executed over forty years ago and related to the Lodge’s development and include : (1) the April 12, 1982

, deed from Snowshoe to

Commonwealth Group (“Commonwealth Deed”) for the tract upon which the Lodge was constructed ; 3 (2) the November 10, 1982

, deed from Commonwealth Group to Snowshoe

, conveying ownership of the conference center space (“Conference Center Deed”); (3) the

Declaration of the Mount ain Lodge Condominium (“Declaration”) , which established the

MLC and the Association ; and (4) the Development Agreement between Commonwealth Group and Snowshoe (“Development Agreement”). 4

Since 1982, the MLC and Snowshoe’s conference center have operated as separate

and distinct entities

. Despite operating under the Project Documents for decades , tensions arose between the parties when the Association asserted that Snowshoe should be contributing to costs associated with the common elements of the MLC

. This dispute resulted in the underlying litigation.

On January 29, 2021, the Lodge filed its second amended complaint containing ten claims for relief, which can be summarized as follows: Counts I through IV requested relief under the UCA; Count V sought relief under the common law principles regarding easements and servitudes; Count VI alleged breach of contract under the Conference Center Deed; Count VII alleged quantum mer u it; Count VIII claimed unjust enrichment; Count IX sought reformation of t he Conference Center Deed and the Declaration; and Count X sought re s cission of the Conference Center Deed. Cross

- summary judgment motions were eventually filed and later heard by the circuit court on May 19, 2021.

On December 1, 2022, the circuit court entered the order currently on appeal. Regarding Counts I through IV, t he circuit court found that the UCA set forth that it only applied to condominiums and that the c onference c enter did not meet the statutory
defin ition of a “condominium

, ” nor did it meet the definition of a condominium “unit.” See

W. Va. Code §§ 36B

- 1

- 103(7) and

- 103(23) (1980). Instead, the circuit court found that

applies to this case because it was the statutory scheme in effect when the Project Documents were drafted and signed.

3 Following a new survey, the parties executed a corrective deed on October 26

, 1982, to correct minor variances in the calls and distances for the boundari es of the 5.01

- acre tract. Otherwise, the deed remained unchanged.

4 The Commonwealth Group and Snowshoe Company were the original parties to these documents. Commonwealth Group was the developer of the project and transferred its rights to the Association. Snowshoe Company is now known as Snowshoe Mountain,

Inc.3

the Conference Center Deed and the Declaration clearly expressed that Snowshoe owne d

the conference center in fee, separate and apart from the MLC, and that Snowshoe was exempt from contributing to common element maintenance.

T he circuit court rejected the Association’s argument that the conference center
conveyance to Snowshoe was an a ttempt to evade the limitations of the UCA, and that the

conference center should be treated as a condominium. The circuit court found that this
argument was contrary to the clear intention of the parties when the Project Documents were signed . It also found that the Association had failed to set forth any authority to support its proposition

. The circuit court found that the legislative purpose of the UCA was to require full compliance with the statutory scheme by all condominiums subject to it, but not to require a property owner to place all its real property into a condominium form of ownership. See W . Va. Code § 36B

- 1

- 104 (1980).

The circuit court also found that by its terms, the UCA did not apply to any property
that was not subject to a declaration made pursuant to the UCA’s provisions. In this case,

it was determined that the conference center was clearly noted by the Declaration as being separate from the MLC. Further, u pon execution of the Con ference Center Deed, Snowshoe

owned the conference center and Commonwealth Group owned the remainder of the 5.01

- acre tract and used the UCA to create the MLC, which expressly excluded the conference

center. The circuit court held that the MLC’s creation d id not alter the legal relationship between Snowshoe and Commonwealth Group or their successors in interest, and that the

Association failed to set forth any authority to support its position that the UCA abrogated the common law relationship between the p arties. Ultimately, the circuit court concluded

that the UCA d id not govern the relationship between the parties and the Association was

not entitled re lief on t hose counts. 5

The circuit court next addressed common law principles regarding easements and servitudes as alleged in Count V. Here, the circuit court found the Association was not

entitled to relief because the Conference Center Deed established a contractual obligation

for the MLC as the servient estate

, to maintain any property subject to easements

. In other words, the circuit court determined that the clear language of the Conference Center Deed

created no contractual obligation for Snowshoe to contribute to any costs for the upkeep of those portions of the Lodge owned by the Association and that the Conference Center Deed expressly limit ed Snowshoe’s obligation to the conference center. The circuit court further concluded that it was not inequitable or unconscionable for Snowshoe to receive the benefit of the easements secured by its predecessor in title, without paying for their upkeep when

5 In addressing Counts I through IV of the second amended complaint, the circuit

court also addressed whether

, at common law, a party could own a spec ific portion or space within a structure, when that structure and the ground on which it is constructed is owned by another . However, because we resolve this case on other grounds, we do not need to address that ruling in this decision.4

the Conference Center Deed expressly placed that contractual obligation upon the MLC

and the Association

. Based upon this reasoning , t he circuit court also rejected the
Association’s breach of contract , quantum meruit, and unjust enrichment claim s raised in

Count s VI to VIII.

The circuit court also declined to reform or rescind the Conference Center Deed or Declaration as requested by the Association under Counts I X and X. First, the circuit court found that courts cannot reform contracts that plainly express the parties’ intentions. Next, it noted that rescission was a remedy vested in the sound discretion of a court and found

that b ecause the Association failed to establish that it was entitled to relief under any of its

claims

, re s cission was not an appropriate remedy

.

The circuit court awarded summary judgment to Snowshoe on each count in the second amended complaint and dismissed the case . This appeal followed.

Our review of a circuit court’s entry of summary judgment is de novo . Syl. Pt. 1, Painter v. Peavy , 192 W. Va. 189, 190, 451 S.E.2d 755, 756 (1994). In conducting a de

novo 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 tri ed 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)

. “ 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 favo r. ” Id. at 60, 459 S.E.2d at 337 (quotations and citations omitted).

On appeal, the Association raises several assignments of error. However, upon review, we find that resolution of this case rests on two dispositive issues: (1) whether the Project Docu ments create a contractual obligation for Snowshoe to contribute to the costs

of the MLC’s common elements ; and (2) whether the circuit court erred in its application

of the UCA. We will discuss these points separately.

Our first inquiry centers on the circuit court’s interpretation of the Project

Documents

. As previously established, these documents consist of the Commonwealth Deed, Conference Center Deed, Declaration, and the Development Agreement. Because the focus of the circuit court’s decision and the parties’ arguments on appeal rely on the language of the Conference Center Deed and the Declaration, those two Project Documents will be the focal point of our analysis.5

At t he outset, we note that at their core, the Conference Center Deed and Declaration

are viewed as contracts. See, e.g., Arnold v. Palmer , 224 W. Va. 495, 503, 686 S.E.2d 725, 733 (deeds are subject to the principles of interpretation and construction that go vern contracts generally) (quotations and citations omitted) ; Anania v. Snowshoe Mountain Inc.

, No. 13

- 0406, 2014 WL 2694219, at *3 (W. Va. May 30, 2014) (memorandum decision) (applying contract law to a condominium declaration); Maher v. Camp 4 Condo. Ass ’n

,

__ W. Va. __, 895 S.E.2d 836, 843 (W. Va. Ct. App. 2023) (affirming circuit court’s application of contract law to interpret a condominium declaration). Thus, we begin our analysis mindful of the following tenets of contract law:

In construing the terms of a contract, we are guided by the common

- sense canons of contract interpretation. One such canon teaches that contracts containing unambiguous language must be construed according to their plain and natural meaning. Payne v. Westo n, 195 W.Va. 502, 507, 466 S.E.2d 161, 166 (1985). Contract language usually is considered ambiguous where an agreement's terms are inconsistent on their face or where the phraseology can support reasonable differences of opinion as to the meaning of words employed and obligations undertaken

. . . . “A contract is ambiguous when it is reasonably susceptible to more than one meaning in light of the surrounding circumstances and after applying the established rules of
construction.” [ Williams , 194 W. Va. at 6 5, 4 5 9 S.E.2d at 342].

Frat ernal Ord

. of Police, Lodge No. 69 v. City of Fairmont, 196 W.Va. 97, 101, 468 S.E.2d 712, 716 (1996). “T he mere fact that parties do not agree to the construction of a contract does not render it ambiguous. The question as to w hether a contract is ambiguous is a question of law to be determined by the court. ” Syl. Pt. 1, Berkeley Cnty. Pub. Serv. Dist.

v . Vitro Corp. of Am. , 152 W. Va. 252, 162 S.E.2d 189 (1968). Moreover, “[t] he interpretation of [a] . . . contract, including t he question of whether the contract is ambiguous, is a legal determination that, like a lower court's grant of summary judgement,

shall be reviewed de novo on appeal. ” Syl. Pt. 2, in part, Riffe v. Home Finders Assocs.,

Inc. , 205 W. Va. 216, 217, 517 S.E.2 d 313, 314 (1999).

Upon review

, t he Conference Center Dee d expressly conveys

, through metes and bounds, the conference center portion of the Lodge to Snowshoe , its successors, grantees, and assigns. Further, t he Conference Center Deed reserved the remaining portions of the Lodge and the 5.01

- acre tract , which together make up the MLC, to the benefit of Commonwealth Group. The Conference Center Deed states that Commonwealth Group excepted and reserved certain rights to, and easemen ts for, specific uses of the conference center that are necessary for the joint ownership of the Lodge complex. This instrument also states that Commonwealth Group granted similar rights to Snowshoe with respect to the remaining portions of the Lodge.6

Th e Association contends that these provisions place a contractual obligation upon Snowshoe to contribute to the maintenance and upkeep costs of the MLC’s common elements ; however, no such obligation exist s . Instead, the Conference Center Deed firmly

establishes that Snowshoe owns the conference center ; the Association , as a successor in interest, owns all other portions of the Lodge (including the common elements) and adjoining 5.01

- ac re tract and that these areas are clearly defined by this instrumen t.

The Conference Center Deed also states that its grants, reservations, and exceptions “shall be appurtenant to the estate benefited thereby . . . but shall not also be for the benefit and the use of the burdened estate[.]” Its plain language further sets forth that its terms and
conditions run with the land and are intended to “inure to the benefit of the estate and the owner intended to benefit thereby and to bind and charge the estate and owner intended to be bound thereby[.]” Most significa ntly, the Conference Center Deed clearly states : “Each party hereto agrees to repair, replace, restore and maintain all those portions of the [Lodge] and equipment in connection therewith owned by it unless otherwise mutually agreed upon.” (emphasis added)

.

Even though the Conference Center Deed provides both Snowshoe and the Association with permissive rights of a ccess to each other’s property for the purposes of ingress and egress, including Snowshoe’s right to access the MLC’s common elements,

the Conference Center Deed contains no covenant or obligation for Snowshoe to contribute

to the costs associated with the common elements , nor does the Association have an obligation to contribute to those similar costs of the conference center. Rather, the

Conference Center Deed expressly states, in plain terms, that that parties clearly intended

for the Association to be solely responsible for the costs of repair, maintenance, and upkeep

of the MLC’s common elements. Similarly, the Conference C enter Deed establishes a clear intention to place this same obligation with respect to the conference center upon

Snowshoe

.

Likewise, the Declaration expressly incorporates the same grants, exceptions, and

reservations contained in the Conference Center D eed with respect to both the Commonwealth Group and Snowshoe. The Declaration excludes the conference center property from the MLC, and places no obligation upon Snowshoe, as the owner of the conference center, to contribute to the cost of the maintenance and upkeep of the MLC’s

common elements. Critically, Article I of the Declaration states that “[t]here is excepted from this submission and Declaration that portion of the aforesaid 5.01[

- ]acre tract known as the ‘Conference Center’ conveyed by

. . . [the Conference Center Deed].” Included in its description of the MLC, this Article states: “The Conference Center[,] which is not a part of the condominium but which has been deeded to Snowshoe Company and will be owned and operated by it and its successors, grantees and assigns is excluded from the

submission. ”7

Article III of the Declaration described the relationship between Snowshoe and the

Association as follows:

Except for certain easements appurtenant to the Condominium . . . unit

owners w ithin the Condominium will have no rights with respect to the

Conference Center which will not be a part of the Condominium and the owner of the Conference Center will have no rights with respect to the

Condominium and will not be responsible for payment o f any portion of the Condominium expenses normally incident to the ownership of a

condominium unit.

Further, Article IV of the Declaration defines the “units” and “common elements” comprising the MLC. It states that there shall be a maximum of 229 units within the MLC, consisting of “eight different [ unit ] types and Unit 139 [

. ] ” The conference center is not identified as a unit or type of unit, nor is any unit description consistent with the description of the conference center. Instead, the Declaration s tates “[t]he common elements of the [MLC] consist of all of the land making up the 5.01[

- ]acre tract except that portion which is part of the Conference Center[.]”

The Declaration assigns each condominium owner an undivided interest in the

common element s of the MLC based upon the square footage of his or her individual unit

, and an owner’s voting rights within the Association is equal to that undivided ownership

interest. The Declaration further provides: “ Each Unit Owner shall be liable for that portion of the Common Expenses equal to his unit’s percentage interest in the common elements. Likewise, each Unit Owner’s interest in any common surplus shall be equal to his interest

in the common elements. ”

These ownership interests are expressly listed within Exhibit 5 of the Declaration

for each of the 229 units

, totaling 100%. However, t he conference center is not included

within that list , nor does the document include the square footage of the conference center

in its calculation

. Moreover, t he Declaration also references four plats that were recorded

with the Declaration. The se plats illustrate the Lodge’s four floors and, a ccording to those plats, the conference center is excluded from the MLC.

The Declaration also unequivocally states that the common elements belong to MLC unit owners and that all costs related to the “maintenance, repair, replacement, preservation[,] and improvement of the common elements” are the responsibility of those

owners and the Association. Therefore, the Declaratio n imposes no legal obligation upon Snowshoe to assist with the costs of the common elements.

The final issue we must address is the circuit court’s application of the UCA. On this issue, the Association contends that the circuit court erred by not findi ng the c onference

c enter to be a “unit” as defined by the UCA, and by not finding that the UCA control led8

the creation of the c onference c enter as an integrated part of the Lodge

. Because these two arguments center on the application of statutory language, we turn our attention to the UCA to determine if its language encompasses the c onference c enter. We begin our analysis by noting, “[a] statutory provision which is clear and unambiguous and plainly expresses the legislative intent will not be interpreted by the courts but will be given full force and
effect.” Syl. Pt. 2, State v. Epperly, 135 W. Va. 877, 65 S.E.2d 488 (1951)

.

Regarding the scope of its applicability, West Virginia Code § 36B

- 1

- 102(a) (1980)

states that the UCA, “applies to al l condominiums created with in this State after the effective date of this chapter [July 1, 1980].” (emphasis added). T he UCA clearly defines a “condominium” to “mean real estate, portions of which are designated for separate ownership and the remainder of which is designated for common ownership solely by the owners of those portions. Real estate is not a condominium unless the undivided interest in

the common elements are vested in the unit owners

. ” W. Va. Code § 36B

- 1

- 103(7) (emphasis added)

. Under the UC A, a “unit owner” is:

[A] declarant who owns a unit , a person to whom ownership of a unit has been conveyed, or a lessee of a unit in a leasehold condominium . . . but does not include a person having an interest in a unit solely as security for an obligation.

W. Va. Code § 36B

- 1

- 103(24) (1980) (emphasis added). Further, a “unit” refers to “a portion of the condominium designated for separate ownership , the boundaries of which are described pursuant to [West Virginia Code § 36B

- 2

- 105(4) (1980) (requ iring condominium declarations to contain a description and identifying number of each condominium unit)]. ” W. Va. Code § 36B

- 1

- 103(23) (emphasis added).

The UCA’s language is clear and unambiguous and must be applied as written. Upon its application

, t he UCA does not apply to the c onference c enter , and the c onference

ce nter does not meet the definition of a unit or condominium under the UCA. Further, t he UCA only applies to condominiums whose real estate is designated solely for separate and

common owne rship by the condominium unit owners. Here, unlike the MLC, the

c onference c enter meets none of those requirements. The Conference Center Deed plainly

shows that the c onference c enter is owned separately by Snowshoe in fee and was not designated for division into individual units for separate ownership

.

Therefore, the UCA does not govern the c onference c enter or the parties’ contractual relationship

. As previously established, the Conference Center Deed and the Declaration

clearl y set forth that the Association owns the MLC portion of the Lodge, and that

Snowshoe owns the area designated as the c onference c enter. The c onference c enter does

not hold an ownership interest in the MLC or the Association as a condominium unit

owner. As such, the c onference c enter is not subject to the UCA , and its owner has no
statutory duty to contribute to the costs of the MLC’s common elements.9

In sum, there are no genuine issues of material of fact, and Snowshoe has no

contractual or statutory obligation to contribute to the costs associated with the MLC’s

common elements . B ecause the existence of such an obligation is paramount to the Association’s remaining claims in its second amended complaint, we do not need to

address the Associa tion’s other assignments of error.

Accordingly, we concur with the circuit court’s determination that summary judgment was appropriate and hereby affirm its December 1, 2022, order

.

Affirmed.

ISSUED: 

### February 8, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr Judge Charles O. Lorensen Judge Daniel W. Greear