No. 17-0141 – Arthur L. Conkey, Jr. et al. v. Sleepy Creek Forest Owners Association, Inc. 

FILED 

April 11, 2018 

released at 3:00 p.m. 

EDYTHE NASH GAISER, CLERK 

SUPREME COURT OF APPEALS WALKER, J., concurring OF WEST VIRGINIA 

While I concur in the outcome reached by the majority, I write separately to 

express my concern with the majority’s analysis of the circuit court’s award of attorneys’ 

fees to Sleepy Creek Forest Owners Association (Association). 

Rather than rely on either West Virginia Code § 36B-3-116 (2011) or the 

Association’s Amendment to Declaration of Restrictions (Amended Declaration), I would 

affirm the attorneys’ fee award to the Association based on West Virginia Code § 36B-4-

117 (2011), which states: 

If a declarant or any other person[1] subject to this 

chapter fails to comply with any of its provisions or any 

provision of the declaration or bylaws, any person or class of 

persons adversely affected by the failure to comply has a claim 

for appropriate relief. Punitive damages may be awarded for a 

willful failure to comply with this chapter. The court, in an 

appropriate case, may award reasonable attorney’s fees. 

In this case, the Conkeys did not pay their assessments, failed to comply with 

the Amended Declaration, and adversely affected the Association and its members. Thus, 

1

 The Uniform Common Interest Ownership Act, West Virginia Code §§ 36B-1-101 

– 36B-4-120, defines “[p]erson” as an “individual, corporation, business trust, estate, trust, 

partnership, association, joint venture, government, governmental subdivision or agency, 

or other legal or commercial entity.” W. Va. Code § 36B-1-103 (2011). 
 

 

§ 36B-4-117 empowered the circuit court to deviate from our general rule that each litigant 

must bear his or her own costs2

 and award the Association its reasonable attorneys’ fees, if 

appropriate. The circuit court reasoned that if the Conkeys are not made to pay the 

Association’s reasonable attorneys’ fees, other Association members would be 

incentivized to ignore their assessments and pass the cost of the collection on to their 

neighbors. In light of those circumstances, I would find that the circuit court did not abuse 

its discretion under § 36B-4-117 by awarding the Association its reasonable attorneys’ fees. 

I would not rely on § 36B-3-116 or the Association’s Amended Declaration 

because the Association sued the Conkeys to recover the unpaid assessments, and not to 

enforce either the statutory lien on the Conkeys’ property created by § 36B-3-116(a) or the 

consensual, common law lien on the Conkeys’ property created by the Amended 

Declaration. Rather, the Association chose to sue the Conkeys to collect unpaid 

assessments, that is, to enforce the Conkeys’ promise to pay their assessments. 

This choice matters. Section 36B-3-116(f)3

 grants costs and reasonable 

attorneys’ fees to the prevailing party in an action brought pursuant to § 36B-3-116, that 

is, an action to enforce the statutory lien created by § 36B-3-116(a). Because the 

2 See Sally-Mike Prop. v. Yokum, 179 W. Va. 48, 50, 365 S.E.2d 246, 248 (1986). 

3

 Section 36B-3-116, subsection (f) states: “A judgment or decree in any action 

brought under this section must include costs and reasonable attorney’s fees for the 

prevailing party.” 

2 
 

Association sued to recover the Conkeys’ unpaid assessments, and not to enforce the lien 

upon their properties created by § 36B-3-116(a), they were not entitled to attorneys’ fees 

under § 36B-3-116(f). 

One reaches the same conclusion under the Amended Declaration, which 

states that “[a]ny assessment made pursuant to this paragraph [10D], including late fee of 

Five ($5.00) Dollars, interest at the rate of ten (10%) percent per annum from the date of 

delinquency, and reasonable attorney’s fees incurred in the collection thereof, shall 

constitute a lien on thie [sic] property . . . .” This language empowers the Association to 

recover its reasonable attorneys’ fees incurred in a collection action by enforcing a 

consensual, common lien.4

 It does not give the Association the contractual right to recover 

its fees in the course of the collection action, however. 

For those reasons, I would affirm the circuit court’s grant of reasonable 

attorneys’ fees to the Association pursuant to West Virginia Code § 36B-4-117, rather than 

for the reasons set forth by the majority. 

4 See Fleet v. Webber Springs Owners Ass’n, Inc., 235 W. Va. 184, 191, 772 S.E.2d 

369, 376 (2015) (affirming circuit court’s summary judgment finding that homeowners 

association had a valid common law lien against homeowners’ respective properties for 

unpaid homeowners association assessments). Moreover, it is also an open question as to 

whether such a fee-shifting provision is permissible under the West Virginia Consumer 

Credit Protection Act (WVCCPA). See id. at 194, 772 S.E.2d at 379 (declining to decide 

whether WVCCPA barred collection of attorneys’ fees by homeowners association 

incurred in action to enforce consensual, common law lien). 

3