IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term

_____________________

No. 18-0040

_____________________

JAMES A. DAILEY, III, NICOLE DAILEY, 

TRAVIS A. HILL, AND SCARLETT J. HILL,

Plaintiffs Below, Petitioners

v.

AYERS LAND DEVELOPMENT, LLC; A AND A HOMES, INC.;

AYERS BUILDERS, INC.; ROGER E. AYERS; JERRY A. AYERS;

RJM HOLDINGS, LLC; FRYE CONSTRUCTION, INC.; AND MICHAEL E. FRYE,

Defendants Below, Respondents

___________________________________________________________

Appeal from the Circuit Court of Berkeley County

Honorable Christopher C. Wilkes, Judge

Civil Action No. 15-C-59

REVERSED AND REMANDED

_________________________________________________________

Submitted: February 13, 2019

Filed: March 15, 2019

Susan R. Snowden, Esq.

Jackson Kelly PLLC

Martinsburg, West Virginia

Attorney for Petitioners

FILED

March 15, 2019

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
J. Victor Flanagan, Esq.

Matthew R. Whitler, Esq.

Benjamin P. Warder, Esq.

Pullin, Fowler, Flanagan, Brown & Poe, PLLC

Martinsburg, West Virginia

Attorneys for Ayers Land Development, LLC; A and A Homes, Inc.; Ayers Builders, Inc.;

Roger E. Ayers; and Jerry A. Ayers

Christopher C. Luttrell, Esq.

Luttrell LC

Martinsburg, West Virginia

Attorney for Frye Construction, Inc., and Michael E. Frye

JUSTICE HUTCHISON delivered the Opinion of the Court.
i

SYLLABUS BY THE COURT

1. “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.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed.

Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). 

2. “The circuit court’s function at the summary judgment stage is not to 

weigh the evidence and determine the truth of the matter, but is to determine whether there 

is a genuine issue for trial.” Syl. Pt. 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 

(1994). 

3. “‘A joint venture or, as it is sometimes referred to, a joint adventure, 

is an association of two or more persons to carry out a single business enterprise for profit, 

for which purpose they combine their property, money, effects, skill, and knowledge. It 

arises out of a contractual relationship between the parties. The contract may be oral or 

written, express or implied.’ Syl. pt. 2, Price v. Halstead, 177 W.Va. 592, 355 S.E.2d 380 

(1987).” Syl. Pt. 5, Armor v. Lantz, 207 W.Va. 672, 535 S.E.2d 737 (2000). 

4. “‘While, legally speaking, a corporation constitutes an entity separate 

and apart from the persons who own it, such is a fiction of the law introduced for purpose 

of convenience and to subserve the ends of justice; and it is now well settled, as a general 
ii

principle, that the fiction should be disregarded when it is urged with an intent not within 

its reason and purpose, and in such a way that its retention would produce injustices or 

inequitable consequences.’ Syl. pt. 10, Sanders v. Roselawn Memorial Gardens, [Inc.,]

152 W.Va. 91, 159 S.E.2d 784 (1968).” Syl. Pt. 2, Laya v. Erin Homes, Inc., 177 W.Va. 

343, 352 S.E.2d 93 (1986). 

5. “W.Va. Code § 31B-3-303 (1996) (Repl. Vol. 2009) permits the 

equitable remedy of piercing the veil to be asserted against a West Virginia limited liability 

company.” Syl. Pt. 5, Kubican v. The Tavern, LLC, 232 W.Va. 268, 752 S.E.2d 299 (2013). 

6. “‘[T]o “pierce the corporate veil” in order to hold the shareholder(s) 

actively participating in the operation of the business personally liable . . . , there is 

normally a two-prong test: (1) there must be such unity of interest and ownership that the 

separate personalities of the corporation and of the individual shareholder(s) no longer exist 

(a disregard of formalities requirement) and (2) an inequitable result would occur if the 

acts are treated as those of the corporation alone (a fairness requirement).’ Syllabus point 

3, in part, Laya v. Erin Homes, Inc., 177 W.Va. 343, 352 S.E.2d 93 (1986).” Syl. Pt. 6, 

Kubican v. The Tavern, LLC, 232 W.Va. 268, 752 S.E.2d 299 (2013). 

7. “To pierce the veil of a limited liability company in order to impose 

personal liability on its member(s) or manager(s), it must be established that (1) there exists 

such unity of interest and ownership that the separate personalities of the business and of 
iii

the individual member(s) or managers(s) no longer exist and (2) fraud, injustice, or an

inequitable result would occur if the veil is not pierced.” Syl. Pt. 7, in part, Kubican v. The 

Tavern, LLC, 232 W.Va. 268, 752 S.E.2d 299 (2013). 

8. “The propriety of piercing the corporate veil should rarely be 

determined upon a motion for summary judgment. Instead, the propriety of piercing the 

corporate veil usually involves numerous questions of fact for the trier of the facts to 

determine upon all of the evidence.” Syl. Pt. 6, Laya v. Erin Homes, Inc., 177 W.Va. 343, 

352 S.E.2d 93 (1986).

9. “The law presumes that two separately incorporated businesses are 

separate entities and that corporations are separate from their shareholders.” Syl. Pt. 3, S.

Elec. Supply Co. v. Raleigh Cty. Nat’l Bank, 173 W.Va. 780, 320 S.E.2d 515 (1984). 

10. “[T]he failure of a limited liability company to observe the usual 

company formalities or requirements relating to the exercise of its company powers or 

management of its business may not be a ground for imposing personal liability on the 

member(s) or manager(s) of the company.” Syl. Pt. 7, in part, Kubican v. The Tavern, LLC, 

232 W.Va. 268, 752 S.E.2d 299 (2013). 
1

HUTCHISON, Justice:

Petitioners James and Nicole Dailey and Travis and Scarlett Hill appeal the 

December 19, 2017, order of the Circuit Court of Berkeley County certifying as final the 

prior orders that granted summary judgment to the respondents, Ayers Land Development, 

LLC; A and A Homes, Inc.; Ayers Builders, Inc.; Roger E. Ayers and Jerry A. Ayers 

(hereinafter collectively “Ayers respondents”); Frye Construction, Inc., and Michael E. 

Frye, in this civil action arising out of the modification of covenants pertaining to a 

residential subdivision developed by RJM Holdings, LLC (“RJM”).

1

 In this appeal, the 

petitioners assert several assignments of error but primarily contend that the circuit court 

erred by granting summary judgment because genuine issues of material fact exist 

regarding whether the respondents were engaged in a joint venture with RJM to develop 

the subdivision and whether the veils of the respondent corporations and limited liability 

companies should be pierced to hold Roger Ayers, Jerry Ayers, and Michael Frye,

personally liable. 

Upon consideration of the parties’ briefs and oral arguments, the submitted 

record, and the applicable authorities, this Court finds merit to the petitioners’ arguments. 

 

1 Although RJM is named as a respondent in this appeal, the circuit court rulings at 

issue do not address any of the petitioners’ claims against RJM. All of the petitioners’ 

claims against RJM remain pending below. Accordingly, reference to the “respondents”

in this opinion means the Ayers respondents, Frye Construction, and Michael E. Frye, 

collectively. 
2

Accordingly, for the reasons set forth below, the circuit court’s final order is reversed, and 

this case is remanded for further proceedings consistent with this opinion. 

I. Facts and Procedural Background

Respondents Roger Ayers and Jerry Ayers are brothers who are engaged in 

the business of real estate development and construction of residential homes. To facilitate 

their business, they have formed multiple limited liability companies and corporations 

including Ayers Holdings, LLC, whose sole members are Roger Ayers and Jerry Ayers; 

Ayers Land Development, LLC, whose sole members are Jerry Ayers and his wife, 

Deborah Ayers; Ayers Builders, Inc., with Jerry Ayers as president and his wife, Deborah 

as vice president; and A and A Homes, Inc., with Roger Ayers as president and Jerry Ayers 

as vice president. Ayers Holdings and Ayers Land Development are holding companies 

for real estate; Ayers Builders and A and A Homes are home contractors. Michael Frye is 

also a real estate developer and home builder. His business is Frye Construction, Inc.

In November 2004, Ayers Holdings and Michael Frye formed RJM for the 

purpose of developing a 117-acre tract of land in Berkeley County into a residential 

subdivision known as Brookside. Michael Frye has a fifty percent interest in RJM, and 

Ayers Holdings owns the other fifty percent. To finance the project, RJM secured a $2.4 

million dollar bank loan, which Roger Ayers, Jerry Ayers and Michael Frye personally 

guaranteed. 
3

On May 30, 2007, RJM recorded a series of final plats for Brookside that 

created thirty-eight individual single family lots at least one acre in size with common 

areas, shared roads, and a parcel for future development. Brookside was marketed as a 

“premier, upscale subdivision.” To that end, RJM recorded a “Declaration of Covenants, 

Conditions and Restrictions for Brookside” in 2007 (“the 2007 Covenants”) in the Berkeley 

County Clerk’s Office. Pertinent to this case are the following requirements for Brookside 

homes set forth in the 2007 Covenants: 

All one-story Dwellings shall contain a minimum of 2,800 

square feet. All multiple-story Dwellings shall contain a 

minimum of 3,000 square feet, with at least 1,500 square feet 

on the first floor. Dimensions stated shall be exterior wall 

dimensions excluding basements, garages, decks, porches, 

eaves and other similar extension and overhangs. 

The exposed surface of all exterior walls of any building 

constructed upon any Lot may be clad with only the following 

materials: brick, stone, solid wood, or stucco. Without 

limitation of the foregoing, no vinyl or aluminum siding shall 

be permitted on any exterior wall, and no concrete shall be 

exposed. 

On June 29, 2007, Travis and Scarlett Hill purchased Lot No. 17 in Brookside

for $154,900. They were provided a copy of the 2007 Covenants, but they have yet to

build a home on the lot they purchased. James and Nicole Dailey purchased Lot No. 18 in 

Brookside for $154,900 on July 6, 2007. They began construction of a home on their lot 

in August 2013 in accordance with the 2007 Covenants. 
4

Between 2008 and 2011, RJM only sold one lot in Brookside. In 2010, RJM 

began discussing amending the 2007 Covenants to lessen the restrictive uses in an effort to 

sell more lots. On April 16, 2013, RJM executed a Supplementary Declaration of 

Covenants, Conditions, and Restrictions (“the 2013 Covenants”) for Brookside which 

amended the 2007 Covenants by decreasing the required minimum square footage for 

homes and permitting the use of vinyl siding.2 According to the petitioners, they were not 

informed that the 2007 Covenants were going to be amended. In fact, the Hills maintain 

that they were never informed by RJM or any of the respondents of the amendments to the 

covenants prior to filing their complaint. The Daileys have stated that they received the 

2013 Covenants by email without any explanation on August 1, 2014, after leaving a 

 

2 The 2013 Covenants amended the requirements for residence sizes as follows:

All one story Dwellings shall contain a minimum of 1,800 

square feet. All multiple-story Dwellings shall contain a 

minimum of 2000 square feet with at least 1000 square feet on 

the first floor. Dimensions stated shall be exterior wall 

dimensions excluding basements, garages, decks, porches, 

eaves and other similar extensions and overhangs. 

With respect to exterior materials, the 2013 Covenants provided as follows:

Except as provided herein, the exposed surface of the exterior 

walls of any building constructed upon any Lot may be clad 

with only the following materials: brick, stone, solid wood, or 

stucco. Notwithstanding the foregoing, vinyl siding shall be 

permitted on the entire building. Aluminum siding is not 

permitted on any surface. Furthermore, the side and rear 

foundation may be exposed but must be painted to match the 

exterior of the building. The foundation of the front of the 

building must remain covered with brick, stone, solid wood, or 

stucco. 
5

voicemail for the respondents inquiring about homes being constructed in Brookside that 

did not comply with the 2007 Covenants. 

The petitioners contend that at least three homes have been built in Brookside 

that fail to comply with the 2007 Covenants. RJM has acknowledged that the houses on 

Lots 14 and 15 do not comply with the 2007 Covenants. The record shows that A and A 

Homes built the home on Lot 14. Michael Frye and Frye Construction completed the 

excavation for Lot 14, and Roger Ayers was the sewer installer. While the home on Lot 

14 was being built, Frye Construction was also doing excavation work for the Daileys. 

According to the Daileys, they asked Michael Frye about the square footage of the home 

being constructed on Lot 14. The Daileys contend that Michael Frye “evaded the question” 

and never mentioned that the 2007 Covenants had been amended. 

In 2015, separate complaints were filed by the Daileys and the Hills against 

RJM and Ayers and Ayers Holdings alleging, inter alia, civil conspiracy, fraud and breach 

of the covenants. The cases were consolidated by the circuit court. In August 2016, the 

petitioners sought leave to amend their complaints to add additional defendants, including

the Ayers respondents, Michael Frye, and Frye Construction. 3 The request to amend was 

 

3 The amended complaint also named as defendants all other persons and entities 

owning real property in Brookside. The circuit court ordered the petitioners to name these 

property owners as defendants, deeming their inclusion necessary for a complete 

adjudication of the petitioners’ declaratory judgment claims concerning the 2013 

Covenants. These defendants are not parties to this appeal. 
6

granted, and on January 18, 2017, the petitioners filed “Plaintiffs’ Consolidated Amended 

Verified Complaint.” The petitioners sought declaratory judgment, asking the court to find

that the 2013 Covenants “destroy[] the Community Standard and [are] void ab initio.” In 

addition, the petitioners sought to recover monetary damages for the actions taken by RJM 

and the respondents in executing the 2013 Covenants. The petitioners alleged that the 

respondents were members of a joint venture with RJM making them “jointly and severally 

liable for all acts and omissions of individual co-venturers as they relate to Brookside.” 

The petitioners also sought to pierce the veil of the respondent corporations and limited 

liability companies to hold Roger Ayers, Jerry Ayers, and Michael Frye personally liable. 

On April 19, 2016, Ayers and Ayers Holdings filed a motion for summary 

judgment seeking dismissal of the claims brought against it because of its status as a 

member of RJM. The circuit court granted the motion on February 13, 2017, concluding, 

“Any involvement by Defendant Ayers and Ayers Holding, LLC in enacting and signing 

documents was not done as a separate limited liability company entity, but rather in its 

official capacity as a member of RJM[.]” The petitioners have not appealed this order.4

 

4 During oral argument of this case, the petitioners’ attorney stated that the circuit 

court had failed to include the necessary language in the order granting summary judgment 

to Ayers and Ayers Holdings to make it a final appealable order. Accordingly, the decision 

remains as an interlocutory ruling that is not appealable at this juncture. See W.Va. R. Civ. 

Proc. 54(b); Syl. pt. 3, in part, Hubbard v. State Farm Indem. Co., 213 W.Va. 542, 584 

S.E.2d 176 (2003) (“An otherwise interlocutory order that is not expressly certified as final 

by using the language required by Rule 54(b) of the West Virginia Rules of Civil Procedure 

remains interlocutory so long as the affected party does not seek an appeal.”).
7

In September 2017, the parties began filing additional motions for summary 

judgment. Discovery was continuing, and a dispute arose between the petitioners and the 

Ayers respondents regarding withheld communications and other documents identified in 

a privilege log. The petitioners filed a motion to compel and sought an in-camera review 

of the withheld materials, asserting that the information contained therein supported their 

allegation that the Ayers companies were involved in Brookside. Despite the discovery 

dispute, the circuit court granted summary judgment on November 7, 2017, through 

separate orders to (1) the Ayers respondents; (2) Michael Frye; and (3) Frye Construction 

and dismissed them from the case. The circuit court then entered an order on November 

15, 2017, dismissing the petitioners’ motion to compel as moot. Finally, on December 19, 

2017, the circuit court entered its “Order Granting Motion to Certify as Final the Court’s 

Orders Granting Summary Judgment to Select Defendants.” This appeal followed. 

 

II. Standard of Review

We apply a de novo review to a circuit court’s grant of summary judgment. 

See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). It has long been 

established that “[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.” Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed.

Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963). This Court has explained that “[t]he 

circuit court’s function at the summary judgment stage is not to weigh the evidence and 

determine the truth of the matter, but is to determine whether there is a genuine issue for 
8

trial.” Painter, 192 W.Va. at 190, 451 S.E.2d at 756, syl. pt. 3. Therefore, “we must draw

any permissible inference from the underlying facts in the most favorable light to the party 

opposing the motion.” Williams v. Precision Coil, Inc., 194 W.Va. 52, 59, 459 S.E.2d 329,

336 (1995). Because 

[c]redibility determinations, the weighing of the evidence, and 

the drawing of legitimate inferences from the facts are jury 

functions, not those of a judge . . . [s]ummary judgment should 

be denied even where there is no dispute as to the evidentiary 

facts in the case but only as to the conclusions to be drawn 

therefrom.

Id. (internal quotations and citations omitted). With these standards in mind, we consider 

whether the circuit court erred in granting summary judgment to the respondents. 

III. Discussion

As set forth above, the petitioners argue that the circuit court erred by 

granting summary judgment because genuine issues of material fact exist with regard to 

whether the respondents were engaged in a joint venture with RJM to develop Brookside 

and whether the corporate veils of the respondent businesses should be pierced to hold 

Roger Ayers, Jerry Ayers and Michael Frye personally liable. We will separately consider 

these issues below, followed by a discussion regarding the other assignments of error 

asserted by the petitioners.
9

A. Joint Venture

The petitioners first contend that the circuit court erred by finding that they 

failed to establish the existence of a joint venture between the respondents and RJM to 

create, develop, and market Brookside. This Court has held that

“[a] joint venture or, as it is sometimes referred to, a 

joint adventure, is an association of two or more persons to 

carry out a single business enterprise for profit, for which 

purpose they combine their property, money, effects, skill, and 

knowledge. It arises out of a contractual relationship between 

the parties. The contract may be oral or written, express or 

implied.” Syl. pt. 2, Price v. Halstead, 177 W.Va. 592, 355 

S.E.2d 380 (1987).

Syl. Pt. 5, Armor v. Lantz, 207 W.Va. 672, 535 S.E.2d 737 (2000). This Court has also 

recognized that “[m]embers of a joint venture are . . . jointly and severally liable for all 

obligations pertaining to the venture, and the actions of the joint venture bind the individual 

co-venturers.” Id. at 678, 535 S.E.2d at 743. 

The petitioners contend that RJM is merely a “shell company” and that it 

could not have developed Brookside without the contributions and efforts of the 

respondents, which is the essence of a joint venture. To support their claim that the 

respondents were engaged in a joint venture with RJM to develop Brookside, the 

petitioners produced evidence showing that the Ayers respondents were involved in the 

marketing of the Brookside lots. In that regard, A and A Homes advertised Brookside on 

its websites and provided its own contact information for sales inquiries; A and A Homes 

exchanged communications regarding Brookside with realtors concerning lot sales and had 
10

a listing agreement with one realtor; and A and A Homes listed Brookside properties in its 

name with realtors to try to “help RJM move the lots.” In addition, the petitioners provided 

evidence that A and A Homes completed applications for names of roads within Brookside 

that were submitted to the county planning commission for approval. There was also 

evidence produced showing that Frye Construction performed the infrastructure work for 

Brookside at a cost of more than $500,000 and that A and A Homes and other Ayers 

respondents transferred funds to RJM to pay bills on a regular basis including the 

excavation costs paid to Frye Construction. The petitioners also presented evidence that 

the respondents were involved in the construction of the home on Lot 14 of Brookside, 

which does not comply with the 2007 Covenants. Finally, there was evidence showing that 

RJM uses the physical office location and staff of A and A Homes for RJM’s day-to-day 

operations although there is no agreement to do so and RJM does not pay rent. The 

petitioners maintain that this evidence created a genuine issue of material fact regarding 

the existence of a joint venture between the respondents and RJM to preclude summary 

judgment. 

Characterizing the evidence produced by the petitioners as “random facts,” 

the respondents maintain that the circuit court’s grant of summary judgment was proper

because the petitioners were unable to provide any evidence with respect to the essential 

elements of a joint venture, which as discussed in Armor, are an agreement to share profits 

and joint management and control of the business enterprise. 207 W.Va. at 678-80, 535 

S.E.2d at 743-45. Armor involved a legal malpractice suit brought by the clients of an 
11

attorney who served as local counsel for their out-of-state attorney in their underlying 

products liability action. The plaintiffs asserted that their local counsel and out-of-state 

attorney were engaged in a joint venture to represent them, and they sought to hold their 

local counsel liable for the alleged malpractice committed by their out-of-state attorney. 

Finding no evidence to show that the respondent local attorney had agreed to undertake 

active management and control of his clients’ lawsuit in federal court or sufficient evidence 

of an agreement to share in the profits and losses of the joint representation, we upheld the 

circuit court’s grant of summary judgment to the local attorney because the appellants did 

not “raise a triable issue of fact as to whether a joint venture existed.” Id. at 746, 535 S.E.2d 

at 681. Although we upheld the grant of summary judgment in Armor, we noted that 

“[w]hether or not a joint venture exists is normally a question to be answered by the trier 

of fact.” Id. at 678, 535 S.E.2d at 743. Indeed, this Court has recognized that “‘a plaintiff 

has a right to a jury trial upon the factual issues to determine whether a joint venture 

existed.” Bowers v. Wurzburg, 207 W.Va. 28, 37, 528 S.E.2d 475, 484 (1999) (quoting 

Lasry v. Lederman, 147 Cal.App.2d 480, 305 P.23d 663 (1957)). 

Unlike the appellants in Armor who essentially produced no evidence to 

support their joint venture theory other than the respondent attorney’s agreement to act as 

local counsel, the petitioners here have presented evidence that indicates the respondents 

took an active role in marketing the Brookside lots, transferred funds to RJM so that it 

could pay expenses, and performed construction work. This Court has recognized that 

contributions of “property, money, efforts, skill [and] knowledge,” raise a jury question 
12

regarding the existence of a joint venture. Sipple v. Starr, 205 W.Va. 717, 725, 520 S.E.2d 

884, 892 (1999) (citation omitted).

In Sipple, the administrator of the estate of a customer who was shot and 

killed by a convenience store employee brought suit against the convenience store, its

owner, and the gasoline supplier contending they were liable for the actions of their 

employee. One of the administrator’s theories of liability was that the defendants were 

engaged in a joint venture to operate the convenience store. This Court reversed the circuit 

court’s grant of summary judgment to the gasoline supplier on the administrator’s joint 

venture theory despite a lack of evidence that the gasoline supplier received any profit from 

the convenience store’s grocery and beer sales. Id. at 725, 520 S.E.2d at 892. Rejecting 

the gasoline supplier’s contention that there was no joint venture because there was no 

direct sharing of profits, this Court explained that “intrinsic to a joint venture[] is the 

concept of mutual efforts to promote the business, the success of which would accrue to 

the benefit of all parties[.]” Id. Elaborating further, we stated: 

To constitute a joint adventure the parties must combine their 

property, money, efforts, skill, or knowledge, in some common 

undertaking of a special or particular nature, but the 

contributions of the respective parties need not be equal or of 

the same character. There must, however, be some contribution 

by each party of something promotive of the enterprise.

Id. (quoting Pownall v. Cearfoss, 129 W.Va. 487, 497-98, 40 S.E.2d 886, 893 (1946)). 

Because the administrator produced evidence that the gasoline supplier provided property 

in the form of gas pumps and other equipment as well as “skill and knowledge in the sale 
13

of gasoline,” we concluded that summary judgment had been improvidently granted and 

that a jury should decide whether a joint venture existed. Id. at 725, 520 S.E.2d at 892; see 

also Herrod v. First Republic Mortg. Corp., Inc., 218 W.Va. 611, 621, 625 S.E.2d 373, 

383 (2005) (concluding “it should be up to a jury to determine whether there is sufficient 

evidence of a joint venture” between mortgagee and its assignee in predatory lending case); 

Bowers v. Wurzburg, 207 W.Va. 28, 38, 528 S.E.2d 475, 485 (1999) (finding that 

“percentage clause” in commercial lease raised question of fact regarding existence of joint 

venture between convenience store lessor and lessee). 

Given that the petitioners have produced substantial evidence that the 

respondents made contributions to promote the development of Brookside including 

marketing the lots, providing capital to pay RJM’s expenses, and performing actual 

construction work, we find that the circuit court erred by granting summary judgment to 

the respondents on the petitioners’ joint venture theory. As noted in Sipple, “[w]e are by 

no means suggesting that just any mutually beneficial commercial relationship . . . rises to 

the level of a joint venture.” 205 W.Va. at 725, 520 S.E.2d 892. However, based on the 

record before us, we find that the petitioners have raised sufficient genuine issues of 

material fact regarding the existence of a joint venture between the respondents and RJM 

to preclude summary judgment. 
14

B. Piercing the Corporate Veil

The petitioners also argue that the circuit court erred by finding that they 

failed to produce sufficient evidence to pierce the veil of the respondent corporations and 

limited liability companies to hold Jerry Ayers, Roger Ayers, and Michael Frye personally 

liable. This Court has recognized that “[a] corporate shield may . . . be ‘pierced’ to subject 

a sole shareholder to liability for corporate acts or to make a corporation liable for behavior 

of another corporation within its total control.” S. Elec. Supply Co v. Raleigh Cty. Nat’l 

Bank, 173 W.Va. 780, 787, 320 S.E.2d 515, 522 (1984). As we have explained:

While, legally speaking, a corporation constitutes an 

entity separate and apart from the persons who own it, such is 

a fiction of the law introduced for purpose of convenience and 

to subserve the ends of justice; and it is now well settled, as a 

general principle, that the fiction should be disregarded when 

it is urged with an intent not within its reason and purpose, and 

in such a way that its retention would produce injustices or 

inequitable consequences.” Syl. pt. 10, Sanders v. Roselawn 

Memorial Gardens, [Inc.,] 152 W.Va. 91, 159 S.E.2d 784 

(1968).

Syl. Pt. 2, Laya v. Erin Homes, Inc., 177 W.Va. 343, 352 S.E.2d 93 (1986). Likewise, we 

have acknowledged that “W.Va. Code § 31B-3-303 (1996) (Repl. Vol. 2009) permits the 

equitable remedy of piercing the veil to be asserted against a West Virginia limited liability 

company.” Syl. Pt. 5, Kubican v. The Tavern, LLC, 232 W.Va. 268, 752 S.E.2d 299 (2013). 

Whether the business is a corporation or a limited liability company, the same two-part test 

is applied to determine whether the veil may be pierced. As set forth in syllabus points six 

and seven, respectively, of Kubican, there is a “disregard of the formalities requirement”

and a “fairness requirement”: 
15

“[T]o ‘pierce the corporate veil’ in order to hold the 

shareholder(s) actively participating in the operation of the 

business personally liable . . . , there is normally a two-prong 

test: (1) there must be such unity of interest and ownership that 

the separate personalities of the corporation and of the 

individual shareholder(s) no longer exist (a disregard of 

formalities requirement) and (2) an inequitable result would 

occur if the acts are treated as those of the corporation alone (a 

fairness requirement).” Syllabus point 3, in part, Laya v. Erin 

Homes, Inc., 177 W.Va. 343, 352 S.E.2d 93 (1986).

To pierce the veil of a limited liability company in order 

to impose personal liability on its member(s) or manager(s), it 

must be established that (1) there exists such unity of interest 

and ownership that the separate personalities of the business 

and of the individual member(s) or managers(s) no longer exist 

and (2) fraud, injustice, or an inequitable result would occur if 

the veil is not pierced. 

Kubican, 232 W.Va. at 270, 752 S.E.2d at 301, syl. pts. 6 & 7, in part.

Application of the two-part test to determine whether to pierce the veil of a 

corporation or a limited liability company requires a fact-driven analysis that is specific 

to each case. Recognizing the multitude of considerations involved and the close 

scrutiny of the actions of the parties that is required, this Court has made clear that 

“decisions to look beyond, inside and through corporate facades must be made caseby-case, with particular attention to factual details.” S. Elec. Supply, 173 W.Va. at 787, 

320 S.E.2d at 523. Likewise, “the analysis necessary to [pierce the veil of an LLC] is 

fact based and must be applied to LLCs on a case-by-case basis[.]” Kubican, 232 W.Va.

at 280, 752 S.E.2d at 311. To make the determination, we have outlined some of the 

relevant factors to be considered, which include: 
16

(1) commingling of funds and other assets of the corporation 

with those of the individual shareholders;

(2) diversion of the corporation’s funds or assets to 

noncorporate uses (to the personal uses of the corporation’s 

shareholders);

(3) failure to maintain the corporate formalities necessary for 

the issuance of or subscription to the corporation’s stock, such 

as formal approval of the stock issue by the board of directors;

(4) an individual shareholder representing to persons outside 

the corporation that he or she is personally liable for the debts 

or other obligations of the corporation;

(5) failure to maintain corporate minutes or adequate corporate 

records;

(6) identical equitable ownership in two entities;

(7) identity of the directors and officers of two entities who are 

responsible for supervision and management (a partnership or 

sole proprietorship and a corporation owned and managed by 

the same parties);

(8) failure to adequately capitalize a corporation for the 

reasonable risks of the corporate undertaking;

(9) absence of separately held corporate assets;

(10) use of a corporation as a mere shell or conduit to operate 

a single venture or some particular aspect of the business of an 

individual or another corporation;

(11) sole ownership of all the stock by one individual or 

members of a single family;

(12) use of the same office or business location by the 

corporation and its individual shareholder(s);

(13) employment of the same employees or attorney by the 

corporation and its shareholder(s);
17

(14) concealment or misrepresentation of the identity of the 

ownership, management or financial interests in the 

corporation, and concealment of personal business activities of 

the shareholders (sole shareholders do not reveal the 

association with a corporation, which makes loans to them 

without adequate security);

(15) disregard of legal formalities and failure to maintain 

proper arm’s length relationships among related entities;

(16) use of a corporate entity as a conduit to procure labor, 

services or merchandise for another person or entity;

(17) diversion of corporate assets from the corporation by or to 

a stockholder or other person or entity to the detriment of 

creditors, or the manipulation of assets and liabilities between 

entities to concentrate the assets in one and the liabilities in 

another;

(18) contracting by the corporation with another person with 

the intent to avoid the risk of nonperformance by use of the 

corporate entity; or the use of a corporation as a subterfuge for 

illegal transactions;

(19) the formation and use of the corporation to assume the 

existing liabilities of another person or entity.

Laya, 177 W.Va. at 347-48, 352 S.E.2d at 98-99; Kubican, 232 W.Va. at 281, 752 S.E.2d 

at 312. 

This Court has observed that 

[e]xamination of the numerous relevant factors in a ‘totality of 

the circumstances’ test provides a more enlightening analysis 

than merely applying metaphors, like “simulacrum,” “alter 

ego,” “instrumentality,” etc., to describe the unity of the 

shareholder(s) and the corporation justifying, where equitable, 

the piercing of the corporate veil in the case.
18

Laya, 177 W.Va. at 348, 352 S.E.2d at 99. In addition, this Court has recognized that “this 

evidence must be analyzed in conjunction with evidence that a corporation attempted to 

use its corporate structure to perpetrate a fraud or do grave injustice on an innocent third 

party seeking to ‘pierce the veil.’” S. Elec. Supply, 173 W.Va. at 788, 320 S.E.2d at 523. 

Accordingly, we have held that “[t]he propriety of piercing the corporate veil should rarely 

be determined upon a motion for summary judgment. Instead, the propriety of piercing the 

corporate veil usually involves numerous questions of fact for the trier of the facts to 

determine upon all of the evidence.” Laya, 177 W.Va. at 344, 352 S.E.2d at 94, syl. pt. 6.

In this case, the petitioners have produced evidence that the respondents and 

RJM had no operating agreements with regard to the use of the same personnel, office 

space, equipment, phone lines, and marketing materials. In addition, the petitioners 

established that funds were transferred from the various respondents to RJM to pay its 

expenses. In fact, some of the funds contributed by one respondent were used to pay 

another respondent to do the infrastructure work for RJM. We, of course, recognize that 

“common ownership or common management without evidence of fraudulent conduct, 

total control, or a ‘dummy’ corporation [does not] justify piercing the corporate veil.” S.

Elec. Supply, 173 W.Va. at 789, 320 S.E.2d at 524. Indeed, “[t]he law presumes that two 

separately incorporated businesses are separate entities and that corporations are separate 

from their shareholders.” Id. at 781, 320 S.E.2d at 516, syl. pt.3. We have also held that 

“the failure of a limited liability company to observe the usual company formalities or 

requirements relating to the exercise of its company powers or management of its business 
19

may not be a ground for imposing personal liability on the member(s) or manager(s) of the 

company.” Kubican, 232 W.Va. at 270, 752 S.E.2d 301, syl. pt. 7, in part; see also W.Va. 

Code § 31B–3–303(b) (1996). However, based on the record before us and given our 

express recognition of the fact-based nature of determining whether to “pierce the veil,”

we find this issue is a matter for the jury, and the circuit court erred by granting summary 

judgment.

C. Other Assignments of Error

The petitioners have also assigned error to the circuit court’s dismissal of all 

their other claims against the respondents based on its finding that the petitioners failed to 

prove the existence of a joint venture. In their amended complaint, the petitioners asserted

the following additional claims against RJM and the respondents: cloud on title; breach of 

restriction, condition and covenants; civil conspiracy; actual and/or constructive fraud; 

slander of title; promissory/equitable estoppel; and breach of contract for the failure to pave 

the Daileys’ driveway. The petitioners argue in this appeal that the circuit court’s finding 

that they failed to present sufficient evidence of a joint venture between RJM and the 

respondents was not dispositive with respect to all of their other causes of action and that 

the circuit court erred by dismissing these claims against the respondents without providing 

separate findings of fact and conclusions of law. To the extent that the circuit court’s grant 

of summary judgment to the respondents on all of the petitioners’ other claims was based 

upon its finding that the petitioners had failed to establish the existence of a joint venture 

between RJM and respondents, we summarily reverse the grant of summary judgment to 
20

the respondents on those causes of action. Given our decision that genuine issues of 

material fact exist precluding summary judgment on the petitioners’ joint venture claim, 

the circuit court’s reasoning for dismissing the other claims is no longer sound.

As the petitioners’ note, the only cause of action the circuit court separately 

addressed, aside from the joint venture and piercing the veil claims, was the petitioners’ 

allegation of fraud against Roger Ayers and Jerry Ayers. In that regard, the circuit court 

found that the petitioners’ fraud claim could not be maintained against Roger Ayers and 

Jerry Ayers because “the record . . . shows no evidence of intent to defraud the Plaintiffs, 

but instead clearly indicates that the changes to the [2007 Convenants] that were enacted 

by RJM in 2013 were due to the changes in the economy and the crash of the real estate 

market.” The circuit court made no such finding, however, with respect to the other 

respondents. Rather, in granting summary judgment to Frye Construction, the circuit court

dismissed all claims asserted by the petitioners based upon its finding that the joint venture 

claim could not be maintained. Summary judgment was granted to Michael Frye on all of 

the petitioners’ claims based on the circuit court’s finding that “he had not acted outside 

the scope of his role as a member of [RJM] throughout the relevant underlying events.”

Critically, a review of the amended complaint shows the petitioners’ fraud 

allegations were not limited to the actions of RJM and the respondents when Brookside 

was formed. The petitioners also asserted that RJM and the respondents committed fraud 

when they “took action to specifically conceal from [the Daileys] that they were creating 
21

and filing the 2013 Declaration in order to induce [them] to proceed forward with plans to 

build their large estate home which exceeded the requirements as established by the 2007 

[Covenants].” Because the circuit court did not fully address all of the petitioners’ 

allegations and did not make any separate findings with respect to the petitioners’

allegations of fraud against the other respondents, we find that the circuit court’s grant of 

summary judgment on this issue must be reversed. A summary judgment order that fails to 

set forth sufficient findings of fact and conclusions of law does not permit meaningful 

appellate review. See syl., Hively v. Merrifield, 212 W.Va. 804, 575 S.E.2d 414 (2002) 

(holding that circuit court’s grant of summary judgment must set forth factual findings 

sufficient to permit appellate review). Moreover, because we have found that genuine 

issues of material fact exist with respect to the conduct of the respondents and the use of 

the various business entities to develop Brookside, the viability of all of the petitioners’

causes of action can only be determined after these genuine issues of fact have been 

resolved by a jury. Accordingly, we take no position on whether the petitioners can prevail 

on their fraud claim or the other causes of action set forth in the complaint. 

 

As their final assignment of error, the petitioners argue that summary 

judgment was improper because discovery was not complete and a motion to compel was 

pending before the circuit court. Although we need not address this alternative argument 

because of our reversal of the circuit court’s grant of summary judgment for the reasons 

set forth above, we note that “[a]s a general rule, summary judgment is appropriate only 

after adequate time for discovery.” Powderidge Unit Owners Ass’n v. Highland Props., 
22

Ltd., 196 W.Va. 692, 701, 474 S.E.2d 872, 881 (1996); see also Precision Coil, 194 W.Va. 

at 61, 459 S.E.2d at 338 (“[T]his Court and the United States Supreme Court apply the 

general principle that summary judgment is appropriate only after the opposing party has 

had adequate time for discovery.” (internal quotations and citation omitted)). As we have 

explained, “[a] party opposing a motion for summary judgment must have a reasonable

opportunity to discover information that is essential to [its] opposition to the motion.” 

Powderidge Unit Owners Ass’n, 196 W.Va, at 701, 474 S.E.2d at 881 (internal quotations 

and citation omitted). Therefore, “a decision for summary judgment before the completion 

of discovery is ‘precipitous.’” Precision Coil, 194 W.Va. 61, 459 S.E.2d at 338 (citing Bd.

of Educ. of the Cty. of Ohio v. Van Buren and Firestone, Arch., Inc., 165 W.Va. 140, 144, 

267 S.E.2d 440, 443 (1980)).

IV. Conclusion

Accordingly, for the foregoing reasons, the circuit court’s final order entered 

on December 19, 2017, is reversed, and this case is remanded for further proceedings 

consistent with this opinion. 

Reversed and remanded.