Jianmin Chen v. White Rock Mountain Retreat

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
September 4, 2024
JIANMIN CHEN,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Defendant Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-333 (Cir. Ct. of Greenbrier Cnty. No. CC-13-2022-C-AP-9)

WHITE ROCK MOUNTAIN RETREAT,
Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioner Jianmin Chen appeals the June 28, 2023, Final Judgment Order of the
Circuit Court of Greenbrier County which affirmed the judgment of the Magistrate Court
of Greenbrier County against petitioner and in favor of respondent, White Rock Mountain
Retreat, for past due homeowners’ association (“HOA”) assessments. Respondent filed a
timely response.1 Mr. Chen filed a reply.

This Court has jurisdiction over this appeal pursuant to West Virginia 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 court’s order is
appropriate under Rule 21 of the Rules of Appellate Procedure.

Mr. Chen is the owner of Lot No. 105 Withrow Landing, a 1.312-acre lot of
unimproved land in the Common Interest Community known as White Rock Mountain
Retreat (“Retreat”) in Caldwell, Greenbrier County, West Virginia. The Retreat has a
homeowners’ association (“HOA”) which manages the common elements and obligations
of the property owners in the Retreat, and which levies annual assessments against the lot
owners. All property owners of the Retreat, including Mr. Chen, are members of the HOA.
The HOA uses the funds generated by the annual assessments for maintenance of the
Retreat’s private roads, snow removal, trash services, and operation of the community
clubhouse and swimming pool, among other services. The HOA contends that Mr. Chen
owes back payments for certain annual assessments. Mr. Chen denies that he is liable for
the assessments because his lot is unimproved.

1
Petitioner is self-represented. Respondent is represented by Daniel T. Booth, Esq.

1
On July 25, 2022, the Retreat filed a civil complaint against Mr. Chen in the
Magistrate Court of Greenbrier County for unpaid assessments from years 2019-2021
totaling $4,500.00 plus $2,044.21 interest and $1,795.50 in attorney fees. On October 13,
2022, the magistrate court conducted a bench trial and ruled in favor of the Retreat. Mr.
Chen appealed the ruling to the Circuit Court of Greenbrier County.

On June 14, 2023, the Circuit Court of Greenbrier County held a de novo trial on
the case. The court took judicial notice of the Deed to Lot No. 105, which indicates that
the property is subject to a Declaration of Covenants, Restrictions, Easements,
Reservations, Terms and Conditions Governing White Rock Mountain Retreat, Planned
Community (“Covenants”). Article IV of the Covenants describes the parameters of
membership in the HOA and the assessments, in pertinent part, as follows:

Section 1. Membership in the Association. Every Owner of a Lot shall
be a member of the Association and bound by this Declaration, the Articles
of Incorporation of the Association and its Bylaws and rules and regulations
as hereafter promulgated. Membership shall be appurtenant to and may not
be separated from ownership of any Lot.

Section 3. Creation of the Lien and Personal Obligation Assessments.
Each and every Owner of a Lot by acceptance of a deed therefore, whether
or not it is so expressed in such deed, is deemed to covenant and agree to pay
the Association: (1) annual assessments or charges, and (2) special
assessments for capital improvements, such assessments to be established
and collected as hereinafter provided and as stated in the Bylaws. All such
annual and special assessments, together with interest, costs and reasonable
attorney’s fees for the collection thereof shall be a charge and lien upon a Lot
and its improvements. The amount owed shall be a continuing lien upon the
applicable property against which such assessment is made, prior to all other
liens except only (i) real estate taxes and other governmental assessments or
charges against the Lot and (ii) liens and encumbrances recorded before the
recordation of the Declaration.

Each such assessment, together with interest, costs, and reasonable
attorney’s fees for the collection thereof, shall also be a personal financial
obligation of the person, or persons, who was, or were, the Lot owner or
owners at the time when the assessments became due. The personal financial
obligation for delinquent assessments shall not pass to successors in title to
any such Lot unless expressly assumed by such purchaser: PROVIDED,
HOWEVER, the same shall be and remain a charge and lien upon any such
Lot and improvements until paid or otherwise satisfied except as may herein
otherwise be provided.

2
Section 4. Purpose of Assessments. The assessments levied by the
Association shall be used for the purposes in keeping with a nonprofit
corporation as set forth in the Association’s Articles of Incorporation.
Specifically, the assessments shall be used to promote the health, safety and
welfare of the Owners and residents of White Rock Mountain Retreat and for
the improvements, maintenance and repair of the Common Elements, and
easements appurtenant thereto, for the protection of the community from
pollution or erosion, for the enforcement of these covenants; the provision of
reserve funds, the employment of attorneys, accounts, and other
professionals to represent the Association, when necessary, and for payment
of local taxes, insurance and special governmental assessments on or to the
Common Elements together with payments of services, if any, provided to
the residents by the Association.

The Covenants define a “Lot” as a physical portion of the Retreat for separate
ownership or occupancy by an owner. While the definition describes how a lot may be
deemed “Improved” when a residence has been constructed thereon and an occupancy
permit has been issued, it makes no distinction between “Improved” and “Unimproved”
with regard to the annual assessments. Similarly, the By-Laws of the HOA, which are
recorded with the Covenants, provide that each owner is personally liable for an
assessment, as determined by the HOA’s Board at its discretion. The By-Laws also make
no distinction between improved or unimproved property in determining those
assessments.

The circuit court also heard the testimony of an HOA representative who stated
that the assessment for calendar years 2019, 2020, and 2021 was $1,500.00 per lot
annually, due and owing on January 1 each year, and that Mr. Chen had failed to pay the
assessment for each of those years. He further testified that the assessment was the same
for each lot, regardless of whether it was improved or unimproved, or whether it was
occupied or empty. He testified that Mr. Chen made no payments after the magistrate court
judgment was entered and that Mr. Chen still owed $4,500.00 for 2019-2021, plus, per the
By-Laws, interest at eighteen percent per annum, which was calculated at the time of the
magistrate court case to be $2,044.21, and collection costs, including reasonable attorney
fees, which were calculated to be $1,795.50. The total amount determined by the
magistrate court was $8,339.71.

The circuit court concluded that the HOA established that it had the right to
determine an annual assessment for the owners, payable by all owners, regardless of the
use or occupancy of their property, and that delinquent assessments are subject to interest
at eighteen percent per annum plus reasonable attorney fees. The court further concluded
that Mr. Chen owed $8,339.71, plus post-judgment statutory interest from October 13,
2022, at four percent per annum, until satisfied, plus costs of $95.00, and any post-
judgment costs permitted. It is from that ruling that Mr. Chen appeals herein.

3
Our standard of review for a judgment order entered after a bench trial is as follows:

In reviewing challenges to the findings and conclusions of the circuit court
made after a bench trial, a two-pronged deferential standard of review is
applied. The final order and ultimate disposition are reviewed under an abuse
of discretion standard, and the circuit court’s underlying factual findings are
reviewed under a clearly erroneous standard. Questions of law are subject to
a de novo review.

Syl. Pt. 1, Public Citizen, Inc. v. First National Bank in Fairmont, 198 W. Va. 329, 480
S.E.2d 538 (1996).

Mr. Chen raises two assignments of error on appeal. First, he argues that the circuit
court erred by enforcing the HOA’s assessment practice which is not compliant with West
Virginia Code § 36B-3-115(c)(2) (1986), which provides,

§ 36B-3-115. Assessments for common expenses.
...
(c) To the extent required by the declaration:
...
(2) Any common expense or portion thereof benefiting fewer than all of the
units must be assessed exclusively against the units benefited; . . .

Mr. Chen asserts that this code section requires the HOA to make separate
assessments for improved lots and unimproved lots because the improved lots derive a
greater benefit from the community’s amenities than the unimproved lots. Because Mr.
Chen has an unimproved lot, he argues he is subject to an unfair and inequitable
assessment. Instead, the owners of improved lots should bear a greater share of the
operational expenses of the community amenities he alleges only they can use, such as the
clubhouse and pool. He claims the owners of improved lots are unjustly enriched by
unimproved lot owners paying for the amenities they cannot use. We disagree.

The pertinent deed indicates that Mr. Chen’s property is subject to the Covenants.
The Covenants (and its incorporated HOA By-Laws) also govern the HOA. The
Covenants do not distinguish between improved and unimproved lots for the purpose of
making assessments. Article IV of the Covenants specifically states that each and every
owner of a lot is deemed to covenant and agree to pay annual assessments. There is no
exception for owners of unimproved lots. Moreover, there is no evidence in the record that
Mr. Chen demonstrated that any of the common expenses included in his assessment did
not benefit his unimproved lot. West Virginia Code § 36B-3-115(c)(2) only requires some
differentiation between assessments where the applicable declaration of covenants
requires it, and the Covenants herein do not express any such differentiation. Accordingly,

4
Mr. Chen has failed to provide any cognizable evidence to support his argument that he
does not owe the 2019-2021 assessments.

For his second assignment of error, Mr. Chen argues broadly that the circuit court
erred by enforcing the assessments because the HOA’s assessment procedure is
unconscionable. However, Mr. Chen did not raise this legal argument below and so it will
not be considered for the first time on appeal. As our Supreme Court of Appeals has stated,
“[i]ndeed, if any principle is settled in this jurisdiction, it is that, absent the most
extraordinary circumstances, legal theories not raised properly in the lower court cannot
be broached for the first time on appeal. We have invoked this principle with a near
religious fervor.” State v. Miller, 197 W. Va. 588, 597, 476 S.E.2d 535, 544 (1996).

Accordingly, finding no error or abuse of discretion in the circuit court’s June 28,
2023, Final Judgment Order, we hereby affirm.

Affirmed.

ISSUED: September 4, 2024

CONCURRED IN BY:

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

5