Robin S. Lindemuth, Donald E. Lindemuth, Danielle Landriscina, Nanette M. Reintges, Robert Reintges, Kathy D. Rhyls-Wexler, Raymond H. Wexler, Jennifer K. List, Leonard L. List, Elaine Wolfe, Alan P. Wolfe, Kathryn Cole, and Jo Ann Abell v. The Woods Homeowners Association, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
ROBIN S. LINDEMUTH, DONALD E. LINDEMUTH, October 1, 2024
DANIELLE LANDRISCINA, NANETTE M. REINTGES, ASHLEY N. DEEM, CHIEF DEPUTY CLERK
ROBERT REINTGES, KATHY D. RHYLS-WEXLER, INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
RAYMOND H. WEXLER, JENNIFER K. LIST,
LEONARD L. LIST, ELAINE WOLFE, ALAN P. WOLFE,
KATHRYN COLE, and JO ANN ABELL,
Plaintiffs Below, Petitioners

v.) No. 23-ICA-379 (Cir. Ct. Berkeley Cnty. Case No. CC-02-2022-C-342)

THE WOODS HOMEOWNERS ASSOCIATION, INC.,
Defendant Below, Respondent

MEMORANDUM DECISION

Petitioners1 appeal an April 26, 2023, order of the Circuit Court of Berkeley County
which granted respondent The Woods Homeowners Association, Inc.’s (“WHOA”) motion
to dismiss and a July 28, 2023, order denying petitioners’ Motion to Alter or Amend.2 The
WHOA filed a timely response, and petitioners filed a timely reply. Petitioners are
homeowners and mandatory members of the WHOA, which is a homeowner’s association
for the property owners of various residential communities. The crux of petitioners’
allegations is that WHOA’s board of directors violated the law and the declarations
governing these communities in its attempt to finance the purchase of two golf courses and
a spa facility for $5.5 million.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). 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.

1
Petitioners are comprised of thirteen individuals who are homeowners and
mandatory members of the WHOA.
2
Petitioners are represented by Mark A. Sadd, Esq., Spencer D. Elliott, Esq., and
Aaron C. Amore, Esq. The WHOA is represented by Susan R. Snowden, Esq.

1
Each of the petitioners is a property owner within one of the planned residential
communities which comprise the WHOA. Petitioners filed their complaint seeking various
declaratory judgments related to WHOA’s prospective purchase and finance of two golf
courses and a spa. Petitioners allege WHOA’s board of directors purported to obtain
approval of this transaction by following the law and the declarations governing these
communities, but that WHOA actually did not follow these procedures and does not have
the authority to proceed with these projects.

The Second Amended Complaint alleges thirteen causes of action which seek a
variety of different declarations related to the WHOA and these planned communities, and
one cause of action for a preliminary injunction enjoining the WHOA from purchasing the
golf courses and spa. Petitioners allege they sought information regarding the planned
purchases and asked WHOA’s board of directors to comply with the relevant law and the
declarations for each affected community, but that WHOA ignored both of these requests.
Petitioners further allege that WHOA was preparing to enter into a sale and purchase
agreement with the owner of the golf course property and with Wintrust Community Bank
to finance the project, but that WHOA failed to properly gain authority to effectuate these
transactions. Further, petitioners also specifically pled that WHOA’s finance agreement
with Wintrust was no longer viable and that the project was not going forward.

On March 30, 2023, WHOA filed its motion to dismiss pursuant to Rules 23.1 and
12(b)(6) of the West Virginia Rules of Civil Procedure and argued that petitioners’
complaint did not constitute a derivative action by members of a corporation as required
and that their complaint failed to state a claim upon which relief could be granted because
no justiciable controversy was pled. In an order entered on April 26, 2023, the circuit court
granted WHOA’s motion to dismiss and held that (i) petitioners have direct versus
derivative claims; (ii) that West Virginia Code § 31E-3-304(b)(1) (2002) does not authorize
a derivative claim by a member; (iii) that petitioners, having only direct claims, failed to
comply with the procedural obligations under Rule 3(a) of the West Virginia Rules of Civil
Procedure; and (iv) that petitioners had no case or controversy to support injunctive or
declaratory relief on the basis that the lender for the project withdrew its commitment letter.
Next, on May 4, 2023, petitioners filed a Motion to Alter or Amend Dismissal Order and
Request for Hearing under Rule 59(e) alleging there was evidence that WHOA intended to
proceed with these projects. The circuit court denied that motion in an order entered on
July 28, 2023. It is from these orders that petitioners now appeal.

Because the circuit court’s ruling is based upon a motion to dismiss, our standard of
review is de novo. Syl. Pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc.,
194 W. Va. 770, 461 S.E.2d 516 (1995) (“Appellate review of a circuit court’s order
granting a motion to dismiss a complaint is de novo.”). “The trial court, in appraising the
sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint
unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his
claim which would entitle him to relief.” Syl. Pt. 3, Chapman v. Kane Transfer Co., Inc.,

2
160 W. Va. 530, 236 S.E.2d 207 (1977) (citation omitted). With this standard in mind, we
turn to the arguments at issue.

On appeal, petitioners assert five assignments of error. First, petitioners argue the
circuit court erred in holding there was no case or controversy based on the financial
lender’s withdrawal of its commitment. Article VIII, Section 6 of the West Virginia
Constitution requires “a justiciable case or controversy—a legal right claimed by one party
and denied by another—in order for the circuit court to have subject matter jurisdiction.”
State ex rel. Healthport Techs., LLC v. Stucky, 239 W. Va. 239, 242, 800 S.E.2d 506, 509
(2017). This means that the party asserting a legal right must have standing to assert that
right, and the Supreme Court of Appeals of West Virginia has defined “standing” as “[a]
party’s right to make a legal claim or seek judicial enforcement of a duty or right.” Id.

Here, petitioners’ Second Amended Complaint seeks various declaratory
judgments. As the Supreme Court of Appeals of West Virginia held in City of Bridgeport
v. Matheny, “[a] declaratory judgment action is a proper procedural means for adjudicating
the legal rights of parties to an existing controversy that involves the construction and
application of a statute.” 223 W. Va. 445, 450, 675 S.E.2d 921, 926 (2009). “Before a
circuit court can grant declaratory relief pursuant to the provisions of the Uniform
Declaratory Judgment Act (“Act”), . . . there must be an actual, existing controversy.”
Hustead on Behalf of Adkins v. Ashland Oil, Inc., 197 W. Va. 55, 61, 475 S.E.2d 55, 61
(1996). “[I]f there is no ‘case’ in the constitutional sense of the word, then a circuit court
lacks the power to issue a declaratory judgment.” Id. In deciding whether an actual or
justiciable controversy exists which would confer jurisdiction upon a trial court, the
following four factors should be considered:

[I]n deciding whether a justiciable controversy exists sufficient to confer
jurisdiction for purposes of the [Uniform Declaratory Judgment] Act, a
circuit court should consider the following four factors in ascertaining
whether a declaratory judgment action should be heard: (1) whether the claim
involves uncertain and contingent events that may not occur at all; (2)
whether the claim is dependent upon the facts; (3) whether there is
adverseness among the parties; and (4) whether the sought after declaration
would be of practical assistance in setting the underlying controversy to rest.

Id. at 62, 475 S.E.2d at 62 (citation omitted). Further, a party seeking a declaratory ruling
lacks standing if said party has not “suffered an ‘injury-in-fact’—an invasion of a legally
protected interest which is (a) concrete and particularized and (b) actual or imminent and
not conjectural or hypothetical.” Findley v. State Farm Mut. Auto. Ins. Co., 213 W. Va. 80,
94, 576 S.E.2d 807, 821 (2002).

The analysis here begins with the language of the Second Amended Complaint.
Petitioners argue that their claims were misrepresented by the circuit court, but the

3
language of the Second Amended Complaint is clear. All the claims pled here, with the
exception of the injunction request, seek declaratory relief related to the proposed project,
and it does not appear there is even an injury since the financier withdrew its commitment.
Petitioners explicitly pled that the financier withdrew the funds, and they state as follows:
“[o]n information and belief, the agreement with Wintrust is no longer a viable option
according to WHOA’s community website postings.” Petitioners further attached a WHOA
newsletter to the complaint which noted that “[a]s sometimes happens in complex deals,
changes in the structure of the transaction will occur. In this case, we [WHOA] are no
longer working with the bank [Wintrust Community Advantage] from which we obtained
the first Commitment Letter.”

At this stage in the case, this Court must assume that all allegations are true. Syl. Pt.
1, Wiggins v. E. Associated Coal Corp., 178 W. Va. 63, 357 S.E.2d 745 (1987). Petitioners
argue that the circuit court failed to take their allegations as true, but it is petitioners’ own
complaint and the allegations made in that document that support the circuit court’s
conclusion here. Based on petitioners’ own language, it appears that this project is no
longer going forward. Their entire complaint is based on an alleged illegal vote which led
to the approval of the purchase and finance of the golf courses and spa. Because this project
is no longer going forward, as petitioners specifically pled, petitioners’ injury is
hypothetical.3 The circuit court did not have jurisdiction to hear this case, and its ruling
was not in error.

Because we find that the circuit court was correct in its determination that petitioners
lacked standing, we need not consider petitioners’ assignments of error two through four
which relate to additional bases for dismissal. However, petitioners’ assignment of error
five asserts that the circuit court erred in finding that the evidence offered with petitioners’
motion to alter or amend did not show there was a live case or controversy. Because this
assignment is intrinsically related to assignment of error one, we will also consider these
arguments.

Under assignment of error five, petitioners argue they filed a motion to amend or
alter and produced new documentary evidence which shows there is a viable case or
controversy and that the circuit court erred when it denied this motion. Again, we find no
error in the circuit court’s ruling. None of the evidence produced by petitioners was
sufficient to show that their claims were certain. Their claims are “uncertain and contingent
events that may not occur at all.” Hustead, 197 W. Va. at 62, 475 S.E.2d at 62. The Supreme
Court of Appeals of West Virginia is clear that “West Virginia courts do not issue advisory
opinions” and no justiciable case or controversy exists here. State ex. rel. Perdue v.

3
We observe that the WHOA clearly argues in the record below that this project is
no longer going forward, but WHOA does not use such certain terms in its briefing here.

4
McCuskey, 242 W. Va. 474, 478, 836 S.E.2d 441, 445 (2019). Accordingly, because there
is no case or controversy here and petitioners’ injury is hypothetical, we affirm.

Affirmed.

ISSUED: October 1, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Daniel W. Greear

Judge Charles O. Lorensen, not participating.

5