Michael B. Wilber v. Locust Hill Unit Owner's Association, Inc.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
MICHAEL B. WILBER,
Defendant Below, Petitioner

v.) No. 25-ICA-280 (Cir. Ct. of Jefferson Cnty. Case No. CC-19-2022-C-97)
FILED
LOCUST HILL UNIT OWNER’S ASSOCIATION, INC.,
Plaintiff Below, Respondent June 11, 2026
released at 3:00 p.m.
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Michael B. Wilber appeals the June 13, 2025, Order on Remand entered
by the Circuit Court of Jefferson County in Civil Action No. CC-19-2022-C-97. Mr. Wilber
also challenges the circuit court’s January 11, 2024, Order Granting Plaintiff’s Motion to
Dismiss Defendant’s Counterclaim; April 18, 2024, Pretrial Conference Order1; May 6,
2024, Trial Order; and May 31, 2024, Order Denying Motion to Set Aside Verdict.
Respondent Locust Hill Unit Owner’s Association, Inc. (“Locust Hill”), filed a response in
support of the circuit court’s rulings, and Mr. Wilber filed a reply.2

This matter previously came before this Court. By Memorandum Decision entered
April 29, 2025, in Case No. 24-ICA-270, we remanded the case for entry of findings of
fact and conclusions of law pursuant to Rule 52(a) of the West Virginia Rules of Civil
Procedure. Following remand, the circuit court entered the June 13, 2025, Order on
Remand that is the primary subject of this appeal.

This Court has jurisdiction pursuant to West Virginia Code § 51-11-4 (2022). Having
considered the parties’ oral and written arguments, the record on appeal, and the applicable

1
The April 18, 2024, Pretrial Conference Order was attached to the notice of appeal
but no substantive challenge to this order was presented on appeal. “Although we liberally
construe briefs in determining issues presented for review, issues which are not raised, and
those mentioned only in passing but are not supported with pertinent authority, are not
considered on appeal. We deem these errors abandoned because these errors were not fully
briefed.” State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (2010) (internal
citation omitted). Therefore, we consider any argument regarding this order abandoned and
waived.
2
Mr. Wilber is represented by James P. Campbell, Esq., Daniel M. Casto, Esq., and
Matthew L. Clark, Esq. Locust Hill is represented by Christopher P. Stroech, Esq., and
Elizabeth S. Skilling, Esq.
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law, this Court finds that there is error in the circuit court’s decision but no substantial
question of law. This case satisfies the “limited circumstances” requirement of Rule 21(d)
of the West Virginia Rules of Appellate Procedure for reversal, in part, in a memorandum
decision.

We find that the circuit court erred in determining that Mr. Wilber’s display
constituted a prohibited political campaign sign under Article 10, Section 10.2-1 of the
Declaration and Bylaws of Locust Hill. We find no reversible error in the circuit court’s
use of an advisory jury or its dismissal of Mr. Wilber’s counterclaim by order entered
January 11, 2024. For the reasons set forth below, the circuit court’s orders are affirmed, in
part, reversed, in part, and this matter is remanded.

Mr. Wilber owns Lot 407, located at 90 Sawgrass Drive within the Locust Hill
subdivision, a common-interest community organized pursuant to the West Virginia
Uniform Common Interest Ownership Act as codified in Chapter 36B of the West Virginia
Code. As a property owner within the subdivision, Mr. Wilber is a member of respondent
Locust Hill Unit Owner’s Association, Inc. His property was conveyed subject to the
recorded Declaration and Bylaws of Locust Hill, which contain restrictive covenants
running with the land.

At issue in this case is Article 10, Section 10.2-1 of the Declaration. That provision
states:

Signs: No sign of any kind shall be erected within the Property without the
written consent of the Board of Directors except those signs used in any
subsequent sale of the property providing that they do not exceed two square
feet. The Board of Directors or Declarant shall have the right to erect signs
as they, in their discretion, deem appropriate. Notwithstanding the above, no
signs, flags [,] banners or similar items advertising or providing directional
information with respect to [t]he activities being conducted outside the
Property shall be permitted within the Property and no political campaign
signs shall be permitted.

Mr. Wilber displayed, on a flagpole on his property, a flag bearing the phrase “Biden
Sucks.” He subsequently replaced that with a flag bearing the phrase “Let’s Go Brandon.”
On August 23, 2021, Locust Hill issued a “Friendly Reminder” asserting that the flag
violated the covenant in Section 10.2-1 of the Declaration and requested its removal. A
“Notice of Continued Violation” followed on September 10, 2021. Locust Hill later issued
a demand letter to Mr. Wilber dated December 15, 2021, to remove the flag. No action was
taken by Mr. Wilber to remove the flag.

As a result of its unsuccessful attempts to have the flag taken down, Locust Hill
filed the underlying civil action on August 9, 2022, seeking injunctive relief to prohibit Mr.

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Wilber from displaying the flag. Mr. Wilber filed a Rule 12(b)(6) motion to dismiss Locust
Hill’s complaint which the circuit court denied on September 30, 2022. Locust Hill argued
that the display constituted a prohibited political campaign sign under Section 10.2-1 of
the Declaration, while Mr. Wilber contended that the display did not violate the covenant
because it expressed a political viewpoint but did not advocate for or against any political
candidate or campaign.

Mr. Wilber filed an answer that was subsequently amended on August 25, 2023, to
assert a counterclaim for breach of contract due to Locust Hill’s failure to hold a hearing
regarding the alleged violation before commencing litigation as required by the Declaration
and to seek attorney fees and costs under West Virginia Code § 36B-3-116(f). In response,
Locust Hill filed a motion to dismiss the counterclaim, and both parties filed cross-motions
for summary judgment.

On October 31, 2023, the circuit court addressed the parties’ cross-motions for
summary judgment. During the hearing, the court directed Locust Hill to conduct a hearing
regarding Mr. Wilber’s alleged covenant violation in accordance with the procedures set
forth in the Declaration. The court also discussed with the parties the possibility of utilizing
an advisory jury pursuant to Rule 39(c) of the West Virginia Rules of Civil Procedure.

As the court directed, Locust Hill through its Board of Directors held a hearing
regarding its notice to remove the flag on November 7, 2023. On January 10, 2024, Locust
Hill advised the circuit court that the hearing had been completed and that the Board had
unanimously determined, by a vote of three to zero, that Mr. Wilber’s display violated
Section 10.2-1 and concluded that the display constituted a prohibited political campaign
sign under the Declaration.

The circuit court found that the counterclaim was premised upon Locust Hill’s
alleged failure to hold a Board hearing before pursuing enforcement. Because the Board
had conducted a hearing on November 7, 2023, and rendered a decision concerning Mr.
Wilber’s display, the circuit court concluded that any procedural issue had been cured and
that the counterclaim was moot. By order entered January 11, 2024, the circuit court
granted Locust Hill’s motion to dismiss the counterclaim pursuant to Rule 12(b)(6) of the
West Virginia Rules of Civil Procedure.

The circuit court further rejected Mr. Wilber’s request for attorney fees. The court
concluded that West Virginia Code § 36B-3-116(f) was inapplicable because that statute
concerns the collection of assessments. The court also considered West Virginia Code §
36B-4-117, which permits an award of attorney fees in appropriate cases where a
declarant’s failure to comply with its declaration or bylaws adversely affects a person, but
determined that fees were not warranted because a Board hearing was not required before
litigation commenced, the counterclaim was filed more than one year after the complaint,

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and any alleged procedural deficiency had been cured. The circuit court therefore dismissed
the counterclaim with prejudice and noted Mr. Wilber’s objections.

Mr. Wilber subsequently filed a motion to reconsider or in the alternative alter,
vacate, or amend the January 11, 2024, order. The circuit court denied the motion.

Thereafter, the matter proceeded toward trial. Pursuant to Rule 39(c) of the West
Virginia Rules of Civil Procedure, the circuit court impaneled an advisory jury. The
advisory jury was asked to answer two special interrogatories:

(1) “Is the flag at issue a sign pursuant to the covenants?”; and (if yes to #1)
(2) “Is a ‘Let’s Go Brandon’ flag a political campaign sign prohibited by the
covenants?”.

During the proceedings, Mr. Wilber argued that the Declaration was unambiguous
and that interpretation of its terms presented a threshold question of law for the circuit
court. He moved for judgment as a matter of law, and the circuit court denied the motion.

Trial was held on April 24 and 25, 2024. Following voir dire, an advisory jury
consisting of six jurors and two alternates was impaneled. Locust Hill presented its case
through witnesses and exhibits. Mr. Wilber moved for judgment as a matter of law at the
conclusion of Locust Hill’s case, which the circuit court denied. He then presented his case
through witnesses and exhibits. At the end of his case, Mr. Wilber renewed his motion for
judgment as a matter of law, which the circuit court again denied.

Following deliberations, the advisory jury found that the flag constituted a sign and
that the “Let’s Go Brandon” flag was a prohibited political campaign sign under the
Declaration. The circuit court adopted the advisory jury’s findings in its May 6, 2024, order.
The court ruled in favor of Locust Hill and granted injunctive relief. The circuit court
ordered Mr. Wilber to remove the display as violative of the restrictive covenants governing
Locust Hill.

Mr. Wilber subsequently filed a motion to set aside the verdict or, in the alternative,
for a new trial. The circuit court denied the motion in its May 31, 2024, order. The circuit
court reaffirmed its prior rulings, declined to reopen the judgment entered in favor of
Locust Hill, and denied the request for a new trial. Mr. Wilber appealed.

In a memorandum decision issued on April 29, 2025, this Court remanded the
matter, directing the circuit court to enter a new order addressing key issues and setting
forth findings of fact and conclusions of law in accordance with Rule 52(a) of the West
Virginia Rules of Civil Procedure.

4
The circuit court entered detailed findings of fact and conclusions of law by order
on June 13, 2025. The circuit court concluded that Section 10.2-1 of the Declaration was
unambiguous. The circuit court interpreted the phrase “political campaign sign” according
to its ordinary meaning regardless of the medium employed and reaffirmed the injunction
previously entered against Mr. Wilber. This appeal followed.

We review the orders on appeal under the following standards:

In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final
order and the ultimate disposition under an abuse of discretion standard, and
we review the circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 2, Walker v. West Virginia Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).

A similar deferential standard applies to our review of permanent injunctive relief.

In reviewing objections to the findings of fact and conclusions of law
supporting the granting or the denial of a temporary or preliminary
injunction, we will apply a three-pronged deferential standard of review. We
review the final order granting or denying the temporary injunction and the
ultimate disposition under an abuse of discretion standard, we review the
circuit court’s underlying factual findings under a clearly erroneous standard,
and we review questions of law de novo.

Syl. Pt. 1, Bansbach v. Harbin, 229 W. Va. 287, 728 S.E.2d 533 (2012); see Reilley v. Bd.
of Educ. of Cnty. of Marshall, 246 W. Va. 531, 537, 874 S.E.2d 333, 339 (2022) (applying
same standard of review to an award of permanent injunctive relief following a jury trial).
With these standards in mind, we turn to Mr. Wilber’s assignments of error.

On appeal, Mr. Wilber asserts six assignments of error challenging the circuit court’s
rulings. We find it appropriate to consolidate and restate those arguments for the purposes
of this appeal. See Tudor’s Biscuit World of Am. v. Critchley, 229 W. Va. 396, 402, 729
S.E.2d 231, 237 (2012) (per curiam) (stating the general proposition that related
assignments of error may be consolidated for ruling); Jacquelyn F. v. Andrea R., No. 16-
0585, 2017 WL 2608425, at *3 n.2 (W. Va. June 16, 2017) (memorandum decision)
(restating assignments of error where they involve clearly related issues). Restated, Mr.
Wilber contends that: (1) the circuit court erred in its interpretation and enforcement of
Article 10, Section 10.2-1 of the Declaration; (2) the circuit court committed reversible
error in connection with the advisory jury proceedings; and (3) the circuit court erred in
dismissing Mr. Wilber’s counterclaim. We address each argument in turn.

5
Under the first consolidated assignment of error, Mr. Wilber argues that the circuit
court construed the Declaration too broadly. He contends that the court improperly
expanded the scope of Section 10.2-1, denied summary judgment based upon an erroneous
interpretation of the covenant, and reaffirmed an injunction unsupported by the covenant’s
plain language. Mr. Wilber further argues that interpretation of the Declaration presented a
threshold question of law that should have been resolved by the circuit court rather than
submitted, directly or indirectly, to an advisory jury. We agree, in part.

Restrictive covenants are construed according to the intent expressed in the
language chosen by the parties. “The fundamental rule in construing covenants and
restrictive agreements is that the intention of the parties governs. That intention is gathered
from the entire instrument by which the restriction is created, the surrounding
circumstances and the objects which the covenant is designed to accomplish.” Syl. Pt. 2,
Allemong v. Frendzel, 178 W. Va. 601, 363 S.E.2d 487 (1987) (quoting Wallace v. St. Clair,
147 W. Va. 377, 390, 127 S.E.2d 742, 751 (1962)).

It is always to be borne in mind that a restriction is in derogation of the
common-law right to use land for all lawful purposes which go with the title
and possession, and that the restriction is not to be extended by implication,
and all doubts are generally to be resolved against its extension. The
restrictions cannot be enlarged by implication or extended by construction
beyond their original intent in order that the general purpose of the parties
may be effectuated under new conditions not to be anticipated.

Neekamp v. Huntington Chamber of Com., 99 W. Va. 388, 129 S.E. 314, 316-317 (1925)
(quotation omitted). These principles of settled law control the outcome of this case.

The circuit court ultimately found Section 10.2-1 of the Declaration to be
unambiguous. We agree. Where the language of a written instrument is clear and
unambiguous, it is applied—not construed.

“A valid written instrument which expresses the intent of the parties in plain and
unambiguous language is not subject to judicial construction or interpretation but will be
applied and enforced according to such intent.” Syl. Pt. 1, Cotiga Development Co. v.
United Fuel Gas Co., 147 W. Va. 484, 128 S.E.2d 626 (1962). “It is not the right or province
of a court to alter, pervert or destroy the clear meaning and intent of the parties as expressed
in unambiguous language in their written contract or to make a new or different contract
for them.” Id. at 484, 128 S.E.2d at 628, syl. pt. 3. The dispute before us is not what the
covenant should have said. The dispute is what it does say.

Section 10.2-1 does not prohibit political speech. It does not prohibit criticism of
public officials. It does not prohibit partisan viewpoints. It does not prohibit displays that
some residents may regard as offensive, provocative, rude, or unpopular. It prohibits

6
“political campaign signs.” These words matter because the parties’ chosen language
defines the scope of the restriction. We may not expand that language by implication.

The parties devote substantial attention to whether Mr. Wilber’s display should be
characterized as a sign, flag, banner, or similar display. That question is ultimately not
dispositive. Assuming the flag constituted a sign, Locust Hill is still required to establish
that it was a political campaign sign within the meaning of Section 10.2-1 of the
Declaration.

The circuit court concluded that the phrase “Let’s Go Brandon” constituted a
prohibited political campaign sign because it was widely understood as criticism of then-
President Joseph Biden. The record supports the circuit court’s finding that the phrase
carried political significance. But political significance is not the test.

A flag expressing a political viewpoint does not become a political campaign sign
unless it advocates the election or defeat of a candidate, promotes a campaign, urges a vote,
supports or opposes a ballot measure, or otherwise seeks electoral action. The flag before
us does none of those things. The sign mentions no candidate who was on the ballot at that
time. It references no campaign or election. It does not request a vote or address a ballot
issue. It only expresses a political opinion.3

Political commentary and campaign advocacy are not synonymous. Under the plain
language of Section 10.2-1, and under the established principle that restrictive covenants
may not be enlarged by implication, political commentary is not enough. Locust Hill may
prefer a broader restriction. It may wish the Declaration prohibited political displays
generally. But that is not the covenant the parties adopted.

The circuit court also relied, in part, upon definitions drawn from North Carolina
statutes governing planned communities and condominiums. However, the circuit court’s
reference to those authorities was unnecessary. The issue before us is resolved by applying
settled West Virginia principles governing restrictive covenants and by giving the words
chosen by the parties their ordinary meaning.

The practical effect of the circuit court’s interpretation was to convert a prohibition
against political campaign signs into a prohibition against political expression generally.
Section 10.2-1 does not support that expansion.

3
We are not convinced by Locust Hill’s argument that Mr. Wilber’s sign was a
political campaign sign because one of the candidates refused to concede the election.
Regardless of whether one of the candidates conceded the election, the election had
concluded, and no further votes could be cast at the time. Accordingly, the proposition that
the sign discouraged voters to vote for a candidate is untenable.
7
Our conclusion is consistent with the settled principle that restrictive covenants must
provide fair notice of the conduct they prohibit. A property owner reading Section 10.2-1
would reasonably understand that the covenant prohibits displays advocating electoral
outcomes. Nothing in the language of the Declaration would place an owner on notice that
expressions of political opinion untethered to any campaign, election, candidate, or ballot
measure are likewise prohibited.

Had the drafters intended to prohibit political signs generally, they could have done
so. They did not. Instead, they selected the narrower phrase “political campaign signs.”
Homeowners associations and courts are not free to rewrite restrictive covenants to
accomplish objectives broader than those reflected in the language chosen by the parties.4

Because the flag at issue does not advocate the election or defeat of a candidate,
urge electoral action, or otherwise constitute campaign advocacy, it falls outside the scope
of the restriction as written.

Our holding is narrow. We do not hold that Locust Hill lacks authority to regulate
signs or political displays. Nor do we hold that the phrase at issue could never violate a
differently worded covenant. We hold only that this Declaration, as written, does not clearly
prohibit Mr. Wilber’s flag. The Declaration says what it says. It prohibits political campaign
signs. It does not prohibit political speech generally. Mr. Wilber’s flag was political. It was
not a political campaign sign. Accordingly, the circuit court erred in reaffirming the
injunction.

We do not agree, however, with Mr. Wilber’s argument that the circuit court failed
to comply with this Court’s remand directive. The June 13, 2025, Order on Remand
contains detailed findings of fact and conclusions of law sufficient to satisfy Rule 52(a) of
the West Virginia Rules of Civil Procedure. Although we disagree with the circuit court’s
legal conclusion, the court complied with the remand order.

Mr. Wilber next argues that the circuit court committed reversible error by utilizing
an advisory jury. He contends that because Section 10.2-1 ultimately presented a question
of law, the circuit court should not have submitted related issues to an advisory jury. We
disagree.

4
Section 14.1 of the Declaration permits amendment upon the approval of sixty-
seven percent (67%) of the Unit Owners. See also W. Va. Code § 36B-2-117(a) (authorizing
amendment of a declaration by the affirmative vote or agreement of unit owners holding at
least sixty-seven percent (67%) of the votes in the association, unless a different percentage
is required by the declaration). Accordingly, while the Court interprets and applies the
Declaration as it presently exists, this Decision does not preclude the Unit Owners from
pursuing any amendment authorized by Section 14.1 of the Declaration and West Virginia
Code § 36B-2-117(a).
8
Rule 39(c) of the West Virginia Rules of Civil Procedure expressly authorizes a
circuit court to utilize an advisory jury in actions not triable of right by a jury. An advisory
jury advises; it does not decide. The ultimate responsibility for findings of fact and
conclusions of law remains with the trial court.

The record reflects that the circuit court utilized the advisory jury to address factual
questions concerning the nature and meaning of the challenged display. Following voir
dire, the circuit court impaneled an advisory jury consisting of six jurors and two alternates.
The parties presented witnesses, exhibits, objections, and arguments. Mr. Wilber moved
for judgment as a matter of law at the close of Locust Hill’s evidence and renewed that
motion after presenting his own evidence. Both motions were denied. The advisory jury
ultimately answered both interrogatories in favor of Locust Hill.

Nothing in the record suggests that the circuit court misunderstood the advisory
nature of the jury’s role or improperly delegated its judicial responsibilities. The circuit
court maintained its judicial responsibility by ultimately making its own independent
determination. The advisory jury’s role was to provide community perspective. See E.
Shepherdstown Developers, Inc. v. J. Russell Fritts, Inc., 183 W. Va. 691, 694, 398 S.E.2d
517, 520 (1990) (“An advisory jury is just that, advisory.”) (emphasis in the original).

Further, while Mr. Wilber consistently maintained that interpretation of Section
10.2-1 presented a question of law, the record does not demonstrate that Mr. Wilber
objected to the circuit court’s authority to impanel an advisory jury under Rule 39(c).5

Because Rule 39(c) authorized the procedure employed by the circuit court, and
because the record discloses no abuse of discretion in the manner in which the advisory
jury was utilized, we affirm the circuit court’s rulings concerning the advisory jury
proceedings.

Mr. Wilber next argues that the circuit court erred in dismissing his counterclaim for
attorney fees and related relief. He contends that Locust Hill failed to comply with the
governing Declaration and bylaws before commencing litigation and that, as a result, he
was entitled to relief on his counterclaim. We disagree.

Mr. Wilber’s counterclaim is premised upon Locust Hill’s alleged failure to conduct
a Board hearing before pursuing enforcement of the Declaration. However, after the circuit
court directed Locust Hill to conduct such a hearing, the Board convened on November 7,
2023, and unanimously determined that Mr. Wilber’s flag violated Section 10.2-1. By order

5
Additionally, Mr. Wilber created a question of fact for the lower court when he
claimed that the meaning of the flag was to support his good friend, Brandon, as opposed
to the meaning Locust Hill ascribed to the flag.
9
entered January 11, 2024, the circuit court concluded that any alleged procedural deficiency
had been cured and that the counterclaim was therefore moot.

We find no reversible error in that ruling. Even assuming the governing Declaration
and bylaws contemplated a Board hearing before commencing litigation, the hearing was
ultimately held, the Board rendered a decision, and Mr. Wilber has identified no remaining
live controversy arising solely from the timing of the hearing. Additionally, Mr. Wilber
points to no portion of the Declaration authorizing damages for such alleged breach.

Nor did the circuit court err in denying Mr. Wilber’s request for attorney fees. Mr.
Wilber relied upon West Virginia Code § 36B-3-116(f), but that statute concerns the
collection of assessments and does not provide a basis for attorney fees under the
circumstances presented. The circuit court also considered West Virginia Code § 36B-4-
117, which permits an award of reasonable attorney fees in an appropriate case. That statute
is discretionary rather than mandatory.

Given the circuit court’s findings that a Board hearing was not required before
litigation commenced, that the counterclaim was filed more than one year after the
complaint, and that any alleged procedural deficiency had been cured, the circuit court did
not abuse its discretion in declining to award attorney fees.

Accordingly, the circuit court did not err in dismissing the counterclaim with
prejudice, and we affirm the January 11, 2024, Order Granting Plaintiff’s Motion to
Dismiss Defendant’s Counterclaim.

For the foregoing reasons, we affirm the circuit court’s January 11, 2024, Order
Granting Plaintiff’s Motion to Dismiss Defendant’s Counterclaim and the circuit court’s
rulings concerning the advisory jury proceedings. We reverse the circuit court’s
determination that Mr. Wilber’s flag violated Article 10, Section 10.2-1 of the Declaration
and reverse the injunction entered pursuant thereto.6 This matter is remanded for entry of
an order consistent with this decision and for such further proceedings as may be necessary.

Affirmed, in part, Reversed, in part, and Remanded.

ISSUED: June 11, 2026

CONCURRED IN BY:

6
Considering our determination that the circuit court erred in its interpretation of
Section 10.2-1 and reversal of the judgment below, the remaining assignments of error no
longer present issues necessary to the disposition of this appeal and are moot.
10
Chief Judge Daniel W. Greear
Judge Charles O. Lorensen
Judge S. Ryan White

11