4. “Privity, in a legal sense, ordinarily denotes 'mutual or successive
relationship to the same rights of property.' [Edward F.] Gerber [Co.] v. Thompson, 84
W.Va. 721, 727, 100 S.E. 733, [735,] 7 A.L.R. 730[, 734 (1919)].” Syllabus, Cater v.
Taylor, 120 W.Va. 93, 196 S.E. 558 (1938).
5. “When a statute is clear and unambiguous and the legislative intent is plain,
the statute should not be interpreted by the courts, and in such case it is the duty of the courts
not to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel Morgan Post
No. 548, V.F.W., 144 W.Va. 137, 107 S.E.2d 353 (1959).
Per Curiam:
By way of this appeal, Scott and Mary Ellen Black (hereinafter referred to
collectively as “Appellants”) challenge the orders of the Circuit Court of Cabell County by
which the discriminatory housing practices complaint filed by the West Virginia Human
Rights Commission (hereinafter referred to as “HRC”) against The Esquire Group, Inc.
(hereinafter referred to as “Esquire”)
(See footnote 1)
was dismissed. Appellants intervened in the HRC
civil action,
(See footnote 2)
in which HRC charged Esquire with violation of West Virginia Code § 5-11A-
5(f)(3) (1992) (Repl. Vol. 2002), for insisting on strict adherence to the provisions of
restrictive covenants affecting the housing subdivision lots owned by Appellants and
Esquire, and thereby failing to make reasonable accommodation for the disability needs of
Appellants' daughter, Rebecca A. Black. Appellants essentially contend that the lower
court, in granting summary judgment for Esquire, erred by finding that the housing
discrimination claim was barred by principles of res judicata or in the related finding that the
discrimination claim was a compulsory counterclaim which should have been raised in the
prior restrictive covenant proceeding. Appellants additionally argue that the court below
erred by finding that the accommodation Esquire offered of not immediately enforcing the
permanent injunction it had obtained against Appellants to be reasonable. HRC files cross-
assignments of error also opposing the circuit court's summary judgment order on the basis
of res judicata and contesting the lower court's finding that Esquire provided reasonable
accommodation. Having completed our review of the record against the backdrop of the
arguments and briefs of the parties and the applicable legal principles, we reverse the final
order of the lower court and remand the case for trial.
As reflected in the permanent injunction order, the restrictive covenants upon
which Esquire relied in the initial suit are as follows:
Restrictive Covenant No. 10 . . .
ARCHITECTURAL CONTROL COMMITTEE
APPROVAL. No construction shall be begun upon any lot
until the plans and specifications including the location of the
structure on said lot have been approved by the Architectural
Control Committee. No fence, hedge or wall shall be erected,
planted, placed or altered upon any lot without the approval of
said Architectural Control Committee.
Restrictive Covenant No. 14 . . .
FENCES AND SHRUBS. No fence of any kind shall be
allowed on any lot without approval of the Architectural
Control Committee, and no fence shall be constructed forward
of the rear building line of the house, except ornamental fences
not exceeding twenty-four (24) inches in height. . .
The record reflects that Appellants were made aware of these provisions in
their deed and approached the Architectural Control Committee (hereinafter referred to as
“ACC”)
(See footnote 4)
sometime in July 1999 to obtain approval for constructing an in-ground swimming
pool with a privacy fence. ACC communicated its decision by letter dated August 3, 1999,
in which it said:
The in-ground pool, as submitted, has been approved and
construction may begin at your discretion. However, the five-foot white vinyl fence which you propose does not comply with
the covenants, which you previously agreed upon at the time
you purchased your property. We respectfully request any fence
surrounding the pool be of a height no greater than 24” as
specified in the deed covenants.
When Esquire learned that Appellants had erected a fence in excess of twenty-
four inches, it filed a petition for a preliminary injunction in November 1999 to halt what
they claimed to be a violation of the restrictive covenants. A hearing was held on
November 29, 1999, regarding the preliminary injunction. Mr. Black testified at the hearing,
during which he stated the safety and liability reasons why the fence was constructed around
the pool; however, he did not indicate that his daughter's medical condition contributed to
the explanation of why the fence was needed to minimize contamination of the pool. A
temporary injunction was granted at the end of the hearing and Esquire filed for permanent
injunctive relief that same day.
In responsive pleadings, Appellants focused their assault on the validity and
enforceability of the restrictive covenants and did not mention the daughter's condition or
its disabling effects. At a hearing regarding the petition for a permanent injunction held on
February 25, 2000, Mr. Black discussed his daughter's illness in relation to the fence and
pool in the following way:
(See footnote 5)
[W]e wanted to put in a pool for our daughter. That's the
reason for the fence. Our daughter has leukemia and we wanted
to _ it was one of her wishes to have _ have a pool to swim in.
And we _ I went about finding out, you know, the cost of pools.
I went about to find the cost of pools and we _ all we
wanted to do was a pool for our daughter. That's all we want
to do.
The fence is put up there to protect the kids in the
neighborhood, that's all the reason.
At the conclusion of the February 25, 2000, hearing, the presiding judge ruled from the
bench, stating that:
A restrictive covenant is just that, a restrictive covenant.
They're not looked upon with favor, but they are honored.
that the Esquire Group immediately grant a variance for the Black's [sic] fence and swimming pool. The Black's [sic] are requesting that the variance be granted by Friday, March 17, 2000. Failure to do so will result in charges being filed for a violation of the Fair Housing Act of 1988, for failing to make reasonable accommodations and other potential violations.
Esquire's counsel responded to this demand by letter dated March 16, 2000, in the following way:
I also reviewed at noon today your telecopy with its
demand for a variance based upon a March 14, 2000[,] letter
from Andrew L. Pendleton, M.D. and your threat of charges
being filed for violations of the Fair Housing Act of 1988. You
acknowledged that this was the very first time these issues had
been raised and differed from all prior information (back to July
1999) that construction on the Black property related solely to
the child's request for a pool and her private recreation and
enjoyment during her illness. Esquire is not aware that it
violated any law, and denies doing so.
On March 19, 2000, Appellants filed an administrative complaint alleging
discrimination and violation of their daughter's fair housing rights, which triggered an HRC
investigation. At the same time, while HRC sought but did not attain intervenor status in
the restrictive covenant case, the permanent injunction therein granted was stayed during the
pendency of the HRC investigation. After the investigation was completed, HRC found
reasonable cause to believe that the Fair Housing Act had been violated and issued “a charge
on behalf of the aggrieved person.” W. Va. Code § 5-11A-11(f)(2)(A) (1992) (Repl. Vol.
2002). On April 9, 2001, HRC filed the housing discrimination case in the circuit court at
the request of Esquire as permitted by West Virginia Code § 5-11A-13(a) (1992) (Repl. Vol.
2002). Rebecca Black, by and through her parents, sought and obtained intervenor status
in the HRC case.
Esquire moved for summary judgment on September 17, 2002, claiming that
res judicata principles dictated dismissal of the housing discrimination case. On May 22,
2003, a hearing was held on the motion and summary judgment was granted to Esquire.
While the lower court announced its ruling at the conclusion of the May 22, 2003, hearing,
the order detailing the grounds for dismissing the discrimination case was not entered until
September 10, 2003. In granting Esquire's motion for summary judgement, the court below
determined that the handicap discrimination claim was barred as res judicata and found that
the discrimination action was a compulsory counterclaim which should have been brought
at the time of the restrictive covenant suit. At the same time, the court below found that
Esquire's actions evidenced reasonable accommodation of the medical needs of Appellants'
daughter. Appellants timely moved to alter or amend the judgment pursuant to Rule 59(e)
of the West Virginia Rules of Civil Procedure, which motion was denied. Thereafter this
appeal was filed by Appellants, in which HRC filed cross-assignment of errors.
“To preclude parties from contesting matters that they have had
a full and fair opportunity to litigate protects their adversaries
from the expense and vexation attending multiple lawsuits,
conserves judicial resources, and fosters reliance on judicial
action by minimizing the possibility of inconsistent decisions.”
Conley, 171 W.Va. at 588, 301 S.E.2d at 219-20. Later, in Blake v. Charleston Area
Medical Center, Inc., 201 W.Va. 469, 498 S.E.2d 41 (1997), we established the following
three-part test for determining whether res judicata serves to preclude a claim.
Before the prosecution of a lawsuit may be barred on the
basis of res judicata, three elements must be satisfied. First,
there must have been a final adjudication on the merits in the
prior action by a court having jurisdiction of the proceedings.
Second, the two actions must involve either the same parties or
persons in privity with those same parties. Third, the cause of
action identified for resolution in the subsequent proceeding
either must be identical to the cause of action determined in the
prior action or must be such that it could have been resolved,
had it been presented, in the prior action.
Id. at Syl. Pt. 4. No one challenges that the first condition was met in the instant case;
however, the existence of the second element is contested by both Appellants and HRC.
Additionally, HRC argues that the cause of action in the restrictive covenant suit and the
cause of action in the housing discrimination suit are dissimilar, making a res judicata
determination unsuitable under the third element of the test announced in Blake.
A. Same Parties or Persons in Privity
It is undisputed that neither Appellant's daughter nor HRC were named as a
party in the restrictive covenant suit brought by Esquire; however, both Appellants and HRC
contend that the lower court erred by finding that the daughter and HRC were in privity with
parties in the first suit.
This Court defined the word “privity” in the syllabus of Cater v. Taylor, 120
W.Va. 93, 196 S.E. 558 (1938), by saying: “Privity, in a legal sense, ordinarily denotes
'mutual or successive relationship to the same rights of property.' [Edward F.] Gerber [Co.]
v. Thompson, 84 W.Va. 721, 727, 100 S.E. 733, [735,] 7 A.L.R. 730[, 734 (1919)].” On a
later occasion in State v. Miller, 194 W.Va. 3, 459 S.E.2d 114 (1995), we explained that the
concept of privity with regard to the issue of claim preclusion is difficult to define precisely
but the key consideration for its existence is the sharing of the same legal right by parties
allegedly in privity, so as to ensure that the interests of the party against whom preclusion
is asserted have been adequately represented. Id. at 13, 459 S.E.2d at 124. Put another
way, “'[p]reclusion is fair so long as the relationship between the nonparty and a party was
such that the nonparty had the same practical opportunity to control the course of the
proceedings that would be available to a party.'” Gribben v. Kirk, 195 W.Va. 488, 498 n.
21, 466 S.E.2d 147, 157 n. 21 (1995) (quoting 18 Charles A. Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure § 4466 at 430 (1981)).
With regard to privity between parents and children, we have adopted the view
that privity does not automatically arise from the parent-child relationship. Glover v. Narick,
184 W.Va. 381, 389, 400 S.E.2d 816, 824 (1990). Thus, the analysis used to determine the
existence of privity as described in the preceding paragraph is applicable to situations where
a parent and child relationship is at issue. Applying that analysis to the matter before us, we
find that even though there are overlapping facts between the prior proceeding and the unfair
housing claim, the interests of Appellants and their daughter are decidedly different. Acting
in their capacity as individuals, Appellants' defense in the case involving enforcement of the
restrictive covenants rested solely on safety and liability reasons why a fence was needed to
protect their property rights despite the restrictive covenants. The daughter's interest rests
on the statutory right for individuals with handicaps to receive fair housing treatment
through reasonable accommodation. See W.Va. Code Chapter 5, Article 11A, West Virginia
Fair Housing Act (hereinafter referred to as “Act”). There was no shared legal right in this
instance because Appellants, who themselves allege no handicap, only could have asserted
an unfair housing claim in the prior proceeding if they were acting in a representative
capacity for their child, which they clearly were not. Under these circumstances, no privity
between the child and parents exists.
(See footnote 7)
The lower court also found HRC in privity with Appellants in the prior
proceeding. The lower court's reasoning to this end is not entirely clear. On the one hand
the court below stated in its September 8, 2003, summary judgment order that HRC's
argument of advancing the goal of vindicating the public's interest in eradicating
discrimination within the state was not convincing because “[t]his matter concerns a party-specific issue with regard to the Esquire's refusal to [give] the Blacks a permanent
exemption to the restrictive covenants.” Thereafter, the order relates:
In addition, it appears from the pleadings submitted that
the WVHRC made an attempt to intervene in the initial action
but their motion was held in abeyance pending further briefing.
Therefore, even though the WVHRC never achieved full party
status in the underlying action, it was connected with and
attempting to act on behalf of the Blacks even during the initial
action. The Court concludes that the Blacks and the WVHRC
are in privity with one another . . . .
The lower court's reasoning is flawed on both counts and in either instance the conclusion
is based on the determination that privity existed among Scott, Mary Ellen and Rebecca
Black. As we have found that the daughter was not in privity with the parents in this case,
and we see no other basis on which privity between Appellants and HRC existed, we find
the lower court's ruling in error. Moreover, the Legislature has delegated the responsibility
to HRC to act on behalf of the public interest and not merely serve as a proxy for a housing
discrimination complainant. W.Va. Code § 5-11A-11(f)(2)(A); W.Va. Code §§ 5-11A-13(c)
and (o)(2).
(See footnote 8)
Thus, HRC's authority to bring a fair housing discrimination suit is not merely
derivative as the lower court's ruling implies. Cf. EEOC v. Waffle House, Inc., 534 U.S.
279, 291 (2002) (applying federal antidiscrimination laws containing analogous authority
in the context of employment discrimination to find that the EEOC is not a proxy for a
complainant as “[t]he [enabling] statute clearly makes the EEOC the master of its own case
and confers on the agency the authority to evaluate the strength of the public interest at
stake.”).
B. Similarity of Cause of Action between Sequential Suits
The third factor which must be present to support a res judicata determination
is a finding that “the cause of action identified for resolution in the subsequent proceeding
either must be identical to the cause of action determined in the prior action or must be such
that it could have been resolved, had it been presented, in the prior action.” Blake, 201
W.Va. at 472, 498 S.E.2d at 44, at Syl. Pt. 4. As an extension of its assertion that it was
neither a party or in privity with a party in the restrictive covenant proceeding, HRC also
asserts as a counter assignment of error that this third factor was not satisfied. HRC
specifically claims that the private right of action provided to individuals under the Act is
not the same cause of action HRC is statutorily authorized to pursue when the agency issues
a housing discrimination charge to further the public's interest. We agree, mindful of the
fact that “[w]hen a statute is clear and unambiguous and the legislative intent is plain, the
statute should not be interpreted by the courts, and in such case it is the duty of the courts
not to construe but to apply the statute.” Syl. Pt. 5, State v. General Daniel Morgan Post
No. 548, V.F.W., 144 W.Va. 137, 107 S.E. 2d 353 (1959).
A private cause of action for housing discrimination is governed by West
Virginia Code § 5-11A-14 and must be filed in circuit court. The relief an individual may
seek is also prescribed by statute. Id. Charges brought by HRC following an investigation
are brought pursuant to West Virginia Code § 5-11A-11(f)(2), which directs the attorney
general to litigate either administratively or in the courts. W.Va. Code §§ 5-11A-13(c) and
-15(b). In addition to the individual relief available in these actions, HRC is empowered to
seek civil penalties in order to “vindicate the public interest” in either forum. W.Va. Code
§§ 5-11A-13(g)(3) and -15(d)(1)(C). If Appellants, acting in a representative capacity for
their daughter, had brought fair housing counterclaims in the restrictive covenant case, they
would not be able to pursue imposition of civil penalties. The claims for relief and types of
relief sought by HRC were simply not reachable or available in the restrictive covenant
proceeding given the facts of this case.
Based on the foregoing, we reverse the summary judgment order dismissing
as res judicata the housing discrimination claim brought by HRC and in which Appellants
intervened as representatives of their daughter's interests.
The remaining challenge to the lower court's summary judgment order raised
by both Appellants and HRC involves that court's treatment of the issue of reasonable
accommodation. After dismissing the housing discrimination claim as res judicata, the court
below proceeded to discuss the proof which Esquire had evidently presented regarding its
offer to accommodate the daughter's disability. Based upon Esquire's evidence, the lower
court found “that Esquire has offered plaintiffs'[sic] a reasonable accommodation as a
matter of law.” The court below seemingly granted summary judgment on this issue by
determining that there was no evidence upon which a jury could legitimately decide that
Esquire's offer to temporarily allow the fence variance was less than reasonable or that
Esquire owed Appellant's daughter a greater degree of accommodation in order to meet the
standard of reasonableness. Syl. Pt. 3, Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148
W.Va. 160, 133 S.E.2d 770 (1963) (A motion for summary judgment should be granted by
a circuit court “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.”)
Albeit for differing reasons, Appellants and HRC assert error with the lower
court's interpretation of the law regarding reasonable accommodation. Our problem with
the ruling is far more fundamental. In granting summary judgment on the basis of res
judicata, the lower court disposed of the housing discrimination claim in its entirety. Once
the claim was determined as res judicata, no part of that claim remained before the court for
further discussion or determination.
(See footnote 9)
At best this portion of the lower court's order takes on
the character of an advisory opinion and such obiter dicta is not becoming a court. “[C]ourts
[will not] resolve mere academic disputes or moot questions or render mere advisory
opinions which are unrelated to actual controversies. Mainella v. Board of Trustees, 126
W.Va. 183, 27 S.E.2d 486. 26 C.J.S., Declaratory Judgments, Section 30, page 107.”
Farley v. Graney, 146 W.Va. 22, 30, 119 S.E.2d 833, 838 (1960). Thus, we decline the
invitation to review the reasonable accommodation issues raised by Appellant and HRC as
they are prematurely advanced. Such accommodation issues would not be ripe for appellate
review until after they have been litigated below and this housing discrimination claim is
finally decided.