On August 29, 2025, the West Virginia Intermediate Court of Appeals further reiterated in Hicks v. Barnett (No. 25-ICA-31), that certain waiver provisions in professional association agreements can be binding and enforceable. The Court reaffirmed that members of voluntary organizations, such as the West Virgina Association of Realtors (WVAR), are bound by their respective contractual obligations. Thus, professional associations and their members should understand both their protections and limitations these agreements impose.
The Hicks Case arose after Karen Barnett, a licensed real estate salesperson, filed an ethics complaint with the WVAR against Brandon Hicks, a licensed broker, concerning a social media post about a property sale. Hicks later filed suit alleging defamation, libel and intentional infliction of emotional distress. In September 2024, the Mercer County Circuit Court dismissed Hicks’s claims with prejudice, finding that they were barred by the WVAR’s waiver, which required its members to waive any legal claims for defamation or libel arising from ethics complaints. The circuit court noted that membership to the WVAR is voluntary and by maintaining an active membership, a member agrees to its terms. Subsequently, the circuit court denied Hicks’s motion to alter or amend because these issues were not raised timely. Thus, leading Hicks to appeal to the Intermediate Court of Appeals of West Virgina.
On appeal, the West Virginia Intermediate Court of Appeals decided two key issues. First, the Court affirmed, in part, the circuit court’s orders to dismiss both the defamation and libel claims. In its decision, the Court reasoned that the waiver provision was “akin to a contract,” and thus the issue became a legal determination of whether the language was ambiguous. Ultimately, the Court found that the waiver provision was unambiguous and applied to Hicks. Second, the Court vacated, in part, the circuit court’s orders to dismiss Hicks’ underlying claim for intentional infliction of emotional distress and remanded the matter to the circuit court. Demonstrating a court’s willingness to consider additional claims, even if primary claims are barred.
This decision to affirm that professional association agreements are binding and enforceable highlights the importance of fully understanding the terms of membership prior to joining, as many professional associations carry similar provisions. Furthermore, the broad language used in the decision implies that West Virgina’s courts may be willing to apply the Hicks rational beyond release of claims provisions. Professionals contemplating joining these associations should be aware of the membership implications and how they may affect your legal redressability. Should you have any questions regarding this decision, or professional association agreements, in general, please feel free to contact our West Virginia licensed lawyers.
