IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 2015 Term
FILED
_______________ November 4, 2015
released at 3:00 p.m.
RORY L. PERRY II, CLERK
SUPREME COURT OF APPEALS
No. 14-1110 OF WEST VIRGINIA
_______________
HEARTWOOD FORESTLAND FUND IV, LP,
a North Carolina Limited Partnership,
Plaintiff Below, Petitioner
v.
BILLY HOOSIER, JR.,
Defendant Below, Respondent
_______________
Appeal from the Circuit Court of Wyoming County
The Honorable Warren R. McGraw, Judge
Civil Action No. 10-C-34
_______________
REVERSED AND REMANDED WITH DIRECTIONS
_______________
Submitted: October 14, 2015
Filed: November 4, 2015
Kenneth E. Webb, Jr., Esq. Timothy P. Lupardus, Esq.
James E. Scott, Esq. Lupardus Law Office
Bowles Rice LLP Pineville, West Virginia
Charleston, West Virginia Counsel for the Respondent
Counsel for the Petitioner
JUSTICE KETCHUM delivered the Opinion of the Court.
SYLLABUS BY THE COURT
“An improver of land owned by another, who through a reasonable mistake of fact and
in good faith erects a building entirely upon the land of the owner, with reasonable belief that
such land was owned by the improver, is entitled to recover the value of the improvements
from the landowner and to a lien upon such property which may be sold to enforce the
payment of such lien, or, in the alternative, to purchase the land so improved upon payment
to the landowner of the value of the land less the improvements and such landowner, even
though free from any inequitable conduct in connection with the construction of the building
upon his land, who, however, retains but refuses to pay for the improvements, must, within
a reasonable time, either pay the improver the amount by which the value of his land has
been improved or convey such land to the improver upon the payment by the improver to the
landowner of the value of the land without the improvements.” Syl., Somerville v. Jacobs,
153 W.Va. 613, 170 S.E.2d 805 (1969).
Justice Ketchum:
The petitioner, Heartwood Forestland Fund IV, LP (“Heartwood”), appeals from the
September 29, 2014, order of the Circuit Court of Wyoming County pursuant to which the
respondent, Billy Hoosier, Jr. (“Hoosier”), was granted judgment as a matter of law. The
action concerns a modular home mistakenly placed by Hoosier on a parcel of land owned by
Heartwood. The order directs that Hoosier shall receive title to the portion of Heartwood’s
parcel mistakenly encroached upon and that Heartwood shall receive from Hoosier the fair
market value thereof, less Hoosier’s improvements.
Heartwood asserted before the circuit court that Hoosier, who owns an adjoining
parcel, failed to determine the location of the common property line and, therefore, acted
unreasonably in placing the modular home on Heartwood’s parcel. Moreover, Heartwood,
a partnership with forest reserves in Wyoming County, asserted that the modular home is
harming its timber hauling business by obstructing Heartwood’s sole access to the public
road. Finally, Heartwood asserted that Hoosier’s failure to file a counterclaim after being
given leave to do so by the circuit court, and his failures concerning other procedural matters,
should preclude him from any relief. Restating those assertions before this Court, Heartwood
asks that we set aside the transfer of title and direct that Hoosier’s modular home be
relocated.
1
Upon review, this Court reverses the circuit court’s September 29, 2014, order. We
hold that Hoosier’s modular home must be removed from Heartwood’s property and
relocated at Hoosier’s expense. Accordingly, we remand this action with directions that the
circuit court facilitate a reasonable process through which the removal and relocation of the
modular home can be completed no later than six months from the entry of the mandate in
this appeal.
I. Factual Background
The operative facts are not in dispute. Heartwood, a North Carolina limited
partnership, is the owner of land and forest reserves in Wyoming County. The parcel in
question, consisting of approximately 5.6 acres, was purchased by Heartwood in March 2004.
Adjacent to Heartwood’s parcel is a 1.3 acre parcel purchased by Hoosier in January 2008.
Deeds reflecting those purchases were duly recorded in the Office of the Clerk of the
Wyoming County Commission.
Soon after purchasing the 1.3 acre parcel, Hoosier obtained financing to buy a
modular home.1 Without obtaining a survey to determine boundary lines, Hoosier personally
1
There are no photographs of Hoosier’s home in the appendix record. The home
was referred to before the circuit court as a modular home, a mobile home, a trailer, a
“double-wide” and a manufactured home. However, when specifically asked by the
circuit court, Hoosier’s counsel stated that the dwelling is a “modular home.”
Accordingly, we will refer to the dwelling as a modular home.
2
cleared and leveled a site to which the home was delivered by the modular home dealer. The
home was transported on wheels and placed on blocks, and a foundation was subsequently
constructed. However, the site prepared by Hoosier and the modular home placed thereon
are entirely within the 5.6 acre parcel owned by Heartwood.
Stating that the modular home is obstructing its timber hauling operations, Heartwood
sent letters to Hoosier in March, April and November 2009 demanding that the home be
removed from its property. Heartwood offered to assist Hoosier in the relocation. Hoosier,
however, declined to move the modular home.
II. Procedural Background
On March 4, 2010, Heartwood filed a complaint in the Circuit Court of Wyoming
County against Hoosier. Heartwood sought, inter alia, declaratory relief to confirm its
ownership of the 5.6 acre tract and an ejectment order for the removal of Hoosier’s modular
home. Cited in the complaint is W.Va. Code, 55-4-1 [1923], et seq. (providing for ejectment
from real estate).
Hoosier’s deposition was taken in June 2011 during which he acknowledged that he
never obtained a survey to determine the common property line between the parcels. He
further acknowledged that the modular home is not on his property. In August 2011,
3
Heartwood filed a motion for summary judgment. Heartwood emphasized that Hoosier does
not dispute that his home was erroneously placed on Heartwood’s parcel. In addition,
Heartwood submitted a survey report completed by Sefton R. Stewart, a licensed professional
surveyor, which shows the location of the modular home within Heartwood’s 5.6 acre tract.
On January 20, 2012, the circuit court entered an order denying Heartwood’s motion
for summary judgment. The circuit court noted in the order that Hoosier’s home was placed
on Heartwood’s property. Nevertheless, in denying the motion, the circuit court relied on
Somerville v. Jacobs, 153 W.Va. 613, 170 S.E.2d 805 (1969), the syllabus point of which
holds:
An improver of land owned by another, who through a reasonable
mistake of fact and in good faith erects a building entirely upon the land of the
owner, with reasonable belief that such land was owned by the improver, is
entitled to recover the value of the improvements from the landowner and to
a lien upon such property which may be sold to enforce the payment of such
lien, or, in the alternative, to purchase the land so improved upon payment to
the landowner of the value of the land less the improvements and such
landowner, even though free from any inequitable conduct in connection with
the construction of the building upon his land, who, however, retains but
refuses to pay for the improvements, must, within a reasonable time, either pay
the improver the amount by which the value of his land has been improved or
convey such land to the improver upon the payment by the improver to the
landowner of the value of the land without the improvements.
See also C. R. McCorkle, Annotation, Compensation for Improvements Made or
Placed on Premises of Another By Mistake, 57 A.L.R.2d 263 (Supp. 2011) (citing
4
Somerville).
Heartwood filed a petition for a writ of prohibition in this Court challenging the denial
of its motion for summary judgment.2 Heartwood alleged that Hoosier acted unreasonably
in placing the modular home on Heartwood’s property and that the modular home conferred
no value or benefit to Heartwood. This Court refused Heartwood’s petition on May 23,
2012.
In May 2014, Hoosier filed a motion for judgment as a matter of law. Hoosier alleged
that the placement of the modular home on the wrong parcel was due to error in the delivery
of the home by the dealer. Therefore, the placement of the home was accidental and made
in good faith. Hoosier further alleged that relocation would damage the home and depreciate
its value. Hoosier asked the circuit court to direct Heartwood to convey the site to Hoosier
at the property’s pre-improvement market value. According to Hoosier, the conveyance
should include the modular home, reasonable surrounding grounds and access to the public
road.
In response, Heartwood asserted that, although Hoosier blamed the modular home
2
The petition was styled State ex rel. Heartwood Forestland Fund IV, LP v. The
Honorable Warren R. McGraw, Judge of the Circuit Court of Wyoming County; and Billy
Hoosier, Jr., no. 12-0445.
5
dealer for the placement of the home on Heartwood’s parcel, Hoosier never filed a third-party
complaint against the dealer. Rather, the modular home dealer delivered the home to the site
Hoosier had personally cleared and leveled for just that purpose. Moreover, Heartwood
noted that Hoosier never filed a counterclaim against Heartwood, and, therefore, any relief
sought against Heartwood was unwarranted. Heartwood emphasized that Hoosier failed to
file the third-party complaint and the counterclaim after having been given leave to do so by
the circuit court.
Following a May 28, 2014, hearing, the circuit court entered the September 29, 2014,
order granting Hoosier’s motion for judgment as a matter of law.3 Again relying on
Somerville, the circuit court awarded Hoosier “ownership and title of the real estate upon
which he mistakenly encroached.” The order awarded Heartwood the fair market value of
the property. The order stated: “Market value may be assessed by completion of an appraisal
at [Hoosier’s] expense, with said appraisal report delivered to the Court. Said appraisal is
to consider the real estate only and not the improvements thereon.” Heartwood’s appeal to
this Court followed.
3
The order, less than two complete pages, did not set forth findings of fact and
conclusions of law.
6
III. Standard of Review
The order entered by the circuit court on September 29, 2014, resulted from Hoosier’s
motion for judgment as a matter of law. A motion, so described, is only made in the course
of a jury trial. See Rule 50 of the West Virginia Rules of Civil Procedure (providing for
judgment as a matter of law in jury trials). In this action, a jury trial was scheduled but never
conducted. The September 29, 2014, order was, thus, a de facto grant of summary judgment
in favor of Hoosier.
Pursuant to Rule 56 of the West Virginia Rules of Civil Procedure, summary judgment
is proper where the record demonstrates that “there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.” As a result of that
straightforward language, this Court’s standards of review concerning summary judgment
are well settled. Syllabus point 3 of Aetna Cas. & Sur. Co. v. Fed. Ins. Co. of N.Y., 148
W.Va. 160, 133 S.E.2d 770 (1963), holds: “A motion for summary judgment should be
granted 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.” Accord syl. pt. 1,
Coleman Estate v. R.M. Logging, Inc., 222 W.Va. 357, 664 S.E.2d 698 (2008). Furthermore,
in syllabus point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), this Court
stated that a circuit court’s entry of summary judgment “is reviewed de novo.” Accord Grant
7
Thornton, LLP v. Kutak Rock, LLP, 228 W.Va. 226, 233, 719 S.E.2d 394, 401 (2011).4
IV. Discussion
W.Va. Code, 55-4-1 [1923], et seq., entitled “Ejectment,” cited in Heartwood’s
complaint, provides a cause of action for the recovery of possession of real estate unlawfully
withheld by another. In the usual case, the plaintiff, asserting a right to the property, alleges
that the defendant has entered the premises and is unlawfully withholding possession, or
claims ownership, title or interest therein to the plaintiff’s detriment. If the plaintiff prevails,
the defendant may assert a claim pursuant to W.Va. Code, 55-4-23 [1923], for the
improvements he or she made to the property.
Claims for improvements to land are more specifically addressed in W.Va. Code, 55
5-1 [1923], et seq., entitled “Allowance for Improvements” and also known as “The
Betterment Statute.” Under W.Va. Code, 55-5-1 [1923], thereof, a defendant, against whom
a decree or judgment is rendered for land, may present a claim for the value of permanent
4
This Court’s standards of review of an order granting judgment as a matter of law
are comparable to the standards concerning summary judgment. In both instances, review
is de novo and, in both instances, this Court considers the evidence in the light most
favorable to the nonmovant. See syl. pt. 5, Smith v. First Community Bancshares, Inc.,
212 W.Va. 809, 575 S.E.2d 419 (2002) (addressing appellate standards of review with
regard to the granting of a motion for judgment as a matter of law). See also Vol. 9
Moore’s Federal Practice § 50.92 (Matthew Bender 3rd ed. 2015) (A ruling on a motion
for judgment as a matter of law is reviewed de novo, while drawing all reasonable
inferences in favor of the nonmovant.).
8
improvements, where the defendant held the property under a title the defendant believed to
be good.
The Betterment Statute was cited by this Court in Somerville v. Jacobs, the case relied
on by the circuit court.5 Therein, the Somervilles mistakenly constructed a warehouse on lot
47 owned by the Jacobses. Lot 47 was subsequently leased to the Parkersburg Coca-Cola
Bottling Company. The Jacobses, the true landowners, did not learn that the warehouse was
on their property until after the building had been constructed and occupied by the lessee.
The Somervilles filed an action against the Jacobses seeking compensation for the value of
the improvements to lot 47 or, in the alternative, a conveyance of the lot to the Somervilles
by the Jacobses.
In Somerville, the circuit court ordered that the Jacobses, the true landowners, would
5
Though cited, The Betterment Statute was not directly applicable in Somerville
because, in Somerville, a decree or judgment for land had not already been entered against
a defendant who then sought recovery for permanent improvements. See syl. pt. 2, in
part, Green v. Mullins, 146 W.Va. 958, 124 S.E.2d 244 (1962) (The Betterment Statute
applies “only to a case in which a decree or judgment for land has been rendered against a
defendant.”). While the same may be said in the matter now before us, the Ejectment
provisions, W.Va. Code, 55-4-1 [1923], et seq., which address the recovery of possession
of real estate, as well as claims for improvements, are relevant. As to improvements,
W.Va. Code, 55-4-23 [1923], states: “If the defendant intends to claim allowance for
improvements made upon the premises by himself or those under whom he claims, he
shall file with his plea, or at a subsequent time before the trial (if for good cause allowed
by the court), a statement of his claim therefor, in case judgment be rendered for the
plaintiff.” (Emphasis added)
9
have to elect between (1) retaining the warehouse and compensating the Somervilles
$17,500.00 for the improvement or (2) conveying lot 47 to the Somervilles for $2,000.00.
Those amounts were determined as follows: The fair market value of lot 47 prior to the
construction of the warehouse was $2,000.00. The fair market value of lot 47 immediately
after the construction of the warehouse was $19,500.00, the difference representing an
improvement in the amount of $17,500.00.
This Court, in Somerville, affirmed the ruling of the circuit court. Analyzing a number
of decisions from other jurisdictions, this Court, in Somerville, nevertheless, concluded that,
in cases involving the right to recover for improvements mistakenly placed on land owned
by another, the solution depends largely “upon the circumstances and the equities involved
in each particular case.” 153 W.Va. at 629, 170 S.E.2d at 813-14. In Somerville, among the
factors considered was the absence of any inequitable conduct on the part of the Jacobses,
the true landowners. Nevertheless, this Court observed that
if the [Jacobses] retain the building and refuse to pay any sum as compensation
to the [Somervilles] they will be unjustly enriched in the amount of
$17,500.00, the agreed value of the building, which is more than eight and
one-half times the agreed $2,000.00 value of the lot of the [Jacobses] on which
it is located[.]
10
153 W.Va. at 628, 170 S.E.2d at 813.6
Justice Caplan filed a dissent in Somerville stating that he would give the Jacobses,
who were without fault, the election “of purchasing the building, of selling the property, or
of requiring the [Somervilles] to remove the building from [the Jacobses’] property.”
(Emphasis added) 153 W.Va. at 636, 170 S.E.2d at 817. Justice Caplan stated: “It is not
unusual for a property owner to have long range plans for his property. He should be
permitted to feel secure in the ownership of such property by virtue of placing his deed
therefor on record.” 153 W.Va. at 635, 170 S.E.2d at 816.
As in Somerville, it is undisputed that the structure, in this case the modular home,
was placed on the wrong property and was placed there in the absence of any inequitable
conduct on the part of the true landowners. Hoosier, without determining the boundary lines,
personally cleared and leveled a site on the parcel owned by Heartwood on which the
modular home was delivered by the dealer. During his deposition, Hoosier acknowledged
that the home is not on his property. That fact is confirmed by the deeds and maps included
in the appendix record before this Court. Beyond those considerations, the circumstances
6
Somerville was modified by Realmark Developments, Inc. v. Ranson, 214 W.Va.
161, 588 S.E.2d 150 (2003). Syllabus point 2 of Realmark holds: “The measure of
damages in an unjust enrichment claim is the greater of the enhanced market value of the
property or the cost of the improvements to the property. To the extent that the Syllabus
of Somerville v. Jacobs, 153 W.Va. 613, 170 S.E.2d 805 (1969), differs from this holding,
it is hereby modified.”
11
herein are in sharp contrast to those in Somerville.
The principles set forth in Somerville, reflected in its syllabus point, are evoked by the
word “improvements” and the retention of the same by the true landowner.7 Here, no
evidence shows Hoosier’s modular home to be an improvement or benefit to Heartwood’s
5.6 acres. To the contrary, Heartwood has shown that the presence of the home is harming
its timber hauling business by obstructing its sole access to the public road. In that regard,
the record includes the May 22, 2014, affidavit of Craig Kaderavek, Director of Forest
Operations for the Appalachian Region of The Forestland Group, of which Heartwood is a
subsidiary. According to Kaderavek, Heartwood’s property is the only viable connection to
the public road, and, by preventing Heartwood from engaging in its business operations,
Hoosier has diminished the value of the property.8 Kaderavek’s affidavit further states that
Heartwood has no need or use for the modular home and that, although Heartwood offered
to assist Hoosier with a portion of his relocation costs, Hoosier declined the offer. Thus, to
paraphrase Justice Caplan’s dissent, Heartwood’s business activities comport with its right
to be secure in the ownership of its property and its long range plans for the use of its
7
This Court noted in Somerville that “it is clear from the testimony of the
defendant William L. Jacobs in his deposition that the [Jacobses] intend to keep and
retain the improvements and refuse to compensate the [Somervilles] for their value. * *
* [The Jacobses] will not consent to the removal of the building even if that could be
done.” 153 W.Va. at 627, 170 S.E.2d at 812-13.
8
Hoosier admits that the question of other access points to Heartwood’s timber
was not developed in the record.
12
property.9
In Somerville, the warehouse was constructed on the wrong lot as the result of an
inaccurate survey provided to the Somervilles. Consequently, this Court concluded that the
Somervilles had a reasonable belief, though mistaken, that the warehouse was on their own
property. While we do not suggest that a survey should accompany all conveyances of real
estate, in the present action Hoosier conducted no inquiry, survey, examination of the deeds
on record, or otherwise, to determine the boundary between the respective parcels. Hoosier,
thus, failed to take proper care by not using the information available to him in placing the
modular home where he did. His actions were unreasonable and lacked the compelling
quality which resulted in the granting of relief in Somerville.
Accordingly, Hoosier is entitled to neither a conveyance of title from Heartwood nor
compensation for alleged improvements to Heartwood’s property. As stated in Restatement
(Third) of Restitution and Unjust Enrichment § 10, comment a. (2011):
A judgment requiring the owner either to pay for an improvement or to
sell the property at its unimproved value would probably be unacceptably
9
See Ark Land Co. v. Harper, 215 W.Va. 331, 599 S.E.2d 754 (2004), a partition
action in which this Court observed that “one who wants a particular estate for a specific
use, if deprived of his rights, cannot be said to receive an exact equivalent or complete
indemnity by the payment of a sum of money.” (Internal quotation marks and case
citations omitted) 215 W.Va. at 336, 599 S.E.2d at 759.
13
harsh in the case of property occupied by the owner, or property as to which
the owner had formed definite expectations of future use.
See Little v. Little, 184 W.Va. 360, 363, 400 S.E.2d 604, 607 (1990) (The value of
improvements are not recoverable in the absence of a reasonable mistake of fact or a
reasonable belief that the land was owned by the improver.). Here, the record indicates that
the modular home can be moved from Heartwood’s parcel. We, therefore, hold that the
modular home must be removed and relocated at Hoosier’s expense.
The result herein is further supported from a procedural standpoint. On November
14, 2011, the circuit court entered an order which granted Hoosier’s oral motion for leave to
file an amended answer and a third-party complaint. The record indicates that the purpose
of the amended answer was to assert a counterclaim for relief against Heartwood for title to
the property or for compensation for the improvements to the property. The purpose of the
third-party complaint was to assert a claim by Hoosier against the modular home dealer. The
November 14, 2011, order was entered almost three years prior to the final order of
September 29, 2014. However, no counterclaim or third-party claim were ever filed.
Moreover, Hoosier conducted little or no discovery in the action. The relief set forth in
Hoosier’s motion for judgment as a matter of law, filed in May 2014, was limited to a
14
demand that the property be sold by Heartwood to Hoosier.10
V. Conclusion
Upon review, this Court reverses the circuit court’s September 29, 2014, order which
awarded Hoosier title to Heartwood’s property. Hoosier’s modular home shall be removed
from Heartwood’s property and relocated at Hoosier’s expense. Accordingly, we remand this
action with directions that the circuit court facilitate a reasonable process through which the
removal and relocation of the modular home can be completed no later than six months from
the entry of the mandate in this appeal.11
10
Other procedural issues include Hoosier’s failure to move to dismiss the action
on the ground that Hoosier’s wife, who also lived in the modular home, was never joined
as a party, even though more than four years lapsed between the filing of the complaint in
March 2010 and the final order of September 29, 2014.
An additional procedural matter concerns West Virginia Trial Court Rule 24.01.
which states that “all orders shall be submitted to the judicial officer promptly.” At the
May 28, 2014, hearing, the circuit court instructed the parties to submit their respective
proposed orders by June 20, 2014. Heartwood timely submitted its proposed order, and
no objection thereto was filed by Hoosier. Over two months later, on September 19,
2014, Hoosier submitted his own proposed order, which was not received by Heartwood
until September 22, 2014. Heartwood filed objections thereto, but before the objections
could be considered, the circuit court entered Hoosier’s proposed order. Consequently,
Heartwood was denied the opportunity to voice its objections prior to the entry of the
circuit court’s final order.
11
This Court is of the opinion that the six month period for removal and relocation
is fair under the circumstances of this action. In Heartwood’s proposed order denying
Hoosier’s motion for judgment and awarding Heartwood summary judgment, Heartwood
sought ejectment of the modular home at Hooosier’s expense and that the removal of the
home be completed no later than six months “from the entry of this Order.” Moreover,
Heartwood’s subsequent petition for a writ of prohibition sought a remand with directions
15
Reversed and Remanded with Directions
that the circuit court facilitate a reasonable process through which Hoosier’s modular
home could be removed from Heartwood’s property. Finally, during the May 28, 2014,
hearing, Heartwood repeatedly expressed a willingness to assist Hoosier in moving the
modular home from Heartwood’s property and transferring it to Hoosier’s property.
16