Heartwood Forestland Fund IV, LP v. Hoosier, No. 14–1110. (2022)

781 S.E.2d 391

HEARTWOOD FORESTLAND FUND IV, LP, a North Carolina Limited Partnership, Plaintiff Below, Petitioner
Billy HOOSIER, Jr., Defendant Below, Respondent.

No. 14–1110.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 14, 2015.
Decided Nov. 4, 2015.

Nov. 4, 2015.

Kenneth E. Webb, Jr., Esq., James E. Scott, Esq., Bowles Rice LLP, Charleston, WV, Counsel for the Petitioner.

Timothy P. Lupardus, Esq., Lupardus Law Office, Pineville, WV, Counsel for the Respondent.

KETCHUM, Justice:

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.

781 S.E.2d 393

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 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, 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

781 S.E.2d 394

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 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 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.

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...

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