        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA


                               January 2016 Term

                                                                 FILED

                                                              March 3, 2016

                                  No. 15-0519                    released at 3:00 p.m.
                                                               RORY L. PERRY, II CLERK

                                                             SUPREME COURT OF APPEALS

                                                                  OF WEST VIRGINIA





                              JUDITH D. WARD,

                           Plaintiff Below, Petitioner



                                       V.



                              SUSAN K. WARD,

                         Defendant Below, Respondent




               Appeal from the Circuit Court of Hampshire County

                        Honorable Andrew N. Frye, Judge

                           Civil Action No. 14-C-126


       AFFIRMED, IN PART; REVERSED, IN PART; AND REMANDED




                          Submitted: February 23, 2016
                             Filed: March 3, 2016


Christopher P. Stroech                            Susan K. Ward
J. Daniel Kirkland                                Mount Airy, Maryland
Arnold & Bailey, PLLC                             Respondent, Pro Se
Charles Town, West Virginia
Attorneys for the Petitioner


JUSTICE DAVIS delivered the Opinion of the Court.
                             SYLLABUS BY THE COURT




              1.     “Under Code, 37-6-19, an action of ejectment or unlawful detainer may

be maintained to recover real estate, by reason of the breach of any covenant or condition of

the lease under which the same is held, including a covenant to pay rent, without any

previous demand being made for the payment of such rent on the leased premises or

elsewhere, or any demand for possession of such premises.” Syllabus point 1, Kincaid v.

Patterson, 129 W. Va. 234, 39 S.E.2d 920 (1946).



              2.     “To entitle an evicted claimant of land to compensation for permanent

improvements put upon the land by him while he was in possession, it must appear either that

he was a bona fide purchaser and holder at the time he made the improvements, or that the

improvements were made by him under such circumstances that it would be a fraud upon his

rights to permit the owner to take them without compensation.” Syllabus point 1, Hall v.

Hall, 30 W. Va. 779, 5 S.E. 260 (1888).



              3.     “Such evicted claimant, who is not a bona fide purchaser, can not

recover compensation for his improvements, unless he shows that the owner has been guilty

of fraud or gross laches in not notifying such claimant to desist, when he knew that the




                                              i
improvements were being made by the claimant under a mistaken belief that his title was

good.” Syllabus point 2, Hall v. Hall, 30 W. Va. 779, 5 S.E. 260 (1888).



              4.     “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.” Syllabus, Somerville v. Jacobs, 153 W. Va. 613, 170 S.E.2d 805 (1969).



              5.     “‘When the record in an action or suit is such that an appellate court can

not in justice determine the judgment that should be finally rendered, the case should be

remanded to the trial court for further development.’ Syl. pt. 2, South Side Lumber Co. v.




                                              ii
Stone Construction Co., 151 W. Va. 439, 152 S.E.2d 721 (1967).” Syllabus point 3,


Heydinger v. Adkins, 178 W. Va. 463, 360 S.E.2d 240 (1987).





                                          iii

Davis, Justice:

              The petitioner herein and plaintiff below, Judith D. Ward (“Judith Ward”),

appeals from an order entered January 29, 2015, by the Circuit Court of Hampshire County.

By that order, the circuit court granted relief to Judith Ward upon her action for unlawful

detainer against the respondent herein and defendant below, Susan K. Ward (“Susan Ward”).

In granting such relief, the circuit court further ordered Judith Ward to pay Susan Ward

$50,000 for the cost of the log cabin home that Susan Ward is required to vacate, and

conditioned Judith’s recovery of the subject real property upon her payment of this amount.

On appeal to this Court, Judith Ward contends that the circuit court erred by finding that she

would be unjustly enriched if she did not reimburse Susan Ward for the cost of the subject

log cabin. Upon a review of the parties’ arguments, the record designated for appellate

consideration, and the pertinent authorities, we conclude that the circuit court did not err in

granting Judith Ward relief for unlawful detainer while also requiring her to reimburse Susan

Ward for the cost of the log home that has been constructed as an improvement upon Judith

Ward’s property with her knowledge and consent. Therefore, we affirm the circuit court’s

ruling granting relief for unlawful detainer. However, the pleadings suggest that Susan Ward

has incurred costs greater than $50,000 in the erection and maintenance of the subject log

cabin home. Accordingly, we reverse that portion of the circuit court’s order valuing the log

home at $50,000 and remand the case for further proceedings to determine the additional




                                              1

amount, above the $50,000 initial cost of the log home kit, by which Judith Ward’s property

has been improved and to which Susan Ward is entitled to recover from Judith Ward.



                                              I.


                     FACTUAL AND PROCEDURAL HISTORY


              The facts giving rise to the instant proceeding are largely undisputed by the

parties. In 1999, Judith Ward, who is the owner of record of Tract Number 24 Green

Meadows Estates in Capon Bridge, West Virginia, ostensibly allowed her son, Gary Ward,

and his wife, Susan Ward, to construct a log cabin home on a portion of her property. The

parcel was not subdivided, and it does not appear that the parties entered any written

agreement memorializing their arrangement. Gary and Susan Ward paid $50,000 for the

subject log cabin home kit, and Judith Ward claims that she financed the site preparation and

construction. Susan Ward asserts further that she and Gary Ward incurred additional

expenses related to the building and maintenance of the log home.



              Despite the property remaining as an undivided parcel, because it contained

two distinct dwellings, two separate county property tax tickets were issued for Judith Ward’s

lot.1 Susan Ward represents that she and Gary Ward gave Judith Ward money to pay for the


              1
                One tax ticket was issued for Judith Ward’s primary residence and 5.61 acres
of the lot, and a second tax ticket was issued for the log cabin home and remaining 1 acre of
                                                                               (continued...)

                                              2

property taxes and further claims that, for a period of eighteen months,2 they gave Judith

Ward $500 per month to pay for the property taxes. Judith Ward acquiesced to Susan Ward,

Gary Ward, and their children living in the log cabin home on her property, and this living

arrangement continued in this fashion until April 2014.



              On February 28, 2014, Gary Ward, Judith Ward’s son and Susan Ward’s

husband, died. Thereafter, on April 28, 2014, Judith Ward served a Notice to Quit upon

Susan Ward and her two children3 demanding they vacate the log cabin home situated upon

Judith Ward’s lot. Susan Ward refused to move, claiming an entitlement to the log home

arising from her purchase thereof. On October 6, 2014, Judith Ward, through counsel, filed

a complaint against Susan Ward asserting a cause of action for unlawful detainer pursuant

to W. Va. Code § 37-6-19 (1923) (Repl. Vol. 2011). Judith Ward attached to her complaint

a copy of the deed demonstrating that she is the owner of record of the subject real property;

a copy of the two tax tickets issued in her name for her lot for the then-current tax year; and

a copy of the April 28, 2014, Notice to Quit. Susan Ward filed her answer pro se on October

24, 2014. Judith Ward then moved for judgment on the pleadings.



              1
              (...continued)
Judith Ward’s lot.
              2
               This eighteen-month period coincided with Judith Ward’s alleged
incarceration for tax fraud.
              3
                  Gary Ward is the father of these children.

                                                3

              By order entered January 29, 2015, the circuit court granted Judith Ward’s

motion for judgment on the pleadings. The court concluded that, pursuant to W. Va. Code

§ 37-6-19, as the property owner of record, Judith Ward is entitled to recover her property

from Susan Ward, who has no ownership interest in the parcel. Nevertheless, the circuit

court further determined that Judith Ward would be unjustly enriched by the addition of the

log cabin home to her property and, thus, required her to pay Susan Ward $50,000, i.e., the

cost of the log cabin home kit, for these improvements. Finally, the circuit court conditioned

Judith Ward’s recovery of the subject property upon her payment of this sum to Susan Ward,

and ruled that Susan Ward is not required to vacate the premises until ten days after her

receipt of these funds. From this adverse ruling, Judith Ward appeals to this Court.



                                             II.


                               STANDARD OF REVIEW


              The instant proceeding comes to this Court from the circuit court’s order

granting Judith Ward’s motion for judgment on the pleadings. Pursuant to Rule 12(c) of the

West Virginia Rules of Civil Procedure,

                     [a]fter the pleadings are closed but within such time as
              not to delay the trial, any party may move for judgment on the
              pleadings. If, on a motion for judgment on the pleadings,
              matters outside the pleadings are presented to and not excluded
              by the court, the motion shall be treated as one for summary
              judgment and disposed of as provided in Rule 56, and all parties
              shall be given reasonable opportunity to present all material
              made pertinent to such a motion by Rule 56.

                                              4

From the record in the case sub judice, it is apparent that the circuit court considered only the

pleadings and did not venture outside the confines of those documents in rendering its

ruling.4



              We previously have held that “[a] motion for judgment on the pleadings

presents a challenge to the legal effect of given facts rather than on proof of the facts

themselves.” Syl. pt. 2, in part, Copley v. Mingo Cnty. Bd. of Educ., 195 W. Va. 480, 466

S.E.2d 139 (1995). In ruling upon such a motion, “[a] circuit court, viewing all the facts in

a light most favorable to the nonmoving party, may grant a motion for judgment on the

pleadings only if it appears beyond doubt that the nonmoving party can prove no set of facts

in support of his or her claim or defense.” Syl. pt. 3, Copley, 195 W. Va. 480, 466 S.E.2d

139. Accord Brown v. Fluharty, 231 W. Va. 613, 615, 748 S.E.2d 809, 811 (2013) (per

curiam) (“Inasmuch as this case was decided on a motion for judgment on the pleadings, . . .

we construe the complaint in a light most favorable to the plaintiffs, petitioners herein, and

take the factual allegations contained in the complaint as true.” (citations omitted)). Finally,




              4
                 Although Judith Ward attached certain documents to her complaint in support
thereof, such information is also set forth in the complaint, itself. Thus, in rendering its
ruling, it is apparent that the circuit court did not consider any information extraneous to the
pleadings. Cf. Gunn v. Hope Gas, Inc., 184 W. Va. 600, 402 S.E.2d 505 (1991) (per curiam)
(finding that consideration of documents attached to pleadings converts motion for judgment
on the pleadings into one for summary judgment).

                                               5

“[a]ppellate review of a circuit court’s order granting a motion for judgment on the pleadings

is de novo.” Syl. pt. 1, Copley, 195 W. Va. 480, 466 S.E.2d 139.



              Mindful of this standard, we proceed to consider the parties’ arguments.



                                             III.


                                       DISCUSSION


              On appeal to this Court, Judith Ward assigns as error the circuit court’s rulings

that (1) she is required to pay Susan Ward $50,000 to compensate her for the value of the

improvements that Susan, and her late husband Gary Ward, made to Judith’s property to

avoid unjust enrichment and (2) her recovery of her property is contingent upon her payment

of this amount.



              In support of her argument, Judith Ward contends that Susan Ward is not

entitled to compensation for the log home because there was no reasonable mistake of fact

and Susan did not have a reasonable belief that she owned the subject property when she

built the log cabin on it. Because Susan knew that she did not own the property, Judith

asserts that she is not required to compensate her for the value of such improvements insofar

as this State’s case law requiring such compensation for unjust enrichment is limited to cases

wherein the tenant made improvements under the mistaken belief that he/she owned the


                                              6

property that he/she had improved. Citing Little v. Little, 184 W. Va. 360, 400 S.E.2d 604

(1990) (per curiam) (refusing to award damages for value of improvements made by life

tenant when tenant knew she did not own the subject property but believed that it would be

conveyed to her in the future).



              Moreover, Judith Ward contends that Susan Ward has not established that she

is entitled to compensation in the amount of $50,000 because this amount is based upon

“mere speculation or conjecture.” Quoting Little, 184 W. Va. at 363, 400 S.E.2d at 607

(citations omitted). In this regard, Judith contends that Susan, in her pro se answer to

Judith’s complaint, has not proven the amount of compensation to which she is entitled with

certainty. Moreover, Judith argues that Susan lived on the subject property rent free for

fifteen years and that she, Judith, was solely responsible for the taxes on such property as

well as the construction and maintenance of the log home.



              Finally, Judith Ward contends that the circuit court erred by allowing Susan

Ward, who has no claim or title to the subject property, to retain possession of the log home

until Judith pays her the $50,000 compensation therefor required by the circuit court’s order.

Given the circuit court’s finding that Judith is the sole owner of the property, it was

erroneous to require her to pay compensation to Susan for the log home constructed on her

property before she could regain possession of her entire parcel. Unlike this Court’s prior


                                              7

decision in Francis v. Bryson, 217 W. Va. 432, 618 S.E.2d 441 (2005) (per curiam), Judith

argues that there was no underlying disagreement between the parties regarding the

ownership of the property, nor did the tenant tender payments to the property owner believing

them to be installment payments for its purchase. Finally, Judith claims that the circuit

court’s decision is inequitable insofar as it did not impose a corresponding duty upon Susan

to pay rent, taxes, or maintenance costs for the log cabin pending her receipt of the $50,000

compensation from Judith.



              In response, Susan Ward, pro se, contends that she has a right to the continued

occupation of the log cabin home insofar as Judith Ward knew of and approved the home’s

construction and allowed Susan and her family to live on her property rent free for fifteen

years. Susan also indicates that she believed the subject property had been given to her and

her late husband, but that the property was not subdivided because the log cabin did not

comply with the West Virginia building code. In this regard, Susan further states that Judith

had had the property surveyed so that it could be subdivided once such building requirements

were satisfied. Moreover, Susan contends that, in addition to the initial cost of the log home

kit, she and her late husband paid Judith monies for the property’s taxes, incurred

maintenance costs on the home, and, for a period of eighteen months,5 made additional $500



              5
              This period of time is commensurate with Judith Ward’s alleged incarceration.
See supra note 2.

                                              8

monthly payments towards satisfaction of the property’s taxes. Susan avers further that

Judith requested Susan and her late husband to give her all of their receipts related to the log

home before Susan’s husband died; that she and her late husband complied with this request;

and that Judith continues to have such receipts and refuses to return them to Susan. Finally,

Susan Ward represents that while she and her late husband did not pay rent to Judith Ward,

they performed numerous services to maintain the entirety of Judith’s property, including

mowing the grass and performing repairs on Judith’s residence.6



              It is undisputed that the record evidence demonstrates that Judith Ward is the

sole, fee simple owner of the subject parcel upon which Susan Ward and her late husband

built their log cabin home, and that, despite any representations or understandings between

the parties, the lot has not been subdivided to transfer an ownership interest in the property

to Susan Ward. Nevertheless, it also is clear that Judith Ward permitted, and even

encouraged, her late son and his wife Susan to build their log cabin home upon a portion of

her property and that she consented to and acquiesced in this arrangement for nearly fifteen

years until her son’s death in February 2014. It also is undisputed that Susan Ward, and her

late husband, expended their own funds to purchase the log home kit and expended



              6
               We interpret Susan Ward’s pro se arguments detailing the various expenses
she and her late husband incurred with respect to the log cabin home as a cross-appeal
assigning error to the circuit court’s $50,000 valuation of the subject improvements to Judith
Ward’s property.

                                               9

additional monies to maintain the home as well as to provide for the payment of taxes on the

entirety of the parcel while they lived in the log home on Judith’s property. Additionally, it

appears that Judith’s son and his family also maintained the property upon which the log

home was built and performed other household services for Judith in lieu of actual rental

payments.



              It goes without saying that, as the fee simple owner of record, Judith Ward has

the right to possess and occupy her property, and to eject persons therefrom if she no longer

consents to their occupancy. Pursuant to the unlawful detainer statute,

                      [a]ny person who shall have the right of re-entry into the
              lands by reason of any rent issuing thereout being in arrear, or
              by reason of the breach of any covenant or condition, may serve
              a declaration in ejectment on the tenant in possession, where
              there shall be such tenant, or, if the possession be vacant, by
              affixing the declaration upon the chief door of any messuage, or
              at any other conspicuous place on the premises, which service
              shall be in lieu of a demand and re-entry; or may commence an
              action of unlawful detainer, and obtain service either in person
              or by publication, as in other such actions, which service shall
              be in lieu of a demand and re-entry; and upon proof to the court,
              by affidavit in case of judgment by default, or upon proof on the
              trial that the rent claimed was due, and there was not sufficient
              property subject to distress upon the premises to satisfy the
              claim for rent due, or that the covenant or condition was broken
              before the service of the declaration in ejectment, or the
              commencement of the action of unlawful detainer, and that the
              plaintiff had power thereupon to re-enter, he shall recover
              judgment, and have execution for such lands. In case the time
              for re-entering be specified in the instrument creating the rent,
              covenant or condition, the proceedings in ejectment or unlawful
              detainer shall not be begun until such time shall have elapsed.

                                             10

W. Va. Code § 37-6-19 (1923) (Repl. Vol. 2011).



              We previously have interpreted this statute as permitting the ejectment of a

tenant for no reason whatsoever, or for failure to pay rent even if the landowner has not

previously requested the tenant to pay rent.

                      Under Code, 37-6-19, an action of ejectment or unlawful
              detainer may be maintained to recover real estate, by reason of
              the breach of any covenant or condition of the lease under which
              the same is held, including a covenant to pay rent, without any
              previous demand being made for the payment of such rent on
              the leased premises or elsewhere, or any demand for possession
              of such premises.

Syl. pt. 1, Kincaid v. Patterson, 129 W. Va. 234, 39 S.E.2d 920 (1946). Thus, it is apparent

that W. Va. Code § 37-6-19 authorized Judith Ward to eject Susan Ward because Susan does

not have an ownership interest in the property in question and Judith no longer consents to

Susan’s occupancy thereof.



              However, it also is apparent that the construction of a log cabin home upon

Judith Ward’s property is a significant and valuable improvement thereto for which Judith

has not paid. When an ejected tenant has made improvements to the owner’s property, we

have held that the owner is required to compensate the tenant for the value of such

improvements to avoid the owner’s unjust enrichment.

                    To entitle an evicted claimant of land to compensation for
              permanent improvements put upon the land by him while he was

                                               11

              in possession, it must appear either that he was a bona fide
              purchaser and holder at the time he made the improvements, or
              that the improvements were made by him under such
              circumstances that it would be a fraud upon his rights to permit
              the owner to take them without compensation.

Syl. pt. 1, Hall v. Hall, 30 W. Va. 779, 5 S.E. 260 (1888).



              Moreover, where, as here, the tenant is not a purchaser of the property but

nevertheless believes that he/she had an ownership interest therein when he/she made the

subject improvements, we have held that the owner must compensate the tenant for the value

of such improvements if the owner was aware of the improvements and did not tell the tenant

not to make them.

                     Such evicted claimant, who is not a bona fide purchaser,
              can not recover compensation for his improvements, unless he
              shows that the owner has been guilty of fraud or gross laches in
              not notifying such claimant to desist, when he knew that the
              improvements were being made by the claimant under a
              mistaken belief that his title was good.

Syl. pt. 2, Hall, 30 W. Va. 779, 5 S.E. 260.



              Finally, an ejected tenant who is entitled to recoup the value of the

improvements he/she made upon property under a mistaken belief of ownership has a lien

upon such property until the owner compensates the tenant for the value of such

improvements.



                                               12

                     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).7 Accord Syl. pt. 1,

Heartwood Forestland Fund IV, LP v. Hoosier, ___ W. Va. ___, 781 S.E.2d 391 (2015).



             In the case sub judice, it is apparent that Susan Ward had a mistaken belief that

the property upon which she and her late husband built their log cabin home had been given

to them by Judith Ward. During her argument to the Court, Susan explained that Judith had

offered them the back portion of her property as a site upon which to build their log home

and had ostensibly indicated that Susan and her late husband would eventually inherit the


              7
              It should be noted that this Court has modified the holding of Somerville v.
Jacobs, 153 W. Va. 613, 170 S.E.2d 805 (1969). See Syl. pt. 2, Realmark Devs., Inc. v.
Ranson, 214 W. Va. 161, 588 S.E.2d 150 (2003) (“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.”).

                                            13

entire parcel and that she, Judith, was giving them that portion of the property early.

Moreover, from 1999 until early 2014, Judith Ward consented to the location of the log cabin

home on her property, helped finance certain of its construction costs, and agreed to let her

late son; his wife, Susan; and their children live there. Thus, not only did Judith Ward know

of the subject improvements, she expressly acquiesced thereto and approved thereof as

evidenced by (1) her claims that she financed the construction costs of the log home; (2) her

payment of the property taxes levied on the log cabin home in her name; and (3) her

acquiescence to this living arrangement for some fifteen years, i.e., from 1999 when the log

home was built until her son’s death in 2014. Accordingly, the circuit court correctly

determined that, while Judith Ward is entitled to eject Susan Ward and her grandchildren

from the log cabin home they built on her property, she must compensate Susan for the value

of this improvement that will remain on her property, and we affirm the circuit court’s ruling

in this regard.



                  Although the circuit court assigned a $50,000 valuation to the log cabin home

built by Susan Ward and her late husband upon Judith Ward’s property, we are not certain

that this is a correct determination of the value of the subject improvement. Insofar as the

instant proceeding is before the Court from a judgment on the pleadings, no record has been

made as to the current value of the improvement to Judith Ward’s property, i.e., the log cabin

home; how much Susan Ward, and her late husband, have expended in building and


                                                14

maintaining the same through ordinary household repairs and upkeep; the amount of property

taxes Susan and her family have paid for this portion of Judith’s lot; the costs that Susan and

her late husband have incurred in caring for the property upon which the log home is situate;

or any other factors that are indicative of the log cabin’s valuation. When, such as here, a

record does not provide sufficient detail to permit this Court to make a determination of the

proper measure of damages, we have remanded the case for further factual development:

                      “When the record in an action or suit is such that an
              appellate court can not in justice determine the judgment that
              should be finally rendered, the case should be remanded to the
              trial court for further development.” Syl. pt. 2, South Side
              Lumber Co. v. Stone Construction Co., 151 W. Va. 439, 152
              S.E.2d 721 (1967).

Syl. pt. 3, Heydinger v. Adkins, 178 W. Va. 463, 360 S.E.2d 240 (1987). Accordingly, we

reverse the circuit court’s $50,000 damages award and remand this case for further factual

development to determine the value of the subject improvement and a corresponding award

of such damages to Susan Ward. Finally, given that Susan Ward is entitled to assert a lien

against Judith Ward’s property for the value of the improvements that she is required to

abandon, we do not find that the circuit court erred by requiring Judith to pay Susan the value

of such improvements as a condition precedent to the restoration of Judith’s property. See

Syl., Somerville v. Jacobs, 153 W. Va. 613, 170 S.E.2d 805. Therefore, the portion of the

circuit court’s order imposing such a requirement is affirmed.




                                              15

                                           IV.


                                    CONCLUSION


             For the foregoing reasons, the January 29, 2015, order of the Circuit Court of

Hampshire County is hereby affirmed, in part, and reversed, in part, and this case is

remanded for further proceedings consistent with this opinion.



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




                                           16

