                                STATE OF WEST VIRGINIA
                              SUPREME COURT OF APPEALS


Juanita Sanders,
Plaintiff Below, Petitioner                                                    FILED
                                                                          November 21, 2018
vs.) No. 18-0017 (Monroe County CC-32-2015-C-29)                            EDYTHE NASH GAISER, CLERK
                                                                            SUPREME COURT OF APPEALS
William Brown,                                                                  OF WEST VIRGINIA 

Defendant Below, Respondent


                                 MEMORANDUM DECISION

       Petitioner Juanita Sanders, by counsel Jeffry A. Pritt, appeals the Circuit Court of Monroe
County’s December 8, 2017, order ruling in respondent’s favor following a bench trial
concerning a real property conveyance. Respondent William Brown, by counsel Henry L.
Harvey, filed a response. Petitioner filed a reply. On appeal, petitioner argues that the circuit
court erred in failing to grant her equitable relief from her real property conveyance to
respondent and in determining that her manufactured home was transferred with the real
property.

        This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

        On June 23, 2011, petitioner conveyed, by general warranty deed, a tract of land to her
son, respondent, reserving a life estate to herself. Petitioner also conveyed the property on behalf
of her husband, for whom she held power of attorney due to his declining health. The
conveyance was without consideration, as a gift from a parent to a child. Following the
conveyance, respondent assumed responsibility for the property taxes and insurance on the
property.

        Prior to the conveyance of the subject property, petitioner purchased a manufactured
home (the “home”) for the property. Both petitioner and her husband lived in it, but it was titled
exclusively in her name. Also prior to the conveyance, the home was placed on a cinderblock
foundation, decks were built around it, and the tongue, used for transporting the home, was
removed. Petitioner did not cancel the certificate of title following the home’s placement on the
land or transfer title to respondent.

       Approximately three years after the conveyance, on October 22, 2014, petitioner’s
counsel informed respondent by letter that, “[i]t is our understanding from [petitioner] that you

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had an agreement with her that you would return the property to her at a later date.” Accordingly,
respondent was asked to execute a deed enclosed with the letter conveying the subject property
back to petitioner. Respondent refused to return the property, and petitioner filed suit asserting
claims for breach of contract, breach of the covenant of good faith and fair dealing, unjust
enrichment, constructive trust, promissory estoppel, and fraud, and she sought specific
performance of their alleged agreement.

        The circuit court held a bench trial on October 13, 2016. Recognizing that no written
agreement existed to support her claims, petitioner admitted at the outset of trial that her only
remedy was in equity: “In particular, the imposition of a constructive trust is probably the
primary one.” Petitioner testified that she conveyed the subject property to respondent prior to
her husband’s death because she believed her husband’s children from a prior marriage would
either attempt to assert ownership of the property following his death or attempt unduly to
encourage a transfer prior to his death. Petitioner testified that respondent was aware of her
motives and they agreed that, following the settlement of her husband’s estate, respondent would
convey the property back to her. Petitioner further argued that she has three other children and
did not intend to favor respondent over the others by conveying the property solely to him.

        Respondent countered that no such agreement existed, and that petitioner would have had
no need to reserve a life estate if there had been an agreement such as that described by her. In
fact, respondent noted that the deed originally conveying the property to petitioner and her
husband included a right of survivorship, thereby obviating any need to transfer the property to
respondent for protection.1 Respondent further highlighted that petitioner was represented by
counsel at the time of the conveyance to him. Finally, respondent argued that the home was also
conveyed as the deed specified that all improvements go with the property, and, in any event,
fixtures attached to real property become part of the real estate.

       The parties also testified regarding their relationship. Petitioner stated that she and
respondent helped one another out over the years, but that he helped her “[n]o more than [she]
helped him.” Petitioner acknowledged that she was not coerced into conveying the property to
respondent. Respondent testified that, of petitioner’s children, he was the one to assist her, and
that he often had to coax his siblings to visit petitioner. Respondent also acknowledged that,
throughout the years, both he and petitioner helped one another as needed.

        On December 8, 2017, the circuit court entered an order in respondent’s favor. With
respect to petitioner’s constructive trust claim, the court recounted this Court’s holding in Kersey
v. Kersey:

       [W]here one obtains the legal title to property through the influence of a relation
       of confidence and trust, under such circumstances that he ought not in equity and

                                                                   
       1
        At trial, petitioner was asked “whether or not you [and your husband] took the property
with right of survivorship?” Petitioner responded that she did and explained that that meant “if
something happened to [her husband], the land belongs to [her].”



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       good conscience to hold and enjoy the same as against the other party to the
       relation, equity will impress the property with a trust in favor of the latter.

76 W.Va. 70, 85 S.E. 22, 25-26 (1915) (citation omitted). But the court found that “[t]he only
evidence presented as to the circumstances of [the parties’] relationship was that [they] had a
fairly good relationship at the time the property was transferred.”

        The court further found both parties to be equally credible concerning whether an oral
agreement was formed addressing the property’s return. As a result, petitioner, the moving party
who carried the burden of proof, failed to establish the existence of any such agreement. The
court also noted other factors tending to militate against the existence of a constructive trust.
Namely, petitioner suggested the property conveyance and consulted with an attorney to prepare
the deed. Respondent did not encourage petitioner to convey the property, nor was there
evidence that he obtained title to the property by gaining his mother’s trust or otherwise
influencing their relationship. Also, petitioner reserved a life estate, which would have been
unnecessary if she believed the property was held in trust. She also allowed respondent to pay
taxes and insurance.

        Finally, the court concluded that, because a cinder block foundation had been built
beneath the home, decks had been constructed around it, and the tongue had been removed prior
to the conveyance, “[t]here can be no question that the doublewide mobile home became affixed
to and was a part of the subject property at the time of conveyance.” It is from this order that
petitioner appeals.

        We apply a two-pronged deferential standard of review to the circuit court’s findings and
conclusions following a bench trial. Syl. Pt. 1, in part, Pub. Citizen, Inc. v. First Nat’l Bank, 198
W.Va. 329, 480 S.E.2d 538 (1996). “The final order and the ultimate disposition are reviewed
under an abuse of discretion standard, and the circuit court’s underlying factual findings are
reviewed under a clearly erroneous standard. Questions of law are subject to a de novo review.”
Id. at 331, 480 S.E.2d at 540, Syl. Pt. 1, in part.

        Petitioner raises two assignments of error on appeal. First, petitioner argues that the
circuit court erred in failing to grant her equitable relief from the property transfer. Petitioner
contends that the relationship she shared with her son was a close and confidential relationship,
which, under equitable principles, should have vested respondent with the burden of proving that
the property was a gift.

        In support of her argument that the burden of proof should have rested with respondent,
petitioner points to cases that offer support by analogy. First, in Kanawha Valley Bank v. Friend,
we held that

               [a] presumption of constructive fraud may arise in connection with joint
       bank accounts with survivorship, if the parties to the joint account occupy a
       fiduciary or confidential relationship. This presumption requires the person who
       benefits from the creation of the account to bear the burden of proving that the
       funds were, in fact, a bona fide gift.

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162 W.Va. 925, 931, 253 S.E.2d 528, 531 (1979) (emphasis added).2 Likewise, petitioner argues,
in Marshall v. Marshall, 166 W.Va. 304, 273 S.E.2d 360 (1980), we held that “[o]ne who
receives property from another with whom he has a confidential relationship has the burden of
showing that the transfer was fair and made with utmost good faith.” Id. at 304, 273 S.E.2d at
361, Syl. Pt. 1.

        We find that Friend and Marshall are inapplicable here. In Friend, a fiduciary
relationship existed between the parties due to one holding a power of attorney to act for the
other. 162 W.Va. at 926-27, 253 S.E.2d at 529-30. In Marshall, the parties were a husband and
wife who had separated. 166 W.Va. at 305, 273 S.E.2d at 361. After experiencing marital
problems, the parties sought the help of a psychiatrist. Id. The psychiatrist advised the wife not to
make major decisions, prescribed her medication, and, at one point, recommended she be
hospitalized. Id. at 305-06, 273 S.E.2d at 362. The parties attempted to reconcile, but the
husband conditioned reconciliation on the wife’s conveyance of all of her interest in her real
property and stocks to him. Id. at 306, 273 S.E.2d at 362. The wife complied with her husband’s
request, but he nonetheless filed for divorce following the conveyance. Id. Under these
circumstances, we found that “the husband did not meet the burden required by our fiduciary
standard to show that he exercised the utmost good faith in inducing his wife’s transfer of her
property to him.” Id. at 309, 273 S.E.2d at 363.

        Kersey also presented a distinguishing set of facts. In that case, the parties were brothers
who operated a laundry business. 76 W.Va. 70, 85 S.E. at 22. One brother, W.W. Kersey, was
more involved in the day-to-day operations of the company while the other, J.L. Kersey, who
was employed in a different field, provided financial support, and served in more of an advisory
role. Id., 85 S.E. at 23. The business suffered financial lows, and it was eventually sold, but
repurchased on the brothers’ behalf. Id. The title was taken in the name of an officer of the bank
as security for the purchase money, but the officer was to transfer the title to J.L. Kersey upon
satisfaction of the loan. Id. Eventually, questions arose as to each brother’s respective interest,
and their relationship deteriorated, leaving each claiming sole ownership. Id., 85 S.E. at 24. This
Court determined that

       the circumstances which led up to the purchase are of themselves sufficient to
       prove that [J.L. Kersey] could have had no other intention when he bought in the
       property and took title in his own name, than the carrying out of a plan impliedly

                                                                   
       2
         Generally,  the statute authorizing the creation of joint bank accounts with right of
survivorship creates “in the absence of fraud, mistake or other equally serious fault, a conclusive
presumption that the donor depositor of a joint and survivorship bank account intended a causa
mortis gift of the proceeds remaining in the account after his death to the surviving joint tenant.”
Syl. Pt. 2, Dorsey v. Short, 157 W.Va. 866, 205 S.E.2d 687 (1974). As set forth in Kanawha
Valley Bank v. Friend, 162 W.Va. 925, 253 S.E.2d 528 (1979), this presumption may be vitiated
by a finding of constructive fraud.
         



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       agreed upon by him and his brother whereby they might mutually save themselves
       from the loss of their interests in the old company.

Id., 85 S.E. at 24-25. In reaching this conclusion, we noted that each had a stake in the business
prior to the sale, and “[f]or a long time they had worked together to the end that their investments
might be saved.” Id., 85 S.E. at 25. Thus, “[e]ach had the right to believe that the other was still
acting to the same end.” Id. To hold otherwise and “allow [J.L. Kersey] to deny [W.W. Kersey]
any interest in the property would be to sanction a fraud on the part of the former. It would
convert a confidential relation into an implement of fraud.” Id.

        Although petitioner attempts to attribute the holding in Kersey “primarily . . . to the
family relationship between those parties[,]” she ignores important distinctions not related to
kinship. In Kersey, the brothers had been working together toward making the business
successful. Indeed, their joint efforts were characterized as a partnership. Id., 85 S.E. at 25 (“In
the old affairs they had acted as partners. . . . In the purchase and continuation of the business
they were still so acting.”); see also Vercelloti v. Bowen, 179 W.Va. 650, 653, 371 S.E.2d 371,
375 (1988) (describing the Kersey relationship as one involving reliance on “an implied
partner”). Here, the circuit court found no evidence that would support a finding that petitioner
and respondent were partners, as found in Kersey; that a fiduciary relationship existed between
them, as was the case in Friend; or that respondent in any way took advantage of petitioner in the
way presented in Marshall. To the contrary, the court characterized the parties’ relationship at
the time of the conveyance as “good,” and each testified that they were equally helpful to the
other. Petitioner offers no law to support her contention that a familial relationship alone is
sufficient to establish a confidential relationship, which, in turn, would warrant burden shifting.
In fact, in Nugen v. Simmons, 200 W.Va. 253, 489 S.E.2d 7 (1997), we noted that facts
establishing “a friendly or familial relationship” alone are insufficient to justify a finding that a
fiduciary or confidential relationship existed for purposes invoking constructive fraud. Id. at 257-
58, 489 S.E.2d at 11-12. Accordingly, we find no error in the circuit court’s conclusion that
petitioner bore the burden of proving her claims.

        In petitioner’s second assignment of error, she argues that even if the land conveyance is
upheld, the circuit court erred in determining that the home was transferred with the land.
Petitioner argues that West Virginia Code § 17A-3-12b, governing the cancelation of certificates
of title for manufactured homes, should have been utilized by the circuit court to find that
petitioner retained ownership of the manufactured home since she never canceled the certificate
of title for her manufactured home.3 Petitioner also argues under established law regarding
                                                                   
       3
        At the time of the conveyance, West Virginia Code § 17A-3-12b (2004) provided
pertinently that

       [t]he commissioner may cancel a certificate of title for a mobile or manufactured
       home affixed to the real property of the owner of the mobile or manufactured
       home. The person requesting the cancellation shall submit to the commissioner an
       application for cancellation together with the certificate of title. . . . The
       commissioner shall return one copy of the cancellation certificate to the owner
        
                                                                                    (continued . . . )
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fixtures that the home remained her separate personal property. Petitioner states that although she
“may previously have had an intent for her residence to be permanently affixed to the land, it
appears that intent changed when she deliberately withheld the title to the home from her son at
the time her land title was severed.” Petitioner argues that her intent is controlling, and given her
reservation of the life estate and retention of the title to the manufactured home, the court erred
in concluding that she intended the home to transfer with the realty.

       We find no error in the circuit court’s refusal to find that West Virginia Code § 17A-3-
12b (2004) is dispositive or in its application of fixture law in addressing the transfer of the
manufactured home. Our long-standing law relative to fixtures provides that

       personal property used in connection with real estate is fixtures and part of the
       realty, when the following conditions concur: First, [i]t must be attached to the
       real estate, and by this we do not mean that it has to become so attached as to do
       serious damage to the realty, or to the property itself in order to remove it, but that
       it must be so attached as that the two, the real estate and the fixtures, work
       together to one end; second, it must be reasonably necessary and adapted to the
       purposes for which the real estate is being used; and, third, it must be the intention
       of the party placing such property upon the real estate to make it a part thereof. If
       the first two of these elements concur – that is, its attachment to the real estate and
       it[s] adaptability to the purposes for which the real estate is being used – it will be
       presumed that the party attaching it intended that it should be a part of the real
       estate, unles[s] a contrary intention appears from the conduct of the parties in
       relation to it.

Snuffer v. Spangler, 79 W.Va. 628, 92 S.E. 106, 110 (1917). Petitioner concedes that she “has no
reasonable argument regarding the first two requirements as her home was attached to the real
estate, and was certainly adapted to the purpose for which it was used.” Given the existence of
these first two elements, a presumption that petitioner intended it to be part of the real estate
arose. Id. The circuit court did not clearly err in finding that no contrary intention appeared from
the parties’ conduct given that decks were constructed around the manufactured home, it was
placed on a foundation, the tongue was removed, and respondent assumed tax and insurance
obligations on the home.

       For the foregoing reasons, we affirm the circuit court’s order finding in petitioner’s favor.
                                                                                                                                                                                                       
       and shall send a copy of the cancellation certificate to the clerk of the county
       commission to be recorded and indexed in the deed book with the owner’s name
       being indexed in the grantor index. . . . Upon recordation in the county clerk’s
       office the mobile or manufactured home shall be treated for all purposes as an
       appurtenance to the real estate to which it is affixed and be transferred only as real
       estate and the ownership interest in the mobile or manufactured home, together
       with all liens and encumbrances on the home, shall be transferred to and shall
       encumber the real property to which the mobile or manufactured home has
       become affixed.



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                                                          Affirmed.

ISSUED: November 21, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice Evan H. Jenkins
Justice Paul T. Farrell sitting by temporary assignment




        




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