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Newbrough v. Newbrough

Supreme Court of West Virginia

March 11, 2019

Rodney L. Newbrough, Plaintiff Below, Petitioner
v.
Gregory A. Newbrough, Defendant Below, Respondent

          (Harrison County 15-C-254-1)

          MEMORANDUM DECISION

         Petitioner Rodney L. Newbrough, by counsel Thomas W. Kupec, appeals the Circuit Court of Harrison County's January 4, 2018, "Order Following Trial by Court." Respondent Gregory A. Newbrough failed to submit a response before this Court.

         This Court has considered petitioner's brief 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. Because our decision in this matter is dictated by well-settled law, we conclude that this case satisfies the "limited circumstances" provision in Rule 21(d) of the Rules of Appellate Procedure for reversal and remand in a memorandum decision. As such, by this memorandum decision, we reverse and remand the circuit court's January 4, 2018, order.

         According to the complaint filed in the circuit court, the parties are siblings whose mother, Joyce E. Newbrough, died testate in Harrison County. According to their mother's will, she devised her 1997 Dutch Empress mobile home to respondent, even though that mobile home was affixed to real estate owned by petitioner in Harrison County.[1] The complaint provides that in April of 2008, a dispute arose over the mobile home and Magistrate DeMarco, in the Magistrate Court of Harrison County, awarded possession of the mobile home to petitioner based upon respondent's representation that he did not want the mobile home so he was giving it to petitioner. The complaint also alleged that in another proceeding in the Family Court of Harrison County, also in 2008, respondent admitted relinquishing his interest in the mobile home to petitioner. Petitioner set forth in the complaint that at the time of Ms. Newbrough's death, a debt was owed on the mobile home to Greentree Services, LLC, which exceeded the value of the mobile home. According to petitioner, he had made all loan payments on the home, paid the taxes on the mobile home, made repairs to the mobile home, and had taken all action as the owner of the mobile home. Petitioner was in the process of selling the mobile home and was advised that he needed respondent to execute a document setting forth his disclaimer of any interest in the mobile home. However, petitioner claims that respondent failed and refused to execute such document or discuss the issue with petitioner. Petitioner alleged that because the debt on the mobile home exceeded the value of the mobile home, "it would cause irreparable damage to [petitioner's] property, if it were to be removed from [petitioner's] real property at [that] point." In that complaint, petitioner requested that he be granted full ownership of the mobile home that was affixed to his real estate, that the circuit court find that respondent had abandoned any interest in that mobile home, and that petitioner be granted the legal right to sell it.

         In respondent's pro se answer before the circuit court, he claimed that his mother "left me everything" because he cared for both his mother and father. He asserted that he made the "down payment" on the house and that his grandfather left the real property to Ms. Newbrough and petitioner. Further, he states that he "helped them with the house because [he] lived with them and took care of all of the [h]ouse payments." Respondent further claimed that he "had no help" from petitioner. While respondent's answer is difficult to follow, it appears that petitioner filed an action in the Magistrate Court of Harrison County seeking security to keep the peace, pursuant to West Virginia Code § 62-10-1, and seeking to gain sole possession of the mobile home. Respondent asserted that he did not give petitioner the mobile home but was told by the family court that he had to vacate the mobile home. He specifically stated in his answer before the circuit court that he did not give petitioner the home but that he "just didn't want to fight with him . . . [because he] didn't need the stress." According to the answer, when petitioner requested that respondent sign papers allowing petitioner to sell the home, respondent refused to do so and told petitioner that respondent would move back in if petitioner did not want the home because it was respondent's mobile home. Respondent contended, therein, that petitioner had already sold the mobile home and asserted a claim for half of the proceeds from that sale.

         In response to requests for admissions, respondent admitted that he had not paid taxes on or made repairs to the mobile home, attributing his failure to do so on the 2008 protective order prohibiting respondent from entering the mobile home. He adamantly denied giving the mobile home to petitioner. Petitioner's exhibits below include the "Order of Possession/Removal: Wrongful Occupation of Residential Rental Property," entered by the Magistrate Court of Harrison County on April 5, 2008, ordering that petitioner have possession of the mobile home. It further ordered that respondent vacate the mobile home no later than June 4, 2008. In addition, petitioner proffered the "Family Court Order Denying Domestic Violence Protective Order and Terminating the Emergency Protective Order," entered on April 7, 2008, in which the family court stated the following: "Respondent agrees that [illegible but seems to refer to petitioner's wife] & her husband (his brother) may have possession of the [mobile] home they shared. The [c]ourt finds there to be no DV [domestic violence] credibly established." Notes that appear elsewhere on that order, which appear to have been written by the family court judge, urge the parties to refrain from any contact and order law enforcement to accompany respondent to the mobile home to retrieve his personal property, including furniture.

         Also included in the record is the hearing transcript and DVD from the April 7, 2008, family court hearing before Judge M. Drew Crislip; that proceeding was a domestic violence proceeding involving petitioner's wife and respondent. According to that transcript, respondent stated that he "would rather take [his] belongings out of the house and if they want the house, they can have it. . . ." When the family court judge followed up, the following exchange took place:

Judge Crislip: You said they could have the home. That includes anything that's a fixture. Anything that's attached, you can't have.
Respondent: All's I want is my personal belongings. My (inaudible) that are brand new, my washer and dryer is brand new, the refrigerator is brand new. . . . [speaking to petitioner] You guys want it. I'm giving you the house. . . I wanna move. I wanna just go. I'm getting away from here. . . .
Judge Crislip: . . . You say you're giving them the home and I'm putting that in the order as a notation. . . .

         After petitioner filed a complaint before the Circuit Court of Harrison County, seeking to obtain full, legal ownership of the mobile home, the matter proceeded to a non-jury trial. During the trial, respondent denied giving petitioner any mobile home and denied remembering that Judge Crislip asked him about giving the mobile home to petitioner and his wife. Respondent admitted that he had no recollection of a hearing before Magistrate DeMarco or the order requiring that he vacate the mobile home by June 4, 2008. When petitioner's counsel inquired as to how respondent could forget portions of the hearing before the family court judge, which petitioner's counsel read and/or paraphrased during questioning, respondent blamed his consumption of medication. At the conclusion of that trial, the circuit court asked the parties to submit proposed findings of fact and conclusions of law.

         Following the trial before the circuit court, the court entered its order finding that petitioner failed to prove his claims of 1) detrimental reliance, 2) waiver, and 3) that the subject mobile home is a fixture on petitioner's real property by a preponderance of the evidence. According to the circuit court's order, "[s]cant documentary evidence was adduced, and no photographs, canceled checks, receipts, etc. were produced. The parties' credibility was also a significant issue." The circuit court specifically ordered that petitioner "shall recover NOTHING" from respondent in the underlying matter. Petitioner appeals from that January 4, 2018, order.

         We have previously set forth the following standard of review for orders resulting from non-jury trials:

In reviewing challenges to the findings and conclusions of the circuit court made after a bench trial, a two-pronged deferential standard of review is applied. 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.

Syl. Pt. 1, Public Citizen, Inc. v. First Nat. Bank of Fairmont, 198 W.Va. 329, 480 ...


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