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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2005 Term
MILLARD FRANCIS, III,
Plaintiff Below, Appellant,
ERNEST BRYSON AND PATRICIA BRYSON,
Defendants Below, Appellees
Appeal from the Circuit Court of Raleigh County
The Honorable Robert A. Burnside, Jr., Judge
Case No. 03-C-994-B
Submitted: May 11, 2005
Filed: June 10, 2005
C. Elton Byron, Jr. Ernest
Bryson and Patricia Bryson,
Abrams, Byron & Hart Pro
Beckley, West Virginia
Attorney for the Appellant
The Opinion of the Court was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. This Court reviews the circuit court's
final order and ultimate disposition under an abuse of discretion standard. We
review challenges to findings of fact under a clearly erroneous standard; conclusions
of law are reviewed de novo
. Syl. Pt. 4, Burgess v. Porterfield
196 W.Va. 178, 469 S.E.2d 114 (1996).
2. In reviewing challenges to the findings
and conclusions of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate disposition under an abuse
of discretion standard, and we review the circuit court's underlying factual
findings under a clearly erroneous standard. Questions of law are subject to
a de novo
review. Syl. Pt. 2, Walker v. West Virginia Ethics
, 201 W.Va. 108, 492 S.E.2d 167 (1997).
This is an appeal by Millard Francis, III,
(hereinafter Appellant) from an order of the Circuit Court of Raleigh County
granting relief to the Appellant in an action he filed for unpaid rent and possession
of residential real property against Ernest Bryson and Patricia Bryson (hereinafter Appellees).
The Appellant appeals to this Court contending that the lower court erred by
conditioning the possession of the real property upon the payment by the Appellant
of $7,000.00 to the Appellees for improvements to the property. Further, the
Appellant contends that the lower court erred in failing to grant the Appellant
any judgment for alleged accrued rental arrearage. Upon review of the briefs,
record, and applicable precedent, this Court affirms the order of the lower court.
I. Factual and Procedural History
Appellant rented a tract of real estate, including a home situated thereon,
to the Appellees. The rental arrangements were originally reflected in two
successive written leases, the final of which ended in 1997. Upon termination
of the second lease agreement in 1997, the Appellant and the Appellees entered
into a new agreement, and the parties thereafter disputed what precise continuing
arrangements had been agreed upon. The Appellant contends that the new lease
agreement simply consisted of the Appellees' obligation to pay $350.00 per
month as rent and to continue to hold possession of the real
estate on a month to month basis. The Appellant further contends that the Appellees
did not pay any rent for the period of October 2002 through October 2003, for
a total arrearage of $4,300.00, as of the filing of the Appellant's claim.
The Appellant thereafter filed a petition for summary relief and wrongful occupation
of residential rental property in the Magistrate Court of Raleigh County, West
Virginia, and a non-jury trial was conducted on October 31, 2003. The Appellant
was awarded judgment in the amount of $4,300.00 for rental arrearages plus
$90.00 in costs.
On November 12, 2003, the Appellees filed
an appeal in the Circuit Court of Raleigh County, and a bench trial was held
in February 2004. By that time, the rental arrearage allegedly totaled $5,700.00.
However, the Appellees asserted that they had entered into a written agreement
with the Appellant to purchase the property, requiring the Appellees to make
a down payment of $4,875.00, consisting of 25% of the $19,500.00 purchase price,
and to make monthly payments of $350.00 toward the purchase of the real estate. (See
While the Appellees contend that the down payment was
paid, the Appellant contends that he did not receive that money and therefore
treated the $350.00 monthly payments as rental payments rather than payments
toward the purchase price of the real estate.
the Appellees submitted evidence regarding certain improvements made to the real
estate, including the replacement of floor joists, rebuilding the kitchen floor,
installing interior doors, and replacing at least one window. The Appellees contended
that they expended approximately $7,000.00 for such improvements and other maintenance
to the property. The Appellees submitted itemized receipts for approximately
$5,800.00 in such improvements.
In attempting to resolve this matter equitably,
the lower court found that while it would not require a transfer of title to
the property to the Appellees, it could exercise its equitable powers to prevent
an unjust result. (See footnote
Thus, the court found that the Appellees had intended the monthly
payments as payments toward the purchase of the property and as performance of
the agreement to purchase the property. The court found that the Appellant accepted
such payments with knowledge that the Appellees had made the payments with the
intent to purchase. The court therefore ordered the
Appellant to reimburse the Appellees for
the $7,000.00 expended in improvements and maintenance to the property. The
court did not make an adjustment for the alleged $5,700.00 delinquency
in payment of rent.
II. Standard of Review
Court reviews the circuit court's final order and ultimate disposition under
an abuse of discretion standard. We review challenges to findings of fact
under a clearly erroneous standard; conclusions of law are reviewed de
novo. Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178,
469 S.E.2d 114 (1996). In syllabus
point two of Walker v. West Virginia Ethics Commission, 201 W.Va.
108, 492 S.E.2d 167 (1997), this Court explained as follows:
reviewing challenges to the findings and conclusions of the circuit court, we
apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review
the circuit court's underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.
Pursuant to those standards, we proceed to evaluate this case.
Appellant states that West Virginia Code § 55-3A-1 to -3 (1983) (Repl.
Vol. 2000) governs this matter and provides the relief available for a landlord
for the wrongful occupation of residential rental property. The statutory
remedies available, upon
proper proof, are that a landlord shall be granted the immediate possession
of the real estate and a judgment for the rental arrearage. Specifically, West
Virginia Code § 55-3A-3 provides, in pertinent part, as follows:
If at the time of the hearing there has been no appearance, answer or other responsive
pleading filed by the tenant, the court shall make and enter an order granting
immediate possession of the property to the landlord.
In the case of a petition alleging arrearage in rent, if the tenant files an
answer raising the defense of breach by the landlord of a material covenant upon
which the duty to pay rent depends, the court shall proceed to a hearing on such
In the case of a petition alleging a breach by the tenant or damage to the property,
if the tenant files an answer raising defenses to the claim or claims set forth
in the petition, the court shall proceed to a hearing on such issues.
Continuances of the hearing provided for in this section shall be for cause only
and the judge or magistrate shall not grant a continuance to either party as
a matter of right. If a continuance is granted upon request by a tenant, the
tenant shall be required to pay into court any periodic rent becoming due during
the period of such continuance.
At the conclusion of a hearing held under the provisions of subsection (b) or
(c) of this section, if the court finds that the tenant is in wrongful occupation
of the rental property, the court shall make and enter an order granting immediate
possession of the property to the landlord. In the case of a proceeding under
subsection (a) of this section, the court may also make a written finding and
include in its order such relief on the issue of arrearage in the payment of
rent as the evidence may require. The court may disburse any moneys paid into
court by the tenant in accordance with the provisions of this section.
The court order shall specify the time when the tenant shall vacate the property,
taking into consideration such factors as the nature of the property (i.e., furnished
or unfurnished), the possibility of relative harm to the parties, and other material
facts deemed relevant by the court in considering when the tenant might reasonably
be expected to vacate the property. The order shall further provide that if the
tenant continues to wrongfully occupy the property beyond such time, the sheriff
shall forthwith remove the tenant, taking precautions to guard against damage
to the property of the landlord and the tenant.
W.Va. Code § 55-3A-3.
As this Court explained in State
ex rel. Strickland v. Daniels,
173 W.Va. 576, 318 S.E.2d 627 (1984), summary eviction proceedings are designed
to provide recourse to landlords whose tenants are delinquent in paying rent. The
case presently before this Court, however, entails substantially more complexity
than a simple failure to make rent payments. Thus,
other equitable concerns were properly addressed by the lower court. The
lower court was presented with a situation in which it appears that the Appellees
had made payments to the Appellant with the intent to purchase the property.
As evidence of such intent, the Appellees contended that they expended substantial
sums of money on improvements. The Appellees maintain that such improvements
would not have been made if the Appellees had not intended to purchase the property
and if they believed that their $350.00 monthly payment was simply a rent payment.
The Appellees even contended that they had paid the
down payment and had obtained a receipt from the Appellant's
wife. (See footnote 3) Further,
they maintained that they had an oral contract with the Appellant to purchase
the property. (See footnote
the lower court was faced with the unenviable task of attempting to rectify
a misunderstanding that had been sustained over a period of years and involved
substantial expenditures of money.
review of a lower court determination, this Court may
not overturn a finding simply because it would have decided the case differently,
and this Court must affirm [i]f the [circuit] court's account of the
evidence is plausible in light of the record viewed in its entirety[.] Anderson
v. City of Bessemer City, 470 U.S. 564, 573-74 (1985). This Court also
explained as follows in Intercity Realty Co. v. Gibson, 154 W.Va. 369,
175 S.E.2d 452 (1970), overruled on other grounds by Cales v. Wills,
212 W.Va. 232, 569 S.E.2d 479 (2002):
Where the law commits a determination
to a [lower tribunal] and [its] discretion is exercised with judicial balance,
the decision should not be overruled unless the reviewing court is actuated,
not by a desire to reach a different result, but by a firm conviction that an
abuse of discretion has been committed.
154 W.Va. at 377, 175 S.E.2d at 457 (citation and internal quotations omitted).
Of course, if the trial court's findings
of fact are not clearly erroneous and the correct legal standard is applied,
its ultimate ruling will be affirmed as a matter of law. Phillips v.
Fox, 193 W.Va. 657, 662, 458 S.E.2d 327, 332 (1995). We
find that the conclusion of Phillips
is also applicable in this case. Where the findings of fact are not clearly erroneous,
the correct legal standard has been applied, and the application of law to the
facts does not
reflect an abuse of discretion, the lower court ruling should be affirmed. The
lower court heard the evidence presented by the opposing parties in the present
case and was in a position to make credibility determinations that must be accorded
deference. A reviewing court cannot assess witness credibility through
a record. Michael D.C. v.
Wanda L.C., 201 W.Va. 381, 388,
497 S.E.2d 531, 538 (1997); see
also Gum v. Dudley, 202 W.Va.
477, 484, 505 S.E.2d 391, 398 (1997) (The trial court [is in the best position
to] observe . . . the demeanor of the witnesses and other nuances of
a trial that a record simply cannot convey); State
v. Butcher, 165 W.Va. 522, 527,
270 S.E.2d 156, 159 (1980) (The trial court had
the benefit of observing the demeanor of the witness as he testified, and we
are without such benefit).
the lower court found, there was a fundamental disagreement between the parties
regarding whether the $350.00 monthly payments were intended as rental payments
or installment payments toward the purchase of the property. The evidence was
also conflicting regarding the intentions of the parties and the understanding
of the Appellant in
accepting the $350.00 monthly payments. In
analyzing this matter, the lower court correctly found that the written agreement
between the parties, as referenced above, was inartfully drawn and appeared
to require the Appellees to make a down payment of $4,875.00, in order to exercise
their option to purchase the property. The lower court found that there was
no reliable evidence that such payment was ever made. Therefore, the lower
court found that this option to purchase was not exercised by the Appellees
due to their failure to prove that they took the step necessary to exercise
the option to purchase the property.
In granting relief, the lower court did not
allow an offset for the alleged rental arrearage of $5,700.00. While the Appellant
did submit evidence indicating that the Appellees had ceased making rental payments
in October 2002 and consequently owed him the arrearage of $5,700.00, the Appellees
indicated, as referenced above, that they intended to make monthly installment
payments, thought to be payments made toward the purchase of the property, only
until the purchase agreement had been satisfied. As the lower court found,
evidence in this case is that the Defendant [Appellee] made periodic monthly
payments that he thought were house payments, and that he ceased making payments
when he thought he had satisfied the contract. (It was that cessation of payments
that prompted the Plaintiff [Appellant] to file this action for possession on
the theory that the payments were rent.)
After reviewing the record and the lower court's
findings of fact, this Court does not discern that the lower court's findings
are clearly erroneous. Nor does this Court find any abuse of
discretion by the lower court in fashioning appropriate relief. Finding
no reversible error, we accordingly affirm the lower court's decision in all
The Appellees also alleged
that they had entered into an oral agreement with the Appellant for the option
to purchase the real estate.
In articulating the relief
granted, the lower court order specified as follows:
If the Court leaves the parties
where it finds them, the Plaintiff will reap an unjustified windfall consisting
of the improvements to the house for which the Plaintiff will not have paid,
and the Defendant will lose the fruits of his labor and money. Under these circumstances,
the Court has inherent powers to fashion equitable relief.
The lower court further reasoned: While the Court cannot require a transfer
of title, it may exercise its equitable powers to prevent an unjust result.
Appellees attempted to introduce a document purported to be a receipt for
the down payment. The lower court did not permit the torn and somewhat illegible
paper to be submitted as evidence. As this Court has consistently held, rulings
on the admissibility of evidence are properly within the discretion of the
circuit court, and this Court will not overturn such rulings absent an abuse
action of a trial court in admitting or excluding evidence in the exercise of
its discretion will not be disturbed by the appellate court unless it appears
that such action amounts to an abuse of discretion. Syllabus point 10, State
, 141 W.Va. 55, 87 S.E.2d 541 (1955), overruled on other grounds
by State ex rel. R.L. v. Bedell
, 192 W.Va. 435, 452 S.E.2d 893 (1994).
Syl. Pt. 1, State v. Calloway
, 207 W.Va. 43, 528 S.E.2d 490 (1999).The
Appellees have not appealed that evidentiary ruling. Even if that issue had
been included in an appeal, the record reveals no abuse of discretion in the
failure to permit the paper to be introduced as evidence.
the Appellant contended and the lower court held, an oral agreement for the
purchase of real estate is barred by the Statute of Frauds, and there can be
no specific performance of an alleged oral contract for such purchase. Callaham
v. First Natl Bank of Hinton, 126 W.Va. 907, 30 S.E.2d 735 (1944).
acts of part performance of verbal agreements for the sale of real estate have
always been recognized in equity as taking a case out of the strict application
of the statute of frauds. Code, 36-1-3. For example, payments of purchase money,
in whole or in part, accompanied by possession of the land sold; or possession
thereof, coupled with the placing of valuable improvements thereon by the purchaser,
have always been held to justify a decree for the specific performance of a verbal
agreement to convey real estate. . . . [However,] the general rule may be stated
to be that specific performance cannot be decreed on the ground of part performance,
unless the acts are such that
legal damages would not be adequate relief [.]
Id. at 912-13, 30 S.E.2d at 738.