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Kincaid v. Morgan
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
September 1992 Term
No. 20735
EUGENE KINCAID AND LENA KINCAID, Plaintiffs Below, Appellees
v.

CHARLES MORGAN AND PAUL MORGAN
Defendants Below, Appellants

v.

JOHNNY WALKER AND BARBARA WALKER,
Third-Party Defendants Below, Appellees


Appeal from the Circuit Court of Wyoming County Honorable John S. Hrko, Judge Civil Action No. 87-C-353 AFFIRMED, IN PART; REVERSED, IN PART; REMANDED WITH DIRECTIONS
___________________________________________________
Submitted: September 22, 1992
Filed: December 11, 1992

Joseph A. Colosi Welch, West Virginia Attorney for the Appellants
Richard G. Rundle Pineville, West Virginia Attorney for the Appellees
David G. Thompson Pineville, West Virginia Attorney for Third-Party Defendants/Appellees
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1.
"Findings of fact by a trial court without a jury will not be set aside unless they are clearly wrong." Syl. pt. 1, McDaniel v. Romano, 155 W. Va. 875, 190 S.E.2d 8 (1972).

2.
"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 of 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).

3.
"A court may order payment by an attorney to a prevailing party reasonable attorney fees and costs incurred as the result of his or her vexatious, wanton, or oppressive assertion of a claim or defense that cannot be supported by a good faith argument for the application, extension, modification, or reversal of existing law." Syl., Daily Gazette Co., Inc. v. Canady, 175 W. Va. 249, 332 S.E.2d 262 (1985).

4.
"'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).


Per Curiam:
        This case is an appeal from the final judgment of the Circuit Court of Wyoming County, entered May 6, 1991. The trial court ruled that the appellants, Charles Morgan and Paul Morgan, had encroached upon and caused damage to land owned by the appellees, Eugene and Lena Kincaid. Damages were awarded to both the Kincaids and the third

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