Keesecker v. Bird

This case involves the application of summary judgment to claims of waste to a re-mainderman’s interest in real and personal property. The plaintiff-appellant, Ward Kee-secker, II, is the owner of a remainder interest in property bequeathed by will to Emily Keesecker for her life. The defendant-appel-lees, Walter M. Bird and Arch Steiner, were appointed by the circuit court of Arlington County, Virginia as the personal representatives over Emily Keesecker’s affairs between 1981 and her death in 1993. 1 The appellant alleges that the appellees, while overseeing Emily Keesecker’s affairs, negligently allowed the property in the life estate to deteriorate, and subsequently permitted the property to be mostly destroyed.

This appeal is the result of the circuit court’s granting of summary judgment to the appellees. The circuit court ruled (1) that appellee Bird was “not a proper party” to this litigation, and (2) that the statute of limitations barred all claims against appellee Steiner. We find that the circuit court’s summary judgment order as to appellee Bird is inadequate because it fails to identify the circuit court’s factual and legal analysis, and we also hold that the circuit court incorrectly applied the “real party in interest” analysis found in West Virginia Rules of Civil Procedure (“W. Va.R. Civ.P.”) Rule 17(a) [1978], However, with respect to appellee Steiner, the record establishes that while Steiner was managing the property between 1981 and 1986, the appellant knew that waste was occurring, knew that Steiner last managed the property in 1986, and knew that Steiner’s conduct may have caused or contributed to the property damage, yet the appellant waited over six years to initiate this lawsuit against Mr. Steiner. As such, the appellant’s claims against appellee Steiner are barred by the applicable two-year statute of limitation. Accordingly, we reverse the circuit’s order as to Mr. Bird, affirm the order dismissing the claims against Mr. Steiner, and remand the case for further proceedings.

I.

Facts and Background

In late 1974, Ward W. Keesecker, Sr., (“Dr.Keesecker”) and his second wife, Emily M. Keesecker, who were both residents of Morgan County, West Virginia, were involved in an automobile accident. Dr. Kee-secker died from his injuries on January 24, 1975. Emily Keesecker was hospitalized and later moved to a nursing home where she remained until her death on May 15, 1993. Testimony by the parties indicates that she was comatose for the last nine years of her life.

In his will, Dr. Keesecker gave certain real and personal property to Emily Keesecker for her life, and upon her death the remainder was to go to his son (by his first marriage), appellant Ward W. Keesecker, II. The real property, Highwood House, was a large home located in Berkeley Springs, West Virginia with more than 20 rooms and four floors. One insurance agent inspected the home in 1984 and found it had a replacement cost of $361,878.00, while another agent estimated the replacement value at $207,981.00. *673 The personal property in the life estate consisted of the contents of Highwood House. The appellant alleges that the home was filled with antiques.

At some point prior to 1981, Emily Kee-seeker was moved to a nursing home in Arlington County, Virginia. On May 1,1981, the Circuit Court of Arlington County, Virginia, appointed appellee Arch Steiner as “Committee of the estate of Emily M. Kee-seeker.” Mr. Steiner moved to Tennessee in 1986, and on June 26, 1986 the Circuit Court of Arlington County, Virginia entered an order relieving Mr. Steiner of his duties and appointing appellee Walter Bird 2 as committee for Emily Keeseeker. Mr. Steiner prepared a seven-page, single-spaced inventory listing the contents of each room of High-wood House and stated that these items were transferred to Mr. Bird. In his deposition, Mr. Bird acknowledged he inspected the house and signed the inventory list accepting the property.

Over the years of Mr. Bird’s tenure as committee for the estate of Emily Keeseeker, Highwood House was burglarized numerous times. Mr. Bird testified that he recalled reporting to the police more than a dozen thefts of personal property from Highwood House. No one was ever arrested for these burglaries. Mr. Bird also gave somewhat contradictory testimony about whether he sought indemnity for these losses from the homeowner’s insurance company. 3 He testified that he never made any claims for losses or damages to the insurance company for any of these breaking and enterings, but he later said he had simply called his insurance agent to report these crimes. Mr. Bird testified the insurance agent said he would get back to him, but he “never heard anything back.”

Accounting statements filed by Mr. Bird reflect income from the rental of Highwood House between June 1986 and June 1990, in addition to Emily Keeseeker’s pension and social security cheeks. By 1990, it appears that Mr. Bird became unable to rent the Highwood property. He boarded up the windows and padlocked the doors. Because the property was unoccupied, the homeowner’s insurance company canceled all insurance policies on Highwood House effective January 26,1990. Mr. Bird contacted his personal insurance agent and discussed insuring the property through another company, but later told the agent that he did not wish to purchase insurance coverage at that time.

On November 30, 1990, the Virginia Commissioner of Accounts wrote to Mr. Bird stating that the Commissioner would no longer approve disbursements from Mrs. Kee-secker’s estate account to pay for utilities, maintenance, or repairs to the house. The letter advised Mr. Bird to consider selling the house or abandoning it if it was of no value. It appears that Mr. Bird then listed the house with a local real estate company and indicated the selling price was $78,000. 4

In April or May 1991, Mr. Bird returned to his insurance agent’s office and asked about the possibility of insuring Highwood House. The insurance agent assisted Mr. Bird in completing an application for homeowner’s insurance. However, in his deposition, the insurance agent testified that he did not process the application because Mr. Bird never paid the premiums for coverage.

On December 11, 1991, Mr. Bird wrote to appellant Ward Keeseeker, II, saying that he had located a buyer willing to pay $78,000 for Highwood House and that he needed Mr. Keeseeker to sign a contract approving the sale. Mr. Keeseeker testified in his deposition that he received the letter but did not respond because he was not interested in selling his interest in the house. Two weeks after this letter was sent, on December 26, 1991, Highwood House was severely damaged in a fire of suspicious origin.

*674 On April 17, 1992, Mr. Bird initiated a lawsuit against Mr. Keesecker to force the sale of the house. The complaint alleges that Mr. Bird had located a buyer for Highwood House, and because of the expense of upkeep for the house, it was in the best interest of Mrs. Keesecker (the life tenant) that the fee simple interest in the property be sold. Accordingly, appellee Bird asked that the trial court compel the sale of Highwood House, and use the interest and income from the sale proceeds for the support of Mrs. Kee-secker. 5 Appellant Keesecker answered the complaint and filed a counterclaim against appellee Bird and a third-party complaint against appellee Steiner alleging they committed waste to the property by failing to preserve Highwood House and its contents. The circuit court’s granting of summary judgment on the counterclaim and the third-party complaint are the basis for this appeal. 6

Subsequently, a second fire occurred at Highwood House on January 27, 1993, and while the extent of damage is not stated in the record, the testimony of the parties suggests that the house was virtually destroyed. Mrs. Keesecker died on May 15,1993.

Both Mr. Bird and Mr. Steiner filed motions for summary judgment alleging that they were not proper parties to this action because they acted as fiduciaries and could not be held personally responsible for the debts of Emily Keesecker’s estate. Accordingly, they insisted that the sole party defendant should be the estate of Mrs. Keesecker. Both appellees further argued that they did not commit waste, and could not be held responsible for waste even if it did occur. Lastly, Mr. Steiner alone argued that all claims against him were barred by the statute of limitation.

On August 18, 1995, the circuit court issued two brief orders granting Mr. Bird’s and Mr. Steiner’s motions for summary judgment. The circuit court dismissed the actions against Mr. Bird because he was “not a proper party to the instant litigation.” 7 The actions against Mr. Steiner were dismissed as barred by the statute of limitation. 8 It is *675 from these two orders that Mr. Keesecker now appeals.

II.

Standard of Review

We first consider the appropriateness of summary judgment under W.Va. R.Civ.P. Rule 56 [1978]. As we stated in Syllabus Point 1 of Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994), we review a circuit court’s entry of summary judgment de novo. The traditional standard for granting summary judgment was established in Syllabus Point 3 of Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963) where we held:

A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.

In accord, Syllabus Point 1, Fayette Co. National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997); Syllabus Point 1, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995); Syllabus Point 2, Painter, supra; Syllabus Point 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

In Fayette Co. National Bank, supra, we mandated that “an order granting summary judgment cannot merely recite and rest exclusively upon a conclusion that, ‘No genuine issue of material fact is in dispute and therefore summary judgment is granted.’” 199 W.Va. at 353, 484 S.E.2d at 236. This Court must “determine whether the stated reasons for the granting of summary judgment by the lower court are supported by the record.” Id. In order to accomplish this, a circuit court must identify the factual and legal support for its ultimate conclusions. We therefore held that:

Although our standard of review for summary judgment remains de novo, a circuit court’s order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed.

Syllabus Point 3, Fayette County National Bank. With these standards in mind, we review the circuit court’s orders.

III.

Discussion

A.

Summary Judgment as to Appellee Bird

i.

Adequacy of the Circuit Court’s Order

In Fayette County National Bank, supra, we examined an order with language similar to that used by the circuit court in its summary judgment order regarding Mr. Bird. The circuit court’s order in Fayette County National Bank simply stated:

The Court having maturely considered ... said Motion, it is the opinion of the Court that the relief prayed for should be granted, as is more fully set out in that letter dated June 8,1995, the original of which is attached hereto and made a part hereof.

The referenced letter of June 8 provided:

The Court has considered plaintiffs motion for summary judgment, and after considering counsel’s memorandums and argument is of the opinion that the motion should be granted, there being no genuine issues that exist as to material facts in this action for deficiency judgment.

We concluded that the above-stated “summary judgment findings by the circuit court ... do not rise to the level of ‘meaningful’ findings required by the holding we have made today.” 199 W.Va. at 354, 484 S.E.2d at 237.

Our examination of the circuit court’s order in the case sub judice leads us to the same conclusion. The circuit court dismissed the appellant’s lawsuit against appellee Bird by stating:

It appearing to the Court that the facts underlying Defendant Bird’s Motion for Summary Judgment are not in dispute, that Walter M. Bird is not a proper party to the instant litigation, and that due to the *676 foregoing, Defendant Bird is entitled to judgment as a matter of law....

We believe that, with this order, the circuit court failed to make the meaningful findings required by W.Va.R.Civ.P. Rule 56 and Fay-ette County National Bank. The findings in the Bird order are conclusory, and the order does not contain those findings of fact which were relevant, determinative of the issues and undisputed. The order is devoid of descriptive factual findings, contains no discussion of the numerous legal issues raised by the parties and is therefore inadequate. Accordingly, we reverse the circuit court’s August 18, 1995 order regarding claims against appellee Bird and remand the case for full consideration.

a.

Real Party in Interest Analysis

The circuit court dismissed appellee Bird because he was “not a proper party to the instant litigation.” The parties agree that the circuit court’s decision was based upon W.Va.R.Civ.P. Rule 17(a) [1978], which requires that actions be brought in the name of the “real party in interest.”

Where an issue on appeal from the circuit court is clearly a question of law or involves an interpretation of a statute, we apply a de novo standard of review. Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995). An interpretation of the West Virginia Rules of Civil Procedure likewise presents a question of law subject to a de novo review.

W.Va.R.Civ.P. Rule 17(a) states:

(a) Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, or any other fiduciary, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by law may sue in his own name without joining with him the party for whose benefit the action is brought. When a law of the state so provides, an action for the use or benefit of another shall be brought in the name of the state or any political subdivision thereof. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.

Rule 17(a) does not specifically define the term “real party in interest.” “About the best that can be said for [Rule] 17 is that it conveys a certain amount of correct information about naming plaintiffs.” Virginia Elec. & Power Co. v. Westinghouse Elec. Corporation, 485 F.2d 78, 82 (4th Cir.1973). While Rule 17(a) was originally “intended to expand the class of those who may sue to include persons having an equitable or beneficial interest, the rule is unfortunately susceptible to efforts to prevent prosecution of claims as illustrated by this appeal. Ingenious counsel are enabled to present yet another ‘decision point’ resulting in extravagant expenditures of time and effort before ever reaching the merits.” 485 F.2d at 83.

Our reading of the language of Rule 17(a) is that it plainly indicates that its analysis applies only to claimants, that is, individuals who “prosecute[ ],” “sue,” or who may bring a lawsuit in the name of the state or others. The real party in interest analysis focuses upon a plaintiff, defendant, petitioner, or intervenor that is asserting a claim, counter-claim or cross-claim, as opposed to a defendant or respondent, that is, the persons against whom a claim is made.

The purpose of Rule 17(a) is not to simply identify a party by the correct title, but to ensure that the party who makes a claim possesses, under substantive law, the right sought to be enforced. Hanna Mining Co. v. Minnesota Power and Light Co., 573 F.Supp. 1395, 1397, (D.C.Minn.1983), aff'd, 739 F.2d 1368 (8th Cir.1984). The initial purpose of the rule was to broaden the scope of claimants, from the holder of the claim to representatives of the holders of claims. The Committee Note of 1966 to Amended Federal Rule of Civil Procedure 17(a) states, in part:

*677 In its origin the rule concerning the real party in interest was permissive in purpose: it was designed to allow an assignee to sue in his own name. That having been accomplished, the modern function of the rule in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to insure generally that the judgment will have its proper effect as res judicata.

4 James W. Moore, Moore’s Federal Practice, 3d Edition § 17 App.04. 9

We therefore hold that the purpose of W.Va.R.Civ.P. Rule 17(a) is to ensure that the party who asserts a cause of action possesses, under substantive law, the right sought to be enforced. W.Va.R.Civ.P. Rule 17(a) allows circuit courts to hear only those suits brought by persons who possess the right to enforce a claim and who have a significant interest in the litigation. Virginia Elec. & Power Co., 485 F.2d at 83. The requirement that claims be prosecuted only by a real party in interest enables a responding party to avail himself of evidence and defenses that he has against the real party in interest, to assure him of finality of judgment, and to protect him from another suit later brought by the real party in interest on the same matter. Celanese Corp. of America v. John Clark Industries, 214 F.2d 551, 556 (5th Cir.1954). In its modern formulation, Rule 17(a) protects a responding party against the harassment of lawsuits by persons who do not have the power to make final and binding decisions concerning the prosecution, compromise, and settlement of a claim. Campus Sweater and Sportswear Co. v. M.B. Kahn Const. Co., 515 F.Supp. 64, 81 (D.S.C.1979), aff'd, 644 F.2d 877 (4th Cir.1981).

Thus, the concept of a “real party in interest” addresses a litigant’s right to pursue an action as a claimant. A defendant can be a real party in interest, if asserting a claim. National Safe Corp. v. Texidor Sec. Equipment, Inc., 101 F.R.D. 467 (D.P.R. 1984). See also W.Va.R.Civ.P. Rule 13 [1978] (compulsory and permissive counterclaims, and cross-claims against co-parties). A similar analysis applies to intervening parties. New Orleans Public Service, Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 464 (5th Cir.), cert. denied sub nom, Morial v. United Gas Pipe Line Co., 469 U.S. 1019, 105 S.Ct. 434, 83 L.Ed.2d 360 (1984).

The language of Rule 17(a) expressly authorizes a real party in interest to sue on behalf of, or for the benefit of, another. Many of the examples of real parties in interest listed in the rule are individuals with some fiduciary interest (executors, administrators, guardians, bailees, trustees of an express trust, etc.), individuals who are charged with the responsibility of adequately representing another’s interests. See 4 James W. Moore, Moore’s Federal Practice, 3d Edition, § 17.10[3]. In Richardson v. Kennedy, 197 W.Va. 326, 475 S.E.2d 418 (1996), we noted that the personal representative of a decedent’s estate, while a nominal party in a wrongful death claim, is still a real party in interest who may initiate a wrongful death action on behalf of the decedent’s beneficiaries against a tortfeasor.

However, simply because a claimant falls into one of the categories of persons listed in Rule 17(a) does not end the analysis; the claimant must still establish they have a right under the substantive law to initiate a lawsuit to enforce some right.

[T]he mere fact that plaintiff falls within one of the classes of persons enumerated in Rule 17(a) is not dispositive of the real party in interest question, for that rule assumes that the enumerated persons are granted the right to sue by the applicable substantive law.

*678 Lubbock Feed Lots, Inc. v. Iowa Beef Processors, Inc., 630 F.2d 250, 257 (5th Cir.1980). See also, Childers v. Eastern Foam Products, Inc., 94 F.R.D. 53, 55 (N.D.Ga.1982); See v. Emhart Corp., 444 F.Supp. 71, 73 (W.D.Mo.1977); Virginia Elec. & Power Co., 485 F.2d at 83; United States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir.1969).

Plaintiff-appellant Keesecker argues that defendant-appellee Bird is a “proper party” in this action because Mr. Bird was a “guardian” or “other fiduciary” as listed in Rule 17(a). The circuit court ruled instead that Mr. Bird was “not a proper party.” We believe that this analysis is backwards; the test under Rule 17(a) is whether Mr. Keesecker is a real party in interest, for he is the party prosecuting a claim for waste to the life estate and damage to his remainder interest. As the defending party to that claim, Mr. Bird is not subject to the real party in interest analysis. 10

We conclude that the circuit court in this case erred by ruling that defendant Bird was “not a 'proper party” under W.Va. R.Civ.P. Rule 17(a). The focus of the Rule 17(a) analysis should have been on Mr. Keesecker’s right and interest in prosecuting an action for waste to his interest in property, and not whether Mr. Bird was a proper defendant. Mr. Keesecker is undoubtedly the owner of the remainder interest in the life estate property. Accordingly, it appears that the appellant, Mr. Keesecker, has both a sufficient interest in the litigation and may be entitled under the substantive law to recover for damages to his remainder interest. Therefore, Mr. Keesecker is a real party in interest entitled to pursue his action for waste.

However, as we have previously noted, the parties agree that the circuit court’s summary judgment ruling relied upon Rule 17(a)’s “real party in interest” principles to find that Mr. Bird was not a proper party defendant. As we have shown, Rule 17(a) applies to parties prosecuting claims, not parties defending against claims. Therefore, the circuit court erred in relying upon Rule 17(a) to dismiss Mr. Bird as a defendant. 11

Hi.

Choice of Law

Because we reverse the decision of the circuit court dismissing Mr. Bird as a defendant and remand this case for further proceedings on appellant’s claims against Mr. Bird, we address a purely legal issue which may arise upon remand.

All of the parties in this ease converge their arguments on the duty of care owed by *679 the appellees to the late Mrs. Keesecker and to the appellant. However, the parties disagree over what law governs those duties. The appellant argues that because the life estate property is located in West Virginia, West Virginia law alone controls the duties of the parties. Appellee Bird argues that Virginia law controls his duties towards Mrs. Kee-secker’s estate; Bird does not directly address what that law might be.

We believe that on remand the circuit court must determine Mr. Bird’s duties towards the estate of Emily Keesecker under both Virginia and West Virginia law.

First, Mr. Bird’s committeeship was established in Virginia, according to Virginia law, by a Virginia court, and he was supervised by a Virginia Commissioner of Accounts. Therefore, the circuit court must initially determine whether Virginia law imposed a duty upon Mr. Bird to manage Emily Keeseeker’s real and personal property, wherever located. Whether or not Mr. Bird was supposed to stand in Emily Keesecker’s shoes and care for Highwood House and its contents is to be determined by Virginia law. 12

Second, if it is determined that Virginia law established a duty upon appellee Bird to manage the real and personal property located in West Virginia, then the next question — how appellee Bird was to manage that property — is to be determined by West Virginia law. It is a universal principle of law that real property is subject to the law of the country or state within which it is situated. See, e.g., United States v. Crosby, 7 Cranch 115, 116, 11 U.S. 115, 116, 3 L.Ed. 287 (1812); 16 Am.Jur.2d Conflicts of Laws, § 24. See also, In re Rumford’s Will, 66 W.Va. 39, 42, 66 S.E. 10, 12 (1909) (“In respect to passing of title to real estate the lex loci rei sitae governs....”); Syllabus Point 2, In re Briggs’ Estate, 148 W.Va. 294, 134 S.E.2d 737 (1964) (validity of a will with respect to personalty governed by the laws of the place of testator’s last domicile, and with respect to realty, the laws of the place where the realty is situated; the place where the will was executed is without legal significance).

All matters concerning the taxation of realty, title, alienation, and the transfer of realty and the validity, effect, and construction which is accorded agreements intending to convey or otherwise deal with such property are determined by the doctrine of lex loci rei sitae, that is, the law of the place where the land is located. Matter of Grayco Land Escrow, Ltd., 57 Haw. 436, *680 449, 559 P.2d 264, 274 (1977). Every state has plenary jurisdiction and control of the property, real and personal, located within its borders. In re Bay’s Estate, 74 Wyo. 317, 330, 287 P.2d 629, 634 (1955), quoting In re Smith’s Estate, 55 Wyo. 181, 200, 97 P.2d 677, 684 (1940).

We therefore hold that the choice of law doctrine of lex loci rei sitae controls as to property located in this State. The doctrine of lex loci rei sitae exists because it is particularly important that there be certainty, predictability and uniformity of result and ease in the determination and application of the law to be applied concerning the transaction of property and the management of property. 13 Accordingly, if the appellees, under Virginia law, owed Emily Keesecker a duty to manage her real and personal property located in West Virginia, then the method of caring for the property was to be guided by West Virginia law. 14

B.

The Circuit Court’s Summary Judgment as to Appellee Steiner

Appellant Keesecker testified in his deposition that he was aware that his father’s will *681 had created a life estate of Highwood House for Emily Keesecker, “and upon her passing it would be mine and all the contents.” During the period appellee Steiner managed Emily Keesecker’s affairs, the appellant testified he would visit the Highwood property at least once a year. The appellant knew that Mr. Steiner was acting as his step-mother’s committee, and testified that Mr. Steiner had tried to buy his interest in the estate. During Mr. Steiner’s tenure as committee, the appellant noted that the real property was falling into a state of disrepair, and that the personal property also was not being cared for. The appellant held the opinion that the “serious dilapidation of the house” commenced the day his father died in 1975.

The appellant was not immediately aware of the change of committee over his stepmother’s estate in 1986. However, he testified in his deposition that he

... just had hearsay, people had said ... [and] I believed from what I had heard that Mr. Bird was managing the estate, which I guess I would assume was committee because Mr. Steiner had moved to Tennessee and left Mr. Bird in charge. That was my understanding.

Although the record is unclear on the exact date, it appears that during Mr. Bird’s ten *682 ure as committee the appellant visited High-wood House. The appellant again found significant deterioration, finding bricks had fallen off a chimney and cut holes in the metal roof. He testified he repaired the holes to minimize damage to the house that would “obviously further deteriorate the house.”

The appellant alleges that appellee Steiner’s failure to make basic repairs to High-wood House and its contents between 1981 and 1986 constitutes waste under West Virginia law. The appellee argues that the appellant’s claims, if any, are barred by the statute of limitation because the appellant waited nearly six years to initiate this action for waste. We agree with the appellee.

There are four steps to determining if a claim is barred by a statute of limitation. The first step in analyzing any statute of limitation question is to determine the applicable statute. Waste is a property damage tort consisting of an injury to the freehold by one rightfully in possession of land. 15 Cecil v. Clark, 49 W.Va. 459, 470, 39 S.E. 202, 206 (1901). A plaintiff need not be in possession of the land to initiate action. The action is “not one to recover damages for injury to the possession of the land ... [but for] permanent injury done to the freehold_” Crowder v. Fordyce Lumber Co., 93 Ark. 392, 394, 125 S.W. 417, 418 (1910).

A life tenant owes a duty to a remainderman not to commit either voluntary or permissive waste. Waste is “any permanent or lasting injury done or permitted to be done by the holder of the particular estate to lands, houses, or other corporeal hereditaments, to the prejudice of the heir or of him in remainder or reversion.” Gwinn v. Rogers, 92 W.Va. 533, 540, 115 S.E. 428, 430 (1922). “Waste, injury to the freehold by a tenant for life or years, is actionable at common law, whether it result from affirmative wrongful acts or mere omission to perform duty.” Talbott v. Southern Oil Co., 60 W.Va. 423, 427, 55 S.E. 1009, 1011 (1906). 16 The term “waste” implies neglect or misconduct resulting in material damage to or loss of property, but does not include ordinary depreciation of property due to age and normal use over a comparatively short period of time. Moore v. Phillips, 6 Kan.App.2d 94, 97, 627 P.2d 831, 834 (1981).

“Voluntary” or “commissive” waste involves the commission of the deliberate, willful or voluntary destruction or carrying away of something attached to the freehold. See, e.g., Gwinn v. Rogers, supra (tenant not liable to landlord for holes dug for tent posts and trampled grass in striking miners’ camp, as it is not a permanent injury rising to the level of waste); Hardman v. Brown, 77 W.Va. 478, 88 S.E. 1016 (1916) (co-tenant liable to other co-tenant for wantonly removing timber); Cecil v. Clark, supra, (co-tenant liable to other co-tenants for mining of coal); Bettman v. Harness, 42 W.Va. 433, 26 S.E. 271 (1896) (landlord may obtain injunction against tenant for removing oil and gas, if irreparable harm and title to land by landlord is established); Rogers v. Coal River Boom & Driving Co., 41 W.Va. 593, 23 S.E. 919 (1896) (landlord stated claim against tenant for waste, when tenant built logging boom in river which diverted the water flow, thereby damaging landlord’s soil); Koen v. Bartlett, 41 W.Va. 559, 23 S.E. 664 (1895) (it is not waste for life tenant to operate mines *683 or oil and gas wells existing when life estate created); McDodrill v. Pardee & Curtin Lumber Co., 40 W.Va. 564, 21 S.E. 878 (1895), overruled on other grounds, Ritz v. Kingdon, 139 W.Va. 189, 79 S.E.2d 123 (1953) (Plaintiffs, owners of land subject to a life estate, entitled to damages for waste or trespass for timber cut by defendant; amount of rec