Fernando M. Smith, Defendant Below, Petitioner
Thomas Reel, Plaintiff Below, Respondent
Mineral County 17-C-AP-3
Fernando M Smith, pro se, appeals the August 10, 2017, order
of the Circuit Court of Mineral County directing petitioner
to vacate the property at 10 High Knob Lane, Keyser, West
Virginia, by 6:00 p.m. on August 14, 2017. Respondent Thomas
Reel, by counsel Trena Williams, filed a response.
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.
August 7, 2017, respondent initiated an action in the
Magistrate Court of Mineral County to evict petitioner from
the property located at 10 High Knob Lane, Keyser, West
Virginia, asserting that petitioner and his family "were
to be gone [by a] July 15, 2017, deadline." Following
the magistrate court's judgment in respondent's
favor, petitioner appealed to the Circuit Court of Mineral
County which held a bench trial, de novo, on August 10, 2017.
Petitioner and his wife arrived after the circuit court had
already begun hearing respondent's testimony. The trial
transcript clearly reflects that, despite petitioner's
and his wife's late appearances, the circuit court
provided them an opportunity to present their case that (1)
respondent failed to give petitioner and his wife written
notice to vacate the property; (2) petitioner and his wife
made timely rental payments; and (3) the existence of black
mold inside the residence violated the implied warranty of
habitability. For his part, respondent testified that he
provided petitioner and petitioner's wife adequate
written notice to vacate the property, that petitioner and
his wife failed to make timely rental payments, and that
petitioner and his wife first raised the issue of black mold
in their answer to this action in the magistrate court.
the parties referred to various documents in support of their
respective cases and certain documents appear in the record
on appeal, no documents were admitted into evidence, likely
because both parties appeared pro se at the August 10, 2017,
bench trial. Accordingly, the circuit court's
August 10, 2017, order reflects that it relied on the
parties' oral testimony in its judgment. The circuit
court found that respondent gave petitioner sufficient notice
to terminate the parties' month-to-month oral lease
agreement and that petitioner "never advised
[respondent] of supposed black mold on the
premises." Therefore, the circuit court ordered
petitioner and his family to vacate the property at 10 High
Knob Lane by 6:00 p.m. on August 14, 2017.
August 14, 2017, petitioner filed both an appeal of the
circuit court's August 10, 2017, order and a motion for
an emergency stay of eviction. By order entered August 14,
2017, this Court denied petitioner's motion.
Consequently, petitioner and his family no longer reside at
the property at 10 High Knob Lane. West Virginia Code §
55-3A-3(g) generally limits relief to monetary damages if
"the tenant prevails upon appeal[.]" As explained
infra, we find that petitioner is not entitled to
any relief as the circuit court properly ordered him to
vacate the property.
We apply the standard for reviewing a judgment entered
following a bench trial:
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
Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat'l Bank in
Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).
appeal, petitioner raises six assignments of error in arguing
that both the magistrate court and the circuit court erred in
ordering him to vacate the property. Respondent counters
that, in petitioner's argument, he "lump[s]"
his assignments together without clear delineation and leaves
certain assignments of error "not addressed."
Regarding petitioner's assignments alleging error in the
magistrate court proceedings, in syllabus point two of
Elkins v. Michael, 65 W.Va. 503, 64 S.E. 619 (1909),
we held that "[a]n appeal from a [magistrate
court's] judgment vacates and annuls the judgment."
Accordingly, once petitioner appealed the magistrate
court's judgment and was entitled to a trial de novo in
the circuit court, "the case could only be tried . . .
upon its merits in the circuit court, and judgment rendered
upon the evidence adduced [in that court]."
Pickenpaugh v. Keenan, 63 W.Va. 304, 305, 60 S.E.
137, 138 (1908); accord Laber v. Harvey, 438 F.3d
404, 420-21 (4th Cir. 2006). Therefore, we address
only those assignments alleging error in the circuit court
proceedings as the magistrate court proceedings were no
longer relevant upon the holding of the trial de novo.
Petitioner argues that the circuit court favored
respondent's case and failed to provide him an adequate
opportunity to be heard. Petitioner further argues that the
circuit court should have ruled in petitioner's favor
given his and his wife's testimony that (1) respondent
failed to give petitioner and his wife written notice to
vacate the property; (2) petitioner and his wife made timely
rental payments; and (3) the existence of black mold inside
the residence violated the implied warranty of
habitability. We address these issues in turn.
notes that he arrived late to the August 10, 2017, trial and
that the circuit court thereafter threatened to hold him in
contempt of court. "The fundamental requisite of due
process of law is the opportunity to be heard."
State ex rel. Peck v. Goshorn, 162 W.Va. 420, 422,
249 S.E.2d 765, 766 (1978) (internal quotations and citations
omitted); see Syl. Pt. 2, Simpson v.
Stanton, 119 W.Va. 235, 193 S.E. 64 (1937) (holding that
"the right to be heard" constitutes part of the due
process of law guaranteed by the United States and West
Virginia Constitutions). Given that the trial transcript
clearly reflects that the circuit court allowed both
petitioner and his wife to provide testimony in support of
his case once they arrived, we find that the circuit court
provided petitioner an adequate opportunity to be heard. The
trial transcript further reflects that the circuit court
threatened to hold petitioner in contempt only after he
engaged in "unintelligible yelling and gesturing."
Therefore, based on the record, we reject any suggestion by
petitioner that the circuit court was predisposed toward
further argues that the circuit court erred in finding that
respondent provided the more credible testimony. Respondent
testified that he gave petitioner sufficient notice to
terminate the parties' month-to-month oral lease
agreement,  that petitioner failed to make timely
rental payments, and that petitioner first raised the issue
of black mold in his answer to this action in the magistrate
court. Based on our review of the trial transcript, we find
that the conflicting testimony was such that the circuit
court could choose to believe respondent rather than
petitioner and his wife. Credibility determinations are for
the trier of fact to make. "An appellate court may not
decide the credibility of witnesses or weigh evidence as that
is the exclusive function and task of the trier of
fact." State v. Guthrie, 194 W.Va. 657, 669
n.9, 461 S.E.2d 163, 175 n.9 (1995). Rule 52(a) of the West
Virginia Rules of Civil Procedure provides, in pertinent
part, that, when a court sits without a jury,
"[f]indings of fact, whether based on oral or
documentary evidence, shall not be set aside unless clearly
erroneous, and due regard shall be given to the opportunity
of the trial court to judge the credibility of the
witnesses." Accordingly, after reviewing the record, we
conclude that the circuit court did not abuse its discretion
in rendering judgment in respondent's favor.
foregoing reasons, we affirm the circuit court's August
10, 2017, order directing petitioner to ...