                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


Fernando M. Smith,                                                                     FILED
Defendant Below, Petitioner                                                          May 31, 2019
                                                                                  EDYTHE NASH GAISER, CLERK
                                                                                  SUPREME COURT OF APPEALS
vs) No. 17-0706 (Mineral County 17-C-AP-3)                                            OF WEST VIRGINIA


Thomas Reel,
Plaintiff Below, Respondent


                               MEMORANDUM DECISION
       Petitioner 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.

       The 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.

         On 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.
                                                   1
        While 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.1 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.”2 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.

        On 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
       review.

Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538
(1996).

        On 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

       1
        At the end of trial, petitioner wanted to ensure that the circuit court received the photos of
alleged black mold inside the residence. The circuit court responded that it had the photos and that
they would “stay in the file.” We note that these photos are included in the record on appeal.

       Respondent testified that petitioner’s allegation of black mold was a fabrication and that,
       2

when he went over to the property to change a flue pipe, petitioner never mentioned any such
problem to him.

                                                  2
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.3 We address these issues in turn.

        Petitioner 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 respondent.

         Petitioner 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,4 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

        3
         Petitioner also refers to a purported settlement agreement reached between his wife and
respondent. However, as explained supra, no documents were admitted into evidence at the August
10, 2017, bench trial; therefore, we find that the circuit court did not abuse its discretion by relying
on the parties’ oral testimony to render its judgment. See Syl. Pt. 1, in part, McDougal v.
McCammon, 193 W.Va. 229, 455 S.E.2d 788 (1995) (holding that “[t]he West Virginia Rules of
Evidence and the West Virginia Rules of Civil Procedure allocate significant discretion to the trial
court in making evidentiary and procedural rulings”).
        4
        In Stewart v. Johnson, 209 W.Va. 476, 481, 549 S.E.2d 670, 675 (2001), we found that
“[w]here . . . there exists a month-to-month tenancy, [West Virginia] Code § 37-6-5 . . . requires a
landlord provide notice equal to a full period of the tenancy.” (Footnote omitted.).
                                                  3
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.

       For the foregoing reasons, we affirm the circuit court’s August 10, 2017, order directing
petitioner to vacate the property at 10 High Knob Lane.

                                                                                    Affirmed.

.

ISSUED: May 31, 2019


CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




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