                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS


Brady A. Weikle and Roberta L. Weikle,                                            FILED
Defendants Below, Petitioners                                                     June 24, 2013
                                                                             RORY L. PERRY II, CLERK
                                                                           SUPREME COURT OF APPEALS
vs) No. 12-0549 (Summers County 10-C-51)                                       OF WEST VIRGINIA



Michael D. Bolling and Sandra D. Bolling,
Plaintiffs Below, Respondents


                              MEMORANDUM DECISION
        Petitioners Brady A. Weikle and Roberta L. Weikle, by counsel Paul S. Detch, appeal the
Circuit Court of Summers County’s final order, entered on March 21, 2012, granting judgment in
favor of Respondents Michael D. Bolling and Sandra D. Bolling at the conclusion of a bench
trial. Respondents appear by counsel E. Kent Hellems.

       This 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Respondents filed a complaint on September 9, 2010, seeking removal of a gate that
petitioners erected across a right-of-way to respondents’ property, and claiming negligent and
intentional infliction of emotional distress and outrageous conduct by petitioners.1 Following a
bench trial conducted on March 2, 2012, the trial court found that Petitioner Brady Weikle
wrongly erected the gate, then acted outrageously by applying urine to the portion of the gate and
handle that petitioners and their family members had to touch to get to and from their home. The
court awarded respondents $7,500 in compensatory damages and $2,500 in punitive damages.
Petitioners filed a notice of appeal with this Court on April 20, 2012. We have held:

       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.

       1
        We undertake our review without distinguishing these claims. See Travis v. Alcon Labs.,
Inc., 202 W.Va. 369, 374, 504 S.E.2d 419, 424 (1998) (“Intentional or reckless infliction of
emotional distress, also called the ‘tort of outrage,’ is recognized in West Virginia as a separate
cause of action.”).
                                                1

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

        Though petitioners deny the allegations, there is no basis for us to find that the trial
court’s findings were clearly erroneous. We accept the testimony as credited by the trial court,
and the facts are troubling. Respondents and their family live on an 18.5 acre tract of land
purchased in 1984. They access this land using an approximately 150-foot right-of-way owned
by Petitioner Brady Weikle since about 1992. When Petitioner Brady Weikle informed
Respondent Michael Bolling, by registered letter, that he intended to erect a gate, respondents’
counsel prepared a letter to petitioners objecting to the addition of the gate. That letter referenced
this language from the deed granting the right-of-way:

       There is further conveyed by the Grantor to the Grantee a right of way through the
       parcel reserved and excepted described above which right of way is 16 feet in
       width and is shown on a certain survey map prepared by David L. Huffman, dated
       May 3, 1978, as revised on July 11, 1978, said right of way may be used by both
       the Grantor and Grantee, their heirs or assigns, and said right of way shall be kept
       open at all times. Said map is to be filed in the Office of the Clerk of the County
       Court of Summers County, West Virginia, with this deed.

Petitioner Brady Weikle then installed an aluminum, chained gate in August of 2010.2

       Shortly thereafter, Respondent Michael Bolling returned from church to find the gate
open. He went to his house and got ready for work, then left to find the gate closed. But when
he opened the gate, he found the chain, post, and ground wet. Upon getting back in his vehicle,
he smelled urine and realized that he had urine on his hands from having touched the gate.
Respondents and their friends began carrying gloves or materials to handle the gate.

        Respondents’ son Zach testified that on two occasions he saw Petitioner Brady Weikle
and Weikle’s two sons “with their backs turned toward [him] with their hands down at their
crotch with their legs spread.” Respondent Michael Bolling and Zach also each testified that
petitioners installed video cameras trained on the driveway and often watched the family coming
and going and opening the gate.

        Petitioners assert three assignments of error on appeal. First, they argue that the damages
awarded by the trial court are excessive because petitioners deny that they urinated on the gate,
and because no damages had been proven. Though petitioners argue that Petitioner Brady
Weikle’s testimony is credible because he was under oath, the simple administration of an oath
does not entitle one’s testimony to complete deference. Instead, Rule 52(a) of the West Virginia
Rules of Civil Procedure provides that a trial court's findings of fact made pursuant to a bench
trial “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.” We have explained:



       2
           A second gate was installed soon afterward.
                                                  2

       “‘“The finding of a trial court upon the facts submitted to it in lieu of a jury will
       be given the same weight as the verdict of a jury and will not be disturbed by an
       appellate court unless the evidence plainly and decidedly preponderates against
       such finding.” Syl. pt. 7, Bluefield Supply Company v. Frankels [Frankel's]
       Appliances, Inc., 149 W.Va. 622, 142 S.E.2d 898 (1965).’ Syl. pt. 1, Burns v.
       Goff, 164 W.Va. 301, 262 S.E.2d 772 (1980).” Syllabus Point 2, Shrewsbury v.
       Humphrey, 183 W.Va. 291, 395 S.E.2d 535 (1990).

Syl. Pt. 1, Strahin v. Lantz, 193 W.Va. 285, 456 S.E.2d 12 (1995).

       The Court further notes that:

       “[a] reviewing court cannot assess witness credibility through a record. The trier
       of fact is uniquely situated to make such determinations and this Court is not in a
       position to, and will not, second guess such determinations.” Michael D.C. v.
       Wanda L.C., 201 W.Va. 381, 388, 497 S.E.2d 531, 538 (1997); accord Gum v.
       Dudley, 202 W.Va. 477, 484, 505 S.E.2d 391, 398 (1997).

Webb v. W.Va. Bd. of Med., 212 W.Va. 149, 156, 569 S.E.2d 225, 232 (2002).

         The trial court was in the unique position to weigh the credibility of each witness, and he
particularly noted in his order that the testimony of respondents and Zach Bolling “was much
more credible and believable” than that of Petitioner Brady Weikle. We perceive no clear error in
the trial court’s findings of fact. As we noted above, the facts were egregious, and we do not find
that damages were disproportionate to the harm. We agree with the trial court that Petitioner
Brady Weikle’s actions,

       in applying urine to a gate which he knew [respondents] had to enter and exit to
       access their home, and the act of videotaping and photographing their handling of
       the gate and chain is outrageous in that it would shock the conscience of an
       ordinary person. Furthermore[,] a person being advised of these facts would likely
       exclaim[,] “[T]hat is outrageous!”

We further note that sufficient basis for the award of damages was described in the findings of
the trial court:

               [Respondents] both testified that they had suffered severe emotional
       distress as a result of the unlawful gating of the property, and particularly the
       application of urine to the gate. [Respondents] found it necessary to use gloves to
       open the gate each and every time the[y] entered or left their home. Furthermore,
       [Respondent Michael Bolling], his wife[,] and his son[] all testified that
       [Petitioner Brady Weikle and other Weikle family members] continuously filmed
       their exit and entry to their home as they opened the chained gate [Petitioner
       Brady Weikle] acknowledged that he used a camera and a video camera to
       videotape the entry and exit of the Bollings on multiple occasions.



                                                 3

               [Respondents] further testified that they both lost sleep, were greatly
       angered and generally felt like they were made a prisoner of their home, being
       reluctant to leave the premises because of the gate and the substances which
       [petitioners] applied thereto. [Respondent Sandra Bolling] testified she felt like a
       prisoner in her home. [Respondent Michael Bolling] testified that it was one of
       the worst experiences he had endured, that he sought counsel from his preacher
       and probably should have sought medical treatment.

               [Respondents] further testified that they worried about their own personal
       safety (from the hygiene of the gate) and the safety of their family in general in
       light of the conduct of [Petitioner Brady Weikle].

         These findings satisfy the test that we have articulated to sustain a claim for intentional
infliction of emotional distress:

       In order for a plaintiff to prevail on a claim for intentional or reckless infliction of
       emotional distress, four elements must be established. It must be shown: (1) that
       the defendant's conduct was atrocious, intolerable, and so extreme and outrageous
       as to exceed the bounds of decency; (2) that the defendant acted with the intent to
       inflict emotional distress, or acted recklessly when it was certain or substantially
       certain emotional distress would result from his conduct; (3) that the actions of
       the defendant caused the plaintiff to suffer emotional distress; and, (4) that the
       emotional distress suffered by the plaintiff was so severe that no reasonable
       person could be expected to endure it.

Syl. Pt. 3, Travis v. Alcon Laboratories, Inc., 202 W.Va. 369, 504 S.E.2d 419 (1998).3

       3
           We acknowledge our prior holding that:

               In cases where the jury is presented with an intentional infliction of
       emotional distress claim, without physical trauma or without concomitant medical
       or psychiatric proof of emotional or mental trauma, i.e. the plaintiff fails to exhibit
       either a serious physical or mental condition requiring medical treatment,
       psychiatric treatment, counseling or the like, any damages awarded by the jury for
       intentional infliction of emotional distress under these circumstances necessarily
       encompass punitive damages and, therefore, an additional award for punitive
       damages would constitute an impermissible double recovery. Where, however,
       the jury is presented with substantial and concrete evidence of a plaintiff's serious
       physical, emotional or psychiatric injury arising out of the intentional infliction of
       emotional distress, i.e. treatment for physical problems, depression, anxiety, or
       other emotional or mental problems, then any compensatory or special damages
       awarded would be in the nature of compensation to the injured plaintiff(s) for
       actual injury, rather than serving the function of punishing the defendant(s) and
       deterring such future conduct, a punitive damage award in such cases would not
       constitute an impermissible double recovery.

                                                  4

       Next, petitioners argue that the lower court erred in interpreting the grant of the right-of­
way to require that the gate installed by petitioners must be left open at all times.4 In partial
support of this argument, petitioners rely on Rogerson v. Shepherd, 33 W.Va. 307, 10 S.E. 632
(1889). In that case, we explained:

       It is true that Washburn on Real Property (volume 2, p. 337) says: “As a general
       proposition, the owner of a servient estate, over which there is a private way, may
       maintain gates or bars across the way, provided it do[es] not materially interfere
       with the use of it, or the way, by the terms of the grant, is to be kept open;” and
       the same doctrine may be found in Washburn on Easements, and many other
       authorities . . .

Id. at 316, 10 S.E. at 636.

        Under the very unique facts before us, we cannot say that the trial court erred in
determining that petitioners could not maintain a gate across the right-of-way granted to
respondents. Subsequent to the parties disagreeing about respondents’ entitlement to use the
right-of-way, petitioners erected a gate across a road that respondents had traversed freely since
1984. Almost immediately upon installing the gate, Petitioner Brady Weikle applied urine to the
gate components that respondents were forced to touch to access their home, and then took video
of respondents and their family opening and closing the gate. In light of these circumstances,
petitioners did not continue to enjoy a right-of-way “open at all times” as provided for in the
deed.

       Finally, petitioners argue that the trial court erred in awarding damages against Petitioner
Roberta Weikle, because there is no evidence implicating her in the outrageous conduct. We find
no error, inasmuch as the judgment order specifically concluded, in part: “No evidence or
testimony was solicited or elicited pertaining to the acts or conduct of [Petitioner] Roberta L.
Weikle; therefore, the Court’s judgment in this matter for the tort of outrage is only against
Brady A. Weikle.”




Syl. Pt. 14, in part, Tudor v. Charleston Area Med. Ctr., 203 W.Va. 111, 506 S.E.2d 554 (1997).
Petitioners have not asserted, however, that respondents enjoyed a double recovery, and we will
not consider this issue on appeal. See Syl. Pt. 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d
374 (1981) (“Assignments of error that are not argued in the briefs on appeal may be deemed by
this Court to be waived.”); see also Tiernan v. Charleston Area Med. Ctr., Inc., 203 W.Va. 135,
140 n.10, 506 S.E.2d 578, 583 n.10 (1998) (“Issues not raised on appeal or merely mentioned in
passing are deemed waived.”).
       4
         The first conclusion of law of the trial court stated, “As previously ruled by this Court,
[petitioners] had absolutely no right to erect gates across [respondents’] right[-]of[-]way which
provided access to their home. . . .” This conclusion appears to refer to a temporary injunction
granted by the court on September 13, 2010.
                                                 5

       For the foregoing reasons, we affirm.

                                                    Affirmed.

ISSUED: June 24, 2013

CONCURRED IN BY:

Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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