                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


Frederick W. Suck and Teresa L. Suck,                                                  FILED
Defendants Below, Petitioners                                                       June 7, 2019
                                                                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
vs) No. 18-0397 (Jackson County 17-C-36)                                             OF WEST VIRGINIA


Don E. Reed and Sandra J. Reed,
Plaintiffs Below, Respondents


                               MEMORANDUM DECISION
        Petitioners Frederick W. Suck and Teresa L. Suck, pro se, appeal the April 4, 2018, and
April 20, 2018, orders of the Circuit Court of Jackson County regarding the common boundary
line of the parties’ adjoining parcels of real property. Respondents Don E. Reed and Sandra J.
Reed, by counsel Brock D. Stotts, filed a summary response in support of the circuit court’s orders.

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

        The parties own adjoining properties in Jackson County, West Virginia and became
involved in a dispute regarding the location of their common boundary line. On April 7, 2017,
respondents filed a petition, pursuant to West Virginia Code § 55-4-31, and alleged petitioners
“trespassed and encroached upon a portion of [respondents’] land and have committed other acts
harmful to [respondents] and their land, [such as] putting structures, garbage, lawnmowers[,] and
other belongings on [respondents’] land” and “refused to remove their belongings from
[respondents’] land and . . . erected ‘no trespassing’ signs on [respondents’] real estate.” Petitioners
filed an answer on May 1, 2017. The parties subsequently waived a jury trial; therefore, the circuit
court held a bench trial on January 30, 2018.1 At trial, the parties introduced numerous exhibits,
including the relevant deeds, into evidence. Respondents each testified and further presented the
testimony of the owner of the original tract of land out of which the parties’ properties were


       West Virginia Code § 55-4-31 provides, in pertinent part, that “[a] trial by jury may be
       1

waived by consent of the parties, and the case be tried by the court.”
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conveyed and the testimony of the two surveyors they hired to determine the location of the
common boundary line. Petitioners did not provide any testimonial evidence, but cross-examined
respondents’ witnesses.

        Following trial, by order entered April 4, 2018, the circuit court (1) determined the common
boundary line between the parties’ respective properties; (2) enjoined petitioners from trespassing
or encroaching on respondents’ property, “except for the limited purpose of removing any personal
property and/or signs from [respondents’] property”;2 and (3) directed the preparation of an order
setting forth the new legal descriptions of the parties’ properties with the boundary line correctly
described to “be incorporated into the disposition . . . herein upon its entry by this Court.” In a
subsequent order, entered April 20, 2018, the circuit court set forth the new legal descriptions of
the parties’ properties, directed the Clerk of the Jackson County Commission to record the April
20, 2018, order in the appropriate deed books, and attached a plat showing the determined
boundary line between the parties’ properties.

        It is from the circuit court’s April 4, 2018, and April 20, 2018, orders that petitioners now
appeal. In syllabus point one of Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va.
329, 480 S.E.2d 538 (1996), we 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.

In an action pursuant to West Virginia Code § 55-4-31, “the petitioner has the burden of
establishing by a preponderance of the evidence the boundary for which he contends.” Syl. Pt. 6,
Westover Vol. Fire Dept. v. Barker, 142 W.Va. 404, 95 S.E.2d 807 (1956). West Virginia Code §
55-4-31 provides, in pertinent part:

       Any person having a subsisting interest in real estate and a right to its possession,
       or to the possession of some share, interest or portion thereof, upon petition filed in
       the court which would have jurisdiction in an action of ejectment concerning such
       real estate, shall have the right to have ascertained and designated by the said court,
       the true boundary line or lines to such real estate, as to one or more of the
       coterminous landowners.

       On appeal, petitioners argue that the circuit court (1) clearly erred by moving the common
boundary line between the parties’ property instead of determining its location; (2) failed to follow
the unambiguous descriptions set forth in the parties’ respective deeds; and (3) made a ruling

       2
        Sara Suck was petitioners’ co-defendant in the proceedings below, but is not a party to
this appeal.
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inconsistent with the testimony at trial. These assignments of error are interrelated in that they each
challenge the circuit court’s findings regarding the parties’ common boundary line; therefore, we
address petitioners’ arguments together. Respondents argue that petitioners’ assignments of error
amount to nothing more than mere disagreement with the circuit court’s findings. We agree with
respondents.

          In State v. Guthrie, 194 W.Va. 657, 669 n.9, 461 S.E.2d 163, 175 n.9 (1995), we found that
“[a]n 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.” Rule 52(a) of the West Virginia Rules of Civil
Procedure further provides that, in all actions tried upon the facts 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.” Here, after reviewing the January 30, 2018, transcript and the exhibits introduced
at trial, we concur with the circuit court’s finding that respondents established by a preponderance
of the evidence that the common boundary line between the parties’ properties was where
respondents’ surveyors testified it was located.

        Having reviewed the circuit court’s April 4, 2018, “Order Granting Plaintiffs’ Petition for
Ascertainment and Designation of Boundary Line of Real Estate” and its April 20, 2018, “Order
Confirming Legal Descriptions,” we hereby adopt and incorporate the circuit court’s well-
reasoned findings and conclusions, which we find clearly show that the descriptions in the parties’
deeds were incorrect, necessitating the issuance of new legal descriptions for the parties’
properties. The Clerk is directed to attach copies of the April 4, 2018, and April 20, 2018, orders,
including the plat attached to the April 20, 2018, order, to this memorandum decision. We,
therefore, conclude that the circuit court properly rendered judgment in respondents’ favor
following the January 30, 2018, bench trial.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.


ISSUED: June 7, 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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