                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS


Eccles Community Church and Trustees,
Respondents Below, Petitioners
                                                                                     FILED
vs) No. 15-0522 (Raleigh County 13-C-549-H)                                       June 6, 2016
                                                                                  RORY L. PERRY II, CLERK
                                                                                SUPREME COURT OF APPEALS
James M. Bolon,                                                                     OF WEST VIRGINIA
Petitioner Below, Respondent


                               MEMORANDUM DECISION
        Petitioners Eccles Community Church and Trustees, by counsel James G. Anderson, III,
appeals the Circuit Court of Raleigh County’s April 28, 2015, order denying its motion for a new
trial or, in the alternative, to alter or amend judgment in this adverse possession matter.
Respondent James M. Bolon, by counsel David E. Gilbert and Todd A. Kirby, filed a response in
support of the circuit court’s order. Petitioners filed a reply. On appeal, petitioners argue that the
circuit court erred in denying its motion because respondent failed to satisfy the elements of
adverse possession of the disputed property.1

        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 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.

        In July of 2013, respondent filed a complaint in the circuit court that sought legal title to
disputed real property under the theory of adverse possession and alleged trespass on the part of
petitioners. The real property, which was referred to as “Lot 19,” was located adjacent to a lot
previously owned by respondent. Both lots were located in the Crab Orchard Coal and Land
Company Subdivision, Section 5, in Eccles, Raleigh County, West Virginia. Respondent also
sought injunctive relief. Petitioners filed an answer in which they claimed to retain ownership of
the disputed real property. Petitioners later amended that answer to add affirmative defenses and
a counterclaim against respondent for monetary damages as a result of respondent’s use of the
disputed real property. Respondent answered and denied petitioners’ assertions in their
counterclaim.



       1
        While petitioners list six assignments of error at the outset of their brief to this Court,
each of those assignments of error relate to whether respondent satisfied the elements of an
adverse possession claim. Further, petitioners’ “argument” section of their brief consists of one,
undivided discussion of the elements of adverse possession under the facts of this case. As such,
we will address petitioners’ grounds as one assignment of error in this memorandum decision.
                                                  1

         Following discovery, the circuit court held a bench trial in February of 2014. Respondent
and his wife testified that they owned Lot 18, which is connected to Lot 19, but that they had
continuously used a portion of Lot 19 as a driveway, car park, and for recreation “every day”
since the 1990s. Respondent claimed that a row of pine trees once separated the two properties,
but that he cut down those trees between the mid-1980s and 1993. He stated that, since he cut
down those trees, he had used and made improvements to Lot 19 by adding new gravel to and
digging ditches around the car park; planting grass seed, mowing grass, and cutting weeds;
storing vehicles; installing a light; moving fill dirt onto and generally cleaning the parking area;
building a tire shed on that property, which was later destroyed in a storm and removed; and
installing car ports on Lot 18 that opened onto Lot 19 for access. He further claimed that no one
from petitioners’ church had used that portion of Lot 19 since the 1990s. It was undisputed that
the previous owner of Lot 19, Shady Grove Baptist Church, once built a church building on part
of Lot 19, but that building was destroyed in a storm in the 1990s prior to Eccles Community
Church obtaining ownership to the property.

         An engineer who had previously worked with the Raleigh County Commission also
testified at the trial. The engineer explained that he investigated a complaint in 2001 regarding
debris from the destroyed church building on Lot 19. According to the engineer, the Shady
Grove Baptist Church submitted a letter to his office in response to the complaint in which it
admitted that respondent regularly drove his vehicles through Lot 19. The letter specifically
stated that respondent “did not get permission” to access Lot 19. The engineer also noted that, in
2002, Eccles Community Church removed the debris from the destroyed church building on Lot
19 following its acquisition of the property. Evidence further established that at least one “No
Trespassing” sign was posted on Lot 19 from 2002 to the present. Several of respondent’s
neighbors and friends also testified that he regularly used Lot 19 as described.

        Petitioners presented the testimony of several church members and trustees. One church
member testified that he shoveled snow on a portion of Lot 19 in 2013 and 2014, and several of
petitioners’ witnesses testified that respondent said he would remove his possessions from
“church property” in 2013, if his possessions were determined to be on that property. At the
conclusion of trial, the circuit court requested proposed findings of fact and conclusions of law
from the parties.

        By order entered on October 22, 2014, the circuit court found that respondent and his
family and friends used a portion of Lot 19 for parking, ingress/egress to Lot 18, and recreation
“since at least as early as 1999.” The circuit court found that respondent used and improved a
portion of Lot 19 as described by him and his neighbors and friends. Based on the evidence
presented, the circuit court concluded that respondent satisfied the legal elements for adverse
possession as to a portion of Lot 19 between his home and a paved section of driveway on Lot 19
closer to petitioners’ church. However, the circuit court ruled that respondent had failed to satisfy
the elements of adverse possession as to the entire area of Lot 19. Therefore, petitioners were
ordered to prepare a deed for that portion of Lot 19 awarded to respondent, which was further
described in the circuit court’s order. By that deed, title was to transfer from petitioners to
respondent within ninety days of the circuit court’s order. As to respondent, the circuit court
ordered that he remove any and all possessions from the remaining portions of Lot 19 not
awarded to him within thirty days of the circuit court’s order.

                                                 2

         In November of 2014, petitioners filed a motion for a new trial or, in the alternative, to
alter or amend judgment. In that motion, petitioners argued that respondent failed to clearly
prove four of the required elements of adverse possession for any portion of Lot 19. Petitioners
claimed that the evidence at trial failed to support the elements of (1) exclusive, (2) actual, (3)
adverse/hostile use of the property for (4) ten years prior to the filing of his complaint in July of
2013. In his response to petitioners’ motion, respondent argued that petitioners sought merely to
relitigate the issues previously decided at trial and that petitioners’ claims were not supported by
the record.

        In April of 2015, the circuit court entered its final order denying petitioners’ post-trial
motion for a new trial or, in the alternative, to alter or amend judgment. The circuit court noted
that petitioners failed to identify which rule of the West Virginia Rules of Civil Procedure
petitioners relied upon for their motion, but, given the circumstances, the circuit court analyzed
the motion under Rule 59.2 The circuit court found that petitioners only presented an alternate
fact pattern in their motion that, while supported by the evidence presented at trial, ignored
substantial evidence that supported the verdict. The circuit court concluded that petitioners’
argument “does not meet the requirements of the second part of the standard for granting relief
under Rule 59.” The circuit court stated its belief that its factual determinations were “accurate”
based on the evidence. This appeal followed.

         The issue in this case is whether sufficient evidence exists to support a claim of adverse
of possession. We have explained that “[t]he burden is upon the party who claims title by
adverse possession to prove by clear and convincing evidence all elements essential to such
title.” Syl. Pt. 2, Brown v. Gobble, 196 W.Va. 559, 474 S.E.2d 489 (1996). In reviewing a circuit
court’s order regarding an adverse possession case, we have explained

       that the standard of review for judging a sufficiency of evidence claim is not
       appellant friendly. Following a bench trial, the circuit court's findings, based on
       oral or documentary evidence, shall not be overturned unless clearly erroneous,
       and due regard shall be given to the opportunity of the circuit judge to evaluate
       the credibility of the witnesses. W. Va. R. Civ. P. 52(a). Under this standard, if
       the circuit court’s account of the evidence is plausible in light of the record
       viewed in its entirety, we may not reverse it, even though convinced that had we
       been sitting as the trier of fact, we would have weighed the evidence differently.

       2
           Rule 59(a) of the West Virginia Rules of Civil Procedure provides as follows:

               A new trial may be granted to all or any of the parties and on all or part of
       the issues (1) in an action in which there has been a trial by jury, for any of the
       reasons for which new trials have heretofore been granted in actions at law; and
       (2) in an action tried without a jury, for any of the reasons for which rehearings
       have heretofore been granted in suits in equity. On a motion for a new trial in an
       action tried without a jury, the court may open the judgment if one has been
       entered, take additional testimony, amend findings of fact and conclusions of law
       or make new findings and conclusions, and direct the entry of a new judgment.
                                                  3
        We will disturb only those factual findings that strike us wrong with the “force of
        a five-week-old, unrefrigerated dead fish.” United States v. Markling, 7 F.3d
        1309, 1319 (7th Cir.1993), cert. denied, [514] U.S. [1010], 115 S.Ct. 1327, 131
        L.Ed.2d 206 (1995).

Brown, 196 W.Va. at 563, 474 S.E.2d at 493. That said, we have also held that

                 [t]he deference accorded to a circuit court sitting as factfinder may
        evaporate if upon review of its findings the appellate court determines that: (1) a
        relevant factor that should have been given significant weight is not considered;
        (2) all proper factors, and no improper factors, are considered, but the circuit court
        in weighing those factors commits an error of judgment; or (3) the circuit court
        failed to exercise any discretion at all in issuing its decision.

Id. at 559, 474 S.E.2d at 489, syl. pt. 1.

        On appeal, petitioners argue that the circuit court erred in finding that respondent
satisfied the elements of adverse possession as to any portion of Lot 19. The elements of an
adverse possession claim are clear in this State’s jurisprudence:

                One who seeks to assert title to a tract of land under the doctrine of
        adverse possession must prove each of the following elements for the requisite
        statutory period: (1) That he has held the tract adversely or hostilely; (2) That the
        possession has been actual; (3) That it has been open and notorious (sometimes
        stated in the cases as visible and notorious); (4) That possession has been
        exclusive; (5) that possession has been continuous; (6) That possession has been
        under claim of title or color of title.

Syl. Pt. 3, Somon v. Murphy Fabrication & Erection Co., 160 W.Va. 84, 232 S.E.2d 524 (1977).
This Court also has held that “[a]ctual, open, notorious, exclusive and continuous adverse
possession of land for more than ten years, confers good legal title, enabling the owner to
maintain an action for unlawful entry and detainer against one who enters unlawfully.” Syl. Pt. 2,
Harman v. Alt, 69 W.Va. 287, 71 S.E. 709 (1911).

        In support of their claim, petitioners argue that respondent failed to prove by clear and
convincing evidence that he had actual, adverse/hostile, and exclusive possession of any portion
of Lot 19 for the requisite period of ten years prior to the filing of the underlying complaint in
July of 2013. However, notwithstanding these arguments, petitioners admit that respondent used
the property for “moving personal property on and off of said property, children playing on the
same, and parking in the parking area of said Church’s property Lot 19 [sic], as well as staking a
dog on said property, children riding wagons, and four-wheelers utilizing said property.” We
disagree with petitioners’ contention that respondent’s use of the property was intermittent and
did not demonstrate actual possession. Respondent and others testified that he used the property
not only as petitioners admit, but that he drove his vehicles regularly through the portion of Lot
19 that he was ultimately awarded. Based on the testimony of the engineer and several of
petitioners’ members, respondent used the property openly and adversely.

                                                  4

         As to the requisite time period and the exclusivity of respondent’s use, respondent
testified that he had used the property “every day” since the 1990s and that no one from
petitioners’ church had used the portion of the property at issue since that time. While petitioners
note that other witnesses contested respondent’s testimony, the trier of fact is tasked with
determining the credibility of witnesses and rendering findings of fact. “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).

        Following a thorough review of the parties’ arguments and the record on appeal, it is
clear that respondent presented sufficient evidence upon which to support an award of adverse
possession as to a portion of Lot 19. As the circuit court’s findings were plausible in light of the
record viewed in its entirety, we find no merit to petitioners’ assignment of error.

       For the foregoing reasons, the circuit court’s order is hereby affirmed.

                                                                                         Affirmed.

ISSUED: June 6, 2016

CONCURRED IN BY:

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




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