                                 STATE OF WEST VIRGINIA
                               SUPREME COURT OF APPEALS



E.K.,
Petitioner Below, Petitioner                                                       FILED
                                                                                 April 6, 2020
vs.)    No. 19-0134 (Kanawha County 18-SAP-46)                                 EDYTHE NASH GAISER, CLERK
                                                                               SUPREME COURT OF APPEALS
                                                                                   OF WEST VIRGINIA
R.L.,
Respondent Below, Respondent



                                  MEMORANDUM DECISION



         Petitioner E.K., 1 self-represented litigant, appeals the January 9, 2019, order of the
Circuit Court of Kanawha County denying his petition for a personal safety order (“PSO”)
against Respondent R.L. 2 Respondent, self-represented litigant, filed a response. Petitioner filed
a reply.

        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.

       Petitioner and respondent are two men who live in the same neighborhood in Charleston,
West Virginia. In January 2018, petitioner converted his residence into a duplex, used the
residence’s second entrance, and began to park on the same street as respondent parked his
vehicles. These actions led to a dispute between the parties.


        1
        Because this appeal involves the issuance of a personal safety order, the parties’ names
are confidential pursuant to West Virginia Code §§ 53-8-2(a) and (b)(1).
        2
            As discussed below, West Virginia Code §§ 53-8-1 through 17 govern the issuance of
PSOs.


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        While a public road, the street at issue was underdeveloped, and, in May 2018, the City
of Charleston approved petitioner’s request to extend the street to his residence by laying down
gravel consistent with “[c]ity [s]tandards [and] the subdivision regulations.” Prior to making the
approved improvements, petitioner alleges that respondent used the street as a parking lot for
respondent’s vehicles. Petitioner alleges that respondent’s vehicles block the dead-end street and
prevent him from reaching his residence. Respondent counters that petitioner speeds on the
street.

        On November 17, 2018, petitioner filed a petition in the Magistrate Court of Kanawha
County requesting a PSO against respondent. In the petition, petitioner alleged that respondent
showed petitioner his middle finger, and told petitioner that he “better watch [his] back” and
threatened that he was “going to whip [petitioner’s] ass.” Based on the allegations set forth in the
petition, the magistrate court granted petitioner a temporary PSO and set the final hearing for
November 26, 2018. By order entered on November 26, 2018, the magistrate court continued the
final hearing to December 7, 2018, finding that respondent had not been served with the petition
and the temporary PSO. The parties appeared for the December 7, 2018, final hearing. Following
that hearing, the magistrate terminated the temporary PSO and denied the petition for a PSO. In
its December 7, 2018, order, the magistrate found that there were “no credible threats” by
respondent to do bodily injury to petitioner and that the parties were engaged in “a property
dispute.”

        Petitioner appealed the denial of a PSO against respondent to the Circuit Court of
Kanawha County, which held a bench trial on January 8, 2019. 3 At trial, petitioner argued that
the issue was not the parties’ dispute over the use of the street on which they both live. Petitioner
reiterated his position that respondent threatened to do him bodily injury. Respondent denied
threatening petitioner. After hearing the parties’ testimony, the circuit court stated that it
understood why the magistrate court called the parties’ conflict “a property dispute.” By order
entered on January 9, 2019, the circuit court denied the PSO, finding that the parties’ testimony
was insufficient to grant the petition as it was “one party’s word against the other’s.”

        Petitioner now appeals the circuit court’s January 9, 2019, order. We apply the standard
for reviewing an order 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.


       3
       West Virginia Code § 53-8-9 provides that appeals from a magistrate court’s order
denying a PSO are heard de novo by the circuit court.


                                                 2
Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538
(1996). West Virginia Code § 53-8-7(a)(2) provides, in pertinent part, that a court “[m]ay issue a
final [PSO] to protect the petitioner if the court finds by a preponderance of the evidence that:
(A)(i) The respondent has committed an act specified in subsection (a), section four of this article
[West Virginia Code § 53-8-4(a)] against the petitioner[.]”

        On appeal, petitioner argues that he should be granted a PSO against respondent based on
West Virginia Code § 53-8-4(a)(3), which provides that a party may file a petition for a PSO if
there are “repeated credible threats of bodily injury when the person making the threats knows or
has reason to know that the threats cause another person to reasonably fear for his or her safety.”
Respondent counters that the circuit court properly denied petitioner’s petition for a PSO. We
agree with respondent.

        “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 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,
based on our review of the record, including the January 8, 2019, trial transcript, we find no
cause to disturb the circuit court’s finding that the parties’ testimony was insufficient to grant
petitioner a PSO. Therefore, we conclude that the circuit court did not err in denying the petition
for a PSO.

        For the foregoing reasons, we affirm the circuit court’s January 9, 2019, order denying
the petition for a PSO against respondent.

                                                                                           Affirmed.


ISSUED: April 6, 2020

CONCURRED IN BY:

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




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