                            STATE OF WEST VIRGINIA

                          SUPREME COURT OF APPEALS

                                                                                  FILED
                                                                              January 29, 2016
Frank Larson,                                                                  RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
Plaintiff Below, Petitioner                                                      OF WEST VIRGINIA


vs)    No. 15-0256 (Wirt County 13-C-AP-1)

Jeff Butler,

Defendant Below, Respondent




                              MEMORANDUM DECISION
       Petitioner Frank Larson, pro se, appeals the order of the Circuit Court of Wirt County,
entered March 3, 2015, entering a judgment in favor of Respondent Jeff Butler in an action in
which petitioner alleged that respondent failed to repair petitioner’s house pursuant to their
contract. Respondent, by counsel Leslie L. Maze, filed a response, and 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 owns a residence in Creston, West Virginia. On March 10, 2012, petitioner
entered into a contract with respondent, a contractor, to perform “foundation repair” to his house.
The contract provided that petitioner would pay respondent $4,000 in exchange for repairs listed in
respondent’s “estimate dated March 6, 2012.” According to the estimate, respondent proposed that
he would (1) repair the center support beam with new pressure-treated wood; (2) add four new
support tiers with eight-inch concrete blocks eight feet apart (approximately); (3) replace wood
supports with concrete block tiers; (4) place the tiers on either four-inch thick pre-formed pad or
six-inch poured concrete pad (depending on space); (5) relevel the center support beam; (6) relevel
and re-support the porch; and (7) replace the outside band board on the side porch. Petitioner
interpreted the parties’ agreement as requiring respondent to relevel petitioner’s entire house.
Respondent interpreted the agreement as requiring him only to make the specific repairs listed on
the estimate.

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         Petitioner sued respondent seeking the return of the $4,000 he paid for the repairs and
consequential damages. 1 Following a June 11, 2013, bench trial, 2 the circuit court entered
judgment in respondent’s favor. The circuit court noted that while neither petitioner nor
respondent testified, the court took testimony from six persons with knowledge of the facts.3 One
of those persons was Michael E. Johnson, a structural engineer, who advised petitioner when
petitioner was accepting bids and then inspected petitioner’s house after respondent performed his
repairs. With regard to Mr. Johnson’s testimony, the circuit court found that it was significant that
Mr. Johnson “did not specifically criticize the work done by [respondent].” The court found that
while Mr. Johnson raised questions about the quality and extent of respondent’s repairs, “Mr.
Johnson did not testify that [respondent] was negligent or performed his work in an
unworkmanlike manner” and that “Mr. Johnson, after looking at [respondent’s] bid, could not
testify that [respondent] did not perform the terms of his contract.” Accordingly, the circuit court
concluded, as follows:

               [Petitioner] has clearly failed to meet his burden of proof by a
       preponderance of the evidence. [Respondent] completed his contract. It is again
       noted [that] the contract was limited in scope and was never contemplated to
       completely solve the foundation problems related to [petitioner’s] residence.
       [Petitioner] well knew that [respondent’s] work would not result in curing the out
       of level condition of his premises. Obviously, full correction of the problem would
       have required more extensive and expensive work which [petitioner] was unwilling
       or unable to expend at that particular time. [Respondent’s] work did have some
       benefit to [petitioner] in that the main center support beam for his residence was
       repaired, reinforced, and [releveled].

       Petitioner appeals the circuit court’s March 3, 2015, judgment order. We apply the
standard for reviewing a judgment entered following a bench trial:



       1
         Petitioner originated his suit in the magistrate court, which entered judgment in
respondent’s favor following a bench trial. Once petitioner appealed the magistrate court’s
judgment order, he was entitled to a trial de novo in the circuit court. See W.Va. Code §
50-5-12(b); W.V.R.C.P. Mag. Cts. 18(d). Accordingly, “the case could only be tried . . . upon its
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 reject petitioner’s contention that the notes the
magistrate court took of the testimony adduced in that court would be relevant evidence in the trial
de novo.
       2
           Both parties appeared for the June 11, 2013, trial pro se.
       3
        All six witnesses testified during petitioner’s case-in-chief. Respondent cross-examined
the witnesses and did not put on his own case.

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               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, Public Citizen, Inc. v. First National Bank in Fairmont, 198 W.Va. 329, 331, 480 S.E.2d
538, 540 (1996).

        On appeal, petitioner contends that Mr. Johnson and various other witnesses provided false
testimony. Respondent counters that the testimony clearly showed that he performed the repairs
required by the parties’ agreement. “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 of the West Virginia Rules of
Civil Procedure further 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.” W.V.R.C.P. 52(a) (emphasis added). Petitioner may disagree with
various witnesses’ testimony, but that does not mean that those witnesses perjured themselves.4
The circuit court heard the testimony and was able to observe each witness’s demeanor. Nothing in
the record on appeal5 indicates that the circuit court’s findings were clearly erroneous. Therefore,
we conclude that the circuit court did not abuse its discretion in entering judgment in respondent’s
favor.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.




       4
         Petitioner states that he is willing to take a polygraph test and argues that various
witnesses who testified at trial should have taken such tests. Respondent counters that results of
polygraph tests are not admissible. See Syl. Pt. 2, State v. Frazier, 162 W.Va. 602, 252 S.E.2d 39,
40 (1979) (criminal matters); Heydinger v. Adkins, 178 W.Va. 463, 468 n. 10, 360 S.E.2d 240, 245
n. 10 (1987) (civil matters). We agree with respondent and find that petitioner’s argument is
frivolous.
       5
       The record includes the transcript of the June 11, 2013, bench trial, which we have
reviewed.

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ISSUED: January 29, 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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