                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

 John S. Lee,
 Plaintiff Below, Petitioner                                                         FILED
                                                                                   October 28, 2013
                                                                                RORY L. PERRY II, CLERK
 vs) No. 12-1488 (Jefferson County 11-C-337)                                  SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA

 Mark Towle, individually, and d/b/a “Gotham Garage,”
 Defendant Below, Respondent

                               MEMORANDUM DECISION

        Petitioner John S. Lee, appearing pro se, appeals the order of the Circuit Court of
Jefferson County, entered December 3, 2012, that dismissed his civil action for a lack of personal
jurisdiction over the defendant below, Respondent Mark Towle, individually, and d/b/a “Gotham
Garage.” Respondent, by counsel Glen Franklin Koontz, filed a summary response.

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

        Petitioner is a web designer based in Harpers Ferry, West Virginia. Respondent is a builder
of replica vehicles based in the State of California. Petitioner sued respondent for breach of
contract. Respondent appeared specially at a December 5, 2011 hearing and moved for the action’s
dismissal asserting that the circuit court did not have personal jurisdiction over him.

        At the hearing, respondent’s counsel submitted an affidavit from respondent in support of
the motion, while petitioner testified under oath. By order entered December 20, 2011, the circuit
court conditionally denied the motion and directed that the parties conduct limited discovery on
the issue of personal jurisdiction. The court noted that it “retain[ed] the right to address this issue
after modified discovery.”

        On June 15, 2012, the circuit court denied respondent’s motion to dismiss noting, inter
alia, that respondent had not engaged in discovery and had not responded to petitioner’s discovery
requests. However, subsequently, respondent moved the circuit court to vacate its prior orders of
December 20, 2011, and June 15, 2012, and renewed his motion to dismiss. In support of his
renewed motion, respondent’s counsel attached a March 21, 2007 email from petitioner to
respondent, which indicated that petitioner initiated the contact between the parties.


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        The circuit court considered respondent’s renewed motion to dismiss at a November 20,
2012 hearing. Respondent’s counsel argued that the March 21, 2007 email raised questions
concerning the truthfulness of petitioner’s December 5, 2011 testimony. Petitioner asserted that
the email actually supported his testimony. After the parties’ arguments, the circuit noted that its
conditional denial of respondent’s motion to dismiss had been made “on the strength of
[petitioner’s] testimony,” but found that “this e-mail would cast this case and the issue of
jurisdiction in a new light.” The circuit court continued, in pertinent part, as follows:

                       . . . [I]t appears from the face of . . . this short e-mail of
               [petitioner] it is [petitioner] who reached out and targeted
               [respondent] at [respondent’s] address in California over the
               internet, and that [respondent] solicited [respondent] in an attempt
               to obtain a Batmobile kit from him and offer for trade some [web
               design] services as a partial barter or in exchange for some of the
               value of the kit.

               *       *      *

                       So, it’s a solicitation, the Court sees it as a solicitation of
               [respondent] by [petitioner] from [petitioner] in West Virginia over
               the internet to [respondent] in California, and the Court does not feel
               upon having this additional piece of evidence that this is sufficient
               to confer jurisdiction on West Virginia and it now appears that
               jurisdiction already is asserted in an ongoing case in California
               where it quite properly should be.

Accordingly, the circuit court directed respondent’s counsel to prepare an order granting
respondent’s renewed motion to dismiss. In the December 3, 2012 order, that dismissed
petitioner’s action for a lack of personal jurisdiction over respondent, the circuit court further
determined that the March 21, 2007 email “does not support [petitioner’s] assertions” and also
noted “the demonstrated falsity of [petitioner’s] testimony.” Petitioner now appeals the December
3, 2012 order.

        In Syllabus Point Four of State ex rel. Bell Atlantic-West Virginia, Inc. v. Ranson, 201
W.Va. 402, 497 S.E.2d 755 (1997), this Court held, in pertinent part, that when a defendant files a
motion to dismiss for lack of personal jurisdiction under Rule 12(b)(2) of the West Virginia Rules
of Civil Procedure, the circuit court may permit discovery to aid in its decision and that if “the
court conducts a pretrial evidentiary hearing on the motion, . . . the party asserting jurisdiction
must prove jurisdiction by a preponderance of the evidence.” In Easterling v. American Optical
Corporation, 207 W.Va. 123, 127, 529 S.E.2d 588, 592 (2000), in discussing Syllabus Point Four
of Bell Atlantic, the Court further noted that “when considering a circuit court’s findings of fact
arising from an evidentiary hearing on a motion to dismiss for lack of personal jurisdiction, this
Court’s clearly erroneous standard of review is ordinarily invoked.”


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        On appeal,1 petitioner asserts that the March 21, 2007 email from petitioner to respondent
was never authenticated. Respondent counters that petitioner never states that he did not send the
email, only that he cannot remember sending it. Respondent argues that petitioner fails to
demonstrate that the circuit court erred in dismissing the action for a lack of personal jurisdiction
over respondent. The December 5, 2011 hearing constituted an evidentiary hearing because the
circuit court took petitioner’s sworn testimony; therefore, the findings the court made in granting
respondent’s renewed motion are entitled to deference. Furthermore, because the circuit court had
the opportunity to observe petitioner’s demeanor while he was testifying, it was in the best position
to judge the truthfulness of petitioner’s testimony in light of the other evidence including the
March 21, 2007, email. See State v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9
(1995) (“An appellate court may not decide the credibility of witnesses[.]”). After careful
consideration, this Court concludes that the circuit court’s factual findings are not clearly
erroneous and that the court did not err in dismissing petitioner’s action for a lack of personal
jurisdiction over respondent.

       For the foregoing reasons, we affirm.

                                                                                          Affirmed.

ISSUED: October 28, 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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          Petitioner has moved to supplement the appendix and/or for this Court to take judicial
notice of certain matters. Respondent asserts that petitioner labors under the misimpression that if
petitioner cites a document or files it with this Court, it automatically becomes evidence admitted
before the circuit court. Respondent further asserts that petitioner seeks to have his appeal decided
on information never properly before the circuit court. Upon a review of the transcripts of the
December 5, 2011, and November 20, 2012 hearings, this Court finds that respondent’s arguments
are well-founded and hereby denies petitioner’s numerous motions to supplement.

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