                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS


Daniel F. Mansberger,
Defendant Below, Petitioner                                                          FILED
                                                                                  April 28, 2020
vs.)   No. 19-0226 (Monongalia County 18-MAP-11)                                 EDYTHE NASH GAISER, CLERK
                                                                                 SUPREME COURT OF APPEALS
                                                                                     OF WEST VIRGINIA
City of Morgantown,
Plaintiff Below, Respondent



                               MEMORANDUM DECISION


       Petitioner Daniel F. Mansberger, self-represented litigant, appeals the January 16, 2019,
order of the Circuit Court of Monongalia County directing petitioner to pay a fine in the amount
of $300 for having three inoperative motor vehicles on his property in violation of § 302.8 of the
Morgantown Municipal Code (“municipal code”). Respondent City of Morgantown (“the City”),
by counsel Matthew T. Thorn, 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 owns property located at 2017 Carnegie Street in Morgantown, West Virginia.
On June 13, 2018, after receiving a complaint, the City’s code enforcement officer observed
several inoperative motor vehicles on petitioner’s property and issued petitioner a citation pursuant
to § 302.8 of the municipal code. Section 302.8 generally provides, in pertinent part, that “no
inoperative or unlicensed motor vehicle shall be parked, kept[,] or stored on any premises[.]”
(Emphasis in original.) Following an August 28, 2018, hearing, the Morgantown Municipal Court
(“municipal court”) found petitioner guilty of violating § 302.8 and fined him $485, plus $ 40 in
court costs and fees. Petitioner appealed the municipal court’s judgment to the Circuit Court of
Monongalia County and posted an appeal bond in the total amount of $525. On the appeal bond,
the municipal court clerk erroneously noted that the applicable section of the municipal code was


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§ 302.6 which regulates exhaust from a property’s “[p]ipes, ducts, conductors, fans[,] or
blowers[.]”

       The circuit court held a trial de novo on the June 13, 2018, citation against petitioner on
January 14, 2019. 1 At the beginning of trial, the City noted the erroneous reference to § 302.6 in
the appeal bond and made a motion to correct the record that “the citation itself was written for [§]
302.8.” Petitioner raised no objection, and the circuit court granted the City’s motion. The City
proceeded to present its case through the code enforcement officer’s testimony and photos of the
motor vehicles on petitioner’s property taken by the officer.

       Before petitioner began presenting his evidence, he made a motion to dismiss the City’s
case given the erroneous reference to § 302.6 in the appeal bond. The circuit court denied the
motion to dismiss, but inquired as to whether petitioner needed a continuance to prepare his
defense as to the citation based on § 302.8. Petitioner answered, “No, Your Honor. I’m ready to
defend myself.”

         Petitioner testified and also introduced photos of the motor vehicles on his property. After
hearing the parties’ testimony and evidence, the circuit court found that petitioner had five motor
vehicles on the property. The circuit court further found that while two of those vehicles were
operative, the other three vehicles were inoperative in violation of § 302.8. Therefore, by order
entered on January 16, 2019, the circuit court reduced petitioner’s fine from $485 to $300 ($100
per inoperative motor vehicle) and otherwise left the municipal court’s judgment “in full force and
effect.”

         Petitioner now appeals the circuit court’s January 16, 2019, order directing him to pay a
fine in the amount of $300 for having three inoperative motor vehicles on his property in violation
of § 302.8. 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.

Syl. Pt. 1, Pub. Citizen, Inc. v. First Nat’l Bank in Fairmont, 198 W. Va. 329, 480 S.E.2d 538
(1996).




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          West Virginia Code § 8-34-1(e) provides, in pertinent part, that “[i]n the case of an appeal
. . . before . . . [a] municipal court judge without a jury, the hearing on the appeal before the circuit
court shall be a trial de novo, triable to the court, without a jury.”

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       On appeal, petitioner argues that the City’s case against him should be dismissed given the
erroneous reference to § 302.6 in the appeal bond. The City counters that the circuit court properly
denied petitioner’s motion to dismiss as the June 13, 2018, citation correctly alleged a violation of
§ 302.8.

         We find that the trial transcript reflects that petitioner raised no objection when the circuit
court granted the City’s motion to correct the record that “the citation itself was written for [§]
302.8.” We further note that the June 13, 2018, citation is not in the appellate record. Rule 10(c)(7)
of the West Virginia Rules of Appellate Procedure provides: “The argument must contain
appropriate and specific citations to the record on appeal, including citations that pinpoint when
and how the issues in the assignments of error were presented to the lower tribunal. The Court may
disregard errors that are not adequately supported by specific references to the record on appeal.”
In State ex rel. Cooper v. Caperton, 196 W. Va. 208, 216, 470 S.E.2d 162, 170 (1996), we stated
that “[t]he rule in West Virginia is that parties must speak clearly in the circuit court, on pain that,
if they forget their lines, they will likely be bound forever to hold their peace.” In State v. Honaker,
193 W. Va. 51, 56 n.4, 454 S.E.2d 96, 101 n.4 (1994), we further stated that we “take as non[-
]existing all facts that do not appear in the [appellate] record and will ignore those issues where
the missing record is needed to give factual support to the claim.” Therefore, given the omission
of the citation—the charging instrument—from the appellate record, we disregard petitioner’s
argument that the circuit court erred in denying the motion to dismiss the City’s case against him
given the erroneous reference to § 302.6 in the appeal bond.

        Although not clearly articulated, to the extent that petitioner makes a procedural due
process argument, we have held that “[t]he due process of law guaranteed by the State and Federal
Constitutions, when applied to procedure in the courts of the land, requires both notice and the
right to be heard.” Syl. Pt. 3, Brittany S. v. Amos F., 232 W. Va. 692, 753 S.E.2d 745 (2012)
(quoting Syl. Pt. 2, Simpson v. Stanton, 119 W. Va. 235, 193 S.E. 64 (1937)); State ex rel. Peck v.
Goshorn, 162 W. Va. 420, 422, 249 S.E.2d 765, 766 (1978) (same). Here, the circuit court asked
petitioner if he needed a continuance to prepare a defense to the City’s case against him that he
violated § 302.8. Petitioner answered, “No, Your Honor. I’m ready to defend myself.” The trial
transcript further reflects that petitioner successfully rebutted some of the City’s evidence in that
the circuit court found that not all of the vehicles were inoperative and reduced petitioner’s fine
from $485 to $300. Therefore, based on our review of the appellate record, we find that petitioner
had notice and an opportunity to be heard. Therefore, we conclude that the circuit court did not err
in finding in the City’s favor and ordering petitioner to pay a fine in the amount of $300.

                  For the foregoing reasons, we affirm the circuit court’s January 16, 2019, order.
                                                                                         Affirmed.

ISSUED: April 28, 2020




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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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