T.K.-1, and S.K., by his next friend and mother, T.K.-2 v. J.K.

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA

FILED
T.K.-1, and S.K., by his next May 23, 2024
friend and mother, T.K.-2, ASHLEY N. DEEM, DEPUTY CLERK
Plaintiffs Below, Petitioners INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-144 (Cir. Ct. of Harrison Cnty., No. CC-17-2022-C-AP-9)

J.K.,
Defendant Below, Respondent

MEMORANDUM DECISION

Petitioners T.K.-1, and S.K., by his next friend and mother, T.K.-2, appeal the
March 9, 2023, final order of the Circuit Court of Harrison County.1 Respondent J.K. filed
a summary response in support of the circuit court’s order.2 Petitioners filed a reply. The
issues on appeal are whether the circuit court erred in finding that petitioners’ claim against
J.K. for conversion was fully resolved and whether the circuit court erred in failing to
recognize J.K.’s alleged trespass of chattels and breach of fiduciary duty to T.K.-1 and S.K.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds no substantial question of law and no prejudicial error. For

1
Consistent with our practice in cases with sensitive facts, we use initials where
necessary to protect the identities of those involved in the case. See W. Va. R. App. Pro
40(e)(1); State v. Edward Charles L., 183 W. Va. 641, 645 n.1, 398 S.E.2d 123, 127 n.1
(1990). Additionally, because the child and mother have the same initials, we will refer to
them as T.K.-1 and T.K.-2, respectively, throughout this memorandum decision.

Further, as noted by the circuit court in its March 9, 2023, final order, during the
pendency of this case, T.K.-1 reached the age of majority and was no longer required to
proceed through her next friend, T.K.-2. However, the circuit court found that T.K.-1
advised that she wished to continue with this legal action, as she was “involved with the
decision to bring such lawsuit and reaching the age of majority did not change her
position.”
2
T.K.-1 and S.K., by his next friend and mother T.K.-2, are represented by Richard
R. Marsh, Esq., and J.K. is represented by John R. Funkhouser, Esq.

1
these reasons, a memorandum decision affirming the circuit court’s March 9, 2023, final
order is appropriate under Rule 21 of the Rules of Appellate Procedure.

T.K.-1 and S.K., are two of the three children of P.K., who died intestate on
November 13, 2021.3 At the time of his death, P.K. was unmarried and divorced from T.K.-
2. In the days immediately following P.K.’s death, his mother, J.K., a resident of Maryland,
traveled to P.K.’s home and removed numerous items from the home.4 J.K., along with
P.K.’s adult brother, reportedly removed such items at the request of P.K., in an attempt to
hold the items for T.K.-1 and S.K., until they were older, as P.K. allegedly believed that
the items would be taken by his ex-wife, T.K.-2.

On April 11, 2022, T.K.-1 and S.K. filed the underlying civil action in the Magistrate
Court of Harrison County. In their complaint, T.K.-1 and S.K. alleged that J.K. had
converted the assets of P.K. and sought associated damages. 5 J.K. answered the complaint
and denied petitioners’ allegations. A bench trial was held in magistrate court on September
22, 2022. At the conclusion of the bench trial, J.K. “returned the personal property to”
petitioners, in the presence of counsel.

On September 23, 2022, the magistrate court entered a “Civil Judgment” order
finding “Judgment Defendant – No Monies Awarded & to Return all Questioned Property
to Owners.” Thereafter, on October 12, 2022, petitioners filed their notice of appeal
requesting that this matter be heard in the Circuit Court of Harrison County de novo. The
matter was originally set in circuit court for a bench trial on November 20, 2022, which
was continued to January 24, 2023. During the bench trial, T.K.-1, S.K., and T.K.-2
testified as witnesses, but did not introduce any exhibits or other evidence. In response to
the testimony of petitioners, J.K. testified that at the conclusion of the September 22, 2022,
magistrate court bench trial, she returned all items of personal property that she collected
following her son’s death.6

On March 9, 2023, the circuit court entered its order affirming the magistrate court’s
ruling, finding that all the items at issue were returned and that “there was no evidence

3
P.K.’s third child, D.K., is an adult and is not involved in this action.
4
T.K.-1 and S.K. contend that J.K. removed P.K’s wallet, clothing, safes, handguns,
rifles, family crest, money, jewelry, collectibles, cell phone, and a business laptop.
5
Initially, petitioners raised an additional claim against J.K. for “tortious
interference with a business relationship,” but that claim was subsequently dropped by
petitioners and is not at issue in this appeal.
6
We note that no transcript from the January 24, 2023, bench trial was included in
the record before this Court.

2
presented to demonstrate that the [respondent] had the intention of depriving [P.K.’s
children] of the belongings.” Further, the court found that “[a]s it pertains to the personal
belongings of [P.K.],” that neither party “offered into evidence any type of written records
indicating what items were collected or returned.” It is from the circuit court’s March 9,
2023, final order that petitioners now appeal.

In reviewing challenges to the findings and conclusions of the circuit court made
after a bench trial, the Supreme Court of Appeals of West Virginia (“SCAWV”) has held
that “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).

On appeal, petitioners argue that the circuit court erred in finding that their claims
against J.K. for conversion were fully resolved and in failing to recognize J.K.’s trespass
of chattels and breach of fiduciary duty claims, which were not expressly raised by
petitioners in their underlying complaint.7 On all points, we disagree with petitioners and
will address their arguments together.

The SCAWV has consistently held that "[d]etermining the credibility of witnesses
and weight of evidence 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)." Lilly v. Huntington
Nat'l Bank, No. 22-553, 2023 WL 7983837, at *3 (W. Va. Nov. 17, 2023) (memorandum
decision). Further, Rule 52(a) of the West Virginia Rules of Civil Procedure provides, in
relevant 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.” As the trier of fact, the magistrate and circuit court judges below, who
independently heard testimony by all parties in support of their arguments, were in the
unique position to assess the credibility of each witness and clearly believed J.K’s
testimony and not that of petitioners. In circuit court, petitioners offered testimony that
some of the items taken by J.K. were not returned (i.e., money from P.K.’s safe) or were
returned damaged (i.e., a broken cell phone). However, the circuit court, after hearing the
arguments and attestations of both parties, found no credibility in petitioners’
unsubstantiated assertions, thus resolving any conversion claim, as well as any arguable
claim for trespass to chattels and breach of fiduciary duty. Accordingly, we find no clear

7
Petitioners’ citation to the record to support their claim for trespass of chattels and
breach of fiduciary duty, as required by Rule 10(c)(7) of the West Virginia Rules of
Appellate Procedure, is simply a cite to a proposed order petitioners submitted to the circuit
court for consideration following the bench trial. No transcript from any proceeding below
was included in the appendix record prepared by petitioners.

3
error in the circuit court’s factual determinations or abuse of discretion in its disposition of
petitioners’ claims and we affirm the circuit court’s March 9, 2023, order.

Affirmed.

ISSUED: May 23, 2024

CONCURRED IN BY:

Chief Judge Thomas E. Scarr
Judge Charles O. Lorensen
Judge Daniel W. Greear

4