1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Majed Abdullah Maliki

, Defendant Below, Petitioner

v s

. ) No. 1 9

- 0 118 ( Wood County 1 8

- C

- AP

- 14 )

City of Parkersburg

, Plaintiff Below, Respondent



### MEMORANDUM DECISION

Petitioner Majed Abdullah Maliki

, self

- represented litigant

, appeal s the February 4 , 201 9

, order of the Circuit Court of Wood County entering judgment in favor of Respondent City of Parkersburg (“the City ” ) in the amount of $2,200, plus costs and interest, after petitioner failed to pay the monthly fee for his real estate registered on the vacant property registry pursuant to article 1765 of the City’s Code of Ordin ances. The City

, by counsel Robert K. Tebay, III

, 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 significan tly 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.

On May 1, 2016, petitioner bought property located at 1231 20 th Street in Parkersburg, West Virginia. At that time, it is undisputed that the seller informed petitioner that the property was registered on the vacant property registry pursuant to article 1765 of the City’s Code of

Ordinances.

Section 1765.02(a)(6) defines “vacant,” in pertinent part, as follows:

A building or structure s hall be deemed vacant and subject to the registration and possible penalty provisions provided herein if the exterior maintenance and major systems of the building and the surrounding real property thereof, as defined in this 

### FILED
March 13, 2020

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2

section, are in violation of t he building codes or health and sanitation codes and if there is no proof of continual utility service evidencing actual use of electric, gas (i.e., applicable heating sources), water service, etc. Continued is meant to be without more than one (1) thirty (30) day interruption in any given three

- hundred sixty (360) day period. In order for such continual utility service to be considered as being actually in use as described in this section, it must be more than merely registered to the owner for purposes of billing and must be utilized, at a minimum, in order to keep the property and the major systems of the building in compliance with building and safety codes. The person or entity asserting that there has been continued utility service has the burden to pr oduce actual bills evidencing utility service for the relevant period. [ 1 ]

(Footnote added.). Section 1765.05(b)(1) and (2) further provide, in pertinent part: “ (1) [n] o fee [is assessed] for properties that are vacant for less than one (1) year; [and] (2) [o] ne

- hundred dollars ($100.00) per month [is assessed] for properties that are vacant for one (1) year or more. ”

On September 9, 2018, the City filed a civil action against petitioner in the Magistrate Court of Wood County for the purpose of collecting unpaid vacant property fees pursuant to § 1765.05(b)(2) for the period of September 2016 through July 2018. Following a bench trial, by order entered on December 20, 2018, the magistrate court entered judgment in the City’s favor in

the amount of $2,203.50, plus costs and interest at 4.5% per year . On that same date, petitioner appealed the judgment to the Circuit Court of Wood County.

The circuit court held a trial de novo on January 25, 2019. At trial, t he City’s accounts receivable supervisor testified that water had not been used at the property since 2008 and offered the billing statement for the vacant property fee for September 2016 through July 2018. 2 Petitioner did not object to the billing statement’s admission into evidence. Next, the City’s code director

testified that he had a time

- stamped photo of petitioner’s property from 2014 showing, among other defects, “the soffit falling down off the house .” When the City offered the 2014 photo into evidence, petitioner did not object. The City’s code director further testified that the most recent phot o he had of petitioner’s property was taken on January 15, 2019, ten days before the trial

before the circ uit court . The code director stated that the January 15, 2019, photo showed that “the fascia has totally collapsed on that far side [of the house],” that “it’s not been painted,” and that “there’s no power at the residence[.]” Petitioner did not object to the January 15, 2019, photo’s

admission into evidence.

During petitioner’s te stimony, he stated that he lived at t he property and denied the City’s

1 Article 1765 of the City’s Code of Ordinances and the vacant property registry are

authorized by West Virginia Code § 8

- 12

- 16.

2 The City notes that the vacant property fee was not assess ed for the period from May 2017

to October 2017

, wh ile the City installed a new HVAC unit on petitioner’s property as a part of an assistance program.3

assertion that he resided in nearby Vienna, West Virginia. The circuit court ruled that whether petitioner lives at the property was not relevant given § 1765.02(a)(6)’s definition for “vacant

. ” Petitioner admitted that the water, electricity, and gas to the house were turned off at time of trial and that “the main problem . . . is the deficiencies [cited by t he City,] . . . [w]hich I’m not disputing.” Petitioner specifically stated that the deficiencies exist, “and I’m not objecting that they [exist]

— or saying that [the City is] lying.” After trial, by order entered on February 4, 2019, the

circuit court award ed judgment in the City’s favor in the amount of $2,200, plus costs and interest, due to petitioner’s failure to pay the monthly vacant property fee for September 2016 through July

2018. 3

Petitioner now appeals the circuit court’s February 4, 2019, orde r. We apply the standard for reviewing a judgment 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 o rder 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. C itizen, Inc. v. First Nat’ l Bank in Fairmont , 198 W. Va. 329, 480 S.E.2d 538 (1996).

On appeal, petitioner argues that the City failed to comply with § 17 65.05(b)(1) , which provides an exemption for properties vacant for less than one year. We find that petitioner’s argument is belied by the rec ord. The testimony and evidence at the trial before the circuit court showed that the water has been off at the property since 2008 and that the exterior deficiencies cited by the City were present as early as 201 4. 4 Given that the City sought unpaid vacant property fees for September 2016 through July 2018, w e conclude that § 1 7 65.05(b)(1) does not apply to

this case.

The remainder of petitioner’s argument s are difficult to decipher. However, petitioner generall y argues that the circuit court erred in awarding judgment to the City. The City counters that the circuit court properly awarded it judgment in the amount of $2,200, plus costs and interest, due to petitioner’s failure to pay the monthly vacant property f ee for the relevant period. We agree with the City. Based on our review of the record, we find that the testimony of petitioner, the City’s

accoun ts receivable supervisor, and the City’ s code director, as well as the exhibits admitted at trial, all establi shed that the City was entitled to judgment. Therefore, we conclude that the circuit

3 The amount awarded to the City by the circuit court is $3.50 less than the amount awarded by the magistrate court. The City does not raise this discrepancy as a cross

- assignment

of error.

4 As noted above, it is undisputed that when petitioner purchased the property in May 2016, the seller informed him that the property was registered on the vacant property registry.4

court did not err in awarding judgment to the City in the amount of $2,200, plus costs and interest.

For the foregoing reasons, we affirm the circuit court’s February 4 , 201 9 , order awarding judgment in the City’s favor

.

Affirmed

.

ISSUED: March 13, 2020

CONCURRED IN BY:

Chief Justice Tim Armstead Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison