Burge v. Fortney

624 S.E.2d 487, 218 W. Va. 140, 2005 W. Va. LEXIS 128
CourtWest Virginia Supreme Court
DecidedNovember 17, 2005
DocketNo. 32522
StatusPublished

This text of 624 S.E.2d 487 (Burge v. Fortney) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burge v. Fortney, 624 S.E.2d 487, 218 W. Va. 140, 2005 W. Va. LEXIS 128 (W. Va. 2005).

Opinions

DAVIS, Justice:

The appellant herein and defendant below, Kenneth Fortney [hereinafter referred to as “Mr. Fortney”], appeals from an order entered September 8, 2003, -by the Circuit Court of Marion County. By that order, the court determined that W. Va.Code § 38-8-1 (1999) (Supp.1999) did not prevent the appel-lee herein and plaintiff below, Delmus Burge [hereinafter referred to as “Mr. Burge”], from executing and suggesting upon Mr. Fortney’s individual retirement account [hereinafter referred to as “IRA”] funds held by The Equitable Life Assurance Society [hereinafter referred to as “The Equitable”] in order to satisfy the judgment he earlier had obtained against Mr. Fortney. On appeal to this Court, Mr. Fortney contends that the circuit court incorrectly allowed his IRA funds to be subjected to Mr. Burge’s writ of execution and suggestion. Upon a review of the parties’ arguments, the record designated for appellate consideration, and the pertinent authorities, we affirm the decision of the Circuit Court of Marion County.

I.

FACTUAL AND PROCEDURAL HISTORY

The facts underlying the instant proceeding originated with a construction contract that Mr. Fortney, in his business capacity as the owner of Franklin Construction Company, entered into with Timothy and Terry Undeiwood [hereinafter referred to as “Mr. and Mrs. Underwood” or “the Underwoods”] in May 2000, to remodel their home. After' contracting with the Undeiwoods, Mr. Fort-ney subcontracted the work to Mr. Burge. Having completed a portion of the work, Mr. Burge complained to Mr. Fortney that he had not been paid the approximately $7,000.00 for the materials and labor he had expended on the job. Mr. Fortney led him to believe that the reason he had not paid Mr. Burge was because the Underwoods had not yet paid him. Ultimately, Mr. Burge stopped work on the Undeiwoods’ home when he discovered that Mr. Fortney’s son, Kevin Fortney, who also worked for Franklin Construction Company, had, in fact, received payment from Mrs. Undeiwood in an amount sufficient to cover Mr. Burge’s expenses.

Thereafter, in November 2000, Mr. Burge filed a civil action against Mr. Fortney and Mr. Fortney’s son, Kevin, in the Circuit Court of Marion County alleging breach of contract, unjust enrichment/quantum meruit, and fraud. After numerous failures to comply with discovery requests, the circuit court, by order entered August 22, 2001, granted default judgment in favor of Mr. Burge, finding, in addition to numerous discovery violations, that

1. The defendants [Mr. Fortney and Kev-' in] breached a contract with the plaintiff [Mr. Burge] by failing to pay for labor and materials supplied by the plaintiff;
2. The defendants have been unjustly enriched by the plaintiff; and,
3. The defendants fraudulently induced the plaintiff into continuing to supply labor and services with no intention of paying the plaintiff and, such actions were done with deliberate intent to hinder, defraud and delay full payment and in reckless, willful, intentional and wanton disregard to the plaintiffs rights.

On the day after the circuit court entered judgment for Mr. Burge, and on the same day that the circuit court was conducting the damages portion of Mr. Burge’s civil case, Mr. Fortney filed a petition for Chapter 7 bankruptcy.1 By order entered October 7, 2001, the bankruptcy court lifted the automatic stay of actions against Mr. Fortney to permit the circuit court to continue its determination of Mr. Burge’s damages caused by Mr. Fortney’s misconduct. By order entered October 12, 2001, the circuit court entered judgment in favor of Mr. Burge and against Kevin, in light of Mr. Fortney’s pending [143]*143bankruptcy action, awarding damages to Mr. Burge in the total amount of $31,855.51.2 By agreed order of February 6, 2002, said judgment was additionally entered jointly and severally against Mr. Fortney.

Thereafter, Mr. Burge unsuccessfully tried to satisfy his judgment against Mr. Fortney, but discovered he had no available assets. At approximately the same time, Mr. Fort-ney attempted to discharge his judgment debt to Mr. Burge in his aforementioned bankruptcy proceeding. In response to this attempted discharge, Mr. Burge filed an adversary proceeding objecting to Mr. Fort-ney’s attempted discharge of this obligation. By orders entered October 28 and 29, 2002, the bankruptcy court determined that “the debt due and owing to Delmus V. Burge by the Debtor/Defendant [Mr. Fortney] is deemed NONDISCHARGEABLE.” (Emphasis in original).

Ultimately, Mi'. Burge learned that Mr. Fortney had an IRA account3 with The Equitable, containing approximately $64,000.00, and attempted to satisfy his judgment with those funds through a Writ of Suggestion4 and Execution filed on January 6, 2003. Mr. Fortney objected, claiming that such monies were deemed exempt by W. Va.Code § 38-8-1 (1999) (Supp.1999), which provides, in pertinent part, that

[a]ny husband, wife, parent or other head of a household residing in this state, or the infant children of deceased parents, may set apart and hold personal property not exceeding one thousand dollars in value to be exempt from execution or other process, except as hereinafter provided.... Provided, however, That funds on deposit in an individual retirement account (IRA) including a simplified employee pension (SEP) in the name of the defendant are exempt from attachment: Provided further, That such amount shall be exempt only to the extent it is not or has not been subject to an excise or other tax on excess contributions under section 4973 [26 U.S.C. § 4973] and/or section 4979 [26 U.S.C. § 4979] of the Internal Revenue Code of 1986, or any successor provisions, regardless of whether such tax is or has been paid.

(Emphasis added). Ruling upon this matter, the circuit court, by order entered September 8, 2003, determined that Mr. Fortney’s IRA funds were not exempt from suggestion and execution and that Mr. Burge was entitled to such monies in satisfaction of his judgment against Mr. Fortney. In so ruling, the circuit court determined that

[t]he Court finds as a matter of law that 38-8-1 does not exempt the suggested [144]*144funds from execution and suggestion. The Court finds as a matter of law that the legislature chose to exempt such funds only from “attachment”. “Attachment” has as its commonly accepted usage the meaning of a judicial process of seizing and holding one’s property prior to a plaintiff obtaining judgment and, therefore, does not apply to this matter. The Court finds as a matter of law that the plaintiff is not seeking to attach the defendant’s personal property but, is seeking to obtain such funds by way of postjudgment execution and suggestion. The statute is not ambiguous and, therefore, not subject to any form of interpretative construction.
ACCORDINGLY, it is the ORDER and JUDGMENT of this Court that the funds held by the suggestee, The Equitable Life Assurance Society, belonging to Kenneth Fortney, judgment debtor, are not subject to exemption pursuant to the plaintiff’s Writ of Execution and Suggestion.

(Emphasis in original). From this adverse ruling, Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
624 S.E.2d 487, 218 W. Va. 140, 2005 W. Va. LEXIS 128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burge-v-fortney-wva-2005.