Mallard Trace Condominiums v. Lisa A. Bryant

• Court: West Virginia Supreme Court
• Decided: April 12, 2013
• Docket: 12-0041
• Status: Published

Opinion

STATE OF WEST VIRGINIA SUPREME COURT OF APPEALS

Mallard Trace Condominiums, LLC, FILED Plaintiff Below. Petitioner April 12, 2013 RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS vs) No. 12-0041 (Logan County 10-C-341) OF WEST VIRGINIA

Lisa A. Bryant, Respondent Below, Respondent

MEMORANDUM DECISION Petitioner Mallard Trace Condominiums, LLC appeals the “Order Granting Motion to Quash Writ of Execution” entered by the Circuit Court of Logan County on June 28, 2011. Petitioner is represented by Robert B. Kuenzel. Respondent Lisa A. Bryant, who is now pro se, has failed to make any appearance on appeal.1

This 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 petitioner’s brief, 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 obtained a default judgment against respondent in Cook County, Illinois. Thereafter, petitioner recorded the foreign judgment and filed a suggestion and writ of execution in Logan County, West Virginia. Respondent filed in the Circuit Court of Logan County a motion to quash the writ of execution. By order entered on June 28, 2011, the circuit court concluded that the Illinois court had lacked both personal and subject matter jurisdiction and, therefore, the circuit court quashed the writ of execution.

In reviewing challenges to the findings and conclusions of a circuit court, we apply a three-pronged standard of review. The final order and the ultimate disposition are reviewed under an abuse of discretion standard, the underlying factual findings are reviewed under a clearly erroneous standard, and questions of law are subject to de novo review. Syl. Pt. 2, Walker

1 Rule 10(d) of the Rules of Appellate Procedure provides that if a respondent’s brief fails to respond to an assignment of error, this Court will assume that the respondent agrees with the petitioner’s view of the issue. Respondent has failed to file any responsive brief with this Court. However, as set forth herein, petitioner’s brief and our review of the record have failed to convince us that reversal is appropriate. Accordingly, we decline to rule in petitioner’s favor simply because respondent failed to file a brief. Cf. Syl. Pt. 8, State v. Julius, 185 W.Va. 422, 408 S.E.2d 1 (1991) (recognizing that the Court is not obligated to accept the State’s confession of error in a criminal case; instead, the Court will conduct a proper analysis). 1 v. W.Va. Ethics Comm’n, 201 W.Va. 108, 492 S.E.2d 167 (1997); Syl. Pt. 1, Evans Geophysical, Inc. v. Ramsey Associated Petroleum, Inc., 217 W.Va. 45, 614 S.E.2d 692 (2005).

In its first assignment of error, petitioner argues that the circuit court should have granted full faith and credit to the Illinois default judgment. However, after a careful review of the petitioner’s brief and the record on appeal, we conclude that the motion to quash was properly granted. The underlying matter was a contract wherein respondent agreed to purchase an apartment building situate in Logan County, West Virginia. The closing was to take place in West Virginia, and respondent is a West Virginia resident. We agree with the circuit court’s conclusion that the State of Illinois had insufficient contacts both with the respondent and the contract such that the Illinois court had neither personal nor subject matter jurisdiction. We adopt and incorporate by reference the circuit court’s thorough analysis, findings of fact, and conclusions of law set forth in the June 28, 2011, order. The Clerk is directed to attach a copy of the circuit court’s order to this memorandum decision.

In its second assignment of error, petitioner argues that the circuit court erred by not requiring respondent to post a bond when respondent filed a motion for temporary restraining order. Inasmuch as we have already concluded that the writ of execution was properly quashed, the issue of whether a bond should have been posted is moot.

For the foregoing reasons, we affirm.

Affirmed.

ISSUED: April 12, 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