United States District Court, W.D. Virginia, Charlottesville Division
Glen E. Conrad Chief United States District Judge.
George A. Mayo, Marie L. Mayo, and Premo Autobody, Inc.
brought the instant action against defendants C. Waverly
Parker, Michael Parker, the Sheriff for the City of
Charlottesville, and the United States of America. The case
was originally filed in the Circuit Court for the City of
Charlottesville, Virginia, and the United States timely
removed the matter to this court. The plaintiffs seek
declaratory relief in relation to a sale of certain property
and assert a cause of action for trespassing against cer,
tain defendants. The matter is currently before the court on
the Parkers' motions for summary judgment as to Counts I
and II, severance and remand of Count III, and to vacate the
court's order granting plaintiffs leave to amend their
complaint. The Sheriff has also moved to dismiss the
complaint against him. For the reasons stated, the motions
for summary judgment and to dismiss will be granted. All
other motions will be denied.
Autobody, Inc. ("Premo") is a Virginia Corporation
which formerly maintained its offices in Charlottesville,
Virginia. Am. Compl. ¶ 2. Currently, it is not actively
engaged in business, but its principal officer and registered
agent is George Mayo, a resident of Charlottesville.
Id. Marie Mayo is George Mayo's spouse
(collectively, the "Mayos").
United States holds a secured claim against Premo in the
amount of approximately $119, 377.31 by virtue often Notices
of Federal Tax Lien ("NFTL") filed prior to
November 15, 2011. Id. ¶ 9. On December 15,
2015, defendants C. Waverly and Michael Parker (collectively,
the "Parkers") obtained a judgment against Premo in
the amount of $49, 301 (the "Parker Judgment"). See
Final Order, Parker v. Premo. No. 540CL15000379 (Va.
Cir. Ct. Dec. 18, 2015), Docket No. 41-2. On February 11,
2016, the Circuit Court for the City of Charlottesville
issued a writ of fieri facias in execution of the Parker
Judgment. See Writ of Fieri Facias, Docket No. 41-3.
February 17, 2016, the Sheriff of the City of
Charlottesville, James Brown ("Sheriff Brown"),
began to levy the fieri facias on the personal property of
Premo. See Sheriffs Return on Writ of Fieri Facias, Docket
No. 41-4. The Sheriff subsequently served the plaintiffs with
notice of the pending sale of the property. Notice of
Sheriffs Sale, Docket No. 41-8. Sheriff Brown sold the
property at public auctions on November 30, 2016, January 4,
2017, and January 11, 2017. See Bill of Sale, Docket No.
41-10. The Parkers purchased the property, and the Sheriff
distributed the proceeds to the Parkers in partial
satisfaction of the Parker Judgment. See id.; Aff.
of C. Waverly Parker ¶ 17, Docket No. 41-1. Id.
A piece of the property sold was a paint booth, which the
Mayos assert was a fixture, attached to real estate owned by
the Mayos and rented to Premo. Id; Am. Compl. ¶
32. Therefore, the Mayos contend that, as a fixture to their
real property, they owned the paint booth and that it was not
subject to levy.
filed the instant action in the Circuit Court for the City of
Charlottesville, Virginia, and the United States timely
removed. In Count I of their amended and original complaints,
plaintiffs seek a declaration that the United States is
entitled to the priority in payment of all proceeds from the
sale of any Premo property. Count II, labeled
"interpleader, " seeks a declaration that the
United States is entitled to any proceeds of the November
Sale and any proceeds from subsequent sales of Premo
property. Plaintiffs also seek to enjoin the Sheriff from any
distribution of such proceeds while the instant action is
pending. Count III of the original complaint included an
action for trespass against the Parkers and Sheriff Brown.
However, on February 24, 2017, the plaintiffs moved for leave
to amend their complaint to add the United States as a
defendant to Count III, and to include a request for a
declaration that the paint booth belonged to the Mayos at the
time of the levy and sale. The United States did not object
to amending the complaint. The court granted the plaintiffs
leave to amend, and the amended complaint was deemed filed on
March 2, 2017.
United States has also filed a crossclaim against the
Parkers, seeking an order of foreclosure on the federal tax
liens. Sheriff Brown also filed a crossclaim against the
Parkers, asserting that the Parkers are liable to Sheriff
Brown, pursuant to Virginia Code § 8.01-367, for all
claims asserted against him. On April 12, 2017, the court
held a hearing on various motions. The matters have been
fully briefed and are ripe for review.
Sheriff Brown's Motion to Dismiss
amended answer, Sheriff Brown asserts a "Plea in
Bar." "Pleas in bar have been abolished by the
Federal Rules of Civil Procedure. . . . Nevertheless, it is
proper to treat the defendant['s] pleadings as a motion
to dismiss for failure to state a claim." Givens v.
O'Ouinn, No. 2:O2CVOO2I4, 2006 WL 399638, at *l
(W.D. Va. Feb. 20, 2006). Virginia Code § 8.01-367
provides that an officer, when levying a fieri facias, may
require that the creditor seeking the levy provide an
indemnifying bond. This bond serves to indemnify the officer
against "all damage which he may sustain in consequence
of the seizure or sale of such property and to pay to any
claimant of such property all damage which he may sustain in
consequence of such seizure or sale." Va. Code §
8.01-367. At the hearing, plaintiffs conceded that Sheriff
Brown received such an indemnifying bond from the Parkers.
Plaintiffs then stipulated to the dismissal of Sheriff Brown,
to which no party objected. Accordingly, Sheriff Brown will
be dismissed from this action.
Parkers' Motion for Summary Judgment
judgment is appropriate when "the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law." Fed.R.Civ.P. 56(a). For a party's
evidence to raise a genuine issue of material fact, it must
be "such that a reasonable jury . could return a verdict
for the non-moving party." Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). When deciding
whether to grant a motion for summary judgment, the court
must view the record in the light most favorable to the
non-moving party and draw all reasonable inferences in his
favor. Id. at 255; see also ...