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Premo Autobody, Inc. v. Parker

United States District Court, W.D. Virginia, Charlottesville Division

April 28, 2017

PREMO AUTOBODY, INC., et al., Plaintiffs,
v.
C. WAVERLY PARKER, et al., Defendants.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         Plaintiffs 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.

         Background

         Premo 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").

         The 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.

         On 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.

         Plaintiffs 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.

         The 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.

         Discussion

         I. Sheriff Brown's Motion to Dismiss

         In his 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.

         II. Parkers' Motion for Summary Judgment

         Summary 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 ...


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