IN THE SUPREME COURT OF APPEAL OF WEST VIRGINIA No 16-0553
~~I I KOURTSECUJUTYPARTNERSLLC I
dba Select Security Defendant Below Petitioner
v
JUDYs LOCKSMITHS INC and JUDITH J RANSOM dba Judy Alarm Masters Plaintiffs Below Respondents
Appeal from the Circuit Court of Kanawha County West Virginia Civil Action No 09-C-1619
PETITIONERS BRIEF
Counsel for Petitioner
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284)
PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street
Wheeling WV 26003 P (304) 232-6810 F (304) 232-4918
E cjkaiserpgkacom amp jefflcaiserpgkacom
w
P022S5951
TABLE OF CONTENTS
TABLE OF AUTHORITIES 4
ASSIGNMENTS OF ERROR bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 5
I The Circuit Courts Order entered March 12016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 52012 secured party sale as required by W Va Code sect 38-4-9 (2016) 5
II The Circuit Courts Order entered March 12016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ ofFieri Facias) 5
ill The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished all subordinate debt interests - including that of the Respondents 5
IV The Circuit Courts Order entered March 1 2016 is erroneous and should be revered because the Circuit Court made numerous factual findings that are not supported by the record as required by West Virginia law 5
STATEMENT OF TIlE CASE 5
A Procedural History 5
B Statement of Facts 7
STANDARD OF REVIEW 10
SUMMARY OF ARGUMENT 41 bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull10
STATEMENT REGARDING ORAL ARGUMENT AND DECISION 12
ARGUMENTbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull12
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias) bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull12
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B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016) bullbull14
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished all subordinate debt interests - including that of the Respondent Judybullbull16
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law 18
PMYER FOR RELIEFbullbullbullbullbullbullbullbullbullbullbullbullbull20
CERTIFICATE OF SERVICE bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull23
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TABLE OF AUTHORITIES
Painterv Peavy 451 SE2d 755 758 192 W Va 189 192 (1994) 10
In re Godfrey 537 BR 271 281 87 UCC RepServ2d 866 Case No1 12-bk-1473 Adv Proc
(1967) 5 18 1920
Anderson v Liberty Lobby Inc bull 477 US 242 249 106 SCt 2505 2511 (1986) 10
Andrick v Town ofBuckhannon 187 W Va 706421 SE2d 247 (1992) 10
Lamon v Gold 79 SE 728 72 W Va 618 (1913) 12
Brown v Hodgman 19 SE2d 910 124 W Va 136 (1942) 12
Hartman v Corpening 178 SE 430 116 W Va 31 (1935) l2 14
Westinghouse Lamp Co v Ingram 79 W Va 22090 SE 837 (1916) 12
Springston v Powell 113 W Va 638 169 SE 459 (1933) 12
Barber v Barber 464 SE2d 358 195 W Va 38 (1995) 12 13
No 113-ap-24 (NDW Va Bankr Ct 2015) 16
South Side Lumber Company v Stone Construction Company 152 SE2d 721 151 W Va 439
Bank of Chapmanville v Workman 406 SE2d 58 185 W Va 161 (1991) 16
Statutes
W Va Code sect 38-4-9 (2016) 14 15
W Va Code sect 38-4-5 (2016) 12
W Va Code sect 38-4-8 (2016) 12 13
W Va Code sect 38-4-6 (2016) 14
W Va Code sect 46-9-610 (2016) 16
W Va Code sect 46-9-617 (2016) 16 17
W Va Code sectsect46-9-617(a)(1-3) (2016) 16 17
W Va Code sect 46-9-61O(b) (2016) 16
Procedural Rules
W VARCIVP 56(c) 10
W VA R elV P 52(a) 1920
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ASSIGNMENTS OF ERROR
I The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because judgment waS entered against Kourt Security without considering whether or not Betty
Panner had knowledge andor notice of the Respondents lien encumbering the Assets when they
were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9
(2016)
II The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court failed to consider West Virginias statutory law regarding Writs of
Execution on personal property (Writ of Fieri Facias)
III The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court ignored the fact that the May 52012 secured party sale was
commercially reasonable and thus extinguished all subordinate debt interests - including that of
the Respondents
IV The Circuit Courts Order entered March 12016 is erroneous and should be revered
because the Circuit Court made numerous findings of fact that are not supported by the recorded
as required by South Side Lumber Company v Stone Construction Company 151 W Va 439
152 SE2d 721 (1967)
STATEMENT OF THE CASE
A PROCEDUREAL mSTORY
The Plaintiffs in this civil action Judys Locksmiths Inc and Judith J Ransom dba
Judys Alarm Masters (hereinafter Respondent Judy) filed their suit on September 1 2009 in
the Circuit Court of Kanawha County West Virginia The initial Defendants in the civil action
were Secure US Inc (hereinafter Secure US) and Serbian Fonz LLC (hereinafter Serbian
P022SS9S1 5
Fonz LLC) (hereinafter collectively referred to as the Brozik Defendants) Both Secure US
Inc and Serbian Fonz LLC were West Virginia entities owned and operated by Mitchell Brozik
Within its Complaint Respondent Judy alleged that the Brozik Defendants breached the tenns of
an Asset Purchase Agreement they had entered into in 2008 See Complaint dated September 1
2009 [Appx Pgs 8-10] On October 62011 Respondent Judy and the Brozik Defendants
reached an agreement or settlement as to all pending issues before the Court The Brozik
Defendants agreed to pay Respondent Judy the sum of$19100000 in installment payments over
thirty-six (36) months See Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC Exhibit J [Appx Pgs 20]
Beginning in or around May of 2014 the Brozik Defendants ceased making the required
monthly payments As a result Respondent Judy moved the court to reopen the case and enter
judgment against the Brozik Defendants for the remaining balance owed - $4718424 plus costs
See Motion for Summary Judgment Against Defendant Kourt Security Partners LLC [Appx
Pgs 15-16] The Circuit Court subsequently entered an order granting Judgment against the
Brozik Defendants on June 192014 See Certified Docket Sheet Line 136 [Appx Pg 3] On
June 112015 Respondent Judy moved the Circuit Court for leave to amend its complaint to add
Kourt Security Partners LLC as a Defendant Respondent Judys motion was granted and their
Amended Complaint was filed on July 242015 See Amended Complaint [Appx Pgs 6-7] On
August 312015 Kourt Security answered Respondent Judys Amended Complaint denied the
allegations contained therein and demanded strict proof thereof See Kourt Security Partners
LLCs Answer and Affirmative Defenses [Appx Pgs 11-14]
On January 262016 Respondent Judy filed their Motion for Summary Judgment against
Kourt Security See Motion for Summary Judgment against Defendant Kourt Security Partners
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LLC [Appx Pgs 15-20] On February 222016 Kourt Security filed is Response to Respondent
Judys Motion for Summary Judgment See Defendant Kourt Security Partners LLCs Response
to Plaintiffs Motion for Summary Judgment [Appx Pgs 21-34 Exhibits on Appx Pgs 35-74]
On February 262016 a hearing was held regarding Respondent Judys Motion for Summary
Judgment and the Circuit Court granted Respondent Judys Motion from the bench See
February 262016 Hearing Transcript [Appx Pgs 79-107] The Plaintiff was instructed to draft
the order granting such motion
On February 29 2016 Respondent Judy submitted its proposed order to the Circuit Court
judge for entry On March 12016 the Circuit Court entered Respondent Judys Order as
submitted by Respondent Judy See Untitled Order Granting Plaintiffs Motion for Summary
Judgment [Appx Pgs 75-78] It is this March 12016 Untitled Order Granting Respondent
Judys Motion for Summary Judgment that Kurt Security is appealing herein
B STATEMENT OF FACTS
On April 1 2008 the Respondent Judy entered into an Asset Purchase Agreement with
the Brozik Defendants wherein Respondent Judy agreed to sell all of the assets it used in
connection with the operation of its security business in Charleston West Virginia in return for a
purchase price of $42099200 See Complaint [Appx Pgs 8-9]
At some point in early 2009 The Brozik Defendants ceased making the installment
payments required under the terms of the Asset Purchase Agreement At the time payments
ceased Respondent Judy alleged that the Brozik Defendants had only paid $20000000 of the
$42099200 owed See Complaint [Appx Pgs 8] As a result Respondent Judy filed suit in the
Circuit Court ofKanawha County West Virginia See Complaint [Appx Pgs 8-9] During this
same time Secure US was having other financial difficulties In order to help alleviate those
financial difficulties Secure US struck a deal with Mr Brozks close personal friend - Mylan
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Puskar Mr Puskar through the Mylan Puskar Amended and Restated Revocable Trust Dated
December 26 2009 (hereinafter the Trust) purchased the outstanding debt of Secure US held
by Bank ofAmerica in the amount of $350000000 and extended him an additional line of
credit in the amount of $90000000 See Recitals ofPurchase and Sale Agreement dated April
19th 2012 [Appx Pg 35] In November of201O a Judgment was handed down against Secure
US in the Southern District of West Virginia by the Honorable John T Copenhaver The
Judgment was in favor of Security Alarm Financing Enterprise Inc (better known as SAFE) to
the tune of $1 13202842 Shortly thereafter SAFE began the process of executing on its
judgment1 SAFEs judgment however was junior in priority to the debt held by the Puskar
Trust
On October 62011 Respondent Judy and the Brozik Defendants reached an agreement
of settlement as to all issues pending before the Kanawha County Circuit Court from the
September 1 2009 Complaint The Brozik Defendants agreed to pay Respondent Judy the sum
of$19100000 over thirty-six (36) months The Brozik Defendants made all required payments
until around March 2014
On April 19 2012 Betty Parmer Mr Broziks aunt purchased the Secure US debt held
by the Puskar Trust (having a face value ofmore than $400000000) by paying the sum of
$250000000 to the Puskar Trust See Purchase and Sale Agreement dated April 19th 2012
[Appx Pgs 35-59] After purchasing the debt Betty Parmer claimed default against Secure US
and subsequently moved to have Secure USs assets sold at auction to satisfy the debt On May
52012 a secured party sale was held in Morgantown West Virginia With a credit bid of
$400000000 Mrs Parmer purchased the Assets of Secure US See Bill of Sale and Receipt
1 See Secure US Inc v Security Alarm Financing Enterprises (USDC NDW Va Civil Action No Il-MC-20) (Stamp)
(P022SS9S1 ) 8
dated May 7 2012 [Appx Pgs 60-62] Pursuant to West Virginia Code sect46-9-617(a) the effect
ofthis sale was to (1) transfer the operating assets of Secure US from the company to Betty
Parmer and (2) discharge all subordinate security interests and subordinate liens which
encumber the assets
Shortly after she obtained ownership of the assets Mrs Parmer retained her nephew Mr
Brozik and his newly-formed company MB Security LLC to manage her assets
In May of 20 14 MB Security and Mr Brozik were removed as manager of Betty
Parmers assets and Kourt Security was hired to step in and manage the assets until they could be
sold2 During this same time Respondent Judy moved to have the case reopened and judgment
rendered against the Brozik Defendants for the remaining balance on the monies owed pursuant
to the October 2011 settlement - $4718424 plus costs See Certified Docket Sheet Line 129
[Appx Pg 3]
On June 192014 the Kanawha County Circuit Court entered an order granting judgment
against the Brozik Defendants However Respondent Judy did not request and receive an
abstract of said judgment until December 102014 See Certified Docket Sheet Lines 171 and
172 [Appx Pg 4] The abstract ofjudgment was subsequently recorded in Monongalia County
- the county in which both Secure US Inc and Serbian Fonz LLC are primarily located and
where substantially all of their assets are located - on December 182014
On November 25 2014 pursuant to the terms and conditions of a Confidential Asset
Purchase Agreement Betty Parmer sold all of the assets she obtained from the May 5 2012
2 Shortly after Betty Parmer purchased the assets at the May 5 2012 secured party sale SAFE sued Betty Parmer along with Secure US Inc in federal court See Security Alarm Financing Enterprises Inc v Betty Parmer et al (USDC NDW Va Civil Action No l2-CV-880)
(PO~SS9S1) 9
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
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C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
TABLE OF CONTENTS
TABLE OF AUTHORITIES 4
ASSIGNMENTS OF ERROR bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull 5
I The Circuit Courts Order entered March 12016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 52012 secured party sale as required by W Va Code sect 38-4-9 (2016) 5
II The Circuit Courts Order entered March 12016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ ofFieri Facias) 5
ill The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished all subordinate debt interests - including that of the Respondents 5
IV The Circuit Courts Order entered March 1 2016 is erroneous and should be revered because the Circuit Court made numerous factual findings that are not supported by the record as required by West Virginia law 5
STATEMENT OF TIlE CASE 5
A Procedural History 5
B Statement of Facts 7
STANDARD OF REVIEW 10
SUMMARY OF ARGUMENT 41 bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull10
STATEMENT REGARDING ORAL ARGUMENT AND DECISION 12
ARGUMENTbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull12
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias) bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull12
(P022SS9SI) 2
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016) bullbull14
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished all subordinate debt interests - including that of the Respondent Judybullbull16
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law 18
PMYER FOR RELIEFbullbullbullbullbullbullbullbullbullbullbullbullbull20
CERTIFICATE OF SERVICE bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull23
P02255951 3
TABLE OF AUTHORITIES
Painterv Peavy 451 SE2d 755 758 192 W Va 189 192 (1994) 10
In re Godfrey 537 BR 271 281 87 UCC RepServ2d 866 Case No1 12-bk-1473 Adv Proc
(1967) 5 18 1920
Anderson v Liberty Lobby Inc bull 477 US 242 249 106 SCt 2505 2511 (1986) 10
Andrick v Town ofBuckhannon 187 W Va 706421 SE2d 247 (1992) 10
Lamon v Gold 79 SE 728 72 W Va 618 (1913) 12
Brown v Hodgman 19 SE2d 910 124 W Va 136 (1942) 12
Hartman v Corpening 178 SE 430 116 W Va 31 (1935) l2 14
Westinghouse Lamp Co v Ingram 79 W Va 22090 SE 837 (1916) 12
Springston v Powell 113 W Va 638 169 SE 459 (1933) 12
Barber v Barber 464 SE2d 358 195 W Va 38 (1995) 12 13
No 113-ap-24 (NDW Va Bankr Ct 2015) 16
South Side Lumber Company v Stone Construction Company 152 SE2d 721 151 W Va 439
Bank of Chapmanville v Workman 406 SE2d 58 185 W Va 161 (1991) 16
Statutes
W Va Code sect 38-4-9 (2016) 14 15
W Va Code sect 38-4-5 (2016) 12
W Va Code sect 38-4-8 (2016) 12 13
W Va Code sect 38-4-6 (2016) 14
W Va Code sect 46-9-610 (2016) 16
W Va Code sect 46-9-617 (2016) 16 17
W Va Code sectsect46-9-617(a)(1-3) (2016) 16 17
W Va Code sect 46-9-61O(b) (2016) 16
Procedural Rules
W VARCIVP 56(c) 10
W VA R elV P 52(a) 1920
P02255951 J 4
ASSIGNMENTS OF ERROR
I The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because judgment waS entered against Kourt Security without considering whether or not Betty
Panner had knowledge andor notice of the Respondents lien encumbering the Assets when they
were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9
(2016)
II The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court failed to consider West Virginias statutory law regarding Writs of
Execution on personal property (Writ of Fieri Facias)
III The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court ignored the fact that the May 52012 secured party sale was
commercially reasonable and thus extinguished all subordinate debt interests - including that of
the Respondents
IV The Circuit Courts Order entered March 12016 is erroneous and should be revered
because the Circuit Court made numerous findings of fact that are not supported by the recorded
as required by South Side Lumber Company v Stone Construction Company 151 W Va 439
152 SE2d 721 (1967)
STATEMENT OF THE CASE
A PROCEDUREAL mSTORY
The Plaintiffs in this civil action Judys Locksmiths Inc and Judith J Ransom dba
Judys Alarm Masters (hereinafter Respondent Judy) filed their suit on September 1 2009 in
the Circuit Court of Kanawha County West Virginia The initial Defendants in the civil action
were Secure US Inc (hereinafter Secure US) and Serbian Fonz LLC (hereinafter Serbian
P022SS9S1 5
Fonz LLC) (hereinafter collectively referred to as the Brozik Defendants) Both Secure US
Inc and Serbian Fonz LLC were West Virginia entities owned and operated by Mitchell Brozik
Within its Complaint Respondent Judy alleged that the Brozik Defendants breached the tenns of
an Asset Purchase Agreement they had entered into in 2008 See Complaint dated September 1
2009 [Appx Pgs 8-10] On October 62011 Respondent Judy and the Brozik Defendants
reached an agreement or settlement as to all pending issues before the Court The Brozik
Defendants agreed to pay Respondent Judy the sum of$19100000 in installment payments over
thirty-six (36) months See Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC Exhibit J [Appx Pgs 20]
Beginning in or around May of 2014 the Brozik Defendants ceased making the required
monthly payments As a result Respondent Judy moved the court to reopen the case and enter
judgment against the Brozik Defendants for the remaining balance owed - $4718424 plus costs
See Motion for Summary Judgment Against Defendant Kourt Security Partners LLC [Appx
Pgs 15-16] The Circuit Court subsequently entered an order granting Judgment against the
Brozik Defendants on June 192014 See Certified Docket Sheet Line 136 [Appx Pg 3] On
June 112015 Respondent Judy moved the Circuit Court for leave to amend its complaint to add
Kourt Security Partners LLC as a Defendant Respondent Judys motion was granted and their
Amended Complaint was filed on July 242015 See Amended Complaint [Appx Pgs 6-7] On
August 312015 Kourt Security answered Respondent Judys Amended Complaint denied the
allegations contained therein and demanded strict proof thereof See Kourt Security Partners
LLCs Answer and Affirmative Defenses [Appx Pgs 11-14]
On January 262016 Respondent Judy filed their Motion for Summary Judgment against
Kourt Security See Motion for Summary Judgment against Defendant Kourt Security Partners
P0225595I 6
LLC [Appx Pgs 15-20] On February 222016 Kourt Security filed is Response to Respondent
Judys Motion for Summary Judgment See Defendant Kourt Security Partners LLCs Response
to Plaintiffs Motion for Summary Judgment [Appx Pgs 21-34 Exhibits on Appx Pgs 35-74]
On February 262016 a hearing was held regarding Respondent Judys Motion for Summary
Judgment and the Circuit Court granted Respondent Judys Motion from the bench See
February 262016 Hearing Transcript [Appx Pgs 79-107] The Plaintiff was instructed to draft
the order granting such motion
On February 29 2016 Respondent Judy submitted its proposed order to the Circuit Court
judge for entry On March 12016 the Circuit Court entered Respondent Judys Order as
submitted by Respondent Judy See Untitled Order Granting Plaintiffs Motion for Summary
Judgment [Appx Pgs 75-78] It is this March 12016 Untitled Order Granting Respondent
Judys Motion for Summary Judgment that Kurt Security is appealing herein
B STATEMENT OF FACTS
On April 1 2008 the Respondent Judy entered into an Asset Purchase Agreement with
the Brozik Defendants wherein Respondent Judy agreed to sell all of the assets it used in
connection with the operation of its security business in Charleston West Virginia in return for a
purchase price of $42099200 See Complaint [Appx Pgs 8-9]
At some point in early 2009 The Brozik Defendants ceased making the installment
payments required under the terms of the Asset Purchase Agreement At the time payments
ceased Respondent Judy alleged that the Brozik Defendants had only paid $20000000 of the
$42099200 owed See Complaint [Appx Pgs 8] As a result Respondent Judy filed suit in the
Circuit Court ofKanawha County West Virginia See Complaint [Appx Pgs 8-9] During this
same time Secure US was having other financial difficulties In order to help alleviate those
financial difficulties Secure US struck a deal with Mr Brozks close personal friend - Mylan
(P02255951 7
Puskar Mr Puskar through the Mylan Puskar Amended and Restated Revocable Trust Dated
December 26 2009 (hereinafter the Trust) purchased the outstanding debt of Secure US held
by Bank ofAmerica in the amount of $350000000 and extended him an additional line of
credit in the amount of $90000000 See Recitals ofPurchase and Sale Agreement dated April
19th 2012 [Appx Pg 35] In November of201O a Judgment was handed down against Secure
US in the Southern District of West Virginia by the Honorable John T Copenhaver The
Judgment was in favor of Security Alarm Financing Enterprise Inc (better known as SAFE) to
the tune of $1 13202842 Shortly thereafter SAFE began the process of executing on its
judgment1 SAFEs judgment however was junior in priority to the debt held by the Puskar
Trust
On October 62011 Respondent Judy and the Brozik Defendants reached an agreement
of settlement as to all issues pending before the Kanawha County Circuit Court from the
September 1 2009 Complaint The Brozik Defendants agreed to pay Respondent Judy the sum
of$19100000 over thirty-six (36) months The Brozik Defendants made all required payments
until around March 2014
On April 19 2012 Betty Parmer Mr Broziks aunt purchased the Secure US debt held
by the Puskar Trust (having a face value ofmore than $400000000) by paying the sum of
$250000000 to the Puskar Trust See Purchase and Sale Agreement dated April 19th 2012
[Appx Pgs 35-59] After purchasing the debt Betty Parmer claimed default against Secure US
and subsequently moved to have Secure USs assets sold at auction to satisfy the debt On May
52012 a secured party sale was held in Morgantown West Virginia With a credit bid of
$400000000 Mrs Parmer purchased the Assets of Secure US See Bill of Sale and Receipt
1 See Secure US Inc v Security Alarm Financing Enterprises (USDC NDW Va Civil Action No Il-MC-20) (Stamp)
(P022SS9S1 ) 8
dated May 7 2012 [Appx Pgs 60-62] Pursuant to West Virginia Code sect46-9-617(a) the effect
ofthis sale was to (1) transfer the operating assets of Secure US from the company to Betty
Parmer and (2) discharge all subordinate security interests and subordinate liens which
encumber the assets
Shortly after she obtained ownership of the assets Mrs Parmer retained her nephew Mr
Brozik and his newly-formed company MB Security LLC to manage her assets
In May of 20 14 MB Security and Mr Brozik were removed as manager of Betty
Parmers assets and Kourt Security was hired to step in and manage the assets until they could be
sold2 During this same time Respondent Judy moved to have the case reopened and judgment
rendered against the Brozik Defendants for the remaining balance on the monies owed pursuant
to the October 2011 settlement - $4718424 plus costs See Certified Docket Sheet Line 129
[Appx Pg 3]
On June 192014 the Kanawha County Circuit Court entered an order granting judgment
against the Brozik Defendants However Respondent Judy did not request and receive an
abstract of said judgment until December 102014 See Certified Docket Sheet Lines 171 and
172 [Appx Pg 4] The abstract ofjudgment was subsequently recorded in Monongalia County
- the county in which both Secure US Inc and Serbian Fonz LLC are primarily located and
where substantially all of their assets are located - on December 182014
On November 25 2014 pursuant to the terms and conditions of a Confidential Asset
Purchase Agreement Betty Parmer sold all of the assets she obtained from the May 5 2012
2 Shortly after Betty Parmer purchased the assets at the May 5 2012 secured party sale SAFE sued Betty Parmer along with Secure US Inc in federal court See Security Alarm Financing Enterprises Inc v Betty Parmer et al (USDC NDW Va Civil Action No l2-CV-880)
(PO~SS9S1) 9
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016) bullbull14
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished all subordinate debt interests - including that of the Respondent Judybullbull16
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law 18
PMYER FOR RELIEFbullbullbullbullbullbullbullbullbullbullbullbullbull20
CERTIFICATE OF SERVICE bullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbullbull23
P02255951 3
TABLE OF AUTHORITIES
Painterv Peavy 451 SE2d 755 758 192 W Va 189 192 (1994) 10
In re Godfrey 537 BR 271 281 87 UCC RepServ2d 866 Case No1 12-bk-1473 Adv Proc
(1967) 5 18 1920
Anderson v Liberty Lobby Inc bull 477 US 242 249 106 SCt 2505 2511 (1986) 10
Andrick v Town ofBuckhannon 187 W Va 706421 SE2d 247 (1992) 10
Lamon v Gold 79 SE 728 72 W Va 618 (1913) 12
Brown v Hodgman 19 SE2d 910 124 W Va 136 (1942) 12
Hartman v Corpening 178 SE 430 116 W Va 31 (1935) l2 14
Westinghouse Lamp Co v Ingram 79 W Va 22090 SE 837 (1916) 12
Springston v Powell 113 W Va 638 169 SE 459 (1933) 12
Barber v Barber 464 SE2d 358 195 W Va 38 (1995) 12 13
No 113-ap-24 (NDW Va Bankr Ct 2015) 16
South Side Lumber Company v Stone Construction Company 152 SE2d 721 151 W Va 439
Bank of Chapmanville v Workman 406 SE2d 58 185 W Va 161 (1991) 16
Statutes
W Va Code sect 38-4-9 (2016) 14 15
W Va Code sect 38-4-5 (2016) 12
W Va Code sect 38-4-8 (2016) 12 13
W Va Code sect 38-4-6 (2016) 14
W Va Code sect 46-9-610 (2016) 16
W Va Code sect 46-9-617 (2016) 16 17
W Va Code sectsect46-9-617(a)(1-3) (2016) 16 17
W Va Code sect 46-9-61O(b) (2016) 16
Procedural Rules
W VARCIVP 56(c) 10
W VA R elV P 52(a) 1920
P02255951 J 4
ASSIGNMENTS OF ERROR
I The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because judgment waS entered against Kourt Security without considering whether or not Betty
Panner had knowledge andor notice of the Respondents lien encumbering the Assets when they
were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9
(2016)
II The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court failed to consider West Virginias statutory law regarding Writs of
Execution on personal property (Writ of Fieri Facias)
III The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court ignored the fact that the May 52012 secured party sale was
commercially reasonable and thus extinguished all subordinate debt interests - including that of
the Respondents
IV The Circuit Courts Order entered March 12016 is erroneous and should be revered
because the Circuit Court made numerous findings of fact that are not supported by the recorded
as required by South Side Lumber Company v Stone Construction Company 151 W Va 439
152 SE2d 721 (1967)
STATEMENT OF THE CASE
A PROCEDUREAL mSTORY
The Plaintiffs in this civil action Judys Locksmiths Inc and Judith J Ransom dba
Judys Alarm Masters (hereinafter Respondent Judy) filed their suit on September 1 2009 in
the Circuit Court of Kanawha County West Virginia The initial Defendants in the civil action
were Secure US Inc (hereinafter Secure US) and Serbian Fonz LLC (hereinafter Serbian
P022SS9S1 5
Fonz LLC) (hereinafter collectively referred to as the Brozik Defendants) Both Secure US
Inc and Serbian Fonz LLC were West Virginia entities owned and operated by Mitchell Brozik
Within its Complaint Respondent Judy alleged that the Brozik Defendants breached the tenns of
an Asset Purchase Agreement they had entered into in 2008 See Complaint dated September 1
2009 [Appx Pgs 8-10] On October 62011 Respondent Judy and the Brozik Defendants
reached an agreement or settlement as to all pending issues before the Court The Brozik
Defendants agreed to pay Respondent Judy the sum of$19100000 in installment payments over
thirty-six (36) months See Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC Exhibit J [Appx Pgs 20]
Beginning in or around May of 2014 the Brozik Defendants ceased making the required
monthly payments As a result Respondent Judy moved the court to reopen the case and enter
judgment against the Brozik Defendants for the remaining balance owed - $4718424 plus costs
See Motion for Summary Judgment Against Defendant Kourt Security Partners LLC [Appx
Pgs 15-16] The Circuit Court subsequently entered an order granting Judgment against the
Brozik Defendants on June 192014 See Certified Docket Sheet Line 136 [Appx Pg 3] On
June 112015 Respondent Judy moved the Circuit Court for leave to amend its complaint to add
Kourt Security Partners LLC as a Defendant Respondent Judys motion was granted and their
Amended Complaint was filed on July 242015 See Amended Complaint [Appx Pgs 6-7] On
August 312015 Kourt Security answered Respondent Judys Amended Complaint denied the
allegations contained therein and demanded strict proof thereof See Kourt Security Partners
LLCs Answer and Affirmative Defenses [Appx Pgs 11-14]
On January 262016 Respondent Judy filed their Motion for Summary Judgment against
Kourt Security See Motion for Summary Judgment against Defendant Kourt Security Partners
P0225595I 6
LLC [Appx Pgs 15-20] On February 222016 Kourt Security filed is Response to Respondent
Judys Motion for Summary Judgment See Defendant Kourt Security Partners LLCs Response
to Plaintiffs Motion for Summary Judgment [Appx Pgs 21-34 Exhibits on Appx Pgs 35-74]
On February 262016 a hearing was held regarding Respondent Judys Motion for Summary
Judgment and the Circuit Court granted Respondent Judys Motion from the bench See
February 262016 Hearing Transcript [Appx Pgs 79-107] The Plaintiff was instructed to draft
the order granting such motion
On February 29 2016 Respondent Judy submitted its proposed order to the Circuit Court
judge for entry On March 12016 the Circuit Court entered Respondent Judys Order as
submitted by Respondent Judy See Untitled Order Granting Plaintiffs Motion for Summary
Judgment [Appx Pgs 75-78] It is this March 12016 Untitled Order Granting Respondent
Judys Motion for Summary Judgment that Kurt Security is appealing herein
B STATEMENT OF FACTS
On April 1 2008 the Respondent Judy entered into an Asset Purchase Agreement with
the Brozik Defendants wherein Respondent Judy agreed to sell all of the assets it used in
connection with the operation of its security business in Charleston West Virginia in return for a
purchase price of $42099200 See Complaint [Appx Pgs 8-9]
At some point in early 2009 The Brozik Defendants ceased making the installment
payments required under the terms of the Asset Purchase Agreement At the time payments
ceased Respondent Judy alleged that the Brozik Defendants had only paid $20000000 of the
$42099200 owed See Complaint [Appx Pgs 8] As a result Respondent Judy filed suit in the
Circuit Court ofKanawha County West Virginia See Complaint [Appx Pgs 8-9] During this
same time Secure US was having other financial difficulties In order to help alleviate those
financial difficulties Secure US struck a deal with Mr Brozks close personal friend - Mylan
(P02255951 7
Puskar Mr Puskar through the Mylan Puskar Amended and Restated Revocable Trust Dated
December 26 2009 (hereinafter the Trust) purchased the outstanding debt of Secure US held
by Bank ofAmerica in the amount of $350000000 and extended him an additional line of
credit in the amount of $90000000 See Recitals ofPurchase and Sale Agreement dated April
19th 2012 [Appx Pg 35] In November of201O a Judgment was handed down against Secure
US in the Southern District of West Virginia by the Honorable John T Copenhaver The
Judgment was in favor of Security Alarm Financing Enterprise Inc (better known as SAFE) to
the tune of $1 13202842 Shortly thereafter SAFE began the process of executing on its
judgment1 SAFEs judgment however was junior in priority to the debt held by the Puskar
Trust
On October 62011 Respondent Judy and the Brozik Defendants reached an agreement
of settlement as to all issues pending before the Kanawha County Circuit Court from the
September 1 2009 Complaint The Brozik Defendants agreed to pay Respondent Judy the sum
of$19100000 over thirty-six (36) months The Brozik Defendants made all required payments
until around March 2014
On April 19 2012 Betty Parmer Mr Broziks aunt purchased the Secure US debt held
by the Puskar Trust (having a face value ofmore than $400000000) by paying the sum of
$250000000 to the Puskar Trust See Purchase and Sale Agreement dated April 19th 2012
[Appx Pgs 35-59] After purchasing the debt Betty Parmer claimed default against Secure US
and subsequently moved to have Secure USs assets sold at auction to satisfy the debt On May
52012 a secured party sale was held in Morgantown West Virginia With a credit bid of
$400000000 Mrs Parmer purchased the Assets of Secure US See Bill of Sale and Receipt
1 See Secure US Inc v Security Alarm Financing Enterprises (USDC NDW Va Civil Action No Il-MC-20) (Stamp)
(P022SS9S1 ) 8
dated May 7 2012 [Appx Pgs 60-62] Pursuant to West Virginia Code sect46-9-617(a) the effect
ofthis sale was to (1) transfer the operating assets of Secure US from the company to Betty
Parmer and (2) discharge all subordinate security interests and subordinate liens which
encumber the assets
Shortly after she obtained ownership of the assets Mrs Parmer retained her nephew Mr
Brozik and his newly-formed company MB Security LLC to manage her assets
In May of 20 14 MB Security and Mr Brozik were removed as manager of Betty
Parmers assets and Kourt Security was hired to step in and manage the assets until they could be
sold2 During this same time Respondent Judy moved to have the case reopened and judgment
rendered against the Brozik Defendants for the remaining balance on the monies owed pursuant
to the October 2011 settlement - $4718424 plus costs See Certified Docket Sheet Line 129
[Appx Pg 3]
On June 192014 the Kanawha County Circuit Court entered an order granting judgment
against the Brozik Defendants However Respondent Judy did not request and receive an
abstract of said judgment until December 102014 See Certified Docket Sheet Lines 171 and
172 [Appx Pg 4] The abstract ofjudgment was subsequently recorded in Monongalia County
- the county in which both Secure US Inc and Serbian Fonz LLC are primarily located and
where substantially all of their assets are located - on December 182014
On November 25 2014 pursuant to the terms and conditions of a Confidential Asset
Purchase Agreement Betty Parmer sold all of the assets she obtained from the May 5 2012
2 Shortly after Betty Parmer purchased the assets at the May 5 2012 secured party sale SAFE sued Betty Parmer along with Secure US Inc in federal court See Security Alarm Financing Enterprises Inc v Betty Parmer et al (USDC NDW Va Civil Action No l2-CV-880)
(PO~SS9S1) 9
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
TABLE OF AUTHORITIES
Painterv Peavy 451 SE2d 755 758 192 W Va 189 192 (1994) 10
In re Godfrey 537 BR 271 281 87 UCC RepServ2d 866 Case No1 12-bk-1473 Adv Proc
(1967) 5 18 1920
Anderson v Liberty Lobby Inc bull 477 US 242 249 106 SCt 2505 2511 (1986) 10
Andrick v Town ofBuckhannon 187 W Va 706421 SE2d 247 (1992) 10
Lamon v Gold 79 SE 728 72 W Va 618 (1913) 12
Brown v Hodgman 19 SE2d 910 124 W Va 136 (1942) 12
Hartman v Corpening 178 SE 430 116 W Va 31 (1935) l2 14
Westinghouse Lamp Co v Ingram 79 W Va 22090 SE 837 (1916) 12
Springston v Powell 113 W Va 638 169 SE 459 (1933) 12
Barber v Barber 464 SE2d 358 195 W Va 38 (1995) 12 13
No 113-ap-24 (NDW Va Bankr Ct 2015) 16
South Side Lumber Company v Stone Construction Company 152 SE2d 721 151 W Va 439
Bank of Chapmanville v Workman 406 SE2d 58 185 W Va 161 (1991) 16
Statutes
W Va Code sect 38-4-9 (2016) 14 15
W Va Code sect 38-4-5 (2016) 12
W Va Code sect 38-4-8 (2016) 12 13
W Va Code sect 38-4-6 (2016) 14
W Va Code sect 46-9-610 (2016) 16
W Va Code sect 46-9-617 (2016) 16 17
W Va Code sectsect46-9-617(a)(1-3) (2016) 16 17
W Va Code sect 46-9-61O(b) (2016) 16
Procedural Rules
W VARCIVP 56(c) 10
W VA R elV P 52(a) 1920
P02255951 J 4
ASSIGNMENTS OF ERROR
I The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because judgment waS entered against Kourt Security without considering whether or not Betty
Panner had knowledge andor notice of the Respondents lien encumbering the Assets when they
were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9
(2016)
II The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court failed to consider West Virginias statutory law regarding Writs of
Execution on personal property (Writ of Fieri Facias)
III The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court ignored the fact that the May 52012 secured party sale was
commercially reasonable and thus extinguished all subordinate debt interests - including that of
the Respondents
IV The Circuit Courts Order entered March 12016 is erroneous and should be revered
because the Circuit Court made numerous findings of fact that are not supported by the recorded
as required by South Side Lumber Company v Stone Construction Company 151 W Va 439
152 SE2d 721 (1967)
STATEMENT OF THE CASE
A PROCEDUREAL mSTORY
The Plaintiffs in this civil action Judys Locksmiths Inc and Judith J Ransom dba
Judys Alarm Masters (hereinafter Respondent Judy) filed their suit on September 1 2009 in
the Circuit Court of Kanawha County West Virginia The initial Defendants in the civil action
were Secure US Inc (hereinafter Secure US) and Serbian Fonz LLC (hereinafter Serbian
P022SS9S1 5
Fonz LLC) (hereinafter collectively referred to as the Brozik Defendants) Both Secure US
Inc and Serbian Fonz LLC were West Virginia entities owned and operated by Mitchell Brozik
Within its Complaint Respondent Judy alleged that the Brozik Defendants breached the tenns of
an Asset Purchase Agreement they had entered into in 2008 See Complaint dated September 1
2009 [Appx Pgs 8-10] On October 62011 Respondent Judy and the Brozik Defendants
reached an agreement or settlement as to all pending issues before the Court The Brozik
Defendants agreed to pay Respondent Judy the sum of$19100000 in installment payments over
thirty-six (36) months See Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC Exhibit J [Appx Pgs 20]
Beginning in or around May of 2014 the Brozik Defendants ceased making the required
monthly payments As a result Respondent Judy moved the court to reopen the case and enter
judgment against the Brozik Defendants for the remaining balance owed - $4718424 plus costs
See Motion for Summary Judgment Against Defendant Kourt Security Partners LLC [Appx
Pgs 15-16] The Circuit Court subsequently entered an order granting Judgment against the
Brozik Defendants on June 192014 See Certified Docket Sheet Line 136 [Appx Pg 3] On
June 112015 Respondent Judy moved the Circuit Court for leave to amend its complaint to add
Kourt Security Partners LLC as a Defendant Respondent Judys motion was granted and their
Amended Complaint was filed on July 242015 See Amended Complaint [Appx Pgs 6-7] On
August 312015 Kourt Security answered Respondent Judys Amended Complaint denied the
allegations contained therein and demanded strict proof thereof See Kourt Security Partners
LLCs Answer and Affirmative Defenses [Appx Pgs 11-14]
On January 262016 Respondent Judy filed their Motion for Summary Judgment against
Kourt Security See Motion for Summary Judgment against Defendant Kourt Security Partners
P0225595I 6
LLC [Appx Pgs 15-20] On February 222016 Kourt Security filed is Response to Respondent
Judys Motion for Summary Judgment See Defendant Kourt Security Partners LLCs Response
to Plaintiffs Motion for Summary Judgment [Appx Pgs 21-34 Exhibits on Appx Pgs 35-74]
On February 262016 a hearing was held regarding Respondent Judys Motion for Summary
Judgment and the Circuit Court granted Respondent Judys Motion from the bench See
February 262016 Hearing Transcript [Appx Pgs 79-107] The Plaintiff was instructed to draft
the order granting such motion
On February 29 2016 Respondent Judy submitted its proposed order to the Circuit Court
judge for entry On March 12016 the Circuit Court entered Respondent Judys Order as
submitted by Respondent Judy See Untitled Order Granting Plaintiffs Motion for Summary
Judgment [Appx Pgs 75-78] It is this March 12016 Untitled Order Granting Respondent
Judys Motion for Summary Judgment that Kurt Security is appealing herein
B STATEMENT OF FACTS
On April 1 2008 the Respondent Judy entered into an Asset Purchase Agreement with
the Brozik Defendants wherein Respondent Judy agreed to sell all of the assets it used in
connection with the operation of its security business in Charleston West Virginia in return for a
purchase price of $42099200 See Complaint [Appx Pgs 8-9]
At some point in early 2009 The Brozik Defendants ceased making the installment
payments required under the terms of the Asset Purchase Agreement At the time payments
ceased Respondent Judy alleged that the Brozik Defendants had only paid $20000000 of the
$42099200 owed See Complaint [Appx Pgs 8] As a result Respondent Judy filed suit in the
Circuit Court ofKanawha County West Virginia See Complaint [Appx Pgs 8-9] During this
same time Secure US was having other financial difficulties In order to help alleviate those
financial difficulties Secure US struck a deal with Mr Brozks close personal friend - Mylan
(P02255951 7
Puskar Mr Puskar through the Mylan Puskar Amended and Restated Revocable Trust Dated
December 26 2009 (hereinafter the Trust) purchased the outstanding debt of Secure US held
by Bank ofAmerica in the amount of $350000000 and extended him an additional line of
credit in the amount of $90000000 See Recitals ofPurchase and Sale Agreement dated April
19th 2012 [Appx Pg 35] In November of201O a Judgment was handed down against Secure
US in the Southern District of West Virginia by the Honorable John T Copenhaver The
Judgment was in favor of Security Alarm Financing Enterprise Inc (better known as SAFE) to
the tune of $1 13202842 Shortly thereafter SAFE began the process of executing on its
judgment1 SAFEs judgment however was junior in priority to the debt held by the Puskar
Trust
On October 62011 Respondent Judy and the Brozik Defendants reached an agreement
of settlement as to all issues pending before the Kanawha County Circuit Court from the
September 1 2009 Complaint The Brozik Defendants agreed to pay Respondent Judy the sum
of$19100000 over thirty-six (36) months The Brozik Defendants made all required payments
until around March 2014
On April 19 2012 Betty Parmer Mr Broziks aunt purchased the Secure US debt held
by the Puskar Trust (having a face value ofmore than $400000000) by paying the sum of
$250000000 to the Puskar Trust See Purchase and Sale Agreement dated April 19th 2012
[Appx Pgs 35-59] After purchasing the debt Betty Parmer claimed default against Secure US
and subsequently moved to have Secure USs assets sold at auction to satisfy the debt On May
52012 a secured party sale was held in Morgantown West Virginia With a credit bid of
$400000000 Mrs Parmer purchased the Assets of Secure US See Bill of Sale and Receipt
1 See Secure US Inc v Security Alarm Financing Enterprises (USDC NDW Va Civil Action No Il-MC-20) (Stamp)
(P022SS9S1 ) 8
dated May 7 2012 [Appx Pgs 60-62] Pursuant to West Virginia Code sect46-9-617(a) the effect
ofthis sale was to (1) transfer the operating assets of Secure US from the company to Betty
Parmer and (2) discharge all subordinate security interests and subordinate liens which
encumber the assets
Shortly after she obtained ownership of the assets Mrs Parmer retained her nephew Mr
Brozik and his newly-formed company MB Security LLC to manage her assets
In May of 20 14 MB Security and Mr Brozik were removed as manager of Betty
Parmers assets and Kourt Security was hired to step in and manage the assets until they could be
sold2 During this same time Respondent Judy moved to have the case reopened and judgment
rendered against the Brozik Defendants for the remaining balance on the monies owed pursuant
to the October 2011 settlement - $4718424 plus costs See Certified Docket Sheet Line 129
[Appx Pg 3]
On June 192014 the Kanawha County Circuit Court entered an order granting judgment
against the Brozik Defendants However Respondent Judy did not request and receive an
abstract of said judgment until December 102014 See Certified Docket Sheet Lines 171 and
172 [Appx Pg 4] The abstract ofjudgment was subsequently recorded in Monongalia County
- the county in which both Secure US Inc and Serbian Fonz LLC are primarily located and
where substantially all of their assets are located - on December 182014
On November 25 2014 pursuant to the terms and conditions of a Confidential Asset
Purchase Agreement Betty Parmer sold all of the assets she obtained from the May 5 2012
2 Shortly after Betty Parmer purchased the assets at the May 5 2012 secured party sale SAFE sued Betty Parmer along with Secure US Inc in federal court See Security Alarm Financing Enterprises Inc v Betty Parmer et al (USDC NDW Va Civil Action No l2-CV-880)
(PO~SS9S1) 9
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
ASSIGNMENTS OF ERROR
I The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because judgment waS entered against Kourt Security without considering whether or not Betty
Panner had knowledge andor notice of the Respondents lien encumbering the Assets when they
were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9
(2016)
II The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court failed to consider West Virginias statutory law regarding Writs of
Execution on personal property (Writ of Fieri Facias)
III The Circuit Courts Order entered March 12016 is erroneous and should be reversed
because the Circuit Court ignored the fact that the May 52012 secured party sale was
commercially reasonable and thus extinguished all subordinate debt interests - including that of
the Respondents
IV The Circuit Courts Order entered March 12016 is erroneous and should be revered
because the Circuit Court made numerous findings of fact that are not supported by the recorded
as required by South Side Lumber Company v Stone Construction Company 151 W Va 439
152 SE2d 721 (1967)
STATEMENT OF THE CASE
A PROCEDUREAL mSTORY
The Plaintiffs in this civil action Judys Locksmiths Inc and Judith J Ransom dba
Judys Alarm Masters (hereinafter Respondent Judy) filed their suit on September 1 2009 in
the Circuit Court of Kanawha County West Virginia The initial Defendants in the civil action
were Secure US Inc (hereinafter Secure US) and Serbian Fonz LLC (hereinafter Serbian
P022SS9S1 5
Fonz LLC) (hereinafter collectively referred to as the Brozik Defendants) Both Secure US
Inc and Serbian Fonz LLC were West Virginia entities owned and operated by Mitchell Brozik
Within its Complaint Respondent Judy alleged that the Brozik Defendants breached the tenns of
an Asset Purchase Agreement they had entered into in 2008 See Complaint dated September 1
2009 [Appx Pgs 8-10] On October 62011 Respondent Judy and the Brozik Defendants
reached an agreement or settlement as to all pending issues before the Court The Brozik
Defendants agreed to pay Respondent Judy the sum of$19100000 in installment payments over
thirty-six (36) months See Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC Exhibit J [Appx Pgs 20]
Beginning in or around May of 2014 the Brozik Defendants ceased making the required
monthly payments As a result Respondent Judy moved the court to reopen the case and enter
judgment against the Brozik Defendants for the remaining balance owed - $4718424 plus costs
See Motion for Summary Judgment Against Defendant Kourt Security Partners LLC [Appx
Pgs 15-16] The Circuit Court subsequently entered an order granting Judgment against the
Brozik Defendants on June 192014 See Certified Docket Sheet Line 136 [Appx Pg 3] On
June 112015 Respondent Judy moved the Circuit Court for leave to amend its complaint to add
Kourt Security Partners LLC as a Defendant Respondent Judys motion was granted and their
Amended Complaint was filed on July 242015 See Amended Complaint [Appx Pgs 6-7] On
August 312015 Kourt Security answered Respondent Judys Amended Complaint denied the
allegations contained therein and demanded strict proof thereof See Kourt Security Partners
LLCs Answer and Affirmative Defenses [Appx Pgs 11-14]
On January 262016 Respondent Judy filed their Motion for Summary Judgment against
Kourt Security See Motion for Summary Judgment against Defendant Kourt Security Partners
P0225595I 6
LLC [Appx Pgs 15-20] On February 222016 Kourt Security filed is Response to Respondent
Judys Motion for Summary Judgment See Defendant Kourt Security Partners LLCs Response
to Plaintiffs Motion for Summary Judgment [Appx Pgs 21-34 Exhibits on Appx Pgs 35-74]
On February 262016 a hearing was held regarding Respondent Judys Motion for Summary
Judgment and the Circuit Court granted Respondent Judys Motion from the bench See
February 262016 Hearing Transcript [Appx Pgs 79-107] The Plaintiff was instructed to draft
the order granting such motion
On February 29 2016 Respondent Judy submitted its proposed order to the Circuit Court
judge for entry On March 12016 the Circuit Court entered Respondent Judys Order as
submitted by Respondent Judy See Untitled Order Granting Plaintiffs Motion for Summary
Judgment [Appx Pgs 75-78] It is this March 12016 Untitled Order Granting Respondent
Judys Motion for Summary Judgment that Kurt Security is appealing herein
B STATEMENT OF FACTS
On April 1 2008 the Respondent Judy entered into an Asset Purchase Agreement with
the Brozik Defendants wherein Respondent Judy agreed to sell all of the assets it used in
connection with the operation of its security business in Charleston West Virginia in return for a
purchase price of $42099200 See Complaint [Appx Pgs 8-9]
At some point in early 2009 The Brozik Defendants ceased making the installment
payments required under the terms of the Asset Purchase Agreement At the time payments
ceased Respondent Judy alleged that the Brozik Defendants had only paid $20000000 of the
$42099200 owed See Complaint [Appx Pgs 8] As a result Respondent Judy filed suit in the
Circuit Court ofKanawha County West Virginia See Complaint [Appx Pgs 8-9] During this
same time Secure US was having other financial difficulties In order to help alleviate those
financial difficulties Secure US struck a deal with Mr Brozks close personal friend - Mylan
(P02255951 7
Puskar Mr Puskar through the Mylan Puskar Amended and Restated Revocable Trust Dated
December 26 2009 (hereinafter the Trust) purchased the outstanding debt of Secure US held
by Bank ofAmerica in the amount of $350000000 and extended him an additional line of
credit in the amount of $90000000 See Recitals ofPurchase and Sale Agreement dated April
19th 2012 [Appx Pg 35] In November of201O a Judgment was handed down against Secure
US in the Southern District of West Virginia by the Honorable John T Copenhaver The
Judgment was in favor of Security Alarm Financing Enterprise Inc (better known as SAFE) to
the tune of $1 13202842 Shortly thereafter SAFE began the process of executing on its
judgment1 SAFEs judgment however was junior in priority to the debt held by the Puskar
Trust
On October 62011 Respondent Judy and the Brozik Defendants reached an agreement
of settlement as to all issues pending before the Kanawha County Circuit Court from the
September 1 2009 Complaint The Brozik Defendants agreed to pay Respondent Judy the sum
of$19100000 over thirty-six (36) months The Brozik Defendants made all required payments
until around March 2014
On April 19 2012 Betty Parmer Mr Broziks aunt purchased the Secure US debt held
by the Puskar Trust (having a face value ofmore than $400000000) by paying the sum of
$250000000 to the Puskar Trust See Purchase and Sale Agreement dated April 19th 2012
[Appx Pgs 35-59] After purchasing the debt Betty Parmer claimed default against Secure US
and subsequently moved to have Secure USs assets sold at auction to satisfy the debt On May
52012 a secured party sale was held in Morgantown West Virginia With a credit bid of
$400000000 Mrs Parmer purchased the Assets of Secure US See Bill of Sale and Receipt
1 See Secure US Inc v Security Alarm Financing Enterprises (USDC NDW Va Civil Action No Il-MC-20) (Stamp)
(P022SS9S1 ) 8
dated May 7 2012 [Appx Pgs 60-62] Pursuant to West Virginia Code sect46-9-617(a) the effect
ofthis sale was to (1) transfer the operating assets of Secure US from the company to Betty
Parmer and (2) discharge all subordinate security interests and subordinate liens which
encumber the assets
Shortly after she obtained ownership of the assets Mrs Parmer retained her nephew Mr
Brozik and his newly-formed company MB Security LLC to manage her assets
In May of 20 14 MB Security and Mr Brozik were removed as manager of Betty
Parmers assets and Kourt Security was hired to step in and manage the assets until they could be
sold2 During this same time Respondent Judy moved to have the case reopened and judgment
rendered against the Brozik Defendants for the remaining balance on the monies owed pursuant
to the October 2011 settlement - $4718424 plus costs See Certified Docket Sheet Line 129
[Appx Pg 3]
On June 192014 the Kanawha County Circuit Court entered an order granting judgment
against the Brozik Defendants However Respondent Judy did not request and receive an
abstract of said judgment until December 102014 See Certified Docket Sheet Lines 171 and
172 [Appx Pg 4] The abstract ofjudgment was subsequently recorded in Monongalia County
- the county in which both Secure US Inc and Serbian Fonz LLC are primarily located and
where substantially all of their assets are located - on December 182014
On November 25 2014 pursuant to the terms and conditions of a Confidential Asset
Purchase Agreement Betty Parmer sold all of the assets she obtained from the May 5 2012
2 Shortly after Betty Parmer purchased the assets at the May 5 2012 secured party sale SAFE sued Betty Parmer along with Secure US Inc in federal court See Security Alarm Financing Enterprises Inc v Betty Parmer et al (USDC NDW Va Civil Action No l2-CV-880)
(PO~SS9S1) 9
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
Fonz LLC) (hereinafter collectively referred to as the Brozik Defendants) Both Secure US
Inc and Serbian Fonz LLC were West Virginia entities owned and operated by Mitchell Brozik
Within its Complaint Respondent Judy alleged that the Brozik Defendants breached the tenns of
an Asset Purchase Agreement they had entered into in 2008 See Complaint dated September 1
2009 [Appx Pgs 8-10] On October 62011 Respondent Judy and the Brozik Defendants
reached an agreement or settlement as to all pending issues before the Court The Brozik
Defendants agreed to pay Respondent Judy the sum of$19100000 in installment payments over
thirty-six (36) months See Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC Exhibit J [Appx Pgs 20]
Beginning in or around May of 2014 the Brozik Defendants ceased making the required
monthly payments As a result Respondent Judy moved the court to reopen the case and enter
judgment against the Brozik Defendants for the remaining balance owed - $4718424 plus costs
See Motion for Summary Judgment Against Defendant Kourt Security Partners LLC [Appx
Pgs 15-16] The Circuit Court subsequently entered an order granting Judgment against the
Brozik Defendants on June 192014 See Certified Docket Sheet Line 136 [Appx Pg 3] On
June 112015 Respondent Judy moved the Circuit Court for leave to amend its complaint to add
Kourt Security Partners LLC as a Defendant Respondent Judys motion was granted and their
Amended Complaint was filed on July 242015 See Amended Complaint [Appx Pgs 6-7] On
August 312015 Kourt Security answered Respondent Judys Amended Complaint denied the
allegations contained therein and demanded strict proof thereof See Kourt Security Partners
LLCs Answer and Affirmative Defenses [Appx Pgs 11-14]
On January 262016 Respondent Judy filed their Motion for Summary Judgment against
Kourt Security See Motion for Summary Judgment against Defendant Kourt Security Partners
P0225595I 6
LLC [Appx Pgs 15-20] On February 222016 Kourt Security filed is Response to Respondent
Judys Motion for Summary Judgment See Defendant Kourt Security Partners LLCs Response
to Plaintiffs Motion for Summary Judgment [Appx Pgs 21-34 Exhibits on Appx Pgs 35-74]
On February 262016 a hearing was held regarding Respondent Judys Motion for Summary
Judgment and the Circuit Court granted Respondent Judys Motion from the bench See
February 262016 Hearing Transcript [Appx Pgs 79-107] The Plaintiff was instructed to draft
the order granting such motion
On February 29 2016 Respondent Judy submitted its proposed order to the Circuit Court
judge for entry On March 12016 the Circuit Court entered Respondent Judys Order as
submitted by Respondent Judy See Untitled Order Granting Plaintiffs Motion for Summary
Judgment [Appx Pgs 75-78] It is this March 12016 Untitled Order Granting Respondent
Judys Motion for Summary Judgment that Kurt Security is appealing herein
B STATEMENT OF FACTS
On April 1 2008 the Respondent Judy entered into an Asset Purchase Agreement with
the Brozik Defendants wherein Respondent Judy agreed to sell all of the assets it used in
connection with the operation of its security business in Charleston West Virginia in return for a
purchase price of $42099200 See Complaint [Appx Pgs 8-9]
At some point in early 2009 The Brozik Defendants ceased making the installment
payments required under the terms of the Asset Purchase Agreement At the time payments
ceased Respondent Judy alleged that the Brozik Defendants had only paid $20000000 of the
$42099200 owed See Complaint [Appx Pgs 8] As a result Respondent Judy filed suit in the
Circuit Court ofKanawha County West Virginia See Complaint [Appx Pgs 8-9] During this
same time Secure US was having other financial difficulties In order to help alleviate those
financial difficulties Secure US struck a deal with Mr Brozks close personal friend - Mylan
(P02255951 7
Puskar Mr Puskar through the Mylan Puskar Amended and Restated Revocable Trust Dated
December 26 2009 (hereinafter the Trust) purchased the outstanding debt of Secure US held
by Bank ofAmerica in the amount of $350000000 and extended him an additional line of
credit in the amount of $90000000 See Recitals ofPurchase and Sale Agreement dated April
19th 2012 [Appx Pg 35] In November of201O a Judgment was handed down against Secure
US in the Southern District of West Virginia by the Honorable John T Copenhaver The
Judgment was in favor of Security Alarm Financing Enterprise Inc (better known as SAFE) to
the tune of $1 13202842 Shortly thereafter SAFE began the process of executing on its
judgment1 SAFEs judgment however was junior in priority to the debt held by the Puskar
Trust
On October 62011 Respondent Judy and the Brozik Defendants reached an agreement
of settlement as to all issues pending before the Kanawha County Circuit Court from the
September 1 2009 Complaint The Brozik Defendants agreed to pay Respondent Judy the sum
of$19100000 over thirty-six (36) months The Brozik Defendants made all required payments
until around March 2014
On April 19 2012 Betty Parmer Mr Broziks aunt purchased the Secure US debt held
by the Puskar Trust (having a face value ofmore than $400000000) by paying the sum of
$250000000 to the Puskar Trust See Purchase and Sale Agreement dated April 19th 2012
[Appx Pgs 35-59] After purchasing the debt Betty Parmer claimed default against Secure US
and subsequently moved to have Secure USs assets sold at auction to satisfy the debt On May
52012 a secured party sale was held in Morgantown West Virginia With a credit bid of
$400000000 Mrs Parmer purchased the Assets of Secure US See Bill of Sale and Receipt
1 See Secure US Inc v Security Alarm Financing Enterprises (USDC NDW Va Civil Action No Il-MC-20) (Stamp)
(P022SS9S1 ) 8
dated May 7 2012 [Appx Pgs 60-62] Pursuant to West Virginia Code sect46-9-617(a) the effect
ofthis sale was to (1) transfer the operating assets of Secure US from the company to Betty
Parmer and (2) discharge all subordinate security interests and subordinate liens which
encumber the assets
Shortly after she obtained ownership of the assets Mrs Parmer retained her nephew Mr
Brozik and his newly-formed company MB Security LLC to manage her assets
In May of 20 14 MB Security and Mr Brozik were removed as manager of Betty
Parmers assets and Kourt Security was hired to step in and manage the assets until they could be
sold2 During this same time Respondent Judy moved to have the case reopened and judgment
rendered against the Brozik Defendants for the remaining balance on the monies owed pursuant
to the October 2011 settlement - $4718424 plus costs See Certified Docket Sheet Line 129
[Appx Pg 3]
On June 192014 the Kanawha County Circuit Court entered an order granting judgment
against the Brozik Defendants However Respondent Judy did not request and receive an
abstract of said judgment until December 102014 See Certified Docket Sheet Lines 171 and
172 [Appx Pg 4] The abstract ofjudgment was subsequently recorded in Monongalia County
- the county in which both Secure US Inc and Serbian Fonz LLC are primarily located and
where substantially all of their assets are located - on December 182014
On November 25 2014 pursuant to the terms and conditions of a Confidential Asset
Purchase Agreement Betty Parmer sold all of the assets she obtained from the May 5 2012
2 Shortly after Betty Parmer purchased the assets at the May 5 2012 secured party sale SAFE sued Betty Parmer along with Secure US Inc in federal court See Security Alarm Financing Enterprises Inc v Betty Parmer et al (USDC NDW Va Civil Action No l2-CV-880)
(PO~SS9S1) 9
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
LLC [Appx Pgs 15-20] On February 222016 Kourt Security filed is Response to Respondent
Judys Motion for Summary Judgment See Defendant Kourt Security Partners LLCs Response
to Plaintiffs Motion for Summary Judgment [Appx Pgs 21-34 Exhibits on Appx Pgs 35-74]
On February 262016 a hearing was held regarding Respondent Judys Motion for Summary
Judgment and the Circuit Court granted Respondent Judys Motion from the bench See
February 262016 Hearing Transcript [Appx Pgs 79-107] The Plaintiff was instructed to draft
the order granting such motion
On February 29 2016 Respondent Judy submitted its proposed order to the Circuit Court
judge for entry On March 12016 the Circuit Court entered Respondent Judys Order as
submitted by Respondent Judy See Untitled Order Granting Plaintiffs Motion for Summary
Judgment [Appx Pgs 75-78] It is this March 12016 Untitled Order Granting Respondent
Judys Motion for Summary Judgment that Kurt Security is appealing herein
B STATEMENT OF FACTS
On April 1 2008 the Respondent Judy entered into an Asset Purchase Agreement with
the Brozik Defendants wherein Respondent Judy agreed to sell all of the assets it used in
connection with the operation of its security business in Charleston West Virginia in return for a
purchase price of $42099200 See Complaint [Appx Pgs 8-9]
At some point in early 2009 The Brozik Defendants ceased making the installment
payments required under the terms of the Asset Purchase Agreement At the time payments
ceased Respondent Judy alleged that the Brozik Defendants had only paid $20000000 of the
$42099200 owed See Complaint [Appx Pgs 8] As a result Respondent Judy filed suit in the
Circuit Court ofKanawha County West Virginia See Complaint [Appx Pgs 8-9] During this
same time Secure US was having other financial difficulties In order to help alleviate those
financial difficulties Secure US struck a deal with Mr Brozks close personal friend - Mylan
(P02255951 7
Puskar Mr Puskar through the Mylan Puskar Amended and Restated Revocable Trust Dated
December 26 2009 (hereinafter the Trust) purchased the outstanding debt of Secure US held
by Bank ofAmerica in the amount of $350000000 and extended him an additional line of
credit in the amount of $90000000 See Recitals ofPurchase and Sale Agreement dated April
19th 2012 [Appx Pg 35] In November of201O a Judgment was handed down against Secure
US in the Southern District of West Virginia by the Honorable John T Copenhaver The
Judgment was in favor of Security Alarm Financing Enterprise Inc (better known as SAFE) to
the tune of $1 13202842 Shortly thereafter SAFE began the process of executing on its
judgment1 SAFEs judgment however was junior in priority to the debt held by the Puskar
Trust
On October 62011 Respondent Judy and the Brozik Defendants reached an agreement
of settlement as to all issues pending before the Kanawha County Circuit Court from the
September 1 2009 Complaint The Brozik Defendants agreed to pay Respondent Judy the sum
of$19100000 over thirty-six (36) months The Brozik Defendants made all required payments
until around March 2014
On April 19 2012 Betty Parmer Mr Broziks aunt purchased the Secure US debt held
by the Puskar Trust (having a face value ofmore than $400000000) by paying the sum of
$250000000 to the Puskar Trust See Purchase and Sale Agreement dated April 19th 2012
[Appx Pgs 35-59] After purchasing the debt Betty Parmer claimed default against Secure US
and subsequently moved to have Secure USs assets sold at auction to satisfy the debt On May
52012 a secured party sale was held in Morgantown West Virginia With a credit bid of
$400000000 Mrs Parmer purchased the Assets of Secure US See Bill of Sale and Receipt
1 See Secure US Inc v Security Alarm Financing Enterprises (USDC NDW Va Civil Action No Il-MC-20) (Stamp)
(P022SS9S1 ) 8
dated May 7 2012 [Appx Pgs 60-62] Pursuant to West Virginia Code sect46-9-617(a) the effect
ofthis sale was to (1) transfer the operating assets of Secure US from the company to Betty
Parmer and (2) discharge all subordinate security interests and subordinate liens which
encumber the assets
Shortly after she obtained ownership of the assets Mrs Parmer retained her nephew Mr
Brozik and his newly-formed company MB Security LLC to manage her assets
In May of 20 14 MB Security and Mr Brozik were removed as manager of Betty
Parmers assets and Kourt Security was hired to step in and manage the assets until they could be
sold2 During this same time Respondent Judy moved to have the case reopened and judgment
rendered against the Brozik Defendants for the remaining balance on the monies owed pursuant
to the October 2011 settlement - $4718424 plus costs See Certified Docket Sheet Line 129
[Appx Pg 3]
On June 192014 the Kanawha County Circuit Court entered an order granting judgment
against the Brozik Defendants However Respondent Judy did not request and receive an
abstract of said judgment until December 102014 See Certified Docket Sheet Lines 171 and
172 [Appx Pg 4] The abstract ofjudgment was subsequently recorded in Monongalia County
- the county in which both Secure US Inc and Serbian Fonz LLC are primarily located and
where substantially all of their assets are located - on December 182014
On November 25 2014 pursuant to the terms and conditions of a Confidential Asset
Purchase Agreement Betty Parmer sold all of the assets she obtained from the May 5 2012
2 Shortly after Betty Parmer purchased the assets at the May 5 2012 secured party sale SAFE sued Betty Parmer along with Secure US Inc in federal court See Security Alarm Financing Enterprises Inc v Betty Parmer et al (USDC NDW Va Civil Action No l2-CV-880)
(PO~SS9S1) 9
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
Puskar Mr Puskar through the Mylan Puskar Amended and Restated Revocable Trust Dated
December 26 2009 (hereinafter the Trust) purchased the outstanding debt of Secure US held
by Bank ofAmerica in the amount of $350000000 and extended him an additional line of
credit in the amount of $90000000 See Recitals ofPurchase and Sale Agreement dated April
19th 2012 [Appx Pg 35] In November of201O a Judgment was handed down against Secure
US in the Southern District of West Virginia by the Honorable John T Copenhaver The
Judgment was in favor of Security Alarm Financing Enterprise Inc (better known as SAFE) to
the tune of $1 13202842 Shortly thereafter SAFE began the process of executing on its
judgment1 SAFEs judgment however was junior in priority to the debt held by the Puskar
Trust
On October 62011 Respondent Judy and the Brozik Defendants reached an agreement
of settlement as to all issues pending before the Kanawha County Circuit Court from the
September 1 2009 Complaint The Brozik Defendants agreed to pay Respondent Judy the sum
of$19100000 over thirty-six (36) months The Brozik Defendants made all required payments
until around March 2014
On April 19 2012 Betty Parmer Mr Broziks aunt purchased the Secure US debt held
by the Puskar Trust (having a face value ofmore than $400000000) by paying the sum of
$250000000 to the Puskar Trust See Purchase and Sale Agreement dated April 19th 2012
[Appx Pgs 35-59] After purchasing the debt Betty Parmer claimed default against Secure US
and subsequently moved to have Secure USs assets sold at auction to satisfy the debt On May
52012 a secured party sale was held in Morgantown West Virginia With a credit bid of
$400000000 Mrs Parmer purchased the Assets of Secure US See Bill of Sale and Receipt
1 See Secure US Inc v Security Alarm Financing Enterprises (USDC NDW Va Civil Action No Il-MC-20) (Stamp)
(P022SS9S1 ) 8
dated May 7 2012 [Appx Pgs 60-62] Pursuant to West Virginia Code sect46-9-617(a) the effect
ofthis sale was to (1) transfer the operating assets of Secure US from the company to Betty
Parmer and (2) discharge all subordinate security interests and subordinate liens which
encumber the assets
Shortly after she obtained ownership of the assets Mrs Parmer retained her nephew Mr
Brozik and his newly-formed company MB Security LLC to manage her assets
In May of 20 14 MB Security and Mr Brozik were removed as manager of Betty
Parmers assets and Kourt Security was hired to step in and manage the assets until they could be
sold2 During this same time Respondent Judy moved to have the case reopened and judgment
rendered against the Brozik Defendants for the remaining balance on the monies owed pursuant
to the October 2011 settlement - $4718424 plus costs See Certified Docket Sheet Line 129
[Appx Pg 3]
On June 192014 the Kanawha County Circuit Court entered an order granting judgment
against the Brozik Defendants However Respondent Judy did not request and receive an
abstract of said judgment until December 102014 See Certified Docket Sheet Lines 171 and
172 [Appx Pg 4] The abstract ofjudgment was subsequently recorded in Monongalia County
- the county in which both Secure US Inc and Serbian Fonz LLC are primarily located and
where substantially all of their assets are located - on December 182014
On November 25 2014 pursuant to the terms and conditions of a Confidential Asset
Purchase Agreement Betty Parmer sold all of the assets she obtained from the May 5 2012
2 Shortly after Betty Parmer purchased the assets at the May 5 2012 secured party sale SAFE sued Betty Parmer along with Secure US Inc in federal court See Security Alarm Financing Enterprises Inc v Betty Parmer et al (USDC NDW Va Civil Action No l2-CV-880)
(PO~SS9S1) 9
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
dated May 7 2012 [Appx Pgs 60-62] Pursuant to West Virginia Code sect46-9-617(a) the effect
ofthis sale was to (1) transfer the operating assets of Secure US from the company to Betty
Parmer and (2) discharge all subordinate security interests and subordinate liens which
encumber the assets
Shortly after she obtained ownership of the assets Mrs Parmer retained her nephew Mr
Brozik and his newly-formed company MB Security LLC to manage her assets
In May of 20 14 MB Security and Mr Brozik were removed as manager of Betty
Parmers assets and Kourt Security was hired to step in and manage the assets until they could be
sold2 During this same time Respondent Judy moved to have the case reopened and judgment
rendered against the Brozik Defendants for the remaining balance on the monies owed pursuant
to the October 2011 settlement - $4718424 plus costs See Certified Docket Sheet Line 129
[Appx Pg 3]
On June 192014 the Kanawha County Circuit Court entered an order granting judgment
against the Brozik Defendants However Respondent Judy did not request and receive an
abstract of said judgment until December 102014 See Certified Docket Sheet Lines 171 and
172 [Appx Pg 4] The abstract ofjudgment was subsequently recorded in Monongalia County
- the county in which both Secure US Inc and Serbian Fonz LLC are primarily located and
where substantially all of their assets are located - on December 182014
On November 25 2014 pursuant to the terms and conditions of a Confidential Asset
Purchase Agreement Betty Parmer sold all of the assets she obtained from the May 5 2012
2 Shortly after Betty Parmer purchased the assets at the May 5 2012 secured party sale SAFE sued Betty Parmer along with Secure US Inc in federal court See Security Alarm Financing Enterprises Inc v Betty Parmer et al (USDC NDW Va Civil Action No l2-CV-880)
(PO~SS9S1) 9
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
secured party sale to Kourt Security Partners LLC See Report on Status of Private Sale filed
December 12014 [Appx Pgs 63-66]
STANDARD OF REVIEW
Under West Virginia law the standard of review on appeal from an order granting (
summary judgment pursuant to Rule 56 of the West Virginia Rules of Civil Procedure is de
novo W VA R CIV P 56(c) See also Painter v Peavy 451 SE2d 755 758 192 W Va 189
192 (1994)
Under Rule 56(c) summary judgment is proper only where the moving party shows there
is no genuine issue ofmaterial fact and that it is entitled to judgment as a matter of law Painter
451 SE2d at 758 The circuit courts function at the summary judgment stage is not to weigh
the evidence and determine the truth of the matter but to determine whether there is a genuine
issue for trial Anderson v Liberty Lobby Inc 477 US 242 249 106 SCt 2505 2511 (1986)
Furthermore when analyzing any permissible inference from the underlying facts of the case
must be viewed in the light most favorable to the party opposing the motion Andrick v Town
ofBuckhannon 187 W Va 706421 SE2d 247 (1992)
SUMMARY OF ARGUMffiNT
The law and facts of this case not only require reversal of the order granting Respondent
Judys Motion for Summary Judgment but also require as a matter oflaw the granting of
summary judgment in favor ofKourt Security Respondent Judys Motion for Summary
Judgment is based upon the inaccurate position that Betty Parmer acquired Secure US and sold
it to Kourt Security Partners without notice to plaintiffs or any payment to plaintiffs and the
unsupported position that Kourt Security took the assets cum onere or subject to a charge or
P022SS9Si 10
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
burden See Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75shy
78] Both of these positions are wholly-unfounded in the record of this civil action
In addition the Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary
Judgment is erroneous and should be reversed for three (3) reasons First Respondent Judy failed
to put forth any evidence showing there is no genuine issue of material fact that Betty Parmer
had notice that Respondent Judy had (i) filed suit against the Brozik Defendants or (ii) had
obtained judgment andor an agreement to pay the monies owed Second Respondent Judy
failed to put forth any evidence showing there is no genuine issue ofmaterial fact as to the
commercial reasonableness of the May 5 2012 secured party sale and as a result any lien or
debt encumbering the assets at that time would have been extinguished pursuant to West
Virginias Uniform Commercial Code (sect 46-9-617) Third the Circuit Court failed to take into
account West Virginia statutory law regarding Writs ofExecution on personal property (Writ of
Fieri Facias) which does not become a lien encumbering such property until the writ is delivered
to the Sheriff Respondent Judy did not obtain a judgment against the Brozik Defendants from
the Kanawha County Circuit Court until June 192014 See Docket Sheet Line 136 [Appx Pg
3] Furthermore a writ of execution (writ of fieri facias) was not obtained by the Judy
Respondents until July 25 2014 - over two years after Betty Parmer purchased the assets from
Secure US
As a result ofthese errors West Virginia law requires not only the reversal of the Circuit
Courts untitled order granting Respondent Judys Motion for Summary Judgment it requires
judgment as a matter oflaw to be ruled in favor ofKourt Security
P022SS9Si 11
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
STATEMENT REGARDING ORAL ARGUMENT AND DECISION
This appeal involves assignments of error in the application of settled law as well as
insufficient evidence of a result against the weight of the evidence and thus is appropriate for
Rule 19 Oral Argument pursuant to Rule 19( a)( 1) and (3) of the West Virginia Rules of
Appellate Procedure
ARGUMENT
A The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because the Circuit Court failed to consider West Virginias statutory law regarding Writs of Execution on personal property (Writ of Fieri Facias)
The lien ofa judgment is a right created by statute and the legislature has prescribed
requirements for the preservation of that right Lamon v Gold 79 ~E 728 729 72 W Va 618
(1913) Noncompliance with those prescribed requirements will operate to divest and defeat that
right Id Furthermore a judgment lien can only attach to the interest of the judgment debtor
BrownvHodgman 19SE2d910 124 W Va 136(1942)3 In addition alienofaperfected
execution is both immediate and prospective but not retroactive (Emphasis Added)
Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
An execution on a judgment obtained for money is known as a writ of fieri facias which
becomes a lien on personal property or estate or interest in estate owned by judgment debtor at
time writ is delivered to sheriff W Va Code sect 38-4-5 (2016) Barber v Barber 464 SE2d
358 195 W Va 38 (1995) West Virginia Code sect 38-4-8 states the process that must be
following in order to obtain a proper lien encumbering personal property
A writ of fieri facias or execution shall create a lien from the time it is delivered to the sheriff or other officer to be executed upon all of the personal property or the estate or interest therein
3 We believe that the controlling principle is that in the absence of some additional showing the lien ofa judgment attaches to the interest of the judgment debtor nothing more and nothing less Id (citing Westinghouse Lamp Co v Ingram 79 W Va 220 90 SE 837 (1916) Springston v Powell 113 W Va 638 169 SE 459 (1933raquo
P022SS9S1) 12
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
owned by the judgment debtor at the time of such deliver of the writ or which he may acquire on or before the return day thereof although such property was not levied on or capable of being levied on under the provisions of section six (sect 38-4-6) of this article (Emphasis Added)
W Va Code sect 38-4-8 (2016)
In this litigation the record shows that Respondent Judy did not obtain a judgment
against the Brozik Defendants (and specifically Secure US) until June 162014 See Certified
Docket Report Line 136 [Appx Pgs 3] Furthermore Respondent Judy did not obtain a writ of
execution (writ of fieri facias) until July 252014 and pursuant to West Virginia law the
judgment would not become a lien against the Brozik Defendants assets until the writ of
execution (writ of fieri facias) was properly issued and delivered to the Sheriff W Va Code sect
38-4-8 Barber v Barber 464 SE2d 358 195 W Va 38 (1995) As noted earlier this did not
happen until July 25 2014 Certified Docket Report Line 137 [Appx Pgs 3] Thus
Respondent Judys lien did not begin to encumber the Brozik Defendants (and specifically
Secure USs) assets until over two years after Betty Parmer purchased substantially all of Secure
USs assets at a secured party sale4 See Bill of Sale and Receipt dated May 7 2012 [Appx Pgs
60-62] This would mean that as a matter oflaw Respondent Judys judgment lien did not
attach to the assets of Betty Parmer that were eventually purchased by Kourt Security After all
a lien created pursuant to a perfected execution is both immediate and prospective but not
retroactive (Emphasis Added) Hartman v Corpening 178 SE 430 116 W Va 31 (1935)
As a result of that secured party sale and as a result of a writ of execution not being
issued until over two years after Betty Parmer purchased and obtained the assets Betty Parmer
became a purchaser assignee ofthe property for valuable consideration and thus obtained the
(P022SS9SI) 13
4
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
assets free and clear of any liens or other encumbrances - including the alleged encumbrances of
Respondent Judy See W Va Code sect 38-4-6 (2016) Hartman v Corpening 178 SE 430 116
W Va 31 (1935) It should also be noted that Respondent Judy never moved the Kanawha
County Circuit Court for leave to add Betty Parmer as a defendant after she became the owner of
substantially all Secure USs assets by submitting the highest bid at the secured party sale See
Certified Docket Report [Appx Pgs 1-5] Instead Respondent Judy chose to continue to pursue
the Brozik Defendants See Certified Docket Report [Appx Pgs 1-5]
When the Circuit Court ofKanawha County granted Respondent Judys Motion for
Summary Judgment it failed to take into account the fact that Betty Parmer became the owner of
the assets over two years before the Judy Respondents obtained its judgment and writ of
execution As a result when Kourt Security purchased the assets from Betty Parmer in
November of2014 Respondent Judys judgment against the Brozik defendant did not attach to
Betty Parmers assets and thus does not encumber any of the assets Kourt Security subsequently
purchased from Betty Parmer and now holds As a result The Circuit Court ofKanawha
Countys Untitled Order Granting Respondent Judys Motion for Summary Judgment is
erroneous and as a matter of law must be reversed
B The Circuit Courts Order entered March 1 2016 is erroneous and should be reversed because judgment was entered against Kourt Security without considering whether or not Betty Parmer had knowledge andor notice of the Respondents lien encumbering the Assets when they were purchased at the May 5 2012 secured party sale as required by W Va Code sect 38-4-9 (2016)
Pursuant to West Virginias black letter law
the lien ofa writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien for a valuable consideration without notice of such lien unless at the time of such purchase or assignment the writ shall have been actually leVied upon the property and the property shall have been in the actual possession of the officer ofsome person other than
(P02255951) 14
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
the judgment debtor holding such property for the officer
w Va Code sect 38-4-9 (2016) In its Motion for Summary Judgment Respondent Judy took the
position that Betty Parmer had notice of their judgment andor lien Motion for Summary
Judgment Against Defendant Kourt Security Partners LLC [Appx Pg 18] However no
evidence was put forth by Respondent Judy establishing that Betty Parmer had actual or
constructive notice ofRespondent Judys encumbrances and certainly not enough to establish
that there was no genuine issue of material fact with respect to whether Betty Parmer had actual
or constructive notice of Respondent Judys judgment andor lien There is but one self-severing
and conclusory line addressing Betty Parmers knowledge ofthe lien andor judgment Mitch
Broziks Aunt Betty (parmer) knew all about Mitchs problems and the judgment against him
and his companies Motion for Summary Judgment Against Defendant Kourt Security
Partners LLC [Appx Pg 18] This is not enough for one to properly conclude there is not
genuine issue of material fact as to Betty Parmers actual or constructive knowledge of
Respondent Judys judgment andor lien As a result W Va Code sect 38-4-9 becomes applicable
and Betty Parmer obtained the assets without them being encumbered by a Respondent Judy
lien5
Accordingly the evidence put forth and the facts surrounding this case establish that
Respondent Judy wholly failed to establish there was no genuine issue of material fact as to
Betty Parmers knowledge of a judgment or lien encumbering the Assets As a result the
granting ofRespondent Judys Motion for Summary Judgment in the Kanawha County Circuit
Court was erroneous and should be reversed
S It is undisputed that Betty Parmer purchased the assets for valuable consideration She was the high bidder at the May 5 2012 Secured Party Sale held on May 5 2012 See Bill of Sale and Receipt dated May 72012 [Appx Pgs 60-62]
P0225595 J 15
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
C The Circuit Courts Order entered March 1 2006 is erroneous and should be reversed because the Circuit Court ignored the fact that the May 5 2012 secured party sale was commercially reasonable and thus extinguished aU subordinate debt interests shyincluding that of the Respondent Judy
In its Motion for Summary Judgment Respondent Judy failed to put forth any evidence shy
or even allege - that the secured party sale held on May 5 2012 was not commercially
reasonable and thus failed to extinguish subordinate interests and subsequent liens See Motion
for Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20]
West Virginias Uniform Commercial Code governs the disposition ofcollateral after a default
See W Va Code sect 46-9-610 Specifically it states that [a]fter default a secured party may sell
lease license or otherwise dispose ofany or all collateral in its present condition or following
any commercially reasonable preparation or processing Id at 61O(a) West Virginia requires
all aspects of the sale be commercially reasonable See W Va Code sect 46-9-610(b) See also
Bank of Chapmanville v Workman 406 SE2d 5861-62 185 W Va 161 164-65 (1991)
Whether or not aspects of the sale are commercially reasonable are questions of fact not law
See In re Godfrey 537 BR 271 282 87 UCC RepServ2d 866 Case No 112-bk-1473 Adv
Proc No1 13-ap-24 (NDW Va Bankr Ct 2015)6
The West Virginia Code also dictates the status of the collateral after disposition [a]
secured partys disposition ofcollateral after default (1) transfers to a transferee for value all of
the debtors rights in the collateral (2) discharges the security interest under which the
disposition is made and (3) Discharges any subordinate interest or other subordinate lien
(Emphasis added) W Va Code sect 46-9-617(a)(1-3) (2016) If we assume for the sake of
argument that Respondent Judy did have an interest or lien which encumbered the Brozik
6 In Summary Issues regarding commercially reasonable disposition notification and the timing of the notification are questions of fact - not law Id at 282
(P0225595I ) 16
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
Defendants (and specifically Secure USs) property on or before May 5 2012 this lien would
have been junior to that ofBetty Panner and thus would have been extinguished after the secured
party sale pursuant to W Va Code sect 46-9-617(a)(l-3) The only way this would not have been
the case is if the sale was ruled not commercially reasonable In their argument within their
motion for summary judgment and their argument at the hearing on February 26 2016
Respondent Judy did not put forth documents affidavits testimony statements or other
evidence which would support the position that would be necessary for a motion for summary
judgment to be properly granted there is no genuine issue ofmaterial fact as to the commercial
reasonableness of the May 5 2012 secured party sale
When Kourt Security argued as much in its response to Plaintiffs Motion for Summary
Judgment Respondent Judy (1) did not file a reply refuting Kourt Securitys argument and (2)
did not address Kourt Securitys argument at the Febuary 262016 hearing See Defendant
Kourt Security Partners LLCs Response to Plaintiffs Motion for Summary Judgment [Appx
Pgs 30-32] See also The fact that - pursuant to W Va Code sect 46-9-6 I 7(a)(l-3) - the May 5
2012 secured party sale would have worked to discharge any subordinate interest or lien
encumbering the Secure US assets Betty Panner was purchasing was seemingly ignored by both
Respondent Judy and the Circuit Court of Kanawha County See Plaintiffs Motion for
Summary Judgment against Defendant Kourt Security Partners LLC [Appx Pgs 15-20] See
also February 262016 Motion for Summary Judgment Hearing Transcript [Appx Pgs 96-98]
See also Untitled Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-78]
When the facts from the record are taken in the light most favorable to the non-moving
party as required under a Rule 56 motion for summary judgment analysis the Circuit Court of
Kanawha Countys order granting judgment in favor ofRespondent Judy was undoubtedly
P022SS9S1 17
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
erroneous Consequently because Respondent Judy wholly failed to establish by way of
submitted evidence that there is no genuine issue ofmaterial fact that the May 5 2012 secured
party sale was not commercially reasonable and the Circuit Court ofKanawha Countys untitled
order granting Respondent Judys Motion for Summary Judgment must be reversed
D The Circuit Courts Order entered March 12016 is erroneous and should be revered because the Circuit Court made numerous factual fmdings that are not supported by the record as required by West Virginia law
The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment
entered March 1 2016 must be reversed and the case remanded for additional factual
consideration because the Circuit Court made numerous findings of facts which were either (1 )
completely unsupported by the record or (2) which were contradicted by the record This
violates Headnote 3 and 4 of South Side Lumber Company v Stone Construction Company 152
SE2d 721 151 W Va 439 (1967) and as a result the Order should be reversed and remanded
for further consideration
First the Circuit Courts Untitled Order finds that Betty Parmer solicited the defendant
Kourt Security Partners LLC dba Select Security to help her assist her nephew Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 75-76] This statement is
incorrect and is not supported in any way by the record Kourt Security was hired by Betty
Parmer to manage her assets after she fIred MB Security LLC and Mitchell Brozik and forced
him out by Court Order entered May 6 2014 in Civil Action No 13-C-651 in the Circuit Court
ofMonongalia County West Virginia Kourt Security never assisted Mr Brozik and his
companies and Respondent Judy has put forth no evidence whatsoever asserting as much
Second The Circuit Courts Untitled Order fmds that [o]n May 7 2012 Betty Parmer
purchased Secure US Inc and all of its assets from herself by virtue of the security agreement
(P02255951) 18
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
she bought from the Milan Puskar Trust in the northern federal district court case Untitled
Order Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 77] This finding is
contradictory to the record of this case Betty Parmer did not purchase Secure US Inc Betty
Parmer purchased substantially all of the assets of Secure US Inc See Bill of Sale and Receipt
dated May 72012 [Appx Pgs 60-62] Nowhere in the record is there evidence establishing that
Secure US Inc was purchased by Betty Parmer and the Bill of Sale and Receipt dated May 7
2012 - which clearly Sh9wS that only assets were purchased - was never refuted by Respondent
Judy There is a very big difference - both legally and factually - between purchasing all of the
stock ofa company and purchasing substantially all of its assets As a result this finding was
incorrect and erroneous
Third The Circuit Courts Untitled Order finds that [i]n May 2014 she (Betty Parmer)
entered into a management agreement with defendant Kourt Security Partners dba Select
Security at which time Kourt was already aware ofplaintiffs judgment Untitled Order
Granting Plaintiffs Motion for Summary Judgment [Appx Pgs 76] This finding is incorrect
and contrary to the evidence in the record Respondent Judy did not obtain its judgment against
Secure US Inc until June 162014 - over one month after Kourt Security was hired by Betty
Parmer to manage her assets See Certified Docket Report Line 136 [Appx Pgs 3] It is simply
impossible for Kourt Security to have had knowledge about a judgment before said judgment
was even issued
As Headnotes 3 and 4 in South Side Lumber Company v Stone Construction Company
along with Rule 52(a) of the West Virginia Rules of Civil Procedure make clear the Court must
adopt fmdings of fact and conclusions of law that are supported by the record See W VA R
(P0225595i) 19
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
CIV P 52(a) See also Headnotes 3 and 4 Southside Lumber Company v Stone Construction
Company 152 SE2d 721 151 W Va 439 (1967) The Court explained why within its opinion
The foregoing provision ofthe rule was intended to require the trial judge to make his fmdings of
facts prior to or at the time judgment is entered in the case The reason for such requirement is
that findings of facts are helpful in the decision ofa case are important factors in the proper
application ofthe doctrines ofres judicata and estoppel by judgment and are also an aid to an
appellate court in considering a case on review Id at 725 and 443
Here the serious errors in the factual fmdings of the Circuit Courts Untitled Opinion
renders it fatally deficient and is the type oferror that rises to the level or requiring the Order to
be reversed and remanded for further consideration Failure to do so would allow wholly
unproven - and at times contradicted ~ facts to be established as truth and act as an injustice to
~ourt Security
PRAYER FOR RELIEF
WHEREFORE for the reasons stated herein Petitioner Kourt Security Partners LLC
pray that their petition for appeal be granted and that they be granted the following relief
1 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider West Virginia statutory law regarding Writs ofExecution on Personal
Property (Writ ofFieri Facias)
2 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and reman4ed with specific instructions that the Circuit Court is to
properly consider whether or not Betty Parmer had actual or constructive knowledge andor
notice ofRespondent Judys judgment andor lien
P022SS9S1 20
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
3 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
properly consider whether or not the May 5 2012 secured party sale was commercially
reasonable and thus extinguished all subordinate debt interests
4 The Circuit Courts Untitled Order Granting Plaintiffs Motion for Summary Judgment be
vacated and reversed and remanded with specific instructions that the Circuit Court is to
after additional briefing and additional argument issue findings of fact that are properly
supported by the record and
5 Grant any and all other relief this Honorable Court deems reasonable and just
Respectfully Submitted
KOURTSECUErrTYPARTNERSLLC Petitioners by Counsel
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeffkaiserpgkacom
P02255951 21
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22
CERTIFICATE OF SERVICE
I Jeffery D Kaiser Esq hereby certify that I served the attached Petitioners Brief on
the parties below by placing the same in the United States Mail first class postage prepaid on
this 13th day of September 2016
Mr Charles E Hurt Esq The Law Offices ofCharles E Hurt 1671 Woodvale Drive Charleston WV 25314 Counsel for Respondents Judys Locksmiths Inc And Judith J Ransom
Mr Mitchell Brozik 3101 N Greystone Drive Morgantown WV 26508 Owner ofSecure Us Inc and Serbain Fonz LLC
Charles J Kaiser Jr Esq (WV Bar No 1946) Jeffery D Kaiser Esq (WV Bar No 12284) PHILLIPS GARDILL KAISER amp ALTMEYER PLLC 61 Fourteenth Street Wheeling WV 26003 P (304) 232-6910 F (304) 232-4918 E cjkaiserpgkacom amp jeftkaiserpgkacom
(P02255951) 22