Mitchell Brozik v. Betty Parmer ( 2019 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
September 3, 2019
Mitchell Brozik, EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
Defendant Below, Petitioner
OF WEST VIRGINIA
vs) No. 18-0565 (Monongalia County 13-C-651)
Betty Parmer,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Petitioner Mitchell Brozik, pro se, appeals the May 25, 2018, order of the Circuit Court
of Monongalia County directing (1) petitioner’s former wife to turn items of petitioner’s personal
property in her possession over to the court’s general receiver in partial satisfaction of a
judgment against petitioner held by Respondent Betty Parmer; and (2) petitioner’s attorney in his
divorce case to pay to respondent $5,000 formerly held in in the attorney’s client trust account.
Respondent, by counsel S. Sean Murphy, filed a summary response in support of the circuit
court’s order.
The Court has considered the parties’ briefs and the record on appeal.1 The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
Petitioner is respondent’s nephew. In Brozik v. Parmer, Nos. 16-0238, 16-0292, and 16-
0400, 2017 WL 65475 (W.Va. Jan. 6, 2017) (memorandum decision), we affirmed the circuit
court’s judgment against petitioner following a jury trial in respondent’s favor in the amount of
$1.5 million for breach of fiduciary duties, breach of contract, and fraud, and an additional
1
In addition to the appellate record, we take judicial notice of a February 9, 2018, agreed
order and a February 23, 2018, supplemental temporary order entered by the Family Court of
Monongalia County in petitioner’s divorce case, No. 16-D-283.
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$200,000 in punitive damages, for a total award of $1.7 million. Shortly thereafter, a final
divorce decree was entered on March 15, 2017, by the Family Court of Monongalia County in
petitioner’s divorce case, No. 16-D-283.
At a February 1, 2018, hearing before the family court, petitioner and his former wife
reached an agreement regarding the distribution of assets. Petitioner’s former wife agreed to
relinquish her ownership of the marital home, which was titled solely in her name, and to return
items of petitioner’s personal property to him in exchange for $60,000 to be paid in installments.
Petitioner’s former wife further agreed to provide him with a detailed list of his personal
property in her possession on or before February 10, 2018, and petitioner agreed to make the first
installment payment, in the amount of $5,000, by 4:00 p.m. on February 9, 2018. The family
court accepted the proposed agreement regarding the distribution of assets and entered an agreed
order on February 9, 2018. However, at a February 23, 2018, hearing, petitioner asserted that his
former wife failed to provide him with a detailed list of his personal property in her possession
and argued that he should not be required to make the first installment payment until she did so.
Accordingly, by order entered February 23, 2018, the family court found that petitioner and his
former wife were incapable of cooperating in the distribution of their assets, and therefore, the
marital home was to be sold with the net proceeds split between them.
Petitioner sought to prohibit the family court from enforcing its February 23, 2018, order
by filing a petition for a writ of prohibition in the circuit court. In that matter, No. 18-C-95,
respondent filed a motion to intervene in an effort to execute on her judgment against petitioner
after becoming aware that petitioner’s former wife possessed items of petitioner’s personal
property and that petitioner’s divorce attorney had $5,000 in the attorney’s client trust account
(in anticipation of making the first installment payment to petitioner’s former wife). At a March
21, 2018, hearing, the circuit court denied respondent’s motion to intervene in the prohibition
proceeding. At an April 2, 2018, hearing, the circuit court vacated the family court’s February
23, 2018, order, directed petitioner’s former wife to return his personal property to him, and
directed petitioner’s divorce attorney to pay the $5,000 to petitioner’s former wife “on this day.”
The circuit court subsequently entered its order on April 17, 2018. Meanwhile, on or about April
10, 2018, respondent filed a motion to intervene in petitioner’s divorce case. By order entered
April 23, 2018, the family court denied respondent’s motion to intervene and found that the
circuit court’s April 17, 2018, order to be controlling in petitioner’s divorce case.
In the parties’ civil action, respondent obtained a writ of execution on March 16, 2018,
and served suggestions of personal property, pursuant to West Virginia Code § 38-5-10, on
petitioner’s divorce attorney on March 22, 2018, and on petitioner’s former wife on April 2,
2018. Petitioner’s former wife filed an answer to the suggestion on April 6, 2018. Petitioner’s
divorce attorney filed an answer on April 2, 2018, and an amended answer on April 19, 2018. On
April 10, 2018, respondent filed a motion to compel petitioner’s former wife to turn over
petitioner’s personal property and to compel petitioner’s divorce attorney to pay respondent
$5,000. At an April 30, 2018, hearing, petitioner’s former wife informed the circuit court that she
was willing to turn petitioner’s personal property over to the court pursuant to the suggestion
served on her. The circuit court directed that the property be turned over to the court’s general
receiver to be sold in partial satisfaction of respondent’s judgment against petitioner. The circuit
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court noted that, before such sales, the personal property items would be appraised, and
petitioner would be allowed to raise whatever exemptions that the law allows against the
execution of a judgment lien.
Regarding the $5,000 held in petitioner’s divorce attorney’s client trust account, the
attorney informed the circuit court that he previously disbursed the money to petitioner’s former
wife on April 2, 2018, pursuant to the court’s ruling in the prohibition proceeding that he pay the
$5,000 “on [that] day.” Petitioner’s divorce attorney noted that “a third party” provided the
$5,000 that the attorney disbursed to petitioner’s former wife because the third party was
purchasing the marital home and “[petitioner would] rent the home from the third party.” The
circuit court found that petitioner’s divorce attorney was required to pay respondent $5,000 given
his knowledge at the time he disbursed the $5,000 out of the client trust account that the funds
were subject to execution by respondent. Accordingly, by order entered May 25, 2018, the circuit
court directed petitioner’s former wife to relinquish his personal property to the court’s general
receiver and directed petitioner’s divorce attorney to pay respondent $5,000.
It is the circuit court’s May 25, 2018, order that petitioner now appeals. “This Court
reviews the circuit court’s final order and ultimate disposition under an abuse of discretion
standard. We review challenges to findings of fact under a clearly erroneous standard;
conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469
S.E.2d 114 (1996).
On appeal, petitioner argues that the denials of respondent’s motions to intervene in the
divorce/prohibition proceedings constituted decisions on the merits on her claims that she could
execute on petitioner’s personal property in his former’s wife’s possession and on the $5,000
held by his divorce attorney in the attorney’s client trust account. Accordingly, petitioner argues
that the doctrine of res judicata barred respondent from making similar claims in the parties’ civil
action. Respondent counters that the doctrine of res judicata does not apply to this case. We
agree with respondent.
For the doctrine of res judicata to apply, three elements must coexist: (1) a final
adjudication on the merits in the first proceeding; (2) the same parties, or persons in privity with
those same parties, as the first proceeding; and (3) a cause of action in the second proceeding that
is identical to the cause of action determined in the first proceeding—or such that it could have
been resolved, had it been presented, in the first proceeding. See Syl. Pt. 4, Blake v. Charleston
Area Med. Ctr., Inc., 201 W. Va. 469, 498 S.E.2d 41 (1997). We find that none of the necessary
elements exist in this case. While the divorce/prohibition proceedings included an adjudication
of petitioner’s and his former wife’s rights regarding the distribution of assets, respondent was
not a party to that adjudication given the denials of her motions to intervene. Likewise,
respondent’s rights to execute on petitioner’s personal property and the $5,000 were not
adjudicated as both the circuit court and the family court determined that respondent’s rights
were not at issue in petitioner’s divorce case.
Petitioner further argues that, by the time the circuit court ordered his divorce attorney to
pay respondent $5,000, the attorney had already disbursed the $5,000 out of the client trust
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account.2 In Syllabus Point 3 of Park v. McCauley, 67 W. Va. 104, 67 S.E. 174 (1910), we held
that a person who disburses a judgment debtor’s money despite notice of the judgment lien “is
liable therefor” to the judgment creditor. See Hatfield ex rel. Rose v. Cruise, 121 W. Va. 742,
745, 6 S.E.2d 243, 245 (1939) (citing Park). Therefore, based on our review of the record, we
concur in the circuit court’s finding that petitioner’s divorce attorney was required to pay
respondent $5,000 given his knowledge at the time he disbursed the $5,000 out of the client trust
account that it was subject to execution by respondent.
For the foregoing reasons, we affirm the circuit court’s May 25, 2018, order directing (1)
petitioner’s former wife to turn items of petitioner’s personal property in her possession over to
the court’s general receiver in partial satisfaction of respondent’s judgment against petitioner;
and (2) petitioner’s divorce attorney to pay to respondent $5,000 formerly held in the attorney’s
client trust account.
Affirmed.
ISSUED: September 3, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
2
As part of this argument, petitioner notes that the $5,000 held in the client trust account
did not come from him. However, we find that petitioner fails to develop the separate argument
that the $5,000 was not his property; therefore, we decline to address that issue. See State v.
LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621 (1996) (stating that “[a]lthough we liberally
construe briefs in determining issues presented for review, issues which are not raised, and those
mentioned only in passing but are not supported with pertinent authority, are not considered on
appeal”); State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101, 111 n.16 (1995) (finding that
“casual mention of an issue in a brief is cursory treatment insufficient to preserve the issue on
appeal”) (Internal quotations and citations omitted.).
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