United States District Court, N.D. West Virginia
THE ESTATE OF LOIS M. LAROSA, by JULIE GARVIN and JOHN JOSEPH BELCASTRO, II, Co-Executors, Plaintiffs,
JAMES J. LAROSA, JOHN T. HASKINS, UNKNOWN HEIRS AND DEVISEES OF JAMES D. LAROSA, GC1, LLC, a West Virginia limited liability company, CITY OF CLARKSBURG, WEST VIRGINIA STATE TAX DEPARTMENT, UNITED STATES OF AMERICA, MOUNTAIN RESERVES, INC., a West Virginia corporation, DAVID R. REXROAD, PAMELA A. CAMPBELL, DAVID E. KANDZARI and SHARON CHRISTENSON, as Executrix of the ESTATE OF ELSIE LORNA HOWARD, a/k/a LORNA HILL HOWARD, deceased, Defendants.
MEMORANDUM OPINION AND ORDER REGARDING
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND DEFENDANT
WEST VIRGINIA STATE TAX DEPARTMENT'S MOTION FOR PARTIAL
FREDERICK P. STAMP, JR. UNITED STATES DISTRICT JUDGE.
a property case and creditors' action arising out of the
Estate of James D. LaRosa, which includes numerous parcels of
real estate located in Harrison County, West Virginia. This
action is brought under West Virginia Code §
38-3-9. West Virginia Code § 38-3-9 provides
the direct authority for judicial sale of real property that
is subject to a judgment lien and application of the sale
proceeds to discharge the judgment. The object of this
creditors' action is satisfaction of debts secured by the
various lienholders by the sale of real properties subject to
Complaint was originally filed in the Circuit Court of
Harrison County, West Virginia by the Estate of Lois M.
LaRosa, by and through plaintiffs, Julie Garvin and John
Joseph Belcastro, II, as co-executors. Plaintiffs bring this
action to enforce certain judgments entered against James D.
LaRosa following a final underlying divorce order and to
foreclose the corresponding judgment liens upon certain real
property owned by James D. LaRosa and/or his nominees and
order dated September 28, 1998, Lois M. LaRosa was divorced
from James D. LaRosa and awarded a $1, 500, 000.00
“equalizing payment.” Lois M. LaRosa did not
reduce the divorce order to a judgment or seek to execute on
the assets of James D. LaRosa until February 24, 2004. The
Complaint alleges that although there is a final order
entered on September 28, 1998 in the divorce of James D.
LaRosa and Lois M. LaRosa (both now deceased), there has been
no administration of the Estate of James D. LaRosa. The
Estate of Mr. LaRosa and/or his nominees or transferees are
currently the owner(s) of numerous parcels of real estate in
Harrison County, West Virginia. Various entities, including
the United States, have recorded liens including judgment
liens and state and federal tax liens against certain
properties enumerated in the Complaint.
civil action was removed to the United States District Court
for the Northern District of West Virginia pursuant to 28
U.S.C. §§ 1442(a) and 1444 and 26 U.S.C. §
2410 on July 7, 2017. This civil action was transferred by
United States District Judge Irene M. Keeley, pursuant to 28
U.S.C. § 455(a), to the undersigned judge on September
8, 2017. ECF No. 22.
Rule 56(c) of the Federal Rules of Civil Procedure, A party
asserting that a fact cannot be or is genuinely disputed must
support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations . . .
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c). The party seeking summary judgment
bears the initial burden of showing the absence of any
genuine issues of material fact. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). “The burden
then shifts to the nonmoving party to come forward with facts
sufficient to create a triable issue of fact.”
Temkin v. Frederick County Comm'rs, 945 F.2d
716, 718 (4th Cir. 1991), cert. denied, 502 U.S.
1095 (1992) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986)). However, as the United States
Supreme Court noted in Anderson, “Rule 56(e)
itself provides that a party opposing a properly supported
motion for summary judgment may not rest upon the mere
allegations or denials of his pleading, but . . . must set
forth specific facts showing that there is a genuine issue
for trial.” Anderson, 477 U.S. at 256.
“The inquiry performed is the threshold inquiry of
determining whether there is the need for a trial-whether, in
other words, there are any genuine factual issues that
properly can be resolved only by a finder of fact because
they may reasonably be resolved in favor of either
party.” Id. at 250; see also Charbonnages
de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)
(“Summary judgment ‘should be granted only in
those cases where it is perfectly clear that no issue of fact
is involved and inquiry into the facts is not desirable to
clarify the application of the law.'” (citing
Stevens v. Howard D. Johnson Co., 181 F.2d 390, 394
(4th Cir. 1950))).
Celotex, the Supreme Court stated that “the
plain language of Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex, 477 U.S.
at 322. In reviewing the supported underlying facts, all
inferences must be viewed in the light most favorable to the
party opposing the motion. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
the Court may enter summary judgment in favor of the
non-moving party when there is no genuine issue as to any
material fact and the non-moving party is entitled to
judgment as a matter of law. See Command Cinema Corp. v.
VCA Labs, Inc., 464 F.Supp.2d 191 (S.D.N.Y. 2006);
Sunderlin v. First Reliance Standard Life Ins. Co.,
235 F.Supp.2d 222 (W.D.N.Y. 2002)(Summary judgment may be
rendered in favor of opposing party even though he has made
no formal cross-motion for summary judgment, if undisputed
facts are found which, when applied to the law, indicate that
judgment against the moving party is appropriate).