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Oakley v. Wagner

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1993 Term
No. 21237
JACK V. OAKLEY AND JAMES F. SHUMAKER, EXECUTOR OF THE ESTATE OF HELEN OAKLEY, Plaintiffs Below, Appellants,
v.
JOE F. WAGNER, Defendant Below, Appellee
Appeal from the Circuit Court of Logan County Honorable Eric H. O'Briant, Judge Civil Action No. 89-C-502 AFFIRMED
Submitted: January 13, 1993 Filed: May 27, 1993
Fred B. Westfall, Jr. Huddleston, Bolen, Beatty, Porter & Copen Huntington, West Virginia
Jack V. Oakley Buchtel, Ohio Attorney for the Appellant
Charles T. Bailey Bailey & Wagner Logan, West Virginia
Bernard L. Spaulding Logan, West Virginia Attorney for the Appellee
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
    "If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact." Syllabus point 4 of Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).
Per Curiam:
    This is an appeal by Jack V. Oakley and James F. Shumaker from a summary judgment order of the Circuit Court of Logan County terminating their West Virginia action to enforce an Ohio judgment. The circuit court, in essence, found that the Ohio judgment was unenforceable because the appellants had failed to bring their action in West Virginia within the time provided by the appropriate statute of limitations. The appellants argue that the circuit court misapplied the West Virginia statute of limitations. They also claim that the circuit court's action denied them the full faith and credit guaranteed to them by the United States Constitution. After examining the record and the questions presented, this Court disagrees with the appellants' assertions. The judgment of the Circuit Court of Logan County is, therefore, affirmed.
    On December 1, 1978, R. V. Oakley obtained a judgment in the Court of Common Pleas, Athens County, Ohio, against Joe F. Wagner for loans made by the said R. V. Oakley to Joe F. Wagner.
    R. V. Oakley died intestate on January 20, 1979, and left two beneficiaries, his wife, Helen Oakley, and his son, the appellant, Jack V. Oakley. Helen Oakley subsequently died on December 20, 1987, and the appellant, James H. Shumaker, was appointed executor of her estate.
    After the death of R. V. Oakley on December 1, 1978, no legal action was taken to enforce the Ohio judgment until 1989, more than ten years after its entry. On March 10, 1989, R. V. Oakley's successors, however, obtained a revival of the judgment in the Court of Common Pleas of Athens County, Ohio. Then, on June 29, 1989, they instituted the present action in the Circuit Court of Logan County, West Virginia, to enforce the revived Ohio judgment.
    Following the institution of the West Virginia action, Joe F. Wagner, the defendant below and appellee in the present proceeding, moved for summary judgment on the ground that the West Virginia action was barred by the applicable West Virginia statute of limitations.
    After considering Joe F. Wagner's motion in conjunction with the various documents filed by the parties, the circuit court, on December 5, 1991, entered the order from which the present appeal is taken. In that order, the court granted Joe F. Wagner's motion for summary judgment and stated:
    [T]his court holds that the Ohio judgment which the plaintiff seeks to enforce in this State is barred by the statute of limitations provisions of West Virginia Code 55-2-13 and 55-2A-2 in that because the defendant has resided in this state continuously during the ten years next preceding the action brought upon the Ohio judgment.
    In the present proceeding, the appellants claim that the circuit court erred in granting the summary judgment and claim that the date from which the West Virginia statute of limitations should run is March 10, 1989, the date of the revival of the Ohio judgment. They also claim that the Circuit Court of Logan County erred in failing to give the Ohio judgment full faith and credit guaranteed by the Constitution of the United States.
    The general rule for when summary judgment should be granted in West Virginia is set forth in syllabus point 4 of Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). That syllabus point states that:
        If there is no genuine issue as to any material fact summary judgment should be granted but such judgment must be denied if there is a genuine issue as to a material fact.
    In the present case, it does not appear that there was a factual dispute as to the circumstances giving rise to the controversy between the parties. The real issue in the case is whether the Circuit Court of Logan County properly applied the West Virginia statute of limitations to the facts presented and whether the circuit court's application of the statute of limitations resulted in a denial of full faith and credit to the Ohio judgment.
    West Virginia Code, 55-2-13, discusses the barring of foreign judgments and decrees in West Virginia. That statutory section provides:
        Every action or suit upon a judgment or decree rendered in any other state or country shall be barred, if by the laws of such state or country such action or suit would there be barred, and the judgment or decree be incapable of being otherwise enforced there. And whether so barred or not, no action against a person who shall have resided in this State during the ten years next preceding such action shall be brought upon any such judgment or decree rendered more than ten years before the commencement of such action.
Relating to foreign judgments, the Uniform Limitations on Foreign Claims Act, which has been adopted in West Virginia as W.Va. Code, 55-2A-1 et seq., also provides, in part:
        The period of limitation applicable to a claim accruing outside of this State shall be either that prescribed by the law of the place where the claim accrued or by the law of this State, whichever bars the claim.
W.Va. Code, 55-2A-2. In interpreting this last statute, this Court, consistent with the clear language of W.Va. Code, 55-2-13, has indicated that W.Va. Code, 55-2A-2, provides that where a claim accrues beyond state boundaries, the shorter limitation, West Virginia's or the foreign limitation, shall govern such action. Nellas v. Loucas, 156 W.Va. 77, 191 S.E.2d 160 (1972). See also, Harrison v. Piedmont Aviation, Inc., 432 F.Supp. 980 (S.D.W.Va. 1977).
    In line with these authorities, in Gonzalez Perez v. Romney Orchards, Inc., 184 W.Va. 20, 399 S.E.2d 50 (1990), this Court indicated that where the statute of limitations was fifteen years in the jurisdiction where the foreign judgment was obtained, a suit to enforce that judgment in West Virginia must be brought within the ten-year limit provided in West Virginia, which is the shorter of the limitations periods established by the foreign jurisdiction and West Virginia.
    A careful examination of W.Va. Code, 55-2-13, suggests that there are two theories under which the appellants' action could be barred in West Virginia. First, if the action was barred in Ohio, or otherwise incapable of being enforced there, it must be deemed to be barred in West Virginia. Second, even if the action was not barred in Ohio, it would be barred as to any person who has resided in West Virginia more than ten years after the Ohio decree was rendered.
    It appears that under Ohio law a judgment rendered in favor of a private individual, as is the situation in the present case, is deemed to become "dormant" if an execution is not taken on it or a certificate of judgment is not filed within five years from the date of the judgment. Ohio Rev. Code Ann.

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