“issues which are . . . mentioned only in passing . . . are not considered on appeal”
How later courts described this case
- “issues which are . . . mentioned only in passing . . . are not considered on appeal”
Written by the judges who cited it.
The opinion
IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
DAVID LEONARD,
Defendant Below, Petitioner
v.) No. 24-ICA-210 (Cir. Ct. Jefferson Cnty. Case No. CC-19-2012-C-71)
WELLS FARGO, FILED
Plaintiff Below, Respondent March 24, 2025
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner David Leonard appeals the April 23, 2024, Order Reviving Judgment
from the Circuit Court of Jefferson County. The order granted respondent Wells Fargo’s
petition for a writ of scire facias to renew a $103,012.11 judgment entered against Mr.
Leonard and in favor of Wells Fargo on September 10, 2013. Wells Fargo filed a summary
response in support of the circuit court’s order.1 Mr. Leonard did not file a reply.
This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this 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.
The sole issue on appeal is the circuit court’s interpretation and application of
certain provisions of West Virginia Code to grant Wells Fargo’s request for a writ of scire
facias. The facts of this case are not in dispute. On February 28, 2012, Wells Fargo filed a
complaint in circuit court against David Leonard and others2 related to a delinquent balance
on a line of credit previously granted to Mr. Leonard’s construction company.
The parties reached a settlement and jointly moved for the circuit court to enter a
judgment order in the case. By Final Judgment Order entered on September 10, 2013, the
circuit court entered a joint and several judgment against Mr. Leonard and his co-
defendants for $103,012.11 plus interest, in favor of Wells Fargo. Following the entry of
1
Mr. Leonard is represented by Christopher P. Stroech, Esq. Wells Fargo is
represented by Paul C. Kuhnel, Esq.
2
The complaint named Mr. Leonard, Patricia Sanderson, and Shenandoah
Construction Management, LLC, as defendants. For reasons not apparent in the record,
Wells Fargo only sought to revive the judgment against Mr. Leonard.
1
that order, no payments were made by any defendant towards satisfying the judgment and
Wells Fargo admittedly took no action to execute on the judgment.
However, on July 21, 2023, Wells Fargo filed an amended abstract of judgment
against Mr. Leonard, as well as a corresponding Petition to Renew or Revive Judgment in
circuit court, which sought “a writ of scire facias and/or to revive or renew” the September
10, 2013, final judgment for an additional ten years pursuant to West Virginia Code § 38-
3-18 (2008). On November 1, 2023, Mr. Leonard filed a Motion to Vacate Judgment which
argued that because Wells Fargo failed to pursue a writ of execution within ten years of the
judgment, pursuant to West Virginia Code §§ 38-3-7 and -18, the circuit court should
vacate the final judgment order. Following a hearing on November 2, 2023, Mr. Leonard
filed a subsequent motion on November 3, 2023, acknowledging that the judgment could
not be vacated by law, and that, instead, he was asking that Wells Fargo’s motion be denied
because a writ of execution was not sought within the applicable ten-year limitation period.
W. Va. Code §§ 38-3-18 and -19.
On April 23, 2024, the circuit court entered the order presently on appeal. The order
found that while it was undisputed that no execution was issued within ten years, it was
equally undisputed that Wells Fargo had filed a petition seeking a writ of scire facias within
ten years from the date that final judgment was entered. Thus, the circuit court determined
that the dispositive question in the case was whether Wells Fargo’s request for a writ of
scire facias had the same operative effect as the issuance of a writ of execution under West
Virginia Code §§ 38-3-18 and -19. The circuit court answered this question in the
affirmative.
In support of its conclusion, the circuit court began by citing provisions of West
Virginia Code § 38-3-18, which state:
(a) On a judgment, execution may be issued within ten years after the date
thereof. Where execution issues within ten years as aforesaid, other
executions may be issued on such judgment within ten years from the return
day of the last execution issued thereon, on which there is no return by an
officer, or which has been returned unsatisfied. . . .
(c) An action, suit or scire facias may be brought upon a judgment where
there has been a change of parties by death or otherwise at any time within
ten years next after the date of the judgment; or within ten years from the
return day of the last execution issued thereon on which there is no return by
an officer or which has been returned unsatisfied. But if such action, suit or
scire facias be against the personal representative of a decedent, it shall be
brought within five years from the qualification of such representative.
The circuit court also cited West Virginia § 38-3-19 (1882):
2
No execution shall issue, nor any action, suit or scire facias be brought on
any judgment in this State after the time prescribed in the preceding section,
except that in computing the time, any time during which the right to sue out
execution on the judgment is suspended by the terms thereof, or by legal
process, shall be omitted from the computation; and sections fifteen, sixteen,
seventeen and eighteen, article two, chapter fifty-five of this Code shall apply
to the right to bring such action, suit or scire facias, in like manner as to any
right, action, suit or scire facias mentioned in those sections; and except that
when the judgment is for a sum ascertained, and such further sums as may
be afterwards assessed, or be found due upon a scire facias assigning a further
breach, as provided in section thirty, article six, chapter fifty-six of this Code,
such scire facias may be brought within ten years after such breach.
Then, the court turned to legal precedent and noted that in Lamon v. Gold, 72 W.
Va. 618, 621-22, 79 S.E. 728, 729 (1913), our Supreme Court of Appeals explained:
The creditor’s right to the lien of his judgment is gone forever when his right
to sue out execution on the judgment or to revive it by scire facias is barred.
In Werdenbaugh, Adm’r, v. Reid, 20 W. Va. 588, it was held that: “The lien
of a judgment ceases when the right to sue out execution[ ] on the judgment
or to revive it by scire facias is barred by the statute of limitations.” The same
question was decided in Shipley v. Pew, 23 W. Va. 487, and in Reilly v. Clark,
31 W. Va. 573, 8 S. E. 509. In the latter case Judge Snyder, in his opinion at
page 573 of 31 W. Va., page 510 of 8 S. E., says that it has been repeatedly
decided and has become the settled law of this state. One who seeks the
enforcement of a right must certainly satisfy the court that the right exists;
and if his bill is brought to enforce a judgment lien which the court sees does
not exist, because the creditor’s right to sue out execution on, or to revive,
his judgment by scire facias is barred, it will not enforce it. It does not follow
that, because a creditor obtained a judgment against his debtor, he may, at
any time thereafter, enforce it as a lien against his debtor’s land. If it is more
than ten years old, he must show that he has kept it alive.
Id. (emphasis added). The circuit court also cited Zanke v. Zanke, 185 W. Va. 1, 4 n.7, 404
S.E.2d 92, 95 n.7 (1991) (per curiam), which commented that “Lamon v. Gold recognized
that under the provisions of W. Va. Code [§] 38–3–19, the ten-year period may be extended
under the specific exceptions noted therein even though an execution is not issued. . . .” Id.
Considering those authorities, the circuit court stated that it was convinced that
“executions and actions by scire facias are effectively interchangeable for purposes of
refreshing the ten-year limitation period set forth in [West Virginia] Code § 38-3-18. Writs
of execution are not the exclusive means of keeping a judgment alive.”
3
The circuit court found that Rule 69(a) of the West Virginia Rules of Civil Procedure
supported its conclusion. This Rule states:
Process to enforce a judgment for the payment of money shall be a writ of
execution, a writ of suggestee execution and such other writs as are provided
by law. The procedure on execution and other such final process, in
proceedings supplementary to and in aid of a judgment, and in proceedings
on and in aid of execution or such other final process shall be in accordance
with the practice and procedure prescribed by the laws of the State existing
at the time the remedy is sought, subject to the following qualifications: (1)
A writ of execution shall be made returnable not less than 30 days nor more
than 90 days after issuance, as directed by the person procuring issuance of
the writ; and (2) an answer to a summons issued in a suggestion proceeding
shall be served upon the plaintiff within 21 days after service of the
summons; and (3) a return on a writ of suggestee execution shall be made
promptly on the expiration of one year after issuance of the writ.
In applying this Rule, the circuit court determined that while writs of scire facias are
not expressly mentioned in the West Virginia Rules of Civil Procedure, the writs are
codified within the West Virginia Code and, thus, qualify as “such other writs” as set forth
under Rule 69(a). The circuit court found that neither West Virginia Code §§ 38-3-18 nor
-19 requires contemplation of whether prejudice occurred to the debtor before the ten-year
limitation operates to preclude enforcement of the judgment. Instead, it is a bright line rule,
requiring the creditor to take action to signal to the debtor that it does not intend to waive
its right to collect on the judgment.
Ultimately, the circuit court concluded that Wells Fargo’s petition was filed within
ten years of the judgment and that such action was sufficient to keep the judgment alive. It
was also noted that other than unsuccessfully arguing a writ of execution was the sole
judgment saving method available under West Virginia Code §§ 38-3-18 and -19, Mr.
Leonard raised no other defense to Wells Fargo’s request to revive the judgment.
Accordingly, the circuit court reinstated the judgment with seven percent post judgment
interest from September 10, 2013. The court further found that the ten-year limitation
period began anew, effective July 21, 2023. This appeal followed.
On appeal, we apply the following standard of review:
In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final
order and the ultimate disposition under an abuse of discretion standard, and
we review the circuit court's underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo review.
4
Syl. Pt. 2, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).
On appeal, Mr. Leonard contends that the circuit court erred by finding that Wells
Fargo’s actions were sufficient to renew the judgment. Specifically, he asserts that even
though Wells Fargo filed a request for a recognized writ with the circuit court within ten
years of the judgment, because no writ was issued by the court before September 9, 2023,
the judgment could not be renewed. In other words, Mr. Leonard maintains that pursuant
to statute, a judgment can only be renewed if the circuit court issues the writ before
expiration of the ten-year limitation period.
To support his position, Mr. Leonard argues that to extend the life of a judgment,
our law requires executions on judgments to be issued within ten years of the judgment.
See W. Va. Code § 38-3-7 (1921) (stating, in part, that a judgment lien is not valid against
a bona fide purchaser after ten years, “unless within such ten years an execution shall have
issued on such judgment and such execution[,] or a copy thereof be filed in the office of
such clerk”); W. Va. Code § 38-3-18(a) (“On a judgment, execution may be issued within
ten years after the date thereof”).3 4 Upon review, we are not persuaded by Mr. Leonard’s
contention.
We begin by reiterating our deferential standard of review. To that end, it has been
explained that “[a] finding is clearly erroneous when, although there is evidence to support
the finding, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed,” and “a party does not meet this burden by
suggesting that the findings are maybe or probably wrong.” Argus Energy, LLC v.
Marenko, 248 W. Va. 98, 105, 887 S.E.2d 223, 230 (2023) (citations and quotations
omitted). Further, when reviewing a lower court’s ruling for an abuse of discretion, “[o]nly
where we are left with a firm conviction that an error has been committed may we
3
Interestingly, Mr. Leonard also contends that Wells Fargo erred by not framing its
request for a writ of execution as one for a writ of fieri facias instead of a writ of scire
facias. See W. Va. Code §§ 38-4-5 and -6. However, Mr. Leonard’s brief concedes that “a
writ of scire facias is indeed a writ of execution[.]” As such, we find his contention of no
import.
4
In passing, Mr. Leonard further contends that Wells Fargo did not properly file its
request for a writ as a “post judgment action” within the circuit court’s e-filing system. We
decline to give this fleeting argument consideration. Megan W. v. Robert R., No. 23-ICA-
353, 2024 WL 1592600, at *5 (W. Va. Ct. App. Feb. 27, 2024) (memorandum decision)
(“It is well established that, ‘[a] skeletal “argument,” really nothing more than an assertion,
does not preserve a claim[.]’ ” ) (quoting State v. Lambert, 236 W. Va. 80, 100, 777 S.E.2d
649, 669 (2015)); see also State v. LaRock, 196 W. Va. 294, 302, 470 S.E.2d 613, 621
(1996) (“issues which are . . . mentioned only in passing . . . are not considered on appeal”)).
5
legitimately overturn a lower court’s discretionary ruling.” Covington v. Smith, 213 W. Va.
309, 322, 582 S.E.2d 756, 769 (2003). In other words,
Where the law commits a determination to a trial judge and his discretion is
exercised with judicial balance, the decision should not be overruled unless
the reviewing court is actuated, not by a desire to reach a different result, but
by a firm conviction that an abuse of discretion has been committed.
Id. at 322-23, 582 S.E.2d at 769-70 (citations and quotations omitted).
Here, Mr. Leonard rests his appeal on the meaning and application of the statutory
term issued and suggests that “[t]he varying [p]etitions and [m]otions filed by Wells Fargo,
even if all were timely granted, would not have caused any writ to be properly issued.”
Critically, however, this was not the focus of the circuit court’s analysis and ultimate
determination below. Instead, the circuit court framed the issue as whether a writ of scire
facias could operate to renew a judgment. Nothing within the four corners of the circuit
court’s order mentions or otherwise offers a statutory interpretation of the term issued.
Moreover, Mr. Leonard does not raise an assignment of error on appeal which
alleges that the circuit court either failed to address this issue below or to challenge the
circuit court’s analysis which formed the basis of its decision. Instead, he seeks factual
determinations and legal conclusions from this Court for an argument that was not
addressed in the ruling below. We have previously recognized the “general rule [that] an
appellate court will not consider an issue raised for the first time on appeal.” PITA, LLC v.
Segal, 249 W. Va. 26, 40, 894 S.E.2d 379, 393 (Ct. App. 2023). Further, Mr. Leonard cites
no legal precedent to show the circuit court’s application of the law was incorrect, let alone
any authority, other than citing to isolated language within a small number of statutes, to
support his own interpretation of the West Virginia Code.5
In this case, the circuit court determined that by filing a petition for a proper writ
within ten years of the judgment, Wells Fargo complied with West Virginia Code §§ 38-
3-18 and -19 and was entitled to renewal of the subject judgment. Based on the record
before us, we cannot conclude that the circuit court’s factual findings are clearly erroneous
or that its ultimate disposition of this case is an abuse of discretion.
5
Likewise, to accept Mr. Leonard’s argument it would have to be inferred that the
subject statutes grant a litigant the authority to dictate a circuit court’s management of its
docket. To adopt such a position would be in contravention of the well-established
principle that: “Trial courts have the inherent power to manage their judicial affairs that
arise during proceedings in their courts, which includes the right to manage their trial
docket.” Syl. Pt. 2, B.F. Specialty Co. v. Charles M. Sledd Co., 197 W. Va. 463, 475 S.E.2d
555 (1996).
6
Accordingly, the circuit court’s April 23, 2024, Order Reviving Judgment is
affirmed.
Affirmed.
ISSUED: March 24, 2025
CONCURRED IN BY:
Chief Judge Charles O. Lorensen
Judge Daniel W. Greear
Judge S. Ryan White
7