State ex rel. Zirkle v. Fox, No. 25192.

• Court: Supreme Court of West Virginia
• Writing for the Court: WORKMAN, Justice
• Citation: 510 S.E.2d 502,203 W.Va. 668
• Docket Number: No. 25192.
• Decision Date: 08 December 1998
• Parties: STATE of West Virginia ex rel. John ZIRKLE, Petitioner, v. Honorable Fred L. FOX, II, Judge of the Circuit Court of Marion County, and the City of Fairmont, a Municipal Corporation, Respondents.

510 S.E.2d 502
203 W.Va. 668

STATE of West Virginia ex rel. John ZIRKLE, Petitioner,
v.
Honorable Fred L. FOX, II, Judge of the Circuit Court of Marion County, and the City of Fairmont, a Municipal Corporation, Respondents

No. 25192.

Supreme Court of Appeals of West Virginia.

Submitted October 6, 1998.

Decided December 8, 1998.

510 S.E.2d 503

Jerald E. Jones, Esq., Norman T. Farley, Esq., West & Jones, Clarksburg, West Virginia, Attorneys for Petitioner

510 S.E.2d 504

Kevin V. Sansalone, Esq., Fairmont, West Virginia, Attorney for Respondents

WORKMAN, Justice:

Mr. John Zirkle (hereinafter "Mr. Zirkle" or "petitioner") seeks a writ of prohibition preventing the enforcement of a June 1, 1998, judgment of the Circuit Court of Marion County, directing that Mr. Zirkle be incarcerated for civil contempt of court. We deny the requested writ.

I. Facts

The City of Fairmont filed a "Petition for Abatement of Public Nuisance and Mandatory Injunction" against Mr. John Zirkle and Mr. Tulasi Joshi¹ on June 17, 1997. The City requested the lower court to enter an order declaring that certain real estate constituted a public nuisance, to issue a mandatory injunction requiring Mr. Zirkle to demolish a structure on the real estate which had been severely damaged by fire, and to require Mr. Zirkle to post bond with a corporate surety. On July 29, 1997, the lower court entered an order granting the mandatory injunction against Mr. Zirkle, finding also that Mr. Tulasi Joshi had no responsibility for the public nuisance. The lower court ordered Mr. Zirkle to demolish the structure and to post bond with corporate or other surety in the sum of $20,000.

On March 17, 1998, the City filed a petition asking the lower court to require Mr. Zirkle to appear and show cause why he should not be in contempt of court for failure to comply with the order of July 29, 1997. By order dated March 21, 1998, the lower court issued a rule against Mr. Zirkle requiring him to appear on May 13, 1998, to show cause why he should not be adjudged in contempt of court and to produce documents pertaining to his financial condition.

During the May 13, 1998, hearing, Mr. Zirkle's counsel argued that Mr. Zirkle did not have sufficient funds to comply with the lower court's order. Several financial documents were presented, including several years of income tax returns, current income information, and bank statements. Mr. Zirkle maintained that he owned no automobiles² or real estate other than the property on which the public nuisance was situated. Mr. Zirkle did not request the lower court to permit the presentation of witness testimony. Mr. Zirkle's income tax returns indicated that his income was $6100 in 1997, $8100 in 1996, and $6600 in 1995. The estimated cost of demolition was allegedly $12,000 to $15,000. Mr. Zirkle also contended that he had attempted to obtain a surety bond with three different bonding companies, but no insurance company would provide such a bond.

The City informed the lower court during the May 13, 1998, hearing that Mr. Zirkle owned stock, a five percent interest, in a Subway restaurant. The City also contended that a review of Mr. Zirkle's tax returns would reveal that he had claimed substantial depreciation expenses for operation of the Subway restaurant. Such depreciation expenses, the City maintained, operated as a tax reduction for arriving at income, but not an out of pocket expense for Mr. Zirkle. The City also contended that Mr. Zirkle's tax returns may not be wholly indicative of his ability to pay for the required demolition.

At the conclusion of the May 13, 1998, hearing, the lower court held Mr. Zirkle in contempt of court. The lower court carefully explained, however, that Mr. Zirkle would not be incarcerated if he did not have the financial ability to demolish the building. The lower court indicated that if Mr. Zirkle was concealing funds and did not demolish the building, he would be incarcerated. Mr. Zirkle was instructed to provide the City with all financial information necessary to determine the question of his financial ability to have the building disassembled, and a subsequent hearing on that financial issue was scheduled for June 1, 1998.

During the June 1, 1998, hearing, the City proffered evidence indicating that Mr. Zirkle was employed by Green King Company, whose major source of revenue was the Subway restaurant in which Mr. Zirkle owned a five percent interest. The City's evidence also demonstrated that Mr. Zirkle had originally

510 S.E.2d 505

owned 2000 of the 5000 total shares in the restaurant, but that he had transferred 1750 shares to his sister in 1991, six years prior to the initiation of this action,³ leaving him with only five percent of the company. Through Mr. Zirkle's employment with Green King Company, he earned approximately $600 per month and drove a company car. Mr. Zirkle had owned a twenty percent interest in a building in Clarksburg, West Virginia, but had apparently equitably transferred that interest to his sister, with no deed yet recorded. Although Mr. Zirkle had received proceeds from an insurance settlement subsequent to the fire on the subject property, he had not utilized those funds for the repair or demolition of the building

Mr. Zirkle's attorney argued during the June 1, 1998, hearing that Mr. Zirkle did not receive substantial benefit from his association with Green King Company or from his interest in the Subway restaurant. Mr. Zirkle's attorney further maintained that the transfer of stock to the sister was consummated prior to the initiation of this action and should not be viewed as concealment of assets.

Based...