lower court order, In Re: The Estate of Joe C. Simmons, No. 17-0560 · 7. Upon review of the File of the Estate of Joe Simmons, objections to both claims against the Estate of Joe

J7--06amp0

IN THE CIRCUIT COURT OF GREENBRIER COUNTY WEST VIRGINIA

INRE

ESTATE OF JOE C SIMMONS CIVIL ACTION NO 16-AA-06(D)

ORDER

Procedural History

On the 22nd day of September 2016 came the Appellant Carol C Pope Individually and

Carol C Pope Executrix of the Estate of Watha Wakando Simmons Deceased by and through

counsel Robert P Martin and timely filed an Appeal of the Final Order of the County

Commission of Greenbrier County Sitting as the Probate Court of Greenbrier County Entered of

Record on the 7th Day of September 2016 Pursuant to West Virginia Code sect44 Article 2 Section

19 On the yd day of November 2016 a certification from Joni Harrah Fiduciary Supervisor

was filed certifying the filing ofa true and exact copy of the File of the Estate of Joe C

Simmons

On the 18th day of November 2016 this C0U11upon good cause shown granted the

Motion for Extension of Time to file a Reply to the Petition for Appeal filed by Christine

Stump counsel for The Estate of Joseph C Simmons On the 13 th day of December 2016 the

Appellee The Estate of Joseph C Simmons by and through counsel Christine Stump timely

filed an Answer to the Petition for Appeal of Carol C Pope Individually and Carol C Pope

Executrix of the Estate of Watha Wakando Simmons Deceased

1

On the 71h day of February 2017 an Order was entered directing the Appellant to tile a

ce11ified copy of the proceedings before the Greenbrier County Commission within fifteen (15)

days of the entry of the Order On the 23rd day of February 2017 the counsel for the Appellant

filed what was purp0l1ed to be a certified copy as directed by the Courts Order On the 20 lh day

of March 2017 counsel for the Appellant sent a letter to the Court requesting oral argument be

scheduled on his Petition for Appeal At a hearing held on the 18th day of April 2017 oral

argument was heard by counsel and counsel for the Appellant advised the Court that the

purp0l1ed certified copy of the record from the County Commission filed on the 23 rd day of

February 2017 was not a certified copy of the entirety of the proceedings below Also counsel

for each paIty expressed confusion as to the location and celiification of all documents from the

proceedings below and requested the Court enter an Order to ensure a proper record for

consideration upon Appeal On the 261h day of April 2017 tlus Court entered an Order

directing the Fiduciary Commissioner to submit to the Clerk of the County Commission the

entirety of the record of the hearing and supplemental submissions by May 12017 the Clerk of

the County Commission to place the records received from the Fiduciary Commissioner along

with a ce11ification in the file for the Estate of Joe C Simmons the Circuit Clerk to deliver unto

the Clerk of the County Commission any and all records in her possession relating to the Estate

of Joe C Simmons along with a certification that the submitted records are the entirety of the

records maintained by the Circuit Clerk of Greenbrier County by May 12017 and the Clerk of

the County Commission to certify the entire file in her possession as the celiitied record of the

Estate of Joe C Simmons and to file the record and the ce11ification with the Circuit Clerk by

May 5 2017 On the 2nd day of May 2017 the Clerk of the County COlrunission complied with

this Order of the Court

2

Statement of Facts

On November 32008 Wanda Wakando Simmons filed for divorce from Joseph C

Simmons in the Family Court of Greenbrier County West Virginia On February 32009 the

Family Court Judge entered a Temporary Order placing a constntctive trust on the parties

marital property On February 22 2009 Wanda Wakando Simmons died On April 102009

Carol C Pope moved the Family Court to substitute herself as the Executrix of the Estate of

Watha Wakando Simmons as a pmty to the divorce action On April 212009 a hearing was

held on her Motion and the Family Court Judge found that since Wanda Wakando Simmons had

died the pending divorce action was dismissed and stricken from the Courts docket On April

292009 a Dismissal Order was entered in the Family Court of Greenbrier County On May 19

2009 Carol C Pope petitioned the Family Court to reconsider its Dismissal Order On

December 102009 the Family COUlt denied Ms Popes Motion to Reconsider On January 7

2010 Carol C Pope as Executrix of the Estate of Watha Wakando Simmons appealed the

Family Courts Dismissal Order to the Circuit Court of Greenbrier County West Virginia On

April 29 2010 the Circuit Court denied the Appeal On August 192010 Carol C Pope as

Executrix of ofthe Estate of Watha Wakando Simmons appealed the Order of the Circuit Court

to the West Virginia Supreme Court of Appeals On November 17 2010 the West Virginia

Supreme Court refused the Petition for Appeal

On April 23 2015 Joseph C Simmons died On April 29 2015 Kyle C Simmons was

appointed as the Executor of the Estate of Joseph C Simmons and on April 29 2015 Kyle C

Simmons presented the Last Will and Testament of Joseph C Simmons which was admitted to

probate On October 142015 Carol C Pope individually and as Executrix of the Estate of

Watha Wakando Simmons filed two creditors claims against The Estate of Joseph C Simmons

3

Carol C Pope individually claimed she was entitled to reimbursement in the amount of

seventy six hundred dollars ($760000) for monies she had previously paid to Shenandoah Manor

dba The Brier Rehabilitation and Nursing Center and to Graydon Oooten Mr Ooten previously

mediated a lawsuit (Greenbrier County Circuit Court Civil Action No 1 0-C-4 7) filed by

Shenandoah Manor dba The Brier Rehabilitation and Nursing Center against Carol C Pope

individually and as Executrix of the Estate of Watha Wakando Simmons and Joseph C

Simmons This civil action was ultimately dismissed with prejudice upon agreement of the

parties by the Circuit Court on February 7 2013

Secondly Carol C Pope as Executrix of the Estate of Watha Wakando Simmons

claimed the Estate was entitled to the value of one-half (112) of all personal property owned or

possessed by Watha Wakando Simmons and Joseph C Simmons as of Febuary 22 2009 the

date of the death of Watha Wakando Simmons and all interest or income from said personal

property or the value thereof from Febuary 22 2009 to the present

On November 3 2015 Kyle C Simmons as Executor of the Estate of Joseph C

Simmons by counsel filed objections to both of the creditors claims The record of the County

C01ll1 contains two copies of verifications to the objections On August 5 2016 the Fiduciary

Commissioner issued a Report and Recommendations On August 242016 a hearing was held

before the Greenbrier County Commission wherein it accepted the Recommendations of the

Fiduciary Commissioner The Order of the Greenbrier County Commission dated September 7

2016 denied the claim of Carol C Pope individually and denied the claim of Carol C Pope as

Executrix of the Estate of Watha Wakando Simmons except as to half the value of the

household goods and furnishings jointly owned by Watha Wakando Simmons and Joe C

Simmons which totafed four thousand four hundred eighty one dollars and four cents

4

($448104) Noting that the Estate of Watha Wakando Simmons had previollsly received

household goods and furnishings valued at nineteen hundred seventy one dollars ($197100) the

Commission found the Estate of Watha Wakando Simmons was entitled to the amount of two

hundred sixty nine dollars and fifty-two cents ($26952) as the Estates remaining share of oneshy

half (112) the value of the household goods and furnishings owned jointly by Watha Wakando

and Joseph C Simmons It is from this Order that Carol C Pope individually and as the

Executrix of the Estate of Watha Wakando Simmons appeals

Standard of Review

Pursuant to West Virginia Code sect44 N1icle 2 Section 19 the appeal of an order of the

county commission shall be tried and heard in the circuit court on the record made before the

fiduciary commissioner and on order of the county conunission Pursuant to Haines v Kimble

221 W Va 266654 SE2d 588 (2007) when reviewing an order from the county commission

the circuit court was limited to hearing determining and deciding the appeal upon the

original record of the proceeding before the county commission Also citing FelTY Co v

Russell 52 WVa 356 359 43 SE 107 108 (1903) the Court in Kimble notes that an appeal

taken from the county to the circuit court is not an appeal in the ordinary sense of the word

imp0l1ing a process in the superior court by which a new trial of fact is had upon evidence the

same as llsed in the county court or new evidence but it is triable only on the record as made in

the county C0U11

Legal Analvsis

After having considered the Appeal of the Final Order of the County Commission of

Greenbrier County Sitting as the Probate C01ll1 of Greenbrier County Entered of Record on the

7lh Day of September 2016 Pursuant to West Virginia Code sect44 Article 2 Section 19 the

5

Answer to Petition for Appeal of Carol C Pope Individually and Carol C Pope Executrix of the

Estate of Watha Wakando Simmons Deceased the File of the Estate of Joe C Simmons the

argument of counsel the relevant statutes and case law the Court Orders that the Appeal of

Carol C Pope Individually and as Executrix of the Estate of Watha Wakando Simmons is

DENIED for the following reasons

The Appellants first assignment of error is that the Greenbrier County Commission erred

in considering the objections to creditors claims filed by Kyle C Simmons Executor of the

Estate of Joe C Simmons because the objections were not verified as required by West Virginia

Code sect44-2-5

1 West Virginia Code sect44-2-5 mandates the statutory procedure for filing claims

against an estate

2 West Virginia Code sect44-2-6 mandates the statutory procedure for the filing of

objections to creditors claims

3 Pursuant to West Virginia Code sect44-2-6 contrary to the argument of counsel for the

Appellant there is no requirement that a counter affidavit filed in response to a

properly filed claim against the estate of a decedent be verified

4 In neither In re Estate of Hardin 158 WVa 614212 SE2d 750 (1975) nor In re the

Estate of McIntosh 144 WVa 583109 SE2d 153 (1959) where appeals were

taken from commissioners findings on creditors claims and objections is there any

mention by the Appellants the Circuit Courts or the Supreme Court of a requirement

that objections be verified

6


Appellant there is no restriction on the decision to employ counsel by the personal

representative distributee legatee or creditor of an estate

6 Counsel for the Appellant cites no authority for his position that such a restriction

exists

7 Upon review of the File of the Estate of Joe Simmons objections to both claims

against the Estate of Joe Simmons filed by Carol C Pope Individually and as the

Executrix of the Estate of Watha Wakando Simmons were properly filed by

Christine Stump counsel for The Estate of Joe C Simmons Counsel for the

Appellant does not dispute that these objections were filed but argues that they were

not verified Pursuant to the statement of counsel for the Estate of Joe C Simmons in

her Answer to the Petition for Appeal despite there being no requirement to do so

copies of verifications were filed prior to the commencement of the hearing before

the Fiduciary Commissioner

8 A review of the File of the Estate of Joe Simmons shows that two copies of general

verifications to objections were filed

9 Furthermore a review of the File of the Estate of Joe Simmons shows that objections

to both claims were filed prior to the Fiduciary Commissioners hearing on claims

against the Estate and preparation of her report as required by West Virginia Code

sect44-2-6

10 Counsel for the Appellants reliance on West Virginia Code sect44-2-5 is misplaced

since it prescribes the requirements for filing a claim against an estate and not the

7

requirements for tiling an objection to a claim against an estate which are set out in

West Virginia Code sect44-2-6

11 For these reasons the Court is not persuaded by counsel as to the Appellants first

Assignment of En-or

The Appellants second assigrunent of error is that the Greenbrier County Commission

erred by finding that the provisions onVest Virginia Code sect48-1-233 were inapplicable

12 The Appellant claims that she is entitled to half the value of the marital estate which

existed at the time of Watha Wakando Simmons death In supp0l1 of her position the

Appellant relies on West Virginia Code sect48-1-233 and argues that the claim filed on

behalf of the Estate of Watha Wakando Simmons was specifically filed for the

enforcement of rights under this m1icle Appellant argues that this language is

intended by the Legislature to prevent unfair and inequitable results as she alleges to

have occuned in this case However equitable distribution of marital propelty as

discussed in West Virginia Code Chapter sect48 goveming Domestic Relations this

Court believes in this instance is irrelevant

13 This Court recognizes that in Bridgeman v Bridgeman 182 WVa 677 (1990) and

Zikos v Clark 214 WVa 235 (2003) the Court has clearly stated that the property

rights of pm1ies who have been granted a divorce are enforceable after the death of

a party

14 This COUlt also recognizes that this matter is distinguishable from Bridleman or

Zikos because here the parties were never granted a divorce The divorce action was

dismissed and abated following the death of Watha Wakando Simmons by an Order

8

of the Family COUl1 Judge dated April 282009 This issue was ultimately appealed to

the Supreme Court and was declined for review

15 At the time of Joseph C Simmons death he was a widower therefore consideration

of equitable distribution of marital property as discussed in West Virginia Code sect48shy

1-233 is not proper as that section of the Code has no application outside the

provisions of this article except for the enforcement of rights under this alticle

16 The Court is not persuaded by counsels argument that the Legislature intended by

middotthe enforcement of rights under this a11ice to extend equitable distribution of

marital property beyond that contemplated in divorce proceedings within the

jurisdiction of the Family COllrt pursuant to West Virginia Code sect51-2A-2(a)(15)

17 The Fiduciary Commissioner properly relied on Kidwell v Kidwell 189 WVa 307

(1993) which held that the rules governing equitable distribution of marital prope11y

in divorce actions were not applicable in determining a decedents interest in property

to be included in an estate

18 Secondly counsel for the Appellants reliance on West Virginia Code sect48-29-303 for

his argument that the individual claim of Carol Pope should not have been denied

ignores the doctrine of collateral estoppel The exact same claim was previously

resolved by this Court in Civil Action Number 10-C-47 by an agreed Dismissal Order

with prejudice entered the 7th day of February 2013

19 Pursuant to Conley v Spillers 171 WVa 584 301 SE2d 216 (1983) Collateral

estoppel is designed to foreclose relitigation of issues in a second suit which have

actually been litigated in the earlier suit even though there may be a difference in the

calise of action between the patiies of the tirst and second suit The doctrine of

9

collateral estoppel also requires that the firstjuclgment be rendered on the merits

and be a tinal judgment by a court having competent jurisdiction over the subject

matter and the parties

20 All of the requirements of collateral estoppel from Conley are present when

comparing this case to Civil Action No 1O-C-47

21 Counsel tor the Appellant cites no legal authority for his position that either West

Virginia Code sect48-1-233 or sect48-29-303 are controlling as to the applicability of the

rules governing equitable distribution of marital property to the determination of a

decedents interest in property

22 For these reasons the Court is not persuaded by counsel for the Appellants second

Assignment of Error

The Appellants third assignment of error is that the Greenbrier County Commission

erred in failing to recognize and apply the equitable principles of domestic relations law

23 Again counsel for the Appellant relies on domestic relations law contained in Chapter

sect48 of the West Virginia Code to SUppOlt his equity argument that the Estate of

Watha Wakando Simmons is entitled to a 5050 split of the marital prope11y held

in the Estate of Joe Simmons

24 For the reasons stated hereinabove equitable distribution under the Domestic

Relations statutes is not relevant to this proceeding

25 The Fiduciary Commissioner followed the proper procedure in determining

ownership of property in estate matters as detailed in Paragraph 20 of her Report and

recommended that The Estate of Watha Wakando Simmons receive half of the value

of the household goods and furnishings since this was jointly owned property

10

26 Counsel provides no legal support for his argument that the constructive trust

imposed by the Family Court somehow survived the abatement and dismissal of the

divorce action This argument has no legal merit because the Temporary Order had no

effect upon dismissal of the divorce action

27 Regarding counsels unjust enriclunent argument for equitable relief Under the law

of unjust enrichment if benefits have been received and retained under such

circumstances that it would be inequitable and unconscionable to permit the pa11y

receiving them to avoid payment therefore the law requires the pa11y receiving the

benefits to pay their reasonable value Realmark Developments Inc v Ranson 20S

WVa 717 542 SE2d 880 (2000) The Estate of Joe C Simmons received what it

was entitled to pursuant to the statutes governing estates and propel1y nothing more

2S Pursuant to the Recommendation of the Fiduciary Commissioner with citation to

Chapter sect36 of the West Virginia Code governing estates and property his Estate

received all property belonging solely to Joe C Simmons at the time of his death and

only half of the value of the household goods and furnishings owned jointly with

Watha Wakando Simmons

29 Counsel for the Appellants argument that the Estate of Joe C Simmons has been

unjustly enriched based on his alleged wrongdoing is not supported in the record

30 For these reasons the Court is not persuaded by counsel for the Appellants third

Assignment of Error

In consideration of the all of the above the Appellants Petition for Appeal is DENIED

and the Order of the Greenbrier County Commission dated September 7 2016 is hereby

AFFIRMED

11

Finding it proper so to do all of the above is hereby ORDERED ADJUDGED and

DECREED

The Circuit Clerk is hereby directed to provide a copy of this Order to Robert Martin counsel for the Appellant Carol C Pope Individually and Carol C Pope Executrix of the Estate of Watha Wakando Simmons Deceased at 921 Court Street North Lewisburg WV 24901 Christine Stump counsel for the Appellee The Estate of Joe C Simmons at 207 West Randolph Street Lewisburg WV 24901 and Robin Loudermilk County Clerk of Greenbrier County West Virginia

Entered this ___~2--)_tvt___ day of May 2017

~ ~ljlnife~ P Dent Circuit Judge

---Eleventh Judicial Circuit

FILED t4AY 2 3 20f7

CflCUJT COJm tiWr~R CtJI-fY iN LaJIlfpound~ CLERK

12

On the 71h day of February 2017 an Order was entered directing the Appellant to tile a

ce11ified copy of the proceedings before the Greenbrier County Commission within fifteen (15)

days of the entry of the Order On the 23rd day of February 2017 the counsel for the Appellant

filed what was purp0l1ed to be a certified copy as directed by the Courts Order On the 20 lh day

of March 2017 counsel for the Appellant sent a letter to the Court requesting oral argument be

scheduled on his Petition for Appeal At a hearing held on the 18th day of April 2017 oral

argument was heard by counsel and counsel for the Appellant advised the Court that the

purp0l1ed certified copy of the record from the County Commission filed on the 23 rd day of

February 2017 was not a certified copy of the entirety of the proceedings below Also counsel

for each paIty expressed confusion as to the location and celiification of all documents from the

proceedings below and requested the Court enter an Order to ensure a proper record for

consideration upon Appeal On the 261h day of April 2017 tlus Court entered an Order

directing the Fiduciary Commissioner to submit to the Clerk of the County Commission the

entirety of the record of the hearing and supplemental submissions by May 12017 the Clerk of

the County Commission to place the records received from the Fiduciary Commissioner along

with a ce11ification in the file for the Estate of Joe C Simmons the Circuit Clerk to deliver unto

the Clerk of the County Commission any and all records in her possession relating to the Estate

of Joe C Simmons along with a certification that the submitted records are the entirety of the

records maintained by the Circuit Clerk of Greenbrier County by May 12017 and the Clerk of

the County Commission to certify the entire file in her possession as the celiitied record of the

Estate of Joe C Simmons and to file the record and the ce11ification with the Circuit Clerk by

May 5 2017 On the 2nd day of May 2017 the Clerk of the County COlrunission complied with

this Order of the Court

2

Statement of Facts























3
























4








Standard of Review











the county C0U11

Legal Analvsis




5









Code sect44-2-5


against an estate











6





exists















sect44-2-6



7




Assignment of En-or















a party




8
























9











Assignment of Error













10




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12

Statement of Facts























3
























4








Standard of Review











the county C0U11

Legal Analvsis




5









Code sect44-2-5


against an estate











6





exists















sect44-2-6



7




Assignment of En-or















a party




8
























9











Assignment of Error













10




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12
























4








Standard of Review











the county C0U11

Legal Analvsis




5









Code sect44-2-5


against an estate











6





exists















sect44-2-6



7




Assignment of En-or















a party




8
























9











Assignment of Error













10




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12








Standard of Review











the county C0U11

Legal Analvsis




5









Code sect44-2-5


against an estate











6





exists















sect44-2-6



7




Assignment of En-or















a party




8
























9











Assignment of Error













10




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12









Code sect44-2-5


against an estate











6





exists















sect44-2-6



7




Assignment of En-or















a party




8
























9











Assignment of Error













10




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12





exists















sect44-2-6



7




Assignment of En-or















a party




8
























9











Assignment of Error













10




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12




Assignment of En-or















a party




8
























9











Assignment of Error













10




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12
























9











Assignment of Error













10




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12











Assignment of Error













10




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12




















Assignment of Error



AFFIRMED

11


DECREED





FILED t4AY 2 3 20f7


12


DECREED





FILED t4AY 2 3 20f7


12

Documents

lower court order, In Re: The Estate of Joe C. Simmons, No. 17-0560 · 7. Upon review of the File of the Estate of Joe Simmons, objections to both claims against the Estate of Joe