Full Opinion (html_with_citations)

       IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
                                                                           FILED
RICHARD B. TIMMIS,
                                                                      December 15, 2023
                                                                         EDYTHE NASH GAISER, CLERK
Respondent Below, Petitioner                                           INTERMEDIATE COURT OF APPEALS
                                                                              OF WEST VIRGINIA

vs.) No. 22-ICA-235         (Cir. Ct. Doddridge Cnty. Case No. CC-09-2022-P-13)

CHARLES P. ANDREW,
Petitioner Below, Respondent


                             MEMORANDUM DECISION

        Petitioner Richard B. Timmis appeals the Circuit Court of Doddridge County’s
October 13, 2022, order. In that order, the circuit court concluded that Mr. Timmis was not
qualified to serve as administrator of the estate of his deceased wife, Jacqueline Timmis,
because Mr. Timmis was the defendant in a civil action brought against him by the Estate
of Jacqueline Timmis. Respondent Charles P. Andrew filed a summary response in support
of the circuit court’s order. 1 Mr. Timmis filed a reply.

       This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2022). After considering the parties’ arguments, the record on appeal, and the
applicable law, this Court finds that there is error in the circuit court’s decision but no
substantial question of law. Therefore, a memorandum decision reversing the circuit
court’s order is appropriate under the “limited circumstances” requirement of Rule 21(d)
of the Rules of Appellate Procedure.

       The facts of this matter are not in dispute. At all times relative hereto, Jacqueline
Timmis was the daughter of Respondent Mr. Andrew and the wife of Petitioner Mr.
Timmis, with whom she had two children. On November 6, 2020, a warrant was issued for
the arrest of Mr. Timmis for the domestic assault of his wife, Ms. Timmis. On December
29, 2020, Mr. Timmis pleaded guilty to one count of misdemeanor domestic battery against
Ms. Timmis.

       On May 20, 2021, Ms. Timmis and the Timmis children were involved in a motor
vehicle accident in Doddridge County, West Virginia. Ms. Timmis and one of the children
were killed. Both died intestate. At the time of the accident, Mr. Timmis and Ms. Timmis


       1
       Mr. Timmis is represented by James R. Leach, Esq., Victoria J. Sopranik, Esq.,
and Devyn R. Leach, Esq. Mr. Andrew is represented by George J. Cosenza, Esq.


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were married, but were separated and a petition for divorce had been filed, though no final
order had been entered.

       On June 3, 2021, Mr. Andrew appeared before the Clerk of the County Commission
of Doddridge County (“Clerk”) and requested to be appointed as the administrator of the
estates of Jacqueline Timmis and her deceased child. Mr. Andrew was appointed
administrator of the estates on June 4, 2021. Later that same day, Mr. Timmis appeared
before the Clerk to be appointed administrator of both estates. The Clerk reviewed the
application by Mr. Timmis, then notified Mr. Andrew, through his counsel, that she was
revoking the grant of administration of Mr. Andrew and appointing Mr. Timmis as
administrator of both estates.

        On June 10, 2021, Mr. Andrew filed a petition for writ of prohibition in the Circuit
Court of Doddridge County, against the County Commissioners of Doddridge County and
the Clerk. The petition requested that the respondents therein be prohibited from revoking
Mr. Andrew’s appointment as administrator of the estates and from appointing Mr. Timmis
as administrator of the estates. Mr. Timmis sought to intervene in the proceeding on the
basis that he was the surviving spouse and biological father of the children of Ms. Timmis,
and, thus, he was the sole heir and distributee of the estates.

       Mr. Andrew filed a response to the motion to intervene, arguing that Mr. Timmis
could not legally act as administrator because it would be a conflict of interest due to the
yet unfiled personal injury claim on behalf of his daughter’s estate against Mr. Timmis
based on Mr. Timmis’ December 29, 2020, guilty plea. Mr. Andrew simultaneously filed
an amended petition for writ of prohibition that added an additional count alleging that this
conflict of interest would disqualify Mr. Timmis. On July 8, 2021, the circuit court entered
its order granting the writ of prohibition, setting aside the appointment of Mr. Timmis,
reinstating Mr. Andrew as the administrator of the estates and denying Mr. Timmis’ motion
to intervene. In that order, the circuit court concluded that the Clerk did not have the
statutory authority to remove Mr. Andrew once she made the appointment. The circuit
court’s order noted that Mr. Timmis’ only remedy was to file an objection to the
appointment of Mr. Andrew with the county commission.

      Thereafter, on August 26, 2021, Mr. Andrew, as Administrator of the Estate of
Jacqueline Timmis, filed a lawsuit in the Circuit Court of Doddridge County alleging the
personal injury of Ms. Timmis based on the prior domestic abuse of Ms. Timmis by Mr.
Timmis. On that same date, Mr. Andrew, as Administrator of the Estate of Jacqueline
Timmis, also filed a wrongful death complaint against KAS Trucking, LLC, and one of
KAS Trucking, LLC’s employees, arising from the May 20, 2021, motor vehicle accident.

        On an unknown date, Mr. Timmis filed, with the county commission, an objection
to the qualifications of Mr. Andrew as administrator of both estates and a petition to remove
Mr. Andrew as administrator of both estates with the appointment of Mr. Timmis in his


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stead. A hearing was held on December 20, 2021, before the county commission. On
January 4, 2022, the county commission entered an order that rejected Mr. Andrew’s
argument that Mr. Timmis was disqualified due to the lawsuit filed against him by the
estate of Ms. Timmis. The order removed Mr. Andrew as the administrator as if he had
never been appointed, voided all actions taken by Mr. Andrew ab initio, and appointed Mr.
Timmis as the administrator of both estates as of June 4, 2021.

        Mr. Andrew appealed the January 4, 2022, order of the county commission to circuit
court only as it related to the estate of Ms. Timmis. 2 Mr. Timmis filed a motion to dismiss
the appeal, arguing that since Mr. Andrew was not a distributee of the estate of Ms. Timmis,
he had no standing to pursue the appeal; that Mr. Timmis was not disqualified because of
a potential claim by Ms. Timmis’ estate against him; and that Mr. Andrew failed to properly
file and perfect the appeal. On August 22, 2022, a hearing was held on the appeal and
motion to dismiss. On October 13, 2022, the circuit court entered an order that granted Mr.
Andrew’s petition for appeal and denied Mr. Timmis’ motion to dismiss. The circuit court
concluded that because of the estate’s pending lawsuit against Mr. Timmis and Mr.
Timmis’ clear intention not to proceed with the suit if he is named administrator of the
estate, Mr. Timmis could not, as a matter of law, act in a fiduciary capacity as is required
of an administrator. The circuit court went on to vacate Mr. Timmis’ appointment, restore
Mr. Andrew as the administrator, and hold that “[i]nasmuch as the Order of the 4th day of
January, 2022, of the County Commission of Doddridge County, West Virginia, purports
to affect the Orders of the Circuit Court of Doddridge County, West Virginia, the same is
ultra vires.” The circuit court denied Mr. Timmis’ motion to dismiss “insomuch as the
[circuit court] has jurisdiction of this matter.” It is from this order that Mr. Timmis appeals.

        On appeal, we apply the following standard of review: “‘This Court reviews the
circuit court’s final order and ultimate disposition under an abuse of discretion standard.
We review challenges to findings of fact under a clearly erroneous standard; conclusions
of law are reviewed de novo.’ Syllabus Point 4, Burgess v. Porterfield,
196 W. Va. 178
,
469 S.E.2d 114
 (1996).” Syl. Pt. 1, State v. Spade,
225 W. Va. 649
,
695 S.E.2d 879
 (2010).

        As noted previously, the facts of this matter are not in dispute; rather, resolution of
this appeal turns solely on questions of law and application of the facts to the law. The crux
of the circuit court’s October 13, 2022, order is that if Mr. Timmis remained as
administrator of Ms. Timmis’ estate, he would have a conflict of interest due to the lawsuit
against him resulting in a breach of his fiduciary duty. Mr. Andrew argues that if Mr.
Timmis does not pursue the lawsuit against him, the “potential benefit to the remaining
heir of [Ms. Timmis] would be compromised and the ends of justice will not be served.”



       2
         Mr. Andrew did not seek to appeal his removal as the administrator of the estate
of the deceased Timmis child.

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        Under West Virginia law, appointment as administrator of a decedent’s estate
imposes a fiduciary duty on the administrator to the beneficiaries of the estate. See Syl. Pt.
1, Latimer v. Mechling,
171 W. Va. 729
,
301 S.E.2d 819
 (1983) (“The personal
representative of the estate of a deceased acts in a fiduciary capacity. His duty is to manage
the estate under his control to the advantage of those interested in it and to act on their
behalf.”). Therefore, Mr. Timmis’ fiduciary duty is to the beneficiaries of Ms. Timmis’
estate.

        Since Ms. Timmis died intestate, the beneficiaries of her estate are determined by
statute. Pursuant to West Virginia Code § 42-1-3(a)(2) (1993), the intestate share of a
surviving spouse of the decedent is the entire estate of the decedent if “[a]ll of the
decedent’s surviving descendants are also descendants of the surviving spouse and there is
no other descendant of the surviving spouse who survives the decedent[.]” Here, Mr. and
Ms. Timmis had two children born of their marriage. There is nothing in the record and no
assertion by either party that either Mr. Timmis or Ms. Timmis had any other descendants.
Therefore, Mr. Timmis, as the surviving spouse of Ms. Timmis, is entitled to Ms. Timmis’
entire estate. Accordingly, since Mr. Timmis is the only beneficiary/distributee of the
estate, Mr. Timmis, as administrator of Ms. Timmis’ estate, has a fiduciary duty only to
himself as it relates to the assets of the estate. Neither the circuit court nor Mr. Andrew
explain how under these circumstances, Mr. Timmis would have a conflict of interest or
how he would breach his fiduciary duty as administrator by failing to pursue the lawsuit
against him when he is the only beneficiary/distributee of the estate of Ms. Timmis. 3

        In regard to the circuit court’s ruling that “[i]nsofar as the Order of the 4th day of
January, 2022, of the County Commission of Doddridge County, West Virginia, purports
to affect the Orders of the Circuit Court of Doddridge County, West Virginia, the same is
ultra vires[,]” it appears that the circuit court was concerned with the county commission’s
ruling that the acts of Mr. Andrew, while serving as administrator, were void ab initio.
According to the circuit court, Mr. Andrew was the lawful administrator due to his



       3 Though neither Mr. Andrew nor the surviving Timmis child are entitled to any part

of Ms. Timmis’ estate and, accordingly Mr. Timmis owes them no fiduciary duty as it
relates to the assets of the estate, that is not to say that Mr. Timmis owes no duty as
administrator to Mr. Andrew and the surviving Timmis child as potential beneficiaries of
a wrongful death claim. However, since the lawsuit against Mr. Timmis is wholly unrelated
to the wrongful death claim, and any proceeds of the wrongful death claim would not
become an asset of the estate, we cannot say that Mr. Timmis would breach his fiduciary
duty to the potential beneficiaries of the wrongful death claim by failing to pursue the
lawsuit against him. See Syl. Pt. 4, McClure v. McClure,
184 W. Va. 649
,
403 S.E.2d 197
(1991).


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installation by the circuit court as a result of the writ of prohibition 4 filed by Mr. Andrew
and therefore the county commission was beyond its authority in declaring void any actions
by Mr. Andrew. This Court notes:

       The jurisdiction for probate matters, such as the appointment and
       qualification of personal representatives . . . has been vested by the
       Legislature in the county commissions . . . or the officers of such county
       commissions or tribunals, not in circuit courts or their officers. See generally,
       W. Va. Code § 44–1–1 et seq. Thus, it is the county commission which may
       revoke and annul the powers of a fiduciary under whose order, or under the
       order of whose clerk, any such fiduciary derives his authority “whenever
       from any cause it appears proper . . . .” W. Va. Code § 44–5–5 (1982).

Haines v. Kimble,
221 W. Va. 266, 274
,
654 S.E.2d 588, 596
 (2007) (per curiam) (footnote
omitted).

        The July 8, 2021, order of the circuit court was based upon a procedural defect, that
is, that the Clerk did not have the authority to unilaterally remove Mr. Andrew as
administrator once the Clerk made the appointment and that the statutory process for
objecting to Mr. Andrew’s appointment as contained in West Virginia Code § 44-1-14a
(2017) should have been followed instead. Leaving aside the propriety of such a ruling by
the circuit court, following the circuit court’s order, Mr. Timmis filed a notice of objection
to the qualifications of Mr. Andrew and a petition to remove Mr. Andrew as administrator
with the county commission, thereby curing the procedural defect that formed the basis for
the circuit court’s July 8, 2021, ruling. Following a hearing, the county commission
correctly concluded, among other things, that pursuant to West Virginia Code § 44-1-4(a)
(2019), Mr. Andrew, who was not a distributee of the estate of Ms. Timmis, could not
qualify as administrator within the first thirty days following the death of Ms. Timmis and
that Mr. Timmis, who was not disqualified from being administrator, as the sole distributee
of the estate, had an absolute right to be appointed as administrator pursuant to Syllabus
Point 2 of Taylor v. Virginia-Pocahontas Coal Co.,
78 W. Va. 455
,
88 S.E. 1070
 (1916).

        Pursuant to West Virginia Code § 44-1-6 (2021), if after administration is granted
to a person other than a distributee, “any distributee who shall not have before refused shall
apply for administration, there may be a grant of probate or administration, after reasonable

       4
         Though the July 8, 2021, order of the circuit court is not on appeal to this Court,
we note that “[a] person who is not a distributee of the estate of an intestate does not have
such an interest in the appointment of an administrator of the estate of a deceased intestate
as will entitle him to maintain a proceeding in prohibition to prevent the appointment[.]”
Syl. Pt. 7, in part, State ex rel. Linger v. Cnty. Ct. of Upshur Cnty.,
150 W. Va. 207, 208
,
144 S.E.2d 689, 692
 (1965).


                                              5
notice to such creditor or other person theretofore appointed, in like manner as if the former
grant had not been made[.]” As discussed previously, Mr. Andrew is not a distributee of
Ms. Timmis’ estate, thereby making his appointment as administrator a grant of
administration to a person other than a distributee. Therefore, once Mr. Timmis, the sole
distributee of Ms. Timmis’ estate who never refused to serve as administrator, applied to
be named administrator, and Mr. Andrew received notice, the county commission could
appoint Mr. Timmis “as if the former grant” to Mr. Andrew “had not been made[.]” See
id.
Therefore, the county commission acted within its statutory authority when it declared the
actions of Mr. Andrew while administrator void ab initio.

       Finally, Mr. Timmis asserts that the circuit court should have refused Mr. Andrew’s
appeal because Mr. Andrew did not obtain a bill of exceptions or a certificate as required
by West Virginia Code § 58-3-3 (1881), and because his petition for appeal was not
accompanied by the original record as required by West Virginia Code § 58-3-4 (1882).
As an initial matter, we note that pursuant to Rule 80(f) of the West Virginia Rules of Civil
Procedure, bills and certificates of exception are abolished. In regard to the filing of the
original record with the petition, West Virginia Code § 58-3-4 states that a petition for
appeal from an order of the county commission “shall be accompanied by the original
record of the proceeding in lieu of a transcript thereof.” In his summary response, Mr.
Andrew simply states, without citation to the record, that his appeal was properly perfected.
Given that it appears that the original record was not filed with the petition for appeal, Mr.
Andrew’s appeal was not properly perfected, and the circuit court should have refused the
appeal.

       Accordingly, based on the foregoing, we find that the circuit court abused its
discretion by vacating Mr. Timmis’ appointment and restoring Mr. Andrew’s appointment.
Therefore, we reverse the circuit court’s October 13, 2022, order.

                                                                                   Reversed.


ISSUED: December 15, 2023

CONCURRED IN BY:

Chief Judge Daniel W. Greear
Judge Thomas E. Scarr
Judge Charles O. Lorensen




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