Keesecker v. Bird

• Decision Date: 14 July 1997
• Docket Number: No. 23386,23386
• Parties: Ward W. KEESECKER, II, Plaintiff Below, Appellant, v. Walter M. BIRD, Committee for Emily Keesecker, and Arch Steiner, Committee for Emily Keesecker, Defendants Below, Appellees.
• Court: West Virginia Supreme Court

Page 754

490 S.E.2d 754

200 W.Va. 667

Ward W. KEESECKER, II, Plaintiff Below, Appellant, v. Walter M. BIRD, Committee for Emily Keesecker, and Arch

Steiner, Committee for Emily Keesecker, Defendants

Below, Appellees.

No. 23386.

Supreme Court of Appeals of

West Virginia.

Submitted Feb. 4, 1997.

Decided July 14, 1997.

Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963).

3. "Although our standard of review for summary judgment remains de novo, a circuit court's order granting summary judgment must set out factual findings sufficient to permit meaningful appellate review. Findings of fact, by necessity, include those facts which the circuit court finds relevant, determinative of the issues and undisputed." Syllabus Point 3, Fayette County National Bank v. Lilly, 199 W.Va. 349, 484 S.E.2d 232 (1997).

4. An interpretation of the West Virginia Rules of Civil Procedure presents a question of law subject to a de novo review.

5. The purpose of West Virginia Rule of Civil Procedure Rule 17(a) [1978] is to ensure that the party who asserts a cause of action possesses, under substantive law, the right sought to be enforced. Rule 17(a) allows circuit courts to hear only those suits brought by persons who possess the right to enforce a claim and who have a significant interest in the litigation. The requirement that claims be prosecuted only by a real party in interest enables a responding party to avail himself of evidence and defenses that he has against the real party in interest, to assure him of finality of judgment, and to protect him from another suit later brought by the real party in interest on the same matter. In its modern formulation, Rule 17(a) protects a responding party against the harassment of lawsuits by persons who do not have the power to make final and binding decisions concerning the prosecution, compromise, and settlement of a claim.

6. The choice of law doctrine of lex loci rei sitae controls as to property located in this State. The doctrine of lex loci rei sitae exists because it is particularly important that there be certainty, predictability and uniformity of result and ease in the determination and application of the law to be applied concerning the transaction of property and the management of property.

7. "In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury." Syllabus Point 4, Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).

Richard G. Gay, Berkeley Springs, for Appellant Keesecker.

Christopher D. Janelle, Martinsburg, for Appellee Bird.

Charles S. Trump, IV, Berkeley Springs, for Appellee Steiner.

STARCHER, Justice:

This case involves the application of summary judgment to claims of waste to a remainderman's interest in real and personal property. The plaintiff-appellant, Ward Keesecker, II, is the owner of a remainder interest in property bequeathed by will to Emily Keesecker for her life. The defendant-appellees, Walter M. Bird and Arch Steiner, were appointed by the circuit court of Arlington County, Virginia as the personal representatives over Emily Keesecker's affairs between 1981 and her death in 1993. ¹ The appellant alleges that the appellees, while overseeing Emily Keesecker's affairs, negligently allowed the property in the life estate to deteriorate, and subsequently permitted the property to be mostly destroyed.

This appeal is the result of the circuit court's granting of summary judgment to the appellees. The circuit court ruled (1) that appellee Bird was "not a proper party" to this litigation, and (2) that the statute of limitations barred all claims against appellee Steiner. We find that the circuit court's summary judgment order as to appellee Bird is inadequate because it fails to identify the circuit court's factual and legal analysis, and we also hold that the circuit court incorrectly applied the "real party in interest" analysis found in West Virginia Rules of Civil Procedure (" W.Va.R.Civ.P.") Rule 17(a) [1978]. However, with respect to appellee Steiner, the record establishes that while Steiner was managing the property between 1981 and 1986, the appellant knew that waste was occurring, knew that Steiner last managed the property in 1986, and knew that Steiner's conduct may have caused or contributed to the property damage, yet the appellant waited over six years to initiate this lawsuit against Mr. Steiner. As such, the appellant's claims against appellee Steiner are barred by the applicable two-year statute of limitation. Accordingly, we reverse the circuit's order as to Mr. Bird, affirm the order dismissing the claims against Mr. Steiner, and remand the case for further proceedings.

I. Facts and Background

In late 1974, Ward W. Keesecker, Sr., ("Dr.Keesecker") and his second wife, Emily M. Keesecker, who were both residents of Morgan County, West Virginia, were involved in an automobile accident. Dr. Keesecker died from his injuries on January 24, 1975. Emily Keesecker was hospitalized and later moved to a nursing home where she remained until her death on May 15, 1993. Testimony by the parties indicates that she was comatose for the last nine years of her life.

In his will, Dr. Keesecker gave certain real and personal property to Emily Keesecker for her life, and upon her death the remainder was to go to his son (by his first marriage), appellant Ward W. Keesecker, II. The real property, Highwood House, was a large home located in Berkeley Springs, West Virginia with more than 20 rooms and four floors. One insurance agent inspected the home in 1984 and found it had a replacement cost of $361,878.00, while another agent estimated the replacement value at $207,981.00. The personal property in the life estate consisted of the contents of Highwood House. The appellant alleges that the home was filled with antiques.

At some point prior to 1981, Emily Keesecker was moved to a nursing home in Arlington County, Virginia. On May 1, 1981, the Circuit Court of Arlington County, Virginia, appointed appellee Arch Steiner as "Committee of the estate of Emily M. Keesecker." Mr. Steiner moved to Tennessee in 1986, and on June 26, 1986 the Circuit Court of Arlington County, Virginia entered an order relieving Mr. Steiner of his duties and appointing appellee Walter Bird ² as committee for Emily Keesecker. Mr. Steiner prepared a seven-page, single-spaced inventory listing the contents of each room of Highwood House and stated that these items were transferred to Mr. Bird. In his deposition, Mr. Bird acknowledged he inspected the house and signed the inventory list accepting the property.

Over the years of Mr. Bird's tenure as committee for the estate of Emily Keesecker, Highwood House was burglarized numerous times. Mr. Bird testified that he recalled reporting to the police more than a dozen thefts of personal property from Highwood House. No one was ever arrested for these burglaries. Mr. Bird also gave somewhat contradictory testimony about whether he sought indemnity for these losses from the homeowner's insurance company. ³ He testified that he never made any claims for losses or damages to the insurance company for any of these breaking and enterings, but he later said he had simply called his insurance agent to report these crimes. Mr. Bird testified the insurance agent said he would get back to him, but he "never heard anything back."

Accounting statements filed by Mr. Bird reflect income from the rental of Highwood House between June 1986 and June 1990, in addition to Emily Keesecker's pension and social security checks. By 1990, it appears that Mr. Bird became unable to rent the Highwood property. He boarded up the windows and padlocked the doors. Because the property was unoccupied, the homeowner's insurance company canceled all insurance policies on Highwood House effective January 26, 1990. Mr. Bird contacted his personal insurance agent and discussed insuring the property through another company, but later told the agent that he did not wish to purchase insurance coverage at that time.

On November 30, 1990, the Virginia Commissioner of Accounts wrote to Mr. Bird stating that the Commissioner would no longer approve disbursements from Mrs. Keesecker's estate account to pay for utilities, maintenance, or repairs to the house. The letter advised Mr. Bird to consider selling the house or abandoning it if it was of no value. It appears that Mr. Bird then listed the house with a local real estate company and indicated the selling price was $78,000. ⁴

In April or May 1991, Mr. Bird returned to his insurance agent's office and asked about the possibility of insuring Highwood House. The insurance agent assisted Mr. Bird in completing an application for homeowner's insurance. However, in his deposition, the insurance agent testified that he did not process the application because Mr. Bird never paid the premiums for coverage.

On December 11, 1991, Mr. Bird wrote to appellant Ward Keesecker, II, saying that he had located a buyer willing to pay $78,000 for Highwood House and that he needed Mr. Keesecker to sign a contract approving the sale. Mr. Keesecker testified in his...