Gomez v. Smith, No. 18-0426

• Court: Supreme Court of West Virginia
• Writing for the Court: Workman, Justice
• Citation: 845 S.E.2d 266
• Parties: The ESTATE OF A. Rafael GOMEZ, BY AND THROUGH the Executor of His Last Will and Testament, Mark GOMEZ, Plaintiff below, Petitioner v. Andrea G. SMITH and Western Surety Company, Defendants Below, Respondents Mark Gomez, Executor of the Estate of Aurelio Rafael Gomez, M.D., David Brent Gomez, and Robert Brian Gomez, Defendants, Third Party Plaintiffs, & Counter Claimants Below, Petitioners v. Andrea Gomez Smith and Matthew Eric Gomez, D.O., Plaintiffs & Counter Defendants Below and Kayla Addison, Empower Retirement, and Western Surety Co., Third Party Defendants Below, Respondents
• Decision Date: 26 May 2020
• Docket Number: No. 18-0426

845 S.E.2d 266

The ESTATE OF A. Rafael GOMEZ, BY AND THROUGH the Executor of His Last Will and Testament, Mark GOMEZ, Plaintiff below, Petitioner
v.
Andrea G. SMITH and Western Surety Company, Defendants Below, Respondents

Mark Gomez, Executor of the Estate of Aurelio Rafael Gomez, M.D., David Brent Gomez, and Robert Brian Gomez, Defendants, Third Party Plaintiffs, & Counter Claimants Below, Petitioners
v.
Andrea Gomez Smith and Matthew Eric Gomez, D.O., Plaintiffs & Counter Defendants Below
and
Kayla Addison, Empower Retirement, and Western Surety Co., Third Party Defendants Below, Respondents

No. 18-0426

Supreme Court of Appeals of West Virginia.

Submitted: January 29, 2020
Filed: May 26, 2020

Mark Gomez, Pro Se, Charleston, West Virginia, Executor for the Estate of A. Rafael Gomez.

Gary E. Pullin, Esq., Christopher C. Ross, Esq., Pullin, Fowler, Flanagan, Brown & Poe, PLLC, Charleston, West Virginia, Counsel for Respondent/Third-Party Defendant Western Surety Company.

Ancil G. Ramey, Esq., Steptoe & Johnson, PLLC, Huntington, West Virginia, Peter J. Raupp, Esq., Katherine M. Mullins, Esq., Steptoe & Johnson, PLLC, Charleston, West Virginia, Counsel for Respondent/Third-Party Defendant Kayla Addison.

Richard F. Neely, Esq., Charles W. Neely, Esq., Neely & Callaghan, Charleston, West Virginia, Counsel for Respondents Andrea Gomez Smith and Matthew Eric Gomez, D.O.

James C. Stebbins, Esq., Lewis Glasser PLLC, Charleston, West Virginia, Counsel for Respondent/Third-Party Defendant Empower Retirement.

Workman, Justice:

845 S.E.2d 270

Petitioner, Estate of A. Rafael Gomez, by its executor, Mark Gomez, seeks reversal of an order entered by the Circuit Court of Kanawha County, West Virginia, dismissing the estate's lawsuit on the ground that Mark Gomez, as a non-attorney executor, is not authorized to file pleadings or otherwise represent the estate in judicial proceedings. Mark Gomez, together with his brothers David Brent Gomez and Robert Brian Gomez, has also filed an appeal in a companion case, a will contest instituted by Andrea Gomez Smith and Matthew Eric Gomez, D.O., in which Mark Gomez has filed pleadings and argued in court both on his own behalf and also on behalf of the estate.

"An old proverb warns us to take heed lest we ‘walk into a well from looking at the stars.’ " Brammer v. Taylor , 175 W. Va. 728, 729, 338 S.E.2d 207, 208 (1985) (citing Terminiello v. City of Chicago , 337 U.S. 1, 14, 69 S.Ct. 894, 93 L.Ed. 1131 (1949) ) (Jackson, J., dissenting). Although this case, which is factually and procedurally unique, appears at first glance to be quite complex, we will "bring the [single legal issue] down to earth by a [rather] long recital of facts." Id.

I. FACTS AND PROCEDURAL BACKGROUND

The five grown children of Margaret J. Gomez (hereinafter "Mrs. Gomez") and Dr. A. Rafael Gomez (hereinafter "Dr. Gomez") have been at odds over the disposition of their parents’ property, both real and personal, since long before the parents died on November 2, 2015, and May 4, 2017, respectively. Although the briefs and appendix record are replete with accusations of impropriety and illegality, most leveled by petitioner Mark Gomez (hereinafter "Mark") against respondent Andrea Gomez Smith (hereinafter "Andrea") and by Andrea against Mark, the only material facts established to this point in the litigation are as follows.

On June 14, 2016, approximately ten months before his death, Dr. Gomez executed a will leaving everything to three of his children, petitioners Mark, Robert Brian Gomez, and David Brent Gomez, and specifically disinheriting his other two children, respondents Andrea and Matthew Eric Gomez, D.O.

On a date uncertain, but shortly before Dr. Gomez’ death, Mark accompanied his father to City National Bank for the purpose of depositing a substantial Internal Revenue Service refund check into Dr. Gomez’ bank account. For reasons that are not yet established in the record by competent evidence, third-party defendant Kayla Addison, an employee of the bank, held the check for approximately one week before putting it through.¹

On June 5, 2017, approximately five weeks after Dr. Gomez’ death, Andrea, apparently believing that her father had died intestate, went to the Office of the Fiduciary Commissioner of Kanawha County, West Virginia, and had herself appointed administratrix of his estate. To that end, respondent Western Surety Company (hereinafter "Western Surety") underwrote a fiduciary bond to ensure Andrea's proper performance of her duties as administratrix.²

Two days after Andrea's appointment as administratrix of Dr. Gomez’ estate, Mark went to the courthouse and filed his father's will, which appointed him (Mark) as executor; accordingly, by order dated June 7, 2017, Andrea's appointment was revoked. As executor, Mark immediately sought to have Empower Retirement (hereinafter "Empower"), which held the proceeds of two annuities which had been purchased by Dr. Gomez, remit the funds to the estate. Empower,

845 S.E.2d 271

which was on notice that there existed a dispute as to which party, Mark or Andrea, was entitled to act on behalf of the estate, refused to do so absent a court order.³

Civil Action No. 17-C-1292

On September 13, 2017, Mark, in his capacity as Executor of the Estate of Aurelio Rafael Gomez, M.D., filed a complaint styled Demand for Return of Estate Property and Complaint for Conversion and Request for Immediate Relief (hereinafter "the conversion case") against respondents Andrea and Western Surety. In this complaint, it was alleged that soon after the death of Mrs. Gomez, Andrea took possession of her mother's jewelry, alleged to be worth at least $120,000.00, and thereafter refused all demands that the items be returned. It was further alleged that "it was common knowledge within the family" that Mrs. Gomez intended for her jewelry to go to Robert Gomez, while Andrea counters that Mrs. Gomez intended the jewelry to be a gift from a mother to her only daughter. The allegation in the complaint against Western Surety was that the bond which was executed at the time of Andrea's short-lived appointment as administratrix requires Western Surety to stand good for any damages awarded against Andrea in the litigation.

Of significance to this appeal, Mark signed and filed the complaint in the conversion case as "Executor, Estate of A. Rafael Gomez," despite the fact that although he is law-trained, he is not an attorney licensed to practice law in West Virginia or in any other state. Both defendants filed motions to dismiss the complaint; in addition, defendant Western Surety Company filed a motion to strike the pleadings and a motion to enjoin Mark from filing any further pleadings, on the ground that he was engaged in the unlawful practice of law.⁴ On May 9, 2018, the court below entered its order granting both parties’ motions to dismiss and Western Surety's motion to strike, and further enjoining Mark from filing any further pleadings not only in the conversion case but also in a companion case, 17-P-402, a will contest. In this regard, it should be noted that the circuit court, which had both cases on its docket, had specifically refused to consolidate the matters.⁵

No. 17-P-402

On October 25, 2017, Andrea and Matthew Eric Gomez, D.O., filed a complaint styled Petition to Invalidate and Hold for Naught the Last Will and Testament of Aurelio Rafael Gomez, M.D. deceased pursuant to W. Va. Code 41-5-11 [1994] (hereinafter "the will contest"), which was both a will contest filed against Mark as executor of the estate of Dr. Gomez, and also a fraud and conversion action against Mark individually. Thereafter, the case blossomed and grew as Mark filed counterclaims against the plaintiffs and third-party claims against Western Surety, Kayla Addison, and Empower. Additionally, in an attempt to forestall any objection to his representation of the interests of the estate and its other beneficiaries, he joined Robert Brian Gomez and David Brent Gomez as party defendants, each acting pro se.

Following an unsuccessful attempt by Robert Gomez to remove the case to federal court, and thereafter a barrage of motions filed by Mark on issues ranging from his request that the circuit court punish Andrea for alleged violations of the Health Insurance

845 S.E.2d 272

Portability and Accountability Act of 1966, and specifically 42 U.S.C. 1320d-6(a)(2),⁶ to his request that the court take judicial notice of weather conditions on certain dates, the case came before the court on Mark's motions (1) to dismiss based on lack of specificity in the complaint, (2) to dismiss the individual claims against him based on lack of standing, (3) to strike private medical information (the medical records of Dr. Gomez), (4) for summary judgment, and (5) to consolidate the will contest with the conversion case. By order entered on April 17, 2018, the court denied the first three motions on the merits; denied the motion for summary judgment as "entirely premature," inasmuch as almost no discovery had been done (Mark having refused to respond to interrogatories and requests for production); and denied the motion to consolidate. In its order, the...