Haines v. Kimble

• Decision Date: 28 June 2007
• Docket Number: No. 32844.,32844.
• Citation: 221 W.Va. 266,654 S.E.2d 588
• Court: West Virginia Supreme Court
• Parties: Linda J. HAINES, M.D., Beneficiary of the Estate of Ralph W. Haines, Deceased, Petitioner Below, Appellant, v. Pamela K. KIMBLE, Executrix of the Estate of Ralph W. Haines, Deceased, Respondent Below, Appellee.

654 S.E.2d 588

221 W.Va. 266

Linda J. HAINES, M.D., Beneficiary of the Estate of Ralph W. Haines, Deceased, Petitioner Below, Appellant, v. Pamela K. KIMBLE, Executrix of the Estate of Ralph W. Haines, Deceased, Respondent Below, Appellee.

No. 32844.

Supreme Court of Appeals of West Virginia.

Submitted on Rehearing October 25, 2006.

Decided June 28, 2007.

SYLLABUS BY THE COURT

1. "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).

2. "This Court will not consider questions, nonjurisdictional in their nature, not acted upon by the circuit court as an intermediate appellate court." Syllabus point 1, Pettry v. Chesapeake & Ohio Railway Company, 148 W.Va. 443, 135 S.E.2d 729 (1964).

Michael E. Caryl, Esq., Martinsburg, WV, and Curtis G. Power, III, Esq., Winchester, VA, for Appellant.

Royce B. Saville, Esq., Romney, WV, for Appellee.

PER CURIAM.

The appellant herein and petitioner below, Linda J. Haines (hereinafter "Haines" or "appellant"), appeals from an order of the Circuit Court of Hampshire County (hereinafter "the circuit court"), wherein the circuit court on appeal affirmed an order of the County Commission of Hampshire County (hereinafter "the county commission") denying the petition of Haines to remove Pamela K. Kimble (hereinafter "Kimble" or "appellee") as the designated executrix of the estate of Ralph W. Haines, the deceased father of the appellant, the sole beneficiary of his estate. After a careful review of the record and briefs, and having listened to the arguments of the parties, we affirm the order of the circuit court.

I. FACTS AND PROCEDURAL HISTORY

Ralph W. Haines, a life-long resident of Hampshire County, West Virginia, and an attorney in Romney for more than fifty years, died testate on May 3, 2002, leaving a last will and testament dated March 16, 1993 (hereinafter "will"), and an estate worth approximately $10 million. He devised and bequeathed his entire estate to the appellant, his only child; nominated and appointed Pamela K. Kimble, the appellee, as executrix of his will; and stated that he had given Kimble separate instructions regarding the handling of his estate.

The will was admitted to probate, and Kimble was appointed and qualified as executrix, on May 13, 2002. A few days later, Haines, through her attorney, wrote a letter to Kimble suggesting that she should not serve as executrix. On August 1, 2002, Haines filed with the county commission an objection to the appointment of Kimble as executrix and a petition for Kimble's removal and the appointment of herself as administratrix, with will annexed, to administer the estate of her father in the place and stead of Kimble (hereinafter "objection and petition").

In her objection and petition, Haines alleged that Kimble's hostility towards her, as well as mutual between them had jeopardized the efficient and effective administration of Mr. Haines' estate. Haines claimed that prior to her appointment and since, Kimble had actively supported and advanced the interests of other persons to the extreme prejudice of the estate; and that as a result of the actions of Kimble, her ability to faithfully execute her fiduciary's duties to the estate could be reasonably questioned. Kimble denied the allegations.

Because of perceived conflicts on the part of the fiduciary commissioners in Hampshire County, the county commission referred Haines' objection and petition to William H. Judy, III, a Hardy County attorney, to serve as special fiduciary commissioner to hear proof thereon, to make findings therefrom, and to advise the county commission on the law governing the decision of the matter. Judy conducted an evidentiary hearing on October 23, 2002. Six witnesses testified: Haines, Kimble and four witnesses on behalf of Kimble.

Kimble testified that she had had a very special relationship with Mr. Haines during the twenty-four years she served as his legal secretary: "Mr. Haines and I were boss and secretary, but we ... had a very close personal relationship. I felt towards him as a father figure. We bonded together ... when he needed something, he called me. I was the first one he called ... he called me no matter what time of the night if he had a problem or just wanted to talk ... he told me things, he said, that he never told anybody else ... He said I always made him feel better when he called me."

Acquaintances of the deceased testified that Mr. Haines relied upon, respected and trusted Kimble in their professional and personal relationships; that he often remarked that he didn't know what he would do without her; that she was efficient in assisting Mr. Haines in settling estates; and that Mr. Haines "knew exactly who he wanted to take care of his affairs" and that "he probably wanted to compensate [Kimble]" by naming her as the executrix of his estate.

As evidence of Mr. Haines' trust in Kimble, on August 23, 2000, he named her as his true and lawful attorney-in-fact and gave her broad powers to act on his behalf even though the appellant, his daughter, a physician, was then living in Romney. Mr. Haines in his will also expressed a desire that Kimble act as guardian of his grandson should his daughter predecease him.

Haines testified that she graduated from Hampshire County High School, with honors, that she had Phi Beta Kappa honors from Wellesley College, and that she received an M.D. degree from the University of Michigan. In 1993, when her father signed his will, she was living in Waltham, Massachusetts. In late 1999, she and her son, Benjamin, moved back to Romney to reside in the home of her father.

A significant part of Haines' testimony touched upon the relationship she had with her father (a relationship which Haines described as being "alienated") and the relationship which Haines had with Verna Kestner, a friend of her father's, between the time Haines returned to Romney in 1999 and the date of her father's death in 2002. At or about that time in 1999, her father ceased living in his home wherein Haines and her son had taken up residence. Mr. Haines represented to his daughter that he was staying at his apartment in the back of his office and that he preferred to stay there. Haines believed what her father had told her for a time until she later learned that he was probably living with someone else that he didn't let her know about. That someone else was later identified as Verna Kestner, a woman whom Haines described as her father's girl friend and a woman to whom Mr. Haines gave his medical power of attorney, despite the fact that his daughter, a medical doctor, was then living in Romney. Kimble testified that Mr. Haines was "afraid" and "petrified" that his daughter was going to put him into a nursing home.

Although not living with Haines and her son, Mr. Haines had frequent lunches and dinners with them, and often came to the house after work to play with his grandson. Over time, the lunches together became more intermittent and his visits after work at the home where Haines and her son were living became less frequent. Haines visited her father one morning in 2000 at Verna Kestner's house. She asked him if he could go out with her later in the day which he turned down saying that he was too weak to even walk across the room. When she returned to Verna Kestner's house later in the day, her father and Verna Kestner were just returning home to the Kestner house. Haines surmised that they must have been on a shopping trip, because there were shopping bags in the car.

On appeal, Haines focuses upon eight claimed instances of hostility between herself and Kimble. In support or proof thereof, she makes specific references to the October 23, 2002, hearing and exhibits placed in evidence at that time. Haines collectively describes the first four of the claimed instances of hostility as "the Appellee's pre-mortem hostility," and the last four as "Appellee's initial post-mortem hostility," with "pre" meaning prior to Mr. Haines' death on May 3, 2002, and "post" meaning after his death. Specifically, Haines cites the following instances of alleged hostility which she contends should disqualify Kimble as executrix of Mr. Haines' estate:

1. Kimble's refusal to honor Haines' written request to be kept informed of significant adverse developments regarding her father's health. This written request followed a second hospitalization of Mr. Haines in August 2000, of which Haines was not informed by either Kimble or Kestner. Haines testified that Kestner had told her that she wanted to call her about the hospitalization but that Kimble had said no. Mr. Haines had two separate hospital admissions in January 2001, of which Haines was informed by Kestner. In April, 2002, Mr. Haines was hospitalized with a broken hip and Haines was informed thereof in a voice mail from an emergency room nurse.

Kimble testified that she was instructed by Mr. Haines not to call his daughter when he had his first hospitalization in August, 2000, and that he told her that he didn't want his daughter to know of his second hospitalization that month. Kimble related that "[i]f [Mr. Haines] would have told me he wanted Linda Jane [Haines] there, I would have called, but he was my boss, I had to answer to him and that's what I did."

2. Kimble's persistent and open favoritism of the interests and feelings of Verna Kestner — the woman who Haines believed was, with Kimble's active assistance, manipulating her father to his great detriment. Haines testified that Kimble wrote checks to Kestner and supported and encouraged her father's relationship with Kestner which damaged their father-daughter relationship. Haines has not claimed that the check writing was without the consent and knowledge...