Henderson v. Cook, Trustee for Noojin

• Decision Date: 23 August 2019
• Docket Number: Record No. 180772
• Citation: 831 S.E.2d 717
• Court: Virginia Supreme Court
• Parties: Moni HENDERSON v. Stephanie P. COOK, TRUSTEE and Conservator FOR Thomas E. NOOJIN

831 S.E.2d 717

Moni HENDERSON

v.Stephanie P. COOK, TRUSTEE and Conservator FOR Thomas E. NOOJIN

Record No. 180772

Supreme Court of Virginia.

August 23, 2019

Sidney H. Kirstein, Lynchburg, for appellant.

Monica Taylor Monday (Gentry Locke, on brief), for appellee.

Present: All the Justices

OPINION BY JUSTICE CLEO E. POWELL

In this appeal, we consider the effect of altered assignments of error and whether a circuit court can delegate its authority to approve or deny final accountings submitted by a trustee and conservator to the Commissioner of Accounts.

I. BACKGROUND

In 2011, upon petition of Moni Henderson, Stephanie P. Cook ("Trustee") was appointed Guardian and Conservator for Thomas E. Noojin, an incapacitated adult, and Trustee for the Noojin Living Trust ("Trust"). Henderson is Thomas’s daughter and one of the beneficiaries of the Trust. Her brother, Joseph E. Noojin, is the other Trust beneficiary.

During the administration of the trust and conservatorship, the Trustee filed regular fiduciary accountings with the Commissioner of Accounts for Botetourt County ("Commissioner") and he approved accountings one through six. Thomas died in 2015. On June 21, 2017, the Circuit Court of Botetourt County ("circuit court") entered an order providing aid and guidance to the Trustee regarding the final administration of the Trust. On December 18, 2017, the Trustee notified the beneficiaries and the circuit court that she intended to present the "Seventh and Final Accounting" as Conservator for the Estate and the "Seventh and Final Accounting" as Trustee for the Trust (collectively, the "final accountings") to the circuit court and requested that the court dismiss the case from the docket. Judge Trumbo¹ heard the matter on December 27, 2017, and had heard all related matters up until this date. A court-reporter was not present for the December 27, 2017 hearing.

The circuit court issued an order on December 29, 2017 in which it summarized the Trustee’s actions taken on behalf of the trust. The circuit court directed the Trustee to file the final accountings with the Commissioner after which "the approval of the Seventh and Final Accounting ... by the Commissioner of Accounts for Botetourt County, Virginia, shall be an approval by this court and the beneficiaries, subject to specific written objections so provided ...." The order also directed that, upon the approval of the final accountings by the Commissioner, the trust would be closed and "this Order shall become final."

Henderson’s written objections were attached to the December 29 order. Henderson objected to the procedure that the Trustee and the circuit court used because the final accountings bypassed the initial submission to and approval by the Commissioner before the circuit court ruled on the matter. There is no record demonstrating whether the circuit court considered Henderson’s objections before issuing its December 29, 2017 order.

On February 20, 2018, Henderson filed similar objections with the Commissioner, including more detailed objections to the Trustee’s fees. On March 20, 2018, the Commissioner issued his approval of the final accountings, noting "[h]owever, this Commissioner notes objections have been filed by Sidney Kirstein on behalf of Moni Henderson." Henderson filed "Exceptions and Objections" to the March 20, 2018 report by the Commissioner in the circuit court on April 3, 2018. Henderson objected to the failure of the Commissioner to hold a hearing on the matter; to the award of legal fees and expenses to the Trustee; and to the Commissioner’s authority to review the final accountings because the circuit court issued a final order on December 29. The record does not demonstrate that any further action was taken as to the final accountings by either the circuit court or the Commissioner.

On March 8, 2018, Henderson requested a hearing for certification of her Written Statement of Facts prepared in advance of her first appeal to this Court. There is no transcript of this hearing, however, the circuit court entered an order on April 3, 2018. In the order, the circuit court ruled that the December 29 order was not yet final, but would become so when the Commissioner filed the approval of the final accountings with the clerk of the circuit court. The circuit court notified the parties it reviewed both Henderson’s written statement and Cook’s proposed written statement, filed in advance of the hearing, and signed both documents. Judge Filson appended to the order copies of the signed written statements to which she had added handwritten notes stating "the Judge is unable to fully reconcile the statements of fact filed by opposing counsel. The parties were unable to agree in toto and the Judge who has heard this matter over the years is retired and unavailable to determine the issue."

This Court dismissed Henderson’s first appeal without prejudice because the December 29 order was not a final, appealable order. Henderson appealed again on April 2, 2018 "from the final order, decision and ruling of the Botetourt County Circuit Court embodied in its order dated December 29, 2017 which states that it becomes ‘final’ by issuance of the order or report of the Commissioner of Accounts which was issued March 20, 2018."

On May 10, 2018, Henderson filed a revised statement of facts in preparation for a second appeal and requested a hearing on the matter. After a hearing, the circuit court issued an order pursuant to Rule 5:11(g), in which it incorporated the previously-filed written statements.

II. ANALYSIS

A. Assignments of Error

The Trustee argues that Henderson made substantive changes to Assignments of Error 1, 2, and 3² on brief and that the appeal should be dismissed. In response, Henderson asserts that the Court should address the merits of the case because the changes were non-substantive and meant to simplify and focus the errors.

The assignments of error contained in the granted Petition for Appeal were:

1. As a matter of law, the circuit court erred by accepting a direct submittal of the fiduciary’s seventh and final accountings for the Noojin Living Trust and the Noojin estate and by delegating unto the commissioner of accounts the right to enter a final and unreviewable approval of the said accountings.

2. The circuit court erred by adopting a procedure for the review and approval of the said accountings which deprived the beneficiaries of the trust and the estate any meaningful opportunity and due process to review and challenge the fiduciary’s billings set forth in said accountings.

3. The circuit court’s procedural errors caused it to error [sic] substantively by awarding Ms. Cook legal fees for preforming [sic] non-legal administrative duties performed by Ms. Cook in her role as trustee and conservator.

The assignments of error contained in the opening brief are:

1. As a matter of law, the circuit court erred by accepting a direct submittal of the seventh and final accountings from the trustee and conservator without requiring that the final Noojin fiduciary accountings be first submitted to and ruled upon by the commissioner of accounts.

2. As a matter of law, the circuit court then erred by approving and then referring the final accountings back to the commissioner via an order purporting to empower the commissioner of accounts, not the court, to issue a final, unreviewable order approving said accountings.

3. Finally, the circuit court’s failure to require the trustee/conservator to submit her accountings to the customary statutory review procedures deprived the residuary beneficiaries of their due process rights to examine and challenge the propriety and amount of the legal and administrative fees sought by the fiduciary.

Once again, we find ourselves revisiting the issue of how to dispose of a case where the appellant has changed the assignments of error presented in the petition for appeal either in its brief or in its argument. The Court is perplexed as to why this issue continues to arise. As we have clearly stated on numerous occasions, "[i]t is improper for an appellant to change the wording of an assignment of error from that which was presented to the Court at the petition stage." Allstate Ins. Co. v. Gauthier , 273 Va. 416, 418 n.*, 641 S.E.2d 101 (2007). Accord Commonwealth v. Herring , 288 Va. 59, 71, 758 S.E.2d 225 (2014) ("[O]nce this Court grants an assignment of error in a petition for appeal, no party may thereafter alter the substance of that assignment of error without the permission of this Court—be it in a brief or at oral argument."); Northam v. Virginia State Bar , 285 Va. 429, 434 n.*, 737 S.E.2d 905 (2013) ("It is well established that the Court will not consider assignments of error as modified by an appellant’s opening brief, but only as granted by the Court."); White v. Commonwealth , 267 Va. 96, 103, 591 S.E.2d 662 (2004) (citation omitted) ("It is impermissible for an appellant to change the wording of an assignment of error, ‘especially when the assignment is set forth in the order of this Court awarding the appeal.’ "); Santen v. Tuthill , 265 Va. 492, 497 n.4, 578 S.E.2d 788 (2003) ("[A]n appellant may not change the wording of an assignment of error."); Cardinal Holding Co. v. Deal , 258 Va. 623, 629, 522 S.E.2d 614 (1999) (citation omitted) (" ‘Appeals are awarded based on assignments of error. Rule 5:17(c). The language of an assignment of error may not be changed.’ "); Black v. Eagle , 248 Va. 48, 57, 445 S.E.2d 662 (1994) ("Appeals are awarded based on assignments of error and the language of the assignments may not be changed after the appeal is awarded."); Hamilton Dev. Co. v. Broad Rock Club, Inc ., 248 Va. 40, 44, 445 S.E.2d 140 (1994) ("Appeals are awarded based on assignments of error, a required part of every petition for appeal. Rule 5:17(c). The language of an assignment of error may not be changed, especially when the assignment is set forth in the order of this Court awarding the appeal.").

Indeed, Rule...