In re Appointment of Trustees for Woodlawn

Decision Date02 June 2008
Docket NumberNo. 33458.,33458.
PartiesIn re Petition for APPOINTMENT OF TRUSTEES FOR WOODLAWN CEMETERY.
CourtWest Virginia Supreme Court

Syllabus by the Court

"In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.'" Syllabus Point 2, Walker v. West Virginia Ethics Com'n, 201 W.Va. 108, 492 S.E.2d 167(1997).

Gregory H. Schillace, Esq., Thelma E. Poe, Esq., Clarksburg, WV, for Woodlawn Cemetery Co. and Jack Lee Decker.

Neal J. Hamilton, Esq., Fairmont, WV, for Court-Appointed Trustees of Woodlawn Cemetery.

PER CURIAM.

In this appeal from the Circuit Court of Marion County, we are asked to examine two orders that appointed five individuals as trustees over a cemetery. As set forth below, we affirm the circuit court's orders.

I.

The parties in this case dispute who should oversee the care, maintenance and operation of Woodlawn Cemetery in Marion County, West Virginia. The appellants are individuals who hold themselves out to be the officers of the Woodlawn Cemetery Company. The appellees are five individuals with relatives buried in the cemetery.

The record indicates that the first burial on the land that would become Woodlawn Cemetery occurred in 1875.1 The appellant, Woodlawn Cemetery Company, was formed to oversee a cemetery on the land in 1885, and the company was formally incorporated and registered with the Secretary of State as a corporation in 1935.2

Since 1929, cemeteries have been allowed to create "permanent endowment funds" for "beautifying and maintaining cemeteries." See W.Va.Code, 35-5-3 [1929].3 However, in 1973, the Legislature passed laws prohibiting cemeteries from operating (after July 1, 1973) without creating and funding a permanent endowment care trust fund. Furthermore, the laws required cemeteries to produce statements of any income, and to place a portion of the proceeds of the sale of any burial plots into the cemetery's permanent endowment care trust fund. See W.Va.Code, 35-5A-1 to -8 [1973].

In accordance with the statutes, on February 28, 1974, an attorney acting on behalf of the Woodlawn Cemetery Company deposited a check in the amount of $10,000.00 into the "Woodlawn Cemetery Perpetual Care Trust." Over the years, the cemetery's perpetual care trust has grown in value to approximately $35,000.00. The bank overseeing the perpetual care trust, WesBanco Bank, Inc., continues to make annual disbursements to Woodlawn Cemetery Company of interest income from the trust for use in maintaining the cemetery.

It appears that in 1996, the Board of Directors of the Woodlawn Cemetery Company met and experienced a reorganization or "shake-up," as the circuit court found. The then-president and members apparently resigned, and appellant Jack Lee Decker somehow became a member of the Board of Directors. Since 1996, Mr. Decker has been on the Board, and has been instrumental in maintaining the Woodlawn Cemetery. Various members of Mr. Decker's family compose the remainder of the Board of Directors.4

However, no minutes or other records were introduced below showing how the current members of the Board were selected. One surviving member of the pre-1996 Board of Directors, J. Mark Trach, testified that he was present at the 1996 reorganization meeting and that he does not recall voting Mr. Decker onto the Board of Directors. Mr. Trach resigned from the Board due to other commitments, and the other Board members from that era are now deceased.

Aaron Hawkins, the senior vice president and trust officer at WesBanco Bank, testified that he routinely received income statements and deposits into the cemetery's perpetual care trust from the Woodlawn Cemetery Company board of directors prior to 1996. Since 1996, under Mr. Decker's tenure, Mr. Hawkins testified that the bank has not received any income statements from the board, and testified that the board has not made any deposits into the perpetual care trust. Mr. Decker conceded that he has not made any deposits into the perpetual care trust, as required by law, but rather has spent all of the income from burial fees and from the sale of plots on the maintenance and upkeep of the cemetery.

In May 2005, Mr. Decker contacted WesBanco Bank and requested that the perpetual care trust be terminated and the balance paid to Woodlawn Cemetery. Counsel for the Bank wrote to Mr. Decker on May 25, 2005, and told him that cemetery permanent endowment care trusts must remain intact for the benefit of cemetery maintenance, and told him that there is no legal provision for the termination of such a trust.

On September 18, 2006, appellees — five individuals5 with relatives buried in Woodlawn Cemetery — filed a "Petition for Appointment of Trustees for Woodlawn Cemetery" in the Circuit Court of Marion County. The appellees claimed that no board of trustees existed, or had been authorized by the board of directors, to oversee the cemetery. Pursuant to the procedure set forth in W.Va.Code, 35-5-1,6 the appellees asked that they, and their successors, be appointed to a trusteeship under the name "Woodlawn Cemetery Company."

A hearing was held and evidence was taken by the circuit court on December 4, 2006. Mr. Decker and the company vice president, Arlene Edgell, appeared pro se at the hearing.

On December 14, 2006, the circuit court entered an order granting the petition and appointing the five appellees as trustees. The circuit court concluded that "funds from the sale of burial plots [were] not placed in the permanent endowment fund as directed by statute." The circuit court found that while appellants had done an acceptable job maintaining the cemetery, the appellees would "better serve the families who have loved ones buried in the cemetery, as well as the whole community."

The appellants then retained counsel, and a motion for reconsideration was filed on December 29, 2006. The circuit court denied the motion on January 18, 2007.

The appellant officers of Woodlawn Cemetery Company now appeal the circuit court's December 14, 2006 and January 18, 2007 orders.

II.

We have defined the scope of appellate review of a circuit court order as follows:

In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syllabus Point 2, Walker v. West Virginia Ethics Com'n 201 W.Va. 108, 492 S.E.2d 167 (1997).

The first argument proffered by the appellants is a matter of procedure that is easily dispensed with, and concerns a lack of proper notice and service under Rule 4 of the Rules of Civil Procedure.

The petition in this case was not personally served on the officers of Woodlawn Cemetery Company. Instead, the appellees served the petition seeking the appointment of trustees solely by publication in a local newspaper. Rule 4(d)(5) of the Rules of Civil Procedure requires that personal or substituted service must be made upon a private corporation by delivering or mailing a copy of the summons and complaint to an officer, director, or trustee thereof. The appellants state that the officers of Woodlawn Cemetery Company were properly registered with the Secretary of State. They further state that Mr. Decker was listed with the Secretary of State as the agent for service of process upon the company. Because the appellees failed to even attempt to serve any officers of the company with the summons and complaint, the appellants argue that they have been denied the opportunity to fully participate in this case and that the circuit court's orders are without legal basis.

While the service of process in this case might have been deficient, we note that any objection to that service was waived by the appellants' appearance at, and full participation in, the circuit court's December 4, 2006 hearing on the merits of the petition. Rule 12(h)(1)(B) of the Rules of Civil Procedure states that:

A defense of ... insufficiency of service of process is waived ... if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.

Clearly, because the appellants failed to make a motion or file any pleading challenging the sufficiency of the appellees' service of process by publication, and instead appeared to defend against the appellees' petition on the merits, the appellants waived their objections. We now turn to the substance of the parties' arguments.

The circuit court's order, appointing the appellees as trustees with control over Woodlawn Cemetery, relied upon W.Va.Code, 35-5-1 [1923]. That code section states:

Where any conveyance, dedication or devise was made of land for burial grounds, to any church, religious sect, society, congregation or denomination, or to any benevolent fraternal, patriotic, literary, temperance, or charitable society, order, lodge or association, that has dissolved or become extinct in the county and vicinity where such burial grounds are situated, and the trustees of same have removed or died, the circuit court of such county, upon the application of five or more persons having relatives buried in such burial grounds, shall appoint five trustees, who for the time being and their successors shall be invested with all the powers necessary to promote and carry out the object and purposes named in such conveyance, dedication or devise.

The appellants argue that W.Va.Code, ...

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    • United States
    • West Virginia Supreme Court
    • 26 June 2008
    ...by the Legislature in its promulgation of statutes concerning cemeteries. See In re Petition for Appointment of Trs. for Woodlawn Cemetery, 222 W.Va. 351, 357, n.8, 664 S.E.2d 692, 698 n. 8 (2008). 26. See Section III.A., supra, for the text of W. Va.Code § 27. W. Va.Code § 21-5A-1(2) state......
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    • West Virginia Supreme Court
    • 30 October 2009
    ...process when the defendant received process, but permitted a default judgment to be entered. See In re Appointment of Trs. for Woodlawn Cemetery, 222 W.Va. 351, 354, 664 S.E.2d 692, 695 (2008) ("[B]ecause the appellants failed to make a motion or file any pleading challenging the sufficienc......

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