Simmons v. Fussell

• Citation: 827 S.E.2d 35,241 W.Va. 565
• Decision Date: 12 April 2019
• Docket Number: No. 18-0210,18-0210
• Parties: Andrea M. SIMMONS, Executor of the Estate of Roger G. Fussell, Petitioner Below, Petitioner v. Joann FUSSELL, Respondent Below, Respondent
• Court: Supreme Court of West Virginia

241 W.Va. 565
827 S.E.2d 35

Andrea M. SIMMONS, Executor of the Estate of Roger G. Fussell, Petitioner Below, Petitioner
v.
Joann FUSSELL, Respondent Below, Respondent

No. 18-0210

Supreme Court of Appeals of West Virginia.

Submitted: March 13, 2019
Filed: April 12, 2019

John J. Wallace, IV, Esq., Joseph A. Wallace, Esq., Wallace Law Offices, L.C. Inc., Elkins, West Virginia, Counsel for the Petitioner

Harry A. Smith, III, Esq., Jory & Smith, L.C., Elkins, West Virginia, Counsel for the Respondent

Armstead, Justice:

827 S.E.2d 37

Petitioner, as Executor of the Estate of Roger G. Fussell, appeals the February 7, 2018, order of the Circuit Court of Randolph County that affirmed an order of the Randolph County Commission, which, in turn, affirmed the findings of its special fiduciary commissioner. The special fiduciary commissioner found that: (1) two bank notes, obtained by Respondent Joann Fussell (hereinafter, "Joann"), were just debts of the estate; (2) Joann was not a creditor beneficiary of a life insurance policy on the life of Roger G. Fussell (hereinafter, "Roger"); and, (3) written appraisals of certain assets located in West Virginia and Georgia were appropriate considerations to establish fair market value.

We have reviewed the record before us, heard the oral arguments of the parties, and reviewed the pertinent legal authorities. For the reasons stated below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 20, 2000, Joann married Roger, and the Fussells lived together as husband and wife for the first six years of their marriage. Though never divorced, they were estranged the last three years of their marriage and lived separately and apart for those years. Even though they were estranged at the time of Roger’s death, his Will, executed on November 5, 2009, a mere six weeks prior to his December 21, 2009, death, provided for his wife:

SECOND: If I am married to Joann M. Fussell at the time of my death, I wish for her to have her statutory share as provided by the laws of the State of West Virginia recognizing that we have lived separate and apart for the last several years preceding the date of this instrument.

Long before that, on January 23, 2001, Joann obtained a loan from Freedom Bank,¹ solely in her name, in the original principal amount of $40,010.² The next day, January 24, 2001, a check in the amount of $40,000 was written by Joann to Freedom Bank. Freedom Bank then wrote a cashier’s check in the same amount to Roger. Joann’s loan with Freedom bank was subject to allonges,³

827 S.E.2d 38

which had the cumulative effect of adding an additional $16,505.99 to the loan. From those proceeds, a cashier’s check from Freedom Bank in the amount of $15,844.21 was paid to the Sheriff of Randolph County to redeem property taxes on a parcel of land owned by Roger, and a separate cashier’s check in the amount of $37.00 was paid to the Clerk of the Randolph County Commission for the redemption fees on that parcel. The balance of the monies generated by the allonges were paid to Roger.

On December 30, 2008, Joann obtained a second loan, from BC Bank, solely in her name, in the original principal amount of $50,000. The check from BC Bank to Joann for those loan proceeds was endorsed on the back, "s/Joann M. Fussell, pay to the order of Roger G. Fussell, s/Roger Fussell."

Importantly, the entire proceeds of both bank loans taken solely in Joann’s name, were loaned by Joann to Roger. Joann testified that this arrangement was necessary for Roger to obtain loans, because he was unable to obtain bank loans in his own name. It is undisputed that Joann did not use any of the proceeds of the loans she obtained from the banks. She promptly loaned those proceeds to Roger. Until just prior to his death, it is also undisputed that checks drawn on accounts on which Roger was a signatory⁴ were written and made all payments directly to both banks. In October 2009, Joann started making payments on both loans to the banks as Roger began to succumb to his final illness. Joann alleges that she had an oral contract, which provided that in exchange for her loaning all of the bank loan proceeds to Roger, he would repay her by making her payments directly to the banks.

Prior to his death, and unknown to Joann, Roger made Joann the sole beneficiary on a policy of life insurance. Following Roger’s death, Joann received the proceeds of that life insurance policy in the amount of $270,212. Until Joann was contacted by Petitioner Andrea Simmons (hereinafter, "Simmons") after Roger’s death and told to complete certain insurance forms, Joann had no knowledge of the existence of any life insurance policy in which she was named beneficiary. After receiving these proceeds, Joann wrote a check to the estate in the amount of $213,914.31, to provide it liquid assets. A portion of the balance of those proceeds was used by Joann to satisfy the balance on the BC Bank loan.

Following Roger’s death, Simmons opened Roger’s estate in Randolph County. On April 1, 2011, Joann filed her claims against the estate:⁵

1. $50,241.55, plus interest, for the unpaid balance on the loan Joann made to Roger which Joann obtained from BC Bank.

2. $36,094.03, plus interest, for the unpaid balance on the loan Joann made to Roger which Joann obtained from Freedom Bank.

On the same day, Joann also filed objections to the estate appraisement, raising issues as to the fair market value of certain tracts of real property owned by the estate and situated in West Virginia and Georgia.⁶

The issues raised by Joann’s claims and objections were heard before Heather M. Weese, Special Fiduciary Commissioner of Randolph County, who conducted a hearing in Elkins on March 11, 2016. During this hearing, Joann detailed the arrangement she had with Roger. She would obtain loans from banks and then loan that money to Roger. Roger would pay the money he owed Joann directly to the banks.

During the hearing, the special fiduciary commissioner heard testimony from three certified general appraisers regarding the

827 S.E.2d 39

valuation of certain properties in West Virginia and Georgia. For the West Virginia property, Joann called Wayne C. Hart, a certified general appraiser in the State of West Virginia, to testify regarding the fair market value of one 11.9 acre tract of land in Randolph County. Hart’s written appraisal estimated fair market value as of June 15, 2011, eighteen months after Roger’s death, to be $57,000. The special fiduciary commissioner found that, "Appraiser Hart testified that the sales market has been relative[ly] stable between the period of December 21, 2009, the decedent’s date of death, and June 6, 2011, the appraisal value date, and he testified, to a reasonable degree of certainty, that the value would not vary more than 10%." Simmons called no one at the special fiduciary commissioner’s hearing to rebut Hart’s testimony, but, on the appraisement of estate form filed with the county commission,⁷ she valued this property at $4,000, as of the date of Roger’s death.

For the Georgia properties, Simmons called Dwain Bell, a certified general appraiser in the State of Georgia and Joann called Edward Scott Petty, also a certified general appraiser in the State of Georgia, to testify regarding the fair market value of two tracts of land in Bacon County, Georgia. The first contained 212.48 acres and the other contained 29.5 acres. Bell’s written appraisals estimated fair market value of these two tracts as of December 21, 2009, the date of Roger’s death, to be $398,900 for the 212.48 acre tract and $78,500 for the 29.5 acre tract. Petty’s written appraisals estimated fair market value of the two tracts as of April 29, 2011, sixteen months after Roger’s death, to be $595,000 for the 212.48 acre tract and $82,600 for the 29.5 acre tract. As to these written appraisals, the special fiduciary commissioner found "that market sales data [has] been stagnant between 2009 and 2011, and the values wouldn't have changed much."

On February 20, 2017, the special fiduciary commissioner issued a ten page written decision finding that the claims against the estate for the repayment of the loans Joann made to Roger were just debts of the estate, these loans fell within the statute of frauds,⁸ and the statute’s requirement of a writing was satisfied with Roger’s endorsement of many checks.⁹

On the appraisal issues, the special fiduciary commissioner noted the lack of evidence presented by the estate and accepted the valuation of Joann’s appraiser – $57,000 – as the fair market value of the West Virginia property. On the Georgia properties, the special fiduciary commissioner split the difference between the appraisals, and established fair market value of the 212.48 acre tract as $496,500 and fair market value of the 29.5 acre tract as $80,550.

Simmons appealed the special fiduciary commissioner’s decision to the Randolph County Commission, which approved that decision by its order of April 20, 2017. Simmons then appealed the county commission’s decision to the circuit court. By order dated February 7, 2018, the circuit court affirmed the county commission’s decision.

II. STANDARD OF REVIEW

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