lower court order, Larry V. Starcher, Administrator CTA v ...IU-lllPO IN THE CIRCUIT C{)URT OF...

$Page 1: lower court order, Larry V. Starcher, Administrator CTA v ...IU-lllPO IN THE CIRCUIT C{)URT OF MONONGALIA COUNTY, \\-'EST VIRGIl\'JA DIVISION NO.3 LARRY V. STARCHER, Administrator$
IU-lllPO

IN THE CIRCUIT C)URT OF MONONGALIA COUNTY -EST VIRGIlJA DIVISION NO3

LARRY V STARCHER Administrator CTA For the Estate of Arthur P Scotcbel LOUIS A SCOTCBEL SR LOUIS A SCOTCHEL JR ARTHUR C SCOTClfEL and REBECCA D SCOTCBEL

Plaintiffs

CIil Adion No 15-lt-141 Hon PhUHp D Gaujot

JOHN C SCOTCHEL JR and KEITH J PAPPAS

Dertadants

ORDER

On March 152016 Plaintiffs and Defendant Keith J Pappas appeared by counsel for n

hearing on Defendanfs Renewed Motion to Dismiss OT~ in the Alternative Motion for Summary

Judgment The isues have been briefed re~cwcd argued and are now ripe for detemrinat1(1n

Accordingly~ the (oUt1 makes the following FindinbS ofFact and Conclusions of Law

PROCEDURAL HISTORY

On April 9 2()15 Plaintiffs filed a one-sentence Complaint against John C SC(tchel Jr

(l[ld Keith J Pappas (Pappasl [Docket Sheet] PlaintiflS failed to serve the original Complaint

within the 12O-day period as required by Rule 4(k) of the VCSI Virginia Rules of Civil

Procedure (Docket Sheet]

Plaintiffs filed an Amended CQmplaint on August 15 201 S Plaintiffs Amended

Complaint aUeges generally that beginning in 2009 and ftf a period of five years the

Defendants breached lheir fiduciary duties and ~erc otherwise negligent and acted

J

improperly [Amended CQmplajnt~ pm S] Plaintiffs Amended Complaint alleges waste

breach ofpromisc and breach offiduciary duty [d

Defendant Pappas filed a Motion to Dismiss Plaintiffs Amended Complaint Of in the

Alternative Motion for More Definite Statement The bases for the Motion were that Plaintiffs

claims were barred by the 2middotyear statute of limitations were barred by the doctrine of res

judicata and failed to state a claim Bgainst Pappas upon which relief could be gronted

AJtemathrely Pappas movoo for a more definite statement Pappas requested that the

Court require Plaintiffs to identify the acts ofPappa1 ofwhich they oomplaiJl~ as well a the dates

on which Plaintiffs a])ege tbe acts OCCUITOO so that Pappas could reasonably respond

Plaintiffs fuUed to file a written rc~ponsc to 1he Motion to Dismiss

On January 62016 the Court heard arampruments of counsel on Defendant Pnppnst Motion

to Dismiss or in the Alternative Motion for More Definite Statement At the conclusion of the

hearing the Court instructed the parties Bnd counsel for the parties to meet nnd confer regarding

Ole ilsues raised during argument to detem1ine what if my viable churns were tlailablc for

PlaintifT~ to pursue against Defendants and to report back to the Court on March lS~ 2016

The parties and counsel for the parties met in Morgantown West Virginia on February

162016 pursuant to the Courts instruction Counsel for the parties filed Reports oftbe meet

nnd confer~ Plaintiffs represented that they did not intend to amend their Amended Complaint

and that they would proceed on the Amended Complaint as fi1ed As such Plaintiffs declined

ihc opportunity to amend their First Amended Complaint for the second time

Defendant Pappas filed a Renewed Motion to Dismiss or In The Alternative Motion for

Summary Judgment Plaintiffs filed both a Response with Edlloits and 3 Sur Reply

2

On March 15 lOIS ihe Court hctrd argument on Defendant Pappac Renewed Motion to

Digtmi~ or jn the Alternative Motion for Summary JodgmenL At the condus1on of the hearing

the Court instructed the parties counsel to sgtubmit proposed findings of fact and conclusions of

law Counsel submitted the same along with responseslrebuttaL

THE COIJRT TAKES JUD1C1AL NOTICE OF CERTAlN DOCUMENTS

Although a court is usually limited to considering only the tlctunt allegations in a

complaint when ruling on a Rule 12(h)(6) motion to dismiss a court may also consider relevant

facts ofwhich the court may take judicial notice

Notwithstanding [the] general rule it has been recognized thllt in ruling upon a motion to dismiss under Rule 12(b)(6) a com may cOns1der~ in addition to the pleadings documents annexed to it und other materials falrly incorporated within iL This sometimes jncludes documcnt~ referred to in the complaint hut not annexed to it Further Ru1e 12(b)(6) pennits CQurts to consider matters that are susceptible to judicial notice

Forshay v Jackson 671 SE2d 748 752 (WVa 2008)(1ntemal citations omitted emphasis

added)

Pursuant to Rule 201 of the West Virginia Rules of Evidence [0] court shall take

judicial notice if requested by a party ~md supplied with the ncccssary infonnation VVa

REvid 201(d) Moreover [a] judicially noticed fact must be one not subject to reawnable

dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court

or (2) capable of accurate and ready dctenninaticm by resort to sources whose accuracyamnot be

reasonably questioned WVaRpoundvid 20 1(1)) Lastly it seems clear ih3t a court may take

judicial notiee of its own records concerning the same subject matter and substantially the same

parties under Rulc 20l(b)(2) 1 Franklin D Cleckley Handbook on Evidence for West Vrrginia

LawyctS~ 20L03[3][e] (5th cd 20)2)

3

Attached to Plaintiffs Response to Defendant Keith J Pappas~ Motion to Dismiss dated

March II 2016 Plaintiffs submitted Exhibits which are jdentified herein as Exhibits 1 and 2

Regardless of the truth of the matters asserted therein the filings of and contenis of Exhibits 1

and 2 are not subject to reasonable dispute) and are capable of accurate and ready

determination by resort to sources whose accuracy cannot reasonably be questioned

WVaREvid 201 (b)(2)

Pappas moved the Court to take judicial notice of the filings ofExhibits 3 - 17 Exhibits

3 - 1 i are court filings made by or involving the individual Plaintiffs Likewise and regardless

of the truth of the matters asserted therein the filing of and contents of Exhibits 3 - 17 are not

subject to reasonable disp-ute and are capable of accurate and ready determination by resort to

sources whose accuracy cannot reasonably be questioned WVaREvid 201 (b)(2)

A chart ofthese filingsexhibits is provided for ease of reference

Document Source Ex December 16 2013 Letter from Mr Pappas to Fiduciary Monongalia 1 Commissioner Armistead enclosing an Amended Third County Commission Accountine July 3 2014 Report of Fiduciary Commissioner of the filing Monongalia 2 of the Fourth and Final Accounting County Commission Complaint for Injunctive Relief Circuit Court of 3 Filed July 172009 Monongalia County

Civil Action 09-C-494 Memorandum ofAgreement Monongalia 4 (incorporated by reference see Paragraph 5 of the Amended County Commission Complaint) Recommendation ofFiduciary Monongalia 5 Commissioner County Commission Dated April 14 2010 Vol 0349 Page 273

Recommended Order Monongalia County 6 Dated April 142010 Commission

Vol 0349 Page 276 Oath Monongalia County 7 Dated April 28 2010 Commission p2

Vol 0349 Page 407

4

I i

I I

Agreement tlodRecommended Order

Filed May 10 2010

Transcript of April 6 2011 Motions Hearing before the

IMonongalia County Commission IVol Ol49 Page no

Circuit Court of Monongalia County

8

19

I I

I Honorable Phillip D Gaujot Civil Action 09-C-494 I Letter from Louis A Scotchel Sr Circuit Court of to the Honorable Russell Clawgcs Februarv 26 2012

Monongalia County Civil Action 09-C-72i

1 10

-~ - _-

Order Following Status Conference of June 5 2012 and 11 Notice of Hearing -Confirmation ofFirstAccounting IMonongalia County 7 December l~ 2012 Document Inquiry

Carye L Blaney County Clerk I

Motion to Restrain and Remove Keith l)apPils Circuit Court of 12 f Dated March 29 2013 Monongalia County

Civil Action 09-C-727 -~~~ ---

Third party Complaint against Circuit Court of 13 Keith J Pappas and Eric Dalton Monongalia County Datc-d April 10 20 l3_ Chil Action 12-Cmiddot 718 MlltthewT Yannis Bar Complaint West Virginia Office of 14 Against Keith J Pappas Attorney at Law Disciplinary Counsel Dated June 2J 2013

Order Denying Plaintiffs~ Motion to Rcstmin and Remove I Circuit Coun of 15 Pappa-I Monongali-a County t Dated August I 20 J3 Civil Acmiddottion Q9-C-721 I

I Amended Third Accounting I Monongalia County l i By Keith J Pappas Administrator eTA Document Inquiry I For TIle Estate of Arthur P Scate-hel Caryc L Blaney County Deceased March 26 2009 Clerk Dated 121713 Order Reflecting jury Verdict Cjrcuit Court of 16 of Undue Influence Monongalia County

Ci11 Action 09-C-727 Dated AprilS 2014 Vol 0377 Page 443 Memorandum The Monongalia County I 17 from Patricia Ann Mitchell Commission Louis A Scotcbel Sr Book 379 Page 356 I I Louis A SCQtchcl Jr Rebecca D Scotchel Arthur C Scotchel Patricia M Scotcbel I U-

5

Larry Y Starcher

Dated July 102014 Entered Jull 162014

Likewise Plaintiffs filed or caused to be filed various Exhibits requesting the Court to

take judicial notice The Court also takes judicial notice of the same and in particular the

following matters relating to the Estate of Arthur P Scotchel relating to the Estate of Arthur P

Scotchel

LOllis A Seachef Sr v Keith J Pappas Administrator el al J Civil Action 09-C-494 pending in the Circuit Court of Monongalia County

Louis A Scotchco Sr v Keith J PapprJS Administrator el al Civil Action 09-C-727 pending in the Circuit Court of Monongalia County

Louis A Seocllel Sr Keithl PappaOj Administrator et al Civil Action 12-C-718 pending in the Circuit Court ofMonongalia County

The Court also takes judicial notice ofWV Lawyer Disciplinary Board 13-03-277 14-05shy

401 Supreme Court No 15-0569

FINDINGS OF FACT

J Arthur P Scotchel died on March 262009

2 On or about April 8 2009 Louis A Scotchel Sr lodged t1le Last Will and Testament

of Arthur P Scotchel dated June 302005 with the Clerk of the County Commission

for Monongalia County~ Wcst Virginia ODe Ex 30 Bates Stamp 3027-3037 Louis

A Scotchel Sr was named as the fiduciary in the 2005 Will and received tbe Letters of

Administration Some of the heneficiariec of the 2005 Will were Louis A Scotchel Sr

along with Louis A Scotcbel Jr Arthur C Scotchel Rebecca D Scotchel and Patricia

M Scotchel Later that same day John C Scotchel Jr presented the Last Will and

Testament of Arthur P Scotchel dated January 9 2006 ODe Ex 30 Bates Stamp

6

3027-3037 3030 3038 John C Scotchel was narned as the fiduciary in the 2006 Will

Accordingly Louis A Scotchel Sr was asked to return the Letters of Administration

ODe Ex 30 Bates Stamp 3043

3 John C Seotchel Jr was appointed Executor of the Estate of Arthur P Scotchel in

April2009 [Amended Complaint para 3]

4 George Annistead Esq was assigned as Fiduciary Commissioner for the Estate ODe

Ex 30 Bates Stamp 3054

5 A wm dispute ensued [Amended Complaint para4]

6 During the months that John C Scotchcl Jr was acting as Executor of the Estate heirs

relatives and devisees received complaints alleging that John C Scotchel t Jr was

mismanaging the Estate was well as Vestover Realty Company Inc a real estate

corporation of which Arthur P Sootchel was the sole shareholder Complaints

included but werc not limited to mortgages were not being paid the properties were

not maintained and banks werc beginfling foreclosure proceedings on certain

properties

7 After nearly a year of Scotchel-family disagreements confrontations various litigation

and seemingly irreconcilable disputes between and among the Scotchel beneficiaries

surrounding John C Scotchcls actions as Executor Pappas was approached to act as

Administrator cia ofthe Estate [Amended Complaint paraS]

8 011 or about July 17 2009 Louis A Seotchel Sr along with Louis A Scotchel Jr

Arthur C Scotchel Rebecca D Scotchel and Patricia M Scotchel (the Scotchel

Plaintiffs) middotfl1ed a complaint against John C Scotchel Jr Executor for the Estate of

Arthur P Scotchel in Monongalia County West Virginia Circuit Court Civil Action

7

09middotC-494 The complaint sought injunctive relief and damages The Seotchel

Plaintiffs were represented by Michael W Barill Esq of Steptoe amp Johnson PLLC

OCD Ex 29 Bates Stamp 2986middot2990

9 Four days latet On July 22 2009 the Scotchel Plaintiffs filed a Petition to Remove

10hn C Scotchel Jr as Executor of the Estate with the Monongalia County

Commission The Petition to Remove was referred to Fiduciary Commissioner

AmUstcad for investigation ODe Ex 30 Bates Stamp 3058-30601

10 On or about October 7 2009 the Scotchel Plaintiffs filed a second complaint in

Monongalia County West Virginia Circuit Court Civil action 09-C-727 ODe Ex 29~

Bates Stamp 2986middot2990 The complaint was a will contcst based on lack of

testamentary capacity and undue influence Quring the execution of the 2006 Will ODe


11 After almost a year of disputed ~tate mismanagement Scotchel family in-fighting and

litigation Pappac was approached in January 2010 by John C Scotehcl Jr Fiduciary

Commissioner George Annistead and PlaintiffS Counsel Michael Barill Esq to assist

in administering the Estate Lawyer Disciplinary Board Panel Subcommittee Hrg

Trans (hereinafter LOB Hrg Trans) 55012middot551 20

12 Pappas insisted on an engagement letter signed by all of the heirs which included the

elective share of the decedents widow LDB Hrg Trans 555 I06 Mr Barill and

Steptoe amp Johnson drafted the agreement LDB Hrg Trans 6476-15

John C Scotchel was annulled from the practice of law on February 11 2015 due to charging unreasonable attorney fees to a client

8

13 On Apri1 5 2010 each of the individual Plaintiffs herein agreccJ to the appointment of

Pappas as Administrdtor cIa of the Estate of Arthur P Scotehel [Amended Complaint

paraS]

14 Plaintiffs expressed their understanding of the terms and conditions of Pappas

administration by signing the Memorandum of Agreement prepared by counsel for

Plaintiffs [Memorandum of Agreement]

15 Thereafter Fiduciary Commissioner George Annistead recommended the appointment

of Pappas as Administrator eta [Recommended Order dated April 14 2010]

16 The Monongalia County Commission accepted the recommendation and appointed

Pappas as Administrator cIa of the Estate [Oath datccJ Apri128 2010J

17 Accordingly and 1) at the request of the Plaintiffs herein 2) upon recommendation of

the Fiduciary Commjssioner and 3) by Order of the Monongalia County Commission

Pappas was appointed Administrator eta of the Estate of Arthur P Scotchel on April

282010

18 The Memorandum of Agreement signed by inler alia~ each of the individual Plaintiffs

herein ~pecificall) provided that Pappas would be compensated for his service at an

hourly rate of S175 per hour for his time and $65 per hour for paralegal time

[Memorandum of Agreement para 5]

19 John C Scotchel Jr was to receive the llonnal Commission as prescribed by law

Memorandum of Agreement~ para 7

20 Upon his appoinnncnt as Administrator eta Pappas attempted to gamer the assets of

the Estate conduct a property review and profile of holdings for both Arthur P

Scotchel individually and WestovcrRea1tyCompany~ Inc LOB Hrg Trans 5601-14

9

21 Evidence at hearing indicated that few financial andor estate records were available

Copies of the deeds for properties owned middotere not maintained in the files financial

records were missing records emiddotidencing credit card debt vere not kept leases were

missing and tax documents could not be found LDB Hrg Trans 561-562 Within a

few months ofbeginning his work Pappas testified the Estate appeared insolvent Hrg

Trans 786

22 Pappas filed a Fiduciary Accounting with this Court em June 5 2012 in Civil Action

09-C-494 [Order Following Status Conference of June 5 2012 and Notice of

Hearing]

23 Pappas prepared and filed annual accountings of the Arthur P Scotchcl Estate [MCC

docket Sheet]

24 Each of the first three annual accountings submitted by Pappas were confirmed by the

County Commission [MeC Docket Sheet]

25 Pursuant to his duties as Administrator eta and as required by statute Pappas filed a

proposed Appraisement of the Estate on September 8 2011 The total value of

personal nonprobate real estate was valued at Eighty-Five Thousand and Nine Hundred

Dollars ($8590000) The total value of the personal probate assets was valued at

Seventy-Seven Thousand One Hundred and Fifteen Dollars ($7711500) As such the

total value of all assets as set forth in the Appraisement was One Hundred Sixty-Three

Thousaod and Fifteen Dollars (SI6301500) ODC Ex 1 Bates Stamp 9-172 No

objection to the Appraisement as prepared by Pappas was ever filed v-ith the

Monongalia County Commission However heir disputes remained ongoing

The evidence of the case was that this Appraisement did not include the surviIDg spouses electh-e share which was one half of the gross etate LDB Hrg Trans 746 Pappa~ gross estimated value of the Estate was Iherefore 531603000 if the suniving spouses e1ective share were included

10

26 Plaintiffs have known since the day they signed the Memorandum of Agreement on

April 5 2010 that Pappas was to be paid $175 per hour for his services

27 Likewise Plaintiffc knew how the Westover Realty rental properties were valued and

what they sold for because Plaintiffs were provided with the information prior to the

sale ofthe properties in 2010 and 2011

28ln an April 6 2011 hearing before this Court in Civil Action 09-C-494 at which

Plaintiff Louis A Scotchel Sr was present hen Pappas reported that Pappas had

invested hundreds of hours working on the Estate and the Court advised all present that

Icgal fees administrator fees and Commissioner fees were going to be paid out of

Estate funds [April 6 2011 Hearing Transcript of proceedings in Civil Action 09-Cshy

494 at 9 13-14]

29 ThaL is even if Plaintiffs isnorcd each of tbe 10 monthly statements Plaintiffs had

received from Pappas by April 2011 (which invoices showed a total outstanding

balance of S61 32496) Louis A Scotchel Sr was told in open court in April of 2011

by Pappas and the Court that a substantial legal bil1 invo1vinghundreds ofhours oftirne

had been incurred and that it was going to be paid out of Estate funds once property

was sold [April 62011 Hearing Transcript ofprocccdings in Civil Action 09-C-494 at

9 13-14]

30 In November 2011 Pappas volunteered to withdraw as Administrator cta due to

conflicts between and among the Scotchel family In response the heirs of the Estate

requested that Pappas continue to serve as Administrator cta of the Estate

31 Further Fiduciary Commissioner George Armistead testified by affidait that at least

on one occasion Pappas expressed his desire to withdraw as Administrator eta due to

11

the difficulty he was having with certain Scotchel family members Fiduciary

Commissioner Annistead stated that they would not recommend to the Monongalia

County Commission that Pappas be relieved of his duties unless an attorneyaccountant

could be found to replace him

32 On May 2 2012 Matthew T Yanni Esq filed a Notice of Appearance (In behalf of the

SCCltchel Plaintiff in the Will Contest action Civil Action 09-C-727 pending in

Monongalia circuit court Specifically Louis A Scotchel Sr alleges (l) that Pappas

hilled the Estate over $10000000 and has collected at least $5500000 and (2) that

Pappas undersold the properties

33 At the request of this Judge and m addition to the accountings filed with the

Monongalia County Commission Pappas filed a Fiduciary Accounting on June S 2012

in Civil Action 09-C-494 Said Accounting sets forth receipts and expenditures made

by and on behalf of the Estate as well as Wcstover Realty Company Inc lncluding

payments made to Pappas

34 During the pendency of the underlying matter Pappas also provided annual accountings

of the Arthur P Scotche1 Estate to the Fiduciary Commissioner ODe Ex3 Bates

Stamp 174-193

35 The first payment of fees was made to Pappas on June 3 2011 fourteen months after

he was appointed Administrator cta for $5000000 Pappas bill totaled $7205771 at

the time

36 Plaintifls are on record complaining more than 4 years ago about Pappas fees By

lctter dated February 262012 from Louis A Scotchcl Sr to thc Honorable Russell M

Clawgest Jr in Civil Action 09-C-727 Louis A Scotchel Sr claimed the same things

11

that Plaintiffs are claiming here 1) Pappas fees were excessive and 2) Pappas sold

assets for below fair market

37 On March 29 2013~ Plaintiffs moved the Court in Civil Action 09-C-727 to restrain

and remove Pappas as Administrator of the Estate

38 Denied the first time Plaintiffs renewed their Motion on March 7 2014 The basis of

the motion was that Pappa~ claimed the total value of the Estate was One Hundred

SL~ty-Three Thousand and_ Fifteen Dollars ($ 16301500) while Pappas had billed the

Estate Seventy-Nine Thousand Six Hundred Seven Dol1ars and Sixty-Eight Cents

($7960768) by March 5 2013 ODC Ex 29 Bates Stamp 2992 That fcc was about

Forty-Nine percent (49) of the appraised value of the Estateld On or about April 12

2013 Pappas filed a Response to Plaintiffs Motion ODC Ex 29 Bates Stamp 2996shy

3006 Pappas argued that the motion should havc been filed with the County

Commission the motion was unrelated to the scope of the pleadings and that plaintiffs

did not meet their burden of proof Jd

39 Meanwhile Pappas itemized and recorded his time and submitted monthly invoices to

all interested parties counsel and the Fiduciary Commissioner during the pendency of

his appointment as Administrator eta

40 Mr Yanni then filed an ethics complaint against Pappas on June 24 2013 alleging that

Pappas fees were excessive LDB Hrg Trans 3410-367 Mr Yanni testified that he

filed the ethics complaint against Pappas as a means to have him removed as the

Administrator of the Estate LOB Hrg Trans 57 12-18

41 Mr Yanni was compensated by potential heir Louis A Scotchel Jr for his time in

preparing and filing the ethics complaint against Pappas LOB Hrg Trans 4617-19

13

42 By letter dated July 26 2013 Papas filed a 19-page response to the Yanni Complaint in

which he explained the history of his engagement as Administrator eta and why Mr

Yannis complaint was unfounded In support of his explanation Pappas provided the

ODe with (1) 1624 pages of exhibits including Pappas itemized invoices of which

Mr Yanni was complaining and (2) the names of other individuals with knowledge of

the facts and circumstances surrounding the administration ofthis Estate OCD Ex 3

43 The June 9 2015 Statement of Charges (SOC) alleged that Pappas fees weremiddot grossly

excessive and unreasonable under the circumstances and were not reasonable wjthjn

the meaning of West Virginia Code sect 44-4-12 The SOC alleged Pappas violated Rule

15(a) of the Rules of Professional Conduct

44 In the alternative the SOC stated that ifPappas has not yet paid himself a fee the fee is

an attempt to violated Rule 15(a) and as such violates Rule 84(a of the Rules of

Professional Conduct

45 On or about March 5 2014~ to March 7 2014 a jury trial was held in Monongalia

County West Vjrginia in Civil Action No 09-C-727 On or about March 72014 the

jury returned a verdict that Arthur P Scotchcl was susceptible to undue influence that

John C Scotehcl Jr had exerted undue influence on Arthur P Scotchel tbat Arthur P

Scotchel could not exercise his own free will and control in preparing the 2006 Will

due to force or coercion from John C Scotche1 Jr and that the 2006 Will la) the

produci of the undue influence exerted by John C Scotchel Jr ODe Ex 29 Bates

Stamp 30173

46 On or about March 7 2014 the Scotchel Plaintiffs by counse1 Matthew T Yanni

reneved their Motion to Remove [Pappa) as Adminjstrator eta and asked that Louis A

Pappas bad earlicrptcvailed on summary judgment in relation to the lack oftcstamentary capacity claim

14

Scotchel Sr be appointed as personal representative of the Arthur P Scotcbel Estate

The Court denied Plaintiffs Motion because [it] is a probate matter and is not properly

before [the] Honorable Court at the present time ODe Ex 29~ Bates Stamp 3020

47 Thirty days tater on April 8 2014 an Order was entered by the Honorable Judge

Clawges which set forth the jurys verdict in Civil Action 09-C-727 The January 9

2006 Will of Arthur P Scotchcl was ordered to be invalidated since the jury

determined that this Last WiJ] and Testament was the product oftbe undue influence of

John C Scotchel Jr The 2006 Will was held invalid and the civil action was

dismissed from the Courts docket ODe Ex 29 Bates Stamp 3017-3021

48 On April 9 2014 Louis A SeotchcL Sr sought appointment as executor ofthe Estate

of Arthur P Scotchel from the Monongalia County Commission under the 2005 Will


49 On April 14 2014 Pappas filed an objection to Louis A Scotchel Sr being appointed

as fiduciary ofthe Estate ODe Ex 25 Bates Stamp 2782-2903 Pappas stated that the

Memorandum ofAgreemenfs choicc of fiduciary was to be perpetual and was not to

be affected by the ()utcomemiddot of any of the litigation pending against the Estate the

ratification or nullification of any of the Decedents wills nor was the selection of the

fiduciary to affct any of the litigation between the heirs ODe Ex 25 Bates Stamp

2786 Papas asserted the Louis A Scotchel Sr had waived his right to be appointed

as fiduciary for the Estate when he signed the Memorandum of Agreement Id Pappas

also alleged that Louis A Scotchcl Sr~ had been taking money from Arthur P Scotchel

both before and after his death ODe Ex 25 Bates Stamp 2789

15

50 On April 16 2014 the Monongalia County Commission heard oral argument on

Pappas objection Pappas argued that Louis A Scotchel Sr should not be appointed

fiduciary of the Estate inter alia due to conflicts of interest ith the Estate Fiduciary

Commissioner Annistead and Phillip M Magro counsel for Monongalia County

Agreed with Respondent Larry V Starcher testified that he agreed that Louis A

Scotchc1 Sr should not have been appointe(l fiduciary of the Estate due to a conflict of

interest expressed concerns regarding the pending litigation and volunteered to act as

Administrator eta TIle Monongalia County Commission did not confinn Louis A

Scotchel Sr as execmiddotutor of Arthur P Scotchcls Estate ODe Ex 25 Bates Stamp

2904

51 Pappas voluntary resignation of his duties as Administrator of the Estate was accepted

by the Monongalia County Commission on April 16 2015 and Pappas as instructed

by the Commission to submit a final accounting within 30 days Fiduciary

Commissioner Annistead had no objection to Pappas resignation as Adminstrator cta

011 April 16 2014 Larry V Starcher was appointed the Scotchel Estates

Administrator eta ODe Ex 25 Bates Stamp 2915 Mr Starcher remains the current

Administrator cta of the Estate of Arthur P Scotchel

52 Pursuant to the Order of Monongalia County Commission Pappas filed the Fourth and

Final Accounting of Receipts and Disbursements Distnoution and Affidavit ofPappas

Administrator eTA of the Estate of Arthur P Scotchei Deceased on May 12 2014

ODe Ex 25 Bates Stamp 2917-2925 The accounting listed the total balance of the

estate as Thirty-Two Thousand Three Hundred To Dollars and Thirty-Eight Cents

16

($3230238) The accounting provided that Respondent recently paid the following

debts of the Estate

a March 25 2014 Insurance Centers Inc $142000

b April 112014 Spilman Thomas amp Battle $494489

c Aprill 2014 Dinsmore amp Shohl LLP $410000

d April I I 2014 Dinsmore amp Shohl LLP $1250000

e Aprilll 2014 Citizens Bank of Morgantown $835300

f April1 2014 Citizens Bank ofMorgantowD $216100

g April11 2014 Citi~ens Bank of Morgantown $1206660

ODe Ex 25 Batcs Stamp 2917-2922

53 On or about July 3 2014 Mr Armistead filed a report on Pappas laquoFourth and Final

Accounting of Receipts and Disbursements Distribution and Affidavit of Pappas

Administrator eta of the Estate ofArthur P Scotchel Deceased Mr Annislead staled

that as required by statute he prepared a list of the fiduciaries and the list was

published once a week for two (2) consecutive weeks and ten (l0) days had elapsed

since the publication ODC Ex 25 Bates Stamp 2916-2926

54 On or about July 102014 Larry V Starcher filed a written objection to the Fourth

and Final Accounting of Receipts and Disbursements Distribution and Affidavit of

Pappas Administrator cta of the Estate of Arthur P Scotchel Deceased (hereinafter

the Starcher Objection) ODe Ex 25 Bates Stamp 2928-2941 In his Objection Mr

Starcher took the poSitil)n inter alia (1) that the jury verdict invalidating the 2006 Will

had the effect of removing Pappas as Administrator of the Estate and (2) the Pappas

17

had no authority to act as Administrator either after the March 7 2014 jury verdict or

after the Order reflecting the jury verilict was entered by the Court on April 82014

55 On July 16 2014 the Monongalia County Commission took up the Starcher Objection

to the Arthur P Scotchels Estate The County Commission noted that the accounting

had been filed and written objections were received At the request of Mr Starcher thc

Monongalia County Commission decided to taken [sic] no action regarding the Fourth

and Final Accounting of Receipts and Disbursements Distnoution and Affidavit

Notice~ ODe Ex 25 Batcs Stamp 2927

56 At or about the same time Larry V Starcher provided a copy of the Starcher Objection

to the Lawyer Disciplinary CounseL LDB Hrg Trans 1466-14712

57 Less than two weeks later on or about July 28 2014 the Office of Disciplinary

Counsel opened an ethics complaint against Pappas based upon the Starcher Objection

and forwarded a copy of the Starcher Objection to Pappas for response ODe Ex 15

16

58 While officially the Complainant in ID No 14-05-401 was drafted by the ODe the

Complaint forwarded to Pappas walt essentially the aforementioned Starcher Objection

59 Pappas filed a 6S-page response on September II 2014 explaining why the clainLs

made in the Starcher Objection were unfounded Pappas provided an additjonal 466

pages exhibits in support of his position Pappas requested that the ODe consult with

knowledgeable parties while evaluating Complainants allegations ODe Ex 19 Bates

Stamp 1826-2100

60 On or about April 9 2015 Mr Starcher filed this civil action against Pappas The oneshy

sentence complaint states that Plaintiffs allege that they have sustained damages as a

18

result of actions taken by John C Scotchcl Jr and Pappas in the administration of the

Estate ofArthur P ScotchcL

61 On June 9 2015 a formal Statement of Charges was issued alleging that Pappas fees

were grossly excessive and unreasonable under the circurnstances~ and were nol

reasonable within the meaning of West Virgil)ia Code sect 44-4-12 and that Pappas

violated Rule 15(a) of the Rules of Professional Conduct as previously sel forth

herein ODe Ex 29 Bates Stamp 2985

62 The Statement of Charges further alleged that Pappas paid legal fees with Estate funds

for a third person John C ScotcbeJ Jr which materially limited his duty as

Administrator to the Estate and the Pappas violated rule 17(b) of the rules of


63 In the alternative the Statement of Charges provided that if Pappas has not yet paid

himself a fee the fee is an attempt to middotolated Rule 15(a) and as such violates Rule

84(a) of the Ru1es ofPro-ressional Conduct

64 Finally the Statement of Charges alleged that because Pappas paid out funds from the

Arthur P Scotchel Est~te after the 2006 Will had been found invalid Pappas violated

Rule 84(d) oftbe Rules of Professional Conduct

CONCLUSIONS OF LAW

65 Although a CQurt is usually limited to considering only the factual allegations in a

complaint when ruling on a Rule 12(b)(6) motion to diSTtliss a court may also consider

relevant facts of which the court may take judicial notice

Notwithstanding [the] general rule it has been recognized that in ruling upon a motion to dismiss under Rule J2(b)(6) a court may consider in addition to the pleadings documents annexed to it and other materials fairly incorporated within il This sometimes includes documents referred to in the complaint but not

19

annexed to it Further Rule 12(b)(6) pennits courts to consider matters that are susceptible to judicial notice

Forshay v Jackson 671 SE2d 748 752 (WVa 2008)(intemal citations omitted

emphasis added)

66 Pursuant to Rule 20] of the West Virginia Rules of Evidence [a] court shaH take

judicial notice if requested by a party and supplied with the necessary information

WVa REvid 201(d)

67 Moreover [a] judicially noticed fact must be one not subject to reasonable dispute in

that it is either (1) generally known within the territorial jurisdiction of the trial court or

(2) capable of accurate and ready detennination by resort to sources whose accuracy

cannot be reasonably questioned WVaREvid 201 (b)

68 Lastly it seems clear that a court may take judicial notice of its 011 records concerning

the same subject matter and substantially the same parties under Rule 201(b)(2)~ 1

Franklin D Cleckley Handbook on Evidence for West Virginia Lawyers 20103[31[e]

(5th ed 2012)

69 For purposes of Defendant Pappas Motion to Dismiss or in the Alternative Motion for

Summary Judgment the Court takes judicial notice of Exhibits 3-17 to Defendant

Pappas Memorandum of Law in Support of Motion to Dismiss or in the Alternative

Motion for More Definite Statement as well as Exhibits 1-2 to Plaintiffs Response to

Defendant Keith J Pappas Motion to Dismiss

70 Judicial notice bas been taken of Documents 1-17 attached hereto at the parties request

and because the parties supplied the Court with the necessary information WVa

REvid 201 (d) Moreover these documents have been shown to be (1) generally known

within the territorial jurisdiction of the trial court or (2) capable of accurate and ready

20

detcnnination by resort to sources whose accuracy cannot bc reasonably questioned

WVaREvid201(b) Finally the Court notes that neither party objects to the request

that the Court take judicial notice of these documents

71 A complaint must set forth facts which demonstrate that the plaintiff is entitled to the

relief requested WVa R CivP 8(a)(1)

72 [A] trial court is free to ignore legal conclusions unsupported conclusions

unwarranted inferences and sweeping legal conclusions cast in the fonn of factual

allegations Franklin D Clecktey~ Rohin 1 DaVis amp Louis J Palmer Jr Litigation

Handbook 011 West Virginia Rules oj Civil Procedure sect 12(b)(6)[2] at 347 (footnote

omitted)

73 Thus [a]lthough a plaintiffs burden in resisting a motion to dismiss is a relatively

light one the plaintiff is still required at a minimum to set forth sufficient infonnation

to outline the elements of hislhcr claim If plaintitT fails to do so dismissal is proper

d at 348 (footnotes omitted)

74 lnen opposing parties tell two different stories~ one ofwhich is blatenUy contradicted

by the record so that no reasonable jury could believe it~ a court should not adopt that

version of the facts for purposes of ruling on a motion for summary judgment Scott l

Harris 550 US 372 380 (2007)~ followed Lowe v Matheney 2015 US Dist Lcxis

132530 (SD W Va Sept 30 2015) (Goodwin J)

75 Maoy of the positions asserted by the Plaintiffs are blatently contradi(ied by the record

in this case Accordingly the Court does not adopt Plaintiffs version of the facts for

the purposes of ruling on these motions

Statute of Limitations

21

76 An action for waste is governed by a two-year statute of limitations WVa Code 55shy

2-12 Xeesecker 11 Bird 490 SE2d 754 769 (WVa 1997)

77 Likewise an action for breach of fiduciary duty is governed by a two-year statute of

limitations WVa Code 55-2-12 Dunn v Rockwell 689 SE2d 255 268 (WVa

2009)

78 Plaintiffs Amended Complaint fails to provide dates or periods of time in which the

acts of which they complain occurred

79 Plaintiffs acknowledge and concede that all of the income-producing assets were sold

4-5 years ago Plaintiffs Tepresent to the Monongalia County Commission that Pappas

sold all of the income-producing properties in 2010 and 20U [Ex 17] In the same

document Plaintiffs state that all of the income producing real estate was sold by the

endof2011 [Ex17]

80 Plaintiff Louis A Scotchel rdised both the fees issue and the sale-of-property issue in

Cimiddotil Action 09-C-727 by letter dated February 262012 to Judge Clawges [Ex 10]

81 Plaintiffs moved Judge Clawgcs to Restmin and Remove Pappas by Motion on March

29 2013 [Ex 12]

82 The Third Party Complaint against Pappas on April 102013 in Civil Action 12-C-718

was filed as a result of the sale of the real estate of which Plaintiffs now complain

[Ex 13]

83 Plaintiffs reiterated these same arguments in their Renevoed Motion to Restrain and

Remove Pappas argued on March 7 2014

84 Even if Plaintiffs could establish the prima facie c1ements of their alleged causes of

action in waste and breach of fiduciary duty on the issues of fces and the sale of real

22

estate Plaintiffs claims against Pappas regarding fees and the sale of real estate are

barred by the two-year statute ofHmitations

85 Plaintiffs cause of action against Pappas for exce~sive fees and causes of actions

regarding the sale of real estate ifone exists arosena later than February 262012

86 Plaintiffs failure to allege these causes of action until more than 4 years after they

claim the causes of action arose and more than 3 years after they raised the same

caim~ in umiddot septlrale civil action bars Plaintiffs from proceeding against Pappas here

87 First West Virginia Code 55-2-6 provides for a five- or ten- year statute of limitations

for actions in contract The Amended Complaint alleges 1) waste 2) breach of

promise 3) breach of fiduciary duty~ and 4) punitive damages Plaintiffs Amended

Complaint does not state a claim for breach of contract and accordingly WVa Code

55-2-6 provides Plaintiffs with no relief

West Virginia Code 55-2-6 and 55-2-7 are inapplicable here

88 The process for proceeding under WVa Code 55-2-7 is two-fold first a party must

obtain a judgment against the fiduciary at issue and second that party must attempt to

execute tbatjudgmcnt against the fiduciarys bond Plaintiffs have not completed either

step of the process Plaintiffs misstep is consequential By failing to obtain a judgment

against Pappas within the statutoril y penni tted period of time they arc now barred from

bringing suit against Pappas andor his bQnd

89 Plaintiffs argument that WVa Code 55-2-7 applies to a direct actiQnagainst Pappas is

not supported by the text of the statute the history of the statute or by any relevant case

law WVa Code 55-2-7 is titled Actions on bonds of personal representatives and

fiduciaries The first sentence of the statute begins by stating [t]hc right of action

23

upon the bond of an executor administrator guardian (emphasis added) Courts

have explicitly stated that- WVa Code 55-2-7 applies to thc bonds of certain

fiduciaries See WhitLm v Board of Educ ofKana -vl a County 438 SE2d 15 23

(WVa 1993) (describing vVa Code 55-2-7 as applying to the bonds of

fiduciaries)

90 WVa Code 55-2-7 applies to actions against the bonds of specific classes of

fiduciaries Plaintiff- however are not proceeding against Pappas bond they are

proceeding directly against Pappas This distinction is significant See generally

McCormicks Exrs v Wright Exrs 79 Va 524531 (1884) ( the sureties do not stand

upon the same ground nor are their rights invohed in the same qllcstion as the

executor James Marshall but on the contrary they staIid upon distinct and ullCOlmcctcd

ground)

91 Plaintiffs attempt to extend their time for pleading under VVa Code 55-2-7 ignores

the significant distinction between suits against fiduciaries and suits against their

sureties

92 Courts treat suit against fiduciaries separate and distinct from suits against those

fiduciaries sureties See McMahon v Randolph-Macon Academy 42 Va Cir 417

(Warren County 1997) Ingram v Cates 74 SW3d 783~ 787 (Court of Appeals ofKy

2002) (holding that a direct breach of fiduciary claim against a fiduciary was subject to

Kentuckys catch-all limitation) distinguished on other grounds by Pine Tree Villa

ILC Brooker 612 Fed Appx 340 (61h Cir 2015) Com ex rei Corbetl v Citizens

Alliance for Betler Neighborhoods lite 983 A2d 1274 (2-year statute of limitations

app1ies to direct actions against fiduciaries

24

Probate matterS are governed by statute

93 The jurisdiction for probate matters such as the appointment and qualification of

personal representatives guardians conunittces and curators and the settlement of their

aCcouT1ts bas been vested by the Legislature in the County Commissions or tribunals

existing in lieu thereof or the officers of such County Commissions or tribunals not in

circuit courts or their officers Haines v Kimble 654 SE2d 588 596 rVVa 2006)

ct1ng W VaCode sect 44-1-1 et seq

94 Thus it 1S the County Commission which may revoke and annul the powers of a

fiduciary under whose order or under the order of whose clerk any such fiduciary

derives his authority whenever from any cause it appears proper W VaCode sect 44shy

5-5 (1982) Such a fiduciary includes the persona] representative of an estate W

VaCode sect 44-5-1 (1982)

95 Plaintiffs claims regarding Administrator Pappas fees and the authority with which

Pappas was vcsted to sen real estate and to pay administrative fees in the foml of

attorneys fees are governed by Vest Virginia statute

96 By statute administrators arc vested with authority to buy and sell real estute and to

hire counseL

97 By statute adminish-utors are required to submit annual accountings to the fiduciary

Commissioner which Commissioner provides notice to a11 interested parties and makes

a recommendation to the County Commission_

25

98 A stanltory period of time exists within which interested partie~ rna file objections

Thereafter a report contirmed by the County Commission is binding and conc1lLiive

upon creditors and every beneficiary of the estate who has had notice

99 Strikingly absent from Plaintiffs Amended Complaint is an allegation that Pappas

failed to provide notjce andor violated of (iny provision of the statlltes governing the

administration of estates

100 Pappas fillfil1ed liis statutory duties he acted at all times within his authority

notice to all interested parties was provided the fi111t 3 ACC(luntings were approved As

a matter ofluw they are binding

Plaintiffs claims against Pappas are barred by the doctrine of res judicata

101 Separate and apart from the comprehensive statutory law governing the probate of

estates and the jurisdictlon of the Monongalia County Commission Plaintiffs have

already raised or had the opportunity to raisc the same arguments in prior civil actions

pending in Monongalia Circuit Court

102 The matter before this Court is the 6th matter filed in 6 years by or on behalf of

Louis A Scotchel Sr and his children alleging complaints as a result of the

admirristration of the Estate See p 11 Dels Original Motion to Dismiss 914116

103 The two basic elements ofthe doctrine of res judicata are (I) identity of the cause

of action and (2) identity of the parties (or their privies) that is the same cause of

action and the same pru1ies (or those in privity with them) are involved ill the fonner

and subsequent actions Semler Bailey 400 SE2d 220 225 (W Va 1990)

104 Vith respect to the first identity that of the cause of action~ the doctrine of res

judicata does not require that the matter was in fact litigated in the prior action instead

WVa Code 44-4-18

26

such doctrine applies to bar subsequent litigation of every matter which legitimately

could have been litigated on the merits in the prior action as within the subject matter

oflhe prior action Id

An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive not only as to the matters actually detcnnincd but as to every other mattcr which tl1C parties might have litigate-d as incident theretlt and coming within the legitimate purview of the subject-nlatter of the action It is not esscntial that the matter should have been fonnally put in issue 111 a fonner suit but it is sufficient that the statliS of the suit was such Ihat the parties might have had the matter disposed of on iL5 merits An erroneous ruling of the court will not prevent the matter ITom being res judicata

id citing Sayres Adm r v Harpold 11 SEl6 (WVa 1890)

105 Here the first element identity of the cause of action is satisfied Plaintiffs

claims against Pappas could have been litigated on the merits in eifher of the prior

Monongalia County civil actions

106 ParUfTupbs 17 through 20 of the Amended Complaint reference the vcry same

transaction alleged in Louis A Scotchel Srs Third Ptuty Complaint against Keith

Pappas filed on April 10 2013 in Civil Action 12-C-718 See Ex 13 Defs Onginaf

Motion 10 Dismiss 91416 The Third Party Complaint in Ciil Action 12-C-71S

involve the same property same parties with a different Plaintiffs lawyer and a

different civil Olction number

107 There is no question but that the second element has been satisfied As illustrated

in Ex 13 the individual Plaintiffs before the Court in tlris matter arc the same Plaintiffs

in the prior actions [d

108 Under the doctrine ofres judicata Plaintiffs claims reg-mling fee and the sale of

real estate are dismissed as to Pappas

27

FaiJure to state a daim upon which relief can be granted

109 Paragraphs 13 and 14 of Plaintiffs Amended Complaint attempt to set forth a

cause of action based on Pappas payment oflega fees to 2 law fiD1JS which had been

engaged in litigation that was adverse to [Plruntiff5] including the defense of the invalid

2006 will

110 West Virginia Code 44-7-1 et seq sets forth the statutory procedure for the

resignation of a fiduciary which specifically requires a hearing and the County

Commissions acceptance of resignation WVa Code 44-7-3

111 As a matter of law Pappas was Administrator of the Estate until he resigned and

was released by the Monongalia County Commission

112 As a matter of law an Administrator is directed to pay the administrative costs of

the Estate West Virginia Code 44-3A-26 directs the order in which debt of the

decedent are to be paid beginning with costs and expenses of administrations

113 Pursuant to WVa Code 44-3A-26 Pappas not only had the authority but a

statutory duty to pay administrative expenses of the Estate It is axiomatic that Pappas

failure to pay the 2 law firms could have subjected the Estate to additional clrums and

further litigation

s sect44-3A-26 Order in which debts of d~redent Sre to be paid

(a) If the applicable assets of the estate are insufficient to pay aU claims against the estate in full the periOnal repreoentative shall make payment in the follo-ing order

(I) Costs and expen~ of administration

(2) Reawnablc fUnenal expenses

(3) Debts and taKes llloith preference under fcdenallaw

(4) Unpaid child support which is due and oviog at the time oftile decedents death

28

114 As a matter of law Plaintiffs Amended Complaint fails to state a claim against

Pappas with respect to the payment oftega) fees 1n April 2014

For these reasons Defendant Pappa) Motion to Dismiss is granted on all Counts raised in

Plaintiffs Amended Complaint and all claims against Keith J Pappas are dismissed with

prejudice The Clerk is directed to send a certified copy of this Order to aU counsel of record

PH

ENTERED JILt I~ )010

DOCKET lINE 34 ~~------------

JEAN FRIEND CIRCUIT ClERk

29

improperly [Amended CQmplajnt~ pm S] Plaintiffs Amended Complaint alleges waste

breach ofpromisc and breach offiduciary duty [d

Defendant Pappas filed a Motion to Dismiss Plaintiffs Amended Complaint Of in the

Alternative Motion for More Definite Statement The bases for the Motion were that Plaintiffs

claims were barred by the 2middotyear statute of limitations were barred by the doctrine of res

judicata and failed to state a claim Bgainst Pappas upon which relief could be gronted

AJtemathrely Pappas movoo for a more definite statement Pappas requested that the

Court require Plaintiffs to identify the acts ofPappa1 ofwhich they oomplaiJl~ as well a the dates

on which Plaintiffs a])ege tbe acts OCCUITOO so that Pappas could reasonably respond

Plaintiffs fuUed to file a written rc~ponsc to 1he Motion to Dismiss

On January 62016 the Court heard arampruments of counsel on Defendant Pnppnst Motion

to Dismiss or in the Alternative Motion for More Definite Statement At the conclusion of the

hearing the Court instructed the parties Bnd counsel for the parties to meet nnd confer regarding

Ole ilsues raised during argument to detem1ine what if my viable churns were tlailablc for

PlaintifT~ to pursue against Defendants and to report back to the Court on March lS~ 2016

The parties and counsel for the parties met in Morgantown West Virginia on February

162016 pursuant to the Courts instruction Counsel for the parties filed Reports oftbe meet

nnd confer~ Plaintiffs represented that they did not intend to amend their Amended Complaint

and that they would proceed on the Amended Complaint as fi1ed As such Plaintiffs declined

ihc opportunity to amend their First Amended Complaint for the second time

Defendant Pappas filed a Renewed Motion to Dismiss or In The Alternative Motion for

Summary Judgment Plaintiffs filed both a Response with Edlloits and 3 Sur Reply

2











added)









LawyctS~ 20L03[3][e] (5th cd 20)2)

3






WVaREvid 201 (b)(2)











Vol 0349 Page 407

4

I i

I I


Filed May 10 2010




8

19

I I



1 10

-~ - _-









5

Larry Y Starcher





Scotchel






FINDINGS OF FACT










6















properties









7






















8



paraS]











282010










9






Trans 786



Hearing]


docket Sheet]













10











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29











added)









LawyctS~ 20L03[3][e] (5th cd 20)2)

3






WVaREvid 201 (b)(2)











Vol 0349 Page 407

4

I i

I I


Filed May 10 2010




8

19

I I



1 10

-~ - _-









5

Larry Y Starcher





Scotchel






FINDINGS OF FACT










6















properties









7






















8



paraS]











282010










9






Trans 786



Hearing]


docket Sheet]













10











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29






WVaREvid 201 (b)(2)











Vol 0349 Page 407

4

I i

I I


Filed May 10 2010




8

19

I I



1 10

-~ - _-









5

Larry Y Starcher





Scotchel






FINDINGS OF FACT










6















properties









7






















8



paraS]











282010










9






Trans 786



Hearing]


docket Sheet]













10











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29


Filed May 10 2010




8

19

I I



1 10

-~ - _-









5

Larry Y Starcher





Scotchel






FINDINGS OF FACT










6















properties









7






















8



paraS]











282010










9






Trans 786



Hearing]


docket Sheet]













10











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29

Larry Y Starcher





Scotchel






FINDINGS OF FACT










6















properties









7






















8



paraS]











282010










9






Trans 786



Hearing]


docket Sheet]













10











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29















properties









7






















8



paraS]











282010










9






Trans 786



Hearing]


docket Sheet]













10











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29






















8



paraS]











282010










9






Trans 786



Hearing]


docket Sheet]













10











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29



paraS]











282010










9






Trans 786



Hearing]


docket Sheet]













10











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29






Trans 786



Hearing]


docket Sheet]













10











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29











494 at 9 13-14]







9 13-14]






11

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29

















Stamp 174-193



the time




11
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29
























13





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29





















Stamp 30173




14























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29























15










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29










2904













16


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29


debts of the Estate





















17














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29














16







Stamp 1826-2100



18


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29


















CONCLUSIONS OF LAW





19



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29



emphasis added)



WVa REvid 201(d)








(5th ed 2012)










20










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29










omitted)














21





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29





2009)







endof2011 [Ex17]




29 2013 [Ex 12]



[Ex 13]





22
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29
























23





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29





fiduciaries)







ground)



sureties









24

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29

















hire counseL




25
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29
























WVa Code 44-4-18

26




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29




















27





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29





2006 will












further litigation







28






PH


DOCKET lINE 34 ~~------------


29






PH


DOCKET lINE 34 ~~------------


29

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