Sipp v. Yeager
Annotate this Case
IN THE SUPREME COURT OF APPEAL OF WEST VIRGINIA
January 1995 Term
_____________
No. 22715
_____________
NANCY YEAGER SIPP AND EARL STEPHEN YEAGER,
AS CO-EXECUTORS OF THE ESTATE OF EARL YEAGER,
Plaintiffs Below, Appellants
v.
EMILY YEAGER,
Defendant Below, Appellee
___________________________________________________________
Appeal from the Circuit Court of McDowell County
Honorable Kendrick King, Judge
Civil Action No. 93-C-148-K
DISMISSED
___________________________________________________________
Submitted: May 16, 1995
Filed: June 15, 1995
J. W. Feuchtenberger, Esq.
Kelli L. Harshbarger, Esq.
Stone, McGhee, Feuchtenberger &
Barringer
Bluefield, West Virginia
Attorneys for the Appellants
Joseph A. Colosi, Esq.
Welch, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by
temporary assignment.
SYLLABUS BY THE COURT
1. "Under W. Va. Code, 58-5-1 (1925), appeals only may
be taken from final decisions of a circuit court. A case is final
only when it terminates the litigation between the parties on the
merits of the case and leaves nothing to be done but to enforce by
execution of what has been determined." Syllabus Point 3, James
M.B. v. Carolyn M., ___ W. Va. ___, 456 S.E.2d 16 (No. 22545, Feb.
17, 1995).
2. "Where an order granting summary judgment to a party
completely disposes of any issues of liability as to that party,
the absence of language prescribed by Rule 54(b) of the West
Virginia Rules of Civil Procedure indicating that 'no just reason
for delay' exists and 'directi[ng] . . . entry of judgment' will
not render the order interlocutory and bar appeal provided that
this Court can determine from the order that the trial court's
ruling approximates a final order in its nature and effect."
Syllabus Point 2, Durm v. Heck's, Inc., 184 W. Va. 562, 401 S.E.2d 908 (1991).
Per Curiam:
This case involves a dispute over Earl Yeager's estate
between Mr. Yeager's children, Nancy Yeager Sipp and Earl Stephen
Yeager, M.D., the appellants who are co-executors under Mr.
Yeager's will and Mr. Yeager's widow, Emily Yeager, the appellee.
Ms. Sipp and Dr. Yeager appeal an order of the Circuit Court of
McDowell County removing them as co-executors, holding the
antenuptial agreement between Mr. and Mrs. Yeager to be void ad
initio and holding Mr. Yeager's will to be valid. On appeal, Ms.
Sipp and Mr. Yeager maintain that the circuit court erred in
removing them as co-executors and in voiding the antenuptial
agreement. Ms. Sipp and Mr. Yeager urge this Court to remand the
case with directions to remove Mrs. Yeager as manager of the
corporate estate assets and appoint a Special Receiver. After
reviewing this case's record, we find that the circuit court's
decision is an interlocutory rather than a final order and
therefore, we dismiss this appeal as improper before this Court.
I
Earl Yeager died testated on March 1, 1992. Earl Yeager
was survived by his wife, the appellee, and his three children by
his first wife, who is also deceased. After a long courtship of
about nine years, Mr. and Mrs. Yeager were married on June 28,
1971. Three days before their wedding, Mr. Yeager showed an
antenuptial agreement to Mrs. Yeager. On the morning before their
wedding, Mrs. Yeager signed the antenuptial agreement, which she alleges that although she had the opportunity, she did not read or
discuss the agreement. The agreement does not disclose either
party's assets. Mrs. Yeager testified that it was not until after
her husband's death that she received and read a copy of the
agreement. The agreement states, in pertinent part:
. . . each of the parties . . . hereby agrees
to waive, and does hereby waive, all and every
right whatsoever which he or she might have or
acquire by law by such marriage in any and all
property of every kind and character, real,
personal or mixed, now owned or which may be
hereafter acquire by the other party. . .[and
that each parties' property] shall pass to her
or his heirs-in-law, devisees or legatees in
precisely the same manner and with the same
effect as through the marriage were never
consummated.
Although the agreement indicates that each will maintain his and
her property separately, Mrs. Yeager testified that she and Mr.
Yeager had joint checking accounts, made joint furniture purchases,
signed personal guarantees for business loans and jointly financed
the purchase of a bulldozer. Mrs. Yeager said that she deposited
the money she inherited from her aunt and uncle into a joint
account. Mrs. Yeager also testified that she bought supplies for
a farm owned by Mr. Yeager, loaned Mr. Yeager's business $70,000
that she inherited from her aunt and uncle, and at Mr. Yeager's
suggestion, paid $30,000 to improve some rental property owned
individually by one of Mr. Yeager's corporations.
Mr. Yeager's will, signed on October 11, 1991, was
prepared at the direction of Ms. Sipp. Ms. Sipp testified that based on numerous conversations with her father, she had her lawyer
in New Jersey prepare Mr. Yeager's will. The will was returned to
Ms. Sipp who sent it to Mr. Yeager who, in turn, signed it before
disinterested witnesses.
Mr. Yeager's will appoints Ms. Sipp and her brother, Dr.
Yeager, co-executors. Under Mr. Yeager's will, Mrs. Yeager was to
receive all the Yeager Ford Sales, Inc. shares, subject to the two
following conditions:
a. All money owed by Yeager Ford Sales,
Inc., to Yeager, Inc., must be paid in full;
and
b. All debts which have been incurred by
Yeager, Inc. on behalf of, and for the benefit
of, Yeager Ford Sales, Inc., must be fully
repaid by Yeager Ford Sales, Inc. to Yeager,
Inc.
Dr. Yeager, one of the appellants, was to receive all of Mr.
Yeager's personal effects and furniture and the will contained some
specific bequests to Mr. Yeager's sisters. The residual
beneficiaries of Mr. Yeager's estate are his three children, Ms.
Sipp, Dr. Yeager, and their sister, Sally Yeager Goings.
The major assets of Mr. Yeager's estate include: all the
stock shares in two corporations, Yeager Ford Sales, Inc., an
automobile dealership, and Yeager, Inc., a real estate holding
company for rental property, a farm, some stock in local banks and
proceeds for life insurance policies.
The record indicates that numerous problems arose during
the administration of the estate. One of Mr. Yeager's corporations, Yeager Ford Sales, Inc., which was managed by Mrs.
Yeager, owed substantial money to various banks, the Ford Motor
Company, and Yeager, Inc., Mr. Yeager's real estate holding
company. Mr. and Mrs. Yeager personally guaranteed the payment of
some of the dealership's debts.See footnote 1 Mr. and Mrs. Yeager borrowed
against several of Mr. Yeager's life insurance policies to assist
the dealership and Mrs. Yeager loaned the dealership $70,000 of her
inherited money. Based on this bleak picture, the co-executors
closed the dealership over Mrs. Yeager's protests. The co-
executors maintain that the dealership was a drain on the estate's
assets and Mrs. Yeager claimed that the dealership was slowly
reducing its debt.
The parties argued over the management of Yeager, Inc.
Mrs. Yeager alleges that the co-executors failed to make necessary
repairs to the rental properties, failed to pay real estate taxes
and other fees, failed to pay for utilities for the rental
properties and refused to pay her for her management services. The
co-executors allege that Mrs. Yeager set up a separate account for
Yeager, Inc., by-passing the estate, thereby, removing the
corporation's transactions from their knowledge. The parties also
disagreed over whether the maintenance costs exceed the rental income for various rental properties and whether the estate should
charge rent for the house in which the family of Mrs. Yeager's
daughter is living that was improved with $30,000 of Mrs. Yeager's
personal money.
The parties disagreed on the classification of various
items. Believing that certain furniture at Mr. Yeager's farm was
part of his personal property that was bequeathed to Dr. Yeager,
Ms. Sipp and Dr. Yeager removed some furniture. Mrs. Yeager
maintains that because certain of these items were purchased
jointly by Mr. Yeager and her, she, as the surviving entity-in-
common and not Dr. Yeager, is entitled to them. The parties also
disagree about the ownership of various items on the farm, which
Ms. Sipp and Dr. Yeager attempted to include with their sale of the
farm. One of these items is a bulldozer, which Mrs. Yeager claims
was jointly purchased, jointly financed and therefore, now her
personal property. Another ownership dispute concerns an antique
car, that Ms. Sipp shipped to her New Jersey home. Mrs. Yeager
alleges that because the antique car was titled to Yeager Ford
Sales, Inc., the car was not part of Mr. Yeager's personal
property. Mrs. Yeager also alleges that several vehicles and tools
on the farm were the property of Yeager Ford Sales, Inc. Mrs.
Yeager also maintains that the draperies in the farmhouse were a
Christmas present to her from Mr. Yeager.
The proceeds from Mr. Yeager's life insurance policies
also may be in dispute. The record is not clear if all the insurance money due the estate was paid to the estate. The
proceeds of two policies that listed Yeager, Inc. or Yeager Ford
Sales, Inc., as the beneficiary were received by Mrs. Yeager who
deposited the proceeds in accounts for the respective corporations.
Some of the insurance policies were borrowed against and the
proceeds used by Yeager's Ford Sales, Inc.
Apparently Mr. Yeager's safe deposit box was opened by
the co-executors without the presence of a disinterested party. No
inventory was made of the box's contents. Dr. Yeager testified
that the coins in the box were part of his childhood collections
and were never owned by his father.
Another dispute concerns the insurance proceeds from Mr.
Yeager's ring, which was lost shortly after his death. According
to Mrs. Yeager, because the ring was a present from her and she
paid the insurance premiums, she is entitled to the insurance
proceeds.
Mrs. Yeager also notes that the co-executors have failed
to file an appraisement of the estate. Ms. Sipp and Dr. Yeager
allege that Mrs. Yeager objects to their draft appraisement and
Mrs. Yeager alleges that she does not object to the filing of the
appraisement.
On February 19, 1993, Ms. Sipp and Dr. Yeager, as co-
executors, sought an injunction to compel Mrs. Yeager to relinquish
control of Yeager Ford Sales, Inc. and Yeager Inc., and to appoint
John Hurd, Jr. as a special receiver. In the accompanying complaint, the co-executors requested the circuit court to find
that Mrs. Yeager failed to satisfy the conditions precedent for her
ownership of Yeager's Ford Sales, Inc., and that the rights to the
corporation's stock be vested in the co-executors.
On March 12, 1993, Mrs. Yeager answered and
counterclaimed alleging: (1) the antenuptial agreement between Mr.
Yeager and her was void; (2) Mr. Yeager's will was invalid because
of undue influence; (3) Her claims against the estate are valid and
should be paid; and (4) Because of improper estate administration,
the co-executors should be removed and another executor(s)
substituted. On March 31, 1993, the co-executors answered denying
Mrs. Yeager's counterclaim and asserting that Mrs. Yeager's "unwise
and inappropriate business practices . . . created indebtedness
against the estate in excess of three-quarters of a million
dollars, for the satisfaction of which sale of substantially all of
the estate assets will be necessary."
After numerous depositions and a hearing, the circuit
court, on March 11, 1994, entered an order finding: (1) the
prenuptial agreement void; (2) Mr. Yeager's will valid; (3) because
the two corporations, privately held by Mr. Yeager, were operated
as Mr. Yeager's alter ego, the corporations are to be treated as
"one and the same" as the estate; (4) a bond, as set by statute, be
posted by the executor(s); and (5) the appellants be removed as co-
executors and appointing a third party as executor whose bond and
fees are to be paid by the estate. The circuit court continued its jurisdiction over matters "arising out of this controversy and
relating to the Earl Yeager Estate and all property (real,
personal, mixed; tangible and intangible) of said Estate." The
circuit court also ordered the new executor to "permit defendant
Emily Yeager to continue to work as General Manager of Ford Sales,
Inc., at reasonable compensation and continue to reside in the
widow's residence the same as she did during the lifetime of Earl
Yeager."
On March 17, 1994, Mrs. Yeager gave notice that she
"elects to take her statutory dower share of the estate of her
deceased husband." After the March 11, 1994 order, the circuit
court ordered payment of various fees and expenses of the appointed
executor, has approved the sale of stock held by the estate, and
has held an additional hearing. On July 15, 1994, the circuit
court entered an order clarifying certain powers of the appointed
executor and approving some of the actions of the executor. The
July 15, 1994 order delayed consideration of the "furniture and
other personal property alleged to have been wrongfully removed by
the plaintiffs. . . ."
Ms. Sipp and Dr. Yeager appealed the March 11, 1994
circuit court order to this Court maintaining that the circuit
court erred: (1) in finding the antenuptial agreement invalid; (2)
in removing them as co-executors; and (3) in allowing Mrs. Yeager
to continue as a manager of corporate estate assets. Mrs. Yeager
objected to the appeal alleging: (1) the March 11, 1994 circuit court order was not final; (2) that the March 11, 1994 order should
be affirmed; and (3) all matters in the March 11, 1994 order not
raised on appeal be considered waived.
II
Recently in James M.B. v. Carolyn M., ___ W. Va. ___,
___, 456 S.E.2d 16, 19 (1995), we discussed the "'rule of
finality,'[which] is designed to prohibit 'piecemeal appellate
review of trial court decisions which do not terminate the
litigation [.]' United States v. Hollywood Motor Car Co., Inc., 458 U.S. 263, 265, 102 S. Ct. 3081, 3082, 73 L. Ed. 2d 754, 756 (1982)."
In James M.B., the circuit court had not ruled on a motion for
reconsideration filed by the appellants, before the appellants
filed a notice of motion to appeal. James M.B. found that "a
motion for reconsideration filed within ten day of judgment being
entered suspends the finality of the judgment and makes the
judgment unripe for appeal." Syl. pt. 7, in part, James M.B.
In James M.B., we noted that W. Va. Code 58-5-1 [1925]
requires a final decision for an appealable order. In Syl. pt. 3,
James M.B., we stated:
Under W. Va. Code, 58-5-1 (1925), appeals
only may be taken from final decisions of a
circuit court. A case is final only when it
terminates the litigation between the parties
on the merits of the case and leaves nothing
to be done but to enforce by execution of what
has been determined.
See Stephen L.H. v. Sherry L.H., ___ W. Va. ___, ___, ___ S.E.2d
___, ___, (Slip op. at 1) (No. 22084 March 6, 1995).
In James M.B., we noted that specific classes of
interlocutory orders were appealable by statute or the W. Va. Rules
of Civil Procedure or "fall within a jurisprudential exception.
[Footnote omitted.]" James M.B., ___ W. Va. at ___, 456 S.E.2d at
19-20. One of these specific classes of appealable interlocutory
orders is found in Rule 54(b) [1978] of the W.Va.R.Civ.P., which
allows this Court to consider judgments involving multiple parties
or claims. See James M.B., ___ W. Va. at ___ n. 3, 456 S.E.2d at
19-20 n. 3.
Rule 54(b) provides:
Judgment upon multiple claims or involving
multiple parties.--
When more than one claim
for relief is presented in an action, whether
as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties
are involved, the court may direct the entry
of a final judgment as to one or more but
fewer than all of the claims or parties only
upon an express determination that there is no
just reason for delay and upon an express
direction for the entry of judgment. In the
absence of such determination and direction,
any order or other form of decision, however
designated, which adjudicates fewer than all
the claims or the rights and liabilities of
fewer than all the parties shall not terminate
the action as to any of the claims or parties,
and the order or other form of decision is
subject to revision at any time before the
entry of judgment adjudicating all the claims
and the rights and liabilities of all the
parties.
We have long held that an order which "'approximat[es]'
a final order in its 'nature and effect'" is appealable under Rule
54(b). Durm v. Heck's, Inc., 184 W. Va. 562, 566, 401 S.E.2d 908,
912 (1991); Taylor v. Miller, 162 W. Va. 265, 269, 249 S.E.2d 191, 194 (1978); Lloyd v. Kyle, 26 W. Va. 534, 540 (1885). In Durm,
supra, we noted that our interpretation of Rule 54(b) is not as
strict as the federal courts in that we do not require an "express
determination that there is not just reason for delay and . . . an
express direction for the entry of judgment." Durm, 184 W. Va. at
566, 401 S.E.2d at 911. Syl. pt. 2, Durm states:
Where an order granting summary judgment to
a party completely disposes of any issues of
liability as to that party, the absence of
language prescribed by Rule 54(b) of the West
Virginia Rules of Civil Procedure indicating
that 'no just reason for delay' exists and
'directi[ng] . . . entry of judgment' will not
render the order interlocutory and bar appeal
provided that this Court can determine from
the order that the trial court's ruling
approximates a final order in its nature and
effect.
The key question for determining if a circuit court's order is
appealable under Rule 54(b) is whether that order approximates a
final order in its nature and effect.
In this case, the circuit court's March 11, 1994 order is
not considered appealable either under W. Va. Code 58-5-1 [1925] or
Rule 54(b) [1978] of the W.Va.R.Civ.P. The March 11, 1994 order of
the circuit court is not a final order under W. Va. Code 58-5-1
[1925] because it did not end the litigation between the parties.
The record indicates that after the March 11, 1994 order, the
circuit court has continued to exercise jurisdiction of matters
arising from the estate of Mr. Yeager. In its July 15, 1994 order,
the most recent order in the record, the circuit court noted that
the classification of various property remains in dispute and that an estate appraisement has not been filed. The parties agree that
the March 11, 1994 order does not address Mrs. Yeager's claims
against the estate. In their brief, Ms. Sipp and Dr. Yeager urge
this Court to remove Mrs. Yeager from managing corporate estate
assets. Although the March 11, 1994 order resolves certain
issues, the order does not end the litigation between the parties
and therefore, is not an appealable order under W. Va. Code 58-5-1
[1925].
Neither can the March 11, 1994 order of the circuit court
be considered an appealable order under Rule 54(b) [1978] of the
W.Va.R.Civ.P. First, we note that the circuit court did not
consider this order to be final. Rather, the circuit court was
ruling on the motions to remove the co-executors and to have Mrs.
Yeager relinquish control of Yeager Ford Sales, Inc. In order to
rule on those motions, the circuit court had to resolve some of the
other issues in this case. The circuit court did not attempt to
resolve all the issues and the order states that jurisdiction is
retained on the classification of all property. Although the
circuit court's perception of an order is not dispositive, it does
provide guidance. See Stephen L.H., ___ W. Va. at ___, ___ S.E.2d
at ___, Slip op. at 2, quoting, Strahin v. Lantz, ___ W. Va. ___,
___ n.1, ___ S.E.2d ___, ___ n.1, Slip. op. 1 n.1 (No. 22099
Feb. 17, 1995)("we adopt a practical interpretation that looks to
the intention of the circuit court").
Although maintaining that the court order "approximates
a final order in nature and effect," Ms. Sipp and Dr. Yeager note that Mrs. Yeager's claims against the estate have not been
addressed and they even request that this Court remove Mrs. Yeager
from managing estate/corporate assets and appoint a Special
Receiver. The record indicates that several issues remain in
litigation such as: (1) Mrs. Yeager's claims against the estate;
(2) the classification of various property; (3) the disposition and
use of insurance proceeds, both Mr. Yeager's life insurance
policies and the insurance proceeds on his lost ring; and (4) Mrs.
Yeager's charges of fiduciary mismanagement. Because the matter
continues in litigation, other issues may arise and some of the
listed issues may be resolved. The evidence in this case shows
that the March 11, 1994 order of the circuit court does not
approximate a final order in its nature and effect, and therefore,
we find that the March 11, 1994 order is not appealable under Rule
54(b) of the W.Va.R.Civ.P.
For the above stated reasons, this case is dismissed
without prejudice.
Dismissed.
Footnote: 1 On October 1, 1993, the collection manager of the First National Bank of Bluefield testified about two outstanding loans to Yeager, Inc. and Yeager Ford Sales, Inc. in the amounts of $143,452.85 and $120,547.41, respectively, that were secured by personal guarantees from Mr. and Mrs. Yeager.
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