LARRY V. STARCHER, Administrator CTA for the Estate of Arthur P. Scotchel; LOUIS A. SCOTCHEL, SR.; LOUIS A. SCOTCHEL, JR.; ARTHUR C. SCOTCHEL; and REBECCA SCOTCHEL, Plaintiffs Below, Petitioners,
KEITH J. PAPPAS, OF WEST VIRGINIA Defendant Below, Respondent.
KEITH J. PAPPAS, Defendant Below, Respondent.
County No. 15-C-242)
petitioners herein and plaintiffs below, Larry V.
Starcher, Administrator CTA for the Estate of Arthur
P. Scotchel; Louis A. Scotchel, Sr.; Louis A. Scotchel, Jr.;
Arthur C. Scotchel; and Rebecca Scotchel ("Scotchel
family beneficiaries"), by counsel Jacques R. Williams,
appeal an order entered November 16, 2016, by the Circuit
Court of Monongalia County. By that order, the circuit court
dismissed an action against a previous administrator of the
Estate of Arthur P. Scotchel, Keith J. Pappas ("Mr.
Pappas"), respondent herein and defendant below, by
counsel Carol P. Smith. On appeal to this Court, the Scotchel
family beneficiaries contend that the circuit court erred in
its application of Rule 201 of the West Virginia Rules of
Evidence regarding judicial notice, misapplied Rule 12(b)(6)
of the West Virginia Rules of Civil Procedure regarding
dismissal, misapplied the doctrine of res judicata,
and misapplied the statute of limitations.
our thorough and considered review of the assignments of
error, the parties' arguments, the appendix record, and
the pertinent authorities, we find that the circuit court
committed no error in the dismissal of the action against Mr.
Pappas. Consequently, we affirm the circuit court's
November 16, 2016, order. Because this case does not present
a new or substantial question of law, and for the reasons set
forth herein, we find the issuance of a memorandum decision
is appropriate pursuant to Rule 21(c) of the West Virginia
Rules of Appellate Procedure.
P. Scotchel, a Morgantown, West Virginia, businessman and the
principal of Westover Realty, died on March 26, 2009. On
April 8, 2009, Louis A. Scotchel, Sr., a nephew of the
decedent, lodged the "Last Will and Testament of Arthur
P. Scotchel," dated June 30, 2005 ("2005
Will"), with the Clerk of the County Commission for
Monongalia County, West Virginia. Louis A. Scotchel, Sr., was
named as the fiduciary in the 2005 Will.
in the afternoon of April 8, 2009, John C. Scotchel, Jr.,
also a nephew of the deceased, presented the "Last Will
and Testament of Arthur P. Scotchel," dated January 9,
2006 ("2006 Will"). The 2006 Will named John C.
Scotchel, Jr., as the fiduciary. Louis A. Scotchel, Sr.,
returned the Letters of Administration he had earlier been
given, as requested by the Clerk of the County Commission for
Monongalia County. Thereafter, John C. Scotchel, Jr., was
appointed Executor of the Estate of Arthur P. Scotchel
("the estate"). George Armistead, Esq., was
assigned as the Fiduciary Commissioner. The essential
difference in the two Wills was in the naming of the
fiduciary and the amount of distribution to the named
fiduciary. As to all other beneficiaries in either Will, the
distribution was equal.
over the handling of the estate and the management of
Westover Realty began almost immediately. Complaints included
concerns that real estate was not being maintained, bills and
mortgage debt were not being paid, and banks were threatening
foreclosure proceedings. The Scotchel family beneficiaries
also disagreed with the manner in which John C. Scotchel,
Jr., was handling the estate. Therefore, on July 17, 2009,
they filed a complaint seeking injunctive relief in the form
of removing John C. Scotchel, Jr., as Executor. Additionally,
on July 22, 2009, the Scotchel family beneficiaries filed a
petition with the Monongalia County Commission to remove John
C. Scotchel, Jr., as Executor. The removal petition was
referred to Fiduciary Commissioner Armistead. A few months
later, in October 2009, the Scotchel family beneficiaries
also filed a complaint contesting the 2006 Will on the
grounds of lack of testamentary capacity and undue influence
as allegedly committed by John C. Scotchel, Jr. The Scotchel
family beneficiaries sought to invalidate the 2006 Will in
favor of the 2005 Will.
Commissioner Armistead made unsuccessful attempts at
resolving the various disagreements among the Scotchel family
beneficiaries. The record reflects that he spent almost forty
hours conducting hearings, conferences, and conference calls
in an effort to investigate the records, certify the facts,
and resolve the disputes to no avail. Ultimately, Mr. Pappas
was approached by Fiduciary Commissioner Armistead; John C.
Scotchel, Jr.; and then-counsel to the Scotchel family
beneficiaries to serve as Administrator CTA of the estate.
After meetings and discussions, the Scotchel family
beneficiaries agreed to the appointment of Mr. Pappas as
Administrator CTA of the Estate. The agreement was
memorialized with the signing of a Memorandum of Agreement
dated April 5, 2010. The Memorandum of Agreement was prepared
by counsel for the Scotchel family beneficiaries. Among other
things, the Memorandum of Agreement provided that Mr. Pappas
would be compensated for his services at the hourly rate of
$175.00 and that paralegal time would be compensated at a
rate of $65.00 per hour. Fiduciary Commissioner Armistead
informed the Monongalia County Commission of the Memorandum
of Agreement and recommended the appointment of Mr. Pappas.
The Monongalia County Commission accepted the recommendation
and appointed Mr. Pappas as Administrator CTA on April 21,
2010. Upon appointment, Mr. Pappas was substituted as a named
party in the pending action for injunctive relief and the
efforts of Mr. Pappas to garner the assets of the estate,
conduct a property review, and profile the estate
individually, as well as the finances of Westover Realty,
proved to be challenging. There was financial
disorganization, including a lack of financials, and missing
banking records for various shell corporations, an absence of
account ledgers, and an inability to determine what property
was owned and, if owned, what property was encumbered. Deeds
and titles were not maintained, rentals were not accounted
for, leases were missing and tax documents could not be
located. Further, investigation determined that there were
some $400,000.00 worth of creditor claims against the estate
and another $450,000.00 of claims against Westover Realty
Pappas filed the initial appraisal and accounting documents
regarding the estate on September 8, 2011. Personal
nonprobate real estate was valued at $85,900.00. The total
value of the personal probate assets was $77,115.00. No
objection to the first appraisal was made and it was
confirmed by the Monongalia County Commission. However, the
disputes among the Scotchel family beneficiaries continued.
In November 2011, Mr. Pappas sought to withdraw as
Administrator CTA, but the Scotchel family beneficiaries
requested that he continue to serve. Fiduciary Commissioner
Armistead expressed the view that he would not recommend
relieving Mr. Pappas unless an attorney/accountant was found
to replace him. Subsequent expressions of a desire to be
relieved of his duties were met with similar expressions of
reluctance by Fiduciary Commissioner Armistead.
and third annual accountings also were filed by Mr. Pappas
with the Monongalia County Commission. These accountings also
were approved without objection. The unobjected to
accountings report the billings of and payments to Mr.
Pappas. During the course of the estate proceedings, Mr.
Pappas sent itemized monthly statements to all heirs and to
Fiduciary Commissioner Armistead for services performed from
2010 through 2014.
3, 2011, Mr. Pappas had billed $72,057.71 and was paid
$50,000.00. On June 22, 2012, Mr. Pappas was paid an
additional $12,500.00. These are the only payments made to
Mr. Pappas for itemized services billed to the estate. Mr.
Pappas' total itemized billing for work he performed for
the estate amounted to $195,305.00.
February 2012, complaints were being made by Scotchel family
beneficiaries about the fees of Mr. Pappas. On June 24, 2013,
counsel for the Scotchel family heirs filed an ethics
complaint asserting that Mr. Pappas' fees were excessive.
March 2014, the Will contest action was tried before a jury
which found that the 2006 Will was the product of undue
influence exerted by John C. Scotchel, Jr., over the
decedent, resulting in the invalidation of the 2006 Will. The
Scotchel family beneficiaries requested that Mr. Pappas be
removed and Louis A. Scotchel, Sr., be appointed. The circuit
court denied the motion and instructed the parties that the
appointment and removal of an administrator was a probate
matter that needed to go before the Monongalia County
A. Scotchel, Sr., requested the Monongalia County Commission
to appoint him as executor under the 2005 Will. Mr. Pappas
objected to the appointment on the grounds that Louis A.
Scotchel, Sr., had filed various claims against the estate
that amounted to a conflict of interest. Fiduciary
Commissioner Armistead advised that Louis A. Scotchel, Sr.,
had a conflict of interest. Likewise, Phillip M. Magro, Esq.,
counsel for the Monongalia County Commission, agreed that a
conflict of interest meant that Louis A. Scotchel, Sr.,
should not be appointed as a fiduciary of the estate. Mr.
Starcher, who had testified as a family friend, also agreed
that Louis A. Scotchel, Sr., had a conflict of interest.
Pappas' request to be released of his duties was approved
by the Monongalia County Commission on April 16, 2014. As
requested, Mr. Pappas submitted a Fourth and Final Accounting
on May 9, 2014. After being prevailed upon, Mr. Starcher took
an oath and became the Administrator CTA of the estate on
April 21, 2014. Mr. Starcher filed an objection to the Fourth
and Final Accounting. However, he requested that the issues
not be referred to the ...