Trina L. Janura v. John J. Janura, Jr. ( 2021 )

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
Trina L. Janura, FILED
Defendant Below, Petitioner
February 2, 2021
vs) No. 20-0159 (Hancock County 12-C-229) EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
John J. Janura Jr.,
Plaintiff Below, Respondent
MEMORANDUM DECISION
Self-represented petitioner Trina L. Janura appeals two orders of the Circuit Court of
Hancock County. In the first order, entered on September 6, 2018, the circuit court established the
allotted acreage and boundary lines between a parcel of land belonging to petitioner and her sister,
Patricia Janura-Jordan (“Patricia”), as co-tenants and a parcel of land belonging to their brother,
Respondent John J. Janura Jr., after the court earlier granted respondent’s petition to partition the
eighty-five acres of land the siblings were given in their mother’s will. In its second order, entered
on January 30, 2020, the circuit court denied petitioner’s motion to alter or amend the September
6, 2018, order. Respondent, by counsel Daniel L. McCune, filed a summary response. 1 Petitioner
filed a reply.
The Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.
The parties and Patricia are the children of Kathryn Janura (“decedent”) who died testate
on July 3, 2008. The decedent’s will was admitted to probate in Hancock County, West Virginia,
where her estate remains open. Petitioner is the executrix of the estate. In the second paragraph of
the will, the decedent gave her property, including real estate, to her three children “equally, share
1
Respondent named petitioner and Patricia as defendants in the underlying partition action.
Patricia is not a party to this appeal.
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and share alike, as per [the will’s residuary clause].” The residuary clause contains the following
language:
I (Kathryn Janura) want all my land to stay in the family and not be divided and
sold. I want the siblings to own it equally and I want [petitioner] to have final say on
any decisions or disputes. I want my home (5114 Wylie Ridge Road [in the Clay
District of Hancock County, West Virginia]) to be turned into a group home or
health[-]related facility and [petitioner] is to be in charge of running it. I want
[petitioner] to open a corporation for the express purpose of operating this home.
....
Orchard to be equally divided into three plots (approximately to the spring house)
for each sibling for their homes, to be surveyed with monies from estate fund at a
later time.
On December 11, 2012, respondent filed a petition in the Circuit Court of Hancock County
to partition the approximately eighty-five acres of real estate devised by the decedent’s
will—including the land upon which the decedent’s home was situated—among the siblings. 2
Respondent alleged that the will’s residuary clause did not create a trust to convert the decedent’s
residence into a group home or health-related facility and that, in any event, operation of such a
home or facility on the decedent’s property would be unreasonable and impractical. On January
14, 2013, petitioner filed an answer to the petition, asserting that the residuary clause created a
trust and that, while a group home or health-related facility was not currently operating on the
property, “[petitioner] has spent funds on research and other activities in furtherance of the
development of [such a home or facility] as directed by the [w]ill.” In an order entered on August
26, 2013, the circuit court found that, after a review of the residuary clause, (1) the siblings
received the decedent’s real estate in equal shares, each sibling having “an undivided one-third (⅓)
interest in the property”; and (2) the residuary clause did not create a trust.
On March 17, 2014, petitioner filed a motion to compel the parties to resolve their dispute
through arbitration, relying on language in the residuary clause that provided “I want [petitioner]
to have final say on any decisions or disputes.” Respondent filed a response to the motion on
March 27, 2014, asserting that the decedent’s will contained no arbitration clause. By order
entered on August 15, 2014, the circuit court denied the motion, finding that the residuary clause
did not contain an arbitration clause.
In Janura v. Janura (“Janura I”), No. 14-0911, 2015 WL 3448181 (W. Va. May 29, 2015)
(memorandum decision), petitioner appealed not only the August 15, 2014, order denying her
motion to compel arbitration, but also the August 26, 2013, order finding that the residuary clause
did not create a trust. In that case, we reviewed the circuit court’s August 15, 2014, order under the
collateral order doctrine and found that the circuit court properly denied petitioner’s motion to
2
Respondent filed his action pursuant to West Virginia Code §§ 37-4-1 through 37-4-9,
which govern partitions of real estate.
2
compel arbitration. 3 We reasoned that, while the decedent wanted petitioner to be afforded
substantial deference in how she interpreted the decedent’s will, “the language on which petitioner
relies evidences no intention by the decedent that disputes arising under the will be arbitrated.” Id.
at *3. We dismissed petitioner’s appeal from the August 26, 2013, order, finding that it “did not
constitute a final decision.” Id. We noted that, as the circuit court retained plenary power to
reconsider, alter, or amend non-final orders, petitioner was free to continue to argue that the
residuary clause created a trust as long as her interpretation of the clause “is neither inconsistent
with [its] language nor contrary to law.” Id. at *4 n.4.
Before the circuit court, petitioner persisted in her argument that the residuary clause
created a trust; however, she failed to convince the court to reconsider its previous ruling. By order
entered on July 21, 2017, the circuit court appointed three special commissioners to evaluate
whether the eighty-five acres could be partitioned in kind. On November 15, 2017, the
commissioners reported that a partition in kind was possible where respondent could be given “a
share of the subject property . . . [that] would not injure the ownership interests of [petitioner and
Patricia] nor prohibit development of their parcel(s) as they desire.” The commissioners noted that,
pursuant to the residuary clause, the decedent wanted at least part of the real estate, “the orchard,”
to be “divided into three plots . . . for each sibling[.]”
After taking additional evidence at a March 9, 2018, hearing, the circuit court entered an
order adopting the commissioners’ report on April 17, 2018. Based on the commissioners’ report,
the circuit court found that the eighty-five acre tract the siblings received from the decedent “could
be equitabl[y] partitioned while still providing enough land and the large house sufficient to permit
[petitioner] to develop a group home or a health-related facility.” The circuit court further found
that Patricia was “always . . . in agreement with [petitioner’s] requests” and that, after respondent
is allocated his one-third share, “[n]o attempt will be made to allot the remaining two thirds
between the sisters because they do not want any allotment.” The circuit court stated that it was not
prepared to make the actual division between the parcel of land belonging to petitioner and Patricia
as co-tenants (“the residue parcel”) and the parcel belonging to respondent (“respondent’s
parcel”), but that “the specific property lines of the court[-]ordered partition will be set forth in a
further order of the court.”
On May 30, 2018, petitioner filed an appeal from the circuit court’s April 17, 2018, order.
During the pendency of that appeal, the circuit court entered its September 6, 2018, order
establishing the allotted acreage and boundary lines between the residue parcel and respondent’s
parcel. The circuit court found that, after partition, the residue parcel had 31.33 acres and
respondent’s parcel had 53.67 acres. The circuit court further found that “[t]he difference in
acreage among the siblings in the court’s allotment is based on the total value of the acreage to be
received by each sibling and takes into account that all the buildings are located on the acreage
allotted to [the residue parcel].” The circuit court attached an exhibit, prepared by a licensed
3
In Syllabus Point 1 of Credit Acceptance Corporation v. Front, 231 W. Va. 518, 745
S.E.2d 556 (2013), we held that “[a]n order denying a motion to compel arbitration is an
interlocutory ruling which is subject to immediate appeal under the collateral order doctrine.”
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surveyor retained by respondent, ruling that “[t]he borderline establishing the border between the
two parcels of real estate allocated to the parties depicted in exhibit ‘A’ is accepted by the court”
and that “the borderline, as marked in exhibit ‘A,’ is hereby ORDERED to be the dividing line
between the two parcels.” 4 The circuit court stayed its September 6, 2018, order “until the [West
Virginia] Supreme Court of Appeals rules on [petitioner’s appeal from the April 17, 2018, order.]”
On September 17, 2018, petitioner filed a motion to alter or amend the September 6, 2018, order
pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure.
In Janura v. Janura (“Janura II”), No. 18-0495, 2019 WL 4165288 (W. Va. September 3,
2019) (memorandum decision), we dismissed petitioner’s appeal from the circuit court’s April 17,
2018, order, finding that it was not a final order, and remanded the case for further proceedings. Id.
at *3-4. Following remand, by order entered on January 30, 2020, the circuit court denied
petitioner’s motion to alter or amend its September 6, 2018, order establishing the allotted acreage
and boundary lines between the residue parcel and respondent’s parcel.
Petitioner now appeals the circuit court’s September 6, 2018, order and its January 30,
2020, order denying her motion to alter or amend the September 6, 2018, order. We have held that
the standard of review for the denial of a motion filed under Rule 59(e) “is the same standard that
would apply to the underlying judgment upon which the motion is based and from which the
appeal to this Court is filed.” Syl. Pt. 1, Wickland v. Am. Travellers Life Ins. Co., 204 W. Va. 430,
513 S.E.2d 657 (1998). “This Court reviews the circuit court’s final order and ultimate disposition
under an abuse of discretion standard. We review challenges to findings of fact under a clearly
erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield,
196 W. Va. 178, 469 S.E.2d 114 (1996).
On appeal, the parties dispute whether petitioner is attempting to raise issues in her
capacity as the executrix of the decedent’s estate in addition to her individual capacity. In Syllabus
Point 7 of Estate of Gomez by and through Gomez v. Smith, __ W. Va. __, 845 S.E.2d 266 (2020),
we held, in pertinent part, that the unauthorized practice of law includes “[a] non-attorney
execut[rix] . . . of an estate who undertakes, with or without compensation and whether or not in
connection with another activity, to prepare pleadings or legal instruments of any character on
behalf of the estate for submission in judicial proceedings, or represents the interests of the estate
before any judicial tribunal or office.” Here, as the decedent gave her property to her children,
including petitioner, petitioner clearly has a personal interest in the construction of the decedent’s
will. However, we address issues only to the extent that petitioner raises them in her individual
capacity.
4
In its September 6, 2018, order, the circuit court noted that petitioner objected to an
inactive oil well and storage tanks being left on the residue parcel. Accordingly, the circuit court
ordered that there would be a small parcel of land, within the larger residue parcel, where common
ownership with respondent would continue until such time as the oil well and storage tanks are
removed and that, until they are removed, respondent would have an easement to go over the
residue parcel to conduct necessary maintenance. On appeal, petitioner does not challenge this
ruling of the circuit court.
4
Furthermore, “[a]lthough we liberally construe briefs in determining issues presented for
review, issues which are not raised, and those mentioned only in passing but [which] are not
supported with pertinent authority, are not considered on appeal.” State v. LaRock, 196 W. Va.
294, 302, 470 S.E.2d 613, 621 (1996); State v. Lilly, 194 W. Va. 595, 605 n.16, 461 S.E.2d 101,
111 n.16 (1995) (finding that cursory treatment of an issue is insufficient to raise it on appeal).
Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure provides, in pertinent part, that a
petitioner’s “argument must contain appropriate and specific citations to the record on appeal,
including citations that pinpoint when and how the issues in the assignments of error were
presented to the lower tribunal,” and that “[t]he Court may disregard errors that are not adequately
supported by specific references to the record on appeal.” Here, we find that petitioner lists eleven
assignments of error, but fails to support all but one with adequate argument. 5 Accordingly, we
address only petitioner’s argument that the circuit court erred in finding that the residuary clause
did not create a trust that included the eighty-five acres of land that belonged to the decedent. 6
“The paramount principle in construing or giving effect to a will is that the intention of the
testator prevails[.]” Syl. Pt. 2, in part, Estate of Fussell v. Fortney, 229 W. Va. 622, 730 S.E.2d 405(2012) (quoting Syl. Pt. 1, Farmers and Merchants Bank v. Farmers and Merchants Bank, 158 W.
Va. 1012, 216 S.E.2d 769 (1975)). Petitioner argues that, in Janura I, we found that the language
used by the decedent in the residuary clause “evidences an intention that petitioner, as executrix,
be accorded substantial deference in how she interprets the decedent’s will.” 2015 WL 3448181, at
*3. We find that petitioner’s reliance on Janura I is misplaced. In Janura I, we cautioned petitioner
that, while she was free to continue to argue that the residuary clause created a trust, her
interpretation of the clause must not be “inconsistent with [its] language.” Id. at *4 n.4.
5
The eleven assignments of error listed are: (1) the circuit court erred in finding that the
residuary clause did not create a trust that included the eighty-five acres of land that belonged to
the decedent; (2) the circuit court failed to apply those provisions of Rules 1, 2, and 53 of the West
Virginia Rules of Civil Procedure that are appliable to this case; (3) the circuit court ignored or
disregarded petitioner’s various motions; (4) the circuit court failed to follow the law; (5) the
circuit court failed to identify and apply the respective rights and duties of the parties; (6) the
circuit court failed to address petitioner’s counterclaims; (7) the circuit court erred by permitting
respondent to amend his pleadings; (8) the circuit court’s orders contained factual errors not
supported by the record; (9) the circuit court failed to make sufficient findings of fact and
conclusions of law when denying petitioner’s various motions; (10) the circuit court erred in
appointing special commissioners and then adopting their report; and (11) this Court should
reconsider petitioner’s previously refused petitions, in which she sought extraordinary writs with
regard to the underlying partition action.
6
We note that the circuit court determined that the residuary clause did not create a trust in
its August 26, 2013, order. In Riffe v. Armstrong, 197 W. Va. 626, 637, 477 S.E.2d 535, 546
(1996), modified on other grounds, Moats v. Preston Cty. Comm’n, 206 W.Va. 8, 521 S.E.2d 180(1999), we found that, “if an appeal is taken from what is indeed the last order disposing of the last
of all claims as to the last of all parties, then the appeal brings with it all prior orders.”
5
“Unless the will expressly directs otherwise, the meaning of language used in a
testamentary instrument is to be arrived at by considering the entire paper, and not by confining its
meaning to that indicated in the single provision the construction of which is sought.” Syl. Pt. 1,
Polen v. Baird, 125 W. Va. 682, 25 S.E.2d 767 (1943). In State ex rel. Insurance Commissioner of
West Virginia v. Blue Cross and Blue Shield of West Virginia, Inc., 219 W. Va. 541, 547-48, 638
S.E.2d 144, 150-11 (2006), we reiterated that a trust “must be based . . . on a clear declaration of
trust by its creator.” (quoting Syl. Pt. 1, Straton v. Aldridge, 121 W.Va. 691, 6 S.E.2d 222 (1939));
see Syl. Pt. 4, in part, Ball v. Ball, 136 W. Va. 852, 69 S.E.2d 55 (1952) (holding that “[a] will,
creating a testamentary trust, vest[s] the legal title to testator’s real and personal property in a
named trustee”).
Here, petitioner argues that the residuary clause granted the decedent’s real estate to
petitioner as trustee for the benefit of herself and her siblings. We find that petitioner’s argument is
contrary to the clear language not only of the residuary clause but also of the devise of the
decedent’s property set forth in the second paragraph of the will. In the second paragraph, the
decedent gave her property, including the real estate, to her three children “equally, share and
share alike, as per [the will’s residuary clause].” The residuary clause confirmed that the decedent
wanted “the siblings to own [the real estate] equally.” Accordingly, based on our review of the
second paragraph and the residuary clause together, we find that there was no clear declaration of
trust by the decedent because the devise of the real estate was not to petitioner as trustee. Rather, as
the circuit court found, the decedent gave each of the three siblings an undivided one-third interest
in the real estate. Therefore, we conclude that the circuit court properly found that there was no
trust created.
As for the decedent’s wish, expressed in the residuary clause, that her home be turned into
a group home or health-related facility, the circuit court found that the eighty-five acre tract the
siblings received from the decedent “could be equitabl[y] partitioned while still providing enough
land and the large house sufficient to permit [petitioner] to develop [such a facility].” Based on our
review of the commissioners’ report and the record as a whole, we concur with the circuit court’s
finding. Accordingly, we conclude that the circuit court did not err in granting respondent’s
petition to partition the eighty-five acre tract.
For the foregoing reasons, we affirm the circuit court’s September 6, 2018, order
establishing the allotted acreage and boundary lines between the residue parcel and respondent’s
parcel and its January 30, 2020, order denying petitioner’s motion to alter or amend the September
6, 2018, order.
Affirmed.
ISSUED: February 2, 2021
CONCURRED IN BY:
Chief Justice Evan H. Jenkins
Justice Elizabeth D. Walker
Justice Tim Armstead
Justice John A. Hutchison
Justice William R. Wooton
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