In Re: The Estate of J. Herman Isner

STATE OF WEST VIRGINIA
SUPREME COURT OF APPEALS
FILED
In Re: The Estate of J. Herman Isner, February 22, 2019
EDYTHE NASH GAISER, CLERK
No. 17-0941 (Randolph County 13-C-10) SUPREME COURT OF APPEALS
OF WEST VIRGINIA
MEMORANDUM DECISION
Petitioner Cleveland Biller, as co-trustee of the J. Herman and Doris F. Isner Charitable
Trust (“charitable trust”), pro se, appeals the September 25, 2017, order of the Circuit Court of
Randolph County denying two motions for disqualification. The circuit court denied petitioner’s
motion to disqualify Jeffrey S. Zurbach (“Attorney Zurbach”) as counsel for Respondents Betty
Moomau, Jeff Kyle, and Terry N. Gould, co-trustees of the J. Herman Isner Trust (collectively
“farm trust”). The circuit court also denied petitioner’s motion to disqualify the attorney, R. Mike
Mullens (“Attorney Mullens”), as special commissioner whose duty is to execute the parties’
settlement agreement because petitioner refuses to do so. The farm trust, by counsel Jeffrey S.
Zurbach, filed a response. Respondents Terry N. Gould, Pat A. Nichols, and T. Richard Harvey,
co-trustees of the J. Herman Isner Financial Trust (collectively “financial trust”), by Harry A.
Smith, III, filed a summary response. Respondents Jefferson Lee Triplett and Patrick A. Nichols,
co-executors of the Estate of J. Herman Isner (collectively “estate”), by counsel Joshua S. Rogers,
filed a response. 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.
J. Herman Isner (“the decedent”) died on May 5, 2012, and left an estate worth
approximately $5 million. During his lifetime, the decedent created a number of different trusts to
pursue various “charitable endeavors” including the preservation of his approximately 250 acre
farm as an example of West Virginia agriculture. However, the decedent funded only certain
trusts, leaving others unfunded and “irrelevant.” Consequently, the estate filed a declaratory
judgment action to determine the rights, duties, and powers of the trustees and beneficiaries of the
several trusts. Petitioner participated in reaching a settlement of the action during court-ordered
mediation on July 2, 2013. The case was continued numerous times as the parties drafted an
agreement to implement the settlement.
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In May of 2015, petitioner fired his attorney. On June 17, 2015, the farm trust filed a
motion to compel petitioner to execute the parties’ settlement agreement. Following hearings on
June 18, 2015, and August 5, 2015, the circuit court granted the farm trust’s motion to compel
petitioner to execute the agreement. Petitioner appealed to this Court, which affirmed the circuit
court’s August 25, 2015, order directing him to execute the agreement in In Re Estate of Isner, No.
15-0904, 2016 WL 5348353, at *4 (W.Va. Sept. 23, 2016) (memorandum decision), cert. denied
sub nom., Biller v. Triplett, 137 S. Ct. 1434, (2017).
After certiorari was denied by the United States Supreme Court, petitioner still refused to
execute the settlement agreement. Ultimately, the circuit court appointed Attorney Mullens as
special commissioner to execute the agreement by order entered July 10, 2017. On July 25, 2017,
petitioner filed a motion to disqualify Attorney Mullens as special commissioner and, on July 27,
2017, filed a motion to disqualify Attorney Zurbach as counsel for the farm trust. Following a
September 22, 2017, hearing, the circuit court found that petitioner’s motions were based on a
2012 real estate transaction and a 2015 real estate transaction. Attorney Mullens acted as the
settlement agent in the 2012 real estate transaction where the buyer was a corporation controlled
by petitioner. With regard to the other real estate transaction, the circuit court noted that it occurred
in February of 2015 when a member of Attorney Zurbach’s law firm was the substitute trustee and
petitioner was the purchaser at a foreclosure sale. The circuit court found that petitioner’s interests
and the interests of Attorney Zurbach’s client did not become adverse “until the summer of 2015
when an issue arose over [petitioner] not being willing to follow through with the terms of the
mediated settlement[.] 1 Accordingly, the circuit court denied petitioner’s motions for
disqualification, concluding as follows:
[Petitioner]’s motions must be over-ruled because the real estate transactions . . .
did not create an attorney-client relationship between [petitioner] and either
[Attorney] Mullens or [Attorney Zurbach’s colleague]; further, these transactions
did not occur at a time when the non-moving parties and [petitioner] were directly
adverse to one another in this civil action, nor is there any suggestion that either
[Attorney] Mullens or [Attorney] Zurbach’s law firm currently represents
[petitioner].
Petitioner now appeals the circuit court’s September 25, 2017, order denying his motions
for disqualification. In syllabus point one of State ex rel. Bluestone Coal Corporation v. Mazzone,
226 W.Va. 148, 697 S.E.2d 740 (2010), we held that “[a] party aggrieved by a lower court’s
decision on a motion to disqualify an attorney may properly challenge the lower court’s decision
by way of a petition for a writ of prohibition.” Here, petitioner, who is pro se, apparently relied on
the circuit court’s designation of its order as “a [f]inal [o]rder from which an appeal to the West
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In his motion to disqualify Attorney Zurbach, petitioner also referenced a 2010 real estate
transaction involving a former member of Attorney Zurbach’s law firm and another corporation
controlled by petitioner. We find that the circuit court properly declined to consider the 2010
transaction as a possible basis for Attorney Zurbach’s disqualification because “no evidence was
submitted” regarding that transaction at the September 22, 2017, hearing.
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Virginia Supreme Court of Appeals may be sought[.]” Also, the parties have fully briefed the issue
and it is ripe for consideration. Therefore, we will consider the merits of petitioner’s appeal.
“Before a circuit court disqualifies a lawyer in a case. . ., a record must be made so that the
circuit court may determine whether disqualification is proper.” Bluestone Coal, 226 W.Va. at 154
n.3, 697 S.E.2d at 746 n.3 (quoting Syl. Pt. 5, Garlow v. Zakaib, 186 W.Va. 457, 413 S.E.2d 112
(1991)). In syllabus point two of Bluestone Coal, we held:
“A circuit court, upon motion of a party, by its inherent power to do what is
reasonably necessary for the administration of justice, may disqualify a lawyer
from a case because the lawyer’s representation in the case presents a conflict of
interest where the conflict is such as clearly to call in question the fair or efficient
administration of justice. Such motion should be viewed with extreme caution
because of the interference with the lawyer-client relationship.” Syllabus point 1,
Garlow[,] 186 W.Va. [at 458], 413 S.E.2d [at 113].
226 W.Va. at 151, 697 S.E.2d at 743 (Emphasis added.).
On appeal, petitioner argues that the circuit court erred in denying his motion to disqualify
Attorney Mullens as special commissioner and his motion to disqualify Attorney Zurbach as
counsel for the farm trust. Respondents counter that the circuit court properly denied the motions.
We agree with respondents. In State ex rel. Ogden Newspapers, Inc. v. Wilkes, 198 W.Va. 587, 591
n.10, 482 S.E.2d 204, 208 n.10 (1996), we stated:
We have expressed with concern when a party uses the disqualification rule as a
sword in a disqualification proceeding that is designed as a method of harassment
and an abusive litigation tactic:
[D]isqualification, as a prophylactic device for protecting the
attorney-client relationship, is a drastic measure which courts
should hesitate to impose except when absolutely necessary. A
disqualification of counsel, while protecting the attorney-client
relationship, also serves to destroy a relationship by depriving a
party of representation of their own choosing. . . . [Such] motions
should be viewed with extreme caution for they can be misused as
techniques of harassment.
Garlow[,] 186 W.Va. [at] 461, 413 S.E.2d [at 116] (quoting
Freeman v. Chicago Musical Instrument Co., 689 F.2d 715, 721-22
(7th Cir.1982)). [Additional citation omitted].
Here, the farm trust argues that petitioner is using the motions for disqualification to
improperly delay the implementation of this Court’s mandate from Isner: that the circuit court’s
decision to compel enforcement of the settlement is affirmed. We agree. Our decision in Isner
noted that Attorney Zurbach represented the farm trust at that time. 2016 WL 5348353, at *1.
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Petitioner did not argue that Attorney Zurbach had a conflict of interest that necessitated his
disqualification. Rather, petitioner did not file his motion to disqualify Attorney Zurbach as the
farm trust’s counsel until after he lost on the merits of his appeal in Isner. We find that petitioner
could have sought Attorney Zurbach’s disqualification in the summer of 2015—when the circuit
court was considering the farm trust’s motion to compel—given his argument that Attorney
Zurbach’s conflict of interest stemmed from a real estate transaction that occurred in February of
2015, but did not do so. Similarly, we find that petitioner’s argument—that Attorney Mullens
should be disqualified—has more to do with that attorney’s appointment as special commissioner
to execute the settlement agreement than it does with any alleged conflict of interest. We find that
petitioner’s refusal to execute the agreement is no longer legally defensible given the Supreme
Court’s denial of certiorari from our decision in Isner. The circuit court made a record regarding
both motions for disqualification and found that neither Attorney Mullens nor Attorney Zurbach
should be disqualified. Upon our review of the record, we conclude that the circuit court did not err
in denying the motions to disqualify the attorneys.
For the foregoing reasons, we affirm the circuit court’s September 25, 2017, order denying
petitioner’s motions for disqualification.
Affirmed.
ISSUED: February 22, 2019
CONCURRED IN BY:
Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison
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