                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS


 Guy S. Hammer II and Robin W. Hammer,                                               FILED
                                                                                   October 28, 2013
 Petitioners Below, Petitioners                                                 RORY L. PERRY II, CLERK
                                                                              SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
 vs) No. 12-1476 (Randolph County 11-AA-3)

 Thomas M. Hammer and Sharon Helms,
 Respondents Below, Respondents

                               MEMORANDUM DECISION

         Petitioners Guy S. Hammer II and Robin W. Hammer, appearing pro se, appeal the order
of the Circuit Court of Randolph County, entered November 27, 2012, that denied their motion
to alter or amend the circuit court’s September 24, 2012 final order. In the final order, the circuit
court affirmed the Randolph County Commission’s adoption of the October 18, 2011 ruling of the
Special Fiduciary Commissioner in this probate case. Respondents Thomas M. Hammer and
Sharon Helms, by counsel David H. Wilmoth, filed a response. Petitioners 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 is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Both petitioners and respondents are among the adult children of Guy S. Hammer Sr. and
Ethel Marie Hammer. The parties are also no strangers to disputes involving their parents and/or
their parents’ estates.1 The instant case concerns the estate of the parties’ father Guy S. Hammer, Sr.
who died intestate on June 29, 1998. Guy S. Hammer, Sr.’s sole heir-at-law was his wife Ethel
Marie Hammer, the parties’ mother, who is now also deceased. Respondents were appointed
administrators of Guy S. Hammer, Sr.’s estate.



       1
          Hammer v. Hammer, No. 11-0075 (W.Va. Supreme Court, May 9, 2012) (memorandum
decision), involved the validity of a 2008 power of attorney executed by Ethel Marie Hammer;
however, in its decision, this Court noted that Petitioner Robin W. Hammer sought “to go beyond
the complaint and to use the instant action to discover information relevant to his mother’s and
father’s estates.” 2012 WL 3002534, at *3.


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        Petitioners filed their petition to remove respondents as administrators on December 29,
2009, eleven and a half years after Guy S. Hammer, Sr.’s death.3 Petitioners also subsequently
     2

moved to revoke the administrators’ security bond on the following grounds: (1) failure to list
certain assets of personal property on the estate appraisement; (2) failure to list certain outstanding
loans as assets of the estate; (3) improper identification of a satisfied debt as owing to the estate;
and (4) failure to settle the estate within five years.4 The Randolph County Commission appointed
Heather M. Weese, Esq., as Special Fiduciary Commissioner to hear the matter.

         The Fiduciary Commissioner held a hearing on June 28, 2010, at which respondents
testified. In a ruling issued on October 28, 2011, the Fiduciary Commissioner recommended that
the County Commission deny the petition to remove respondents as administrators and the motion
to revoke the administrators’ security bond. Relevant to this appeal,5the Fiduciary Commissioner
first determined that the inclusion of seven mobile homes on the estate appraisement was
erroneous, but that the mistake did not constitute a breach of respondents’ fiduciary duties. The
Fiduciary Commissioner found, in pertinent part, as follows:

               [I]t appears as if these [7] mobile homes were included in the 18
               mobile homes purchased by [Respondent Thomas M. Hammer]
               through the transaction involving the Areo Mobile Home Park and it
               appears as if title was never transferred out of the name of Guy S.
               Hammer, Sr. and was picked up by the Randolph County Assessor
               as an asset still owned by Mr. Guy S. Hammer, Sr. and mistaken[ly]
               listed on the estate appraisement as assets owned by Guy S.
               Hammer, Sr.

The Fiduciary Commissioner based this finding at least partially on testimony from Respondent
Thomas M. Hammer because the Fiduciary Commissioner noted both that Thomas M. Hammer
testified that the mobile home park transaction “included 18 mobile homes” and that he further

         2
        Petitioner Guy S. Hammer II initially filed the petition. Petitioner Robin W. Hammer
subsequently joined in the petition.
         3
         The estate of Guy S. Hammer was still pending on December 29, 2009. No final
accounting had been filed.
         4
        Failure to settle the estate within five years was also the basis for the earlier petition to
remove respondents as administrators. See W.Va. Code § 44-4-14a(d).
         5
          Petitioners state their motion to alter or amend the circuit court’s September 24, 2012
final order addressed only two of the twelve assignments of error they originally raised in
appealing the Fiduciary Commissioner’s October 28, 2011 ruling, and those two assignments of
error are the only issues now being appeal to this Court: (1) the listing of the seven mobile homes
as assets on the estate appraisement; and (2) the status of the debt owed by Respondent Thomas
Hammer as a probate or non-probate asset.

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testified that the seven mobile homes at issue “were included in the 18 mobile homes purchased
through the transaction involving the Areo Mobile Home Park.”

       Second, the Fiduciary Commissioner found that a debt owed by Respondent Thomas M.
Hammer was not an asset of the estate of Guy S. Hammer, Sr. because it was jointly owned by
Ethel Marie Hammer. The Fiduciary Commissioner further determined as follows:

                     The Petitioners represented that Mr. Thomas Hammer got
              the “family business” and that everyone was fine with it as long as
              Mr. Thomas Hammer took care of their mother, Ethel M. Hammer.
              According to the Petitioners, they became upset when Mr. Thomas
              Hammer advised that Ms. Ethel M. Hammer was out of money.
              They assert that Mr. Thomas Hammer didn’t take care of their
              mother and failed to “keep his promise.” They further assert that Mr.
              Thomas Hammer should not have accepted debt forgiveness from
              their mother and in doing so, impoverished her. They cited West
              Virginia Code § 44-1-15 in support, which states that “[t]he
              appointment of a debtor as executor shall not extinguish the debt.”

                      [Petitioners’] argument fails, however, as to the forgiveness
              of the debt unless they can establish that the debt was not a “joint
              debt” that was still owned [sic] to their mother, Ethel M. Hammer,
              after the death of their father, Guy S. Hammer, Sr. No
              documentation was provided by either party to establish whether the
              debt was joint or separate other than the aforesaid deed, which was
              executed by both Guy S. Hammer, Sr. and Ethel M. Hammer,
              husband and wife.

                      The Petitioners assert that Mr. Thomas Hammer has refused
              to turn over records and has refused to provide records in response
              to their subpoena duces tecum, which requested the production of
              “all loan agreements entered into between Thomas Michael
              Hammer and Guy S. Hammer, Sr. and/or Ethel M. Hammer.”
              However, [the Fiduciary Commissioner] admitted four documents
              into evidence for the purpose of corroboration of the debt – two (2)
              marked “deed of trust,” one marked “loan information,” and a
              personal handwritten statement. These documents appear to be the
              “bookkeeping” records of Thomas M. Hammer in regard to the
              repayment of this debt and are insufficient to establish proof of
              whether the debt was “joint” or “separate.” Mr. Thomas M.
              Hammer does not refute the existence of the debt, but asserts that it
              was joint and therefore not listed as an asset of Guy S. Hammer, Sr.
              on his estate appraisement, as payments continued after his death to
              his widow, Ethel M. Hammer, until the debt was satisfied and/or
              forgiven. It does not appear that the Administrators failed in their
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               fiduciary duties by failing to list these outstanding loans on the
               estate appraisement because it appears as if the debt was joint and
               still owed to Ethel M. Hammer.

The County Commission subsequently adopted the Fiduciary Commissioner’s October 28, 2011
ruling. Petitioners appealed the Fiduciary Commissioner’s ruling to the circuit court.

        The circuit court held a final hearing on the matter on September 14, 2012, and
subsequently entered a final order on September 24, 2012. 6 The circuit court first rejected
petitioner’s assignment of error that the Fiduciary Commissioner erred in finding that the inclusion
of the seven mobile homes on the estate appraisement was erroneous, but that the mistake did not
constitute a breach of respondents’ fiduciary duties.

        Next, the circuit court concluded that the Fiduciary Commissioner did not clearly err in
finding that a debt owed by Respondent Thomas M. Hammer was not an asset of the estate of Guy
S. Hammer, Sr. because it was jointly owned by Ethel Marie Hammer. The circuit court noted that
the Fiduciary Commissioner’s supporting finding that the January 1, 1989 deed from the sale of
the Areo Mobile Home Park, out of which the debt arose, identified “Guy S. Hammer, Sr.,
deceased, and his widow, Ethel M. Hammer” as the sellers. (Internal quotations omitted and
emphasis by circuit court.). The circuit court determined that “a sufficient evidentiary basis”
existed for the Fiduciary Commissioner’s finding that the debt was jointly owned by Ethel Marie
Hammer and, as such, was a non-probate asset. Accordingly, the circuit court affirmed the
Fiduciary Commissioner’s October 28, 2011 ruling.

        Petitioners subsequently moved to alter or amend the circuit court’s final order. The circuit
court denied the motion to alter or amend by an order entered November 27, 2012. Petitioners now
appeal both the September 24, 2012 final order and the November 27, 2012 order denying the
motion to alter or amend.

        “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. 1, Haines v. Kimble, 221 W.Va. 266, 654 S.E.2d
588 (2007) (affirming circuit court order upholding county commission’s order that, inter alia,
denied a petition to remove executrix) (Internal quotations and citations omitted.). This standard of
review also applies to the circuit court’s order denying petitioners’ motion to alter or amend
pursuant to Syllabus Point One of Wickland v. American Travellers Life Insurance Company, 204
W.Va. 430, 513 S.E.2d 657 (1998).

       6
          In its September 24, 2012 final order, the circuit court noted that petitioners’ standing to
bring the petition to remove respondents as administrators and the motion to revoke the
administrators’ security bond could have been challenged but, because respondents did not raise
the issue before the Fiduciary Commissioner, the court would decline to address it. Having found
that this Court can dispose of petitioners’ appeal on the merits, see infra, we similarly decline to
address petitioners’ standing.

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                            LISTING OF SEVEN MOBILE HOMES
                           AS ASSETS ON ESTATE APPRAISEMENT

        Petitioners argue that the Fiduciary Commissioner should have not reached the issue of
whether the seven mobile homes were part of Respondent Thomas Hammer’s 1989 purchase of
the Areo Mobile Home Park because the issue was never raised. Respondents counter that the
inclusion of the mobile homes on the estate appraisement was part of petitioners’ evidence before
the Fiduciary Commissioner allegedly proving that respondents breached their fiduciary duties.
Respondents assert that the inclusion of the mobile homes on the estate appraisement was, in fact,
erroneous, but argue that the Fiduciary Commissioner did not clearly err in finding that the mistake
did not constitute a breach of respondents’ fiduciary duties. The Fiduciary Commissioner stated in
her October 28, 2011 ruling that “[p]etitioners . . . inquired into the listing of seven (7) mobiles . .
. on Schedule B of the estate appraisement.” Therefore, this Court finds that whether the seven
mobile homes were part of the purchase of the mobile home park was raised before the Fiduciary
Commissioner.

        The Fiduciary Commissioner determined that the mobile homes were included in the 1989
purchase of the mobile home park based on evidence that included the testimony of Respondent
Thomas Hammer. Because the Fiduciary Commissioner had the opportunity to observe his
demeanor while he was testifying, the Fiduciary Commissioner was in the best position to judge
the truthfulness of Respondent Thomas Hammer’s testimony in light of other evidence. See State
v. Guthrie, 194 W.Va. 657, 669 n. 9, 461 S.E.2d 163, 175 n. 9 (1995) (“An appellate court may not
decide the credibility of witnesses[.]”). Accordingly, this Court determines that the Fiduciary
Commissioner did not err in finding that the inclusion of the mobile homes on the estate
appraisement was erroneous, but that the mistake did not constitute a breach of respondents’
fiduciary duties.

                                 STATUS OF DEBT OWED
                          AS A PROBATE OR NON-PROBATE ASSET

        Petitioners assert there is no evidence to support the finding that the debt owed by
Respondent Thomas Hammer was jointly owned by Guy S. Hammer, Sr. and Ethel Marie Hammer
because Ethel Marie Hammer signed the January 1, 1989 deed only to relinquish any marital
interest she may have had in the real estate being transferred, not because the debt was owned by
her as well. Respondents counter that the circuit court did not err in determining that there was a
sufficient evidentiary basis for the Fiduciary Commissioner’s finding that the debt was jointly
owned. A Fiduciary Commissioner’s findings “should generally be sustained unless not warranted
by any reasonable view of the evidence and such findings are entitled to peculiar weight in an
appellate court when they have been confirmed by the decree from which an appeal has been
[taken].” Syl. Pt. 3, Matter of Estate of Foster, 180 W.Va. 250, 376 S.E.2d 144 (1988) (Internal
quotations and citations omitted.) (Emphasis added.). This Court notes the Fiduciary
Commissioner’s and the circuit court’s concurrent findings that the debt was jointly owned—and,
as such, was a non-probate asset—was based on evidence in the record. The Court concludes that
the circuit court did not err in rejecting this assignment of error. Therefore, after careful
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consideration, the Court concludes that the circuit court did not abuse its discretion in affirming the
Fiduciary Commissioner’s October 28, 2011 ruling and in denying the motion to alter and amend
its September 24, 2012 final order.

       For the foregoing reasons, we affirm.

                                                                                            Affirmed.

ISSUED: October 28, 2013

CONCURRED IN BY:
Chief Justice Brent D. Benjamin
Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II




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