                              STATE OF WEST VIRGINIA
                            SUPREME COURT OF APPEALS

Trina Janura,
Respondent Below, Petitioner                                                         FILED
                                                                                   May 29, 2015
vs) No. 14-0911 (Hancock County 12-C-229)                                      RORY L. PERRY II, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
John J. Janura Jr. and Patricia Janura,
Respondents Below, Respondents


                               MEMORANDUM DECISION
         Petitioner Trina Janura, appearing pro se, appeals two orders of the Circuit Court of
Hancock County. In the first order, entered August 26, 2013, the circuit court determined that (1)
petitioner, Respondent John J. Janura Jr., and Respondent Patricia Janura inherited real estate in
equal shares from their mother; (2) that the Janura siblings’ interest in their deceased mother’s
home (and associated land) was subject to a condition subsequent; (3) the issue of whether the
condition subsequent had any possibility of occurring remained unresolved; and (4) the resolution
of that issue may require an evidentiary hearing. In the second order, entered August 15, 2014, the
circuit court denied petitioner’s motion to compel arbitration. Respondent John J. Janura Jr., by
counsel Daniel L. McCune, filed both a response and a motion to dismiss.1 Petitioner filed a reply
to the response and a separate reply to the motion to dismiss.

        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 (1) the August 26, 2013, order is not appealable; and (2) there is no
substantial question of law and no prejudicial error with regard to the August 15, 2014, order. For
these reasons, a memorandum decision dismissing petitioner’s appeal of the August 26, 2013,
order and affirming the August 15, 2014, order is appropriate under Rule 21 of the Rules of
Appellate Procedure.

       Petitioner, Respondent John J. Janura Jr., and Respondent Patricia Janura 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 the estate remains open. The parties do not
dispute that the decedent’s will names petitioner as executrix and includes a residuary clause that
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

       1
           Respondent Patricia Janura did not file a response.
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       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.

        On December 11, 2012, Respondent John J. Janura Jr. filed a petition in the Circuit Court
of Hancock County to partition 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 parties.
Respondent John J. Janura Jr. 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. Petitioner filed an answer to the petition on January 14, 2013, asserting that the will’s
residuary clause created a valid 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 Will.”

        On August 26, 2013, the circuit court entered an order stating that it had researched the
matter and was prepared to make certain rulings after a review of the will’s residuary clause. First,
the circuit court found that the parties inherited the decedent’s real estate in equal shares. Second,
the circuit court determined that the will’s residuary clause did not create a trust, but that the
parties’ interest in their decedent’s home (and associated land) was subject to a condition
subsequent. 2 Third, the circuit court stated that it was not deciding whether the condition
subsequent had any possibility of occurring. Finally, the circuit court found that an evidentiary
hearing may be necessary to determine whether it was impossible for the condition subsequent to
occur.

         Subsequently, on March 17, 2014, petitioner filed a motion to compel the parties to resolve
their dispute through arbitration, relying on language in the will’s residuary clause that stated that
“I want [petitioner] to have final say on any decisions or disputes.” Respondent John J. Janura Jr.
filed a response to the motion on March 27, 2014, asserting that the decedent’s will contained no
arbitration clause. By an order entered August 15, 2014, the circuit court denied petitioner’s
motion finding that petitioner’s argument that the will’s residuary clause contained an arbitration
clause was “without any merit.”

        On September 12, 2014, petitioner filed a notice of appeal stating that petitioner desired to
appeal both the August 15, 2014, order that denied petitioner’s motion to compel arbitration and
the earlier order, entered August 26, 2013, determining, inter alia, that the will’s residuary clause
did not create a trust. This Court entered a scheduling order on September 22, 2014, that indicated
that petitioner was appealing the August 15, 2014, order denying her motion to compel arbitration.
       2
         If an interest in land is subject to a condition subsequent, the interest “does not terminate
automatically upon the occurrence of the stated event, but is subject to [defeasance] only by the
exercise of a right of reentry or power of termination by the grantor or his heirs.” Woman’s Club of
St. Albans v. James, 158 W.Va. 698, 703, 213 S.E.2d 469, 472-73 (1975).

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On December 5, 2014, the circuit court advised the parties that it would not conduct further
proceedings in the case until petitioner’s appeal of its August 15, 2014, order had been resolved.

               Petitioner may not appeal the circuit court’s August 26, 2013, order.

        Respondent John J. Janura Jr. argues that petitioner’s purported appeal of the circuit court’s
August 26, 2013, order is untimely because petitioner did not file her notice of appeal until over a
year after the order’s entry. Petitioner acknowledges this argument, but offers no response. We
note that West Virginia Code § 58-5-4 and Rule 5(f) of the West Virginia Rules of Appellate
Procedure provide a four-month time frame in which to appeal a circuit court’s order.
Furthermore, “[w]hen presented with untimely appeals under W.Va. Code, 58-5-4 [1965], this
Court has consistently held that the statute is jurisdictional and that failure to file a timely appeal
presents a jurisdictional infirmity precluding the court from accepting the appeal.” W. Va. Dept. of
Energy v. Hobet Min. and Const. Co., 178 W.Va. 262, 264, 358 S.E.2d 823, 825 (1987); see W.Va.
Rul. App. Proc. 5(f). In the instant case, petitioner did not file a notice of appeal within four
months of the entry of the August 26, 2013, order. Thus, we conclude that petitioner has not timely
appealed that order.

         Even if petitioner’s appeal of the August 26, 2013, order had been timely, we would have
dismissed the appeal for a lack of finality. In Syllabus Point 3 of James M.B. v. Carolyn M., 193
W.Va. 289, 291, 456 S.E.2d 16, 18 (1995), we held, in pertinent part, that “appeals only may be
taken from final decisions of a circuit court” and “[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 what has been determined.” We find that the August 26, 2013, order did not
constitute a final decision because it left for another day the determination of whether the condition
subsequent in the will’s residuary clause had any possibility of occurring. Therefore, we conclude
that petitioner may not appeal the August 26, 2013, order not only because her appeal of that order
was untimely, but also because it did not constitute a final, appealable order.

                 Petitioner may appeal the circuit court’s August 15, 2014, order.

       Respondent John J. Janura Jr. argues that petitioner may not appeal the circuit court’s
August 15, 2014, order because that order was also not a final order. Petitioner counters that the
August 15, 2014, order denied her motion to compel arbitration, which means that the order is
appealable under the collateral order doctrine. We note that we have previously 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.” Syl. Pt. 1, Credit Acceptance Corp. v.
Front, 231 W.Va. 518, 745 S.E.2d 556, 557 (2013).3 Respondent John J. Janura Jr. contends that
       3
          In Credit Acceptance Corp., we found that an order denying a motion to compel
arbitration met the conditions to be appealable under the collateral order doctrine: (1) such an order
is conclusive as to the disputed controversy of whether the parties are required to arbitrate; (2) the
order resolves an important issue that is completely separate from the merits of the action; and (3)
an order denying a motion to compel arbitration is effectively unreviewable on appeal. See 231
W.Va. at 524-25, 745 S.E.2d at 562-63.
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we should not apply our holding in Credit Acceptance Corp. to this case because petitioner’s
argument that the decedent’s will contains an arbitration clause is frivolous. We reject this
contention because, while litigants often disagree about the merits of each others’ arguments, a
litigant’s perception of the opposing party’s argument does not alter controlling precedent as to
whether an interlocutory ruling is immediately appealable. Therefore, we conclude that petitioner
may appeal the circuit court’s August 15, 2014, order pursuant to Syllabus Point 1 of Credit
Acceptance Corp.

        The circuit court did not err in denying petitioner’s motion to compel arbitration.

         We review the circuit court’s denial of the motion to compel arbitration de novo. See
Credit Acceptance Corp. at 525, 745 S.E.2d at 563. Petitioner argues that the language “I want
[petitioner] to have final say on any decisions or disputes” in the will’s residuary clause constitutes
a provision that compels the parties to resolve their dispute through arbitration. Respondent John J.
Janura Jr. counters that it is obvious that the language does not constitute an arbitration clause.
“The paramount principle in construing or giving effect to a will is that the intention of the testator
prevails, unless it is contrary to some positive rule of law or principle of public policy.” Syl. Pt. 2,
Estate of Fussell v. Fortney, 229 W.Va. 622, 623, 730 S.E.2d 405, 406 (2012) (Internal quotations
and citations.). We determine that the language on which petitioner relies evidences no intention
by the decedent that disputes arising under the will be arbitrated. Rather, we find that the language
at issue evidences an intention that petitioner, as executrix, be accorded substantial deference in
how she interprets the decedent’s will. See Moore v. Harper, 27 W.Va. 362, 373 (1886) (it is well
settled that courts accord deference to “[t]he power of the testator to provide in [her] will the mode
and manner of its interpretation and the force and effect of such interpretation.”).

        We construe petitioner’s argument to include the contention that the circuit court should
have deferred to petitioner’s interpretation that the residuary clause required disputes arising under
it to be resolved through arbitration. However, as we have determined, the language at issue
evidences no such intention by the decedent. Therefore, because the language clearly reflects that
the decedent did not have any intent that disputes be arbitrated, we determine that the circuit court
correctly found that petitioner’s interpretation that the will required arbitration was without merit.
See Syl. Pt. 2, Estate of Fussell at 623, 730 S.E.2d at 406. Accordingly, we conclude that the circuit
court did not err in denying the motion to compel arbitration.

       For the foregoing reasons, we (1) dismiss petitioner’s appeal of the circuit court’s August
26, 2013, order;4 and (2) affirm the circuit court’s August 15, 2014, order denying petitioner’s
motion to compel arbitration.


       4
          We note that the circuit court retains plenary power to reconsider, alter, or amend a
non-final order, such as its August 26, 2013, order determining that the will’s residuary clause
does not create a trust. See Syl. Pt. 2, in part, Taylor v. Elkins Home Show, Inc., 210 W.Va. 612,
614, 558 S.E.2d 611, 613 (2001). Thus, we find that petitioner is free to continue to argue that her
interpretation of the residuary clause should be accorded deference as long as that interpretation is
neither inconsistent with the clause’s language nor contrary to law.
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                                        Dismissed, in part, and Affirmed, in part.

ISSUED: May 29, 2015

CONCURRED IN BY:

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




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