Richard Wilhelm, III, and Mary R. Wilhelm v. Kyra L. Smith, as of the Estate of Kathryn Wilhelm, Kyra L. Smith, as of the Estate of Richard Wilhelm, Jr., and The Kyra L. Smith Family Trust U/A Dated 5/29/09

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
RICHARD WILHELM, III, and February 28, 2025
MARY R. WILHELM, ASHLEY N. DEEM, CHIEF DEPUTY CLERK
INTERMEDIATE COURT OF APPEALS
Plaintiffs Below, Petitioners OF WEST VIRGINIA

v.) No. 24-ICA-129 (Cir. Ct. Wood Cnty. Case No. CC-54-2021-C-150)

KYRA L. SMITH, as Executrix of the Estate of Kathryn Wilhelm,
KYRA L. SMITH, as Executrix of the Estate of Richard Wilhelm, Jr.,
and THE KYRA L. SMITH FAMILY TRUST U/A DATED 5/29/09,
Defendants Below, Respondents

MEMORANDUM DECISION

Petitioners Richard Wilhelm, III, and Mary R. Wilhelm (collectively “Petitioners”)
appeal the January 8, 2024, order of the Circuit Court of Wood County which entered
judgment in favor of Respondent the Kyra L. Smith Family Trust U/A dated 5/29/09 (“the
Trust”) and against Respondent Kyra L. Smith, as Executrix of the Estate of Richard
Wilhelm, Jr., (“the Estate of Richard Wilhelm” or collectively “the Estates”) in the amount
of $1,173,895.00 plus prejudgment interest and other costs. Petitioners also appeal the
circuit court’s February 27, 2024, order which denied petitioners’ motion for a new trial
and motion to stay. The Trust filed a response, and the Estate of Richard Wilhelm and
Respondent Kyra L. Smith, as Executrix of the Estate of Kathryn Wilhelm (“the Estate of
Kathryn Wilhelm” or collectively “the Estates”) filed a joint response.1 Petitioners filed a
reply.

This Court has jurisdiction over this appeal pursuant to West Virginia Code § 51-
11-4 (2024). After considering the parties’ arguments, the record on appeal, and the
applicable law, this 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.

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Petitioners are represented by Leah R. Chappell, Esq., and Richard D. Smith, Jr.,
Esq. The Trust is represented by Craig J. Wakefield, Esq., and Caroline A. Crum, Esq. The
Estate of Richard Wilhelm and the Estate of Kathryn Wilhelm are represented by Stephen
L. Thompson, Esq., J. Nicholas Barth, Esq., and Robert S. Fluharty, Jr., Esq.

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Petitioners are husband and wife, and Petitioner Richard Wilhelm, III, and
Respondent Kyra L. Smith are siblings and the children of Richard Wilhelm, Jr., and
Kathryn L. Wilhelm. During his lifetime, Richard Wilhelm, Jr., owned a vast portfolio of
mostly commercial property located in Wood County, West Virginia, and this property
generated significant rental income. As part of their estate plan, Richard Wilhelm, Jr., and
Kathryn L. Wilhelm established the Trust. The Trust was funded with seven tracts of real
property located in Wood County, West Virginia (the “Real Property”). This lawsuit is
based on allegations that Richard Wilhelm, Jr., continued to treat the Real Property as his
own after it was conveyed to the Trust and that the Trust did not receive income from this
Real Property. The parties further allege that Kyra L. Smith, acting as trustee for the Trust,
executed and delivered to Kathryn L. Wilhelm a promissory note and deed of trust which
obligated the Trust to pay a sum of money each month. It is alleged that the Trust was
unable to satisfy this promissory note due to Richard Wilhelm, Jr.’s actions.

On June 24, 2021, petitioners filed their complaint against the Trust, the Estates,
Kyra L. Smith, and Smith Wilhelm Rentals, LLC. The defendants below filed their
answers, and the Trust also asserted crossclaims against the Estate of Richard Wilhelm, Jr.,
based on the allegation that he was indebted to the Trust based on his collection of the
rental income. In addition, the Estate of Richard Wilhelm, Jr., filed its own crossclaims
against the Trust. On April 4, 2022, the circuit court entered an order staying the case until
probate proceedings pending before the Wood County Commission were resolved.

Next, on July 26, 2022, the Estate of Richard Wilhelm, Jr., filed a motion to appoint
a special commissioner to have an objective third party review evidence and report on the
account between the Estate and the Trust. This motion was set for hearing on August 15,
2022, but was rescheduled for September 13, 2022. Petitioners did not file a response to
this motion. On September 2, 2022, the circuit court entered its order appointing Special
Commissioner George Y. Chandler to determine “what monies, if any, may be owed by
the Estate of Richard Wilhelm, Jr. to [the Trust] and/or [the Trust] to the Estate of Richard
Wilhelm, Jr.”

On September 16, 2022, petitioners filed a motion for relief from the order entered
on September 2, 2022, and moved the circuit court to set aside or rescind the order
appointing the special commissioner and/or to lift the stay entered on April 4, 2022,
because they argued it was unfair for the circuit court to appoint the special commissioner
while the stay was in place. The motion made clear that petitioners did not object to the
appointment of the special commissioner but argued they had motions pending related to
other issues which were still subject to the stay but that the court had ruled on motions filed
by other parties, which was unfair. At a hearing on October 17, 2022, and in an order
entered on June 11, 2024, the circuit court lifted the stay but refused to rescind the order
appointing the special commissioner.

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The special commissioner conducted evidentiary hearings on October 12, 2022, and
on June 5, 2023, where counsel for all parties were present, were permitted to question all
witnesses who testified, and were able to present evidence. On July 18, 2023, the special
commissioner entered his report that concluded the Estate of Richard Wilhelm, Jr., owed
the Trust $1,173,895.00. No party objected to the report of the special commissioner. On
August 4, 2023, the Trust moved the circuit court to adopt the report of the special
commissioner. On August 18, 2023, petitioners filed a motion to stay the crossclaims
between the Trust and the Estate of Richard Wilhelm, Jr., arguing that the crossclaims
should have been decided by a jury and that these claims show the Trust and the Estate of
Richard Wilhelm, Jr., are colluding. On August 25, 2023, petitioners also filed an objection
to the Trust’s August 4, 2023, motion asking the circuit court to adopt the report of the
special commissioner. The circuit court held a hearing on August 29, 2023, and then
entered an order dated December 1, 2023, which adopted the report of the special
commissioner.

On December 11, 2023, the Trust filed a motion for certification pursuant to Rule
54(b) to certify the December 1, 2023, order and make it a final appealable judgment. On
January 8, 2024, the circuit court granted the Trust’s motion for certification and entered
its judgment order. 2 On January 23, 2024, petitioners filed a motion for new trial, which
was denied by order dated February 27, 2024. Petitioners appeal the circuit court’s January
8, 2024, order and its February 27, 2024, order.

In addressing the instant appeal, our standard of review is as follows:

In reviewing challenges to the findings and conclusions of the circuit court,
we apply a two-prong deferential standard of review. We review the final
order and the ultimate disposition under an abuse of discretion standard, and
we review the circuit court’s underlying factual findings under a clearly
erroneous standard. Questions of law are subject to a de novo review.

Syl. Pt. 2, Walker v. W. Va. Ethics Comm’n, 201 W. Va. 108, 492 S.E.2d 167 (1997).
Further, petitioners have appealed the circuit court’s denial of their motion for a new trial.
“This Court reviews the rulings of the circuit court concerning a new trial and its conclusion
as to the existence of reversible error under an abuse of discretion standard, and we review
the circuit court’s underlying factual findings under a clearly erroneous standard.
Questions of law are subject to a de novo review.” Syl. Pt. 1, Burke-Parsons-Bowlby Corp.
v. Rice, 230 W. Va. 105, 736 S.E.2d 338 (2012), superseded by statute on other grounds
as recognized in Martinez v. Asplundh Tree Expert Co., 239 W. Va. 612, 617, 803 S.E.2d

2
Although the Trust asked the Court to certify the December 1, 2023, order as final,
the Court entered judgment on the Trust’s crossclaim in the January 8, 2024, order, which
it certified as a final appealable order.

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582, 587 (2017).“Although the ruling of a trial court in granting or denying a motion for a
new trial is entitled to great respect and weight, the trial court’s ruling will be reversed on
appeal when it is clear that the trial court has acted under some misapprehension of the law
or the evidence.” Syl. Pt. 4, Sanders v. Georgia-Pac. Corp., 159 W. Va. 621, 225 S.E.2d
218 (1976). With these standards in mind, we turn to the arguments at issue.

On appeal, petitioners assert three assignments of error. First, they argue the circuit
court erred in its February 27, 2024, order, when it held that petitioners’ motion for a new
trial was untimely. We agree this was error but find it to be harmless. Rule 61 of the West
Virginia Rules of Civil Procedure states that:

no error or defect in any ruling or order or in anything done or omitted by the
court or by any of the parties is ground for granting a new trial or for setting
aside a verdict or for vacating, modifying or otherwise disturbing a judgment
or order, unless refusal to take such action appears to the court inconsistent
with substantial justice. The court at every stage of the proceeding must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.

The petitioners here seek to reverse the circuit court’s ruling that they were not entitled to
a new trial based solely on the erroneous determination that petitioners’ motion was
untimely. On January 8, 2024, the circuit court entered its judgment order in favor of the
Trust and against the Estate of Richard Wilhelm, Jr. On January 23, 2024, petitioners filed
a motion for new trial and sought relief related to that order. In its February 27, 2024, order,
the circuit court denied petitioners’ motion for new trial and held it considered the hearing,
evidence, and the record to determine petitioners failed to show by a preponderance of the
evidence that the circuit court’s prior orders should be altered. It further held that
petitioners’ motion was untimely filed. The Trust concedes that this motion was timely
filed, and we agree. However, petitioners have failed to present any evidence to show this
erroneous determination impacted the circuit court’s consideration of this motion or
petitioners’ own substantial rights in any way. Although the circuit court found that the
motion was untimely, the circuit court clearly articulated another basis for its ruling and
considered this motion on its merits. Petitioners have not challenged the circuit court’s
meritorious determinations here and, accordingly, we can find no abuse of discretion by
the circuit court in declining to grant a new trial on that basis. As a result, petitioners’ first
assignment of error fails.

For their second assignment of error, petitioners argue the circuit court abused its
discretion when it granted the Trust’s motion for certification without allowing petitioners
the opportunity to respond. Again, petitioners have failed to show reversible error. On
December 11, 2023, the Trust filed a motion for certification pursuant to Rule 54(b) and
moved the circuit court to enter a judgment order and certify its December 1, 2023, order
adopting the report of the special commissioner as a final appealable judgment. The circuit

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court granted this motion and entered a judgment order on January 8, 2024. Under Rule
6(d)(2)(A) or (B) of the West Virginia Rules of Civil Procedure, petitioners argue they
should have been given until February 19, 2024, to file a response. Again, petitioners fail
to cite any law to show this was reversible error. To the contrary, the Supreme Court of
Appeals of West Virginia is clear that “[t]rial courts have the inherent power to manage
their judicial affairs that arise during proceedings in their courts, which includes the right
to manage their trial docket.” Syl. Pt. 2, B.F. Specialty Co. v. Charles M. Sledd Co., 197
W. Va. 463, 475 S.E.2d 555 (1996). The circuit court had previously made its meritorious
determination to adopt the Report of the special commissioner and the January 8, 2024,
order only entered a final, appealable judgment based on the substantive rulings in the
December 1, 2023, order. We recognize a circuit court’s ability to manage its own judicial
affairs and find the circuit court did not abuse its discretion in entering its January 8, 2024,
order without allowing petitioner time to respond. Thus, petitioners’ second assignment of
error fails.

Finally, petitioners argue the circuit court erred when it allowed the crossclaims
between the Trust and the Estate of Richard Wilhelm, Jr., to be adjudicated by the special
commissioner because petitioners were denied their rights to a jury trial and due process.
The Estates argue this assignment of error is waived because petitioners failed to object to
the appointment of the special commissioner. We agree. As this Court has held previously,
“[a]ppellate courts will not decide nonjurisdictional questions raised for the first time on
appeal.” Hecker v. McIntire, No. 22-ICA-15, 2023 WL 152889, at *3 (W. Va. Ct. App.
Jan. 10, 2023) (memorandum decision) (citing Syl. Pt. 1, Mowery v. Hitt, 155 W. Va. 103,
181 S.E.2d 334 (1971)). Petitioners had numerous opportunities to raise this objection
below but failed to make this objection timely. First, petitioners failed to file a response to
the Estate of Richard Wilhelm, Jr.’s July 26, 2022, motion moving the circuit court to
appoint a special commissioner. In the circuit court’s September 2, 2022, order, it included
a portion of the transcript from the February 28, 2022, hearing where petitioners clearly
and explicitly stated they had no objection to the appointment of the special commissioner.
On September 16, 2022, petitioners filed a motion for relief from the order entered on
September 2, 2022, but again failed to raise these objections and made clear that they,
again, did not object to the appointment of the special commissioner. Finally, the special
Commissioner conducted hearings on October 12, 2022, and on June 5, 2023, and
petitioners have failed to show that they raised any objection to those proceedings at either
of these hearings. As a result, petitioners failed to timely raise these jury trial concerns
below and have failed to preserve this argument for appeal. Accordingly, petitioners’ third
assignments of error is waived.

Accordingly, we affirm.

Affirmed.

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ISSUED: February 28, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear

Judge S. Ryan White not participating.

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