Rovilla Lips v. East Coast Estate Investments, LLC

IN THE INTERMEDIATE COURT OF APPEALS OF WEST VIRGINIA
FILED
January 29, 2025
ROVILLA LIPS,
ASHLEY N. DEEM, CHIEF DEPUTY CLERK
Defendant Below, Petitioner INTERMEDIATE COURT OF APPEALS
OF WEST VIRGINIA

v.) No. 23-ICA-531 (Cir. Ct. Kanawha Cnty. Case No. 21-C-184)

EAST COAST ESTATE INVESTMENTS, LLC,
Plaintiff Below, Respondent

MEMORANDUM DECISION

Petitioner Rovilla Lips appeals an October 26, 2023, order from the Circuit Court
of Kanawha County granting summary judgment for Respondent East Coast Estate
Investments, LLC (“East Coast”). East Coast filed a response.1 Petitioner did not file 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 there is error in the circuit court’s decision but no
substantial question of law. Therefore, this case satisfies the “limited circumstances”
requirement of Rule 21(d) of the Rules of Appellate Procedure for resolution in a
memorandum decision. For the reasons set forth below, the circuit court’s decision is
reversed and remanded.

This case centers around allegations that two of Alexander Lips’ (“Mr. Lips”)
former wives conspired to fraudulently transfer residential property located in St. Albans,
West Virginia, shortly after his death. Petitioner is Mr. Lips’ fourth wife, his widow, and
resided at this home with their minor children at the time of Mr. Lips’ death. Mr. Lips died
on January 19, 2020, and was married to the following women at different times: Maria
Wilhelmina Van der Velden, Monica Lips, Nelly Lips, and Petitioner. Mr. Lips and Ms.
Van der Velden, his first wife, came to the United States from Holland and obtained the
subject property via deed dated May 31, 1966. The deed states that Mr. Lips and Ms. Van
der Velden owned the property as “joint tenants with right of survivorship, and not as
tenants in common.” Ms. Van der Velden returned to Holland sometime in 1971 or 1972,

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Ms. Lips is represented by Richard J. Lindroth, Esq. East Coast is represented by
Thomas H. Peyton, Esq.

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and Mr. Lips initiated divorce proceedings in both West Virginia and Holland because they
were both Dutch citizens at the time of their divorce.

The parties dispute whether Ms. Van der Velden waived her rights to the property
as a part of the divorce proceedings. Petitioner produced a waiver document allegedly
signed by Ms. Van der Velden which waives all her interests in the subject property.
Petitioner hired a handwriting expert who argues the signature on this waiver matches Ms.
Van der Velden’s signature on other documents. Petitioner also produced two billing
statements from lawyers in Holland which detail work performed during the divorce. The
lawyer billing statements are dated August of 1972 and state that a waiver related to Ms.
Van der Velden’s interest in the property was drafted. As a result, Petitioner argues Ms.
Van der Velden waived her rights to this property in the divorce and did not have an interest
to convey. The parties also do not dispute that Ms. Van der Velden has not resided in that
home, or even the United States, since approximately 1971.

East Coast is owned and was created by Mr. Lips’ third wife Nelly Lips. East Coast
alleges it purchased a 100% interest in the subject property from Ms. Van der Velden on
March 25, 2020, for $9,366.13. It argues Mr. Lips and Ms. Van der Velden’s divorce did
not alter the ownership of this property and that Mr. Lips owned a 50% interest and Ms.
Van der Velden owned a 50% interest with rights of survivorship. After Mr. Lips’ death,
East Coast argues Ms. Van der Velden owned 100% interest in the property because of the
survivorship clause. On the other hand, Petitioner argues Nelly Lips was secretly in contact
with Ms. Van der Velden throughout Nelly Lips’ 20-year marriage to Mr. Lips and was
aware of the waiver document and the circumstances of Ms. Van der Velden’s divorce
from Mr. Lips. Petitioner also argues that this transaction is inherently suspicious because
it occurred a few months after Mr. Lips’ death and the property was conveyed for such a
low value. Petitioner alleges the property is assessed for approximately $70,000 to $75,000
but was sold for $9,366.13.

On March 3, 2021, East Coast filed an ejectment proceeding against Petitioner.
Next, on October 24, 2022, Petitioner filed a separate civil action to quiet title to the same
property. These actions were then consolidated. On August 8, 2023, East Coast filed its
motion for summary judgment, and Petitioner filed her cross motion for summary judgment
on September 8, 2023. The circuit court then held a hearing on both motions on September
28, 2023. In an order entered on October 26, 2023, the circuit court granted summary
judgment for East Coast and found that East Coast was the legal owner of the subject
property. The court held that the divorce did not alter the ownership of the property and
that Mr. Lips and Ms. Van der Velden each owned a 50% interest in the property with
rights of survivorship. It then concluded that, since Ms. Van der Velden outlived Mr. Lips,
she owned a 100% interest. It found that East Coast purchased the property from Ms. Van
der Velden and that the waiver did not overcome East Coast’s motion for summary
judgment because that document is not a court order, deed, will, or valid contract divesting
Ms. Van der Velden of her interests. The circuit court also held that the document was not

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recorded in the Kanawha County Clerk’s Office and that there was no evidence that East
Coast was aware of this document prior to its purchase. Thus, East Coast purchased the
property for consideration and was without notice of Petitioner’s claims. It is from this
order that Petitioner now appeals.

Our review of a circuit court’s entry of summary judgment is de novo. Syl. Pt. 1,
Painter v. Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). In conducting a de novo review,
this Court applies the same standard for granting summary judgment that a circuit court
must apply: “[a] motion for summary judgment should be granted only when it is clear that
there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable
to clarify the application of the law.” United Bank, Inc. v. Blosser, 218 W. Va. 378, 383,
624 S.E.2d 815, 820 (2005) (quoting Painter, 192 W. Va. at 190, 451 S.E.2d at 756, syl. pt.
2). “Summary judgment is appropriate if, from the totality of the evidence presented . . .
the nonmoving party has failed to make a sufficient showing on an essential element of the
case that it has the burden to prove.” Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W. Va.
52, 459 S.E.2d 329 (1995). “[T]he party opposing summary judgment must satisfy the
burden of proof by offering more than a mere ‘scintilla of evidence’ and must produce
evidence sufficient for a reasonable jury to find in a nonmoving party’s favor.” Id. at 60,
459 S.E.2d at 337.

On appeal, Petitioner asserts seven assignments of error. Her first three assignments
of error argue there are genuine issues of fact regarding whether East Coast is a bona fide
good faith purchaser without notice; whether Ms. Van der Velden executed the waiver
during the divorce proceedings; and whether Nelly Lips, as the owner of East Coast,
fraudulently obtained title to the property in question. The Supreme Court of Appeals of
West Virginia has defined a bona fide purchaser as “one who purchases for a valuable
consideration, paid or parted with, without notice of any suspicious circumstances to put
him upon inquiry.” Kourt Sec. Partners, LLC v. Judy’s Locksmiths, Inc., 239 W. Va. 757,
761, 806 S.E.2d 188, 192 (2017) (internal quotations omitted) (quoting Stickley v. Thorn,
87 W. Va. 673, 678, 106 S.E. 240, 242 (1921)). “That which fairly puts a party on inquiry
is regarded as sufficient notice, if the means of knowledge are at hand; and a purchaser,
having sufficient knowledge to put him on inquiry, or being informed of circumstances
which ought to lead to such inquiry, is deemed to be sufficiently notified to deprive him of
the character of an innocent purchaser.” Syl. Pt. 3, Pocahontas Tanning Co. v. St. Lawrence
Boom & Mfg. Co., 63 W. Va. 685, 60 S.E. 890 (1908). Further, “[o]ne who claims the
protection of a court of equity as a bona fide purchaser must show that he had acquired the
legal title before notice or knowledge of facts equivalent to notice.” Syl. Pt. 4, Clark v.
Lambert, 55 W. Va. 512, 47 S.E. 312 (1904).

Here, the circuit court found the majority of the facts in this case were undisputed,
and held East Coast was without notice as to any suspicious circumstances and was a bona
fide purchaser for value without notice. This holding is erroneous and ignores the many

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genuine issues of material fact which exist in this case. First, there is a clear issue of fact
regarding Ms. Van der Velden’s alleged waiver and the validity of that document.
Petitioner obtained a handwriting expert and produced billing statements from the Holland
attorneys detailing the work performed. In addition, Petitioner argues there are various
issues that make the transfer of this property suspect including the timing of this purchase,
the purchase price, and the fact that Nelly Lips, as the owner of East Coast, was married to
Mr. Lips for twenty years and may have been aware of the circumstances of Mr. Lips and
Ms. Van der Velden’s divorce. As the Supreme Court of West Virginia has held, “[c]ourts
have broadly recognized that issues surrounding an entity’s status as a bona fide purchaser
may not be appropriate for resolution by summary judgment.” Kourt Sec. Partners, 239
W. Va. at 762, 806 S.E.2d at 193. This is certainly the case here. Petitioner can clearly
“point to one or more disputed ‘material’ facts . . . that [have] the capacity to sway the
outcome of the litigation under the applicable law.” Sugar Rock, Inc. v. Washburn, 237 W.
Va. 347, 354, 787 S.E.2d 618, 625 (2016). These issues of fact were disregarded by the
circuit court, and it was error to grant summary judgment in favor of East Coast.
Accordingly, we reverse the circuit court’s determination that East Coast was a bona fide
good faith purchaser without notice because this case presents genuine issues of material
fact which make summary judgment improper.

Next, Petitioner’s assignments of error four and five relate to the waiver executed
by Ms. Van der Velden and argue the waiver severed the joint tenancy created in the 1966
deed which prevented Ms. Van der Velden from transferring the property to East Coast. In
its order, the circuit court held that the divorce order between Mr. Lips and Ms. Van der
Velden did not alter the ownership of the property and did not address the disposition of
the property. The court referred to the waiver as a “questionable document” and held that
it was not sufficient to overcome East Coast’s motion for summary judgment because it
was not a deed, will, or valid contract divesting Ms. Van der Velden of her ownership
interest. Since Ms. Van der Velden outlived Mr. Lips, the circuit court concluded that she
owned 100% interest in the property due to the survivorship clause in the deed and that she
properly conveyed that property to East Coast. We again find error in the circuit court’s
rulings.

In order to create a common law joint tenancy in real property the parties
must receive an undivided interest under four conditions: (1) each party’s
undivided interest must vest at the same time; (2) each party must receive an
undivided interest in the whole estate; (3) each party’s possession must be
coequal so that his property interest is the same as to the legal estate and
duration; and, (4) each party must receive his interest in the same title
document. These four conditions for the creation of a common law joint
tenancy are commonly abbreviated as the four unities of time, interest,
possession and title. The main attribute of a common law joint tenancy was
the right of survivorship.

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Syl. Pt. 1, Herring v. Carroll, 171 W. Va. 516, 300 S.E.2d 629 (1983). Further, the common
law right of survivorship in a joint tenancy has been abrogated by statute, unless “it
manifestly appears from the tenor of the instrument that it was intended that the part of the
one dying should then belong to the others.” Id. at 517, 300 S.E.2d at 630, Syl. Pt. 3; see
also W. Va. Code § 36-1-19–20 (2017). As this Court held in Spears v. Spears, “[a]ny act
of a joint tenant which severs one of the four unities ‘operates as a severance of the joint
tenancy and extinguishes the right of survivorship.’” No. 23-ICA-478, 2024 WL 4786256,
at *2 (W. Va. Ct. App. Nov. 14, 2024) (memorandum decision) (quoting Herring, 171 W.
Va. at 520, 300 S.E.2d at 633). “However, a mere divorce does not, on its own, sever a
joint tenancy.” Spears, 2024 WL 4786256, at *2. As the Supreme Court of Appeals of West
Virginia held, “[i]n circumstances of divorce, joint tenants can agree to hold as tenants in
common and thus sever the joint tenancy. Such an agreement can be express or implied
from conduct of the parties inconsistent with holding in joint tenancy.” Syl. Pt. 8, Young v.
McIntyre, 223 W. Va. 60, 672 S.E.2d 196 (2008). As this Court acknowledged in Spears,
there is not “an abundance of precedent regarding what conduct can be considered
inconsistent with the joint tenancy such that it implies an agreement to sever.” Spears, 2024
WL 4786256, at *3. However, “a holistic analysis of the circumstances, conduct, and
agreements between the parties, and . . . the statutory presumption against joint tenancy
survivorship” can all be considered to determine “whether, taken holistically, the parties’
acts, circumstances, and agreements evinced an intent that the joint tenancy survive.” Id.

When this analytical framework is applied to this case, it is clear the circuit court
failed to consider if there was destruction of the joint tenancy. On appeal, the parties have
provided only limited information regarding the circumstances, conduct, and agreements
between Mr. Lips and Ms. Van der Velden. It is unclear what actions, if any, evidenced an
intent to sever the joint tenancy. The parties have failed to provide this Court with any
documents from the divorce proceeding itself. As we explained in Spears, Young’s holding
looks to the intent of the parties to sever the joint tenancy and considers both implications
from the parties conduct as well as express manifestations. Id. Here, the parties did not
provide any evidence regarding Mr. Lips and Ms. Van der Velden’s divorce outside the
disputed waiver and the billing statements from the Holland attorneys. It is unclear from
the record if Ms. Van der Velden contributed to the mortgage payments, real estate taxes,
or the upkeep and maintenance on the property after the divorce occurred. The circuit court
failed to perform a proper analysis pursuant to Young and did not consider how the conduct
of the parties showed an intent to continue the joint tenancy. As a result, we vacate the
findings regarding the validity of the joint tenancy and remand and instruct the circuit court
to perform a proper analysis, pursuant to Young and Spears, of how the conduct of Mr.
Lips and Ms. Van der Velden, both affirmative and passive, expressed their intent
regarding the continuation of the joint tenancy.

Finally, Petitioner’s sixth and seventh assignments of error argue Mr. Lips adversely
possessed the subject property because Ms. Van der Velden abandoned it in 1972. East
Coast argues these assignments of error are waived because Petitioner did not raise these

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arguments below. 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)).
Petitioner did not file a reply to refute this argument, and there is nothing in the record
provided on appeal that shows Petitioner raised these arguments below. Accordingly,
Petitioner’s sixth and seventh assignments of error are waived.

Based on the foregoing, we find that this case presents various genuine issues of
material fact that make summary judgment improper on the issue of whether East Coast is
a bona fide good faith purchaser. Accordingly, we reverse the circuit court’s October 26,
2023, order as to that issue. Next, we vacate the circuit court’s findings regarding the
validity of the joint tenancy and remand to the circuit court with instructions to perform
additional analysis, pursuant to Young and Spears, regarding whether the conduct of Mr.
Lips and Ms. Van der Velden showed an intent to continue the joint tenancy.

Reversed, in part, Vacated, in part, and Remanded.

ISSUED: January 29, 2025

CONCURRED IN BY:

Chief Judge Charles O. Lorensen
Judge Daniel W. Greear

Judge S. Ryan White, not participating

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