                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Eric W. Miller,
Plaintiff below, Petitioner                                                        FILED
                                                                               October 11, 2019
vs.) No. 18-0957 (Lewis County 18-C-37)                                         EDYTHE NASH GAISER, CLERK
                                                                                SUPREME COURT OF APPEALS
                                                                                    OF WEST VIRGINIA
Terry D. Reed, et al.,
Defendants Below, Respondents


                                 MEMORANDUM DECISION


       Petitioner Eric W. Miller, pro se, appeals the October 2, 2018, order of the Circuit Court
of Lewis County dismissing this action. Respondent Lewis County Commission, by counsel
Kenneth L. Hopper, filed a response in support of the order. Respondent Terry D. Reed, in his
capacity as executor of the Estate of Byron Wayne Miller, also filed a response in support of the
dismissal.

       This 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.

       On September 26, 2016, Byron Wayne Miller died testate with four heirs: three daughters
and a son. The son, Eric W. Miller, is the petitioner in this action. Tonya S. Moran, one of the
decedent’s daughters, was initially appointed as the administratrix of the estate of Byron Wayne
Miller (hereinafter “Mr. Miller’s estate”). Ms. Moran resigned as the Administratrix during the
pendency of the estate proceeding.1
       Thereafter, Terry D. Reed, an attorney licensed to practice law in West Virginia, was
appointed as Administrator c.t.a., d.b.n.2 of the Mr. Miller’s estate by the Lewis County

       1
           Per the record, petitioner was aware of, and was involved with, the estate proceeding.
Initially, petitioner waived his right to qualify as the administrator of the estate. Thereafter, on
March 4, 2017, petitioner signed a receipt acknowledging receipt of one-fourth of the tangible
personal property “[a]s split between the heirs up to the date below.”
       2
         An administrator c.t.a., also known as administrator cum testamento annexo or
administrator with the will annexed, is an administrator appointed to carry out the provisions of a

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Commission and posted a bond in the sum of $485,000 upon his appointment. In connection with
his duties as Administrator, Mr. Reed took various steps to probate the Estate including completion
of an Appraisement and a Nonprobate Inventory of the Estate form. Thereafter, Mr. Reed executed
an affidavit declaring that “[m]ore than sixty (60) days ha[d] elapsed since the filing of any notice
required by Chapter 44, Section 2, Article 1 of the West Virginia Code, as amended”; that “[t]he
time for filing claims against this estate ha[d] expired; and that “[a]ll claims have been paid.” In
the discharge of his duties, Mr. Reed also prepared a report of receipts and disbursements. Mr.
Miller’s estate was settled and closed on February 28, 2018.
        On or about May 24, 2018, petitioner filed a complaint in the Circuit Court of Lewis County
raising various issues related to the handling of the estate.3 In response to the complaint,
respondents filed motions to dismiss. On or about August 20, 2018, the circuit court held a hearing
on the pending motions4 and entered an order on August 27, 2018, finding that petitioner’s claims
were barred by the legal doctrine of res judicata.5 Petitioner filed a “Request for Reversal of
Judgment or New Trial” on or about September 6, 2018. Thereafter, the circuit court entered an
October 2, 2018, “Order Denying Plaintiff’s Request for Reversal of Judgment or New Trial.” It
is from this order that petitioner appeals.
        On appeal, petitioner maintains that the circuit court improperly dismissed this action based
upon the legal doctrine of res judicata. This Court has established that “[a]ppellate review of a
circuit court’s order granting a motion to dismiss a complaint is de novo.” Syl. Pt. 2, State ex rel.
McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W. Va. 770, 461 S.E.2d 516 (1995).




will under the following circumstances: where there is no person named as executor in the will;
where the executor refuses or is incompetent to act; or where the executor died before performing
their duties. See Black’s Law Dictionary 54 (10th ed. 2014). Mr. Reed was also designated as an
administrator de bonis non, or administrator d.b.n., as he was appointed after Ms. Moran did not
fully administer the decedent’s estate.
       3
         Petitioner’s complaint did not include a style, but “request[ed] a trial on the following
matters concerning [t]he Lewis County Commission, [t]he [o]ffice of Cynthia S[.] Rowan Lewis
County Clerk and Terry D. Reed the executor of the Byron Miller Estate settled in Lewis County[,]
West Virginia.” In his complaint, petitioner alleged that Terry D. Reed failed to appropriately
discharge his duties as the executor. Petitioner also alleged various actions and omissions of the
Lewis County Clerk and the Lewis County Commission related to the administration of the Estate.
       4
          Terry D. Reed filed two separate motions to dismiss. The Lewis County Commission
filed its Motion to Dismiss/Motion for Summary Judgment arguing for dismissal on multiple
grounds, including res judicata and immunity pursuant to the West Virginia Governmental Tort
Claims and Insurance Reform Act.
       5
          On the following day, petitioner submitted a “Request for the Judge to Recuse and
Dismiss any Rulings.” This Court determined that the evidence was insufficient to warrant a
disqualification and entered an administrative order denying the request.


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        Petitioner argues that the circuit court improperly found that this matter is precluded by the
doctrine of res judicata. Applying a de novo review of the record on appeal, we disagree. This
Court has previously held that a civil action can be precluded based upon the legal doctrine of res
judicata where three elements are satisfied.
       First, there must have been a final adjudication on the merits in the prior action by
       a court having jurisdiction of the proceedings. Second, the two actions must involve
       either the same parties or persons in privity with those same parties. Third, the cause
       of action identified for resolution in the subsequent proceeding either must be
       identical to the cause of action determined in the prior action or must be such that
       it could have been resolved, had it been presented, in the prior action.
Syl. Pt. 3, in part, Beahm v. 7-Eleven, Inc., 223 W. Va. 269, 672 S.E.2d 598 (2008).
         Here, the circuit court properly determined that the first element of res judicata was
satisfied as there was an adjudication on the merits in the prior action. Pursuant to West Virginia
Code § 44-12-1, the Lewis County Commission and the Lewis County Clerk had jurisdiction over
the Estate of Byron Wayne Miller. This statutory authority has previously been recognized by this
Court. See McClure v. McClure, 184 W. Va. 649, 403 S.E.2d 197 (1991). Exercising the
jurisdiction afforded to it, the Lewis County Commission finalized the Estate of Byron Wayne
Miller. Accordingly, there was an adjudication on the merits in the estate proceeding, and thus, the
first element of res judicata is satisfied.
        The second element of the doctrine of res judicata is also satisfied. The court in Beahm
found that in order for res judicata to apply the two actions must involve either the same parties or
persons in privity with those parties. In this civil action, Mr. Miller named three defendants: Terry
D. Reed, the Lewis County Commission, and the Lewis County Clerk. Here, there is no dispute
that petitioner was involved in the estate proceedings as a beneficiary. Additionally, Mr. Reed was
appointed as the administrator of the Estate in the underlying matter. Moreover, the underlying
estate proceedings involved the Lewis County Clerk, as the clerk is tasked with all probate matters
pursuant to West Virginia Code § 44-12-1 and West Virginia Code § 7-1-3. Inasmuch as the Lewis
County Clerk’s Office is an arm of the Lewis County Commission and these two entities are in
privity, they share many of the same legal rights. Thus, the circuit court did not err in determining
that the second element of res judicata was satisfied where the parties of the underlying estate
proceeding are the same parties or are parties in prvity with the parties involved in this action.
        Finally, this Court has held that res judicata requires a finding that the cause of action
identified for resolution in the subsequent proceeding is either identical to the cause of action
determined in the prior action, or such that it could have been resolved, had it been presented, in
the prior action. See Beahm, 223 W. Va. at 270, 672 S.E.2d at 599. The allegations raised by
petitioner in the circuit court proceeding are those very claims that were either raised, or could
have been raised, in the underlying estate matter.6 Accordingly, the circuit court did not err in
finding that the third element of res judicata was satisfied.


       6
        Petitioner claims that he properly filed an objection in the underlying estate proceeding.
As is demonstrated by the record, Mr. Reed filed the report of receipts and disbursements, as well

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          Having found that the circuit court did not err in finding the elements of res judicata, 7 we
affirm.


                                                                                            Affirmed.

ISSUED: October 11, 2019

CONCURRED IN BY:

Chief Justice Elizabeth D. Walker
Justice Margaret L. Workman
Justice Tim Armstead
Justice Evan H. Jenkins
Justice John A. Hutchison




as the appraisement of Mr. Miller’s Estate on December 28, 2017. All heirs had ten days to file
any objections to the report, request a hearing and present evidence and/or witness testimony. See
W. Va. Code § 44-2-1. Petitioner alleges that “I submitted [an] objection, in person, by appearing
in front of the Lewis County Clerk within [] the ten (10) day deadline, and again, in writing on
February 7, 2018.” Notably, there is no evidentiary support for the statement in the record that he
appeared before the Lewis County Clerk and submitted an objection, nor does petitioner note the
nature of any such “objection.” As to petitioner’s alleged written submission of February 7, 2018,
this was untimely. Also, the record suggests that additional correspondence may have been sent
by petitioner to a representative of the Lewis County Commission on February 28, 2018. This, too,
was untimely. When presented with this issue upon plaintiff’s request for reversal of judgment or
new trial, the circuit court found that “even if Plaintiff made some objection in the underlying
action, it is unclear whether or not Plaintiff followed the proper procedure to lodge that objection.”
Based upon the record, we agree.
          7
          On appeal, petitioner asserts numerous assignments of error related to the handling of Mr.
Miller’s Estate, many of which do not amount to appealable issues. As best we can discern,
petitioner appears to allege that he timely filed an objection to the underlying proceedings; that the
Lewis County Commission did not maintain a legal estate; that Mr. Reed should not have been
appointed as personal representative for Mr. Miller’s Estate; that Mr. Reed did not pay all claims
presented; and that the Lewis County Commission failed to establish if Mr. Reed’s bond was
maintained. Having found that the circuit court properly dismissed this action under the doctrine
of res judicata, we need not address these additional assignments of error.

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