1 

### STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

J.C. Baker & Son, Inc.

, Defendant Below, Petitioner

vs. ) No. 20

- 0 338 ( Braxton County 1 8

- C

- 6 )

Daniel C. Cooper, Executor of the Estate of George C. Baker

, Plaintiff Below, Respondent



### MEMORANDUM DECI S I ON

Petitione r J.C. Baker & Son, Inc. , by counsel R. Terrance Rodgers and Charles W. Pace

Jr. , appeal s the Circuit Court of Braxton County’s March 6, 20 20

, order granting summary judgment in respondent’s favor in the amount of $1,555,112.72, plus post

- j udgment interest, following petitioner’s default on its payment obligations under a stock purchase agreem ent

. Respondent Daniel C. Cooper, Executor of the Estate of George C. Baker

, by counsel Daniel C. Cooper, Jamison H. Cooper, and Raymond Keener III

, f i led a response

. Petitioner filed a reply. 1

1 Five other e ntitie s attempted to join in this app eal : the Trust of George C. Baker (the

“Trust ”) ; Michael C. Baker and George Came ron Baker, successor co

- trustees of the Trus t ; and George Cameron Baker and Susan Ann Baker, b eneficiaries o f the Trust (collective ly,

“Pr ospec tive Intervenors ”)

. T he Prospec tive Intervenors ’ sole claim relates to the circuit court ’ s denial of their motion to intervene in the proceedings below, which denial was memorialized in

an order dated Ap ril 3, 2 01 9

. The P ro s pective Int ervenors filed t heir appeal of th e denial order

with this Court over thirteen months later, on May 15, 2020

.

An order denying a motion to intervene , howeve r , is “ final and immediately appealable. ” St. Mary ’ s Med. Ctr., Inc. v. Steel of W . Va

. , I n c. , 240 W. Va . 238, 241 n .2

, 809 S.E.2d 70 8

- 9

, 711 n.2 (2018) ( quoting Louis J. Palmer, Jr., and T he Hon. Robin Jean Davis, Litigation Handbook on West Virginia Rules of Civil Procedure , Rule 24, § 24 [2][e] ( 5th ed. 2017) ) ; see also In r e P.F.

, 243 W. V a. 569

, __ n.4, 848 S.E. 2d 8 26

, 830 n.4 (2020)

. Further, Rule 5(f) of the West Virginia Rules of Appellate Procedure provides that “ [u]nless otherwise provided by law, an appeal must be perfected within four months of the date the judgment being appealed w as entered in the office of th e c ircuit c lerk, ” and W e st Virginia Code § 58

- 5

- 4 likew ise requires , in

pa rt, tha t “ [n]o petition shall be p resented for an appeal from any judgment rendered more than four months before such petition is filed with the clerk o f the court where the judgme nt b eing

(co ntin ued . . .)



### FILED
April 26, 2021

EDYTHE NASH GAISER , CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA2 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. Upo n consideration of the standard of review, the briefs, and the record presented, the Court finds no s ubstantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s order is appropriate under Rule 2 1 of the Rules of Appellate Procedure.

On February 4, 2000, Petitioner J.C. Baker & Son, Inc. (“Pe titioner Company”) entered into an agreement (the “Stock Purchase Agreement”) with George C. Baker to purchase all of George C. Baker’s shares in Petitione r Company for $2,248,000, payable in monthly installments. Later, Petitioner Company and George C. Ba ker entered into an amended agreement (the “Amended Stock Purchase Agreement”), under which Petitioner Company was to pay the principal amount of $1,856,31 0

. 70 in 186 monthly installments of $16,170.46, commencing on November 29, 2002, and ending on April 29, 2018 (the “Obligation”). P ayments under the Amended Stock Purchase Agreement were to total $3,004,531.60, which included principal in the amount of $1, 8 5 6,310.70 and interest in the amount of $1,148,220.90.

On July 20, 2002, George C. Baker establis hed a trust (the “Trust”), which was initially funded with $1.00. On this same day, George C. Baker executed his will. Article II of his will provided, in p a rt, that

[a]ll estate, inheritance, and other death taxes (including interest and penalties, if an y, but excluding any generation

- skipping tax), together with all administrative expenses, payable in any jurisdiction by reason of my death (including thos e taxes and expenses payable with respect to assets which do not pass under this will) shall be paid out of and charged generally against the principal of my residuary estate.

U nder Article IV he bequ eathe d

all my residuary estate, being all propert y, r e a l or personal, wherever situated, in which I may have any interest at my death not otherwise effecti vely disposed of,

appeale d was entered

. ” Because the Prospective Intervenors ’ appeal from the circuit court ’ s April 3, 2019, denial order was filed well outside the four

- month appeal period provided for in

Rule 5 and West Virginia C ode § 58

- 5

- 4, it i s untimely. And, “ [w] hen prese nted with untimely appeals under W.Va. Code

, 58

- 5

- 4 [] , thi s Court has consistent ly held that the statute is jurisdictional and that failure to fi le a timely appeal presents a jurisdictional infirm ity precluding

t he court f rom accepting the appeal. ” W. Va. Dep ’ t of Energy v. Hobet Mining & Constr. C o. , 178 W. Va. 262, 264, 358 S.E.2d 8 23 , 825 (1987) (citations omitted). Accordingly, the order denying the Pros pective Intervenors ’ motion to intervene is not properl y be fore this C ourt for appeal , nor are they prop er parties to this appeal as th e ir only claim rela tes to th e order denying

th eir motion to intervene.3 but not including any property over which I have a power of appointment, to the acting trustee or trustees of that certain trust alr eady c reate d by me and known as the GEORGE C. BAKER TRUST DATED JULY 20, 2002.

George C. Baker died on S eptember 6, 2009. On September 15, 2009, Respondent Daniel C. Cooper (“Respondent Executor”) was appointed as the Executor of the Estate of George C.

Bake r (the “Estate”). Following George C. Baker’s death, Petitioner Company continued making its payments due on the Obligation to the Estate.

Several years later, however, Petitioner Company ceased making payments on the Obligation. Accordingly, o n Jan uary 2 6, 20 18, Respondent Executor filed suit on behalf of the

Estate against Petitioner Company for breach of contract, alleging that Petitioner Company was in arrears in the amount of $1,248,170.66 as of September 29, 2017. The Estate, by Respondent

Exec utor

, sough t judgment in that amount as well as for any additional am ounts owing under that

agreement.

Petitioner Company moved to dismiss the complaint on the ground that Respondent Executor was not the real party in interest authorized to prosecute the cla i m and that the complaint, therefore, failed to state a claim upo n which relief could be granted. Petitioner Company argued that, under the provisions of George C. Baker’s will, he devised his residuary estate to the Trust. As a result, the right to en forc e the A mended Stock Purchase Agreement passed to the Trust upon h is death. In short

, Petitioner Company argued

, the trustee s of the Trust

were the real part ies in interest with respect to any claim against Petitioner Company

.

Petitioner Company also argu e d that the Responde nt Exec u tor’ s failure to administer the Estate for nearly a decade was unreasonable. Petitioner Company ass e rted that if the Estate had been timely distributed, Respondent Executor would have been divested of any claim over the

assets o f the Estate. “E quity and g o od conscience cannot recognize [Responde nt Executor] as the appropriate party to resolve” the brea ch of contract claim

, Petitioner Company argued. It f urther argued that Respondent Executor’s actions were taken outside of the fi v e

- year perio d for

administ e ring an estate set forth in West Virginia Code § 44

- 4

- 14a; therefore, he was

automa tically removed as executor, his actions were taken outside the scope of the law, and he is not the real party in interest. And, Petit ioner Compa n y contended that because Responden t
Executor is not the real party in interest, the co mplaint fail ed to state a claim.

I n April of 2019, the circuit court denied Petitioner Company’s motion to dismiss the

R espon dent Ex ecu tor ’ s complaint . Th e court fou nd t hat Respondent Executor

has a fiduciary duty and obliga tion to administer the E state and pursue any debts

owed to t he Estate. While the Trust will receive the residuary of the Estate of George C. Baker, the Trust was not granted authority to administ er t he Estate or

to act on b ehalf of the Estate

— that responsi bility is reserved for t he Executor.

The court also determ ined that an executor is not automatically removed because he or she fails to settle an estate within five years; rather, th e county co mm i s sion retained the author ity “ to
determine if the delays i n settling an estate are for good cause, and if the delays w arrant4 discharging the exe cutor

. ” T he court concluded that so long as Respondent Executor was executor of the Estate, “ he may seek to c ol l e ct debts he asserts are owed to the Estate,” and Responde nt Executor is the real party in interest to collect the alleged debt owed to t he Est ate from Petitioner Company.

On December 17, 2019, Respondent Executor moved for summary jud gment. Responden t E x ecutor argued that the f acts indisputably show ed that Pet itioner Company had defaulted on the Obligation and, as of January 1, 2020, owed $1,555 ,122.72. 2 In support, Respondent Executor argued that Petitioner Company failed to answer

— and therefore

admi tt e d

— Respondent Executor’s r equests for admission, which esta blished the default. Respondent Executor also submitted other evidence in support , inc luding the Amended Stock Purchase Agreement, an amortization schedule, a table of payments made , and an affid av i t from Respondent Executo r.

The circuit court granted Re spondent Executor ’ s motion for summary judgment by order entered on March 6, 2020. The court conclude d that Petitioner Company’s failure to respond to Respondent Executor’s requests for admission r e s ulted in those requests being deemed admitted.

As a resul t, Petitioner Company had admitted, in sum, that it breached the Amended Stock

Purc hase Agreement “by failing to pay the amounts owed . . . in a timely and complete manner.”

The cou rt also noted th a t the Amended Stock Purch ase Agreement, amortization sched ule, table of payments, and Respondent Executor’s affidavit provided additional evi dence of the

outst anding debt. The court found that Petitioner Company owed $1,555,112.72, inclusi ve of

interest

, a s of January 1, 2020, and judgment was rendered in that am ount, plus post

- judgment interest. This appeal followed.

P etitioner Co mpany as signs as error the c ircuit court’s denial of its motion to dismiss

, whic h was predicated on P etitioner Co mpany ’s ass e r tion that Respondent Executor is not the real party in interest for purposes of enforcing the Amended Sto ck Purchase Agreement

. In support,

P etitioner C ompany argues four points. Fir st, Petitioner Company claim s that , under West Virginia Code § 44

- 1

- 14a, R espondent Executor was automatically discharged as executor of the

Estate due to his failure to settle th e Estate within five ye ar s of his September 15

, 2009, appointment. Therefore, P etitioner Company contends that he was not the authorized p ersonal

rep r e sentative of the Estate when he initiated the underlying litigation in January of 2018.

Second, Petitio ner Company argues that E xecutor Respondent’s u nreaso nable delay in settling the Estate will result in a windfall to the Estate. Petitione r Company p o i nts to the fact that it made the required payments to the Estate for several years following George C. Ba ker’s death and that “[ i] t was not until 2017 t hat al l payments, inadvertentl y, ceased.” Had Executor

Res pondent settled the Estate before the defaul t occurred, the Trust would have been vested with “full and complete title” to the Amended Stock Purchase A greement, and the trust ee s of the

Trust would h ave be en responsible for admin istering that agreement. Pet itioner Company asserts

2 T he p rincipal owed total ed $1,164,2 73.10. The a c c r u e d interest at 6.5% on the delinquent ba lanc e broug ht the total du e to $1,555,112.72.5 that, und er these ci r c umstances, if Respondent Executor’s efforts to collect the Obligation are acknowledged as a proper exerci se of his authority, it w ill result in a windfa ll to the Estate

.

As a third basis for claiming that d i smissal was appropriate

, P etitione r Company a r g ues that “[w]hile ordinarily bare legal title to the property of an estate devolves on the executor who

t hen has authority to deal with the property, wh en a t rust is involved the ord inary order of things chang es.” In support, P etitioner Compan y cites Gay l o rd v. Hope Natura l Gas Co. , where the Court stated that “[t]itle to realty vests in heirs at ancestor’s d eath and, subject to inde btedness, the personal ty doe s so as well.” Syl . Pt. 10, 122 W. Va . 205, 8 S.E.2d 189 (1940) (citation omitted)

. Petitioner C o m pany als o relies on Kennedy’s Administ rator v. Kennedy , 97 W. Va. 491, 125 S.E. 337 (1924), wh ere the Court stated that

[t]he ve sting of an estate by inheritance or will d oes no t depend upon its

posses sion. Often by will the pos session and enjoyment of a n estate by the devisee or legatee is postponed to some future date, but the beneficial intere st is vested in him, and he may sell it, or control its future devolution.

Id

. at 496 , 125 S.E. at 339. Petitioner Company claims that, under these cases, the r esiduary

estate , including the Amended Stock Purchase Agreement , passed to the Trust at the ti me of George C. Baker’s death, and i t is the trustees of the Trust who have the right to enf orce the Obligation. Pet itioner Company recognizes that Respondent E x e cutor “has bare legal title to an

estate’ s assets for the sole purpose of making ‘a full and f inal settlement, report and accounti ng’” and that he has “‘bare legal title’ . . . to the mo nthly payments

, ” b ut it claims that this does not

g ive Respondent Ex e c utor legal titl e to the Obligation itself or “carte blanche authority over the

assets in admin istering the estate.”

With final respect to its claim that the court erred in denyi ng it s motion to dismiss,

Peti tioner Company argues that even if Responden t Executor has “s ome claim to the Obligation, he does not have a claim over the entire Obligatio n.” “[O]nly the amount needed to sat isfy estate indebtedness is subject to ‘recall’ by the personal representative

, ” which Petitioner Company

c laims would amoun t to approximatel y one

- third of the Obligation.

“When a party, as part of an appeal from a fi nal judgment, assigns as error a cir cuit court’s denial of a motion to dismiss, the ci rcuit court’s disposition of t he motion to dismiss will

b e reviewed de nov o

. ” Syl. Pt. 4, E wing v. Bd. of Educ . of Summers Cty. , 202 W. Va. 228, 503 S.E.2d 541 (1998). Re garding the real party in interest, Rule 17(a) of the West Virginia Rules of

Civil Pro cedur e requires , in relevant p art, that

[e]very action s hall be prosecute d in the name of the real party in i nterest. An executor, administrator, guardian, bailee, trust ee of an express trust, or any other fiduciary, a party with whom or in whose name a c ontr act has been made for the benefit of another, or a pa rty authorized by l aw may sue in t hat person’s own

na me without joining the party for whose benefit the action is brought.6 In addressing Petitioner Company’s arguments, it is important to first clar ify that an

executor is not th e real party in interest in recovering an es t a te ’ s debt. 3 Whe n an executor acts in this regard, the estate has the claim:

In litigation fi led for the pu rpose of recovering as sets for inclusion in a decedent’s estate, the only su bstantive claim belongs to the estate. Such litigatio n is brought by t h e executor solel y in his or her fiduciary capacity, and therefore the executor is not a real pa rty in interes t under West Virginia Rule of Civil Procedure 17(a).

Syl. Pt. 6, Estate of Gomez ex rel. Gomez v. Sm ith , 243 W. Va. 491, 845 S. E.2d 266 (2020). T h is is an import ant distinction because underlying several of Petitioner Company’s arguments is the erroneous assumption that if Re spondent Executor, personally , is not executor of th e Estate, then

the Trust wou ld be tasked with administe ring, at least, t h e Amended Stock Purchase Agreement. Such is not the case. Even if Petitioner Company were co rre ct that, due to a delay in making a final settlement, Respondent Executor had been disch ar ged, the Amended Stock Pur chase Agreement remains par t of the Estate a n d

, therefore

, subject to Estate administration. Here, who

serves as executor does not affect wh ether an asse t belongs to the Estate

.

In addressing Petitioner Company’s specific arguments within t his framework

, we note that West Virginia Code § 44

- 1

- 14a d o es not support Petitioner Company’s contention that the Trust is the real party in interest. I n fact, that section does not addres s real parties in interest at

all. Instead, t he subsection relied upon by Petiti oner Company provides that

[i]n the event t he fiduciary ha s not made the final settlement of the estate within five years of appointment, the fiduciary sh all notify the coun ty commiss ion that the final settlement has not been made. If the fiduciary does not establish good

ca u se f or not making the f inal settlement within the five

- year period, as determined by the county commission, the fiduc iary is discharge d of his or her

dut ies as fidu ciary. The sheriff of the county shall then take charge of the estate

and proceed to make a fina l settlement of t h e estate in an e xpeditious manner.

Id. § 44

- 4

- 14a(d). Thus, even if Petitioner Company had been correct in arguing that Respondent

Executor was automatically discharged, the underlying claim would r emain the Esta te’ s a nd t h e sheriff would simply succeed a s ex ecutor. We further find that th is has not occurred , however

, and Respondent Executor rem ains executor of the Estate. Under West Virginia Co de § 44

- 4

- 14a(d), the county commission must determine that the exec utor ha s not established go od cause

3 Al though the circuit court foun d that Respo nde nt Executor, r at her t han t h e Trust or its

t rustees, was the r eal party in interest in ruling on Petitioner Company ’s motion to dismis s, it is

clear from the co mpl aint in thi s matter that R espondent Executor sough t to c olle ct a debt on

b ehalf o f the Esta te, not for his per sonal benef it , and that the circuit court ’s r ulings clearly provi de for the Estate ’s recov ery , rather than R e spondent Execu tor ’s personal recov ery . Th us, the e rror appears to b e merely semantic

.7 for maki n g the final sett lement outside of the five

- year window set forth in that statute. Here, n o

s uch determination has been made, and the sheriff ha s not ta ken charge of the Estate. Accordingly, the circuit court did not err in d enying Petitio ner Company’s mot i o n to dismi s s on this ground.

Likewise, Petitioner Company’s b el ief that the Esta te will obtain a windfall if Respondent Executor’s delay is tolerate d does not serve to divest the Estate of the asset sought i n this litigat ion. To the c ontrary, in argui n g that the E stat e will somehow obtain a windfall if it succeeds in collecting a debt owed to it, Petitioner Company acknowledges that the Oblig ation

is , in fact, an Estate debt. Specifically, Petitioner Company says that if Respondent Ex ecutor had

set tled t he Estate

be fore the inadvertent default[,] . . . any default would have occurred on ce t he Trust was vested with full and complete title to the Obligation . . . . It would then

have been the trustees of the Trust who would be the part ies to adminis ter t h e Obligati on a nd resolve the alleged default claim.

(Emphasis added.) Also, Petitioner C om pany con tends that “[d]istribution should have be en made years ago, which would have unquestionin gly divested [Respon dent Executor] of any

claim over the residuar y asse ts of the Estate.” The facts before both this Court and the lower

court, though

, were that the Estate was not settled before Petitioner Company’s default. Therefore, the trustees of the Trust are not t h e parties to ad minister the Amended Stock Purcha s e Agreement . Moreover, Peti tioner Compan y’s conduct in making payments under the Amended

Stock Purchase Agreement to the Estate following George C. Baker’ s death

, and before the litigation was initiated

, demonstrate s its r ecogni tion that the Obligat ion, i n c luding any outstanding amo unt s follo wing Petitioner Company ’ s default , belong to the Estate. 4

We als o find that n either Kennedy nor Gaylord compel a fi nding that the Obligation

cannot be recovered by the Estate. The spe cific issue before the Cour t in K e n nedy was w hether a

wid ow h ad an interest in her hu sband’s personal estate that she could devi se, thoug h she died

before her husband’s estate was distribu ted. 97 W. Va. at 493 , 125 S.E. at 338. In finding that the widow did p ossess such interest, the C o ur t stated tha t

[w]e cann ot see that the wife’s nonposse ssion of her distributive share affects her

be neficial right thereto. . . . [I]t would be subject to the lawful charges against the

husband’s estate in the hands of the ex ecutor or administrator. La c k o f possessio n would not prevent the vesting of the dist ributive share in her. While it is true the

le gal title passes to the administrator with the right o f possession for the purpose

4 We re cogn ize that Petitioner Company makes a distinction b e tween the Amended Stock

Pu r chase Agreement and the Obligatio n, claiming that the Estate “had claim on ly t o the payments being made on the Oblig ation

. ” But w e a re n ot persua de d by th is argument tha t the

Esta te is entitled to th e payments yet is prohibited f rom collecti ng when Petitio ner Company

def aults on th ose payments.8 of paying debts against the estate, charge s of administration and the li k e , the

bene ficial inter est is vested in her, and the p ossession of the administrator i s her possessi on.

Id. at 495 , 125 S.E. at 339. In other words, Ken nedy speaks to a beneficiary’s beneficial interest, and it affirms that legal title and the right of p o ss essio n w hile settlin g an estate pa ss to the

executor or admini strator of an estate. See i d. ; see also S yl. Pt. 4

, Elder v. Gibson , 109 W. Va. 582, 155 S.E. 662 (1930) (“The administrator is not a mere stakeholder of his decedent’s

pers onal property, bu t is veste d with the exc lusive legal title t hereto, for the time being.” ).

The portion of Gaylor d relied upon by Petitioner Company speaks to the point a t which

advancements are to bear interest. See 122 W. Va. at 217

- 18 , 8 S.E.2d at 196 (“Our statutes o f

descent an d di stributi on seem to complete the pa ssing of title at the death of an ancestor. Cod e, 42

- 1

- 1, and 42

- 2

- 1. Undoubtedly, the title to real esta te vests in the heir at the death of the ancestor, and, subject to indebtedness, the perso nal estate a s well. . .

. T here is no where any intimation, t hat there is any difference as to the time, whe n i nterest should be charged against a party, whether the advancement be of personal or real property; and there is no ground for any

distinction be ing draw n , f o r on the d eath of the intestate the interest of the distribute e s is as fixed

a nd determined on the death of the intestate as that of the heir. The equali ty sought by the law requiring real and personal property advanced to a child to be brough t into hotc h p ot is equa lity a t
the death of the intestate; an d therefore in both cases inte rest is charged o n t he value of the property at the time it was advanced, t he interest to be from the death of the intestate.” ( c itation omitted) )

. Consequently, t he se cases do n ot prohibi t an executo r from t aking action to se ttle the estate he or she has been appointed to settle.

In Pet itioner Company’s final argument in suppor t of dismissal, it states that Respondent Executor, under Gaylord , has only the “right to control one

- t hird of th e Ob ligation ” needed to satisfy Estate indebtedness. Gaylord does not speak to est ate administration or support some limited authority in Respo ndent Executor to “ recall ” “only the amount needed to satisfy estate

indebtedness .” To the contrary, P e t itioner C ompany is again implicitly recogniz ing that the Obliga tion is subject to Estate administration , and

, a s set forth above , Respondent Executor has the “duty . . . to administer well and truly the whole personal estate of his decedent.” W. Va.

Cod e § 44

- 1

- 15. Because th e Amend ed Stock Purchase Agreement and the Obl iga tion arising

und er it are Estate assets until distributed

, and because Respondent Executor remains executor of the Estate, the court did not err in denying Petitioner Company’ s motion t o dismiss.

In P etition er Co mpany ’s final assignment of erro r, it argues th at the circuit cour t erred in granting Resp ondent Executor’s motion for summary judgment for the same reasons that the court allegedl y erred in denying its moti on to di smiss.

W e begin by noti ng that, becaus e the circuit court did not err in denying P eti tioner Company ’s mo tion to dismiss, the gro unds asserted by Petitioner Company do not afford it relief from the court’s grant of summ ary judgment in Respondent Executor ’ s favor. B u t as our revie w is de n ovo, w e further examine the evidence s upporting the circuit cour t ’s grant of summary judgment

. S ee S yl. P t. 1, Painter v. Peavy , 192 W. Va. 189, 451 S.E.2d 755 (1994) (“A circuit

court’s entry of summary judgment is revie wed de novo

. ” ). Due to P et itioner Company ’s failure9 to respond to Execu tor Respondent’s requests fo r admission, the operative facts were deemed

admitted. 5 See W. Va. R. Civ. P. 36 (“The matter is admitted unless, within 3 0 days after service

of the request , . . . the p arty to whom the request is directed serves upon the party requesting the

admission a w ritten answer or objection addr essed to the matter . . . .”). Namely, P etitioner Company admitted to the particulars of t he Amended Stock Purchase A greement , including t hat it had ag reed to make mo nthly payments of $16,170.46 f or 180 months. It further ad mitted to its

default under the agreement and to the amounts owed. Respondent Executor also append ed to his motion a copy of the Amended Stock Purcha se Agree ment, an am o r tization sche dule, table of

payments paid and unpaid, and an affidavit from Respondent Executor detailing, among other things, the current amount owed by P etitioner Company . Petitioner Company does not challe nge this evidence, n or does it disp ute that it f ailed to resp ond to the requ ests for admission

. Based on

t his unchallenged evidence and the fact that P eti tioner Compa ny ’s challenges to Respondent Executor’s authority to collect this debt on behalf of the E state were merit less, we fi nd that summary jud g m ent was prope rly granted in favor of Respondent Executor.

For the foregoing reasons, w e affirm.

Affirmed

.

ISSUED: April 26, 2021

CONCURRED IN BY:

Chief Justice Evan H. Jenkins

Justice Elizabeth D. Walker

Justice Tim Armstead

Justice John A. Hu tchis on Justice Wil li am R. Wooton

5 Petitio ner Company does not contend that the circuit court erred in deemin g these

reques ts admitted.