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Minor v. Heishman, Comm. of Accounts, Record No. 0980-22-4 (Va. Ct. App. Oct. 10, 2023)

Case Briefs

October 10, 2023

By: Juli M. Porto

Virginia Appellate Law Blog

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In a lengthy opinion, the Court of Appeals discusses the role of the Commissioner of Accounts.


Facts. Kishna Shirese Minor was appointed as permanent guardian and conservator for her grandfather Eric Wilder after the 92-year-old Wilder was adjudicated an incapacitated adult. She posted a $1.2 million bond. Almost immediately, Minor opened a new account at Burke & Herbert Bank with funds Wilder already maintained in another account with that bank. She used the funds from the new account to make several questionable purchases totaling over half a million dollars. Minor failed to report this account on any of her filings with the Office of the Commissioner of Accounts, including her final accounting after Wilder passed away.

Before the review and approval of Minor’s final accounting, two of Wilder’s children wrote to the commissioner alleging that Minor had understated Wilder’s assets. One of the children requested a hearing with Commissioner Anne Heishman, as well as the production of bank records. The Commissioner held an initial hearing under Code § 64.2‑1209 in which she confirmed the existence of the undisclosed account. Minor objected to the hearing because the children were not “interested parties” within the meaning of the statute. Over the next several months, the Commissioner held several more hearings to determine the propriety of the expenditures from the undisclosed account. The Commissioner also subpoenaed banking records from Burke & Herbert. Ultimately, the Commissioner found that Minor never properly accounted for transactions from the undisclosed account and filed a report of noncompliance with the Fairfax County Circuit Court. Pursuant to the report, the circuit court issued a show cause summons and set the matter for hearing.

At the hearing, Minor again argued that the Commissioner’s proceedings were a “nullity” because they were initiated by the children who were not “interested parties.” She also claimed that the Commissioner was not impartial due to statements she had made during the proceedings that even if the children were not interested parties, she was an “interested party” for purposes of the hearing, that she “had standing in the case,” and that she was not “neutral.” The Circuit Court directed the Commissioner to hold a hearing to determine whether Minor should be removed as fiduciary and whether her bond should be forfeited.

On October 15, 2021, after the ordered hearing, the Commissioner filed her report recommending the removal of Minor as fiduciary and the forfeiture of her bond. On November 1, 2021, Minor and the bond surety filed exceptions. On November 8 and 10, 2021, the trial court confirmed the Commissioner’s report. On January 21, 2022, the circuit court held a hearing to enter an order memorializing the now confirmed Commissioner’s report, as well as her petition to forfeit bond. On April 11, 2022, the trial court issued a letter opinion stating that the Commissioner had the authority to conduct the hearing though it was initiated by the children, and further found that the Commissioner was a neutral arbiter. On May 20, 2022, Minor filed a motion for clarification and reconsideration of the court’s opinion. On June 3, 2022, the court entered an order denying Minor’s motion and entering judgment against her and the bond surety. Minor and the bond surety appealed.

On appeal, the Commissioner argued that the appeal was procedurally defaulted because the November 2021 orders were final orders. The Commissioner relied on Code § 64.2‑1213, which states that if a party files exceptions to a confirmed report, instead of surcharging or falsifying it, “the action of the court on the report shall be final as to such party.”


Issues. (1) Whether a confirmed report is a final order where a party chooses to file exceptions rather than a suit to surcharge or falsify. (2) Whether a commissioner can hold a hearing based on information received from a non-interested party. (3) Whether the Commissioner remained a neutral arbiter despite her statements.


Holdings. (1) Not per se. The court will apply the traditional analysis of whether an order is a final, appealable order under Rule 1:1. (2) Yes. Code § 64.2‑1209 prescribes a method by which the Commissioner can have a hearing, but the statute does not say that it is the only way a commissioner may conduct a hearing. (3) Yes. The Commissioner’s statements were taken out of context.


Notes. (1) The use of the word “final” in Code § 64.2‑1213 is simply a restriction on litigants in potential future legal actions who have had an opportunity to challenge the factual findings and legal conclusions contained in a commissioner’s report. Here, the trial court confirmed the Commissioner’s report in November 2021, but those orders did not “dispose of the entire matter” because Minor’s objections to the Commissioner’s process as well as bond forfeiture were still outstanding.

(2) Virginia circuit courts have jurisdiction over fiduciary matters, including the administration of estates. Since it is impractical for circuit courts to perform every aspect of estate administration, the Commonwealth established the office of the Commissioner of Accounts. This quasi-judicial official is appointed by the circuit court to aid it in carrying out the settlement of fiduciaries’ accounts and distribution of estates. The legislature enacted Code §§ 46.2‑1200 et seq. and 46.2‑1300 et seq. to govern the Commissioners of Accounts and fiduciaries. This statutory scheme gives the Commissioner “general supervision of all fiduciaries” and provides that the Commissioner “shall make all ex parte settlements of the fiduciaries’ accounts.” It places “affirmative duties upon both the fiduciary and the Commissioner.” Thus, the Commissioner’s duty is “not simply to ensure the job is done, but to make certain that the job is done right.” Here, the Commissioner acted pursuant to her statutory duties and her statutory authority to subpoena any person, subpoena bank records, demand a proper account, seek Minor’s removal and forfeiture of her bond when the accounting was not provided.

(3) Here, the record was clear that in making statements that she was “interested,” “had standing,” and was “not neutral,” the Commissioner was intending to express that she had a duty to assess the evidence and ensure Wilder’s estate was properly administered and distributed.

(4) Appellants made two other arguments that the Court of Appeals rejected. First, they argued that the children’s only remedy as non-interested persons was to bring a suit to surcharge and falsify, but the Court of Appeals rejected this assignment of error as “not relevant.” The trial court’s order and rulings were not made on behalf of the children. Rather, the Commissioner was tasked with determining whether Wilder’s account had been properly accounted for. Second, the appellants argued that the Commissioner failed to consider certain evidence, but the Court of Appeals found that they failed to offer the evidence to the Commissioner and failed to proffer what evidence they would have offered.


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