Vorholt v. One Valley Bank

Jerry VORHOLT, Plaintiff A.

Below, Appellant, (formerly The Ka BANK VALLEY

ONE Valley Bank, N.A.), nawha Association, Banking

Bank, a National Valley Bank),

(formerly Kanawha Trust, Ansel F. Vorholt

Trustee of the Vorholt, Jr., Vorholt, Edward Ar

Leo J. Childress, Vorholt, Ruth V. Cather

chie Melton, the most Reverend

ine V. D.D., Schmitt, Bishop of the

Bernard W. Wheeling- Diocese

Roman Catholic

Chаrleston, office, his successor in heirs all other known and unknown benefi of beneficiaries other law

ciaries, Ansel known or unknown Below, Ap Trust, Defendants

F. Vorholt

pellees.

No. 23589. Appeals

Supreme Virginia.

West

Submitted Jan. March

Decided

Concurring Dissenting Opinion of 21, 1997. July Workman

Chief Justice

Concurring Dissenting Opinion of 8, 1998.

Justice Starcher Charleston, Wolpert, Appel- G.

Robert for lant. Brown, Mount, Kelly K. L.

James Jackson Kelly, Charleston, Appellees. & for MAYNARD, Justice: Vorholt, appellant, Jerry appeals A. order Circuit Court County granted summary of Kanawha Bank, judgment appellee, for the finding that suit failing to include him adoptive of his estate distribution father’s by the barred limitations. For below, forth we affirm circuit reasons set court’s order. pass was to his “children and descendants” F. Ansel per stirpes accordance with Vo- 20, 1955, F. Vorholt made April Ansel On died, he Leo rholt’s will. When Vorholt pro- will Last Will and Testament. This appel- children two natural addition estate to be that Mr.

vided Vorholt’s immediately appellee lant. faced was appellee, in the Val- to transferred trust appellant, the with the issue whether Association, Bank, known ley National then child, adopted would benefit as “descen- Shortly Valley Bank. after mak- Kanawha as testamentary In the trust. de- dant” under 17, will, May died on ing the Mr. Vorholt issue, ciding the relied on a appellee this the trust “to be The term of was 1955. concluding legal prepared by counsel opinion elapsing of time the interval renewed child, adopted аppellant, as an was the death] the date the testator’s [of between beneficiary in to share as a the entitled twenty-five years thereafter.” result, 17,1980. therefore, May trust.3 did not on Dur- As the terminated existence, made to income the ing the trust’s one-third receive distributions income to be distributed to Ansel the beneficiaries under trust. Vorholt, nephew, adop- Leo F. the Vorholt’s 17, 1980, May The trust terminated on Jerry A. appellant, father of the Vo- tive years twenty-five after the testator’s death. before trust’s rholt.1 If Leo Vorholt died the trustee, appellee, as made distributions termination, pаss his income interest was to trust to property corpus of the real the per stirpes to his “children descendants.” interest beneficiaries of the remainder as termination, the Upon the trust’s one-third of 1970, again them in exclud- determined Vorholt, estate was to distributed Leo 25, 1980, ing appellant. August On deceased, or, per if he was to his descendants appellee granting legal recorded thé deed stirpes. property corpus title the real of the trust death, appel- Ansel F. After Vorholt’s beneficiaries, completing its to the ad- estate, lee, executor, administered thе surviving ministration of the trust. The ben- principally consisting of the establishment Agreement Agency entered into an eficiaries later, 1957, in trust. Two Leo 4,1989, authorizing appellee May with adopted appellant. 1955 Vorholt From manage previ- appellee the real estate 1970, made distributions ously from distributed the trust. income to one-third of trust’s Leo Vo- with the terms of the rholt accordance lawyer questioned In the title to trust. light property the fact that real representa- appellant had A been excluded. previously In Leo died.2 As Vorholt indicated, tive of the contacted his inсome and remainder interest According about in the trust Ansel F. Vorholt this issue established addition, 1959, W.Va.Code, was amended 1. In of the trust’s income was tion. In one-third children, equally adopted indicating to be divided between the testator's other include sub- nieces, nephews remaining However, and the one- change public six policy. stantive go Willim, Sacred Catholic third was to the Heart Security National Bank & Trust v. Charleston, Virginia. Church of West In (1967) this Court W.Va. provi- we are concerned how the presumption gov- reaffirmed that exclusion appellant, Jerry ‍‌​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​‌‌​‌​‌​​​‌​‍apply of the trust to the A. sions wills made ernеd the intent testators for Vorholt. 1977, Wheeling the 1959 amendment. In Dol- Hanes, Savings lar Co. & Trust v. age at the 2. The was seventeen essentially 237 S.E.2d 499 we overruled time of Leo Vorholt’s death. by rejecting Willim decision exclu- pre- presumption adopting an inclusion will, sion testator made the when the prior sumption to 1959. The for trusts created through adopted take children could not intestate appellant in his second issue raised brief according to 48-4-5. succession Also, right to this Court was his above- essentially Wheeling this Court held in Dol- Stewart, beneficiary under Savings law to take as a & v. mentioned lar Trust Co. we find cause trust. term "descen- Because adopted of tions, is barred the statute of limita- in a will include children. action herein dant” did not presump- reach as the we do not this issue. This became known exclusion and, therefore, equity, appellant, this was the first time that he no statute of limita question of the trust or of applicable. agree. became aware tions is doWe This possible interest in the trust. has stated that: “Statutes of limita are in equity subjects tions appel- filed suit exclusively equitable cognizance. Matters 11, 1992, effect, February alleging, lee on pertaining fiduciary relationships come fiduciary duty breached its Syllabus within the rule.” Point Felsen excluding him distribution of the Co., held Bloch Bros. Tobacco May 17, By order of the circuit 192 S.E. 545 An action concern granted summary judgment court ing the violation is “a matter grounds Bank on the peculiarly equity cognizance” in that potentially claims were all time-barred under “[cjourts equity always of claimed and of statutes limitations and were jurisdiction exercised exclusive of cases dependent upon an unwarranted retroactive trusts and over the conduct of appoint those application judicial of change in substantive Felsenheld, ed to execute thеm.” 119 W.Va. agree law. Because we with the circuit court 173-174, 192 S.E. 548. We also time-barred, appellant’s claims are however, recognized, that the statute of limi we do not reach the substantive law issue. long tations is tolled so as the trust continues, ceases, so that once the trust II begins statute of limitations to run. Bennett outset, point At we out “[a] Bennett, 391, 398, 436, v. 92 W.Va. 115 S.E. entry summary judgment circuit court’s of is (1922) (“... trusts, express 438 direct or so 1, Syllabus reviewed de novo.” Point Paint long they continue as between trustee Peavy, 189, v. er 192 451 W.Va. S.E.2d 755 beneficiary, subject are not to the statute (1994). Furthermore, motion sum “[a] ...”). of limitations There are different mary judgment granted only should be when ways may in which the statute of limitations it is genuine clear there is no issue of begin example, to run. For once a trustee fact inquiry to be tried concerning beneficiary notifies a that he she repudi is clarify facts is not application desirable trust, ating the of the statute 3, Syllabus law.” Point Aetna Casual 3, begins Syllabus to run. Point Currence ty Surety & Co. v. Federal Insurance Co. of 194, Ralphsnyder, v. ‍‌​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​‌‌​‌​‌​​​‌​‍151 108 W.Va. S.E. 700 York, 160, New 148 W.Va. 133 S.E.2d 770 (1929) we stated: “The statute of limitations (1963). “[sjummary Accordingly, judgment against express does not run an trust until appropriate is where the record taken as a benеficiary notice that the trustee has could not whole lead rational trier of fact to repudiated has the trust.” See also Craw nonmoving party, find for the such as where Caplinger, v. 158 S.E. ford nonmoving party has failed to make (1931). Also, recognized 717 it has been showing sufficient an essential element of elsewhere that once a trust terminates its it prove.” the case that has the burden to terms, own the activities of the trustee be Syllabus Point Peavy, Painter v. 192 subject running come statute (1994). With this limitations. mind, will we now examine case before The us. oft-stated rule the statute limitations does run in of a trust- favor repudiates ee until he renounces or III applies only existing subsist- is whether the issue trusts; ing express an when against for relief are barred terminates and comes to an end its statute limitations. terms, repudiation express act First, renouncement, we must determine whether the failure to addition to governed by pay is stat suit over the trust fund to those entitled thereto, necessary position ute limitations. It is the is to start the statute against running. that his suit 484 that, Co., if appellant maintains statute City Trust v. Bank Farmers

Emmerich (1948), ten-year it is the applicable, 275 limitations is aff'd, A.D. of 83 N.Y.S.2d provided for in W.Va. rev’d on other statute of limitatiоns N.Y.S.2d First, disagree. Again, we N.E.2d 868 55-2-7.4 300 N.Y. grounds W.Va.Code, appli- 55-2-7 is not we find Blackford, In Van Winkle A case. careful cable to the facts of this this Court stated: 11 S.E. reading reveals that it to make law is too settled well first applies in two situations. The involves that, necessary, authority reference executor, administrator, against an suit purports an act which when a trustee does sheriff, committee, personal rep- guardian, trust, gives a termination of his to be regardless of a bond had resentative whether currency from the time of Clearly given. this situation is not been may simply act. This act such an involved here because the which, office, by law, public done in a act executor, administrator, guardian, com- of his he must render an account sheriff, mittee, representative; personal complete purports act to be a When the rather, it was trustee. second situa- he henceforth termination any fiduciary, tion involves suit adversely, at the end holds including trustee, a settled ac- who has an statutory period all further account is W.Va.Code, provisions the of 44- count under barred. fiduciary any liable seq., 4-1 et to the for hold involve present The case does not the stated in account “to be in his balance such trust, in repudiation of a one which the but There that the trust- hands.” is no evidence by express terminated its own terms. provided in here settled an account as for ee previously, trust terminat As mentioned the W.Va.Code, that this in- 44-4-1 or action May the ed on distrib Further, ap- a volves such settlement. the August the trust 1980. uted assets any pellant alleged has not accounts Anytime appellant could until 1980 the appel- in belonging to the trust remain the against brought a suit without Instead, appel- hands as lee’s trustee. controlling. In any period of limitation ap- lant asserts clаim to assets trust, however, upon termination and which pellee distributed vested run. We con began of limitations to almost twelve beneficiaries therefore, clude, of the statute limita against appellee. he filed before a suit run applicable, began it tions is summarize, ten-year To we find that 1980. period provided for in limitation W.Va. Next, Code, apply when an action we must determine what stat 55-2-7 does not executor, brought against is after not an adminis- applicable ute of limitations 1980. is order, ery happen Replacement upon such shall 55-2-7 Vol- whichever [1994 ume], provides: against fiduciary any such first. And as himself, suit right upon representative, of action the bond of an execu- or his which could have administrator, tor, guardian, bond, curator or commit- given been maintained if he had there such, tee, acting a sheriff as shall or of be than would if shall be no other limitation exist Upon have first deemed to accrued follows: preceding [§ 55-2-6] were not section ward, guardian of a or curator of bond fiduciary, any passed. any Where such other attaining age eigh- ward’s time fiduciary, provi- has settled an account under the guard- years, teen or from the terminatiоn of seq.], chapter et sions of article four [§ office, happen ian’s or curator’s first; whichever shall forty-four of a suit to hold fidu- such upon any repre- personal the bond of ciary or his liable for balance stated sureties committee of an insane sentative of decedent or in such account to be in his hands shall be right obtaining person person, the of a action brought within after the ten account has representative or execution such commit- money right been confirmed. The to recover tee, payment delivery of estate or to whom pаid under shall be fraud or mistake deemed representative of such or committee the hands accrue, equity, both law and in the time acting upon be ordered a court shall discovered, such fraud or mistake is account, to have first accrued shall deemed ought execution, diligence due exercise of have been day return or from from the of such right require payment or discovered. time of the deliv- sheriff, trator, committee, guardian, per- duct other than his own. There we found discovery rule representative, sonal or when is articulated in not Cart did apply brought agаinst any fiduciary an account because had no reason Therefore, injury to discover the cause of his earlier stated to be his hands. Gaither, however, than he did. We noted applicable is here. rule stated in Cart note that the We a plaintiff where knows or should there are circumstances which the normal reasonably injury know the existence governing running rules of the statute of and its cause. This is the situation do apply. limitations These circum present case. encompassed stances are appel This Court believes Accordingly, maintains lant should have known оf the begin that the statute of limitations did not long existence of May his claim run 1989when the first when he appellee. was notified concerning contacted him the trust. “Gener appellant knew of his death in father’s ally, (i.e., cause action accrues the stat thereafter, inqui At that time or time run) begins when a ute tort ry into nature his father’s would estate occurs; rule,’ ‘discovery under the the stat have disclosed the existence and the terms of ute of limitations is tolled until claimant the trust. would have immedi diligence knows or reasonable should ately discovered that he was excluded as a Syllabus knоw of his claim.” Point Cart v. beneficiary he could Marcum, timely asserted claim a Be manner. (1992). In addition: appellant neglected cause such make ‘discovery ... applied rule’ is to be an inquiry, he cannot benefit now from the great circumspection case-by- on a Further, discovery appellant the does case strong basis where there is a strong showing required not make the under by showing plaintiff the pre- that he was Cart. The submitted an affidavit knowing vented from of the claim at the stating that he did know about the trust injury. general time of the The rule is by or his interest in it until notified the ignorance that mеre of the existence of appellee May Nevertheless, 1989. he did identity cause of action or of the any explain not offer evidence to his failure wrongdoer prevent does not the running of to take to reasonable measures ascertain his statute In limitations. order to bene- legal rights his father’s estate the rule, plaintiff fit from the must amake year period beginning nineteen in 1970 and concealment, strong showing of fraudulent ending in 1989. He has failed to show the inability comprehend injury, to or oth- concealment, required inability fraudulent to hardship er extreme ... injury, understand his or other extreme hardship. Therefore, precluded he is from 188 W.Va. at at 648. S.E.2d on relying escape doctrine to The facts this differ from case those statute limitations. Inc., Timothy City Hospital, Gaither (1997), S.E.2d where we appli Section Because 55-2-7 is not found that the action, rule stated Cart appellant’s cable to the we find that applicable. was not Gaither was medical general periods “catch-all” of limitation malpractice W.Va.Code, case where the knew of necessarily set forth in injury, gener the existence of his govern.5 periods but did know Such limitation are injury involving trusts, party’s ally applied was the result of con- to suits where right bring Replacement [1994 to Vol- the same shall have accrued if it be provides: damages (c) ume] injuries; personal within for for year right bring one next after the the same Every personal action for which no limitation prescribed (a) have if it be brought: shall accrued for other matter is otherwise shall be die, that, years party nature right bring Within such in case a it could not two next after the accrued, brought by damage same have been law shall if it be for common (b) property; years personal representative. twо within next after the WORKMAN, Justice, concurring, in Chief applies.6 limitation specific period of no provided dissenting part: in Section period part, limitation year years de- either one two 55-2-12 is 1997) (Filed July 21, the action would survive pending on whether appellant, there- death. agree majority’s with the con- Although fore, file action in have had to this would Appellant’s clusion that action barred Because the either 1981 of limitations contained within until did commence this suit Virginia Code I dis- West 55-2rl2 time-barred, obviously regardless are agree decision to the extent it con- with the two-year the one- оr limitations of whether began run of limitations cludes the statute period applies. Instead, in 1980. when trust terminated escape fact appellant cannot began I believe the statute of long bring simply he his action. waited too Appellant run in first learned when 1970, yet father died he point, this it is existence. As to trust’s nothing at time to determine the did this how, hand, the beyond comprehension on one his father’s estate. For next nature of majority Appellant can state “should years siblings received income ten when his known of existence not, he did he still from the trust and did 1989,” long his claim before while or tеrms of nothing to ascertain the existence hand, places significance the other testamentary when Valley Bank con- the fact that One failed to siblings trust and his received the terminated Appellant despite fact it tact corpus appellant still did knowledge Appel- 1970 that had actual since Finally, being after contacted nothing. adopted lant was the son of Leo J. Vorholt. the Bank in waited almost We can ry has failed to make a sufficient his action was nawha of all forth. clude that another cumstances which would essential effect behavior saves in 1980 for possible judgment Therefore, County find three element the statute of limitations came into of limitations under the nothing timely is, therefore, protects limitation of of we believe the the Circuit filed. in either law or has reasons him from the justify periods. affirmed. filing established his own showing on previously which is that his claim. tolling of We running of Ka- dilato- equity con- cir- set an Dollar ly, as fore manages provisions of W. adopted expiration sions which ‍‌​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​‌‌​‌​‌​​​‌​‍uses the Bank, dren’ actually of West execution ... Approximately three Appellant _”1 711, 237 S.E.2d 499 Savings an Virginia, regardless children knew governed ... institution which Syl. pt. shall be cоnstrued under was contacted or accounts, & Trust Co. Va.Code, shall take under stated: the laws of the State and twelve years prior word[ ] “Any One 48-4^5 (1977).2 part, Wheeling professionally testamentary Valley should Hanes, ^[1969] any provi- date of ... Certain- Bank ‘chil- and be- its As Affirmed. known of this Court’s decision Hanes. 6. See 1. The relevant Trustees stirpes, and not shall termination of the Trust the event that Leo Vorholt does not live until the 1982) erned regardless of the date of its Any testamentary or inter vivos trust full, syllabus pass to his George [1995 by the § 950 at 616-618 Replacement G. language laws of per capita." point Bogert, childrеn the State West two of Hanes states: in the will Estate, Volume]. The Law of Trusts & and (2nd execution, descendants, per then his interest provides: ed. Revised Virginia, includ- gov- "In limitation, general cally, synonymous shall be construed under ing by way uses the words "child” or dren and not "children,” "natural "issue,” shall words which are children,” "descendants,” any take all including again way other trusts example with the limitation, ^[1969] similar executed any provisions loosely, if and not "children,” by way and any provisions language. words such words adopted by way "child” example "heirs,” techni- or which chil- any as of Valley Appellant’s knowing Bank also knew thе current state law. One of the child, adopted knowledgeable I One As a doctor should be status as believe medicine, clearly duty or her fiduciary Bank had a as trends his field of company Appellant to at least inform insurance should new trustee understand potential qualification regulations, the trust his as insurance statutes and a bank beneficiary. changes should be aware of law of depart- estates and trust. Banks and trust contrary, I evidence To the do not find ments deal with trust and on a estate law suggests Appellant ‍‌​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​‌‌​‌​‌​​​‌​‍known should have basis; daily bank customers do not. reasonably should have about the known Leo died in Vorholt and the majority suggests Appellant began paying bank the trust income created inquiry made an should have into his father’s only under Ansel Vorholt’s 1955 will he was dead. estate because knew father stepbrother stepsister, However, Appellant old seventeen appellant, adopted none to the Leo Vorholt’s father died when his and never son. W.Va. 48-4-5 was amended question reason to his father’s estate provide adopted 1959 to children the same Valley Bank him in 1989. It contacted rights of inheritance natural born children. is far from a exрectation “reasonable” opinion Security relied our bank ordinary people spend think time their Willim, National Bank & Trust v. dusty searching circuit court record rooms 429, 153 S.E.2d where we stated agreements they find trust do exist. not know effect at will statutes the time a Therefore, I conclude under the applied. be was written should statute of rule the should begun run in not 1980. But in we overruled held Willim and executed before be trusts 1959 must Lastly, although I believe I with concur construed under W.Va. [1959]. limitations, based on the result statute of Savings Dollar Wheeling See & Trust v.Co. that, regard I conclude obli- to their Hanes, S.E.2d 499 law, gations cognizant major- decision, After the Hanes bank we issued ity opinion strong implication leaves the begun pay should have major banking held institutions will be income, share not. but it did average than people. lower standard Then, 1980, the Ansel Vorholt trust termi ownership nated bank transferred and the STARCHER, Justice, part, concurring, property the estate to the trust benefi dissenting, part: ciaries, including appellant’s stepbrother (Filed 1998) 8, stepsister, again recognizing in the concur result of this case. Howev- re Hanes decision. The did not er, I have reached result would the same enti legally ceive the which he was share application through City Gaither tled. Inc., Hospital, 199 W.Va. 901 487 S.E.2d majority’s Contrary opinion, su- see analyzed discovery rule and pra I 498 S.E.2d at on its effect statutes of limitation. absolutely nothing sug- see the record to say appellant support gest I that while I the result had must that reason I am the evi- 1977 of this concerned that know in or 1980 that the bank finding duty might support jury dence well a that breached towards him. The record negligently simply support bank distributed does notion that trust, thereby creating a 1955 Ansel Vorholt should have evidence “offer[ed] summary question explain of fact that failure tо take mea- would survive his reasonable legal rights judgment. One could find that the sures to ascertain his department year period keep bank’s trust failed estate the nineteen father’s law; agree beginning ending I Justice in 1970 and abreast of 1989.” Workman, hope opinion (emphasis the Court’s W.Va. at added). by majority comment miss- is not read excuse financial institutions This point: period applies. es whole this case revolves around determine what limitation I mishandling appellant’s agree majority 10-year the bank’s of the with the estate, grandfather’s not his father’s estate. statute of limitation found W.Vа. 55- was his father died in living in concerned about how bank West I can think of no reason handling Florida trust account for (like 1970) should have been why 17-year-old a was when deceased, Virginia tion found W.Va. instead 2-7 that the fully agree [1972] does applicable.1 one-year with, “catch-all” apply. majority’s statute of accept, conclusion ^[1959] but do limita- adoptive grandfather he never knew. The step process recognizes The second in the affidavit the record indicates that a statute of limitation is affirmative that he did not even know of the existence of party relying defense. The defendant or grandfather’s trust until 1989 when he period the limitation bears the burden of by Further, was contacted the bank. I find Hence, proving entitlement to the defense. nothing in suggest the record to (1) prove the defendant must when the cause adopted siblings knew his were re- “accrued,” is, of action when all of the ceiving proceeds grandfather’s from his plaintiff elements existed such that the could Hence, account after the death of his father. (2) action, plaintiff have filed an absolutely try he had reason and make period. filed his claim outside the limitation inquiry legal rights. about his Herе, bank showed that its last My reading of the record shows that was potential negligent act was in when it not until 1989 that was first distributed the trust assets a manner con- advised of the results of a title search on the trary Hence, one-year law. statute of disputed property, and “discovered” that he triggered limitation might have a cause of action problem bank. The unfortunate step is that the The third determining involves wheth- discovery counsel waited two and nine er the rule tolls the stat- to file months this action. Normally ute of limitation. a statute of limi- begins tation to run negligent when the act majority’s application of the statutes However, “discovery occurs. under the rule” discovery of limitation and the rule to these plain- the statute of limitation is tolled until a facts, me, simple seems to be backwards. tiff diligence knows or reasonable should majority begins by saying the limitation City Hospi- know of his claim. In Gaither v. period started to run in then tries to tal, Inc., supra, analyzed the Court figure applies, out which statute of limitation rule, interpreting discovery of case law says plaintiff then prove has failed to general guide and stated the for the discov- cause of action was concealеd him ery application rule’s manner: defendants, lastly that he is not entitled to the benefits [U]nder the rule the statute of begins The evaluation of whether a plaintiff case is barred to run when the knows, four-step pro- statute of limitation is a the exercise of reasonable See, Bird, (1) cess. Keesecker v. diligence, should know that the 682-684, injured, S.E.2d 769-771 identity has been step process, entity the first plaintiff duty the court must who owed the to act say any way 1. I applies cannot that I am in comfortable whether statute of limitation even when However, ap- with this conclusion. because the remedy sought specific performance, is rath- pellant failed to brief whether other statute all, damages. er than Most of I am unclear apply, of limitation could the Court declined to fiduciary duty whether a breach of sounds in go any further in its research. Practitioners and (with equity, two-year whether it is a tort judges facing a similar situation should investi- Code, statute of limitation under W.Va. 55-2-12 gate possibility applying the contract stat- [1959]), it or whether is breach of contract ‍‌​‌‌‌‌‌​​‌​‌​‌​​‌​‌‌‌‌‌‌​​‌‌‌​‌‌‌​‌​​‌‌​‌​‌​​​‌​‍limitation, [1923], ute of consider (with ten-year statute of limitation under W.Va. or not whether an individual such as [1923]). argument Whatever is ad- appellant third-party the beneficiary could be considered a vanced, it should advanced at the circuit court to the contract between the bank and Questions the settlor. should also be asked level first. prevented plaintiff from know- care, engaged defendant may have due and who injury.” ing wrong at the time of the duty, that breached conduct quoting 199 W.Va. at 487 S.E.2d entity has a causal that the conduct of Marcum, Syllabus Point Cart v. injury. relation to As Gaither part. This rule is the Syllabus Point clear, this rule from Cart is not the makes application of culmination of seven decades starting point, is the last line of defense but involving defec- discovery rule to cases only applies it in those in- plaintiff; for a doctors, negligent lawyers and products, relationships tive are so where “causal stances miners, privacy-invading that we cannot excuse trespassing well established plaintiff pleads ignorance.” Id. who is not a factual aber- public officials. Gaither malpractice to medical ration nothing the instant I see the record of suggest. majority opinion might claims as the suggests any case which concealment bank, designed to nor action he is In this prosecuting law- from dеter discovery rule. to the benefit of the entitled appellant knew in 1989that he had suit. The facts, However, applying to the Gaither bank, he failed to caused loss appellant’s cause of is still clear that anything prevent him did show the bank is time barred. action the bank Hence, filing action. I do not feel action though cause of Even espoused defense the concealment apparently unaware he was accrued applies. Cart 1989; hence, the action’s existence until discovery rule as announced under the plain conclusion is that the Gaither, tolled the statute of limitation was knew in 1989 that the bank distributed siblings and other benefi- trust assets to his After until 1989. entirely. him He should ciaries and excluded protection, to the rule’s entitled and not waited have filed a lawsuit limitation was one-year and the statute of one-year statute of 1992. Under triggered. limitation, obviously be his claim would step analysis and last The fourth barred.

whether, plaintiff or should once the knows majority’s Accordingly, I concur with the lawsuit, did he has a the defendants know result; to reach to the means used I dissent anything their actions from to conceal that result. acting. him from plaintiff or otherwise deter essentially chance” a “last defense This is As we plaintiff a statute of limitation. Gaither, injury wrong “often an

stated plaintiff that a of such a character

occurs ignorance of the ex- claim

cannot action.” 199 W.Va.

istence of a cause of cases, at 907. those make a

burden shifts by the showing “that some action

strong

Case Details

Case Name: Vorholt v. One Valley Bank

Court Name: West Virginia Supreme Court

Date Published: May 8, 1998

Citation: 498 S.E.2d 241

Docket Number: 23589

Court Abbreviation: W. Va.