(Upshur County 14-C-96)
Alan Reed Talbott, by counsel Stephen A. Wickland, appeals
the August 23, 2017, order of the Circuit Court of Upshur
County denying his motion to alter or amend the judgment
against him in the amount of $85, 000 following a jury trial.
That order also awarded Respondent John David Talbott
attorney's fees and costs. Respondent, by counsel William
J. O'Brien, filed his response, to which petitioner
submitted a reply.
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. For these
reasons, a memorandum decision affirming the circuit
court's order is appropriate under Rule 21 of the Rules
of Appellate Procedure.
and respondent are brothers and were the only children of
Betty June Talbott Santee. After Ms. Santee was hospitalized
in February of 2011, she began residing with petitioner,
where she had a daily caregiver. In February of 2011, she was
found to have short-term memory loss and moderate dementia.
Two deeds dated August 30, 2011, purported to convey all of
Ms. Santee's real estate and mineral interests to
petitioner. Also in August of 2011, Ms. Santee appointed
petitioner as her power of attorney. In addition, Ms. Santee
executed a will in August of 2011 giving respondent $1, 000,
and the remainder of her assets to petitioner upon her death.
In October of 2011, Ms. Santee entered a nursing home where
she received rehabilitation and in February of 2012 she went
to another nursing home where she remained until she passed
away on July 12, 2014, at the age of eighty-eight. Shortly
thereafter, petitioner informed respondent that Ms. Santee no
longer had an estate because all of her assets had been
transferred to petitioner.
filed the instant action on September 8, 2014, in which he
sought to have the deeds declared invalid and set aside as
void because, respondent alleged, that petitioner procured
the deeds through undue influence, duress, and fraud.
Respondent further alleged that petitioner had tortiously
interfered with his inheritance. He alleged that petitioner
"deliberately concealed his efforts to have the [d]eeds
created, executed, and recorded" and that he did so when
Ms. Santee "was not able to understand the nature,
character or effect of what she was doing" due to
dementia and a severely weakened mental and physical state.
Respondent filed two amended complaints to request that the
circuit court declare Ms. Santee's August 31, 2011, will
void and find that petitioner breached his fiduciary duties
to Ms. Santee.
conclusion of the three-day jury trial, the jury found that
petitioner had tortiously interfered with respondent's
expectation of inheritance and breached his fiduciary duties
to their mother. The jury awarded respondent $85, 000 for
tortious interference with a testamentary bequest, and
ordered petitioner to turn over $75, 000 to Ms. Santee's
estate for breach of his fiduciary duty. Based on those
findings, the circuit court declared the deeds and will null
and void and set them aside in its judgment order dated July
13, 2017. The circuit court also set aside the August of 2011
will and directed that an earlier, January 11, 2011, will be
probated. On July 20, 2017, petitioner filed a motion to
alter or amend the judgment order, pursuant to Rule 59 of the
West Virginia Rules of Civil Procedure. In its August 23,
2017, memorandum order, the circuit court denied
petitioner's motion to alter or amend the judgment,
finding that petitioner had waived the defense of the statute
of limitations and that respondent was a successor in
interest to Ms. Santee under the Uniform Partnership Act.
Petitioner appeals from this order.
Rule 59 motion is reviewed under the following standard:
The standard of review applicable to an appeal from a motion
to alter or amend a judgment, made pursuant to W.Va. R. Civ.
P. 59(e), is the same standard that would apply to the
underlying judgment upon which the motion is based and from
which the appeal to this Court is filed.
Syl. Pt. 1, Wickland v. American Travellers Life Ins.
Co., 204 W.Va. 430, 513 S.E.2d 657 (1998). As we
explained in Wickland
Rule 59(e) of the West Virginia Rules of Civil Procedure
permits a party to make "[a] motion to alter or amend
the judgment . . . [within] 10 days after entry of the
judgment." The practical effect of such a motion is to
enlarge the time within which an appeal must be filed as to
those matters which are the subject of the motion. See,
e.g., Syl. pt. 7, James M.B. v. Carolyn M., 193
W.Va. 289, 456 S.E.2d 16 (1995) ("A motion for
reconsideration filed [pursuant to W.Va. R. Civ. P. 59(e) ]
within ten days of judgment being entered suspends the
finality of the judgment and makes the judgment unripe for
appeal. When the time for appeal is so extended, its full
length begins to run from the date of entry of the order
disposing of the motion.").
204 W.Va. at 434, 513 S.E.2d at 661.
appeal, petitioner asserts three assignments of error. First,
he argues that the circuit court erred in permitting a
judgment against him based upon a tort in violation of the
statute of limitations. Petitioner correctly points out that
West Virginia Code § 55-2-12 mandates a two-year statute
of limitations for personal actions not otherwise provided
for, including damages for personal injuries. He contends
that respondent's underlying action was subject to that
two-year statute of limitations, so he filed a motion to
dismiss below. In response, respondent amended his complaint
to allege that petitioner concealed his actions related to
Ms. Santee's execution of deeds and the new will in
August of 2011. However, petitioner argues that respondent
failed to present sufficient evidence that application of the
discovery rule was warranted. He also criticizes the circuit
court's failure to instruct the jury as to the two-year
statute of limitations.
syllabus points two, three, and four of Dunn v.
Rockwell, 225 W.Va. 43, 689 S.E.2d 255 (2009), this
Court addressed the applicability of the discovery rule as
2.The "discovery rule" is generally applicable to
all torts, unless there is a clear statutory prohibition to