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Talbott v. Talbott

Supreme Court of West Virginia

June 8, 2018

Alan Reed Talbott, Defendant Below, Petitioner
John David Talbott, Plaintiff Below, Respondent

          (Upshur County 14-C-96)


         Petitioner 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.

         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. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         Petitioner 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.

         Respondent 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.

         At the 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.

         Petitioner's 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.

         On 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.

         In 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 follows:

2.The "discovery rule" is generally applicable to all torts, unless there is a clear statutory prohibition to ...

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