REVERSED AND REMANDED
On or about March 1, 1991, the Daveys moved
onto a portion of the 177-acre homestead that was owned by Mr. Haggerty at the
time of his death. The Daveys contend they moved onto the property with the consent
of the estate and that they made major improvements to the property by establishing
a residence, several outbuildings, a well, and a septic system.
On January 12, 1995, a document purporting to be the last will and testament of William H. Haggerty, which was dated November 16, 1988, was presented by Edith Haggerty to the County Clerk's office for entry into probate. The Daveys maintain that they were not provided with notice of the ex parte filing of this document. The document at issue was recorded in the will book of the Office of the Clerk of the Mineral County Commission on January 12, 1995. Under this will, Edith Haggerty was the only named beneficiary.
The Daveys first learned of the existence of the purported will on October 29, 1996, when they received a letter from an attorney for the estate demanding that they vacate the property on which they were residing by midnight of November 30, 1996. They maintain that the county clerk's office never apprised them of the ex parte filing of the document in January 1995.
The Daveys did not discover the fraudulent
nature of the purported will until April 24, 1998. On that date, they were informed
by Gerald B. Richards, a forensics document expert, that the paper on which the
purported will was written was not manufactured until two years after the date
when the will was ostensibly executed.
On or about October 1, 1998, the Daveys filed their complaint with the circuit court, seeking a declaration of the will's fraudulent nature. During the discovery phase of this case, Mr. Richards was deposed. He testified that the will, in his opinion, is a forgery based on the fact that it purports to have been signed on November 16, 1988, but is printed on paper that was first manufactured in 1990.
As additional evidence of the fraudulent nature of the will in question, the Daveys obtained an affidavit from Edward Kennedy. Mr. Kennedy is the General Plant Manager of Southworth Paper Company, the company that manufactured the paper on which the purported will was prepared. In his affidavit, dated December 29, 1999, Mr. Kennedy verified the list of water markings used by Gerald Richards in identifying the manufacture date of the paper on which the purported testamentary document was printed.
When the Appellee estate was asked through a request for admissions if it had any facts with which to contradict the contents of Mr. Kennedy's affidavit, the estate, through counsel, expressly indicated that [t]hey admit that at this time they have no facts to contradict the contents of the Affidavit of Edward Kennedy. To date, Appellants note that the estate has not presented any evidence to dispute the conclusions of Mr. Kennedy or Mr. Richards regarding the paper on which the will held out to be that of Mr. Haggerty was prepared.
Despite the lack of evidence to controvert the evidence suggesting that the purported will was a fraud, the trial court granted the Appellee estate's motion for summary judgment on February 11, 2004, dismissing the case with prejudice. In making this ruling, the trial court concluded that both the six-month statutory period for challenging a probated will (See footnote 1) and the two-year limitations period for asserting a common-law fraud claim (See footnote 2) had passed before the filing of the underlying action.
The Daveys filed motions pursuant to both Rule 59(e) and Rule 60(b) of the West Virginia Rules of Civil Procedure through which they sought to have the trial court reconsider its ruling. On November 8, 2004, the trial court denied the post-judgment motions filed by the Appellants. It is from this denial that the Daveys seek relief.
[a] motion to vacate a judgment made pursuant to Rule 60(b), W.Va.R.C.P., is addressed to the sound discretion of the court and the court's ruling on such motion will not be disturbed on appeal unless there is a showing of an abuse of such discretion. . . . A court, in the exercise of discretion given it by the remedial provisions of Rule 60(b), W.Va.R.C.P., should recognize that the rule is to be liberally construed for the purpose of accomplishing justice and that it was designed to facilitate the desirable legal objective that cases are to be decided on the merits.
213 W.Va. at 760, 584 S.E.2d at 902 (citations omitted).
With these standards in mind, we proceed to determine whether the lower court erred in initially granting summary judgment or in refusing to set aside that ruling upon Appellants' motion for reconsideration.
[m]ere ignorance of the existence
of a cause of action or of the identity of the wrongdoer does not prevent the
running of the statute of limitations; the discovery rule applies
only when there is a strong showing by the plaintiff that some action by the
defendant prevented the plaintiff from knowing of the wrong at the time of the
Applying this law to the facts of this case, the trial court ruled that [p]laintiffs have failed to make any showing, much less a strong showing, that the Defendants concealed anything or in any way prevented the Plaintiffs through the exercise of due diligence from finding the will.
Inexplicably, the trial court charged Appellants
with a duty to know or discover on their own that the purported will was filed
with the county clerk in 1995. (See
footnote 4) Despite the fact that Appellants first had any knowledge
of the purported will in October 1996 when they were instructed to vacate the
property on which they were residing, the trial court found: [T]he fact
that a will surfaced and was recorded in 1995, five years after the testator's
death would be enough to put the Plaintiffs on notice to make inquires [sic]
and ask questions regarding the source of the document. Rather than finding
that Appellants had knowledge of the will's existence before October 1996, the
circuit court based its ruling on the fact that Appellants, or, specifically,
Mrs. Davey as an heir to the estate, had an ongoing interest in this matter
and the incentive . . . to check the status of the estate.
In Jones v. Aburahma, 215 W.Va. 521, 600 S.E.2d 233 (2004), we commented:
the applicable statute of limitation begins to run when the actionable conduct
first occurs, or when an injury is discovered, or with reasonable diligence,
should have been discovered. The discovery rule recognizes the inherent
unfairness of barring a claim when a party's cause of action could not have been
recognized until after the ordinarily applicable period of limitation. Harris
v. Jones, 209 W.Va.
557, 562, 550 S.E.2d 93, 98 (2001). [U]nder the 'discovery rule,' the
statute of limitations is tolled until a claimant knows or by reasonable diligence
should know of his claim.
Jones, 215 at 524, 600 S.E.2d at 236 (footnote and some citations omitted).
In adopting the discovery rule for tortious causes of action in Cart, we clarified that the rule could not merely be employed whenever a potential plaintiff was simply unaware of the existence of a cause of action or the identity of the tortfeasor. 188 W.Va. at 245, 423 S.E.2d at 648. Under Carte, something more than a mere lack of awareness of the injury or the wrongdoer's identity was required to invoke the rule. As we elucidated in Carte, to benefit from the rule, a plaintiff must make a strong showing of fraudulent concealment, inability to comprehend the injury, or other extreme hardship. . . . Id. at 245, 423 S.E.2d at 648 (footnotes omitted).
Later, this Court further clarified the operation of the discovery rule by ruling in syllabus point four of Gaither v. City Hospital, Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997):
In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.
As we explained in Gaither, [t]his rule tolls the statute of limitations
until a plaintiff, acting as a reasonable, diligent person, discovers the essential
elements of a possible cause of action, that is, discovers duty, breach, causation
and injury. 199 W.Va. at 714, 487 S.E.2d at 909. The significance of
our holding in Gaither, as we articulated in McCoy v. Miller, 213
W.Va. 161, 578 S.E.2d 355 (2003), was the expansion of the discovery
rule in terms of clarifying when a plaintiff could be charged with knowing
or having an obligation to know of a potential claim's accrual. See id. at
164-65, 578 S.E.2d at 358-59 (recognizing that, under Gaither, discovery
rule linked running of limitations period with prospective plaintiff's
knowledge, or duty to gain such knowledge, of identity of entity owing plaintiff
duty of care along with causal connection of his/her injury resulting from
breach of that duty of care).
In discussing the changes that Gaither introduced to the application of the discovery rule, we recognized in McCoy that
we did not eliminate the affirmative
duty the law imposes on a plaintiff to discover or make inquiry to discern additional
facts about his injury when placed on notice of the possibility of wrongdoing.
The crux of the discovery rule has always been to benefit those individuals
who were either unaware of their injuries or prevented from discovering them.
See Cart, 188 W.Va. at 244-45, 423 S.E.2d at 647-48; Gaither, 199
W.Va. at 713, 487 S.E.2d at 908 (recognizing that discovery rule has its
origins in the fact that many times an injured party is unable to know of the
existence of any injury or its cause). When this Court augmented the application
of the discovery rule to cases beyond those where the defendant actively
prevent the discovery of the malfeasance, we did not eradicate the rule's additional
objective of benefitting those individuals who were unaware of their injuries
due to no fault of their own.
McCoy, 213 W.Va. at 165, 578 S.E.2d at 359.
In charging the Appellants with a duty to investigate the ex parte filings of documents with the county clerk's office, we believe that the trial court has wrongly imposed a duty where none exists. Within the two-year period that followed their indirect notification of the will's filing _ October 29, 1996 _ the Appellants filed the declaratory judgment action below. (See footnote 5) Consequently, because the Appellants' common law fraud claim was timely filed within the applicable two-year period of limitations, there is no need to apply the discovery rule to this claim. See W.Va. Code § 55-2-12(b) (1959) (Repl. Vol. 2000).
In addition to finding that the two-year statute of limitations had run, the trial court determined that the six-month period for attempting to impeach a will that is imposed by West Virginia Code § 41-5-11 had similarly run before the filing of Appellants' action. By statute, the county clerk was required upon the ex parte filing of a testamentary document to report the filing of the document to the county commission and the county commission then is required by statute to enter an order either admitting or refusing to admit the will to
probate. See W.Va. Code § 41-5-10 (1923) (Repl. Vol. 2004). Although the trial court made a finding that the County Commission and the Clerk of the County Commission followed the probate laws of West Virginia, the record in this case does not support this finding. Counsel for the Appellee estate acknowledged at the hearing on its summary judgment motion that the records in the Office of the Clerk of the County Commission do not speak on the matter as to whether the Clerk did report the ex parte probate of Mr. Haggerty's Will; nor do those records speak as to whether the County Commission did or did not confirm the probate of Mr. Haggerty's Will.
The significance of whether the statutory procedures for the filing of an ex parte document were complied with is that the six-month period that is provided by statute under West Virginia Code § 41-5-11 for impeaching such a will only operates after a judgment or order is filed by the County Commission in conformity with West Virginia Code § 41-5-10. Despite the dearth of evidence on this issue, (See footnote 6) the trial court simply presumed that the County Commission did its statutorily prescribed duty promptly and approved the Clerk's action. Unlike the trial court, we conclude that lack of evidence in the record on the issue of whether the county commission entered an order admitting the purported will to probate leaves this issue of statutory compliance open for debate.
Critically, the facts of this case fall squarely
into the paradigm of those cases where the prospective plaintiff, through no
fault of his or her own, is prevented from knowing of the existence of an actionable
claim. Given the lack of notice that Appellants had with regard to the filing
of the purported will combined with the lengthy passage of time after the death
of Mr. Haggerty before the document was filed, there is no conceivable way (other
than periodically checking on filings) (See
footnote 7) they could have been expected to learn that such document
had been lodged by the administratrix and sole beneficiary under the purported
As we recognized in Morgan v. Grace Hospital, Inc., 149 W.Va. 783, 144 S.E.2d 156 (1965), [t]he basic purpose of statutes of limitations is to encourage promptness in instituting actions; to suppress stale demands or fraudulent claims; and to avoid inconvenience which may result from delay in asserting rights or claims when it is practicable to assert them. Id. at 791, 144 S.E.2d at 161. The facts of this case are devoid of any suggestion that Appellants sat on their rights or could have discovered at an earlier date that the will, which apparently was a sophisticated forgery, was not what it purported to be. Rather than supporting the objectives of the discovery rule, the trial court's ruling unquestionably resulted in an inherent unfairness by denying Appellants the opportunity to pursue their cause of action to set aside what the Appellee estate has essentially admitted to be a fraudulent testamentary document. Harris, 209 W.Va. at 562, 550 S.E.2d at 98. While we appreciate the trial court's concern for promoting finality as to the settling of estates, we believe it is necessary to reverse the outcome in the interests of justice. Given the estate's clear admission of its lack of evidence to contradict the findings of Appellants' expert regarding the authenticity of the will, we cannot uphold the trial court's decision to grant summary judgment to the estate and deny Appellants their day in court.
Based on the foregoing, the decision of the Circuit Court of Mineral County is hereby reversed and remanded for further proceedings.