Petition for Writ of Certiorari — Roberts v. Wooton

court, 0.8.

FILED

99 794 NOV 8 - 1999

—OBEICE Ob tik ca

.

cor

No.

IN THE

SUPREME COURT OF THE UNITED STATES

DARRYL J. ROBERTS,

Petitioner,

¥,

BEULAH B. WOOTON, ADMINISTRATRIX

OF THE ESTATE OF ROBERT O. WOOTON,

Respondent.

On PETITION For Writ OF CERTIORARI

To THE SUPREME CouRT OF APPEALS OF WeEsT VIRGINIA

PETITION FOR WRIT OF CERTIORARI

Davip ALLEN BARNETTE *

CHRISTINA T. BRUMLEY

JACKSON & KELLY PLLC

1600 LAIDLEY TOWERS

P.O. Box 553

CHARLESTON, WEST VIRGINIA 25322

(304) 340-1000

Attorneys for Petitioner

* Counsel of Record

BECKER GALLAGHER LEGAL PUBLISHING, INC.,

CINCINNATI, OHIO 800-890-5001

QUESTION PRESENTED

Beulah B. Wooton, as administratrix of the Estate of

Robert O. Wooton, filed a complaint in 1994 on a cause of

action that arose in 1972. In the Circuit Court of Raleigh

County, West Virginia, Darryl J. Roberts, a resident of

Arizona, made a motion for directed verdict at the end of the

Wooton’s case for the circuit court to find that the Wooton’s

claim was time barred by all possible statutes of limitations.

The circuit court granted this motion. The Supreme Court of

Appeals of West Virginia reversed the directed verdict and

remanded the case back to the circuit court.

Has the Supreme Court of Appeals of West Virginia

denied Petitioner his due process right to a meaningful

hearing as required under the Fourteenth Amendment of the

United States Constitution because it refused to enforce the

statute of limitations which vested in him the right to a

complete defense to a claim at least twenty-two years old and

because it created an exception to the statute where none was

provided by the legislature by remanding a case in which

Respondent presented no evidence to justify tolling the

limitations period.

PARTIES TO THE PROCEEDING

Petitioner

Darryl J. Roberts

Respondent

Beulah B. Wooton, Administratrix of the Estate of Robert O.

Wooton

TABLE OF CONTENTS

QUESTION PRESENTED ..... 1... es seeenee i

PARTIES TO THE PROCEEDING ............. li

TAB OF COTES 3. wi ccc ee een ill

TABLE OF AUTHORITIES ..........052545.. iv

oo 4 8 | a ei ae aa l

Sk yg ahd KOS AR Ce ke We l

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED IN THIS CASE ........ l

STATEMENT OF THE CASE .............-..- 2

REASONS FOR GRANTING THE WRIT ........- 7

ge eg sh fin de Ke ee 14

APPENDIX

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SD ae Per rarer aren aca eae ph a 17a

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TABLE OF AUTHORITIES

Cases

Bd. of Educ. of Normal School Dist. v. Blodgett,

40 N.E. 1025 (ill. 1895) ....---- see eee’ 10

Cart v. Marcum,

493 S.E2d 644 (1992) ... 2.2225 cc ceees 3,11

Chardon v. Fumero Soto,

Re Bie me i are aCe ae ae a 9

Chase Sec. Corp. v. Donaldson,

S50) SR AIORS) 6 oe wn cw ee Re )

Gaither v. City Hosp., Inc.,

487 S.E.2d 901 (1997) ... 2.22 eee eee 3,11

Logan v. Zimmerman Brush Co..,

ae 2 eh, 3s: eee ae §.9,10

M’Iver v. Ragan,

ES OS CIS). ok ee ne ee 9

Scaife Co. v. Comm’r. of Internal Revenue,

TP Rg we =) Fly) | ee ee eo ae 9

State v. General Daniel Morgan Post No., 548, V.F.W.,

107 S.E.2d 353 (W. Va. 1959)... 6... eee 10

State v. C.H. Musselman Co.,

59 S.E.2d 472 (W. Va. 1950)... 2... eee eee 10

iV

Stemple v. Dobson,

400 S.E.20 S61 CIDR) ww wc ce tee: 6,11

Texaco, Inc. v. Short v. Walden,

S50 T S&S Bees bees he ea eee i)

The President and Dirs. of the Bank of

the State of Alabama v. Dalton,

RR ec Bk. eee ere eae a ar )

Tulsa Prof’! Collection Servs., Inc. v. Pope,

SOS 4) S OT Tie sk os ee ee eee 8,11

Walter Butler Bldg Co. v. Soto,

97 S.E.2d 275 (W. Va. 1957)... ..--- +--+: - 10

Wilson v. Garcia,

op GR Se Gi: rer eee ee ara 9

Statutes

U.S. Const., amend. XIV, §1 ........---- 22 ees l

W. Va. Come Se Seis os ee ee ces es Z.11

Other authorities

51 Am. Jur. 2d Limitation of Actions § 4 (1970) ..... 10

PETITION FOR WRIT OF CERTIORARI

Darryl J. Roberts respectfully prays that a writ of

certiorari issue to review the order of the Supreme Court of

Appeals of West Virginia entered in this proceeding on

August 9, 1999, in order to decide whether the Supreme

Court of Appeals of West Virginia has violated his

constitutional right to due process under the Fourteen

Amendment of the United States Constitution.

OPINIONS BELOW

The order of the Supreme Court of Appeals of West

Virginia that gives rise to this petition was entered on August

9. 1999. This order is reprinted in the Appendix at Appendix

A at la-3a. The opinion underlying this order will be

published in the South Eastern Reporter, Second Edition, and

a copy of the opinion is reprinted in the Appendix at

Appendix B at 4a-16a. The final order of the Circuit Court of

Raleigh County ordered the Petitioner's motion for directed

verdict be granted. This order is reprinted in the Appendix at

Appendix C at 17a-23a.

JURISDICTION

This Petition for Writ of Certiorari is filed within 90

days of the Supreme Court of Appeals of West Virginia’s

order entered August 9, 1999. The Court’s jurisdiction is

invoked pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED IN THIS CASE

U.S. Const., amend. XIV, § 1

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All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of the

United States and of the State wherein they reside. No State

shall make or enforce any law which shall abridge the

privileges or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

W. Va. Code § 55-2-12

Every personal action for which no limitations

otherwise prescribed shall be brought: (a) Within two years

next after the right to bring the same shall have accrued, if it

be for damage to property; (b) within two years next after the

right to bring the same shall have accrued if it be for damages

for personal injuries; and (c) within one year next after the

right to bring the same shall have accrued if it be for any

other matter of such nature that, in case a party die, it could

not have been brought at commor law by or against his

personal representative.

STATEMENT OF THE CASE

The crux of this case is the State’s interpretation of

West Virginia’s statute of limitations found in W. Va. Code

§ 55-2-12 and the established rules of law construing the word

“accrued” within that statute. The parties to this case agree

that the applicable statute of limitations dictates that the cause

of action shall be brought “[w]ithin two years next after the

right to bring the same shall have accrued.” W. Va. Code §

55-2-12. West Virginia has defined the point at which the

cause of action shall have “accrued” in the following manner:

Generally, a cause of action accrues

(i.e., the statute of limitations begins to run)

when a tort occurs; under the “discovery

rule,” the statute of limitations is tolled until a

claimant knows or by reasonable diligence

should know of the claim.” App. B at Sa

(citing Syllabus Point 2, Gaither_v. City

Hosp., Inc., 487 S.E.2d 901 (1997)).

The “discovery rule” is generally

applicable to all torts, unless there is a clear

statutory prohibition of its application.” App.

B at Sa (citing Syllabus Point 3, Gaither _v.

City Hosp., Inc., 487 S.E.2d 901 (1997)).

Mere 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 injury.” App. Bat 5a

(citing Syllabus Point 3, Cart v. Marcum, 423

S.E2d 644 (1992)).

The facts center around Robert Wooton’s, aS an

employee of Associated Cemetery Estates, Inc.' (“ACE”),

being offered the opportunity to purchase 400 shares

(“Shares”) of ACE stock by Chester Roberts, a primary

owner of ACE. App. B at 7a. Robert Wooton accepted this

offer on January 4, 1960, and signed a promissory note

‘ Legacy One is the successor corporation to ACE.

3

(“Note”) to pay for the Shares. Id. The Note promised the

payment of $8,000.00 in ten equal installments at an annual

interest rate of four percent, and the Shares were held by

Chester Roberts as collateral for the Note. Id. at 8a. Robert

Wooton died on March 8, 1969. Id.

On October 8, 1971, Beulah Wooton, the widow of

Robert Wooton, received a letter from Chester Roberts

informing her that her husband had been in default of the Note

at the time of his death for failure to make payment and

offering a check in the amount of $4,000.00 to purchase the

equity in the Shares. Id. Beulah Wooton did not cash or

return the check. Id.

On March 27, 1972, Chester Roberts informed the

secretary of ACE that he had purchased Robert Wooton’s

Shares and requested a new stock certificate to be issued in his

name for the Shares. Id. at 8a. The secretary issued this new

certificate, which Chester Roberts then gifted to Darryl

Roberts, his son and a resident of Arizona, in 1976. Id. at 9a.

Chester Roberts died in 1980. Id. Darryl Roberts

subsequently gifted these Shares to his wife in 1987, and they

were sold to Stewart Enterprises, Inc. in 1994.

Upon his father’s death, Darryl Roberts became

president and chief executive officer of ACE, and in January

1985, Darryl Roberts sent a letter to Bill Wooton. Id. at 9a;

App. E at 27a. Bill Wooton is one of the sons of Robert

Wooton, a West Virginia State Senator and Chairman of the

West Virginia Senate Finance Committee. In the letter,

Darryl Roberts discussed his father’s purchase of the Shares

and Robert Wooton’s default on the Note. App. E at 27a.

Darryl Roberts also renewed his father’s offer to pay

$4,000.00 plus five percent per year since his father’s offer

was first made. App. B at 9a; App. E at 28a. Bill Wooton

4

forwarded this offer to his brother, James Wooton, also an

attorney. App. B at 9a. James Wooton responded with a

counter-offer; Darryl Roberts rejected the counter-offer and

reinstated his previous offer. Id.

On June 3, 1986, Bill Wooton acquired shares of

ACE, now Legacy One. Id. He then executed under oath a

Legacy One Shareholders’ Agreement which was by and

between Legacy One and all the Shareholders. Id. at 10a,

App. D at 24a-26a. A provision of the Agreement listed all

the shareholders’ names. Id. Neither Robert Wooton’s name

nor his estate’s was on this agreement. Id.

Settlement negotiations continued through 1994. In

November 1994, Beulah Wooton was named Administratrix

of Robert Wooton’s estate, and she filed a complaint against

Darryl Roberts and Legacy One. App. Bat 10a. At the close

of the Respondent’s case, Petitioner and Legacy One moved

for directed verdict based on the running of the statutes of

limitations. The judge of the Circuit Court of Raleigh County

granted the motion finding that Respondent knew or should

have known of the causes of action as of March 27, 1972, the

date Chester Roberts took ownership of the Shares. App. .

at 23a.

In his order the judge made the following findings of

fact and conclusions of law. Although the correspondence in

1971 put Beulah Wooton on notice that her husband had been

in default, March 27, 1972, was the critical date, as that was

the date the Shares had been transferred to Chester Roberts.

Id. at 19a. From that date, Beulah Wooton was on notice that

the transfer had occurred because she did not enjoy any of

the benefits associated with possession of the Shares and she

had nothing that would indicate ownership or possession of

the Shares. Id. at 20a. For example, she never received

5

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notice of shareholders’ meetings and she never received any

dividend checks. Id. Although she claimed that she believed

that dividends were being applied directly to the Note, this did

not create an issue of fact as to whether she should have

known that the Shares had been transferred. Id. at 20a-21a.

The common law rules of discovery state that lack of action,

lack of interest, or misunderstanding of the law does not

create a discovery issue. Id. at2la. For thirteen years and

until 1985, the Wootons paid no attention to the Shares.

When Darryl Roberts succeeded his father as president at

ACE, he had to reconstruct the events that took place when

Robert Wooton and Chester Roberts were alive. Id. at 21a;

App. E at 27a. In 1985 and upon contact by Darryl Roberts,

the Wootons began to make inquiries into the Shares, and

James Wooton acted as agent to Beulah Wooton in settlement

negotiations. App. C at 22a. James Wooton possessed

enough information to know that either Chester Roberts or

ACE had done something with the Shares. Id. The common

law rules of discovery hold that mere ignorance of the

existence of the cause of action or the identity of the

wrongdoer does not prevent the running of the statute of

limitations. Id. The discovery rule applies only when there

is a strong showing that some action by the defendant

prevented the plaintiff from knowing of the wrong at the time

of the injury. Id. at 22a-23a. Because the court found no

element of fraud nor any issue of fact that permitted the

application of the discovery rule, the circuit court judge held

that the statute of limitations had run and directed verdicts in

favor of the Petitioner and Legacy One. Id. at 23a.

The Supreme Court of Appeals of West Virginia cited

the same common law rules of discovery as the circuit court.

It also cited the common law rule found in Syllabus Point 3,

Stemple v. Dobson, 400 S.E.2d 561 (1990), that .

Where a cause of action is based on tort

or on a claim of fraud, the statute of

limitations does not begin to run until the

injured person knows, or by the exercise of

reasonable diligence should know, of the

nature of his injury, and determining that point

in time is a question of fact to be answered by

the jury.

App. B at Sa. Although the judge of the Circuit Court of

Raleigh County found that the Respondent did not present

even a scintilla of evidence that Petitioner or Legacy One did

something to prevent Respondent from knowing or inquiring

into the status of the Shares, thus not presenting evidence

sufficient to invoke the common law rule of discovery, App.

C at 23a, the Supreme Court of Appeals of West Virginia

found that the jury should decide the point in time when

Respondent should have known that Petitioner claimed

ownership of the Shares. App. B at 16a. Therefore, the

Supreme Court of Appeals of West Virginia reversed the

directed verdicts and remanded the case. App. A at la- 3a.

REASONS FOR GRANTING THE WRIT

The order of the Supreme Court of Appeals of West

Virginia has violated the due process rights of

Petitioner because it denied him the right to a

meaningful hearing by refusing to enforce the

statute of limitations as intended by the West

Virginia State Legislature.

The order of the Supreme Court of Appeals of West

Virginia violated Petitioner's constitutional right to due

process of law under the Fourteenth Amendment of the United

States Constitution because it refused to follow the well-

7

Non treme 1 Ts

established statute of limitations. Certiorari is appropriate

here because this refusal denied Petitioner the right to a

hearing granted at a meaningful time and in a meaningful way

appropriate to the nature of the case.

Although the concept of statutes of limitations is

consistent with due process of law, these statutes must be

enforced with consistency and with certainty. Courts are not

permitted to selectively enforce statutes of limitations, and

they are not permitted to make exceptions where none existed

in the statute. To do so is to violate due process of law.

The enforcement of statutes of limitations is consistent

with due process of law, because the states have an interest in

providing repose to potential defendants and avoiding stale

claims. Logan v. Zimmerman Brush Co., 455 U.S. 422, 437

(1982); Tulsa Prof’| Collection Servs., Inc. v. Pope, 485 U.S.

478, 486 (1988). In the words of this Court:

Statutes of limitation find their

justification in necessity and convenience

rather than in_ logic. They represent

expedients, rather than principles. They are

practical and pragmatic devices to spare the

courts from litigation of stale claims and the

citizen from being put to his defense after

memories have faded, witnesses have died or

disappeared, and evidence has been lost. They

are by definition arbitrary and their operation

does not discriminate between the just and the

unjust claim or the voidable and unavoidable

delay. They have come into the law not

through the judicial process but through

legislation. They represent a public policy

about the privilege to litigate.

8

Chase Sec. Corp. V. Donaldson, 325 U.S. 304, 314 (1945).

See_also Wilson Vv. Garcia, 471 U.S. 261, 271 (1985) (“In

compelling circumstances, even wrongdoers are entitled to

assume that their sins may be forgotten.”).

However, statutes of limitations do have constitutional

constraints. First, to comply with due process of law, the

states must enact statutes of limitations which are reasonable

and certain, Logan, 455 U.S. at 437: Wilson, 471 U.S. at

261. This Court has held that “[flew areas of the law stand

in greater need of firmly defined, easily applied rules than

does the subject of periods of limitations.” Wilson, 471 U.S.

at 266 (citing Chardon v. Fumero Soto, 462 U.S. 650, 667

(1983) (Rehnquist, J., dissenting)). This Court explained that

without certainty “Idjefendants cannot calculate their

contingent liabilities, not knowing with confidence when their

delicts lie in repose.” Wilson, 471 U.S. at 271, 0.34.

Second, states, through their courts, may not find

exceptions to the statutes of limitations that have not been

enacted by the legislature. Even though the results of an

individual case under the applicable statute of limitations may

be harsh, the courts may not make an exception to the law.

Scaife Co. v. Comm’r. of Internal Revenue, 314 U.S. 459,

463. It has been the rule since 1817 that where the legislature

has made no exception, the courts can make none. M’lver Vv.

Ragan, 15 U.S. 25, 29, 30 (1817); The President and Dirs. of

the Bank of the State of Alabama_v. Dalton, 50 U.S. 522

(1850).

Finally, once a state has established a statute of

limitations, it may not revoke it without notice. Texaco, Inc.

y. Short v. Walden, 454 U.S. 516, 534 (1982). It has long

been established that the right to assert statutes of limitations

as a complete defense becomes a vested right within the

9

protection of the constitutional guaranty of due process of

law. 5) Am. Jur. 2d Limitation of Actions § 4 (1970); Bd. of

Educ. of Normal School Dist. v. Blodgett, 40 N.E. 1025,

1026 (Ill. 1895). Because “due process of law” and “law of

the land” are one in the same, due process requires that laws

that are in effect must be enforced. Id. at 1026. See also

Walter Butler Bldg Co. v. Soto, 97 S.E.2d 275, 287 (W. Va.

1957). And the courts must enforce the law in a manner

consistent with the intent and the word of the legislature. In

the words of even the Supreme Court of Appeals of West

Virginia:

It is the duty of the courts to give a

statute the interpretation called for by its

language when this can reasonably be done . .

_. It is not the province of the courts to make

or supervise legislation, and a statute may not,

under the guise of interpretation, be modified,

revised, amended, distorted, remodeled, or

rewritten, or given a construction of which its

words are not susceptible, or which is

repugnant to its terms which may not be

disregarded.

State v. General Daniel Morgan Post No., 548, V.F.W., 107

S.E.2d 353 (W. Va. 1959). See also State _v. C.H.

Musselman Co., 59 S.E.2d 472, 477-78 (W. Va. 1950).

The bottom line is that due process of law requires that

parties must be provided “an opportunity . . . granted at a

meaningful time and in a meaningful way for a hearing

appropriate to the nature of the case.” Logan, 455 U.S. at

437 (citations omitted). When these basic requirements are

respected, “(t]he State’s limited involvement in the running of

the time period generally falls short of constituting the type of

10

state action required to implicate the protections of the Due

Process Clause.” Tulsa Prof’ Collection Servs., Inc., 485

US. at 486. However, the State of West Virginia became

involved in significant state action when it chose to ignore the

statute of limitations in its order below.

The State of West Virginia has complied with the

requirements of enacting a reasonable and certain statute of

limitations. West Virginia Code § 55-2-12 states that

“(e]very personal action for which no limitations otherwise

prescribed shall be brought . . . [w]ithin two years next after

the right to bring the same shall have accrued, if it be for

damage to property.” The Supreme Court of Appeals of West

Virginia has given “accrued” appropriate construction. A

cause of action accrues when the injury occurs, unless the

statute is tolled until the claimant knows or by reasonable

diligence should know of the claim. App. B at 5a (citing

Syllabus Point 2, Gaither Vv. City Hosp. Inc., 487 S.E.2d 901

(W. Va. 1997)). However, mere ignorance of the existence

is not reason to toll the statute, discovery applies only when

the claimant has made a strong showing that the defendant has

prevented claimant from learning of the injury. Id. (citing

Syllabus Point 3, Cart v. Marcum, 423 S.E.2d 644 (W. Va.

$$$

1992)). If the cause of action is based on fraud, when the

claimant knows or by reasonable diligence should know is a

question for the jury. Id. (citing Syllabus Point 3, Stemple v.

Dobson, 400 S.E.2d 561 (W. Va. 1990)).

Until the Supreme Court of Appeals of West Virginia

issued its order below, the statute and the court’s

interpretation of the statute were also certain and reasonable.

The parties agreed to the two-year statute of limitations, the

Circuit Court of Raleigh County applied the same discovery

rules cited in the opinion of the Supreme Court of Appeals of

West Virginia. While the circuit court found that Respondent

11

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ea elon cacaand oats. races

had presented no evidence sufficient to raise the issue of

discovery, the Supreme Court of Appeals of West Virginia

remanded this case to permit the Respondent to retry her case

and contrive evidence of fraud against the Petitioner where no

evidence existed before.

In issuing its order below the Supreme Court of

Appeals of West Virginia has attempted to make an exception

to the statute established by the West Virginia Legislature. In

doing so, the State has attempted to destroy the concept of

statutes of limitations and deprive Petitioner, a citizen of

another state, of due process of law by denying him his right

to defend his property at a hearing held at a meaningful time

and in a meaningful way. The people who had first hand

knowledge of the events giving rise to the cause of action

have passed away: Robert Wooton, the maker of the Note,

died twenty-five years prior to the filing of the complaint and

Chester Roberts, the holder of the Note, died fourteen years

before the filing of the complaint. App. B at 8a, 9a.

Respondent had reason to investigate the title of the assets of

her husband’s estate upon his death and certainly upon contact

by Chester Roberts, notifying her of Robert Wooton’s default

on the Note. Id. at 8a. Instead, she chose to neglect any right

the estate may have had to the Shares. After Chester Roberts’

death and fourteen years after Chester Roberts first contacted

Respondent, Petitioner was left to reconstruct the events of

which he had no direct knowledge. Although he was not in

possession of all the facts, Petitioner wrote a letter to Bill

Wooton, the son of Respondent who is a West Virginia State

Senator and Chairman of the West Virginia Senate Finance

Committee, in an attempt to resolve the issues surrounding the

Shares. App. E at 27a. This letter clearly stated that Chester

Roberts claimed possession of the Shares. Id. Bill Wooton

shared this information with his brother, James Wooton, who

acted as agent for the Respondent. App. C at 22a. Again, the

12

Respondent neglected any right the estate may have had to the

Shares. Then in 1986, Bill Wooton executed a Shareholders’

Agreement, which on the front page listed all the shareholders

of Legacy One. App. D at 24a-25a. The name of Robert

Wooton or the Estate of Robert Wooton is clearly not

contained in this list. Id. Twenty-two years after Chester

Roberts claimed ownership of the Shares and nine years after

Petitioner again asserted Iiis father’s claim to the Shares,

Respondent decided to file a cause of action.

West Virginia has well-established rules for the tolling

of statutes of limitations: the plaintiff in a case must produce

evidence of a “strong showing that some action by the

defendant prevented the plaintiff from knowing of the wrong

at the time of the injury.” The circuit court found that, not

only did she not make a “strong showing,” Respondent

produced no evidence to invoke the discovery rules. App. C

at 23a. Conversely, Petitioner produced overwhelming

evidence that the Respondent knew or should have known that

Chester Roberts claimed ownership of the Shares. Petitioner

directly told the Respondent through her agent that his father

acquired the Shares in 1985. App. E at 27a. Even though

the point in ume from which the statute of limitations begins

to run is a question for the jury in causes of action based on

tort or fraud, Respondent must produce evidence sufficient to

give the question to the jury. Again, the circuit court clearly

found that the Respondent did not produce even a scintilla of

evidence to invoke the discovery rules. App. C at 23a. Now,

the Supreme Court of Appeals has ordered this case to be

remanded, giving Respondent the opportunity to retry the case

and to attempt to produce such sufficient evidence. App. A

at la-3a. This state action is in violation of Petitioner’s right

to due process of law.

13

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CONCLUSION

Because at least twenty-two years passed between the

cause of action arising and the complaint being filed and the

Respondent presented no evidence that either Petitioner or

Legacy One prevented Respondent from knowing or learning

that the Shares had been transferred, the Supreme Court of

Appeals of West Virginia has issued an order in contravention

to the mandates of the West Virginia State Legislature. It has

created an exception to the rule where none was provided by

the State Legislature. In doing so, the State has required the

citizen of another state to defend a claim so stale that

witnesses have indeed died, memories have certainly faded

and evidence has surely been lost. By neglecting her claim

for twenty-two years, Respondent has waived her right to

litigate. Instead of refusing this cause of action, the State has

resurrected it, permitting the Respondent to retry a case and

present evidence where none existed before. For these

reasons heretofore stated, the State of West Virginia has

deprived Petitioner of due process of law under the

Fourteenth Amendment of the United States Constitution;

therefore, this Petition for Writ of Certiorari should be

granted.

/s/

DAVID ALLEN BARNETTE, ESQ.

Counsel of Record

Christina T. Brumley, Esq.

Jackson & Kelly PLLC

1600 Laidley Tower

P.O. Box 553

Charleston, WV 25322

(304) 340-1327

14

APPENDIX A

{Court of Appeals Order - 8/9/99]

No. 25834

STATE OF WEST VIRGINIA

IN THE SUPREME COURT OF APPEALS

IN VACATION

BEULAH B. WOOTON,

ADMINISTRATRIX OF THE

ESTATE OF ROBERT O.

WOOTON,

Plaintiff Below, Appellant

DARRYL J. ROBERTS

AND LEGACY ONE, INC.

(FKA ASSOCIATED

CEMETERY ESTATES, INC.),

Defendants Below, Appellees )

)

)

)

)

)

)

)

Vv. )

)

)

)

)

)

The Court having maturely considered the record and

the oral argument and briefs of counsel thereon, is of opinion

for reasons stated in writing and filed with the record that

there is error in the ruling of the C ircuit Court of Raleigh

County, rendered on 17" day of April, 1998. It is therefore

considered and ordered by the Court that said ruling be, and

it hereby is, set aside, reversed and annulled, and that the

appellant, Beulah B. Wooton, Administratrix of the Estate of

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Court of Appeals Order - 8/9/99

Robert O. Wooton, do recover of and from the appellees,

Darry! J. Roberts and Legacy One, Inc., (f/k/a Associated

Cemetery Estates, Inc.), her costs about the prosecution of her

appeal in this Court in her behalf expended. AND this action

is remanded to the Circuit Court of Raleigh County for a trial

wherein the jury should resolve the issue of whether the

appellant’s claims are barred by the statute of limitations as

well as the appellant’s allegations of breach of fiduciary duty,

constructive fraud and unjust enrichment, all in accordance

with the principles stated and directions given in the written

opinion aforesaid and further according to law; all of which

is ordered to be certified to the Circuit Court of Raleigh

County.

The syllabus of points adjudicated, prefixed to the

written opinion aforesaid, prepared Per Curiam, was

concurred in by Chief Justice Starcher and Justices Workman,

Davis, Maynard and McGraw.

DONE IN VACATION of the Supreme Court of

Appeals, this 9" day of August 1999.

Honorable Larry v. Starcher, Chief Justice

Honorable Margaret L. Workman

Honorable Robin Jean Davis

Honorable Elliot E. Maynard

Honorable Warren R. McGraw

Court of Appeals Order - 8/9/99

this 9" day of August,

Received the foregoing order

Book No. 132.

1999, and entered the same in Order

A True Copy

/s/ Deborah L. McHenry

Clerk, Supreme Court of Appeals

Attest:

APPENDIX B

IN THE SUPREME COURT OF APPEALS

OF WEST VIRGINIA

[Filed July 9, 1999]

Plaintiff, Appellant

Case No. 25834

BEULAH B. WOOTON,

ADMINISTRATRIX OF THE

) ESTATE OF ROBERT O.

| WOOTON,

V.

DARRYL J. ROBERTS

AND LEGACY ONE, INC.

(FKA ASSOCIATED

CEMETERY ESTATES, INC.),

Defendants, Appellees

Nee eee eee eee ee eee ee”

Appeal from the Circuit Court of Raleigh County

Honorable Robert A. Burnside, Jr., Judge

Civil Action No. 94-C-777-B

REVERSED AND REMANDED

Submitted: June 8, 1999

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Court of Appeals Opinion - 7/9/99

SYLLABUS BY THE COURT

1. “*Generally, a cause of action accrues (i.e., the

statute of limitations begins to run) when a tort occurs, under

the ‘discovery rule,’ the statute of limitations is tolled until a

claimant knows or by reasonable diligence should know of the

claim.’ Syllabus Point 1, Cart v. Marcum, 188 W.Va. 241,

423 S.E.2d 644 (1992).” Syllabus Point 2, Gaither v. City

Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).

2. “The ‘discovery rule’ is generally applicable

to all torts, unless there is a clear statutory prohibition of its

application.’ Syllabus Point 2, Cart v. Marcum, 188 W.Va.

241, 423 S.E.2d 644 (1992).” Syllabus Point 3, Gaither v.

City Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997).

a “Mere 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 injury.” Syllabus

Point 3, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644

(1992).

4. “Where a cause of action is based on tort or on

a claim of fraud, the statute of limitations does not begin to

run until the injured person knows, or by the exercise of

reasonable diligence should know, of the nature of his injury,

and determining that point in time is a question of fact to be

answered by the jury.” Syllabus Point 3, Stemple v. Dobson,

184 W.Va. 317, 400 S.E.2d 561 (1990).

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Court of Appeals Opinion - 7/9/99

a “*“*Upon a motion to direct a verdict for the

defendant, every reasonable and legitimate inference fairly

arising from the testimony, when considered in its entirety,

must be indulged in favorably to plaintiff; and the court must

assume as true those facts which the jury may properly find

under the evidence. Syllabus, Nichols v. Raleigh-Wyoming

Coal Co.,112 W.Va. 85[, 163 S.E. 767 (1932).’” Point 1,

Syllabus, Jenkins v. Chatterton, 143 W.Va. 250[, 100 S.E.2d

808] (1957).’ Syl. Pt. 1, Jividen v. Legg, 161 W.Va. 769,

245 S.E.2d 835 (1978).” Syllabus Point 2, Brannon v. Riffle,

197 W.Va. 97, 475 S.E.2d 97 (1996).

6. “The appellate standard of review for the

granting of a motion for a directed verdict pursuant to Rule 50

of the West Virginia Rules of Civil Procedure is de novo. On

appeal, this court, after considering the evidence in the light

most favorable to the nonmovant party, will sustain the

granting of a directed verdict when only one reasonable

conclusion as to the verdict can be reached. But if reasonable

minds could differ as to the importance and sufficiency of the

evidence, a circuit court's ruling granting a directed verdict

will be reversed.” Syllabus Point 3, Brannon v. Riffle, 197

W.Va. 97, 475 S.E.2d 97 (1996).

Per Curiam:

This case is before this Court upon appeal of a final

order of the Circuit Court of Raleigh County entered on April

17, 1998. In that order, the circuit court directed verdicts in

favor of the appellees and defendants below, Darryl J.

Roberts and Legacy One, Inc., in an action filed by the

plaintiff, Beulah Wooton, administratrix of the Estate of

Robert Wooton, alleging breach of fiduciary duty and

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Court of Appeals Opinion - 7/9/99

constructive fraud with regard to corporate stock owned by

her deceased husband. The circuit court found that the action,

which was filed more than twenty years after the stock was

allegedly transferred from the decedent's estate, was barred

by the statute of limitations. In this appeal, the plaintiff

contends that the circuit court erred by directing verdicts in

favor of the appellees because she was entitled to the benefit

of the “discovery rule.”

This Court has before it the petition for appeal, the

entire record, and briefs and argument of counsel. For the

reasons set forth below, the final order of the circuit court is

reversed and this case is remanded for further proceedings.

Robert O. Wooton began working for Associated

Cemetery Estates, Inc. (hereinafter “ACE” or “Legacy One”™'

in 1956. At that time, ACE, a cemetery and funeral home

business, was owned by Chester and Marzetta Roberts. In

1959, ACE offered seven of its “key” employees the

opportunity to purchase 400 shares of ACE stock. Robert

Wooton was one of the employees to whom stock ownership

was offered.

On January 4, 1960, stock was transferred to the ACE

employees by a Stock Agreement. Pursuant to the agreement,

each employee signed a promissory note to pay for his or her

shares of stock. According to the plaintiff, she and her

' Legacy One is the successor corporation to ACE.

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Court of Appeals Opinion - 7/9/99

husband understood that the stock would be paid for by future

dividends and directors’ fees.

The promissory note signed by Robert Wooton stated

that he “promise[d] to pay to the order of Chester G. Roberts

.. . Eight Thousand Dollars ($8,000.00) in Ten (10) equal

installments.” The obligation bore an annual interest rate of

4% and the share certificates were deposited as collateral

security for the payment of the note. Thus, neither Robert

Wooton nor any of the other ACE employees had physical

possession of the stock certificates.

On March 8, 1969, Robert Wooton died. More than

two years later, the plaintiff received a letter dated October 8,

1971, from Chester Roberts informing her that her husband

had been in default under the terms of the promissory note at

the time of his death because he had failed to make the

scheduled principle and interest payments. The letter further

stated that “[iJn accordance with our conversation of October

7, 1971,* | am enclosing a check in the amount of $4,000.00

to purchase Bob’s estate equity in Certificates No. 7 and 18.”

After receiving this letter, the plaintiff informed Chester

Roberts that his offer was inadequate. She neither cashed,

nor returned the check.

On March 24, 1972, Chester Roberts sent a letter to

ACE's secretary, Mary Frances Koop, informing her that he

had purchased Robert Wooton’s :.sck at a private sale. He

requested that she issue a new stock certificate to him in the

amount of 400 shares. The next day, Mary Roop issued a

* The plaintiff has no recollection of any such conversation.

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Court of Appeals Opinion - 7/9/99

new certificate for 400 shares of ACE stock to Chester

Roberts and canceled the certificates issued to Robert

Wooton. Thereafter, Chester Roberts gave the stock he

repurchased from Robert Wooton to his son, Darryl Roberts,

as a Christmas present in 1976.

Chester Roberts died in 1980, and Darry! Roberts

became the president and chief executive officer of ACE. In

January 1985, Darryl Roberts approached Bill Wooton, one

of Robert Wooton’s sons, to discuss the status of his father’s

stock. At that time, Darryl Roberts stated that Robert

Wooton had failed to make the required principal and interest

payments on the note. He renewed his father’s previous offer

to buy the stock for $4000.00 plus an additional 5% interest

per year since the initial offer was made.

Bill Wooton forwarded this information to his brother,

James Wooton, who was living in Baltimore, Maryland, with

a letter stating, “I believe they discontinued dividends at his

death, even though daddy or his estate still owned the stock.”

James Wooton responded to Darryl Robert’s offer with a

counterproposal on February 7, 1985. Darryl Roberts rejected

the counteroffer and simply reinstated his previous offer.

On June 3, 1986, Bill Wooton, who had acquired 9.25

shares of Legacy One stock in exchange for legal services

previously rendered to an affiliate of ACE,’ executed a

Legacy One Shareholders Agreement.’ The agreement listed

3 Bill Wooton is an attorney.

+ In 1986, the assets and liabilities of ACE and a number

of affiliates were transferred to Legacy One and the shareholders of

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Court of Appeals Opinion - 7/9/99

the names of all Legacy One shareholders as of May 28,

1986. Bill Wooton’s name appeared on the document as

owning 9.25 shares. However, neither Robert Wooton nor

his estate’s name appeared on the list as a shareholder. Bill

Wooton later claimed that he executed the agreement without

reading the document and without knowledge that his father

was not included as a shareholder.

In the 1990s, various offers to settle the matter were

made between Legacy One and James Wooton. On July 18,

1994, Legacy One made a final offer to settle the matter for

$12,000.00. That offer was rejected.

On November 9, 1994, the plaintiff was named as

Administratrix of Robert Wooton’s Estate. She filed a

complaint against Darryl Roberts and Legacy One on

November 28, 1994, claiming, inter alia, breach of fiduciary

duty and constructive fraud relating to her husband’s stock.

During the course of litigation, several summary judgment

motions were filed by the appellees asserting that the

plaintiff's claims were barred by the statute of limitations.

These motions were denied.

The case proceeded to trial before a jury on March

24-26, 1998. At the close of the plaintiff's presentation of

evidence, the appellees moved for directed verdicts pursuant

to Rule 50(a) of the West Virginia Rules of Civil Procedure.

They claimed that the plaintiff knew or should have been on

notice by at least February 1985, that her husband’s stock had

been transferred. They further asserted that if the plaintiff

ACE and the affiliates were issued stock in Legacy One.

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Court of Appeals Opinion - 7/9/99

had made a reasonable inquiry, she would have learned that

the stock had been repurchased by Chester Roberts. Thus,

the appellees maintained that the plaintiff failed to show that

she was entitled to the benefit of the discovery rule, and

therefore, her claims were barred by the statute of limitations.

The trial court accepted the arguments of the

appellees, finding that the plaintiff had sufficient information

by 1972 to know that something had happened to cause her

not to have the enjoyment of possession of the stock. In

addition, the trial court found that by 1985, the plaintiff's

sons had the same knowledge. The trial court further found

that the plaintiff had not offered sufficient evidence to create

an issue of fact as to whether either of the appellees did

something to prevent her from knowing or finding out what

happened to her husband’s stock. Thus, the court concluded

that the discovery rule was not applicable and that there were

no other issues of fact. Accordingly, the motions for directed

verdicts were granted in favor of both appellees on all counts

based on the statute of limitations. A final order reflecting the

trial court’s ruling was entered on April 17, 1998. This

appeal followed.

Il.

The plaintiff contends that the circuit court erred by

directing verdicts for the appellees based on the statute of

limitations. She maintains that the discovery rule applies and

that she did not have notice of the stock transfer until 1994.

In support of her assertions, the plaintiff has presented letters

showing that the appellees made offers to purchase her

husband’s stock through the early 1990s. She contends that

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Court of Appeals Opinion - 7/9/99

the appellees did not claim ownership of the stock until 1994.

The parties basically agree that a two-year statute of

limitations applies in this case.° “‘Generally, a cause of

action accrues (i.e., the statute of limitations begins to run)

when a tort occurs; under the ‘discovery rule,’ the statute of

limitations is tolled until a claimant knows or by reasonable

diligence should know of his claim.’ Syllabus Point 1, Cart

v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).”

Syllabus Point 2, Gaither v. City Hosp., Inc., 199 W.Va.

706, 487 S.E.2d 901 (1997). “‘The ‘discovery rule’ is

generally applicable to all torts, unless there is a clear

statutory prohibition of its application.’ Syllabus Point 2,

Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992).”

Syllabus Point 3, Gaitherv. City Hosp., Inc., 199 W.Va. 706,

487 S.E.2d 901 (1997). However, we have recognized that

there are some instances where the discovery rule should not

be applied because the nature of the injury or wrong is such

that a plaintiff could not reasonably claim ignorance of the

existence of a cause of action. In that regard, we have held

that:

Mere 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 injury.

° Darryl Roberts concedes that a five year statute of

limitations may apply to the plaintiff's claim of unjust enrichment

and request for specific performance.

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Court of Appeals Opinion - 7/9/99

Syllabus Point 3, Cart v. Marcum, 188 W.Va. 241, 423

S.E.2d 644 (1992).

Relying upon our holding in Syllabus Point 3 of Cart,

supra, the appellees assert that the plaintiff knew or should

have been on notice by at least February 1985 that her

husband’s stock had been transferred. They assert that a

reasonable inquiry by the plaintiff would have revealed this

fact. Moreover, they contend that the plaintiff has failed to

show that any actions on their part kept her from discovering

that the stock had been transferred.

In Syllabus Point 3 of Stemple v. Dobson, 184 W.Va.

317, 400 S.E.2d 561 (1990), we held that:

Where a cause of action is based on tort or on a claim

of fraud, the statute of limitations does not begin to run until

the injured person knows, OF by the exercise of reasonable

diligence should know, of the nature of his injury, and

determining that point in time is a question of fact to be

answered by the jury.

In Stemple, the plaintiffs brought an action for breach

of contract and fraudulent concealment of termite damage

against the former owners of their home. The circuit court

granted summary judgment in favor of the defendants based

on the statute of limitations. On appeal, this Court reversed

the decision of the circuit court finding the issue of when the

claim accrued for purposes of the statute of limitations was a

question of fact for the jury.

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Court of Appeals Opinion - 7/9/99

In this case, the circuit court granted the appellees’

motions pursuant to Rule 50(a) of the West Virginia Rules of

Civil Procedure which provides:

(a) Judgment as a matter of law. -- (1) If during a

trial by jury a party has been fully heard on an issue and there

is no legally sufficient evidentiary basis for a reasonable jury

to find for that party on that issue, the court may determine

the issue against that party and may grant a motion for

judgment as a matter of law against that party with respect to

a claim or defense that cannot under the controlling law be

maintained or defeated without a favorable finding on that

issue.

In Syllabus Points 2 and 3 of Brannon v. Riffle, 197

W.Va. 97, 475 S.E.2d 97 (1996), this Court held that:

“*“Upon a motion to direct a verdict for the defendant,

every reasonable and legitimate inference fairly arising from

the testimony, when considered in its entirety, must be

indulged in favorably to plaintiff; and the court must assume

as true those facts which the jury may properly find under the

evidence. Syllabus, Michols v. Raleigh-Wyoming Coal Co..,

112 W.Va. 85[, 163 S.E. 767 (1932)].””’ Point 1, Syllabus,

Jenkins v. Chatterton, 143 W.Va. 250{, 100 S.E.2d

808](1957).” Syl. Pt. 1, Jividen v. Legg, 161 W.Va. 769,

245 S.E.2d 835 (1978).

The appellate standard of review for the granting of a

motion for a directed verdict pursuant to Rule 50 of the West

Virginia Rules of Civil Procedure is de novo. On appeal, this

court, after considering the evidence in the light most

favorable to the nonmovant party, will sustain the granting of

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Court of Appeals Opinion - 7/9/99

a directed verdict when only one reasonable conclusion as to

the verdict can be reached. But if reasonable minds could

differ as to the importance and sufficiency of the evidence, a

circuit court’s ruling granting a directed verdict will be

reversed.

Thus, in the case sub judice, we must determine

whether the evidence presented by the plaintiff was sufficient

to create a question of fact for the jury as to whether she was

entitled to the benefit of the discovery rule. In other words,

did the plaintiff offer evidence from which a reasonable jury

could conclude that she did not know or had no reason to

know that her husband's stock had been transferred prior to

1994.

After reviewing the record, we conclude that the

plaintiff did offer sufficient evidence during the presentation

of her case to create a question of fact for the jury regarding

whether her claim was barred by the statute of limitations.

We disagree with the circuit court’s conclusion that because

the plaintiff did not receive dividends after her husband’s

death, she had reason to know that something had happened

to the stock. The plaintiff presented evidence indicating that

she believed the stock was being paid for with the dividends

and did not expect to collect them. More importantly, the

plaintiff presented evidence that she received offers from the

appellees to purchase her husband’s stock through the 1990s.

The plaintiff maintains that those offers gave her reason to

believe that she still owned the stock. She contends that once

the appellees claimed ownership of the stock in 1994, she

timely filed suit. Considering these facts in the light most

favorable to the plaintiff, we believe that the jury should have

been given the opportunity to consider this evidence and

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Court of Appeals Opinion - 7/9/99

determine whether the plaintiff's claims are barred by the

statute of limitations.

Accordingly, for the reasons set forth above, the final

order of the Circuit Court of Raleigh County is reversed and

this case is remanded to the circuit court for trial. The jury

should resolve the issue of whether the plaintiff's claims are

barred by the statute of limitations as well as the plaintiff's

allegations of breach of fiduciary duty, constructive fraud,

and unjust enrichment.

Reversed and remanded.

l6a

APPENDIX C

IN THE CIRCUIT COURT OF

RALEIGH COUNTY, WEST VIRGINIA

NO. 94-C-777-B

BEULAH B. WOOTON,

Administratrix of the Estate of

ROBERT O. WOOTON,

Plaintiff,

VS.

DARRYL J. ROBERTS and

)

)

)

)

)

)

)

)

LEGACY ONE, INC., (f/k/a )

)

)

)

eae

ASSOCIATED CEMETERY

ESTATES, INC.,

Defendant.

VOLUME Iil

Transcript of the trial of the above-styled Civil Action

on Thursday, March 26, 1998, commencing at 9:04 a.m., at

the Raleigh County Courthouse, Beckley, West Virginia,

before The Honorable Robert A. Burnside, Jr., Judge, and a

jury.

APPEARANCES:

Plaintiff Beulah B. Wooton, in person and by counsel:

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Circuit Court Transcript of Trial - 3/26/98

DEBRA L. HAMILTON, ESQUIRE, and

JOSHUA I. BARRETT, ESQUIRE,

DiTrapano & Jackson

604 Virginia Street

Charleston, West Virginia 25301

Defendant Darryl J. Roberts, in person and by counsel:

DAVID A. BARNETTE, ESQUIRE,

Jackson & Kelly PLLC

Post Office Box 553

Charleston, West Virginia 25322-0553

Defendant Legacy One, Inc., by counsel:

JOHN J. NESIUS, ESQUIRE,

Spilman, Thomas & Battle

Post Office Box 273

Charleston, West Virginia 25321-0273

Carol G. Ackison

Official Court Reporter

Circuit Court Transcript of Trial - 3/26/98

(Order Directing Verdict in Favor of Defendants]

Trial Transcript at pp. 217-222.

THE COURT: _... Now, the entire genesis

of this cause of action is grounded in events — in that event of

March 25, 1972, when the transfer of the shares of Mr.

Wooton’s stock was directed by Chester Roberts to be made

by the corporate secretary to him. That is the moment which

Mr. Wooton’s estate was divested of - if at all, if they were

divested, that’s when it happened.

There was correspondence of 1971 and a check that

predated that event in 1972, but that is not terribly significant

because it served only to put Mrs. Wooton on notice that Mr.

Wooton had been in default. Knowledge of a default is not

equivalent to knowledge of what amounted to a foreclosure or

a transfer that happened later in 1972. So 1972, March 25",

is the critical date, and that is when the cause of action arose.

Under the facts presented, that cause of action would have to

be based on the premise that the transfer was wrongful

because there had been no default or void because there had

been no default, or if the transfer was correct, there would be

a cause of action in some form for an accounting for the

excess of the value of the shares over the amount remaining

on the debt. And there existed at that time, I believe, valid

issues over those things, Over whether there had been a

default, and if so, what type of accounting would be

necessary. There is some uncertainty as to, even using the

contract, as to how you would make that calculation. So there

were valid issues existing then about that.

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Circuit Court Transcript of Trial - 3/26/98

Mr. Roberts, Chester Roberts, from this evidence in

this case obviously was a prudent businessman, he ran his

company well. He, as they say now, he grew it well. How

“grew” turned into a transitive verb, it did; but, anyway, he

made it develop and he was a good manager, but,

unfortunately, it looks to me like this thing wasn’t done well,

and some issues remain over whether there was a default and

how much, if anything, was due, if there had been a default

and the transfer was correct.

Now, the critical point here, though, is whether Mrs.

Wooton, as a representative of the Wooton estate, was on

notice that the transfer had occurred, and I think that the

evidence in this case has to be yes, but there is no issue about

that. From 1972 forward, she did not enjoy any of the

benefits associated with possession of this stock. There is no

dispute that she never received notice of a shareholder’s

meeting, she never received any dividend checks, either

written to her or to her husband’s estate. Nothing. She had

nothing that would indicate ownership or possession, none of

the elements or actions or things that go with that.

Now the question has been raised as to the impact of

not receiving dividends and the arguments made that really

that shouldn’t mean much because she thought that dividends

were somehow just applied to the note and reduced the note,

and so she’d never see a dividend. That clearly - if she

thought that, that was a mistake as to the clear terms of the

contract. The contract doesn’t say so. The parol evidence

rule would prevent her from raising that claim even then or

now, had she raised it in 1972 or 1973. That mistake by her,

assuming she made the mistake, and I’ll resolve that issue of

fact for the Plaintiff, she really, honestly thought that, that

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Circuit Court Transcript of Trial - 3/26/98

does not create an issue of fact, though, as to whether or not

the absence of dividends meant something to her, put her on

notice of something. Defendants cited to some case law, the

effect of which is to say that the lack of action or lack of

interest or maybe even a misunderstanding of why she had

does not, standing alone, create a discovery issue.

There is no doubt at all that, in 1972, Mrs. Wooton

was busy, overwhelmed perhaps, with the duties she had as a

what we now call a single mother. I guess we had a different

term for her situation then, but it was a severe Situation, but,

unfortunately, the law doesn’t say that being busy or being

overwhelmed or being diverted from attending to the business

at hand excuses or invokes the discovery rule. I don’t think

there is an issue of fact, then, that by the failure to receive

dividends or notices or the other indicia of ownership of

corporate stock that she was on notice that something had

happened, something had happened, and that something,

whatever that was, ended those elements or indicia of

ownership. Yet nothing was done.

From 1972 to 1995, apparently no attention, OF

insufficient attention was given to it and in 1985 - I’m sorry,

1972 to 1985 insufficient attention was given to it. Mr.

Wooton, William Wooton, then raised the issue with Darryl

Roberts. During those 13 years, Chester Roberts had died

and Darryl was now in his place and Darryl Roberts had to

figure it out by looking into the records. The evidence

indicates that. What Darry! had to figure out is neither here

not there for the purposes of whether there is an issue of fact.

There is no issue of fact on the point that Mrs. Wooton had

sufficient information in 1972 to know that something had

happened. Something had happened to cause her not to have

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Circuit Court Transcript of Trial - 3/26/98

the enjoyment of possession of this stock. Thirteen years

later, serious inquiries began to be made, but that was 13

years later.

Now, accepting Plaintiff's evidence on this point, that

the only agent acting for Mrs. Wooton or the family or the

estate was Jim Wooton, in Baltimore, I have to accept that for

purposes of directed verdict. Jim Wooton knew the same

things that Mrs. Wooton knew. He knew there had been no

dividends paid in those years, no shareholder notices. He also

had the benefit of this letter which says something about

repurchase. Now that’s a term we don’t know what it means.

It’s a term that could mean a couple of things, but it indicates

that Mr. Roberts had done something that affected these

shares. That is a notice, that’s knowledge that is counter to

the application of the discovery rule.

Jim Wooton knew enough, he had enough information

then to know that either Chester Roberts or the corporation

had done something. You don’t have to know every element

of your cause of action or know that you have enough to win

in order to be charged with the running of the statute of

limitations. The discovery rule runs the other direction. If

fraud had occurred, if a squeeze out had occurred, a

conversion or a theft or whatever, it happened in 1972.

Gaither v. City Hospital, 199 W.Va. 706, a 1997 case, there

is nothing new about it, but it carries forward it a lot of

existing precedent: The discovery rule applies to all tort

actions or all actions like this. In 712, mere ignorance of the

existence of a cause of action or the identity of the wrongdoer

does not prevent 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, some action

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Circuit Court Transcript of Trial - 3/26/98

by the Defendant, prevented her from knowing of the wrong

at the time of the injury. In Statler v. Bailey, 184 W.Va. 212,

mere silence by the wrongdoer is not enough unless he has

done something to prevent the Plaintiff from discovering the

wrong.

The Plaintiff has not offered sufficient evidence to

create an issue of fact as to whether the Defendant or Chester

Roberts, I’m sorry, the Defendant acting in someway as a

successor to Chester Roberts, or the Defendant himself, or the

Defendant corporation, did something to prevent her from

knowing or finding out or preventing her son, Jim Wooton,

from finding out what had happened to her husband’s stock in

1972. 3

In the absence of an issue of fact that would permit the

application of the discovery rule, no other issues remain, and

so | am compelled under the state of the evidence to grant the

directed verdict for both Defendants on all counts.

That concludes my announcement of the ruling on the

motions for directed verdict. Plaintiff certainly will have your

exceptions preserved to the extent that is necessary for you to

take the matter up. I will now bring out the jury and instruct

them that the matter has been resolved.

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APPENDIX D

[Dated May 28, 1996]

AGREEMENT

AGREEMENT, dated this 28" day of May, 1986, by

and between LEGACY ONE, INC.., a corporation organized

and existing under the laws of the State of West Virginia

hereinafter referred to as “Corporation” and Estate of Chester

Roberts, Marzetta Roberts, Darryl Roberts, Shelby Roberts,

Mary Frances Roop, Paul W. Roop, Boyd E. Terry, David A.

Whitener, Joe R. Smith, Ann Roberts, Adam Roberts, James

A. Safewright, James F. Safewright, Robert A. Goss, Estate

of Leah Tony Trail, Donal Meadows, Bill Wooten, Roger

Pauley, individual Shareholders, hereinafter referred to as

“Shareholders” .

WHEREAS, the “Shareholders” are the owners of all

the capital stock of the Corporation and hold the stock as

follows:

Estate of Chester Roberts ...... 8,778.43 shares

Marzetta Roberts ............ 3,141.74 shares

So ge 2,541.52 shares

eee eee 78.40 shares

Mary Frances Roop ........... 549.81 shares

er ere 305.29 shares

a seg Cae 211.63 shares

David A. Whitener............ 196.80 shares

Agreement - 5/28/96

Joe R. Smith. .....---++++00> 185.69 shares

Ann Roberts .....-----+ee+e3° 18.50 shares

Adam Roberts .....------+++°° 18.50 shares

James A. Safewright......------- 2.97 shares

James F. Safewright.....------- 15.76 shares

Robert A. Goss ....----++++eee? 15.76 shares

Estate of Leah Tony Trail ...--.--- 3.93 shares

Donal Meadows ...------++++: 15.76 shares

Bill Wooten .....-----eeeeeees 9.25 shares

Roger Pauley .....-----+-+++>: 100.00 shares

Treasury... cece c cc eccess 194.95 shares

TOTAL SHARES: 16,384.69

WHEREAS, the Corporation and the Shareholders are

agreed that the success of the Corporation requires an active

interest, support and attention of its shareholders and that for

this reason it is advisable to prevent its shares to go upon the

open market for sale; and

WHEREAS, all the parties hereto are opposed to the

introduction into the ownership of the Corporation of

strangers not willing and able to contribute in like manner to

the success of the Corporation and desire to restrict the

privilege of owning shares in the Corporation.

IN WITNESS WHEREOF, the parties hereto have

executed this Agreement.

/s/ William R. Wooton

Bill Wooten, stockholder

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Agreement - 5/28/96

STATE OF WEST VIRGINIA

COUNTY OF RALEIGH, TO-WIT:

I, Cindy L. Cook, a Notary Public in and for said

county and state, do hereby certify that William R. Wooton,

whose name is signed to the foregoing writing bearing date

the 28" day of May, 1986, has this day acknowledged the

same before me in my said county.

Given under my hand this 3" day of June, 1986.

My commission expires:

/s/ Cindy L. Crook _

Notary Public

Commissioned as Cindy L. Linville

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APPENDIX E

[Dated January 21, 1985 ]

ASSOCIATED CEMETERY ESTATES, INC.

300 NORTH KANAWHA STREET

P. O. BOX 1586 - PHONE 304-255-0505

BECKLEY, WEST VIRGINIA 25801

January 21, 1985

Mr. William R. Wooton

WOOTON, WOOTON & FRAGILE

P. O. Box 1733

Beckley, WV 25801

Dear Bill:

| have attempted to research the rationalism behind the

repurchase of your father’s stock in 1969. From what I have

learned, various people wanted to purchase shares of A.C.E.

stock. Those shares were to be purchased out of dividends

from the corporation and they were secured by a note to

Chester Roberts. In your father’s instance, at the time of his

death, he had not made the principal and interest payments as

scheduled. After his death, a calculation was made to

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determine the value of the stock. They subtracted the amount

owed on the note from that value and wrote your mother a

check for $4,000, which, as you well know, was never

cashed.

It seems that the most reasonable position to take at

this time is that we will pay your mother the $4,000 as we

agreed to do in 1969, and on top of that, we will pay her an

average interest rate of 5% per year for the fifteen years since

that time. This amounts to $8,315.71. If this is satisfactory

with you and your mother, please let me know and we will

issue the check within thirty (30) days.

Yours truly,

ASSOCIATED CEMETERY ESTATES, INC.

/s/ Darryl J. Roberts

President

DJR:nkg

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