                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 06-1404


JEFFREY S. BROWNING, as Trustee of the Browning Equipment,
Inc. 401(k) Profit Sharing Plan,

                  Plaintiff - Appellant,

           v.

TIGER’S EYE BENEFITS CONSULTING; THEODORE G. REEDER, III,
C.P.A.; DAVID M. DUKICH,

                  Defendants – Appellees,

           and

POTOMAC ASSET MANAGEMENT GROUP, LLC,

                  Defendant.

--------------------

JOHN J. KORZEN,

                  Amicus Supporting Appellee David M. Dukich.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, Senior
District Judge. (1:05-cv-303-CMH)


Argued:   October 28, 2008                   Decided:   February 26, 2009


Before NIEMEYER and MICHAEL, Circuit Judges, and Richard              D.
BENNETT, United States District Judge for the District                of
Maryland, sitting by designation.
Affirmed by unpublished opinion.       Judge Bennett wrote    the
opinion, in which Judge Niemeyer and Judge Michael joined.


ARGUED:   Richard   Dennis  Carter,  Alexandria, Virginia,  for
Appellant.    Patrick John Kearney, SELZER, GURVITCH, RABIN &
OBENCY, CHTD., Bethesda, Maryland; Jenelle Neubecker, WAKE
FOREST UNIVERSITY, School of Law, Appellate Advocacy Clinic,
Winston-Salem, North Carolina, for Appellees. ON BRIEF: John J.
Korzen, Elizabeth H. Asplund, Amber Burleson, Lauren T.
Millovitsch, WAKE FOREST UNIVERSITY, School of Law, Appellate
Advocacy Clinic, Winston-Salem, North Carolina, Amicus Counsel
for Appellee David M. Dukich.


Unpublished opinions are not binding precedent in this circuit.




                                2
BENNETT, District Judge:

       Appellant Jeffrey S. Browning, as Trustee of the Browning

Equipment, Inc. 401(k) Profit Sharing Plan, appeals the entry of

summary      judgment     by   the      district     court     in    favor    of    the

Appellees, Tiger’s Eye Benefits Consulting, Theodore G. Reeder,

III,   and    David     Dukich.        The    district     court    entered   summary

judgment on alternative grounds: first, the district court found

as a matter of law that the Appellees were not fiduciaries under

section 409(a) of the Employee Retirement Income Security Act of

1974, 29 U.S.C. § 1132(a) (“ERISA”); and, second, the district

court found that the Appellees were entitled to summary judgment

because ERISA’s three-year statute of limitations had expired

before the suit was brought.                 Because we agree as to the latter

ground, the judgment below is affirmed.



                                             I.

       Browning Equipment, a small, family-owned tractor sales and

services company, maintains the Browning Equipment, Inc. 401(k)

Profit    Sharing     Plan     (“the    Plan”).       At     the    time   this    suit

commenced,     Appellant       Jeffrey       S.   Browning   (“Browning”)         was   a

Trustee of the Plan, as were Jean Copeland and Reyburn Browning,

Jeffrey Browning’s father.               Under the Plan, the Trustees had



                                             3
“the sole responsibility of the management of the assets held

under the Trust.”          (J.A. 451.)

       Theodore Reeder is a certified public accountant and the

sole shareholder of Tiger’s Eye Benefits Consulting, a business

that    provided        third-party        consulting      services       to     the    Plan

beginning in 1994.           Prior to 1994, the Plan had been a client to

Reeder’s former employer since 1984.                      The Plan engaged Tiger’s

Eye    through      annual    letters      which     provided     that     “Tiger’s      Eye

Benefits Consulting will be a third party plan administrative

consultant only, and will not act in the capacity of the Plan’s

‘ERISA Administrator.’” (J.A. 163-172.)

       Between      1979     and   1999,     most    of   the    Plan’s    assets       were

invested       in   a    fixed     annuity    insurance         contract       with    Royal

Maccabees Life Insurance Company.                   Between 1997 and 1999, Reeder

began communicating with Reyburn Browning about reinvesting its

assets elsewhere.            In April 1999, Reeder met with David Dukich,

a     broker     based       in    Frederick,       Maryland       who     was        selling

investments in U.S. Capital Funding, Inc.                       Dukich was promising

a return of 9.25% on a 180-day investment with U.S. Capital

Funding.        Relying on the information given to him by Dukich,

Reeder recommended to Reyburn Browning in a letter dated April

20, 1999 that the Trustees invest $300,000 with U.S. Capital

Funding and $150,000 with John Hancock.                         Reeder told Reyburn
                                             4
Browning that the U.S. Capital Funding investment was insured up

to $2,000,000 through CNA Insurance Companies.

       Sometime    between      April    20     and    April      26,   1999,      Reeder

introduced Dukich to the Trustees.               At the meeting, the Trustees

questioned      Reeder    and   Dukich     about      the   investment       with       U.S.

Capital Funding and received positive responses, including that

the investment was insured.              On April 26, 1999, the Trustees

invested $555,000 with U.S. Capital Funding.                         In return, the

Plan received a promissory note bearing a 9.25% rate of return,

payable in 180 days from April 27, 1999.                           The note did not

contain an automatic reinvestment or renewal provision.                            Dukich

received a 9% commission, half of which was actually paid to

him.    Reeder received a 1% commission from Dukich.

       For the first few months, the Plan received information

about     its    investment     directly        from     U.S.      Capital        Funding,

including monthly interest statements and a Form 1099.                            Jeffrey

Browning testified that, to his knowledge, none of the Trustees

ever    expressly       authorized   the       renewal      of    the   U.S.      Capital

Funding investment.          Nonetheless, the Trustees did not receive

payment when the note became due in October 1999, and there is

no   evidence     suggesting    that     the    Trustees         inquired    as    to    why

payment    was    not    received.       Also    in    October       1999,     the      Plan

stopped receiving monthly interest statements from U.S. Capital
                                           5
Funding, and the record does not contain any evidence that the

Trustees    acted       to     determine      the    reason     that    the    statements

stopped arriving.

       Dukich     first       learned      that    U.S.   Capital      Funding    was    not

paying funds to clients sometime in fall 2000.                           At that time,

Dukich was told that U.S. Capital Funding would not be paying

noteholders       because       of    difficulty      receiving        funds     from    the

companies with which it was doing business.                            On February 20,

2001, Reeder informed the Trustees via letter that the assets

were temporarily unavailable and that litigation was currently

being pursued to “free up the monies.”                       (J.A. 348-49.)        Reeder

also    assured     the       Trustees      that    the    “original     investment       is

guaranteed      through        [the   CNA]    insurance       arrangement”       and    that

“interest earnings would be separately recoverable.”                          (Id.)

       Then, on July 23, 2001, Reeder explained to the Trustees,

again by letter, that the 180-day investment was locked into

five-year notes.              (J.A. 350.)          He also explained “it was his

understanding”          that     U.S.       Capital       Funding      initiated        legal

proceedings       in    Florida       in    order    to    release     invested     funds.

(Id.)      Consequently, Reeder advised the Trustees as follows:

“Although    it    is     a    difficult      position     to   take,    my    suggestion

continues to be to wait on the legal actions pending . . . for



                                              6
an ultimate resolution and release of monies invested through

the Browning Equipment Inc. Profit Sharing Plan.”                    (J.A. 351.)

       Sometime in early November 2001, Browning had “the need to

find out what the story was on the insurance” because “the doubt

started to creep in our minds about the – you know, where the

funds were.”      (J.A. 149.)        On November 15, 2001, in response to

a    request   from    Browning,     Reeder    sent     a   fax    transmission        to

Browning.        Reeder        acknowledged    on     the    cover        sheet     that,

“although [Dukich] has made reference to me previously of an

insurance      company     ‘declaration       page,’”       Reeder    had     not    yet

received the document.             Thus, as Browning testified, Reeder’s

fax contained “nothing worthwhile” demonstrating that the U.S.

Capital Funding investment was insured.               (J.A. 148.)

       On February 19, 2002, the Trustees were explicitly informed

by    Reeder   that    a   court-appointed       receiver      was    in     place     to

“coordinate the ongoing activity of U.S. Capital Funding, Inc.”

(J.A. 371-72.)         By this time, the Plan had not received payment

on the U.S. Capital Funding note since March 22, 2000, when it

received its first and only payment in the amount of $25,317.12.

In a letter received by the Trustees on March 24, 2003, Reeder,

who is not an attorney, informed them that legal proceedings

were ongoing and that any legal action taken by the Trustees

themselves     would     not    accelerate    recovery.           (J.A.    359.)       He
                                         7
added, however, that “I fully understand any actions that you

feel   compelled      to    take     in    fulfilling       your   duties     as    .     .   .

Trustees.”       (Id.)

       Tragically,         the     problems         associated     with      the        Plan’s

investment       in   U.S.       Capital     Funding       were     dire.          We     have

previously noted that the U.S. Capital Funding was, “in reality,

a Ponzi scheme.”          Smith v. Continental Ins., 118 Fed. Appx. 683,

683 (4th Cir. 2004).             The Plan’s investment was all but lost.

       Browning filed the underlying complaint on March 18, 2005,

asserting breach of fiduciary duty and prohibited transaction

claims under ERISA (Counts I and II), as well as a state law

tort   claim     (Count      III).        Without       separately      discussing        the

individual       claims     asserted       by       Browning,    the    district        court

granted   summary        judgment     in    Appellees’          favor   on   alternative

grounds: first, the district court concluded that Reeder and

Dukich    were    not      fiduciaries      of       the   Plan;   and,      second,      the

district court concluded that the statute of limitations had

expired prior to Browning filing suit.



                                            II.

       The district court’s entry of summary judgment is reviewed

de novo, with the facts and the inferences from those facts

taken in a light most favorable to the nonmovant.                            See EEOC v.
                                                8
Navy   Fed.     Credit     Union,    424      F.3d    397,   405    (4th       Cir.   2005).

Summary       judgment       is     appropriate            when     "the        pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law."                           Fed. R. Civ. P.

56(c);    see    Celotex     Corp.       v.    Catrett,      477    U.S.       317,   322-23

(1986).

       Although    Browning       appeals          both   grounds    asserted         by   the

district      court   to    grant    summary         judgment      for    Appellees,       we

discuss only the latter ground because, assuming that Appellees

were fiduciaries to the Plan, Browning’s failure to timely file

suit under ERISA’s three-year statute of limitations necessarily

bars both ERISA claims.               Additionally, although the district

court did not specifically discuss Browning’s state law claim,

the record is sufficiently developed for us to conclude that it

is barred by Virginia’s statute of limitations.

                                              A.

       Browning’s        breach     of        fiduciary      duty        and    prohibited

transaction claims are subject to the statute of limitations

framework provided in ERISA § 413, 29 U.S.C. § 1113.                                  Section

413 provides that a claim for breach of fiduciary duty may not

commence after the earlier of:
                                               9
      (1) six years after (A) the date of the last action
      which constituted a part of the breach or violation,
      or (B) in the case of an omission, the latest date on
      which the fiduciary could have cured the breach or
      violation, or

      (2) three years after the earliest date on which the
      plaintiff had actual knowledge of the breach or
      violation;

      except that in the case of fraud or concealment, such
      action may be commenced not later than six years after
      the date of discovery of such breach or violation.

29 U.S.C. § 1113.          Thus, section 413 “creates a general six year

statute of limitations, shortened to three years in cases where

the plaintiff has actual knowledge, and potentially extended to

six years from the date of discovery in cases involving fraud or

concealment.”          Kurz v. Philadelphia Elec. Co., 96 F.3d 1544,

1551 (3d Cir. 1996).

      Prior       to     1987,   section      413's    three      year      statute     of

limitations        was     triggered    by      either     actual        knowledge      or

constructive knowledge.             Congress amended the statute in 1987 to

require,     at    a     minimum,    “actual    knowledge        of   the    breach    or

violation.”        See Martin v. Consultants & Administrators, Inc.,

966   F.2d    1078,       1085   n.6   (7th     Cir.     1992)    (explaining         that

“[b]efore it was amended in 1987, [29 U.S.C. § 1113] contained a

constructive       knowledge     provision,      stating    that      the    three-year

limitations period began when a plaintiff ‘could reasonably be

expected to have obtained knowledge’ from certain reports filed
                                           10
with     the      Secretary       of    Labor”        (citing          removed     statutory

language)).        Since the 1987 amendment, the circuits that have

defined what constitutes actual knowledge have reached somewhat

divergent results.

        The    Third   and     Fifth    Circuits’       narrow         interpretation        of

actual        knowledge   in     section      413      “requires         a     showing     that

plaintiffs actually knew not only of the events that occurred

which constitute the breach or violation but also that those

events        supported   a     claim    of        breach    of    fiduciary        duty    or

violation under ERISA.”                 Int'l Union v. Murata Erie N. Am.,

Inc., 980 F.2d 889, 900 (3d Cir. 1992); see also Gluck v. Unisys

Corp., 960 F.2d 1168, 1177 (3d Cir. 1992); Maher v. Strachan

Shipping Co., 68 F.3d 951, 954 (5th Cir. 1995) (applying the

Third    Circuit       test).      Other      circuits,       including          the     Sixth,

Seventh, Ninth, and Eleventh Circuits, require only that the

plaintiff       have    “knowledge       of   the     facts       or    transaction        that

constituted the alleged violation; it is not necessary that the

plaintiff also have actual knowledge that the facts establish a

cognizable       legal    claim    under      ERISA     in    order       to    trigger    the

running of the statute.”                Wright v. Heyne, 349 F.3d 321, 330

(6th Cir. 2003); see also Martin v. Consultants & Adm'rs, Inc.,

966 F.2d 1078, 1086 (7th Cir. 1992); Blanton v. Anzalone, 760

F.2d 989, 992 (9th Cir. 1985); Brock v. Nellis, 809 F.2d 753,
                                              11
755 (11th Cir. 1987).     The remaining circuits that have settled

on a definition fall somewhere between these two views. 1              See,

e.g., Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2d Cir. 2001)

(holding that a “plaintiff has ‘actual knowledge of the breach

or violation’ within the meaning of ERISA § 413(2), 29 U.S.C. §

1113(2), when he has knowledge of all material facts necessary

to understand that an ERISA fiduciary has breached his or her

duty or otherwise violated the Act”).

     Although   this   Court   has    not    had   occasion   to   precisely

define   “actual   knowledge   of    the    breach   or   violation”   under

section 413(2), 2 we need not settle on a hard and fast definition



     1
       Ironically enough, there appears to be some disagreement
as to whether there is even a circuit split on the definition of
actual knowledge. The Sixth Circuit specifically explained that
“courts are divided on the issue of what constitutes ‘actual
knowledge’ under § 1113(2).”   Wright 349 F.3d at 328.   In Edes
v. Verizon Commc’ns, Inc., 417 F.3d 133 (1st Cir. 2005),
however, the First Circuit refused to acknowledge that there was
a circuit split, instead finding that the respective positions
of the circuits are “more nuanced” and the differences
“exaggerated.” Id. at 141.
     2
       We have previously stated that the three-year limitations
period “begins to run when a plaintiff has knowledge of the
alleged breach of a responsibility, duty, or obligation by a
fiduciary.”   Shofer v. Hack Co., 970 F.2d 1316, 1318 (4th Cir.
1992).   In Shofer, however, there was no dispute between the
parties that the three-year limitations applied and had expired
when suit was filed. The issue in Shofer was whether filing an
earlier suit in Maryland state court based on the same facts
equitably tolled the running of the three-year statute of
limitations under federal tolling principles.   Thus, Shofer did
(Continued)
                               12
in the instant case.           Based on the statutory amendment in 1987,

it     is    plainly       apparent     that      “actual    knowledge       must    be

distinguished from constructive knowledge.”                  Martin, 966 F.2d at

1086.       The point in which one has “actual knowledge of the

breach or violation,” as opposed to constructive knowledge, in

turn     depends     largely     on    the    “complexity    of     the    underlying

factual transaction, the complexity of the legal claim[,] and

the egregiousness of the alleged violation.”                  Id.      We also agree

with the First Circuit that “[t]he amendment to ERISA § 413

means that knowledge of facts cannot be attributed to plaintiffs

who have no actual knowledge of them,” and that “there cannot be

actual knowledge of a violation for purposes of the limitation

period      unless   a     plaintiff    knows     ‘the   essential     facts   of   the

transaction or conduct constituting the violation.’”                        Edes, 417

F.3d at 142 (emphasis in original) (citing Martin, 966 F.2d at

1086).      Thus, the appropriate inquiry is fact-intensive and, on

the facts before us, we have little difficulty finding that the

Trustees      had    the    requisite    factual     knowledge    to      trigger   the

three-year statute of limitations under section 413(2).




not examine the meaning of “actual knowledge of the breach or
violation.”

                                             13
        Browning’s        ERISA   claims    are       based    on    allegations       that

Appellees failed to render advice in the best interest of the

plan,       failed     to     diversify      funds,       failed        to     adequately

investigate the U.S. Capital Funding investment, and invested

the Plan’s assets for their own benefit.                            The district court

determined that the Trustees “knew or should have known of the

problems with the Note in February 2002 because Reeder wrote to

inform them that a receiver had been appointed for U.S. Capital

Funding.”       (J.A. 538.)         Although it is not clear whether the

district      court       applied      an   actual       or    constructive        notice

requirement, 3       we     conclude     that,    by    February        19,    2002,    the

Trustees had actual knowledge of enough sufficient facts relied

upon in their legal claims to trigger the three-year limitations

period.      On February 19, 2002, the Trustees were unambiguously

informed      that    the    Plan’s     $555,000       investment       was    placed    in

court-appointed           receivership.          On    that     date,    the     Trustees

undoubtedly      had        “knowledge      of    [the]       transaction’s       harmful

consequences,” as well as notice of “actual harm.”                            Gluck, 960

F.2d at 1177.


        3
       Because of the amendment to 29 U.S.C. § 1113, the three-
year statute of limitations did not begin to run on the date
that the Trustees should have known about facts establishing a
breach or violation. It began to run only when they had actual
knowledge of the facts.

                                            14
       Although this fact alone convinces us that the Trustees had

actual knowledge of the breach or violation, the record reveals

that the Trustees also had direct, first-hand knowledge of other

facts by February 19, 2002, making their ERISA claim patently

clear by then.            For example, the Trustees were fully aware that

their investment was not diversified on April 26, 1999, the date

they    first      purchased    the     promissory         note.      By     investing        the

entire    liquid      portion      of   the    Plan’s       funds    with     U.S.     Capital

Funding, the Trustees did not accept Reeder’s advice to invest a

lesser     amount     with      U.S.      Capital         Funding     with    the      balance

invested elsewhere.

       Moreover,      the     Trustees        had     actual        knowledge     of     facts

demonstrating        that    the    Plan’s         money    was     not   invested       in    an

insured, 180-day promissory note, as they originally believed to

be the case.              Although the Trustees knew that the note was

payable       in    180     days      and     did     not     contain        an     automatic

reinvestment or renewal provision, the Plan was not paid after

180    days   and    the    Trustees        did     not    receive    a    single      monthly

interest      statements       from     U.S.       Capital    Funding        after     October

1999.      By      late    2000,    the     Trustees       were     informed      that    U.S.

Capital Funding was not paying noteholders upon maturity of the

note, and the Trustees were further informed in February 2001

that    litigation         involving        U.S.    Capital       Funding     had      already
                                              15
ensued.        On July 23, 2001, the Trustees were told that their

initial 180-day investment was apparently “locked into five-year

notes.”        Finally, in November 2001, Browning, concerned about

the     lack    of     insurance        of    the     Plan’s      investment,       requested

documents from Reeder but received nothing in return to assuage

his concerns.           By that point, the Trustees had not received a

single document indicating that the Plan’s investment was in

fact insured.

        Because       we     do    not       believe       that     the   nature        of    the

transaction          was    overly       factually         complex    (it       involved     the

purchase       of    only    a    single      promissory         note),   and    because      the

alleged breach by the Appellees is quite egregious (the entire

purchase price of $555,000 was unrecoverable), see Martin, 966

F.2d at 1086, we conclude that the aforementioned facts taken

together       more    than       establish      that       the    Trustees       had    actual

knowledge under 29 U.S.C. § 1113 no later than February 19,

2002.          Thus,       assuming      that        the    Appellees       were    in       fact

fiduciaries (an issue we need not reach), the three-year statute

of    limitations           ran    on    February          19,    2005.         Consequently,

Browning’s lawsuit, filed on March 18, 2005, was time barred.




                                                16
                                       B.

      Browning’s fallback position is that the six-year “fraud or

concealment” period applies to his ERISA claims, rather than the

three-year “actual knowledge of the breach or violation” period.

The   district    court   did    not    address   this     argument     in   its

memorandum    opinion,    but    implicitly   rejected      it   by    granting

Appellees’ motion for summary judgment.

      If applicable, the “fraud or concealment” provision extends

the statute of limitations period to six years beginning on the

date of discovery.        As relevant here, the six-year “fraud or

concealment”     provision      also   encompasses    at    a    minimum     the

“fraudulent      concealment     doctrine,”   which      applies      when   the

defendant acts to prevent or delay the plaintiff’s discovery of

the breach. 4     See, e.g., Caputo, 267 F.3d at 188.                 Rooted in

federal common law, the fraudulent concealment doctrine tolls

the statute of limitations “until the plaintiff in the exercise

      4
       The Second Circuit in Caputo interpreted the “fraud or
concealment” provision in 29 U.S.C. § 1113 as independently
including both fraud and fraudulent concealment claims.     See
Caputo, 267 F.3d at 190 (interpreting “fraud or concealment” as
“fraud or [fraudulent] concealment”).   This appears to be the
minority view.   Id. at 188-89 (citing six Unites States Courts
of Appeal—i.e. the First, Third, Seventh, Eighth, Ninth, and
D.C. Circuits—that have interpreted “fraud or concealment” as
synonymous with “fraudulent concealment”).    We have not been
asked to address this issue, however, as Browning “do[es] not
claim that [Reeder and Dukich] committed fraud by false
representations or omissions.” (App. Reply 10.)

                                       17
of reasonable diligence discovered or should have discovered the

alleged fraud or concealment.”                     J. Geils Band Employee Benefit

Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1255 (1st Cir.

1996) (citing Larson v. Northrop Corp., 21 F.3d 1164, 1172-74

(D.C. Cir. 1994)).             We conclude that the fraudulent concealment

doctrine is inapplicable in this case.

       The fraudulent concealment doctrine does not apply here for

the    simple      reason       that     we     find        nothing    in     the     record

demonstrating that the Trustees were prevented from discovering

the breach or violation as a result of concealment by Appellees.

The    fraudulent        concealment      doctrine       “requires      the     plaintiffs

show (1) that defendants engaged in a course of conduct designed

to conceal evidence of their alleged wrongdoing and that (2)

[the plaintiffs] were not on actual or constructive notice of

that     evidence,       despite       (3)     their        exercise    of     diligence.”

Larson,     21    F.3d    at    1172.         Thus,    the    fraudulent       concealment

doctrine does not trigger the six-year limitations period under

29 U.S.C. § 1113 if the concealing act does not delay actual or

constructive notice of the fiduciary’s wrongdoing.

       In   this   case,       Browning       contends       that   Reeder     and    Dukich

fraudulently       concealed          their    breach        of    fiduciary    duty     “by

assuring     the    Plan       that    [Dukich]       was    protecting      their     legal

rights      and    by      discouraging         them        from    otherwise        seeking
                                              18
independent legal advice.”            (App. Reply 10.)          Thus, Browning’s

argument is tied to the fact that the Trustees were advised by

letter in July 2001 and again in March 2003 that they should

withhold legal action.

      However,     notwithstanding       the   July     2001    letter’s      advice

regarding    counsel,      the     Trustees       had    already       accumulated

significant indicia of a viable claim against Appellees.                          In

fact, the July 2001 letter explained a component of the alleged

breach, as it stated that the 180-day investment was locked into

five-year notes.         Thus, the July 2001 letter itself did not

prevent or delay the plaintiff’s discovery of the breach.                        And

on February 19, 2002, well before the March 2003 letter was

sent, the Trustees were unambiguously informed that the Plan’s

$555,000 investment was placed in court-appointed receivership.

At that time, the Trustees not only had “actual knowledge of a

breach or violation” under section 413(2), but, by necessary

implication,      they   also   had     clearly   discovered     the    breach    or

violation that formed the basis of their suit.                     Thus, “[t]he

claim, such as it was, lay bare for the world to see.”                   Kurz, 96

F.3d at 1552.

      In   sum,    the   July    2001    letter   therefore      did    not    delay

discovery of the “breach or violation” because, regardless of

the   letter,     the    Trustees       were   well     aware    of     Appellees’
                                         19
wrongdoing by February 19, 2002.               Further, because the three-

year limitations period was triggered at that time, the March

2003 letter certainly had no effect on the Trustees’ discovery

of the breach or violation.

                                        C.

     Lastly,    we     turn    to    Browning’s     state    law    professional

malpractice    claim,    which      alleges     that    Appellees    negligently

provided investment advice to the Trustees.                 The record in this

case amply supports the district court’s dismissal of the claim.

Under   Virginia      law,    a     claim    for   professional      negligence,

although sounding in tort, is considered an action for breach of

contract for purposes of the statute of limitations because the

legal claim is grounded in contract law.                See Virginia Military

Institute v. King, 232 S.E.2d 895, 899-900 (Va. 1977).                     Under

Virginia law, the statute of limitations for contract claims is

five years for contracts in writing, and three years for oral

contracts.     Va. Code Ann. § 8.01-46.            The statute of limitations

accrues on the date of breach, not the date of the resulting

damage is discovered.         Id. § 8.01-230.

     Here, Browning’s malpractice claim is based entirely on the

Appellees’ recommendation to purchase the U.S. Capital Funding

investment.          Browning’s      argument      is   that   the    Appellees

“recommended that the Trustees invest ‘a larger portion’ of the
                                        20
Plan’s      assets”    with   U.S.   Capital    Funding.        (App.    Brief    38.)

Even       assuming   that    the   professional    relationship        between    the

parties was based in contract (which appears to be the case),

the    lengthier       five-year      limitations      period     provided       under

Virginia       law    still   bars    this    claim.     Based     on    Appellees’

recommendations, the Trustees purchased the U.S. Capital Funding

note on April 26, 1999, more than five years and eleven months

before this action was filed on March 18, 2005. 5                  Therefore, the

state law professional malpractice claim is also barred by the

statute of limitations.



                                        III.

       The district court did not err in granting summary judgment

to Appellees on the grounds that Browning’s action was barred by


       5
       Equitable estoppel principles do not save Browning in this
case.   Based on Virginia statutory and case law, we have held
that the “statute of limitations is tolled until a person
intentionally misled by a putative defendant could reasonably
discover the wrongdoing and bring action to redress it.”     FDIC
v. Cocke, 7 F.3d 396, 402 (4th Cir. 1993).       As discussed at
length earlier, we find that the Trustees discovered the
wrongdoing on February 19, 2002, when they learned that the
Plan’s   $555,000   investment  was  placed   in  court-appointed
receivership.    The July 2001 letter advising the Trustees to
forgo legal action was sent seven months before they had actual
knowledge.   Thus, even if equitable estoppel principles tolled
the running of the statute of limitations for this seven-month
period, Browning’s action was still filed four months late.


                                         21
the statute of limitations.   Consequently, the judgment of the

district court is

                                                      AFFIRMED.




                              22
