                             STATE OF WEST VIRGINIA

                           SUPREME COURT OF APPEALS

Howard J. Blyler, Special Commissioner, and
Lloyd Allen Cogar III and Susie Wilson,

                                                                                     FILED
Individually and as heirs of the Estate of Lloyd Allen                         November 23, 2015

                                                                                RORY L. PERRY II, CLERK
Cogar Jr., Plaintiffs Below, Petitioners                                      SUPREME COURT OF APPEALS
                                                                                  OF WEST VIRGINIA
vs.) No. 14-0760 (Kanawha County 13-C-2175)

Mark A. Matkovich, West Virginia State Tax Commissioner,
Defendant Below, Respondent

and

Howard J. Blyler, Special Commissioner,
Plaintiff Below, Petitioner

vs.) No. 14-1335 (Kanawha County 13-C-2175)

City National Bank, a State Banking Institution,
Defendant Below, and Lloyd Allen Cogar III and
Susie Wilson, Plaintiffs Below, Respondents


                              MEMORANDUM DECISION
        In these consolidated cases, petitioners Howard J. Blyler (“Petitioner Blyler”), pro se, and
Lloyd Allen Cogar III (“Petitioner Cogar III”) and Susie Wilson (“Petitioner Wilson”), by
counsel William A. McCourt Jr., appeal orders entered by the Circuit Court of Kanawha County
on, respectively, July 7, 2014, dismissing the action against the Mark A. Matkovich, West
Virginia Tax Commissioner (“Tax Commissioner”),1 and November 26, 2013, granting summary
judgment for City National Bank (“City National”). The Tax Commissioner, by counsel L.
Wayne Williams, filed a response in support of the circuit court’s dismissal order. City National,
by counsel Ashley C. Pack and Arie M. Spitz, filed a response in support of the circuit court
summary judgment order. Petitioner Blyler filed a reply. On appeal, petitioners argue that the
circuit court erred in dismissing this action and/or granting summary judgment on the issue of
the two-year statute of limitations.

       This Court has considered the parties’ briefs and the record on appeal in these
consolidated cases. The facts and legal arguments are adequately presented, and the decisional
process would not be significantly aided by oral argument. Upon consideration of the standard of

       1
         Pursuant to Rule 41 of the West Virginia Rules of Appellate Procedure, we substituted
Commissioner Matkovich for the previous respondent in this matter, former Commissioner
Griffith, as the correct party name herein.
                                                 1

review, the briefs, and the record presented, the Court finds no substantial question of law and no
prejudicial error. For these reasons, a memorandum decision affirming the circuit court’s orders
is appropriate under Rule 21 of the Rules of Appellate Procedure.

        Sometime prior to 2005, Brenda Alderman (“Ms. Alderman”) became the executrix of
the estate of Lloyd Allen Cogar Jr. In that role, Ms. Alderman filed a civil action in the Circuit
Court of Braxton County for the purpose of selling estate assets to pay the estate’s outstanding
debts. Petitioner Blyler appeared as legal counsel for Petitioner Cogar III and filed an answer on
his behalf. The Circuit Court of Braxton County ultimately ordered the sale of the estate’s real
property.

        Thereafter, in November of 2005, the Circuit Court of Braxton County appointed
Petitioner Blyler and Ms. Alderman’s then-attorney, William C. Martin, as “Special
Commissioners of the Court” to conduct the sale of the estate’s real property. That real property
consisted of one parcel located in Braxton County, West Virginia, and one parcel located in
Webster County, West Virginia. The circuit court ordered that the special commissioners post a
bond in the amount of $50,000, which they subsequently posted.

       In February of 2006, Petitioner Blyler and Mr. Martin, as special commissioners, sold the
Braxton County parcel and opened a joint account with City National to deposit the proceeds
from that sale.2 To open that account, Mr. Martin used his Federal Employment Identification
Number, but Petitioner Blyler used his personal social security number.

       By order entered in April of 2006, the circuit court approved the sale of the Braxton
County parcel. In that order, the circuit court specifically directed that the balance from the sale
“be deposited by William C. Martin, in his trust account to be distributed upon further order of
this Court[.]” That order provided that it was “prepared and approved by” Petitioner Blyler and
Mr. Martin.

        One year later, in April of 2007, Petitioner Blyler and Mr. Martin sold the Webster
County parcel and deposited the proceeds from that sale in the City National account opened in
February of 2006. Shortly thereafter, the circuit court approved the sale of the Webster County
parcel. At that time, the circuit court also relieved Mr. Martin as a special commissioner in this
case. In that order, the circuit court further specifically directed that the balance from the
Webster County sale “be deposited by Howard J. Blyler, in his trust account to be distributed
upon further order of this Court[.]” That order provided that it was “prepared and approved by”
Petitioner Blyler. Mr. Martin’s name was subsequently removed from the City National account.

       In March of 2009, the West Virginia Tax Department (“Tax Department”) issued a notice
of tax levy on City National due to Petitioner Blyler’s outstanding personal tax debt in the
amount of $157,700.96. Thereafter, the Tax Department levied the City National account held in

       2
        Petitioner Blyler claims that this account was originally opened as a “special
commissioner” account, but that City National thereafter removed that designation from the
account’s title. Also, the exact amount of funds received for each parcel is unclear from the
record on appeal.
                                                 2

Mr. Blyler’s name in the amount of $96,851.3 Petitioner Blyler admits that he knew of the levy
soon after it occurred.

       In October of 2013, Petitioner Blyler filed a civil action against the West Virginia Tax
Commissioner and City National to recover the funds levied by the Tax Department from the
City National account in 2009. He filed that action as special commissioner of the court and on
behalf of the heirs of the estate of Lloyd Allen Cogar Jr., namely Petitioner Cogar III , Petitioner
Wilson, and Ms. Alderman. The action requested injunctive relief and demanded relief from the
defendants for breach of a fiduciary duty and conversion. While originally filed in the Circuit
Court of Braxton County, the action was later transferred to the Circuit Court of Kanawha
County as the proper venue to decide legal issues with respect to the Tax Commissioner.4 In
December of 2013, the circuit court granted a motion filed by the heirs of the estate of Lloyd
Allen Cogar Jr. to release to them the $50,000 special commissioners’ bond.

        In June of 2014, the circuit court held a hearing on the Tax Commissioner’s motion to
dismiss.5 In July of 2014, following litigation and discovery, the circuit court granted the Tax
Commissioner’s motion to dismiss the action. By that order, the circuit court ruled that
petitioners were barred from successfully bringing suit in 2013 on the claim of conversion
because the two-year statute of limitations applicable to that tort action had expired. Petitioners
filed motions for reconsideration of judgment in late July of 2014, but the circuit court denied
those motions. In November of 2014, the circuit court granted City National’s motion for
summary judgment also on the statute of limitations issue. This appeal followed.

       We have held that

       “‘[a]ppellate review of a circuit court’s order granting a motion to dismiss a
       complaint is de novo.’ Syl. pt. 2, State ex rel. McGraw v. Scott Runyan Pontiac–
       Buick, Inc., 194 W.Va. 770, 461 S.E.2d 516 (1995).” Syllabus point 1, State ex
       rel. Smith v. Kermit Lumber & Pressure Treating Co., 200 W.Va. 221, 488 S.E.2d
       901 (1997).

Syl. Pt. 1, Bowers v. Wurzburg, 205 W.Va. 450, 519 S.E.2d 148 (1999). With regard to summary
judgment, we have explained that “[a] motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts
is not desirable to clarify the application of the law.” Syllabus Point 3, Aetna Casualty & Surety
Co. v. Federal Ins. Co. of N.Y., 148 W.Va. 160, 133 S.E.2d 770 (1963). “A circuit court’s entry
of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451
S.E.2d 755 (1994).

       3
         There is no indication in the limited record on appeal that Petitioner Blyler knew of the
tax levy at the time it occurred or before or that he intentionally misappropriated funds.
       4
         See West Virginia Code § 14-2-2 (providing venue requirements for certain suits and
actions brought against the State of West Virginia or certain State officers).
       5
           No transcript of this hearing is included in the limited record on appeal.
                                                    3
        Contrary to Petitioner Blyler’s argument that the City National account belonged to the
State of West Virginia due to his role as a court-ordered special commissioner, the account was
held in his name and with his personal social security number. Moreover, the court orders
directing the deposit of those funds clearly provided that the funds were to be deposited in
lawyer trust accounts, which did not occur. Petitioner Blyler failed to follow the court’s directive
on the deposit of those funds, and, therefore, that order provides no safeguard under the facts
presented here. Based on the circumstances in this case, we cannot find that Petitioner Blyler’s
role as a special commissioner or the circuit court’s orders directing sale and deposit of those
funds permit him and the heirs of the Cogar estate to file civil actions on behalf of the State or
the judicial branch. Notably, even if we agreed with Petitioner Blyler’s argument, “[e]very
statute of limitation, unless otherwise expressly provided, shall apply to the State.” West Virginia
Code § 55-2-19. Our relevant case law on the applicability of statutes of limitations to the State
supports the plain language of that statute. See State ex rel. Smith v. Kermit Lumber & Pressure
Treating Co., 200 W.Va. 221, 488 S.E.2d 901 (1997). Thus, assuming West Virginia Code § 55­
2-19 applied to the instant case, that statute would not permit this civil action to forever avoid
statutes of limitation.

        Further, if we found that Petitioner Blyler is correct that his written agreements with City
National provided for a five-year statute of limitation on this action, it appears that those
documents were executed in 2006 and, arguably, 2007. This action was filed in 2013—more than
five years after the apparent execution of those documents. It is unclear how the extended five-
year statute of limitations under Petitioner Blyler’s alternative argument would have changed the
outcome of the proceedings below.

        In this case, it is clear from the record on appeal that Petitioner Blyler’s civil action filed
to recover money for the Cogar estate alleged only breach of a fiduciary duty and conversion.
Our law is also clear that the torts of conversion and breach of fiduciary duty are governed by the
two-year statute of limitation in West Virginia Code § 55-2-12.6 See Cart v. Marcum, 188 W.Va.
241, 243, 423 S.E.2d 644, 646 (1992) (stating that “[t]he statute of limitation for this type of tort
[conversion] is two years.”), overruled in part on other grounds by Dunn v. Rockwell, 225 W.Va.
43, 689 S.E.2d 255 (2009). Given the undisputed timing of the events at issue herein and the
failure of Petitioner Blyler to demonstrate any exception to the two-year statute of limitations,
we find no error in the circuit court’s application of the two-year statute of limitations to resolve
this case. Therefore, under the specific circumstances of this case, we find no merit to Petitioner
Blyler’s assignments of error.

       6
           West Virginia Code § 55-2-12 provides as follows:

       Every personal action for which no limitation is 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 common law by or against his personal representative.
                                                  4

        As to Petitioners Cogar III and Wilson, they argue that they only discovered their
actionable claim in 2012—one year before this action’s filing. Therefore, they assert that the
circuit court erred in failing to apply the discovery rule to toll the running of the two-year statute
of limitations until 2012. This Court has held that

               “[i]n tort actions, unless there is a clear statutory prohibition to its
       application, under the discovery rule the statute of limitations begins to run when
       the plaintiff knows, or by the exercise of reasonable diligence, should know (1)
       that the plaintiff has been injured, (2) the identity of the entity who owed the
       plaintiff a duty to act with due care, and who may have engaged in conduct that
       breached that duty, and (3) that the conduct of that entity has a causal relation to
       the injury.” Syllabus Point 4, Gaither v. City Hosp., Inc., 199 W.Va. 706, 487
       S.E.2d 901 (1997).

Syl. Pt. 3, Dunn, 225 W.Va. at 46, 689 S.E.2d at 258. In Syllabus Point 2 of Cart v. Marcum, 188
W.Va. 241, 423 S.E.2d 644 (1992) we stated that “[t]he ‘discovery rule’ is generally applicable
to all torts, unless there is a clear statutory prohibition of its application.” However, we have
explained that “[o]nce the defendant shows that the plaintiff has not filed his or her complaint
within the applicable statute of limitations, the plaintiff has the burden of showing an exception
to the statute.” Worley v. Beckley Mech., Inc., 220 W.Va. 633, 638 n. 7, 648 S.E.2d 620, 625 n. 7
(2007) (citing Syl. Pt. 3, Cart v. Marcum, 188 W.Va. 241, 423 S.E.2d 644 (1992), overruled on
other grounds by Dunn, 225 W.Va. at 51-52, 689 S.E.2d at 263-64).

        Under the facts of this case, Petitioners Cogar III and Wilson failed to provide the circuit
court with any evidence in support of their claim that they learned of the missing funds in 2012.
The circuit court determined that, without an affidavit or other such evidence to support their
claims, their argument fails under the test set forth in Dunn v. Rockwell and Gaither v. City
Hosp., Inc. Given a lack of evidentiary support before the circuit court in this matter, we find no
error in the circuit court’s conclusion that the discovery rule is inapplicable in this case.

        Moreover, had proper evidence been placed before the circuit court at the correct time,
Petitioners Cogar III and Wilson would likely not have survived the scrutiny of the discovery
rule under the facts of this case. It appears from the record on appeal that through the exercise of
reasonable diligence, they could have known that those funds were taken and how that occurred.
Petitioner Blyler has demonstrated great honesty in this matter and had Petitioners Cogar III and
Wilson called upon him to inquire of the funds, it is reasonable to assume they would have
known at that time.

        For the foregoing reasons, we find no error in the circuit court’s orders entered
respectively on July 7, 2014, and November 26, 2013, and they are hereby affirmed.


                                                                                           Affirmed.




                                                  5

ISSUED: November 23, 2015

CONCURRED IN BY:

Justice Brent D. Benjamin
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis




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