                            STATE OF WEST VIRGINIA 

                          SUPREME COURT OF APPEALS 



Alan Reed Talbott,
Defendant Below, Petitioner                                                        FILED
                                                                                June 8, 2018
vs) No. 17-0832 (Upshur County 14-C-96)                                      EDYTHE NASH GAISER, CLERK
                                                                             SUPREME COURT OF APPEALS
                                                                                 OF WEST VIRGINIA
John David Talbott,
Plaintiff Below, Respondent


                              MEMORANDUM DECISION
       Petitioner Alan Reed Talbott, by counsel Stephen A. Wickland, appeals the August 23,
2017, order of the Circuit Court of Upshur County denying his motion to alter or amend the
judgment against him in the amount of $85,000 following a jury trial. That order also awarded
Respondent John David Talbott attorney’s fees and costs. Respondent, by counsel William J.
O’Brien, filed his response, to which petitioner submitted a reply.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law. For these reasons, a memorandum
decision affirming the circuit court’s order is appropriate under Rule 21 of the Rules of Appellate
Procedure.

        Petitioner and respondent are brothers and were the only children of Betty June Talbott
Santee. After Ms. Santee was hospitalized in February of 2011, she began residing with
petitioner, where she had a daily caregiver. In February of 2011, she was found to have short-
term memory loss and moderate dementia. Two deeds dated August 30, 2011, purported to
convey all of Ms. Santee’s real estate and mineral interests to petitioner. Also in August of 2011,
Ms. Santee appointed petitioner as her power of attorney. In addition, Ms. Santee executed a will
in August of 2011 giving respondent $1,000, and the remainder of her assets to petitioner upon
her death. In October of 2011, Ms. Santee entered a nursing home where she received
rehabilitation and in February of 2012 she went to another nursing home where she remained
until she passed away on July 12, 2014, at the age of eighty-eight. Shortly thereafter, petitioner
informed respondent that Ms. Santee no longer had an estate because all of her assets had been
transferred to petitioner.

        Respondent filed the instant action on September 8, 2014, in which he sought to have the
deeds declared invalid and set aside as void because, respondent alleged, that petitioner procured
the deeds through undue influence, duress, and fraud. Respondent further alleged that petitioner
had tortiously interfered with his inheritance. He alleged that petitioner “deliberately concealed
his efforts to have the [d]eeds created, executed, and recorded” and that he did so when Ms.

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Santee “was not able to understand the nature, character or effect of what she was doing” due to
dementia and a severely weakened mental and physical state. Respondent filed two amended
complaints to request that the circuit court declare Ms. Santee’s August 31, 2011, will void and
find that petitioner breached his fiduciary duties to Ms. Santee.

        At the conclusion of the three-day jury trial, the jury found that petitioner had tortiously
interfered with respondent’s expectation of inheritance and breached his fiduciary duties to their
mother. The jury awarded respondent $85,000 for tortious interference with a testamentary
bequest, and ordered petitioner to turn over $75,000 to Ms. Santee’s estate for breach of his
fiduciary duty. Based on those findings, the circuit court declared the deeds and will null and
void and set them aside in its judgment order dated July 13, 2017. The circuit court also set aside
the August of 2011 will and directed that an earlier, January 11, 2011, will be probated. On July
20, 2017, petitioner filed a motion to alter or amend the judgment order, pursuant to Rule 59 of
the West Virginia Rules of Civil Procedure. In its August 23, 2017, memorandum order, the
circuit court denied petitioner’s motion to alter or amend the judgment, finding that petitioner
had waived the defense of the statute of limitations and that respondent was a successor in
interest to Ms. Santee under the Uniform Partnership Act. Petitioner appeals from this order.

       Petitioner’s Rule 59 motion is reviewed under the following standard:

               The standard of review applicable to an appeal from
       a motion to alter or amend a judgment, made pursuant to W. Va. R. Civ. P. 59(e),
       is the same standard that would apply to the underlying judgment upon which
       the motion is based and from which the appeal to this Court is filed.

Syl. Pt. 1, Wickland v. American Travellers Life Ins. Co., 204 W. Va. 430, 513 S.E.2d 657
(1998). As we explained in Wickland

       Rule 59(e) of the West Virginia Rules of Civil Procedure permits a party to make
       “[a] motion to alter or amend the judgment . . . [within] 10 days after entry of the
       judgment.” The practical effect of such a motion is to enlarge the time within
       which an appeal must be filed as to those matters which are the subject of the
       motion. See, e.g., Syl. pt. 7, James M.B. v. Carolyn M., 193 W.Va. 289, 456
       S.E.2d 16 (1995) (“A motion for reconsideration filed [pursuant to W. Va. R. Civ.
       P. 59(e) ] within ten days of judgment being entered suspends the finality of the
       judgment and makes the judgment unripe for appeal. When the time for appeal is
       so extended, its full length begins to run from the date of entry of the order
       disposing of the motion.”).

204 W.Va. at 434, 513 S.E.2d at 661.

        On appeal, petitioner asserts three assignments of error. First, he argues that the circuit
court erred in permitting a judgment against him based upon a tort in violation of the statute of
limitations. Petitioner correctly points out that West Virginia Code § 55-2-12 mandates a two-
year statute of limitations for personal actions not otherwise provided for, including damages for
personal injuries. He contends that respondent’s underlying action was subject to that two-year
statute of limitations, so he filed a motion to dismiss below. In response, respondent amended his
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complaint to allege that petitioner concealed his actions related to Ms. Santee’s execution of
deeds and the new will in August of 2011. However, petitioner argues that respondent failed to
present sufficient evidence that application of the discovery rule was warranted. He also
criticizes the circuit court’s failure to instruct the jury as to the two-year statute of limitations.

       In syllabus points two, three, and four of Dunn v. Rockwell, 225 W. Va. 43, 689 S.E.2d
255 (2009), this Court addressed the applicability of the discovery rule as follows:

               2. The “discovery rule” is generally applicable to all torts, unless there is a
       clear statutory prohibition to its application.

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

               4. Under the discovery rule set forth in Syllabus Point 4 of Gaither v. City
       Hosp., Inc., 199 W.Va. 706, 487 S.E.2d 901 (1997), whether a plaintiff “knows
       of” or “discovered” a cause of action is an objective test. The plaintiff is charged
       with knowledge of the factual, rather than the legal, basis for the action. This
       objective test focuses upon whether a reasonable prudent person would have
       known, or by the exercise of reasonable diligence should have known, of the
       elements of a possible cause of action.

        In response to the original complaint filed below, petitioner filed a motion to dismiss
based on the statute of limitations. However, after respondent filed his amended complaint, with
permission from the circuit court, petitioner failed to move to dismiss the amended complaint or
present any evidence or instruction to the jury regarding respondent’s alleged failure to timely
assert his claims. In the amended complaint, respondent asserted that only after Ms. Santee died
did petitioner inform him that there was no estate to administer because petitioner had arranged
for their mother to transfer all of her assets to petitioner. In that amended complaint, respondent
further alleged that the execution and delivery of deeds were a result of petitioner’s undue
influence, duress, and fraud, and that petitioner deliberately concealed his efforts to have the
deeds created, executed, and recorded. He also contended that petitioner requested that the deeds
not be published when petitioner caused them to be recorded. Respondent further alleged that
petitioner never informed him about the deeds until after their mother’s death, despite having
numerous opportunities to do so. It is undisputed that petitioner failed to ask the circuit court to
dismiss the amended complaint based upon statute of limitations grounds or present the circuit
court with a request for a jury instruction regarding the same. As this Court set forth in State v.
Guthrie,

       [t]he raise or waive rule was explained in Wimer v. Hinkle, 180 W.Va. 660, 663,
       379 S.E.2d 383, 386 (1989), as part of a design “to prevent a party from obtaining
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       an unfair advantage by failing to give the trial court an opportunity to rule on the
       objection and thereby correct potential error.” Additionally, we noted in State v.
       LaRock, 196 W.Va. 294, 316, 470 S.E.2d 613, 635 (1996), that
       the raise or waive rule seeks to “prevent[ ] a party from making a tactical decision
       to refrain from objecting and, subsequently, should the case turn sour, assigning
       error (or even worse, planting an error and nurturing the seed as a guarantee
       against a bad result).”

205 W. Va. 326, 344, 518 S.E.2d 83, 101 (1999). Further, the “failure to even offer a jury
instruction . . . constitutes a waiver of this alleged error . . . and precludes appellate review.”
Rodriguez v. Consolidation Coal Co., 206 W. Va. 317, 327, 524 S.E.2d 672, 682 (1999).
Because petitioner failed to raise this issue following the filing of the amended complaint, we
find that he waived any such alleged error.

        Petitioner’s second assignment of error is his contention that the circuit court erred by
permitting the deed to be set aside in violation of the statute of limitations. Petitioner makes a
number of factual assertions, including that when Ms. Santee conveyed her real estate to
petitioner she was mobile, communicative, opinionated, and reasonable. However, he fails to cite
to the record for any of these factual assertions. Further, his sole reference to the record in this
assignment of error is to the first page of the circuit court’s judgment order, which does not
contain any relevant factual findings or legal conclusions. Rule 10(c)(7) of the West Virginia
Rules of Appellate Procedure provides as follows:

       Argument. The brief must contain an argument exhibiting clearly the points of
       fact and law presented, the standard of review applicable, and citing the
       authorities relied on, under headings that correspond with the assignments of
       error. The argument must contain appropriate and specific citations to the record
       on appeal, including citations that pinpoint when and how the issues in the
       assignments of error were presented to the lower tribunal. The Court may
       disregard errors that are not adequately supported by specific references to the
       record on appeal.

        The judgment order in this case shows that the jury found that Ms. Santee lacked
sufficient mental capacity to understand, without prompting by others, the nature and extent of
her property on August 30, 2011. The jury further found that Ms. Santee lacked sufficient mental
capacity to understand the ramifications of her actions when she executed the will and deeds on
August 30, 2011, and that petitioner exercised undue influence on Ms. Santee, overcoming her
free agency and causing her to execute the will and deeds on August 30, 2011. Petitioner failed
to present a jury instruction on the statute of limitations issue set forth in this assignment of error.
Further, due to petitioner’s lack of reference to the record, this Court is left without sufficient
information to fully consider this argument.

       “A skeletal ‘argument’, really nothing more than an assertion, does not preserve a
       claim. . . . Judges are not like pigs, hunting for truffles buried in briefs.” United
       States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991); accord Teague, 35 F.3d at



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       985 n. 5; State v. Honaker, 193 W.Va. 51, 56 n. 4, 454 S.E.2d 96, 101 n. 4
       (1994).

State, Dep’t. of Health and Human v. Robert Morris N., 195 W. Va. 759, 765, 466 S.E.2d 827,
833 (1995). Petitioner has failed to show error on the record before this Court.

        Finally, petitioner asserts that any judgment order regarding the power of attorney is only
applicable to a successor in interest of Ms. Santee, subject to the limitations of West Virginia
Code § 39B-1-117.1 Again, without citing to the record, petitioner states that after Ms. Santee
executed the deeds and power of attorney in 2011, he “took care of all of her food, clothing,
shelter and medical needs. There is no evidence she lacked for financial resources . . . In January
2011, Ms. Santee had approximately $100,000. This was gone when she died.”

         Without citing any authority for his argument, petitioner argues that any accounting or
liability for the misuse of funds is the responsibility of the successor in interest of Ms. Santee; he
contends that if the January 11, 2011, will is followed, then Terry Gould is the executor but if the
August 30, 2011, will is followed, petitioner is the executor. While he argues that the executor is
Ms. Santee’s successor in interest, he again fails to cite any legal authority for that proposition.
The same is true for his claim that respondent is not Ms. Santee’s successor in interest leaving
him unable to claim damages from the estate. The circuit court determined that respondent was a
successor in interest of Ms. Santee. However, because petitioner has, yet again, failed to comply
with Rule 10(c)(7) of the West Virginia Rules of Appellate Procedure, leaving this Court to try
to determine the bases for this convoluted argument, we decline to address the merits of what we
perceive his argument to be.

       For the foregoing reasons, we affirm.

                                                                                           Affirmed.

ISSUED: June 8, 2018



       1
           West Virginia Code § 39B-1-117 provides as follows:

       (a) An agent that violates this act is liable to the principal or the principal’s
       successors in interest for the amount required to:
       (1) Restore the value of the principal's property to what it would have been had
       the violation not occurred;
       (2) Reimburse the principal or the principal's successors in interest for the
       attorney's fees and costs paid on the agent's behalf out of the principal's assets;
       (3) Reimburse the reasonable attorneys fees and costs incurred by the principal or
       the principal’s successors in interest in pursuing rectification of the violation by
       the agent; and
       (4) Pay such other amounts, damages, costs or expenses as the court may award.



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CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker




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