Wesbanco Bank, Inc. v. Crystal Gayle Ellifritz ( 2023 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2023 Term FILED
_______________ June 15, 2023
released at 3:00 p.m.
EDYTHE NASH GAISER, CLERK
No. 21-0913 SUPREME COURT OF APPEALS
OF WEST VIRGINIA
_______________
WESBANCO BANK, INC.,
Petitioner,
v.
CRYSTAL GAYLE ELLIFRITZ,
Respondent.
____________________________________________________________
Appeal from the Circuit Court of Monongalia County
The Honorable Phillip D. Gaujot, Judge
Case No. 19-C-87
AFFIRMED
____________________________________________________________
Submitted: February 7, 2023
Filed: June 15, 2023
James C. Gardill, Esq. Frank E. Simmerman, Jr, Esq.
PHILLIPS GARDILL KAISER & Chad L. Taylor, Esq.
ALTMEYER PLLC Frank E. Simmerman, III, Esq.
Wheeling, West Virginia SIMMERMAN LAW OFFICE, PLLC
and Clarksburg, West Virginia
James A. Walls, Esq. Counsel for Respondent Crystal Gayle
Morgantown, West Virginia Ellifritz
Joseph A. Ford, Esq.
Charleston, West Virginia Sandra M. Murphy, Esq.
SPILLMAN THOMAS & BATTLE, PLLC Thomas A. Heywood, Esq.
Counsel for Petitioner J. Mark Adkins, Esq.
Wesbanco Bank, Inc. Peter G. Markham, Esq.
BOWLES RICE LLP
Charleston, West Virginia
Counsel for Amici Curiae Community
Bankers of West Virginia and the West
Virginia Bankers Association
JUSTICE WOOTON delivered the Opinion of the Court.
CHIEF JUSTICE WALKER and JUSTICE HUTCHISON concur and reserve the right to
file separate opinions.
JUSTICE BUNN dissents and reserves the right to file a separate opinion.
SYLLABUS BY THE COURT
1. “When this Court reviews a trial court’s order granting or denying a
renewed motion for judgment as a matter of law after trial under Rule 50(b) of the West
Virginia Rules of Civil Procedure [1998], it is not the task of this Court to review the facts
to determine how it would have ruled on the evidence presented. Instead, its task is to
determine whether the evidence was such that a reasonable trier of fact might have reached
the decision below. Thus, when considering a ruling on a renewed motion for judgment as
a matter of law after trial, the evidence must be viewed in the light most favorable to the
nonmoving party.” Syl. Pt. 2, Fredeking v. Tyler, 224 W. Va. 1, 680 S.E.2d 16 (2009).
2. “As a general rule, the refusal to give a requested jury instruction is
reviewed for an abuse of discretion. By contrast, the question of whether a jury was
properly instructed is a question of law and the review is de novo.” Syl. Pt. 1, State v.
Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996).
3. “A trial court’s refusal to give a requested instruction is reversible
error only if: (1) the instruction is a correct statement of law; (2) it is not substantially
covered in the charge actually given to the jury; and (3) it concerns an important point in
the trial so that the failure to give it seriously impairs a defendant’s ability to effectively
present a given defense.” Syl. Pt. 11, State v. Derr, 192 W. Va. 165, 451 S.E.2d 731 (1994).
i
4. “‘The formulation of jury instructions is within the broad discretion
of a circuit court, and a circuit court’s giving of an instruction is reviewed under an abuse
of discretion standard. A verdict should not be disturbed based on the formulation of the
language of the jury instructions so long as the instructions given as a whole are accurate
and fair to both parties.’ Syllabus Point 6, Tennant v. Marion Health Care Foundation,
Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).” Syl. Pt. 3, Keesee v. Gen. Refuse Serv., Inc.,
216 W. Va. 199, 604 S.E.2d 449 (2004).
5. “‘“An instruction should not be given when there is no evidence
tending to prove the theory upon which the instruction is based.” Syl. pt. 4, Hovermale v.
Berkeley Springs Moose Lodge No. 1483, [165] W.Va. [689], 271 S.E.2d 335 (1980).’
Syllabus point 3, Jenrett v. Smith, 173 W.Va. 325, 315 S.E.2d 583 (1983).” Syl. Pt. 4,
Maples v. W. Va. Dep’t of Com., 197 W. Va. 318, 475 S.E.2d 410 (1996).
6. “‘This Court will not consider questions, nonjurisdictional in their
nature, which have not been acted upon by the trial court.’ Syl. pt. 4, Wheeling Downs
Racing Association v. West Virginia Sportservice, Inc., 157 W.Va. 93, 199 S.E.2d 308(1973).” Syl. Pt. 3, Dean v. W. Va. Dep’t of Motor Vehicles, 195 W. Va. 70, 464 S.E.2d
589 (1995).
ii
WOOTON, Justice:
In 2018 Respondent Crystal Gayle Ellifritz (“Ms. Ellifrtiz”) presented to
WesBanco Bank, Inc. (“WesBanco” or “the bank”) and demanded payment of an original,
unendorsed money market certificate of deposit (“certificate of deposit,” “CD,” or
“certificate”) originally issued in 1980 by Central National Bank and payable to either Ms.
Ellifritz or her father.1 The Petitioner WesBanco, successor in interest to Central National
Bank, denied payment after determining there was no existing account associated with the
certificate, or with Ms. Ellifritz or her father. Thereafter, Ms. Ellifritz filed suit in the
Circuit Court of Monongalia County, including among several claims an allegation that
WesBanco breached its contract by refusing to tender payment upon her presentation of
the original certificate. The matter proceeded to trial. At the conclusion of the evidence
WesBanco moved for judgment as a matter of law, contending that Ms. Ellifritz had failed
to establish the existence of a contract. WesBanco argued that the absence of account
records resulted in a presumption that the funds in the account had been disbursed to either
Ms. Ellifritz or her father. The circuit court denied the motion and submitted the matter to
the jury. The jury charge did not include two instructions requested by WesBanco. The
jury found for Ms. Ellifritz and awarded her damages. WesBanco now appeals.
1
The Court would like to acknowledge the participation in this case of the Bankers
of West Virginia and the West Virginia Bankers Association who filed a joint amicus brief
in support of WesBanco. We have considered the arguments presented by the amici curiae
in deciding this case.
1
Upon review of the briefs, the appendix record, the applicable law and the
arguments of the parties, we conclude that the circuit court did not err in denying
WesBanco’s motion for judgment as a matter of law. Likewise, we conclude that the circuit
court did not err in refusing the two proffered jury instructions. Finally, we conclude that
the filing of this matter was not barred by the applicable statute of limitations, as contended
by WesBanco. Accordingly, we affirm the order of the circuit court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 31, 1980, Ms. Ellifritz’s father, Dewey Ellifritz, deposited
$10,000 in a money market time deposit account2 at Central National Bank, made payable
to either Dewey Ellifritz or Ms. Ellifritz. The account had a twenty-six-week term with an
initial interest rate of 14.282% and an initial maturity date of July 1, 1981. If unredeemed
at the maturity date the account automatically renewed for successive twenty-six-week
terms at the “then prevailing U.S. Treasury bill rate.” Central National Bank issued a
certificate of deposit for the account which conspicuously stated on its face that the account
was payable “IN CURRENT FUNDS 26 WEEKS AFTER DUE DATE, ON THE
RETURN OF THIS CERTIFICATE PROPERLY ENDORSED[.]” The parties both agree
that this is generally referred to in the banking industry as a “presentation clause” or
2
According to the certificate of deposit, the account was designated No. 5249.
2
“surrender clause.” On the back of the certificate is a release to be signed upon redemption,
as well as a list of named “Terms and Conditions” which includes the following statement:
JOINT CERTIFICATES: When two or more persons
are named as depositors on this Certificate with the conjunction
“or” appearing between names, then such Certificate shall be
payable to any or the survivor or survivors of them and
payment may be made upon surrender of this Certificate to any
of them during the lifetime of all, or to any survivor or
survivors after the death of one or more of them. When the
conjunction “and” appears between names, the Certificate shall
be payable only upon the signatures of all depositors named.
Through two mergers, one in 1994 and one in 2000, Central National Bank
became a part of WesBanco.3 WesBanco, as the surviving entity, acquired all of the
merging entities’ open accounts, including all funded time deposit accounts such as the
certificate of deposit at issue herein. The record indicates that WesBanco uses two separate
electronic recordkeeping systems: its core system, Bankway; and its document
management system, IS-View. Searching these two systems using a person’s name or
social security number generates a list of all active accounts at WesBanco associated with
that person; the results also show every account associated with that person that has closed
since the year 2000.4 Put simply, WesBanco states that if an account was open at
WesBanco as of the year 2000, or closed thereafter, it would appear in one or both of these
3
In 1994 Central National Bank merged into WesBanco Bank Fairmont, Inc.; and
in 2000, WesBanco Fairmont merged into WesBanco Bank Wheeling, Inc.
4
It is undisputed that WesBanco digitized its account records as of the year 2000
and continues to maintain those digital records.
3
systems. Any account which was closed prior to 2000 would not appear in the digitized
records.
In December 2018, following the death of her father, Ms. Ellifritz found the
original certificate of deposit in his safe. She presented the certificate to her local
WesBanco branch and demanded payment. WesBanco performed a search of its
recordkeeping systems and was unable to locate any record of an account—either active or
closed—associated with the certificate, or with Ms. Ellifritz or her father’s identifying
information. As a result, WesBanco concluded that the account closed prior to the year
2000, informed Ms. Ellifritz there was nothing to redeem, and denied payment.
Thereafter, in April 2019, Ms. Ellifritz filed suit against WesBanco in the
Circuit Court of Monongalia County alleging breach of contract, unjust enrichment, and
constructive fraud,5 as well as a claim for punitive damages.6 Ms. Ellifritz alleged in
5
Ms. Ellifritz’s constructive fraud claim was predicated on a statement allegedly
made to her by a teller at her local WesBanco branch that this money market account had
escheated to the State. She contended this was an intentional misrepresentation based on
WesBanco’s corporate representative’s later testimony that the bank investigated—both
internally and with the State Treasurer—whether the funds had escheated and determined
conclusively that they had not. As explained below, the circuit court granted WesBanco’s
motion for judgment as a matter of law on this claim.
6
The unjust enrichment and constructive fraud claims were dismissed pursuant to
WesBanco’s successful motion for judgment as a matter of law at the close of Ms.
Ellifritz’s case-in-chief. See W Va. R. Civ. P. 50(a) (providing that a court may grant such
motion “with respect to a claim or defense that cannot under the controlling law be
maintained or defeated without a favorable finding on that issue.”). The punitive damages
claim was dismissed pursuant to WesBanco’s renewed motion for judgment as a matter of
4
support of her breach of contract claim that the certificate of deposit constituted an
enforceable contract, and WesBanco breached the presentation clause of that contract by
failing to tender payment upon presentation of the original certificate.
WesBanco moved to dismiss the breach of contract claim, arguing that: (1)
Ms. Ellifritz was unable to demonstrate the existence of an enforceable contract; (2) the
absence of records relating to the account created a presumption that either Ms. Ellifritz or
her father had closed the account; and (3) the claim was barred by the statute of limitations.
The circuit court denied the motion in January 2021, and the matter proceeded to trial in
March of that year.
At trial Ms. Ellifritz contended that the presentation clause on the face of the
certificate constituted a binding contractual term requiring WesBanco to remit payment to
her upon presentation of the certificate and her demand for payment. She argued that
WesBanco had no evidence to support its contention that it had properly paid the funds to
a co-depositor (e.g., Dewey Ellifritz) at an earlier time without presentation of the
certificate. WesBanco, in response, contended that (1) the presentation clause did not create
a substantive right upon which Ms. Ellifritz could recover; and (2) any records of payment
law at the close of all evidence. See id. Therefore, the breach of contract claim was the
only claim presented to the jury.
5
to a co-depositor would have been properly destroyed pursuant to state laws governing the
retention of banking records.7
In support of their respective arguments, Ms. Ellifritz presented the original
certificate of deposit and testified that her father kept the certificate in its original cover in
the family safe from the time he made the initial deposit in 1980 until the time of his death.
She explained that she came into possession of the certificate after his death, when she
found it in the safe.
WesBanco presented the testimony of four witnesses: Theresa Barry, a
research clerk in WesBanco’s Wheeling office; Norma Fisher, an administrative assistant
in the same office; Joan Miller, WesBanco’s corporate representative; 8 and William
Buchanan, WesBanco’s Vice President and Manager of Bank Operations. Ms. Barry and
Ms. Fisher each testified that they personally performed searches of WesBanco’s electronic
file systems and could locate no information related to this account or to either of the
Ellifritzes. Mr. Buchanan testified to the contents of the certificate, specifically testifying
to the manner in which WesBanco handles time deposit accounts (i.e., mailing out renewal
notices and interest forms). He also testified as to WesBanco’s procedures in facilitating
mergers with other banks, including auditing processes between the two entities to ensure
7
See W. Va. Code § 31A-4-35 (2006) (discussed infra in greater detail).
8
Ms. Miller’s deposition testimony was read into the record at trial.
6
that the data balanced before, during, and after the merger. In that regard, he testified that
WesBanco had not lost information pertaining to a single account during a merger in the
nineteen years he had worked for the bank.
Ms. Miller was designated as WesBanco’s corporate representative pursuant
to Rule 30(b)(7) of the West Virginia Rules of Civil Procedure, and testified on numerous
topics, including the procedures for searching the bank’s electronic systems for account
records. She stated that, had the Ellifritz account been active as of the year 2000, it would
have been incorporated into the electronic systems when WesBanco digitized its files. She
further stated that she had personally redeemed certificates of deposit issued by Central
National Bank during her tenure with WesBanco. Significantly, she conceded that Ms.
Ellifritz’s certificate of deposit constituted a contract containing terms and conditions both
on the face and reverse of the certificate. She further conceded that those terms and
conditions included that the certificate was “payable on the return of this certificate
properly endorsed” and that payment would only be made to a co-depositor on a joint
account, or to his or her survivor, upon presentation of the endorsed certificate.
Notwithstanding the terms and conditions expressly set forth on the certificates, however,
Ms. Miller testified that WesBanco’s practice was to permit withdrawal of the money
deposited without presentation of the certificate if one of the named depositors provided
identification.
7
WesBanco first moved for judgment as a matter of law at the close of Ms.
Ellifritz’s case-in-chief. As noted supra, the circuit court granted in part but denied the
motion as to the breach of contract claim.9 At the close of all the evidence both WesBanco
and Ms. Ellifritz moved for judgment as a matter of law on the breach of contract claim.
Ms. Ellifritz argued that WesBanco presented no evidence that this account had been
disbursed, so it was obligated to adhere to the terms of its contract and tender payment to
her upon presentation of the endorsed certificate. WesBanco reiterated its argument that
Ms. Ellifritz failed to establish the existence of a contractual relationship at the time she
made her demand for payment in 2018, and that the absence of account records led to a
presumption that this account had been disbursed and closed before digitization in 2000.
In denying both motions,10 the circuit court summarized the evidence presented and
concluded that a jury could reasonably infer either that the absence of records indicated the
account had been disbursed, or that the records had been either intentionally or negligently
lost. The court thus determined that the evidence, and the differing inferences that could
be drawn therefrom, compelled submission of this issue to a jury.
Thereafter the circuit court considered the jury charge, and WesBanco
proposed two jury instructions11 based on this Court’s holding in Peters v. Peters, 191 W.
9At this stage, the punitive damages claim was also still viable.
10
However, the circuit court partially granted WesBanco’s motion with regard to
the punitive damages claim. See supra note 6.
11
The proposed instructions are set forth and discussed infra in greater detail.
8
Va. 56, 443 S.E.2d 213 (1994). The court declined to give the proposed instructions,
determining that Peters was factually distinguishable (in Peters the bank had records
demonstrating that the funds were disbursed to a co-depositor), and because WesBanco’s
designated corporate representative testified that the presentation clause contained in the
certificate was a binding contractual term. The circuit court instructed the jury, and after
deliberation the jury returned a verdict for Ms. Ellifritz. On March 3, 2021, the circuit
court entered an order memorializing the verdict and awarding Ms. Ellifritz stipulated
damages in the amount of $51,209.75, plus post-judgment interest and costs. WesBanco
now appeals.
II. STANDARD OF REVIEW
WesBanco’s arguments require the application of different standards of
review. First, WesBanco appeals the denial of its renewed motion for judgment as a matter
of law. “[T]he standard for reviewing the circuit court’s rulings on pre-verdict and post-
verdict motions for judgment as a matter of law is identical.” Gillingham v. Stephenson,
209 W. Va. 741, 745, 551 S.E.2d 663, 667 (2001). As we held in syllabus point 2 of
Fredeking v. Tyler:
When this Court reviews a trial court’s order granting
or denying a renewed motion for judgment as a matter of law
after trial under Rule 50(b) of the West Virginia Rules of Civil
Procedure [1998], it is not the task of this Court to review the
facts to determine how it would have ruled on the evidence
presented. Instead, its task is to determine whether the evidence
was such that a reasonable trier of fact might have reached the
decision below. Thus, when considering a ruling on a renewed
motion for judgment as a matter of law after trial, the evidence
9
must be viewed in the light most favorable to the nonmoving
party.
224 W. Va. 1, 680 S.E.2d 16 (2009).
Second, WesBanco argues that the circuit court erred in refusing to give two
proposed jury instructions. “As a general rule, the refusal to give a requested jury
instruction is reviewed for an abuse of discretion. By contrast, the question of whether a
jury was properly instructed is a question of law and the review is de novo.” Syl. Pt. 1,
State v. Hinkle, 200 W. Va. 280, 489 S.E.2d 257 (1996); accord Syl. Pt. 11, State v. Derr,
192 W. Va. 165, 451 S.E.2d 731 (1994) (“A trial court’s refusal to give a requested
instruction is reversible error only if: (1) the instruction is a correct statement of law; (2) it
is not substantially covered in the charge actually given to the jury; and (3) it concerns an
important point in the trial so that the failure to give it seriously impairs a defendant’s
ability to effectively present a given defense.”). Moreover,
“[t]he formulation of jury instructions is within the
broad discretion of a circuit court, and a circuit court’s giving
of an instruction is reviewed under an abuse of discretion
standard. A verdict should not be disturbed based on the
formulation of the language of the jury instructions so long as
the instructions given as a whole are accurate and fair to both
parties.” Syllabus Point 6, Tennant v. Marion Health Care
Foundation, Inc., 194 W.Va. 97, 459 S.E.2d 374 (1995).
Syl. Pt. 3, Keesee v. Gen. Refuse Serv., Inc., 216 W. Va. 199, 604 S.E.2d 449 (2004). With
these standards in mind, we now proceed to address the parties’ arguments on appeal.
10
III. ANALYSIS
A. Burden of Proving Existence of Contract
We begin with WesBanco’s argument that the circuit court erred in denying
its motion for judgment as a matter of law on Ms. Ellifritz’s breach of contract claim. This
argument is multifaceted. WesBanco argues that the circuit court required it to prove that
the contract did not exist, thereby improperly shifting the burden of proof. WesBanco also
urges this Court to hold as a matter of law that, given statutory authority for the destruction
of bank records after the passage of a specified period of time, the absence of records of a
bank account creates a presumption that the account has closed. We reject both
contentions.
The crux of the burden-shifting argument is WesBanco’s contention that the
circuit court allegedly required it to prove a nullity: that this certificate of deposit account
had closed prior to 2000 and thus no longer existed at the time of Ms. Ellifritz’s demand
for payment in 2018.
In reviewing an order denying a motion for judgment as a matter of law, this
Court does not reweigh the evidence presented. Rather, our task is to examine whether
that evidence was sufficient “such that a reasonable trier of fact might have reached the
decision below.” Fredeking, 224 W. Va. at 1, 680 S.E.2d at 17, syl. pt. 2. We have no
trouble concluding that the evidence presented was sufficient to overcome WesBanco’s
motion for judgment as a matter of law on Ms. Ellifritz’s breach of contract claim. The
11
facts are clear that Ms. Ellifritz established the initial existence of this contract by
presenting the original certificate of deposit; indeed, WesBanco conceded that point—its
corporate representative testified that the writing on the CD constituted a contract. Thus,
the only issue was whether that contractual relationship still existed in 2018. The parties
submitted competing evidence on that point, and the circuit court found that the absence of
account records in this case, while probative on the issue of whether the contractual
relationship still existed, was not dispositive of that issue. Simply put, the burden remained
on Ms. Ellifritz to establish the continued existence of the contract, leaving WesBanco to
convince the jury that Ms. Ellifritz had not met that burden. No burden was shifted; rather,
the jury was left to weigh the conflicting evidence and determine whether Ms. Ellifritz had
proved the continued existence of the contract.
WesBanco argues that the absence of account records should give rise to a
presumption that the account has been closed, i.e., that the funds were disbursed, based on
language found in provisions of the West Virginia Code governing the retention of banking
records. Specifically, WesBanco directs this Court to West Virginia Code section 31A-4-
35(a) (2006),12 which provides that a bank may destroy records of closed accounts five
12
West Virginia Code section 31A-4-35(a) provides, in pertinent part: “[E]very
banking institution shall retain either the originals or such copies or reproductions of its
records of final entry . . . for a period of at least five years from the date of the last entry
on such books or the date of making of such deposit tickets and card records[.]”
Wesbanco highlights the fact that this statute was amended after the inception of
these proceedings to provide that “any action. . .against a bank for any balance, amount, or
proceeds from any time, savings or demand deposit account based on the contents of
12
years after the final entry on the account (meaning the date the account closed).13 Relying
on caselaw from New York, discussed infra, WesBanco contends that the fact that there
are no records of the Ellifritz account mandates a presumption that the account was closed
before the bank digitized its records (which records ostensibly reflect all accounts open as
of and since 2000 or closed thereafter).
In Krawitt v. Keybank, 871 N.Y.S.2d 842, 844 (N.Y. Sup. Ct. 2008), the court
noted that New York has “a legal presumption of payment after the lapse of twenty years
between the right to enforce an obligation and an attempt to do so.” As a preliminary
records for which a period of retention or preservation is set forth. . .must be brought during
the retention or preservation period.” Id. § 31A-4-35(c) (eff. June 5, 2020). The
amendment is not applicable to this case, so we refrain from addressing what, if any, impact
it would have on matters such as the one before this Court.
Further, insofar as WesBanco’s arguments pertaining to the statutorily permissible
destruction of banking records may be construed as an argument that the trial court erred
in failing to instruct the jury on the law surrounding such record destruction, this Court can
afford WesBanco no relief. The record makes clear that WesBanco never requested an
instruction from the circuit court in this regard. See Syl. Pt. 1, McAllister v. Weirton Hosp.
Co., 173 W. Va. 75, 312 S.E.2d 738 (1983) (“A verdict will not be disturbed for want of a
proper instruction, unless it was requested and refused ….”) (internal citation omitted).
13
WesBanco also directs this Court to provisions of the West Virginia Uniform
Unclaimed Property Act, W. Va. Code §§ 36-8-1 to -33 (2011), to support its position that
the statutory scheme creates an implicit presumption of payment. Specifically, West
Virginia Code section 36-8-2(a)(5) provides that automatically renewing, interest bearing
time deposit accounts such as the account at issue here are presumed abandoned “seven
years after the earlier of the maturity date or the date of the last indication by the owner of
interest in the property.” After the requisite period of time elapses, the bank transmits the
account to the State Treasurer as unclaimed property and must keep records of that
transmission for a minimum of ten years. Id. § 36-8-21. The parties agree that the account
at issue in this case did not escheat to the State, so these provisions are inapplicable.
13
matter, New York has recognized such a presumption for well over a century. See, e.g.,
Bean v. Tonnele, 94 N.Y. 381 (1884). West Virginia has no such presumption; for this
Court to create one would be a dramatic deviation from our long-established law. And
critically, even under New York law the precise factual scenario presented in this appeal—
a depositor has the original certificate of deposit and demands payment, but the bank denies
the existence of that account by citing the absence of records—has been found to create a
genuine issue of material fact for a jury to resolve. See Katzman v. Citibank, 298 Fed.
Appx. 81 (2d Cir. 2008).
The facts presented in Katzman are strikingly similar to the facts in this case.
Eva Katzman, a widow, presented her local Citibank branch with a twenty-year-old
certificate of deposit issued to her late husband. Id. at 82. One of the terms and conditions
on the certificate stated that the certificate must be surrendered to withdraw the funds. Id.Citibank found no record of the account and refused to tender payment to Ms. Katzman.
Id. When Ms. Katzman later sued for breach of contract, Citibank argued that its policies
permitted it to pay out the funds of an account without the surrender of the certificate, and
that the absence of records of the account indicated it must have done so. Id. at 82-83. The
District Court for the Northern District of New York granted summary judgment for
Citibank, relying on New York’s presumption of payment law, but the United States Court
of Appeals for the Second Circuit reversed, finding that Citibank’s evidence of its policy
regarding payment without surrender of the certificate was contradicted by the plain
language on the certificate requiring its presentation to effectuate withdrawal, and that the
14
district court improperly drew an inference of payment in favor of Citibank. Id. at 84. In
so doing, the court stated:
Although Katzman’s only record evidence was, in
essence, the [certificate] itself, it was Citibank’s burden to
demonstrate that no genuine issues of material fact existed with
respect to that [certificate], the authenticity of which does not
appear to be disputed by Citibank. In light of the [certificate]’s
express language that the [certificate] had to be surrendered to
Citibank in order to withdraw the entire balance, Citibank’s
statement that “[s]uch was not necessarily the case” does not
establish conclusively that the relevant account had been paid
out; rather, it creates a genuine issue of material fact entitling
Katzman to have a jury decide how much weight, if any, to
give to that evidence and what inferences, if any, to draw from
that evidence at trial.
Id. at 84.
Similarly, a sister state has found, also on facts virtually identical to those in
this case, that a motion for judgment as a matter of law was improperly granted because
factual issues remained for determination by a jury. See Estate of English v. Regions Bank,
184 So.3d 983 (Miss. Ct. App. 2015). In that case Audie Belle English presented to
Regions Bank an original certificate of deposit issued to her as a co-depositor some twenty
years prior and demanded payment. Id. at 984. Regions Bank denied payment on the
ground that it could not identify any records of the account other than the original certificate
Ms. English presented. Id. In the ensuing breach of contract action Regions Bank moved
for judgment as a matter of law, arguing that the lack of records established that the account
must have been paid out prior to the demand for payment. Id. A Mississippi Chancery
Court found New York’s presumption of payment law persuasive and granted the motion,
15
but the Mississippi Court of Appeals reversed, finding that Mississippi did not have a
longstanding recognition of a presumption of payment, and stating that
we find [the bank’s] failure to furnish any direct evidence as to
where the proceeds went and who had received them,
combined with the evidence that Audie Belle had never
surrendered the original [certificate], created a genuine issue of
material fact for the chancery court to consider and was not an
issue that entitled [the bank] to a judgment as a matter of law.
Id. at 987.
We agree with the reasoning of Katzman and Estate of English and conclude
that under the facts and circumstances of this case, WesBanco’s motion for judgment as a
matter of law was properly denied. There is no presumption of payment in either West
Virginia’s statutes or our caselaw, and we decline to adopt one. Moreover, the dueling
evidence on the contract claim—Ms. Ellifritz’s presentation of the original certificate and
WesBanco’s proffer that it has no records of the account—created a question of fact for a
jury to resolve. The jury determined that Ms. Ellifritz had proved her case by a
preponderance of the evidence, and there is no legal or factual basis for this Court to disturb
the jury’s verdict.
B. The Peters Instructions
WesBanco also argues that the circuit court erred in refusing to deliver two
proposed jury instructions. The instructions in question state:
Proposed Instruction #2: Plaintiff contends that the Certificate
of Deposit indicates that neither she nor her father could
withdraw the funds from the account without first endorsing
16
and surrendering the Certificate of Deposit to the bank. Under
West Virginia law, these types of surrender provisions are
nothing more than general statements of bank policy. As such,
they create no substantive rights in depositors like the plaintiff
and her father.
Proposed Instruction #3: Furthermore, the provision in the
Certificate of Deposit indicates that neither the plaintiff nor her
father could withdraw the funds from the account without first
endorsing and surrendering the Certificates of Deposit to the
bank does not constitute or create a contractual duty on the part
of the bank.
These instructions are drawn from this Court’s holding in syllabus point four of Peters14
which states:
The rules of a bank voluntarily adopted by it become a
valid agreement or contract between the bank and its depositors
when an account is opened and the passbook is issued or a
certificate of deposit purchased pursuant to the printed rules set
forth in the passbook or certificates. However, mere
boilerplate recitals of the obligation to present passbooks or
surrender endorsed certificates at the time of withdrawal
constitute nothing more than general statements of bank policy
and as such create no substantive rights in depositors. Thus,
when the terms relating to the requirement of presentation of a
passbook or certificate are positioned or articulated in such a
14
Peters also involved a presentation clause issue, although on a passbook savings
account rather than a money market certificate of deposit. Peters, 191 W. Va. at 58, 443
S.E.2d at 215. Patricia L. Peters alleged that Whitesville State Bank improperly disbursed
to her husband, John Peters, the proceeds of a joint passbook savings account. After her
husband’s death Ms. Peters attempted to withdraw the funds from the account and
presented the passbook which read, in pertinent part, “NO PAYMENTS WILL BE MADE
EXCEPT UPON PRESENTATION OF THIS BOOK.” Id. at 58-59, 443 S.E.2d at 215-16.
The bank denied payment upon determining that it had already disbursed the funds to Mr.
Peters some months prior. Ms. Peters then filed suit against the bank alleging breach of
contract insofar as the bank was not permitted to pay the funds from the account without
presentation of the passbook. Id. The circuit court found that the bank was relieved of
liability insofar as it could show it disbursed the funds to a co-depositor, and this Court
agreed. Id.17
way as to make it evident that a Bank does not intend the terms
to be binding, no contract exists as to those terms.
191 W. Va. at 58, 443 S.E.2d at 215, syl. pt. 4.15
The circuit court declined to give these instructions for two reasons. First,
the circuit court found the two cases were factually distinguishable insofar as the bank in
Peters produced affirmative proof that it had disbursed the funds at issue to a co-depositor,
while WesBanco acknowledged throughout the proceedings that it had no such proof.
Moreover, WesBanco was unable to articulate how, if at all, Peters was factually on point;
WesBanco merely reiterated its argument that syllabus point four provides that the
presentation clause is not a contractual term. Such an argument is unavailing in the face
of WesBanco’s uncontroverted concession that this presentation clause is a binding
contractual term. The circuit court did not err in finding Peters factually distinguishable.
Second, the court found that WesBanco’s concession that the presentation
clause on this certificate was a binding contractual term rendered the Peters instructions
15
We decline the invitation to revisit the the law enunciated by the Court in this
syllabus point. WesBanco contends that syllabus point four establishes that presentation
clauses simply are not binding terms of a contract between a bank and a depositor. Ms.
Ellifritz posits that the plain language of that syllabus point contradicts that assertion
insofar as it states that “when [presentation clauses]. . .are positioned or articulated in such
a way as to make it evident that a Bank does not intend the terms to be binding, no contract
exists as to those terms.” Id. at 58, 443 S.E.2d at 215, syl. pt. 4. The circuit court did not
resolve this question because it found Peters to be both factually distinguishable and
inapplicable to the case at bar, given WesBanco’s concession that the presentation clause
was a binding contractual term. Accordingly, because this issue is not squarely before us,
we leave any further examination of Peters for another day.
18
inappropriate. We agree. WesBanco argues that the Peters instructions would have
allowed the jury to find that the presentation clause was not a binding contractual term.
However, the evidence did not support such instructions. WesBanco’s corporate witness
gave uncontradicted testimony that the certificate of deposit was a contract, that the
contract had terms and conditions, and that the presentation clause at issue was one of those
terms and conditions. WesBanco presented no contradictory evidence. “An instruction
should not be given when there is no evidence tending to prove the theory upon which the
instruction is based.” Syl. Pt. 4, Maples v. W. Va. Dep’t of Com., 197 W. Va. 318, 475
S.E.2d 410 (1996) (internal citations omitted). In short, because WesBanco admitted that
the presentation clause was a binding contractual term, instructions predicated on syllabus
point four of Peters were properly refused.
The factual distinctions between Peters and this case, coupled with
WesBanco’s concession as to the contractual nature of the presentation clause lead us to
conclude that the circuit court did not abuse its discretion in refusing WesBanco’s two
requested jury instructions.
C. Statutes of Limitation
Finally, WesBanco argues that Ms. Ellifritz’s claim for relief was barred by
the operation of two different statutes of limitation, specifically those set forth in West
Virginia Code section 55-2-6 (2016) and section 46-3-118(b) (2007). We readily dispose
19
of WesBanco’s argument with regard to section 55-2-6,16 as a review of the record indicates
that WesBanco did not raise this argument below. “This Court will not consider questions,
nonjurisdictional in their nature, which have not been acted upon by the trial court.” Syl.
Pt. 3, Dean v. W. Va. Dep’t of Motor Vehicles, 195 W. Va. 70, 464 S.E.2d 589 (1995)
(internal citation omitted). Accordingly, we will not address this argument.
With respect to WesBanco’s argument as to section 46-3-118(b), we
conclude that this provision is inapplicable to the matter at hand. That Code section
provides:
Except as provided in subsection (d) or (e), if demand
for payment is made to the maker of a note payable on demand,
an action to enforce the obligation of party to pay the note must
be commenced within six years after the demand. If no
demand for payment is made to the maker, an action to enforce
the note is barred if neither principal nor interest on the note
has been paid for a continuous period of ten years.
Id. In its argument, WesBanco relies wholly on the final sentence of the provision, stating
that there is no evidence any interest had been paid on the Ellifritz account since at least
2000, when the account ceased to exist in WesBanco’s system. However, WesBanco
ignores the first part of that provision, which removes from its operation the scenarios
“provided in subsection (d) or (e).” Id. In that regard, West Virginia Code section 46-3-
118(e) clearly applies to the situation at hand:
16
West Virginia Code section 55-2-6 provides that actions to recover on the breach
of a written and signed contract shall be brought within ten years “after the right to bring
the same shall have accrued.”
20
An action to enforce the obligation of a party to a
certificate of deposit to pay the instrument must be commenced
within six years after demand for payment is made to the
maker, but if the instrument states a due date and the maker is
not required to pay before that date, the six-year period begins
when a demand for payment is in effect and the due date has
passed.
(Emphasis added). These provisions are clear and unambiguous. The six-year statute of
limitations on a demand for enforcement of payment on a certificate of deposit is triggered
when a demand for payment is made, with one proviso: if the certificate states a due date,
the due date must have passed prior to the demand for payment. In the instant case, Ms.
Ellifritz’s certificate states a due date of July 1, 1981, which due date had passed prior to
her demand for payment in December 2018. Pursuant to the statute, therefore, the six-year
statute of limitations began to run at the time of her demand for payment in December
2018, and Ms. Ellifritz’s lawsuit, which was filed approximately four months later in April
2019, was timely. WesBanco’s argument that West Virginia Code section 46-3-118(b)
barred the suit is without merit.
IV. CONCLUSION
For the reasons set forth herein, this Court affirms the Circuit Court of
Monongalia County’s March 3, 2021, Judgment Order on Jury Trial.
Affirmed.
21