Oden v. Salch

• Decision Date: 21 April 1989
• Docket Number: No. 870003,870003
• Citation: 379 S.E.2d 346,237 Va. 525
• Parties: Orie L. ODEN v. Cecelia M. SALCH, etc. Record
• Court: Virginia Supreme Court

Page 346

379 S.E.2d 346

237 Va. 525

Orie L. ODEN v. Cecelia M. SALCH, etc.

Record No. 870003.

Supreme Court of Virginia.

April 21, 1989.

James A. Gorry, III (Taylor & Walker, P.C., Norfolk, on briefs), for appellant.

Stanley E. Sacks (Sacks & Sacks, Norfolk, on brief), for appellee.

Present: All the Justices.

STEPHENSON, Justice.

Cecelia M. Salch, co-administrator d.b.n. of the estate of Hugh J. Liverman (Salch), sued Orie L. Oden to recover damages allegedly resulting from Oden's fraudulent conversion of Liverman's assets. The case was tried to a jury, which returned a verdict in Salch's favor with damages fixed at $31,500. The trial court entered judgment in accord with the verdict, and Oden appeals.

The questions presented in this appeal are whether: (1) the action is time-barred; (2) the trial court erroneously admitted certain evidence; (3) the trial court misinstructed the jury; (4) the evidence is sufficient to support the jury's finding that Oden fraudulently converted to her own use assets belonging to Liverman; and (5) the evidence supports the damage award.

I

Because Salch prevailed at trial, we must state the evidence and all reasonable inferences deducible therefrom in the light most favorable to her. Liverman had two daughters and a son. Both daughters, Oden and Edith Marshall, lived in Norfolk. The son, Orville Liverman, lived in Pennsylvania. Relations were strained between Oden and her siblings, who believed that Oden intentionally kept them from seeing Liverman.

Shortly after his wife's death in February 1971, Liverman moved from his residence in Norfolk to Oden's residence, where he remained until his death on November 3, 1982, at age 91. From the time Liverman moved into Oden's house, Oden handled and managed all his business and financial affairs.

On April 16, 1971, approximately two months after Liverman moved to Oden's home, Liverman executed a general power of attorney designating Oden his attorney-in-fact. At that time, Liverman was in a hospital recovering from a heart attack. Liverman later stated that Oden "wanted to have power of attorney, and he let her have it." Thereafter, Oden signed all of Liverman's checks and papers.

When his wife died, Liverman and she had a joint savings account in Mutual Federal Savings and Loan Association (Mutual Federal) and another in Home Federal Savings and Loan Association (Home Federal). On the day Liverman executed the power of attorney, Oden withdrew $9,300 from the Home Federal account and immediately deposited this sum in her own account, entitled "Orie L. Oden, Trustee for Louis M. Oden, III." (Louis is Oden's son.) Three days later, Oden withdrew $7,239.82 from the Mutual Federal account, which she also deposited in her trustee account.

On May 24, 1971, Oden withdrew $17,000 from her trustee account. She did not explain what disposition was made of the $17,000. The record, too, is silent about the disposition of these funds.

Also in May 1971, Liverman closed on the sale of his Norfolk residence. He received $18,500 from the sale. As part payment on property in North Carolina that his wife had sold in 1970, Liverman was due a note payment in excess of $5,000 in December 1971.

On January 4, 1972, Oden opened a joint account with her father in Mutual Federal in the amount of $26,200. Oden closed this account on January 7, 1980. On that same day, Oden deposited $21,200 in another joint account for her father and herself. Twenty days after Liverman's death, Oden withdrew the sum of $19,841.82 from this account.

During the years 1972 through 1982, Liverman received interest from this joint account in the total amount of approximately $10,000. The interest payments were made by checks that were sent to Oden's home. During the same time period, Liverman received monthly social security checks.

Following Liverman's death, Oden reported to his executor that Liverman's only assets were a checking account with First Virginia Bank-Tidewater in the amount of $4,665.14 and a Medicare check in the sum of $610.72. After the present litigation was instituted, however, Oden "found" additional records.

Oden forwarded the newly discovered records to the executor, Wayne Tiffany, ¹ under cover of the following memorandum:

Dear Wayne--

I have searched thru all papers etc. This is all I can find.

Daddy enjoyed what little bit he had.

And he also gave me this "To whom it may concern" in 1976. I think Dad expected this, as he told me my brother had tried to borrow some money--and Dad told him he didn't have any.

The "To whom it may concern" document referred to in Oden's memorandum is a typewritten note purportedly signed by "H.J. Liverman." The note was in an envelope on which was typed, "To whom it may concern for Orie Oden, Sunday, November 7, 1976." The note reads as follows:

To Whom it may concern.

This is to declare and to certify on this Day, Sunday November 7, 1976, I do give to my dear daughter, Orie Oden, all my savings certificates, and all personal effects I have in her home. This I give to her for the good care, all her love, time and devotion to me in these past five years in her home. For all the wonderful little things she has done to Make my life full and Happy. For the many hours she has neglected her own life in order to help me. I shall always be grateful for all the Sundays she has taken me to Church and then always along with her family. With never a cross word or unkind deed to me.

In return for all this I ask that she take care of all the details for my funeral and do as I have requested. Place me beside my beloved wife and to keep her belief in Christ.

I have been a Blessed man to have such a devoted and kind daughter. God keep her and protect her from all evil.

Signed:

This Sunday, November 7, 1976

After our Church Service.

All my Love,

/s/H.J. Liverman

A witness who had worked in Oden's florist shop typing invoices testified that the distinctive script type on the note resembled that of the florist shop's typewriter.

Lawrence M. Farmer, an experienced documents examiner, qualified as an expert witness. Farmer opined that "the signature and the name of H.J. Liverman ... as appears on the original document was made by someone other than Hugh J. Liverman." Before reaching this conclusion, Farmer had compared the signature on the note with "a large number of [Liverman's] signatures over a period of years." Farmer testified that "the writing in [the note] is superior to the writing ability of Hugh J. Liverman on the date that is recorded on [the note] ... [Liverman] just couldn't write that well at [that] time."

Farmer also concluded that the "signature was placed on the document prior to the time that the typing was placed on the document[,] ... a procedure that's often used when someone is going to create a document and utilize the signature of another person." Farmer explained that a forger must usually write the signature of the other person several times to obtain a satisfactory result. Thus, the signature will be written before a typed message is placed on the document. Consequently, the forged signature will not "line up" with the message. In this case, the signature was far left of the closing.

The records discovered by Oden also included 35 "receipts" allegedly given to Liverman by Mozell Moore over a period of approximately three years. Each receipt is for $400 in cash purportedly paid to Moore by Liverman for "Day Care." Moore worked as a maid in Oden's home. The total amount represented by the receipts is $14,000. Oden claimed that Liverman paid Moore with his money.

Farmer examined these receipts and concluded that "they were not written in accordance with the dates contained on each receipt." Farmer was of opinion that all of the receipts "were ... written at the same time or within one sitting or two sittings."

In an apparent effort to explain in part the disappearance of Liverman's assets, Oden testified that Liverman had given $10,000 to her son, Eugene Royal. Royal, however, testified that Liverman never gave him $10,000.

II

Oden contends that the fraud action is time-barred. She points to the fact that the alleged fraud first occurred in 1971 and continued until Liverman's death in 1982. Liverman resided in Oden's home during this entire period. Thus, she asserts, Liverman, by the exercise of due diligence, reasonably should have discovered the alleged fraud. Oden argues that the limitation period for a fraud action is one year, Code § 8.01-248, and this action was not commenced until 1985. Therefore, she says, the trial court should have sustained her statute of limitations plea.

At the conclusion of Salch's evidence, Oden moved the trial court to rule as a matter of law that the fraud action was barred by the statute. The court denied the motion, concluding that whether Liverman reasonably should have discovered the fraud was a factual issue for resolution by the jury.

We agree that the limitation period applicable to this fraud action is one year, ² Pigott v. Moran, 231 Va. 76, 81, 341 S.E.2d 179, 182 (1986), from the time the fraud is discovered "or by the exercise of due diligence reasonably should have been discovered," Code § 8.01-249. We do not agree, however, that the trial court erred by refusing to rule as a matter of law that Liverman reasonably should have discovered the fraud. Reasonable minds could differ about whether Liverman should have discovered the fraud; thus, the court properly ruled that this was a jury issue. See Union Trust Corporation v. Fugate, 172 Va. 82, 200 S.E. 624 (1939).

Oden, however, did not request a jury instruction which would have submitted the limitation issue to the jury. Accordingly, because Oden failed to pursue her plea of the statute of limitations, we will not address the issue on appeal. Rule 5:25.

III

Oden contends that the trial court erred in admitting Exhibits 3 and 15. Exhibit 3 is the document that has been referred to as...