Poling v. Belington Bank Inc.
Annotate this CaseJanuary 1999 Term
__________
No. 25336
__________
WILLIAM F. POLING AND CANDACE L. JACQUES,
Plaintiffs Below, Appellants
v.
BELINGTON BANK, INC., DOROTHY F. POLING,
V. L. SMITHSON, A. HOUSTON BOOTH, THOMAS M. PITSENBERGER,
DORWARD L. MATLICK, ROBERT B. REGER, BARBOUR COUNTY BANK,
AND OTHER UNKNOWN PERSONS,
Defendants and Third-Party Plaintiffs Below, Appellees
v.
JEANNE E. POLING, EXECUTRIX OF THE ESTATE OF HERMAN J. POLING, JR.,
Third-Party Defendant Below, Appellee
__________________________________________________________________
Appeal from the Circuit Court of Barbour County
Honorable Alan D. Moats, Judge
Civil Action No. 97-C-42
AFFIRMED
__________________________________________________________________
Submitted: May 4, 1999
Filed: July 13, 1999
David A. Sims, Esq.
Debra Tedeschi Hall, Esq.
Sims & Hall
Elkins, West Virginia
and
Dwight R. Hall, Esq.
Elkins, West Virginia
Attorneys for Plaintiffs Below, Appellants
Harry A. Smith, III, Esq.
Jory & Smith
Elkins, West Virginia
Attorney for Belington Bank, Inc.,
Dorothy F. Poling, V. L. Smithson,
A. Houston Booth, Thomas M. Pitsenberger,
Dorward L. Matlick, and Robert B. Reger,
Defendants and Third-Party Plaintiffs Below,
Appellees
Jerald E. Jones, Esq.
West & Jones
Clarksburg, West Virginia
Attorney for Barbour County Bank,
Defendant and Third-Party Plaintiff Below,
Appellee
H. Gerard Kelley, Esq.
Philippi, West Virginia
Attorney for Jeanne Poling, Executrix,
Third-Party Defendant Below, Appellee
JUSTICE MAYNARD delivered the Opinion of the Court.
CHIEF JUSTICE STARCHER and JUSTICE McGRAW dissent and reserve the right to file dissenting
opinions.
SYLLABUS BY THE COURT
1. "Only
matters contained in the pleading can be considered on a motion to dismiss under Rule
12(b) R.C.P., and if matters outside the pleading are presented to the court and are not
excluded by it, the motion should be treated as one for summary judgment and disposed of
under Rule 56 R.C.P. if there is no genuine issue as to any material fact in connection
therewith. If a summary judgment is entered under Rule 56 R.C.P. it is a dismissal with
prejudice; whereas, a judgment sustaining a motion to dismiss under Rule 12(b) R.C.P. is
not a dismissal with prejudice." Syllabus Point 4, United States Fidelity &
Guaranty Co. v. Eades, 150 W.Va. 238, 144 S.E.2d 703 (1965).
2. "The
circuit court's function at the summary judgment stage is not to weigh the evidence and
determine the truth of the matter, but is to determine whether there is a genuine issue
for trial." Syllabus Point 3, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755
(1994).
3. When bank stock
is transferred pursuant to an assignment by a fiduciary who is not the registered owner,
the transfer is governed by the Uniform Act for Simplification of Fiduciary Security
Transfers, W.Va. Code §§ 31-4D-1 to 11 (1961). Pursuant to the statutes, the bank is not
charged with notice of any recorded or unrecorded document, even if the document is in the
bank's possession. The bank is only required to obtain evidence of appointment or
incumbency.
4. "A trial
court should permit a party to amend his pleading once as a matter of course at any time
before a responsive pleading is served and, unless the amendment will prejudice the
opposing party by not affording him an opportunity to meet the issue, the refusal to
permit such amendment will constitute reversible error." Syllabus Point 3, Employers
Fire Ins. Co. v. Biser, 161 W.Va. 493, 242 S.E.2d 708 (1978).
5. "A trial
court is vested with a sound discretion in granting or refusing leave to amend pleadings
in civil actions. Leave to amend should be freely given when justice so requires, but the
action of a trial court in refusing to grant leave to amend a pleading will not be
regarded as reversible error in the absence of a showing of an abuse of the trial court's
discretion in ruling upon a motion for leave to amend." Syllabus Point 6, Perdue
v. S. J. Groves and Sons Co., 152 W.Va. 222, 161 S.E.2d 250 (1968).
Maynard, Justice:
The appellants, William F. Poling and
Candace L. Jacques, filed a declaratory judgment action in the Circuit Court of Barbour
County, West Virginia, requesting that the court declare them to be the owners in fee
simple of bank stock issued by Belington Bank, Inc.See
footnote 1 1 and left to them by their grandfather in his will. The
appellants' father, Herman Poling, Jr., following the death of his father and while acting
as executor of his father's estate, had the bank stock issued in his name, not as the
owner of a life estate but as the absolute owner. The circuit court determined that the
Uniform Act for Simplification of Fiduciary Security Transfers, W.Va. Code §§ 31-4D-1 to
11, controls this case and, consequently, dismissed the action. During the pendency of the
action, the appellants moved to amend their complaint, which request was denied by the
court in its dismissal order.See footnote 2 2
At the time of his death in 1967, Herman Poling, Sr. owned 20 shares of stock in the Belington Bank, Inc. Over the years, new stock issuances and stock splits increased the number of shares and the value of the stock dramatically.See footnote 3 3 Herman Poling, Sr. died testate. Paragraph Six of his holographic will reads as follows: "Sixth: I bequeath my bank stock in Belington Bank to my son Herman Poling, Jr. and at his death shall go to my granddaughter, if living, and grandson, William F. Poling." Thus, the will gave Herman Poling, Jr. a life estate in the bank stock with the remainder interest left to the testator's grandchildren. In January 1967, following his father's death, Herman Poling, Jr., acting as executor of his father's estate, requested and received from Belington Bank, Inc. a transfer of the shares of stock which was issued to him absolutely. The transfer was made pursuant to written consent from the Tax Commissioner.
Herman Poling, Jr. died of his own hand
in June 1997. At that time, the appellants asked the bank to issue the shares of stock to
them as fee simple owners. The bank directors and officers refused to issue the stock
certificates, stating that the shares of stock no longer belonged to their father.
The appellants filed a declaratory
judgment action, requesting that the circuit court declare them to be the owners of the
bank stock and that the bank be directed to issue the shares in their names. The complaint
alleges that their grandfather, in his will, left their father a life estate in his shares
of Belington Bank stock and that at their father's death, they became entitled to the
shares of stock. The complaint also alleges that the appellants' father, during his
lifetime, sold or encumbered his life estate in several shares of the bank stock and that
the individually named defendants and other unknown persons are the owners of the life
estate, which estate extinguished at the time of their fathers' death.
Belington Bank, Inc. and the individual purchasers of the stock answered the complaint, stating that the complaint failed to state a claim upon which relief could be granted. The answer states that the appellants' claim, if any, is not against the appellees, but, rather, is against their father's estate for breaching his fiduciary duty while acting as executor. The individual purchasers answered that they are bona fide purchasers for value, without notice of adverse claims, as to the shares of stock they now own. The appellees raised the affirmative defenses of laches, statute of limitations and estoppel. The bank concluded, in its answer, that it could not issue any stock to the appellants--the stock had been sold by their father to bona fide third party purchasers for valuable consideration which presumably benefitted their father and his estate.
Belington Bank, Inc. and the individual purchasers filed a motion to dismiss the complaint pursuant to West Virginia Rule of Civil Procedure 12(b)(6). The bank asserted that Herman Poling, Jr. was responsible for the stock transfer, and the bank simply acted in accordance with his directions as the personal representative of his father's estate. The individual purchasers asserted the complaint made no allegation that they were anything but bona fide purchasers for value, without notice, at the time they acquired bank stock from Herman Poling, Jr.; therefore, no cause of action existed against them. The bank and the individual purchasers asserted that if the appellants have a cause of action, it is against their father's estate. On September 16, 1997, a notice of hearing was filed with the motion to dismiss stating that a hearing was set for October 16, 1997.
On October 14, 1997, the appellants answered the motion to dismiss to which they attached a motion to amend and an amended complaint. In their answer, they stated that they needed to conduct discovery in order to properly present their claims and that the amended complaint alleged claims upon which relief could be granted. They did not contend the original complaint stated a claim upon which relief could be granted.
The amended complaint alleged the following: the individual purchasers of the bank stock were not bona fide purchasers without notice and, thus, purchased only a life estate; the bank negligently breached its fiduciary duty to the appellants, the public and people who might be defrauded by Herman Poling, Jr. by failing to require him to post a sufficient indemnity bond when he stated "the shares were lost and caused them to be reissued"; the bank had notice that Herman Poling, Jr. owned a life estate but did not require notification of that fact to be placed on the stock certificates; the bank, through its officers and directors, was negligent in the re-issuance, maintenance and control of the stock certificates; the appellees' conduct was fraudulent in the re-issuance and in the purchase of the stock; and Barbour County Bank holds shares of the Belington Bank stock which it wrongfully refuses to turn over to the appellants.
A hearing was held on October 16, 1997.
The result of that hearing was that the parties were directed to brief the court on
whether Belington Bank, Inc. acted properly in 1967 when it transferred the shares of
stock to Herman Poling, Jr. After receiving and considering the briefs of the parties, the
court entered an order on December 19, 1997 dismissing the complaint and denying the
motion to amend. The order specifically states:
Regardless of
whether the Motion to Dismiss is considered under West Virginia Rules of Civil Procedure
Rule 12(b)(6) or as a Motion for Summary Judgment under Rule 56 of said rules, the Court
does not believe that the Belington Bank owed a duty to the Estate of Herman J. Poling,
Sr. or any beneficiaries of said estate, including the Plaintiffs, to insure that the
shares were transferred in accordance with the terms of the will.
West Virginia Code
31-4D-3 authorized the Belington Bank to assume without inquiry that the assignment of the
shares of stock to the fiduciary, Herman J. Poling, Jr., in his personal capacity, was
within his authority and capacity and was not in breach of his fiduciary duties. Further,
even though the Plaintiffs claim that Belington Bank, Inc. had notice of the will, which
the Defendant Bank denies, Paragraph (c) of that section provides that even if the will
was in the possession of the Bank, that the Bank would not be charged with notice of the
will and neither would it have been bound to examine the will.
The above cited
Uniform Act was enacted in 1961 and the transfer of the shares of stock in question took
place in 1967.
Therefore, the
Court concludes as a matter of law that Belington Bank, Inc. did not owe a duty to the
Estate of Herman J. Poling, Sr., or the beneficiaries of said estate, including the
Plaintiffs, to insure that the shares of stock were transferred in accordance with the
directives of the will. As a result, the action against Belington Bank, Inc., as well as
the additional defendants for claims that arose due to the original transfer of stock,
must fail.
The Court does
therefore GRANT the Defendants' Motion to Dismiss the declaratory judgment action of the
Plaintiffs, and does now ORDER that the Plaintiffs' action against the Defendants be
dismissed.
Further, the Court
has examined the amended complaint and finds that the amendment would also be precluded on
the basis of lack of duty owed.
The Court
therefore DENIES the motion of the Plaintiffs to file an amended complaint.
It is from this order the appellants appeal.
On appeal, the appellants contend the
circuit court erred by entering an order which dismissed the complaint and denied the
motion to amend the complaint. They also argue the motion to dismiss should have been
converted to a motion for summary judgment because the court considered the certificate of
consent, the final settlement of accounts, and other documents. The crux of their argument
is that the bank had notice of Herman Poling, Sr.'s will in 1967 and should, therefore,
have issued their father a life estate in the bank stock. And in order to prove notice,
they need to conduct discovery.
The judge declined to determine whether
this case was dismissed under Rule 12(b)(6) or under Rule 56. West Virginia Rule of Civil
Procedure 12(b) states in pertinent part:
(b) How
presented. -- Every defense, in law or fact, to a claim for relief in any pleading,
whether a claim, counterclaim, cross- claim, or third-party claim, shall be asserted in
the responsive pleading thereto if one is required, except that the following defenses may
at the option of the pleader be made by motion: . . . (6) failure to state a claim upon
which relief can be granted[.] . . . If, on a motion asserting the defense numbered (6)
to dismiss for failure of the pleading to state a claim upon which relief can be granted,
matters outside the pleading are presented to and not excluded by the court, the motion
shall be treated as one for summary judgment and disposed of as provided in Rule 56, and
all parties shall be given reasonable opportunity to present all material made pertinent
to such a motion by Rule 56. (Emphasis added).
This Court has also said that:
Only matters
contained in the pleading can be considered on a motion to dismiss under Rule 12(b)
R.C.P., and if matters outside the pleading are presented to the court and are not
excluded by it, the motion should be treated as one for summary judgment and disposed of
under Rule 56 R.C.P. if there is no genuine issue as to any material fact in connection
therewith. If a summary judgment is entered under Rule 56 R.C.P. it is a dismissal with
prejudice; whereas, a judgment sustaining a motion to dismiss under Rule 12(b) R.C.P. is
not a dismissal with prejudice.
Syllabus Point 4, United States Fidelity & Guaranty Co. v. Eades, 150 W.Va.
238, 144 S.E.2d 703 (1965). In Dunn v. Consolidation Coal Co., 180 W.Va. 681, 379 S.E.2d 485 (1989) (per curiam), the court's order stated that in ruling on the Rule
12(b)(6) motion to dismiss, the court considered the complaint, the memoranda submitted by
the parties and the
affidavit of the appellee. On appeal, this Court stated that when circuit courts
consider matters outside the pleadings, such as affidavits, the motion should be treated
as a Rule 56 motion for summary judgment rather than a Rule 12(b)(6) motion. In the case
at bar, appellants attached one exhibit to the complaint, the will of Herman Poling, Sr.
Attached to the motion to dismiss were the certificate of consent from the Tax
Commissioner, a stock certificate reflecting stock was issued to Herman Poling, Jr. on
January 23, 1967 and the final settlement of accounts of Herman Poling, Sr. The record
also contains stock certificates, promissory notes, indemnity bonds, and affidavits. In
his dismissal order, the judge specifically stated he "has now reviewed the
pleadings, all memoranda of law, together with attached exhibits and affidavits."
It is clear that
[w]hile Rule 12(b)(6) and Rule 56 are
closely related, and perhaps overlap in some respects, only matters contained in the
pleadings may be considered on a motion to dismiss under Rule 12(b)(6). If matters outside
the pleadings are presented to the court and are not excluded by it, the motion should be
treated as one for summary judgment and disposed of as provided in Rule 56.
West v. National Mines Corp., 168 W.Va. 578, 582, 285 S.E.2d 670, 674 (1981).
(Citations omitted). In Gunn v. Hope Gas, Inc., 184 W.Va. 600, 402 S.E.2d 505
(1991) (per curiam), the circuit court heard arguments and considered exhibits attached to
the complaint while ruling on a Rule 12(c) motion for judgment on the pleadings. This
Court concluded that consideration of documents which supported the pleadings converted
the Rule 12(c) motion into a Rule 56 motion for summary judgment. Similarly, the court's
consideration of documents outside the pleadings in the case at bar converted the Rule
12(b)(6) motion into a motion for summary judgment. Regardless of the label, the test for
whether the motion for summary judgment should be granted is essentially the same as the
"rather restrictive standard" applied when ruling on motions for judgment on the
pleadings. Id., 184 W.Va. at 603, 402 S.E.2d at 508 (citing Calvert Fire Ins.
Co. v. Bauer, 175 W.Va. 286, 332 S.E.2d 586 (1985)).
"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 New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). "A circuit court's entry of summary judgment is reviewed de novo." Syllabus Point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Furthermore, "[t]he circuit court's function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but is to determine whether there is a genuine issue for trial." Syllabus Point 3, id.
The appellants argue summary judgment was improperly granted. In support of this argument, they conclude the affidavits of their attorney, appellant Poling and his wife which they presented to the circuit court with their response to the motion to dismiss contain issues that can only be decided by discovery. Consequently, they say, these issues were not ripe for disposition by the court. The appellants do not in any way articulate what the issues might be; they merely make a blanket conclusion. In reviewing the affidavits, we find that essentially the appellants contend they need to determine why Belington Bank issued the shares of stock to Herman Poling, Jr. They say that in order to make that determination, they need to take depositions, have documents produced and interrogatories answered. They also say that counter-affidavits were filed showing issues of fact exist. Upon examination of the record, the only affidavits we find other than those submitted by the appellants are the affidavits of the bank President and CEO who both simply state they were not affiliated with the bank in 1967 and that their first knowledge of the will arose in 1997 when they were furnished with a copy.
The appellants do not contest the fact
that their father presented himself to the bank in 1967 as the fiduciary of the estate of
Herman Poling, Sr. and directed the bank to transfer the shares of stock to him. They
argue instead, as they did to the circuit court, that the bank clearly had a duty to make
sure the stock certificates were issued to the person entitled to receive them. They
contend the bank knew in 1967 when the shares of stock were transferred to their father
that he should have only been issued a life estate with the remainder interest issued to
the two of them.See footnote 4 4 They
conclude there is liability on behalf of the bank for failing to properly issue the stock
because the bank must keep a correct list of stockholders under W.Va. Code § 31A-4-10,
the common law recognizes a duty of corporations to issue stock to the right personSee footnote 5 5 and corporations have a
fiduciary duty to shareholders. The appellants have overlooked or ignored the statutory
law which is dispositive of this issue. The Code sections which apply are discussed below.
Chapter 31A of the West Virginia Code,
titled "Banks and Banking," clearly states that general corporation laws govern
banking institutions. W.Va. Code § 31A-4-1(a) (1992) reads as follows: "The general
corporation laws of the state, including the provisions of chapter thirty-one [§ 31-1-1
et seq.] of the code of West Virginia, shall govern banking institutions and the
chartering thereof, except as otherwise provided in or where inconsistent with the
provisions of this chapter."
Chapter 31 of the West Virginia Code is
titled "Corporations." Article 4D is called the "Uniform Act for
Simplification of Fiduciary Security Transfers." The following sections of Article 4D
apply to the case sub judice. W.Va. Code § 31-4D-3 (1961) states:
Except as
otherwise provided in this article, a corporation or transfer agent making a transfer of a
security pursuant to an assignment by a fiduciary:
(a) May
assume without inquiry that the assignment, even though to the fiduciary himself or to his
nominee, is within his authority and capacity and is not in breach of his fiduciary
duties;
(b) May
assume without inquiry that the fiduciary has complied with any controlling instrument and
with the law of the jurisdiction governing the fiduciary relationship, including any law
requiring the fiduciary to obtain court approval of the transfer; and
(c) Is
not charged with notice of and is not bound to obtain or examine any court record or any
recorded or unrecorded document relating to the fiduciary relationship or the assignment,
even though the record or document is in its possession.
W.Va. Code § 31-4D-4 (1961) states:
A corporation
or transfer agent making a transfer pursuant to an assignment by a fiduciary who is not
the registered owner shall obtain the following evidence of appointment or incumbency:
(a) In
the case of a fiduciary appointed or qualified by a court, a certificate issued by or
under the direction or supervision of that court or an officer thereof and dated within
sixty days before the transfer; or
(b) In
any other case, a copy of a document showing the appointment or a certificate issued by or
on behalf of a person reasonably believed by the corporation or transfer agent to be
responsible or, in the absence of such a document or certificate, other
evidence reasonably deemed by the corporation or transfer agent to be appropriate.
Corporations and transfer agents may adopt standards with respect to evidence of
appointment or incumbency under this subdivision (b) provided such standards are not
manifestly unreasonable. Neither the corporation nor transfer agent is charged with notice
of the contents of any document obtained pursuant to this subdivision (b) except to the
extent that the contents relate directly to the appointment or incumbency.
W.Va. Code § 31-4D-6 (1961) reiterates the nonliability of the corporation or transfer
agent by stating, "A corporation or transfer agent incurs no liability to any person
by making a transfer or otherwise acting in a manner authorized by this article."
These Code sections could not be clearer. Corporations, including banks, do not have a duty to determine whether a fiduciary is complying with a controlling instrument when transferring stock pursuant to an assignment by the fiduciary. Nor is a corporation bound to examine a document relating to the fiduciary relationship, even if the document is in the corporation's possession. We, therefore, hold that when bank stock is transferred pursuant to an assignment by a fiduciary who is not the registered owner, the transfer is governed by the Uniform Act for Simplification of Fiduciary Security Transfers, W.Va. Code §§ 31-4D-1 to 11 (1961). Pursuant to the statutes, the bank is not charged with notice of any recorded or unrecorded document, even if the document is in the bank's possession. The bank is only required to obtain evidence of appointment or incumbency. Belington Bank, Inc. was under no obligation to second-guess Herman Poling, Jr.'s actions or to scrutinize Herman Poling, Sr.'s will to assure the personal representative complied with the will. The circuit court determined as a matter of law that Belington Bank, Inc. breached no duty to the appellants. We agree. At the same time, we recognize this is a harsh and perhaps even unfair result. However, it is one mandated by the Legislature and no challenge to the constitutionality of the statutes is made.See footnote 6 6
This would be the end of our inquiry
were it not for the appellants' contention that the circuit court erred by denying their
motion to amend the complaint. Amendments are controlled by West Virginia Rule of Civil
Procedure 15, which states in pertinent part:
(a) Amendments.
-- A party may amend the party's pleading once as a matter of course at any time before a
responsive pleading is served or, if the pleading is one to which no responsive pleading
is permitted and the action has not been placed upon the trial calendar, the party may so
amend it at any time within 20 days after it is served. Otherwise a party may amend the
party's pleading only by leave of court or by written consent of the adverse party; and
leave shall be freely given when justice so requires.
The circuit court denied the motion to amend on the basis of lack of duty owed to the
appellants. The appellants contend they should have been allowed to amend their complaint
because it appeared to them the circuit court believed a declaratory judgment action was
not the proper way of bringing this action. They conclude "there is no basis as to
why the [c]ircuit [c]ourt did not permit the amendment other than it was an abuse of
discretion."
They argue the time frame. They say the case had been pending less than ninety days;
the parties had exchanged pleadings; service on a third party defendant had been made, but
no answer had been filed. Therefore, no party would have been prejudiced. The appellees
argue the court correctly ruled the amendment was precluded on the basis of lack of duty
owed because the appellants raised no issues in the amended complaint which are not
covered by the applicable statutes.See footnote 7 7
The rule controlling amendments is
explained in Syllabus Point 3 of Employers Fire Ins. Co. v. Biser, 161 W.Va. 493,
242 S.E.2d 708 (1978), which reads as follows:
A trial court
should permit a party to amend his pleading once as a matter of course at any time before
a responsive pleading is served and, unless the amendment will prejudice the opposing
party by not affording him an opportunity to meet the issue, the refusal to permit such
amendment will constitute reversible error.
See also McDowell County Bd. of Educ. v. Stephens, 191 W.Va. 711, 718, 447 S.E.2d 912, 919 (1994) ("motions to amend should always be granted under Rule 15
when: (1) the amendment permits the presentation of the merits of the action; (2) the
adverse party is not prejudiced by the sudden assertion of the subject of the amendment;
and (3) the adverse party can be given ample opportunity the meet the issue").
(Citations omitted). This Court has also said that
A trial court is
vested with a sound discretion in granting or refusing leave to amend pleadings in civil
actions. Leave to amend should be freely given when justice so requires, but the action of
a trial court in refusing to grant leave to amend a pleading will not be regarded as
reversible error in the absence of a showing of an abuse of the trial court's discretion
in ruling upon a motion for leave to amend.
Syllabus Point 6, Perdue v. S. J. Groves and Sons Co., 152 W.Va. 222, 161 S.E.2d 250 (1968).
The crux of the appellant's case is
that Belington Bank, Inc. wrongly transferred the shares of stock in 1967. The circuit
court correctly determined that the bank, in transferring the stock, fulfilled its
obligations under West Virginia law. The amended complaint raised no issues which are not
covered by the applicable statutes. The circuit court did not abuse its discretion in
denying the motion to amend. The judgment of the Circuit Court of Barbour County is
affirmed.
Affirmed.
Footnote: 1 1Belington Bank, Inc.'s holding company is Freedom Bancshares, Inc.
Footnote: 2 2This case has a pending cross-claim filed by the Barbour County Bank against Belington Bank, Inc. and the individual purchasers and a pending third-party action filed by Belington Bank, Inc. and the individual purchasers against Jeanne E. Poling, Executrix of the Estate of Herman J. Poling, Jr. Neither of these actions are involved in this appeal.
Footnote: 3 3The appellants believe there are now 4,000 shares of bank stock worth approximately $180,000.00.
Footnote: 4 4When asked by the judge at the October 16, 1997 hearing what duty the bank or any corporation might have, the appellants' attorney answered, "The duty is to make sure that they transferred the stock to the right person."
Footnote: 5 5The appellants cite Snyder v. Charleston & S. Bridge Co., 65 W.Va. 1, 63 S.E. 616 (1909), as authority for this proposition. That is an old case which has been superseded by the Uniform Act for Simplification of Fiduciary Security Transfers, W.Va. Code §§ 31-4D-1 to 11, enacted in 1961.
Footnote: 6 6We do not suggest what our ruling would be were we to address this issue.
Footnote: 7 7The amended complaint also alleges the individual purchasers are not bona fide purchasers without notice and that Barbour County Bank wrongfully refuses to return shares of Belington Bank, Inc. stock to the appellants. At the October 16, 1997 hearing, the judge attempted to pursue the basis for these allegations. When asked why the "other people" were sued, the appellant's attorney replied, "We think that they purchased it." When asked about the Barbour County Bank, the appellants' attorney told the court that his clients "were told about loans at the Barbour County Bank where some of the shares of stock were allegedly pledged." The judge determined these were "naked assertions." On appeal, the appellants simply state that these allegations are contained in the amended complaint; they do not argue the judge erred in his ruling on these allegations. We cannot tell whether they even believe the judge erred in his ruling as to these parties. Regardless, "[a]ssignments of error that are not argued in the briefs on appeal may be deemed by this Court to be waived." Syllabus Point 6, Addair v. Bryant, 168 W.Va. 306, 284 S.E.2d 374 (1981).
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