Jeffrey Browning v. Tiger's Eye Benefits Consultin, No. 06-1404 (4th Cir. 2009)

Annotate this Case

Download PDF

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 06-1404 JEFFREY S. BROWNING, as Trustee of the Browning Equipment, Inc. 401(k) Profit Sharing Plan, Plaintiff - Appellant, v. TIGER S EYE BENEFITS CONSULTING; THEODORE G. REEDER, III, C.P.A.; DAVID M. DUKICH, Defendants Appellees, and POTOMAC ASSET MANAGEMENT GROUP, LLC, Defendant. -------------------JOHN J. KORZEN, Amicus Supporting Appellee David M. Dukich. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Claude M. Hilton, Senior District Judge. (1:05-cv-303-CMH) Argued: October 28, 2008 Decided: February 26, 2009 Before NIEMEYER and MICHAEL, Circuit Judges, and Richard BENNETT, United States District Judge for the District Maryland, sitting by designation. D. of Affirmed by unpublished opinion. Judge Bennett wrote opinion, in which Judge Niemeyer and Judge Michael joined. the ARGUED: Richard Dennis Carter, Alexandria, Virginia, for Appellant. Patrick John Kearney, SELZER, GURVITCH, RABIN & OBENCY, CHTD., Bethesda, Maryland; Jenelle Neubecker, WAKE FOREST UNIVERSITY, School of Law, Appellate Advocacy Clinic, Winston-Salem, North Carolina, for Appellees. ON BRIEF: John J. Korzen, Elizabeth H. Asplund, Amber Burleson, Lauren T. Millovitsch, WAKE FOREST UNIVERSITY, School of Law, Appellate Advocacy Clinic, Winston-Salem, North Carolina, Amicus Counsel for Appellee David M. Dukich. Unpublished opinions are not binding precedent in this circuit. 2 BENNETT, District Judge: Appellant Jeffrey S. Browning, as Trustee of the Browning Equipment, Inc. 401(k) Profit Sharing Plan, appeals the entry of summary judgment by the district court in favor of the Appellees, Tiger s Eye Benefits Consulting, Theodore G. Reeder, III, and David Dukich. The district court entered summary judgment on alternative grounds: first, the district court found as a matter of law that the Appellees were not fiduciaries under section 409(a) of the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1132(a) ( ERISA ); and, second, the district court found that the Appellees were entitled to summary judgment because ERISA s three-year statute of limitations had expired before the suit was brought. Because we agree as to the latter ground, the judgment below is affirmed. I. Browning Equipment, a small, family-owned tractor sales and services company, maintains the Browning Equipment, Inc. 401(k) Profit Sharing commenced, Plan Appellant ( the Plan ). Jeffrey S. At Browning the time this ( Browning ) suit was a Trustee of the Plan, as were Jean Copeland and Reyburn Browning, Jeffrey Browning s father. Under the Plan, the Trustees had 3 the sole responsibility of the management of the assets held under the Trust. (J.A. 451.) Theodore Reeder is a certified public accountant and the sole shareholder of Tiger s Eye Benefits Consulting, a business that provided third-party beginning in 1994. consulting through annual to the Plan Prior to 1994, the Plan had been a client to Reeder s former employer since 1984. Eye services letters which The Plan engaged Tiger s provided that Tiger s Eye Benefits Consulting will be a third party plan administrative consultant only, and will not act in the capacity of the Plan s ERISA Administrator. (J.A. 163-172.) Between invested in 1979 a and fixed 1999, annuity most of the insurance Maccabees Life Insurance Company. Plan s assets were contract with Royal Between 1997 and 1999, Reeder began communicating with Reyburn Browning about reinvesting its assets elsewhere. In April 1999, Reeder met with David Dukich, a in broker based Frederick, Maryland investments in U.S. Capital Funding, Inc. who was selling Dukich was promising a return of 9.25% on a 180-day investment with U.S. Capital Funding. Relying on the information given to him by Dukich, Reeder recommended to Reyburn Browning in a letter dated April 20, 1999 that the Trustees invest $300,000 with U.S. Capital Funding and $150,000 with John Hancock. 4 Reeder told Reyburn Browning that the U.S. Capital Funding investment was insured up to $2,000,000 through CNA Insurance Companies. Sometime between April 20 and introduced Dukich to the Trustees. questioned Reeder and Dukich April 26, 1999, Reeder At the meeting, the Trustees about the investment with U.S. Capital Funding and received positive responses, including that the investment was insured. On April 26, 1999, the Trustees invested $555,000 with U.S. Capital Funding. In return, the Plan received a promissory note bearing a 9.25% rate of return, payable in 180 days from April 27, 1999. The note did not contain an automatic reinvestment or renewal provision. Dukich received a 9% commission, half of which was actually paid to him. Reeder received a 1% commission from Dukich. For the first few months, the Plan received information about its investment directly from U.S. Capital Funding, including monthly interest statements and a Form 1099. Jeffrey Browning testified that, to his knowledge, none of the Trustees ever expressly authorized Funding investment. the renewal of the U.S. Capital Nonetheless, the Trustees did not receive payment when the note became due in October 1999, and there is no evidence payment was suggesting not that received. the Also Trustees in inquired October 1999, as to the why Plan stopped receiving monthly interest statements from U.S. Capital 5 Funding, and the record does not contain any evidence that the Trustees acted to determine the reason that the statements stopped arriving. Dukich first learned that U.S. Capital Funding paying funds to clients sometime in fall 2000. was not At that time, Dukich was told that U.S. Capital Funding would not be paying noteholders because of difficulty receiving companies with which it was doing business. funds from the On February 20, 2001, Reeder informed the Trustees via letter that the assets were temporarily unavailable and that litigation was currently being pursued to free up the monies. also assured guaranteed the Trustees through [the that CNA] the (J.A. 348-49.) original insurance Reeder investment arrangement interest earnings would be separately recoverable. and is that (Id.) Then, on July 23, 2001, Reeder explained to the Trustees, again by letter, that the 180-day investment was locked into five-year notes. (J.A. 350.) understanding that proceedings Florida (Id.) in U.S. in He also explained it was his Capital order Funding to release initiated legal invested funds. Consequently, Reeder advised the Trustees as follows: Although it is a difficult position to take, my suggestion continues to be to wait on the legal actions pending . . . for 6 an ultimate resolution and release of monies invested through the Browning Equipment Inc. Profit Sharing Plan. (J.A. 351.) Sometime in early November 2001, Browning had the need to find out what the story was on the insurance because the doubt started to creep in our minds about the you know, where the funds were. a request Browning. (J.A. 149.) from On November 15, 2001, in response to Browning, Reeder Reeder sent acknowledged on a fax the transmission cover sheet to that, although [Dukich] has made reference to me previously of an insurance company declaration received the document. page, Reeder had not yet Thus, as Browning testified, Reeder s fax contained nothing worthwhile demonstrating that the U.S. Capital Funding investment was insured. (J.A. 148.) On February 19, 2002, the Trustees were explicitly informed by Reeder that a court-appointed receiver was in place to coordinate the ongoing activity of U.S. Capital Funding, Inc. (J.A. 371-72.) By this time, the Plan had not received payment on the U.S. Capital Funding note since March 22, 2000, when it received its first and only payment in the amount of $25,317.12. In a letter received by the Trustees on March 24, 2003, Reeder, who is not an attorney, informed them that legal proceedings were ongoing and that any legal action taken by the Trustees themselves would not accelerate 7 recovery. (J.A. 359.) He added, however, that I fully understand any actions that you feel compelled Trustees. to in fulfilling your duties as . . . (Id.) Tragically, investment take in the U.S. problems Capital associated Funding with were dire. the Plan s We have previously noted that the U.S. Capital Funding was, in reality, a Ponzi scheme. Smith v. Continental Ins., 118 Fed. Appx. 683, 683 (4th Cir. 2004). The Plan s investment was all but lost. Browning filed the underlying complaint on March 18, 2005, asserting breach of fiduciary duty and prohibited transaction claims under ERISA (Counts I and II), as well as a state law tort claim individual granted (Count claims summary III). Without asserted judgment in by separately Browning, Appellees the favor discussing district on the court alternative grounds: first, the district court concluded that Reeder and Dukich were not fiduciaries of the Plan; and, second, the district court concluded that the statute of limitations had expired prior to Browning filing suit. II. The district court s entry of summary judgment is reviewed de novo, with the facts and the inferences from those facts taken in a light most favorable to the nonmovant. 8 See EEOC v. Navy Fed. is 424 Union, judgment Summary Credit F.3d 397, appropriate 405 (4th when "the Cir. 2005). pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 56(c); see Celotex Corp. v. Catrett, 477 Fed. R. Civ. P. U.S. 317, 322-23 (1986). Although district Browning court to appeals grant both summary grounds judgment asserted for by Appellees, the we discuss only the latter ground because, assuming that Appellees were fiduciaries to the Plan, Browning s failure to timely file suit under ERISA s three-year statute of limitations necessarily bars both ERISA claims. Additionally, although the district court did not specifically discuss Browning s state law claim, the record is sufficiently developed for us to conclude that it is barred by Virginia s statute of limitations. A. Browning s breach of fiduciary duty and prohibited transaction claims are subject to the statute of limitations framework provided in ERISA § 413, 29 U.S.C. § 1113. Section 413 provides that a claim for breach of fiduciary duty may not commence after the earlier of: 9 (1) six years after (A) the date of the last action which constituted a part of the breach or violation, or (B) in the case of an omission, the latest date on which the fiduciary could have cured the breach or violation, or (2) three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation; except that in the case of fraud or concealment, such action may be commenced not later than six years after the date of discovery of such breach or violation. 29 U.S.C. § 1113. Thus, section 413 creates a general six year statute of limitations, shortened to three years in cases where the plaintiff has actual knowledge, and potentially extended to six years from the date of discovery in cases involving fraud or concealment. Kurz v. Philadelphia Elec. Co., 96 F.3d 1544, 1551 (3d Cir. 1996). Prior to limitations was 1987, section triggered constructive knowledge. require, at violation. 966 F.2d a 413's by three either year actual statute of knowledge or Congress amended the statute in 1987 to minimum, actual knowledge of the breach or See Martin v. Consultants & Administrators, Inc., 1078, 1085 n.6 (7th Cir. 1992) (explaining that [b]efore it was amended in 1987, [29 U.S.C. § 1113] contained a constructive knowledge provision, stating that the three-year limitations period began when a plaintiff could reasonably be expected to have obtained knowledge from certain reports filed 10 with the Secretary language)). of Labor (citing removed statutory Since the 1987 amendment, the circuits that have defined what constitutes actual knowledge have reached somewhat divergent results. The actual Third and knowledge Fifth in Circuits section 413 narrow interpretation requires a showing of that plaintiffs actually knew not only of the events that occurred which constitute the breach or violation but also that those events supported a claim violation under ERISA. of breach of fiduciary duty or Int'l Union v. Murata Erie N. Am., Inc., 980 F.2d 889, 900 (3d Cir. 1992); see also Gluck v. Unisys Corp., 960 F.2d 1168, 1177 (3d Cir. 1992); Maher v. Strachan Shipping Co., 68 F.3d 951, 954 (5th Cir. 1995) (applying the Third Circuit test). Other circuits, including the Sixth, Seventh, Ninth, and Eleventh Circuits, require only that the plaintiff have knowledge of the facts or transaction that constituted the alleged violation; it is not necessary that the plaintiff also have actual knowledge that the facts establish a cognizable legal claim under running of the statute. ERISA in order to trigger the Wright v. Heyne, 349 F.3d 321, 330 (6th Cir. 2003); see also Martin v. Consultants & Adm'rs, Inc., 966 F.2d 1078, 1086 (7th Cir. 1992); Blanton v. Anzalone, 760 F.2d 989, 992 (9th Cir. 1985); Brock v. Nellis, 809 F.2d 753, 11 755 (11th Cir. 1987). The remaining circuits that have settled on a definition fall somewhere between these two views. 1 See, e.g., Caputo v. Pfizer, Inc., 267 F.3d 181, 193 (2d Cir. 2001) (holding that a plaintiff has actual knowledge of the breach or violation within the meaning of ERISA § 413(2), 29 U.S.C. § 1113(2), when he has knowledge of all material facts necessary to understand that an ERISA fiduciary has breached his or her duty or otherwise violated the Act ). Although define actual this Court knowledge has of not the had occasion breach or to precisely violation under section 413(2), 2 we need not settle on a hard and fast definition 1 Ironically enough, there appears to be some disagreement as to whether there is even a circuit split on the definition of actual knowledge. The Sixth Circuit specifically explained that courts are divided on the issue of what constitutes actual In Edes knowledge under § 1113(2). Wright 349 F.3d at 328. v. Verizon Commc ns, Inc., 417 F.3d 133 (1st Cir. 2005), however, the First Circuit refused to acknowledge that there was a circuit split, instead finding that the respective positions of the circuits are more nuanced and the differences exaggerated. Id. at 141. 2 We have previously stated that the three-year limitations period begins to run when a plaintiff has knowledge of the alleged breach of a responsibility, duty, or obligation by a fiduciary. Shofer v. Hack Co., 970 F.2d 1316, 1318 (4th Cir. 1992). In Shofer, however, there was no dispute between the parties that the three-year limitations applied and had expired when suit was filed. The issue in Shofer was whether filing an earlier suit in Maryland state court based on the same facts equitably tolled the running of the three-year statute of limitations under federal tolling principles. Thus, Shofer did (Continued) 12 in the instant case. it is plainly Based on the statutory amendment in 1987, apparent that actual distinguished from constructive knowledge. 1086. knowledge must be Martin, 966 F.2d at The point in which one has actual knowledge of the breach or violation, as opposed to constructive knowledge, in turn depends largely on the complexity of the underlying factual transaction, the complexity of the legal claim[,] and the egregiousness of the alleged violation. Id. We also agree with the First Circuit that [t]he amendment to ERISA § 413 means that knowledge of facts cannot be attributed to plaintiffs who have no actual knowledge of them, and that there cannot be actual knowledge of a violation for purposes of the limitation period unless a plaintiff knows the essential facts transaction or conduct constituting the violation. of the Edes, 417 F.3d at 142 (emphasis in original) (citing Martin, 966 F.2d at 1086). Thus, the appropriate inquiry is fact-intensive and, on the facts before us, we have little difficulty finding that the Trustees had the requisite factual knowledge to trigger the three-year statute of limitations under section 413(2). not examine the meaning of actual knowledge of the breach or violation. 13 Browning s ERISA claims are based on allegations that Appellees failed to render advice in the best interest of the plan, failed to diversify funds, failed to adequately investigate the U.S. Capital Funding investment, and invested the Plan s assets for their own benefit. The district court determined that the Trustees knew or should have known of the problems with the Note in February 2002 because Reeder wrote to inform them that a receiver had been appointed for U.S. Capital Funding. district (J.A. 538.) court requirement, 3 Although it is not clear whether the applied we an conclude actual that, by or constructive February 19, notice 2002, the Trustees had actual knowledge of enough sufficient facts relied upon in their legal claims to trigger the three-year limitations period. On February 19, 2002, the Trustees were unambiguously informed that the court-appointed undoubtedly had Plan s $555,000 receivership. knowledge On of investment that [the] date, was placed the transaction s consequences, as well as notice of actual harm. in Trustees harmful Gluck, 960 F.2d at 1177. 3 Because of the amendment to 29 U.S.C. § 1113, the threeyear statute of limitations did not begin to run on the date that the Trustees should have known about facts establishing a breach or violation. It began to run only when they had actual knowledge of the facts. 14 Although this fact alone convinces us that the Trustees had actual knowledge of the breach or violation, the record reveals that the Trustees also had direct, first-hand knowledge of other facts by February 19, 2002, making their ERISA claim patently clear by then. For example, the Trustees were fully aware that their investment was not diversified on April 26, 1999, the date they first entire purchased liquid the portion of promissory the note. Plan s By funds investing with U.S. the Capital Funding, the Trustees did not accept Reeder s advice to invest a lesser amount with U.S. Capital Funding with the balance invested elsewhere. Moreover, demonstrating the Trustees that the had Plan s actual money was knowledge not of facts invested in an insured, 180-day promissory note, as they originally believed to be the case. payable in Although the Trustees knew that the note was 180 days and did not contain an automatic reinvestment or renewal provision, the Plan was not paid after 180 days interest 1999. and the Trustees statements By late from 2000, did U.S. the not receive Capital Trustees a single monthly after October Funding were informed that U.S. Capital Funding was not paying noteholders upon maturity of the note, and the Trustees were further informed in February 2001 that litigation involving U.S. 15 Capital Funding had already ensued. On July 23, 2001, the Trustees were told that their initial 180-day investment was apparently locked into five-year notes. the lack Finally, in November 2001, Browning, concerned about of insurance of the Plan s investment, requested documents from Reeder but received nothing in return to assuage his concerns. By that point, the Trustees had not received a single document indicating that the Plan s investment was in fact insured. Because we do transaction was purchase only of not overly a believe factually single that the complex promissory nature note), the involved (it of the because the and alleged breach by the Appellees is quite egregious (the entire purchase price of $555,000 was unrecoverable), see Martin, 966 F.2d at 1086, we conclude that the aforementioned facts taken together more than establish that the Trustees had actual knowledge under 29 U.S.C. § 1113 no later than February 19, 2002. Thus, assuming that the Appellees were in fact fiduciaries (an issue we need not reach), the three-year statute of limitations ran on February 19, 2005. Consequently, Browning s lawsuit, filed on March 18, 2005, was time barred. 16 B. Browning s fallback position is that the six-year fraud or concealment period applies to his ERISA claims, rather than the three-year actual knowledge of the breach or violation period. The district memorandum court did not address opinion, but implicitly this argument rejected it by in its granting Appellees motion for summary judgment. If applicable, the fraud or concealment provision extends the statute of limitations period to six years beginning on the date of discovery. As relevant here, the six-year fraud or concealment provision fraudulent concealment also encompasses doctrine, which at a minimum applies when the the defendant acts to prevent or delay the plaintiff s discovery of the breach. 4 See, e.g., Caputo, 267 F.3d at 188. Rooted in federal common law, the fraudulent concealment doctrine tolls the statute of limitations until the plaintiff in the exercise 4 The Second Circuit in Caputo interpreted the fraud or concealment provision in 29 U.S.C. § 1113 as independently including both fraud and fraudulent concealment claims. See Caputo, 267 F.3d at 190 (interpreting fraud or concealment as fraud or [fraudulent] concealment ). This appears to be the minority view. Id. at 188-89 (citing six Unites States Courts of Appeal i.e. the First, Third, Seventh, Eighth, Ninth, and D.C. Circuits that have interpreted fraud or concealment as synonymous with fraudulent concealment ). We have not been asked to address this issue, however, as Browning do[es] not claim that [Reeder and Dukich] committed fraud by false representations or omissions. (App. Reply 10.) 17 of reasonable diligence discovered or should have discovered the alleged fraud or concealment. J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1255 (1st Cir. 1996) (citing Larson v. Northrop Corp., 21 F.3d 1164, 1172-74 (D.C. Cir. 1994)). We conclude that the fraudulent concealment doctrine is inapplicable in this case. The fraudulent concealment doctrine does not apply here for the simple reason that we find nothing in the record demonstrating that the Trustees were prevented from discovering the breach or violation as a result of concealment by Appellees. The fraudulent concealment doctrine requires the plaintiffs show (1) that defendants engaged in a course of conduct designed to conceal evidence of their alleged wrongdoing and that (2) [the plaintiffs] were not on actual or constructive notice of that evidence, Larson, 21 F.3d despite at (3) 1172. their Thus, exercise the of diligence. fraudulent concealment doctrine does not trigger the six-year limitations period under 29 U.S.C. § 1113 if the concealing act does not delay actual or constructive notice of the fiduciary s wrongdoing. In this fraudulently assuring rights the and case, Browning concealed Plan by that their contends breach [Dukich] discouraging was them 18 that of Reeder fiduciary protecting from and Dukich duty their otherwise by legal seeking independent legal advice. (App. Reply 10.) Thus, Browning s argument is tied to the fact that the Trustees were advised by letter in July 2001 and again in March 2003 that they should withhold legal action. However, regarding notwithstanding counsel, the the July Trustees had 2001 letter s already advice accumulated significant indicia of a viable claim against Appellees. In fact, the July 2001 letter explained a component of the alleged breach, as it stated that the 180-day investment was locked into five-year notes. Thus, the July 2001 letter itself did not prevent or delay the plaintiff s discovery of the breach. And on February 19, 2002, well before the March 2003 letter was sent, the Trustees were unambiguously informed that the Plan s $555,000 investment was placed in court-appointed receivership. At that time, the Trustees not only had actual knowledge of a breach or violation under section 413(2), but, by necessary implication, they also had clearly discovered violation that formed the basis of their suit. the breach or Thus, [t]he claim, such as it was, lay bare for the world to see. Kurz, 96 F.3d at 1552. In sum, the July 2001 letter therefore did not delay discovery of the breach or violation because, regardless of the letter, the Trustees were 19 well aware of Appellees wrongdoing by February 19, 2002. Further, because the three- year limitations period was triggered at that time, the March 2003 letter certainly had no effect on the Trustees discovery of the breach or violation. C. Lastly, malpractice we turn claim, to which Browning s alleges state that law professional Appellees provided investment advice to the Trustees. negligently The record in this case amply supports the district court s dismissal of the claim. Under Virginia law, a claim for professional negligence, although sounding in tort, is considered an action for breach of contract for purposes of the statute of limitations because the legal claim is grounded in contract law. See Virginia Military Institute v. King, 232 S.E.2d 895, 899-900 (Va. 1977). Under Virginia law, the statute of limitations for contract claims is five years for contracts in writing, and three years for oral contracts. Va. Code Ann. § 8.01-46. The statute of limitations accrues on the date of breach, not the date of the resulting damage is discovered. Id. § 8.01-230. Here, Browning s malpractice claim is based entirely on the Appellees recommendation to purchase the U.S. Capital Funding investment. Browning s argument is that the Appellees recommended that the Trustees invest a larger portion of the 20 Plan s Even assets assuming with that U.S. the Capital Funding. professional (App. relationship Brief 38.) between the parties was based in contract (which appears to be the case), the lengthier Virginia law five-year still bars limitations this claim. period Based provided on under Appellees recommendations, the Trustees purchased the U.S. Capital Funding note on April 26, 1999, more than five years and eleven months before this action was filed on March 18, 2005. 5 Therefore, the state law professional malpractice claim is also barred by the statute of limitations. III. The district court did not err in granting summary judgment to Appellees on the grounds that Browning s action was barred by 5 Equitable estoppel principles do not save Browning in this case. Based on Virginia statutory and case law, we have held that the statute of limitations is tolled until a person intentionally misled by a putative defendant could reasonably discover the wrongdoing and bring action to redress it. FDIC v. Cocke, 7 F.3d 396, 402 (4th Cir. 1993). As discussed at length earlier, we find that the Trustees discovered the wrongdoing on February 19, 2002, when they learned that the Plan s $555,000 investment was placed in court-appointed receivership. The July 2001 letter advising the Trustees to forgo legal action was sent seven months before they had actual knowledge. Thus, even if equitable estoppel principles tolled the running of the statute of limitations for this seven-month period, Browning s action was still filed four months late. 21 the statute of limitations. Consequently, the judgment of the district court is AFFIRMED. 22

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.