IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2023 Term

_______________

No. 21-0913

_______________

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.

PHILLIPS GARDILL KAISER &

ALTMEYER PLLC

Wheeling, West Virginia

and

James A. Walls, Esq.

Morgantown, West Virginia

Joseph A. Ford, Esq.

Charleston, West Virginia

SPILLMAN THOMAS & BATTLE, PLLC

Counsel for Petitioner 

Wesbanco Bank, Inc.

Frank E. Simmerman, Jr, Esq.

Chad L. Taylor, Esq.

Frank E. Simmerman, III, Esq.

SIMMERMAN LAW OFFICE, PLLC

Clarksburg, West Virginia

Counsel for Respondent Crystal Gayle 

Ellifritz

Sandra M. Murphy, Esq.

Thomas A. Heywood, Esq.

J. Mark Adkins, Esq.

Peter G. Markham, Esq.

BOWLES RICE LLP

Charleston, West Virginia

FILED

June 15, 2023

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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. 

Counsel for Amici Curiae Community 

Bankers of West Virginia and the West 

Virginia Bankers Association
i

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).
ii

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). 
1

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.
2

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 account2at 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. 
3

“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. 
4

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,5as 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 
5

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. 
6

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;8and 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. 
7

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. 
8

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. 

9 At 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. 
9

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 postverdict 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 
10

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.
11

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 
12

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 
13

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. 
14

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 
15

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, 
16

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 
17

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. 
18

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. 
19

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 
20

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.”
21

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.