UNPUBLISHED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 D. 

BENNETT, United States District Judge for the District of 

Maryland, sitting by designation. 
Affirmed by unpublished opinion. Judge Bennett wrote the 

opinion, in which Judge Niemeyer and Judge Michael joined. 

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Unpublished opinions are not binding precedent in this circuit. 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 
3 

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 Plan (“the Plan”). At the time this suit 

commenced, Appellant Jeffrey S. Browning (“Browning”) was a 

Trustee of the Plan, as were Jean Copeland and Reyburn Browning, 

Jeffrey Browning’s father. Under the Plan, the Trustees had 
4 

“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 consulting services to the Plan 

beginning in 1994. Prior to 1994, the Plan had been a client to 

Reeder’s former employer since 1984. The Plan engaged Tiger’s 

Eye through annual letters which 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 1979 and 1999, most of the Plan’s assets were 

invested in a fixed annuity insurance contract with Royal 

Maccabees Life Insurance Company. Between 1997 and 1999, Reeder 

began communicating with Reyburn Browning about reinvesting its 

assets elsewhere. In April 1999, Reeder met with David Dukich, 

a broker based in Frederick, Maryland who was selling 

investments in U.S. Capital Funding, Inc. 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. Reeder told Reyburn 
5 

Browning that the U.S. Capital Funding investment was insured up 

to $2,000,000 through CNA Insurance Companies. 

 Sometime between April 20 and April 26, 1999, Reeder 

introduced Dukich to the Trustees. At the meeting, the Trustees 

questioned Reeder and Dukich 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 the renewal of the U.S. Capital 

Funding investment. Nonetheless, the Trustees did not receive 

payment when the note became due in October 1999, and there is 

no evidence suggesting that the Trustees inquired as to why 

payment was not received. Also in October 1999, the Plan 

stopped receiving monthly interest statements from U.S. Capital 
6 

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 was not 

paying funds to clients sometime in fall 2000. At that time, 

Dukich was told that U.S. Capital Funding would not be paying 

noteholders because of difficulty receiving funds from the 

companies with which it was doing business. 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.” (J.A. 348-49.) Reeder 

also assured the Trustees that the “original investment is 

guaranteed through [the CNA] insurance arrangement” and that 

“interest earnings would be separately recoverable.” (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.) He also explained “it was his 

understanding” that U.S. Capital Funding initiated legal 

proceedings in Florida in order to release invested funds. 

(Id.) 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 
7 

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.” (J.A. 149.) On November 15, 2001, in response to 

a request from Browning, Reeder sent a fax transmission to 

Browning. Reeder acknowledged on the cover sheet that, 

“although [Dukich] has made reference to me previously of an 

insurance company ‘declaration page,’” Reeder had not yet 

received the document. 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 recovery. (J.A. 359.) He 
8 

added, however, that “I fully understand any actions that you 

feel compelled to take in fulfilling your duties as . . . 

Trustees.” (Id.) 

 Tragically, the problems associated with the Plan’s 

investment in U.S. Capital Funding were dire. 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 (Count III). Without separately discussing the 

individual claims asserted by Browning, the district court 

granted summary judgment in Appellees’ favor on 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. See EEOC v. 
9 

Navy Fed. Credit Union, 424 F.3d 397, 405 (4th Cir. 2005). 

Summary judgment is appropriate when "the 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." Fed. R. Civ. P. 

56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 

(1986). 

 Although Browning appeals both grounds asserted by the 

district court to grant summary judgment for Appellees, 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: 
10 

(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 1987, section 413's three year statute of 

limitations was triggered by either actual knowledge or 

constructive knowledge. Congress amended the statute in 1987 to 

require, at a minimum, “actual knowledge of the breach or 

violation.” See Martin v. Consultants & Administrators, Inc., 

966 F.2d 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 
11 

with the Secretary of Labor” (citing removed statutory 

language)). Since the 1987 amendment, the circuits that have 

defined what constitutes actual knowledge have reached somewhat 

divergent results. 

 The Third and Fifth Circuits’ narrow interpretation of 

actual knowledge in section 413 “requires a showing 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 of breach of fiduciary duty or 

violation under ERISA.” 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 ERISA in order to trigger the 

running of the statute.” 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, 
12 

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 this Court has not had occasion to precisely 

define “actual knowledge of the breach or 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 

knowledge’ under § 1113(2).” Wright 349 F.3d at 328. In Edes 

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) 
13 

in the instant case. Based on the statutory amendment in 1987, 

it is plainly apparent that “actual knowledge must be 

distinguished from constructive knowledge.” Martin, 966 F.2d at 

1086. 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 of the 

transaction or conduct constituting the violation.’” 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.” 
14 

 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.” (J.A. 538.) Although it is not clear whether the 

district court applied an actual or constructive notice 

requirement,3 we conclude that, by February 19, 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 Plan’s $555,000 investment was placed in 

court-appointed receivership. On that date, the Trustees 

undoubtedly had “knowledge of [the] transaction’s harmful 

consequences,” as well as notice of “actual harm.” 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. 
15 

 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 purchased the promissory note. By investing the 

entire liquid portion of the Plan’s funds with U.S. 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, the Trustees had actual knowledge of facts 

demonstrating that the Plan’s money was not invested in an 

insured, 180-day promissory note, as they originally believed to 

be the case. Although the Trustees knew that the note was 

payable in 180 days and did not contain an automatic 

reinvestment or renewal provision, the Plan was not paid after 

180 days and the Trustees did not receive a single monthly 

interest statements from U.S. Capital Funding after October 

1999. By late 2000, the Trustees 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. Capital Funding had already 
16 

ensued. On July 23, 2001, the Trustees were told that their 

initial 180-day investment was apparently “locked into five-year 

notes.” Finally, in November 2001, Browning, concerned about 

the lack 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 not believe that the nature of the 

transaction was overly factually complex (it involved the 

purchase of only a single promissory note), and because the 

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. 
17 

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 court did not address this argument in its 

memorandum opinion, but implicitly rejected it by 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 also encompasses at a minimum the 

“fraudulent concealment doctrine,” which applies when 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.) 
18 

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, despite (3) their exercise of diligence.” 

Larson, 21 F.3d at 1172. Thus, the 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 case, Browning contends that Reeder and Dukich 

fraudulently concealed their breach of fiduciary duty “by 

assuring the Plan that [Dukich] was protecting their legal 

rights and by discouraging them from otherwise seeking 
19 

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, notwithstanding the July 2001 letter’s advice 

regarding counsel, the Trustees had already 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 the breach or 

violation that formed the basis of their suit. 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 well aware of Appellees’ 
20 

wrongdoing by February 19, 2002. Further, because the threeyear 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, we turn to Browning’s state law professional 

malpractice claim, which alleges that Appellees negligently 

provided investment advice to the Trustees. 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 
21 

 

Plan’s assets” with U.S. Capital Funding. (App. Brief 38.) 

Even assuming that the professional relationship between the 

parties was based in contract (which appears to be the case), 

the lengthier five-year limitations period provided under 

Virginia law still bars this claim. Based on 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. 
22 

the statute of limitations. Consequently, the judgment of the 

district court is 

AFFIRMED.