Lexis Nexis - Case Brief

Not a Lexis+ subscriber? Try it out for free.

Law School Case Brief

Keesecker v. Bird - 200 W. Va. 667, 490 S.E.2d 754 (1997)


The court therefore holds that the purpose of W. Va. R. Civ. P. 17(a) is to ensure that the party who asserts a cause of action possesses, under substantive law, the right sought to be enforced. W. Va. R. Civ. P. 17(a) allows circuit courts to hear only those suits brought by persons who possess the right to enforce a claim and who have a significant interest in the litigation. The requirement that claims be prosecuted only by a real party in interest enables a responding party to avail himself of evidence and defenses that he has against the real party in interest, to assure him of finality of judgment, and to protect him from another suit later brought by the real party in interest on the same matter. 

The test which circuit courts must use to determine the applicability of the discovery rule: In tort actions, unless there is a clear statutory prohibition to its application, under the discovery rule the statute of limitations begins to run when the plaintiff knows, or by the exercise of reasonable diligence, should know (1) that the plaintiff has been injured, (2) the identity of the entity who owed the plaintiff a duty to act with due care, and who may have engaged in conduct that breached that duty, and (3) that the conduct of that entity has a causal relation to the injury.


In late 1974, Dr. Ward Keesecker and his wife Emily Keesecker were involved in a car accident which claimed the life of Dr. Keesecker. In his will, Dr. Keesecker gave certain real and personal property to Emily for her life, and upon her death, the remainder was to go to his son Ward W. Keesecker II (Keesecker). The real property, Highwood House, was a large home located in Berkeley Springs, West Virginia. The personal property consisted of the contents in the house. In 1981, Arch Steiner was appointed as Committee of the Estate of Emily Keesecker. In 1986, Steiner was relieved of his duties replaced by Walter Bird.

In 1991, Bird decided to sell the property but Keesecker disagreed. Bird filed a lawsuit to compel Keesecker to sell the property. Keesecker filed a counterclaim against Bird and third-party complaint against Steiner alleging they committed waste to the property by failing to preserve the property and its contents. The Circuit Court dismissed the actions against Bird because he was not a proper party to the litigation. The actions against Steiner was dismissed as barred by statute of limitation.


1. Was the Circuit Court correct in its analysis that Bird is not a real party in interest?

2. Was the claim against Steiner barred by statute of limitations?


1. No. 2. Yes.


1. The Court reversed the decision of the Circuit Court in ruling that Bird was not a real party in interest. According to the Court, the analysis should have been on Keesecker’s right and interest as he was the party prosecuting a claim for waste to the life estate and damage to his remainder interest. The Court found that Keesecker is a real party in interest because he has both a sufficient interest in the litigation and may be entitled under the substantive law to recover for damages to his remainder interest.

2. The Court affirmed the decision of the Circuit Court in ruling that the claim against Steiner has prescribed. The Court ruled that Keesecker was not entitled to the protection of the discovery rule because he had the opportunity to file the case as early as 1986 but failed to do so. The Court found that Keesecker knew that the property has been deteriorating since 1975 and that by 1986, any breach of duty by Steiner was causing the alleged damage to the property.

The Court remanded the case and ordered the Circuit Court to determine Bird's duties towards the estate of Emily Keesecker under both Virginia and West Virginia law.

Access the full text case Not a Lexis+ subscriber? Try it out for free.
Be Sure You're Prepared for Class