Joseph C. Hash, Jr., Esq.
Kennad
Lee Skeen, Esq.
Ravenswood, West Virginia
Skeen
& Skeen
Attorney for Appellants
Ripley,
West Virginia
Attorney
for Appellee
The Opinion of the Court was delivered PER CURIAM.
CHIEF JUSTICE MCGRAW and JUSTICE ALBRIGHT dissent and reserve the right to
file dissenting opinions.
JUSTICE STARCHER concurs and reserves the right to file a concurring opinion.
Per Curiam:
This case is before this
Court upon appeal of a final order of the Circuit Court of Jackson County
entered on June 29, 2000. In that order, the circuit court granted a motion
to dismiss filed by the appellee and defendant below, Gary Eugene Whited,
Executor of the Estate of Delbert R. Whited, deceased, in this action filed
by the appellants and plaintiffs below, Geraldine Willard and Denzil Rhodes,
Co-executors of the Estate of Alma Whited, deceased, seeking declaratory judgment
to settle the estate of Alma Whited. In this appeal, the appellants contend
that the circuit court erred by dismissing the case.
This Court has before it,
the petition for appeal, the entire record, and the briefs and argument of
counsel. For the reasons set forth below, the final order of the circuit court
is affirmed.
Delbert and Alma Whited
were married on April 18, 1982. This was the second marriage for both of them
and each had previously acquired numerous assets. During their marriage, Delbert
and Alma Whited continued to maintain the majority of their assets separately although they did establish some joint banking accounts.
On December 8, 1994, Alma Whited died at the age of 81.
Before
her death, Alma Whited executed a will which bequeathed $500 to her husband
and the rest and residue of her estate to her brothers and sisters. After
his wife's death, Delbert Whited sought his elective share of her estate rather
than taking the bequest made to him in her will. Accordingly, he brought an
action in the Circuit Court of Jackson County, Whited v. Willard, et al.,
Civil Action No. 96-C-49, to determine his elective share of his wife's
estate pursuant to W.Va. Code § 42-3-1 (1995). The matter was referred
to a special commissioner who determined that Delbert Whited's statutory share
was 38% of the augmented estate. See
W.Va. Code § 42-3-1 (1995).
The augmented estate included Alma
Whited's net probate estate totaling $117,801.00 and her reclaimable estate
totaling $84,923.00. Using the elective share formula, Delbert Whited's elective
share was calculated to be $77,035.00. On June 9, 1998, the special
commissioner issued a written report which stated, in pertinent part: On August 27, 1999, Geraldine
Willard, et al., the appellants herein,
(See footnote 1) filed a motion requesting
the court to “fix and determine” certain matters pertaining to the
special commissioner's report. The circuit court determined that it no longer
had jurisdiction as the judgment had been in effect for over a year and the
motion for relief from judgment was not timely within the meaning of Rule
60 of the West Virginia Rules of Civil Procedure. Thus, the motion was denied. Thereafter, the appellants
filed the complaint in the case sub judice. The complaint was brought
pursuant to the Uniform Declaratory Judgments Act, W.Va. Code §§ 55-13-1 to -16 (1941), and alleged that the appellants were
entitled to credits or offsets on the elective share amount of $77,035.00
for those assets over which they had no control or access, namely the joint
banking accounts of Alma and Delbert Whited. In other words, the appellants
claimed that Delbert Whited maintained control over certain bank accounts
he held jointly with his wife and that these accounts were never a part of
Alma Whited's estate. Nonetheless, these accounts were included in the special
commissioner's calculations to determine the amount of Delbert Whited's elective
share. The appellants asserted that because they never had control of these
assets as the executors of Alma Whited's estate, the total amount of these
assets should be offset or credited against Delbert Whited's elective share.
On January 7, 2000, the
appellee filed a motion to dismiss asserting that the case should be dismissed
under the theory of res judicata. The circuit court determined that
the case had in fact already been adjudicated and granted the motion to dismiss.
This appeal followed. The appellants contend that
they were entitled to bring this action pursuant to the Uniform Declaratory
Judgments Act, W.Va. Code § 55-13-1 to -16 (1941). In particular, the
appellants rely upon W.Va. Code § 55-13-2 which provides: In response, the appellee
asserts that the Uniform Declaratory Judgments Act cannot be used to reopen
matters that have already been concluded. We agree. The order of the circuit
court entered on August 6, 1999 in the prior civil action constituted a final
adjudication on the merits with regard to Delbert Whited's elective share.
Any attempt to collaterally challenge the amount owed to Delbert Whited's
estate is barred by the principles of res judicata. “'Under the doctrine of res judicata,
a judgment on the merits in a prior suit bars a second suit involving the
same parties or their privies based on the same cause of action.'” Porter
v. McPherson, 198 W.Va. 158, 166, 479 S.E.2d 668, 676 (1996), quoting
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326 n. 5, 99 S.Ct. 645,
649 n. 5, 58 L.Ed.2d 552, 559 n. 5 (1979) (footnote omitted). In Syllabus Point 4 of Blake
v. Charleston Area Medical Center, Inc., 201 W.Va. 469, 498 S.E.2d 41
(1997), this Court held that:
While the appellants claim that
the issue sought to be resolved in this declaratory judgment action did not
arise until the previous case had been concluded, it is clear that the appellants
could have litigated this matter in the prior suit. The appellants obviously
knew before the final order was entered in the previous case that the joint
banking accounts of Alma and Delbert Whited were never going to be made a part
of Alma Whited's estate. As this Court observed in Syllabus Point 1 of State
ex rel. Shrewsbury v. Hrko, 206 W.Va. 646, 527 S.E.2d 508 (1999):
Hustead, 197 W.Va. at 61, 475 S.E.2d at 61. Thus, we held in Syllabus
Point 3 of Hustead that “[a] declaratory judgment action can not
be used as a substitute for a direct appeal.”
(See footnote 2)
That
judgment by award of the elective share should be rendered as follows:
Based
on the numbers provided at the hearing and in all other forms offered by respective
counsel, and upon calculation through the elective share formula, the amount should be $77,035.00,
as of the date of the hearing.
In
calculating the final amount due and owing, counsel must exchange proof of
all interest earned on the accounts held by the estate in order that 38% percent
[sic] of that income will also be paid as part of the elective share due Plaintiff.
On August 6, 1998, the circuit court entered a final order in the action approving
the June 9, 1998 report of the special commissioner and directing the parties
to carry out and implement its provisions. Subsequently, Delbert Whited died.
Any person interested under
a deed, will, written contract, or other writings constituting a contract,
or whose rights, status or other legal relations are affected by a statute,
municipal ordinance, contract or franchise, may have determined any question
of construction or validity arising under the instrument, statute, ordinance,
contract or franchise and obtain a declaration of rights, status or other
legal relations thereunder.
The appellants maintain that this statute was designed to settle controversies
like the one in the case at bar where counsel for the respective parties have
been unable to carry out the terms of a court order which presumed that the
parties would be able to resolve the matter.
Before the prosecution of
a lawsuit may be barred on the basis of res judicata, three elements
must be satisfied. First, there must have been a final adjudication on the
merits in the prior action by a court having jurisdiction of the proceedings.
Second, the two actions must involve either the same parties or persons in
privity with those same parties. Third, the cause of action identified for
resolution in the subsequent proceeding either must be identical to the cause
of action determined in the prior action or must be such that it could have
been resolved, had it been presented, in the prior action.
As noted above, there was a final adjudication on the merits in the previous
action. In addition, this case involves the same parties who participated
in the first action. Finally, the issue presented in this case could have
been resolved had it been presented in the prior action.
“An adjudication by a court
having jurisdiction of the subject-matter and the parties is final and conclusive,
not only as to the matters actually determined, but as to every other matter
which the parties might have litigated as incident thereto and coming within
the legitimate purview of the subject-matter of the action. It is not essential
that the matter should have been formally put in issue in a former suit, but
it is sufficient that the status of the suit was such that the parties
might have had the matter disposed of on its merits. An erroneous ruling of
the court will not prevent the matter from being res judicata.”
Syllabus Point 1, Sayre's Adm'r v. Harpold, 33 W.Va. 553, 11 S.E. 16
(1890).
Moreover, this Court has
previously determined that a collateral attack on a final judgment in a civil
action through a declaratory judgment action after the doctrine of res
judicata has attached is not permissible. In Hustead on Behalf of Adkins
v. Ashland Oil, Inc., 197 W.Va. 55, 475 S.E.2d 55 (1996), the guardian
ad litem of infant plaintiffs in an air pollution lawsuit brought a declaratory
judgment action to have a court-approved settlement agreement invalidated. The final order approving the settlement
in the previous action had been entered ten months earlier and the guardian
admittedly chose not to file a direct appeal from the circuit court's final
order. Having determined that the guardian was attempting to use the declaratory
judgment action as a substitute for a direct appeal, this Court stated:
There is, however, no law
in West Virginia that permits a declaratory judgment action to be used as
a collateral attack on a final civil judgment. Moreover, we agree with other
jurisdictions that have expressly ruled that “[a]bsent special circumstances,
an action for a declaratory judgment cannot be used as a substitute for a
timely appeal....” School Comm., 482 N.E.2d at 801; accord
Alabama Public Serv. Comm'n v. AAA Motor Lines, Inc., 272 Ala. 362, 131
So.2d 172, 177, cert. denied 368 U.S. 896, 82 S.Ct. 173, 7 L.Ed.2d
93 (1961) (stating that “declaratory judgment cannot be made a substitute
for appeal”); see Hospital Underwriting Group, Inc. v. Summit Health
Ltd., 63 F.3d 486, 495 (6th Cir.1995)(citing Shattuck v. Shattuck,
67 Ariz. 122, 192 P.2d 229, 235-36 (1948)) (stating that under Arizona law,
“judgments are not set aside by collateral declaratory judgment actions”);
Tri-State Generation and Transmission Co. v. City of Thornton, 647
P.2d 670, 676-77 n. 7 (Colo.1982)(stating that “a party may not seek
to accomplish by a declaratory judgment what it can no longer accomplish directly....”);
Fertitta v. Brown, 252 Md. 594, 251 A.2d 212, 215 (1969)(stating that
“[d]eclaratory proceedings were not intended to and should not serve
as a substitute for appellate review or as a belated appeal”).
While there may be other ways
that the appellants can dispute the specific amount owed, and by whom, to Delbert
Whited's estate to satisfy his elective share, a declaratory judgment action
is not a viable option. Thus, for the reasons set forth above, we find that
the circuit court properly dismissed this case. Accordingly, the final order
of the Circuit Court of Jackson County entered on June 29, 2000 is affirmed.
Affirmed.
Footnote: 1