Albright, Chief Justice, dissenting:
Only by invoking the doctrine of judicial
estoppel could the majority circumscribe the critical findings upon which the
circuit court relied in granting summary judgment to Ms. Robertson. After an
exhaustive review of motions, memoranda, affidavits, depositions, exhibits, arguments
of counsel, and pertinent legal authority, the trial court was firmly convinced
that “[t]he metes and bounds description prepared by Erickson's [grantor's]
attorney failed to adequately describe all the property Erickson owned in the
Triadelphia
District, excluding the 7-11 tract.” Based on the trial court's additional
finding that Ms.
Robertson “clearly intended to purchase all Erickson's property in the Triadelphia
District, specifically excluding the 7-11 tract and specifically including all
of Parcel A, Parcel B, and
the Tract surrounding Parcel B” as further evidenced by her payment of taxes
on the subject
property, (See footnote 1) the
lower court had no difficulty applying long-standing precepts of property law
that permit reformation of a deed where a mistake has been made. (See
footnote 2) Rather than allowing this
mistake in the property description set forth in the deed to be reformed, as
the trial court wisely determined was the proper remedy, the majority decided
to punish Ms. Robertson, the ultimate buyer of the property, for the inaccuracy
of the deed. The law should not work an injustice as easily as the majority has
deigned to do.
While I do not dispute that judicial estoppel
has its place in the law, the exercise of that doctrine under the facts of this
case is highly questionable and its use clearly works what can only be described
as an injustice. Despite its recognition of the fact that judicial estoppel is
an extraordinary remedy that demands judicious application, the majority
quickly clears the hurdles set in place to discourage the improper use of this
doctrine. The majority recognizes, but chooses not to adopt, certain well-designed
parameters that other states have imposed regarding the use of this doctrine.
Two such critical limitations that the
majority cites are that “the estopped party had knowledge of the facts at
the time he or she
took the original position” (See
footnote 3) and “the first position was not taken as a result
of ignorance,
fraud, or mistake.” (See
footnote 4) Another important limitation on the doctrine's use is
that “the inconsistency must be part of an intentional effort to mislead
the court.” (See footnote
5) See Kitty-Anne
Music Co. v. Swan, 4 Cal. Rptr. 3d 796, 800 (Cal. App. 2003) (stating
that to invoke judicial
estoppel, “a party's inconsistent position must arise from intentional wrongdoing
or an
attempt to obtain an unfair advantage”). In crafting its rule concerning
the use of judicial estoppel, the majority unwisely discarded each of these necessary
curtailments on the
doctrine's implementation.
By omitting these critical limitations on
the use of judicial estoppel, the majority has failed to establish a standard
designed to meet the objectives of the doctrine that
it identifies: “[T]o maintain the integrity of the judicial system and to
protect parties from
opponents' unfair strategies.” (See
footnote 6) Ironically, in creating a standard that expressly fails
to include any factors that pertain to the wrongful use of the court system for
a parties' advantage and that accounts for positions that are changed due to
mistake, fraud, or ignorance, the majority has done a serious disservice to the
judicial system, rather than upholding its integrity, as it claims. The record
in this case is utterly devoid of any facts suggesting that Ms. Robertson intentionally
misled the court or opposing parties as to the
total acreage of the property she purchased. And, while the majority suggests
some degree of nefariousness in the late disclosure of the erroneous metes and
bounds description on the deed, the record does not bear out this postulation.
The trial court meticulously sets forth the chronology of events with regard
to the discovery of the error in the deed. Nothing in that description even hints
at wrongdoing on Ms. Robertson's part. (See
footnote 7)
Why the majority undertook to deny Ms. Robertson
the protections that the law affords to others who find themselves, due to no
fault of their own, in the midst of a legal matter that was brought about by
a legal mistake is utterly mystifying. As the circuit court recognizes, the law
of this state on the issue of deed construction requires that the intention of
the parties should control where it can be determined. See Realty Secs. & Discount
Co.
v. Nat'l Rubber & Leather Co., 122 W.Va. 21, 27, 7 S.E.2d 49, 51 (1940).
According to the trial court's order, it is undisputed that Ms. Erickson intended
to sell the subject property to Ms. Robertson. Moreover, as the trial court also
observes, any ambiguity that arises in connection with the construction of a
deed is construed against the grantor. See Syl. Pt. 3, West Virginia
Dep't of Hwys. v. Farmer, 159 W.Va. 823, 226 S.E.2d 717 (1976) (“Where
an ambiguity exists in a deed, the language of such deed will be construed most
strongly
against the grantor.”). Yet, because the majority assumes that Ms. Robertson
improperly
sought to gain an advantage by not previously raising the ownership issue of
the disputed acreage _ a factual issue of which she was initially unaware _ she
is denied the right to have
her deed reformed.
On balance, this case simply does not fit
the bill of one where the factual and procedural posturing of a party clearly
warrant application of judicial estoppel. The case simply does not involve a
litigant who was playing “fast and loose with the courts.” See Jackson
v. County of Los Angeles, 60 Cal. App. 4th 171, 181 (Cal. App. 1997) (stating
that “[j]udicial estoppel is 'intended to protect against a litigant playing “fast
and loose with the
courts”'” (citing Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.
1990)). Rather than serving to uphold the integrity of the judicial system, application
of judicial estoppel on the facts of this case merely serves to undercut the
objectives of fairness and justice that are the foundation of our court system.
Of additional concern to me as a jurist is the majority's wholesale disregard
of all of the factual and legal findings of the trial court. Such disregard for
the trial court's rulings does little to advance the overarching objective of
upholding the integrity of the judicial system _ the purported basis for the
majority's ruling in this case.
For the foregoing reasons, I respectfully
dissent.