Wava Cox v. Kay Miller, Administratrix of the Estate of Walter Clark "Dub" Brassell

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

WAVA COX

APPELLANT

V.

KAY MILLER, ADMINISTRATRIX OF THE ESTATE OF WALTER CLARK "DUB" BRASSELL

APPELLEE

CA04-76

February 2, 2005

APPEAL FROM THE JEFFERSON COUNTY CIRCUIT COURT

[NO. E-2000-810-1]

HON. WILLIAM W. BENTON,

CIRCUIT JUDGE

REVERSED AND REMANDED

Josephine Linker Hart, Judge

Wava Cox appeals from an order of the Jefferson County Circuit Court ordering her to convey to the estate of Walter Clark "Dub" Brassell, hereinafter "the estate," an undivided one-half interest in a deer camp and the Redfield Shopping Center. Both of the deeds to the properties named Cox as the sole grantee. On appeal, Cox argues that the trial court erred in finding: 1) that the estate was not judicially estopped from asserting that Brassell had an ownership interest in the property; and 2) that she held the realty in constructive trust for Brassell and ordering her to deed a one-half interest in those properties to the estate. We find her argument concerning judicial estoppel to be persuasive, and reverse and remand.

Brassell and Cox became romantically involved in 1985, while Brassell was still married. The affair continued until Brassell's death in 2000. In 1992, Brassell and Coxbegan to live together. Even so, Brassell did not file for divorce from his wife, Mary Alice, until 1998. Mary Alice made Cox a party to the divorce proceeding.

Attendant to the divorce action, on May 5, 1999, Brassell gave a discovery deposition in which he stated unequivocally that the only property that he owned with Cox, that he had contributed to the purchase of, or that was owned by him and held in her name, was 1.5 acres of deer camp property adjacent to another 1.5 acres that Cox owned in Drew County. According to his deposition testimony, Brassell claimed that he put up approximately $1,500 of the "three or four thousand dollar" purchase price. Subsequent to his giving of the deposition, Brassell entered into a property settlement with his wife that gave her the marital residence and him ownership of the "deer camp property in Lincoln (sic) County,"1 but did not mention ownership of any other real estate.

Brassell died intestate on January 2, 2000, leaving his daughter, Kay Miller, his sole heir. Miller became administratrix of his estate. On May 4, 2000, she filed a complaint in equity that alleged that Brassell and Cox had acquired certain realty together and that at the time of his death, Brassell "owned legal title and equitable interest" in those properties. The list of properties included the Redfield Shopping Center and an undivided one-half interest in a deer camp in Drew County.2

Miller presented testimony from three witnesses, Tim Newton, Pete Harrison, and Earl Vanlandingham, who all stated that Brassell claimed he owned the Redfield Shopping Center. Additionally, Brenda Robinson, Brassell's income tax preparer, testified that the documentation that she received from Brassell for his 1990 income tax return included a "note" from Brassell that stated "purchased from contract sell from Wava Cox July, 1990, total sale is $70,000.00 at 12% interest. Building valued at $55,000.00." Miller introduced Brassell's income tax returns from 1990 through 1996, and the forms reflected ownership of the shopping center through listings on amortization and supplemental income schedules. She also introduced Wava Cox's returns from 1992 through 1999, which contained complementary documentation. However, Brassell's 1998 tax return, introduced as a defense exhibit, did not reflect his ownership of the shopping center.

Brassell's calendar book, variously referred to at trial as a "journal" and a "diary," was also introduced into evidence. The book recited various financial transactions involving Cox and the property in question, including the aforementioned information received by Brenda Robinson referring to his purchase of an interest in the Redfield Shopping Center and memorialization of payments that he had made for improvements to the deer camp. Additionally, a number of Brassell's cancelled checks that had been made payable to Cox were introduced to demonstrate that he had made regular payments for his share of the shopping center and to corroborate the diary entries concerning his payment for improvements to the deer camp. Although Cox steadfastly denied owning any real property with Brassell, the trial court found her testimony to be completely unworthy of belief. In the judgment entered on October 9, 2003, the trial court ordered Cox to convey to the estate an undivided one-half interest in both the deer camp and the Redfield Shopping Center.

On appeal, Cox argues that the trial court clearly erred in finding that Kay Miller, as adminstratrix of the estate of Dub Brassell, was not judicially estopped from asserting that Brassell had an ownership interest in property titled in Cox's name. Cox asserts that the elements of judicial estoppel were clearly established because the estate's claim is contrary to the position taken by Brassell in his divorce case; that Brassell intended to manipulate the judicial process to gain an unfair advantage; that Brassell successfully maintained the position that he did not own any property with her in his divorce proceeding against his wife, Mary Alice Brassell; and that the integrity of one court will be impaired or injured by the inconsistent positions asserted by Brassell in his divorce action and by his estate in the instant case. We find this argument persuasive.

The standard of review for bench trials is whether the trial court's findings were clearly erroneous. Martindale v. Estate of Martindale, 82 Ark. App. 22, 110 S.W.3d 319 (2003). In Dupwe v. Wallace, 355 Ark. 521,140 S.W.3d 464 (2004), the supreme court held that it was not permissible for a party litigant "to avail himself of inconsistent positions in a litigation concerning the same subject matter" nor "play fast and loose with the court." In Dupwe, the supreme court set out the necessary elements that must exist for a prima facie case of judicial estoppel:

1. A party must assume a position clearly inconsistent with a position taken in an earlier case, or with a position taken in the same case;

2. A party must assume the inconsistent position with the intent to manipulate the judicial process to gain an unfair advantage;

3. A party must have successfully maintained the position in an earlier proceeding such that the court relied upon the position taken; and

4. The integrity of the judicial process of at least one court must be impaired or injured by the inconsistent positions taken.

Id. We believe that all of the elements of judicial estoppel have been met in this case.

First, we note that although Brassell was personally a party litigant in his 1998 divorce case and the party in the case at bar is the adminstratrix of his estate, we find this distinction to be of no moment. It is settled law that an estate "stands] in the shoes of the decedent after his death" and becomes "the decedent posthumously." McDonald v. Pettus, 337 Ark. 265, 988 S.W.2d 9 (1999).

The first element of judicial estoppel, that a party must assume a position clearly inconsistent with a position taken in an earlier case, or with a position taken in the same case, is satisfied by Brassell's deposition testimony in his 1998 divorce action in which he asserted that, except for a parcel of property adjacent to Cox's deer camp he owned no property jointly with Cox or in Cox's name. As to the second element, that a party must assume the inconsistent position with the intent to manipulate the judicial process to gain an unfair advantage, indeed, if Brassell did own property with Cox, he was attempting to manipulate the judicial system for the purpose of concealing assets that would have been considered marital property. By the same token, if Brassell's deposition testimony was not untruthful, then the current effort by the estate to pull property into the estate is likewise an attempt to manipulate the judicial process. Concerning the third element, that a party must have successfully maintained the position in an earlier proceeding such that the court relied upon the position taken, it is uncontroverted that the court relied on Brassell's characterization of his assets when it approved the property settlement. Finally, regarding the final element, that the integrity of the judicial process of at least one court must be impaired or injured by the inconsistent positions taken, if Brassell indeed held real estate jointly with Cox, he was certainly lying under oath in his deposition testimony, which certainly impaired or injured the integrity of the judicial process. If Brassell's deposition testimony was truthful, however, the action giving rise to this appeal would be the source of injury or impairment of the judicial process.

Having decided that the elements of judicial estoppel are present in this case, we are further obligated under the blueprint established in Dupwe to consider Brassell's intent. Dupwe v. Wallace, supra. The supreme court has framed this consideration as a question as to whether the litigant was playing "fast and loose with the courts." Id. Such conduct must be "tantamount to a knowing misrepresentation to or even fraud on the court...." Id. (citing Arboireau v. Adidas-Salomon, A.G., 347 F.3d 1158 (9th Cir. 2003)). We hold that either Brassell's deliberate statements under oath or the estate's current attempt to claim the property is tantamount to a knowing misrepresentation. Accordingly, we hold that the trial court erred in rejecting Cox's defense of judicial estoppel. We therefore reverse and remand to the trial court for further proceedings and the entry of an order consistent with this opinion. Because we find merit in Cox's first point, we need not consider her second point.

Reversed and remanded.

Roaf and Bird, JJ., agree.

1 Later in the course of the divorce proceedings, it would be acknowledged in open court by Mary Alice's attorney that the deer camp was in Drew, not Lincoln County.

2 The deed to this 1.5 acre tract named both Brassell and Cox as grantees. Ownership of this tract is not in dispute. The ownership of the remaining 1.5 acre tract titled solely in Cox's name is the property that is the subject of this appeal.