Albright, Justice, dissenting:
I dissent in this matter
because this Court should either reverse the judgment of dismissal below and
permit this action to proceed under West Virginia Code § 55-13-4, permitting
a declaratory judgment proceeding to declare legal relations and rights in
estate matters, or remand with instructions to amend the final judgment in
this matter to authorize an amendment of the complaint to plead a case for
equitable relief from a judgment independent of Rule 60(b), as specifically
authorized by Rule 60(b).
I understand the reluctance
of the majority to permit the use of the declaratory judgment statute to collaterally
attack otherwise final judgments. I acknowledge that this Court and the vast
majority of other jurisdictions generally observe that rule. Our adoption
of that rule is set forth in syllabus point three of Hustead v. Ashland
Oil, Inc., 197 W.Va. 55, 475 S.E.2d 55 (1996), as follows: A declaratory
judgment action can not be used as a substitute for a direct appeal.
I believe the reliance of the majority on this syllabus point is misplaced.
In the body of the excellent
opinion in Hustead, Justice Workman cites as the basis for the rule the
agreement of this Court with the holding of School Committee v. Commissioner
of Education, 482 N.E.2d 796 (Mass. 1985). The specific ruling in School
Committee cited by Justice Workman in Hustead is as follows: Absent
special circumstances, an action for a declaratory judgment cannot be used
as a substitute for a timely appeal . . . . Hustead, 197 W.Va.
at 61, 475 S.E.2d at 61 (emphasis added). It is regrettable that syllabus point
three of Hustead did not pick up the exception for special circumstances.
That does not alter the fact that this Court's opinion adopting the general
rule expressly and properly recognized that it should not apply in the face
of special circumstances. As will be discussed in the course of
this opinion, the present case has highly relevant special circumstances.
One of the most readily
apparent special circumstances is that the declaratory judgment act expressly
recognizes the likelihood that persons involved in the settlement of estates
may need the relief provided for in the act, undoubtedly in contemplation
of the fact that the administration and closing of an estate often involves
unforseen questions arising in the process of executing the directions of
the law applicable to estates.
Another special circumstance
is the novelty of the questions for which Appellant's action seeks direction
and answers. The statute involved here, West Virginia Code § 42-3-1, et seq.,
was adopted in 1995 and introduced into our law the concept of an augmented
estate, thereby substantially altering the meaning of a surviving spouse's
elective share and, inter alia, stating special rules for determining
who was liable for paying over such elective share and to what extent. It
appears that the statute has not been the subject of litigation in this Court
and, perhaps, not extensive litigation in the circuit courts.
Directly related to the circumstances presented by the relative novelty of the subject statute is the fact that the matters contained in the commissioner's report and confirmed and adopted as the order of the Circuit Court of Jackson County lack a level of clarity and certainty which would permit their easy and certain enforcement by any court or other officer directed to assist in that enforcement. The entire text of the portion of the commissioner's report relating to a judgment reads as follows:
l. Costs should be assessed to the plaintiff and defendant as incurred by each party individually in the prosecution and defense of this case. Costs of the Special Commissioner should be assessed equally between Plaintiff and Defendant.
Accordingly, I would reverse the judgment of the Circuit Court of Jackson County and direct that this action, with such parties added as may be necessary, proceed to completely dispose of the matter.
An alternative remedy is
to remand the case with directions to allow an amendment of the complaint
to state an independent action for equitable relief from a judgment whose
prospective application was not contemplated by the entering court. It is
regularly recognized that a dismissal should not be effected under Rule 12(b)
of the Rules of Civil Procedure unless there is no set of facts under which
the party praying for relief might recover that relief. The trial court,
in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should
not dismiss the complaint unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him
to relief. Syl. Pt. 3, Chapman v. Kane Transfer Co., 160 W.Va.
530, 236 S.E.2d 207 (1977) citing Conley v. Gibson, 355 U.S.
41, 45-46 (1957). It is likewise the policy of the rules that amendment shall
be freely allowed to the end that justice may be served. Amendments are controlled
by West Virginia Rule of Civil Procedure 15, which states in pertinent part:
(a) Amendments. _ A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
See Poling v. Belington Bank, Inc., 207 W. Va. 145, 529 S.E.2d 856 (1999).
Rule 60(b) expressly preserves
such an independent action, where justified, apart from a showing of entitlement
to relief under that rule, by providing: [T]he procedure for obtaining
any relief from a judgment shall be by motion as prescribed in these rules
or by an independent action. (Emphasis added.)
For all the reasons previously assigned as special
circumstances justifying a declaratory judgment proceeding in this case, I
believe that a skillful pleader could set forth a cause of action to address
what Appellant believes to be the inequitable effect of the uncertain judgment
confirmed, adopted and entered by the Circuit Court of Jackson County in the
case underlying the case sub judice.
The majority opinion does a distinct injustice by preventing the affected parties from gaining a workable, effective and certain order under which to settle and close the affected estates. I hope our judicial system, by a rehearing in this Court, or otherwise, has and seizes the opportunity to make our system of laws work to bring about a just result on the merits in this matter _ whatever that result may be after full hearing and adjudication of the issues we have thus far not allowed to be heard.
I am authorized to state that Chief Justice McGraw joins in this dissenting opinion.