Filed: April 23, 1993
Richard A. Robb
Charleston, West Virginia
Attorney for the Appellant
Stephen R. Crislip
Pamela L. Wray
Jackson & Kelly
Charleston, West Virginia
Attorney for the Appellees
JUSTICE BROTHERTON delivered the Opinion of the Court.
CHIEF JUSTICE WORKMAN dissents and reserves the right to file a dissenting opinion.
SYLLABUS BY THE COURT
1. "In this jurisdiction under certain conditions
mutuality of parties is no longer necessary in order to enforce a
judgment against a party or his privy." Syllabus point 5, Conley
v. Spillers, 171 W.Va. 584, 301 S.E.2d 216 (1983).
2. "Whether a stranger to the first action can assert
collateral estoppel in the second action depends on several general
inquiries: Whether the issues presented in the present case are
the same as presented in the earlier case; whether the controlling
facts or legal principles have changed substantially since the
earlier case; and, whether there are special circumstances that
would warrant the conclusion that enforcement of the judgment would
be unfair." Syllabus point 6, Conley v. Spillers, 171 W.Va. 584,
301 S.E.2d 216 (1983).
3. A litigant cannot relitigate, in a different
jurisdiction, an issue previously ruled upon by another court
merely by describing the same facts in a different way.
4. It is improper for a lawyer to represent both the
husband and the wife at any stage of the separation and divorce
proceeding, even with full disclosure and informed consent. The
likelihood of prejudice is so great with dual representation so as
to make adequate representation of both spouses impossible, even
where the separation is "friendly" and the divorce uncontested.
The provisions of W.Va. Code § 48-2-4(a)(10) (1992), which allow a
divorce for irreconcilable differences, do not alter the
impropriety of dual representation.
5. A plaintiff's lawyer should not prepare an answer for the defendant in any divorce, regardless of whether the divorce is uncontested and simple.
This case involves a petition for appeal by Mildred
Walden from the May 6, 1992, summary judgment order of the Circuit
Court of Cabell County. She seeks damages from attorneys Jay Hoke
and Fredrick Staker, III, for professional negligence, negligent
conflict of interest, breach of fiduciary duties, and breach of
On August 1, 1989, Mildred Walden retained Jay Hoke, an
associate in the law office of Hankins & Taylor, to represent her
in her divorce from her husband, Dan Edwin Walden. Another
associate in the Hankins & Taylor office, Fredrick Staker, also
participated in her representation by the law firm. Mrs. Walden
alleges that Hoke and Staker also represented her husband's
interests in the divorce proceedings.
The Waldens had been married for fourteen years. During
that time, Mr. Walden became disabled due to workers' compensation
injuries and a bipolar psychiatric illness that rendered him
incompetent. Mrs. Walden contends that she took care of her
husband and all of his affairs during their marriage because of his
disabilities. Mrs. Walden served as her husband's legal committee
during their marriage, until she resigned on July 5, 1990. At that
point, Mr. Walden's daughter, Bobbi Jo Walden, was appointed to
replace her. In her deposition, Mrs. Walden noted that in her
capacity as his committee, she handled all aspects of her husband's
disability claims and workers' compensation claims. She also
stated that she participated in all conferences with her husband's
workers' compensation attorney, Amos Wilson, and that she was
involved in the progress of the cases.
During the pendency of the divorce action, but prior to
a final decree, Mr. Walden received two workers' compensation
awards, first $55,000, and then $30,000 several months later. Mrs.
Walden claims that upon receipt of the $55,000 award, her husband
immediately began spending the money and that her request to her
lawyers to freeze the assets were ignored until she froze them
herself. At that point, approximately $13,000 remained. No
evidence was presented in support of these allegations, nor were
any dates given regarding the release dates of the workers'
compensation payments. See footnote 1
On July 20, 1990, after she resigned as committee, Mrs.
Walden signed a formal separation and property settlement. On
August 21, 1990, a guardian ad litem was appointed for Mr. Walden
because he was declared incompetent. On October 18, 1990, a final
divorce hearing was held before the Lincoln County family law
master. The Lincoln County Circuit Court entered a final divorce
decree on that same date, and the property settlement agreement was
approved. See footnote 2 The property settlement stated, in pertinent part,
4. That in consideration for which, the Husband and Wife shall receive the monies set forth as follows:
a. The Wife shall receive Twelve Thousand
Dollars ($12,000.00) as a lump sum cash
settlement, with Two Thousand Dollars
($2,000.00) of which having been previously
paid, and with Ten Thousand Dollars
($10,000.00) of which to be conveyed at the
execution of this Agreement by both of the
parties hereto; and,
b. The Husband shall receive the rest and
residue of his State Workers Compensation
settlement from this date hereafter; and,
c. The Husband's Committee, Mrs. Bobbi Jo
Walden, has been expressly advised of this
provision and does hereby give her express
CONSENT AND AGREEMENT to this cash settlement
and its effect; and,
That both the Husband and Wife, together with the Husband's Committee, further expressly acknowledge and agree that the above mutual covenants and agreed-upon terms are fair and reasonable; were not obtained by fraud, duress or any other unconscionable act or conduct by either of the parties; and, represent an equitable distribution of the marital estate by and between the parties hereto.
In December, 1990, after the divorce decree was final,
Mrs. Walden learned that her ex-husband had received a second
workers' compensation award of approximately $30,000. Again, the
date of this payment is unclear. Mrs. Walden alleges that her ex-husband, his daughter (the new committee), and her attorney, Mr.
Hoke, concealed this award from her.See footnote 3
Within the appeal time for the divorce decree, Mrs.
Walden retained attorney Ray Hampton to attempt to set aside the
final divorce decree and property settlement. Thus, on February 7,
1991, she filed a Rule 60(b) motion, arguing that the property
settlement agreement and the final divorce decree were obtained by
fraud, duress, and unconscionable conduct.
On March 4, 1991, a hearing and oral argument was held in
Lincoln County Circuit Court. On March 21, 1991, the court ruled
that the appellant:
knew of the existence of the Worker's Compensation award made to the Respondent herein. And did knowingly and intelligently waive her rights thereto as demonstrated by her execution of the Settlement Agreement which reads in part in paragraph 4B, that the husband shall receive the rest and residue of the State Worker's Compensation settlement from this date hereafter; and that the agreement was signed by the Petitioner on July 20th, 1990, and the Petitioner received the portion of the Worker's Compensation funds which the Petitioner seeks a portion thereof; after July 20th, 1990. And that the Petitioner entered into this Settlement Agreement without her being subjected to any fraud, duress or other unlawful means. See footnote 4
Rather than filing an appeal, Mrs. Walden filed suit
against Hoke and Staker for legal malpractice in Cabell County on
April 30, 1991. The malpractice suit was filed within the appeal
period for the Lincoln County Rule 60(b) action. In the
malpractice claim, Mrs. Walden asserted that her attorneys had a
conflict of interest, that she did not understand the settlement
agreement, that she was under duress throughout the divorce, and
that she did not know of the second workers' compensation award to
her husband. The appellant characterizes this issue as
professional negligence, breach of fiduciary duties, and lack of
informed consent. Following a one-year discovery period, the
appellees moved for summary judgment on the issue of collateral
By order filed May 6, 1992, the Cabell County Circuit
Court granted the appellees' motion for summary judgment following
a hearing and oral argument. The court ruled that Mrs. Walden was
collaterally estopped from bringing a second action based upon
issues which had been fully adjudicated in the Lincoln County
Circuit Court action. Specifically, the court stated:
Sealed exhibits from the Lincoln County Circuit Court divorce action, filed in support of the Motion for Summary Judgment by the defendants, reveal that a final divorce degree with the Separation and Property Settlement Agreement approved and attached was entered by Judge W. Jack Stevens on October 18, 1990; that plaintiff, by different counsel than the defendants, filed a motion in Lincoln County to set aside the Final Divorce Decree and Separation and Property Agreement on or about February 7, 1991 based upon the same or similar grounds asserted herein; that a hearing was held on March 4, 1991 on said motion before Judge E. Lee Schlaegel, Jr. at which the plaintiff and her counsel personally appeared; and that by Order dated March 20, 1991, Judge Schlaegel expressly ruled:
"[1.] That the Petitioner
herein knew of the existence of the
Workers' Compensation award to be
prospectively made to the Respondent
herein, and did knowingly and
intelligently waive her rights
thereto as demonstrated by her
execution of the Settlement
Agreement . . ."
and that ". . . the Settlement
Agreement of the parties was entered
into by the Petitioner (the
plaintiff herein) without her being
subjected to fraud, duress, or other
unlawful compulsions to enter into
That no further Motion to Reconsider was made
and no appeal of the Lincoln County divorce
action was made before or after this action
was filed in this Court on or about April 30,
5. Based upon the exhibits of all
parties herein, and the entire record before
it, taken in a light most favorable to the
plaintiff, the Court accordingly finds that
the plaintiff herein is barred by the doctrine
of collateral estoppel from relitigating these
same or similar issues in the Circuit Court of
Cabell County against the defendants, as a
matter of law. For these and other reasons
apparent on the face of the record, the Court
ORDERS that the Motion for Summary Judgment
be, and the same hereby is, granted as a
matter of law and the Clerk is directed to
remove this action from the docket of this
Unfortunately, those sealed records cannot be located. This action is Mrs. Walden's appeal from that final order.
In Conley v. Spillers, 171 W.Va. 584, 301 S.E.2d 216, 220
(1983), this Court discussed the differences between res judicata
and collateral estoppel:
'To preclude parties from contesting matters that they have had a full and fair opportunity to litigate protects their adversaries from the expense and vexation attending multiple lawsuits, conserves judicial resources, and fosters reliance on judicial action by minimizing the possibility of inconsistent decisions' . . . . Collateral estoppel is designed to foreclose relitigation of issues in a second suit which have actually been litigated in the earlier suit even though there may be a difference in the cause of action between the parties of the first and second suit.
Id. at 220 (citations omitted). The Court also recognized that
mutuality of parties, under certain conditions, was no longer
required. "In this jurisdiction under certain conditions mutuality
of parties is no longer necessary in order to enforce a judgment
against a party or his privy." Id. at syl. pt. 5.
Thus, the principles of collateral estoppel do not
require that the parties in the separate suits be identical, as in
res judicata. However,
[w]hether a stranger to the first action can assert collateral estoppel in the second action depends on several general inquiries: Whether the issues presented in the present case are the same as presented in the earlier case; whether the controlling facts or legal principles have changed substantially since the earlier case; and, whether there are special circumstances that would warrant the conclusion that enforcement of the judgment would be unfair.
Id. at syl. pt. 6. See also Pitsenbarger v. Gainer, 175 W.Va. 31,
330 S.E.2d 840, 843 (1985). In this case, there are no controlling
facts or legal principles that have changed substantially. There
is, however, a question of whether the issues presented in Cabell
County are the same as those decided by the Lincoln County Circuit
In the case now before us, Mrs. Walden's allegations must
be analyzed separately. There is no question that the third and
fourth allegations in Mrs. Walden's malpractice complaint, the
issues of duress and lack of knowledge of the workers' compensation
award, were addressed by the Lincoln County Circuit Court. The
Lincoln County order which dismissed Mrs. Walden's Rule 60(b)
motion specifically found that the property settlement was not
obtained through duress and that Mrs. Walden was aware of the
prospective workers' compensation award. Consequently, the circuit
court was correct in foreclosing any further attempt to litigate
the issues of whether Mrs. Walden knew of the possibility of future
workers' compensation awards and if the agreement was obtained
through fraud or duress.
Turning to the appellant's second allegation, we find
that Mrs. Walden's argument that she did not understand the
property settlement agreement was also properly dismissed.
Although as worded, the appellant's allegation that she did not
understand the property settlement agreement appears to be a new
claim, a careful analysis reveals it also revolves around the
workers' compensation awards. The only portion of the property
settlement agreement that she complains not to understand is her
failure to be granted more of the workers' compensation award --
there is no complaint regarding the division of their personal
property, automobiles, trailer, or bills.
The appellees direct this Court's attention to McCord v.
Bailey, 636 F.2d 606 (D.C. Cir. 1980), cert. denied 451 U.S. 983,
101 S.Ct. 2314, 68 L.Ed.2d. 839 (1981), in which a plaintiff filed
a malpractice action against his attorneys following the denial of
an appeal of a criminal conviction on the grounds that he had
received ineffective assistance of counsel. The federal district
court held that the plaintiff was collaterally estopped from
asserting a malpractice claim against his attorneys because he had
a full and fair opportunity to litigate the issue in the first
claim. The court ruled that:
[The plaintiff's] allegations in this case
encompass in all material respects the same
claims he presented in his coram nobis
petition and his criminal conviction appeal.
These claims center on ineffective assistance
and intentional betrayal. Though in his civil
case he couches his claims primarily in tort,
he raises no new material contentions.
Id. at 609.
A similar situation exists in this case. A litigant
cannot relitigate, in a different jurisdiction, an issue previously
ruled upon by another court merely by describing the same facts in
a different way. Mrs. Walden's allegations boil down to one basic
complaint -- she did not get part of a workers' compensation award
which she believed she deserved. The Lincoln County Circuit Court
found that she understood the property settlement and that she
knowingly waived her rights to that workers' compensation award
without fraud or duress. Thus, the Cabell County Circuit Court
correctly dismissed this allegation.
The last allegation of a conflict of interest on the part
of Mrs. Walden's lawyers is perhaps more difficult to analyze.
Despite the current litigation, this divorce was initially
uncontested and involved an incompetent who had a guardian ad litem
and committee to look after his interests. The only evidence in
the record of a possible conflict of interest is the appellees'
preparation of an answer to Mrs. Walden's divorce petition for Mr.
Walden, his committee, and guardian ad litem. While the
preparation of documents for a guardian ad litem by the other
party's attorney is common practice and generally innocuous, we
believe it is improper.
An opinion, filed by the Committee on Legal Ethics in
1977, discussed this issue and concluded that it is improper for a
lawyer to represent both the husband and the wife at any stage of
the separation and divorce proceeding, even with full disclosure
and informed consent. The likelihood of prejudice is so great with
dual representation so as to make adequate representation of both
spouses impossible, even where the separation is "friendly" and the
divorce uncontested. The provisions of W.Va. Code § 48-2-4(a)(10)
(1992), which allow a divorce for irreconcilable differences, do
not alter the impropriety of dual representation. Legal Ethics
Opinion 77-7. We agree.See footnote 5 More specifically, we hold that a
plaintiff's lawyer should not prepare an answer for the defendant
in any divorce, regardless of whether the divorce is uncontested
Unlike the situation in the Legal Ethics opinion, Hoke
and Staker did not agree to represent Mr. Walden as well as Mrs.
Walden. However, by preparing documents for the defendant, the
appellees created an inference of impropriety. While the practice
of one party preparing documents for the guardian ad litem of an
opposing party may be common, we believe it is unwise. Regardless
of how simple, amicable, and uncontested the divorce may be, the
preparation of documents for the opposing party raises the
possibility of prejudice and presents the appearance of
The situation at hand is good illustration of why the
rule stated above is wise. This divorce, which began uncontested
and amicable, degenerated rapidly into a case engendering multiple
litigation. While separate attorneys for both parties would not
guarantee that this appeal would not have occurred, it would go a
long way towards avoiding allegations of conflict of interest.
Consequently, in the case now before us, we find that it was improper for the appellees to prepare documents for Mr. Walden, his guardian ad litem, and committee. The guardian ad litem is fully capable of preparing documents on behalf of an incompetent or minor, thus avoiding any appearance of impropriety. At the same time, however, we can find no evidence that in preparing that document, Hoke and Staker prejudiced Mrs. Walden's interests. The answers prepared for Mr. Walden simply admitted what Mrs. Walden had alleged in her divorce petition, agreed that they had irreconcilable differences, and stated that the property settlement had been agreed on by all parties. Since no evidence was presented showing that the appellees' preparation of the answer prejudiced the appellant, we hold the action harmless.See footnote 6
Accordingly, we affirm the May 6, 1992, order of the
Circuit Court of Cabell County and hold that the appellant's suit
was properly dismissed by summary judgment.
Footnote: 1In his deposition, Mr. Hoke stated that his work for Mrs. Walden was pro bono, although Mrs. Walden contends she paid $100 in cash.
Footnote: 2In her deposition, Mrs. Walden stated that she agreed to the $12,000 lump sum cash award in that property settlement because that was all that she believed was left of the workers' compensation awards and that she was under stress at the time she agreed to enter the settlement agreement. She specifically stated, however, that her lawyers did not force or coerce her into entering the property settlement.
Footnote: 3In the October 18, 1990, hearing before the family law master, Mrs. Walden advised the court that "We still live together, we still do business together, whatever." In her deposition, she stated that she continued to handle his affairs even after she was no longer his committee.
Footnote: 4The appellee Hoke notes that Mrs. Walden declined a later offer by their representative to file a motion to reconsider after the Lincoln County Circuit Court had refused the motion to set aside the property agreement. Thus, there was no appeal filed to either the final divorce decree or the denial of the motion to set aside.
Footnote: 5West Virginia Code § 48-2-4(a)(10) (1992) states:
If one party to a marriage shall file a verified complaint, for divorce, against the other, alleging that irreconcilable differences have arisen between the parties, and stating the names of the dependent children of the parties or of either of them, and if the other party shall file a verified answer to the complaint and admit or aver that irreconcilable differences exist between the parties, the court shall grant a divorce: Provided, That the defendant may file and serve an answer with or without an attorney, and said verified answer shall be sufficient if it is of the form as set out in section four-a [§ 48-2-4a] of this article: Provided, however, That the circuit clerk of each county shall maintain sufficient supplies of said form and provide the same to any person at no charge. No corroboration shall be required on the ground for the divorce or the issues of
jurisdiction or venue or any other proof for a divorce on the ground of irreconcilable differences of the parties. The court may make orders for or approve, modify or reject any agreement between the parties pertaining to just and equitable, (i) alimony, (ii) custody, support or maintenance of children, or (iii) visitation rights.
Footnote: 6When considered from a practical standpoint, the conflict of interest allegation also revolves around the workers' compensation award. Assuming it is true, then Mrs. Walden's attorneys also represented Mr. Walden in the property settlement. The only thing of value in the settlement was, incidentally, the workers' compensation award. Mrs. Walden testified that she handled all of Mr. Walden's workers' compensation affairs, and the Lincoln County Circuit Court ruled that she "knowingly and intelligently waived her rights" to that award. If she knowingly waived her rights to the only item of any value, how could she have been harmed by a perfunctory answer to facilitate the conclusion of the divorce proceedings? As we noted above, the answer simply confirmed what Mrs. Walden had asked for -- a divorce -- and the approval of the previously agreed to property settlement agreement.