No. 21277 - Mildred Walden, Plaintiff Below, Appellant, v. Jay M.
Hoke and Fredrick G. Staker, III, Defendants Below, Appellees
Workman, Chief Justice, dissenting:
The majority concludes that collateral estoppel bars
relitigation, in a different jurisdiction, of an issue previously
ruled upon by another court. As the majority recognizes, a party
cannot circumvent that rule by simply describing the same facts in
a different way. While those principles are facially correct, they
do not adequately address or resolve the issues presented to this
Court in the instant case.
The majority summarily concludes that 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." Upon thorough analysis of Mrs. Walden's claims in the legal malpractice action, however, it is clear that additional issues were raised in the Cabell County claim which had not been litigated in Lincoln County. The Circuit Court of Lincoln County did indeed find that Mrs. Walden knew of the existence of the workers' compensation award and knowingly and intelligently waived her rights thereto. That issue was the only one determined by the Circuit Court of Lincoln County.See footnote 1 1
In the Legal malpractice action brought in Cabell County,
however, Mrs. Walden clearly raised issues not previously addressed
by the Lincoln County court. For instance, Mrs. Walden claimed
that her attorneys were negligent in protecting her interests by
failing to prevent her former husband's dissipation of
approximately $40,000 in marital assets. Further, Mrs. Walden
claimed that her attorneys neglected to advise her of a possible
right to alimony and failed to assert her claim to any real
property interest. Mrs. Walden also asserted that her attorneys
failed to conduct meaningful discovery. A finding in the Lincoln
County action that Mrs. Walden knew of the workers' compensation
award and knowingly and intelligently waived her rights thereto
should not preclude litigation in Cabell County in issues which
were not encompassed within the scope of the Lincoln County
inquiry. Mrs. Walden's claim against her attorneys for legal
malpractice should have been allowed to proceed, so that she could
have had her day in court to fully litigate the issues in her
We have said on may occasions that a motion for summary
judgment should be granted only when there is no genuine issue of
material fact and the moving party is entitled to judgment as a
matter of law. W. Va. R. Civ. P. 56(c). We have explained that on
appeal, the facts are to be viewed in a light most favorable to the
party against whom the summary judgment was rendered. Price v.
Bennett, 171 W. Va. 12, 297 S.E.2d 211 (1982). We have also
emphasized that because summary judgment forecloses trial on the
merits, we have not favored its use where factual development is
necessary to clarify application of the law. Coffman v. Shafer,
186 W. Va. 381, 412 S.E.2d 782 (1991). Furthermore, questions of
negligence and due care are not ordinarily susceptible to
adjudication through summary judgment. Reed v. Smith Lumber Co.,
165 W. Va. 415, 268 S.E.2d 70 (1980).
It smacks of lawyer protectionism to deny this plaintiff at minimum the right to develop the facts surrounding her claims which were not addressed in any way by the Lincoln County Circuit Court.
Footnote: 1 1It is actually not clear from the record before us whether the circuit court completely resolved even the issue regarding the workers' compensation award. It concluded that ". . . the
Settlement Agreement of the parties was entered into by the Petitioner without her being subjected to fraud, duress, or other unlawful compulsions to enter said Agreement." This appears to leave open the question of whether the Petitioner waived her interest in the award based on negligent legal advice.