Cox v. Miller

• Decision Date: 23 June 2005
• Docket Number: No. 05-190.,05-190.
• Citation: 210 S.W.3d 842
• Parties: Wava COX, Appellant, v. Kay MILLER, as Administratrix of the Estate of Walter Clark "Dub" Brassell, Appellee.
• Court: Arkansas Supreme Court

210 S.W.3d 842

Wava COX, Appellant, v. Kay MILLER, as Administratrix of the Estate of Walter Clark "Dub" Brassell, Appellee.

No. 05-190.

Supreme Court of Arkansas.

June 23, 2005.

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., by: Leigh Anne Shults and Derrick W. Smith, Little Rock, for appellant.

Cross, Kearney & McKissic, by: Gene E. McKissic, Pine Bluff, for appellee.

DONALD L. CORBIN, Associate Justice.

The instant case is before this court on a petition for review from an Arkansas Court of Appeals' decision reversing the order of the Jefferson County Circuit Court imposing a constructive trust on certain real property held by Appellant Wava Cox. See Cox v. Miller, CA04-76, 2004 WL 3153806 (Ark.App. February 2, 2004). In requesting review, Appellee Kay Miller asserted that the court of appeals erred in its application of the doctrine of judicial estoppel. We granted the petition for review pursuant to Ark. Sup.Ct. R. 1-2(e). Accordingly, we consider the case as though it had been originally filed in this court. Pifer v. Single Source Transp., 347 Ark. 851, 69 S.W.3d 1 (2002). We affirm the order of the trial court.

Sometime in 1985, Wava Cox began an extramarital affair with Walter "Dub" Brassell. The couple began living together in 1992, even though Brassell was still married to Mary Alice Brassell at the time. Dub Brassell filed for divorce in 1998. As part of the divorce proceeding, he was deposed regarding certain matters, including his ownership interest in certain real property. Brassell stated unequivocally that the only property that he owned with Cox was a one-and-a-half acre tract of land in Drew County that was adjacent to another one-and-a-half acre tract deer camp owned by Cox.¹ Brassell also denied that he had ever contributed to the purchase of any property or that there was any property owned by him and held in Cox's name.

The divorce proceeding culminated in a property-settlement agreement that provided that Brassell would retain possession of the Drew County property, while his ex-wife would retain the marital home. Thereafter, the Jefferson County Chancery Court entered an amended divorce decree on December 9, 1999.

Brassell died intestate on January 2, 2000, leaving as his sole heir his daughter Kay Miller. Miller was appointed as administratrix of her father's estate. On May 4, 2000, she filed a complaint, in her role as administratrix, against Cox, alleging that Brassell and Cox had jointly acquired certain real property and that at the time of her father's death, he "owned legal title and equitable interest" in those properties. The complaint sought that "a judicial determination be made of the nature of the property and the respective interest of Brassell and Cox." The properties set forth in the complaint included the deer camp located in Drew County, as well as property known as the Redfield Shopping Center.

A bench trial was held on March 19-20, 2003, and August 6, 2003. Tim Newton, a longtime friend of Brassell's testified about improvements that Brassell made to the deer camp. He also explained that Brassell always referred to the camp as "Our Place" and assumed that the camp belonged to Brassell and Cox. According to Newton, Brassell told him of several properties that he owned, including the Redfield Shopping Center. He stated that he and Brassell would pass the center, and Brassell would tell him that he owned it. Finally, Newton testified that he was with Brassell on several occasions when he would stop at the shopping center and have conversations with tenants about business matters.

Pete Harrison, who served under Brassell in the sheriff's office, testified that Brassell told him that he and Cox owned property in Redfield, including the Redfield Shopping Center. Harrison also testified that he often made deposits on Brassell's behalf into Cox's bank account.

Brenda Robinson, who prepared Brassell's income tax returns, testified that Brassell submitted documentation to her for his 1990 income tax return indicating that he had purchased an interest in the Redfield Shopping Center from Cox in July of 1990. According to that documentation, Brassell paid Cox $55,000.00 for an interest in the property. Robinson also explained that Brassell's subsequent returns claimed rental income and depreciation on the property in Redfield. Then, according to Robinson, beginning in 1998, Brassell no longer claimed rental income or depreciation.

Additionally, Miller introduced into evidence her father's income tax returns from 1990 through 1996 that reflected that Brassell owned the shopping center through listings on amortization and supplemental income schedules. She also introduced Cox's returns from 1992 though 1999, and they contained complementary documentation.

Also introduced at trial was a journal kept by Brassell that contained certain financial information, including transactions he conducted with Cox. One such entry, dated August 13, 1987, reflected that Brassell and Cox visited the deer camp in Drew County and that "we put $500.00 earnest money down. The price is $4,000.00." Numerous other entries reflected expenditures that Brassell made for improvements to the deer camp. There were also some cancelled checks introduced into evidence that had been written by Brassell to Cox.

Cox testified at trial and denied that she ever jointly owned any property with Brassell, other than the one-and-a-half acre tract in Drew County. She also testified that she purchased the deer camp property in 1987 for $4,500.00. She further explained that she purchased the Redfield Shopping Center in 1990 for $110,000.00, after making a down payment of $22,914.96. She then denied ever entering into an agreement with Brassell to sell him an interest in the shopping center.

Cox also explained that she had been made a party to the Brassell's divorce proceeding in 1998, and in that case, introduced proof to establish that she did not own property with Brassell or hold property that was his in her name. She also denied any knowledge that during the divorce proceeding Brassell provided copies of income tax returns that had been purged of the interest he was paying her. She was eventually dismissed from the action. Cox admitted that beginning in 1990, her income tax records reflected that she sold an interest in the Redfield Shopping Center to Brassell and that she provided such information to her accountant. She claimed that she and Brassell falsified their income tax returns due to the fact that Brassell complained about the amount of income taxes he had to pay every year. According to Cox, she agreed to the falsification of records because she was trying to help Brassell. She again denied that Brassell ever purchased an interest in the shopping center. She also denied that Brassell did not list himself as an owner of the property in order to prevent his ex-wife from claiming an interest in the property during their divorce.

At the conclusion of all the evidence, Cox argued that the divorce proceeding was res judicata to the allegations that Cox and Brassell jointly owned property. Cox also reiterated that there were other affirmative defenses at issue, including estoppel and waiver. The trial court disagreed and ruled from the bench that Miller had proven the necessary elements to warrant the imposition of a constructive trust. The trial court then explained that one of the key factors to be considered in deciding this case was the credibility of the parties and that Cox's testimony was less than truthful and that she failed to be forthright at all times. Thereafter, the trial court announced that it was imposing a constructive trust on the deer camp and the Redfield Shopping Center and ordered Cox to convey a one-half interest in each property to Brassell's estate. The trial court further ordered Cox to provide an accounting for all rents and profits received from the Redfield Shopping Center since the date of Brassell's death. A written order memorializing the trial court's oral ruling was entered on October 9, 2003. Cox timely filed a notice of appeal, and Miller cross-appealed.

The case was submitted to the Arkansas Court of Appeals. The court of appeals agreed with Cox's argument that the elements of judicial estoppel were established, thus reversing the order of the trial court. The court specifically found that each of the elements of judicial estoppel had been satisfied, citing to this court's decision in Dupwe v. Wallace, 355 Ark. 521, 140 S.W.3d 464 (2004). The court of appeals ultimately concluded that "either Brassell's deliberate statements under oath or the estate's current attempt to claim the property is tantamount to a knowing misrepresentation." Cox, 2004 WL 3153806, at *3. Therefore, Miller, acting on behalf of the estate, was judicially estopped from asserting a position contrary to the claims asserted by Brassell during his prior divorce proceeding. Miller then petitioned this court for review.

For her first point on appeal, Cox argues that the trial court erred in finding that Miller, as administratrix of the estate of Dub Brassell, was not judicially estopped from asserting that Brassell held an ownership interest in property held in Cox's name. In support of her argument, Cox asserts that the elements of judicial estoppel were clearly established. Cox bases this assertion on the fact that Brassell testified during a deposition taken in the course of his divorce proceeding that he owned no property jointly with Cox. Thus, according to Cox, the estate, which stands in the shoes of Brassell, is judicially estopped from now arguing that Brassell was a joint owner of certain real property titled solely in Cox's name.

Before reaching the merits of Cox's argument on this point, this court must determine whether her argument regarding judicial estoppel is preserved for our review. Miller argues that the issue of judicial estoppel was never raised before the...