PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Stephenson, S.J.
THOMAS WESLEY PARSON, IV
v. Record No. 052600 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 3, 2006
ROBERT PATTON CARROLL
FROM THE CIRCUIT COURT OF GREENSVILLE COUNTY
Samuel E. Campbell, Judge
In this appeal, we consider whether the circuit court erred
in awarding summary judgment in a defamation action to a
defendant, who was a victim of several crimes, in an action
brought by the perpetrator of those crimes who earlier pleaded
guilty to the offenses under North Carolina v. Alford, 400 U.S.
25 (1970). We review the circuit court’s application of the
doctrine of judicial estoppel in this procedural and factual
context.
Thomas Wesley Parson, IV, and Robert Patton Carroll became
friends in 2001 through their involvement in church activities.
Parson “took [Carroll] under his wing[]” and paid him to perform
various tasks such as house cleaning and yard work. In October
2004, Carroll informed his minister, Robin Jones, that Parson
had made sexual advances toward Carroll. At that time, Carroll
was a minor about 16 years of age and Parson was 50 years old.
Based on Carroll’s complaint, the Commonwealth initiated
criminal proceedings against Parson. In November 2004, Parson
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pleaded guilty to six counts of sexual battery. His guilty
pleas were “Alford pleas,” in which he asserted his innocence
but stipulated that the evidence presented, if credible, was
sufficient to convict him. See Alford, 400 U.S. at 37-38. At
the time of Parson’s guilty pleas and sentencing, the
Commonwealth summarized the evidence it would have presented at
trial:
Around October of 2002, the defendant began to make
sexual overtures to the victim and was touching him
inappropriately at various times. He would also hit him
with whips and riding props at various times.
The victim’s grandmother became sick and had a stroke
in 2002. At this time the victim continued to go back to
the defendant’s house on a regular basis, although these
things were happening to him. Because, number one, he was
receiving an income from the jobs he was doing and he did
need the money. And, number two, he still believed the
defendant to be his friend.
The victim went to the defendant’s home around October
. . . [2004,] when the defendant touched him
inappropriately and the victim left and never went back.
Subsequently, the victim told his minister who would
also [have] testified today. And, also the Greensville
County sheriff’s department was called. Officer Chris
Robinson investigated the matter and took statements from
the individuals. Mr. Parsons [sic] never admitted that he
ever touched the defendant in any inappropriate manner.
But, the officer did find several riding props and whips in
an umbrella stand as the victim had described.
The circuit court accepted Parson’s Alford pleas and asked
Parson if he would like to make a statement. Parson responded,
“That, you know, everything was just so far in the past. This
was years ago.”
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The circuit court sentenced Parson to 12 months in jail for
each of the six counts of sexual battery and suspended the
entire sentence. Additionally, the court imposed a fine of $200
for each offense.
Less than five months later, Parson brought a defamation
action against Carroll. 1 Parson alleged that Carroll told Jones
that Parson and Carroll “had engaged in various intimate,
sexual, and/or illegal acts including: (a) [Carroll] rubbing
lotion on [Parson’s] body, (b) [Parson] whipping [Carroll] with
a horse whip, his hand or with a stick, and (c) kissing each
other.” Parson further alleged that since March 27, 2004,
Carroll related to other members of the community that Parson
had assaulted Carroll and that Parson and Carroll had engaged in
intimate or sexual activities. Parson asserted that Carroll’s
statements were false.
In his grounds of defense, Carroll admitted he told Jones
that Parson had physically and sexually abused him. Carroll
further admitted that he told “others” about Parson’s illegal
and abusive actions as part of the criminal investigation that
ultimately led to Parson’s conviction. Carroll asserted that
all the statements he made regarding Parson were privileged and
true.
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Prior to Parson’s action, Carroll brought a civil action
against Parson seeking monetary damages based on Parson’s acts
of sexual abuse.
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Carroll later filed a motion for summary judgment. After
conducting a hearing on the motion, the circuit court granted
Carroll’s motion, holding that Parson’s Alford pleas barred the
defamation action. The circuit court stated:
The Court heard the criminal case, the Court took the plea
. . . . There’s no question in my mind that when you make
an Alford plea, you admit that the evidence is so
sufficient that you can’t overcome it.
. . . It’s an admission of guilt when you’re doing that,
the Court makes a finding on that evidence that it’s
sufficient to find guilt. The Court finds that as a block,
and the Court is granting the motion for summary judgment.
On appeal, Parson asserts that the circuit court erred in
applying the doctrine of judicial estoppel based on his Alford
pleas and the transcript containing those pleas to decide
Carroll’s summary judgment motion. In support of his argument,
Parson relies on our decision in Bentley Funding Group, L.L.C.
v. SK&R Group, L.L.C., 269 Va. 315, 609 S.E.2d 49 (2005). He
argues that under the holding in Bentley Funding Group, the
doctrine of judicial estoppel may be applied only when the
position sought to be estopped is a position of fact, rather
than a position of law. Parson argues that he did not make any
factual concessions when entering his Alford pleas and that,
therefore, the circuit court erred in relying on those pleas as
concessions of fact in applying judicial estoppel to decide
Carroll’s summary judgment motion.
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In response, Carroll asserts that the circuit court did not
err in applying the doctrine of judicial estoppel, because the
doctrine may be employed to prohibit a party from asserting a
claim in a legal proceeding that is inconsistent with a position
he has taken in an earlier legal proceeding. Carroll contends
that Parson’s position in the present defamation action
contradicted his prior pleas of guilty in the criminal
prosecution. We disagree with Carroll’s arguments.
We first observe that a circuit court’s decision granting a
summary judgment motion is an extreme remedy. Klaiber v.
Freemason Assocs., 266 Va. 478, 484, 587 S.E.2d 555, 558 (2003);
Turner v. Lotts, 244 Va. 554, 556, 422 S.E.2d 765, 766 (1992).
A circuit court may decide a case by summary judgment only when
there are no material facts genuinely in dispute. Rule 3:20;
Klaiber, 266 Va. at 484, 587 S.E.2d at 558; Thurmond v. Prince
William Prof’l Baseball Club, Inc., 265 Va. 59, 64, 574 S.E.2d
246, 250 (2003). In this procedural context, the issue we
determine is whether, through application of the doctrine of
judicial estoppel, the Alford pleas Parson entered in the
criminal prosecution resolved against him all material issues of
fact in the defamation action.
The doctrine of judicial estoppel is well established in
our jurisprudence. The purpose of this equitable doctrine is to
protect the integrity of the judicial process and to guard it
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from improper use. See New Hampshire v. Maine, 532 U.S. 742,
749-51 (2001); Kaiser v. Bowlen, 455 F.3d 1197, 1203 (10th Cir.
2006); Stallings v. Hussmann Corp., 447 F.3d 1041, 1047 (8th
Cir. 2006); Carroll v. United Compucred Collections, Inc., 399
F.3d 620, 623 (6th Cir. 2005); King v. Herbert J. Thomas Mem'l
Hosp., 159 F.3d 192, 196 (4th Cir. 1998).
Under the doctrine of judicial estoppel, a party is
prohibited from assuming successive positions in an action or a
series of actions, regarding the same fact or state of facts,
which are inconsistent with each other or are mutually
contradictory. Bentley Funding Group, 269 Va. at 325, 609
S.E.2d at 53-54; Lofton Ridge, LLC v. Norfolk S. Ry. Co., 268
Va. 377, 380-81, 601 S.E.2d 648, 650 (2004). The fundamental
requirement for application of the doctrine is that the party
who is the object of the estoppel request must be assuming a
position of fact, rather than a position of law, which is
inconsistent with a stance that the same party has taken in a
prior litigation. Bentley Funding Group, 269 Va. at 326, 609
S.E.2d at 54; Lofton Ridge, 268 Va. at 382, 601 S.E.2d at 651;
Lowery v. Stovall, 92 F.3d 219, 224 (4th Cir. 1996).
Here, the circuit court’s application of the doctrine of
judicial estoppel was based on its determination that Parson’s
Alford pleas “block[ed],” or barred, his defamation action.
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This determination, however, reflects a misperception of the
nature of the guilty pleas that Parson entered.
In Alford, the Supreme Court upheld the constitutionality
of a guilty plea in which a criminal defendant did not admit his
participation in the acts constituting the crime. 400 U.S. at
37-38. The Court explained that “while most pleas of guilty
consist of both a waiver of trial and an express admission of
guilt, the latter element is not a constitutional requisite to
the imposition of criminal penalty.” Id. at 37. The Court
stated that, therefore, “[a]n individual accused of crime may
voluntarily, knowingly, and understandingly consent to the
imposition of a prison sentence even if he is unwilling or
unable to admit his participation in the acts constituting the
crime.” Id. Based on this holding in Alford, the courts in
this Commonwealth in the exercise of their discretion have
permitted criminal defendants who wish to avoid the consequences
of a trial to plead guilty by conceding that the evidence is
sufficient to convict them, while maintaining that they did not
participate in the acts constituting the crimes. See e.g.,
Patterson v. Commonwealth, 262 Va. 301, 302 n.1, 551 S.E.2d 332,
333 n.1 (2001); Reid v. Commonwealth, 256 Va. 561, 563 n.1, 506
S.E.2d 787, 788 n.1 (1998); Zigta v. Commonwealth, 38 Va. App.
149, 151 n.1, 562 S.E.2d 347, 348 n.1 (2002); Perry v.
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Commonwealth, 33 Va. App. 410, 412-13, 533 S.E.2d 651, 652-53
(2000).
At the time Parson entered his Alford pleas to the several
misdemeanor charges, the circuit court asked him, “Do you
understand that because of [your] plea, you are admitting that
all of the evidence could be sufficient to find you guilty of
the amended charges, the misdemeanors?” Parson replied,
“Correct.” In addition, Parson’s attorney stated that based on
Parson’s Alford pleas, “[w]e would stipulate that the evidence
as presented and if believable would have been sufficient.”
By these representations in his criminal prosecution,
Parson assumed a position of law, not a position of fact. He
conceded only that the evidence was sufficient to convict him of
the offenses and did not admit as a factual matter that he had
participated in the acts constituting the crimes.
This concession of law did not provide a basis for applying
judicial estoppel in the present defamation action. See Bentley
Funding Group, 269 Va. at 325-26, 609 S.E.2d at 53-54; Lofton
Ridge, 268 Va. at 382, 601 S.E.2d at 651; The Pittston Co. v.
O'Hara, 191 Va. 886, 903-04, 63 S.E.2d 34, 43 (1951). Moreover,
judicial estoppel was not a proper remedy because Parson did not
maintain a position of fact when he entered his Alford pleas
and, thus, his factual allegations in this defamation action did
not represent an inconsistent or contradictory successive
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position of fact. See Calcote v. Fraser Forbes Co., 270 Va.
399, 406, 621 S.E.2d 403, 408 (2005); Bentley Funding Group, 269
Va. at 326, 609 S.E.2d at 54; Lofton Ridge, 268 Va. at 382, 601
S.E.2d at 651; Scales v. Lewis, 261 Va. 379, 383-84, 541 S.E.2d
899, 901-02 (2001).
Accordingly, we hold that the circuit court erred in
applying the doctrine of judicial estoppel and that, as a
result, the material factual allegations of Parson’s motion for
judgment remained in dispute at the time the circuit court
decided Carroll’s summary judgment motion. Because the material
facts of Parson’s motion for judgment were still in dispute at
this stage of the proceedings, the circuit court further erred
in awarding Carroll summary judgment. 2
Finally, we note that Carroll has cited in his brief a
portion of our decision in Zysk v. Zysk, 239 Va. 32, 404 S.E.2d
721 (1990), in which we stated that “courts will not assist the
participant in an illegal act who seeks to profit from the act’s
commission.” Id. at 34, 404 S.E.2d at 722. In light of our
holding, we do not reach the question whether, under Zysk,
Parson’s criminal acts bar him as a matter of law from
recovering any damages in this defamation action. That issue
2
Based on our holding in this case, we do not consider
Parson’s additional contention that his Alford pleas and
transcript of those pleas were not admissible under Code § 8.01-
418 in this civil action.
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may arise on remand of this case after the court has determined
whether the allegedly defamatory statements concerned the same
conduct to which Parson pleaded guilty.
For these reasons, we will reverse the circuit court’s
judgment and remand the case for further proceedings in
accordance with the principles expressed in this opinion.
Reversed and remanded.
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