Krafve v. O'Keeffe

I agree with the majority decision withdrawing our original opinion delivered in this cause on December 18, 1987, but I cannot agree to the affirmance in this case. I would reverse the judgment and, because the case was tried on the wrong theory, remand the case for a new trial in the interest of justice.

*223The case was tried on the theory that the contract embodied in the “Agreed Judgment”3 and, in particular, the language defining “payout,” as set forth in paragraph 1, was unambiguous. Neither party at trial pleaded ambiguity, and it is fair to say that the ambiguity issue was not tried by…