Beyer v. Easterling

• Decision Date: 29 April 1999
• Docket Number: No. 98-CA-00223-SCT.,98-CA-00223-SCT.
• Citation: 738 So.2d 221
• Parties: Wayne B. BEYER, M.D. v. Wayne S. EASTERLING.
• Court: Mississippi Supreme Court

738 So.2d 221

Wayne B. BEYER, M.D. v. Wayne S. EASTERLING.

No. 98-CA-00223-SCT.

Supreme Court of Mississippi.

April 29, 1999.

Robert L. Wells, Sean Wesley Ellis, Jackson, Sharon G. Plunkett, Gulfport, Attorneys for Appellant.

Thomas Y. Page, Jan F. Gadow, Ridgeland, Attorneys for Appellee.

BEFORE PRATHER, C.J., MILLS AND WALLER, JJ.

PRATHER, Chief Justice, for the Court:

STATEMENT OF THE FACTS AND CASE

¶ 1. Appellant Dr. Wayne Beyer ("Dr. Beyer") is an ophthalmic surgeon who had been employed with Southern Eye Center ("SEC") in Hattiesburg for many years as of December, 1990. In late 1990, Dr. Beyer began to suffer from serious mental and emotional difficulties, and he sought treatment from Dr. Mark F. Schwartz, a psychologist who was then clinical director of River Oaks Psychiatric Hospital in New Orleans. Dr. Beyer notes that his psychiatric difficulties began to seriously interfere with his surgical duties and with his relations with his staff and his partner, Dr. Lynn McMahan ("Dr. McMahan").

¶ 2. Recognizing the serious nature of his illness, Dr. Beyer, on the advice of his psychologist, finally decided to withdraw completely from his practice, and he informed Dr. McMahan of his intention to do so. The terms of Dr. Beyer's withdrawal from the practice were complicated, however, by the existence of an employment contract which Dr. Beyer had signed with the SEC in 1986. Dr. Beyer had negotiated the 1986 employment contract with the assistance of appellee Wayne Easterling ("Easterling"), a local attorney, and the contract contained a disability provision which provided, in part, that Beyer would receive the equivalent of his prior year's income from SEC if he were forced to withdraw from the practice due to a disability. Dr. Beyer's income for the year preceding his withdrawal was $ 1.65 million, and he was aware that the clinic would not be eager to pay him this sum in disability compensation.

¶ 3. Given that Easterling had assisted him in negotiating the original employment contract, Dr. Beyer decided to retain his services once again in negotiating the terms of his withdrawal from his practice. Dr. Beyer met with Easterling on November 20, 1990, and informed him that the withdrawal agreement would need to be completed by December 28, 1990 (the last business day of the year) in order for the withdrawal to be effective. Dr. Beyer advised Easterling of the serious nature of his disability, including the fact that he was often unable to concentrate and that he sometimes experienced "blackouts" and dissociative spells.

¶ 4. On December 3, 1990, Easterling wrote Delbert Hosemann ("Hosemann"), counsel for SEC, to inform him of his representation of Dr. Beyer. Easterling also discussed Dr. Beyer's pending withdrawal with Hosemann, and he gave Hosemann permission to speak directly with his client outside of Easterling's presence. Dr. Beyer contends that, following early efforts to assist him in the withdrawal, Easterling became increasingly non-responsive to his phone calls and messages. Dr. Beyer submits that "Easterling had absolutely no contact with Dr. Beyer from November 20, 1990, the date of the initial meeting between Dr. Beyer and Easterling, and January 3, 1991, after the withdrawal process was complete."

¶ 5. During this time period, Dr. Beyer was forced to negotiate with SEC without the assistance of Easterling. On December 27, 1990, the finalized, but unsigned, Agreement Concerning Withdrawal was faxed to Dr. Beyer, and he tried unsuccessfully to contact Easterling for advice. The documents were to be signed the next day, but Dr. Beyer asserts that Easterling nevertheless failed to contact him or return his calls until January 3. The meeting occurred on December 28, and there is considerable uncertainty as to what transpired there. Dr. Beyer asserts that he did not knowingly sign the Agreement, and he submits that he only knowingly signed various bank statements and dividend checks. On January 3, 1991, Dr. Beyer finally reached Easterling, and they agreed that the Agreement was not satisfactory, given that it did not contain a disability provision. Dr. Beyer notes, however, that "this was too little too late, as the meeting had already occurred at which the Agreement was purportedly signed."

¶ 6. On March 11, 1991, Dr. Beyer filed suit in federal court against SEC to recover the disability and other payments which he claimed he was entitled to under the 1986 agreement. Dr. Beyer notes that his case was seriously weakened, however, when the signed Agreement Concerning Withdrawal was produced in open court. Dr. Beyer asserts that he had no recollection of having signed the Agreement, but Dr. Beyer's own handwriting experts were unable to exclude the possibility that he had in fact signed the Agreement. Dr. Beyer contends that, on advice of the federal magistrate judge, he was forced to settle for a greatly reduced sum.

¶ 7. On December 27, 1993, Dr. Beyer filed this legal malpractice lawsuit against Easterling. Following a number of delays and motions, including an unsuccessful attempt by Dr. Beyer to have the trial judge recuse himself, the judge on January 7, 1998 dismissed Dr. Beyer's lawsuit on summary judgment. The trial judge ruled that the allegations in Dr. Beyer's lawsuit against Easterling were inconsistent with the facts and arguments set forth by Beyer in his earlier lawsuit against Southern Eye Clinic and in the instant case. Thus, the trial court concluded that Dr. Beyer's suit was barred as a matter of law by the doctrines of election of remedies, judicial estoppel, and equitable estoppel. Feeling aggrieved, Dr. Beyer timely appealed to this Court.

ISSUES

I. Whether Appellee was entitled to summary judgment at the circuit court level and more specifically, whether appellee was entitled to summary judgement under the theories of equitable estoppel, election of remedies and/or judicial estoppel.

¶ 8. This Court's standard of review of dismissals on summary judgment is de novo. Cities of Oxford v. Northeast Mississippi Electric Power Ass'n, 704 So.2d 59, 64 (Miss.1997)

. As provided by Miss. R. Civ. P. 56, summary judgment is only appropriate:

(I)f the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.

In determining whether a "genuine issue as to any material fact" exists, this Court will view the facts in a light most favorable to the non-moving party. Brown v. Credit Center, Inc., 444 So.2d 358 (Miss.1983).

¶ 9. The trial judge dismissed Dr. Beyer's lawsuit against Easterling based on the election of remedies doctrine. The doctrine of election of remedies serves to prevent a litigant from presenting inconsistent causes of action and/or testimony before the court. Under the election of remedies doctrine, a plaintiff's action is barred if:

(1) There exist two or more remedies;

(2) The remedies are inconsistent, and

(3) The plaintiff has previously made a choice of one of them.

Aetna Cas. & Sur. Co. v. Berry, 669 So.2d 56, 72 (Miss.1996). In Coral Drilling, Inc. v. Bishop, 260 So.2d 463, 465-66 (Miss. 1972), this Court explained the policy considerations underlying the election of remedies doctrine:

Courts will not permit litigants to solemnly affirm that a given state of facts exists from which they are entitled to a particular relief, and then afterwards affirm, or assume, that a contrary state of facts exists from which they are entitled to inconsistent relief.

¶ 10. In dismissing Dr. Beyer's lawsuit, the trial judge was concerned with the fact that, both in the federal lawsuit against SEC and in the early stages of this lawsuit against Easterling, Dr. Beyer had repeatedly contended that the signature on the Agreement was not his own. The trial judge wrote in his ruling that:

It was not until Dr. Beyer's October 24, 1997 state court deposition herein that Dr. Beyer changed his position ... and testified under oath (A) that the handwriting expert said he (Dr. Beyer) had signed the December 28, 1990, Agreement Concerning Withdrawal; (B) that Dr. Beyer accepts as a fact that he (Dr. Beyer) had signed this agreement, (C) that Dr. Beyer now contends that he had no recollection of signing this Agreement; (D) and that he would not have signed this Agreement on December 28, 1990 if he were lucid and in his right mind.... The sworn position taken by Dr. Beyer as of October 24, 1997, as to his signature being on the December 28, 1990 Agreement is completely contrary to the "forged signature" sworn positions Dr. Beyer had taken on at least three occasions.

¶ 11. In response to the trial judge's findings, Dr. Beyer submits that he did not deny in his federal lawsuit that he had signed the Agreement. Dr. Beyer submits that, instead, he merely stated that he had not knowingly signed the agreement, and that his causes of action and testimony are accordingly not inconsistent. The record, however, does not support Dr. Beyer's assertions. Dr. Beyer did not merely deny that he had knowingly signed the Agreement; to the contrary, he specifically denied that he had signed the agreement at all. Dr. Beyer testified in his 1992 deposition in the federal lawsuit as follows:

Q: If you would, look on the last page. What is the date, please? I'm calling your attention to Exhibit 7, I believe.

Dr. Beyer: That's correct. Page 9, December 28th, 1990.

Q: Does it or not appear to have your signature?

Dr. Beyer: No sir.

Q: You deny that being your signature?

Dr. Beyer: Yes, sir.

Q: Do you deny having ever signed the original or any copies of that document?

Dr. Beyer: Yes, sir.

In a March 21, 1996 affidavit, Dr. Beyer stated once again that:

2. I did not sign, nor have I ever stated that I signed, the Agreement Concerning Withdrawal from my opthamalic surgery practice at Southern Eye Center, Hattiesburg, Mississippi.

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