Cothran v. Brown

• Decision Date: 13 May 2002
• Docket Number: No. 3495.,3495.
• Citation: 350 S.C. 352,566 S.E.2d 548
• Court: South Carolina Court of Appeals
• Parties: Ferrell COTHRAN, Personal Representative of the Estate of Douglas H. McFaddin, Respondent, v. Alvin BROWN, Appellant.

350 S.C. 352

566 S.E.2d 548

Ferrell COTHRAN, Personal Representative of the Estate of Douglas H. McFaddin, Respondent, v. Alvin BROWN, Appellant.

No. 3495.

Court of Appeals of South Carolina.

Heard January 9, 2002.

Decided May 13, 2002.

Rehearing Denied July 29, 2002.

William B. Woods, Donna Seegars Givens and Darra James Vallini, all of Woods & Givens, of Lexington; and Samuel R. Clawson and Timothy A. Domin, both of Clawson & Staubes, of Charleston, for appellant.

Gedney W. Howe, III, of Charleston; John C. Land, of Land, Parker & Reeves, of Manning; and Daniel H. Shine, of Dillon, for respondent.

HEARN, Chief Judge:

Ferrell Cothran brought this action asserting wrongful death and survival claims against Alvin Brown as personal representative of the estate of Douglas H. McFaddin. The trial court granted Cothran partial summary judgment on the issue of liability. A panel of this court reversed. We granted Cothran's Petition for Rehearing En Banc to consider whether Brown should be judicially estopped from asserting comparative negligence. We affirm.

FACTS

While looking for his dogs, McFaddin parked his westbound truck on the eastbound shoulder near a curve of a road with the headlights on. According to Brown, as he approached the curve he saw headlights in his lane of travel, so he veered to the right to avoid a head-on collision. Brown struck McFaddin and his truck, resulting in McFaddin's death. Brown failed several field sobriety tests and registered a .17 on a breathalyzer test. He was indicted for felony driving under the influence (DUI) and pled guilty to reckless homicide.

As the personal representative of her husband's estate, McFaddin's wife brought this action asserting wrongful death and survival claims.¹ Brown answered, admitting that his vehicle ran off the paved portion of the highway and struck McFaddin but asserting that comparative negligence applied because McFaddin's actions caused Brown to believe the truck was approaching in his lane. Cothran moved for summary judgment as to liability, asserting there was no genuine issue of material fact regarding Brown's liability.

At the summary judgment hearing, the trial court considered three affidavits: two by Brown and one by Maechearda McCray. In an affidavit prepared at the time of his guilty plea, Brown stated: "There was nothing Mr. McFadden did to cause the accident, and there was nothing he could have done to avoid the accident. The accident was all my fault and was caused by the fact that I had had too much to drink and should have never been driving." Brown gave a second affidavit in connection with the instant civil action which painted a completely different picture of the accident. He there claimed: "The only reason this accident occurred was due to Mr. McFadden parking his vehicle in the position that he did which allowed his headlights to shine down the roadway at such an angle as to make it appear to any motorist traveling towards him that Mr. McFadden's vehicle was in their lane of travel." The affidavit of McCray, who was with Brown shortly before the collision, related her belief that Brown was not intoxicated when he left her. She also alleged that she returned to the accident scene with Brown and "observed that the lights of the McFadden vehicle appeared to be shining directly down the lane of travel ... making it appear that the McFadden vehicle was traveling towards me in my lane of travel; it is my belief that this is the same view that Alvin Brown would have had as he approached the McFadden vehicle and that this is the reason Mr. Brown swerved to his right and off of the roadway in an effort to avoid a head-on collision."

The trial court granted Cothran partial summary judgment on the issue of liability based on the doctrines of judicial estoppel and collateral estoppel.² This appeal followed.

STANDARD OF REVIEW

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), SCRCP; see Bessinger v. Bi-Lo, Inc., 329 S.C. 617, 619, 496 S.E.2d 33, 34 (Ct.App.1998)

. In determining whether any triable issues of fact exist, the evidence and all reasonable inferences from it must be viewed in the light most favorable to the party opposing summary judgment. Summer v. Carpenter, 328 S.C. 36, 42, 492 S.E.2d 55, 58 (1997).

DISCUSSION

I. Judicial Estoppel

Cothran argues that the trial court's order granting summary judgment should be affirmed because Brown is judicially estopped from contesting liability in this action. We agree.

The doctrine of judicial estoppel evolved to protect the truth-seeking function of the judicial process by punishing those who seek to misrepresent facts to gain advantage. Hayne Fed. Credit Union v. Bailey, 327 S.C. 242, 251, 489 S.E.2d 472, 477 (1997); see also John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir.1995)

(stating goal of judicial estoppel "is to prevent a party from playing `fast and loose' with the courts, and to protect the essential integrity of the process."). As explicitly embraced by our supreme court, "[j]udicial estoppel precludes a party from adopting a position in conflict with one earlier taken in the same or related litigation." Hayne, 327 S.C. at 251,

489 S.E.2d at 477. "When a party has formally asserted a certain version of the facts in litigation, he cannot later change those facts when the initial version no longer suits him." Id. However, the Hayne court only adopted the doctrine as it applies to facts, not law.

The application of judicial estoppel "is an equitable concept, depending on the facts and circumstances of each individual case, [and] application of the doctrine is discretionary." Carrigg v. Cannon, 347 S.C. 75, 83-84, 552 S.E.2d 767, 772 (Ct.App.2001) (quoting Hawkins v. Bruno Yacht Sales, Inc., 342 S.C. 352, 368, 536 S.E.2d 698, 706 (Ct.App.2000), cert. granted Sept. 27, 2001). Generally, for the doctrine to apply, courts look to the following factors:

First, a party's later position must be clearly inconsistent with its earlier position. Second, ... whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create "the perception that either the first or the second court was misled,...." A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

N.H. v. Me., 532 U.S. 742, 750-51, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (citations omitted); see Lowery v. Stovall, 92 F.3d 219 (4th Cir.1996)

.³ "Judicial acceptance means only that the first court has adopted the position urged by the party ... as part of a final disposition." Lowery, 92 F.3d at 224-25. The above outlined approach emphasizes the potential for harm to the judicial process.

In this case, the same party presented two patently inconsistent sets of facts in two different courts. In the earlier proceeding, Brown and his attorney repeatedly told the court that the accident was entirely Brown's fault because he had been drinking and driving. In addition, Brown's affidavit and Brown's attorney both stated that McFaddin in no way caused the accident. Brown presented one set of facts at his guilty plea proceeding in the interest of receiving a more lenient sentence but now attempts to assert a different set of facts to lessen his civil liability. Based on the facts presented at his guilty plea, Brown was allowed to plead guilty to reckless homicide, an offense carrying a maximum ten year sentence, rather than felony DUI which carries a maximum twenty-five year sentence. See S.C.Code Ann. §§ 56-5-2910 & 2945 (Supp.2001) (providing sentences for reckless homicide and felony DUI respectively). In reliance on that set of facts, the plea judge sentenced him to only six years imprisonment. Permitting Brown to assert different facts in this action could result in the appearance that one court or the other was misled. Moreover, allowing Brown to change his story now might result in an unfair advantage to him. It would be unfair to allow him to reap the benefit of a lesser sentence by admitting culpability but avoid civil liability by denying it.

We agree with the trial court that Brown was judicially estopped from presenting facts inconsistent with those presented at his guilty plea proceeding, including the McCray affidavit. Those facts are conclusive as to liability. Therefore, there was no issue of material fact remaining on the issue. Accordingly, we affirm the trial court's grant of summary judgment.

II. Competing Affidavits and Summary Judgment

Cothran also argues that the trial court's order should be affirmed on its merits because when the evidence is viewed in the light most favorable to Brown, summary judgment is warranted. We agree.⁴

Brown contends that his conflicting affidavits together with McCray's affidavit, create an issue of fact that should preclude summary judgment. Cothran contends that Brown should not be permitted to create an issue of fact by submitting affidavits that conflict with his sworn statement prepared at the time of his guilty plea.

Because our courts have not spoken on this issue, we may seek guidance from federal cases. See Gardner v. Newsome Chevrolet-Buick, Inc., 304 S.C. 328, 330, 404 S.E.2d 200, 201 (1991)

("Since our Rules of Procedure are based on the Federal Rules, where there is no South Carolina law, we look to the construction placed on the Federal Rules of Civil Procedure."). Numerous federal courts have held that a party may not create an issue of fact for purposes of summary judgment by submitting an affidavit to contradict that party's own prior...