Huckin v. Connor

• Decision Date: 27 June 1996
• Docket Number: No. 14-95-00602-CV,14-95-00602-CV
• Citation: 928 S.W.2d 180
• Parties: David HUCKIN, Appellant, v. Joseph P. CONNOR and Stern, Flanz, Carnley and Wilson, P.C., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 180

928 S.W.2d 180

David HUCKIN, Appellant, v. Joseph P. CONNOR and Stern, Flanz, Carnley and Wilson, P.C. Appellees.

No. 14-95-00602-CV.

Court of Appeals of Texas Houston (14th Dist.).

June 27, 1996.

Rehearing Overruled Aug. 8, 1996.

Gary Forrest Deshazo, Austin, Jerome J. Schiefelbein, La Jolla, CA, for appellant.

Richard A. Sheehy, Houston, Lauren L. Beck, Houston, R. Edward Perkins, Houston, for appellees.

Before MURPHY, C.J., and AMIDEI and ANDERSON, JJ.

OPINION

AMIDEI, Justice.

David Huckin appeals from a summary judgment granted in a legal malpractice suit in favor of appellees, Joseph P. Connor and Stern, Flanz, Carnley and Wilson, P.C. In one point of error, appellant contends the trial court erred in granting appellees' motion for summary judgment. We affirm.

In February, 1981, David Huckin entered into a contract with Kemper Investors Life Insurance Company ("Kemper") to sell life insurance and annuities. The contract was terminable at will and Kemper terminated the contract without cause in February, 1983. Huckin contacted appellee Connor, an attorney at law, in 1987 to file suit against Kemper. Connor filed a suit against Kemper in Huckin's behalf in November, 1987. After he filed the suit, Connor became associated with the firm of appellee Stern, Flanz, Carnley and Wilson, P.C. ("Stern firm"). About six weeks after Connor filed the suit, Huckin terminated his attorney contract with Connor and retained Michael Kerensky of the firm of O'Quinn, Kerensky and McAninch, to take over the Kemper suit. In 1988, Huckin filed this suit against Connor and the Stern firm for malpractice alleging that Conner had failed to timely file the Kemper suit. The Kemper suit was dismissed for want of prosecution in May, 1989, and Kerensky failed to notify Huckin of the dismissal. Huckin learned of the dismissal in 1991 at which time all of his claims against Kemper were barred by limitations. Huckin then sued Kerensky and the O'Quinn firm for legal malpractice ("Kerensky suit") alleging that his lawsuit against Kemper was viable and not barred by limitations and Kerensky's negligence caused the suit to be dismissed and become barred by limitations.

Kerensky and the O'Quinn firm filed a motion for summary judgment in the malpractice suit alleging that Huckin's breach of contract claim against Kemper was not viable because the underlying contract with Kemper was terminable at will and the termination by Kemper was lawful and not actionable. The motion for summary judgment in the Kerensky suit also alleged that Huckin's claim against Kemper for tortious interference and defamation were barred by limitations, and thus Kerensky and the O'Quinn firm were not liable as a matter of law. Huckin filed a response to Kerensky's motion for summary judgment, together with his sworn counter-affidavit in support of the response, claiming that he did not discover his cause of action against Kemper for tortious interference until December, 1985, and did not learn of the defamation until December, 1987, and that his claims for tortious interference and defamation were not time barred. The trial court granted Kerensky's motion for summary judgment "to the extent plaintiff's legal malpractice claim against defendants is based on loss of contract claims" against Kemper. The partial summary judgment denied all of the remaining grounds for summary judgment in Kerensky's motion for summary judgment which included the claims of bar by limitations against Huckin on his tort claims against Kemper. Kerensky and the O'Quinn firm amended their motion for summary judgment again alleging that all of Huckin's tort claims against Kemper were barred by limitations and Kerensky and the O'Quinn firm were not liable.

Huckin settled his malpractice case against Kerensky and the O'Quinn firm before trial on the merits. As part of the settlement, Huckin agreed to the unopposed entry of a summary judgment in favor of Kerensky and the O'Quinn firm on their pending motion for summary judgment. The summary judgment was entered, as agreed, on January 12, 1994.

After concluding the Kerensky suit, Huckin actively pursued this case against appellees starting in February, 1994. The case had initially been filed in 1988. Various agreements between the parties postponed any activity until after Huckin had resolved the Kerensky case. In 1993, the court sent notices to Huckin advising him that the court would dismiss his case against Connor and the Stern firm for want of prosecution unless he could show cause to retain the case on the docket. Huckin's attorneys filed sworn motions to retain the case on the docket stating as grounds for the motion that the claims against Connor and the Stern firm were claims for alternative relief and that if Huckin was successful in his suit against Kerensky, he would not be able to pursue his claims against Connor. The motion to retain stated further "only if he is unsuccessful in pursuing his lawsuit against Mr. Kerensky will he be in a position to pursue his claims against Mr. Connor."

Huckin's fourth amended petition against appellees alleged that appellee Connor was negligent in failing to timely file the Kemper lawsuit. The suit against Kerensky alleged that the Kemper suit was timely filed and that the negligence of Kerensky in letting the case be dismissed was the cause of Huckin's loss.

Appellees filed their motion for summary judgment on all Huckin's claims on the grounds of judicial estoppel, collateral estoppel, election of remedies, and limitations as to the claim against the Stern firm. Appellant responded asserting his claims were not barred under these grounds. The trial court granted appellees' motion for summary judgment and did not specify the grounds upon which it granted the judgment.

When a summary judgment does not specify the grounds upon which the trial court granted it, the reviewing court will affirm the judgment if any one of the theories advanced in the motion is meritorious. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993); Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989).

Appellant's one point of error contains four subpoints of error contending that Huckin's claims are not barred by judicial estoppel, election of remedies, collateral estoppel and limitations against the Stern firm. Appellant argues that his claims are not barred by judicial estoppel because his statements in his affidavit in response to appellees' motion for summary judgment with respect to limitations did not clearly and unequivocally assert a contrary position, that he did not successfully maintain his position on limitations in the Kerensky suit, and that this suit is not a "subsequent action." We disagree.

The doctrine of judicial estoppel was established in Texas in Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 295 (1956). The Court held, in pertinent part:

The doctrine of judicial estoppel is not strictly speaking estoppel at all but arises from positive rules of procedure based on justice and sound public policy. It is to be distinguished from equitable estoppel based on inconsistency in judicial proceedings because the elements of reliance and injury essential to equitable estoppel need not be present. 'Under the doctrine of judicial estoppel, as distinguished from equitable estoppel by inconsistency, a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary to the assertion sought to be made.' 31 C.J.S. Estoppel § 121, p. 390; Grier v. Canada, 119 Tenn. 17, 107 S.W. 970; Sartain v. Dixie Coal & Iron Co., 150 Tenn. 633, 266 S.W. 313. It has likewise been held that it is not necessary that the party invoking this doctrine should have been a party to the former proceedings [citations omitted]. [emphasis added].

The elements required to trigger the estoppel are: (1) the sworn, prior inconsistent statement must have been made in a judicial proceeding; (2) the party now sought to be estopped must have successfully maintained the prior position; and (3) the prior inconsistent statement must not have been made inadvertently or by mistake, fraud or duress. Id. at 295. See also Moore v. Neff, 629 S.W.2d 827, 829 (Tex.App.--Houston [14th Dist.] 1982, writ ref'd n.r.e.). A fourth requirement for the application of the doctrine of judicial estoppel is that the statement must be deliberate, clear, and unequivocal. Am. Sav. & Loan Ass'n of Houston v. Musick, 531 S.W.2d 581, 589 (Tex.1975) citing Griffin v. Superior Insurance Co., 161 Tex. 195, 338 S.W.2d 415 (1960).

Appellant filed his sworn affidavit to his response to Kerensky's motion for summary judgment (the prior proceeding) in which he stated that he became "aware" of Kemper's alleged tortious interference with his contract in December, 1985, and of Kemper's defamation in December, 1987. In his sworn deposition, he admits that he furnished the facts to his attorney that were made the basis of his petition against Kerensky and the O'Quinn firm and that he agreed with all the contents of the petition prepared by his attorney. The statement upon which the claim of estoppel is based may have been made in verified pleadings, an affidavit, or a deposition during the course of sworn testimony. Aetna Life Ins. Co. v. Wells, 557 S.W.2d 144, 147 (Tex.Civ.App.--San Antonio 1977) writ ref'd n.r.e., 566 S.W.2d 900 (Tex.1978).

Appellant argues that his sworn statements were equivocal and should not be considered because several of his statements in the body of the affidavit were qualified as being based upon appellant's information and belief and cites as authority Selected Lands Corp. v. Speich, 702 S.W.2d 197 (Tex.App.--Houston [1st Dist.] 1986, writ ref'd n.r.e.). Speich concerns verification of an affidavit as being insufficient to make it an affidavit (a "sworn document") in a judicial estoppel case. The affidavit in Speich concluded that matters contained in the petition...