Orvis v. Johnson, 20041122-CA.
| Citation | 146 P.3d 886,2006 UT App 394 |
| Decision Date | 28 September 2006 |
| Docket Number | No. 20041122-CA.,20041122-CA. |
| Parties | Jayson ORVIS, Plaintiff and Appellee, v. Jamis M. JOHNSON, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Jamis Johnson, Salt Lake City, Appellant Pro Se.
Peggy A. Tomsic, Tomsic & Peck LLC, Salt Lake City, for Appellee.
Before Judges BENCH, GREENWOOD, and ORME.
¶ 1 Jamis M. Johnson appeals the trial court's grant of summary judgment in favor of Jayson Orvis. Johnson maintains that the court misapplied the judicial estoppel doctrine and that genuine issues of material fact preclude summary judgment. We affirm.
¶ 2 In reviewing a grant of summary judgment, "we view the facts and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party." 3D Constr. & Dev., L.L.C. v. Old Standard Life Ins. Co., 2005 UT App 307, ¶ 1 n. 2, 117 P.3d 1082 (quotations and citation omitted). We present the facts accordingly.
¶ 3 In September 1995, the Small Business Administration (SBA) filed an action against Johnson in federal district court in an unrelated matter. A $260,000 judgment was entered against Johnson. Subsequently, the SBA took Johnson's deposition during post-judgment proceedings in an attempt to satisfy its judgment by identifying Johnson's assets. At that time, Johnson was a licensed attorney in Utah and had practiced law for a number of years.1 During his deposition, Johnson testified under oath that he had no interest in any partnerships or limited liability companies. In particular, he responded "no" to the questions, "Do you have any interest in any partnership?" and "Any interest in any limited liability companies?" Johnson also testified that he had no other assets upon which the SBA could execute. As a result, the SBA was unable to collect its judgment, and it thereafter assigned the judgment to All Star Financial, which in turn assigned it to Orvis on August 11, 2001.
¶ 4 Johnson claims to have had a partnership with Orvis in several credit repair businesses. In July 2001, Johnson suspected Orvis of embezzlement and fraud and demanded an accounting from Orvis. On August 28, 2001, Orvis filed an action for declaratory judgment proclaiming that he did not have a partnership with Johnson and further that Johnson had no right, claim, or interest in any of Orvis's businesses. Johnson counterclaimed for an accounting on the basis of his purported partnerships with Orvis. Johnson also filed a third-party complaint against three other parties on the same basis. Two of the third parties filed a motion for summary judgment, which the trial court granted, ruling that Johnson was judicially estopped from asserting that he was a partner in Orvis's businesses. Johnson did not appeal that judgment.
¶ 5 Orvis filed a motion for summary judgment on the ground that Johnson was judicially estopped from claiming partnership interests with Orvis. Deon Steckling, the remaining third party, joined Orvis in the motion. In November 2004, the trial court, citing Johnson's deposition testimony in the post-judgment SBA proceedings, granted summary judgment to Orvis under the doctrine of judicial estoppel. The trial court entered a declaratory judgment that Johnson had no right, claim, or interest in any of Orvis's businesses. The trial court also dismissed with prejudice Johnson's third-party complaint against Steckling. Johnson appeals.2
¶ 6 On appeal, Johnson contends that the trial court erred when it imposed the doctrine of judicial estoppel and granted summary judgment to Orvis, declaring that Johnson had no interest in any "business, enterprise or entity, relating to credit repair, in which Orvis has any ownership interest." "Summary judgment is appropriate only upon a showing `that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 21, 54 P.3d 1054 (quoting Utah R. Civ. P. 56(c)). We review a grant of summary judgment for correctness, with no deference to the trial court.3 See id. ¶ 7 Johnson also contends that the trial court demonstrated bias toward him. We review an allegation of judicial bias for correctness as a question of law. See State v. Tueller, 2001 UT App 317, ¶ 7, 37 P.3d 1180.
¶ 8 Johnson argues that the trial court erroneously applied the judicial estoppel doctrine in its grant of summary judgment to Orvis. He also argues that genuine issues of material fact preclude summary judgment.
¶ 9 "[J]udicial estoppel is the doctrine which 'prevents a party from seeking judicial relief by offering statements inconsistent with its own sworn statement in a prior judicial proceeding.'" Jones, Waldo, Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1371 (Utah 1996) (quoting Salt Lake City v. Silver Fork Pipeline Corp., 913 P.2d 731, 734 (Utah 1995)). "`The purpose of judicial estoppel is to uphold the sanctity of oaths, thereby safeguarding the integrity of the judicial process from conduct such as knowing misrepresentations or fraud on the court.'" Id. (quoting Silver Fork, 913 P.2d at 734).
¶ 10 First, Johnson maintains that his sworn statement from the post-judgment SBA proceedings presents a genuine issue of material fact. He contends that the trial court failed to consider the actual meaning of his testimony when it interpreted only a truncated version of his response. Even though he answered "no" to the question about whether he had interest in a partnership, he continued his response as follows:
Often I'll have a joint endeavor with somebody, but I don't have a partnership or set up a partnership or an L.L.C. You know, if I get a deal I say, [h]ey, do you want to do this deal together? We'll go up to Summit County and buy a lot.
¶ 11 Johnson asserts that he did not think the question referred to his partnerships with Orvis, but instead referred specifically to real estate partnerships. However, Johnson failed to present any specific facts in the record that support this view. Because, as the nonmoving party, Johnson must submit more than conclusory or speculative assertions, we fail to see how his deposition statements can be interpreted as anything but a denial of interest in any type of partnership. See Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 31, 54 P.3d 1054 ().
¶ 12 Further, the trial court considered the fact that Johnson was a licensed attorney at the time of the deposition and thus understood that the purpose of the deposition was to determine if he had assets that could be used to satisfy the SBA judgment against him. On review of these facts and the actual deposition transcript, there is no lack of clarity in Johnson's deposition testimony.
¶ 13 Second, Johnson contends that the trial court misapplied the judicial estoppel doctrine by not considering all of its essential elements. He further maintains that genuine issues of material fact within each element preclude summary judgment under the judicial estoppel doctrine.
¶ 14 In Tracy Loan & Trust Co. v. Open-shaw Investment Co., 102 Utah 509, 132 P.2d 388 (1942), the supreme court identified four elements a party seeking to invoke the judicial estoppel doctrine must show: (1) the prior and subsequent judicial proceedings involve the same parties or their privies; (2) the prior and subsequent judicial proceedings involve the same subject matter; (3) the party opposing judicial estoppel seeks to deny a position he or she took in the prior judicial proceeding; and (4) the party seeking judicial estoppel in the subsequent judicial proceeding must have "relied on the former testimony."4 Id. at 390.
¶ 15 More recently, this court identified a fifth requirement for a party seeking to invoke the judicial estoppel doctrine—the party against whom judicial estoppel is sought must have exhibited bad faith. See 3D Constr. & Dev., L.L.C. v. Old Standard Life Ins. Co., 2005 UT App 307, ¶ 12, 117 P.3d 1082 5 . Put differently, the purpose of the judicial estoppel doctrine "is not served ... where there is no evidence that the party against whom judicial estoppel is sought knowingly misrepresented any facts in the prior proceeding and where the party seeking to invoke judicial estoppel had equal or better access to the relevant facts." Salt Lake City v. Silver Fork Pipeline Corp., 913 P.2d 731, 734 (Utah 1995) (emphasis added); see also Jones, Waldo, Holbrook & McDonough v. Dawson, 923 P.2d 1366, 1371 (Utah 1996) ().6
¶ 16 As the moving party, Orvis had the burden of presenting evidence to demonstrate that no genuine issues of material fact existed and that he was entitled to judgment as a matter of law. See Utah R. Civ. P. 56(c). Orvis presented sufficient evidence that no partnership interest existed because Johnson, in sworn testimony in a prior judicial proceeding, declared that he had no such interest. "[O]nce the moving party challenges an element of the nonmoving party's case on the basis that no genuine issue of material fact exists, the burden then shifts to the nonmoving party to present evidence that is sufficient to establish a genuine issue of material fact." Waddoups v. Amalgamated Sugar Co., 2002 UT 69, ¶ 31, 54 P.3d 1054.7
¶ 17 In response to Orvis's motion...
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