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3385 - Cothran v. Brown
COTHRAN v. BROWN

THE STATE OF SOUTH CAROLINA
In The Court of Appeals


Ferrell Cothran, Personal Representative of the Estate of Douglas H. McFaddin, Respondent,

v.

Alvin Brown, Appellant.


Appeal From Clarendon County
Thomas W. Cooper, Jr., Circuit Court Judge


Opinion No. 3385
Heard December 14, 2000 - Filed September 10, 2001


REVERSED AND REMANDED


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.


PER CURIAM: Ferrell Cothran, as personal representative of the estate of Douglas H. McFaddin, brought this action asserting wrongful death and survival claims against Alvin Brown after McFaddin was struck and killed by a vehicle driven by Brown. The circuit court granted Cothran partial summary judgment on liability based on the doctrine of judicial estoppel after Brown pled guilty to reckless homicide. We reverse and remand.

BACKGROUND

At approximately 8:45 p.m. on December 2, 1995, McFaddin parked his truck near a curve on the eastbound shoulder of Rainbow Lake Road facing westbound with the headlights on. Apparently, McFaddin, who was hunting in the area, had pulled over and exited his truck to call for his dogs.

At about the same time, Brown was traveling east on Rainbow Lake Road. According to Brown, as he approached the curve he noticed what appeared to be headlights in his lane of travel, so he veered off the road to the right to avoid a head-on collision. Brown's car struck both the truck and McFaddin, resulting in McFaddin's death. Brown failed several field sobriety tests and registered a .17 on a breathalyzer.

Brown was indicted for felony driving under the influence (DUI) and pled guilty to reckless homicide. (1) Although Brown faced the possibility of a ten-year sentence, the circuit court sentenced him to six years imprisonment. S.C. Code Ann. § 56-5-2910 (Supp. 2000).

Six months later, McFaddin's wife brought a civil action asserting wrongful death and survival claims against Brown. The complaint was amended after Cothran was substituted as personal representative of McFaddin's estate. Brown answered and admitted his vehicle ran off the paved portion of the highway and struck McFaddin, causing his death. However, Brown asserted comparative negligence as a defense, arguing McFaddin, who had parked his truck on the wrong side of the roadway, facing traffic, at night, and with its headlights on, had created a hazard for approaching motorists such as Brown.

Cothran moved for summary judgment as to liability, arguing there was no genuine issue of material fact as to whether Brown's negligence alone proximately caused McFaddin's death.

The circuit court granted partial summary judgment to Cothran on liability, leaving damages to be determined by a jury. The circuit court found the doctrine of judicial estoppel precluded Brown from disputing that his recklessness was the proximate cause of McFaddin's death. The court found Brown's current position that McFaddin contributed to the accident was inconsistent with his position during the guilty plea proceeding. Specifically, the circuit court noted that during the guilty plea hearing, Brown admitted to drinking alcohol the night the accident occurred, to hitting McFaddin with his vehicle, and to being guilty of reckless driving. The court observed, "Defendant's lawyer at the taking of the plea indicated to the Court on behalf of the Defendant that [McFaddin] was not to blame whatsoever for this accident and that the bottom line cause of the accident was Brown's consumption of alcohol that evening. His plea reflects that he told the sentencing Court he accepted sole responsibility for the accident and was willing to take the consequences." The circuit court found the plea judge had accepted Brown's prior position because the court gave him a reduced sentence. Brown's efforts to assert his present position, the circuit court added, was an intentional attempt to mislead the court in order to gain an unfair advantage in the civil suit.

STANDARD OF REVIEW

Summary judgment is appropriate when "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 a judgment as a matter of law." Rule 56(c), SCRCP; see also Etheredge v. Richland School Dist. One, 341 S.C. 307, 311, 534 S.E.2d 275, 277 (2000) ("Summary judgment is appropriate when it is clear that there is no genuine issue of material fact and the conclusions and inferences to be drawn from the facts are undisputed."). In ruling on a motion for summary judgment, the evidence and inferences which can be drawn therefrom must be viewed in the light most favorable to the party opposing summary judgment. Garvin v. Bi-Lo, Inc., 343 S.C. 625, 628, 541 S.E.2d 831, 833 (2001).

DISCUSSION

While Brown raises several issues on appeal, his arguments essentially boil down to one dispositive issue: whether he is judicially estopped from litigating the issue of comparative negligence in the subsequent civil suit because of his guilty plea to the criminal charge arising from the same incident. Based on the facts and circumstances of this case, we agree the circuit court erred in holding judicial estoppel applied in a preclusive fashion. (2)

The supreme court adopted the doctrine of judicial estoppel in Hayne Federal Credit Union v. Bailey, stating, "Judicial estoppel precludes a party from adopting a position in conflict with one earlier taken in the same or related litigation." 327 S.C. 242, 251, 489 S.E.2d 472, 477 (1997). The Hayne court limited the application of judicial estoppel to inconsistent statements of fact, not for conclusions of law or assertions of alternative legal theories. Id.; Quinn v. Sharon Corp., 343 S.C. 411, 414, 540 S.E.2d 474, 475 (Ct. App. 2000). The Hayne court further explained "[t]he purpose or function of the doctrine is to protect the integrity of the judicial process or the integrity of courts rather than to protect litigants from allegedly improper or deceitful conduct by their adversaries." 327 S.C. at 251, 489 S.E.2d at 477 (relying on 31 C.J.S. Estoppel & Waiver § 139, at 593 (1996)). See also Hawkins v. Bruno Yacht Sales, Inc., 342 S.C. 352, 368, 536 S.E.2d 698, 706 (Ct. App. 2000) ("[J]udicial estoppel focuses on the relationship between the litigants and the judicial system."); 28 Am. Jur. 2d Estoppel & Waiver § 74 (2000) (noting the ultimate goal of judicial estoppel is to protect the courts, not the opposing party, from being manipulated by "chameleonic litigants who seek to prevail, twice, on opposite theories"). Under the doctrine of judicial estoppel, a party is precluded from misrepresenting the facts in order to gain an unfair advantage. Hayne, 327 S.C. at 252, 489 S.E.2d at 477. Once "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.

Although the Hayne court did not explicitly state the requirements for the application of judicial estoppel, five circumstances are generally necessary: (1) two inconsistent positions must be taken by the same party or parties in privity with each other; (2) the positions must be taken in the same or related proceedings involving the same parties or parties in privity with each other; (3) the party taking the position must have been successful in maintaining the first position and must have received some benefit; (4) the inconsistency must be part of an intentional effort to mislead the court; and (5) the two positions must be totally inconsistent. 28 Am. Jur. 2d Estoppel & Waiver § 74. Likewise, the Fourth Circuit noted some common elements of judicial estoppel as: (1) the party sought to be estopped must be asserting a position of fact that is inconsistent with a stance taken during prior litigation; (2) the prior inconsistent position must have been accepted by the court; and (3) the party sought to be estopped must have intentionally misled the court to gain an unfair advantage. Lowery v. Stovall, 92 F.3d 219, 223-24 (4th Cir. 1996).

Still, "[b]ecause judicial estoppel is an equitable concept, depending upon the facts and circumstances of each individual case, application of the doctrine is discretionary." Hawkins, 342 S.C. at 368, 536 S.E.2d at 706. See also Allen v. Zurich Ins. Co., 667 F.2d 1162, 1167 (4th Cir. 1982) (observing judicial estoppel should be applied with caution); 28 Am. Jur. 2d Estoppel & Waiver § 75 (2000) (noting judicial estoppel is an equitable concept that must be applied with caution and in the narrowest of circumstances at the discretion of the trial court). An appellate court will overturn an application of judicial estoppel that works "an injustice against the party being estopped while simultaneously subverting the judicial process." Hawkins, 342 S.C. at 368, 536 S.E.2d at 706.

The trial court relied in part on Lowery, 92 F.3d 219. Lowery brought a § 1983 action against police officers, alleging that they had violated his constitutional rights by using excessive force and failing to protect him from such force. Id. at 221. While the civil action was pending, Lowery pled guilty to malicious bodily injury to the officers and signed a detailed statement, which was reviewed in court by the plea judge. Id. at 221-22. In the statement, Lowery admitted all the factual allegations supporting the plea, including the fact that he had cut one of the officers on the face and intended to maim and disable him. Id. The Fourth Circuit upheld the district court's dismissal of Lowery's § 1983 action, finding that Lowery's position in the civil suit, that he did not attack the police who shot him without provocation, presented a factual position inconsistent with the factual allegations accepted by the plea court and was calculated to intentionally mislead the district court in the civil case. Id. at 224-25.

Brown's case, however, is factually distinguishable from Lowery. First, Lowery is a case in which the criminal defendant was the plaintiff, not the defendant. Lowery also executed a written statement, reviewed on the record in open court, in which he conceded that he had discussed his case with defense counsel, including the implications of his plea on his civil case. Id. at 222. Brown, on the other hand, signed no such statement. (3) Of greater importance, however, is the fact that Lowery's tort action did not involve comparative negligence. Therefore, Lowery's factual admissions during the plea were determinative on the issues raised in his subsequent civil suit.

In contrast, the facts that supported Brown's plea, such as his admission that he had been drinking, that he failed several field sobriety tests, that he registered .17 on a breathalyzer, that he hit McFaddin with his car, and that McFaddin later died from his injuries, are facts which are not completely determinative on the issue of comparative negligence in Cothran's subsequent civil suit. McFaddin's negligence, if any, was not an issue that had to be considered by the court in connection with Brown's plea to reckless homicide. See S.C. Code Ann. § 56-5-2910 (defining reckless homicide as "[w]hen the death of a person ensues within one year as a proximate result of injury received by the driving of a vehicle in reckless disregard of the safety of others"). Brown's recklessness did not have to be the sole proximate cause for him to be found guilty of reckless homicide so long as it is a proximate cause. The same concept is true in connection with the wrongful death suit, as the negligence of both Brown and McFaddin can combine to be the proximate cause of McFaddin's death. The difference is that in the civil context any negligence on the part of McFaddin would be used to reduce the amount of Cothran's recovery in direct proportion to the percentage of McFaddin's negligence under the concept of comparative negligence.

Cothran relies in part on Cooper v. County of Florence, 306 S.C. 408, 412 S.E.2d 417 (1991), for the proposition that simple negligence would not bar recovery when the defendant is admittedly guilty of reckless behavior. However, this reliance is misplaced because contributory negligence was the applicable theory in Cooper. In Nelson v. Concrete Supply Co., 303 S.C. 243, 399 S.E.2d 783 (1991), the concept of contributory negligence was discarded in favor of the doctrine of comparative negligence, and even simple negligence, in the face of reckless behavior, could potentially reduce a claimant's recovery.

Guilty plea proceedings and civil tort actions based on negligence have substantially different consequences for defendants. The confessed guilt of a defendant in some circumstances may not be conclusive for judicial estoppel purposes on the issue of his civil liability for a wrong. In a recent collateral estoppel decision, our supreme court adopted "the rule that once a person has been criminally convicted he is bound by that adjudication in a subsequent civil proceeding based on the same facts underlying the criminal conviction." Doe v. Doe, Op. No. 25341 (S.C. Sup. Ct. filed August 13, 2001) (Shearouse Adv. Sh. No. 29 at 23, 26) (emphasis added). Although the rule implicates collateral rather than judicial estoppel, we note the court went on to hold that "it must be shown the identical issue must have necessarily been decided in the prior criminal action and be decisive in the present civil action. It must also be shown the party precluded from relitigating the issue, appellant here, must have had a full and fair opportunity to contest the prior determination." Id. at 27 (emphasis added) (citations omitted). While Brown is bound by his factual admissions from his guilty plea, the relative degree of culpability was not at issue nor was it decided in the prior proceeding. Because plaintiff's relative fault, if any, was not an issue in his guilty plea, Brown has not yet had a full and fair opportunity to contest it. We therefore hold the grant of summary judgment in Cothran's favor on the basis of judicial estoppel was inappropriate.

CONCLUSION

For the foregoing reasons, the circuit court's grant of partial summary judgment to Cothran on the issue of liability is

REVERSED AND REMANDED.

GOOLSBY, HUFF, and STILWELL, JJ., concur.


1. At the time this action arose, reckless homicide was considered a lesser included offense of felony DUI in cases where death occurred. State v. King, 289 S.C. 371, 373, 346 S.E.2d 323, 323 (1986). The supreme court overruled King in State v. Cribb, 310 S.C. 518, 523-24, 426 S.E.2d 306, 310 (1992), and held that reckless homicide was not a lesser included offense of felony DUI.

2. As a threshold issue, State Auto, as the uninsured motorist carrier for McFaddin, argues that although it has undertaken the defense of Brown pursuant to South Carolina Code Annotated § 38-77-150 (Supp. 2000), it maintains rights separate and distinct from Brown and should not be precluded on the basis of judicial estoppel. However, because we are reversing on other grounds, we find it unnecessary to address this argument.

3. In ruling that Brown was judicially estopped, the trial court apparently considered an affidavit dated March 3, 1997, in which Brown stated the accident "was all [his] fault and was caused by the fact that [he] had had too much to drink." However, the record does not show that this affidavit was submitted to or considered by the court during Brown's guilty plea proceeding. It should not, therefore, be considered for the purpose of determining whether judicial estoppel is applicable in the civil case.