In The Court of Appeals

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


Alvin Brown,        Appellant.

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

Opinion No. 3495
Heard January 9, 2002 - Filed May 13, 2002
Withdrawn and Substituted and Refiled July 29, 2002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, C.J.: 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.


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.


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).


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 (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 attorney 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 sworn affidavit. See generally 11 James W. Moore Moore's Federal Practice 56.14[1][f] (3d ed. 2001) ("[P]arties may not intentionally create a triable issue of fact by submitting conflicting submissions."). Our own Fourth Circuit has held: "A genuine issue of material fact is not created where the only issue of fact is to determine which of the two conflicting versions of the plaintiff's testimony is correct." Barwick v. Celotex Corp., 736 F.2d 946, 960 (4th Cir. 1984). (5) We believe the federal precedent on this issue is sound and persuasive. Brown should not be permitted to create an issue of fact in order to survive summary judgment by submitting an affidavit that directly contradicts his own prior sworn testimony.

In cases of competing affidavits, we find that the trial court may disregard the later affidavit if it is submitted solely to create a factual issue to avoid summary judgment. See Rohrbough v. Wyeth Labs., Inc., 916 F.2d 970, 975 (4th Cir. 1990) (affirming trial court's refusal to consider physician's conclusory affidavit issued in contradiction to his deposition testimony for the purpose of surviving summary judgment); Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)("[C]ourts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue."). In this case, the second affidavit was not based on any facts unknown to Brown when he gave his first affidavit and was given only in the interest of furthering his comparative negligence claim. This situation is distinguishable from one in which the affiant's statements rely on newly discovered evidence or merely seek to explain earlier testimony. Franks at 1237. Accordingly, Brown's second affidavit should not have been considered by the trial court.

With respect to McCray's affidavit, we initially note that materials used to support or contravene a motion for summary judgment must be admissible at trial. See Moss v. Porter Bros., Inc., 292 S.C. 444, 448, 357 S.E.2d 25, 28 (Ct. App. 1987); Saro Invs. v. Ocean Holiday P'ship, 314 S.C. 116, 121, 441 S.E.2d 835, 838 (Ct. App. 1994). The portion of her affidavit about what other people told her is inadmissible under the hearsay rule. See Rule 801, SCRE. Her statement "it is my belief that this is the same view that Alvin Brown would have had . . . and that this is the reason Mr. Brown swerved . . . ." is likewise inadmissible as opinion testimony of the ultimate fact at issue. See Richmond v. Tecklenberg, 302 S.C. 331, 334, 396 S.E.2d 111, 113 (Ct. App. 1990) ("The general rule is that opinion testimony which is determinative of the ultimate fact in issue should be excluded as an invasion of the province of the factfinder."). The remaining language in her affidavit does not create an issue of material fact.

With the exclusion of Brown's second affidavit and portions of McCray's affidavit, Brown's first affidavit leaves no issue of material fact as to liability. Accordingly, we also affirm the grant of summary judgment on this ground.



GOOLSBY and STILWELL, JJ., concurring in part.

ANDERSON, J., concurring in result only.

PYLE, A.J., concurring in part and dissenting in part.

PYLE, A.J. (concurring in part and dissenting in part): I would hold that the trial judge was correct in granting summary judgment against the defendant on the issue of liability but was in error in applying the doctrine of judicial estoppel to the facts of this case.

"Judicial estoppel precludes a party from adopting a position in conflict with one earlier taken in the same or related litigation." Hayne Federal Credit Union v. Bailey, 327 S.C. 242, 251, 489 S.E.2d 472, 477 (1977). The trial judge erred in finding Brown's position, that McFaddin contributed to the accident, was inconsistent with his position during his guilty plea and that it was an intentional attempt to mislead the court in order to gain an unfair advantage in the civil proceeding. Brown's attorney, at his plea, conceding Brown's recklessness, asserted that McFaddin's headlights confused Brown. He had experts prepare a video of the scene as it appeared at the time of the accident to demonstrate Brown's confusion. Brown himself asserted he was blinded because McFaddin was parked in a curve facing him and that had he swerved to the left instead of the right he possibly would have hit another motorist head on.

I believe that:

1. 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;

2. 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.

3. 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, if any, under the concept of comparative negligence.

4. 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.

5. The grant of summary judgment in Cothran's favor on the basis of judicial estoppel was in error.

I would affirm the granting of partial summary judgment on the issue of Brown's liability, but would reverse the circuit court's application of judicial estoppel to this case.

1. The complaint was amended on April 28, 1998, at which time Cothran was substituted as the personal representative.

2. The trial court later amended its order to include only the doctrine of judicial estoppel as a ground for granting summary judgment.

3. The South Carolina Supreme Court has not adopted a precise test to be used in determining judicial estoppel. This court has previously suggested but never applied the following test:

(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

Carrigg, 347 S.C. at 83, 552 S.E.2d at 772 (citing 28 Am. Jur. 2d Estoppel & Waiver 74 (2000)). Based on Hayne, it does not appear that the second prong of the test articulated above would apply because the parties were not all the same and the proceedings were completely unrelated. In Hayne, a father purchased a piece of property but titled it in his son's name. During his divorce, the father denied any legal interest in the property and claimed that it belonged to his son. The son then died, leaving the property to his wife, and the father did not file a claim against the estate. Thereafter, the father filed a claim in a foreclosure action asserting ownership of the property by way of a resulting trust. The court found the father was judicially estopped from claiming ownership of the property.

4. The trial court based its ruling on the ground of judicial estoppel. This court, however, is not limited to that ground in affirming the trial court's order. "The appellate court may review respondent's additional reasons and, if convinced it is proper and fair to do so, rely on them or any other reason appearing in the record to affirm the lower court's judgment." I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000); see Rule 220 (c), SCACR. However, this court should not base its decision on Rule 220(c) when the reason does not appear in the record or "when the court believes it would be unwise or unjust to do so in a particular case." Id.

5. Other federal circuits have reached the same result. See Disc Golf Ass'n, Inc. v. Champion Disc, Inc., 158 F.3d 1002, 1008 (9th Cir. 1998) (stating that a party cannot create a triable issue of fact and thus escape summary judgment by contradicting his or her own testimony); Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) ("Alas, not good enough: a party cannot create a triable issue by contradicting his own sworn testimony."); Hayes v. New York City Dep't of Corrs., 84 F.3d 614 (2nd Cir. 1996) (holding that a party may not create an issue of fact precluding summary judgment by submitting affidavit that, by omission or addition, contradicts affiant's previous testimony); Buckner v. Sam's Club, Inc., 75 F.3d 290, 292 (7th Cir. 1996) (stating a party may not create an issue of fact for purposes of summary judgment by submitting an affidavit contradicting prior testimony); Rios v. Bigler, 67 F.3d 1543 (10th Cir. 1995) (stating that a party may not create a sham factual issue to survive summary judgment by presenting an affidavit contrary to the affiant's prior testimony, and the subsequent affidavit should be disregarded))

6. We disagree with Brown's contention in his petition for rehearing that this opinion overlooks the uninsured carrier's right to defend pursuant to S.C. Code Ann. 38-77-150 (2002). For this argument, Brown cites to Broome v. Watts, 319 S.C. 337, 461 S.E.2d 46 (1995). In Broome, our supreme court held that a settling defendant cannot waive the underinsured carrier's right to contest liability in a jury trial. However, in this case, Brown has not waived any substantive legal rights. Instead, his admissions have limited the facts in such a way that he cannot prevail on any assertion of comparative negligence. Therefore, Broome does not apply. If we were to accept this argument, we would in effect hold that the uninsured carrier may be entitled to a more favorable set of facts than the named defendant.