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Judicial Estoppel In New Hampshire Law

On Behalf of | Feb 19, 2009 | Litigation

The doctrine of judicial estoppel is intended to protect the integrity of the judicial process. It prevents a party from taking inconsistent positions in two separate law suits. For example, if a party successfully brings a claim asserting that a contract is enforceable, he or she will be barred in a subsequent law suit from taking the position that the same contract is not enforceable.

The recent N.H. Supreme Court case of Pike v. Mullikin not only discussed this doctrine but held that it did not apply when a client sued his former attorney for malpractice in the creation of a prenuptial agreement.

In Pike, Mr. Pike retained Attorney Mullikin to draft a prenuptial agreement. As part of the prenuptial agreement, the wife agreed not to seek alimony or make a claim against certain assets in the event of a divorce. Six years later, Mr. Pike and his wife began divorce proceedings. The trial court, contrary to the terms of the prenuptial agreement, awarded the wife temporary alimony. The trial court expressed concerns that the prenuptial agreement might not be enforceable because the wife did not have the benefit of independent counsel prior to executing the agreement.

Fearing that the prenuptial agreement would be declared unenforceable, Mr. Pike settled the divorce action. As part of the settlement documents, Mr. Pike agreed that the settlement was fair and equitable. Subsequently Mr. Pike filed suit against his lawyer claiming legal malpractice. Attorney Mullikin argued that Mr. Pike should be judicially estopped from bringing the malpractice claim because he agreed in the divorce action that the settlement was fair and equitable.

The Supreme Court disagreed and held that Mr. Pike was not judicially estopped from bringing his malpractice action. The Supreme Court held that Mr. Pike, in his divorce case, never made any claims or took any position with respect to the validity of the prenuptial agreement or the adequacy of the legal services he received in connection with this drafting. Mr. Pike claims that he settled with his wife to mitigate his potential losses had the prenuptial agreement been struck down. Therefore, while the settlement with his wife may have been fair and equitable under the circumstances, that phrase did not mean that Mr. Pike waived his subsequent malpractice action against Attorney Mullikin.

Andrew J. Piela is a Director at Hamblett & Kerrigan, P.A. Mr. Piela concentrates his practice in civil litigation, family law, probate and land use litigation. You can reach Attorney Piela by e-mail at [email protected].