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NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well as formal revision before publication in the New Hampshire Reports. Readers are requested to notify the Reporter, Supreme Court of New Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in order that corrections may be made before the opinion goes to press. Errors may be reported by E-mail at the following address: reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 a.m. on the morning of their release. The direct address of the court's home page is: http://www.courts.state.nh.us/supreme. THE SUPREME COURT OF NEW HAMPSHIRE ___________________________ Rockingham No. 2008-268 WESLEY C. PIKE, JR. v. ANU R. MULLIKIN & a. Argued: October 8, 2008 Opinion Issued: January 14, 2009 Francis G. Holland, of Nashua, by brief and orally, for the plaintiff. Nelson, Kinder, Mosseau & Saturley, P.C., of Manchester (William C. Saturley on the brief and orally), for the defendants. BRODERICK, C.J. The plaintiff, Wesley C. Pike, Jr., appeals two orders of the Superior Court (McHugh, J.). The first order denied summary judgment on the issue of whether his antenuptial agreement was enforceable. The second granted summary judgment to the defendants, Anu R. Mullikin and Devine, Millimet & Branch, P.A., and dismissed the plaintiff's claim for legal malpractice. We affirm in part, reverse in part and remand. The record supports the following facts. In November 1998, Pike married Mary Casey Bekaert. Eleven days prior to their wedding, Pike and Bekaert executed an antenuptial agreement prepared by Mullikin, an attorney at the law firm of Devine, Millimet & Branch, P.A. (Devine Millimet). The agreement was signed at Pike's office, with Mullikin present as Pike's counsel. Bekaert had no counsel present, but had retained a Massachusetts attorney, Richard

Glidden, to advise her with regard to the agreement. Glidden had represented Pike in real estate transactions that occurred approximately two months earlier. Three days after the agreement was signed, Glidden signed Exhibit C of the agreement, entitled "Certification of Attorney." Exhibit C provided that Bekaert had voluntarily executed the agreement, had consulted with Glidden before signing it, and that he had advised her of her rights in connection with it. Pike had three children from an earlier marriage. His purpose in requesting the antenuptial agreement was to protect his family business, New Hampshire Northeast Credit Services, Inc., and to insure that his assets would be preserved for his children. Under the terms of the agreement, Bekaert was not entitled to any assets held in Pike's name or any alimony in the event they divorced. After six years of marriage, Bekaert filed for divorce and contested the validity of the antenuptial agreement. The Family Division at Portsmouth (Fishman, M.; DeVries, J.) awarded Bekaert $3,500 per month in alimony under a partial temporary stipulation and scheduled a hearing on the validity of the contested agreement. The division "STRONGLY advised [the parties] to attend mediation." Because the family division unequivocally encouraged mediation and his new attorney raised concerns with him about the enforceability of the agreement, Pike feared it would not be upheld, and that his assets of $4,200,000 might be divided equally with Bekaert. Pike and Bekaert decided to meet without counsel and negotiated a permanent stipulation under which she would receive approximately $718,000. In signing the permanent stipulation, both parties certified to the family division that they were "satisfied that it [was] a fair and equitable resolution of [the] divorce." The permanent stipulation was incorporated into the divorce decree. Pike then brought this malpractice action, alleging that Mullikin and her employer, Devine Millimet, were negligent in the drafting, preparation and execution of the antenuptial agreement. He moved for summary judgment, claiming that the agreement was legally unenforceable because Bekaert did not have the benefit of independent counsel to review the agreement prior to its execution. The superior court denied the motion, finding genuine issues of material fact as to whether or not Glidden was independent and whether he gave appropriate advice to Bekaert before she signed the agreement. Mullikin and Devine Millimet also moved for summary judgment, arguing that: (1) judicial estoppel barred Pike from bringing his malpractice action because it was based upon a claim that the antenuptial agreement was legally flawed, a legal position inconsistent with the permanent stipulation he agreed to in his divorce; (2) fairness and public policy favoring settlements precluded Pike from bringing a malpractice claim because he willingly and satisfactorily

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settled his divorce dispute; and (3) since Pike failed to litigate the validity of the antenuptial agreement in the family division, he cannot prove causation. The trial court granted the defendants' motion and dismissed the suit. This appeal followed. In reviewing the trial court's summary judgment ruling, we consider the affidavits and other evidence and all inferences properly drawn therefrom in the light most favorable to the non-moving party. Cohoon v. IDM Software, 153 N.H. 1, 4 (2005). If our review of the evidence fails to reveal any genuine issue of material fact, and the moving party is entitled to judgment as a matter of law, we will affirm the trial court's decision. Orr v. Goodwin, 157 N.H. 511, 514 (2008). However, we review the trial court's application of the law to the facts de novo. Id. Pike first argues that the trial court erred in holding that the doctrine of judicial estoppel barred his legal malpractice action. We agree. The doctrine of judicial estoppel generally prevents a party from prevailing in one phase of a case using one argument and then relying upon a contradictory argument to prevail in another phase. In the Matter of Carr & Edmunds, 156 N.H. 498, 502 (2007). The general function of judicial estoppel is to prevent "abuse of the judicial process, resulting in an affront to the integrity of the courts." 31 C.J.S. Estoppel and Waiver

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