law-judicial-estoppel | estoppel | equitable estoppel | quasi-estoppel |  | estoppel | admission | deemed
admissions | res judicata| claim preclusion | collateral estoppel | collateral attack

Judicial estoppel applies only if, among other things, the sworn, prior inconsistent statement was not made
inadvertently or because of mistake, fraud, or duress. See Long v. Knox, 155 Tex. 581, 291 S.W.2d 292, 295
(1956); Galley v. Apollo Assoc. Servs., Ltd., 177 S.W.3d 523, 529 (Tex. App.-Houston [1st Dist.] 2005, no pet. ).
For judicial estoppel to apply, a party must take an affirmative position that is successfully adopted by the court
in an earlier proceeding and is contrary to the position the party now seeks to invoke. See Cleaver v. Cleaver,
140 S.W.3d 771, 775 (Tex. App.-Tyler 2004, no pet.).

Judicial estoppel applies where (1) the party against whom estoppel is sought, Long v. Knox, 155 Tex. 581,
585, 291 S.W.2d 292, 295 (1956), (2) has alleged or admitted in his pleadings, an affidavit, or testimony,
Watson v. Nortex Wholesale Nursery, Inc., 830 S.W.2d 747, 750 (Tex.App.-Tyler 1992, writ denied), (3) under
oath, id. at 750-51, (4) in a prior judicial proceeding, see id., (5) a "deliberate, clear, and unequivocal," Am.
Sav. & Loan Ass'n of Houston v. Musick, 531 S.W.2d 581, 589 (Tex. 1975), (6) assertion that is contrary to his
current assertion, see Gibson v. Johnson,  414 S.W.2d 235, 239 (Tex.Civ.App.-Tyler 1967, writ ref'd n.r.e.), (7)
not "made inadvertently or by mistake," Calhoun v. Killian, 888 S.W.2d 51, 55 (Tex.App.-Tyler 1994, writ
denied), or by "fraud or duress," Long,  155 Tex. at 585, 291 S.W.2d at 295, (8) and that was either
"successfully interposed in defense to [the prior] action or proceeding," Permian Oil Co. v. Smith, 129 Tex. 413,
440, 73 S.W.2d 490, 502 (1934), or was made in relation to a "question necessary for the determination of
[the] prior adjudication," Bocanegra v. Aetna Life Ins. Co., 605 S.W.2d 848, 850 (Tex.1980), and (9) is so
inconsistent that its truth is disproved by the current assertion, Permian Oil, 129 Tex. at 440, 73 S.W.2d at 502.

JUDICIAL ESTOPPEL CASE LAW FROM HOUSTON

Judicial estoppel generally prevents a party who has succeeded in maintaining a certain position in a
proceeding from assuming a contrary position "simply because his interests have changed." New Hampshire v.
Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 1814 (2001) (quoting Davis v. Wakelee, 156 U.S. 680, 689, 15 S.
Ct. 555 (1895)). The purpose of judicial estoppel is "to protect the integrity of the judicial process." Id., 121 S.
Ct. at 1814. Judicial estoppel is an equitable doctrine, and as such, all the circumstances of the case may be
relevant. See id. at 750, 121 S. Ct. at 1815. The factors that "typically inform the decision whether to apply the
doctrine" are: (1) a party's position must be "clearly inconsistent" with its earlier positions, (2) whether the
parties urging of inconsistent positions threatens judicial integrity by creating a "risk of inconsistent court
determinations," and (3) whether the party seeking to assert an inconsistent position would gain an unfair
advantage or impose an unfair detriment on the opposing party. Id. at 750-51, 121 S. Ct. at 1815.

Judicial estoppel does not apply to the Pedens in this case. First, the Pedens' position in this lawsuit is not
"clearly inconsistent" with their earlier position. In the earlier suit against the City, the Pedens contended that
the right-of-way easement, granted in a 1948 deed, had reverted in 1949 under the terms of the deed.
Essentially, South Texas and Lawton contend that because the Pedens successfully maintained that the
easement did not exist, it is not equitable to allow the Pedens to seek damages for "failing to disclose an
existing right of way easement." However, the Pedens' live petition in this case demonstrates that their position
is not that South Texas and Lawton failed to disclose an existing right-of-way easement, but that South Texas
and Lawton negligently identified the easement as a utility easement, which would affect whether the plans
complied with City ordinances. The Pedens assert that if the easement had been properly identified, they could
have avoided the suspension of their building permits and the ensuing litigation and avoided incurring
hundreds of thousands of dollars in legal fees. Because the Pedens' positions in the two proceedings are not
"clearly inconsistent," this factor weighs against applying judicial estoppel. See New Hampshire, 532 U.S. at
750-51, 121 S. Ct. at 1815.

Peden v. South Texas Surveying Assoc., Inc. (Tex.App.- Houston [1st  Dist] Sep. 10, 2009)(Alcala)
(defamation, substantial truth defense, estoppel, judicial estoppel, quasi-estoppel)  
AFFIRM TC JUDGMENT IN PART, REVERSE TC JUDGMENT IN PART, AND REMAND CASE TO TC FOR
FURTHER PROCEEDINGS: Opinion by Justice Alcala   
Before Justices Jennings, Alcala and Higley  
01-08-00373-CV Tom and Paula Peden v. South Texas Surveying Associates, Inc., and Fred W. Lawton,
Stephen Pohl   Appeal from 80th District Court of Harris County
Trial Court Judge: Hon. Lynn Bradshaw-Hull

The second factor also weighs against applying judicial estoppel. In the suit against the City, the trial court
declared that the easement did not encumber the Pedens' property. In the instant action, if the Pedens prevail,
the trial court will find that South Texas and Lawton were negligent in preparing a survey. The two judgments
are not inconsistent. See id. The final factor also weighs against applying the doctrine of judicial estoppel,
because the Pedens are not gaining an unfair advantage over or imposing an unfair detriment on South Texas
or Lawton. See id. In considering the three factors, the reasons for applying the doctrine are not present in this
case. We therefore hold the Pedens are not judicially estopped from bringing their claims against South Texas
and Lawton.  


Tow v. Pagano (Tex.App. - Houston [1st Dist.] Nov. 5, 2009)(Higley)
(no judicial estoppel based on nondisclosure of med-mal cause of action as asset in bankruptcy suit,
suit by trustee no time-barred, relationship between federal bankruptcy and state court proceedings)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Higley      
Before Justices Higley, Sharp and Mirabal    
01-07-00464-CV  Rodney Tow, Trustee for the Bankruptcy Estate of Erwina v. Scott K. Pagano, D.C. and
Campbell Chiropractic Wellness Center    
Appeal from 333rd District Court of Harris County
Trial Court Judge: Hon. Joseph Halbach


Bailey v. Barnhart Interest, Inc. (Tex.App. - Houston [14th Dist.] Jun. 16, 2009)(Boyce)
(judicial estoppel under federal law)
REVERSED AND RENDERED IN PART AND REMANDED IN PART: Opinion by Justice Boyce  
Before Justices Anderson, Guzman and Boyce
14-08-00160-CV Reginald Bailey, as Administrator of the Estate of Sheryl English, and Joseph M. Hill, as the
Trustee of the Bankruptcy estate of Sheryl English v. Barnhart Interest, Inc., L. Irvin Barnhart and Paul F.
Barnhart, Jr.--Appeal from 295th District Court of Harris County
Trial Court Judge: Tracy Kee Christopher  

Horizon Offshore Contractors, Inc. v. Aon Risk Services of Texas, Inc.
(Tex. App. – Houston [14th Dist.] Mar. 12, 2009)(Frost) (breach of fiduciary duty,
election of remedies, judicial estoppel)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Frost  
Before Justices Frost, Seymore and Guzman
14-07-00549-CV Horizon Offshore Contractors, Inc. and Horizon Vessels, Inc. v. Aon Risk Services of Texas,
Inc.,
Appeal from 55th District Court of Harris County
Trial Court Judge: Justice Jeffrey V. Brown  




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