law-judicial-estoppel | estoppel | equitable estoppel | quasi-estoppel | | estoppel | admission | deemed
admissions | res judicata| claim preclusion | collateral estoppel | collateral attack
JUDICIAL ESTOPPEL
The doctrine of judicial estoppel bars a party who has successfully maintained a position in a prior
judicial proceeding from later adopting an inconsistent position unless the party can show that the
prior statement was made inadvertently due to mistake, fraud, or duress. Vinson & Elkins v. Moran,
946 S.W.2d 381, 396 (Tex. App.—Houston [14th Dist.] 1997, writ dism’d). Judicial estoppel
upholds the sanctity of the oath and targets the prejudice that would result to the administration of
justice if a litigant were allowed to swear one way one time and a different way another time. Id.
Judicial estoppel applies when (1) a sworn, prior inconsistent statement was made in a judicial proceeding;
(2) the party now sought to be estopped successfully maintained the prior position; (3) the prior inconsistent
statement was not made inadvertently or because of mistake, fraud, or duress; and (4) the statement was
deliberate, clear, and unequivocal. Id.
Judicial estoppel does not apply to a contradictory position taken in the same proceeding; it comes into play
only in a subsequent action. Id. at 397 (citing Wells v. Kansas Univ. Endowment Ass’n, 825 S.W.2d 483, 488
(Tex. App.—Houston [1st Dist.] 1992, writ denied)). An appeal in the same case is not a “subsequent action”
to which judicial estoppel applies.
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 does not apply to a purportedly contradictory position taken in the same proceeding; it
comes into play only in a subsequent lawsuit. Wells v. Kansas Univ. Endowment Ass’n, 825 S.W.2d 483, 488
(Tex. App.—Houston [1st Dist.] 1992, writ denied); Vinson & Elkins v. Moran, 946 S.W.2d 381, 397 (Tex. App.
—Houston [14th Dist.] 1997, writ dism’d by agr.).
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.
JUDICIAL ESTOPPEL CASES FROM HOUSTON
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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