TEX. LAW ---> judicial estoppel

law-judicial-estoppel | estoppel generally | equitable estoppel | promissory estoppel | collateral estoppel |
estoppel as affirmative defense | inadvertent omission, error, or mistake | prejudice to opposing party |

JUDICIAL ESTOPPEL

Judicial estoppel precludes a party who successfully maintains a position in one proceeding from later
adopting a clearly inconsistent position in another proceeding to obtain an unfair advantage. Ferguson v.
Bldg. Materials Corp. of Am., 295 S.W.3d 642, 643 (Tex. 2009) (citing Pleasant Glade Assembly of God v.
Schubert, 264 S.W.3d 1, 6 (Tex. 2008)). The doctrine is not intended to punish inadvertent omissions or
inconsistencies but rather to prevent parties from playing fast and loose with the judicial system for their
own benefit. Id. (citing Schubert, 264 S.W.3d at 7). The elements of judicial estoppel are (1) a sworn, prior
inconsistent statement made in a prior judicial proceeding; (2) the successful maintenance of the contrary
position in the prior action; (3) the absence of inadvertence, mistake, fraud, or duress in the making of the
prior statement; and (4) the statement was deliberate, clear, and unequivocal. DeWoody v. Rippley, 951 S.
W.2d 935, 944 (Tex. App.-Fort Worth 1997, writ dism'd by agr.).

JUDICIAL ESTOPPEL CASES FROM THE TEXAS SUPREME COURT

Judicial estoppel precludes a party who successfully maintains a position in one
proceeding from afterwards adopting a clearly inconsistent position in another
proceeding to obtain an unfair advantage. Pleasant Glade Assembly of God v.
Schubert, 264 S.W.3d 1, 6 (Tex. 2008). Accordingly, a party cannot be judicially
estopped if it did not prevail in the prior action. See Long v. Knox, 291 S.W.2d 292,
295 (Tex. 1956). The doctrine is not intended to punish inadvertent omissions or
inconsistencies but rather to prevent parties from playing fast and loose with the
judicial system for their own benefit. Pleasant Glade Assembly of God, 264 S.W.3d
at 7.
Ferguson v. Building Materials Corp. of America, No. 08-0589 (Tex. Jul. 3, 2009)(per curiam)
(judicial estoppel based on bankruptcy proceeding does not apply here were failure to list PI suit as an
asset did not amount to deliberate concealment and did not cause prejudice to the opposing party)
JASON FERGUSON AND BOBBIE FERGUSON v. BUILDING MATERIALS CORPORATION OF AMERICA,
CPC LOGISTICS, INC., AND ROBERT JAMES MADDOX; from Dallas County;
8th district (08-07-00051-CV, 276 SW3d 45, 06-12-08 Opinion of the Eight Court of Appeals below)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the
trial court. Per Curiam Opinion [pdf]
Because the Fergusons have taken neither a clearly inconsistent position nor
obtained an unfair advantage, the court of appeals erred in affirming the dismissal of
their personal injury claim under the doctrine of judicial estoppel.
Electronic Briefs in Tex. 2009 No. 08-0589 FERGUSON v. BUILDING MATERIALS CORP. OF AM.
At issue in this appeal is whether the plaintiffs in a personal injury suit should be estopped from pursuing
their claim because they initially omitted it as a listed asset in a pending bankruptcy. The court of appeals,
in a divided opinion, concluded that the doctrine of judicial estoppel should apply and affirmed the trial
court’s dismissal of the plaintiffs’ personal injury claim. 276 S.W.3d 45. The court of appeals reasoned that
the doctrine applied because of the plaintiffs failure to add the personal injury claim as an asset in their
bankruptcy proceeding before the personal-injury defendant pointed out the omission and moved for
dismissal. Because we disagree that the doctrine is invoked under the circumstances of this case, we
reverse and remand the personal injury claim to the trial court.      We review a grant of summary judgment
de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007).
Because the Fergusons have taken neither a clearly inconsistent position nor obtained an unfair
advantage, the court of appeals erred in affirming the dismissal of their personal injury claim under the
doctrine of judicial estoppel. We accordingly grant the petition for review and, without hearing oral
argument, reverse the court of appeals’ judgment and remand the case to the trial court for further
proceedings. See Tex. R. App. P. 59.1.

Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (Tex. June 27, 2008) (Majority Opinion by
Justice Medina) (religion-based immunity to tort claim, estoppel claim rejected, defendants not
estopped from invoking first amendment protection based on prior litigation conduct
incl. mandamus proceeding, religion church and state case)
PLEASANT GLADE ASSEMBLY OF GOD, REVEREND LLOYD A. MCCUTCHEN, ROD LINZAY, HOLLY
LINZAY, SANDRA SMITH, BECKY BICKEL, AND PAUL PATTERSON v. LAURA SCHUBERT; from Tarrant
County; 2nd district (02-02-00264-CV, 174 SW3d 388, 09-15-05)
3 petitions | motion to strike denied
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Medina delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice
Wainwright, Justice Brister, and Justice Willett joined.
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green joined, and in Parts II-A, III,
and IV of which Justice Johnson joined.
Justice Green delivered a dissenting opinion.
Justice Johnson delivered a dissenting opinion

APPEALS COURT CASES IN WHICH THE SUPREME COURT DENIED REVIEW

09-0325
AON RISK SERVICES OF TEXAS, INC. v. HORIZON OFFSHORE CONTRACTORS, INC. AND HORIZON
VESSELS, INC.; from Harris County; 14th district (14-07-00549-CV, 283 SW3d 53, 03-12-09, pet. denied
Sep. 2009)(breach of fiduciary duty, election of remedies, judicial estoppel)

09-0060
STATE OF BRANCH ARCHER, BY RICHARD K. ARCHER AS PERSONAL REPRESENTATIVE AND
RICHARD K. ARCHER, INDIVIDUALLY AND AS TRUSTEE OF THE RICHARD K. ARCHER, M.D., P.A.
PROFIT SHARING PLAN & TRUST v. RICHARD O. HARRIS, INDIVIDUALLY AND AS TRUSTEE OF THE
RICHARD O. HARRIS PROFIT SHARING TRUST; from Wichita County; 2nd district (02-07-00243-CV, ___
SW3d ___, 12-04-08)(Justice Johnson not sitting)(pa r tnership dispute, collateral estoppel, judicial
estoppel)
Judicial estoppel bars a party who has made a sworn statement in a pleading, a deposition, oral
testimony, or affidavit in a judicial proceeding from maintaining a contrary position in a subsequent
proceeding.[18] The elements of judicial estoppel are (1) a sworn, inconsistent statement made in a
previous judicial proceeding; (2) the party who made the statement successfully maintained the
previous position; (3) the previous statement was not made inadvertently or by mistake, fraud, or
duress; and (4) the statement was deliberate, clear, and unequivocal.