Judicial Estoppel or Not?

February 25, 2019 § Leave a comment

Judicial estoppel is the principal that prevents you from taking inconsistent positions in the course of litigation. An example might be where one admits adultery in a pleading, but then tries to deny it at trial.

A question of judicial estoppel arose in the adverse possession trial between the Winters and the Billings. The Winters claimed ownership of some land by adverse possession. In answering interrogatories, Mr. Billings stated seven times that he had not spoken with Mr. Winters about the land, but at trial he tried to testify that he had given Mr. Winters permission to use the land. Winters objected on the ground of judicial estoppel, and the chancellor overruled the objection. After the chancellor entered judgment in favor of the Billings, the Winters appealed on several grounds, one of which was that the judge erred in not ruling that the inconsistent statements were barred by judicial estoppel.

In Winters v. Billings, a COA decided January 15, 2019, the court affirmed the judge’s ruling on judicial estoppel. Judge Greenlee wrote for the court:

¶24. The Winterses assert that because Mr. Billings made seven statements in sworn interrogatories that he never spoke with Mr. Winters about the land, the chancellor should have judicially estopped Mr. Billings from asserting that he gave Mr. Winters permission to use the land.

¶25. “Judicial estoppel is designed to protect the judicial system and applies where intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Kirk v. Pope, 973 So. 2d 981, 991 (¶31) (Miss. 2007) (internal quotation mark omitted). Our supreme court has held that there are three elements of judicial estoppel: “A party will be judicially estopped from taking a subsequent position if (1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently take the inconsistent positions.” Clark v. Neese, 131 So. 3d 556, 560 (¶16) (Miss. 2013).

¶26. The chancellor found that the jointly-submitted pretrial order indicated that “Mr. Billings gave Mr. Winters and his family ‘permission’ to use the disputed strip of property” and that the pleadings were amended to conform to that pretrial order. Furthermore, the chancellor noted that Mr. Winters indicated in his own testimony that he spoke with Mr. Billings about the land, and only the contents of that conversation were disputed. We also note that the interrogatories were vague as to their actual subject, but they meant to elicit general responses and do not focus on permission or lack thereof. “A chancellor sits as a fact-finder and in resolving factual disputes, is the sole judge of the credibility of witnesses.” Tice v. Shamrock GMS Corp., 735 So. 2d 443, 444 (¶3) (Miss. 1999). In this position, the chancellor may assess the materiality and relevance of answers to interrogatories, along with any inconsistent testimony thereto at trial and decide on its credibility. Mr. Billings’s assertion was not inconsistent with a prior position taken during litigation, the chancellor had not accepted the previous position, and the chancellor’s holdings indicated that at most Mr. Billings inadvertently may have taken the inconsistent positions.

¶27. Under our limited standard of review, we hold that the chancellor’s holding was not manifestly wrong or clearly erroneous, nor did the chancellor apply an incorrect legal standard. Thus, we affirm.

Two observations:

  • It’s not too far a stretch for the chancellor to suppose that Mr. Billings’s inconsistencies might have been inadvertent. The case took around 3 years to make it to trial, and lots of words get thrown around in a three-year span, some of which may be spoken or written based on misunderstanding. That pre-trial order was likely the nail in the coffin, so to speak, for the judicial estoppel argument.
  • Just because your claim of judicial estoppel is shot down by the trial judge, it does not mean that you can’t cash in on the inconsistencies. As the COA said, ” … the chancellor may assess the materiality and relevance of answers to interrogatories, along with any inconsistent testimony thereto at trial and decide on its credibility.” In other words, you can hammer away at the witness about his credibility and apparent inability to get his story straight. That sort of thing can be loads of fun, particularly on cross-examination.


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