Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Tuesday, May 17, 2011

Elements of Judicial Estoppel Defense


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.).

SOURCE: Fort Worth Court of Appeals Nos. 02-09-00446-CV, 02-09-00320-CV 3/24/11


Dickson v. Stockman, 411 S.W.2d 610, 614 (Tex. App.-Fort Worth 1966, writ ref'd n.r.e.) (affirming judicial estoppel against appellant pleading claims contradicting those made in prior successful summary judgment action); Wall v. Young Cnty. Lumber Co., 368 S.W.2d 789, 792 (Tex. App.-Fort Worth 1963, no writ.) (concluding that appellant "necessarily" taking a positive position of creditor in prior sworn account action seeking repayment of advanced funds was "judicially estopped" in later action from asserting title to the advanced funds or title to the land purchased with the funds); see also Comerica Acceptance Corp. v. Dallas Cent. Appraisal Dist., 52 S.W.3d 495, 497 (Tex. App.-Dallas 2001, pet. denied) (indicating that common definition of term "owner" does not include person in possession of personal property collateral for purpose of selling it pursuant to a security agreement); Borg-Warner Acceptance Corp. v. Massey-Ferguson, Inc., 713 S.W.2d 351, 354 (Tex. App.-Dallas 1985, writ ref'd n.r.e.) (op. on reh'g) (noting that it is well settled in Texas law that an owner cannot have a lien on his own property because they are inconsistent interests); cf. Williams v. Unifund CCR Partners Assignee of Citibank, 264 S.W.3d 231, 234 (Tex. App.-Houston [1st Dist.] 2008, no pet.) (noting that passage of title is required to invoke procedural rule on sworn account).