EQUITABLE ESTOPPEL BASED ON INCONSISTENT
POSITIONS IN LITIGATION
The elements of equitable estoppel
arising from inconsistent positions taken in judicial proceedings are (1) a
party takes a clearly inconsistent positions in the same or separate
proceedings; (2) the position first asserted was successfully maintained or
upheld; (3) the other party relied on the position first asserted; (4) adoption
of the later position would result in injury or prejudice to the adverse party;
and (5) where more than one action is involved, there is an identity of
parties. Glattly v. Air Starter
Components, Inc., 332 S.W.3d 620, 639 (Tex. App.-Houston [1st Dist.] 2010,
pet. denied); In re Estate of Loveless,
64 S.W.3d 564, 578 (Tex. App.-Texarkana 2001, no pet.).
[Defendant asserting the defense] bears
the burden of proving estoppel, and the failure to prove any one or more of the
elements is fatal. See Santa Fe
Petroleum, L.L.C. v. Star Canyon Corp., 156 S.W.3d 630, 640 (Tex.
App.-Tyler 2004, no pet.).
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