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.).