Otis v. Arbella Mutual Insurance Co.3/14/2005
uestion, making summary judgment appropriate. See Alternative Sys. Concepts, Inc. v. Synopsys, Inc., supra at 31-32, and cases cited; Whitacre Partnership v. Biosignia, Inc., supra at 38-39.
Because of its equitable nature, the "circumstances under which judicial estoppel may appropriately be invoked are probably not reducible to any general formulation of principle." New Hampshire v. Maine, supra at 750, quoting Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir. 1982). However, two fundamental elements are widely recognized as comprising the core of a claim of judicial estoppel. First, the position being asserted in the litigation must be "directly inconsistent," meaning "mutually exclusive" of, the position asserted in a prior proceeding. Alternative Sys. Concepts, Inc. v. Synopsys, Inc., supra at 33, and cases cited. See New Hampshire v. Maine, supra at 750 (current position must be "clearly inconsistent" with prior position). We have rejected claims of judicial estoppel where the position being asserted is not directly contrary to the position previously asserted. See Canavan's Case, supra at 308-309; Paixao v. Paixao, 429 Mass. 307, 311 (1999); Blanchette v. School Comm. of Westwood, supra at 184-185. Second, the party must have succeeded in convincing the court to accept its prior position. Alternative Sys. Concepts, Inc. v. Synopsys, Inc., supra, and cases cited. Where the court has found in favor of that party's position in the prior proceeding, "judicial acceptance of an inconsistent position in a later proceeding would create 'the perception that either the first or the second court was misled.'" New Hampshire v. Maine, supra at 750, quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982). See East Cambridge Sav. Bank v. Wheeler, supra at 623 (judicial estoppel not applicable where party did not achieve success in prior proceeding). See also Fay v. Federal Nat'l Mtge. Ass'n, supra at 788.
Some courts have also recognized a third factor, namely, "whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped." New Hampshire v. Maine, supra at 751, and cases cited. However, as a practical matter, where the first two components have been satisfied, this third factor is virtually certain to be present, as judicial acceptance of a party's position will ordinarily redound to the benefit of that party. " fter all, it is unlikely that a party will advance a particular position unless that position benefits its cause." Alternative Sys. Concepts, Inc. v. Synopsys, Inc., supra at 33. Without the need to give separate consideration to whether a party has obtained some unfair benefit or imposed an unfair detriment on another party, judicial estoppel will normally be appropriate whenever "a party has adopted one position, secured a favorable decision, and then taken a contradictory position in search of legal advantage." InterGen N.V. v. Grina, 344 F.3d 134, 144 (1st Cir. 2003).
Notwithstanding that general articulation of the doctrine, there may arise certain instances where the party's prior position was asserted in good faith, and where the circumstances provide a legitimate reason -- other than sheer tactical gain -- for the subsequent change in that party's position. For example, "it may be appropriate to resist application of judicial estoppel 'when a party's prior position was based on inadvertence or mistake,'" New Hampshire v. Maine, supra at 753, quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir. 1995), or where "the position adopted in the first suit was clearly wrong yet had been advanced in good faith by the party now sought t
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