Olson v. Darlington Mutual Ins., 2006 WI App 204
¶4 … The required elements of judicial estoppel are:
First, the later position must be clearly inconsistent with the earlier position; second, the facts at issue should be the same in both cases; and finally, the party to be estopped must have convinced the first court to adopt its position—a litigant is not forever bound to a losing argument.
Petty, 201 Wis. 2d at 348 (citing Harrison, 187 Wis. 2d at 497).…
¶6 Because “a litigant is not forever bound to a losing argument,” there must be an action of the court adopting a party’s position to give rise to judicial estoppel. See id. Thus, in State v. Michels, 141 Wis. 2d 81, 97-98, 414 N.W.2d 311 (Ct. App. 1987), Michels was judicially estopped from arguing on appeal that the evidence was insufficient to support his conviction for manslaughter, when he had requested the trial court submit manslaughter to the jury as a lesser-included offense of second-degree murder. Similarly, in English-Lancaster, 252 Wis. 2d 388, ¶22, English-Lancaster was judicially estopped from challenging the sufficiency of a cautionary instruction he had requested. We said: “This is classic judicial estoppel. The position English-Lancaster took in the trial is clearly inconsistent with the one he assumes on appeal. At trial he urged the court to generate a cautionary instruction and now he maintains that a cautionary instruction was insufficient.” Id. (emphasis added).
See also ¶10 n. 4:
Judicial estoppel has been properly invoked “mostly in criminal appeals where the defendant asserts one position at trial and a contrary position on appeal,” because they present the clearest cases of inconsistent arguments. Harrison v. LIRC, 187 Wis. 2d 491, 496, 523 N.W.2d 138 (Ct. App. 1994) (citation omitted). The Harrison court went on to state that although there may be other types of cases in which judicial estoppel will apply, it should be invoked cautiously: “Judicial estoppel, after all, is an equitable determination and should be used only when the positions taken are clearly inconsistent.” Id. at 497-98.
Additional authority: DHHS v. Leonard M. Thorson, 2005 WI App 37, ¶5, fn. 4 (Because “the County conceded in the circuit court that Thorson had no current ability to pay [it] cannot now be heard to argue that Thorson is able to pay, based on his income and lack of inhibitors to his earning ability”); County of Milwaukee v. Edward S., 2001 WI App 169 , ¶¶10-11 (having fired his attorney and then stipulating to adjournment so that he could obtain new counsel, Edward S. is judicially estopped from arguing the adjournment led to an untimely final hearing)