¶26 “‘Judicial estoppel is a doctrine that is aimed at preventing a party from manipulating the judiciary as an institution by asserting a position in a legal proceeding and then [later] taking an inconsistent position.’” State v. White, 2008 WI App 96, ¶15, 312 Wis. 2d 799, 754 N.W.2d 214 (citation omitted). “The focus of judicial estoppel is to [e]nsure the integrity of the courts.” Harrison v. LIRC, 187 Wis. 2d 491, 497, 523 N.W.2d 138 (Ct. App. 1994). It is intended to protect against a litigant playing “fast and loose” with the courts by asserting inconsistent positions. Id. (quotation marks and citation omitted); see also Salveson v. Douglas Cnty., 2001 WI 100, ¶37, 245 Wis. 2d 497, 630 N.W.2d 182. “The rule looks toward cold manipulation and not [an] unthinking or confused blunder.” Harrison, 187 Wis. 2d at 497. The doctrine requires a showing that: “(1) a party against whom estoppel is sought presents a later position that is clearly inconsistent with the earlier position; (2) the facts at issue are the same in both cases; and (3) the party to be estopped convinced the first court to adopt its position.” White, 312 Wis. 2d 799, ¶15 (citation omitted). “Because judicial estoppel is not directed to the relationship between the parties, but is intended to protect the judiciary as an institution from the perversion of judicial machinery, it is the prerogative of the trial court to invoke judicial estoppel at its discretion.” State v. Fleming, 181 Wis. 2d 546, 558, 510 N.W.2d 837 (Ct. App. 1993) (internal citation omitted). Whether these elements are met is a question of law that we review de novo. White, 312 Wis. 2d 799, ¶15.
The court finds the case to present “a textbook example” of judicial estoppel: in a related eminent domain action, Ryan claimed that someone else held equitable ownership of a barge, but in this action asserted that someone else owned the barge. Nor has he shown that the inconsistent positions are due to inadvertence or mistake; besides which, his documentation is “highly suspect,” ¶27. Moreover, differential burdens of proof are irrelevant to judicial estoppel analysis (in contradisdinction to issue and claim preclusion, ¶28).
Puzzling: the court has recently shown a certain alacrity about imposing sua sponte fines for assumed violations of briefing protocol. Whether that practice is justified or not, it is curious that a litigant’s perceived manipulation of the system doesn’t lead to a monetary sanction. Granted, a penalty is exacted in the form of barring the litigation, but that operates as a penalty against the party, not conniving counsel. What’s worse? Leaving something out of the Appendix, or trying to put something over on the court?