¶32 We begin by addressing the circuit court’s application of the equitable doctrine of judicial estoppel. Judicial estoppel is intended “to protect against a litigant playing ‘fast and loose with the courts’ by asserting inconsistent positions” in different legal proceedings. State v. Petty, 201 Wis. 2d 337, 347, 548 N.W.2d 817 (1996). “The doctrine precludes a party from asserting a position in a legal proceeding and then subsequently asserting an inconsistent position.” Id. “[J]udicial 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.” Id. at 346.
¶33 For judicial estoppel to be available, three elements must be satisfied: (1) the later position must be clearly inconsistent with the earlier position; (2) the facts at issue should be the same in both cases; and (3) the party to be estopped must have convinced the first court to adopt its position. Id. at 348.
Don’t let the “State” in the case title throw you: this isn’t a criminal case, but instead a civil forfeiture action involving the DNR and ownership of a sunken barge which obstructed navigable waters . Ryan disputed ownership of the barge, hence disputed liability for obstructing the waterway. The State argued, and the lower courts held, that Ryan’s assertions to government agencies in the run-up to the forfeiture precluded him from disputing ownership. The effect was to uphold grant of summary judgment premised on absence of disputed fact. But, the supreme court now says, the State and lower courts are all wet. The details will likely excite little interest in the SPD-type arena, beyond general principles anchored to the blockquote above, with one slight possible exception: communications between parties outside of court do not, the court reminds, trigger judicial estoppel analysis, ¶36 n. 11 and ¶41, citing Petty, 201 Wis. 2d at 346.
The court separately, it should be noted, holds that summary judgment procedure isn’t available in a ch. 30 forfeiture. The statutes don’t expressly authorize summary judgment; instead, whether the action is commenced by citation or complaint and summons, the defendant is given notice to appear in court, where a not guilty plea leads to a trial date. Thus: “The statutes contemplate that a defendant will respond to a citation or a complaint and summons by entering a plea,” ¶68. Summary judgment methodology, the court reasons, requires an answer to a complaint, to determine whether it joins a material issue of fact or law, ¶52; having to enter a plea in court is incompatible with that sort of procedure, ¶¶50-63, relying on State v. Schneck, 2002 WI App 239, 257 Wis. 2d 704, 652 N.W.2d 434. Of course, summary judgment is impermissible in criminal cases, so this discussion will be of little moment to the SPD practitioner. Consider, though, Steven V. v. Kelley H., 2004 WI 47, ¶¶28-44, 271 Wis. 2d 1, 678 N.W.2d 856, which authorizes partial summary judgment (i.e., as to grounds) in a TPR, litigation commenced by summons and petition, with a court hearing mandated within 30 days and no “answer” required.