2009AP3075 State v. Ryan

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Civil Procedure
Judicial estoppel

Where a party maintained it was the owner of property in an eminent domain proceeding, it is estopped from arguing it is not in a later forfeiture action.

“We think that Ryan presents a textbook example of a litigant playing ‘fast and loose’ with the judicial system. See Harrison, 187 Wis. 2d at 497; Salveson, 245 Wis. 2d 497, ¶37. First, in the eminent domain action that resulted in the writ of assistance, Ryan held himself out as the equitable owner of the barge. The ‘Relocation Business Questionnaire’ that Ryan submitted to the DOT in March 2005 as part of the eminent domain relocation process expressly stated that Ryan owned the barge. We note that this form states: ‘barge is stored by owner (Ryan).’ It lists no other owner. This position, that Ryan (or one of his corporate concerns) owned the barge, is clearly inconsistent with his present, unsubstantiated contention that at all pertinent times someone else owned the barge. We do not find persuasive Ryan’s unsubstantiated contention that because Ryan’s assertions of ownership did not take place within a motion or brief or other filing directly related to the civil litigation process that they do not amount to ‘positions.’ See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App. 1992) (court of appeals may decline to review inadequately developed arguments). Second, the facts at issue in the instant case, whether Ryan and/or one of his corporate concerns is responsible for relocating the barge as part of the Marquette Interchange project, are the same. Third, we conclude that the trial court was convinced that Ryan was the owner of the barge in the former case. The trial court expressly found that the parties in the first litigation agreed to ‘an entry of an order which specifically determined that the barge was the “personal property” of Ryan or a Ryan concern.’ Indeed, the trial court in the instant case was in a very good position to evaluate whether the court in the first case had relied on the fact that Ryan was the equitable owner of the barge in issuing the writ because that same judge presided over both cases. For his part, Ryan does not show that he took any affirmative steps whatsoever to present any facts to the contrary until November 2008, three years after the court issued the writ ordering him to relocate the barge. Moreover, Ryan has not shown that the inconsistent positions he took in the former case were due to any inadvertence or mistake. See Harrison, 187 Wis. 2d at 497. We will not consider the documents Ryan submits to prove that someone else owned the barge because they are highly suspect and because Ryan does not explain how they establish Schumacher’s ownership. See footnote 8, infra; see also Pettit, 171 Wis. 2d at 646. We therefore conclude that the elements of judicial estoppel have been satisfied and that the trial court’s decision to apply the doctrine to preclude Ryan from arguing that the barge was not under his control was not in error.”

Affirmed.

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2009AP3075 State v. Ryan

Dist. I, Milwaukee County, Cooper, J., Curley, J.
Attorneys: For Appellant: Biersdorf, Dan, Minneapolis, MN; Keady, E. Kelly, Minneapolis, MN; For Respondent: Kloppenburg, Joanne F., Madison

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