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Civil Procedure — judicial estoppels — summary judgment

By: WISCONSIN LAW JOURNAL STAFF//February 28, 2012//

Civil Procedure — judicial estoppels — summary judgment

By: WISCONSIN LAW JOURNAL STAFF//February 28, 2012//

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Wisconsin Supreme Court

Civil

Civil Procedure — judicial estoppels — summary judgment

Judicial estoppel does not apply where no court adopts a party’s argument, and summary judgment is inapplicable to forfeiture actions.

“In sum, we conclude that two essential elements of the doctrine of judicial estoppel are not satisfied. The documents produced by the State do not demonstrate that Ryan took a position in the writ proceedings that is ‘clearly inconsistent’ with Ryan’s current position. Further, they do not demonstrate that Ryan ‘convinced the first court’ that he or his corporate entities owned the barge. Accordingly, we conclude that the circuit court erroneously invoked the doctrine of judicial estoppel.”

“We further conclude that summary judgment is not permitted in forfeiture actions for violations of Wis. Stat. ch. 30. The relevant procedural statutes cannot be reconciled with the summary judgment procedure. Although the parties agreed to the filing of a written answer in lieu of an appearance, such an agreement cannot provide the basis to impose upon the statutory scheme a summary judgment procedure that does not otherwise exist.”

Reversed and Remanded.

2009AP3075 State v. Ryan

Bradley, J.

Attorneys: For Appellant: Biersdorf, Dan, Minneapolis, Minn.; Keady, E. Kelly, Minneapolis, Minn; For Respondent: Kloppenburg, Joanne F., Madison

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