State v. Donald W. Thexton, 2007 WI App 11, PFR filed 1/02/07 For Thexton: Kirk B. Obear Issue/Holding: ¶6 Thexton next claims that the circuit court erred in considering the PSI from his prior conviction. On realizing that the PSI in this case had been prepared with extensive reference to the PSI from Thexton’s prior conviction… Read more
5. Judicial estoppel
Olson v. Darlington Mutual Ins., 2006 WI App 204 Issue/Holding: ¶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… Read more
State v. Edward W. Johnson, Jr., 2002 WI App 166 For Johnson: Robert T. Ruth Issue/Holding: Judicial estoppel requires that the party’s position be completely adopted. (Johnson therefore not estopped from challenging restitution amount he agreed to below because he also asked for probation but was given some jail time.) ¶24… Read more
State v. Jonathan J. English-Lancaster, 2002 WI App 74, PFR filed 3/22/02 For English-Lancaster: Steven D. Phillips, SPD, Madison Appellate Issue: Whether defendant is judicially estopped from appellate challenge to the efficacy of a curative instruction, where he: requested such an instruction, expressed approval of it when it was given, and failed to move for… Read more
State v. Michael Johnson, 2001 WI App 105 For Johnson: David R. Karpe Issue: Whether defendant’s partially successful trial strategy of defending against two counts of possession of intent to deliver of claiming personal use on one count and denial of any knowledge of the substance in the second count judicially estopped him from arguing on… Read more
State Richard J. Kenyon, 225 Wis.2d 657, 593 N.W.2d 491 (Ct. App. 1999) For Kenyon: Rex Anderegg Holding: Kenyon’s change in position from trial to appeal doesn’t fall within estoppel doctrine, because neither prosecution nor trial court relied on the changed position… Read more
State v. Darcy N.K., 218 Wis. 2d 640, 581 N.W.2d 567 (Ct. App. 1998) For Darcy K.: Kenneth L. Lund, SPD, Madison Appellate Issue/Holding: A party who prevailed at the trial level is judicially estopped, on appeal, from challenging the trial court’s favorable action taken at his or her own request… Read more
Scott A. Magnuson, 220 Wis. 2d 468, 583 N.W.2d 843 (Ct. App. 1998) For Magnuson: T. Gregory Amann Issue/Holding: We conclude that Magnuson is judicially estopped from asserting that the two twelve-year concurrent sentences are excessive. Although Magnuson contends he did not agree to the recommended sentence, the record belies his claim. Magnuson’s probation officer… Read more
