Swan Sales Corp. v Tillman (WI)

Summary:  Judicial estoppel prevents a party who sought a dismissal of foreclosure in order to sell the property from later claiming the sale invalid due to lack of authority.

Swan Sales Corp. v Tillman, 816 NW2d 351, 2011 AP 859 (Wis. Ct. App., 2012).

Facts: Swan Sales Corporation sought a judgment of foreclosure against Tillman.  A judgment of foreclosure was signed by the trial judge.  After several years Tillman and Swan Sales Corporation jointly requested a dismissal of the judgment based upon a stipulation that would allow the property to be sold.  The circuit court ordered the dismissal.

Tillman moved for relief claiming that the court did not have authority to dismiss the case because a judgment of foreclosure had already been entered.  The circuit court denied the motion stating that the foreclosure judgment was never entered and the judgment of foreclosure was never confirmed after expiration of the redemption period.

Holding: Affirmed.  Tillman’s claim is bared through the doctrine of judicial estoppel.  Judicial estoppel is appropriate when “(1) a litigant takes a position clearly inconsistent with an 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.”  In the present case Tillman attempted to dismiss the order despite affirmatively seeking the order.  For this reason the claim was barred by judicial estoppel.

Opinion Year: 
By: ATG Underwriting Department | Posted on: Wed, 09/12/2012 - 11:38am