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Trust owned the 567 PCAB shares, and Mary Maggos merely
had a life estate interest in the income of the Trust
corpus.
Respondent, with a great deal of justification, asks this
Court to preclude petitioner from arguing that decedent had only
a limited interest in the redeemed PCAB shares. Respondent
argues that this is a new issue that petitioner is improperly
raising for the first time on brief, and the Court should apply
the doctrine of judicial estoppel9 to prevent petitioner’s taking
a position on the “ownership” of the PCAB shares that is
inconsistent with petitioner’s position in the District Court
litigation.
Petitioner’s argument that decedent had less than a full
beneficial ownership interest in the 567 shares of PCAB common
stock is not mentioned in the petition, amended petition,
memorandum filed in response to our pretrial order of July 15,
1997, or petitioner’s pretrial memorandum that was submitted just
prior to trial. In fact, petitioner’s pleadings and the pretrial
memorandum assert that decedent was “owner and/or beneficial
owner” of the PCAB shares. Petitioner took the same position in
the District Court litigation. We have no doubt that
9The doctrine of judicial estoppel is also known as the
doctrine of preclusion of inconsistent positions. See Helfand v.
Gerson, 105 F.3d 530, 534 (9th Cir. 1997). In this opinion, for
convenience, we adopt the term “judicial estoppel” when referring
to the doctrine.
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