Estate of Mary D. Maggos - Page 15

                                       - 15 -                                         
               Trust owned the 567 PCAB shares, and Mary Maggos merely                
               had a life estate interest in the income of the Trust                  
               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               
               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.                                                            

Page:  Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  20  21  22  23  24  Next

Last modified: May 25, 2011