An estoppel is thought of as an act or statement by one party which causes another to change position to their loss. Not all of those elements must be present for every type of estoppel.
If you have ever been a tenant in a commercial building you may have been asked to sign an estoppel certificate. By signing you are agreeing that the landlord is not in breach of the lease. As a result of signing you are estopped from claiming a breach. The landlord needs such before selling the building.
There are several types of estoppel. There is what is called “equitable estoppel” which is also called “estoppel in pais”. Also there is judicial estoppel. There is what is called estoppel by inconsistent positions. Finally there is collateral estoppel.
Types of Estoppel-Equitable Estoppel
The basic elements of equitable estoppel, which must be proven by clear and convincing evidence, are:
- False representation or concealment of material facts.
- This is done with knowledge.
- Other party is ignorant of the truth.
- The representation is made with the intent that the other party act on it.
- The other party in fact does act on it to his loss. Boykins Corp. v. Welden, Inc., 221 Va. 81, 266 S.E.2d 887 (1980)
Types of Estoppel-Judicial Estoppel
In Virginia the concept of judicial estoppel is not favored and is seldom applied. The purpose of judicial estoppel is to protect the integrity of the judicial process by barring parties from taking inconsistent factual positions. The elements are not written in stone but the factors that are looked at are:- The party estopped must be seeking to adopt a position that is inconsistent with the stance taken previously.
- The position sought to be estopped must be one of fact rather than law or legal theory.
- If the matter involves different suits then the parties must be the same. Bentley Funding Group, LLC v. SK&R Group, LLC, 269 Va. 315, 609 S.E.2d 49 (2005)
- The party must have persuaded a court to accept the party’s earlier position which is now inconsistent with their position. A judgment need not have been based on this reliance.
- There does not have to be a showing of prejudice although this may be considered. Virginia Electric & Power Co. v. Norfolk S. Ry., 278 Va. 444, 683 S.E.2d 517 (2009).
These appear to be the basic elements of judicial estoppel in Virginia. However these elements are not inflexible.
Types of Estoppel-Inconsistent Position
Estoppel by inconsistent positions is used interchangeably with judicial estoppel. Therefore presumably they are the same. The words that compose the term however suggest that this estoppel is somehow broader.
Collateral Estoppel
Collateral Estoppel is a fact issue-barring concept. The basic elements are:
- The parties to the prior and later case or their privies must be the same.
- The factual issues sought to be tried must have been tried in the prior case.
- Factual issues must have been essential to the judgment in the prior case.
- The prior action must have resulted in a judgment that is valid, final and against the party whom the doctrine is sought to be applied.
- There must also be mutuality, meaning that one party cannot invoke the concept unless he would have been bound by the result if it had gone the opposite way. Whitley v. Commonwealth, 260 Va. 482 (2000).
Call, or contact us for a free consult. Also for more info on estoppel the Wikipedia pages. Also see the post on this site dealing with injury issues.
