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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. John Zwiacher v Capstone Family Medical Clinic, LLC (12/4/2020) sp-7493

John Zwiacher v Capstone Family Medical Clinic, LLC (12/4/2020) sp-7493

           Notice:   This opinion is subject to correction before publication in the PACIFIC  REPORTER.  

           Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

                                                                                                                           

           303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                                                             

           corrections@akcourts.us.  



                       THE SUPREME COURT OF THE STATE OF ALASKA                                         



JOHN  ZWIACHER,                                                    )  

                                                                   )    Supreme  Court  No.  S-17259  

                                 Petitioner,                       )  

                                                                                                                                   

                                                                   )    Superior Court No. 3PA-11-02469 CI  

           v.                                                      )  

                                                                                             

                                                                   )    O P I N I O N  

                                        

CAPSTONE FAMILY MEDICAL                                            )  

                                                                                                                  

                 

CLINIC, LLC,                                                       )    No. 7493 - December 4, 2020  

                                                                   )  

                                 Respondent.                       )  

                                                                   )  



                                                                                        

                      Petition for Hearing from the Superior Court of the State of  

                                                                                                     

                                               

                      Alaska,  Third  Judicial  District,  Palmer,  Kari  Kristiansen,  

                                                                                                                     

                      Judge,  on  appeal  from  the  District  Court  of  the  State  of  

                                                                                  

                      Alaska, Palmer, William L. Estelle, Judge.  



                                                                                                       

                      Appearances: John Zwiacher, pro se, Greenlake, Wisconsin,  

                                                                                    

                      Petitioner.  Eric Conard, Palmer, for Respondent.  



                                                                                                                  

                      Before:          Bolger,  Chief  Justice,  Winfree,  Maassen,  and  

                                                                                         

                      Carney, Justices.  [Stowers, Justice, not participating.]  



                                             

                      MAASSEN, Justice.  

                                                       

                      CARNEY, Justice, dissenting.  



I.         INTRODUCTION  



                                                                                                                                    

                      The district court entered a default judgment against a litigant in a dispute  



                                                                                                                                           

over real property improvements and rent.  Following a levy on his bank account, the  



                                                                                                                                  

litigant  moved  for  relief  from  the  default  judgment,  attesting  that  he  had  stopped  


----------------------- Page 2-----------------------

participating in the lawsuit because he believed it was about to be dismissed. The district  

                                                                                                                         



court  denied  the  motion,  but  on  appeal  the  superior  court  reversed  on  procedural  

                                                                                              



grounds.        On  remand  the litigant  amended  his answer  to assert a counterclaim for  

                                                                                                                              



conversion of personal property; the counterclaim would be time-barred unless allowed  

                                                                                                                       



to relate back to the date of the litigant's original answer. The district court held that the  

                                                                                                                              



litigant  was  judicially  estopped  from  pursuing  the  counterclaim  because  it  was  

                                                                                                                            



contradictory for him to assert it after attesting that he believed for years that the case  

                                                                                                                            



against him had been dismissed.  The superior court affirmed this decision.  

                                                                                                    



                    We granted a petition for hearing on one issue:  whether judicial estoppel  

                                                                                                                      



bars the conversion counterclaim.  We conclude that the litigant's two positions - his  

                                                                                                                              



asserted belief that the case had been dismissed and his later assertion of a counterclaim  

                                                                                                                



-  are  not  clearly  inconsistent  and  that  the  judicial  estoppel  doctrine  therefore  is  

                                                                                                                               



inapplicable.   We reverse the superior court's decision affirming the district court's  

                                                                                                                        



judgment on this issue and remand to the district court for further proceedings on the  

                                                                                                                              



counterclaim.  



II.       BACKGROUND  



                    This case arises froma property dispute between John Zwiacher, M.D., and  

                                                                                                                              



Capstone Family Medical Clinic, LLC, a medical real estate company. Dr. Zwiacher and  

                                                                                                                              



Capstone's owner were friends and business partners; together they made a long-term  



plan by which Capstone would lease or sublease two medical facilities to Dr. Zwiacher,  

                                                                                                                    



one for an endoscopy surgical practice and another for a medical office.  The two suites  

                                                                                                                          



were designed and built out to Dr. Zwiacher's specifications.  He purchased endoscopy  

                                                                                                                   



equipment and had it delivered to the surgical suite.  

                                                                                 



                    Notwithstanding Dr. Zwiacher's involvement inthesephasesoftheproject,  

                                                                                                                        



he did not pay rent or pay for any completed construction work.  In September 2011  

                                                                                                                           



                                                               -2-                                                        7493
  


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Capstone  served  Dr.  Zwiacher  with  notices  to  quit  for  both  locations;  they  went  



                                                                                                                                      

unanswered.  In early October 2011 Capstone filed a forcible entry and detainer action.  



                                                                                                                                

                    Dr. Zwiacher, initially represented by counsel, answered the complaint and  



                                                                                                                                

participated in legal proceedings that included a possession hearing in 2011, at which the  



                                                                                                                       

parties  agreed  he  would  not  occupy  the  medical  suites.                               Dr.  Zwiacher's  attorney  



                                                                                                                                  

withdrew in June 2012, after which Dr. Zwiacher no longer participated in the case.  In  



                                                                                                                                   

March 2013 the court found that he was "willfully disregarding" the case and entered a  



                                                                             

default judgment against him for nearly $92,000.  



                                                                                                                              

                    Over a year later, in May 2014, Capstone executed on Dr. Zwiacher's bank  



                                                                                                                                   

account and recovered over $36,000.  Dr. Zwiacher retained new counsel and filed a  



                                                                                                                                      

motion for reconsideration and relief from the judgment under Alaska Civil Rule 60(b).  



                                                                                                                       

Attached  to  the  motion  was  Dr.  Zwiacher's  affidavit  - important  to  the  question  



                                                             

presented here - in which he attested:  



                                                                                                           

                    Until I received the recent Court documents indicating that  

                                                                                                          

                    money was being taken out of bank accounts to which I am  

                                                                                                     

                    a signatory, I had no notice that a judgment had been entered  

                                                                                                          

                    against me. I assumed (albeit wrongly) that the case had been  

                                                                                                           

                    dismissed,   because   Capstone   and   I   never   entered   an  

                                                                                                            

                    agreement (written or otherwise) regarding the lease of the  

                                                                                                              

                    properties.  I also never occupied either of the properties.  It  

                                                                   

                    came as a total shock that the Court had entered a judgment  

                                                                                                     

                    against me for more than $90,000, for a lease that did not  

                    exist!  



                                                                                                     

                    At the beginning of the case, I was aware that . . . a hearing  

                                                                                                          

                    had been conducted, and that my attorney had agreed that  

                                                                                                                  

                    Capstone  was  entitled  to  the  possession  of  the  Premises.  

                                                                                                             

                    After this hearing, I assumed that the case was going to be  

                                                           

                    dismissed. [Emphasis in original.]  



                                                                -3-                                                         7493
  


----------------------- Page 4-----------------------

 Dr. Zwiacher further attested that although he did not dispute "that the court and/or                                                                                                                                                                                  



 [Capstone's   counsel]   may   have   sent   documents   to   [his]   office   requesting   that   [he]  



 respond to discovery requests[,]                                                                           . . . [he] did not actually receive these documents."                                                                                                                        



                                             The district court denied Dr. Zwiacher's motion for relief from the default                                                                                                                                               



judgment. He appealed to the superior court, which determined that he had not received                                                                                                                                                                            



 adequate notice prior to default and reversed on this procedural ground.                                                                                                                                                                       



                                             On remand the district court allowed Dr. Zwiacher to amend his answer to                                                                                                                                                                   



 include a counterclaim alleging conversion for medical equipment he had purchased and                                                                                                                                                                                             



 left in the surgical suite.                                                     The parties agreed that by the time of the amendment in 2016,                                                                                                                             

                                                                                                                                                                                                                                 1  and it was viable  

 the two-year statute of limitations had run on the conversion claim,                                                                                                                                                                                                    

 only if it related back to the time of Dr. Zwiacher's 2011 answer.2  

                                                                                                                                                                                                                             



                                             The district court held a three-day bench trial in December 2016, after  

                                                                                                                                                                                                                                                                              



 which it entered a very detailed order addressing the parties' competing claims for  

                                                                                                                                                                                                                                                                                   



 damages. The court found that Dr. Zwiacher breached his agreement to occupy and pay  

                                                                                                                                                                                                                                                                                  



 for  the  two  medical  suites  and  owed  damages  to  Capstone  as  a  result.                                                                                                                                                                                      As  for  

                                                                                                                                                                                                                                                                  



 Dr. Zwiacher's conversion counterclaim, the court found that he was judicially estopped  

                                                                                                                                                                                                                                                                 



 from asserting it because it was inconsistent with the position he asserted when seeking  

                                                                                                                                                                                                                                                                     



 relief from the default judgment - that he thought the case was going to be dismissed  

                                                                                                                                                                                                                                                             



                       1                     AS 09.10.070(a)(3) ("Except as otherwise provided by law, a person may                                                                                                                                                             



 not bring an action . . . for taking, detaining, or injuring personal property . . . unless the                                                                                                                                                                                    

 action is commenced within two years of the accrual of the cause of action.").                                                                                                                                                                                     



                       2                     See Alaska R. Civ. P. 13(a) ("A pleading shall state as a counterclaim any  

                                                                                                                                                                                                                                                                                  

 claim which . . . the pleader  has against any opposing party, if it arises out of the  

                                                                                                                                                                                                                                                                                   

 transaction or occurrence that is the subject matter of the opposing party's claim . . . .");  

                                                                                                                                                                                                                                                                              

 Alaska R. Civ. P. 15(c) ("Whenever the claim or defense asserted in the amended  

                                                                                                                                                                                                                                                              

 pleading arose out of the conduct, transaction or occurrence set forth . . . in the original  

                                                                                                                                                                                                                                                                    

 pleading, the amendment relates back to the date of the original pleading.").  

                                                                                                                                                                                                                                                              



                                                                                                                                           -4-                                                                                                                                7493
  


----------------------- Page 5-----------------------

following the possession hearing in 2011.                                                                                                                                       The court observed that had Dr. Zwiacher                                                                                                   



truly  believed the case was over, then - knowing that his equipment remained in                                                                                                                                                                                                                                                                         



Capstone's possession - he could have "take[n] action to pursue his remedies through                                                                                                                                                                                                                                              



his own civil action."                                                                      The court concluded that allowing Dr. Zwiacher's conversion                                                                                                                                                             



counterclaim to proceed would let him unfairly "disavow the position" he took in his                                                                                                                                                                                                                                                                  



affidavit.    



                                                       On   a   second   appeal,   the   superior   court   affirmed   the   district  court's  



application of judicial estoppel to Dr. Zwiacher's counterclaim.                                                                                                                                                                                                                The superior court                                          



agreed that Dr. Zwiacher's positions were contradictory and amounted to a fraud on the                                                                                                                                                                                                                                                                



court because he was "contemporaneously pursuing two opposite legal positions in                                                                                                                                                                                                                                                                         



2012."   The superior court explained:                                                                                                                       



                                                       In sum, if Dr. Zwiacher believed that the case was dismissed                                                                                                                                                

                                                       in   2012,   then   he   failed   to   file   an   independent   action   for  

                                                       conversion   in   a   timely   manner   and   is   now   barred  by   the  

                                                       statute   of   limitations.     If   [he]   believed   that  he   had   a  

                                                       compulsory counterclaim for conversion in 2012, then he                                                                                                                                                                                   

                                                       committed perjury in his affidavit when he told the court that                                                                                                                                                                        

                                                       he believed the case was dismissed.                                                                                                                 



Dr. Zwiacher petitioned this court for hearing.  We granted his petition on the issue of                                                                                                                                                                                                                           

whether judicial estoppel barred his counterclaim.                                                                                                                                                            3  



III.                        STANDARD OF REVIEW  

                                                                                                       

                                                       We review the district court order directly.4                                                                                                                                                     Dr. Zwiacher argues that  

                                                                                                                                                                                                                                                                                                                                                  



determining whether judicial estoppel applies is a matter of law that we should review  

                                                                                                                                                                                                                                                                                                                                      



de novo, whereas Capstone argues for an abuse of discretion standard.  As explained  

                                                                                                                                                                                                                                                                                                                          



                           3                           Zwiacher v. Capstone Family Med. Clinic, LLC                                                                                                                                                                , No. S-17259 (Alaska                                        



 Supreme Court Order, March 1, 2019).                                                                                                



                           4                          Ray v. Draeger, 353 P.3d 806, 810 (Alaska 2015).  

                                                                                                                                                                                                                                                                        



                                                                                                                                                                            -5-                                                                                                                                                                7493
  


----------------------- Page 6-----------------------

below, we review de novo a court's determination that a litigant is taking two clearly                                                                                               



inconsistent positions; then, if necessary, we review the court's application of judicial                                                                                          



estoppel for an abuse of discretion.                    



IV.	           DISCUSSION  



               A.	            The   Judicial   Estoppel   Doctrine   Applies   Only   When   A   Party   Has  

                              Asserted Two "Clearly Inconsistent" Positions; Whether A Party Has                                                                                           

                              Done So Is A Question Of Law.                                   



                              Judicial estoppel is a discretionary, equitable doctrine used                                                                                 to   prevent  

parties from playing "fast and loose"                                               5  

                                                                                                                                                                                           

                                                                                       with the judicial system.  "Judicial estoppel bars  



                                                                                                                                                                                     

 'a party from contradicting previous declarations made during the same or an earlier  



                                                                                                                                                                               

proceeding if the change in position would adversely affect the proceedings or constitute  



                                                    6  

                                                       

a fraud on the court.' " 



                              In New Hampshire v. Maine the United States Supreme Court identified  

                                                                                                                                                                              



three factors that can help a court decide whether to apply the judicial estoppel doctrine:  

                                                                                                                                                                                



                              First, a party's later position must be "clearly inconsistent"  

                                                                                                                                        

                              with its earlier position.   Second, courts regularly inquire  

                                                                                                                                                     

                              whether the party has succeeded in persuading a court to  

                                                                                                                                                                 

                              accept that party's earlier position, so that judicial acceptance  

                                                                                                                                              

                              of an inconsistent position in a later proceeding would create  

                                                                                                                                                         

                              "the  perception  that  either  the  first  or  second  court  was  

                                                                                                                                                            

                              misled." Absent success in a prior proceeding, a party's later  

                                                                                                                                                            

                              inconsistent position introduces no "risk of inconsistent court  

                                                                                                                                                           

                              determination,"  and  thus  poses  little  threat  to  judicial  

                                                                                                                                                   

                              integrity.  A third consideration is whether the party seeking  

                                                                                                                                                     



               5              New Hampshire v. Maine                                    , 532 U.S. 742, 750 (2001) (quoting                                                Scarano v.  



 Cent. R.R. Co.                  , 203 F.2d 510, 513 (3d Cir.1953));                                             Hampton Tree Farms, Inc. v. Jewett                                               ,  

892 P.2d 683, 689-90 (Or. 1995) (quoting                                                      Sandstrom v. ChemLawn Corp.                                            , 904 F.3d 83,          

87-88 (1st Cir. 1990)).                              



               6              Bruce L. v. W.E., 247 P.3d 966, 976 n.37 (Alaska 2011) (quoting Judicial  

                                                                                                                                                                                  

Estoppel, BLACK 'S  LAW  DICTIONARY  631 (9th ed. 2009)).                                                                             

                       



                                                                                               -6-	                                                                                      7493
  


----------------------- Page 7-----------------------

                       to   assert   an   inconsistent   position   would   derive   an   unfair  

                       advantage or impose an unfair detriment on the opposing                                 

                                                            [  ]  

                       party if not estopped.                7 



The Court cautioned that it was not intending to "establish inflexible prerequisites or an  

                                                                                                                                                   



exhaustive formula for determining the applicability of judicial estoppel.  Additional  

                                                                                                                                    

considerations may inform the doctrine's application in specific factual contexts."8  In  

                                                                          



the case before it, the Court applied judicial estoppel to prevent New Hampshire from  

                                                                                                                                               



arguing that its boundary with Maine ran along the shoreline of the Piscataqua River,  

                                                                                                                                            



because  25  years  earlier  New  Hampshire  had  agreed  in  a  consent  decree  that  the  

                                                                                                                                                 



boundary  was  in  the  "Middle  of  the  River";  the  two  positions  were  "clearly  

                                                                                                                                        

inconsistent."9  



                       Despite  the  Court's  emphasis  on  the  case-specific  nature  of  judicial  

                                                                                                                                         



estoppel, some federal circuit courts "tend to apply the three [New Hampshire] factors  

                                         

rigidly - as a three-part test."10   Other courts have emphasized one factor over another,  

                                                                                                                                         



with some requiring the party asserting the contradictory statement to have had previous  

                                                                                                                                        



            7          New  Hampshire,  532  U.S.  at  750  (citations  omitted).  



            8          Id.  at  751.   



            9          Id.  at  751,  755.   



            10         Nicole  C.  Frazer,  Note,  Reassessing  the  Doctrine  of  Judicial  Estoppel:   The  



Implications  of  the  Judicial  Integrity  Rationale,  101  VA.  L.  REV.  1501,  1506-07  (2015)  

(attributing  rigid  approach  to  U.S.  Courts  of  Appeals  for  Second,  Eighth,  Ninth,  Tenth,  

a       

  nd D.C. Circuits).   



                                                                         -7-                                                                  7493
  


----------------------- Page 8-----------------------

                                                        11                                                                             12  

 success with its initial position                         or to be changing its position in bad faith.                                     



                                                                                                                                                          

                        We have yet to review, in a published opinion, a trial court's application of  

                               13   In a few cases we have declined to employ the doctrine because the  

                                                                                                                                                        

                

judicial estoppel. 

                                                                                              14  We have mentioned the doctrine  

 declarations being compared were not contradictory.                                                                                           

                                                                      

briefly  other  times  without  needing  to  explore  its  parameters.15                                                    As  the  doctrine's  

                                                                                                                                          



 application is now squarely before us, we take the opportunity to approve the flexible  

                                                                                                                                               



three-factor approach of New Hampshire and to clarify our appellate standard of review.  

                                                                                                                                                               



                        Whether two positions are actually contradictory is a question of law which  

                                                                                                                                                  



we consider using our independent judgment.  This is the approach we take with other  

                                                                                                                                                    



             11         See,   e.g.,   Williams   v.   Hainje,   375   F.   App'x   625,   627   (7th   Cir.   2010)  



 ("Broadly speaking, judicial estoppel precludes a party from abandoning positions after                                                             

they have prevailed on them in earlier litigation.").                  



             12         See, e.g., Slater v. U.S. Steel Corp., 871 F.3d 1174, 1185-86 (11th Cir.  

                                                                                                                                                      

2017) (clarifying in bankruptcy case that court should look to all circumstances before  

                                                                                                                                                  

 applying judicial estoppel only to those cases where "a plaintiff intended to mislead the  

                                                                                                                                                        

 court").  

                



             13         See Hymes v. DeRamus, No. S-15342, 2016 WL 482627, at *3 (Alaska  

                                                                                                                                               

Feb.  3,  2016)  (finding  "no  flaw"  in  superior  court's  decision  to  grant  motion  for  

                                                                                                                                                       

 summary judgment on judicial estoppel grounds but affirming on other grounds).  

                                                                                                                                   



             14         See Brooks v. Hollaar, 297 P.3d 125, 130 (Alaska 2013) (concluding that  

                                                                                                                                                      

litigant's "position was . . . consistent throughout" on whether promissory estoppel claim  

                                                                                                                                                    

was to be decided by judge or jury because "counsel never made a 'declaration,' later  

                                                                                                                                                     

 contradicted, that could form the basis for judicial estoppel"); Simpson v. Murkowski,  

                                                                                                                                        

 129 P.3d 435, 443 n.27 (Alaska 2006) (concluding that State's positions in successive  

                                             

 cases on whether residents had contractual rights to longevity bonuses were not in fact  

                                                                                                                                                      

 contradictory and it was therefore unnecessary to address judicial estoppel).  

                                                                                                                                           



             15         See Hymes, No. S-15342, 2016 WL 482627, at *3; Bruce L. v. W.E., 247  

                                                                                                                                                      

P.3d 966, 976 & n.37 (Alaska 2011) (characterizing previous case as applying "judicial  

                                                                                                                                              

 estoppel or waiver rather than judicial admission").  

                                                                                                



                                                                            -8-                                                                    7493
  


----------------------- Page 9-----------------------

estoppel doctrines:                      "The applicability of estoppel principles to a particular set of facts                                                           



                                                                                                                                               16  

is   a   legal   question   over   which   we   exercise   independent   review."                                                                                           

                                                                                                                                                       But  once  the  



                                                                                                                                                                   

doctrine's applicability to a set of facts has been confirmed - that is, we have decided  



                                                                                                                                                

that the asserted declarations of position are indeed contradictory - we review for an  



                                                                                                                                                                                17  

                                                                                                                                                                                     

abuse of discretion the trial court's decision whether the doctrine should be applied. 



"We will reverse the trial court's decision only if we determine that the decision is  

                                                                                                                                                                                



arbitrary,  capricious,  or  manifestly  unreasonable  or  .  .  .  stems  from  an  improper  

                                                                                                                                                               

motive."18  This approach preserves the trial court's discretion in deciding whether to use  

                                                                                                                                                                             

the doctrine.19  

        



              B.	           Dr.  Zwiacher's  Counterclaim  And  Affidavit  Were  Not  Clearly  

                                                                                                                                                                 

                            Inconsistent.  



                            The district court found it contradictory for Dr. Zwiacher to contend that  

                                                                                   



he had believed the case to be over when seeking relief from the default judgment, then  

                                                                                                                                                                           



later assert a counterclaim that had existed from the case's outset.  Dr. Zwiacher argues  

                                                                                                                                                                      



that his positions are not inconsistent because there are many reasons "why a person may  

                                                                                                                                                                           



              16            Powers   v.   United   Servs.   Auto.   Ass'n,   6   P.3d   294,   297   (Alaska   2000)  



(reviewing de novo superior court's decision not to apply collateral estoppel). However,                                                                        

in quasi-estoppel situations, a determination of the "existence of facts and circumstances                                                             

making   the    assertion    of   an    inconsistent   position    unconscionable"    is    a    factual  

determination reviewed under the clearly erroneous standard.                                                                   Jamison v. Consol. Utils.,              

Inc., 576 P.2d 97, 102 (Alaska 1978).                            



              17            See, e.g., Andrea C. v. Marcus K. , 355 P.3d 521, 526 (Alaska 2015) ("[W]e  

                                                                                                                                                                     

review the decision to apply collateral estoppel when its technical requirements are  

                                                                                                                                                                             

otherwise satisfied for abuse of discretion." (citation omitted)).  

                                                                                                               



              18            Roman v. Karren, 461 P.3d 1252, 1256 (Alaska 2020).  

                                                                                                                                 



              19            Marshall v. Honeywell Tech. Sys. Inc., 828 F.3d 923, 928 (D.C. Cir. 2016)  

                                                                                                                                                                       

("De novo review would displace the discretion of the district court to apply judicial  

                                                                                                                                                                    

estoppel with the discretion of the appellate court to do so.  We see no sense in this.").  

                                                                                                                                                                     



                                                                                       -9-	                                                                              7493
  


----------------------- Page 10-----------------------

                                                                                                                        

chooseto not immediately file a counterclaim," including the fact that "litigants routinely  



                                                                                                                           

decide to drop or not pursue actions if the opposing side dismisses its action."  



                                                                                                                             

                     Capstone argues in response that the district court's decision to apply  



                                                                                                                            

judicial  estoppel  should  be  viewed  in  light  of  the  court's  observations  about  



                                                                                                                             

Dr.  Zwiacher's credibility.   The court found, for example, that Dr. Zwiacher "was  



                         

inconsistent in his recall of events," particularly those unfavorable to his position, and  



                                                                                                                                

that this "broad lack of recall . . . undermine[d] the weight and effect of his testimony and  



                                                                                                 

erode[d] his credibility generally."  The court found his claim that he thought the case  



                                                                                                                               

was  going  to  be  dismissed  "not  believable."                          The  court  concluded  that  "[h]is  trial  



                                                                                                                                    

testimony of not being able to recall his receipt of U.S. mail, or email, [was] simply a  



                                                                                                                                   

way to avoid conceding that he misrepresented the reasons for failing to participate in  



                                                                                                                  

the case." In the district court's opinion, Dr. Zwiacher's decision to file the counterclaim  



                                                                                                                            

in 2016 was wholly inconsistent with his belief that the case had concluded years earlier  



                                                                                                                                  

because he "simply had no feasible explanation as to why, if he believed the case to be  



                                                                                                                             

dismissed, shortly after the October 20, 2011 [hearing], he did not engage in some  



                                                        

process to retrieve the equipment."  



                                                                                                                              

                     But  we  conclude  that  Dr.  Zwiacher's  positions  fail  to  meet  the  legal  



                                                                                                                     

threshold for the applicability of the judicial estoppel doctrine:  they were not clearly  



                                                                                                                                

inconsistent. In Dr. Zwiacher's 2014 affidavit he attested to his belief "that the case had  



                                                                                                                                   

been  dismissed"  and  his  later  "total  shock"  to  learn  "that  the  Court  had  entered  a  



                                                                                                                         

judgment against [him] for more than $90,000." It is reasonable for a litigant to abandon  



                                                                                                                                  

a potential counterclaim in the context of an early dismissal of the case that results in no  



                                                                                                                  

financial exposure.  And it is equally reasonable for a litigant to assert a counterclaim  



                                                                                                                                   

when the litigant realizes that the case, rather than being dismissed, is being pursued to  



                                                                                                                    

apotentially largeadversejudgment. Becausethesepositionsare not clearly inconsistent  



                                                                -10-                                                         7493
  


----------------------- Page 11-----------------------

as a matter of law, the judicial estoppel doctrine was inapplicable, and we need not                                                                                                                                                                                                                                                                                                 



consider the other elements of the                                                                                                                       New Hampshire                                                              test.  



V.                            CONCLUSION  



                                                            We   REVERSE   the   superior   court's   affirmance   of   the   district   court's  



decision that Dr. Zwiacher's conversion counterclaim is barred by judicial estoppel and                                                                                                                                                                                                                                                                                              



REMAND to the district court for further proceedings consistent with this opinion.                                                                                                                                                                                                                                                              



                                                                                                                                                                                                        -11-                                                                                                                                                                 7493
  


----------------------- Page 12-----------------------

                                                

CARNEY, Justice, dissenting.  



                                                                                                                              

                    I agree with the court's analysis of the doctrine of judicial estoppel.  But  



                                                                                                            

because I agree with the superior court's conclusion that the district court correctly  



                                                                                                           

determined the doctrine applied to bar Dr. Zwiacher's counterclaim, I dissent.  



                                                                                

                    I am persuaded by the superior court's explanation:  



                                                                                                 

                    In sum, if Dr. Zwiacher believed that the case was dismissed  

                                                                                                           

                    in  2012,  then  he  failed  to  file  an  independent  action  for  

                                                                                                          

                    conversion  in  a  timely  manner  and  is  now barred  by  the  

                                                                                                              

                    statute of limitations.  If Dr. Zwiacher believed that he had a  

                                                                                                            

                    compulsory counterclaim for conversion in 2012, then he  

                                                                                                          

                    committed perjury in his affidavit when he told the court that  

                                                           

                    he believed the case was dismissed.  



                                                              -12-                                                         7493
  

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