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Kranklin v. Thompson11/12/1998
at.
Consequently, he argues that she should be judicially estopped from taking an inconsistent position on appeal.
. The fundamental concept of judicial estoppel is that a party in a judicial proceeding is barred from denying or contradicting sworn statements made therein. Banes v. Thompson, 352 So.2d 812, 815 (Miss. 1977). Judicial estoppel "arises from the taking of a position by a party to a suit that is inconsistent with the position previously asserted in prior litigation." Ivy v. Harrington, 644 So.2d 1218, 1222 (Miss. 1994)(quoting Daughtrey v. Daughtrey 474 So.2d 598, 602 (Miss. 1985).
. Thompson submits that Judge Franklin is now alleging the exact type of claim which her attorney expressly disavowed under sworn testimony at her deposition. The obvious problem, assuming arguendo that there is an inconsistent position taken, is that Mr. Hill was not under oath when he made those statements. Further, one of the requirements for judicial estoppel appears to be that the inconsistent position arise from statements made in a prior litigation. Ivy, 644 So.2d at 1222. The above statements were all made during the same litigation. However, judicial estoppel does not apply because Thompson was unable to obtain the stipulation from Judge Franklin's counsel. Thus, he was on notice that Judge Franklin may not be abandoning her position.
Conclusion
. Judge Franklin has failed to prove the elements of defamation. Thompson simply provided true and accurate photographs of Judge Franklin's and her husband's vehicles bearing illegal license plates. Thompson's opinions concerning his beliefs do not rise to the actionable level as required under Milkovich and Roussel. The trial court's order granting summary judgment to Thompson is affirmed.
. AFFIRMED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE, ROBERTS, SMITH AND MILLS, JJ., CONCUR.
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