TFF, Inc. v. SID No. 59

“[f]rom outside sources.”34 K.B.’s testimony regarding the basis
for her opinion about her mother’s truthfulness was not from
an outside source, and the State was not prohibited by rule
608(2) from conducting this inquiry on redirect examination.35
The district court did not abuse its discretion in receiving this
testimony over Baker’s objection.
V. CONCLUSION
For the reasons discussed, we find no merit in any of Baker’s
assignments of error and therefore affirm the judgment of the
district court.
A ffirmed.
34 Black’s Law Dictionary 666 (9th ed. 2009).
35 See, generally, Mangrum, supra note 30, 434-35.
Tff, inc., A nebrAskA corporATion, AppellAnT, v.
sAniTAry And improvemenT disTricT no. 59
of sArpy counTy And brook vAlley
limiTed pArTnership, Appellees.
790 N.W.2d 427
Filed November 5, 2010. 	No. S-09-843.
1. Equity: Estoppel. Judicial estoppel is an equitable doctrine that a court invokes
at its discretion to protect the integrity of the judicial process.
2. Judgments: Estoppel: Appeal and Error. An appellate court reviews a court’s
application of judicial estoppel to the facts of a case for abuse of discretion and
reviews its underlying factual findings for clear error.
3. Estoppel. When a party has unequivocally asserted a position in a proceeding and
a court accepts that position, judicial estoppel can bar that party’s inconsistent
claim against the same or a different party in a later proceeding.
4. ____. Judicial estoppel applies to bar an inconsistent claim against a different
party because the doctrine protects the integrity of the judicial process, not the
parties’ interests.
5. ____. Within a single action, a court should apply judicial estoppel with caution
to avoid imputing bad faith to a party that has made a strategic decision to plead
alternative claims, particularly against separate parties.
6. Actions: Pleadings. Although parties can plead inconsistent claims, once they
have obtained a judgment on one claim by asserting a legal or factual position,
TFF, INC. v. SID NO. 59 	767
Cite as 280 Neb. 767
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:47 AM CST

they cannot obtain another judgment for the same injury based on a theory incon-
sistent with the previous position.
7. Actions: Attorney Fees: Words and Phrases. A frivolous action is one in which
a litigant asserts a legal position wholly without merit; that is, the position is
without rational argument based on law and evidence to support the litigant’s
position. The term “frivolous” connotes an improper motive or legal position so
wholly without merit as to be ridiculous.
8. Actions. Any doubt about whether a legal position is frivolous or taken in bad
faith should be resolved in favor of the one whose legal position is in question.
9. Attorney Fees: Appeal and Error. An appellate court may award attorney
fees on appeal regardless of whether a party asked for attorney fees from the
trial court.
Appeal from the District Court for Sarpy County: WilliAm
b. ZAsTerA, Judge. Affirmed.
Kristopher J. Covi and Brian T. McKernan, of McGrath,
North, Mullin & Kratz, P.C., L.L.O., for appellant.
Scott D. Jochim, Robert J. Huck, and Elizabeth A. Elwell,
of Croker, Huck, Kasher, DeWitt, Anderson & Gonderinger,
L.L.C., for appellee Sanitary and Improvement District No. 59
of Sarpy County.
heAvicAn, 	c.J., 	WrighT, 	connolly, 	gerrArd, 	sTephAn,
mccormAck , and miller-lermAn, JJ.
connolly, J.
The 	appellant, 	TFF, 	Inc., 	sued 	Brook 	Valley 	Limited
Partnership (Brook Valley) for breach of contract because it
failed to pay special assessments on the real estate it purchased.
In the same lawsuit, TFF sued the Sanitary and Improvement
District No. 59 of Sarpy County (SID) to void the assessments
or, in the alternative, for damages that equaled the amount
of the assessments. The district court granted TFF a default
judgment against Brook Valley for $51,177.67, the amount
of special assessments. After obtaining the default judgment,
TFF pursued SID. Applying judicial estoppel, the district court
granted SID’s motion for summary judgment. We affirm.
BACKGROUND
In 1992, Brook Valley purchased 130 acres of property that
it planned to sell as individual commercial lots. At the time
768 	280 NEBRASKA REPORTS

of Brook Valley’s purchase, the SID had not made public
improvements. The SID completed the first phase of roads and
sewers about 1994 and the second phase by 1998. The SID did
not levy special assessments after completing the first phase
because the SID and Brook Valley disagreed over the formula
to be used in calculating the assessments.
In 1996, TFF purchased a commercial lot from Brook Valley.
In the purchase agreement, Brook Valley agreed to “pay any
assessments for public improvements previously constructed,
or ordered or required to be constructed by the public author-
ity, but not yet assessed.” Brook Valley’s managing partner also
submitted an affidavit with the purchase agreement. The affida-
vit declared that “[t]here are no public improvement[s] in the
vicinity of the premises under construction, completed but not
assessed, or contemplated, which could be a basis for any spe-
cial assessment being levied after closing against the premises.
All current assessments have been paid.”
In February 2000, the SID’s board voted to levy assess-
ments, without giving notice to property owners that it would
consider the assessments at the meeting. TFF alleged that it
did not learn of the assessments until 2004, when it received a
delinquency notice.
In April 2006, TFF sued Brook Valley and the SID. In its
complaint, TFF alleged that Brook Valley breached its contract
by failing to pay the special assessments levied against TFF’s
lot by the SID. In the same complaint, TFF also asserted claims
against the SID, seeking to void the assessments or, in the
alternative, $51,177.67 in damages for the assessments.
On July 13, 2006, TFF moved for default judgment against
Brook Valley, which was, by this time, bankrupt. The district
court granted default judgment against Brook Valley on August
22, awarding TFF $51,177.67 plus interest and costs.
In March 2009, the SID moved for summary judgment on
the remainder of TFF’s claims. After a hearing on the SID’s
motion, at which time evidence was offered and received, TFF
filed its own cross-motion for summary judgment. Later, the
district court granted summary judgment for SID on judicial
estoppel grounds.
TFF, INC. v. SID NO. 59 	769
Cite as 280 Neb. 767

ASSIGNMENTS OF ERROR
TFF assigns that the district court erred in (1) determining
that the doctrine of judicial estoppel bars TFF’s claims against
the SID, (2) sustaining the SID’s motion for summary judgment,
and (3) overruling TFF’s motion for summary judgment.
The SID is now seeking litigation costs under Neb. Rev.
Stat. § 25-824 (Reissue 2008).
STANDARD OF REVIEW
[1,2] Judicial estoppel is an equitable doctrine that a court
invokes at its discretion to protect the integrity of the judicial
process.1 So we review a court’s application of judicial estop-
pel to the facts of a case for abuse of discretion and review its
underlying factual findings for clear error.2
ANALYSIS
The SID argues that judicial estoppel bars TFF’s claims
against the SID. The district court determined that judicial
estoppel barred both TFF’s claim that the levied assessments
against TFF’s property were invalid and its negligence claim
against the SID. TFF argues that judicial estoppel should not
bar its declaratory action for two reasons: Judicial estoppel
does not apply to positions taken in the same proceedings; and
the district court had the power to vacate its earlier default
judgment against Brook Valley. Additionally, TFF argues that
success of its negligence claim does not rely on the validity of
the assessments.
JudiciAl esToppel
[3,4] We have held that when a party has unequivocally
asserted a position in a proceeding and a court accepts that
1 See New Hampshire v. Maine, 532 U.S. 742, 121 S. Ct. 1808, 149 L. Ed.
2d 968 (2001).
2 See, e.g., Perry v. Blum, 629 F.3d 1 (1st Cir. 2010); Reed v. City of
Arlington, 620 F.3d 477 (5th Cir. 2010); Capella University v. Executive
Risk Specialty Ins. Co., 617 F.3d 1040 (8th Cir. 2010); Robinson v. Tyson
Foods, Inc., 595 F.3d 1269 (11th Cir. 2010); Wagner v. Professional Eng’rs
in Cal. Gov’t, 354 F.3d 1036 (9th Cir. 2004).
770 	280 NEBRASKA REPORTS

position, judicial estoppel can bar that party’s inconsistent
claim against the same or a different party in a later proceed-
ing.3 Judicial estoppel applies to bar an inconsistent claim
against a different party because the doctrine protects the
integrity of the judicial process, not the parties’ interests.4 In
adopting the doctrine of judicial estoppel, we have set forth
principles for its application:
The doctrine of judicial estoppel holds that one who
has successfully and unequivocally asserted a position in
a prior proceeding is estopped from asserting an inconsist-
ent position in a subsequent proceeding. . . . The doctrine
protects the integrity of the judicial process by preventing
a party from taking a position inconsistent with one suc-
cessfully and unequivocally asserted by the same party
in a prior proceeding. . . . It has been said that unlike
equitable estoppel, judicial estoppel may be applied even
if detrimental reliance or privity does not exist. . . .
However, the doctrine is to be applied with caution so as
to avoid impinging on the truth-seeking function of the
court because the doctrine precludes a contradictory posi-
tion without examining the truth of either statement. . . .
Absent judicial acceptance of the inconsistent position,
application of the rule is unwarranted because no risk of
inconsistent results exists.5
TFF argues that judicial estoppel should not apply to incon-
sistent positions in the same proceeding. It argues that the court
granted a default judgment against Brook Valley for breach of
contract as part of the same proceeding. And it argues that this
court has previously only applied judicial estoppel to preclude
a party’s inconsistent positions in different proceedings.
Contrary 	to TFF’s 	argument, 	we 	agree 	with 	the 	court
that TFF’s claims against Brook Valley and the SID were
3 See, Jardine v. McVey, 276 Neb. 1023, 759 N.W.2d 690 (2009); Vowers &
Sons, Inc. v. Strasheim, 254 Neb. 506, 576 N.W.2d 817 (1998).
4 See, e.g., Lang v. Hougan, 136 Wash. App. 708, 150 P.3d 622 (2007).
5 Melcher v. Bank of Madison, 248 Neb. 793, 798, 539 N.W.2d 837, 842
(1995) (citations omitted). Accord, Jardine, supra note 3; Vowers & Sons,
Inc., supra note 3.
TFF, INC. v. SID NO. 59 	771
Cite as 280 Neb. 767

inconsistent. TFF premised its breach of contract claim against
Brook Valley on its theory that the SID’s assessments were
valid. In contrast, in its declaratory judgment claim against
the SID, it alleged that the assessments were invalid for lack
of notice. Similarly, in its negligence claim against the SID,
TFF alleged that it could not contest the assessments because
the SID failed to give notice. So, TFF’s negligence claim
also depended upon its ability to show that the assessments
were invalid.
It is true that we have never applied the doctrine of judicial
estoppel when a party asserted inconsistent positions in the
same proceeding. But neither have we held that its application
is inappropriate in that circumstance.6 And other courts, includ-
ing the U.S. Supreme Court,7 have held that a court can apply
judicial estoppel to preclude a party from asserting a position
inconsistent with the party’s previous position in the same or a
subsequent proceeding.8
[5] We recognize that rule 8(e) of the Nebraska Court
Rules of Pleading in Civil Cases9 permits a party to plead
“as many separate claims or defenses as the party has regard-
less of consistency and whether based on legal or equitable
grounds.” Legal commentators have noted that there is a
tension between modern pleading rules and the doctrine of
judicial estoppel.10 And we agree that within a single action,
a court should apply judicial estoppel with caution to avoid
imputing bad faith to a party that has made a strategic
6 See Stewart v. Bennett, 273 Neb. 17, 727 N.W.2d 424 (2007).
7 See, New Hampshire, supra note 1; Pegram v. Herdrich, 530 U.S. 211, 228
n.8, 120 S. Ct. 2143, 147 L. Ed. 2d 164 (2000).
8 See, e.g., Farmers High Line Canal v. City of Golden, 975 P.2d 189
(Colo. 1999); Bank of Wichitas v. Ledford, 151 P.3d 103 (Okla. 2006);
Philadelphia Suburban Water v. PUC, 808 A.2d 1044 (Pa. Commw.
2002); Cothran v. Brown, 357 S.C. 210, 592 S.E.2d 629 (2004); Riggs v.
University Hospitals, 221 W. Va. 646, 656 S.E.2d 91 (2007).
9 See Neb. Ct. R. Pldg. § 6-1108(e)(2).
10 See, e.g., Bates v. Long Island R. Co., 997 F.2d 1028 (2d Cir. 1993); 18B
Charles Alan Wright et al., Federal Practice and Procedure § 4477 (2d ed.
2002).
772 	280 NEBRASKA REPORTS

decision to plead alternative claims, particularly against sepa-
rate parties. Usually, courts apply judicial estoppel within a
single action only when a party has misled a court through
cynical gamesmanship.11
[6] Nonetheless, although parties can plead inconsistent
claims, once they have obtained a judgment on one claim by
asserting a legal or factual position, they cannot obtain another
judgment for the same injury based on a theory inconsistent
with the previous position.12 Because TFF had already obtained
a judgment against Brook Valley on its theory that the assess-
ments were valid, it could not obtain an inconsistent judgment
against the SID on theories that required it to show that the
assessments were invalid.
bAd fAiTh And frivolous clAim
The SID argues that it is entitled to litigation costs. It argues
that TFF has continued to pursue its claims against the SID
even after the district court’s “clear admonishment that [TFF’s]
present inconsistent position against [the SID] both ‘defies rea-
son’ and ‘makes a mockery of the judicial process.’”13
[7-9] Section 25-824(2) provides that
in any civil action commenced or appealed in any court
of record in this state, the court shall award as part of
its judgment and in addition to any other costs otherwise
assessed reasonable attorney’s fees and court costs against
any attorney or party who has brought or defended a civil
action that alleges a claim or defense which a court deter-
mines is frivolous or made in bad faith.
A frivolous action is one in which a litigant asserts a legal
position wholly without merit; that is, the position is without
rational argument based on law and evidence to support the
11 See, New Hampshire, supra note 1; Longaberger Co. v. Kolt, 586 F.3d 459
(6th Cir. 2009).
12 See, e.g., U.S. v. Newell, 239 F.3d 917 (7th Cir. 2001); Allen v. Zurich Ins.
Co., 667 F.2d 1162 (4th Cir. 1982).
13 Brief for appellee at 47 (quoting opinion and order of Sarpy County
District Court).
TFF, INC. v. SID NO. 59 	773
Cite as 280 Neb. 767

litigant’s position.14 The term “frivolous” connotes an improper
motive or legal position so wholly without merit as to be ridicu-
lous.15 Any doubt about whether a legal position is frivolous or
taken in bad faith should be resolved in favor of the one whose
legal position is in question.16 An appellate court may award
attorney fees on appeal regardless of whether a party asked for
attorney fees from the trial court.17
Because this court has never applied judicial estoppel in the
same proceeding, TFF made a valid, although unpersuasive,
argument. We reject SID’s bad faith argument.
CONCLUSION
The district court did not err in granting the SID’s motion
for summary judgment. TFF is judicially estopped from pursu-
ing its claims against the SID because such claims are inconsist-
ent with the district court’s award of default judgment against
Brook Valley for the assessments levied by the SID. But TFF’s
claim was not frivolous or brought in bad faith.
A ffirmed.
14 See, Cornett v. City of Omaha Police & Fire Ret. Sys., 266 Neb. 216, 664
N.W.2d 23 (2003); Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369
(1998).
15 See, Cornett, supra note 14; Peter v. Peter, 262 Neb. 1017, 637 N.W.2d
865 (2002).
16 Cornett, supra note 14; Cox v. Civil Serv. Comm. of Douglas Cty., 259
Neb. 1013, 614 N.W.2d 273 (2000).
17 See, Cox, supra note 16; Schuelke, supra note 14.
sTATe of nebrAskA, Appellee , v.
Jeff boppre , AppellAnT.
790 N.W.2d 417
Filed November 5, 2010. 	No. S-09-906.
1. DNA Testing: Appeal and Error. In an appeal from a proceeding under the DNA
Testing Act, the trial court’s findings of fact will be upheld unless such findings
are clearly erroneous.
2. Motions for New Trial: DNA Testing: Appeal and Error. A motion for new
trial based on newly discovered exculpatory evidence obtained pursuant to the
774 	280 NEBRASKA REPORTS