John S. Clark Co. v. Faggert & Frieden, P.C., No. 94-2255

CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)
Writing for the CourtBefore POWELL; BUTZNER
Citation65 F.3d 26
PartiesJOHN S. CLARK COMPANY, Plaintiff-Appellant, v. FAGGERT & FRIEDEN, P.C., Defendant-Appellee.
Decision Date18 September 1995
Docket NumberNo. 94-2255

Page 26

65 F.3d 26
JOHN S. CLARK COMPANY, Plaintiff-Appellant,
v.
FAGGERT & FRIEDEN, P.C., Defendant-Appellee.
No. 94-2255.
United States Court of Appeals,
Fourth Circuit.
Argued June 8, 1995.
Decided Sept. 18, 1995.

Page 27

ARGUED: Steven Scott Biss, Maloney, Yeatts & Barr, P.C., Richmond, VA, for appellant. Reeves Watkins Mahoney, Huff, Poole & Mahoney, P.C., Virginia Beach, VA, for appellee. ON BRIEF: Daniel A. Gecker, Maloney, Yeatts & Barr, P.C., Richmond, VA, for appellant. Timothy M. Richardson, Huff, Poole & Mahoney, P.C., Virginia Beach, VA, for appellee.

Before POWELL, Associate Justice (Retired), United States Supreme Court, sitting by designation, WILKINS, Circuit Judge, and BUTZNER, Senior Circuit Judge.

Reversed and remanded by published opinion. Senior Judge BUTZNER wrote the opinion, in which Justice POWELL and Judge WILKINS joined.

OPINION

BUTZNER, Senior Circuit Judge:

John S. Clark Company appeals the judgment of the district court that dismissed its action on the ground of judicial estoppel. We believe that dismissal on this basis is improper when the facts alleged to have prompted a prior, inconsistent position are in dispute. We reverse and remand the case for trial.

I

Clark, a Florida construction company with its principal place of business in North Carolina, contracted with Walker & Walker, a Virginia partnership, to build a shopping center in Virginia. After Walker & Walker failed to pay Clark the full amount due, Clark hired Faggert & Frieden, a Virginia law firm, to file a mechanic's lien to protect its interests. Faggert & Frieden filed the lien on April 20, 1990. When Clark brought suit in state court, represented by another law firm, to enforce the lien against Walker & Walker, the judge found that the lien had not been filed within 90 days after the completion of the construction project on January 19, 1990, as required by Va.Code Ann. 43-4. Accordingly, the state court rendered judgment in favor of Walker & Walker and dismissed Clark's suit.

Based on diversity jurisdiction, Clark sued Faggert & Frieden in federal district court for professional malpractice and breach of contract, alleging that Faggert & Frieden failed to file the mechanic's lien in a timely manner. Faggert & Frieden moved to dismiss the complaint under Fed.R.Civ.P. 12(b)(6). It claimed that the doctrine of judicial estoppel precluded Clark from maintaining this action. Specifically, Faggert & Frieden argued that Clark's factual allegations in the present suit were in direct conflict with its testimony in state court.

State court records, which the district court judicially noticed, show that Clark's employees testified to a completion date of January 23, 1990. In the present case, however, Clark's complaint alleges that it "provided [Faggert & Frieden] with all information required to complete the mechanic's lien,

Page 28

including the fact that January 19, 1990 was the last day work was done."

Clark submitted the affidavit of its chief financial officer, Monty K. Venable, to explain why the evidence in the state court about the completion of the project differs from the allegations of Clark's complaint. According to Venable, he...

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124 practice notes
  • Angelini v. Balt. Police Dep't, Civil Action No. ELH-17-2354
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 2 Junio 2020
    ...Underwriters Captive Risk Assurance Co., Inc. , 867 F.3d 449, 457 (4th Cir. 2017) (quoting John S. Clark Co. v. Faggert & Frieden, P.C. , 65 F.3d 26, 28 (4th Cir. 1995) ); see Martineau v. Wier , 934 F.3d 385, 393 (4th Cir. 2019) ; Zinkand v. Brown , 478 F.3d 634, 638 (4th Cir. 2007). An eq......
  • In re Boyd, C/A No. 13-02924-JW
    • United States
    • United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — District of South Carolina
    • 17 Julio 2020
    ...advantage," and not when "a party's prior position was based on inadvertence or mistake." John S. Clark Co. v. Faggert & Frieden, P.C. , 65 F.3d 26, 29 (4th Cir. 1995) (emphasis added) (internal quotation 618 B.R. 159 marks omitted); accord New Hampshire , 532 U.S. at 753, 121 S.Ct. 1808 (q......
  • In re DiVittorio, Bankruptcy No. 05-20854-WCH.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • 28 Mayo 2010
    ...of judicial estoppel `when a party's prior position was based on inadvertence or mistake.' John S. Clark Co. v. Faggert & Frieden, P. C., 65 F.3d 26, 29 (4th 125 Id. at 223. 126 In re Bankvest Capital Corp., 375 F.3d at 61. 127 Gens v. Resolution Trust Corp. (In re Gens), 112 F.3d 569, 572-......
  • Betts v. Rector and Visitors of University of Vir., No. Civ.A. 3:96-00054.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Western District of Virginia)
    • 11 Septiembre 2000
    ...of the judiciary." Folio v. City of Clarksburg, 134 F.3d 1211, 1217 (4th Cir.1998) (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 28-29 (4th Cir. 1995)). In order for judicial estoppel to apply, four elements must be present: (1) the party to be estopped must be advancin......
  • Request a trial to view additional results
121 cases
  • Angelini v. Balt. Police Dep't, Civil Action No. ELH-17-2354
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • 2 Junio 2020
    ...Underwriters Captive Risk Assurance Co., Inc. , 867 F.3d 449, 457 (4th Cir. 2017) (quoting John S. Clark Co. v. Faggert & Frieden, P.C. , 65 F.3d 26, 28 (4th Cir. 1995) ); see Martineau v. Wier , 934 F.3d 385, 393 (4th Cir. 2019) ; Zinkand v. Brown , 478 F.3d 634, 638 (4th Cir. 2007). An eq......
  • In re Boyd, C/A No. 13-02924-JW
    • United States
    • United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — District of South Carolina
    • 17 Julio 2020
    ...advantage," and not when "a party's prior position was based on inadvertence or mistake." John S. Clark Co. v. Faggert & Frieden, P.C. , 65 F.3d 26, 29 (4th Cir. 1995) (emphasis added) (internal quotation 618 B.R. 159 marks omitted); accord New Hampshire , 532 U.S. at 753, 121 S.Ct. 1808 (q......
  • Marshall v. Honeywell Tech. Sys. Inc., No. 14-7190
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 12 Julio 2016
    ...or mistake” rather than a lie. New Hampshire , 532 U.S. at 753, 121 S.Ct. 1808 (quoting John S. Clark Co. v. Faggert & Frieden, P.C. , 65 F.3d 26, 29 (4th Cir. 1995) ).Accordingly, many of our sister circuits do not apply judicial estoppel when a party inadvertently omits information from a......
  • In re Enter. Rent-A-Car Wage & Hour Emp't Practices Litig.. Nickolas Hickton, MDL No. 2056
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • 13 Agosto 2010
    ...estoppel when a party's prior position was based on inadvertence or mistake.' " Id. (quoting John S. Clark Co. v. Faggert & Frieden, P.C., 65 F.3d 26, 29 (4th Cir.1995)). Counsel for defendant parent represented that the complaint in the action brought against Collision Industry Management ......
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