The Division filed its motion for summary disposition, a memorandum of law, and a declaration with accompanying exhibits on August 17, 2004 (Motion).
Cunningham argues that the findings of fact in the district court's order of February 2, 2004, are not specific enough to justify the sanction sought here.
Cunningham argues that, even under the most generous interpretation of the doctrine of collateral estoppel, the broad conclusory language of the February 2 order is insufficient to support the bar the Division seeks in this proceeding (Opposition at 4).
Specifically, Cunningham contends that although the claim against Reliable was not listed in the bankruptcy schedules, it was orally disclosed both at the first meeting of creditors and in a post-discharge letter to the bankruptcy trustee.
Accordingly, Cunningham argues that the position he took in the bankruptcy proceeding was not inconsistent with his position in this action, and therefore the application of judicial estoppel to bar this action is inappropriate.
The day after filing this lawsuit, Cunningham sent a letter to the trustee to inform her that he had 'filed a lawsuit to force responsibility on the Company who's negligence caused my injury.' The trustee interpreted the letter as a reference to the previously discussed 'potential L&I claim' and took no action.
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