Crawford Residences, LLC, the borrower, and two of its guarantors, Carondelet,
To finance construction of the project, Crawford borrowed money from Banco Popular North America. The loan was reflected by a promissory note, secured by a mortgage on the real property, and guaranteed by Mr. Goudie and Carondelet. In June 2008, Crawford signed a renewed promissory note and а mortgage extension agreement that effectively deferred final payment from February 14 to August 15, 2008.
The agreement cоntained a release stating that Crawford relinquished “any and all liability, claims, counterclaims, defenses, actions, causеs of action” that it “ever had” or “now ha[s] ... upon or by reason of any matter or cause whatsoever through the date hereof.” The first sentence of the agreement indicates that it “is made and entered into and effective as of thе 14th day of February, 2008.... ”
Upon Crawford’s payment default, Ban-co sued. Crawford asserted counterclaims and raised severаl affirmative defenses. The trial court denied Banco’s motions for summary judgment and set the case for nonjury trial. Banco mоved to bifurcate the trial, asking that the trial court first determine whether the release barred Crawford’s counterclaims and affirmative defenses. The trial court granted the motion. Crawford maintained that its affirmative defenses and counterclаims were directed, in part, to Banco’s alleged wrongful conduct after February 14, 2008, the effective date of the relеase.
The focus of Crawford’s case was that Banco breached its obligation to fund draw requests in a timely manner during construction. Mr. Goudie testified, by way of an affidavit submitted earlier in the case, that Crawford substantially completed the condominium project by May 2008. He emphasized that “but for [Banco’s] breach this project would have been completed the latest by January 2007,” and the units would have been sold by July 2007.
The trial court interpreted Mr. Goudie’s testimony to mean that Banco’s alleged delays occurred before February 14, 2008, and thus were barred by the release. Crawford maintained that Banco’s funding delays occurred before and after February 14, 2008. Banco asserted that judicial es-toppel barred Crawford, in light of Mr. Goudie’s testimony, from arguing that any postrelease conduct gave rise to affirmative defenses or counterclaims. The trial court agreed and awarded final judgment of foreclosure to Banco.
The trial court “is in the best position ‘to evaluаte and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.’ ” In re Estate of Sterile,
We cannot conclude that the record contains competent, substantial evidence to support the trial court’s interpretation of Mr. Goudie’s affidavit testimony. The testimony addresses the deleterious effect on
Properly assessing Mr. Goudie’s affidavit testimony necessarily compels us to reject Banco’s judicial estoppel argument. “Judicial estoppel is an equitable doctrine that prevents litigants from taking inconsistent positions in separate judicial or quasi-judicial proceedings.” Zeeuw v. BFI Waste Sys. of N. Am., Inc.,
Our review of the record supports no finding of judicial estoppel. First, Banco argues that Crawford’s position at trial— that its counterclaims and affirmative defenses also concerned postrеlease conduct — is inconsistent with Mr. Goudie’s prior affidavit testimony. As we observed earlier, we see no such inconsistency.
Second, Banco fails to establish that Crawford successfully maintained a position in an earlier proceeding. “[J]udi-сial estoppel applies only when the position assumed in the earlier proceeding was successfully maintained.” Zeeuw,
Third, Banco was not misled by and did not change its position in reliance on Mr. Goudie’s affidavit. Banco maintained the same position throughout litigation: it sued because Crawford did not pay back the loan.
We therefore reverse and remand for the trial court to allow Crawford to proceed with its affirmative defenses and counterclaims arising from alleged breaches by Banco not barred by the release.
Reversed and remanded.
Notes
. For convenience, we refer to the Appellants collectively as "Crawford,'' unless the context demands otherwise.