Is Estoppel a Jury Question?

There are a number of types of estoppel, some of which are prefaced with the word "equitable." Equitable invokes chancery judges, Charles Dickens, and not juries. The Supreme Court's opinion in Dairy Queen, Inc. v. Wood, 369 U.S. 469, 477-478 (1962), addressed part of this problem:

The respondents' contention that this money claim is ‘purely equitable’ is based primarily upon the fact that their complaint is cast in terms of an ‘accounting,’ rather than in terms of an action for ‘debt’ or ‘damages.’ But the constitutional right to trial by jury cannot be made to depend upon the choice of words used in the pleadings. The necessary prerequisite to the right to maintain a suit for an equitable accounting, like all other equitable remedies, is, as we pointed out in Beacon Theatres, the absence of an adequate remedy at law. Consequently, in order to maintain such a suit on a cause of action cognizable at law, as this one is, the plaintiff must be able to show that the ‘accounts between the parties' are of such a ‘complicated nature’ that only a court of equity can satisfactorily unravel them. In view of the powers given to District Courts by Federal Rule of Civil Procedure 53(b) to appoint masters to assist the jury in those exceptional cases where the legal issues are too complicated for the jury adequately to handle alone, the burden of such a showing is considerably increased and it will indeed be a rare case in which it can be met.But be that as it may, this is certainly not such a case. A jury, under proper instructions from the court, could readily determine the recovery, if any, to be had here, whether the theory finally settled upon is that of breach of contract, that of trademark infringement, or any combination of the two. The legal remedy cannot be characterized as inadequate merely because the measure of damages may necessitate a look into petitioner's business records.


Dairy Queen dealt with remedies. What about defenses, as where defendant asserts that plaintiff delayed in asserting its rights? Two cases in the Second Circuit have dealt with this, both of which support a jury deciding the issue.

Defendants' estoppel claim fails, at least at the summary judgment stage. The copy of the manual attached to the grant application and those handed out at workshops contained a notice on the first page stating "[a]ny reproduction is prohibited unless permission is granted by the author" and identified Pavlica as the copyright owner. (Wulff Ex. C. at BW 7304). This notice creates a triable issue of fact whether defendants were "ignorant of the true facts." Additionally, plaintiff only alleges copying committed after he requested that defendants stop using the manual constitutes copyright infringement. Rather than conceding to his demands, defendants waited two years to create their own manual, thereby casting doubt on their claim that they detrimentally relied on Pavlica's conduct. From these facts, a reasonable jury could find that plaintiff is not estopped from asserting his rights.

In Bourne v. Walt Disney Co., 68 F3d 621, 633 (2d Cir. 1995), there was a jury trial. Estoppel was asserted as a defense; the jury considered it and rejected it. Disney moved for a new trial, which the court of appeals rejected:

Disney's principal contention on its cross-appeal is that the district court should have entered judgment as a matter of law on its affirmative defense of estoppel. Judgment as a matter of law cannot be granted on an issue if "there is [a] legally sufficient evidentiary basis for a reasonable jury to find" to the contrary. See Fed.R.Civ.P. 50. Our review of the record persuades us that a reasonable trier of fact could have found that Disney had not relied detrimentally on Bourne's conduct. See General Elec. Capital Corp. v. Armadora, S.A., 37 F.3d 41, 45 (2d Cir.1994). In particular, we note that Disney continued to obtain licenses from Bourne for the use of the Compositions in television advertisements during the 1970s and mid-1980s, and that Disney's paid television advertisements were infrequent up and through this time period. While Disney certainly provided strong evidence of estoppel, we believe that the jury was entitled to decide this issue in favor of Bourne .

The point of Bourne is not that Dsney lost, but that the issue was presented to and considered by a jury. The other opinion is by Judge Chin, Pavlica v. Behr, 397 F. Supp.2d 519, 527 (S.D.N.Y. 2005)(Chin,J), in which he denied a motion for summary judgment on the question of estoppel:

Defendants' estoppel claim fails, at least at the summary judgment stage. The copy of the manual attached to the grant application and those handed out at workshops contained a notice on the first page stating "[a]ny reproduction is prohibited unless permission is granted by the author" and identified Pavlica as the copyright owner. (Wulff Ex. C. at BW 7304). This notice creates a triable issue of fact whether defendants were "ignorant of the true facts." Additionally, plaintiff only alleges copying committed after he requested that defendants stop using the manual constitutes copyright infringement. Rather than conceding to his demands, defendants waited two years to create their own manual, thereby casting doubt on their claim that they detrimentally relied on Pavlica's conduct. From these facts, a reasonable jury could find that plaintiff is not estopped from asserting his rights.

Again, estoppel was treated as a jury issue, and properly so: many times, resolution of the merits of the defense turns on credibility issues, and those issues are par excellence one for a finder of fact, including a jury.