Still v. We Fidlty Ins Co, et al

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-10063
In The Matter Of: WESTERN FIDELITY MARKETING, INC; WESTERN
FIDELITY FINANCIAL CORP
Debtors.
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GARY R STILL,
Appellant,
VERSUS
WESTERN FIDELITY MARKETING, INC; WESTERN FIDELITY FINANCIAL CORP,
Appellees.
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No. 00-10218
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In the Matter of: JMJ FINANCIAL CORP
Debtor
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GARY R STILL
Appellant
VERSUS
WESTERN FIDELITY INSURANCE CO; WESTERN FIDELITY MARKETING, INC;
WESTERN FIDELITY HOLDING CO, INC; JMJ FINANCIAL CORP; ESTATE OF
ERICSON BERG
Appellees.
Appeals from the United States District Court
for the Northern District of Texas

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*District Judge of the Eastern District of Texas, sitting by
designation.
ON PETITION FOR REHEARING AND REHEARING EN BANC
April 12, 2001
(Opinion 2/15/01, 5th Cir. _______, _______ F.3d _______ )
Before DUHÉ and PARKER, Circuit Judges and FOLSOM*, District Judge.
PER CURIAM:
Western Fidelity Marketing, Inc. petitions for rehearing and
rehearing en banc, arguing that we must address the validity of the
district court’s application of judicial estoppel.
Our opinion assumes that the district court was correct on
judicial estoppel and holds that the district court was correct on
equitable estoppel, then concludes (as clarified by footnote 3 in
the substituted opinion) that neither type of estoppel can be
employed to destroy Still’s causes of action that are unrelated to
the subject matter of his representations to the IRS in the offer
of compromise. An additional holding that judicial estoppel was or
was not correctly applied would be dicta – unnecessary and ill
advised given the difficulty of that question that no party briefed
or argued in this case.
We therefore vacate the original opinion, substitute the
attached opinion and DENY the Petition for Rehearing.
No member of this panel nor judge in regular active service on
the court having requested that the court be polled on Rehearing En

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Banc (FED.R.APP.P and 5TH CIR. R. 35) the Petition for Rehearing En
Banc is also DENIED.

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