dissenting, with whom URBIGKIT, Justice, joins.
I must dissent from the disposition of this case according to the majority opinion. This is not a case in which the Production Credit Association of Midlands (PCAM) is entitled to prevail because of judicial estop-pel. I join in the dissenting opinion of Justice Urbigkit, and I add a proposition that has significance for me.
In my view, the majority opinion has held the law of judicial estoppel up to the mirror and read it backwards. Aided by more than a little smoke supplied by PCAM, the majority has performed a classic smoke and mirror trick, which has to amaze even the most perceptive observer. This court has said:
“ * * * Judicial estoppel denies the right to take inconsistent positions in subsequent litigation.” Texas West Oil Corp. v. First Interstate Bank of Casper, 743 P.2d 857, 866 (Wyo.1987).
“ * * * [T]he foregoing cases tend to show that such evidence may at times, in eases in which, as here, a man is successful in the position taken in the first proceeding, rise to the dignity of conclusiveness.” Hatten Realty Co. v. Baylies, 42 Wyo. 69, 93, 290 P. 561, 568, 72 A.L.R. 587, 599-600 (1930) (emphasis added).
The Hatten case was followed in Allen v. Allen, 550 P.2d 1137 (Wyo.1976). Other cases in which the doctrine of judicial es-toppel is discussed are in accord with the requirement that the inconsistent position be asserted in the second instance even though the court did allude to separate proceedings. In each of those cases, the estoppel was invoked in the second proceeding. Amfac Mechanical Supply Company v. Federer, 645 P.2d 73 (Wyo.1982); Snell v. Ruppert, 582 P.2d 916 (Wyo.1978); Gray v. Fitzhugh, 576 P.2d 88 (Wyo.1978).
It is clear from the discussion of the facts in the majority opinion that the Zwemers filed their answer and asserted their counterclaim in this state court action prior to the filing of their bankruptcy petition. The bankruptcy was the subsequent litigation in this instance. If the failure to mention the counterclaim in the B-2 schedule in the bankruptcy proceeding was inconsistent with the state court action, that was the occasion for PCAM to cry foul. PCAM did nothing in the bankruptcy court apparently preferring to reserve this contention until after the bankruptcy court had modified the automatic stay so that the state court litigation could go forward. There was no essential change in the state court action, or the issues presented in the counterclaim, after the bankruptcy stay was lifted other than the assertion of judicial estoppel and fraud by PCAM. In deciding the case in favor of PCAM, the trial court applied the doctrine of judicial estop-pel inversely, and this court has done the same thing in affirming.
The conclusion is ineluctable that judicial estoppel does not apply in this case because the Zwemers are being estopped from maintaining a position first asserted in the state court action due to what was probably nothing more than an inadvertent failure to include the counterclaim in the appropriate schedule in the second case, which is the bankruptcy proceeding. Justice depends upon more than smoke and mirrors. I would reverse the summary judgment in favor of PCAM and permit the Zwemers to try their case.