¶ 30. (dissenting). I respectfully dissent from the majority conclusion that the trial court erred in holding Gatzke & Ruppelt in contempt, in ordering Gatzke & Ruppelt to pay Feerick the arbitration award that it repeatedly represented to the court *484and counsel it had in its trust account, and in imposing various sanctions for contempt. Further, I see no reason to remand to the trial court and force Feerick to endure yet more delay while the court determines whether Matrix did, or did not, ever pay the money to Gatzke & Ruppelt. Whether the money was actually paid by Matrix in no way changes the undisputed fact that for nine months Gatzke & Ruppelt repeatedly represented to the court and Feerick that it had the money available in its trust account for payment to Feerick. Nor is it disputed that when ordered to pay the money to Feerick, Gatzke & Ruppelt changed its representation and denied that it then had, or had ever had, the funds. Gatzke & Ruppelt produced no trust account records to support the later representation, and did not claim to have actually reviewed the trust account until actually ordered to disburse the funds it claimed were contained there. The majority describes Gatzke & Ruppelt's conduct as "an unfortunate, yet honest and simple mistake." Majority, ¶ 29. For the reasons set forth below, I disagree and dissent from all of the majority's conclusions except their reversal of the $1000 per day sanction imposed by the trial court.
¶ 31. We determine de novo whether the elements of judicial estoppel exist. Olson v. Darlington Mutual Ins., 2006 WI App 204, ¶ 3, 296 Wis. 2d 716, 723 N.W.2d 713.
¶ 32. The majority engages in a lengthy, technical analysis of the term "judicial estoppel." Based upon that analysis, it concludes that the trial court erred by ordering Gatzke & Ruppelt to pay the money it had long represented it held in the firm trust account. In my view, that analysis misses the point of the trial court's decision, and does not respect the fundamental purpose of judicial estoppel. As the majority correctly observes, *485Majority, ¶ 16, "^Judicial estoppel is an equitable doctrine intended 'to prevent a litigant from "playing fast and loose with the courts"and the doctrine "is intended to protect the judiciary as an institution from the perversion of [its] machinery." Majority, ¶ 16. To the extent that in many cases relied upon by the majority, judicial estoppel has been discussed in the context of representations in separate causes of action,1 the term might seem to be inapposite here. To conclude, however, as the majority seems to do, that judicial estoppel cannot be applied when materially inconsistent representations of fact are made to the court and others by counsel at different times in the same case does not logically follow either from the purpose of the doctrine or the circumstances of the prior decisions. Cases relied upon by the majority also include cases where the disputed representation occurred in the same case.2
¶ 33. In one case relied upon by the majority, a litigant argued for one mixed factual/legal finding (e.g., that certain water was "navigable water") at the trial level, and for the opposite factual/legal finding (i.e., that *486the same water was not "navigable water") at the appellate level. Van Deurzen v. Yamaha Motor Corp., U.S.A., 2004 WI App 194, ¶ 1, 276 Wis. 2d 815, 688 N.W.2d 777 (such representations described as a "textbook example of judicial estoppel"). As we explained in Van Deurzen, when we refused to permit such inconsistent representations, "judicial estoppel has three identifiable boundaries: (1) the party's position is clearly inconsistent with his or her prior position; (2) the party to be estopped succeeded below in selling its position to the court; and (3) the facts at issue are the same." Id., ¶ 5.
¶ 34. The three elements we described in Van Deurzen are essentially a paraphrase of the test our supreme court set out in Salveson v. Douglas County, 2001 WI 100, ¶ 38, 245 Wis. 2d 497, 630 N.W.2d 182, when it dealt with a representation of physical disability in a state proceeding (knee injury suffered by a street paramedic), and a later claim in a federal complaint of sex discrimination based upon failure to receive a promotion. In discussing whether judicial estop-pel applied to these circumstances, the court held:
Three elements are required for a court to invoke the doctrine of judicial estoppel: (1) the later position must be clearly inconsistent with the earlier position; (2) the facts at issue should be the same in both cases; and (3) the party to be estopped must have convinced the first court to adopt its position.
Id. (citations omitted).
¶ 35. Applying the Salveson criteria to the facts in this case, the trial court could properly conclude that the elements of judicial estoppel had been met because: (1) Gatzke & Ruppelt's later position (that the money was never in the trust account) was clearly *487inconsistent with the earlier position (that the money was in the trust account); (2) whether Feerick was entitled to receive the money was the only disputed issue in the case from the beginning; while (3) the court found that not only Feerick but also the court accepted and relied upon Gatzke & Ruppelt's representations over a period of nine months that the money was in the firm trust account available for payment to Feerick.
¶ 36. In Van Deurzen, the party claimed a certain body of water was navigable water; here Gatzke & Ruppelt claimed that the arbitration award had been paid into the client trust account. In Van Deurzen, the trial court adopted the navigable water assertion and ruled in accord with that finding; here the trial court accepted Gatzke & Ruppelt's representation and ultimately ordered, specifically in accord with that representation, that the money must be paid by Gatzke & Ruppelt to Feerick from the trust account. In Van Deurzen, the same party later claimed (on appeal) that the same body of water was after all not navigable; here, Gatzke & Ruppelt later claimed (in defense of contempt) that the money was after all not in the trust account. To conclude, as the majority does, that our holding in Van Deurzen does not permit the trial court here to apply judicial estoppel to Gatzke & Ruppelt's completely inconsistent representations, accepted and acted upon by the trial court, is to hide in a jungle of procedural hedging the fundamental purpose of judicial estoppel — that is, to protect the courts from manipulation of the justice system by allowing a litigant, or worse, a lawyer, to make inconsistent representations with impunity.
¶ 37. We are to affirm a trial court in the exercise of discretionary acts if there is a basis in the record which supports the trial court's conclusion. In re *488Paternity of Jeremy D.L., 177 Wis. 2d 551, 559, 503 N.W.2d 275 (Ct. App. 1993) (An appellate court affirms if the trial court reached "a result that the evidence would sustain had a specific finding supporting that result been made."). There is ample support in the record for the trial court's discretionary decision to apply the equitable doctrine of judicial estoppel, and ample support to come to the same result by application of the statutory requirement that attorneys take reasonable steps to investigate the facts before representing to a court that those facts are true.
¶ 38. Lawyers, by signing pleadings or other documents presented to the court, are required to have performed sufficient inquiry under the circumstances to certify that the facts asserted have evidentiary support. The record here supports the conclusion that Gatzke & Ruppelt did not satisfy that requirement before representing to the trial court that the trust account contained the arbitration award funds. Wisconsin Stat. § 802.05(2), as applicable to. this case, provides:
(2) REPRESENTATIONS to COURT. By presenting to the court, whether by signing, filing, submitting, or later advocating a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following:
(c) The allegations and other factual contentions stated in the paper have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
*489¶ 39. Further, an attorney's failure to perform this due diligence inquiry can result in a variety of court-imposed sanctions under Wis. Stat. § 802.05(3), independent of any finding of contempt.
(3) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that sub. (2) has been violated, the court may impose an appropriate sanction upon the attorneys, law firms, or parties that have violated sub. (2) or are responsible for the violation in accordance with the following:
(a) How initiated
2. 'On court's initiative.' On its own initiative, the court may enter an order describing the specific conduct that appears to violate sub. (2) and directing an attorney, law firm, or party to show cause why it has not violated sub. (2) with the specific conduct described in the court's order.
(b) Nature of sanction; limitations. A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subds. 1. and 2., the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorney fees and other expenses incurred as a direct result of the violation subject to all of the following:
1. Monetary sanctions may not be awarded against a represented party for a violation of sub. (2) (b).
2. Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to *490show cause before a voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.
(c) Order. When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed.
¶ 40. Between April 29, 2005, when Gatzke & Ruppelt first wrote the letter asserting the arbitration award funds were in the firm trust account, and February 13, 2006, when Gatzke & Ruppelt took the opposite position and asserted that the funds had never been in the trust account, Gatzke & Ruppelt affirmatively and repeatedly represented that the full amount of the arbitration award was in the firm trust account. On April 29, 2005, Gatzke & Ruppelt wrote that Matrix had "deposited the amount of the award in the trust account of Gatzke & Ruppelt, S.C." On May 2, 2005, Feerick filed a complaint to enforce the arbitration award and attached as an exhibit Gatzke & Ruppelt's April 29 letter asserting possession of the funds in the trust account. On May 20, 2005, Gatzke & Ruppelt answered the complaint, making no challenge to the authenticity or accuracy of the letter attached to the complaint. On December 6, 2005, as part of the briefing scheduled for the motion to confirm the arbitration award, on the first page of "Defendant's Supplemental Brief," a Gatzke & Ruppelt attorney states: "Matrix, upon its objection to the arbitrator's original determination and clarification, placed the adjudged amount in a trust account at Gatzke & Ruppelt, S.C." (Emphasis added.) On December 9, 2005, Feerick again attached a copy of the April 29 letter as an exhibit to his supplemental brief. All of these documents are reviewed by *491the court for the December 19, 2005 hearing on confirmation of the arbitration award. Feerick asked the court to "confirm the award, grant our request for the release of the funds immediately from their trust account." (Emphasis added.) Counsel from Gatzke & Ruppelt, who had earlier filed the brief described above acknowledging deposit of the arbitration award funds in the trust account, said nothing to dispute the firm's possession of the funds. The transcript of that hearing indicates the Gatzke & Ruppelt attorney was present, but made no objection, when the court stated: "I'm granting Plaintiffs motion to confirm the arbitration and order the funds be released." (Emphasis added.) The trial court told Feerick's counsel to draft an order "under the five-day rule." On that same day, December 19, 2005, a proposed order was served upon Gatzke & Ruppelt by fax and mailed to the court. The order required payment of a specific sum and directed that "Gatzke & Ruppelt S.C. shall immediately release funds held in trust for the entire money judgment amount." (Emphasis added.) The trial court signed the order on January 6, 2006. In the nineteen days between the day when the order was faxed and the day the court signed the order, Gatzke & Ruppelt did nothing to tell the court the money was not in the trust account. When Gatzke & Ruppelt did not pay the award, Feerick moved, on February 2, 2006, for a finding of contempt. Still, Gatzke & Ruppelt made no attempt to advise the trial court that the money was not in the firm trust account. At the contempt hearing on February 13, 2006, for the first time, Gatzke asserted by affidavit that the money was not in the trust account and that the prior representations had all been a mistake. Gatzke did not personally appear at the contempt hearing, did not provide copies of the firm trust account records to *492support the new assertion, and did not file a written argument in support of the reasonableness of the "mistake" now claimed. Indeed, conspicuous by their absence are documents that should easily establish the condition of Gatzke & Ruppelt's trust account from the beginning of the representations through the court order.
¶ 41. On each of the occasions when Gatzke & Ruppelt said the funds were in the firm trust account, the lawyer making the representation was required by Wis. Stat. § 802.05 to have made reasonable inquiry to determine that the fact represented had reasonable evidentiary support. For an attorney in a firm to verify the balance in a client trust account should be one of the simplest, and most important, tasks routinely performed. If the funds were never in Gatzke & Ruppelt's trust account, perhaps reasonable inquiry was never made. If the funds were in the account at one time, and later disbursed, reasonable inquiry as to the status of the trust account should have disclosed the change and modified the representation accordingly. Even when a proposed order for disbursal of the funds was sent to Gatzke & Ruppelt for approval, Gatzke & Ruppelt does not claim to have made any effort to verify the money was in the trust account.
¶ 42. The majority's characterization of this sordid sequence of significant misrepresentation by one or more members of the bar as "an unfortunate, yet honest and simple mistake" by Gatzke & Ruppelt, Majority, ¶ 29, seems to me to be a tortured reading of the record. The representations mattered. They went on for nine months with no effort to verify the facts, when the facts could easily have been verified. When one representation was dropped, and its opposite adopted, two different explanations were offered. First, in the con*493tempt hearing, the Gatzke affidavit, and those of the two former associates, said there was a misunderstanding of an oral communication. Later, on Gatzke & Ruppelt's motion to reconsider, new counsel for Gatzke & Ruppelt made repeated reference to an "internal memorandum" which was alleged to be in counsel's possession, had not been disclosed to opposing counsel and was not shared with the court. A specific refusal to produce what is claimed to be evidence supporting one’s innocence of contempt is, to say the least, a bizarre legal and strategic approach. Such stratagem certainly does not suggest "an unfortunate, yet honest and simple mistake."
¶ 43. The court expressed concern, perhaps dismay, that nine months had passed without any attorney actually verifying the Matrix balance in the trust account, while at the same time continuing to represent to both the court and counsel that the money was safe and available. Without specifically referencing Wxs. Stat. § 802.05, the trial court's findings and analysis applied its principles:
There is no evidence of what steps, if any - I suspect none - were taken that Counsel took to ensure the representation [Counsel] made was accurate.
Counsel took no steps to verify [the April 2005, letter's] accuracy. [Counsel] is a partner in the firm. There is no question [Counsel] has access to information in the trust account.
[W]hen one makes a representation as to an important fact, they have some obligation to ensure it is accurate.
*494But given the representation and the multiple times it was repeated, there's clear opportunity to object to the representation if indeed was not true; and yet, no objection was made.
That is not sufficient. Checking the trust account is not onerous. At some point, [Counsel] had an obligation to verify....
[Counsel] either made the representation knowing it was false ... or made the representation without verifying the truth or falsity of the representation; and given the easy access to that information, [Counsel] acted in reckless disregard of the truth, and that should not be condoned.
[T]here is no evidence... what I think is really very, very troubling - no evidence that [Counsel] checked the trust account at any time to see if the statement [Counsel] made that was important - 22,000 is important - was correct.
¶ 44. Wisconsin Stat. § 802.05 does not allow an attorney a "good faith" defense of reliance solely on a statement from a client; rather the statute imposes an affirmative duty of reasonable inquiry before making a factual representation in a court proceeding. Riley v. Isaacson, 156 Wis. 2d 249, 259, 456 N.W.2d 619 (Ct. App. 1990). In determining the reasonableness of an attorney's inquiry, a court must consider: (1) "the amount of time the attorney had to investigate the claims"; (2) "the extent to which the attorney had to rely on the client for the underlying facts"; (3) "whether the case was accepted from another attorney;" (4) "the complexity of the facts"; and (5) "whether discovery would benefit the factual record." Belich v. Szymaszek, *495224 Wis. 2d 419, 430-31, 592 N.W.2d 254 (Ct. App. 1999). At minimum, some affirmative investigation is required. Id. at 432.
¶ 45. The record contains not a scintilla of evidence that Gatzke & Ruppelt actually verified the status of the Matrix trust account balance before representing to the court and opposing counsel that the arbitration award was in the trust account. Further, the record is similarly devoid of even a hint that the account balance was checked before the representations continued, and Gatzke & Ruppelt's letter making that representation was included repeatedly in pleadings in this case. The failure to check easily verifiable facts is a violation of an attorney's obligation of due diligence under Wis. Stat. § 802.05(2)(c). Sanctions can properly be imposed for such violations. Here, the sanction of requiring the law firm to make good on its representation by paying the money it claimed it had, can reasonably be said to be necessary "to deter repetition of such conduct or comparable conduct by others similarly situated." The same can be said for the court's decision to award the attorney fees incurred by Feerick in the proceedings that finally brought the misrepresentation to light. All are within the trial court's discretion, and there is ample evidence in the record to sustain the exercise of that discretion. See Wis. Stat. § 802.05(3)(b).
¶ 46. In analyzing the contempt motion,3 the court discussed the sequence of events leading to its contempt finding:
*496[Counsel] got the order. The order was you release [the arbitration award funds] from the trust fund. [Counsel] made no objection to the order; no objection, not even within five days, not even after the Court signed the order, not until the plaintiff had to come to court and bring a motion for contempt and then not until the day of the motion.
I find it ironic Counsel for [Gatzke & Ruppeit] now wants to place the funds in his trust account for payment to the court. That offer demonstrates the reliance the plaintiff had, the rebanee that the funds are there and any delay would not impair the ability to collect.
There was a representation. There was reliance on that representation. The plaintiff relied on it to his detriment.
[Gatzke & Ruppeit] say now the representation was not true. Plaintiff has had to bring the motion for contempt; and on this record, it's not disputed Plaintiff is entitled to the amount awarded by the arbitrator and confirmed by this court....
*497The only question is whether [Gatzke & Ruppelt] must pay it or Defendant Matrix. There is no reason for further delay while that dispute is resolved.
¶ 47. The trial court followed the correct procedure prior to finding Gatzke & Ruppelt in contempt. The court need not determine whether Matrix did, or did not, pay the award into the client trust account in order to justify finding Gatzke & Ruppelt in contempt. As discussed above, Gatzke & Ruppelt (not Matrix) led the court to believe certain facts were true (that the arbitration award funds were in the trust account), then Gatzke & Ruppelt (not Matrix) asserted the facts were not true (Gatzke & Ruppelt's claim that the firm did not have and never had the funds). Gatzke & Ruppelt (not Matrix) refused to comply with the court's order.
¶ 48. Having found that Gatzke & Ruppelt made no timely objection to the court order of December 6, 2005, directing the firm to pay the arbitration award to Feerick, and further having found that Gatzke & Rup-pelt did not pay the award to Feerick, the court had a factual and legal basis upon which to exercise its discretion and find Gatzke & Ruppelt in contempt under the provisions of Wis. Stat. §§ 785.02-04. It also had the authority under Wis. Stat. §§ 785.03(1) and 785.04(1) to order payment of the arbitration award (which purged the contempt) and Feerick's attorney fees under § 785.04 to make Feerick whole.
¶ 49. However, the additional sanction of $1000 per day until paid which the court imposed appears to be punitive and beyond the authority of the court in these circumstances. Wisconsin Stat. § 785.03(l)(b) only permits punitive sanctions to be requested by the district attorney, attorney general or special prosecutor. *498Such sanctions are described in terms of a fine or imprisonment. Because the penalty of $1000 per day was, at its essence, an advance punishment for anticipated future non-compliance with the court order to pay the arbitration award and attorney fees, it was a punitive sanction, and thus beyond the trial court's power under the present circumstances. Because the record also does not establish a basis under Wis. Stat. § 802.05(3) for that punitive sanction, I would join the majority in reversing that portion of the sanction.
¶ 50. The record does not establish whether Feer-ick has yet received the funds to which he became entitled in 2005 as a result of the arbitration award. In my view, it would be unconscionable to further delay payment to Feerick if he has not received the funds the trial court ordered. There is no reason in the pending action to further involve Feerick or to further delay payment to him of the amounts already ordered by the trial court. Any determination as to whether Gatzke & Ruppelt received the sum from Matrix with which to pay the arbitration award is, in my view, a matter between Matrix and Gatzke & Ruppelt, the resolution of which does not involve Feerick and should not require Feerick to participate in further litigation. Any dispute between Gatzke & Ruppelt and Matrix should be resolved between them in separate proceedings.
¶ 51. For all the reasons set forth above, I respectfully dissent from all of the majority's conclusions except imposition of the punitive sanction of $1000 per day until the order of January 6, 2006, was paid. I join the majority in reversing imposition of that sanction.
Harrison v. LIRC, 187 Wis. 2d 491, 496, 523 N.W.2d 138 (Ct. App. 1994), (sworn statements in age discrimination case in Wisconsin and federal disability cases); State v. Petty, 201 Wis. 2d 337, 343, 548 N.W.2d 817 (1996) (state and federal charges for delivery of cocaine); Salveson v. Douglas County, 2001 WI 100, ¶¶ 38-42, 245 Wis. 2d 497, 630 N.W.2d 182 (duty disability claim and claim for lost wages because of sexual harassment).
State v. Michels, 141 Wis. 2d 81, 97, 414 N.W.2d 311 (Ct. App. 1987) (judicial estoppel applied where argument on appeal inconsistent with argument made at trial court); State v. English-Lancaster, 2002 WI App 74, ¶ 22, 252 Wis. 2d 388, 642 N.W.2d 627, (judicial estoppel bars complaint on appeal about cautionary instruction requested and received at trial court).
See Wis. Stat. § 785.03 which states, in relevant part:
(1) Nonsummary procedure, (a) Remedial sanction. A person aggrieved by a contempt of court may seek imposition of a remedial sanction for the contempt by filing a motion for that purpose in the proceeding to which the contempt is related. The court, after notice and hearing, may impose a remedial sanction authorized by this chapter.
*496(b) Punitive sanction. The district attorney of a county, the attorney general or a special prosecutor appointed by the court-may seek the imposition of a punitive sanction by issuing a complaint charging a person with contempt of court and reciting the sanction sought to be imposed. The district attorney, attorney general or special prosecutor may issue the complaint on his or her own initiative or on the request of a party to an action or proceeding in a court or of the judge presiding in an action or proceeding. The complaint shall be processed under chs. 967 to 973. If the contempt alleged involves disrespect to or criticism of ajudge, that judge is disqualified from presiding at the trial of the contempt unless the person charged consents to the judge presiding at the trial.