Swan

A party successfully opposes a summary judgment motion. He then moves for summary judgment based upon the same evidence used in the summary judgment motion he resisted. The rule of judicial estoppel does not apply against the party because he has not taken inconsistent positions, nor has he disrupted the orderly administration of justice.

Kitty-Anne Music Co., Inc. and Milton Delugg, president of Kitty-Anne Music Co., Inc., appeal a summary judgment in favor of Donald Swan. We affirm.

FACTS

A1 Stillman was a popular songwriter who wrote the lyrics to many popular songs that are still performed. In 1979, he died, and his widow Pauline inherited his music royalty rights. In 1982, she granted publisher’s royalty rights to Kitty-Anne in exchange for $300,000, plus payment of the “writer’s share” of future royalties on specified Stillman songs. The 1982 agreement required Kitty-Anne to “keep complete and accurate books and records” regarding the royalties and to allow Stillman and her successors “to audit and inspect such books and records” upon reasonable notice. The agreement also required Kitty-Anne to protect and enforce the Stillman royalty rights by appropriate means,…