Robb, J.
Case Summary and Issues
Following an accident between two semi-tractor trailers, a lawsuit commenced between the two drivers, Julian Hayes (“Hayes”) and William R. Harr, and Harr’s employer, Finster Courier, Inc., d/b/a/ Elite Express (collectively, “Defendants”). The Defendants attempted to remove the case to federal court contending the parties were citizens of different states and that the amount in controversy exceeded $75,000. Hayes objected to removal, arguing such action was premature and that the amount in controversy did not exceed $75,000. The district court determined it lacked subject matter jurisdiction and remanded the case to state court. Following a jury verdict in state court of $187,500 in favor of Hayes, the Defendants filed a motion to correct error and asked the trial court to modify the judgment to $75,000 based on the doctrines of judicial estoppel, waiver, and judicial admission. The trial court denied the Defendants’ motion and the Defendants now appeal, raising the sole issue of whether the trial court erred in denying their motion to correct error. Hayes cross-appeals, arguing the appeal is frivolous and requesting attorneys’ fees. Concluding the trial court did not err in denying the Defendants’ motion to correct error and that Hayes is not entitled to attorneys’ fees, we affirm.
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Defendants allege that trial court erred in denying their motion to correct error and failing to modify the verdict entered by the jury to $75,000 under the doctrine of judicial estoppel.
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In turn, Hayes argues judicial estoppel is inapplicable for four reasons: (1) Hayes’ motion to remand in federal court was not a pleading; (2) Hayes did not repudiate an earlier position; (3) the removal action was not part of the proceeding before the state trial court; and, (4) that at the time of removal, Hayes’ statement of the amount in controversy was not a material misrepresentation.
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Concluding Hayes did not intentionally misrepresent the amount in controversy and that the district court did not act upon such representation, we therefore decline to apply the doctrine of judicial estoppel to the facts before us.
C. Waiver
Next, Defendants argue the trial court erred in denying their motion to correct error to modify the judgment to $75,000 under the doctrine of waiver. We disagree.
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As discussed in the context of judicial estoppel, it is a defendant’s burden to establish the amount in controversy at the time of removal. Gould, 1 F.3d at 547. Although we have no doubt that a plaintiff is entitled to waive his or her right to recover more than the minimum amount in controversy, In Re Brand Name Prescription Drugs Antitrust Litig., 123 F.3d 599, 607 (7th Cir. 1997), such waiver must occur prior to removal, In Re Shell Oil Co., 970 F.2d 355, 356 (7th Cir. 1992). Here, Hayes’ representations were made after the Defendants had removed the case and due to the context of Hayes’ argument regarding the Defendants’ failure to meet their burden and removal being premature, we are not convinced that Hayes intended to relinquish a known right.
D. Judicial Admission
Finally, Defendants argue the trial court erred in denying their motion to correct error to modify the judgment to $75,000 under the doctrine of judicial admission. Again, we disagree.
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Defendants allege Hayes made a judicial admission where he repeatedly stated the amount in controversy did not exceed $75,000, while Hayes contends his argument was in the context of “then-existing facts” and that he never admitted that the “value of the case could never exceed $75,000.” Br. of Appellees at 24. As we explained in Heyser v. Noble Roman’s Inc., “A statement which contains ambiguities or doubt is not to be regarded as a binding admission.” 933 N.E.2d 16, 19 (Ind. Ct. App. 2010), trans. denied. Due to the context of Hayes’ argument regarding the Defendants’ failure to meet their burden and removal being premature, we conclude Hayes’ statement contains an ambiguity and cannot therefore be regarded as a binding judicial admission.
Quite simply, the Defendants failed to meet their burden of proof before the district court and then attempted to cap Hayes’ damages because of it. We therefore conclude the trial court did not err in denying the Defendants’ motion to correct error.
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Conclusion
For the reasons set forth above, we conclude the doctrines of judicial estoppel, waiver, and/or judicial admission are inapplicable on the facts before us. We therefore affirm the judgment of the trial court and deny Hayes’ request for appellate attorneys’ fees.
Affirmed.
Najam, J., and Altice, J., concur.