In affirming the jury verdict in Live v. Ventura, No. 1070736 (Ala. May 22, 2009), the Alabama Supreme Court reviewed the standard for a claim of waiver or estoppel concerning a party’s prior inconsistent position. “’Any sort of judicial estoppel or waiver in the context of a prior inconsistent argument is available only when an argument has been made by the parties involved and relied upon by the courts. See, e.g., Greene v. Jefferson County Comm’n, [Ms. 1070300, Nov. 14, 2008] ___ So. 3d ___ (Ala. 2008)(discussing judicial estoppel), and Darnall v. Hughes, [Ms. 2070349, Oct. 17, 2008] ___ So. 3d ___ (Ala. Civ. App. 2008)(discussing principles of equitable estoppel)’”. The Court also summarized the standard of review for a new trial following a jury verdict.
"’A jury’s verdict is presumed correct and will not be disturbed unless it is plainly erroneous or manifestly unjust. Crown Life Insurance Co. v. Smith, 657 So. 2d 821 (Ala. 1995). In addition, a judgment based upon a jury verdict and sustained by the denial of a postjudgment motion for a new trial will not be reversed unless it is plainly and palpably wrong. National Security Ins. Co. v. Donaldson, 664 So. 2d 871 (Ala. 1995). Because the jury returned a verdict for the Phelpses, any disputed questions of fact must be resolved in their favor, and we must presume that the jury drew from the facts any reasonable inferences necessary to support its verdict. State Farm Auto. Ins. Co. v. Morris, 612 So. 2d 440, 443 (Ala. 1993). In short, in reviewing a judgment based upon a jury verdict, this Court must review the record in a light most favorable to the appellee. Liberty National Life Ins. Co. v. McAllister, 675 So. 2d 1292 (Ala. 1995).’"
Id. (quoting Dempsey v. Phelps, 700 So. 2d 1340, 1342 (Ala. 1997)).