author: WALLER, Presiding Justice, for the Court. GRAVES, Justice,

text:
    Mike KIRK v. Randy POPE and Dixieland Forest Products, Inc.
    No. 2005-CA-02164-SCT.
    Supreme Court of Mississippi.
    Dec. 6, 2007.

      W. Eric Stracener, W. Andrew Neely, Jackson, attorneys for appellant.
    Cynthia A. Stewart, Edward J. Peters, Jackson, Eileen N. Shaffer, attorneys for appellees.
   WALLER, Presiding Justice, for the Court.

¶ 1. This appeal is taken from the Circuit Court of the First Judicial District of Hinds County’s entry of a final judgment dismissing Plaintiff Mike Kirk’s claims against Defendants Randy Pope and Dixieland Forest Products, Inc. Because we find that the circuit court erred in vacating the final judgment and dismissing Kirk’s claims, and because the remittitur was not accepted by both parties as required under our recent opinion in Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900, 908 (Miss. 2007), we reverse the judgment of dismissal and remand the case to allow Pope the opportunity either to accept the remittitur or to have a new trial on the issue of damages only. On remand, all judgment proceeds are to be distributed to Kirk’s bankruptcy estate, and judicial estoppel is to apply to Kirk, individually.

FACTS

¶ 2. On February 5, 1996, Mike Kirk filed a breach-of-contract action against Randy Pope and Dixieland Forest Products, Inc. (Dixieland) in the Circuit Court of the First Judicial District of Hinds County. Kirk was represented by attorney David Baria, and Pope was represented by attorney Leonard Melvin. On August 27, 1998, Kirk filed a Chapter 7 bankruptcy petition in United States Bankruptcy Court. Derek A. Henderson was appointed the Chapter 7 trustee. Kirk did not disclose the existence of his lawsuit against Pope and Dixieland in the bankruptcy proceedings. On December 30, 1998, the bankruptcy case was closed, and Kirk was discharged.

¶3. Approximately four years after his discharge from bankruptcy, Kirk’s breach of contract case was tried. The jury returned a verdict of $700,000 in favor of Kirk on October 18, 2002. The final judgment was entered on October 28, 2002.

¶ 4. On October 25, 2002, the Bankruptcy Court entered an Order Reopening the Bankruptcy Case. Pope later discharged Leonard Melvin and obtained new counsel, Edward J. Peters and Cynthia Stewart. On November 25, 2002, Pope filed a notice of removal to the United States District Court for the Southern District of Mississippi on the basis that the action related to the bankruptcy estate. On January 28, 2003, the bankruptcy court entered an order approving a motion to employ David Baria as the trustee’s special counsel and approving a contingency fee agreement. On June 24, 2003, the federal court remanded the case to Hinds County because the case already had been tried on the merits, and Kirk’s counsel had been appointed as the trustee’s representative to pursue the cause of action.

¶5. On November 19, 2003, the trial court granted a remittitur and reduced the judgment to $400,000, which Kirk accepted. On November 25, 2003, Pope filed a Motion for Reconsideration and for Stay of Judgment, which was set for hearing on December 12, 2003, apparently by ex parte order of the trial court, which also stayed all matters. On December 1, 2003, the trial court entered another order granting Kirk additional time to respond to the motion, enjoining Kirk from executing on the judgment, and enjoining Pope from divesting any assets until the motion was heard. On December 9, 2003, the trial court entered an agreed order continuing the hearing on the motion for reconsideration and motion for stay of judgment until February 6, 2004, and continuing the injunctions on both parties. Prior to the hearing on February 6, 2004, Pope advised the trial court that there would be no hearing, as both parties were negotiating a settlement of the judgment. During this time, neither party submitted an order or requested that the trial court reschedule a hearing regarding Pope’s Motion for Reconsideration.

¶ 6. Pope filed a legal-malpractice action against Melvin arising from previous representation in the instant case and executed a contingency-fee agreement with his new counsel, Peters and Stewart. Pope and Melvin settled the malpractice action for $275,000 on April 20, 2005. On May 5, 2005, Kirk filed a motion for contempt and for an injunction to freeze Pope’s assets. That same day, Pope filed a motion asking the court to clarify the December 9, 2003, order, and admitting that Pope had disbursed the proceeds from the malpractice settlement and sold at least one asset.

¶ 7. On May 17, 2005, the trial court entered an order declaring that neither party had requested a continuance of the injunction beyond February 6, 2004, and that it assumed the parties had reached a settlement, but reserved ruling on the issue of whether the December 11, 2003, order extended the injunction beyond February 6, 2004, until a hearing on the record scheduled for June 17, 2005. In the interim, the trial court enjoined the parties from executing on the judgment and from disposing of any assets. On May 24, 2005, the trial court entered an order denying Pope’s Motion for Reconsideration and for Stay of Judgment and lifting the injunctions.

¶ 8. On September 14, 2005, Pope filed, in accordance with Rule 60(b) of the Mississippi Rules of Civil Procedure, a Motion for Relief from Judgment, asserting that Kirk was judicially estopped from pursuing his claims against Pope. Thereafter, the trial court vacated the final judgment by memorandum opinion and order on October 17, 2005, finding that Kirk’s failure to disclose this case to the bankruptcy court effectively stripped Kirk of standing to pursue his claims against Pope. The trial court further found that it lacked jurisdiction over the case and dismissed the final judgment. The final judgment of dismissal was entered on November 4, 2005. Kirk’s post-trial motions were denied and he filed this appeal.

STANDARD OF REVIEW

¶ 9. Issue I concerns a trial court’s decision on a Rule 60(b) motion, which is subject to review under an abuse of discretion standard. Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888, 892 (Miss.2006) (citing M.A.S. v. Mississippi Dep’t of Human Services, 842 So.2d 527, 530 (Miss.2003)). While deference is given to the trial judge, consideration of a Rule 60(b) motion also requires that a balance be struck between granting a party a hearing on the merits and the need to achieve finality. Id. (citing Lose v. Illinois Cent. Gulf R.R., 584 So.2d 1284, 1286 (Miss.1991)). Furthermore, “[a]n abuse of discretion standard does not mean a mistake of law is beyond appellate correction,” because a court abuses its discretion when it makes an error of law. Browning Mfg. v. Mims, 179 F.3d 197, 205 (5th Cir.1999) (quoting Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996), superseded by statute, Pub.L. No. 108-21, 117 Stat. 670).

¶ 10. Issue II regards standing, which is a question of law reviewed under a de novo standard. See City of Picayune v. Southern Reg’l Corp., 916 So.2d 510, 519 (Miss.2005) (citing Brown v. Mississippi Dep’t of Human Services, 806 So.2d 1004, 1005-06 (Miss.2000)).

¶ 11. Issue III concerns a trial court’s imposition of judicial estoppel, which is subject to review under an abuse of discretion standard. Superior Crew-boats, Inc. v. Primary P & I Underwriters, 374 F.3d 330, 334 (5th Cir.2004) (citing Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th Cir.2003)).

¶ 12. Issue IV concerns the remittitur granted by the trial court. While the subject case was pending appeal, this Court decided Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900 (Miss.2007). In De-deaux, we overruled prior case law and held that a remittitur takes effect only if it is accepted by all parties. Dedeaux, 947 So.2d at 908. Under Dedeaux, if all parties do not agree to the remittitur “then each party shall have the right to either demand a new trial on damages, or appeal the order asserting an abuse of discretion on the part of the trial judge.” Id.

¶ 13. Under Rule 28(a)(3) of the Mississippi Rules of Appellate Procedure, “the Court may, at its option, notice a plain error not identified or distinctly specified.” M.R.A.P. 28(a)(3). Plain-error review is appropriate where there has been an intervening change in the law while a case is on appeal. United States v. Williamson, 183 F.3d 458, 464 (5th Cir.1999) (quoting Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 1548-49, 137 L.Ed.2d 718 (1997)). Plain-error review may be invoked where (1) a party has failed to preserve an error for appellate review and (2) a substantial right is affected. State Highway Comm’n of Miss. v. Hyman, 592 So.2d 952, 957 (Miss.1991). This Court has stated that a monetary interest is a substantial right. Id.; Miss. Mun. Liab. Plan v. Jordan, 863 So.2d 934, 941 (Miss. 2003). Because the remittitur in this case affects a substantial right — specifically, a $400,000 judgment — plain-error review is appropriate.

DISCUSSION

I. Whether Pope’s 60(b) Motion for Relief from Judgment was timely.

¶ 14. Kirk asserts that Pope’s 60(b) motion was not filed “within a reasonable time” from October 28, 2002, or from November 19, 2003 — the dates on which the final judgment and remittitur were entered, respectively. Kirk contends that the trial court erred in calculating the time from the May 24, 2005, order denying reconsideration, because Pope did not seek relief from that specific order and relief from that order would not have relieved Pope from the judgment.

¶ 15. Pope filed a Motion for Relief from Judgment on September 14, 2005, and asked the trial court to vacate the October 28, 2002, judgment pursuant to Mississippi Rule of Civil Procedure 60(b)(1), (4) and (6). Under Rule 60(b), a court may relieve a party from a “final judgment, order, or proceeding” when “(4) the judgment is void” or for “(6) any other reason justifying relief from the judgment.” Miss. R. Civ. P. 60(b)(4), (6). A motion pursuant to Rule 60(b)(4) or (6) must be made “within a reasonable time.” Miss. R. Civ. P. 60(b).

¶ 16. Rule 60(b) is an extraordinary remedy and “is not an escape hatch for lawyers and litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies.” Bruce v. Bruce, 587 So.2d 898, 904 (Miss.1991). Accordingly, a litigant should pursue other available remedies before requesting relief under Rule 60(b).

¶ 17. On November 5, 2002 — eight days after the entry of final judgment — Pope filed a Motion for Judgment Notwithstanding the Verdict, or in the Alternative, for a New Trial. Pope’s motion alleged errors in the denial of jury instructions, ineffective assistance of counsel, and error in allowing perjured testimony regarding Kirk’s bankruptcy. The motion also incorporated by reference every objection made during trial and pre-trial motions. On November 19, 2003, the trial court overruled Pope’s Motion for Judgment Notwithstanding the Verdict and for New Trial. Subsequently, on November 25, 2003, Pope filed a Motion for Reconsideration and requested a stay of judgment. It was not until May 24, 2005, that the trial court entered an order denying Pope’s Motion for Reconsideration and lifting all injunctions. Pope then filed his Motion for Relief from Judgment pursuant to Rule 60(b) on September 14, 2005.

¶ 18. Pope properly pursued all other remedies prior to requesting the exceptional relief afforded under Rule 60(b). While both parties had chosen not to proceed any further on all motions pending at the time of the May 24, 2005, order, a Rule 60(b) motion “proceed[s] on the assumption that the trial court has entered a valid and enforceable judgment which has become final.” Id. Pope resorted to filing his Rule 60(b) Motion for Relief from Judgment only after the trial court’s May 24, 2005, order in which his post-trial motions were denied and the final judgment became fully enforceable. Accordingly, the trial court correctly calculated the “reasonable time” period from the May 24, 2005, order.

¶ 19. The trial court ultimately granted Pope’s Motion for Relief from Judgment pursuant to Rule 60(b)(4), holding the final judgment “null and void.” While a Rule 60(b)(4) motion must be made “within a reasonable time,” federal authority has interpreted this to mean that there is no effective time limit. Overbey v. Murray, 569 So.2d 303, 306 (Miss.1990) (citing 7 J. Moore & J. Lucas, Moore’s Federal Practice, ¶ 60.25[4] 2d ed.1987). The rationale for having no effective time limit for a Rule 60(b)(4) motion is that “no amount of time or delay may cure a void judgment.” Id. Even so, Pope filed his 60(b) motion approximately four months after the court’s May 24, 2005, order — well within the six-month time frame applicable to other provisions under Rule 60(b). See Miss. R. Civ. P. 60(b). Accordingly, we find that the trial judge did not abuse his discretion in finding that the 60(b) motion was timely.

II. Whether the circuit court erred in finding that because Kirk was no longer the real party in interest when he filed his bankruptcy petition, he lacked standing to pursue the claim.

¶ 20. Kirk asserts that the trial court failed to recognize the distinction between standing and real party in interest. Kirk argues that the simple fact that a party no longer is the real party in interest does not necessarily cause that party to lose standing in the traditional, jurisdictional sense.

A. Real party in interest.

¶ 21. A real-party-in-interest defense must be timely and may be waived if tardily asserted. Gogolin & Stelter v. Kam’s Auto Imports, Inc., 886 F.2d 100, 102 (5th Cir.1989); see also Rogers v. Samedan Oil Corp., 308 F.3d 477, 483-84 (5th Cir.2002) (failure to raise the assertion that plaintiff was not the real party in interest until day before trial constituted waiver); United Healthcare Corp. v. American Trade Ins. Co., 88 F.3d 563, 569 (8th Cir.1996) (assertion at pretrial conference constituted waiver); Hefley v. Jones, 687 F.2d 1388, 1388 (10th Cir.1982) (assertion sixteen days before trial is untimely). Because the earliest Pope alluded to a possible real-party-in-interest defense was after jury selection and just prior to the start of the trial, we find that Pope waived any real-party-in-interest defense.

B. Standing.

¶ 22. While Pope waived any real-party-in-interest defense, standing is a “jurisdictional issue which may be raised by any party or the Court at any time.” City of Madison v. Bryan, 763 So.2d 162, 166 (Miss.2000) (citing Williams v. Stevens, 390 So.2d 1012, 1014 (Miss.1980)).

¶23. To have standing, this Court has stated, “there must be a present, existent actionable title or interest which must be completed at the time the cause of action is filed.” Id. at 165 (quoting Crawford Commercial Constructors, Inc. v. Marine Indus. Residential Insulation, Inc., 437 So.2d 15, 16 (Miss.1983)). Kirk had a valid cause of action for breach of contract when he first filed suit and therefore initially had standing to pursue the claim. However, once Kirk filed his bankruptcy petition, he could have standing only if there was a proper ratification by the bankruptcy trustee.

¶ 24. A debtor’s cause of action that existed at the time of the filing of the bankruptcy petition is property of the bankruptcy estate. Pruitt v. Hancock Med. Ctr., 942 So.2d 797, 801 (Miss.2006) (quoting Lawrence v. Jackson Mack Sales, Inc., 837 F.Supp. 771, 779 (S.D.Miss.1992)). Property of the bankruptcy estate that is not abandoned and that is not administered in the bankruptcy proceeding remains property of the bankruptcy estate. 11 U.S.C. § 554(d). More specifically, the “[fjailure to list an interest on a bankruptcy schedule leaves that interest in the bankruptcy estate.” Pruitt, 942 So.2d at 802 (quoting Parker v. Wendy’s Int’l, Inc., 365 F.3d 1268,1272 (11th Cir.2004)).

¶ 25. When Kirk filed his bankruptcy petition on August 27, 1998, Kirk’s suit against Pope and Dixieland became property of the bankruptcy estate. See Pruitt, 942 So.2d at 801. Because Kirk’s claim is property of the bankruptcy estate, “the Trustee is the real party in interest with exclusive standing to assert” the claim. Wieburg v. GTE Southwest Inc., 212 F.3d 302, 306 (5th Cir.2001) (emphasis added); accord Pruitt, 942 So.2d at 802 (an unscheduled cause of action remains property of the bankruptcy estate with the bankruptcy trustee having “exclusive standing to assert the claim.”).

¶ 26. While Kirk lacked standing, in his own right, to pursue the claim, a trustee may confer standing by proper ratification. Wieburg, 272 F.3d at 307. A valid ratification requires the “ratifying party to authorize continuation of [the] action and agree to be bound by the result.” Jenkins v. Wright & Ferguson Funeral Home, 215 F.R.D. 518, 522 (S.D.Miss.2003) (quoting Wieburg, 272 F.3d at 307). A ratification also must satisfy the purpose of Rule 17(a), which is to assure that the judgment will be final and that res judicata will protect the defendant from having to defend a separate action. Id.

¶ 27. The Motion to Employ Special Counsel and Approve Contingency Agreement approved by the bankruptcy court stated that “[i]n order for the Trustee to effectively pursue the claim against [defendants], it is necessary of the Debtor to retain special counsel to pursue the claim on behalf of the bankruptcy estate.” This language authorizes continuation of the action on behalf of the bankruptcy estate and therefore meets the first requirement for a valid ratification. However, the agreement does not expressly state that the trustee will be bound by the result or that Pope and Dixieland will be protected from having to defend a later lawsuit. Typically, this would invalidate the ratification. Wieburg, 272 F.3d at 307 (ratification invalid because it did not give any assurance to the defendant that res judica-ta would protect the defendant from having to defend against later claims by the trustee).

¶ 28. Despite its deficiencies, the trustee’s Motion to Employ Special Counsel constitutes a valid ratification due to the status of the case at the time the bankruptcy court approved the motion. When the bankruptcy court approved the motion to employ special counsel on January 23, 2003, Kirk already had obtained a judgment on the suit. The trustee’s motion noted that a judgment already had been entered and, thus, implicitly agreed to be bound by the result. The trustee’s acceptance of the judgment also protected Pope and Dixieland from having to defend a later, separate lawsuit.

¶ 29. While ratification did not occur until after the judgment had been entered, the trial court retained jurisdiction to enter a valid judgment in the subject case. Standing is an aspect of subject matter jurisdiction. Breeden v. Kirkpatrick & Lockhart LLP (In re The Bennett Funding Group, Inc.), 336 F.3d 94, 102 (2d Cir.2003) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). The Fifth Circuit has stated that if subject matter jurisdiction exists among the original parties, it remains intact after substitution. Ransom v. Brennan, 437 F.2d 513, 516 (5th Cir.), cert, denied, 403 U.S. 904, 91 S.Ct. 2205, 29 L.Ed.2d 680 (1971). The rationale is that “[a] substituted party steps into the same position of the original party.” Id. Under Rule 17(a), ratification is given the same treatment as substitution — each has “the same effect as if the action had been commenced in the name of the real party in interest.” Miss. R. Civ. P. 17(a). Accordingly, the ratifying party “steps into the shoes” of the original party so that subject matter jurisdiction remains intact. Moreover, post-judgment ratifications have been deemed valid by other courts. See Knight v. New Farmers Nat’l Bank, No. 90-6071, 946 F.2d 895, 1991 WL 207056, 1991 U.S.App. LEXIS 24819, slip op. (6th Cir. Oct. 15, 1991); Arabian American Oil Co. v. Scarfone, 939 F.2d 1472, 1477 (11th Cir.1991); Sun Refining & Marketing Co. v. Goldstein Oil Co., 801 F.2d 343, 345 (8th Cir.1986).

¶ 30. Given that the ratification was valid, we must consider whether judicial estoppel applies.

III. Whether the circuit court erred in finding that judicial estoppel applied to Kirk.

¶31. Judicial estoppel is designed to protect the judicial system and applies where “intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” Browning Mfg. v. Mims, 179 F.3d 197, 205 (5th Cir. 1999) (quoting Scarano v. Central RR. Co., 203 F.2d 510, 513 (3d Cir.1953)). In order to protect the integrity of the judiciary, judicial estoppel “must be invoked in the Court in which the apparent self-serving contradiction occurred and in which the defense is first asserted.” In re Dewberry, 266 B.R. 916, 920 (Bankr.D.Ga.2001) (bankruptcy court determined that the district court had “exclusive jurisdiction” to impose judicial estoppel where the debtor had not listed the claim in his bankruptcy schedules).

¶ 32. The Fifth Circuit has stated three requirements for judicial estoppel: “(1) the party is judicially estopped only if its position is clearly inconsistent with the previous one; (2) the court must have accepted the previous position; and (3) the nondisclosure must not have been inadvertent.” Superior Crewboats, Inc., 374 F.3d at 335.

¶ 33. Under the first requirement, the trial court determined that Kirk took inconsistent positions by initially failing to list the lawsuit on his bankruptcy schedules and then pursuing the lawsuit after his discharge from bankruptcy. In Superior Crewboats, Inc., the Fifth Circuit found that the mere omission of a claim in bankruptcy filings is “tantamount to a representation that no such claim existed.” Superior Crewboats, Inc., 374 F.3d at 335 (citing Browning Mfg., 179 F.3d at 210). Accordingly, Kirk’s failure to list the lawsuit represented that no such suit existed and is inconsistent with his subsequent pursuit of the claim.

¶ 34. The trial court also found the second prong satisfied because the bankruptcy trustee and court relied upon Kirk’s schedules in granting his discharge from bankruptcy. Because the bankruptcy court could only have granted Kirk’s discharge based on the information before it, the court necessarily relied on the contents of Kirk’s schedules. Thus, the second prong also is satisfied.

¶ 35. Finally, the trial court found that Kirk’s non-disclosure of the lawsuit was not inadvertent. A debtor’s non-disclosure is “ ‘inadvertent’ only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.” Id. (quoting Browning Mfg., 179 F.3d at 210); see also Mississippi Power & Light Co. v. Cook, 832 So.2d 474, 482 (Miss.2002) (the representation “must be willfully false, or must have the effect of misleading the other party to his injury-”).

¶ 36. Kirk had knowledge of the undisclosed claim. Around August of 1998, he told his bankruptcy attorney that he had filed a lawsuit in 1996, but that after some initial discovery, the lawsuit had been dormant since 1997. Based on Kirk’s information, his bankruptcy counsel assumed that the lawsuit had been dismissed under Mississippi Rule of Civil Procedure 41(b) based on dormancy and did not list the lawsuit on Kirk’s bankruptcy schedules.

¶37. The trial court determined that Kirk was less than candid with his bankruptcy attorney regarding the status of the lawsuit. From the time Kirk filed his lawsuit in February 1996 until May 1997, activity on the suit included four notices of deposition and a Motion to Compel Production of Documents, which was denied by the trial court. Regardless, once Kirk resumed pursuit of the claim, he had an affirmative duty to disclose the suit to the bankruptcy court. Id. (citing Browning Mfg., 179 F.3d at 207-OS) (the Bankruptcy Code and Rules impose an affirmative duty to disclose contingent and unliquidated claims, and the duty to disclose is continuous). Yet Kirk’s failure to list the lawsuit in his bankruptcy schedules was brought out during pre-trial motions in limine and on cross-examination not at Kirk’s initiative, but by the defendants. Even then, Kirk did not disclose the suit to the bankruptcy court until October of 2002, after he had obtained a final judgment.

¶38. While we cannot be certain of Kirk’s motivation, we find there was sufficient evidence for the circuit court to conclude that Kirk’s non-disclosure was not inadvertent and that Kirk notified the bankruptcy trustee only because the defendants forced his hand. We cannot say that the circuit court abused its discretion in finding that Kirk intended to conceal his claim from the bankruptcy court in order to reap a windfall by preventing his creditors from recovering any proceeds of a potential judgment. See id. at 336. Therefore, we find that the circuit court did not err in finding that judicial estoppel applied to Kirk.

¶ 39. Even though judicial estop-pel is appropriate, we must consider the impact that vacating the judgment would have on Kirk’s creditors. See Jenkins, 215 F.R.D. at 522. In Parker v. Wendy’s Int’l, Inc., the Eleventh Circuit found that the bankruptcy trustee should not be judicially estopped in pursuing an undisclosed claim. Parker, 365 F.3d 1268, 1272-73 (11th Cir. 2004). The Eleventh Circuit reasoned that the trustee had never taken an inconsistent position and was “not tainted or burdened by the debtor’s misconduct.” Id. at 1273. Nevertheless, Parker noted that, should the trustee recover more than the amount to satisfy all creditors, “judicial estoppel could be invoked by the defendant to limit recovery to only that amount and prevent an undeserved windfall from devolving on the non-disclosing debtor.” Id. at 1273 n. 4.

¶ 40. We adopt the rationale in Parker and hold that Kirk’s bankruptcy trustee should not be judicially estopped from pursuing the claim. On remand, should the trustee recover more than the amount necessary to fully compensate Kirk’s bankruptcy estate, we invoke judicial estoppel against Kirk individually to prevent him from recovering any proceeds of the judgment.

IV. The trial court’s grant of a remitti-tur.

¶41. On August 21, 2003, the trial court entered an order granting a new trial on the issue of damages. Kirk then filed a Motion for Reconsideration of the trial court’s order granting a new trial on the issue of damages and asked the court to leave the jury verdict intact. On November 19, 2003, the trial court issued an order granting Kirk’s Motion for Reconsideration “contingent upon [Kirk’s] acceptance of a remittitur of the trial verdict of $700,000 to $400,000.... ” Kirk accepted the remittitur, and the trial court entered a final judgment in the amount of $400,000 on November 19, 2003.

¶ 42. The trial court acted in accordance with this Court’s precedent at the time in granting the remittitur. In Odom v. Roberts, we held that only the plaintiff could elect to (1) reject the remittitur and have a new trial on the issue of damages only, (2) appeal to this Court on the grounds that the trial court should not have granted the remittitur or that the remittitur granted was legally excessive, or (3) accept the remittitur. Odom, 606 So.2d 114, 121 (Miss.1992). The only procedural remedy afforded to the defendant under the prior rule was to “(cross) appeal to this court arguing that the trial court abused its discretion and that the remitti-tur was legally inadequate.” Id.

¶ 43. While the subject case was pending appeal, this Court adopted a standard which requires that a remittitur take effect only if it is accepted by all parties. De-deaux v. Pellerin Laundry, Inc., 947 So.2d 900, 908 (Miss.2007) (emphasis added). Furthermore, “[i]f all the parties do not agree to ... the remittitur, then each party shall have the right to either demand a new trial on damages, or appeal the order asserting an abuse of discretion on the part of the trial judge.” Id. Because this Court retroactively applies newly-enunciated rules of law to cases that are pending trial or that are on appeal, we are compelled to apply the standard set forth in Dedeaux to the subject case. Thompson v. City of Vicksburg, 813 So.2d 717, 721 (Miss.2002).

¶ 44. Under the rule announced in De-deaux, Pope could have chosen to: (1) accept the remittitur; (2) demand a new trial on damages; or (3) appeal the order asserting an abuse of discretion on the part of the trial judge. See Dedeaux, 947 So.2d at 908. Pope did not agree to accept the remittitur, as evidenced by his Motion for Reconsideration and for Stay of Judgment filed shortly thereafter on November 25, 2003. Pope’s Motion for Reconsideration and for Stay of Judgment stated that by granting the remittitur, the trial judge had recognized Pope’s lack of sufficient legal representation and that “all compensatory and punitive damages should be set aside and a new trial should be granted based on the ineffective counsel issue.” Kirk himself notes that Pope was “apparently aggrieved” by the trial court’s ruling on the remittitur.

¶ 45. Had the rule in Dedeaux been in effect at the time, Pope would have had the right to demand a new trial on damages. See Dedeaux, 947 So.2d at 908-10 (if all parties do not agree to an additur or remittitur, a new trial on damages is a matter of right that should be available to any party who requests such new trial). Because Pope was procedurally barred from demanding a new trial on damages, we find that he should be afforded such opportunity on remand. See id. at 909-10.

¶ 46. We remand this case for compliance with our recent decision in Dedeaux v. Pellerin Laundry, Inc., 947 So.2d 900 (Miss.2007).

CONCLUSION

¶ 47. Because we find that the circuit court erred in vacating the final judgment and dismissing Kirk’s claims, and because the remittitur was not accepted by both parties as required under our recent opinion in Dedeaux v. Pellerin Laundry, Inc., we reverse the judgment of dismissal and remand the case to allow Pope either to accept the remittitur or to have a new trial on the issue of damages only. On remand, all judgment proceeds should be distributed to Kirk’s bankruptcy estate, and the circuit court’s final judgment should state that judicial estoppel applies to Kirk, individually, so that he is prohibited from collecting any proceeds of any judgment ultimately awarded.

¶ 48. REVERSED AND REMANDED.

SMITH, C.J., EASLEY, CARLSON, DICKINSON, RANDOLPH AND LAMAR, JJ., CONCUR. GRAVES, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY DIAZ, P.J.

GRAVES, Justice,

Concurring in Part and Dissenting in Part:

¶ 49. Because the majority ignores both relevant portions of the record and the applicable law, I must dissent in part. I concur that Pope waived a real-party-in-interest defense and that proper ratification occurred. I further concur that the trial court erred in vacating the final judgment and dismissing Kirk’s claims. However, I disagree with the majority’s finding that the trial court correctly found that the motion pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure was timely. I further disagree with the majority that the trial court did not err in finding that judicial estoppel applied to Kirk. Moreover, I disagree with the majority’s finding that both parties did not agree with the remittitur. Because I would reverse and render, reinstating the prior judgment, I respectfully concur in part and dissent in part.

Timeliness of Rule 60(b) Motion

¶ 50. Pope filed a Motion for Relief from Judgment on September 14, 2005, and asked the trial court to vacate the October 28, 2002, judgment. A motion pursuant to Rule 60(b)(4) or (6) must be made within a reasonable time. M.R.C.P. 60(b). Kirk asserts that September 14, 2005, is not within a reasonable time from October 28, 2002, or from November 19, 2003. Kirk further asserts that the trial court erred in calculating the time from the May 24, 2005, order denying reconsideration because Pope did not seek relief from that order and relief from that order would not have relieved Pope from the judgment. I agree.

¶ 51. In Bruce v. Bruce, 587 So.2d 898, 904 (Miss.1991), this Court, quoting Stringfellow v. Stringfellow, 451 So.2d 219, 221 (Miss.1984), said:

Rule 60(b) provides for extraordinary relief which may be granted only upon an adequate showing of exceptional circumstances, and that neither ignorance nor carelessness on the part of an attorney will provide grounds for relief.... Additionally, it has been said that a party is not entitled to relief merely because he is unhappy with the judgment, but he must make some showing that he was justified in failing to avoid mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not enough.

Bruce, 587 So.2d at 904. Further, this Court said:

No doubt there is overlap between the rules — we know of no grounds for relief within Rule 60 that are not also grounds for relief under Rule 59(e), if only they be timely sought — but, fundamentally, Rule 60(b) is not an escape hatch for lawyers and litigants who had procedural opportunities afforded under other rules and who without cause failed to pursue those procedural remedies. Rule 60(b) is designed for the extraordinary, not the commonplace.
A loose but apt analogy may be found in our criminal practice. A Rule 59(e) motion is the functional equivalent of a motion for a new trial or, on appeal, of a petition for rehearing. A Rule 60(b) motion is the functional equivalent of an application for post-conviction relief.

Id.

¶ 52. Pope asked for relief from the October 28, 2002, final judgment. However, the trial court later granted a remitti-tur and entered a subsequent final judgment on November 19, 2003. The motion for relief from judgment was not filed until September 14, 2005. Rule 60(b) requires the motion to be made within a reasonable time. M.R.C.P. 60(b). The September 14, 2005, motion was not filed until nearly two years after the final judgment, on November 19, 2003. This Court has found that a Rule 60(b) motion filed two years after judgment was not filed within a reasonable time. See Hinds Co. Bd. of Supervisors v. Common Cause of Mississippi, 551 So.2d 107, 119 (Miss.1989). Therefore, Pope’s Rule 60(b) motion was not timely filed.

¶ 53. The majority opinion states that Pope filed a motion for JNOV eight days after the entry of the judgment. Pope’s motion for JNOV failed to raise any judicial estoppel argument. The majority says that Pope’s motion for JNOV incorporated by reference Pope’s “challenge” during the hearing on the motion in limine. However, the crux of Pope’s challenge was to establish “Kirk’s general inability to operate a business successfully.” Pope did mention Kirk’s failure to list the asset on his bankruptcy schedule and then agreed that it was a legal question for the trial court to decide as opposed to a question for the jury-

¶ 54. Further, the majority clearly disregards the facts in this case. The majority finds that Pope properly pursued all other remedies. However, prior to the hearing on the motion for reconsideration, “Pope advised the trial court that there would be no hearing and that the defendants had abandoned their effort to have the court reconsider its judgment.” (Emphasis added). Moreover, the May 24, 2005, order of the trial court summarily denied all pending motions, finding that the parties “do not wish to proceed any further with respect to all motions” set to be heard.

¶ 55. The record indicates that Pope failed to pursue procedural remedies under other rules and that Pope was unable to show any justification for his failure to do so. In Bruce, this Court also said: “Rule 60(b) motions, on the other hand, proceed on the assumption that the trial court has entered a valid and enforceable judgment which has become final.” Bruce, 587 So.2d at 904. However, Pope asserts the opposite — that there was never a valid and enforceable judgment. Ironically, the majority quotes this very language from Bruce regarding the assumption of a valid and enforceable judgment to overcome the fact that Pope failed to pursue all other remedies and abandoned his claims. Then, in the very next paragraph, the majority contradictiously maintains that the judgment is void to overcome the untimeliness of the Rule 60(b) motion. The majority cites Overbey v. Murray, 569 So.2d 303 (Miss.1990), for the proposition that federal courts have found no effective time limit for a Rule 60(b)(4) motion to a void judgment. However, in Overbey, this Court also said: “In defining a void judgment, this Court has repeated the federal rule, which states that ‘a judgment is void only if the court that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a manner inconsistent with due process of law.’ ” Id. at 306. That is not the case here.

¶ 56. Further, because Pope failed to comply with the requirements of Rule 60(b), he is now estopped from asserting that the final judgment should be vacated. Moreover, because the judgment was valid for other reasons stated herein, the trial court abused its discretion in vacating it. Notwithstanding the untimeliness of the Rule 60(b) motion, I address the issues alternatively herein.

Standing versus Real Party in Interest ¶ 57. In its Memorandum Opinion and Order Vacating Final Judgment, the trial court found:

Kirk’s claim against these defendants became an asset of his bankruptcy estate when he filed his petition on August 27, 1998. Kirk’s failure to list this pending lawsuit on the bankruptcy schedules left that interest in the bankruptcy estate. Derek Henderson, as trustee, became and still remains the real party in interest and possessed sole standing to pursue the claim from and after August 27, 1998. Conversely, Mike Kirk forever lost standing to do so from and after that date.

As a result, the trial court found that it lacked jurisdiction to enter a judgment and rendered the judgment void.

¶ 58. Kirk correctly asserts that the trial court failed to recognize the distinction between standing and real party in interest. The trial court held that the judgment was void because the court lacked jurisdiction, finding: “Unfortunately for Kirk, the Mississippi Supreme Court has specifically held: ‘Standing is a jurisdictional issue which may be raised by any party or the court at any time,’ even by the appellate courts for the first time on appeal.” (Citing City of Madison v. Bryan, 763 So.2d 162, 166 (Miss.2000)).

¶ 59. To have standing, this Court has said, “there must be a present, existent actionable title or interest which must be completed at the time the cause of action is filed.” City of Madison, 763 So.2d at 165 (citing Crawford Commercial Constructors, Inc. v. Marine Indus. Residential Insulation, Inc., 437 So.2d 15, 16 (Miss. 1983) and American Book Co. v. Vandiver, 181 Miss. 518, 178 So. 598 (1938)). In City of Madison, Bryan’s appeal stemmed from the City of Madison’s failure to approve a building permit for Bryan to build on certain property when Bryan had no actual title, interest in, or option to purchase said property. This Court found that Bryan lacked standing because he was unable to demonstrate that the City’s action had an adverse effect on property in which he had an interest. Id.

¶ 60. Although courts have used the term standing in analyzing real-party-in-interest cases, courts have also clearly distinguished standing and real party in interest by their analysis solely under real party in interest or by specific language, such as the following:

The [real party in interest] rule is similar to, though distinct from, the requirement that the plaintiff have standing to sue, in that both standing and real party in interest ‘are used to designate a plaintiff who possesses a sufficient interest in the action to entitle him to be heard on the merits.’ 6A Charles Alan Miller et al., Federal Practice and Procedure § 1542 (2d ed.1990).

Weissman v. Weener, 12 F.3d 84, 86 (7th Cir.1993).

¶ 61. In distinguishing standing and real party in interest, the United States Bankruptcy Court for the Eastern District of Texas said:

Frequently, attorneys and courts confuse the concepts of standing with that of capacity to sue and with the real party in interest principle. 6A Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal Practice and Procedure § 1542 (1990).... The standing doctrine, unlike Rule 17, relates only to the public law context. Rule 17 is implicated in suits between private parties. See Malamud v. Sinclair Oil Corp., 521 F.2d 1142, 1147 (6th Cir.1975). [“The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated.” Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968). Since standing refers to identifying the proper litigant in a suit, it is related but not identical to the concept of the real party in interest. The former doctrine usually applies to “public” suits and the latter to “private” ones.] Lucas v. Lucas, 946 F.2d 1318, 1322 n. 6 (8th Cir.1991) (“ ‘Standing’ is a constitutional doctrine regarding one’s right to challenge a governmental action”).... The Court is of the opinion that standing is not an appropriate objection in this particular action given no governmental action. Therefore, the objection to standing must be denied.

Reynolds v. Feldman (In re Unger & As-socs.), 292 B.R. 545, 550-551 (Bankr. D.Tex.2003).

¶ 62. The fact that a party is no longer the real party in interest does not necessarily cause that party to lose standing in the traditional, jurisdictional sense. Kirk had a valid action against Pope for breach of contract. Kirk did not file his bankruptcy petition until some two and a half years after he filed this cause of action. Kirk clearly had standing to file this cause of action.

¶ 63. The question then becomes whether Kirk ever lost his status as the real party in interest to pursue the action. Upon filing bankruptcy, Chapter 7 debtors are no longer the real party in interest for purposes of pursuing pre-petition claims. See Wieburg v. GTE Southwest, Inc., 272 F.3d 302, 306 (5th Cir.2001) (“Because the claims are property of the bankruptcy estate, the Trustee is the real party in interest with exclusive standing to assert them.”).

¶ 64. Courts have consistently found that this issue is governed by Rule 17(a), as stated herein, which requires that “every action shall be prosecuted in the name of the real party in interest.” See Wie-burg, 272 F.3d at 306. Wieburg filed for bankruptcy after the events giving rise to her cause of action occurred. The Fifth Circuit Court of Appeals found Wieburg’s claims to be the property of the bankruptcy estate and found that they should have been disclosed in Wieburg’s bankruptcy schedules. “Because the claims are the property of the bankruptcy estate, the Trustee is the real party in interest with exclusive standing to assert them.” Id. However, the court further found the district court’s dismissal of the action to be improper pursuant to the following:

The last sentence of Rule 17(a) provides that “no action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.” FED. R. CIV. P. 17(a).

Id. at 308. The court further found:

In accordance with the Advisory Committee’s note, most courts have interpreted the last sentence of Rule 17(a) as being applicable only when the plaintiff brought the action in her own name as the result of an understandable mistake, because the determination of the correct party to bring the action is difficult.... Feist [v. Consolidated Freightway s Corp.], 100 F.Supp.2d [273] at 276 (“Rule 17(a) should not be applied blindly to permit substitution of the real party in interest in every case. In order to substitute the trustee as the real party in interest, Plaintiff must first establish that when he brought this action in his own name, he did so as the result of an honest and understandable mistake.”)

Id.

¶ 65. The court expressed concern that the dismissal of the action would prevent Wieburg’s creditors from having any possibility of recovery. In vacating the district court, the court held:

More importantly, it is unclear whether the district court considered the impact of the dismissal on Wieburg’s creditors .... Under these circumstances, and in light of Rule 17(a)’s purpose of preventing forfeitures, we believe that it was an abuse of discretion for the district court to dismiss the action without explaining why the less drastic alternatives of either allowing an opportunity for ratification by the Trustee, or join-der of the Trustee, were inappropriate.

Id. at 309.

¶ 66. The United States District Court for the Southern District of Mississippi also addressed this issue in Battle v. Prepaid Legal Services, Inc., 2006 WL 317180, 2006 U.S. Dist. LEXIS 15690 (S.D.Miss. Feb. 9, 2006) (“The Fifth Circuit has consistently held that with respect to Chapter 7 proceedings, where ‘the claims are property of the bankruptcy estate, the Trustee is the real party in interest with exclusive standing to assert them.’ ”) The court found that, as Beverly Thompson, the plaintiff and Chapter 7 debtor, lacked standing to pursue the claims, the case could be dismissed, but the court went on to cite 11 U.S.C. § 554 of the bankruptcy code and ordered the trustee to respond, saying: “However, in the court’s opinion, the better course is to provide the bankruptcy trustee an opportunity to respond and advise the court what action, if any, he desires to take with respect to the case.” Id. at *2, at 2.

¶ 67. The Fifth Circuit Court of Appeals has also found that the defense of real party in interest must be timely asserted. Specifically, that court found:

... It is thus contemplated that if a defendant objects to being sued by a party who does not have the right to pursue the claim in issue, the real party in interest will be able to step forward and assume the plaintiffs role.... The earlier the defense is raised, the more likely that the high cost of trial preparation for both parties can be avoided if a real party in interest question is determined adversely to a plaintiff.
Surely it is inconsistent with the rule to raise a real party in interest defense for the first time on motion for directed verdict. A number of cases have held that the defense is waived when tardily asserted. See, e.g., Hefley v. Jones, 687 F.2d 1883, 1388 (10th Cir.1982) (assertion 16 days before trial is untimely)....

Gogolin & Stelter v. Kam’s Auto Imports, Inc., 886 F.2d 100, 102 (5th Cir.1989). See also Rogers v. Samedan Oil Corp., 308 F.3d 477, 483-84 (5th Cir.2002) (failure to raise the assertion that plaintiff was not the real party in interest until day before trial constituted waiver); and United Healthcare Corp. v. American Trade Ins. Co., 88 F.3d 563 (8th Cir.1996) (assertion at pretrial conference constituted waiver).

¶ 68. As discussed more fully herein, in the instant case, the earliest Pope even alluded to a possible real-party-in-interest defense was after jury selection and just prior to the start of the trial. Based on Gogolin, Pope waived a real-party-in-interest defense. Notwithstanding the waiver, the trial court erred in vacating the judgment and dismissing the case for other reasons as well.

¶ 69. The trial court found in its memorandum opinion on October 17, 2005, as follows: “At no time, however, has any motion been filed with this court asking that Henderson, as trustee, be substituted as the real party in interest or permitting him, as such, to intervene in this action.” However, as set out in the aforementioned case law, Rule 17(a) plainly allows for “ratification, joinder or substitution” and the trustee acknowledged his ratification some two and a half years prior to dismissal. (Emphasis added). In his Motion to Employ Special Counsel and Approve Contingency Fee Agreement, which was approved by order on January 23, 2003, the trustee asserted:

The [bankruptcy] case was reopened because the Trustee discovered a possible asset that is property of the estate and had not been administered. The Debt- or, George Michael Kirk had a claim against Dixieland Forest Products and others. In order for the Trustee to effectively pursue the claim against Dixieland Forest Products and others, it is necessary of the Debtor to retain special counsel to pursue the claim on behalf of the bankruptcy estate.

This language clearly indicates the real party in interest’s ratification of the action.

¶ 70. Rule 17(a) provides, in relevant part: “No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest....” Pope first alluded to a possible real-party-in-interest argument only after jury selection and just prior to the start of the trial on October 14, 2002, during a hearing on a motion in limine by Kirk. However, Pope raised Kirk’s failure to list the lawsuit in an objection to Kirk’s motion in limine as discussed previously herein, rather than as a specific objection dealing with real party in interest. Nevertheless, the bankruptcy case was reopened on October 25, 2002, and the trustee acknowledged his ratification in his motion for special counsel on December 23, 2002.

¶ 71. The trustee clearly acknowledged his ratification long before any actual objection and within a reasonable time of the mention of the bankruptcy at trial. Additionally, just five days after the trial court entered the Final Judgment of Dismissal, the trustee filed a Notice of Substitution of Real Party in Interest and Ratification and a Motion to Alter and Amend Judgment, reiterating his prior ratification of the lawsuit. Specifically, the trustee asserted:

Therefore, pursuant to the procedures of the United States Bankruptcy Court, the Trustee did ratify the furtherance of the lawsuit and the collection of the judgment by obtaining the court order of the Bankruptcy Court assuming the contingency fee agreement for the prosecution of the causes of action against Randy Pope and Dixieland Forest Products, Inc. Further, David W. Baria was approved as the Trustee’s special legal counsel. There is no requirement that ratification by the Bankruptcy Court Orders be filed in the state court proceeding.

¶ 72. The trustee’s assertion that it is not necessary for a Chapter 7 trustee to intervene or be substituted as a real party in interest in a pending state court action, as the trustee’s ratification of the lawsuit is sufficient, is supported by Jenkins v. Wright & Ferguson Funeral Home, 215 F.R.D. 518 (S.D.Miss.2003), and Wieburg, 272 F.3d at 307. In Jenkins, the district court found:

This provision of Rule 17(a) “provides that formal joinder or substitution of the real party in interest will not be necessary when [the real party in interest] ratifies commencement of the action.” Big John, B.V. v. Indian Head Grain, Co., 718 F.2d 143, 147 (5th Cir.1983) (citations omitted). “Proper ratification requires [the] ratifying party to authorize continuation of [the] action and agree to be bound by the result.” Wieburg, 272 F.3d at 307 (citing Naghiu v. InterContinental Hotels Group, Inc., 165 F.R.D. 413, 421 (D.Del.1996)).

Jenkins, 215 F.R.D. at 521. The district court further held:

However, this Court must also consider the impact of dismissal of this case on Jenkins’ creditors. [Citation omitted]. Under the wording of the subject Ratification Agreement, it is apparent to the Court that even though the case will be prosecuted in Jenkins’ name, her bankruptcy estate will be the first beneficiary from the proceeds of the case, if any. For this additional reason, the Court finds that the Ratification Agreement should be enforced, and that Jenkins should be allowed to prosecute this case in her name.

Id. at 522.

¶ 73. Therefore, I would find that it was an abuse of discretion for the trial court to vacate the judgment.

Judicial Estoppel

¶ 74. Pope argues that judicial estoppel is not an issue before this Court because the trial court did not vacate the judgment on the basis of judicial estoppel. Although the trial court held the judgment void on the basis of standing, the trial court did make a finding of judicial estoppel, which it identified as the threshold question. However, as I would find that the motion raising judicial estoppel was untimely and that this matter should be reversed and rendered, and as Pope concedes the trial court made no finding of judicial estoppel, this issue is moot. Notwithstanding that the issue is moot, I would find that judicial estoppel is not applicable to Kirk. Furthermore, I would avoid any attempt to interfere with matters properly within the jurisdiction of the United States Bankruptcy Court. In the Order of Remand, the U.S. District Court stated that the fact that plaintiffs counsel was appointed as the trustee’s representative to pursue this matter “quiets the court’s apprehensions whether the debtor would be in any position to squander the proceeds of any received judgment instead of reporting same to the bankruptcy court for the benefit of creditors.” I agree.

¶ 75. Judicial estoppel is a common-law doctrine by which a party is estopped from assuming a position contrary to a position previously assumed. Browning Mfg., 179 F.3d at 205. “The purpose of the doctrine is ‘to protect the integrity of the judicial process,’ by ‘preventing parties from playing fast and loose with the courts to suit the exigencies of self interest.’ ” Id. (quoting Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th Cir.1988). “The doctrine is generally applied where ‘intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.’ ” Browning Mfg., 179 F.3d at 206 (quoting Scarano v. Central R. Co., 203 F.2d 510, 513 (3d Cir.1953)). There are typically three limitations on the doctrine of judicial estoppel: 1) it may be applied only where the party’s position is clearly inconsistent with its previous one; 2) the party must have convinced the court to accept its previous position; and 3) the party must have acted intentionally. Id.

¶ 76. In Browning, the court found judicial estoppel based on the repeated failure to disclose some millions of dollars of claims. There is no assertion in the case sub judice that Kirk repeatedly failed to disclose the lawsuit against Pope. The record indicates that Kirk disclosed the lawsuit to his bankruptcy lawyer, and that Pope and the trial court were fully aware of the bankruptcy at all times herein relevant. As stated previously herein, Kirk’s bankruptcy attorney indicates that Kirk contacted him inquiring as to whether anything needed to be done with regard to the bankruptcy and then proceeded to attempt to correct the situation. There is no evidence of any intentional attempt by Kirk to “play fast and loose with the courts.”

¶ 77. This Court has said that, to find judicial estoppel, the representation “must be willfully false, or must have the effect of misleading the other party to his injury....” Mississippi Power & Light Co. v. Cook, 832 So.2d 474, 482 (Miss.2002). In Mississippi Power & Light (MP & L), Kenneth Cook failed to disclose the existence of a lawsuit filed some two years earlier in a petition for Chapter 7 bankruptcy. Cook said he did not disclose the lawsuit because he believed it would not amount to anything and because his attorney advised him that it was not necessary to disclose it. When MP & L tried to have the bankruptcy reopened, Cook amended his schedule to reflect the claim. MP & L raised an issue on appeal regarding the trial court’s handling of the bankruptcy file. This Court held:

Cook explained his actions in the bankruptcy proceeding, and it was correctly left to the jury to determine his credibility. Cook did not make a willfully false statement that led MP & L to injury. On the advice of counsel, Cook did not disclose the present lawsuit because he thought it was dead. Additionally, MP & L was not a debtor to whom Cook owed money in the bankruptcy proceeding. This issue is without merit.

Id. at 482.

¶ 78. In the instant case, Kirk explained his actions. However, the Rule 60(b) motion was not filed until almost two years after the final judgment, so there was no opportunity for a jury to determine his credibility. Kirk did not make a willfully false statement that led to Pope’s injury. Kirk fully disclosed the lawsuit to counsel, but counsel determined it was not worth listing in the schedule. Pope was not a debtor to whom Kirk owed money in the bankruptcy proceeding. Based on MP & L, this issue is without merit.

¶ 79. The trial court and the majority rely on Superior Crewboats, Inc. v. Primary P & I Underwriters, 374 F.3d 330 (5th Cir.2004), in the analysis of this issue. However, Superior Crewboats was decided several years after this case began and can be distinguished. In Superior Crewboats, Arthur Hudspeath filed a personal-injury lawsuit and then a year later filed a petition for Chapter 13 bankruptcy, which was subsequently converted to a Chapter 7. Hudspeath disclosed the lawsuit at the creditors’ meeting, but made inaccurate representations that the claim was barred by the statute of limitations. As a result of Hudspeath’s misrepresentation, the trustee filed a petition of disclaimer and abandonment with regard to the lawsuit. Superior later informed the trustee that Hudspeath was still pursuing the lawsuit and moved to dismiss on the basis that the claim was barred by judicial estoppel. The district court rejected the judicial-estoppel argument, and the Fifth Circuit Court of Appeals reversed. There is absolutely no suggestion in the instant case that Kirk made any misrepresentation to the trustee or the bankruptcy court regarding the lawsuit in an attempt to garner abandonment.

¶ 80. The trial court and the majority also cite Parker v. Wendy’s International, 365 F.3d 1268 (11th Cir.2004). However, Parker supports Kirk’s position. In Parker, Parker filed a complaint against Wendy’s. Some two years later, Parker filed a petition for Chapter 7 bankruptcy. Just before trial against Wendy’s, Parker moved for a continuance, indicating that she had failed to disclose the lawsuit to the bankruptcy trustee. At some point thereafter, the trustee moved to intervene or to be substituted as the real party in interest. The court found that the doctrine of judicial estoppel was improperly invoked, and held: “The claim against Wendy’s belongs to the bankruptcy estate and its representative, the trustee. The trustee made no false or inconsistent statement under oath in a prior proceeding and is not tainted or burdened by the debtor’s misconduct.” Id. at 1273.

¶ 81. The trial court in the instant case, relying on Parker, found that the trustee never moved to intervene or to be substituted. However, as discussed previously herein, the trustee did acknowledge his ratification of the lawsuit in his motion on December 23, 2002, which was sufficient pursuant to Rule 17(a), long before the final judgment, which according to the trial court in his calculations for the Rule 60(b) motion, was entered May 24, 2005. Therefore, pursuant to Parker, the trustee, as the real party in interest, clearly has made no inconsistent statement in a prior proceeding.

¶ 82. Further, the only evidence of a party playing “fast and loose with the courts” is the conduct exhibited by Pope, who relied on the very judgment in question herein to pursue a malpractice action against his prior attorney. While owing a judgment in this matter and long before making any claim that Kirk was judicially estopped from pursuing this matter, Pope procured a $275,000 settlement in the legal malpractice case as a result of this judgment, sold assets and paid substantial sums in legal fees to his new attorneys. Pope now asks this Court to affirm relief from this judgment, which is now part of the bankruptcy estate. Such a move would further compound Pope’s inappropriate behavior and would harm only Kirk’s creditors. I would decline to take such a route.

Remittitur

¶ 83. The majority relies on plain error in addressing the issue of remittitur, which was not raised on appeal. However, while there are many cases in which this Court should apply plain error, this is not a case in which plain error should apply. The majority is correct that the trial court entered an order on August 21, 2003, granting a new trial on damages. However, this order was, in part, granting “the plaintiffs request for a new trial on the issue of damages.... ” The plaintiff, Kirk, then filed a motion for reconsideration, asserting that any new trial language in his previous motion was inadvertent and that he did not want a new trial on the issue of damages. The trial court granted Kirk’s motion for reconsideration, contingent on Kirk accepting the remittitur. Kirk accepted the remittitur, and the final judgment of $400,000 was entered on November 19, 2003. As acknowledged by the majority, under the then-existing law, Pope had the procedural remedy of appealing to this Court, “arguing that the trial court abused its discretion and that the remittitur was legally inadequate.” Pope failed to appeal to this Court. Moreover, while Pope did subsequently file a Motion for Reconsideration and Stay of Judgment, such motion was solely on the basis of ineffective assistance of counsel. Further, shortly thereafter, Pope abandoned his effort to have the court reconsider its judgment, thereby indicating his agreement to accept the remittitur.

CONCLUSION

¶ 84. For the reasons stated herein, I would reverse trial court’s judgment of dismissal and reinstate the prior judgment in this matter.

DIAZ, P.J., JOINS THIS OPINION.

      . The record contains an affidavit from Barney Eaton, who served as Kirk’s bankruptcy counsel. Eaton said that Kirk informed him "that he had filed a lawsuit in 1996, but after some initial discovery the lawsuit had been dormant since 1997.” Eaton further stated that he did not include the lawsuit on the bankruptcy schedules because he presumed it had been dismissed for dormancy under Rule 41(b) of the Mississippi Rules of Civil Procedure. Eaton said Kirk later contacted him in October of 2002 to inform him that a judgment had been obtained on the case and asked whether anything needed to be done with the bankruptcy. Eaton said he advised Kirk that the bankruptcy would need to be reopened and that the judgment would become an asset of the estate. Eaton said Kirk authorized him to reopen the case.

      . The judgment included $350,000 in compensatory damages and $350,000 in punitive damages.

      . The order stated that the judge was contacted at home by counsel for Pope and that the order was necessary, in part, to prevent Kirk from executing on the judgment.

      . The trial court said by order that the attorneys for all parties advised that the parties were involved in settlement negotiations and asked that the hearing be cancelled. However, both parties dispute the trial court’s characterization.

      . Pope’s Motion for Clarity asked the court to clarify "its Order dated December 8 and filed herein on December 11, 2003,.... ” The order was attached as an exhibit to the motion and was, in fact, dated December 8 and stamped as a certified, true copy on December 11, 2003. However, the record indicates that the order was dated December 8 but filed on December 9, 2003.

      . Pope acknowledged in his deposition that the majority of the settlement proceeds was paid to his new attorneys.

      . The prior rule as set forth in Odom v. Roberts stated the following:
      [W]here the trial court has granted a remit-titur, or, in the alternative, a new trial on the issue of damages only, the plaintiff only may elect (1) to reject the remittitur and have the case retried on the issue of damages only, (2) to appeal to this court on grounds the circuit court should not have granted the remittitur at all, or, alternatively, the remittitur granted was legally excessive, or, (3) to accept the remittitur. In such a case the defendant’s only procedural avenue is that it may (cross) appeal to this court arguing that the trial court abused its discretion and that the remittitur was legally inadequate.

        Odom, 606 So.2d 114, 121 (Miss.1992) (emphasis added).

      . The trial court properly found that Pope had waived any argument pursuant to Rule 60(b)(1) of the Mississippi Rules of Civil Procedure.

      . While not raised specifically as an objection, Pope challenged Kirk’s right to pursue the claim during pre-trial motions in limine. Pope argued that Kirk "forfeited [his right to pursue the suit] when he didn't list it in his assets when he filed individual bankruptcy."

      . Jenkins was a case before the U.S. District Court for the Southern District of Mississippi and cites Rule 17(a) of the Federal Rules of Civil Procedure. However, with the exception of slight changes or deletions, Rule 17(a) of the Mississippi Rules of Civil Procedure tracks the language from Rule 17(a) of the federal rules.

      . The Advisory Committee Notes to Rule 17(a) states that the ratification provision "is intended to prevent forfeiture when determination of the proper party to sue is difficult or when an understandable mistake has been made.” Fed.R.Civ.P. 17(a) Advisory Committee Notes, 1966 Amendment. Many courts have limited ratification to such circumstances. See Wieburg, 272 F.3d at 308. Other courts have been reluctant to rely on the Advisory Committee Notes to Rule 17(a). Es-posito v. U.S., 368 F.3d 1271, 1275-77 (10th Cir.2004); Jenkins, 215 F.R.D. at 522. The federal court for the Southern District of Mississippi found the Advisory Committee Note to be in conflict with the Rule itself because Rule 17(a) "does not state or even imply that the real party in interest must have, been difficult to determine or that an understandable mistake had been made.” Jenkins, 215 F.R.D. at 522 n. 4. Because of the ambiguity and because this particular language from the Advisory Committee Note was not incorporated into the Comment to Rule 17(a) of the Mississippi Rules of Civil Procedure, we do not limit ratification to such circumstances.

      . Even under then-existing case law, Pope could have chosen to appeal the order granting the remittitur by asserting an abuse of discretion by the trial judge. See Odom, 606 So.2d at 121. However, Pope elected not to file such an appeal. Accordingly, on remand, Pope is barred from appealing the order granting the remittitur dated November 19, 2003. See Tandy Electronics, Inc. v. Fletcher, 554 So.2d 308, 311 (Miss.1989) (“[T]hirty-day rule for perfecting an appeal is in the nature of a statute of limitations.”).

      . I note that the majority follows its recent and inexplicable trend and finds that this matter should be reversed and remanded for a new trial as to damages. See Beverly Enterprises, Inc. v. Reed, 961 So.2d 40 (Miss.2007). See also Community Hosp. v. Goodlett, 968 So.2d 391 (Miss.2007); Smith v. Captain D’s, LLC, 963 So.2d 1116, 1117 (Miss.2007) and Century 21 Moselle & Assocs. v. Smith, 965 So.2d 1031 (Miss.2007).

      . Pursuant to Rule 17(a) of the Federal Rules of Civil Procedure, which says:
      Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought; and when a statute of the United States so provides, an action for the use or benefit of another shall be brought in the name of the United States. No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest; and such ratification, joinder, or substitution shall have the same effect as if the action had been commenced in the name of the real party in interest.
      Fed.R.Civ.P. 17(a). (Emphasis added). Further, with the exception of slight changes or deletions in the italicized portions, Rule 17(a) of the Mississippi Rules of Civil Procedure tracks this language.

      . Then, in his September 14, 2005, Rule 60(b) motion for relief from judgment, Pope asserted that Kirk was judicially estopped from pursuing the lawsuit for failure to initially disclose it to the bankruptcy court.

      . In re Dewberry, 266 B.R. 916, 920 (Bankr. S.D.Ga.2001), as cited by the majority, is distinguishable because it did not address the issue of an action in state court.


source: Caselaw Access Project

author: BARNES, J., for the Court.

license: Public Domain

text:
    O.C. SMITH, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-01368-COA.
    Court of Appeals of Mississippi.
    Oct. 30, 2007.
    Rehearing Denied Jan. 29, 2008.

      O.C. Smith, pro se.

      Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before MYERS, P.J., BARNES and ROBERTS, JJ.
   BARNES, J., for the Court.

¶ 1. O.C. Smith, appearing pro se, appeals the judgment of the Circuit Court of Oktibbeha County, which dismissed his motion for post-conviction relief. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. In June 2003, Smith was arrested and charged with sale of cocaine and marijuana. The incident occurred in January 2003, when Smith sold the controlled substances to an undercover police officer. The transaction was captured on videotape. On July 2, 2003, the grand jury returned a two-count indictment for violation of section 41-29-139 (Rev.2005): one count for the sale of cocaine, and the other for the sale of marijuana. On November 5, 2003, the circuit court accepted a guilty plea from Smith for count one. As part of the plea agreement, the count-two sale of marijuana charge was retired to the files. The State recommended a sentence of eight years to serve in the custody of the Mississippi Department of Corrections (MDOC), five years’ post-release supervision, and a fine. The trial judge allowed sentencing to be deferred for two days at Smith’s request so he could visit with his family. The judge gave Smith the following admonition on November 5:

HONORABLE JAMES T. KITCHENS, JR.: Now let me tell you something, Mr. Smith. How you behave between now and Friday means a lot.
MR. O.C. SMITH: Oh, yes, sir.
HONORABLE JAMES T. KITCHENS, JR.: Because if you get out there and get into trouble, I could give you thirty (30) years in prison.
MR. O.C. SMITH: Yes, sir.
HONORABLE JAMES T. KITCHENS, JR.: And if you get out there and embarrass me, I’m probably going to give you thirty (30) years in prison.
MR. O.C. SMITH: Yes, sir.
HONORABLE JAMES T. KITCHENS, JR.: Because I don’t want it to be in the newspaper, Judge. Kitchens, he let O.C. Smith off for a day or two to take care of his matters and he got out and did something bad.
MR. O.C. SMITH: Yes, sir.
HONORABLE JAMES T. KITCHENS, JR.: So do what you tell me you’re going to do, you know. Behave, spend some time with your family, and then come back here Friday. All right?
MR. O.C. SMITH: All right.

Smith was then released on his existing bond until November 7.

¶ 3. At 9:00 a.m. on November 7, Smith was a “no show” in court for his sentencing hearing; he did not appear in the court room until approximately 1:30 p.m. At that point, the judge deemed Smith intoxicated due to the smell of alcohol emanating from him. Smith maintained he had been drinking, but not since the previous night. The judge further delayed Smith’s sentencing hearing because the judge did not believe Smith competent to understand what was occurring. On Monday, November 10, 2003, the judge declined to accept the recommended sentence of eight years. Instead, he sentenced Smith to twelve years to serve in the custody of MDOC, five years’ post-release supervision, and a $5,000 fine.

¶ 4. On May 26, 2006, Smith filed a “fill-in-the-blank” motion for post-conviction relief. The trial court dismissed Smith’s motion, finding that the substance of the fill-in-the-blank form had “no resemblance to the Petitioner’s actual guilty plea proceedings,” and therefore was without merit. Smith timely filed his appeal which was granted by the trial court in forma pau-peris. Smith argues that (1) the State violated its plea agreement; (2) the twelve-year sentence was unlawful because his indictment was defective; (3) the sentence exceeds the plea agreement and the maximum sentence prescribed by statute; and (4) ineffective assistance of counsel because Smith’s attorney did not make an on-the-record objection when the trial judge did not follow the plea agreement’s sentence.

STANDARD OF REVIEW

¶ 5. This Court will not disturb the findings of the trial court to dismiss a motion for post-conviction relief unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). Questions of law are reviewed de novo. Id.

DISCUSSION

¶ 6. The trial court accurately noted that Smith’s motion for post-conviction relief, which was a fill-in-the-blank form, did not substantively match Smith’s actual guilty plea proceedings, and dismissed his petition. Smith now raises four issues, two of which were not raised at the trial court level in his motion. Issues not raised in the motion for post-conviction relief are proeedurally barred on appeal. Ruff v. State, 910 So.2d 1160, 1162(¶ 14) (Miss.Ct.App.2005) (citing Black v. State, 806 So.2d 1162, 1164(¶3) (Miss.Ct.App. 2002)). Notwithstanding the procedural bar, we will discuss each of Smith’s issues on the merits.

1. Whether the State violated Smith’s plea agreement.

¶ 7. Smith argues that “the State violated its plea agreement” because the judge sentenced Smith to twelve years in the custody of MDOC instead of the recommended eight-year sentence. As stated above, Smith did not raise this issue in his motion before the trial court; thus it is proeedurally barred on appeal. See Ruff, 910 So.2d at 1162(¶ 14).

¶ 8. Procedural bar notwithstanding, Smith is correct that a plea agreement “is basically a binding contract between the prosecution and the defendant that, if the defendant does a, b, and c, the prosecution will do d, e, and f.” Presley v. State, 792 So.2d 950, 955(¶ 21) (Miss.2001). Nevertheless, “a trial judge is not bound by the terms of a plea agreement because it is the product of a bargaining process between the defendant and the prosecutor, and the judge is not a party to the agreement.” Vance v. State, 799 So.2d 100, 102(¶ 7) (Miss.Ct.App.2001); see also Robinson v. State, 836 So.2d 747, 751(¶ 10) (Miss.2002) (holding trial judge does not have to accept any sentence recommendation made during plea negotiations); Wade v. State, 802 So.2d 1023, 1028(¶20) (Miss. 2001) (stating trial court is not bound by the plea agreement offered by the State).

¶ 9. Smith did not appear in court promptly on November 7, and when he finally did appear, the judge found Smith to be intoxicated. Because of Smith’s malfeasance, the trial court judge declined to accept the State’s recommended sentence and instead sentenced Smith to twelve years in the custody of the MDOC. This action is within the trial court’s discretion. We find this issue without merit.

2. Whether the indictment was valid.

¶ 10. Smith claims his indictment was defective because count one did not contain the weight or quantity of cocaine sold. Indictments are to contain “a plain, concise and definite written statement of essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. However, the penalty for the sale of cocaine in this instance is the same regardless of the quantity sold. Miss.Code Ann. § 41-29-139(a)(l), (b)(1) (Rev.2005). The amount of cocaine sold is therefore not an essential element of the crime. Williams v. State, 821 So.2d 883, 887(¶ 16) (Miss.Ct.App.2002). Accordingly, we find the indictment was not defective.

3. Whether Smith’s sentence was excessive and unlawful.

¶ 11. Smith contends his twelve-year sentence to serve in the custody of the MDOC exceeds the statutory maximum pursuant to Mississippi Code Annotated section 41 — 29—139(b)(1). Smith also makes the statement his sentence is “illegal” under state and federal law, but presents no facts to support his argument. We find his sentence was not unlawful; however, we note if his sentence were found illegal, this issue would not be procedural barred. See Bevill v. State, 669 So.2d 14, 17 (Miss. 1996) (recognizing exception to procedural bar where fundamental constitutional right is involved).

¶ 12. Regarding the argument his sentence is excessive, this issue was not presented in Smith’s motion at the trial court level and therefore is procedurally barred. See Ruff, 910 So.2d at 1162(¶ 14). Notwithstanding the procedural bar, this argument is also without merit. The sentence for the sale of cocaine is “not more than thirty (30) years and ... [a fine of] not less than Five Thousand dollars.... ” Miss.Code Ann. § 41-29-139(b)(l) (Rev. 2005). The trial court judge is to examine all relevant factors in making a sentencing decision. Payton v. State, 897 So.2d 921, 949 (¶ 106) (Miss.2003) (citing Stewart v. State, 372 So.2d 257, 259 (Miss.1979)). “Where the sentence imposed is within the range permitted by statute, this Court generally has no power to disturb the trial court’s exercise of discretion.” Id. (citing Davis v. State, 724 So.2d 342, 344(¶ 11) (Miss.1998)).

¶ 13. Smith signed the petition to enter a plea of guilty, which contained the appropriate maximum and minimum sentencing for the crime charged. The trial judge fully warned Smith before sentencing that he could be sentenced to thirty years in the custody of MDOC for this crime. Smith chose to ignore the judge’s warning and showed disrespect to the court and everyone involved by showing up late and intoxicated for his sentencing hearing. The trial judge was compelled to re-schedule the sentencing hearing because he did not believe Smith to be competent to understand what was occurring. Subsequently, the trial judge considered all relevant factors and sentenced Smith to twelve years. We find no error in the imposition of this sentence.

4. Whether Smith was denied effective assistance of counsel.

¶ 14. Finally, Smith argues that his attorney was ineffective because his attorney allowed him to plead guilty to a defective indictment and did not make an on-the-record objection when the judge altered the plea agreement sentence. Smith claims he would not have plea bargained had he known he would receive more than eight years in custody, even though the judge warned him of this possibility.

¶ 15. Ineffective assistance of counsel is established through the two-prong test articulated in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test was adopted by Mississippi in Stringer v. State, 454 So.2d 468, 476 (Miss.1984). Smith has the burden of proving that his counsel was deficient and that as a result of that deficiency he was prejudiced. Id. at 477 (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052).

¶ 16. As we discussed above, the indictment was not defective. Smith received ample notice of the possible thirty-year sentence. His attorney was not under an obligation to object to the sentence of twelve years instead of eight years because Smith’s own actions precipitated the longer sentence. Moreover, sentencing is within the sound discretion of the trial judge, and the sentence was not in excess of the statutory maximum for the crime charged. Counsel was thus in no way deficient. As a result, this issue is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ„ CONCUR.


author: LEE, P.J., for the Court.

text:
    Richard W. LADNER, II, Appellant v. GRAND BEAR GOLF COURSE/ GRAND CASINO OF MISSISSIPPI and Great American Insurance Company of New York, Appellees.
    No. 2007-WC-00231-COA.
    Court of Appeals of Mississippi.
    Jan. 15, 2008.
    James Kenneth Wetzel, Gulfport, attorney for appellant.
    Ronald T. Russell, Gulfport, attorney for appellees.
    Before LEE, P.J., IRVING and ROBERTS, JJ.
   LEE, P.J., for the Court.

PROCEDURAL HISTORY

¶ 1. On January 14, 2001, Richard Lad-ner was involved in a one-vehicle accident on the way to his job at the Grand Bear Golf Course in Harrison County, Mississippi. The accident occurred approximately one-to-two miles from the entrance to Grand Bear. As a result of this accident, Ladner was left with serious and disabling injuries.

¶ 2. On January 13, 2003, Ladner filed a petition to controvert with the Mississippi Workers’ Compensation Commission. After a hearing, the administrative law judge (ALJ) denied benefits. Both the Commission and the Harrison County Circuit Court affirmed the decision of the ALJ. Ladner now appeals asserting that the decision of the Commission was not supported by substantial evidence.

FACTS

¶ 3. Just after 6:00 a.m. on January 14, 2001, Ladner was traveling on Grand Way Boulevard toward Grand Bear Golf Course. Ladner stated that he saw an oncoming vehicle with its lights on through the clearing in the trees. Ladner testified that he dimmed his lights and then ran into a tree on the south side of the roadway. Ladner assumed this vehicle he saw contained a hunter because during deer season hunters frequented the roadway. The accident occurred within a twenty-five mile-per-hour zone. One of the sheriffs department deputies who reported to the scene testified that Ladner admitted that he was driving approximately forty-five miles per hour.

¶ 4. At the time of the accident, Ladner was in his early twenties and worked as an assistant mechanic at Grand Bear Golf Course. Ladner worked six days a week at Grand Bear approximately eight to twelve hours a day. All of his work was performed on the premises of the golf course and country club. The entrance to Grand Bear is located at the end of a county road known as Grand Way Boulevard, approximately six miles east of Highway 49. The land surrounding this road is part of the DeSoto National Forest. There were no physical structures located on this six-mile road at the time of the accident.

¶ 5. In 1999, an easement was obtained from the U.S. Forestry Service by Robert Knesal, a Harrison County Engineer, in order to pave the subject road. At that time in 1999, the road was constructed of dirt and had been used as a logging trail. Knesal stated that because of restrictions by the federal government Harrison County was unable to make the road a straight highway. Knesal testified that Grand Bear helped pay some of the paving expenses, but the county was responsible for the actual paving of the road, the layout of the road, placement of the drainage ditches, placement of the center line and road-edge stripes, and determination of the speed limit.

¶ 6. At the time of Ladner’s accident, the road was a paved, two-lane public highway with a number of curves and little or no shoulder. The posted speed limit was twenty-five miles per hour, but in certain areas of the road where the curves were sharp, the posted speed limit was fifteen miles per hour.

STANDARD OF REVIEW

¶ 7. The standard of review in workers’ compensation cases is well established. The decision of the Commission will be reversed only if it is not supported by substantial evidence, is arbitrary or capricious, or is based on an erroneous application of the law. Weatherspoon v. Croft Metals, Inc., 853 So.2d 776, 778(¶ 6) (Miss. 2003) (citing Smith v. Jackson Constr. Co., 607 So.2d 1119, 1124 (Miss.1992)). If the Commission’s decision and findings of fact are supported by substantial evidence, then we are bound by them even if we, as fact finder, would have been convinced otherwise. Spann v. Wal-Mart Stores, 700 So.2d 308, 311(¶ 12) (Miss.1997) (citing Fought v. Stuart C. Irby Co., 523 So.2d 314, 317 (Miss.1988)). We will exercise de novo review on matters of law. KLLM, Inc. v. Fowler, 589 So.2d 670, 675 (Miss. 1991).

DISCUSSION

¶ 8. Ladner’s sole argument is that the evidence does not support the decision by the Commission to deny him benefits. Specifically, Ladner argues that his case falls under the recognized exceptions to the general rule that accidents which occur off premises while traveling to or from one’s place of employment are not compen-sable. Quoting from Miller Transporters, Inc. v. Dependents of Seay, 350 So.2d 689, 691 (Miss.1977), the supreme court, in Stepney v. Ingalls Shipbuilding Division, Litton Systems, Inc., 416 So.2d 963, 964 (Miss.1982), stated the general rule with reference to going to and returning from work as follows: “[t]he general rule [is] that the hazards encountered by employees while going to or returning from their regular place of work and off the employer’s premises are not incident to employment and accidents arising therefrom are not compensable.” However, there are exceptions to the general rule. Those exceptions were also set out by the supreme court in Stepney as follows:

(1) where the employer furnishes the means of transportation, or remunerates the employee; or (2) where the employee performs some duty in connection with his employment at home; or (3) where the employee is injured by some hazard or danger which is inherent in the conditions along the route necessarily used by the employee; or (4) where the employer furnishes a hazardous route; or (5) where the injury results from a hazardous parking lot furnished by the employer; or (6) where the place of injury, although owned by one other than the employer, is in such close proximity to the premises owned by the employer as to be, in effect, a part of such premises.

Id. (quoting Wallace v. Copiah County Dumber Co., 223 Miss. 90, 99, 77 So.2d 316, 318 (1955)). An employee who claims an exception to the general rule must prove that he or she comes within one of the exceptions. Aetna Fin. Co. v. Bourgoin, 252 Miss. 852, 858, 174 So.2d 495, 497 (1965).

¶ 9. In Stepney, the supreme court explained that the special hazards exception applies when there is “(1) the presence of a special hazard at the particular off-premises point, and (2) the close association of the access route with the premises, so far as going and coming are concerned.” Stepney, 416 So.2d at 964.

¶ 10. Ladner asserts that his case falls within more than one exception to the rule and that the testimony of his expert witness, Louis Rash, proved that Ladner’s case fell within the third, fourth, and sixth exceptions listed in Stepney. Id. Rash, a civil engineer, testified that the road was particularly hazardous based upon the curvature of the road, the length of the curves, the lack of visibility in some areas, and the location of vegetation close to the edge of the road. However, upon cross-examination, Rash admitted that if Ladner was in fact traveling forty-five miles per hour as he admitted to one of the deputies, then the excessive speed would have caused Ladner to run his vehicle off the road. Rash also later admitted that the general curvature of the road did not create a special hazard. Rash also testified that, although this road was the only route to get to Grand Bear, he observed members of the general public utilizing this road for other purposes than going to Grand Bear. Rash admitted that, although he was employed as an expert witness to determine if the road in question met the design requirements of a county road, he had never seen any regulations for a rural county road.

¶ 11. Rash had testified that the road created a special hazard if Ladner’s vehicle was in the curve of the road and Ladner was then blinded by oncoming headlights. However, Rash agreed that the curve of the road would be irrelevant if Ladner was on a straight stretch of road prior to his accident. There was some discrepancy as to where exactly Ladner’s vehicle left the road, but Ladner testified that he was driving on a straight stretch of road and left the road before reaching the curve.

¶ 12. In her opinion, the ALJ, whose opinion was accepted by the Commission, discussed Rash’s testimony in depth and noted the various discrepancies discussed above. The ALJ also reviewed testimony from the other witnesses. Danny Hodges, the traffic and safety superintendent for Harrison County, testified that Harrison County was responsible for maintaining the road up to the gates into Grand Bear. Hodges stated that he determined the speed limit for the road, placed signs along the road, and placed the appropriate stripes along the road. Hodges said there are between four and six speed-limit signs along Grand Way Boulevard, as well as six “winding road” signs. Hodges testified that, in his opinion, the road was safe and not hazardous.

¶ 13. Kyle Ehrenreich, a private investigator, drove the length of the road and videotaped his journey. Ehrenreich noted on the videotape that the sign at the beginning of Grand Way Boulevard stated, “Grand Bear 6 Miles Ahead.” The next two signs stated “Property Boundary— National Forest land behind this sign” and “O.R.V. Closure Area — Motorized Vehicles allowed on graded roads only.” Robert Weaver, an employee of Harrison County, testified that there had been no other accidents on Grand Way Boulevard.

¶ 14. The ALJ distinguished Ladner’s situation from the facts of Stepney. The supreme court in Stepney awarded benefits to the claimant, who was injured while driving along the sole access road leading into Ingalls Shipyard. In Stepney, the access road was a six-lane highway with two-way traffic and was maintained by a governmental entity. The supreme court found the following facts significant in finding the injury compensable: (1) the access road was the only route in and out of the shipyard; (2) the access road was used primarily by the employees of Ingalls or anyone doing business with Ingalls; (3) thousands of Ingalls’ employees used this access road during shift changes and lunch breaks; (4) the premises on either side of the road were owned by Ingalls; (5) In-galls knew the hazardous nature of the road and had placed a sign at the intersection stating “Dangerous Intersection STOP Look Both Ways Before Entering Road”; and (6) the claimant was required to cross the dangerous intersection every day, thus exposing him to a greater hazard than the general public. Stepney, 416 So.2d at 966. In Ladner’s situation, the accident occurred over a mile from the gates of Grand Bear, the land on either side of the road is owned by the federal government, there was no history of accidents necessitating a warning sign to those using the roadway, the road was not heavily traveled, and Ladner was not required to cross a dangerous intersection.

¶ 15. Ladner also contends that the ALJ failed to specifically address the fourth and sixth exceptions: (1) that Grand Bear furnished a hazardous route and (2) that the accident site was so close to the property that it was actually a part of Grand Bear’s property. Ladner argues that Grand Bear Boulevard was nothing more than a long driveway into Grand Bear. It is clear from her findings that the ALJ neither considered this route to be hazardous nor considered it a part of Grand Bear’s premises. The ALJ referred to the accident site as “more than a mile from the premises owned by the employer.” The ALJ also reiterated the difference between Ladner’s situation and the Stepney case, noting that Ingalls’ owning all the land surrounding the access road was tantamount to it being on the premises of Ingalls. Ladner further claims that if the ALJ had the benefit of Duke ex rel. Duke v. Parker Hannifin Corp., 925 So.2d 893 (Miss.Ct.App.2005), which was handed down by this Court subsequent to the ALJ’s decision, then the ALJ’s decision would have been different. In Duke, this Court reversed the decision of the trial court and remanded the case with instructions to determine benefits. We determined that the decedent was on a special mission or errand for her employer at the time of her death; thus, she was excluded from the general “going and coming” rule. The case at bar is distinguishable because Ladner was not on any special mission or errand for his employer; rather, he was merely going to work.

¶ 16. From her order, it is clear that the ALJ found Rash’s testimony to be less than persuasive and ultimately found that Grand Way Boulevard was not a true special hazard. The ALJ stated:

In conclusion, this most unfortunate motor vehicle accident occurred before the claimant reached his employer’s premises on a road that does not present hazards any more exceptional than any other winding rural road through a forest upon which is recommended a 25 or 15 miles-per-hour speed limit. This accident falls within the “going and coming rule” and is not compensable.

Both the Commission and the trial court affirmed the ALJ’s decision. We find substantial evidence to support the findings of the Commission. Accordingly, we find no error and affirm the judgment of the trial court.

¶ 17. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.