source: Caselaw Access Project

author: COLEMAN, JUSTICE, DICKINSON, PRESIDING JUSTICE, KITCHENS, JUSTICE,

license: Public Domain

text:
    Shirley ADAMS, Individually and as Survivor and Only Heir of Dorothy Turner, Deceased v. GRACELAND CARE CENTER OF OXFORD, LLC, Graceland Management Company, Inc., Lafayette LTC, Inc., and Yalobusha General Hospital and Nursing Home
    NO. 2013-CT-00724-SCT
    Supreme Court of Mississippi.
    01/19/2017

      ATTORNEY FOR APPELLANT: BOBBY FLOYD MARTIN, JR.
    ATTORNEYS FOR APPELLEES: ANDY LOWRY THOMAS L. KIRKLAND, JR., JOHN G. WHEELER
   ON WRIT OF CERTIORARI

COLEMAN, JUSTICE,

FOR THE COURT:

¶ 1. The Lafayette County Circuit Court granted summary judgment in favor of Graceland Care Center of Oxford, LLC; Graceland Management Company, Inc.; Lafayette LTC, Inc.; and Yalobusha General Hospital and Nursing Home (collectively, Graceland) in a case brought by Shirley Adams for injuries her mother allegedly sustained while in the defendants’ care. As the basis for granting summary judgment, the circuit court determined that Adams was judicially estopped from bringing her suit because Adams had failed to disclose the suit in her prior bankruptcy proceedings. Adams appealed, and the Court of Appeals, in a plurality opinion, reversed the circuit court’s decision to grant summary judgment and remanded the case to the circuit court to proceed with a trial on the merits. We granted certiorari review and hold that the Court of Appeals misapprehended the applicable standard of review and the law of judicial estoppel in the instant case. Therefore, we reverse the Court of Appeals’ judgment, and we reinstate and affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶2. Dorothy Turner was a resident at Graceland’s nursing home facilities for several years. Her daughter, Adams, became concerned with Turner’s care and treatment at the facilities, and according to Adams’s deposition, she first contacted an attorney about a possible lawsuit in 2004 or 2005. For whatever reason, Adams did not pursue a suit at that time. However, Turner died in December 2007, and Adams filed suit against Graceland in May 2008.

¶ 3. During Adams’s deposition in August 2009, counsel for Graceland discovered that in August 2004, Adams had filed for Chapter 13 bankruptcy. Adams’s bankruptcy was fully discharged on March 31, 2009; however, in spite of her filing suit almost a year prior to her discharge, Adams did not inform the bankruptcy court of her suit nor did she amend her bankruptcy schedules to include the suit.

¶ 4. Upon learning of her prior bankruptcy and her failure to include the suit in her schedules prior to discharge, Graceland moved for summary judgment based on the doctrine of judicial estoppel. Adams filed a petition to reopen her bankruptcy proceeding and amend her schedules to list the suit as exempt personal property. The bankruptcy trustee objected to the classification of the suit as exempt personal property, and the bankruptcy court agreed and sustained the objection. Ultimately, Adams did amend her schedules to include the suit.

¶ 5. The circuit court initially noted by letter that it would grant Graceland’s motion for summary judgment; however, following our opinion in Copiah County v. Oliver, 51 So.3d 205, 207 (¶ 12) (Miss. 2011), the circuit court entered an order staying the proceeding for the bankruptcy court to determine whether Adams had a duty to disclose her suit as an asset of her bankruptcy estate. The bankruptcy court’s opinion was that “Adams had a continuing duty throughout the pendency of her bankruptcy case to disclose the state law cause of action.” In re Adams, 481 B.R. 854, 859 (Bankr. N.D. Miss. 2012). Additionally, the bankruptcy trustee submitted a letter, at the bankruptcy court’s request, indicating that it would not administer payment of any of the settlement/judgment proceeds to the unsecured creditors that remained at discharge.

¶ 6. Ultimately, the circuit court granted Graceland’s renewed motion for summary judgment based on the doctrine of judicial estoppel. Adams appealed, and the Court of Appeals rendered its decision in November 2015. In the plurality opinion reversing the grant of summary judgment and remanding the case to the circuit court for trial, the Court of Appeals concluded that the circuit court had erred in applying judicial estoppel because Adams did not “knowingly” take inconsistent positions in the circuit court and bankruptcy court, nor did she, viewing the evidence “in the light most favorably to Adams, ... intend[ ] to conceal her claim from the bankruptcy court in order to reap a windfall by preventing her creditors from recovering any proceeds from a potential judgment.” Adams v. Graceland Care Ctr. of Oxford, LLC, et al., 208 So.3d 597, 604, 2015 WL 6685213, *6 (¶¶ 21-22) (Miss. Ct. App. Nov. 3, 2015). Following the Court of Appeals’ denial of Graceland’s motion for rehearing, Graceland filed its petition for certiorari review, which we granted.

ANALYSIS

¶ 7. In its petition for certiorari review, Graceland raises three issues. First, Graceland asserts that the Court of Appeals’ opinion “usurped the trial court’s discretion by imposing the wrong standard of review.” Next, Graceland claims that the Court of Appeals’ opinion “misapplies the law of judicial estoppel.”

I. Standard of Review

¶ 8. According to Graceland, the Court of Appeals’ opinion erred by utilizing a de novo review of the circuit court’s application of judicial estoppel instead of an abuse of discretion standard of review. We agree that the Court of Appeals conflated the standards of review in the present case, because it appears that the Court of Appeals attempted to apply a de novo review to both the application of judicial estoppel and the grant of summary judgment.

¶ 9. It is well-settled that appellate review of the trial court’s grant or denial of a motion for summary judgment requires the application of de novo review. Copiah Cty. v. Oliver, 51 So.3d 205, 207 (¶ 7) (Miss. 2011) (citing Monsanto v. Hall, 912 So.2d 134, 136 (Miss. 2005)). Similarly settled is the standard of review applied to a trial court’s application of judicial estop-pel, which is the abuse of discretion standard. Kirk v. Pope, 973 So.2d 981, 986 (¶ 11) (Miss. 2007) (citing Superior Grewboats, Inc. v. Primary P & I Underwriters, 374 F.3d 330, 334 (5th Cir. 2004)).

¶ 10. The Court of Appeals’ decision implied that, under Oliver, a new standard of review — de novo — is applied to cases involving a trial court’s grant of summary judgment based on judicial estoppel. However, that simply is not the case, and our opinion in Oliver does no such thing. As the dissent in the Court of Appeals’ opinion pointed out, our opinion in Oliver “did not review the merits of the trial court’s application of the doctrine of judicial estop-pel.” Adams, 208 So.3d at 605, 2015 WL 6685213, at *7 (¶ 26) (Wilson, J., dissenting). We merely stated that the standard of review for summary judgment is de novo and that the trial court’s denial of summary judgment under the de novo standard was appropriate because the bankruptcy court needed an “opportunity to consider whether Oliver had a duty to disclose her post-petition, post-confirmation claim” before the trial court could determine whether judicial estoppel even applied. Oliver, 51 So.3d at 207 (¶¶ 7, 11-12).

¶ 11. Gibson v. Williams, Williams & Montgomery, P.A., 186 So.3d 836 (Miss. 2016), upon which the dissent by Justice Kitchens largely relies, does nothing to contradict our holding. The Gibson Court did not separately address the standard of review for the application of judicial estop-pel; in other words, although it clearly acknowledged the de novo standard of review applicable to summary judgment, the Gibson Court does not tell us whether it applied a de novo or abuse of discretion standard to the issue of judicial estoppel. Id. at 846-847 (¶¶ 24-30). Accordingly, we respectfully disagree with Justice Kitchens’s assumption that the Gibson Court applied a de novo standard of review when it discussed judicial estoppel. (Kitchens Dis. at ¶ 32). Although the Gibson Court does not tell its readers why it omitted any discussion of the standard of review, it may well be because it was not reviewing anything but, rather, considering an alternative argument advanced on appeal. According to the Gibson opinion, the trial judge did not base the decision there under review on judicial estoppel and appears to have made no determination, one way or the other, regarding its application. Id. at 842 (¶ 12). Rather, the trial judge there granted summary judgment based on the application of collateral estoppel. Id.

¶ 12. Therefore, the appropriate analysis requires an appellate court to use the abuse of discretion standard to review the trial court’s determination that judicial estoppel is or is not applicable. Then, an appellate court would use the de novo standard to determine whether summary judgment was or was not appropriate. We hold that the Court of Appeals erred when it applied an incorrect standard of review in its review of the present case. Because the Court of Appeals applied an incorrect standard of review, we now address whether the circuit court properly applied judicial estoppel and whether summary judgment was appropriate, using the appropriate standards of review for each issue.

II. Judicial Estoppel

¶ 13. As explained above, we review the circuit court’s application of judicial estoppel using the abuse of discretion standard. “Our inquiry is limited to whether the trial judge abused his discretion; we may not rule on whether he was ‘right’ or ‘wrong’ in our view. And, unless the trial court based its decision on an erroneous review of law, ... this Court is not authorized to reverse for an abuse of discretion unless we find it was ‘arbitrary and clearly erroneous.’ ” Detroit Marine Eng’g v. McRee, 510 So.2d 462, 467 (Miss. 1987) (citations omitted).

¶ 14. Judicial estoppel operates to protect the integrity of the judicial system. Gibson, 186 So.3d at 847 (¶ 24). It has three elements, and “[a] party will be judicially estopped from taking a subsequent position if (1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently take the inconsistent positions.” Clark v. Neese, 131 So.3d 556, 560 (¶ 16) (Miss. 2013) (citing Kirk, 973 So.2d at 991 (¶ 32)). Further, “[a] debtor’s non-disclosure is ‘inadvertent only when, in general, the debt- or either lacks knowledge of the undisclosed claim or has no motive for their concealment.’” Kirk, 973 So.2d at 991 (¶ 35).

¶ 15. The circuit court heard arguments on the application of judicial estop-pel to the present case, and it concluded that Adams’s failure to inform the bankruptcy court of her cause of action was not inadvertent. The circuit court explained that, based on Adams’s own testimony and affidavit, “she had knowledge of the facts supporting her cause of action prior to the discharge of her Chapter 13 proceeding.” The circuit court had all of the contradictory evidence in front of it regarding Adams’s claims that her failure to amend her bankruptcy schedules was unintentional, due to a lack of knowledge of the law, and ultimately, in her opinion, inadvertent. Weighing on the other side was the bankruptcy court’s holding that Adams had a continuing duty to update her bankruptcy schedules, that Adams began investigating a claim about her mother’s care years before her mother died and suit was filed, that Adams amended her bankruptcy schedules only after Graceland filed its motion to dismiss; and that Adams is the sole beneficiary of her mother and the suit.

¶ 16. In looking at the elements of judicial estoppel and the facts as presented to the circuit court, it is evident to the Court that the circuit court did not err in finding Adams judicially estopped from bringing her suit. First, the bankruptcy court’s holding that Adams had a continuing duty to update her bankruptcy schedules, which she did not do, helps satisfy the first element of judicial estoppel that Adams has taken inconsistent positions. Next, the bankruptcy court accepting the original bankruptcy schedules and then discharging Adams under the original schedules without the lawsuit listed satisfies the second element of judicial estoppel that a court accepted Adams’s previous position. Additionally, Adams’s attempt to amend her bankruptcy schedules after Graceland filed the motion for summary judgment does not cure the fact that the bankruptcy court relied on her position. “Allowing the debtor to back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing personal assets only if he is caught concealing them.” Love v. Tyson Foods Inc., 677 F.3d 258, 262 (5th Cir. 2012) (citation omitted). The final element is whether Adams did not inadvertently take the inconsistent positions. As the circuit court explained in its judgment, Adams certainly had “knowledge of the facts supporting her cause of action prior to the discharge of her Chapter 13 proceeding.” Further, it is obvious that Adams had a motive to conceal the claim, as she is the sole beneficiary of her suit and her mother’s estate. See id. (“‘[T]he motivation sub-element is almost always met if a debtor fails to disclose a claim or possible claim to the bankruptcy court. Motivation in this context is self-evident because of potential financial benefit resulting from the nondisclosure.’ Similarly, this court has found that debtors had a motivation to conceal where they stood to ‘reap a windfall had they been able to recover on the undisclosed claim without having disclosed it to the creditors.’ ”) (Internal citations omitted.)

¶ 17. In dissents, Presiding Justice Dickinson and Justice Kitchens both attempt to create an issue of fact by citing Adams’s affidavit in which she averred that she was distracted by the treatment of her mother to the point that it did not occur to her to update her bankruptcy schedules. We must in the summary judgment take such averments as true, but even taken as true, they do not change the result. In the context of judicial estoppel, distraction and forgetfulness do not suffice to show inadvertence. As noted above, “A debtor’s nondisclosure is ‘inadvertent’ only when, in general, the debtor either lacks knowledge of the undisclosed claims or has no motive for their concealment.” Kirk, 973 So.2d at 991 (¶ 35). Neither applies to Adams here, however good a reason she may have had for her distraction. The trial court correctly found, based on undisputed facts, that she had both knowledge of her claim and a motive for concealing it. By law, her failure to disclose the asset-on her bankruptcy schedules could not have been inadvertent, no matter if she was distracted.

¶ 18. Presiding Justice Dickinson contends that Adams has created ah issue of material fact as to motive with her above-described affidavit. Yet we do - hot, as he accuses, affirm summary judgment despite the existence of a disputed issue of material fact. Rather, we take the facts averred by Adams in her affidavit as true, but in the end hold them to be immaterial given the law. See Bradley v. Kelley Bros. Contractors, Inc., 117 So.3d 331, 338 (¶27) (Miss. 2013) (“To survive summary judgment, it is not enough that disputed facts exist — such facts must also be material.”)

¶ 19. In In re Superior Crewboats, Inc., 374 F.3d 330 (5th Cir. 2004), the United States Court of Appeals for the Fifth Circuit reversed the district court’s refusal to apply the doctrine of judicial estoppel due to the debtors’ failure to disclose a personal injury claim to the bankruptcy court. Like Adams, the plaintiffs in Superior Crewboats claimed that their failure to report the injury claim resulted from confusion — in their case over what law applied to their personal injury claim. Id. at 335. The Fifth Circuit held that the plaintiffs’ alleged confusion was “of no moment.” Id. The Superior Crewboats Court went on to write that the debtors’ confusion did “not evince a lack of knowledge as to the existence of the claim.” Id. Accordingly, the Fifth Circuit reversed the district court, which had found that the debtors created an issue of material fact when they claimed that their confusion caused them to fail to report the claim. Id. Then, the Fifth Circuit proceeded to do exactly what we do above — and what Presiding Justice Dickinson would take us to task for doing — by holding that the debtors indeed had a motive by writing as follows:

The Hudspeaths had the requisite motivation to conceal the claim as they would certainly reap a windfall had they been able to recover on the undisclosed claim without having disclosed it to the creditors. Such a result would permit debtors to “[c]onceal their claims; get rid of [their] creditors on the cheap, and start over with a bundle of rights.” Payless Wholesale Distrib., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570, 571 (1st Cir. 1993).

In re Superior Crewboats, Inc., 374 F.3d at 336.

¶ 20. In Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), the Eleventh Circuit also rejected a claim by the debtor that the failure to report a claim in bankruptcy resulted from inadvertent error. Id. at 1286-1287. The Bumes Court held that, despite the debtor’s claims of inadvertence and, accordingly, lack of motive, “deliberate or intentional manipulation can be inferred from the record.” Id. at 1287. In the case sub judice, the trial judge did just that in exercising his discretion in applying the doctrine of judicial estoppel. “[T]he importance of full and honest disclosure [of assets in bankruptcy] cannot be overstated.” Id. at 1286. The efficacy of federal bankruptcy proceedings, including fairness to creditors, relies on such full and honest disclosure. Accordingly, we consider persuasive the federal authorities cited above, that infer motive from the circumstances of the record even in the face of claims of inadvertence by debtors.

¶ 21. “Judicial estoppel is particularly appropriate where, as here, a party fails to disclose an asset to a bankruptcy court, but then pursues a claim in a separate tribunal based on that undisclosed asset.” Jethroe v. Omnova Sols., Inc., 412 F.3d 598, 600 (5th Cir. 2005). Therefore, based on our review of the record and our standard of review, we hold that the circuit court’s decision has support in the evidence and our precedent, and we decline to hold that the circuit court abused its discretion in concluding that Adams was judicially estopped from bringing her suit.

III. Summary Judgment

¶ 22. Mississippi Rule of Civil Procedure 56(c) provides that, “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[,]” then “[t]he judgment sought shall be rendered forthwith[.]” “The evidence must be viewed in the light most favorable to the party against whom the motion has been made.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss. 2001) (quoting Heigle v. Heigle, 771 So.2d 341, 345 (¶ 8) (Miss. 2000)).

¶ 23. In light of our determination that the circuit court did not err in finding Adams judicially estopped from pursuing her suit, we cannot hold that any genuine issue of material fact exists for which Adams could defeat summary judgment. Therefore, the circuit court’s grant of summary judgment was appropriate.

CONCLUSION

¶ 24. The proper standard of review for reviewing a trial court’s imposition of judicial estoppel is the abuse of discretion standard, and the proper standard of review for reviewing a trial court’s decision to grant or deny summary judgment is de novo. Because the Court of Appeals erroneously applied a de novo review to the circuit court’s imposition of judicial estop-pel, we reverse the judgment of the Court of Appeals, and we reinstate and affirm the judgment of the circuit court.

¶ 25. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS REINSTATED AND AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., BEAM AND CHAMBERLIN, JJ„ CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND KING, J. MAXWELL, J., NOT PARTICIPATING.

DICKINSON, PRESIDING JUSTICE,

DISSENTING:

¶ 26. I join Justice Kitchens’s well-reasoned dissent. But I am compelled to write separately to address the majority’s troubling conclusion that, for the first time in this Court’s history, a disputed fact question does not doom summary judgment, but rather is to be decided by the trial court and reviewed for an abuse of discretion. Because Shirley Adams created a disputed question of material fact when she swore she did not know she was supposed to list her lawsuit in bankruptcy, summary judgment is inappropriate.

¶ 27. The majority claims that both Justice Kitchens and I are attempting “to create an issue of fact by citing Adams’s affidavit in which she averred that she was distracted by the treatment of her mother to the point that it did not occur to her to update her bankruptcy schedules.” Not so. I do not suggest Adams created a genuine issue of material fact by claiming mere distraction. Instead, Adams created a genuine issue of material fact when she swore in her affidavit: “I had no idea that I was supposed to change my bankruptcy to show the lawsuit.” The majority never addresses this statement.

¶28. The majority correctly points out that in In re Superior Crewboats, Inc., the United States Court of Appeals for the Fifth Circuit applied judicial estoppel to bar a suit that had not been disclosed in bankruptcy proceedings. But the majority fails to disclose that the Fifth Circuit specifically noted that the plaintiffs “were aware of ... their continuing obligation to disclose its existence to the court.” Here, Adams’s affidavit refutes that she possessed that knowledge. And, if Adams is telling the truth — and we are supposed to accept her statement as true — I would have thought it obvious that she had no motive to conceal her lawsuit from the bankruptcy court until she learned she was obligated to disclose it. I challenge the majority logically to explain how one can possess a motive to withhold disclosure of information that person is unaware of any obligation to disclose.

¶29. One cannot reach the majority’s conclusion without resolving the disputed fact question as to whether Adams was aware she had to disclose this suit in her bankruptcy filings. In her affidavit, she swears she was unaware of this and that should defeat summary judgment. I predict the majority’s decision to impose upon circuit judges the duty to judge the credibility of affidavits filed in opposition to motions for summary judgment, will come as a curiosity to the Bar and an unpleasant surprise to the Bench.

KITCHENS AND KING, JJ., JOIN THIS OPINION.

KITCHENS, JUSTICE,

DISSENTING:

¶ 30, Because the trial court erred in granting summary judgment to Graceland on the basis of judicial estoppel, I respectfully dissent.

¶ 31. With regard to the standard of review, the majority holds that “the appropriate analysis requires an appellate court to use the abuse of discretion standard to review the trial court’s determination that judicial estoppel is or is not applicable” and “[t]hen, the appellate court would use the de novo standard to determine whether summary judgment was or was not appropriate.” Maj. Op. ¶ 12. The majority bases its holding that judicial estoppel is reviewed for an abuse of discretion on Kirk v. Pope, 973 So.2d 981, 986 (Miss. 2007) (citing Superior Crewboats, Inc. v. Primary P & I Underwriters, 374 F.3d 330, 334 (5th Cir. 2004)). But in Kirk, this Court was reviewing a motion for relief from judgment, filed pursuant to Rule 60(b) of the Mississippi Rules of Civil Procedure, through which the defendant had asserted judicial estoppel. Kirk, 973 So.2d at 986. A Rule 60(b) motion is reviewed for abuse of discretion. Kirk, 973 So.2d at 986 (citing Hartford Underwriters Ins. Co. v. Williams, 936 So.2d 888, 892 (Miss. 2006)).

¶ 32. Here, the defendants asserted judicial estoppel through a motion for summary judgment, filed pursuant to Rule 56 of the Mississippi Rules of Civil Procedure. When reviewing a trial court’s grant or denial of a motion for summary judgment, “ ‘this Court applies a de novo standard of review.’” Gibson v. Williams & Montgomery, P.A., 186 So.3d 836, 844 (Miss. 2016) (quoting Burleson v. Lathem, 968 So.2d 930, 932 (Miss. 2007)). Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” M.R.C.P. 56(c). “Further, this Court views the evidence in the light most favorable to the nonmoving party.” Gibson, 186 So.3d at 844 (citing Duckworth v. Warren, 10 So.3d 433, 436 (Miss. 2009)). “‘[T]he moving party has the burden of demonstrating that [no] genuine issue of material fact[] exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.’” Gibson, 186 So.3d at 844 (quoting One South, Inc. v. Hollowell, 963 So.2d 1156, 1160 (Miss. 2007)).

¶ 33. In Copiah County v. Oliver, 51 So.3d 205, 206 (Miss. 2011), “Copiah County filed a motion for summary judgment, asserting that Oliver should be judicially estopped from pursuing her personal-injury claim because she had never amended her bankruptcy schedule of assets to reflect the existence of her claim against the county.” The majority in the present case, quoting the dissenting opinion from the Mississippi Court of Appeals, observed that the Oliver Court “ ‘did not review the merits of the trial court’s application of the doctrine of judicial estoppel.’” Maj. Op. ¶10 (quoting Adams v. Graceland Care Ctr. of Oxford, LLC, 208 So.3d 597, 605, 2015 WL 6685213, at *7 (Miss. Ct. App. Nov. 3, 2015) (Wilson, J., dissenting)), Indeed, the Oliver Court affirmed the denial of summary judgment because the United States Bankruptcy Court for the Southern District of Mississippi had not yet determined whether Oliver had a duty to disclose her personal injury claim to the bankruptcy court. Oliver, 51 So.3d at 205, 207.

¶ 34. In Gibson v. Williams, Williams & Montgomery, P.A., 186 So.3d 836, 844 (Miss. 2016), this Court applied a de novo standard of review to the trial court’s grant of summary judgment to the defendants, based — in part — on judicial estop-pel. In that case, this Court considered whether judicial estoppel applied to bar Bobby Gibson, a surviving husband who “had signed and joined .... various petitions filed throughout the estate proceedings,” from bringing a legal malpractice claim against the attorneys who handled the estate. Id. at 846-47. This Court noted the three elements which must “be met for judicial estoppel to apply: (1) the position must be clearly inconsistent with one taken during previous litigation; (2) the court must have accepted and relied on the previous position; and (3) the party must not have inadvertently taken the inconsistent position.” Id. at 846 (citing Kirk, 973 So.2d at 991).

¶ 35. This Court held that judicial estop-pel did not preclude Gibson’s legal malpractice action:

[Jjudicial estoppel applies only when the inconsistent position was not taken inadvertently. If [Gibson’s] assertions prove to be true, and his claims later prove to be meritorious, then he signed the petitions either because he had received bad advice from his attorney, or because his attorney had breached a fiduciary duty to him by failing to fully inform him of the implications of signing the petitions.

Gibson, 186 So.3d at 847. The Court continued: “[b]ased on [Gibson’s] allegations — which we must accept as true for purposes of summary judgment — we hold that, at the very least, [Gibson] inadvertently took these inconsistent positions, thus precluding judicial estoppel.” Id. (emphasis in original). After conducting a de novo review, this Court reversed the trial court’s grant of summary judgment to the defendants and remanded the case to the trial court. Id. at 840, 853.

¶ 36. This Court in Gibson applied a de novo standard of review in considering whether to apply judicial estoppel to Gibson’s legal malpractice claims. I respectfully disagree that the Court of Appeals plurality erred in its application of that standard to the present case. The defendants elected to raise judicial estoppel through a motion for summary judgment. Therefore, they are bound on appeal by the standard of review applicable to that procedural mechanism.

¶ 37. I also agree with the Court of Appeals’ plurality that the defendants failed to demonstrate that no genuine issue of material fact exists regarding whether Adams took the position in the suit inadvertently: “[W]e cannot say that the evidence shows that Adams knowingly took inconsistent positions in the trial court and bankruptcy court.” Adams, 208 So.3d at 604, 2015 WL 6685213, at *6. It is true that Adams is her mother’s survivor and only heir and therefore the beneficiary of the present lawsuit. And it is true, as the majority points out, that “ ‘[t]he motivation sub-element is almost always met if a debtor fails to disclose a claim or possible claim to the bankruptcy court’ ” and that “‘[m]otivation in this context is self-evident because of potential financial benefit resulting from the nondisclosure.’ ” Love v. Tyson Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012) (internal citations omitted). Further, a motivation to conceal can be shown if the plaintiff “stood to ‘reap a windfall had [plaintiff] been able to recover on the undisclosed claim without having disclosed it to the creditors.’ ” Id. (quoting Superior Crewboats, Inc., 374 F.3d at 336). Nevertheless, even if a motive for concealment can be shown by the defendant, the Fifth Circuit has recognized that such showing is rebuttable by the plaintiff: “After [defendant] set out this motivation to conceal, it fell to [plaintiff] to show that the omission of his claims from his schedule of assets was inadvertent.” Love, 677 F.3d at 262.

¶ 38. Here, in response to the motion for summary judgment, Adams filed an affidavit in which she stated that “[i]n December, 2007, when my mother died, and in the months after, I did not even think about adding the lawsuit I filed for the terrible treatment she received from the Nursing Homes she stayed in. I had no idea that I was supposed to change my bankruptcy to show the lawsuit.” Further, Adams stated that “[a]s soon as I knew I was supposed to add the suit, I asked Mr. Guernsey at Thomas Reynolds’ office to do what he needed to do to make that happen” and that her “lawyer, Mr. Skouteris, did most of the talking to Mr. Guernsey.” She stated that “[i]n the Bankruptcy Court, I always answered every question honestly and told the truth to Mr. Reynolds and his staff members who prepared the papers.” She stated that she “never tried to hide anything and .... never told a lie” and that “[t]he last time I had anything to do with the Bankruptcy, except to pay into the Trustee was in 2005, before I even knew my mother was getting poor treatment from Graceland.”

¶ 39. Stewart Guernsey stated in his affidavit attached to Adams’s response to the motion for summary judgment that, on October 13, 2009, he filed Adams’s “Motion to Re-Open to add an additional asset, an unliquidated cause of action which had matured in late 2007 or early 2008” and that the motion had been granted on October 16, 2009. Guernsey then amended “schedules B and C[] to include the unlisted asset.” Guernsey, who interviewed Adams, stated that he “was convinced and remain so, that Ms. Adams was an ‘unsophisticated consumer’ who failed to list her lawsuit as a result of inadvertence only.” According to Guernsey, Adams had “indicated during our conversation that she had no idea that she should list a lawsuit that she filed four years after filing her bankruptcy.”

¶ 40. At her deposition, Adams was candid that she had not listed the lawsuit as an asset on her bankruptcy schedule of assets. She responded “[n]o” when asked whether she remembered, “as part of any of your bankruptcy proceedings, being asked whether or not you had any pending lawsuits[ ].”

¶ 41. The trial court found that, “based on Plaintiffs own affidavit and deposition testimony, [Adams] had knowledge of the facts supporting her cause of action prior to the discharge of her Chapter 13 proceeding.” But the defendants had filed a motion for summary judgment. Instead of determining whether a genuine issue of material fact existed as to whether Adams had taken inconsistent positions knowingly, the trial court resolved the ultimate disputed fact question. But the existence of a genuine issue of material fact requires that the trial court deny the defendant’s motion for summary judgment. The majority’s finding that the trial court’s factual determination is supported by the evidence perpetuates the trial court’s erroneous resolution of the fact question.

¶ 42. Judicial estoppel is analogous to a statute of limitations affirmative defense, which often is raised through a motion for summary judgment. This Court has recognized that “[c]onsistent with the Mississippi Rules of Civil Procedure, we are of the opinion that the question of the running of the statute of limitations to bar an action may also be the subject of a summary judgment if there exists no genuine issues of material fact concerning the question.” Smith v. Sanders, 485 So.2d 1051, 1053 (Miss. 1986). However, “[o]ccasionally the question of whether the suit is barred by the statute of limitations is a question of fact for the jury; ... as with other putative fact questions, the question may be taken away from the jury if reasonable minds could not differ as to the conclusion.” Id. See also Ridgway Lane & Assocs., Inc. v. Watson, 189 So.3d 626 (Miss. 2016); Lyas v. Forrest Gen. Hosp., 177 So.3d 412 (Miss. 2015); Holaday v. Moore, 169 So.3d 847 (Miss. 2015); Crawford v. Custom Sign Co., 138 So.3d 894 (Miss. 2014); Honeycutt v. Coleman, 120 So.3d 358 (Miss. 2013). No appreciable difference exists in the applicability of a statute of limitations affirmative defense and a judicial estoppel affirmative defense in the context of a motion for summary judgment.

¶43. Viewing these facts in the light most favorable to Adams, as we must do in reviewing a motion for summary judgment on appeal, I would hold that a genuine factual dispute exists regarding whether Adams’s positions in the bankruptcy court and in the trial court were inadvertently contrary. See Love, 677 F.3d at 262.

DICKINSON, P.J., AND KING, J., JOIN THIS OPINION.

      . "After reviewing the timely filed and allowed general unsecured claims which total $4,719.53, the trustee reports that she would abandon any settlement or judgment proceeds and not administer the payment of such on behalf of the bankruptcy estate.”

      . Graceland argues that the Court of Appeals’ opinion "turns judicial estoppel into 'jury es-toppel' and invites forum-shopping”; however, we decline to address it based on our holdings on the other issues raised.

      . In the parties' briefs, neither argued that the application of judicial estoppel should receive a de novo review. Additionally, the Court of Appeals’ opinion initially cites the abuse of discretion standard as the appropriate standard before applying a de novo standard.

      . In re Superior Crewboats, Inc., 374 F.3d 330, 335 (5th Cir. 2004).

      . Miss. R. Civ. P. 56.

      . The United States Court of Appeals for the Fifth Circuit has held that a district court’s grant of summary judgment is reversible "if we find that there is a genuine factual dispute regarding whether [plaintiff] failed to disclose his claims inadvertently.” Love v. Tyson Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012) (citing F.R.C.P. 56(a)).


author: ISHEE, J.,

text:
    Anderson WHITE, II, Appellant v. Barbara WHITE, Appellee
    NO. 2015-CA-00840-COA
    Court of Appeals of Mississippi.
    12/13/2016

      ATTORNEYS FOR APPELLANT: B. BLAKE TELLER, LAUREN ROBERTS CAPPAERT
    ATTORNEYS FOR APPELLEE: VA-TERRIA MCQUITTER MARTIN, DESHUN TERRELL MARTIN
    BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.
   ISHEE, J.,

FOR THE COURT:

¶ 1. Anderson White II and Barbara White were married in July 2004. In December 2011, Barbara filed for a divorce in the Warren County Chancery Court based upon uncondoned adultery and habitual cruel and inhuman treatment. In December 2014, Barbara was granted a divorce on the ground of habitual cruel and inhuman treatment. As a result, Barbara was ultimately awarded two homes and one vehicle. On appeal, Anderson argues that: (1) the chancellor erred in finding that Barbara met the burden of proof required to obtain a divorce on the ground of habitual cruel and inhuman treatment; and (2) the chancellor erred in the equitable division of the parties’ property. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On July 6, 2004, Anderson and Barbara were married. The record reflects that on or around March 18, 2011, the parties separated, with no children being born or expected from their union. Anderson owned A & A Bonding Company, a bail-bonding business. Barbara was employed as an admission registrar with River Region Health System in Vicksburg, Mississippi; she also worked at Anderson’s bail-bonding company as an office manager and agent. At the time of the parties’ marriage, Barbara owned a home at 204 Sherman Avenue in Vicksburg; the home was valued at $100,000 and possessed two mortgages. Likewise, Anderson owned a home prior to and during the parties’ marriage located at 401 Farmer Street in Vicksburg; the home was paid in full and valued at $46,120.

¶ 3. The parties elected to live at Barbara’s Sherman Avenue property, in which Barbara quitclaimed her interest to Anderson. To obtain funds to build a marital home, the parties refinanced the Sherman Avenue property, with Anderson paying off the second mortgage. The parties later sold the Sherman Avenue home for $100,000, and also secured a $50,000 loan on the Farmer Street property through refinancing.

¶ 4. The parties were eventually able to build a marital home at 135 Memory Lane in Vicksburg, valued at $380,000 and possessing a mortgage balance of $180,000; this property was titled in Anderson’s name, and served as the marital domicile from October 2006 until the present matter was commenced. After moving into 135 Memory Lane, the parties built a house at 130 Memory Lane, which was valued at $226,300, paid in full, and also titled in Anderson’s name. The parties never occupied the 130 Memory Lane home.

¶ 5. In addition to the parties’ homes, Anderson and Barbara obtained several different vehicles during their marriage — a 1993 Lexus 400 valued at $2,000; a 2005 Lexus SC430 valued at $10,000; a 2011 Lexus ES350 valued at $25,000; and a 2011 Lexus LS450 valued at $35,000. At the time of trial, Barbara possessed only the Lexus ES350. Following Barbara’s departure from the marital home, Anderson acquired an additional 2013 Lexus LX570. The parties also possessed a joint debt from an account with Mid-South Lumber and Supply for a balance of $9,186.81, incurred during the construction of the parties’ Memory Lane homes. The total amount of marital debt at the time of trial was $279,749.61.

¶ 6. The record reveals the parties were less than amicable with one another throughout the duration of their marriage. Among various instances of marital discord, the facts show Barbara was routinely displaced from the marital home, law-enforcement officers were repeatedly summoned, and Anderson discarded Barbara’s personal belongings outside the home on more than one occasion. Two events, however, were of primary importance to the chancery court’s findings. At trial, Barbara testified that in 2005, Anderson choked and struck her, resulting in a black eye, after Barbara failed to return home directly after completing an errand for Anderson. In response, Anderson denied striking Barbara, and further testified that he was unaware how Barbara incurred the injury. In 2009, there was a separate incident, which has been referred to as the “cocked gun” incident. Barbara testified that the events leading to this dispute stemmed from an argument the parties had over the shrimp and fish Barbara was preparing for dinner. Following the argument, Barbara, her mother, and her sister all testified that Anderson angrily ran upstairs where they then heard a gun “cock” or “click,” Barbara’s mother, however, testified that she did not realize at that time the noise she heard was related to the use of a gun. Anderson admitted he owned many guns, arranged throughout the marital home, but claimed that the incident never occurred; Anderson’s son, Anderson White III, also testified that Anderson never left the room where the argument took place. Law-enforcement officers were called after the alleged altercation, and Barbara did not stay at the marital home that evening, stating that Anderson told her “that if she did not leave, something bad would happen to her.” Anderson admitted to serving Barbara with an eviction notice the following day, claiming to be the landlord and owner of the residence.

¶ 7. These events, in conjunction with the entirety of the parties’ marriage, prompted Barbara to file for a divorce in December 2011, asserting uncondoned adultery and habitual cruel and inhuman treatment. In 2008 and 2009, however, both parties had filed prior complaints for divorce in the chancery court, with Barbara filing for divorce in February 2008, and Anderson filing for divorce in June 2009. With the present matter pending, a January 2012 order was entered dismissing with prejudice both Anderson’s 2009 complaint for divorce and Barbara’s counterclaim. As such, Anderson argued that issues asserted in Barbara’s counterclaim were precluded from consideration in the present matter, pursuant to Mississippi Rule of Civil Procedure 41; the chancellor, however, found otherwise. Citing to Mississippi Rule of Civil Procedure 60(a), the chancellor entered an order sua sponte stating that the January 2012 order should have dismissed Anderson’s complaint with prejudice and Barbara’s counterclaim without prejudice, as the reasons for the January 2012 order were the failure of Anderson to prosecute, and to allow Barbara to proceed with her complaint filed in the instant matter, which was pending at the time of the January 2012 order.

¶ 8. In September 2014, the present matter went to trial, where the chancery court granted Barbara a divorce on the ground of habitual cruel and inhuman treatment. The chancery court ultimately awarded Barbara the homes located at 130 Memory Lane and 401 Farmer Street, as well as the Lexus ES350. Anderson was ultimately awarded the marital home located at 135 Memory Lane, as well as the Lexus 400, Lexus SG430, and Lexus LS450. The chancery court found each party equally responsible for the marital debt, totaling $279,749.61, with each party accountable for $139,874.80. After calculations were assessed from the total value of property each party was awarded, Barbara was left with a deficit of $125,580, rendering her responsible for $77,084.80 of the parties’ debts. Lastly, the chancery court found that since neither party exhibited an inability to pay, the parties would be responsible for their own individual litigation expenses.

¶9. Aggrieved, Anderson now appeals, asserting that: (1) the chancellor erred in finding that Barbara met the burden of proof required to obtain a divorce on the ground of habitual cruel and inhuman treatment; and (2) the chancellor erred in the equitable division of the parties’ property. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 10. It is well settled that appellate courts are bound by a limited standard of review in domestic-relations matters. See, e.g., Ferguson v. Ferguson, 639 So.2d 921, 930 (Miss. 1994). The Mississippi Supreme Court has held that a chancellor’s findings of fact, especially in divorce cases such as the instant case, “will generally not be overturned by this Court on appeal unless they are manifestly wrong.” Fancher v. Pell, 831 So.2d 1137, 1140 (¶ 15) (Miss. 2002) (citing Nichols v. Tedder, 547 So.2d 766, 781 (Miss. 1989)). The chancellor must have been manifestly wrong or clearly erroneous, or have applied an erroneous legal standard for the findings to be overturned. Montgomery v. Montgomery, 759 So.2d 1238, 1240 (¶ 5) (Miss. 2000). “In the case of a divorce decree, facts will be viewed ‘in a light most favorable to the appellee.’ ” G.B.W. v. E.R.W., 9 So.3d 1200, 1204 (¶ 8) (Miss. Ct. App. 2009) (quoting Bodne v. King, 835 So.2d 52, 57 (¶ 16) (Miss, 2003)). “For questions of law, our standard of review is de novo.” Shoffner v. Shoffner, 909 So.2d 1245, 1249 (¶ 11) (Miss. Ct. App. 2005).

DISCUSSION

I. Habitual Cruel and Inhuman Treatment

¶ 11. First, Anderson argues that the facts asserted by Barbara at trial do not rise to the level necessary to establish habitual cruel and inhuman treatment. In response, Barbara argues that this Court should do as the chancery court did, and review the acts not in isolation, but as a whole. Finding no error with the chancery court’s analysis, we affirm the chancery court’s judgment.

¶ 12. In Rakestraw v. Rakestraw, 717 So.2d 1284 (Miss. Ct. App. 1998), this Court reiterated the long-held principle that:

Habitual cruel and inhuman treatment may be established by a showing of conduct that either (1) endangers life, limb, or health, or creates a reasonable apprehension of such danger, rendering the relationship unsafe for the party seeking relief, or (2) is so unnatural and infamous as to make the marriage revolting to the non-offending spouse and render it impossible for that spouse to discharge the duties of marriage, thus destroying the basis for its continuance.

Rakestraw, 717 So.2d at 1287 (¶ 8) (citing Daigle v. Daigle, 626 So.2d 140, 144 (Miss. 1993)). “[S]uch conduct must be habitual, that is, done so often, or continued so long, that its recurrence may be reasonably expected whenever occasion or opportunity presents itself.” Burnett v. Burnett, 271 So.2d 90, 92 (Miss. 1972). “Although the cruel and inhuman treatment usually must be shown to have been ‘systematic and continuous,’ a single incident may provide grounds for divorce.” Rakestraw, 717 So.2d at 1287 (¶ 8). “While ordinarily one act or an isolated incident will not establish a charge of habitual cruel and inhuman treatment, one incident of personal violence may be of such a violent nature as to endanger the life of the complainant spouse and be of sufficient gravity to establish the charge of habitual cruel and inhuman treatment.” McKee v. Flynt, 630 So.2d 44, 48 (Miss. 1993). “[T]he charge ‘means something more than unkindness or rudeness or mere incompatibility or want of affection.’ ” Rakestraw, 717 So.2d at 1287 (¶ 8) (quoting Daigle, 626 So.2d at 144). Habitual cruel and inhuman treatment must be shown by a preponderance of the evidence. Shavers v. Shavers, 982 So.2d 397, 403 (¶ 35) (Miss. 2008).

¶ 13. “The party alleging cruel and inhuman treatment typically must corroborate the testimony.” Id. Nonetheless, “[corroborating evidence need not be sufficient in itself to establish habitual cruelty, but rather need only provide enough supporting facts for a court to conclude the plaintiffs testimony is true.” Smith v. Smith, 90 So.3d 1259, 1263 (¶ 12) (Miss. Ct. App. 2011) (citing Jones v. Jones, 43 So.3d 465, 478 (¶ 30) (Miss. Ct. App. 2009) (quoting Deborah H. Bell, Bell on Mississippi Family Law § 4.02[8][d] (2005))).

¶ 14. On appeal, Anderson asserts that the incidents presented in testimony and outlined by the chancery court in its judgment do not show a continuous pattern or course of habitual cruel and inhuman conduct by Anderson toward Barbara. Specifically, Anderson argues that Barbara failed to sufficiently corroborate her testimony regarding the black eye she received, as well as the events surrounding the cocked-gun incident. The chancery court, however, found otherwise, considering the actions described not in isolation, but as a whole. In doing so, the chancellor determined that “[a]s a whole [Anderson]’s conduct has been habitually mean and heartless[,] ... exhibiting] a pattern or a course of conduct which as a whole amounts to cruelty.”

¶ 15. Regarding the black-eye incident, Anderson denied hitting Barbara, but admitted that Barbara did, in fact, possess the alleged injury. Anderson further testified, however, that he was unaware of how Barbara received the injury. In reviewing Anderson’s testimony, the chancellor specifically noted in her final judgment that Anderson “nonchalantly testified” regarding this incident, and that “[i]t would seem to the court that a husband would make it his business to know how his wife received a black eye.” In relation to the 2009 cocked-gun incident, Barbara, her mother, and her sister all testified that after an argument between the parties, Anderson angrily ran upstairs, where they then heard a gun “cock” or “click.” Barbara’s mother did, however, testify that she did not realize at that time the noise she heard related to the use of a gun. Anderson admitted he owned many guns, but denied that the incident ever occurred; in support, Anderson III also testified that Anderson did not leave the room where the argument took place.

¶ 16. Upon review, this Court is reminded that “[t]he chancellor is vested with the sole authority and responsibility to assess witness credibility as no jury is present.” Jones, 43 So.3d at 471 (¶ 10). The chancellor alone “hears the testimony and sees the demeanor of the witnesses.” Boutwell v. Boutwell, 829 So.2d 1216, 1220 (¶ 16) (Miss. 2002). This Court “cannot, and will not, reweigh the evidence or reconsider the credibility of the witnesses.” Hammers v. Hammers, 890 So.2d 944, 951 (¶ 19) (Miss. Ct. App. 2004). As such, the chancery court found “[t]he black eye and the gun incidents gave [Barbara] a reasonable apprehension of danger to her life, limb or health,” causing her “to be nervous and scared,” as Anderson’s conduct “occurred continually throughout the marriage and its recurrence [could] be reasonably expected whenever occasion or opportunity present[ed] itself.” In light of the corroborating testimony provided by Barbara’s witnesses, as well as that of Anderson himself, we find the record contains more than sufficient evidence to support the chancery court’s grant of a divorce based upon habitual cruel and inhuman treatment. See Gatlin v. Gatlin, 234 So.2d 634, 635 (Miss. 1970) (holding testimony of the defendant may also provide corroboration of the plaintiffs testimony).

¶ 17. As a corollary to his primary argument, Anderson asserts that the chancery court committed manifest error in relying upon, and admitting into evidence, certain allegations contained in Barbara’s 2009 counterclaim. Pursuant to the January 9, 2012 order dismissing with prejudice Anderson’s 2009 complaint for divorce , and Barbara’s counterclaim, Anderson argues that Barbara was precluded from presenting any evidence of any acts that occurred prior to January 9, 2012. The chancery court disagreed, however, citing to Mississippi Rule of Civil Procedure 60, which provides a vehicle for relief from a judgment or order. See M.R.C.P. 60. In particular, Rule 60(a) provides for relief from a clerical mistake “arising from oversight or omission,” and states that such a mistake “may be corrected at any time by the court’s own initiative or upon a motion of any party ....” Id. In addition, Rule 60(a) may be used “to correct an order that failed accurately to reflect the judge’s original decision.” Scott v. Scott, 115 So.3d 847, 850 (¶ 8) (Miss. Ct. App. 2012). This Court reviews a Rule 60 motion for relief from judgment under an abuse-of-discretion standard. Tyler v. Auto. Fin. Co., 113 So.3d 1236, 1239 (¶ 9) (Miss. 2013).

If 18. Upon review of the record, we find the chancery court did not abuse its discretion in the Rule 60(a) amending of its January 9, 2012 order. Barbara’s complaint for divorce in the present matter alleged acts of cruelty that had been ongoing “for the past five years.” Reviewing that the reasons given for the January 2012 order were the failure of Anderson to prosecute, and to allow Barbara to proceed with her complaint filed in the instant matter, it is clear the order did not accurately reflect the chancery court’s intention. As the ehancery court properly found, it is clear from the complaint in the instant case that Barbara intended to present evidence of acts occurring at least five years prior to the filing of the instant case’s complaint on December 7, 2011. As a result, we find the chancellor’s dismissal of Anderson’s 2009 complaint with prejudice and Barbara’s 2009 counterclaim without prejudice was not an abuse of discretion under Rule 60(a). This issue is without merit.

¶ 19. Viewing the evidence in a light most favorable to Barbara, and viewing the record as a whole, we find substantial evidence supporting the chancellor’s decision to grant Barbara a divorce on the ground of habitual cruel and inhuman treatment. As such, we affirm the chancery court’s judgment of divorce.

II. Division of Marital Assets

¶ 20. In the alternative, Anderson argues on appeal that he is entitled to the homes located at 401 Farmer Street and 130 Memory Lane, which the chancery court awarded to Barbara. With regard to division and distribution of property, we maintain the objective of “a fair division based upon the facts of the ease[.]” Reddell v. Reddell, 696 So.2d 287, 288 (Miss. 1997) (referencing Ferguson, 639 So.2d at 929).

¶ 21. In general, when dividing and distributing property, courts employ the following factors, which were laid out in Ferguson, 639 So.2d at 928:

(1) Substantial contribution to the accumulation of the property ... [;]
(2) The degree to which each spouse has expended, withdrawn[,] or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decreet,] or otherwise[;]
(3) The market value and the emotional value of the assets subject to distribution^]
(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, income[,] and earning capacity; and,
(8) Any other factor which in equity should be considered.

“In reviewing a chancellor’s judgment, [the appellate court] does not conduct a Ferguson analysis anew, but reviews the judgment to ensure that the chancellor followed the appropriate standards and did not abuse h[er] discretion.” Phillips v. Phillips, 904 So.2d 999, 1001 (¶ 8) (Miss. 2004).

¶ 22. Anderson’s primary argument is that Barbara made no contribution to the properties and, thus, should not have been awarded the homes located at 401 Farmer Street and 130 Memory Lane. Anderson further challenges the chancery court’s finding that Barbara fulfilled the role of homemaker during the parties’ marriage. In analyzing his claim, we look to the chancery court’s ruling and order to determine whether an appropriate analysis was conducted by the chancellor.

¶23. At the outset, the chancellor classified the parties’ marital assets as either marital or nonmarital, as set out in Hemsley v. Hemsley, 639 So.2d 909 (Miss. 1994). For purposes of a divorce proceeding, the definition of marital property is “any and all property acquired or accumulated during the marriage .... We assume for divorce purposes that the contributions and efforts of the marital partners, whether economic, domestic[,] or otherwise[,] are of equal value.” Hemsley, 639 So.2d at 915. “Assets acquired or accumulated during the course of a marriage are subject to equitable division unless it can be shown by proof that such assets are attributable to one of the parties’ separate estates prior to the marriage or outside the marriage.” Id. at 914. From the parties’ testimony, the chancery court found that all of the parties’ real and personal property was acquired, accumulated, or used for the benefit of the family during the marriage, and thus, deemed marital property subject to equitable distribution.

¶ 24. Having satisfactorily divided their household furnishings and personal property upon Barbara’s departure from the marital home in 2011, the only remaining items left in dispute were the following homes and vehicles: 401 Farmer Street; 130 Memory Lane; 135 Memory Lane; 1993 Lexus 400; 2005 Lexus SC430; 2011 Lexus LS450; and 2011 Lexus ES350. Through application of the Ferguson factors, the chancellor awarded Barbara the homes located at 401 Farmer Street and 130 Memory Lane, as well as the 1993 Lexus 400 and 2011 Lexus ES350. The chancellor awarded Anderson the marital home located at 135 Memory Lane, as well as the 2005 Lexus SC430 and 2011 Lexus LS450. Thus, the chancery court technically awarded Barbara $299,420 in marital assets, and Anderson $425,000. Aggrieved, Anderson filed a motion for reconsideration, arguing that the 1993 Lexus 400 was not considered marital property, and that Barbara was not entitled to any real property. Upon consideration, the chancellor found in favor of Anderson with respect to the 1993 Lexus 400 only. Finding the parties equally responsible for their marital debt, totaling $279,749.61, each party was held accountable for $139,874.80. As Barbara’s original award of marital assets was $125,580 less than Anderson’s award, the chancellor found her responsible for $77,084.80 of the marital debt.

¶ 25. On appeal, Anderson asserts the chancellor erred in her Ferguson analysis by finding Barbara fulfilled the marital role of homemaker, and by making her awards of real property. Reviewing the record, however, there is sufficient evidence to support the chancery court’s findings regarding Barbara’s role during the marriage. To that effect, Anderson III testified that Barbara prepared meals, cleaned the marital home, and took Anderson III shopping. Furthermore, Anderson III testified that he referred to Barbara as his “mother” while the parties were still married. As such, we find no error with the chancellor’s determination that Barbara satisfied the role of homemaker.

¶ 26. Regarding Anderson’s assertion that Barbara was not entitled to the homes located at 401 Farmer Street and 130 Memory Lane, we find the record devoid of any clear error requiring reversal. The chancery court found that all of the real property and vehicles at issue had emotional value to Anderson. The chancellor likewise found the home at 130 Memory Lane and the 2011 Lexus ES350 had emotional value to Barbara. As this Court will not conduct a Ferguson analysis anew, we find the chancellor followed the appropriate standards and did not abuse her discretion. See Phillips, 904 So.2d at 1001 (¶ 8).

¶27. In sum, the chancery court cited the Ferguson factors and the benchmark Hemsley case in its analysis of the parties’ marital assets. To overturn the chancery court’s findings would require the presence of an abuse of discretion or an improper application of the law on the part of the chancery court. “Because the chancellor applied the correct legal criteria and determined which criteria [s]he considered applicable, it simply cannot be said that the chancellor was manifestly wrong, clearly erroneous, or applied the wrong legal standard.” Sproles v. Sproles, 782 So.2d 742, 748-49 (¶ 25) (Miss. 2001). These issues are without merit.

CONCLUSION

¶ 28. Upon review, we find sufficient evidence supporting the chancery court’s grant of a divorce on the ground of habitual cruel and inhuman treatment. We likewise find no error with the chancery court’s equitable division of marital assets. As such, we affirm.

¶ 29. THE JUDGMENT OF THE WARREN COUNTY CHANCERY COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., NOT PARTICIPATING.

      . Incorporated within this assignment of error is Anderson's argument that the chancellor erred in relying upon, and admitting into evidence, allegations made by Barbara in her 2009 counterclaim.


author: JAMES, J., WILSON, J.,

text:
    Shirley ADAMS, individually and as Survivor and Only Heir of Dorothy Turner, Deceased, Appellant v. GRACELAND CARE CENTER OF OXFORD, LLC, Graceland Management Company, Inc., Lafayette Ltc, Inc., and Yalobusha General Hospital and Nursing Home, Appellees.
    No. 2013-CA-00724-COA.
    Court of Appeals of Mississippi.
    Nov. 3, 2015.
    Rehearing Denied April 5, 2016.
    Rehearing Denied April 12, 2016.

      Bobby Floyd Martin Jr., Ralph Stewart Guernsey, Jennifer Lyn Miller Bermel, attorneys for appellant.
    Thomas L. Kirkland Jr., Ridgeland, John G. Wheeler, Andy Lowry, Ridgeland, attorneys for appellees.
    Before GRIFFIS, P.J., FAIR and JAMES, JJ.
   JAMES, J.,

for the Court:

¶ 1. Shirley Adams filed a complaint as the sole heir of her deceased mother, Dorothy Turner, against Graceland Care Center of Oxford LLC (Graceland Care Center), Graceland Management Company Inc. (Graceland Management), Yalobusha General Hospital and Nursing Home (Ya-lobusha), and Lafayette LTC Inc. (Lafayette) (collectively “Defendants”). The Defendants moved for summary judgment based on judicial estoppel because Adams failed to disclose the lawsuit by amending her schedule of assets in her pending bankruptcy proceeding. The trial court granted the motion and dismissed the case with prejudice. On appeal, Adams argues that the trial court erred by granting summary judgment. We agree and remand this case to proceed to trial.

FACTS AND PROCEDURAL HISTORY

¶2. On August 9, 2004, Adams filed a .Chapter 13 bankruptcy petition in the United States Bankruptcy Court, Northern District of Mississippi. On February 1, 2005, Adams’s five-year bankruptcy plan was confirmed, and she made regular payments in accordance with her plan. On December 7, 2007, Adams’s mother, Turner, died while living in Graceland Care Center’s nursing-home facility. On May 14, 2008, Adams initiated a personal-injury/wrongful-death cause of action against Graceland Care Center, Graceland Management, and Lafayette in her individual capacity and as the survivor and heir of her deceased mother. On January 12, 2009, Adams, the only child and sole wrongful-death beneficiary, filed a second amended complaint adding Yalobusha as a defendant, alleging that Turner suffered personal injuries and death as a result of substandard healthcare services provided to her while she was a resident at Yalobu-sha. Although Adams’s bankruptcy ease was still pending, she failed to amend her schedules to add the cause of action as an asset of her bankruptcy estate prior to completing her payment plan and the bankruptcy court granting her a discharge on March 31, 2009.

¶ 3. On August 19, 2009, the Defendants discovered through Adams’s deposition testimony that she had previously filed bankruptcy, and did not list the cause of action as an asset in her bankruptcy estate. On August 28, 2009, Yalobusha moved for summary judgment based on Adams’s failure to disclose her lawsuit, and argued that judicial estoppel barred her from pursing the claim. The remaining Defendants joined in Yalobusha’s motion. On October 13, 2009, Adams moved to reopen her bankruptcy case for the purpose of adding her cause of action to the schedules. On October 16, 2009, the bankruptcy court granted Adams’s motion, and she amended her schedules listing the cause of action as an asset on October 20, 2009. The trial court, by letter dated September 13, 2010, stated that it would grant the Defendant’s motion for summary judgment. However, on October 15, 2010, Adams filed a motion for reconsideration in light of the Mississippi Supreme Court’s decision in Copiah County v. Oliver, 51 So.3d 205, 207 (¶ 12) (Miss.2011).

¶4. On December 19, 2011, the trial court, following the supreme court’s decision in Oliver, entered an order staying the proceedings until the bankruptcy court made a decision on the sole question of “whether Adams had a duty to disclose her personal injury/wrongful death cause of action as an asset of her bankruptcy estate.” The bankruptcy court held an evi-dentiary hearing on Adams’s and the Defendants’ cross-motions for declaratory judgments on whether the affirmative- defense of judicial estoppel was applicable. Following the hearing, the bankruptcy court wished to ascertain whether the Chapter 13 trustee had an interest in pursuing the state cause of action. The trustee was given an opportunity to review the factual issues in both the bankruptcy case and the state court proceeding before submitting a response to the bankruptcy court. On July 30, 2012, the trustee submitted a letter to the bankruptcy court, which stated:

After reviewing the timely filed and allowed general unsecured claims which total $4,719.53, the trustee reports that she would abandon any settlement or judgment proceeds and not administer the payment of such on behalf of the bankruptcy estate.

¶ 5. On October 12, 2012, the bankruptcy court rendered its opinion finding “that Adams had a continuing duty throughout the pendency of her bankruptcy case to disclose the state law cause of action.” In re Adams, 481 B.R. 854, 859 (Bankr.N.D.Miss.2012). However, the bankruptcy court left the issue of judicial estoppel for the trial court to decide. Id. at 861-862.

¶ 6. Following the bankruptcy court’s decision, the Defendants renewed their motion for summary judgment. On April 13, 2013, the trial court granted the Defendants’ motion for summary judgment finding that “based on [Adams’s] own affidavit and deposition testimony, she had knowledge of the facts supporting her cause of action prior to the discharge of her [Chapter 13 proceeding.” Adams argues that the trial court erred by granting summary judgment. We agree and find that there is a genuine issue of material fact as to whether Adams’s failure to amend her bankruptcy schedules was an intentional self-contradiction, knowingly made, or amounted to a willfully false representation. Accordingly, we reverse the trial court’s decision granting summary judgment-and remand the1 case to proceed to trial,

STANDARD OF REVIEW

¶ 7. A trial court’s imposition of judicial estoppel is subject to review under an abuse-of-discretion standard. Kirk v. Pope, 973 So.2d 981, 986 (¶ 11) (Miss.2007) (citing Superior Crewboats, Inc. v. Primary P & I Underwriters, 374 F.3d 330, 334 (5th Cir.2004); Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, 396 (5th-Cir.2003)). However, in Oliver, 51 So.3d at 207 (¶ 7), the supreme court applied the de novo standard in reviewing a trial court’s denial of a motion for summary judgment on the basis of judicial estoppel. Because the trial court granted the Defendant’s motion for summary judgment, wfe will review the trial court’s decision under a de novo standard. See id. at 206-07 (¶¶ 6-8).

¶ 8, In Karpinsky v. American National Insurance Co., 109 So.3d 84, 88 (¶ 10) (Miss.2013), the Mississippi Supreme Court summarized the summary-judgment standard:

Summary judgment is appropriate and shall be rendered if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Importantly, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavit or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, will be entered against him.

(Internal citations and quotation marks omitted). “Additionally, the evidence must be viewed in the light most favorable to the party against whom the motion has been made.” One S., Inc. v. Hollowell, 963 So.2d 1156, 1160 (¶ 6) (Miss.2007). “The moving party has the burden of demonstrating that no genuine issue of material facts exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact.” Duckworth v. Warren, 10 So.3d 433, 437 (¶ 9) (Miss.2009). “Further, summary judgment is inappropriate where there are undisputed facts which are susceptible to more than one interpretation.” Id,

DISCUSSION

¶ 9. The sole issue before this Court is whether the doctrine of judicial estoppel bars Adams from pursuing her cause of action against the Defendants for failing to amend her schedule of assets in the bankruptcy court to include her cause of action prior to the completion of her plan and discharge. Adams argues that summary judgment was not proper because her nondisclosure was inadvertent.

¶ 10. The doctrine of judicial es-toppel should be applied to prevent a party from achieving an unfair advantage by taking inconsistent positions in litigation. Oliver, 51 So.3d at 207 (¶ 9). “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.” Kirk, 973 So.2d at 991 (¶ 31).

¶ 11. In Kirk v. Pope, the supreme court identified three elements of judicial estoppel. Clark v. Neese, 131 So.3d 556, 560 (¶ 16) (Miss.2013). “A party will be judicially estopped from taking a subsequent position if (1) the position is inconsistent with one previously taken during litigation, (2) a court accepted the previous position, and (3) the party did not inadvertently take the inconsistent positions.” Id.

¶ 12. “Judicial estoppel is designed to protect the judicial system and applies where intentional self-contradiction is being used as a means of obtaining [an] unfair advantage in a forum provided for suitors seeking justice.” Kirk, 973 So.2d at 991 (¶ 31) (emphasis added). “The purpose of judicial estoppel is to prevent parties from knowingly taking a position in one court that is contrary to a position that party has asserted in, and that has been accepted by, another court.” Clark, 131 So.3d at 562 (¶21) (emphasis added).

¶ 13. In Kirk, this Court applied judicial estoppel against the plaintiff after he failed to disclose a breach-of-contract action to the bankruptcy court. Kirk, 973 So.2d at 992 (¶ 38). However, we find that this case is distinguishable from Kirk. Kirk was decided under an abuse-of-discretion standard of review. Id. at 986 (¶ 11). Like Oliver, this appeal proceeds from a decision on a summary-judgment motion, which is reviewed de novo. See Oliver, 51 So.3d at 207 (¶ 7).

¶ 14. The facts of Kirk are also distinguishable from the facts of this case, specifically the representations, or lack thereof, made regarding their respective lawsuits. In Kirk, the court found that Kirk’s nondisclosure of the lawsuit was not inadvertent. Kirk, 973 So.2d at 992 (¶ 38). There, the trial court determined that Kirk was “less than candid with his bankruptcy attorney regarding the status of his lawsuit.” Id. at (¶ 37). Based on Kirk’s misrepresentations, his bankruptcy attorney operated under the impression that his lawsuit had been dismissed, and did not list the lawsuit on Kirk’s bankruptcy schedules. Id. at 991-92 (¶¶ 36-37). Moreover, Kirk did not disclose his lawsuit to the bankruptcy court until after he had obtained a final judgment. Id. at 992 (¶ 37). Specifically, the court found:

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 [Superior Crewboats, 374 F.3d] at 336. Therefore, we find that the circuit court did not err in finding that judicial estoppel applied to Kirk.

Kirk, 973 So.2d at 992 (¶ 38).

¶ 15. The Kirk court remanded the case to the trial court and found that the bankruptcy trustee should not be judicially estopped from pursuing the claim, but invoked judicial estoppel against Kirk individually to prevent him from recovering any proceeds of the judgment. Id. at (¶ 40). The court reached this conclusion because, “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 (¶ 39).

1116. Adams’s behavior cannot be equated to the affirmative misrepresentations made by the plaintiff in Kirk. Here, there is no evidence that Adams made any affirmative misrepresentation with the intent to mislead the bankruptcy court. Like Kirk, Adams did not disclose her claim until it was brought out by the defendants, but Adams did not wait until she obtained a judgment to reopen her bankruptcy case and disclose her cause of action. When she learned of her continuing duty to disclose her cause of action, Adams immediately moved to reopen her bankruptcy case and amend her schedule of assets, although she was nearing the completion of her five-year payment plan.

¶ 17. Adams’s actions should not be imputed as willful, because it involved a ruling to be made by the court as to whether she had a continuing duty to disclose in her Chapter 13 bankruptcy proceedings. Also, this cause of action accrued when Adams’s mother died on December 7, 2007. Adams stated that she was not aware that she had to disclose the cause of action in her bankruptcy case, which had been filed on August 9, 2004. Adams’s bankruptcy attorney, who assisted in reopening Adams’s bankruptcy case, submitted an affidavit on her behalf stating that he “was convinced[,] and remains so, that Ms. Adams was an ‘unsophisticated consumer’ who failed to list her lawsuit as a result of inadvertence only.” Her plan had been confirmed on February 1, 2005, and her mother died nearly three years later. She cannot be said to have had the same conscious awareness of her mother’s cause of action that vested with her at her mother’s death that she would have if it were her own personal cause of action.

¶ 18. “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.” Kirk, 978 So.2d at 991 (¶ 85) (emphasis added) (citing Superior Crewboats., 374 F.3d at 335) (quoting In re Coastal Plains, Inc., 179 F.3d 197, 210 (5th Cir.1999)). The Fifth Circuit Court of Appeals decision in Coastal Plains, 179 F.3d at 210, is instructive on this issue. In adopting this general inadvertence rule, the court cited Dawson v. J.G. Wentworth & Co., 946 F.Supp. 394 (E.D.Pa.1996), which held that although a debtor disclosed his claim in the amended bankruptcy schedules, a fact issue regarding the debtor’s good or bad faith in not disclosing the claim in the original bankruptcy schedules precluded summary judgment based on judicial estoppel. Coastal Plains, 179 F.3d at 210 n. 9. In Dawson, the court refused to infer bad faith merely from the fact of nondisclosure because the record in that case created enough of a question regarding the debtor’s intent so as to preclude the application of the extreme remedy of judicial estoppel. Dawson, 946 F.Supp. at 398. Therefore, the Fifth Circuit has recognized that a fact issue regarding a debtor’s good or bad faith in not disclosing a claim may preclude summary judgment. See also McKinney v. BancorpSouth Bank, No. 1:12-cv-00186-MPM-DAS, 2013 WL 3834878, at *1 (N.D.Miss. July 24, 2013) (“Judicial estop-pel does not apply when the prior position was taken because of a good faith mistake rather than as part of a scheme to mislead the court.”).

¶ 19. In Kirk, the court stated that “the representation must be willfully false, or must have the effect of misleading the other party to his injury.” Kirk, 973 So.2d at 991 (¶ 35) (emphasis added) (quoting Miss. Power & Light Co. v. Cook, 832 So.2d 474, 482 (¶22) (Miss.2002)). In Cook, the debtor had knowledge of his pending lawsuit, but he did not disclose the lawsuit in bankruptcy court because he thought it would not amount to anything, and his attorney advised him that it was not necessary to disclose it to the bankruptcy court. Cook, 832 So.2d at 481-82 (¶¶ 20-22). The Mississippi Supreme Court held that the debtor was not barred by the doctrine of judicial estoppel because “[the debtor] did not make a willfully false statement!.]” Id. at 482 (¶ 22). The court noted:

[T]he jury heard what [the debtor] said was his reason for not disclosing this information to the bankruptcy court, and the jury was allowed to take this into consideration in determining the credibility of [the debtor]. It is for the jury, not a reviewing court, to determine the credibility of a witness.

Id. at 481-82 (¶ 21).

¶20. Under the summary-judgment standard, the Defendants have the burden of demonstrating that no genuine issue of material facts exists, and the non-moving party must be given the benefit of the doubt concerning the existence of a material fact. Duckworth, 10 So.3d at 437 (¶ 9). We find that the Defendants failed to meet their burden.

¶21. There is no dispute that Adams had a continuing duty to disclose her cause of action. Giving Adams the benefit of the doubt concerning the existence of a disputed material fact, we find that the evidence and testimony before us does not demonstrate that Adams’s failure to disclose, standing alone, amounted to a willfully false representation. Although the Mississippi Supreme Court eliminated the adverse-party requirement for judicial es-toppel, it did not disturb the requirement of a willfully false representation. See Clark, 131 So.3d at 561-62 (¶ 21). In viewing the facts in the light most favorable to Adams, we find that no motive for concealment has been shown. The efforts by Adams to amend her schedules to list the cause of action are inconsistent with any motive for concealment. We cannot say that the evidence, when viewed in the light most favorably to Adams, shows that Adams intended to conceal her claim from the bankruptcy court in order to reap a windfall by preventing her creditors from recovering any proceeds from a potential judgment.

¶ 22. Moreover, the evidence in this case does not prove that Adams made an intentional self-contradiction as a means of obtaining an unfair advantage in a forum provided for suitors seeking justice. See Kirk, 973 So.2d at 991 (¶ 31); see also Clark, 131 So.3d at 562 (¶ 23) (recognizing that lack of inadvertence requires that the positions taken must be knowingly inconsistent). Likewise, we cannot say that the evidence shows that Adams knowingly took inconsistent positions in the trial court and bankruptcy court. See Clark, 131 So.3d at 561 n. 22 (citing Cook, 832 So.2d at 482 (¶ 22) (holding judicial estop-pel did not apply because the inconsistency was not knowing)).

¶ 23. The dissent would hold that the three elements of judicial estoppel were satisfied through a rigid application of the elements without regard to the specific factual context of this case. “However, judicial estoppel is not governed by inflexible prerequisites or an exhaustive formula for determining its applicability, and numerous considerations may inform the doctrine’s application in specific factual contexts.” Love v. Tyson Foods Inc., 677 F.3d 258, 261 (5th Cir.2012) (citing New Hampshire v. Maine, 532 U.S. 742, 749--50, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001)). Accordingly, based on the record before us, we hold that the trial court erred in applying the doctrine of judicial estoppel. We reverse the trial court’s grant of summary judgment in favor of the Defendants and remand this case to the trial court to proceed to trial.

¶ 24. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEES.

LEE, C.J., GRIFFIS, P.J., AND FAIR, J., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. WILSON, J, DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY ISHEE AND CARLTON, JJ. BARNES AND MAXWELL, JJ., NOT PARTICIPATING.

WILSON, J.,

dissenting:

¶ 25. I dissent because the plurality opinion applies the wrong standard of review, reaches the wrong result under applicable precedent, and mistakenly implies that the issue of judicial estoppel should be resolved by a jury at trial.

¶26. First, the plurality applies the wrong standard of review. Our Supreme Court has clearly stated that “a trial court’s imposition of judicial estoppel ... is subject to review under an abuse of discretion standard.” Kirk v. Pope, 973 So.2d 981, 986 (¶ 12) (Miss.2007). The Court repeated this point in its initial (subsequently withdrawn) opinion in Copiah County v. Oliver, No. 2009-IA-00809-SCT, 2010 WL 3785534 at (¶ 6) (Miss. Sept. 30, 2010) (“This Court reviews a trial court’s grant or denial of a motion for summary judgment or a motion to dismiss under a de novo standard. A trial court’s decision regarding judicial estoppel is subject to review under an abuse-of-discretion standard.” (citations omitted)), withdrawn on mot. far reh’g, 51 So.3d 205 (Miss.2011). The Court’s opinion on rehearing in Oliver omitted reference to the abuse-of-discretion standard, but I suggest that it did so because the opinion only “direet[ed] the trial court to stay the proceedings until the bankruptcy court ... had an opportunity to consider” a logically antecedent issue of federal bankruptcy law. Oliver, 51 So.3d at 207 (¶ 12). Thus, the final opinion in Oliver — on which the plurality relies for its standard of review— did not review the merits of the trial court’s application of the doctrine of judicial estoppel. We should continue to apply the standard of review that the Supreme Court expressly adopted in Kirk until Kirk is overruled.

¶ 27. Applying the proper standard of review, the circuit court’s decision must be affirmed. The circuit judge applied precedent that is directly on point (Kirk and Oliver) and did not abuse his discretion by dismissing Adams’s claims with prejudice based on her failure to disclose her claims in her prior federal bankruptcy.

¶ 28. “[T]he integrity of the bankruptcy system depends on full and honest disclosure by debtors of all of their assets.” In re Coastal Plains, Inc., 179 F.3d 197, 208 (5th Cir.1999) (emphasis omitted) (quoting Rosenshein v. Kleban, 918 F.Supp. 98, 104 (S.D.N.Y.1996)). The debtor’s duty to disclose all of her assets, including contingent claims, is a “continuing duty throughout the pendency of her bankruptcy case.” In re Adams, 481 B.R. 854, 859 (Bankr.N.D.Miss.2012) (emphasis added) (citing Coastal Plains, 179 F.3d at 207-08; Jethroe v. Omnova Solutions Inc., 412 F.3d 598, 600 (5th Cir.2005)). The debtor’s “omission of [a] personal injury claim from [her] mandatory bankruptcy filings is tantamount to a representation” — a misrepresentation — “that no such claim existed.” In re Superior Crewboats Inc., 374 F.3d 330, 335 (5th Cir.2004). Such omissions impair “[t]he interests of both the creditors, who plan their actions in the bankruptcy proceeding on the basis of information supplied in the [debtor’s] disclosure statements, and the bankruptcy court, which must decide whether to approve the plan of reorganization on the same basis.” Coastal Plains, 179 F.3d at 208 (emphasis omitted) (quoting Rosenshein, 918 F.Supp. at 104). To protect these interests, courts apply the doctrine of judicial estoppel and “will not permit a debtor to obtain relief from the bankruptcy court by representing that no claims exist and then subsequently to assert those claims for his own benefit in a separate proceeding.” Id.

¶29. When a debtor seeks to recover on a claim that she failed to disclose in a prior bankruptcy filing, there are only “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 non-disclosure must not have been inadvertent.’ ” Oliver, 51 So.3d at 207 (¶ 9) (quoting Kirk, 973 So.2d at 991 (¶ 32) (quoting Superior Crewboats, 374 F.3d at 335)). Here, because Adams had a continuing duty to disclose her claim to the bankruptcy court, her failure to disclose “impliedly represented that she had no such claim,” which “is plainly inconsistent with her ... assertion of the claim in state court.” In re Flugence, 738 F.3d 126, 130 (5th Cir.2013). In addition, when the bankruptcy court entered an order discharging Adams from bankruptcy, it effectively accepted her representation that she had made a full and complete disclosure of her assets. See Superior Crewboats, 374 F.3d at 330; Tubbs v. Huntington Ingalls, Inc., No. 1:06CV834HSO-JMR, 2011 WL 3891877, at *6 (S.D.Miss. Aug.29, 2011). Accordingly, the first and second requirements of judicial estoppel are satisfied.

¶ 30. As the circuit court correctly recognized, the only real issue in this case is whether Adams’s non-disclosure was “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.” Kirk, 973 So.2d at 991 (¶ 35) (quoting Superior Crewboats, 374 F.3d at 335 (quoting Coastal Plains, 179 F.3d at 210)). Here, the evidence was clear that Adams had ample “knowledge” of her claim because Adams testified that she decided to talk to a lawyer about suing the defendants in 2004 or 2005, she actually hired a lawyer in March 2006, and she filed her initial complaint in May 2008 — all well before she was discharged from bankruptcy by order dated March 31, 2009. See Adams, 481 B.R. at 857.

¶ 31. Because Adams had “knowledge” of her potential claim, the issue narrows further to whether she had a “motive for ... concealment” of the claim. Kirk, 973 So.2d at 991 (¶ 35). The Fifth Circuit rightly has observed that “the motivation sub-element is almost always met if a debtor fails to disclose a claim or possible claim to the bankruptcy court. Motivation in this context is self-evident because of potential financial benefit resulting from the nondisclosure.” Love v. Tyson Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012) (emphasis added) (quoting Thompson v. Sanderson Farms, Inc., No. 3:04CV837-WHB-JCS, 2006 WL 7089989, at *4 (S.D.Miss. May 31, 2006) (Barbour, J.)). The debtor’s motive not to disclose is the same as her motive not to disclose any other asset. If the debtor does not disclose her claim, she may keep the net proceeds of any settlement or judgment for herself rather than pay her debts to creditors who are not repaid in full under the terms of her bankruptcy plan. This gives the debtor “an incentive to conceal her claims from creditors.” Jethroe v. Omnova Solutions, Inc., 412 F.3d 598, 601 (5th Cir.2005) (citing Coastal Plains, 179 F.3d at 210).

¶ 32. In this case, the unsecured debts that Adams was not obligated to repay under her bankruptcy plan are sufficient support for the circuit court’s finding that her non-disclosure was “not inadvertent.” Adams’s self-evident motive not to disclose her claim satisfies the third and final requirement of judicial estoppel because the relevant question under Kirk is whether “the debtor ... has no motive for ... concealment.’” Kirk, 973 So.2d at 991 (¶ 35) (emphasis added) (quoting Superior Crewboats, 374 F.3d at 335 (quoting Coastal Plains, 179 F.3d at 210)); see Jethroe, 412 F.3d at 601 (debtor had a “motive for concealment” because her bankruptcy confirmation plan did not require her to repay an unsecured debt of $8,373). Accordingly, the circuit court’s finding that all three requirements of judicial estoppel are met was not an abuse of discretion, and its ruling should be affirmed.

¶ 33. The plurality argues that judicial estoppel should not apply despite Adams’s evident motive not to disclose her debts, but the facts that the plurality highlights are not persuasive. For instance, the plurality gives Adams credit for moving to reopen her bankruptcy case before she “obtained a judgment” in state court. Ante at (¶ 602). However, Adams moved to reopen only because the defendants first discovered the bankruptcy and moved for summary judgment on that basis. “Allowing the debtor to back-up, re-open the bankruptcy case, and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing personal assets only if he is caught concealing them.” Love, 677 F.3d at 265-66 (quotation marks and brackets omitted) (quoting Superior Crewboats, 374 F.3d at 336) (quoting Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1288 (11th Cir.2002)). This is not the sort of full and complete disclosure that the bankruptcy system requires, and we should not “invite such abuses.” Id.

¶ 34. The plurality also finds it significant that Adams seeks to recover for her mother’s injuries and death rather than for “her own personal cause of action.” Ante at (¶ 603). This distinction might be relevant if Adams could argue that she “lack[ed] knowledge” of the claims because they were not her own personal claims. Kirk, 973 So.2d at 991 (¶ 35). But as discussed above, that simply is not the case. Adams began contemplating the undisclosed claims years before she was discharged from bankruptcy, and actually filed the lawsuit more than ten months prior to the order granting her discharge. Because Adams’s own testimony and actions clearly establish her knowledge of her claims, this distinction is irrelevant.

¶35. My final disagreement with the plurality opinion is that it seems to view the question as simply whether there is a “genuine issue of material fact” precluding summary judgment; having decided that such a factual dispute exists, the plurality implies that the issue of judicial estoppel should be decided at trial by a jury. However, whether the doctrine of judicial es-toppel applies is a decision for the court, not the jury. “Judicial estoppel is designed to protect the integrity of the judicial system....” Oliver, 51 So.3d at 207 (¶ 9) (quoting Kirk, 973 So.2d at 991 (¶ 31)). Our Supreme Court has also explained that “[j]udicial estoppel is a doctrine of law applied by a trial court.” Lone Star Indus., Inc. v. McGraw, 90 So.3d 564, 569-70 (¶ 18) (Miss.2012) (emphasis added) (quoting Miss. Power & Light Co. v. Cook, 832 So.2d 474, 482 (¶ 22) (Miss.2002)); see also New Hampshire v. Maine, 532 U.S. 742, 750, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001) (“[J]udicial estop-pel is an equitable doctrine invoked by a court at its discretion, (quotation marks omitted)); Thore v. Howe, 466 F.3d 173, 178 (1st Cir.2006) (“[W]hether to apply the judicial estoppel doctrine is ... an issue for the court, not the jury, to decide.”). The nature and purpose of the doctrine are such that the issue should be resolved by a court; whether the “integrity of the judicial system” is in need of protection is not an issue that a jury is well-suited to determine. Therefore, any suggestion that we can simply find “a genuine issue of material fact” and remand the case for a jury trial is a mistake; this Court must decide whether the circuit judge committed an abuse of discretion in his application of the doctrine to the facts of this case.

¶ 36. In summary, I dissent because the plurality opinion applies the wrong standard of review, reaches the wrong result, and apparently remands the case for a jury trial on an issue that must be decided by the court.

ISHEE AND CARLTON, JJ., JOIN THIS OPINION.

      . Initially, after the case was reopened, Adams attempted to list the cause of action as exempt personal property, but the trustee filed an objection. The bankruptcy court sustained the trustee’s objection because Mississippi Code Annotated section 85-3-17 (Rev.2011) does not permit an exemption until a personal-injury cause of action has been reduced to a judgment; therefore, Adams’s exemption claim was disallowed without prejudice so that Adams could reassert her exemption claim if the cause of action was ever reduced to a judgment.

      . The Defendants filed a motion to strike portions of the record on appeal, specifically portions of the record containing certain discovery responses. The Mississippi Supreme Court passed the motion to this Court for consideration with the merits of the appeal. It was not necessary for the Court to consider these discovery responses to reach a decision on appeal. Even if the responses were to be considered, they would have no bearing on the issue presented before the Court. Therefore, the motion is denied as moot.

      . This is similar to cases decided on summary judgment in which we review the trial court’s underlying rulings as to the admissibility of expert testimony for abuse of discretion but review the grant or denial of summary judgment de novo. McDonald v. Mem'l Hosp. at Gulfport, 8 So.3d 175, 178-79 (¶ 8) (Miss. 2009). The underlying evidentiary ruling may be dispositive, but that does not change the applicable standard of review. See id. The same is true here — the trial court’s underlying ruling on the issue of judicial estoppel may be dispositive, but we still apply the abuse-of-discretion standard.

      . See, e.g., Detroit Marine Eng’g v. McRee, 510 So.2d 462, 467 (Miss. 1987) (“Our inquiry is limited to whether the trial judge abused his discretion; we may not rule on whether he was ‘right’ or ‘wrong’ in our view. And, unless the trial court based its decision on an erroneous review of law, this Court is not authorized to reverse for an abuse of discretion unless we find it was arbitrary and clearly erroneous.” (quotation marks and citations omitted)).

      . Oliver and Kirk appropriately applied federal caselaw to determine the preclusive effect of a debtor’s failure to disclose a claim in federal bankruptcy proceedings. See Superior Crewboats, 374 F.3d at 334 & n. 3; Kamont v. West, 83 Fed.Appx. 1, 3 (5th Cir.2003) ("We apply federal law where judicial estoppel is applied based on a debtor’s failure to disclose assets in violation of the federal Bankruptcy Code.”); Bailey v. Barnhart Interest Inc., 287 S.W.3d 906, 910 (Tex.Ct.App.2009) (“Because the [defendants] invoked judicial estoppel in the bankruptcy context, we apply federal law to determine whether the doctrine applies here.”); 19 Wright, Miller & Cooper, Federal Practice and Procedure § 4514 (2d ed.) ("[F]ederal common law is truly federal law in the sense that, by virtue of the Supremacy Clause, it is binding on state courts” (footnotes omitted)).

      . In Kirk, we concluded, "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.” Kirk, 973 So.2d at 992 (¶ 38) (emphasis added). The same must be said here.

      . Likewise, the trustee’s decision to abandon the claim when it was first disclosed "well after the bankruptcy discharge is irrelevant to whether the judicial estoppel doctrine should apply.” Kaufman v. Robinson Prop. Grp. L.P., No. 2:07CV048-P-A, 2009 WL 3003261, at *2 (N.D.Miss. Sept. 16, 2009) (Pepper, J.); accord Superior Crewboats, 374 F.3d at 335 (applying the doctrine despite the trustee’s abandonment of the claim); Robey v. Cleveland Sch. Dist., No. 2:12CV101-SA-SAA, 2013 WL 5775306, at *3 (N.D.Miss. Oct.25, 2013) (Aycock, J.) (same; collecting cases). The relevant question is whether Adams had a motive to conceal the claim when she failed to disclose it, not whether the trustee has an interest in pursuing it when it is brought to her attention post-discharge. As the bankruptcy court put it, ”[t]he trustee’s lack of knowledge [at the appropriate time] of Adams’s state court cause of action does not provide Adams a 'safe harbor.’ ” Adams, 481 B.R. at 858.

      . In Mississippi Power & Light Co. v. Cook, there was a brief discussion of the doctrine of judicial estoppel followed the statement that the plaintiff “explained his actions in the bankruptcy proceeding, and it was correctly left to the jury to determine his credibility.” Cook, 832 So.2d at 482 (¶ 22). The opinion's brief analysis of this issue is confusing, but it appears that the issue on appeal was an evi-dentiary one — namely, the circuit court's ruling that certain of the plaintiff's "bankruptcy documents could be used for impeachment, but the entire bankruptcy file could not be admitted into evidence because it might confuse the jury.” Id. at 481 (¶ 21), The Supreme Court framed the issue raised by the appellant as "[wjhether the circuit 'mishandled' Cook’s bankruptcy 'manifold.' ” Id. at 481 (capitalization altered). I do not read the opinion to indicate that the issue of judicial estoppel was or should have been submitted to the jury — only that some of the plaintiff's bankruptcy filings were properly admitted for impeachment purposes.