IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00959-COA
SHANNON ROGERS APPELLANT
v.
GULFSIDE CASINO PARTNERSHIP D/B/A APPELLEE
ISLAND VIEW CASINO RESORT
DATE OF JUDGMENT: 05/21/2015
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY
ATTORNEYS FOR APPELLEE: DAVID W. STEWART
BRIAN CHRISTOPHER WHITMAN
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
TRIAL COURT DISPOSITION: GRANTED SUMMARY JUDGMENT IN
FAVOR OF APPELLEE
DISPOSITION: AFFIRMED - 12/13/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WILSON, J., FOR THE COURT:
¶1. Shannon Rogers slipped and fell near the buffet at the Island View Casino in Gulfport.
The Island View is owned by Gulfside Casino Partnership (Gulfside). Almost three years
later, Rogers filed suit against Gulfside in the Harrison County Circuit Court, alleging that
she was injured as a result of Gulfside’s negligence and entitled to damages of “no less than
$750,000.00.” The circuit court concluded that Rogers’s lawsuit was barred by the doctrine
of judicial estoppel because she failed to disclose her claim in her bankruptcy proceeding,
which was still pending when the claim accrued. Accordingly, the circuit court granted
Gulfside’s motion for summary judgment and dismissed Rogers’s complaint with prejudice.
We conclude that the circuit court did not abuse its discretion by dismissing Rogers’s
complaint on the basis of judicial estoppel. Therefore, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On March 30, 2010, Rogers visited the Island View Casino in Gulfport to gamble and
dine when she slipped and fell on the floor near the buffet. The next day, Rogers notified
Gulfside’s risk manager of the incident, and Gulfside submitted her claim to its insurer.
¶3. At the time of her fall, Rogers and her husband had an open bankruptcy case in the
U.S. Bankruptcy Court for the Southern District of Mississippi. They had filed for
bankruptcy under Chapter 13 of the U.S. Bankruptcy Code on October 12, 2005, and the
bankruptcy court confirmed their bankruptcy plan in March 2006. The bankruptcy court
granted them a discharge of their debts in October 4, 2010, after they completed their plan.
A final order closing the bankruptcy was entered on March 14, 2011. Thus, Rogers reported
her claim and alleged injury to Gulfside six months before she was discharged from
bankruptcy and nearly one year before her bankruptcy case was closed. Nonetheless, Rogers
never disclosed her potential claim to the bankruptcy trustee.
¶4. On March 28, 2013, Rogers filed a personal injury lawsuit against Gulfside in the
Harrison County Circuit Court. She alleged that she had incurred medical expenses in excess
of $56,000 and claimed that she was entitled to damages of “no less than $750,000.00.” On
November 13, 2014, after learning of Rogers’s prior bankruptcy, Gulfside moved for
summary judgment, arguing that Rogers was judicially estopped from pursuing her claim
2
because she had failed to disclose it during her bankruptcy proceeding. The circuit court
agreed with Gulfside and granted its motion for summary judgment, dismissing Rogers’s
complaint with prejudice. Rogers then filed a timely notice of appeal.
DISCUSSION
I. Did Rogers have an obligation to disclose her claim in her
bankruptcy case?
¶5. As an initial matter, we must determine whether Rogers had an obligation to disclose
her claim against Gulfside in her prior bankruptcy proceeding. If she had no obligation to
disclose the claim, then her failure to do so would not estop her from pursuing it now. In
Copiah County v. Oliver, 51 So. 3d 205 (Miss. 2011), the Mississippi Supreme Court
addressed a similar question involving a Chapter 13 debtor’s failure to disclose a personal
injury claim that accrued after she filed a petition for bankruptcy and after her bankruptcy
plan was confirmed. See id. at 206 (¶¶3-4). There, the Court remanded that case with
instructions to stay proceedings in the circuit court “until the bankruptcy court ha[d] had an
opportunity to consider whether [the debtor] had a duty to disclose her post-petition,
post-confirmation claim.” Id. at 207 (¶12). The Court concluded that it would be “prudent”
to seek the bankruptcy court’s view because, at that time, there seemed to be little or no
caselaw on point. See id. at (¶¶10-11).
¶6. However, subsequent decisions address this point with relative clarity. Therefore,
there is no need for us to delay proceedings or impose upon the bankruptcy court in this case.
In Love v. Tyson Foods Inc., 677 F.3d 258 (5th Cir. 2012)—a Chapter 13 case—the U.S.
Court of Appeals for the Fifth Circuit clearly explained:
3
The Bankruptcy Code and Rules impose upon bankruptcy debtors an express,
affirmative duty to disclose all assets, including contingent and unliquidated
claims. The obligation to disclose pending and unliquidated claims in
bankruptcy proceedings is an ongoing one. The disclosure requirement
pertains to potential causes of action as well.
Id. at 261 (emphasis added; citations, quotation marks, and brackets omitted). More recently,
in another Chapter 13 case, the U.S. Bankruptcy Court for the Northern District of
Mississippi held “the authorities from the Fifth Circuit Court of Appeals make it clear that
[a debtor has] a continuing duty throughout the pendency of her bankruptcy case to disclose
[a] state law cause of action.” In re Adams, 481 B.R. 854, 859 (Bankr. N.D. Miss. 2012).
¶7. There is no legally significant distinction between Adams and this case. In Adams,
the debtor filed a bankruptcy petition in 2004; her bankruptcy plan was confirmed in 2005;
her wrongful death claim accrued in 2007; she filed her wrongful death suit in state court in
2008; and she was discharged from bankruptcy in 2009. See id. at 856-57. Similarly in this
case, Rogers’s slip-and-fall claim accrued after she filed for bankruptcy and her bankruptcy
plan had been confirmed but before she was discharged from bankruptcy. She also notified
Gulfside’s risk manager of her personal injury claim while her bankruptcy case remained
pending. The only difference between this case and Adams is that Rogers waited until after
she had been discharged from bankruptcy to file her lawsuit in state court. However, as
Adams and Love make clear, this distinction lacks legal significance. A debtor has a
continuing and ongoing obligation to disclose potential claims to her bankruptcy trustee.
Rogers knew about her claim and even submitted it to Gulfside while her bankruptcy case
was pending; she could not avoid her disclosure obligations under the Bankruptcy Code
4
simply by waiting until after she was discharged to file suit on the claim.
¶8. Mississippi courts are competent to apply federal law when necessary to decide a case
over which we have jurisdiction. Since Oliver was decided, the Fifth Circuit’s opinion in
Love and the bankruptcy court’s opinion in Adams have provided sufficient guidance for us
to decide this case without a stay and further proceedings in the bankruptcy court. It is clear
that Rogers had an obligation to disclose her potential claim against Gulfside. We next
address whether her failure to disclose the claim in her bankruptcy proceeding judicially
estops her from pursuing the claim in the instant case.
II. Did the circuit court abuse its discretion by dismissing Rogers’s
complaint on the basis of judicial estoppel?
¶9. Although we “commonly state[] that we review the circuit court’s decision to grant
summary judgment de novo,” Bennett v. Highland Park Apartments LLC, 170 So. 3d 450,
452 (¶4) (Miss. 2015), “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)); see also New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (“[J]udicial estoppel
is an equitable doctrine invoked by a court at its discretion.” (quotation marks omitted)).1
1
In Adams v. Graceland Care Ctr. of Oxford LLC, No. 2013-CA-00724-COA, 2015
WL 6685213 (Miss. Ct. App. Nov. 3, 2015), cert. granted, 2016 WL 6462260 (Miss. July
21, 2016), an opinion joined by four of eight participating judges stated that a de novo
standard of review applies when a motion for summary judgment is granted on the basis of
judicial estoppel. See id. at *2 (¶7) (plurality op.). The plurality opinion relied on Copiah
County v. Oliver, 51 So. 3d 205, 207 (¶7) (Miss. 2011), in support of this contention.
However, the Oliver Court did not purport to overrule Kirk, did not expressly alter the
standard of review of a trial court’s imposition of judicial estoppel, and did not even reach
the merits of the judicial estoppel issue in that case. See Adams, 2015 WL 6685213, at *7
5
Thus, a decision to grant summary judgment that is based on judicial estoppel implicates a
“twofold standard of review”: we first review the judicial estoppel ruling for an abuse of
discretion and then determine whether the circuit court properly granted summary judgment.
See Bennett, 170 So. 3d at 452 (¶5) (stating that if a grant of summary judgment depends on
an underlying evidentiary ruling, an appellate court applies a “twofold standard of review,”
“first review[ing] the . . . evidentiary ruling for an abuse of discretion, then review[ing] the
remaining question of law de novo”). In this case, however, the circuit court’s grant of
summary judgment was based entirely on its ruling on the issue of judicial estoppel. Thus,
if the court’s imposition of judicial estoppel was not an abuse of discretion, it necessarily
follows that its grant of summary judgment was proper. Therefore, the only question we
must address is whether the circuit court abused its discretion by imposing the doctrine of
judicial estoppel.
¶10. When a debtor seeks to recover on a claim that she failed to disclose in a prior
bankruptcy proceeding, 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)
(¶26) (Wilson, J., dissenting). Accordingly, we will apply the standard of review that the
Supreme Court expressly adopted in Kirk. See Buffington v. State, 824 So. 2d 576, 580 (¶15)
(Miss. 2002) (“[A] majority of all sitting judges is required to create precedent, and therefore,
it follows that a plurality vote does not create a binding result.” (quotation marks omitted));
Hudson v. WLOX Inc., 108 So. 3d 429, 432 (¶10) (Miss. Ct. App. 2012) (“[T]his court lacks
authority to overrule Mississippi Supreme Court precedent.”). We also note that the
Supreme Court has granted certiorari to review our decision in Adams.
6
(quoting Superior Crewboats, 374 F.3d at 335)).2 With respect to the first of these
requirements, Rogers had a continuing duty to disclose her claim in her bankruptcy case, so
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). With respect to the second requirement, when the bankruptcy court
entered an order discharging Rogers and her husband from bankruptcy, the court 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.
¶11. The only remaining issue relates to the third requirement: whether Rogers’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 In re Coastal Plains Inc., 179 F.3d 197, 210 (5th Cir. 2009))). Moreover, it
is the debtor’s burden to prove that her non-disclosure was inadvertent. Jethroe v. Omnova
2
Oliver and Kirk appropriately applied federal caselaw to determine the preclusive
effect of a debtor’s failure to disclose a claim in a bankruptcy proceeding. See Superior
Crewboats, 374 F.3d at 334 & n.3; Kamont v. West, 83 F. App’x 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 Charles A. Wright, Arthur R. Miller & Edward H. 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)).
7
Solutions Inc., 412 F.3d 598, 600 (5th Cir. 2005). The question is not whether the debtor
subjectively knew at the time of her bankruptcy that she had a legal duty to disclose the claim
in her bankruptcy proceeding. Rather, a debtor is deemed to have had “knowledge” of her
claim so long as she was aware “of the facts giving rise to” it. Id. at 601. Here, Rogers
obviously had “knowledge of” her slip-and-fall claim. Indeed, she notified Gulfside of her
claim the next day, six months before she was granted a discharge from bankruptcy.
¶12. Because Rogers had “knowledge” of her claim, the issue narrows further to whether
she had a “motive for . . . concealment” of the claim. Id. The Fifth Circuit appropriately
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, 677 F.3d at
262 (emphasis added) (quoting Thompson v. Sanderson Farms Inc., No. 3:04CV837-WHB-
JCS, 2006 WL 7089989, at *4 (S.D. Miss. May 31, 2006)). The debtor’s motive not to
disclose her claim is the same as her motive not to disclose any other asset. If the debtor does
not disclose her claim, she can keep the net proceeds of any settlement or judgment 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, 412
F.3d at 601 (citing Coastal Plains, 179 F.3d at 210). Rogers presented no evidence that this
self-evident motive for concealment is inapplicable in this case. Accordingly, the circuit
court did not abuse its discretion by finding that all three requirements of judicial estoppel
were satisfied and dismissing Rogers’s complaint with prejudice.
8
¶13. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES AND FAIR, JJ., CONCUR. JAMES, J.,
DISSENTS WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., DISSENTS
WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., CARLTON,
JAMES AND GREENLEE, JJ.
ISHEE, J., DISSENTING:
¶14. With regard to the majority opinion, I respectfully dissent. In 2010, Rogers fell inside
Island View Casino Resort in Gulfport. Island View is owned and operated by Gulfside
Casino Partnership. Rogers contacted Gulfside the day after her fall claiming Gulfside was
negligent and contributed to her purported injuries. Gulfside disputed her allegations. In
2013, Rogers filed suit in the Harrison County Circuit Court against Gulfside regarding the
incident. In 2014, Gulfside filed a motion for summary judgment, which the circuit court
granted in 2015. Finding error, I would reverse and remand for further proceedings.
STATEMENT OF FACTS
¶15. On October 12, 2005, Rogers and her husband filed a Chapter 13 petition for
bankruptcy. As part of the proceedings, they filed a schedule disclosing all debts and assets
available to them. Additionally, they were required to notify their bankruptcy trustee and file
an amended schedule if any asset or potential asset accrued, including a potential lawsuit,
prior to the disposal of their petition by the bankruptcy court. Their bankruptcy debt was
discharged on October 4, 2010, but the order closing the bankruptcy proceeding was not
entered until March 14, 2011.
¶16. On March 30, 2010, Rogers visited Gulfside’s property – the Island View Casino
9
Resort. While there, Rogers slipped and fell. The next day, she contacted Tony Vanderslice,
Gulfside’s risk manager, and made a personal-injury claim. Vanderslice submitted her claim
to Gulfside’s insurance carrier, but the claim was ultimately denied. Subsequently, in March
2013, Rogers filed suit against Gulfside regarding the slip and fall.
¶17. In 2014, Gulfside filed a motion for summary judgment in the circuit court. Gulfside
asserted that Rogers was barred from pursuing her claim by virtue of judicial estoppel since
she failed to disclose the March 2010 slip and fall as a potential cause of action to her
bankruptcy trustee prior to the disposal of the bankruptcy proceedings in October 2010. The
circuit court agreed, and granted the motion for summary judgment. Rogers now appeals,
claiming the circuit court erred when it granted the motion.
DISCUSSION
¶18. Summary judgment is appropriate “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). A de novo standard of review is applied to the grant
of a motion for summary judgment. Kilhullen v. Kansas City S. Ry., 8 So. 3d 168, 174 (¶14)
(Miss. 2009). When reviewing such a motion, “the evidence must be viewed in the light
most favorable to the party against whom the motion has been made.” Id. (quoting Daniels
v. GNB Inc., 629 So. 2d 595, 599 (Miss. 1993)). However, the opposing party “may not rest
upon the mere allegations or denials of his pleadings, but his response, by affidavits or as
otherwise provided in this rule, must set forth specific facts showing that there is a genuine
10
issue for trial.” M.R.C.P. 56(e).
¶19. In the case at bar, it is undisputed that Rogers’s bankruptcy proceedings were
unresolved at the time she contacted Gulfside about her fall at the Island View. It is also
undisputed that she failed to inform her bankruptcy trustee of the potential cause of action,
contrary to the requirements of the bankruptcy proceedings. The supreme court addressed
a similar factual scenario in Copiah County v. Oliver, 51 So. 3d 205 (Miss. 2011). In Copiah
County, Nancy Oliver filed for Chapter 13 bankruptcy and later filed a personal-injury action
against Copiah County, Mississippi, prior to the close of her bankruptcy proceedings. Id. at
206 (¶¶3-4). Copiah County filed a motion for summary judgment, claiming that Oliver was
judicially estopped from pursuing her personal-injury claim since she did not inform her
bankruptcy trustee of the impending lawsuit and did not file an amended schedule. Id. at
(¶5). The circuit court denied the motion for summary judgment, concluding that the
bankruptcy court should be allowed to determine whether judicial estoppel applied in the
circuit-court action. Id. at (¶6). Copiah County filed an interlocutory appeal. Id. In
response, the supreme court held:
To decide if judicial estoppel applies to Oliver’s suit against Copiah County,
it must be determined whether she had a duty to disclose to the bankruptcy
court her post-petition, post-confirmation claim. We believe our most prudent
course is to allow the bankruptcy court to decide this question and to stay
further proceedings until it has had an opportunity to do so. This course
ensures that the present action is prosecuted in the name of the real party in
interest.
Id. at 207 (¶11).
¶20. The distinguishing factor between Copiah County and the instant case is that the
11
bankruptcy proceedings were already closed by the time Rogers filed her case, whereas in
Copiah County, the bankruptcy proceedings were ongoing when the action was filed. Id. at
206 (¶3). Nonetheless, the bankruptcy proceedings were still open when Rogers’s action
accrued. Rogers pursued a claim against Gulfside regarding the slip and fall when she called
Gulfside’s risk manager the day after the incident. Hence, Rogers was aware that her alleged
injuries and the circumstances from which the injuries arose constituted a potential asset.
However, she failed to inform her bankruptcy trustee and did not file an amended schedule
informing the bankruptcy court of the potential asset.
¶21. I find that Rogers’s case largely mirrors that of Copiah County, and would follow the
logic of the supreme court therein. Hence, I would reverse and remand this case for the
bankruptcy court’s review to determine whether Rogers had a duty to disclose her claim
against Gulfside to her bankruptcy trustee.
IRVING, P.J., CARLTON, JAMES AND GREENLEE, JJ., JOIN THIS
OPINION.
12