dissenting.
I respectfully dissent. I believe Strable was not afforded the benefit of all reasonable inferences regarding his intention when he failed to disclose his pending FELA claim throughout his bankruptcy proceeding.
The nonmovant in a summary judgment is to be given the benefit of all reasonable inferences. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 382 (Mo. banc 1993). This means if the movant requires an inference to establish the right to summary judgment and the evidence reasonably supports any inference other than, or in addition to, the movant’s inference, a genuine dispute exists and the movant’s prima facie showing fails and movant is not entitled to summary judgment. Id. Summary judgment should not be granted unless evidence could not support any reasonable inference for the nonmovant. Daugherty v. City of Maryland Heights, 231 S.W.3d 814, 818 (Mo. banc 2007).
In deciding whether to apply the doctrine of judicial estoppel, courts invariably consider whether the debtor’s omission was inadvertent or mistaken. Eastman v. Union Pacific Railroad Co., 493 F.3d 1151, 1157 (10th Cir.2007). Courts consider a failure to disclose inadvertent or mistaken when the debtor either had no knowledge of the undisclosed claim or had no motive to conceal the claim. Id.
Union Pacific alleged Strable took a pri- or inconsistent position in the bankruptcy proceeding by failing to amend his bankruptcy schedules at the time of the conversion and this omission was neither inadvertent nor mistaken. Union Pacific asserted no other facts to establish Strable’s motive. Strable’s motive to conceal can only be established by drawing an inference. Thus, Union Pacific requires an inference to establish its right to summary judgment.
A rule that the requisite intent for judicial estoppel can be inferred from the mere fact of nondisclosure in a bankruptcy proceeding would unduly expand the reach of judicial estoppel in post-bankruptcy proceedings and would inevitably result in the preclusion of viable claims on the basis of inadvertent or good-faith inconsistencies. Stallings v. Hussmann Corp., 447 F.3d 1041,1049 (8th Cir.2006). Careless or inadvertent disclosures are not the equivalent of deliberate manipulation.1 Id. Courts should only apply the doctrine as an extraordinary remedy when a party’s inconsistent behavior will result in a miscarriage of justice. Id.
Although the record may well support an inference Strable’s failure to disclose his FELA claim was a deliberate decision designed to manipulate or mislead the court to his advantage, it also supports an inference Strable did not engage in such a connivance, but rather simply made an innocent mistake of omission. The circumstances surrounding Strable’s nondisclosure militate against any inferences of dubious motive, and therefore, the evidence reasonably supports an inference other than the one Union Pacific urges.
As the majority noted, Strable offered two letters discussing the effect of the FELA claim on the bankruptcy estate and whether the bankruptcy case needed to be re-opened given the pending FELA claim. *428One letter, dated March 28, 2011, is from Strable’s former bankruptcy attorney to the bankruptcy trustee informing the bankruptcy trustee Strable had a workers’ compensation claim under FELA, and offering to re-open the bankruptcy case to show the FELA claim and then claim it as exempt. The other letter, dated April 6, 2011, was written by the bankruptcy trustee in reply to the bankruptcy attorney’s letter, and stated he did not, “deem it necessary to re-open the case to administer a non-exempt asset,” which he believed the FELA claim to be. The letters were accompanied by Strable’s attorney’s own affidavit stating, “that the attached exhibits are true and correct based upon my personal knowledge and belief.” Union Pacific objected to the letters’ admissibility on hearsay grounds, but the trial court never ruled on the objection.
Extrajudicial statements of third persons contained in letters or testimony, though hearsay in the sense that contents could not be used to prove any of the matters asserted therein, were nevertheless admissible to show intent of a party. See Venator v. Venator, 512 S.W.2d 451, 455 (Mo.App. E.D.1974); Replogle v. Replogle, 350 S.W.2d 735, 737 (Mo.1961). Thus, the two letters Strable submitted from his bankruptcy attorney and the bankruptcy trustee may be considered in the summary judgment record as eviden-tiary support for the inference that his omission in failing to update his bankruptcy schedule was not due to bad faith. Specifically, I believe the letters can be considered not to show that Strable was not required to reopen the bankruptcy case and disclose the claim, but rather to show he did not intend to manipulate or mislead the bankruptcy court.
Intent is proven by circumstantial evidence in nearly every case, and failure to provide direct evidence of such intent is an improper basis for summary judgment. Schroeder v. Duenke, 265 S.W.3d 843, 848 (Mo.App. E.D.2008). We view circumstantial evidence no differently from direct evidence when determining whether there was a genuine issue as to any material fact so as to preclude summary judgment. Id. Knowledge, intent, motive, and the like are elusive facts, and rarely is it appropriate to grant summary judgment in cases where the facts must be proven by circumstantial evidence. Id.
It is difficult to determine the motives of others, particularly on the basis of a cold record. See Loth v. Union Pacific R. Co., 354 S.W.3d 635, 643 (Mo.App. E.D.2011). In the context of employment-discrimination cases, the Missouri Supreme Court has cautioned that summary judgment should rarely be used in those type cases because such cases are inherently fact-based and often depend on inferences rather than on direct evidence. Daugherty, 231 S.W.3d at 818. Courts would do well to heed this advice when considering whether to grant summary judgment on the basis of judicial estoppel. See Loth, 354 S.W.3d at 643.
I believe there are two plausible competing inferences to be drawn from the facts set forth by the parties. Therefore, a genuine issue of material fact exists, making summary judgment improper based on Union Pacific’s claim of judicial estoppel. I rest my decision on this court’s standard of review in summary judgment cases, which affords the nonmovant the benefit of all reasonable inferences, and I make no determination on the merits of applying the doctrine of judicial estoppel in this case.
Accordingly, I would reverse the trial court’s judgment and remand the cause for a trial on the merits.
. See, e.g., Vinson v. Vinson, 243 S.W.3d 418 (Mo.App. E.D.2007) (affirming the trial court’s decision to reject judicial estoppel when a husband claimed an asset in the divorce proceeding that he failed to list on a prior bankruptcy schedule of assets). The trial court had found the bankruptcy schedule instructions for listing of assets to be "vague.” Id. at 422.