dissenting, with whom THOMAS, Justice, joins.
The decision of the majority to affirm this summary judgment based on judicial estoppel ignores clearly presented issues of material fact evident in the record. While I recognize that the policy behind judicial estoppel is to preserve sanctity and integrity of the judicial system, Allen v. Allen, 550 P.2d 1137, 1142 (Wyo.1976); see also Comment, Precluding Inconsistent Statements: The Doctrine of Judicial Estoppel, 80 Nw.U.L.Rev. 1244, 1245, 1249 (1986), this summary disposition of the Zwemers’ claim flies in the face of this policy by locking the Zwemers out of the courthouse contravening our constitutional mandate to keep the courts open to all. Wyo. Const. art. 1, § 8. For this reason, I dissent.
Omitted from the majority opinion is our often-stated standard of review in summary judgment cases. That omission compels me to reiterate it here. As we recently said:
Summary judgment is proper only when there are no genuine issues of material fact and the prevailing party is entitled to judgment as a matter of law. * * * We review a summary judgment in the same light as the district court, using the same materials and following the same standards. * * * We examine the record from the vantage point most favorable to the party opposing the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record.
Wagner v. First Wyoming Bank, N.A. Laramie, 784 P.2d 224, 226 (Wyo.1989) (emphasis added). Reviewing the record in the light most favorable to the Zwemers, the party opposing the motion, as we are required to do, I find it impossible to conclude that no genuine issues of material fact exist which relate to the decision whether judicial estoppel should properly be applied. Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo.1987); Cordova v. Gosar, 719 P.2d 625 (Wyo.1986).
The entire question of how the parties obtained relief from the bankruptcy code automatic stay, 11 U.S.C. § 362 (1988), in order to pursue the claim and the counterclaim leaves much to speculation. What is not a matter of speculation is that Wyoming Production Credit Association of Midlands (WPCA) was aware at every step of this litigation that the Zwemers always intended to pursue their counterclaim. Before zeroing in on the tactic of claiming the Zwemers should be judicially estopped, WPCA moved to dismiss the claim for failure to prosecute pursuant to W.R.C.P. 41(b)(1). This court would have not permitted dismissal of this action if called upon to weigh the equities between WPCA and the Zwemers, for WPCA’s knowledge of the Zwemers’ intentions certainly dirties its hands. Lewis v. State Bd. of Control, 699 P.2d 822 (Wyo.1985); Walker v. Bd. of County Com’rs, Albany County, 644 P.2d 772 (Wyo.1982).
It is clear that the stay was lifted on the parties’ stipulation, but what the bankruptcy court knew of the state district court litigation is not clear. Thus, the bankruptcy court’s knowledge remains a question to be answered through fact finding.
The stipulation signed by the parties states that “disputes between WPCA and Debtors [the Zwemers] regarding personal property described by the security agreement may be litigated in State District Court * * The meaning of that statement is not clear in light of the fact that each party had a claim pending against the other and neither party denied it. I become even more concerned when I read the form of the stipulation first submitted by the Zwemers. This proposed stipulation was sent to WPCA in April 1985 and was part of the record as an exhibit attached to the affidavit of Ronald P. Jurovich, the Zwemers’ attorney for the bankruptcy action. It references the counterclaim numerous times throughout the document, including paragraphs 7 and 8 which state:
7. It is the express intention of the parties hereto, Plaintiff, Wyoming Production Credit Association, Creditor herein, and Robert Zwemer and Sharia A. Zwemer, Defendants and Counterclaim-ants and Debtors herein, to proceed to trial with Civil Action No. 14115, and to *250allow the parties to pursue their respective claims in the District Court, Fifth Judicial District, State of Wyoming.
8. It is further the intention of the parties that the Relief From the Automatic Stay be modified only to permit the parties to continue the aforementioned suits and counterclaim now pending in the District Court, Fifth Judicial District for the State of Wyoming.
The record contains very little from the bankruptcy action. It gives us no clue as to why the stipulation “evolved” from one clear and concise statement concerning the counterclaim to the cryptic reference to the parties’ “disputes” contained in the stipulation actually executed. There are numerous inferences that could be drawn from this. We can and should give the Zwemers the benefit of the most favorable inferences which can fairly be drawn from the record. At this stage of the proceeding, those inferences include that the Zwemers were not blowing “ ‘hot and cold in the same breath * * * [nor maintaining] inconsistent positions.’ ” Anderson v. Sno-King Village Ass’n Inc., 745 P.2d 540, 545 (Wyo.1987), cert. denied — U.S. -, 109 S.Ct. 29, 102 L.Ed.2d 9 (1988) (quoting Amfac Mechanical Supply Co. v. Federer, 645 P.2d 78, 79 (Wyo.1982)). If further fact finding indicates otherwise, then so be it.
We must infer, in determining the propriety of granting this summary judgment motion, that the bankruptcy court knew that the Zwemers’ and WPCA’s stipulation to settle their disputes included the parties’ intention to settle the dispute over the Zwemers’ counterclaim. To do less is to pervert the concept of judicial estoppel. This record does not justify that decision to be made as a matter of law when it cannot be actually and practically made as a matter of established facts. This is a misuse of summary judgment which denies the litigant a trial for resolution of contested facts. Atlas Const. Co. v. Slater, 746 P.2d 352 (Wyo.1987).
Consequently, I respectfully dissent.