IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA APPEAL - ORAL ARGUMENT REQUESTED

Transcription

1 L\ -, '... RfGIIAl' )'i fq """"'o-....,-< -' -,.- IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI '...;:~ ~~ '-,:',.- " NO CA <: ~,," - :. ",- " '; '". APPEAL - ORAL ARGUMENT REQUESTED SHIRLEY ADAMS, INDIVIDUALLY AND AS SURVIVOR AND ONLY HEIR OF DOROTHY TURNER, (DECEASED) v. FILED SEP 2\) 2014 OFFICe,"., _ v"cfik SUPREME COURT COURT OF APPEALS APPELLANT GRACELAND CARE CENTER OF OXFORD, LLC, GRACELAND MANAGEMENT COMPANY, INC., LAFAYETTE LTC, INC., AND YALOBUSHA GENERAL HOSPITAL AND NURSING HOME. APPELLEES " BRIEF OF APPELLANT, SlllRLEY ADAMS, INDIVIDUALLY AND AS SURVIVOR AND ONLY HEIR OF DOROTHY TURNER, (DECEASED). BOBBY F. MARTIN (MSB NO ).THE COCHRAN FIRM - MEMPIDS ONE COMMERCE SQUARE 26 TH FLOOR MEMPIDS, TENNESSEE TELEPHONE: (901) FACSIMILE: (901) ,,-,,-.', _ t, '. COUNSEL FOR THE APPELLANT, SmRLEY ADAMS

2 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO.2013-CA OO724 APPEAL - ORAL ARGUMENT REQUESTED 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 CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1. Honorable John A. Gregory, Lafayette County Circuit Court Judge 2. Shirley Adams, Appellant 3. Graceland Care Center of Oxford, LLC, Appellee 4. Graceland Management Company, Inc., Appellee 5. Lafayette LTC, Inc., Appellee 6. Yalobusha General Hospital and Nursing Home, Appellee 7. Bobby F. Martin, Attorney for Appellant 8. Michael Skouteris, Attorney for Appellant 9. Stewart Guernsey, Attorney for Appellant ii

3 10. The Cochran Firm - Memphis, Attorneys for Appellant 11. Skouteris & Magee, PLLC, Attorneys for Appellant 12. Law Firm of Thomas U. Reynolds, Attorneys for Appellant 13. Thomas L. Kirkland, Attorney for Appellee Graceland Care Ctr. of Oxford, LLC, Graceland Management Co., Inc., & Lafayette LTC, Inc. 14. Andy Lowry, Attorney for Appellee Graceland Care Ctr. of Oxford, LLC, Graceland Management Co., Inc., & Lafayette LTC, Inc. 15. John G. Wheeler, Attorney for Appellee Yalobusha General Hospital and Nursing Home 16. Copeland Cook Taylor & Bush, P.A., Attorneys for Appellee Graceland Care Clr. of Oxford, LLC, Graceland Management Co., Inc., & Lafayette LTC, Inc. 17. Mitchell, McNutt & Sams, P.A., Attorneys for Appellee Yalobusha General Hospital and Nursing Home RESPECTFULLY SUBMITTED, this the 25 th day of September, 201 NO ) iii

4 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... ii TABLE OF AUTHORITIES... v STATEMENT OF THE ISSUES... vi STATEMENT OF THE CASE... 1 A. Course of Proceedings Below and Statement of the Facts... 1 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 I. THE APPELLEES FAILED TO MEET THEIR BURDEN OF PROVING BEYOND A GENUINE FACTUAL DISPUTE THAT SHIRLEY ADAMS' NON-DISCLOSURE WAS NOT INADVERTANT AND WAS ACCEPTED BY THE BANKRUPTCY COURT... 5 A. Appellees failed to meet their burden of proving in the trial court that Shirley Adams knowingly took inconsistent positions... 5 B. Appellees failed to establish that the bankruptcy court relied on Shirley Adams' nondisclosure C. Appellees never endeavored to establish the Mississippi elements of judicial estoppel before the trial court II. TO THE EXTENT THAT THE LAW REGARDING JUDICIAL ESTOPPEL IN MISSISSIPPI WAS UNCLEAR, CLARK V. NEESE SOLIDIFIED ITS ELEMENTS AND PURPOSE CONCLUSION CERTIFICATE OF SERVICE CERTIFlCATE OF flung iv

5 TABLE OF AUTHORITIES Cases Albert v. Scott's Truck Plaza, Inc, 978 So.2d 1264 (Miss. 2008)... 4 City of Miami Beach v. Smith, 551 F.2d 1370 (5th Cir. 1977) Clark v. Neese, 131 So.3d 556 (Miss. 2013)... passim Cont'! Cas. Co. v. McAllen Indep. Sch. Dist., 850 F.2d 1044 (5th Cir. 1988) Copiah County, Miss. v. Oliver, 51 So. 3d 205 (Miss. 2011)... 2, 5 Erby v. North Mississippi Medical Center, 654 So.2d 495 (Miss. 1995)... 4 Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391 (5th Cir. 2003) In re Adams, 481 B.R. 854 (Bkrtcy. N.D. Miss. 2012)... 2, 3, 9, 10 In re Coastal Plains, Inc., 179 F.3d 197 (5th Cir. 1999) In re Superior Crewboats, InC., 374 F.3d 330 (5th Cir. 2004)... 6 Kane v. Nat'l Union Fire Ins. Co., 535 F.3d at Kirk v. Pope, 973 So.2d 981 (Miss. 2007)... passim Mauck v. Columbus Hotel Co., 741 So. 2d 259 (Miss. 1999)... 5 Mladineo v. Schmidt, 52 So.3d 1154 (Miss. 2010)... 5 State v. Gardner, 112 So. 2d 362 (Miss. 1959)... 8 Thomas v. Bailey, 375 So. 2d 1049 (Miss. 1979)... 5,8 U.S. for Use of Am. Bank v. C.I.T. Canst. Inc. of Texas, 944 F.2d 253 (5th Cir. 1991) Statutes 11 U.S.C.A. 554(a)... 9 v

6 STATEMENT OF THE ISSUES 1. Whether the Circuit Court of Lafayette County erred when it granted Appellees' Motion for Summary Judgment and found that judicial estoppel applied to the Appellant, Shirley Adams? vi

7 STATEMENT OF THE CASE A. Course of Proceedings Below and Statement of the Facts Shirley Adams ("Ms. Adams" or the "Appellant") filed for Chapter 13 bankruptcy protection on August 9, well over eight years before the Lafayette County Circuit court heard the Appellees Motion for Summary Judgment (R. at ) She had her Creditors' Meeting on October 27, 2004 (R. at 313.); she duly prepared her Bankruptcy Plan and Schedules; and the bankruptcy court confirmed them all on February 1,2005 (R. at 315.) She adhered to the Plan, met her monthly obligations uneventfully, and rarely had occasion to contact her bankruptcy attorney. Years later, Ms. Adams' mother, Dorothy Turner ("Ms. Turner"), suffered months of substandard custodial care and medical treatment from two different nursing homes - first Graceland Care Center of Oxford ("Grace land "), and then Y alobusha General Hospital and Nursing Home ("Yalobusha"). Her mother succumbed to her injuries on December 7, Ms. Adams filed her Complaint and pursued the surviving claims in her mother's stead. She first sued Graceland on May 14, 2008 (R. at 1-14.); and on January 12,2009, she added Yalobusha as a Defendant (R. at ) By happenstance, Ms. Adams was at that point also nearing the end of her five-year repayment schedule; and.on March 31, 2009, she was discharged from bankruptcy (R. at 317.) Ms. Adams concedes that her lawsuit qualifies as a contingent or unliquidated "asset" as contemplated by the bankruptcy code. However, in the months that elapsed between filing her mother's tort claims and being discharged from bankruptcy, Ms. Adams did not amend her Schedules to add the newly commenced civil suit. For that reason, the Appellees moved for 1

8 summary judgment in the trial court on August 27, 2009 (R ) They argued that Ms. Adams was judicially estopped from pursuing her mother's lawsuit any further, since the bankruptcy schedules were never updated (R. at 285.) Her deposition was the first time that Ms. Adams' civil attorneys ever learned of her bankruptcy. On October 13, 2009, Ms. Adams moved to re-open her bankruptcy proceeding in order to remedy this omission (R. at 378.) Her request was granted on October 16, 2009 (R. at 382.) Four days later, Ms. Adams duly amended her bankruptcy schedules, thereby discharging her duty to disclose the pending suit (R ) The bankruptcy court declined to exempt the lawsuit from the estate, but invited Ms. Adams to "reassert her exemption claim if the [civil] cause of action fils ever reduced to a judgment." In re Adams, 481 B.R. 854, 857 (Bkrtcy. N.D. Miss. 2012). At that point, activity waned in both cases. On January 13, 2011, the Mississippi Supreme Court issued its opinion in Copiah County, Miss. v. Oliver, 51 So.3d 205 (Miss. 2011). Faced with an issue very similar to the one at bar, Oliver held that the "most prudent course is to allow the bankruptcy court to decide th[e] question" of "whether [ a debtor] had a duty to disclose to the bankruptcy court her post-petition, post -confirmation claim" for personal injury damages. Oliver at 207. The Circuit Court for Lafayette County followed suit and stayed the instant action on December 19, 2011 to await guidance from the bankruptcy court on Ms. Adams' disclosure duties (R ) Before ruling on the issue, the bankruptcy court "wanted to ascertain whether the Chapter 13 trustee... had an interest in pursuing the state court cause of action." In re Adams, 481 B.R. at 857. The trustee advised the bankruptcy court in writing as follows: 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. 2

9 In re Adams, at 858. In other words, "the trustee did not want to pursue the [state court] cause of action." Id. With that, the bankruptcy court delivered its ruling on October 12, It held that Shirley Adams did indeed "ha[ ve] a duty to disclose her claim for damages as an asset of her bankruptcy case." In re: Adams at 859. That holding "answer[ ed] the question that was referred... by the Circuit Court of Lafayette County." Id. Notably, the court also observed that "the inadvertence requirement... is an issue" here. Id. at 860. The task now falls "to the presiding state court judge" to "render a decision on the applicability of judicial estoppel." Id. Eventually on March 22, 2013, the Lafayette County Circuit Court heard Appellees' Motion for Summary Judgment and subsequently granted their motion on April 12, 2013 (R. at , R.E. at B). Appellant filed her Notice of Appeal of the court's Order of Dismissal with Prejudice on May 2, 2013 (R. at ) This appeal follows. SUMMARY OF THE ARGUMENT The trial court erred when it granted the Appellees' Motion for Summary Judgment and held that Ms. Adams' claim was judicially estopped because Ms. Adams' failure to disclose her mother's tort claim to the bankruptcy court was inadvertent and was never accepted by the bankruptcy court. "A party will be judicially estopped from taking a subsequent position [only] 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 (Miss. 2013), citing Kirk v. Pope, 973 So.2d 981, 991 (Miss. 2007). Lack of inadvertence means that the positions taken must be "knowingly inconsistent." Id. at 562 (emphasis added). A court accepts a position when the court actually relies on the position for a final decision. See id. (The federal court in Neese was not required to accept or 3

10 rely on the alleged "inconsistent" position in granting a summary judgment; therefore, judicial estoppel was inappropriate.) Ms. Adams made no attempt to hide, obscure, or trivialize her Chapter 13 filing (R. at ) Nor did she make the conscious, calculated, and knowing choice to withhold her mother's lawsuit from her creditors (R. at ) Nor did she ever attempt to convince anyone that her cause of action in tort was any less viable or valuable than it is (R. at ) Instead, as soon as she understood that her mother's suit was an includable asset, she affirmatively and voluntarily had her Chapter 13 bankruptcy case re-opened (R. at ) She then listed her mother's lawsuit as an asset (R. at ) The trustee then abandoned the claim. In re Adams, at 858. Thus, the bankruptcy court neither accepted nor relied on her prior, inconsistent position that she held no civil tort claim asset. Because Ms. Adams' nondisclosure was inadvertent and because the bankruptcy court did not rely on it, Ms. Adams' claim against the Appellees cannot be judicially estopped. ARGUMENT Standard of Review In reviewing a trial court's grant of summary judgment, this Court applies a de novo standard of review. Erby v. North Mississippi Medical Center, 654 So.2d 495,499 (Miss. 1995). The party seeking summary judgment bears the burden of showing that no genuine issue of material fact exists. Albert v. Scott's Truck Plaza. Inc, 978 So.2d 1264, 1266 (Miss. 2008). "The non-moving party may not rest upon mere allegations or denials in the pleadings, but must set forth specific facts showing that there are genuine issues for trial." Id. A trial court is bound to examine "all evidentiary matters including admissions in pleadings, answers to interrogatories, depositions, and affidavits," and will do so in a light most favorable to the non-moving party. Id. 4

11 I. THE APPELLEES FAILED TO MEET THEIR BURDEN OF PROVING BEYOND A GENUINE FACTUAL DISPUTE THAT SHIRLEY ADAMS' NON DlSCLOSURE WAS NOT INADVERTANT AND WAS ACCEPTED BY THE BANKRUPTCY COURT. "A party will be judicially estopped from taking a subsequent position [only] 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 (Miss. 2013), citing Kirk v. Pope, 973 So.2d 981, 991 (Miss. 2007). "The doctrine of judicial estoppel should be applied to prevent a party from achieving unfair advantage by taking inconsistent positions in litigation." Copiah County v. Oliver, 51 So. 3d 205,207 (Miss. 2011). It aims to "expedit[e] '" litigation between '" parties by requiring orderliness and regularity in pleadings." Mauck v. Columbus Hotel Co., 741 So. 2d 259, 265 (Miss. 1999), citing Thomas v. Bailey. 375 So. 2d 1049, 1052 (Miss. 1979). "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 asserted in, and that has been accepted by, another court." Neese, 131 So.3d at 562 (emphasis added). If the Appellees failed in the trial court to meet their burden of establishing either the inadvertence element or acceptance by the bankruptcy court beyond any genuine factual dispute, then their motion for summary judgment must fail. Mladineo v. Schmidt, 52 So.3d 1154, 1160 (Miss. 2010). A. Appellees failed to meet their burden of proving in the trial court that Shirley Adams knowingly took inconsistent positions. Shirley Adams did not knowingly take inconsistent positions in bankruptcy court and state court. A trial court must determine that a party's positions were knowingly inconsistent before the court dismisses an action based on judicial estoppel. Neese, 131 5

12 So.3d at "The purpose of judicial estoppel is to prevent parties from knowingly taking a position that is contrary to a position that party has asserted in, and that has been accepted by, another court." Id. The Neese Court took the opportunity to clarify Kirk by unequivocally eliminating the adverse party requirement for judicial estoppel and unequivocally retaining the three basic elements of judicial estoppel as defined by Kirk. Id. at 562. As shown by the Neese Court, Kirk's elements for judicial estoppel are the law of the land. Id. Still, when the Kirk I I i elements are applied to the facts sub judice, Ms. Adams' non-disclosure is clearly inadvertent. This is no more apparent than when one compares the Chapter 7, liquidation debtor in Kirk to Ms. Adams. The debtor in Kirk knowingly deceived the court and even his own attorneys. He deliberately led the bankruptcy lawyer to believe that his pending "lawsuit had been dismissed," when in fact it had not. Kirk at Even after this ruse came to ligitt, the debtor still "did not disclose the suit to the bankruptcy court until... after he had obtained a fmal judgment." Id. at 993. The difference between Kirk and this case is abundantly clear when the reasoning of the Kirk court is explored. "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. (citations omitted). Therefore, we [md that the circuit court did not err in finding that judicial estoppel applied to Kirk." Id. at 992. Mr. Kirk's actions ran afoul to the knowing definition of inadvertence under both the federal scheme and Mississippi law. Ms. Adams actions or failure to act amount to inadvertence. 1 While the Neese Court did not reach the question of knowing inconsistency, the Court unequivocally defined inadvertency by stating "we need not determine whether [the plaintiff's] positions actually were knowingly inconsistent... " Neese 131 So.3d at The debtors in S-;;p.rior Crewboats similarly concocted a deliberate smokescreen by "inaccurately inform[ing] the creditors that the suit was prescribed" by the statute of limitations. In re Superior Crewboats. Inc F.3d (5th Cir. 2004). 6

13 Here, Ms. Adams has testified that she does not recall ever being questioned in bankruptcy court about any pending lawsuits (R. at 417.) But when she was finally asked if she had ever filed for bankruptcy protection, there was nothing evasive or misleading about her response: Q. Have you ever sought the protection of the bankruptcy system, Ms. Adams? Have you ever filed for bankruptcy? A. Are you talking about for me? Q. Yes. A. Yes. Q. When? A. I think it was February 'OS.e] Q. Is that proceeding still pending? A. No. Q. When was it concluded? A On February of this year [2009]. Q. Do you know whether or not you listed this lawsuit as an asset on your Schedule of Assets in that bankruptcy proceeding? A. No. Q. No, you did not? A. No. **** Q. Do you remember ever talking with a trustee in that bankruptcy proceeding and being asked whether or not you were a party to a lawsuit? A. No. Q. Are you absolutely certain, ma'am, that you did not list this lawsuit as a potential asset to you on your schedule of assets? A. In bankruptcy? Q. Yes, ma'am. A. No, I did not. **** 3 The actual date of filing was August of Her plan was confirmed in February of

14 Q. Don't want to beat the proverbial dead horse, ma'am, but do you remember, as part of any of your bankruptcy proceedings, being asked whether or not you had any pending lawsuits? A. No. (R. at 417.) Unlike the plaintiff in Kirk, it is clear that Ms. Adams made no attempt to hide, obscure, or trivialize the Chapter 13 flling (R. at , 417.) Nor did she make the conscious, calculated choice to withhold her mother's lawsuit from her creditors (R. at , 417.) Nor did she ever attempt to convince anyone that this cause of action is any less viable or valuable than it is (R. at , 417.) Most of all, she did not know that she had even taken a position in bankruptcy when she filed this state court action (R. at , 417.) Nor did she know that she had taken two "inconsistent" ones because she did not disclose the case in bankruptcy before flling this survivorship action (R. at , 417.) When Ms. Adams discussed her assets with her bankruptcy attorney before flling for Chapter 13 protection she had no position to take with regard to her mother's tort action. It is undisputed that her claim had not arisen back in Unlike Chapter 7 liquidation as in Kirk, Chapter 13 bankruptcy is a plan in which a debtor makes periodic payments with discharge occurring at the end. Ms. Adams' plan was a five year plan. According to the trial court and to the Appellees, a Chapter 13, non-lawyer debtor would have to maintain constant vigilance (R. at 404.) (incorrectly relying on federal law). Any time facts occurred that may give rise to a potential cause of action in tort, the non-lawyer debtor better disclose it before discharge, or her claim will be dismissed (R. at 404.) Essentially, the Appellees argument and the trial court's position is a timing issue. A non-lawyer, debtor must realize that a contingent, survivor action is an asset and a "position" in state court, then the debtor must claim it as such, then the debtor must flle the lawsuit. All this must be done before discharge; otherwise the system suffers (R.E. at C, Page 22, Line ) 8

15 The Appellees and the trial court's positions become even more untenable when facts occur that may give rise to a tort case a day before discharge. What if Ms. Adams witnessed clear negligence towards Ms. Turner at Graceland and saw her die there on March 30, 2009, the day before Ms. Adams' discharge? Perhaps in this hypothetical, she even calls a personal injury attorney that day. Thus, there is evidence that she knows about the facts giving rise to a claim.4 According to the Appellees and the trial court's position, Ms. Adams should be judicially estopped. 5 Such a harsh rule is a windfall to the Appellees and would be to other tortfeasors. Thankfully, Mississippi law is not that harsh, not in the hypothetical, not in reality. Since Mississippi requires knowing inconsistency (like Kirk's willful deception), Appellees arguments fail here and should have failed before the trial court. "Knowingly inconsistent" means that one must know that two positions are contrary. Neese, 131 So.3d at 562. In this context, "knowingly inconsistent" means that Ms. Adams must know that her asset schedule, which did not list her mother's tort claim, is contrary to a lawsuit against the Appellees. rd. Clearly, this requires knowledge of the law, something Ms. Adams did not possess (R. at , 417.) Mr. Kirk knew. He tried to hide action. He lied. He acted willfully. Ms. Adams was ignorant of the fact that her mother's claims would be imputed to Ms. Adams' own personal estate. The Appellees urged the bankruptcy court and the trial court that ignorance of the law is no defense (R.E. at C, Page 43, Line 13) Inadvertence defined as "knowingly inconsistent" positions is a defense, and clearly Ms. Adams' nondisclosure was inadvertent as evidenced by her testimony and the facts as they occurred. 4 "They followed the Firth Circuit precedents [in Kirk], which state that you either have to be mistaken, not about your legal duty to disclose, but about the facts that give rise to your cause of action." (R.E. at C, Page 42, line 19-23; Page 57, line ) 5Id. 9

16 B. AppeUees failed to establish that the bankruptcy court relied on Shirley Adams' nondisclosure. The Appellees failed in their burden to prove beyond a genuine factual dispute that the bankruptcy court relied on Shirley Adams' nondisclosure. "A party will be judicially estopped from taking a subsequent position [only] if (1) the position is [knowingly] inconsistent with one previously taken during litigation, (2) a court accepted the previous position... " Clark v. Neese, 131 So.3d 556, 560 (Miss. 2013), citing Kirk v. Pope, 973 So.2d 981, 991 (Miss. 2(07). Assuming the bankruptcy court did initially accept the implication that there were no pending lawsuits when it confirmed Ms. Adams' repayment plao in early 2005 (at which time in fact there were no pending lawsuits), then the court effectively revoked or overrode that initial acceptaoce when it later allowed Ms. Adams to reopen her case aod amend her schedules in By accepting the amendments, the bankruptcy court essentially jettisoned whatever previous acceptance it may have harbored about the assets Ms. Adams could potentially staod to acquire if this lawsuit is successful. Additionally, the trustee chose to "abaodon aoy settlement or judgment proceeds [from this lawsuit] aod not administer the payment" to those remaining creditors. In re Adams, 481 B.R. at 858. By abaodoning the claim, the trustee represented that this lawsuit was "burdensome to the estate" or was "of inconsequential value aod benefit." 11 U.S.C.A. 554(a).6 No creditors have contested the trustee's decision to abaodon this asset. No court, no creditor, no trustee has accepted or relied on Ms. Adams' inadvertent, nondisclosure of the tort claim asset; therefore, the Appellees could not have met their burden of satisfying prong two of Mississippi judicial estoppel. 6 "[U]pon abandonment... the trustee is '" divested of control of the property because it is no longer part of the estate... Property abandoned under 554 reverts to the debtor, and the debtor's rigbts to the property are treated as ifno bankruptcy petition was filed." Kane v. Nat'l Union Fire Ins. Co., supra, 535 F.3d at

17 C. Appellees never endeavored to establish the Mississippi elements of judicial estoppel before the trial court. None of the Appellees actually endeavored to establish the three Mississippi estoppel elements before the trial court. The Appellees comingled the federal elements with the Mississippi elements and called it good law (R.E. at C, Page 42, Line 1-23.) The trial court adopted the Appellees arguments and sustained their motion (R.E. at C, Page 57, Line ) It goes without saying that "[f]ederallaw governs the application of judicial estoppel infederal courts." In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999) (emphasis added). But this and the trial court are not federal courts. Yalobusha and the other "state court defendants d[id] not seek a decision from th[ e bankruptcy] court as to the applicability of judicial estoppel." In re Adams, 481 B.R. at 859. Instead, that question must "be determined in the Circuit Court of Lafayette County." Id. at 862. This is a wrongful death case. It is based entirely on the common law and statutes of Mississippi. When only "nonfederal issues are at stake," the "relevant state formulation of the judicial estoppel principle is applicable." Cont'l Cas. Co. v. McAllen Indep. Sch. Dist., 850 F.2d 1044,1046, n.2 (5th Cir. 1988) (applying "the Texas doctrine of judicial estoppel" in diversity case). 7 Thus, while there is some degree of overlap and similarities, the difference lies in the definitions of the elements. Unquestionably, this Court's decision and the trial court's should be governed by Mississippi law., i 7 See also U.S. for Use of Am. Bank v. C.LT. Cons!. Inc. of Texas, 944 F.2d 253, 258, n.7 (5th Cir. 1991) ("Since we are deciding a federal issue, we apply the federal law of judicial estoppel"); City of Miami Beach v. Smith, 551 F.2d 1370, 1377 n.12 (5th Cir. 1977) (applying Florida's judicial estoppel doctrine in diversity case); Hall v. GE Plastic Pacific PTE Ltd., 327 F.3d 391, (5th Cir. 2003) ("federal law concerning judicial estoppel is appropriate in this case because both suits filed by HaJJ ended up in federal court and it is the federal court that is subject to manipulation"). I I 11

18 The Appellees failed to correctly interpret and apply the elements of judicial estoppel under Mississippi law. Therefore, they could not possibly have met their burden of showing factual concession and legal entitlement. Instead, they simply made the conclusory declaration based on federal law that because Ms. Adams failed to amend her bankruptcy schedules, she is judicially estopped from pursuing the instant litigation (R.E. at C. Page 20, Line 6-22.) But Mississippi does not share the federal courts' predilection to assume that every omission is automatic evidence of illicit self-dealing. In fact, just last year, this Court doubled down on the elements and purpose of judicial estoppel in Clark v. Neese, further supporting Ms. Adams' position. II. TO THE EXTENT THAT THE LAW REGARDING JUDICIAL ESTOPPEL IN MISSISSIPPI WAS UNCLEAR, CLARK V. NEESE SOLIDIFIED ITS ELEMENTS AND PURPOSE. Last year, this Court solidified the elements of judicial estoppel in Mississippi leaving no room for any of the positions set forth by the Appellees in the trial court below. The Neese Court held that "[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 (Miss. 2013), citing Kirk v. Pope, 973 So.2d 981, 991 (Miss. 2007). The Court took the opportunity to clarify Kirk by unequivocally eliminating the adverse party requirement for judicial estoppel and unequivocally retaining and defining the three basic elements of judicial estoppel. Id. at 562. The Neese Court could have interpreted Kirk to be congruent with the federal elements of judicial estoppel argued in the trial court by the Appellees, but it did not. The Court applied the three elements above to the facts before it and held that the plaintiff's apparent inconsistent position was not relied on by a previous court. See 12

19 id. ("[W]hen the federal district court denied [the defendant's] motion for summary judgment, [the court] was not required to accept or rely on [the plaintiff's] prior position-an absolute requirement for the application of judicial estoppel.") In holding so, the Neese court put forth the purpose of judicial estoppel and furnished the simple definition of inadvertence. In Neese, Helen Schroeder ("Ms. Schroeder") was a passenger in a car driven by her husband when a log truck collided with the rear of the vehicle, killing Ms. Schroeder's husband and severely injuring Ms. Schroeder. Ms. Schroeder sued the driver of the log truck in federal court and argued at summary judgment that the driver was negligent and that her husband was not. After winning at summary judgment, Ms. Schroeder settled her claim with the truck driver. Ms. Schroeder then sued her husband's estate in state court claiming that her husband was t partially negligent. The federal court judge stated in his denial of summary judgment that his decision was based on his fmding of genuine issues of material fact as to the truck driver's negligence, not "Harry Schroeder's potential contributory negligence." Because the federal judge was not required to accept or deny Ms. Schroeder's prior position, this Court reversed the trial court's grant of summary judgment to Harry Schroeder's estate based on judicial estoppel. Ultimately the Neese Court held that "[W]hen the federal district court denied [the defendant's] motion for summary judgment, [the court] was not required to accept or rely on [the plaintiff's] prior position-an absolute requirement for the application of judicial estoppel." Id. More importantly the Court defined inadvertence when it stated that it "need not determine whether Helen's positions actually were knowingly inconsistent." Id. (emphasis added). As discussed supra, Ms. Adams, a non-lawyer debtor, did not knowingly take inconsistent positions. The bankruptcy trustee and the bankruptcy court did not rely on the inadvertent inconsistencies. Because both elements fail when accurately applying Mississippi law, Appellees motion for 13

20 summary judgment should also have failed. Thus, the Circuit Court for Lafayette County reliance on the Appellees federal elements is clear error. The trial court's decision should be reversed. CONCLUSION This Court should hold that the Circuit Court of the Third Judicial District of Lafayette County, Mississippi, erred in applying judicial estoppel to Ms. Adams. This Court should reverse the trial court's grant of summary judgment and remand this case to the trial court to proceed on the merits. Respectfully submitted, By: EB~obJbb~y~FF..~~n~,jJ;r.~,~Eu~~~-- The Cochr Firm - phis One Commerce Square, 26 th Floor Memphis, Tennessee Telephone: (901) Facsimile: (901) Attorney for Appellant, Shirley Adams I I \ : I 14

21 CERTIFICATE OF SERVICE I, Bobby F. Martin, attorney for appellant, certify that I have this day mailed a true and correct copy of the above and foregoing Brief of Appellant, Shirley Adams by United States mail with postage prepaid to the following: Andy Lowry, Esq. Copeland, Cook, Taylor & Bush, P.A. P.O. Box 6020 Ridgeland, Mississippi John Wheeler, Esq. Mitchell, McNutt & Sams, P.A. P.O. Box 7120 Tupelo, Mississippi This the 25 th day of September, i~ \, 15

22 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI NO CA APPEAL ORAL ARGUMENT REQUESTED SIllRLEY 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 CERTIFICATE OF FILING I, Bobby F. Martin, as attorney for Appellant, Shirley Adams, do hereby certify that I have this day mailed the original and three (3) copies and an electronic disk of the Brief of Appellant, Shirley Adams, by Federal Express, postage prepaid to Kathy Gillis, Mississippi Supreme Court Clerk, 450 High Street, Jackson, Mississippi RESPECTFULLY SUBMITIED, this the 25th day of Septem er, "'V~,.,..._ One Commerce Square, 6 Floor Memphis, Tennessee Telephone: (901) Facsimile: (901) Attorney for Appellant, Dana J. Davis 16

23 I