Finnucci v. First 100 ( 2015 )


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  •                   have an interest in a trust, despite Finnucci's assertions to the contrary in
    the present litigation. Finnucci timely appealed.
    In barring Finnucci from asserting an ownership interest in
    the property based on his prior bankruptcy pleadings that disclaimed such
    an interest, the district court applied judicial estoppel. We review the
    district court's application of judicial estoppel de novo. NOLM, LLC v.
    Cnty. of Clark, 
    120 Nev. 736
    , 743, 
    100 P.3d 658
    , 663 (2004). Judicial
    estoppel applies where
    (1) the same party has taken two positions; (2) the
    positions were taken in judicial or quasi-judicial
    administrative proceedings; (3) the party was
    successful in asserting the first position (i.e., the
    tribunal adopted the position or accepted it as
    true); (4) the two positions are totally inconsistent;
    and (5) the first position was not taken as a result
    of ignorance, fraud, or mistake.
    
    Id.
     (quotation marks omitted). In this case, Finnucci took two inconsistent
    positions, that he owned property and an interest in a trust and that he
    did not; the latter position was taken in his bankruptcy pleadings, where
    he had an "affirmative duty to disclose all assets," Hamilton v. State Farm
    Fire & Cas. Co., 
    270 F.3d 778
    , 785 (9th Cir. 2001) (quotation marks
    omitted); and Finnucci was successful in asserting that position when the
    Bankruptcy court discharged his debts. 
    Id. at 784
     ("[A] discharge of debt
    by a bankruptcy court . . . is sufficient acceptance to provide a basis for
    judicial estoppel . . . ."). As to the ignorance, fraud, or mistake prong,
    Finnucci testified that he omitted listing an ownership interest in the
    property or the trust on the advice of his attorney. He offered no
    testimony or evidence, however, regarding how his failure to list the
    property or trust as an asset in bankruptcy was inadvertent, a mistake, or
    SUPREME COURT
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    the result of fraud. Accordingly, we conclude that First 100 has met the
    elements of judicial estoppel, and we
    ORDER the judgment of the district court AFFIRMED.'
    (11")
    40101..Sesse■,_,
    Parraguirre
    J.
    Douglas
    cc:   Hon. Ronald J. Israel, District Judge
    Michael Finnucci
    Holley, Driggs, Walch, Puzey & Thompson/Las Vegas
    Eighth District Court Clerk
    'We have considered appellant's other arguments and conclude that
    they lack merit.
    Finnucci filed a civil pro se transcript form on January 3, 2014.
    Some of the transcripts that Finnucci requested are already in the record,
    and as review of the other transcripts is not necessary to resolving this
    appeal, we decline to order any additional transcripts. NRAP 11(a)(2).
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Document Info

Docket Number: 63645

Filed Date: 5/20/2015

Precedential Status: Non-Precedential

Modified Date: 4/18/2021