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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 OF NEVADA 2 (0) 947A ce, 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). SUPREME COURT OF NEVADA 3 (0) 1947A e
Document Info
Docket Number: 63645
Filed Date: 5/20/2015
Precedential Status: Non-Precedential
Modified Date: 4/18/2021