Guy Carpenter, Individually and as Adult Parent and Next Friend of Cole Carpenter, a Minor v. Kenneth Marvin Conway;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-01280-COA

GUY CARPENTER, INDIVIDUALLY AND AS APPELLANT
ADULT PARENT AND NEXT FRIEND OF COLE
CARPENTER, A MINOR

v.

KENNETH MARVIN CONWAY APPELLEE

DATE OF JUDGMENT: 08/10/2018
TRIAL JUDGE: HON. SUSAN RHEA SHELDON
COURT FROM WHICH APPEALED: PERRY COUNTY CHANCERY COURT
ATTORNEY FOR APPELLANT: DANIEL MYERS WAIDE
ATTORNEY FOR APPELLEE: ANTHONY SAKALARIOS
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 11/19/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

TINDELL, J., FOR THE COURT:

¶1. Individually and on behalf of his minor son, Guy Carpenter filed a complaint in the

Perry County Chancery Court against his brother-in-law, Kenneth Conway. After finding

that Guy’s claims were barred by both judicial and collateral estoppel and that the complaint

failed to state a claim upon which relief could be granted, the chancellor dismissed Guy’s

complaint with prejudice under Mississippi Rule of Civil Procedure 12(b)(6). On appeal,

Guy argues that the chancellor erroneously found that judicial and collateral estoppel barred

his claims. Finding no error, we affirm the chancellor’s judgment.

FACTS
¶2. On November 24, 2002, Guy married Terry Ruth Conway. The couple welcomed a

son in 2006. Terry died intestate on April 22, 2011. Prior to her marriage, Terry had

received by conveyance three parcels of land. On May 4, 2001, Terry’s parents, J.M. and

Addie Mae Conway, conveyed to Terry a 56.6-acre parcel (Parcel 1) with a life estate

reserved for themselves. Three days later, on May 7, 2001, Terry’s brother, Kenneth, deeded

her another 40-acre parcel (Parcel 2) with a life estate again reserved for his and Terry’s

parents. Finally, shortly before Terry’s marriage, her parents conveyed to her in fee simple

a 7.1-acre parcel (Parcel 3) that adjoined the other two properties. After their marriage, Terry

and Guy mortgaged Parcel 3 and used the loan to build their marital home on the property.

Each year during the marriage, Terry filed a homestead declaration only on Parcel 3.

¶3. Consistent with their life-estate interests in Parcels 1 and 2, J.M. and Addie Mae used

the property for cattle grazing and leased it to a local farmer. In his affidavit, J.M. stated that

he paid the annual real estate taxes on Parcels 1 and 2. He further stated that neither Terry

nor Guy ever used the parcels.

¶4. At some point during her marriage, Terry received a terminal cancer diagnosis, and

her relationship with Guy began to deteriorate. According to multiple affidavits contained

in the record, Terry sought an attorney’s advice on filing for divorce. Prior to her death,

Terry decided to convey back to her parents Parcels 1 and 2. She executed the deeds for the

conveyances on March 3, 2011. Following Terry’s death on April 22, 2011, her parents

recorded the deeds on May 9, 2011. In November 2011, the chancellor appointed Guy as the

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administrator of Terry’s estate. As administrator, Guy never identified Parcels 1 and 2 as

part of the real property that Terry owned at the time of her death, and he never pursued a

cause of action on her estate’s behalf related to the two parcels. Guy instead identified only

Parcel 3, the 7.1-acre parcel upon which the marital home was situated, as the only real

property that Terry held an ownership interest in when she died.

¶5. On June 29, 2016, around four years after the chancellor entered the final order to

close Terry’s estate, Guy filed a complaint individually and on his minor son’s behalf against

Terry’s brother, Kenneth, and sought to have the chancellor declare Terry’s conveyances of

Parcels 1 and 2 void. Although Terry had deeded the parcels to her parents, the parties agree

that Kenneth then became the owner of the properties. Guy asserted that Terry had conveyed

Parcels 1 and 2 without his knowledge or agreement and that the conveyances were void as

a matter of law for the following reasons: (1) the deeds also required his signature because

the parcels were part of the marital homestead; and (2) at the time Terry executed the deeds

just a few weeks before her death, she lacked the necessary mental capacity to make the

conveyances. Guy therefore asked that the chancellor void Terry’s March 3, 2011

conveyances to her parents and recognize Guy and his son as tenants in common and rightful

owners of all the real property that Terry owned when she died.

¶6. Guy later moved for a judgment on the pleadings under Rule 12(b)(6). Kenneth

responded and argued that judicial estoppel and res judicata barred Guy’s claims. In her

August 10, 2018 order, the chancellor found that Guy’s claims were barred by both judicial

3
and collateral estoppel.1 In addition, the chancellor determined that Guy’s pleadings failed

to state a claim upon which relief could be granted. As a result, the chancellor dismissed

Guy’s complaint with prejudice under Rule 12(b)(6). Aggrieved, Guy appeals.

DISCUSSION

¶7. In appealing the dismissal of his complaint, Guy asserts the chancellor erroneously

found that judicial estoppel barred his claims. Although we review de novo a trial court’s

grant or denial of a motion to dismiss, Trigg v. Farese, 266 So. 3d 611, 617 (¶9) (Miss.

2018), we review the application of judicial estoppel for abuse of discretion. Adams v.

Graceland Care Ctr. of Oxford LLC, 208 So. 3d 575, 580 (¶13) (Miss. 2017). Thus, we must

first determine whether the chancellor abused her discretion by finding that judicial estoppel

barred Guy’s claims, and then we must review de novo whether the chancellor properly

dismissed Guy’s complaint under Rule 12(b)(6). See id. at 579-80 (¶12); Rogers v. Gulfside

Casino P’ship, 206 So. 3d 1274, 1279 (¶9) (Miss. Ct. App. 2016).

¶8. As the Mississippi Supreme Court has explained:

Judicial estoppel precludes a party from asserting a position, benefitting from
that position, and then, when it becomes more convenient or profitable,
retreating from that position later in the litigation. Judicial estoppel has three
elements: 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.

1
Although Kenneth argued that res judicata barred Guy’s claims, the chancellor
relied on judicial estoppel and collateral estoppel in dismissing Guy’s complaint.

4
Hinton v. Pekin Ins. Co., 268 So. 3d 543, 558-59 (¶62) (Miss. 2019) (citation and internal

quotation marks omitted).

¶9. Regarding the first prong of judicial estoppel, Guy asserts that he has never been

involved in a prior adverse proceeding with Kenneth. In Clark v. Neese, 131 So. 3d 556,

561-62 (¶21) (Miss. 2013), the supreme court “took the opportunity to clarify” its elimination

of “the adverse-party requirement and overruled [its] prior judicial-estoppel opinions insofar

as they included such a requirement.” As the Clark court explained:

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 has asserted in,
and that has been accepted by, another court. This purpose is served regardless
of whether the inconsistent positions were taken in opposition to the same
party.

Id. at 562 (¶21).

¶10. Even before the supreme court’s holding in Clark regarding the elimination of the

adverse-party requirement, this Court determined in Johnson v. Herron, 33 So. 3d 1160

(Miss. Ct. App. 2009), that an estate proceeding could meet all the requirements necessary

for judicial estoppel. In Johnson the decedent’s son by his first marriage and his niece by his

second marriage acted as co-administrators of his estate. Id. at 1162 (¶7). The co-

administrators and the decedent’s nephew by his second marriage entered into a settlement

agreement to close the decedent’s estate and distribute his assets. Id. Almost three years

after closing the estate, the son sought to contest the asset distribution. Id. at 1164 (¶10). As

part of his requested relief, the son asked that the chancellor void deeds to certain pieces of

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real property and make him the sole owner of the properties. Id.

¶11. The chancellor in Johnson granted the niece and nephew’s summary-judgment motion

after finding that judicial estoppel precluded the son from serving as co-administrator of his

father’s estate, joining the petition to close the estate, and then filing a subsequent lawsuit

to contest the asset distribution to which he had previously agreed at the estate’s closure. Id.

at 1164-65 (¶13). On appeal, the son argued that judicial estoppel failed to apply because it

required the parties to be involved in a prior adverse proceeding, and he contended that he

had never been involved in such a proceeding with the niece and nephew. Id. at 1167 (¶21).

In affirming the chancellor’s ruling, however, this Court agreed with the chancellor’s

conclusion that, although the son and niece were both co-administrators of the decedent’s

estate, the parties were still clearly in an adverse position as to the estate’s assets and their

respective interests in those assets. Id.

¶12. Based on the holdings in both Clark and Johnson, we find that all the requirements

for judicial estoppel have been met in the present case. We first note that, like the son in

Johnson, Guy asserts on appeal that neither he nor his son has ever been involved in a prior

adverse proceeding with Kenneth. As discussed, however, this is no longer a requirement

for finding judicial estoppel. Clark, 131 So. 3d at 561-62 (¶21).

¶13. As administrator of Terry’s estate, Guy had an affirmative duty to “take all proper

steps to acquire possession of any part of . . . [the estate] that may be withheld from him

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. . . .” Miss. Code Ann. § 91-7-47(1) (Rev. 2018).2 Further, he had a duty to “ascertain

whether the decedent was the sole owner, joint owner[,] or tenant in common” of the real

estate. Robert E. Williford & Samuel H. Williford, Mississippi Probate and Administration

of Estates § 8:3 (3d ed. 2019). Such a determination “is essential if the existence and nature

of the ownership is to be correctly reported on the estate tax return.” Id.; see also Miss. Code

Ann. § 91-7-157 (Rev. 2018) (“An executor or administrator shall pay all taxes that may be

due on real and personal property belonging to the estate.”). In fulfilling his role as

administrator, Guy never raised the claims he now seeks to assert—that Parcels 1 and 2

belonged to Terry’s estate and that he and his son possess an ownership interest in those

parcels as tenants in common. Instead, Guy maintained during the probate proceedings that

Parcel 3 alone comprised his and Terry’s homestead. By maintaining this position, Guy had

no adverse claims to contend with during the probate of Terry’s estate. Thus, the estate was

closed in a more timely fashion, and Guy’s ownership right to Parcel 3 was completely and

definitively established. After benefitting from the position he maintained during the probate

proceedings, Guy now adopts a contrary argument in the current litigation and asserts for the

2
As the dissent correctly points out, by operation of law, Parcel 3 descended to Guy
and the couple’s minor son upon Terry’s death. See Miss. Code Ann. § 91-1-7 (Rev. 2018).
Thus, Guy was not required to open an estate except to ensure that Terry’s other assets
would in fact transfer to her next of kin, which were Guy and the couple’s minor son. See
Miss. Code Ann. § 91-1-11 (Rev. 2018). And since Terry had already conveyed Parcels 1
and 2 to her parents prior to her death, Guy had a duty on behalf of Terry’s heirs to raise any
claims to those parcels during the probate proceedings. See Miss. Code Ann. §§ 91-7-47(1)
& -93 (Rev. 2018).

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first time that Terry actually owned all three parcels of land when she died and that he and

his son are tenants in common. Because the record clearly reflects that Guy has taken a

position in the current litigation that is contrary to the one he took in the prior probate

proceedings, we find the first requirement of judicial estoppel has been met.

¶14. The second prong of judicial estoppel requires the court to have accepted the party’s

prior position. Hinton, 268 So. 3d at 558-59 (¶62). By entering the order to close Terry’s

estate, the chancellor effectively accepted Guy’s representation that Terry owned only Parcel

3 at the time she died. We therefore find this prong has also been met.

¶15. Relevant to the third requirement for judicial estoppel, Guy contends that his current

and previous positions were not intentionally inconsistent but that his previous position was,

at most, simply “incomplete.” When discussed within the context of a bankruptcy

proceeding, this Court has explained:

A debtor’s non-disclosure is inadvertent only when, in general, the debtor
either lacks knowledge of the undisclosed claims or has no motive for their
concealment. Moreover, it is the debtor’s burden to prove that her
non-disclosure was inadvertent. The question is not whether the debtor
subjectively knew at the time of her bankruptcy that she had a legal duty to
disclose the claim in her bankruptcy proceeding. Rather, a debtor is deemed
to have had knowledge of her claim so long as she was aware of the facts
giving rise to it.

Rogers, 206 So. 3d at 1280 (¶11) (citations and internal quotation marks omitted).

¶16. Here, Guy makes no assertion that he was somehow unaware of Parcels 1 and 2 at the

time he probated Terry’s estate. In fact, Guy admits his prior knowledge of Parcels 1 and 2

and states that he withheld his current claims regarding these parcels during the probate

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proceedings based on his attorney’s advice. As administrator of Terry’s estate, however, Guy

possessed a duty to discover and inventory all her assets before he sought or agreed to the

estate’s closing. Miss. Code Ann. § 91-7-93 (Rev. 2018). He also had a duty to determine

the nature of Terry’s ownership interest in her real property. See Williford & Williford,

Mississippi Probate and Administration of Estates § 8:3. Guy represented to the chancellor

that Parcel 3 was the only real property Terry owned at the time of her death, the chancellor

relied on his representation, and Guy benefitted when the chancellor closed the estate and he

and his son received ownership of the parcel. We therefore find no merit to Guy’s claim now

that his inconsistent positions were unintentional.

¶17. Based on the record and applicable caselaw, we find no abuse of discretion in the

chancellor’s determination that all three requirements for judicial estoppel were met. We

therefore find no error in the chancellor’s dismissal of Guy’s complaint under Rule 12(b)(6).

Because we affirm the chancellor’s judgment on this ground, we decline to address Guy’s

remaining assignment of error on appeal.

CONCLUSION

¶18. Because we find that the chancellor properly determined judicial estoppel barred

Guy’s claims, we affirm the judgment dismissing Guy’s complaint with prejudice under Rule

12(b)(6).

¶19. AFFIRMED.

CARLTON, P.J., GREENLEE, McDONALD AND LAWRENCE, JJ.,
CONCUR. C. WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE

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WRITTEN OPINION. J. WILSON, P.J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. BARNES, C.J., DISSENTS WITH SEPARATE WRITTEN
OPINION, JOINED BY WESTBROOKS AND McCARTY, JJ.; J. WILSON, P.J.,
JOINS IN PART.

BARNES, C.J., DISSENTING:

¶20. I dissent from the majority’s conclusion that Guy Carpenter is judicially estopped from

contesting the conveyances at issue. First, any representations Guy made as administrator

of Terry’s estate are not binding on his and Terry’s minor son, Cole. Second, because the

real property at issue descended to Terry’s heirs by operation of law, Guy did not benefit

from his prior position in the probate proceedings. Accordingly, I would reverse the court’s

judgment dismissing the complaint and remand for further proceedings.

¶21. “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 has asserted in, and that has been

accepted by, another court.” Clark v. Neese, 131 So. 3d 556, 562 (¶21) (Miss. 2013)

(emphasis added). Guy instituted the probate proceeding as administrator of Terry’s estate,

not as next friend of his minor son, Cole. While I find no Mississippi cases addressing this

specific issue, other jurisdictions have determined that actions filed in an individual capacity

and actions filed on behalf of a minor are legally separate and distinct, even if founded on

the same action. In Lambdin v. Travelers Ins. Co., 150 So. 2d 636 (La. Ct. App. 1963), a

mother filed suit after her minor child sustained injuries from a soda bottle that shattered.

The mother sued individually to recover for medical expenses, as well as in her capacity as

tutrix of her child’s estate to recover for the child’s personal injuries. Id. at 637. Judgment

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was entered in favor of the mother on her individual claim, but the defendant prevailed on

the mother’s claim on behalf of the child. Id. In considering whether the judgment awarded

to the mother was “a conclusive determination of fault binding upon the defendant,” the

Louisiana Court of Appeals held that the claim asserted by the mother individually, “although

founded on the same cause of action, is in the eyes of the law separate and distinct from the

claim asserted by the mother in her capacity as tutrix of the minor child.” Id. at 638.

For a judgment on one judicial demand to be a conclusive determination of the
same question involved in the determination of another judicial demand, not
only must the demands be the same and founded upon the same cause of
action—the demands must also be asserted between the same parties, [e]ach
acting in the same capacity.

Id.

¶22. In Chance v. Gibson, 99 S.W.3d 108, 109 (Tenn. Ct. App. 2002), an adult daughter

and her mother sought to establish paternity and recover child support from Carl Gibson, who

they alleged was the adult daughter’s birth father. The trial court dismissed the claim on the

basis of judicial estoppel because the mother, in a prior divorce proceeding, sought and was

awarded child support from her ex-husband, James Chance. Id. at 110. The Tennessee Court

of Appeals held that the daughter was not precluded by judicial estoppel from pursuing her

claims because she was not a party to the prior child-support action and “was a minor at the

time the pleadings were filed.” Id. at 111.

¶23. Because Cole was a minor and not a party to the probate proceedings, any

representations made by Guy in those proceedings cannot be imputed to Cole. Therefore, I

11
find that Guy, as parent and next friend of Cole, is not judicially estopped from pursuing the

current action against the Conways.

¶24. Furthermore, Guy did not derive any benefit from his prior position in the probate

proceedings. The Mississippi Supreme Court has held that “[w]hen the party asserting the

prior inconsistent position has not benefitted by the assertion, the doctrine [of judicial

estoppel] should not be applied.” Gibson v. Williams, Williams & Montgomery P.A., 186 So.

3d 836, 846 (¶25) (Miss. 2016) (emphasis omitted); see also Donaldson v. Ovella, 228 So.

3d 820, 829 (¶24) (Miss. Ct. App. 2017) (finding that because the appellants had “not

benefitted from their prior position, . . . their claims are not barred by judicial estoppel”).

The majority addresses the “benefit” requirement for judicial estoppel by stating that Guy

benefitted “when the chancellor closed the estate and he and his son received ownership of

[Parcel 3].”

¶25. Terry died intestate; so any interest she had in real property descended to Guy, her

husband, as an heir by operation of law. See Miss. Code Ann. § 91-1-7 (Rev. 2018). This

Court has recognized:

[R]eal property descends directly to, and title vests in, the heirs at law to enjoy
until the contingency arises when it may be needed to pay debts.
Administration then covers only the decedent’s personalty and the realty is in
no way involved unless and until the personalty becomes insufficient to pay
the debts and expenses.

Prout v. Williams, 55 So. 3d 195, 204 (¶28) (Miss. Ct. App. 2011) (quoting Robert Weems,

Miss. Practice Series: Wills & Admin. of Estates in Miss. § 2:13 (3d ed. 2003)); see also

12
Barnes v. Rogers, 206 Miss. 887, 892, 41 So. 2d 58, 60 (1949) (holding that administration

of the estate “covers only the personal property belonging to the estate[,] and the real

property is no[t] . . . involved in the administration unless and until the personal property

becomes insufficient to pay the debts and it becomes necessary to resort to the land for the

payment of the debts of the estate”); Estate of Mace v. Gardner, 66 So. 3d 1265, 1268 n.1

(Miss. Ct. App. 2011) (noting that “by operation of law, in the absence of a will, title of real

property vests immediately in the heirs at law upon the owner’s death”) (citing In re Will of

Wilcher v. Wilcher, 994 So. 2d 170, 176 (¶12) (Miss. 2008)).

¶26. The majority does cite Johnson v. Herron, 33 So. 3d 1160, 1166-68 (¶¶19-25) (Miss.

Ct. App. 2009), which affirmed a chancery court’s finding of judicial estoppel because

Johnson, the decedent’s son and co-administrator of his father’s estate, failed to include real

property as an asset when his father’s estate was closed. In Johnson, this Court cited portions

of Mississippi Code Annotated section 91-7-47(1) (Supp. 2008):

When an administrator or executor undertakes to close an estate:

he shall take all proper steps to acquire possession of any part
[of the estate] that may be withheld from him, and shall manage
the same for the best interest of those concerned, consistently
with the will, and according to law. He shall have the proper
appraisements made, return true and complete inventories except
as otherwise provided by law, shall collect all debts due the
estate as speedily as may be, pay all debts that may be due from
it which are properly probated and registered, so far as the
means in his hands will allow, shall settle his accounts as often
as the law may require, pay all the legacies and bequests as far
as the estate may be sufficient, and shall well and truly execute
the will if the law permit. He shall also have a right to the

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possession of the real estate so far as may be necessary to
execute the will, and may have proper remedy therefor.

Id. at 1167 (¶23) (brackets in original). We found that “Johnson had a duty to discover all

of the assets of his father’s estate before he agreed to close the estate.” Id. The majority

relies on Johnson and Mississippi Code Annotated section 91-7-47(1) (Rev. 2018) to

conclude that Guy, as administrator of Terry’s estate, “had an affirmative duty to ‘take all

proper steps to acquire possession of any part of . . . [the estate] that may be withheld from

him . . . .” (Emphasis added) (ellipses and brackets in original).

¶27. However, looking at the omitted and edited portions of section 91-7-47(1) as cited in

Johnson and the majority’s opinion, two crucial distinctions are revealed. First, the statute

addresses the duty of the executor or administrator “with the will annexed.” Terry died

intestate; therefore, this statute does not apply. Second, the statute provides that the executor

or administrator cum testamento annexo3 “shall have the right to the possession of all the

personal estate of the deceased, unless otherwise directed in the will; and he shall take all

proper steps to acquire possession of any part thereof that may be withheld from him.” Miss.

Code Ann. § 91-7-47(1) (emphasis added). Any right to possession of the real estate is only

“so far as may be necessary to execute the will, and may have proper remedy therefor.”4 Id.

3
Cum testamento annexo is a Latin term meaning “with the will annexed.” Black’s
Law Dictionary 52 (10th ed. 2014).
4
The full text of the statute reads:

Every executor or administrator with the will annexed, who has qualified,
shall have the right to the possession of all the personal estate of the

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¶28. It is unknown whether the citation to section 91-7-47(1) was critical to the holding in

Johnson, as the Court concluded that the co-administrator had benefitted from a negotiated

estate settlement agreement,5 or if either party in that case raised the fact that real property

descends by operation of law. But here, appellant’s counsel did raise the issue during the

motions hearing, arguing:

There was no litigation of who owned certain property in the estate
proceeding. The estate proceeding is commenced to cut off the claims of
creditors and if there’s property to be devised or property to be dealt with,
sometimes it’s listed in the inventory. Sometimes the inventories [are]
improper or incorrect, but it doesn’t matter. As a matter of law, when someone
dies, the land descends to where it goes if they die intestate.

(Emphasis added). This is a correct and pivotal statement of the law, and it cannot be

ignored. Guy had no affirmative duty to identify the real property of the decedent unless the

deceased, unless otherwise directed in the will; and he shall take all proper
steps to acquire possession of any part thereof that may be withheld from him,
and shall manage the same for the best interest of those concerned,
consistently with the will, and according to law. He shall have the proper
appraisements made, return true and complete inventories except as otherwise
provided by law, shall collect all debts due the estate as speedily as may be,
pay all debts that may be due from it which are properly probated and
registered, so far as the means in his hands will allow, shall settle his accounts
as often as the law may require, pay all the legacies and bequests as far as the
estate may be sufficient, and shall well and truly execute the will if the law
permit. He shall also have a right to the possession of the real estate so far as
may be necessary to execute the will, and may have proper remedy therefor.

Miss. Code Ann. § 91-7-47(1) (italicized language not quoted by Johnson or majority
opinion).
5
Under the terms of the settlement agreement, Johnson received sixty-percent of the
estate. A will was later discovered that left only fifty-percent of the estate to Johnson.

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real property was required to pay the estate’s debts after the personalty was exhausted.

¶29. The majority contends that as administrator, Guy had the duty to ascertain the

ownership of the real estate so that the ownership could properly be reported on the estate’s

tax return. Supra at (¶13). However, there is no indication in the record that the estate was

valued above $5,000,000 so as to require an estate tax return. Compare Miss. Code Ann.

§ 27-9-11 (Rev. 2017) (tying estate tax deduction to federal tax exclusion amount as codified

in Section 2010 of Title 26 of the United States Code); and Miss. Code Ann. § 27-9-21 (Rev.

2017) (requiring executor to give notice to commissioner within sixty days where gross estate

value exceeds exemption provided in section 27-9-11); and Miss. Code Ann. § 27-9-23 (Rev.

2017) (requiring executor to file estate tax return where gross estate exceeds amount of

specified exemption in section 27-9-11) with 26 U.S.C. § 2010(c)(3)(A) (2018) (establishing

the basic exclusion amount for a person dying in 2011 at $5,000,000). The fact that the

estate (dealing only with the personalty) was “closed in a more timely fashion, and Guy’s

ownership right to Parcel 3 was completely and definitively established” is hardly a benefit

sufficient to apply judicial estoppel, considering there is no indication that there was ever any

question as to his right to Parcel 3. The majority is, with respect, trying too hard to make the

doctrine of judicial estoppel apply where it clearly does not.

¶30. I would reverse the chancery court’s judgment of dismissal and remand for further

proceedings.

WESTBROOKS AND McCARTY, JJ., JOIN THIS OPINION. J. WILSON,
P.J., JOINS THIS OPINION IN PART.

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