Mathias, J.
Jason Ellis (“Ellis”) challenges the order of the Hendricks Superior Court granting summary judgment in favor of Keystone Construction Corporation (“Keystone”). On appeal, Ellis presents four issues, one of which we find dispositive, which we restate as whether the trial court erred in determining that the doctrine of judicial estoppel precluded Ellis’s claims against Keystone.
We affirm.
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This balance-shifting test is applicable here, where the Ellis filed a document with the dissolution court purporting to list all of his assets, yet omitted the ownership interest he now claims. This court has applied judicial estoppel in a similar situation…This balance-shifting test is applicable here, where the Ellis filed a document with the dissolution court purporting to list all of his assets, yet omitted the ownership interest he now claims. This court has applied judicial estoppel in a similar situation.
Under the burden-shifting test set forth in Upham and Robson, Keystone has established that Ellis failed to disclose his claimed ownership interest in Keystone to the dissolution court. Keystone also established Ellis had knowledge of his claim and a motive for concealment, i.e. to hide the assets from the dissolution court. As set forth in Upham and Robson, if the defendant establishes the plaintiff’s knowledge of a claim and motive for concealment, the plaintiff then has the burden of coming forth with evidence indicating that the nondisclosure was made in good faith. Id.
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We acknowledge, as we did in Upham, that “summary judgment is particularly problematic in cases such as this one because the ultimate issue to be decided is the plaintiff[]’s intent to play fast and loose with the courts.” 884 N.E.2d at 283. But here, both Ellis and Brooke admitted in their affidavits that they knew about Ellis’s claimed ownership interest in Keystone, yet intentionally left this out of the Settlement Agreement which purported to divide the marital assets. While this evidence might prevent a claim of fraud between the parties, we do not consider this as evidence of good faith as it pertains to the court. To the contrary, it was an intentional act to keep from the dissolution court a potentially large marital asset…
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All of Ellis’s claims are based upon his position that he is entitled to an ownership interest in Keystone. As we have concluded that Ellis is judicially estopped from asserting any such interest, the remainder of his claims necessarily fail. For example, Ellis’s claim of breach of a fiduciary duty presumes that he was a shareholder. Since Ellis is judicially estopped from asserting a claim that he is a shareholder, his claim of breach of a fiduciary duty fails.3 And to the extent that Ellis’s claim for monetary damages was based on his allegation of a breach of a fiduciary duty, this claim also fails.
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Conclusion
The trial court did not err in concluding that Ellis, by intentionally omitting his claimed ownership interest in Keystone from his dissolution Settlement Agreement, is now judicially estopped from asserting a claim of an ownership interest in Keystone. The trial court therefore properly granted summary judgment in favor of Keystone.
Affirmed.
Kirsch, J., and Altice, J., concur.