                       United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-1626
                                     ___________

Liberty Mutual Fire Insurance             *
Company,                                  *
                                          *
                Appellee,                 *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * Eastern District of Missouri.
Portia Scott,                             *
                                          *
                Appellant.                *
                                     ___________

                              Submitted: March 14, 2007
                                 Filed: May 23, 2007
                                  ___________

Before MELLOY, SMITH, and BENTON, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

      Liberty Mutual Fire Insurance Company ("Liberty Mutual") filed a declaratory
judgment action against Portia Scott, seeking a declaration that its first-party property
insurance policy afforded no coverage for fire damage to Scott's house and personal
property. At the close of evidence, the district court1 granted Liberty Mutual's motion
under Federal Rule of Civil Procedure 50 for judgment as a matter of law. Scott
subsequently filed a motion for a new trial pursuant to Federal Rule of Civil Procedure


      1
        The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
59, which the district court denied. Scott appeals, arguing principally that the district
court erroneously relied on the doctrine of judicial estoppel in granting Liberty
Mutual's motion for judgment as a matter of law. We affirm.

                                    I. Background
       Scott's home was damaged in a fire that was later determined to have been set
intentionally. Scott submitted to Liberty Mutual, her insurance provider, a signed
proof of loss, claiming $121,744.65 in real property damages and $93,077.19 in
personal property damages. In the proof of loss, Scott failed to differentiate between
the replacement cost and the actual cash value of her personal property.2 According
to the proof of loss, Scott obtained most of the enumerated items more than a year
before the fire. Scott signed the proof of loss and made the following warranty:

      No attempt to deceive [Liberty Mutual] has in any way been made, and
      all material facts have been provided to [Liberty Mutual]. All of the
      property claimed as part of the loss was destroyed or damaged at the time
      of the loss, and no property saved from or not damaged in the loss as
      been hidden. . . . All statements included anywhere on this form or on
      attachments have been carefully read to or by [Scott] and are warranted
      by [Scott] to be full[,] complete[,] and true.

       In the year preceding the fire, Scott filed for bankruptcy. In her bankruptcy
petition, Scott declared only $7,340 worth of personal property. Of this sum, she
attributed $6,510 to her automobile and dog and $830 to other personal property,
including $500 in furniture; $20 in books, records, and family photos; $300 in
clothing for her and her daughter; and $10 in jewelry. Scott signed her bankruptcy



      2
      For example, on the proof of loss, Scott stated that the "replacement cost" of
her washer was $57.70 and that its actual cash value was also $57.70.



                                          -2-
petition, verifying under penalty of perjury that the information she provided was true
and correct.

      In response to Scott's insurance claim, Liberty Mutual brought this declaratory
judgment action in federal district court, seeking a declaration as to its liability under
the policy. Liberty Mutual alleged, inter alia, that Scott "intentionally concealed and
misrepresented . . . the nature and extent of the claimed damage, and the value for
which a claim was presented." In support of its allegation, it cited the following policy
provision:

      2.     Concealment or Fraud.

             a.     Under SECTION I—PROPERTY COVERAGES,
                    with respect to all "insureds" covered under this
                    policy, we provide no coverage for loss under
                    SECTION I—PROPERTY COVERAGES if,
                    whether before or after a loss, one or more
                    "insureds" have:

                    (1)    Intentionally concealed or misrepresented any
                           material fact or circumstance;
                    (2)    Engaged in fraudulent conduct; or
                    (3)    Made false statements; relating to this
                           insurance.

Scott counterclaimed for breach of contract.

       In response to Scott's counterclaim, Liberty Mutual asserted the policy's
"concealment or fraud" provision. According to Liberty Mutual, the policy did not
provide coverage for the fire at Scott's residence because, in part, Scott misrepresented
the nature and extent of her damages. Liberty Mutual asserted that Scott made false
statements during its claim investigation, citing the substantial value disparity between
Scott's proof of loss and bankruptcy petition.

                                           -3-
       The case proceeded to trial by jury. At the close of evidence, Liberty Mutual
moved for judgment as a matter of law on Scott's counterclaim. The district court
granted the motion, concluding that "the evidence is insufficient as a matter of law to
entitle Defendant to prevail against Plaintiff. . . ."

       Scott then moved for a new trial, arguing that (1) the district court's judgment
was based on the affirmative defense of judicial estoppel, which Liberty Mutual had
not pleaded in its complaint; (2) the evidence did not support the judgment; and (3)
the district court erred in excluding evidence that she was harassed by her former
boyfriend. The district court denied Scott's motion, stating, in relevant part:

      Upon careful review of the record and application of the above
      standards, the Court finds Scott's contentions to be without merit. No
      rational jury would be able to reconcile the difference between her stated
      personal property in the bankruptcy and in the insurance claim less than
      a year later. Because of this material misrepresentation, she breached the
      contract and thus may not collect under either the personal property or
      the real property sections of the policy.

In a footnote to this paragraph, the district court explained:

      When ruling on the Rule 50 motion, the Court stated that Scott was
      judicially estopped from claiming $93,000 in personal property losses.
      Scott argues that the doctrine of judicial estoppel does not apply here, as
      the bankruptcy valuation was not a statement made under oath during the
      course of a trial. See Monterey Dev. Corp. v. Lawyer's Title Ins. Corp.,
      4 F.3d 605, 609 (8th Cir. 1993) ("Judicial estoppel prevents a person
      who states facts under oath during the course of trial from denying those
      facts in a second suit, even though the parties in the second suit may not
      be the same as those in the first."). However, "even when the prior
      statements were not made under oath, the doctrine [of judicial estoppel]
      may be invoked to prevent a party from playing 'fast and loose' with the
      courts." Id. (citing Konstantinidis v. Chen, 626 F.2d 933, 937 (D.C. Cir.


                                          -4-
      1980); State ex rel. KelCor, Inc. v. Nooney Realty Trust, Inc., 966
      S.W.2d 399, 403 (Mo. Ct. App. 1998).

(Emphasis added).

                                    II. Discussion
       On appeal, Scott argues that (1) the district court erred in applying the doctrine
of judicial estoppel because Liberty Mutual never pleaded it as an affirmative defense;
(2) even if Liberty Mutual timely raised judicial estoppel, the district court erred in
applying the doctrine in the instant case because the disparities in the personal
property values were to be expected, as the bankruptcy schedule contained actual cash
value figures, while the proof of loss reflected replacement costs; and (3) even if
judicial estoppel applies to the personal property claim, the district court erred in
concluding that she violated the "concealment or fraud" provision of the insurance
policy because the policy language requires that any alleged concealment or fraud
relate to the insurance policy—not the filings made in the bankruptcy court.

       In response, Liberty Mutual asserts that the district court (1) did not rely on
judicial estoppel, to the exclusion of other grounds, in entering judgment as a matter
of law for Liberty Mutual; (2) properly exercised its discretion in applying judicial
estoppel to protect the dignity of the judicial process; (3) and properly entered
judgment as a matter of law for Liberty Mutual because application of judicial
estoppel requires the acceptance of Scott's statement in her bankruptcy pleadings to
be taken as true.3

      3
         Liberty Mutual also contends that Scott's failure to provide this court with a
trial transcript renders meaningful review of the district court's ruling impossible and
that, on this basis, this court should affirm the district court. On November 16, 2006,
a panel of this court denied (1) Liberty Mutual's motion to dismiss Scott's appeal for
failure to provide a trial transcript pursuant to Federal Rule of Appellate Procedure
10(b)(1) and (2) Scott's request that the trial transcript be prepared at the government's
expense. The panel ordered Scott's appeal to proceed on the record as submitted.

                                           -5-
       "We review a grant of judgment as a matter of law de novo, applying the same
standard as the district court." Matrix Group Ltd., Inc. v. Rawlings Sporting Goods
Co., 477 F.3d 583, 593 (8th Cir. 2007). We review the evidence in the light most
favorable to the non-moving party, drawing all reasonable inferences in its favor and
resolving all factual disputes in its favor. Id. "If the evidence viewed according to this
standard would permit reasonable jurors to differ in the conclusions they draw,
judgment as a matter of law cannot be granted." Id. "We are not, however, entitled to
give a party the benefit of unreasonable inferences, or those at war with the undisputed
facts." Larson v. Miller, 76 F.3d 1446, 1452 (8th Cir. 1996) (internal quotations and
citation omitted). Therefore, "when the record contains no proof beyond speculation
to support the verdict," then judgment as a matter of law is appropriate." Id. (internal
quotations and citation omitted). "A mere scintilla of evidence is inadequate to support
a verdict. . . ." Id. (internal quotations and citation omitted).

       As an initial matter, contrary to Liberty Mutual's assertion, the district court did
rely, at least in part, on the doctrine of judicial estoppel in granting judgment as a
matter of law to Liberty Mutual. In response to Scott's motion for a new trial, the
district court specifically stated, "When ruling on the Rule 50 motion, . . . Scott was
judicially estopped from claiming $93,000 in personal property losses." (Emphasis
added). A review of the district court's original judgment, however, reveals that the
district court also concluded that "the evidence [was] insufficient as a matter of law
to entitle [Scott] to prevail against [Liberty Mutual]." Because "we may affirm the
district court on any grounds supported in the record," Catipovic v. Peoples Cmty.
Health Clinic, Inc., 401 F.3d 952, 957 (8th Cir. 2005), we need not address the district
court's application of judicial estoppel if the evidence is insufficient as a matter of law
to support Scott's claim against Liberty Mutual.


Therefore, while we are disadvantaged by the lack of a trial transcript, we will conduct
our review based on the record submitted, which includes, inter alia, the district
court's judgment and memorandum and order.


                                           -6-
       We agree with the district court that "[n]o rational jury would be able to
reconcile the difference between [Scott's] stated personal property in the bankruptcy
and in the insurance claim less than a year later." In her bankruptcy petition, Scott
stated that she owned—excluding her automobile and her dog—$830 in personal
property. Less than a year later, when seeking insurance recovery following the fire
she claimed to own $93,077.19 in personal property, a difference of $92,247.19 from
her bankruptcy petition.

       Scott attempts to explain the striking difference by noting that the bankruptcy
petition called for the "actual value" of her personal property, while the insurance
policy concerned only "replacement costs." This argument fails, however, because
Scott's proof of loss makes no distinction between replacement cost and actual cash
value, as the same value is listed under each category. As stated above, we give the
nonmoving party the benefit of all reasonable inferences when evaluating a motion for
judgment as a matter of law. However, the inference Scott seeks is not reasonable.

       Furthermore, even if Scott's insurance claim was based solely on replacement
cost, the vast difference in the two values is still too great to be reconciled based on
the record before us. At oral argument, Scott's counsel argued that the discrepancy
arose due to Scott's confusion, as Scott testified that she was confused regarding what
she was listing in her bankruptcy petition. However, counsel acknowledged that this
testimony is not reflected in the record on appeal. Given Scott's verified bankruptcy
petition, the district court was correct in assuming, in the absence of contrary proof,
that Scott made a true and accurate representation of her personal property.

       Scott failed to present evidence that the figures she listed in her bankruptcy
petition were inaccurate or that the insurance proof of loss amounts resulted from
mistake or were otherwise inadvertent. No record evidence accounts for the difference
between Scott's stated personal property in bankruptcy and in the insurance claim
made less than one year later. The only reasonable inference on the evidentiary record

                                          -7-
is that Scott made a material misrepresentation in submitting her personal property
claim of $93,077.19. This inference coincides with Liberty Mutual's contention that
Scott violated the insurance policy's "concealment or fraud" provision. Under
Missouri law, "a misrepresentation as to a portion of the loss may void coverage to the
entire claim." Childers v. State Farm Fire & Cas. Co., 799 S.W.2d 138, 141 (Mo.
App. 1990). Scott's material misrepresentation as to her personal property voids her
coverage under the policy.

                               III. Conclusion
     Accordingly, we affirm the judgment of the district court granting Liberty
judgment as a matter of law.
                      ______________________________




                                         -8-
