NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-2864

_____________

In re: JEFFREY J. PROSSER,

 Debtor

JAMES P. CARROLL, Chapter 7 Trustee of 

the Bankruptcy Estate of Jeffrey J. Prosser

v.

DAWN PROSSER,

 Appellant

_____________

On Appeal from the District Court

of the Virgin Islands

(D.C. Civil No. 3-08-cv-00147)

District Judge: Honorable Juan R. Sanchez

_____________ 

Submitted Under Third Circuit L.A.R. 34.1(a)

April 24, 2013

Before: McKEE, Chief Judge, SCIRICA and VANASKIE, Circuit Judges.

(Filed: August 1, 2013)

___________ 

OPINION

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VANASKIE, Circuit Judge.
2

Appellant Dawn Prosser appeals from a judgment of the District Court entered 

upon a jury verdict against her and in favor of James Carroll, the Chapter 7 Trustee of the 

bankruptcy estate of Jeffrey J. Prosser. Appellant challenges the District Court’s denial 

of her motions to dismiss and for judgment as a matter of law, argues the District Court 

erroneously allowed recovery for transfers of property made more than two years before 

the bankruptcy petition was filed, and that Trustee Carroll failed to prove the postpetition transfers were out of the ordinary course of business. Finding no error, we will 

affirm.

I.

Because we write primarily for the parties, who are familiar with the background 

of this case, we set forth only those facts necessary to our analysis. In January 2006, the 

Delaware Chancery Court found Jeffrey Prosser, Appellant’s husband, jointly and 

severally liable for $56,341,843 (“the Greenlight judgment”) for his fraudulent 

acquisition of the outstanding public stock of the predecessor corporation to Innovative 

Communication Corporation (“New ICC”). Mr. Prosser subsequently filed a Chapter 11 

bankruptcy petition. The Bankruptcy Court later converted the case from Chapter 11 to 

Chapter 7 and appointed James Carroll as the Chapter 7 Trustee for Prosser’s estate. 

From the time the lawsuits that culminated in the Greenlight judgment were 

pending until after he filed his bankruptcy petition, Mr. Prosser acquired and transferred 

millions of dollars of real and personal property to Appellant, including collections of 

artwork, expensive cigars, fine wine, and valuable jewelry. During this period, Mr. 
3

Prosser also made millions of dollars of improvements to the couple’s main residence, the 

Estate Shoys. The couple maintained that Jeffrey Prosser gifted the property to 

Appellant.

Seeking to recover the money they were awarded, the Greenlight judgment

creditors filed an involuntary Chapter 11 bankruptcy petition against New ICC. The 

Chapter 11 trustee, later joined by Trustee Carroll, commenced proceedings against 

members of the Prosser family in the Bankruptcy Court, seeking turnover of the property 

Jeffrey Prosser had gifted to Appellant on the theory that there had been no legal transfer 

of ownership (the “Turnover Action”). The trustees argued that, because Jeffrey Prosser 

retained ownership, the property belonged to his bankruptcy estate.

After the Turnover Action was filed but before it was tried, Trustee Carroll filed a 

complaint against Appellant in Bankruptcy Court, asserting that, to the extent that she 

owned the gifted property, she acquired ownership through fraudulent transfers from her 

husband which, the Trustee alleged, were designed to shield the substantial income the

husband was taking from New ICC (the “Fraudulent Transfer Action”). On December 5, 

2008, Appellant successfully obtained a withdrawal of the reference to the Bankruptcy 

Court, and the matter proceeded in the District Court.

On February 9, 2011, the Bankruptcy Court issued an order in the Turnover 

Action, resolving Jeffrey Prosser’s and Appellant’s respective ownership of the contested 

property. See In re Prosser, Nos. 06-30009, 07-30012, 2011 WL 576068 (Bankr. D. V.I.,
4

Feb. 9, 2011). Based on its findings, the Bankruptcy Court ordered that all of Jeffrey 

Prosser’s interest in the property be turned over to the estate. Id. at *53.

Subsequently, on May 23, 2011, Appellant filed a motion to dismiss the 

Fraudulent Transfer Action, claiming that Carroll had already tried the fraudulent transfer 

issues in the Turnover Action and was thus precluded from re-litigating them. The 

District Court denied the motion.

On June 6, 2011, the parties tried the Fraudulent Transfer Action before a jury. 

On June 8, 2011, Appellant moved to dismiss the action, arguing that the trustees did not 

adduce proof of actual intent by Mr. Prosser to hinder, delay, or defraud creditors through 

the transfer of assets. The District Court denied the motion, and the jury returned a 

verdict finding that the transfers were fraudulent.

Appellant filed a post-verdict Rule 50(b) motion for judgment as a matter of law, 

arguing Trustee Carroll failed to prove that the transfers were fraudulent because he did 

not present sufficient evidence that Mr. Prosser owned the transferred assets, or that Mr. 

Prosser was insolvent at the time of transfers. On June 6, 2012, the District Court denied 

Appellant’s Rule 50(b) motion, holding that Appellant had waived the issues, and that,

even if she had preserved them, they nevertheless failed on the merits.

II.

The District Court had jurisdiction pursuant to 48 U.S.C. § 1612(a) and 28 U.S.C. 

§ 1334, and we have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our review is 

mixed: we review a district court’s legal conclusions de novo, and review a district 
5

court’s factual findings for clear error. United States v. Reynolds, 710 F.3d 498, 506 (3d 

Cir. 2013).

A. The Motion to Dismiss

Appellant advances four theories in support of her argument that the District Court 

erred in denying her pretrial motion to dismiss. Specifically, she asserts that this case is

barred by the doctrines of collateral estoppel, judicial estoppel, and election of remedies, 

and that, by allowing Trustee Carroll to pursue relief under multiple statutes for the same 

set of facts, the District Court rendered the statutes “redundant and superfluous.” 

(Appellant’s Br. 58.) Her arguments under each theory lack merit. 

 First, as to her collateral estoppel theory, the District Court determined that the 

Bankruptcy Court’s ruling in the Turnover Action had no preclusive effect on this case

because the elements of collateral estoppel were not met. Collateral estoppel bars relitigation of an issue where: “(1) the issue sought to be precluded [is] the same as that 

involved in a prior action; (2) that issue [was] actually litigated; (3) it [was] determined to 

be a final and valid judgment; and (4) the determination [was] essential to the prior 

judgment.” Peloro v. United States, 488 F.3d 163, 174-75 (3d Cir. 2007) (internal 

quotation omitted).

Appellant argues that the Turnover Action barred the Fraudulent Transfer Action 

because both actions arose out of the same “nucleus of facts.” (Appellant’s Br. 22, 33.) 

That assertion, however, is not germane to collateral estoppel analysis, which focuses not

on whether the facts underlying the cases are the same, but instead on whether the same 
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issue has been conclusively determined in a prior decision. Here, the issues decided in 

each case were different. Specifically, the issue decided by the Bankruptcy Court in the 

Turnover Action was whether Jeffrey Prosser retained ownership of the property he 

attempted to transfer to Appellant. To the extent it determined that Jeffrey Prosser 

retained ownership interests in the property, the Bankruptcy Court required his interest to 

be turned over to the bankruptcy estate. In contrast, the issue in this case was whether 

Appellant’s ownership interests resulted from a fraudulent conveyance from Jeffrey 

Prosser. Thus, although the same factual scenario gave rise to the two actions, the issues 

decided in each were entirely distinct. Indeed, as the District Court observed in its denial 

of Appellant’s motion to dismiss, the Turnover Opinion is replete with the Bankruptcy 

Court’s explicit avoidance of any issue related to the alleged fraudulent nature of Jeffrey 

Prosser’s transfers.1 We therefore reject Appellant’s argument that the Bankruptcy Court 

analyzed the fraudulent nature of the transfers to her, and conclude that the District Court 

correctly held that collateral estoppel did not preclude the Fraudulent Transfer Action.

We also reject Appellant’s second theory that Trustee Carroll is judicially 

estopped from pursuing the Fraudulent Transfer Action. Judicial estoppel is an equitable 

doctrine, which courts may apply at their discretion “to prevent a litigant from asserting a 

 

1

See, e.g., In re Prosser, 2011 WL 576068, at *6 n.41 (“[T]his adversary 

proceeding is not to determine whether property was fraudulently conveyed . . .”); id. at 

*13 n.56 (“offer[ing] no opinion” on whether transfers to Dawn Prosser were fraudulent); 

id. at *36 n.129 (“[This] turnover action is not appropriate for resolving . . . allegations 

[of fraud]. The Chapter 11 Trustee has the opportunity to prove the propriety and alleged 

fraudulent nature of the transfers in the fraudulent conveyance actions . . .”); id. at *52 

(“This Opinion preserves and reserves all rulings regarding fraudulent conveyances.”).
7

position inconsistent with one that she has previously asserted in the same or in a 

previous proceeding.” Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 

355, 359 (3d Cir. 1996). However, judicial estoppel is “not intended to eliminate all 

inconsistencies no matter how slight or inadvertent.” In re Kane, 628 F.3d 631, 638 (3d 

Cir. 2010). Thus, we have held that a party’s purportedly inconsistent litigation positions 

should be judicially estopped only if they meet the following criteria:

First, the party to be estopped must have taken two positions 

that are irreconcilably inconsistent. Second, judicial estoppel 

is unwarranted unless the party changed his or her position in 

bad faith—i.e., with the intent to play fast and loose with the 

court. Finally, a district court may not employ judicial 

estoppel unless it is tailored to address the harm identified 

and no lesser sanction would adequately remedy the damage

done by the litigant’s misconduct. 

Id. (quoting Montrose Med. Grp. Participating Sav. Plan v. Bulger, 243 F.3d 773, 779 

(3d Cir. 2001)). 

Here, Trustee Carroll merely plead alternative theories in the Turnover and 

Fraudulent Transfer Actions. Such alternative pleading, which is explicitly permitted by 

Federal Rule of Civil Procedure 8(d), is not barred by judicial estoppel. See Chaveriat v. 

Williams Pipe Line Co., 11 F.3d 1420, 1428 (7th Cir. 1993). Furthermore, the alternative 

theories were not “irreconcilably inconsistent.” Kane, 628 F.3d at 638. Instead, they 

allowed the estate to recover under one theory the property that belonged to Jeffrey 

Prosser, and to recover under another theory the property that was in Appellant’s 

possession by way of Jeffrey Prosser’s fraudulent transfers. Additionally, although

Trustee Carroll argued in the Turnover Action that Appellant did not own the transferred
8

property, but later acknowledged her ownership in the Fraudulent Transfer Action, this 

change in position was not made in bad faith. Instead, Trustee Carroll simply conceded 

the Bankruptcy Court’s conclusions as to ownership, thereby ensuring that there was no

double recovery by the estate.2 Thus, neither of the first two elements of judicial estoppel 

is met in this case. Accordingly, we find no error in the District Court’s denial of 

Appellant’s motion to dismiss on the ground of judicial estoppel.

We likewise reject Appellant’s third theory premised upon the election of 

remedies doctrine, which seeks to prevent a party from “occupy[ing] inconsistent 

positions in relation to the facts which form the basis of his respective remedies.” 

Abdallah v. Abdallah, 359 F.2d 170, 174 (3d Cir. 1966). As with judicial estoppel, the 

election of remedies doctrine does not prevent a party from pleading in the alternative. 

Furthermore, Trustee Carroll, along with the Bankruptcy and District Courts, took pains 

to ensure that the theories advanced in each action did not result in a double recovery. 

We therefore agree with the District Court that the election of remedies doctrine does not 

bar the Fraudulent Conveyance Action. 

 

2 Contrary to Appellant’s repeated suggestions, the bankruptcy estate was not 

awarded a double recovery of the couple’s respective interests in the Estate Shoys. In the 

Turnover Action, evidence that Jeffrey Prosser resided at the Estate Shoys and paid for 

extensive improvements to the property was used to determine that he retained an 

ownership interest in the property notwithstanding his representations that it was owned 

solely by Appellant. As a result, the bankruptcy estate was awarded Jeffrey Prosser’s 

50% interest in the Estate Shoys, which included his 50% interest in the improvements 

made to the property. In the Fraudulent Transfer Action, Trustee Carroll sought and 

recovered only Appellant’s 50% interest in the value of the improvements to the Estate 

Shoys. Therefore, there was no double recovery.
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We also reject Appellant’s argument that, by permitting the trustees to pursue 

relief against Jeffrey Prosser and Appellant under numerous statutes, the District Court

rendered the statutes “redundant and superfluous.” (Appellant’s Br. 58.) Congress chose 

to authorize various types of relief for trustees seeking to recover assets for distribution to 

creditors under the Bankruptcy Code. See, e.g., 11 U.S.C. §§ 542, 547, 548, 549, and 

550. The fact that Jeffrey Prosser’s actions violated several provisions of the Bankruptcy 

Code does not render those provisions superfluous. 

C. The Motion for Judgment as a Matter of Law

In her motion pursuant to Federal Rule of Civil Procedure 50(b), Appellant argued 

that Trustee Carroll failed to prove that Jeffrey Prosser owned the property he transferred

and that Jeffrey Prosser was insolvent. The District Court held that Appellant waived 

these arguments. We agree. 

A party may move for judgment as a matter of law “at any time before the case is 

submitted to the jury.” Fed. R. Civ. P. 50(a)(2) (emphasis added). If the court denies the 

pre-verdict motion, the movant may renew her motion within twenty-eight days after the 

entry of judgment. Fed. R. Civ. P. 50(b). “Since the post-submission motion is nothing 

more than a renewal of the earlier motion,” however, the party may not raise any new 

issue that she did not raise in her pre-verdict motion. 9B Charles Wright & Arthur

Miller, Federal Practice & Procedure § 2537 (3d ed. 2013); see also Chemical Leaman 

Tank Lines, Inc. v. Aetna Cas. & Sur. Co., 89 F.3d 976, 993 (3d Cir. 1996).
10

Appellant’s pre-verdict motion failed to assert either of the grounds raised in her 

renewed motion. Specifically, the pre-verdict Rule 50 motion did not argue that Trustee 

Carroll failed to prove that Jeffrey Prosser owned the property he transferred to her. 

Instead, Appellant argued only that Jeffrey Prosser did not have the requisite intent to 

hinder, delay, or defraud his creditors. Thus, the District Court did not err in finding she 

waived the ownership argument.

Appellant’s argument that Trustee Carroll failed to prove her husband was 

insolvent is similarly waived, because her pre-verdict motion raised only New ICC’s 

solvency. Appellant argues her husband’s solvency was dependent on the solvency of

New ICC, but Rule 50(a) requires a motion to “specify the judgment sought and the law 

and facts that entitle the movant to judgment.” Fed. R. Civ. P. 50(a)(2). Thus, even if 

New ICC’s solvency was relevant to Jeffrey Prosser’s personal solvency, or vice versa, 

we read Rule 50 as requiring a higher degree of specificity. Cf. In re Ins. Brokerage 

Antitrust Litig., 579 F.3d 241, 262 (3d Cir. 2009) (observing, in waiver context, that a 

“fleeting reference or vague allusion to an issue” is insufficient to preserve it for appeal). 

Furthermore, as the District Court extensively discussed in its Memorandum denying 

Appellant’s post-submission motion to dismiss, insolvency is not a necessary element of 

the fraudulent transfer claims. Carroll v. Prosser, Civil Action No. 08-147, 2012 WL 

2053868, at *3 (D.V.I. June 6, 2012). Thus, even if Appellant had not waived her 

argument that Trustee Carroll failed to prove her husband’s insolvency, it would

nevertheless fail as a matter of law.
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D. Issues Raised for the First Time on Appeal

Finally, Appellant argues that the District Court erred as a matter of law by 

awarding recovery for transfers made by Jeffrey Prosser more than two years before he 

filed the voluntary Chapter 11 petition, and that Trustee Carroll failed to prove that 

Jeffrey Prosser’s post-petition transfers were not made “in the ordinary course” of 

business. She failed, however, to raise either issue before the District Court. We need

not consider issues that are raised for the first time on appeal absent “exceptional 

circumstances.” In re Ins. Brokerage Antitrust Litig., 579 F.3d at 261. Appellant cannot

identify a single instance in the record where she preserved either issue for appellate 

review. Thus, they are waived.

III.

For the foregoing reasons, we will affirm the judgment of the District Court.