Cochran v. Emory University

• Decision Date: 05 October 2001
• Docket Number: No. A01A1058.,A01A1058.
• Citation: 251 Ga. App. 737,555 S.E.2d 96
• Parties: COCHRAN v. EMORY UNIVERSITY.
• Court: Georgia Court of Appeals

555 S.E.2d 96

251 Ga. App. 737

COCHRAN v. EMORY UNIVERSITY.

No. A01A1058.

Court of Appeals of Georgia.

October 5, 2001.

Hicks, Massey & Gardner, Frederick V. Massey, Robert M. Gardner, Jr., Winder, for appellant.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Jonathan T. Krawcheck, Atlanta, for appellee.

ANDREWS, Presiding Judge.

Kathy Cochran appeals from the trial court's order granting summary judgment to Emory University on Cochran's medical malpractice claim. The court held that Cochran was judicially estopped from asserting the claim because she had failed to list it as a potential asset in her bankruptcy case. Cochran claims on appeal that the trial court should have granted her motion for reconsideration of its summary judgment order because she subsequently moved to reopen her bankruptcy case. Because the trial court correctly found that the petition to reopen the bankruptcy was untimely, we affirm. This case arose when Cochran went to Crawford Long Hospital for the birth of her baby on January 2, 1996. During the delivery, doctors administered epidural anaesthesia through a catheter in her back. Cochran began having physical problems after the baby's birth and decided to have a CT scan and MRI done in either October or November 1997, at the facility where she worked as a radiology technician. Cochran said she was present when the doctor interpreted the CT scan and he told her there was a foreign body between her second and fourth lumbar vertebrae. This was later determined to be the tip of the catheter used to administer the anaesthesia during delivery.

The Cochrans filed a bankruptcy petition on March 11, 1997. In that petition, Cochran was required to list all "contingent and unliquidated claims of every nature." Cochran left this section blank. On June 27, 1997, the bankruptcy court discharged the Cochrans' debts and closed the bankruptcy. Cochran filed the instant suit against Emory University on December 31, 1997, approximately six months after the bankruptcy discharge.

Emory filed a motion for summary judgment, contending that Cochran was judicially estopped from bringing the medical malpractice claim. Cochran responded, claiming that she told her bankruptcy attorney about the foreign object in her back but he told her that because she did not have a suit filed or a claim made, she need not disclose it on her bankruptcy petition.

The court granted Emory's motion, finding that this misapprehension did not relieve Cochran of her duty to disclose the potential claim. The trial court also noted that Cochran never moved to reopen her bankruptcy case and amend her petition. The court's order granting Emory's motion for summary judgment was filed on January 25, 1999. On February 10, 1999, Cochran moved to reopen her bankruptcy case.

Cochran then filed a motion for reconsideration of the court's order granting summary judgment to Emory, claiming the court should reconsider in light of her petition to reopen the bankruptcy. The court denied the motion, finding that Cochran's attempts to amend her petition were untimely and made only after she received the unfavorable order on summary judgment. Cochran now appeals, claiming the trial court erred in granting summary judgment to Emory because she took steps to reopen her bankruptcy case.

The federal doctrine of judicial estoppel precludes a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding. This doctrine is commonly applied to preclude a bankruptcy debtor from pursuing a damages claim that he failed to include in his assets in the bankruptcy petition. A failure to reveal assets, including unliquidated tort claims, operates as a denial that such assets exist, deprives the bankruptcy court of the full information it needs to evaluate and rule upon a bankruptcy petition, and deprives creditors of resources that may satisfy unpaid obligations. The application of the doctrine preserves the integrity of the judicial forum by not permitting a debtor to take inconsistent positions to manipulate the system.

(Punctuation and footnotes omitted) Wolfork v. Tackett, 273 Ga. 328-329, 540 S.E.2d 611 (2001).

"The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary." Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455, 442 S.E.2d 265 (1994).

1. Cochran opposed the motion for summary judgment by arguing that judicial estoppel should not apply because she did not intend to deceive anyone and the reason she did not list the tort claim in her bankruptcy case was because her lawyer told her it was not necessary. As previously stated, the trial court correctly found this was no defense, citing Byrd v. JRC Towne Lake, 225 Ga.App. 506, 484 S.E.2d 309 (1997). Accord Wolfork, supra.

2. In her motion for reconsideration and now on appeal, Cochran claims that because she moved to reopen her bankruptcy petition, judicial estoppel should not apply. It is true that this Court has held that judicial estoppel does not apply when a plaintiff has successfully amended her petition to include any claim against the defendant as a potential asset. Under those circumstances, it cannot be said that the present position in the trial court is inconsistent with the position asserted by plaintiff in a prior proceeding and, therefore, judicial estoppel does not bar her claim. Clark v. Perino, 235 Ga.App. 444, 446, 509 S.E.2d 707 (1998); Johnson v. Trust Co. Bank, 223 Ga.App. 650, 651, 478 S.E.2d 629 (1996).

Cochran relies on Johnson, supra, in support of her argument on appeal; however, Johnson is not on point. In that case, plaintiff moved to amend his petition after defendant raised the bar of judicial estoppel in its motion for summary judgment. Id. at 651, 478 S.E.2d 629. Here, Cochran chose to respond to the motion and await the trial court's order instead of moving to reopen her bankruptcy case.

Whether to grant a motion for reconsideration after ruling on an issue lies within the sound discretion of the trial court. See generally Buffington v. Gold Kist, 179 Ga.App. 393, 394, 346 S.E.2d 577 (1986). Here, Cochran was on notice of Emory's intention to raise a judicial estoppel defense for over two months after the motion for summary judgment was filed and before the court entered its order. Yet Cochran did not petition to reopen her bankruptcy until over two weeks after the entry of the court's order granting summary judgment. Moreover, at the time she filed her motion for reconsideration with the trial court, there had been no decision by the bankruptcy court on whether to allow her to reopen the case. On these facts, it was clearly within the sound discretion of the trial court to find that Cochran "did not act with the requisite diligence" after the bar of judicial estoppel was raised.

Judgment affirmed.

JOHNSON, P.J., RUFFIN and ELLINGTON, JJ., concur and concur specially.

MILLER, J., concurs specially and files opinion joined by JOHNSON, P.J., and RUFFIN and ELLINGTON, JJ.

ELDRIDGE, J., dissents and files opinion.

BARNES, J., dissents.

MILLER, Judge, concurring specially.

Although I greatly empathize with the plaintiff's plight, I am constrained by binding precedent to agree with the trial court's conclusion that judicial estoppel bars plaintiff's claim. Ignoring the clear guidance given by this Court in prior decisions, plaintiff's counsel failed for months to reopen and amend her bankruptcy petition even after she clearly had a cause of action for her injury and after Emory University moved for summary judgment on the grounds of judicial estoppel. Therefore, I feel it is necessary to write separately to emphasize certain points.

Two cases are painfully clear on the issue of judicial estoppel in these circumstances. In Clark v. Perino,¹ the plaintiff acted pro se in her bankruptcy petition and failed to list a personal injury cause of action due to ignorance. Once the bankruptcy was over, opposing counsel in a deposition in the personal injury cause of action raised the omission, whereupon plaintiff successfully moved to reopen the bankruptcy to amend her asset schedule to include the omitted cause of action.² Asserting judicial estoppel, defendants then moved for summary judgment, which the trial court granted. We reversed, holding that although judicial estoppel would normally bar the cause of action, the plaintiff's actions in promptly and successfully seeking to reopen and amend her bankruptcy schedule precluded the application of the doctrine.³ We pointed out that in these circumstances a jury could find that the plaintiff had not manipulated the court system to her advantage, and that the claim would inure to the benefit of the creditors.⁴ Here Cochran learned of her cause of action against Emory no later than November 27, 1997. Cochran's counsel then filed suit against Emory, and even though counsel received Emory's motion for summary judgment accusing Cochran of failing to list the claim in her bankruptcy asset schedule, her counsel did nothing to reopen the bankruptcy and to amend the proper asset schedule until February 10, 1999—some 15 months after Cochran and her counsel knew of the claim. In the meantime, the trial court entered summary judgment against Cochran. Even though Cochran is excused from listing the claim originally, plaintiff and plaintiff's counsel's later dilatory conduct after full knowledge is inexcusable and is an obvious manipulation of the court system to Cochran's benefit.⁵ Judicial estoppel is designed to prevent this very kind of misconduct.

The other controlling case is Harper v. GMAC Mtg. Corp.⁶ In Harper we reviewed the case law in this area, including a quote from Reagan v. Lynch,⁷ where the bar was instructed that "a party like the plaintiff in this case can avoid the application of judicial estoppel simply by filing a ...