Kamara v. Henson

• Decision Date: 27 January 2017
• Docket Number: A16A1994
• Citation: 340 Ga.App. 111,796 S.E.2d 496
• Parties: KAMARA v. HENSON et al.
• Court: Georgia Court of Appeals

340 Ga.App. 111

796 S.E.2d 496

KAMARA

v.HENSON et al.

A16A1994

Court of Appeals of Georgia.

January 27, 2017

Holly Lynn Geerdes, Thomas McKee West, Atlanta, Geerdes & Associates, for Appellant.

Patrick Nish Arndt, Robert L. Goldstucker, Atlanta, Nall & Miller, for Appellees.

MILLER, Presiding Judge.

Joyce Kamara sued Podiatric Surgeon Mark Henson, along with his practice, The Outpatient Center for Foot Surgery, Inc., and his corporation, Mark J. Henson, DPM, P.C. (collectively "Defendants"), alleging that Defendants were responsible for negligently performing surgical procedures on Kamara's feet in 2011. Defendants moved for summary judgment on the sole ground of judicial estoppel, contending that Kamara's claims were barred because she failed to list them as an asset in her Chapter 7 Bankruptcy Petition in 2012. Kamara then filed a motion to disqualify Defendants' lead attorney and his firm (collectively "Defense Counsel"), on the ground that Defense Counsel had represented Kamara's expert in previous medical malpractice cases more than 20 years ago.¹

The trial court granted Defendants' motion for summary judgment, and denied Kamara's motion to disqualify Defense Counsel. After a thorough review of the record, we reverse the grant of summary judgment to Defendants because Kamara is not judicially estopped from bringing her claims against Defendants. We affirm the trial court's denial of Kamara's motion to disqualify Defense Counsel, however, because the trial court did not abuse its discretion in denying the motion in the absence of an actual conflict of interest or actual impropriety.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a [grant or] denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Citations and footnote omitted.) GEICO Gen. Ins. Co. v. Wright , 299 Ga.App. 280, 281, 682 S.E.2d 369 (2009).

So viewed, the limited record before us shows that Kamara first sought treatment from Dr. Henson in April 2010, and Dr. Henson performed surgeries on Kamara's feet on February 23, 2011 and March 9, 2011. Several months later, in November 2011, Kamara consulted another podiatrist for a second opinion, and shortly thereafter, she retained counsel.

In March 2012, Kamara filed a Chapter 7 Bankruptcy Petition in the United States Bankruptcy Court for the Northern District of Georgia. Kamara listed an unrelated $10,000 personal injury claim in her schedule of personal property, but she did not list her claims against Defendants. In August 2012, Kamara obtained an expert affidavit from Podiatric Surgeon Mel J. Colon ("Kamara's Expert"), and she filed the instant medical malpractice and negligence suit against Defendants in January 2013. After Defendants filed their motion for summary judgment on the sole ground of judicial estoppel, but before entry of the trial court's summary judgment order, Kamara amended her bankruptcy petition to include her claims against Defendants.²

1. Kamara contends that the trial court erred in granting summary judgment to the Defendants on the ground of judicial estoppel because she successfully amended her bankruptcy petition to include her claims. We agree.

The essential function and justification of judicial estoppel is to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice. The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary. The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings.

(Citations and punctuation omitted.) Johnson v. Trust Co. Bank , 223 Ga.App. 650, 651, 478 S.E.2d 629 (1996). Under Georgia law, "a debtor filing for bankruptcy under Chapter 7 ... may voluntarily amend the schedule [of assets] to avoid consequences such as judicial estoppel." (Citation omitted.) Benton v. Benton , 280 Ga. 468, 469, 629 S.E.2d 204 (2006).

Where a plaintiff, who initially fails to list a claim in her bankruptcy petition, successfully amends her asset schedules to include that claim, "it cannot be said as a matter of law that [the] plaintiff intentionally attempted to manipulate and deceive the court system, or that [she] was attempting to make a mockery of the system through inconsistent pleading." Johnson , supra, 223 Ga.App. at 651, 478 S.E.2d 629. Moreover, where the plaintiff amends her bankruptcy asset schedules, this Court cannot say that the plaintiff's present position is inconsistent with one that she successfully asserted in a prior proceeding. Id. at 652, 478 S.E.2d 629.

Here, the record shows, and the Defendants conceded during oral argument, that Kamara successfully amended her bankruptcy asset schedules, while her bankruptcy case was still open, to list her claims against the Defendants. Accordingly, Kamara is not attempting to manipulate the court system or take an inconsistent position and, therefore, judicial estoppel does not bar recovery on her claims. Johnson , supra, 223 Ga.App. at 651–652, 478 S.E.2d 629 ; Smalls v. Walker , 243 Ga.App. 453, 456 (2), 532 S.E.2d 420 (2000).³ Consequently, we reverse the trial court's order granting summary judgment to the Defendants and remand this case for proceedings consistent with this opinion.

2. Kamara also contends that the trial court erred in denying her motion to disqualify Defense Counsel due to an irreconcilable conflict of interest. We disagree.

We review a trial court's decision on a motion to disqualify counsel for an abuse of discretion, and we "must be mindful that the client's right to counsel of choice is an important interest which requires that any curtailment of it be approached with great caution." (Citations omitted.) Cardinal Robotics, Inc. v. Moody , 287 Ga. 18, 22, 694 S.E.2d 346 (2010). Accordingly, we look to the facts "peculiar to [this] case in balancing the need to ensure ethical conduct on the part of the lawyers appearing before the court and other social interests, which include the litigant's right to freely chosen counsel." (Citation and punctuation omitted.) Duvall v. Bledsoe , 274 Ga.App. 256, 258, 617 S.E.2d 601 (2005). Moreover, we are mindful that disqualification of chosen counsel is an extraordinary remedy and should be granted sparingly. Bernocchi v. For c ucci , 279 Ga. 460, 462 (2), 614 S.E.2d 775 (2005).

As the party seeking disqualification, [Kamara] had the burden to demonstrate to the [trial] court that disqualification was warranted, and [she] had to do so by showing that the matters embraced within the pending suit are substantially related to the matters or the cause of action involved in the previous representation. To be substantially related for the purpose of assessing the need for disqualification means that the former case in which the lawyer was involved has both material as well as logical connections to the pending litigation , and as noted, the party seeking the disqualification must establish the existence of such a substantial relationship.

(Citations and punctuation omitted, emphasis supplied). Cardinal Robotics , supra, 287 Ga. at 21, 694 S.E.2d 346.

Here, it is undisputed that Defense Counsel's representation of Kamara's Expert occurred 20 to 25 years ago and involved a witness, rather than a party to the present action.⁴ Moreover, this is not a situation involving representation of a client against a former client "in an action that is of the same general subject matter, and grows out of an event that occurred during the time of such representation[.]" (Punctuation and emphasis omitted.) Crawford W. Long Mem. Hosp. of Emory Univ. v. Yerby , 258 Ga. 720, 722 (3), 373 S.E.2d 749 (1988). Nor is this a case involving a party's insistence on the counsel of an attorney who has a previous or ongoing relationship with an opposing party. See Wheat v. United States , 486 U.S. 153, 159 (II), 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Consequently, there is no evidence of harm and therefore no actual impropriety. See Outdoor Advertising Assn. of Ga. v. Garden Club of Ga. , 272 Ga. 146, 151 (2) (c), 527 S.E.2d 856 (2000) (former Attorney General not disqualified under Yerby , supra, where action arose from event—new legislation—that occurred after Attorney General left office); Nat. Media Svcs. v. Thorp , 207 Ga.App. 70, 71 (1), 427 S.E.2d 61 (1993) (attorney not disqualified where instant action was neither substantially related to former representation, nor related to same general subject matter of the former representation).

Kamara argues that Defense Counsel can use confidential information to attack her expert's credibility for impeachment purposes. This argument amounts to no more than a bare assertion that Defense Counsel's decades-old representation of Kamara's Expert is substantially related to the present case, because Defense Co...