Fulton County v. Ward-Poag

849 S.E.2d 465, 310 Ga. 289

• Court: Supreme Court of Georgia
• Decided: October 5, 2020
• Docket: S19G1619
• Status: Published

Opinion

310 Ga. 289 FINAL COPY

S19G1619. FULTON COUNTY v. WARD-POAG.

PETERSON, Justice.

In this case, summary judgment was awarded to Fulton

County on Sandra Ward-Poag’s civil whistleblower claims on the

ground of judicial estoppel. In particular, the superior court

concluded that judicial estoppel barred Ward-Poag’s claims because

she took an inconsistent position regarding the nature of those

claims when she failed to disclose her claims in her bankruptcy case,

and then amended her bankruptcy petition to value her claims

against the County as worth far less than alleged here. The Court of

Appeals reversed the superior court’s decision, concluding that

Ward-Poag’s amendment to her bankruptcy petition to list the claim

in fact showed that she did not take an inconsistent position in the

superior court. See Ward-Poag v. Fulton County, 351 Ga. App. 325,

331 (1) (830 SE2d 799) (2019). In making that determination, the

Court of Appeals relied on its case law seemingly creating a bright- line rule that a party takes consistent positions, and thus lacks an

intent to deceive the court system, when the party successfully

amends a bankruptcy schedule to include a previously undisclosed

asset. We disapprove the Court of Appeals’s analysis and its

previous case law to the extent it created that bright-line rule,

because such rules have no place in the application of judicial

estoppel. We nevertheless affirm the Court of Appeals’s ultimate

conclusion that the superior court abused its discretion in applying

the doctrine at this procedural stage because there are genuine

issues of material fact that preclude summary judgment to Fulton

County.

1. Factual and Procedural History.

Viewed in the light most favorable to Ward-Poag as the non-

moving party for purposes of summary judgment in the superior

court, the relevant facts of record and the procedural history of this

case are as follows. Fulton County hired Ward-Poag as the

entertainment manager for the Wolf Creek Amphitheater in 2012.

In May 2013, Ward-Poag filed a voluntary petition for Chapter 13

2 bankruptcy in the United States Bankruptcy Court for the Northern

District of Georgia. In March 2014, the bankruptcy court confirmed

Ward-Poag’s Chapter 13 plan, which required Ward-Poag to fully

compensate her creditors by making payments to the bankruptcy

trustee until March 2019.

While her bankruptcy petition was pending, in October 2016,

Ward-Poag filed a whistleblower lawsuit against the County in

Fulton County Superior Court. In her verified complaint, Ward-

Poag alleged that from September 2015 to August 2016, a Fulton

County commissioner attempted to use the amphitheater for his own

private gain, which included the commissioner making repeated

demands to reserve the amphitheater for his own concerts. Ward-

Poag rejected the commissioner’s requests, and as a result, she

alleged, she was demoted and faced other forms of retaliation by the

commissioner. In her amended complaint, filed in December 2016,

Ward-Poag prayed for $3 million in damages and also asked for

attorneys’ fees and pre judgment interest.

3 On September 5, 2017, the County filed a motion for summary

judgment in the whistleblower case, arguing that judicial estoppel

barred Ward-Poag’s claims because she failed to disclose the lawsuit

as an asset in her pending bankruptcy proceedings. See 11 USC §

1306 (a) (1) (“Property of the estate” for purposes of Chapter 13

bankruptcy includes property “that the debtor acquires after the

commencement of the case but before the case is closed, dismissed,

or converted to a . . . [C]hapter 7, or 11, or 12 [bankruptcy case].”).

In the County’s statement of undisputed material facts in support of

its motion for summary judgment, the County specifically asserted

that Ward-Poag was required to amend her bankruptcy schedules to

include her pending civil action as an asset and failed to do so.

On October 2, 2017, less than a month after the County filed

its motion for summary judgment, Ward-Poag amended her

bankruptcy petition to disclose the cause of action against the

County as an asset. In her amended petition, she swore under

penalty of perjury that the asset was worth $1. Three days later,

Ward-Poag filed a response to the County’s motion for summary

4 judgment and its statement of undisputed material facts, stating

that she “had no intention to deceive the bankruptcy [court] as to

the existence of [her pending civil case], [because she] was unaware

of her obligation to amend her petition to disclose [the civil] case to

the bankruptcy court.” She also stated that, once she was “made

aware of her obligation to do so, [she] immediately amended her

bankruptcy petition accordingly.” Ward-Poag submitted an affidavit

in support of her statements.

On October 17, 2017, the superior court held a hearing for

argument on the County’s motion for summary judgment. At the

hearing, Ward-Poag argued that judicial estoppel could not apply

because there was “no evidence of her intent to deceive the

bankruptcy court.” However, at the end of the hearing, the superior

court announced from the bench that it had examined “the intent

that [Ward-Poag] had in announcing [to the bankruptcy court] that

her [superior court] case was believed to be [valued] in the amount

of $1,” and found that such a proclamation made “a mockery of [the

superior] court and a mockery of the bankruptcy court,” as Ward-

5 Poag was “asking for considerably more than $1” in her lawsuit. The

superior court concluded that Ward-Poag had acted “with an intent

to deceive creditors,” and determined that Ward-Poag was

“judicially estopped from proceeding with [the] case as a result of

[her inconsistent] filing[s].”

Three days after the superior court’s oral ruling, but before the

court reduced it to writing, Ward-Poag filed a motion for

reconsideration. She also submitted an affidavit in which she again

claimed that she was initially unaware of her obligation to disclose

her lawsuit to the bankruptcy court, and her bankruptcy counsel

submitted an affidavit in which he claimed that it was a “normal

and customary practice” to represent to a bankruptcy court that a

pending civil lawsuit was worth $1.

After a December 19, 2017 hearing at which it considered

pending motions, including Ward-Poag’s motion for reconsideration,

the superior court entered a written order on May 22, 2018, granting

the County’s motion for summary judgment and implicitly denying

Ward-Poag’s motion for reconsideration. In its order, the superior

6 court noted that Ward-Poag was a law school graduate1 who was

represented by counsel in her bankruptcy action. In its written

order, the superior court determined that Ward-Poag’s actions ⸺

amending her bankruptcy petition to list the lawsuit against the

County only after the County raised the issue and, in amending the

petition, undervaluing her claim ⸺ demonstrated an intent to

deceive and made a mockery of the superior and bankruptcy courts.

The Court of Appeals reversed the superior court’s decision,

concluding that Ward-Poag’s positions in the bankruptcy court and

the superior court were not inconsistent and did not threaten

judicial integrity given that her amended bankruptcy schedule

disclosed her claim against the County. See Ward-Poag, 351 Ga.

App. at 330-331 (1). We granted the County’s petition for a writ of

certiorari to address whether the superior court abused its

discretion in applying judicial estoppel to bar Ward-Poag’s claims.

2. Analysis.

1 It was undisputed that Ward-Poag graduated from law school but did not become licensed to practice law. 7 The County contends that the Court of Appeals erred in

reversing the superior court’s decision to apply judicial estoppel to

bar Ward-Poag’s civil claims against the County. We disagree.

(a) Standard of review.

Judicial estoppel is an equitable doctrine that can be invoked

by a court at its discretion, and we review a trial court’s application

of that doctrine for an abuse of discretion. See, e.g., Klardie v.

Klardie, 287 Ga. 499, 501-502 (2) (697 SE2d 207) (2010); Goddard v.

City of Albany, 285 Ga. 882, 885 (2) (684 SE2d 635) (2009).

Whenever a trial court exercises its discretion, it must do so in

conformity with governing legal principles. See Ford Motor Co. v.

Conley, 294 Ga. 530, 538 (2) (757 SE2d 20) (2014). If a trial court

significantly misapplies the law or clearly errs in a material factual

finding, we may affirm the trial court’s exercise of discretion only

when we can conclude that, “‘had the trial court used the correct

facts and legal analysis, it would have had no discretion to reach a

different judgment.’” Id. (quoting State v. Pickett, 288 Ga. 674, 679

(2) (d) (706 SE2d 561) (2011)).

8 Because the superior court was deciding the judicial estoppel

issue in the context of a motion for summary judgment, the court

was required to follow the well-established principles governing

such motions. A trial court can grant summary judgment to a

moving party only if there are no genuine issues of material fact and

the undisputed evidence warrants judgment as a matter of law. See

OCGA § 9-11-56 (c). In reviewing the evidence, a court must construe

all facts and draw all inferences in favor of the non-movant. See

Messex v. Lynch, 255 Ga. 208, 210 (1) (336 SE2d 755) (1985) (at

summary judgment, “[t]he party opposing the motion is to be given

the benefit of all reasonable doubts in determining whether a

genuine issue exists[,] and the trial court must give that party the

benefit of all favorable inferences that may be drawn from the

evidence” (citation and punctuation omitted)). We must view the

evidence in the same manner on appeal. See In the Matter of Tapley,

308 Ga. 577, 577 (842 SE2d 36) (2020) (when reviewing a motion for

summary judgment, “we must view the evidence, and all reasonable

9 inferences drawn therefrom, in the light most favorable to the

nonmovant” (citation and punctuation omitted)).

(b) The application of judicial estoppel depends on the factual circumstances of the case.

The federal doctrine of judicial estoppel precludes a party from asserting a position in one judicial proceeding after having successfully asserted a contrary position in a prior proceeding. . . . The purpose of judicial estoppel is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment.

Period Homes v. Wallick, 275 Ga. 486, 488 (2) (569 SE2d 502)

(2002).2 The doctrine “is commonly applied to preclude a [Chapter

13] bankruptcy debtor from pursuing a damages claim that [she]

failed to include in [her] assets in the bankruptcy petition.” Wolfork

v. Tackett, 273 Ga. 328, 328 (540 SE2d 611) (2001), disapproved on

2We have said in Period Homes and other cases that Georgia courts apply the “federal” doctrine of judicial estoppel. It is unclear (1) if we do so because the Supremacy Clause requires us to, (2) if we do so as a matter of judicial comity, or (3) whether we simply consider the federal case law persuasive. We have not identified any decision of ours or of federal or other state courts that sheds much light on the question. In any event, neither party suggests that we reconsider our course, so we will continue to look to the federal decisions in this case. 10 other grounds in Period Homes, 275 Ga. at 488 (1).3 This is so

because

[a] failure to reveal assets [in a Chapter 13 bankruptcy petition], 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 [the] bankruptcy petition, and deprives creditors of resources that may satisfy unpaid obligations. The application of the doctrine [of judicial estoppel] preserves the integrity of the judicial forum by not permitting a debtor to take inconsistent positions to manipulate the system.

Id. at 328-329 (footnote omitted); see also, e.g., Johnson v. Trust Co.

Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996) (“The doctrine

3 In Period Homes, we noted that [u]nlike [in] a bankruptcy proceeding under Chapter 13, there are only limited circumstances in which a Chapter 7 or 11 debtor must amend his schedule of assets to reflect property acquired after commencement of the case. See 11 USC § 541 (a) (7). This is in stark contrast to the amendment requirement that a Chapter 13 debtor is under, 11 USC § 1306 (a), which directs that all property acquired after the commencement of the bankruptcy proceeding be included in an amended schedule of assets. There is no analogous provision for bankruptcies proceeding under Chapters 7 or 11. Accordingly, a debtor under Chapters 7 or 11 is under no statutory duty to amend its schedule of assets. (Emphasis in original.) Id. at 487-488 (1). Thus, we disapproved Wolfork “[t]o the extent that this distinction [between the differing amendment requirements in different forms of bankruptcies] conflict[ed] with our statement in Wolfork . . . that a Chapter 7 or 11 debtor is required to amend his schedule of assets.” Id. at 488 (1). 11 [of judicial estoppel] 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.” (citation and punctuation omitted)).

The United States Supreme Court has identified a general test

to guide the application of judicial estoppel:

First, a party’s later position must be “clearly inconsistent” with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled[,]” . . . A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

New Hampshire v. Maine, 532 U.S. 742, 750 (II) (121 SCt 1808, 149

LE2d 968) (2001) (citations omitted). These three factors generally

inform a decision about whether to apply the doctrine in a particular

case. See id. at 750 (II); see also IBF Participating Income Fund v.

Dillard-Winecoff, 275 Ga. 765, 766 (573 SE2d 58) (2002) (identifying

12 the three factors from New Hampshire as being “pertinent to the

decision whether to apply the doctrine [of judicial estoppel] in a

particular case” (citations and punctuation omitted)).

In establishing those three factors, the United States Supreme

Court did not intend to “establish inflexible prerequisites or an

exhaustive formula for determining the applicability of judicial

estoppel” because “the circumstances under which judicial estoppel

may appropriately be invoked are probably not reducible to any

general formulation of principle.” New Hampshire, 532 U.S. at 750-

751 (II) (citation and punctuation omitted). Instead, the Court

emphasized that “[a]dditional considerations may inform the

doctrine’s application in specific factual contexts,” remembering that

the purpose of judicial estoppel is to “protect the integrity of the

judicial process.” Id. at 749, 751 (II) (citation and punctuation

omitted).

The circumstances of this case are unlike those in New

Hampshire, and so not all of the New Hampshire factors are

applicable. New Hampshire involved a dispute between Maine and

13 New Hampshire regarding a consent order entered into by the states

in a previous lawsuit, and Maine attempted to apply judicial

estoppel against New Hampshire for taking inconsistent positions

in the two lawsuits. Id. at 745. Because Maine and New Hampshire

were parties to both lawsuits, the third New Hampshire factor ⸺

whether the party seeking to assert an inconsistent position would

derive an unfair advantage or impose an unfair detriment on the

opposing party if not estopped ⸺ was well suited to that case.

But here, the third New Hampshire factor is ill suited. The

party seeking to apply judicial estoppel, the County, is not a party

to the bankruptcy proceedings in which Ward-Poag has allegedly

taken an inconsistent position. Therefore, any inconsistent position

taken by Ward-Poag would not give her an unfair advantage over

the County. Instead, any potential disadvantage would be to Ward-

Poag’s creditors, who are not involved in the current litigation. See,

e.g., Harper v. GMAC Mtg. Corp., 245 Ga. App. 729, 733 (1) (538

SE2d 816) (2000) (“[A] creditor would likely rethink its consent or

objections to the proposed long-term [bankruptcy] payout plan were

14 it aware of additional assets. Similarly, a court would be less likely

to force creditors to accept the long-term payout if it understood not

all assets had been listed.”).

Recognizing that the third New Hampshire factor is

inapplicable where the party seeking to apply judicial estoppel was

not a party to the other court proceedings, and because the New

Hampshire factors were not intended to be a one-size-fits-all

approach, the Eleventh Circuit adopted a test to guide the

application of judicial estoppel in a factual context similar to the one

presented here. Specifically, when an adverse party fails to disclose

a civil lawsuit as an asset in Chapter 13 bankruptcy filings, the

Eleventh Circuit employs “a two-part test to guide district courts in

applying judicial estoppel: whether (1) the party took an

inconsistent position under oath in a separate proceeding, and (2)

these inconsistent positions were ‘calculated to make a mockery of

the judicial system.’” Slater v. United States Steel Corp., 871 F3d

1174, 1181 (III) (A) (11th Cir. 2017) (en banc) (citation omitted).

With respect to the second part of the test:

15 [T]o determine whether a plaintiff’s inconsistent statements were calculated to make a mockery of the judicial system, a court should look to all the facts and circumstances of the particular case. When the plaintiff’s inconsistent statement comes in the form of an omission in bankruptcy disclosures, the court may consider such factors as the plaintiff’s level of sophistication, whether and under what circumstances the plaintiff corrected the disclosures, whether the plaintiff told his bankruptcy attorney about the civil claims before filing the bankruptcy disclosures, whether the trustee or creditors were aware of the civil lawsuit or claims before the plaintiff amended the disclosures, whether the plaintiff identified other lawsuits to which he was party, and any findings or actions by the bankruptcy court after the omission was discovered.

Id. at 1185 (III) (C); see also Smith v. Haynes & Haynes, P.C., 940

F3d 635, 644 (III) (A) (1) (11th Cir. 2019) (noting that Slater

overruled prior circuit precedent “that permitted a district court to

infer intent to misuse the courts from nondisclosure alone,” and

noting that “[w]hether a plaintiff intended to mislead the court is

separate from and not answered by whether” the plaintiff took an

inconsistent position (citations and punctuation omitted)).4 Because

4 This brought the Eleventh Circuit in line with “at least three other

circuits, which have recognized that whether a plaintiff intended to make a mockery of the judicial system requires consideration of more than just whether the plaintiff failed to disclose a claim.” Slater, 871 F3d at 1189 (III) 16 the New Hampshire factors do not present an exhaustive list to be

considered in every circumstance, and because Slater was tailored

to address situations like the current one where a party to a civil

action was not a party to the bankruptcy proceedings in which an

allegedly inconsistent position was taken, we conclude that the

Slater test should be followed in cases such as the one here.

(c) The superior court’s grant of summary judgment must be reversed for misapplying the summary judgment standard.

Using the Slater factors as a starting point, we conclude that

the Court of Appeals erred in its analysis. The Court of Appeals

concluded that Ward-Poag’s positions in the bankruptcy court and

the superior court were not inconsistent and did not threaten

judicial integrity because she amended her bankruptcy schedule to

(C). See id. at 1189 (III) (C) n.17 (citing Spaine v. Community Contacts, Inc., 756 F3d 542, 548 (III) (7th Cir. 2014); Ah Quin v. County of Kauai Dept. of Transp., 733 F3d 267, 276 (9th Cir. 2013); and Eubanks v. CBSK Financial Group, Inc., 385 F3d 894, 899 (II) (6th Cir. 2004)); see also Martineau v. Wier, 934 F3d 385, 393-394 (II) (B) (1) (4th Cir. 2019) (overruling district court’s holding that debtor intentionally misled the court because the court so held “only by relying on a presumption of bad faith” based upon the debtor’s failure “to disclose a legal claim in bankruptcy proceedings,” and the “judicial estoppel inquiry does not lend itself to this kind of blanket presumption”).

17 include her claim against the County. See Ward-Poag, 351 Ga. App.

at 330-331 (1). In reaching that conclusion, the Court of Appeals

relied on its own precedent seemingly creating a bright-line rule that

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.

Id. at 330 (1) (citation and punctuation omitted; emphasis in

original). As discussed above, the doctrine of equitable estoppel is

not one of bright-line rules. It involves a consideration of various

factors depending on the circumstances of a case. A key criterion in

applying judicial estoppel, as Slater discusses, is whether an

inconsistent position was calculated to make a mockery of the

judicial system.

Contrary to the Court of Appeals’s position, it is not always the

case that an amendment to a bankruptcy petition to reveal the

existence of a previously undisclosed cause of action will

18 automatically make a debtor’s positions consistent. It is generally

true that

when a plaintiff has successfully amended his or her bankruptcy petition to include any claim against the [civil] defendant as a potential asset[, judicial estoppel is inapplicable to bar the claim] because then it cannot be said that the position in the trial court is inconsistent with the position asserted by the plaintiff in the bankruptcy proceeding.

Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). Implicit

in this observation is that the bankruptcy amendment is consistent

with the claim asserted in the trial court. Simply disclosing a claim

does not always mean a party has taken consistent positions. See

Dugger v. Smith & Nephew, Inc., 2013 U.S. Dist. LEXIS 191729, at

*5 (II) (B) (N.D. Ga. March 20, 2013) (concluding in the context of

judicial estoppel that plaintiffs took inconsistent positions by

representing under oath in bankruptcy court that their pending civil

case was valued at $30,690 while representing in their civil

complaint that they were entitled to damages that were “certainly

greater than” $75,000 (punctuation omitted)).5

5 Dugger followed the Eleventh Circuit’s two-part test that was 19 Although the cases cited by the Court of Appeals may be

factually distinguishable, they cited a general proposition often

repeated, and one that has no place in judicial estoppel. We

disapprove cases that can be read to support the proposition that

any amendment, no matter how inaccurate, will automatically make

a debtor’s positions consistent for purposes of judicial estoppel. See

Kamara v. Henson, 340 Ga. App. 111, 112 (1) (796 SE2d 496) (2017);

Nat. Bldg. Maintenance Specialists, Inc. v. Hayes, 288 Ga. App. 25,

27 (653 SE2d 772) (2007); Rowan v. George H. Green Oil, 257 Ga.

App. 774, 775-776 (572 SE2d 338) (2002); Weiser v. Wert, 251 Ga.

App. 566, 568 (554 SE2d 762) (2001); Jowers v. Arthur, 245 Ga. App.

68, 70 (537 SE2d 200) (2000); Clark v. Perino, 235 Ga. App. 444, 446

reaffirmed in Slater: whether the party took an inconsistent position under oath in a separate proceeding and whether the party intended to make a mockery of the judicial system through the inconsistent positions. See Slater, 871 F3d at 1181-1182 (III) (A) (explaining that the Court was adhering to its two-part test); Dugger, 2013 U.S. Dist. LEXIS 191729, at *4-5 (II) (B) (setting out two-part test). Although Slater overruled case law relied on by Dugger, Slater focused only on the second prong. Slater, 871 F3d at 1182 (III) (B) (“We focus today on the second part: how a court should determine whether a plaintiff intended [to] make a mockery of the judicial system.”). Thus, Slater’s ruling did not affect Dugger’s conclusion that a party can take an inconsistent position based on the valuation of a claim. 20 (1) (509 SE2d 707) (1998); Johnson, 223 Ga. App. at 651-652. And

we disapprove the Court of Appeals’s conclusion here that a

successful amendment to a bankruptcy schedule cannot be evidence

of an intention to manipulate or deceive the court system.

But our rejection of the Court of Appeals’s analysis does not

mean that the superior court exercised its discretion properly in

applying judicial estoppel. As noted above, the court was asked to

apply judicial estoppel on a summary judgment motion, and it could

not grant the motion if there were genuine issues of material fact.

The evidence is not undisputed.

In an affidavit accompanying her opposition to the County’s

motion for summary judgment, Ward-Poag stated under penalty of

perjury that she had no intention to deceive the bankruptcy court as

to the existence of her case against the County, and that she was

unaware of her obligation to amend her bankruptcy schedule to

disclose her claims against the County.6 The County argues that we

6In addition to this affidavit filed before the hearing on the motion for summary judgment, Ward-Poag filed another affidavit after the hearing in which she made similar declarations, but the superior court was not required 21 should ignore Ward-Poag’s timely affidavit because her ignorance of

the law and reliance on her bankruptcy attorney’s representations

is immaterial to a judicial estoppel analysis. In making this

argument the County relies on pre-Slater cases, despite also arguing

that we should apply the Slater test, which counsels that all

circumstances and facts be considered in applying judicial estoppel,

and that nondisclosure alone is insufficient to establish actual

intent. See Smith, 940 F3d at 644 (III) (A) (1) (under pre-Slater

cases, “it was not necessary for the proponent of application of the

doctrine to show that the plaintiff had actual intent to deceive or

manipulate”). Ward-Poag’s statements, by themselves, created

genuine issues of material fact as to whether she had an intention

to deceive and manipulate the judicial system.

to consider this second affidavit. See Bush v. Eichholz, 352 Ga. App. 465, 477 (5) (833 SE2d 280) (2019) (“[A] trial court is not at all bound to consider evidence filed after a summary judgment hearing.”); Zampatti v. Tradebank Intl. Franchising Corp., 235 Ga. App. 333, 338 (2) (b) (508 SE2d 750) (1998) (trial court has discretion to decide whether or not it will consider late-filed affidavits for purposes of summary judgment). 22 In ruling that she did, the superior court not only ignored

Ward-Poag’s evidence, it also construed the facts and drew

inferences against Ward-Poag when it was required to do the exact

opposite. None of the evidence the superior court cited could support

its conclusion that Ward-Poag intended to deceive her creditors and

make a mockery of the judicial system without a negative inference.

First, the superior court cited Ward-Poag’s failure to timely amend

her bankruptcy claim and her valuation of her civil claim for $1 in

her amendment as proof of intentional deception. But although

Ward-Poag failed to timely amend and valued her claims

inconsistently, no evidence necessarily indicates that she did so for

the purpose of deceiving her creditors, particularly given her denial

of such intent. Such an inference could not be drawn at the summary

judgment stage, where the superior court could only draw inferences

favorable to Ward-Poag.

Second, the superior court found that because Ward-Poag was

a law school graduate and was represented by counsel, she was a

“sophisticated party” who knew of her duty to timely amend her

23 bankruptcy schedule and value her claims consistently in the civil

and bankruptcy proceedings. Again, the superior court could reach

such a conclusion only by drawing an inference unfavorable to Ward-

Poag. Just because Ward-Poag had attended law school and was

represented by counsel did not necessarily mean that she knew her

obligations in her bankruptcy case. The mere fact that an individual

has a law degree does not support an inference that she understands

federal bankruptcy law. See Smith, 940 F3d at 645 (III) (A) (1) (the

fact that the plaintiff was a legal assistant at an employment law

firm did not constitute evidence of her familiarity with Fair Labor

Standards Act or Internal Revenue Service regulations). Also, the

mere fact that she was represented by counsel does not establish as

undisputed fact that her bankruptcy attorney communicated

accurate information to her regarding her obligations. Id. at 646 (III)

(A) (1) (mere fact of representation did not support conclusion that

plaintiff knew of obligation to disclose claim: “[p]erhaps her

24 bankruptcy lawyer advised her of the obligation, but there is nothing

in the record suggesting that”).7

When viewed in the light most favorable to Ward-Poag, the

undisputed facts do not warrant application of judicial estoppel

because they do not show that Ward-Poag intended to deceive her

creditors or the courts. Judicial estoppel “should not be applied when

the inconsistent positions were the result of inadvertence or

mistake.” Smith, 940 F3d at 643 (III) (A) (citations and punctuation

omitted). As Slater makes clear, the intent of a party to deceive is a

key consideration (although not the sole consideration) in

determining whether to apply judicial estoppel. But questions like

intent are only rarely appropriate to decide at summary judgment.

See, e.g., Fed. Ins. Co. v. Westside Supply Co., 264 Ga. App. 240, 243

(1) (590 SE2d 224) (2003) (“Except in plain and indisputable cases,

scienter in actions based on fraud is an issue of fact for jury

7 Ward-Poag’s bankruptcy counsel stated in his late-filed affidavit that he updated Ward-Poag’s bankruptcy petition and listed a “nominal value of $1.00” because it was a “normal and customary practice” since the true value of the civil action is unknown until there is some resolution to the case. 25 determination,” not an issue “that can be resolved on motion for

summary judgment.” (citation and punctuation omitted)); Quill v.

Newberry, 238 Ga. App. 184, 189 (1) (c) (518 SE2d 189) (1999)

(“[S]cienter is ‘peculiarly’ a jury issue; it deals with the choice of

what to believe regarding a subjective state of mind seldom capable

of direct proof” and, therefore, generally “has no place in summary

judgment, which is granted ‘only where the evidence is plain,

palpable and undisputable.’” (citation omitted)); see also Ajaka v.

BrooksAmerica Mtg. Corp., 453 F3d 1339, 1346 (11th Cir. 2006)

(evidence created material issue of fact as to whether the debtor

“had the motivation and intent to manipulate the judicial system

under the circumstances presented”).

This is not one of those rare cases where the evidence of intent

is plain and undisputed. There are genuine issues of material fact

as to whether Ward-Poag intended to deceive her creditors and

make a mockery of the judicial system by any inconsistent position

she may have taken. The superior court therefore erred in granting

26 summary judgment to the County on judicial estoppel grounds,8 and

we affirm the Court of Appeals’s reversal of the superior court’s

ruling (albeit for very different reasons than the Court of Appeals

gave).

(d) If the superior court reconsiders judicial estoppel on remand under the proper evidentiary framework, the superior court should apply the Slater test but also weigh other considerations.

Our decision today does not resolve the issue of judicial

estoppel definitively; it merely means that the issue is inappropriate

for summary judgment as the case presently stands. Given the

disputed issue of intent, the court would need to hold an evidentiary

8 The dissent’s conclusion to the contrary ignores two fundamental precepts. First, the trial court was authorized to grant the County’s motion for summary judgment only if there were no genuine issues of material fact when all inferences were drawn in Ward-Poag’s favor. But the dissent ⸺ as did the trial court ⸺ focuses on evidence that may support inferences against Ward- Poag; whether those inferences are supportable is not the question, because such inferences may not be drawn at summary judgment. Second, in concluding that Ward-Poag intended to deceive her creditors and make a mockery of the judicial system, the dissent relies on case law predating Slater. Under pre-Slater cases, there was no requirement that a plaintiff have actual intent to deceive or manipulate the judicial system, because nondisclosure alone was sufficient to trigger application of judicial estoppel. See Smith, 940 F3d at 644 (III) (A) (1). Slater made clear that actual intent cannot be inferred from nondisclosure alone, and although a subsequent inadequate amendment might support an inference of actual intent to deceive depending on all the other circumstances, such an inference cannot be drawn at summary judgment. 27 hearing to consider the credibility of Ward-Poag and her bankruptcy

counsel and resolve any conflicts in the evidence. See Smith, 940 F3d

at 644-645 (III) (A) (1) (because the trial court applied judicial

estoppel without the benefit of Slater, it “saw no need for an

evidentiary hearing to gauge [the plaintiff’s] credibility in person or

to otherwise resolve disputes of fact”); Lubke v. City of Arlington, 473

F3d 571, 571 (5th Cir. 2006) (remanding for trial court to consider

judicial estoppel and conduct evidentiary hearing if necessary);

Montrose Med. Group Participating Saving Plan v. Bulger, 243 F3d

773, 780 (II) n.5 (3d Cir. 2001) (noting that, although a district court

need not always conduct an evidentiary hearing before applying

judicial estoppel, an evidentiary hearing is sometimes necessary if

the determination regarding the plaintiff’s intent involves a

resolution of disputed facts); cf. K/C Ice, LLC v. Connell, 352 Ga.

App. 376, 378 (1) (835 SE2d 11) (2019) (“In deciding a motion for

summary judgment, neither the trial court nor [an appellate court]

can consider the credibility of witnesses; and a finder of fact must

resolve the question of credibility and the conflicts in the evidence

28 which it produces.” (citing Miller v. Douglas, 235 Ga. 222, 223 (219

SE2d 144) (1975)).

And if the superior court does so, the court should bear in mind

that the Slater test, although the appropriate test to use in cases

such as this one, is not the end of the analysis. Slater does require

consideration of whether an inconsistent position was “‘calculated to

make a mockery of the judicial system.’” Slater, 871 F3d at 1181 (III)

(A) (citation omitted). But applying judicial estoppel every time

failure to disclose is found to be intentional deception, without

considering other factors or interests implicated by its application,

may fail to do full equity depending on the facts and circumstances

of the case. With an equitable doctrine such as judicial estoppel,

bright-line rules can produce “at-least-inequitable results, if not

manifestly unjust ones” and thus are inappropriate for a “tool of

equity,” the goal of which is “to secure justice.” Smith v. Haynes &

Haynes P.C., 940 F3d 635, 644, 646 (III) (A) (1) (11th Cir. 2019).

29 (i) In balancing the equities, a trial court should consider whether the application of judicial estoppel will result in a windfall to the civil defendant with no benefit to the plaintiff’s creditors.

As the Eleventh Circuit recognized, “[t]he results of judicial

estoppel are drastic ⸺ a party is deprived of the right to pursue a

case regardless of the claim’s merits,” while the opposing party

“escapes potential accountability for wrongdoing without regard to

the merits of the claim.” Smith, 940 F3d at 646 (III) (A) (1).

Therefore, “equitable principles dictate that courts proceed with

care and consider all the relevant circumstances” to prevent civil

defendants from “avoid[ing] liability on an otherwise potentially

meritorious civil claim while providing no corresponding benefit to

the court system” and to avoid harming innocent creditors in a

bankruptcy action through dismissal of the debtor’s civil claim.

Slater, 871 F3d at 1187-1188 (III) (C) (emphasis supplied).

If a particular application of judicial estoppel would benefit

only alleged bad actors, such an outcome weighs heavily against

applying judicial estoppel. See Martineau v. Wier, 934 F3d 385, 396

(II) (B) (1) (4th Cir. 2019) (“We discern little in the way of equities

30 to recommend an outcome in which judicial estoppel operates to the

benefit of only an alleged bad actor.” (citation and punctuation

omitted)). Failure to consider all relevant circumstances can have

“perverse” results, where the only real winner is the defendant in

the civil litigation who “received the windfall of escaping liability”;

creditors and bankruptcy courts are the losers because creditors are

“denied the benefit of the claim as a bankruptcy estate asset” and

“bankruptcy courts [are] stripped of their discretion to determine the

effect of the failure to disclose.” Smith, 940 F3d at 644 (III) (A) (1).

A trial court must take care to avoid applying judicial estoppel

to rob a bankruptcy court of its power to deal with the failure to

disclose. Bankruptcy courts have “tools of [their] own” to punish

debtors who purposefully attempt to hide assets. Slater, 871 F3d at

1187 (III) (C). The record before us does not indicate that the

bankruptcy court took any action in response to Ward-Poag’s initial

failure to disclose, nor that it considered the $1 valuation of her civil

claim to be sufficiently egregious to warrant a response. That a

bankruptcy court elected not to address an inadequate disclosure

31 after its discovery is a factor to consider under Slater. See id. at 1185

(III) (C). If the superior court considered this factor here, it made no

mention of it in its order.

(ii) In cases involving alleged government misconduct, a trial court might also consider the public’s interest as an important equity against applying judicial estoppel.

In considering whether judicial estoppel benefits only a bad

actor, a trial court might consider, as a countervailing force, the

public’s interest in exposing potential government misconduct.

When determining whether to apply judicial estoppel, courts should

weigh the egregiousness of a litigant’s behavior (and the

corresponding interest in the integrity of the judicial process)

against other interests in government integrity when claims at issue

relate to that interest. Although there is a very serious interest in

protecting the integrity of court proceedings, the integrity of Georgia

government and its officials is no less important than the integrity

of federal bankruptcy court proceedings and the actions of private

litigants in them. Cf. Benton, 280 Ga. at 471 (“[A] court should be

hesitant to apply federal judicial estoppel to defeat the important

32 rights of a spouse to potential support and an equitable share of

marital property.”). The responsibility of private citizens to act with

integrity in federal bankruptcy proceedings should not be prioritized

over the responsibility of officials of Georgia’s state and local

government to act with integrity in doing the public’s business.

Where, as here, the underlying civil case involves allegations of

government abuse, at the very least, a trial court ought to consider

and weigh the countervailing state interest in the integrity and

accountability of local government and the windfall for alleged

government bad actors before applying judicial estoppel, including

the potential disservice to taxpayers if the merits of the claim are

never touched. To do otherwise is to value the integrity of judicial

proceedings as infinitely more important than the integrity of the

executive and legislative branches of state and local government. 9

9 The special concurrence itself acknowledges a powerful public interest in litigating meritorious or even colorable claims of government misconduct. Despite this recognition, the special concurrence says that no weight should be afforded to protect this interest because there is also a strong public interest in quickly disposing of meritless claims of government corruption. Of course, judicial estoppel does not involve weighing the merits. See Smith, 940 F3d at 646 (III) (A) (1). A trial court may consider whether continued litigation of a claim involving government integrity, such as the one here, would be in the 33 Judgment affirmed. All the Justices concur, except Nahmias, P. J., and Blackwell and Warren, JJ., who join in full except for Division 2 (d) (ii), Melton, C.J., and McMillian, J., who dissent, and Ellington, J., disqualified.

public interest and exercise its discretion in weighing that factor in comparison to the other equities at stake. Nothing in this opinion should be understood to suggest what weight the trial court should afford that factor. That decision is for the trial court, not this Court. 34 BLACKWELL, Justice, concurring specially.

I concur fully in the judgment, and with the exception of

Division 2 (d) (ii), I join the opinion of the Court. I cannot join

Division 2 (d) (ii), however, because I do not agree that “the public’s

interest in exposing potential government misconduct” should be

afforded any weight in the balancing of the equities in this case with

respect to judicial estoppel. Although there may be a powerful public

interest in the litigation of meritorious or even colorable claims of

government misconduct, there also is a strong public interest, I

think, in the expeditious termination of meritless litigation against

the government and its officers. Bare, unproved allegations of

government misconduct hardly establish that the public has any

interest at all in the continued litigation of this case.

35 MELTON, Chief Justice, dissenting.

Pursuant to the two-factor test set forth in Slater v. United

States Steel Corp., 871 F3d 1174, 1181 (III) (A) (11th Cir. 2017) (en

banc), the trial court properly concluded that Ward-Poag acted with

the intent to make a mockery of the judicial system through her

inconsistent filings. The majority misses this point by focusing on

immaterial facts and hypothetical scenarios that ultimately do

nothing to undermine the correctness of the trial court’s decision to

grant summary judgment to the County on the issue of judicial

estoppel. Accordingly, I respectfully dissent.

As an initial matter, the undisputed evidence showed that

Ward-Poag maintained inconsistent positions under oath in

separate proceedings by swearing in superior court that her civil

cause of action was worth over $3 million while at the same time

swearing without qualification in the bankruptcy court that this

same cause of action was actually worth only $1. See Dugger v.

Smith & Nephew, Inc., 2013 U.S. Dist. LEXIS 191729, at *5 (II) (B)

(N.D. Ga. 2013) (plaintiffs took inconsistent positions by

36 representing under oath in bankruptcy court that their pending civil

case was worth $30,690 while claiming damages that were

“certainly greater than $75,000” in their civil complaint)

(punctuation omitted). Thus, the first Slater factor was met in this

case. Slater, supra, 871 F3d at 1181 (III) (A) (The first of the two

Slater factors is “whether . . . the party took an inconsistent position

under oath in a separate proceeding.”).

This leaves only the second Slater factor — whether Ward-

Poag’s inconsistent positions were calculated to make a mockery of

the judicial system — as the salient consideration for purposes of

summary judgment here. And, with respect to that second factor:

[T]o determine whether a plaintiff’s inconsistent statements were calculated to make a mockery of the judicial system, a court should look to all the facts and circumstances of the particular case. When the plaintiff’s inconsistent statement comes in the form of an omission in bankruptcy disclosures, the court may consider such factors as the plaintiff’s level of sophistication, whether and under what circumstances the plaintiff corrected the disclosures, whether the plaintiff told his bankruptcy attorney about the civil claims before filing the bankruptcy disclosures, whether the trustee or creditors were aware of the civil lawsuit or claims before the plaintiff amended the disclosures, whether the plaintiff

37 identified other lawsuits to which he was party, and any findings or actions by the bankruptcy court after the omission was discovered.

Id. at 1185 (III) (C). The trial court examined the facts and

circumstances relating to Ward-Poag’s intent to make a mockery of

the judicial system consistent with the parameters set forth in

Slater, but the majority asserts that material issues of fact exist

regarding Ward-Poag’s intent because she was initially unaware of

her need to amend her bankruptcy schedules to include her civil

claim. However, the problem with the majority’s analysis is that it

focuses on the lack of intent to make a mockery of the bankruptcy

court that Ward-Poag had before she became aware of her obligation

to update her bankruptcy schedules. This has nothing to do with

Ward-Poag’s manifested intent to make a mockery of the court after

she received the County’s motion for summary judgment that fully

informed her of the doctrine of judicial estoppel and its implications,

and which fully informed her of her obligation to amend her

bankruptcy schedules accordingly. As explained more fully below,

the trial court properly examined the undisputed evidence under the

38 second Slater factor to conclude that Ward-Poag intended to make a

mockery of the judicial system through her inconsistent filings after

she became aware of her obligation to update her bankruptcy

schedules.

The undisputed facts at the time of the October 17, 2017

summary judgment hearing were as follows. Ward-Poag — a law

school graduate — was a sophisticated plaintiff.10 Although Ward-

Poag conceivably was initially unaware of her obligation to update

her bankruptcy schedules to reveal her civil claim, she was placed

on clear notice of her obligation to do so by the County’s motion for

10 There is no requirement under Slater that a sophisticated plaintiff understand bankruptcy law in order to show an intent to make a mockery of the judicial system through inconsistent filings. A sophisticated person need not be a lawyer or know the law in order to show a calculated lack of candor in his or her court disclosures. The plaintiff’s level of sophistication is but one of the considerations that can help to reveal a party’s individual ability to consciously manipulate the system (or know better than to attempt to do so). The majority’s attempt to downplay Ward-Poag’s own level of sophistication simply because she is not a bankruptcy attorney — especially when she was a law school graduate who had the good sense to hire private counsel in her bankruptcy case — is unpersuasive. This is particularly true given the well written motion for summary judgment by the County that thoroughly and clearly laid out the facts and the law on judicial estoppel and that put Ward- Poag on notice of her obligation to amend her schedules. 39 summary judgment. As stated in the County’s statement of

undisputed material facts in support of its motion:

In her Chapter 13 Petition, Plaintiff Ward-Poag was required to identify under oath all liabilities and assets, including any contingent or unliquidated claims of any nature . . . . As part of her schedules of specific assets — specifically, the “Schedule B — Personal Property” section of her Chapter 13 Petition — Plaintiff Ward-Poag was required to list “[o]ther contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims.” See id. at 16. Plaintiff marked “None” and listed no claims against Fulton County. Id. She signed her Chapter 13 Petition on May 6, 2013, declaring that “under penalty of perjury that the information provided in this petition is true and correct.” See id. at 3.

...

Plaintiff Ward-Poag’s complaint against Fulton County, filed in October 2016, is based on actions allegedly commencing in September 2015. Plaintiff Ward-Poag claims that Fulton County’s alleged conduct entitles her to $3 million ($1.5 million for the [whistleblower] count and $1.5 million for the defamation count). (Am. Compl. p. 18.) Despite her knowledge of claimed potential assets totaling $3 million, Plaintiff Ward-Poag has not sought to amend her ongoing Chapter 13 plan to include her claims against Fulton County.

After the County’s motion placed Ward-Poag on notice of her

duty to update her bankruptcy schedules, Ward-Poag responded by

40 acknowledging that she had filed for Chapter 13 bankruptcy, but

then claimed under oath in her October 4, 2017 affidavit in

opposition to the County’s motion that she had only been made

“aware of her obligation to [amend her bankruptcy petition] by [her]

counsel,” which then prompted her to “immediately amend[ ] her

bankruptcy petition.” Ward-Poag’s claim that it was her counsel,

and not the County’s motion, that made her “aware” of her obligation

to amend her bankruptcy schedule does not place in dispute the

material fact that she knew of her obligation to amend her schedules

through the County’s filing of its summary judgment motion. And,

in any event, it is also undisputed that Ward-Poag waited until a

month after the County had already moved for summary judgment

before she “immediately amended” her bankruptcy schedules to

reveal her civil lawsuit (regardless of whenever she was made

“aware” of that obligation “by [her] counsel”).

Then, instead of amending her bankruptcy schedule to reflect

anything resembling the value that she swore the case had in

superior court, Ward-Poag instead represented under oath — with

41 an attorney acting on her behalf — that the asset was worth only $1.

By doing so, she created the potential to gain an unfair advantage

over her creditors in the bankruptcy proceedings. See, e.g.,

Zahabiuon v. Automotive Finance Corp., 281 Ga. App. 55, 57 (1) (635

SE2d 342) (2006) (plaintiff’s representation to bankruptcy trustee

that he had no outstanding legal claims contradicted the legal

position taken in his lawsuit, and the bankruptcy trustee accepted

these representations as true for purposes of discharging him, which

allowed the plaintiff to realize gains that were inaccessible to his

creditors). Thus, even though Ward-Poag might not have initially

known about her obligation to amend her bankruptcy schedules,

once she did become aware of her obligation to disclose her cause of

action as an asset, she nevertheless waited an additional month

before amending her schedules and then chose — under penalty of

perjury — to undervalue the asset in her bankruptcy proceedings by

affirmatively swearing that the $3 million lawsuit was worth $1.

Based on the undisputed evidence regarding Ward-Poag’s level

of sophistication, the timing of her disclosures after she had been

42 placed on notice about her duty to amend, the lack of evidence

showing that the bankruptcy trustee or Ward-Poag’s creditors were

aware of her civil lawsuit before she amended her disclosures,11 and

the manner in which she chose to amend her bankruptcy schedules

to represent to the bankruptcy court and her creditors that her

lawsuit was worth only $1, the trial court properly concluded —

under the totality of the facts and circumstances before it as

evaluated pursuant to Slater — that Ward-Poag “intended to deceive

her creditors, and . . . made a mockery of both [the superior] Court

and the Bankruptcy Court” by making an inaccurate and untimely

disclosure to the bankruptcy court after being placed on notice by

the County of the importance of revealing her civil cause of action as

an asset. See, e.g., D’Antignac v. Deere & Co., 342 Ga. App. 771, 774-

776 (804 SE2d 688) (2017) (where plaintiff failed to disclose civil

action that arose after her Chapter 13 bankruptcy had been

confirmed but before she was discharged, judicial estoppel properly

11 There is no evidence that the bankruptcy trustee or Ward-Poag’s creditors were aware of her civil lawsuit before she amended her disclosures to reveal it a month after the County moved for summary judgment. 43 applied to bar plaintiff’s civil claims). See also Dugger, supra, 2013

U.S. Dist. LEXIS 191729 at *5 (II) (B). The fact that the bankruptcy

court did not take action against Ward-Poag after she amended her

bankruptcy schedules does not preclude the trial court from

concluding under the totality of the circumstances that Ward-Poag

made an intentional effort to make a mockery of the judicial system

through her inaccurate and untimely filing, as the bankruptcy

court’s decision about whether or not to take additional action is only

one of the circumstances that a trial court can examine under the

second Slater factor.

Only after the trial court announced at the October 17 hearing

that it was granting the County’s motion for summary judgment did

Ward-Poag submit an untimely affidavit in which she blamed her

attorney for her sworn, inconsistent representation to the

bankruptcy court about the value of her civil lawsuit. Her

bankruptcy attorney also submitted an untimely affidavit in which

he claimed that it was a “normal and customary practice” to

represent to a bankruptcy court that a pending civil lawsuit was

44 worth $1. However, the trial court did not indicate that it considered,

nor was it required to consider, either of these late-filed affidavits

when making its summary judgment ruling based on the facts that

were properly before it. See Bush v. Eichholz, 352 Ga. App. 465, 477

(5) (833 SE2d 280) (2019) (“[A] trial court is not at all bound to

consider evidence filed after a summary judgment hearing.”);

Zampatti v. Tradebank Intl. Franchising Corp., 235 Ga. App. 333,

338 (2) (b) (508 SE2d 750) (1998) (trial court has discretion to decide

whether or not it will consider late-filed affidavits for purposes of

summary judgment). See also OCGA § 9-11-56 (c) (party opposing

summary judgment may serve opposing affidavits “prior to the day

of [the scheduled summary judgment] hearing”). And, based on the

undisputed evidence as analyzed under the Slater factors, the trial

court did not abuse its discretion in concluding that the County was

entitled to summary judgment.

The majority’s reliance on Ward-Poag’s representation that she

had no intention of “deceiving” the bankruptcy court before she

learned of her obligation to amend is misplaced. First, Slater does

45 not evaluate a party’s “calculated [effort] to make a mockery of the

judicial system,” id. at 1185 (III) (C), from some point in time prior

to the moment that the party’s calculated efforts arose. Second,

under the majority’s analysis, a party with a present intent to make

a mockery of the judicial system would always be able to avoid

summary judgment on judicial estoppel by simply claiming that she

had no intention of deceiving the court before she knew that she had

to amend her bankruptcy schedules. Indeed, rarely would someone

“admit” to having a present intent to make a mockery of the court,

even if that party had one. But allowing a party to use their past

lack of intent to manipulate the court as a means of negating

undisputed evidence of their present intent to do so would

undermine the entire “purpose of judicial estoppel[, which] is to

protect the integrity of the judicial process by prohibiting parties

from deliberately changing positions according to the exigencies of

the moment.” Period Homes v. Wallick, 275 Ga. 486, 488 (2) (569

SE2d 502) (2002). That is why the trial court is tasked with

evaluating intent based on the totality of the circumstances as

46 outlined in Slater, and that is exactly what the trial court did here.

The majority would undermine the trial court’s proper findings

pursuant to Slater by focusing on immaterial facts that do not speak

to a potential bad actor’s true intent.

I also do not believe that we can assume, as the majority does,

that the trial court did not consider the equities associated with the

type of lawsuit that was pending before it at the time that it made

its decision on judicial estoppel. The trial court expressly applied

Slater and focused on “all the facts and circumstances of the . . .

case.” Slater, supra, 871 F3d at 1185 (III) (C). And it is clear that the

trial court was well aware of the allegations in Ward-Poag’s verified

complaint, as the trial court’s order specifically references some of

the substantive allegations of workplace retaliation by a county

commissioner against Ward-Poag. It is also the case, however, that

Ward-Poag’s claims are still unproven, and, again, the salient issue

in this case is whether Ward-Poag exhibited the requisite intent to

make a mockery of the judicial system through her inconsistent

filings. The trial court evaluated that intent based on the facts

47 before it consistent with the parameters set forth in Slater, and the

majority’s reference to other facts that it would have liked for the

trial court to have discussed with specificity does not make the trial

court’s evaluation incorrect.

In any event, the public’s interest in hearing the merits of

Ward-Poag’s allegations has little to do with Ward-Poag’s conduct in

taking inconsistent positions in separate court proceedings that

would make a mockery of the judicial system. While equitable

considerations are always relevant to a trial court’s exercise of its

discretion in applying judicial estoppel, see, e.g., Benton v. Benton,

280 Ga. 468, 471 (629 SE2d 204) (2006) (trial court did not abuse its

discretion in refusing to apply judicial estoppel where doctrine

would have “defeat[ed] the important rights of a spouse to potential

support and an equitable share of marital property”), Ward-Poag

does not somehow become less likely to have intended to make a

mockery of the judicial system — nor does she gain greater leeway

with respect to her duty to maintain consistent positions to avoid

the consequences of judicial estoppel — based upon whom she has

48 decided to sue in a civil action and the public’s interest in hearing

the merits of that action. The trial court properly considered intent

under the undisputed facts and circumstances of this case for

purposes of summary judgment and did not abuse its discretion in

applying judicial estoppel as an equitable remedy based on the

standard set forth in Slater.

For all of the foregoing reasons, I respectfully dissent.

I am authorized to state that Justice McMillian joins in this

dissent.

Decided October 5, 2020 —Reconsideration denied November 2,

2020.

Certiorari to the Court of Appeals of Georgia — 351 Ga. App. 325. Lawrence & Bundy, Allegra J. Lawrence, Leslie J. Bryan, Maia J. Cogen, Lisa M. Haldar; Kaye W. Burwell, for appellant. Rebecca W. McLaws, for appellee. Ellis Painter Ratterree & Adams, Philip M. Thompson; Chambless, Higdon, Richardson, Katz & Griggs, David N. Nelson; Drew, Eckl & Farnham, Elissa B. Haynes; Balch & Bingham, Malissa A. Kaufold-Wiggins, amici curiae.