Johnson v. Trust Co. Bank

Court of Appeals of Georgia

Johnson v. Trust Co. Bank

478 S.E.2d 629, 223 Ga. App. 650, 96 Fulton County D. Rep. 4153, 1996 Ga. App. LEXIS 1255

CourtCourt of Appeals of Georgia

DecidedNovember 22, 1996

DocketA96A1004

StatusPublished

Cited by45 cases

This text of 478 S.E.2d 629 (Johnson v. Trust Co. Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Trust Co. Bank, 478 S.E.2d 629, 223 Ga. App. 650, 96 Fulton County D. Rep. 4153, 1996 Ga. App. LEXIS 1255 (Ga. Ct. App. 1996).

Pincite

Opinions

. POPE, Presiding Judge.

On July 18, 1993, plaintiff James Johnson was shot at an ATM owned by defendant Trust Company Bank. Four months later, he filed for Chapter 7 bankruptcy, but in doing so failed to list any claim [651]*651he might have against defendant as a potential asset of his bankruptcy estate. Subsequently, the bankruptcy court discharged plaintiffs debts and closed his case. Thereafter, plaintiff filed the present tort action against defendant. Defendant moved for summary judgment on the ground that plaintiffs action was barred by the doctrine of judicial estoppel because plaintiff had failed to schedule his potential tort claim against defendant with the bankruptcy court. The trial court agreed and granted defendant’s motion. Concluding that the trial court erred, we reverse.

“[T]he 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.” (Citation and punctuation omitted.) Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994). “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.) Original Appalachian Artworks v. S. Diamond Assoc., 44 F3d 925, 929-930 (11th Cir. 1995); see McKinnon v. Blue Cross &c. of Alabama, 935 F2d 1187, 1192 [8] (11th Cir. 1991).

In the instant case, although it is undisputed that plaintiff made the initial mistake of failing to schedule any tort claim he might have against defendant as a potential asset, there is unrefuted evidence in the record that plaintiff had given information concerning any such claim to his attorney and the bankruptcy trustee. Plaintiff also specifically referred to the potential claim in the Statement of Financial Affairs he filed with the bankruptcy court. And, unlike the plaintiffs in those cases cited by the dissent in support of its determination that the doctrine of judicial estoppel is applicable, when plaintiff in the instant case became aware that his potential claim against Trust Company had not been scheduled, he sought and was granted permission from the bankruptcy court to reopen his bankruptcy case and amend his schedules to include the claim. Under such circumstances, it cannot be said as a matter of law that plaintiff intentionally attempted to manipulate and deceive the court system, or that he was attempting to make a mockery of the system through inconsistent pleading.

Furthermore, because plaintiff successfully has amended his bankruptcy petition to include any claim against defendant as a potential asset, he clearly has gained no unfair advantage in bankruptcy court. Any recovery he obtains from defendant will inure to the benefit of plaintiff’s bankruptcy estate, and in turn, to the credi[652]*652tors who asserted claims to the estate’s assets. Due to the bankruptcy court’s decision to reopen the Chapter 7 case and its acceptance of the amendment to the schedules plaintiff filed with that court, it also cannot be said that plaintiff’s present position in the trial court is “inconsistent with one successfully and unequivocally asserted by [him] in a prior proceeding.” (Citation, indentation and emphasis omitted.) Pittman v. Massachusetts Mut. Life Ins. Co., 904 FSupp. 1384, 1386-1387 [3, 4] (S.D. Ga. 1995). By necessity, plaintiff’s amended bankruptcy petition and the fact that his bankruptcy case was reopened so as to allow creditors to pursue any claims they might have, negates any conclusion to the contrary. Accordingly, the trial court erred in applying the doctrine of judicial estoppel to bar plaintiff’s tort action against defendant.

Judgment reversed.

Beasley, C. J., McMurray, P. J., Blackburn and Ruffin, JJ., concur. Andrews, Johnson and Smith, JJ., dissent. Birdsong, P. J., disqualified.

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. POPE, Presiding Judge.

On July 18, 1993, plaintiff James Johnson was shot at an ATM owned by defendant Trust Company Bank. Four months later, he filed for Chapter 7 bankruptcy, but in doing so failed to list any claim [651]*651he might have against defendant as a potential asset of his bankruptcy estate. Subsequently, the bankruptcy court discharged plaintiffs debts and closed his case. Thereafter, plaintiff filed the present tort action against defendant. Defendant moved for summary judgment on the ground that plaintiffs action was barred by the doctrine of judicial estoppel because plaintiff had failed to schedule his potential tort claim against defendant with the bankruptcy court. The trial court agreed and granted defendant’s motion. Concluding that the trial court erred, we reverse.

“[T]he 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.” (Citation and punctuation omitted.) Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994). “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.) Original Appalachian Artworks v. S. Diamond Assoc., 44 F3d 925, 929-930 (11th Cir. 1995); see McKinnon v. Blue Cross &c. of Alabama, 935 F2d 1187, 1192 [8] (11th Cir. 1991).

In the instant case, although it is undisputed that plaintiff made the initial mistake of failing to schedule any tort claim he might have against defendant as a potential asset, there is unrefuted evidence in the record that plaintiff had given information concerning any such claim to his attorney and the bankruptcy trustee. Plaintiff also specifically referred to the potential claim in the Statement of Financial Affairs he filed with the bankruptcy court. And, unlike the plaintiffs in those cases cited by the dissent in support of its determination that the doctrine of judicial estoppel is applicable, when plaintiff in the instant case became aware that his potential claim against Trust Company had not been scheduled, he sought and was granted permission from the bankruptcy court to reopen his bankruptcy case and amend his schedules to include the claim. Under such circumstances, it cannot be said as a matter of law that plaintiff intentionally attempted to manipulate and deceive the court system, or that he was attempting to make a mockery of the system through inconsistent pleading.

Furthermore, because plaintiff successfully has amended his bankruptcy petition to include any claim against defendant as a potential asset, he clearly has gained no unfair advantage in bankruptcy court. Any recovery he obtains from defendant will inure to the benefit of plaintiff’s bankruptcy estate, and in turn, to the credi[652]*652tors who asserted claims to the estate’s assets. Due to the bankruptcy court’s decision to reopen the Chapter 7 case and its acceptance of the amendment to the schedules plaintiff filed with that court, it also cannot be said that plaintiff’s present position in the trial court is “inconsistent with one successfully and unequivocally asserted by [him] in a prior proceeding.” (Citation, indentation and emphasis omitted.) Pittman v. Massachusetts Mut. Life Ins. Co., 904 FSupp. 1384, 1386-1387 [3, 4] (S.D. Ga. 1995). By necessity, plaintiff’s amended bankruptcy petition and the fact that his bankruptcy case was reopened so as to allow creditors to pursue any claims they might have, negates any conclusion to the contrary. Accordingly, the trial court erred in applying the doctrine of judicial estoppel to bar plaintiff’s tort action against defendant.

Judgment reversed.

Beasley, C. J., McMurray, P. J., Blackburn and Ruffin, JJ., concur. Andrews, Johnson and Smith, JJ., dissent. Birdsong, P. J., disqualified.

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478 S.E.2d 629, 223 Ga. App. 650, 96 Fulton County D. Rep. 4153, 1996 Ga. App. LEXIS 1255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-trust-co-bank-gactapp-1996.

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