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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-10842
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-21874-KMM
CUTHBERT HAREWOOD,
Plaintiff - Appellant,
versus
MIAMI-DADE COUNTY,
JOHN ALEXANDER,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(July 3, 2019)
Before MARCUS, ROSENBAUM and JILL PRYOR, Circuit Judges.
PER CURIAM:
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Cuthbert Harewood appeals the district court’s order granting John
Alexander summary judgment on judicial estoppel grounds. Harewood brought
this action against Officer Alexander and Miami-Dade County, alleging claims
under
42 U.S.C. § 1983 for excessive force, false arrest, and retaliation, arising
from Alexander’s deployment of his taser to subdue Harewood. The district court
ruled that the equitable doctrine of judicial estoppel barred Harewood’s claims
based on his failure to disclose them as assets in Chapter 13 bankruptcy
proceedings filed prior to the filing of this lawsuit. The district court found that by
omitting the claims when he amended his bankruptcy disclosures, Harewood
intended to make a mockery of the judicial system. On appeal, Harewood argues
that in making this finding the district court erred by failing to consider facts in the
record and by identifying inconsistencies in the record where none existed. After
careful review, we conclude that the district court committed no abuse of
discretion. We therefore affirm.
I. BACKGROUND
In July 2013, Harewood was standing near real property he owned when his
common-law wife, Myrlie Coleman, arrived in her vehicle. Harewood approached
the driver’s side window and began speaking with Coleman. Alexander, an officer
in the Miami-Dade Police Department, then pulled behind the vehicle and
instructed Harewood to step away. Harewood retreated as instructed while he and
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Alexander exchanged words. Alexander then forced Harewood to the ground and
tased him three times.
Harewood sued Alexander and Miami-Dade County in Florida state court in
April 2015. The operative complaint, Harewood’s second amended complaint,
alleged several claims under § 1983 based on Alexander’s allegedly unjustified and
excessive taser use. Miami-Dade removed the action to federal district court and
then filed a motion to dismiss. The district court granted the motion and dismissed
without prejudice all claims brought against Miami-Dade County. 1 Alexander
answered the complaint, and the claims against him proceeded to discovery.
After discovery, Alexander moved for summary judgment on the sole
ground that judicial estoppel barred Harewood’s claims based on Harewood’s
failure to disclose them as contingent assets in two bankruptcy proceedings filed
before Harewood’s § 1983 lawsuit was filed. Harewood filed a voluntary petition
for Chapter 13 bankruptcy in January 2013 and another one in 2014. The first
petition was filed before the tasing incident; the second was filed after. When
asked in each petition under penalty of perjury in “Schedule B-Personal Property”
to identify any “contingent and unliquidated claims,” he answered “none.”
Schedule B - Personal Property, In re Harewood, No. 14-28291-AJC (Bankr. S.D.
1
Harewood does not appeal the district court’s dismissal of the claims brought against
Miami-Dade.
3
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Fla. Sept. 11, 2014), ECF No. 15; Schedule B - Personal Property, In re Harewood,
No. 13-10890-AJC (Bankr. S.D. Fla. May 14, 2013), ECF No. 17. When he filed
amended schedules in each proceeding in August 2013 and March 2015,
respectively, he similarly failed to disclose the § 1983 claims. Schedule B -
Personal Property, In re Harewood, No. 13-10890-AJC (Bankr. S.D. Fla. August
15, 2013), ECF No. 69; see Amended Summary of Schedules, In re Harewood,
No. 14-28291-AJC (Bankr. S.D. Fla. Mar. 11, 2015), ECF No. 45 (omitting an
amended Schedule B). Harewood did, however, disclose in his bankruptcy filings
several lawsuits against him that sought to collect money judgments against him.
Harewood’s 2013 bankruptcy was dismissed in November 2013. His 2014
bankruptcy was confirmed in April 2015 but then dismissed in November 2015.
In response to Alexander’s summary judgment motion, Harewood argued
that he had informed his bankruptcy attorney, Alberto Cardet, of his claims against
Alexander and Miami-Dade. Harewood testified by affidavit that, by late 2014,
“Cardet had . . . assured [him] that [his] potential civil rights lawsuit . . . had no
bearing on the bankruptcy case.” Doc. 89-3 at 5.2 Along with his response,
Harewood filed a motion pursuant to Federal Rule of Civil Procedure 56(d),
requesting that the district court defer its ruling on Alexander’s summary judgment
motion until after Cardet could be deposed. In support of the Rule 56(d) motion,
2
“Doc #” refers to the numbered entry on the district court’s docket.
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Harewood’s present attorney, Hilton Napoleon, II, filed an affidavit describing
Napoleon’s efforts to secure an affidavit from Cardet and a conversation between
the two attorneys. As relevant here, Napoleon testified that Cardet told him that
Harewood had informed Cardet about the lawsuit but Cardet had declined to
amend the bankruptcy disclosures. According to Napoleon, Cardet said he had
believed at the time that Harewood had no need to disclose the § 1983 claims
because Harewood’s bankruptcy was a Chapter 13, the bankruptcy plan required
Harewood to pay his creditors 100% of what he owed them, and there were
sufficient assets to cover the liabilities.
The district court agreed with Alexander and ruled that judicial estoppel
barred Harewood’s claims. Based on its judicial estoppel ruling, the district court
granted Alexander summary judgment. The court denied as moot Harewood’s
Rule 56(d) motion.
This is Harewood’s appeal.
II. STANDARDS OF REVIEW
This Court reviews a district court’s application of judicial estoppel for
abuse of discretion and its factual findings for clear error. Robinson v. Tyson
Foods, Inc.,
595 F.3d 1269, 1273 (11th Cir. 2010). A district court may abuse its
discretion in three ways: (1) by failing to consider a relevant factor to which it
should have afforded significant weight, (2) by considering an irrelevant or
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improper factor and giving it significant weight, or (3) by committing a “clear error
of judgment” in weighing the proper factors. Ameritas Variable Life Ins. Co. v.
Roach,
411 F.3d 1328, 1330 (11th Cir. 2005). A district court’s factual finding is
clearly erroneous when the evidentiary record, viewed in its entirety, leaves the
reviewing court with “a definite and firm conviction that a mistake has been
committed,” even though the record may contain evidence to support the finding.
Robinson,
595 F.3d at 1275.
III. DISCUSSION
Harewood appeals the district court’s ruling that judicial estoppel barred his
claims against Alexander. Judicial estoppel is an equitable doctrine “intended to
prevent the perversion of the judicial process and protect its integrity by
prohibiting parties from deliberately changing positions according to the
exigencies of the moment.” Slater v. U.S. Steel Corp.,
871 F.3d 1174, 1180 (11th
Cir. 2017) (en banc) (alterations adopted) (internal quotation marks omitted). A
district court should not apply judicial estoppel “when the inconsistent positions
were the result of inadvertence or mistake because judicial estoppel looks towards
cold manipulation and not an unthinking or confused blunder.”
Id. at 1181
(alteration adopted) (internal quotation marks omitted).
This circuit applies a two-part test to guide district courts in exercising their
discretion to apply judicial estoppel: “whether (1) the party took an inconsistent
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position under oath in a separate proceeding, and (2) these inconsistent positions
were calculated to make a mockery of the judicial system.”
Id. (internal quotation
marks omitted). The first prong is satisfied when a debtor has “fail[ed] to list a
pending civil claim as an asset in a bankruptcy proceeding.” Weakley v. Eagle
Logistics,
894 F.3d 1244, 1245-46 (11th Cir. 2018), cert. denied,
139 S. Ct. 836
(2019). This prong may also be satisfied when a debtor has failed to amend her
bankruptcy filings to disclose claims that arose while the bankruptcy remained
pending. See Ajaka v. Brooksamerica Mortg. Corp.,
453 F.3d 1339, 1344 (11th
Cir. 2006) (explaining that a debtor’s duty to disclose extends to all potential
assets). Only the test’s second prong is at issue in this appeal because Harewood
does not challenge the district court’s determination that he took an inconsistent
position under oath in a separate proceeding.
Regarding the second prong, in Slater v. U.S. Steel Corp., we articulated
several factors that a court may consider when, as here, it is “determining whether
a plaintiff who failed to disclose a civil lawsuit in bankruptcy filings intended to
make a mockery of the judicial system.” 871 F.3d at 1176-77. These factors
include but are not limited to the following:
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
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was party, and any findings or actions by the bankruptcy court after
the omission was discovered.
Id. at 1185 & n.9. In applying these factors, the district court is not required to
accept as true the plaintiff’s own denial of his intent to make a mockery of the
judicial system. Id. at 1186 n.12. The court must “consider the entire record,”
Weakley, 894 F.3d at 1247, and may infer from that record the party’s intent,
Robinson,
595 F.3d at 1275. Such an inference “is considered a factual finding by
the court and held to a clearly erroneous standard.”
Id.
Here, the district court considered at least three Slater factors: (1)
Harewood’s level of sophistication, (2) whether he told his bankruptcy attorney
about the civil claims before filing or amending the bankruptcy disclosures, and (3)
whether he identified in the bankruptcy proceeding other lawsuits to which he was
a party. As to the first factor, the district court determined that Harewood’s
testimony about his level of sophistication was inconsistent. The court focused its
analysis of Harewood’s sophistication on his role in operating his and Coleman’s
real estate business, which rented properties owned by the couple to residential and
commercial tenants. The court explained that, on the one hand, Harewood
appeared to be sophisticated based on his deposition testimony explaining the
methods he used to purchase the various properties, but, on the other hand, he did
not appear to be sophisticated based on his assertion that Coleman managed their
real estate portfolio and he performed only trivial maintenance on the properties.
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The district court determined that, “[a]lthough the record does support
[Harewood]’s contention that he was not involved in all aspects of managing the
properties he owns, [his] testimony on the matter does not support his argument
that he only performed trivial maintenance on the properties.” Doc. 112 at 7.
Applying the second factor, the district court identified inconsistencies in
Harewood’s testimony about whether he told Cardet, his bankruptcy attorney,
about his claims against Alexander and Miami-Dade. Specifically, the court found
that two statements in Harewood’s testimony were inconsistent: (1) his statement
that Cardet never explained that his claims against Alexander and Miami-Dade
were “contingent, unliquidated” claims subject to disclosure on Schedule B, and
(2) his statement that he told Cardet about the claims. The court explained that it
therefore gave little weight to Harewood’s testimony. The court did not discuss
Napoleon’s affidavit testimony on this issue.
On the third factor, the district court found that in the 2013 and 2014
bankruptcy proceedings Harewood had identified several other civil lawsuits
against him. The court further found that Harewood understood his ongoing
obligation to amend the bankruptcy disclosures, as evidenced by the fact that he
once amended them to disclose yet another lawsuit in which he was a defendant.
According to the district court, “[o]ne commonality shared between the lawsuits
[Harewood] disclosed in the bankruptcy proceedings is that they dealt with [his]
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liabilities—not assets.” Doc. 112 at 9. The district court explained that “[t]he
conclusions drawn from these facts weigh[ed] heavily in favor of judicial
estoppel.”
Id.
Based on its findings on these factors, the district court determined that
judicial estoppel was appropriate because Harewood “intend[ed] to make a
mockery of the judicial system by attempting to shield potential assets from
bankruptcy proceedings, making inconsistent statements in th[e district] court and
the bankruptcy court, and . . . feigning ignorance and attempting to lay blame on
his bankruptcy counsel.” Id. at 9-10.
Harewood argues that the district court erred by: (a) failing to consider
record evidence militating against the conclusion that he intended to make a
mockery of the judicial system, including Napoleon’s affidavit testimony that
Cardet told Napoleon that Harewood informed Cardet of the potential lawsuit
against Alexander and Miami-Dade but Cardet made the decision not to disclose
the claims, and (b) finding inconsistencies and conflicts in the record where none
existed. Alexander responds that the district court committed no abuse of
discretion because it correctly applied the relevant factors and did not clearly err in
its factual findings. We agree with Alexander that Harewood has failed to show
that the district court’s ruling was an abuse of discretion. We explain why by
addressing each of Harewood’s arguments in turn below.
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A. Harewood Has Not Shown that the District Court Failed to Consider
the Entire Record.
Harewood argues that the district court committed reversible error by failing
to consider several facts supported by record evidence, which, if credited, would
have rebutted the inference that he intended to make a mockery of the judicial
system. 3 He argues that the district court failed to consider these facts because its
order failed to explicitly mention them. We disagree. It has long been the law of
this circuit that “‘[i]n the absence of some affirmative indication to the contrary,
we assume all courts base rulings upon a review of the entire record.’” Haynes v.
McCalla Raymer, LLC,
793 F.3d 1246, 1249 (11th Cir. 2015) (quoting Funchess v.
Wainwright,
772 F.2d 683, 694 (11th Cir. 1985)). Harewood has not raised in his
brief any indication that the district court failed to consider the entire record, other
than the court’s silence as to certain evidentiary materials. This is not enough to
overturn our assumption.
3
Specifically, Harewood argues that the following facts showed that he was
unsophisticated: during a 2011 bankruptcy where he proceeded pro se, he (a) failed to provide
all required documents, (b) mistakenly referred to a 2009 civil action to which he had been a
party as a bankruptcy case, (c) filed grammatically incorrect motions, and (d) filed motions
lacking his return address. Harewood further argues that the following facts showed that he had
no intent to make a mockery of the judicial system: (a) during his 2014 bankruptcy, he listed
liabilities worth hundreds of thousands of dollars less than what he had disclosed in the 2013
bankruptcy and amended his disclosures to add liabilities that he failed to initially disclose; and
(b) he unsuccessfully attempted to contact his bankruptcy attorney and the bankruptcy trustee
shortly after learning that he omitted the § 1983 claims from his bankruptcy disclosures.
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Harewood places heavy emphasis on what he characterizes as the district
court’s failure to consider the Napoleon affidavit, but he has abandoned any
argument for reversal based on that evidence. Napoleon’s affidavit testimony
describing Cardet’s statements to Napoleon amounts to hearsay because Harewood
sought to prove the truthfulness of the matters Cardet described in those
statements. Fed. R. Evid. 801(c). “[A] district court may consider a hearsay
statement in passing on a motion for summary judgment [only] if the statement
could be reduced to admissible evidence at trial or reduced to an admissible form.”
Jones v. UPS Ground Freight,
683 F.3d 1283, 1293-94 (11th Cir. 2012) (internal
quotation marks omitted). Thus, a court may consider on summary judgment
evidence in the form of inadmissible hearsay so long as, for example, the declarant
is available to testify at trial directly about the matter at issue.
Id. at 1294. Here,
Harewood has abandoned any argument for reversal based on the court’s failure to
consider the Napoleon affidavit because he has failed to explain how Napoleon’s
hearsay statement could be reduced to an admissible form. Access Now, Inc. v. Sw.
Airlines Co.,
385 F.3d 1324, 1330 (11th Cir. 2004) (“[A] legal claim or argument
that has not been briefed before the court is deemed abandoned and its merits will
not be addressed.”). 4
4
We note that there is reason to doubt Cardet’s willingness to testify at trial: Harewood’s
Rule 56(d) motion sought to delay the district court’s summary judgment ruling based on
Cardet’s unwillingness to sign an affidavit corroborating Napoleon’s testimony.
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B. Harewood Has Failed to Show Clear Error.
Harewood argues that the district court erred in two respects in determining
that his evidence was inconsistent. First, he argues that his testimony was not
inconsistent about his role in managing the real estate properties. He further
contends that other evidence, specifically Coleman’s testimony, corroborates his
account. Second, he asserts that, contrary to the district court’s finding, his
testimony was consistent about whether he disclosed the § 1983 lawsuit to Cardet.
By arguing that the district court erroneously identified evidentiary
inconsistencies, Harewood appears to argue that the district court clearly erred in
finding that he intended to make a mockery of the judicial system because
evidence regarding his role in the real estate business and whether he told Cardet
about the § 1983 lawsuit contradicts that finding. He relies on three pieces of
evidence: (1) Coleman’s deposition testimony that she managed the real estate
business; (2) Harewood’s deposition testimony that he performed only trivial
maintenance on the properties; and (3) Harewood’s affidavit testimony that he told
Cardet about the § 1983 lawsuit, but Cardet advised against disclosure. We cannot
conclude based on this evidence that the district court clearly erred in finding that
Harewood intended to make a mockery of the judicial system. The court was free
Harewood raises no argument regarding the district court’s failure to rule on his Rule
56(d) motion before granting summary judgment. We therefore do not address this issue.
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to disregard Harewood’s self-serving testimony in its entirety. Weakley, 894 F.3d
at 1246.
Moreover, although the record does contain evidence that Coleman rather
than Harewood bore responsibility for managing the real estate business, the record
also contains evidence that Harewood did more than perform trivial maintenance
on the properties. Because the evidence of Harewood’s role in the business
permitted two distinct inferences about Harewood’s sophistication, there can be no
clear error. See Whatley v. Smith,
898 F.3d 1072, 1083 (11th Cir. 2018) (“Where
there are two permissible views of the evidence, the district court’s choice of one
of those views cannot be clearly erroneous.” (internal quotation marks omitted)).
IV. CONCLUSION
We affirm the district court’s order granting Alexander’s motion for
summary judgment.
AFFIRMED.
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