Daniel v. Fulton County , 324 Ga. App. 865 ( 2013 )

McFADDEN, Judge.

Karen Daniel filed a complaint for damages against Fulton County, asserting a claim of inverse condemnation. The trial court dismissed the complaint on the ground that Daniel had filed for bankruptcy without disclosing the claim and was therefore precluded from pursuing it by the doctrine of judicial estoppel. Daniel appeals, challenging the dismissal of her complaint. Because the trial court failed to consider whether, under the circumstances, Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped, we vacate the order of dismissal and remand.

We conduct a de novo review of a trial court’s ruling on a motion to dismiss. Nat. Bldg. Maintenance Specialists v. Hayes, 288 Ga. App. 25 (653 SE2d 772) (2007). The record here shows that in December 2009, Daniel served ante litem notice on Fulton County that she was seeking nearly $1 million in damages arising from alleged sewage spills on her property. In April 2010, she filed a petition for Chapter 7 bankruptcy protection. She did not include the potential claim for damages in the petition. In August 2010, she filed suit against the county and did not amend her bankruptcy petition to report the claim for damages. In August 2012, while considering a defense motion for summary judgment, the trial court asked the parties to submit briefs as to the effect of the bankruptcy proceeding on the instant action. Daniel filed her brief in October 2012, and stated that she had immediately begun taking steps to reopen the bankruptcy case to amend the schedules. On January 4, 2013, the last business day ofits November 2012 term, see OCGA § 15-6-3 (3), the trial court entered an order of dismissal, concluding that because Daniel had “failed to produce evidence that she has taken action to re-open her bankruptcy, ... [she] is judicially estopped from pursuing her claim in the instant litigation.”

Daniel filed a motion for reconsideration. In support of the motion, she attached a copy of her motion to reopen the bankruptcy case that had been filed in December 2012, and a copy of the bankruptcy court order that had been entered ten days after the trial court’s dismissal order, granting the motion and reopening Daniel’s bankruptcy case. But as the trial court had entered its order on the last day of the term, it would not have been authorized to grant the motion for reconsideration. See Paine v. Nations, 301 Ga. App. 97, 100 (2) (686 SE2d 876) (2009). Daniel filed her notice of appeal from the dismissal order before the trial court entered any ruling on her motion for reconsideration.

Judicial estoppel is an equitable doctrine that prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding. The doctrine is commonly used in civil actions to preclude a bankruptcy debtor from pursuing a damages claim he failed to include among his assets in his petition seeking bankruptcy relief.

Vojnovic v. Brants, 272 Ga. App. 475, 476 (1) (612 SE2d 621) (2005) (citations and punctuation omitted). “This equitable doctrine is invoked by a court at its discretion, and [is] intended to prevent abuse of the judicial process.” Period Homes, Ltd. v. Wallick, 275 Ga. 486, 488 (2) (569 SE2d 502) (2002). In exercising such discretion, a court’s

determination [of] whether judicial estoppel bars a claim depends on three factors: First, the party’s later position must be clearly inconsistent with its earlier position. Second, the party must have succeeded in persuading a court to accept the party’s earlier position, because absent success in a prior proceeding, a party’s later inconsistent position introduces no risk of inconsistent court determinations. And third, a court must consider 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.

Zahabiuon v. Automotive Finance Corp., 281 Ga. App. 55, 57 (1) (635 SE2d 342) (2006) (citation omitted).

In this case, the trial court listed four specific factors that it had considered, which encompassed the first two factors listed above. However, the trial court did not list the third factor and apparently did not consider whether Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Rather, the crux of the trial court’s order was its determination that the lack of evidence that Daniel had taken steps to reopen the bankruptcy mandated application of the doctrine of judicial estoppel to bar her claim. Accordingly, the order of dismissal is vacated and the case remanded with direction that the trial court consider all pertinent factors, including whether Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

The dissent contends that this conclusion “ignores the well-settled principle that we will not presume the trial court committed error where that fact does not affirmatively appear.” On the contrary, our conclusion is consistent with that principle because the trial court’s error does in fact affirmatively appear in its order. As explained above, that order expressly listed the factors considered by the trial court, and it plainly shows that the trial court failed to consider the critical factor of whether Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Where, as here, it appears from the trial court’s stated explanation for its ruling that it engaged in an incomplete exercise of discretion based on an erroneous theory of law, the proper remedy from this court is to remand the case to the trial court for its full consideration of the appropriate factors. See Total Car Franchising Corp. v. Squire, 259 Ga. App. 114, 117 (1) (576 SE2d 90) (2003); Rowe v. Akin & Flanders, Inc., 240 Ga. App. 766, 770 (3) (525 SE2d 123) (1999) (where incomplete exercise of discretion based on erroneous theory of law, judgment vacated and case remanded with direction for trial court to consider proper test).

It is true, as the dissent notes, that the able trial judge was not required to explain his decision. If he had been trying merely to insulate himself from reversal, he could have simply refused to fully explain his ruling. He opted instead for candor and transparency, which aim at the higher goals of a correct and just result.

Judgment vacated and case remanded with direction.

Phipps, C. J., Barnes, P. J., Ellington, P. J., and Doyle, P. J., concur. Boggs and Branch, JJ., dissent.