Ward-Poag v. Fulton County. , 830 S.E.2d 799 ( 2019 )

THIRD DIVISION
DILLARD, P. J.,
GOBEIL and HODGES, JJ.
NOTICE: Motions for reconsideration must be
physically received in our clerk’s office within ten
days of the date of decision to be deemed timely filed.
http://www.gaappeals.us/rules
July 2, 2019
In the Court of Appeals of Georgia
A19A0173. WARD-POAG v. FULTON COUNTY.
HODGES, Judge.
In this appeal, we must decide whether Sandra Ward-Poag’s failure to disclose
a whistleblower claim1 against Fulton County in her petition for Chapter 13
bankruptcy until after the County moved for summary judgment in the whistleblower
action precludes her claim under the doctrine of judicial estoppel. The Superior Court
of Fulton County granted the County’s summary judgment motion, finding that Ward-
Poag was “judicially estopped from proceeding in [her] case” because her failure to
disclose the claim was “intended to deceive her creditors[] and that her behavior has
made a mockery of both this Court and the Bankruptcy Court.” Ward-Poag appeals,
arguing that the trial court erred because (1) her positions in the bankruptcy court and
1
See OCGA § 45-1-4.
the trial court were not inconsistent, introduced no risk of inconsistent results, and did
not threaten judicial integrity in view of her amended bankruptcy schedule disclosing
her claim against the County; and (2) genuine issues of material fact remained
concerning the County’s argument that she intended to make a mockery of the
judicial system. For the following reasons, we reverse.
Under Georgia law,
[s]ummary judgment is proper when there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law.
A de novo standard of review applies to an appeal from a grant or denial
of summary judgment, and we view the evidence, and all reasonable
conclusions and inferences drawn from it, in the light most favorable to
the nonmovant.
(Citation and punctuation omitted.) Kamara v. Henson, 340 Ga. App. 111 (796 SE2d
496) (2017). So viewed, the record reveals that the County hired Ward-Poag as the
entertainment manager for the Wolf Creek Amphitheater in 2012.2 In May 2013,
2
We note that Ward-Poag has not cited to the record on appeal in the format
required by our rules. See Court of Appeals Rule 25 (c) (2) (iii) (“Reference to the
record should be indicated by specific volume or part of the record and by (R-Page
Number of the Record). Reference to the transcript should be indicated by specific
volume or part of the transcript and by (T-Page Number of the Transcript).”). Instead,
it appears Ward-Poag simply cited to the index numbers prepared by the trial court
clerk, with no citations to page numbers for each indexed item. But see Davis v.
2
Ward-Poag filed a voluntary petition for Chapter 13 bankruptcy, which was
confirmed in March 2014 and required a payment plan that would conclude in March
2019.3
While her bankruptcy petition was pending, Ward-Poag alleged numerous
instances from September 2015 to August 2016 in which a Fulton County
Wallace, 310 Ga. App. 340, 341, n. 1 (713 SE2d 446) (2011) (“there is no need to
reference the trial court’s index numbers unless, for some reason, there is no other
way to identify a citation”). Finally, many of the citations included in Ward-Poag’s
brief are incorrect; for example, citations to “R. 241, Exh. 4,” purportedly to her
Chapter 13 plan, are actually to the deposition of Lisa Rushin.
This is particularly problematic in a record spanning several thousand pages,
because “it is not the function of this court to cull the record on behalf of a party in
search of instances of error.” (Citation omitted.) Adamson v. General Elec. Co., 303
Ga. App. 741, 742 (1) (694 SE2d 363) (2010). Rather, “[t]he burden is upon the party
alleging error to show it affirmatively in the record[, and] [i]t is a disservice to the
client to not follow the rules of this Court which are designed to facilitate review.”
(Citations omitted.) Id. at 742-743 (1). We further remind the bar that the failure to
prepare a brief in conformity with our rules could subject the offending party to
contempt. See Court of Appeals Rule 7 (c). Nevertheless, despite these deficiencies,
we will attempt to review Ward-Poag’s arguments.
3
Ward-Poag’s statement that she “repaid all of her creditors and received a
discharge from bankruptcy . . . on April 16, 2018” is not supported by a valid citation
to the record. See Court of Appeals Rule 25 (a) (1) (“Record and transcript citations
shall be to the volume or part of the record or transcript and the page numbers that
appear on the appellate record or transcript as sent from the trial court.”).
Furthermore, we will not cull the voluminous record on Ward-Poag’s behalf in search
of a citation to support her claim.
3
commissioner attempted to use the amphitheater for his private gain, including
repeated demands for dates to promote his own concerts. Ward-Poag rejected the
commissioner’s requests and, as a result, she alleged that she was demoted and faced
other forms of retaliation by the commissioner.4 In August 2016, Ward-Poag sent ante
litem notice of her whistleblower claim to the County. Thereafter, she filed the action
at issue in this appeal in October 2016.5
On September 5, 2017, the County filed a motion for summary judgment,
arguing, inter alia, that judicial estoppel barred Ward-Poag’s claim because she failed
to disclose her cause of action against the County as an asset in her bankruptcy
proceeding.6 Thereafter, Ward-Poag filed an amended bankruptcy schedule on
October 2, 2017, in which she identified her cause of action against the County as an
4
Linda Rushin, the executive manager of the amphitheater, alleged similar
contact and is Ward-Poag’s co-plaintiff. However, Rushin is not a party to this
appeal.
5
The County terminated Ward-Poag’s employment on or about February 3,
2017.
6
It is undisputed that Ward-Poag did not disclose her claim against the County,
which allegedly arose as early as September 2015, in her bankruptcy proceeding at
any point prior to the County’s motion for summary judgment.
4
asset; the value listed for the claim was $1.00.7 The trial court held a hearing on the
County’s motion on October 17, 2017, and orally granted the County’s motion.
Following additional briefing by the parties, the trial court entered a written order
granting the County’s motion on May 22, 2018 in which it relied upon Slater v. U.
S. Steel Corp., 871 F3d 1174 (11th Cir. 2017) and concluded that Ward-Poag
“intended to deceive her creditors[] and that her behavior has made a mockery of both
this Court and the Bankruptcy Court.” This appeal followed.
1. Ward-Poag first argues that the trial court erred in granting the County’s
motion for summary judgment because her positions in the bankruptcy court and the
trial court were not inconsistent, introduced no risk of inconsistent results, and did not
threaten judicial integrity given her amended bankruptcy schedule disclosing her
claim against the County. We agree.
Generally, Georgia courts follow the federal doctrine of judicial estoppel. See
Nat. Bldg. Maintenance Specialists v. Hayes, 288 Ga. App. 25, 26 (653 SE2d 772)
7
In contrast, Ward-Poag’s amended complaint alleged damages “in the
minimum amount of $1,500,000[.]” Although the amended petition is attached as an
exhibit to an affidavit filed after the trial court’s hearing on the County’s motion for
summary judgment, the County does not contest that Ward-Poag filed such an
amendment. Similarly, the trial court acknowledged that Ward-Poag filed the
amendment.
5
(2007). “Under the doctrine, a party is precluded from asserting a position in a
judicial proceeding which is inconsistent with a position previously successfully
asserted by it in a prior proceeding.” (Emphasis supplied.) Id.
The essential function and justification of judicial estoppel is to prevent
the use of intentional self-contradiction as a means of obtaining unfair
advantage in a forum provided for suitors seeking justice. The primary
purpose of the doctrine is not to protect the litigants, but to protect the
integrity of the judiciary. The doctrine is directed against those who
would attempt to manipulate the court system through the calculated
assertion of divergent sworn positions in judicial proceedings and is
designed to prevent parties from making a mockery of justice through
inconsistent pleadings.
(Citation omitted.) Kamara, supra, 340 Ga. App. at 112 (1); accord Johnson v. Trust
Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996).
Accordingly,
the doctrine is commonly applied to preclude a bankruptcy debtor from
pursuing a damages claim that [she] failed to include in [her] assets in
the bankruptcy petition because a failure to reveal assets, 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 a bankruptcy petition, and deprives creditors of resources
that may satisfy unpaid obligations.
6
(Citations and punctuation omitted.) Nat. Bldg., supra, 288 Ga. App. at 26. Relevant
to Ward-Poag,
[a] Chapter 13 debtor’s interest in a cause of action, including an
unliquidated tort claim, is personal property included as part of the
bankrupt estate. Unlike a Chapter 7 or 11 debtor, a Chapter 13 debtor
has a statutory duty to amend [her] schedule of assets to include
property, such as a tort claim, that should have been listed initially or
was acquired after the bankruptcy petition was filed.
(Citations omitted.) Id. at 26; see also D’Antignac v. Deere & Co., 342 Ga. App. 771,
775 (1) (b) (804 SE2d 688) (2017) (“a Chapter 13 debtor’s post-confirmation claims
are property of the estate because the claims were acquired after the commencement
of the bankruptcy case but before the case was dismissed, closed, or converted”)
(citation and punctuation omitted).
To that end, “Georgia law . . . provides for a continuing duty to disclose assets
or potential assets acquired during Chapter 13 bankruptcy proceedings.” (Emphasis
supplied.) D’Antignac, supra, 342 Ga. App. at 776 (1) (b). As a result, we have held
that “if the debtor initially fails to list the claim as a potential asset but later amends
the bankruptcy filing or moves to reopen the bankruptcy proceeding to include the
7
claim, judicial estoppel will not bar a later recovery on the claim.”8 (Citations
omitted.) Smalls v. Walker, 243 Ga. App. 453, 456 (2) (532 SE2d 420) (2000); accord
Nat. Bldg., supra, 288 Ga. App. at 27. “We review a lower court’s application of
judicial estoppel for abuse of discretion.” D’Antignac, supra, 342 Ga. App. at 774 (1)
(b).
In Nat. Bldg., the plaintiff’s cause of action arose before she filed her Chapter
13 bankruptcy petition. 288 Ga. App. at 25. The plaintiff failed to amend her
bankruptcy petition to identify her claim both initially and after the defendant filed
a motion to dismiss her claim. Id. at 25, 27. However, the plaintiff filed an application
in the bankruptcy court to employ counsel to pursue her cause of action, thereby
providing notice of her claim to her creditors. Id. at 27. As a result, we concluded that
the plaintiff “did not mislead the bankruptcy court or gain an unfair advantage by
8
For this reason, we need not address the County’s argument of whether New
Hampshire v. Maine, 532 U.S. 742 (121 SCt 1808, 149 LE2d 968) (2001) or Slater,
supra, 871 F3d at 1174, controls, for Georgia law imposes a “continuing duty to
disclose assets or potential assets acquired during Chapter 13 bankruptcy
proceedings.” (Emphasis supplied.) D’Antignac, supra, 342 Ga. App. at 776 (1) (b).
In other words, our relevant inquiry is whether the debtor amended her Chapter 13
bankruptcy petition, before discharge or some other resolution of the bankruptcy
proceeding, to include a claim that arose after the original bankruptcy petition was
filed. See id. at 775-776 (1) (b); see also Kamara, supra, 340 Ga. App. at 112-113 (1);
Johnson, supra, 223 Ga. App. at 651. The trial court erred in exceeding this limited
inquiry.
8
nondisclosure as her recovery on the personal injury claim will inure to the benefit
of her bankruptcy estate, and in turn, to her creditors.” Id.
In this case, Ward-Poag filed a voluntary petition for Chapter 13 bankruptcy
in May 2013. She alleged that her causes of action against the County arose, at the
earliest, in September 2015, and she filed suit against the County in October 2016.
At that time, her bankruptcy proceeding had not been discharged, dismissed, or
otherwise adjudicated. Following the County’s motion for summary judgment on the
issue of judicial estoppel, Ward-Poag amended her bankruptcy petition to disclose her
cause of action against the County.9 Although the County’s concern with the timing
of Ward-Poag’s amendment is not unfounded, our precedent does not punish a
litigant for amending her pending bankruptcy petition, after the filing of a dispositive
motion rooted in judicial estoppel, to disclose a cause of action that ripened after the
original bankruptcy petition was filed.10 See Period Homes v. Wallick, 275 Ga. 486,
9
Unlike in Nat. Bldg., then, Ward-Poag’s creditors did not need to speculate
on the nature of a tort claim because Ward-Poag amended her bankruptcy petition to
disclose her pending action against the County.
10
Nor has the County identified any Georgia precedent that would contradict
this principle by requiring a more precise estimated value of an unliquidated cause
of action. Dugger v. Smith & Nephew, Inc., No. 1:12-CV-2528-ODE, 2013 U.S. Dist.
LEXIS 191729 at *5 - *6 (N.D. Ga. Mar. 20, 2013), while persuasive, is not
controlling and does not consider Georgia law freely allowing amendments to
9
488 (2) (569 SE2d 502) (2002) (judicial estoppel “most commonly invoked to prevent
bankruptcy debtors from concealing a possible cause of action, asserting the claim
following the discharge of the bankruptcy and excluding resources from the
bankruptcy estate that might have otherwise satisfied creditors”). To the contrary,
[w]here 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. Moreover, where the plaintiff amends her bankruptcy asset
schedules, this Court cannot say that the plaintiff’s present position is
inconsistent with one that she successfully asserted in a prior
proceeding.11
bankruptcy petitions. See D’Antignac, supra, 342 Ga. App. at 776 (1) (b); Kamara,
supra, 340 Ga. App. at 112-113 (1); Johnson, supra, 223 Ga. App. at 651. Similarly,
Harper v. GMAC Mortgage Co. is distinguishable since the plaintiff in that case
failed to disclose the existence of a damages claim at all, rather than amending a
bankruptcy petition to disclose an unliquidated cause of action. 245 Ga. App. 729,
732 (1) (538 SE2d 816) (2000).
11
Of particular relevance, there has been no showing that Ward-Poag
“successfully asserted” inconsistent positions. See Kamara, supra, 340 Ga. App. at
112-113 (1).
10
(Citations and punctuation omitted; emphasis supplied.) Kamara, supra, 340 Ga. App.
at 112-113 (1); see also Nat. Bldg., supra, 288 Ga. App. at 27-28.12
Therefore, we conclude that judicial estoppel does not bar Ward-Poag’s claims.
As a result, in view of controlling authorities to the contrary,13 we conclude that the
trial court abused its discretion in applying judicial estoppel to bar Ward-Poag’s
12
As a result, we need not consider the conflict in the affidavit testimony
between Ward-Poag’s bankruptcy counsel and a Chapter 13 bankruptcy trustee
concerning the adequacy of Ward-Poag’s amendment to her bankruptcy petition. But
see, e.g., Nall v. Bill Heard Chevrolet Co., 238 Ga. App. 365, 366-367 (518 SE2d
164) (1999) (“An affidavit made in opposition to a motion for summary judgment not
served at least one day before the hearing is barred by the Civil Practice Act from
consideration as evidence unless the record discloses the trial court, in the exercise
of its discretion, has allowed the affidavit to be served and considered.”) (citations
omitted).
13
See, e.g., White Cloud Charter v. DeKalb County Bd. of Tax Assessors, 238
Ga. App. 805, 807 (2) (520 SE2d 708) (1999) (“In light of the express terms of [the
controlling statute] and in the absence of applicable authority to the contrary, we
cannot say that the trial court abused its discretion . . .”).
11
claim.14 It follows that the trial court erred in granting the County’s motion for
summary judgment, and we therefore reverse.15
2. In view of our discussion in Division 1, supra, we need not consider Ward-
Poag’s remaining argument.
Judgment reversed. Dillard, P. J., and Gobeil, J., concur.
14
D’Antignac does not require a different result. In D’Antignac, the plaintiff
failed to disclose her cause of action prior to the discharge of her Chapter 13
bankruptcy proceeding. 342 Ga. App. at 771. Following discharge, she moved to
reopen her bankruptcy to list the claim as an asset, but the bankruptcy court denied
her motion. Id. at 772. As a result, we concluded that judicial estoppel barred the
plaintiff’s claims. Id. at 776 (1) (b). Unlike the plaintiff in D’Antignac, Ward-Poag’s
cause of action accrued after she filed her bankruptcy petition, and she amended her
petition to include her claim against the County before her bankruptcy was
discharged.
15
Although the County advanced multiple additional arguments in support of
its motion for summary judgment, the trial court based its decision only upon judicial
estoppel. Upon the return of the remittitur, the trial court may consider any remaining
arguments for summary judgment.
12