Cochran v. Emory University , 251 Ga. App. 737 ( 2001 )

Miller, Judge,

concurring specially.

Although I greatly empathize with the plaintiff’s plight, I am constrained by binding precedent to agree with the trial court’s conclusion that judicial estoppel bars plaintiff’s claim. Ignoring the clear guidance given by this Court in prior decisions, plaintiff’s counsel failed for months to reopen and amend her bankruptcy petition even after she clearly had a cause of action for her injury and after Emory University moved for summary judgment on the grounds of judicial estoppel. Therefore, I feel it is necessary to write separately to emphasize certain points.

Two cases are painfully clear on the issue of judicial estoppel in these circumstances. In Clark v. Perino,¹ the plaintiff acted pro se in her bankruptcy petition and failed to list a personal injury cause of action due to ignorance. Once the bankruptcy was over, opposing counsel in a deposition in the personal injury cause of action raised the omission, whereupon plaintiff successfully moved to reopen the bankruptcy to amend her asset schedule to include the omitted cause of action.² Asserting judicial estoppel, defendants then moved for summary judgment, which the trial court granted. We reversed, holding that although judicial estoppel would normally bar the cause of action, the plaintiff’s actions in promptly and successfully seeking to reopen and amend her bankruptcy schedule precluded the application of the doctrine.³ We pointed out that in these circumstances a jury could find that the plaintiff had not manipulated the court system to her advantage, and that the claim would inure to the benefit of the creditors.⁴

Here-Cochran learned of her cause of action against Emory no later than November 27, 1997. Cochran’s counsel then filed suit against Emory, and even though counsel received Emory’s motion for summary judgment accusing Cochran of failing to list the claim in. her bankruptcy asset schedule, her counsel did nothing to reopen the bankruptcy and to amend the proper asset schedule until February, 10, 1999 — some 15 months after Cochran and her counsel knew of the claim. In the meantime, the trial court entered summary judgment against Cochran. Even though Cochran is excused from listing* the claim originally, plaintiff and plaintiff’s counsel’s later dilator/ conduct after full knowledge is inexcusable and is an obvious manipulation of the court system to Cochran’s benefit.⁵ Judicial estoppel is designed to prevent this very kind of misconduct.

The other controlling case is Harper v. GMAC Mtg. Corp.⁶ In Harper we reviewed the case law in this area, including a quote from Reagan v. Lynch,⁷ where the bar was instructed that “a party like the plaintiff in this case can avoid the application of judicial estoppel simply by filing a motion to amend the debtor’s bankruptcy petition or a motion to reopen the debtor’s bankruptcy case to declare the omitted claim or cause of action.”⁸ Harper concluded: “After the filing of the motion to dismiss, the [plaintiffs] were aware that they faced dismissal if they did not seek to amend their bankruptcy asset schedule. Despite the passage of ten weeks, they chose not to do so and thereby forfeited their right to pursue the damage claims.”⁹

Similarly, on October 16, 1998, Cochran and her counsel received Emory’s motion for summary judgment asserting her failure to list the claim as a bankruptcy asset, but did nothing to reopen the bankruptcy and to amend the asset schedule for more than 14 weeks. Cochran “thereby forfeited [her] right to pursue the damage claims.”¹⁰ After the trial court correctly granted summary judgment on January 25, 1999, then and only then (and then not even for two more weeks) did Cochran’s counsel file a pleading to reopen the bankruptcy to allow the cause of action to inure to the creditors’ benefit. Under the binding holding of Harper which involved ten weeks, I am constrained to find that the trial court did not err in concluding that Cochran’s conscious decision for fourteen weeks not to seek to correct the asset schedule authorized the application of judicial estoppel to bar her claim. For these same reasons, the trial court did.not abuse its discretion in denying the motion for reconsideration.* ¹¹

The dissent focuses its analysis on Cochran’s inability, despite reasonable diligence, to discover the cause of her injury until after the bankruptcy action was over. The dissent concludes that Cochran was excused from listing the claim on her bankruptcy petition because “[t]here should be no duty to schedule the claim on the bankruptcy petition until the cause of action has been discovered as a potential claim.” I agree completely with the dissent on this point. I disagree, however, with the dissent’s conclusion that because Cochran was initially excused from listing the asset in her bankruptcy schedules, she was therefore justified in not seeking timely to amend those schedules once she discovered the claim. The dissent ignores (1) the 14-week interval between Emory’s motion for summary judgment asserting the failure to list this asset and the trial court’s entry of summary judgment on this point, during which time Cochran’s counsel did nothing to reopen the bankruptcy and to amend the appropriate schedule, and (2) the overall 15-month delay between Cochran’s discovery of the cause of her injury and her counsel’s belated attempt to amend her bankruptcy schedule, which attempt occurred only after Cochran lost on Emory’s motion for summary judgment raising this issue. Since the case law is so clear on the forfeiture effect of such dilatory conduct, I am compelled to con-elude that judicial estoppel applies to bar Cochran’s claim.

I am authorized to state that Presiding Judge Johnson, Judge Ruffin and Judge Ellington join in this special concurrence.

1 235 Ga. App. 444 (509 SE2d 707) (1998).

2 Id. at 445.

3 Id. at 445-446 (1).

4 Id. at 446 (1).

5 See Reagan v. Lynch, 241 Ga. App. 642, 645 (524 SE2d 510) (1999).

6 245 Ga. App. 729 (538 SE2d 816) (2000).

7 Supra, 241 Ga. App. at 645 (Barnes, J., concurring specially).

8 (Punctuation omitted.) Harper, supra, 245 Ga. App. at 732 (1).

9 Id. at 733 (1).

10 Id.

11 See Adams v. Seay, 62 Ga. App. 589, 591-592 (9 SE2d 117) (1940) (motion for reconsideration is addressed to the sound discretion of the court). But see Harper, supra, 245 Ga. App. at 732-733 (1).