Eilber v. Floor Care Specialists, Inc., 294 Va. 438

In December 2012, Russell E. Eilber filed a Chapter 13 bankruptcy and a proposed 36‑month payment plan, which the bankruptcy court confirmed; he completed payments and received a discharge in April 2016.
While the Chapter 13 plan was in effect but before discharge, Eilber was employed as a facilities manager at New Horizons and was later terminated in September 2014.
Eilber sued Floor Care Specialists, Inc. (FCS) and three employees for defamation (alleging defamatory per se); the circuit court denied defendants’ demurrers and allowed the claim to proceed.
After Eilber’s bankruptcy discharge, defendants moved for summary judgment arguing Eilber lacked standing because he failed to disclose the defamation claim to the bankruptcy court; in a reply, they argued for the first time that judicial estoppel barred the suit.
The circuit court found the claim accrued after plan confirmation but before discharge, that Eilber did not disclose it to the bankruptcy court, and granted summary judgment based on lack of standing and judicial estoppel; Eilber appealed.
The Virginia Supreme Court considered whether judicial estoppel is an affirmative defense waived if not pled and whether the court may apply judicial estoppel sua sponte; it affirmed the circuit court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a debtor lacks standing to pursue a claim that accrued after plan confirmation but before Chapter 13 discharge	Eilber: He retained standing to pursue claims that accrued pre‑discharge even if not disclosed during bankruptcy	Appellees: Failure to disclose the claim to the bankruptcy court divested him of standing / barred prosecution	Court affirmed that undisclosed pre‑discharge claims can be barred (no reversible error in estoppel application);Standing issue resolved against Eilber as applied here
Whether judicial estoppel is an affirmative defense that is waived if not pled	Eilber: Judicial estoppel is collateral and completely bars recovery, so it must be pled or is waived	Appellees: Judicial estoppel prevents inconsistent positions and can be invoked even if not pled	Held: Judicial estoppel is not waived by failure to plead; court may raise/apply it sua sponte to protect judicial integrity
Whether a court may raise judicial estoppel sua sponte	Eilber: (implied) courts should not apply unpled defenses that deprive rights without notice	Appellees: The doctrine protects the court’s integrity and can be applied regardless of pleadings	Held: Courts have authority—and sometimes duty—to raise judicial estoppel sua sponte; appellees did not waive it by failing to plead it

Parson v. Carroll, 272 Va. 560 (discusses doctrine of judicial estoppel and prohibition on assuming inconsistent positions)
Wooten v. Bank of Am., N.A., 290 Va. 306 (describing judicial estoppel origins and purpose)
Monahan v. Obici Medical Mgmt. Servs., Inc., 271 Va. 621 (requirement that affirmative defenses generally be pled to avoid surprise)
New Dimensions, Inc. v. Tarquini, 286 Va. 28 (explaining exceptions and pleading rules for affirmative defenses)
New Hampshire v. Maine, 532 U.S. 742 (Supreme Court discussion of judicial estoppel and its purpose in protecting judicial process)
Lofton Ridge, LLC v. Norfolk S. Ry., 268 Va. 377 (historical discussion of approbation and reprobation; referenced in overview of doctrine)