Georgia Neurology & Rehabilitation, P.C. v. Hiller
310 Ga. App. 202
| Ga. Ct. App. | 2011Background
- Plaintiffs are Dr. Shenkman and corporations owned by him; Hiller is his former wife who worked for his medical practice.
- Shenkman alleged Hiller stole funds from personal and corporate accounts by forgery and fraud in 2006 and 2007.
- A May 2007 divorce culminated in a decree (Dec. 4, 2007) incorporating a settlement addressing alimony, property division, and debts.
- In 2007, Shenkman sought a setoff in a post-divorce contempt action for restitution promised by Hiller; the court ruled no setoff for 2007 funds and Shenkman was found in contempt for other obligations.
- The contempt order did not reflect any setoff for the 2007 funds; shortly thereafter, plaintiffs filed this suit alleging 2006 and 2007 theft and related claims.
- Hiller moved for summary judgment on collateral estoppel, judicial estoppel, and res judicata; the trial court granted summary judgment on collateral estoppel grounds for 2007 funds, but the record on 2006 funds was incomplete, prompting remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does collateral estoppel bar 2007 funds claims? | Shenkman and Coastal contend 2007 issues were actually litigated and decided in contempt. | Hiller argues collateral estoppel applies to all asserted funds. | Yes; 2007 funds were litigated and decided; barred. |
| Are 2006 funds barred by collateral estoppel? | 2006 funds were not litigated in the contempt action. | Collateral estoppel could extend if issues were litigated. | No; 2006 issues were not litigated; remand to address res judicata. |
| Does judicial estoppel apply to bar 2006 claims? | Dismissal of charges based on restitution implied inconsistent positions were taken. | No inconsistent positions persuaded a court; dismissal voluntary. | No; judicial estoppel not applicable. |
| Does res judicata preclude 2006 claims given the divorce settlement? | Settlement intended to settle all property issues; bars current claims. | Res judicata depends on intent to settle all issues; record incomplete. | Remanded for determination; record incomplete on whether settlement intended to settle all matters. |
| Was the grant of summary judgment reversible for unaddressed theories? | Other grounds (res judicata) may preclude; judgment should reflect alternate theories. | Only collateral estoppel was addressed; other theories may apply. | Partially affirmed/partially vacated and remanded to resolve res judicata on 2006 funds. |
Key Cases Cited
- Dickerson v. Dickerson, 247 Ga.App. 812 (2001) (collateral estoppel defined; issue preclusion applies when essential to judgment)
- In re T.M.G., 275 Ga. 543 (2002) (identity of parties; issue not requiring precise claim identity)
- Toporek v. Zepp, 224 Ga.App. 26 (1996) (collateral estoppel requires full opportunity to litigate)
- Fuller v. Fuller, 279 Ga. 805 (2005) (setoff permitted in post-divorce contempt context)
- IBF Participating Income Fund v. Dillard-Winecoff, LLC, 275 Ga. 765 (2002) (judicial estoppel analysis in bankruptcy context)
- Brookins v. Brookins, 257 Ga. 205 (1987) (res judicata and divorce context—scope of settlement effects)
- Prince v. Prince, 147 Ga.App. 686 (1978) (settlement agreements and complete settlement of issues)
- Anderson v. Larkin, 190 Ga.App. 283 (1989) (contractual interpretation of divorce settlement provisions)
- Grimes v. State, 303 Ga.App. 808 (2010) (remand when record incomplete on appeal)
- City of Gainesville v. Dodd, 275 Ga. 834 (2002) (Court of Appeals discretion on right-for-any-reason remand)