These cases arise out of an automobile collision which occurred on May 3, 1990. Nancy Clark sued Juliana Domenica Perino for negligence and alleged that at the time of the accident Perino was acting within the course and scope of her employment with IBM Corporation, which was also named in the suit. Clark appealed from the grant of summary judgment to Perino and IBM on the ground of judicial estoppel. Perino and IBM filed a cross-appeal from the denial of their Motion to Enforce Settlement.
Case No. A98A1164
“In determining whether the trial court properly granted summary judgment. . . we review the record de novo, construing the evidence and all inferences from the evidence strongly in favor of the nonmoving party.”
Lane v. Spragg,
Clark testified on deposition that she filed her bankruptcy petition pro se after obtaining the appropriate forms from a service that provided blank forms and sent them, when completed by the customer, to the bankruptcy court. Because this service did not provide its customers with any advice on how to complete the required paperwork, Clark completed her bankruptcy without assistance. She never consulted legal counsel and never discussed her case with the bankruptcy trustee. Clark explained that she did not list her claims against Perino and IBM because she did not know that the disclosure was required. She said that she did not understand what the term *445 “unliquidated claims” on the Schedule of Personal Property meant. She also testified that she interpreted the question on the Schedule of Financial Affairs to refer only to lawsuits filed in the year prior to the bankruptcy, and thus did not include the DeKalb County action, which was filed in 1990. In August 1994, the bankruptcy court granted Clark a discharge.
Clark subsequently dismissed her DeKalb County action without prejudice, and then hired new counsel to file the current case as a renewal action in the State Court of Fulton County in September 1996. After Clark’s current counsel discovered that Clark had not disclosed her claims against Perino and IBM in her bankruptcy, and after the matter was raised by opposing counsel in Clark’s deposition, Clark filed a motion to reopen the bankruptcy. The bankruptcy court ordered the bankruptcy reopened to allow Clark to file amended schedules listing the claims against Perino and IBM.
Perino and IBM filed a motion for summary judgment asserting that Clark’s claims against them were barred by the doctrine of judicial estoppel due to her failure to disclose the claims in her original bankruptcy filings. The trial court agreed and granted the motion. We reverse.
1. The doctrine of judicial estoppel arises under federal law and precludes a party from asserting a position in one judicial proceeding which is inconsistent with a position successfully asserted by the party in an earlier proceeding. “[T]he 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.” (Citations and punctuation omitted.)
Southmark Corp. v. Trotter, Smith & Jacobs,
Courts have viewed the failure to identify accrued claims in accordance with bankruptcy’s “stringent disclosure requirements” to amount “to a denial that such claims exist,” and the subsequent assertion of such claims to amount to a contradictory position in violation of the judicial estoppel doctrine.
Southmark Corp. v. Trotter, Smith & Jacobs,
Although Clark failed to list the claims when she prepared her original pro se bankruptcy filings, she later obtained permission to correct this omission and amend her filings to include the claims.
*446
“[B]ecause [Clark] successfully has amended [her] bankruptcy petition to include any claim against [Perino and IBM] as a potential asset, [she] clearly has gained no unfair advantage in bankruptcy court. Any recovery [s]he obtains from [Perino and IBM] will inure to the benefit of [her] bankruptcy estate, and in turn, to the creditors who asserted claims to the estate’s assets. Due to the bankruptcy court’s decision to reopen the Chapter 7 case and its acceptance of the amendment to the schedules [Clark] filed with the court, it also cannot be said that [Clark’s] present position in the trial court is inconsistent with one successfully and unequivocally asserted by [her] in a prior proceeding.” (Citation and punctuation omitted.)
Johnson v. Trust Co. Bank,
In
Johnson
this Court reversed the grant of summary judgment on the ground of judicial estoppel. While the
Johnson
plaintiff obtained a Chapter 7 discharge after failing to identify potential tort claims in his bankruptcy schedules, he later moved to reopen his bankruptcy to amend his schedules to reflect the claims. In reversing summary judgment, we relied upon this amendment as well as evidence that plaintiff had mentioned his claim to both his attorney and the bankruptcy trustee and even had referenced the claim in one of his schedules.
Johnson v. Trust Co. Bank,
*447 Accordingly, we reverse the trial court’s order granting summary judgment to Perino and IBM.
Case No. A98A1165
2. Because we have determined that summary judgment was not properly granted, we now consider the cross-appeal filed by Perino and IBM in connection with the denial of their motion to enforce settlement.
The issues raised on an appeal from a denial of a motion to enforce settlement are analogous to those in a motion for summary judgment.
Superglass Windshield Repair v. Mitchell,
The facts pertinent to this appeal show that in early May 1994 while Clark’s DeKalb County action was still pending, she was represented by Franklin E. Parker of the law firm of Deming, Deming, Born & Parker, PC. On May 10,1994 Parker phoned Clark to recommend that she settle the DeKalb action for $25,000. Clark states that she told Parker that she would not settle for that amount, and further that she discharged Parker as her attorney during the conversation. Clark’s husband signed an affidavit stating that he was with Clark during the May 10 phone conversation and heard her fire Parker. Parker, however, signed an affidavit asserting that he was employed as Clark’s attorney through June 1994 and further that Clark specifically authorized him to accept a settlement offer of $25,000 on May 19, 1994.
On that date, Parker negotiated a settlement with Neal C. Scott, counsel for Perino and IBM. At no time during the course of the settlement discussions did Parker communicate that he had been discharged as Clark’s counsel or that there was any limitation on his authority to enter into a settlement on behalf of Clark. The parties’ agreement to settle Clark’s claims for the sum of $25,000 was confirmed by a letter dated May 20, 1994 from Scott to Parker.
After Parker sent Clark the settlement documents for her execution, she wrote him a letter stating that she did not accept the $25,000 settlement, and stating a list of conditions she would require for any settlement, including payment of an amount in excess of $1.5 million. The letter further noted “[i]f you and your firm do not present the [conditions listed] to Perino/IBM, it is my wish that you and your firm no longer represent me in this matter....” Parker asserts *448 that this letter was his first indication that Clark wished to terminate his representation. In August 1994, Parker and his firm moved to withdraw as counsel of record, and their motion was granted on September 8, 1994. Scott states that he had no notice that Clark disputed Parker’s authority to enter into a settlement agreement on her behalf until he received Parker’s motion to withdraw.
“Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. This authority is determined by the contract between the attorney and the client and by instructions given the attorney by the client, and in the absence of express restrictions the authority may be considered plenary by the court and opposing parties. The authority may be considered plenary unless it is limited by the client and that limitation is communicated to opposing parties.” (Citations omitted.)
Brumbelow v. Northern Propane Gas Co.,
Clark does not dispute that Parker entered into a settlement on her behalf on May 19, 1994, but claims that at the time he entered into the settlement Parker was no longer her attorney and thus had no authority to act on her behalf. While there is a dispute in the record as to when Clark discharged Parker, for purposes of this appeal we must accept her statement that she fired him nine days before the settlement was entered.
While prior Georgia cases addressing the enforceability of settlement agreements have not addressed an instance when a client claims to have terminated her attorney prior to a settlement, under general principles of agency law, “[t]he termination of authority does not thereby terminate apparent authority.” Restatement, Law of Agency 2d, § 124 A. As the comments to the Restatement explain, “If there was apparent authority previously, its existence is unaffected until the knowledge or notice of the termination of authority comes to the third person, except when all agency powers are terminated without notice by death, loss of capacity by the principal or an event making the authorized transaction impossible.” Id. at comment a.
It is undisputed that no one communicated to Scott that Parker had been discharged or that any limitation on his authority existed. To the contrary, Parker was Clark’s attorney of record in the case, and Scott was entitled to rely on Parker’s apparent authority to enter into a settlement on her behalf. “In other words, where the dispute as to an agreement is not between opposing parties but is, rather, between the attorney and client over the attorney’s authority, and where the opposite party is ignorant of any limitation upon the attorney’s authority, the client will be bound by his attorney’s actions.”
Brumbelow v. Northern Propane Gas Co.,
Therefore, even if Clark had fired Parker prior to the settlement, this fact alone does not render the settlement unenforceable where opposing counsel had no notice of the termination when the settlement was entered. See generally
Green v. Lanford,
In making this ruling, we are mindful that this Court previously has raised concerns about the harshness of a doctrine binding a client to a settlement he did not authorize. See
Lewis v. Uselton,
Therefore, we are bound by Brumbelow, as well as general principles of agency law, to hold that where an opposing party has not received notice that an attorney’s authority has been terminated, or otherwise limited, he may rely upon the attorney’s apparent authority to bind his client.
3. Alternatively, Clark claims that Scott could not have relied on Parker’s apparent authority because, at the time of the settlement negotiations, Scott had questions regarding Parker’s authority to accept his $25,000 offer. In support of this argument, Clark relies upon the affidavit of Thomas J. Ousley, 2 the attorney she hired to *450 handle the case after Parker withdrew as counsel of record.
Ousley’s affidavit states that in 1995 he had conversations with Scott concerning the May 19, 1994 settlement agreement. In those conversations, Ousley says that Scott told him “that he was surprised when Mr. Parker accepted the settlement offer and that he had questions in his mind at the time the offer was accepted because of the context in which the offer was accepted. Mr. Scott stated that he was surprised because essentially the same settlement had been offered for a long time and, it was his understanding that Mrs. Clark had repeatedly refused to accept the offers. Mr. Scott said that he was also surprised about the manner in which Mr. Parker accepted the offer in that it seemed that apparently Mr. Parker did not get confirmation from his client prior to accepting the offer.”
Perino and IBM contend that this affidavit contains impermissible hearsay, conclusions and speculation and thus cannot be considered as evidence in connection with their motion. However, Perino and IBM failed to raise these objections in the trial court. “ ‘Objections to affidavits such as these will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on motions for summary judgment.’
Chapman v. McClelland,
Nevertheless, hearsay has no probative value and cannot be considered as evidence in a summary judgment proceeding.
Neese v. Britt Home Furnishings,
supra,
Further, the fact that Parker did not appear to consult Clark at *451 the time of the settlement does not mean that Scott should have doubted his authority. Scott was entitled to rely upon Parker’s status as Clark’s attorney of record as the basis for his authority to bind Clark to a settlement, unless and until any limitation on that authority was communicated to him. Brumbelow, supra.
Judgments reversed.
Notes
Although we find this evidence sufficient to preclude summary judgment on this issue, questions of credibility may remain as to whether Clark’s actions in failing to report the DeKalb action in her bankruptcy proceeding were an attempt to manipulate the system. While for purposes of summary judgment we accept as true her statements that she did not understand the questions in the bankruptcy schedules, it is up to the trial court to determine matters of credibility.
Perino and IBM contend that the trial court did not rely upon Ousle/s affidavit, filed
*450
12 days before the court’s order denying their motion to enforce the settlement. However, “[i]n the absence of evidence to the contrary, we will presume that the trial court reviewed the entire record. . . .”
E. H. Crump Co. v. Millar,