A00A0825. JOWERS v. ARTHUR.
A00A0825
Court of Appeals of Georgia
DECIDED JULY 12, 2000.
537 SE2d 200
MILLER, Judge.
[p]unitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant‘s actions showed willful misconduct, malice, fraud, wantonness, oppression, or thаt entire want of care which would raise the presumption of conscious indifference to consequences.27
Moreover, ” [a] claim for punitive damages has efficacy only if there is a valid claim for actual damages to which it could attach. Punitive damages may not be recovered where there is no entitlement to compensatory damages.’ [Cits.]”28
For the foregoing reasons, we affirm the trial court‘s grant of summary judgment to Wood on Nelson & Hill‘s quantum meruit claim and the grant of summary judgment to Nelson & Hill on Wood‘s breach of fiduciary duty and punitive damages claims.
Judgments affirmed. Johnson, C. J., and Mikell, J., concur.
DECIDED JULY 12, 2000.
Nelson, Hill, Lord & Beasley, Janet E. Hill, J. Hue Henry, for appellant.
Dreger & McClelland, Richard J. Dreger, Nicholas J. Pieschel, for aрpellee.
MILLER, Judge.
The issue is whether judicial estoppel bars a state law personal injury claim not listed as an asset in a Chapter 13 bankruptcy proceeding (begun after the accident but before the institutiоn of the personal injury suit), when the plaintiff/debtor dismisses the incomplete bankruptcy petition (whose reduced payout plan has already been confirmed) and then refiles a corrected bankruptcy petition that includes the claim. We hold that judicial estoppel does not bar the claim.
Sherry Jowers1 sued Gertrude Arthur in superior court for personal injuries arising out of an auto collision. Citing judicial estoppel, Arthur moved for summary judgment against Jowers on the ground that Jowers had failed to list this claim as an asset in a Chapter 13 bankruptcy petition that Jowers had filed months after the accident and after she had consulted an аttorney about the accident. With approval of the federal bankruptcy court, Jowers immediately dismissed her bankruptcy petition without prejudice (even though her plan had already been confirmed with a less than 100 percent payout), and then filed a new Chapter 13 bankruptcy petition listing the claim as an asset. Nevertheless, the superior court granted summary judgment to Arthur, which Jowers appeals.
Since 1994 wе have followed the federal doctrine of judicial estoppel, which precludes a party from asserting in a judicial proceeding a position inconsistent with a position successfully asserted by it in a prior proceeding.2 Applying this to both Chapter 7 and Chapter 13 bankruptcy petitions, we have held that in light of the stringent disclosure requirements of bankruptcy law, the failure to disclose an asset (such as a рersonal injury cause of action) in the bankruptcy schedules amounts to a denial that such asset exists and bars subsequent efforts to pursue the tort claim in a Georgia court.3
We have emphasized, however, that if the debtor initially fails to list the claim as a potential asset but later successfully amends the bankruptcy filing or reopens the bankruptcy proceeding to include the claim, judicial estoppel will not bar recovery on the claim.4 Our first case applying this concept, Johnson v. Trust Co. Bank,5 did not accept the rationale that allowing such an amendment or reopening to cure the omission permits dishonest plaintiff/debtors to conceal the asset from the bankruptcy court until ” ‘caught” by the defendant in the subsequent personal injury action.6 A majority of this Court was not persuaded that a tardy bankruptcy amendment, spurred by the filing of a summary judgment motion in the state tort actiоn, represents a plaintiff/debtor‘s manipulating the court system by shifting positions when his interests change, which judicial estop
Rather, focusing on a different analysis, the majority held that the plaintiff/debtor, who with the permission оf the bankruptcy court reopens his bankruptcy case and amends the asset schedule to include the tort claim, gains no unfair advantage in the bankruptcy court.8 The majority reasoned that the amendmеnt adds the claim to the bankruptcy estate and thus inures to the benefit of the debtor‘s creditors.9 Moreover, the legal consequence of the bankruptcy court‘s decision to reopen the casе and to accept the amendment to the plaintiff/debtor‘s asset schedule is that the plaintiff/debtor‘s position in the tort suit no longer is inconsistent with a position he successfully and unequivocally asserted in a рrior proceeding.10
We have since reiterated that amending the bankruptcy petition to include the claim, even after the bankruptcy case was closed, precludes judicial estoppеl from barring the claim.11 Thus, when we have applied judicial estoppel to bar a claim, there has been no evidence that the plaintiff ever attempted to amend his bankruptcy pleadings to includе the tort claim.12
Moreover, while the underlying purpose of judicial estoppel is to prevent manipulation of the judicial process, it is the bankruptcy court that primarily is being manipulated in this instance. The creditors lose the potential to recover where such a claim is not listed. Therefore, if the bankruptcy court permits an amendment allowing an omitted tort claim, it stands to reason that the Georgia court in which the tort claim is asserted should honor the bankruptcy court‘s
The question then becomes whether Jowers‘s “without prejudice” dismissal of her bankruptcy proceeding (whose plan for a reduced payout had been confirmed) and subsequent refiling of a new petition thаt included the personal injury claim accomplishes the same result, for judicial estoppel purposes, that amending the asset schedule of the ongoing proceeding would have achieved. We hold that it does, for we have held that judicial estoppel does not apply if a plaintiff reopens a closed case (where discharge has already occurred) and amends the asset schedule.14 Wе have reasoned that such does not constitute taking a position inconsistent with one successfully and unequivocally asserted in a prior proceeding.15 Dismissing an ongoing proceeding before discharge and refiling an amended petition is even less like a successful and unequivocal assertion of an inconsistent position. Dismissal effectively vacates a confirmed plan, returns the debtor and her creditоrs to the status quo ante, and revests the estate‘s property in the debtor, with the debtor again liable for his debts and with the creditors free to pursue all legal remedies against the debtor.16 It can hardly be said that thе debtor‘s failure to list the tort claim successfully inured to her benefit in the dismissed case.17
The superior court erred in applying judicial estoppel to grant Arthur summary judgment.
Judgment reversed. Pope, P. J., concurs. Smith, P. J., conсurs specially.
SMITH, Presiding Judge, concurring specially.
Although I believe this case shares many similarities with cases such as Byrd v. JRC Towne Lake, Ltd., 225 Ga. App. 506 (484 SE2d 309) (1997), in which we concluded that the doctrine of judicial estoppel precluded the plaintiff from asserting a tort claim, I concur in the result reached by the majority. At least a subtle distinction exists between this case and Byrd. Jowers in effect amended her bankruptcy petition by successfully seeking its dismissal and filing another pеtition listing the potential tort claim in her schedule of assets. This distinction avoids the harsh result that would obtain
DECIDED JULY 12, 2000.
William R. McCracken, for appellant.
Dye, Tucker, Everitt, Wheale & Long, Jon E. Ingram, Jr., for appellee.
MILLER
JUDGE
A00A2077. NF INVESTMENTS, INC. v. WHITFIELD.
A00A2077
Court of Appeals of Georgia
DECIDED JULY 12, 2000.
537 SE2d 207
ELLINGTON, Judge.
Further, since plaintiff Whitfield failed to appeal judgments in favor of defendants Jack Stepp and Rebecca Brown, and defendant Larry Burkett failed to appeal a $13,500 judgment against him, National‘s appeal could not be considered a cross-appeal in order to reach this Court directly. See
Appeal dismissed. Andrews, P. J., and Ruffin, J., concur.
DECIDED JULY 12, 2000.
McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Scott H. Michalove, Peter L. Lublin, for appellant.
James M. Barnes, for appellee.
ELLINGTON
JUDGE