Daniel v. Fulton Cnty.

The trial court erred in applying the doctrine of judicial estoppel in dismissing the plaintiff's claim without considering all three factors set forth in case law for determining whether judicial estoppel bars a claim.

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Karen Daniel filed a complaint for damages against Fulton County, asserting a claim of inverse condemnation. The trial court dismissed the complaint on the ground that Daniel had filed for bankruptcy without disclosing the claim and was therefore precluded from pursuing it by the doctrine of judicial estoppel. Daniel appeals, challenging the dismissal of her complaint. Because the trial court failed to consider whether, under the circumstances, Daniel would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped, we vacate the order of dismissal and remand.

We conduct a de novo review of a trial court’s ruling on a motion to dismiss. National Bldg. & Maintenance Specialists v. Hayes, 288 Ga. App. 25 653 SE2d 772 2007. The record here shows that in December 2009, Daniel served ante litem notice on Fulton County that she was seeking nearly $1 million in damages arising from alleged sewage spills on her property. In April 2010, she filed a petition for Chapter 7 bankruptcy protection. She did not include the potential claim for damages in the petition. In August 2010, she filed suit against the county and did not amend her bankruptcy petition to report the claim for damages. In August 2012, while considering a defense motion for summary judgment, the trial court asked the parties to submit briefs as to the effect of the bankruptcy proceeding on the instant action. Daniel filed her brief in October 2012, and stated that she had immediately begun taking steps to reopen the bankruptcy case to amend the schedules. On January 4, 2013, the last business day of its November 2012 term, see OCGA § 15-6-3 3, the trial court entered an order of dismissal, concluding that because Daniel had “failed to produce evidence that she has taken action to re-open her bankruptcy, . . . she is judicially estopped from pursuing her claim in the instant litigation.”

Daniel v. Fulton Cnty.

The trial court erred in applying the doctrine of judicial estoppel in dismissing the plaintiff's claim without considering all three factors set forth in case law for determining whether judicial estoppel bars a claim.

Share with Email

Thank you for sharing!

Trending Stories

More From ALM

Subscribe to Daily Report