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Rowan v. Geo. H. Green Oil Inc.

Judicial estoppel did not bar the plaintiff's personal injury claim against the defendant, because the plaintiff amended her schedules to include the claim well in advance of any disposition of defendant's motion for summary judgment.

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Carol Rowan filed a personal injury action against George H. Green Oil, Inc., d/b/a Greenway Stores “Green”. The Superior Court of Fayette County issued an order granting summary judgment to Green on the basis of judicial estoppel in that Rowan failed to amend a previously filed bankruptcy petition in order to include the personal injury action. Rowan appeals from the superior court’s order. On the record before us, we find no basis for the application of judicial estoppel and reverse.

On August 11, 1997, Rowan filed for bankruptcy under Chapter 13 in the United States Bankruptcy Count for the Middle District of Georgia. In April of 2001, Rowan instituted her personal injury suit against Green. The bankruptcy court issued an order, filed on July 9, 2001, discharging Rowan’s debts after completion of a Chapter 13 debt adjustment plan. On July 20, 2001, Green filed a motion for summary judgment based on judicial estoppel for Rowan’s failure to amend her bankruptcy petition to add the personal injury claim against Green as an asset of the estate. Thereafter, Rowan amended the bankruptcy schedules to add the personal injury claim. With the amended schedule, Rowan filed a “Notice of Time to Respond to Amended Schedule C” and served the bankruptcy trustee and all creditors listed in the petition. Rowan’s bankruptcy case had not been closed, and the amended schedule and Notice were filed in the bankruptcy court on August 3, 2001. Oral argument was then heard on the Fayette County summary judgment motion on August 24, 2001, and, on September 4, 2001, the superior court issued its order granting summary judgment to Green on the basis of judicial estoppel. Held:

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