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Saunders v. North Alabama Neurological5/21/1999
ine of judicial estoppel applies is not a factual issue. However, the question at issue here is not whether judicial estoppel applies in this case. We agree that if the Saunderses knew they had a claim at the time their bankruptcy petition was filed, then the doctrine would apply. The question is whether the Saunderses knew or should have known that they had a valid cause of action against Dr. Hash at the time they filed their bankruptcy petition. As this court held in Underwood, that is a genuine issue of a material fact that must be determined by the finder of fact.
This situation is analogous to determining whether a fraud claim is barred by the statute of limitations. There is no dispute that if a party knew he had a claim but failed to file that claim in a timely manner, then his claim is barred by the statute of limitations. Whether the statute of limitations is applicable in any given case is a question of law. However, the question of when a party knew or should have known of the fraud which would toll the statute of limitations is for the jury. McGowan v. Chrysler Corp., 631 So. 2d 842 (Ala. 1993).
The question of when the Saunderses knew they had a claim against Dr. Hash is a genuine issue of a material fact. Therefore, summary judgment is not proper in this case, and I would reverse the judgment of the trial court. I also do not agree with the main opinion's decision to overrule Underwood. Therefore I respectfully Dissent.
Yates, J., concurs.
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