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Wolfork v. Tackett12/3/1999
whether a debtor's failure to supplement her bankruptcy petition to disclose a personal injury cause of action that accrues over a year after she filed the bankruptcy petition warrants the application of judicial estoppel as a matter of law. When analyzing this issue, we must keep in mind the purpose behind judicial estoppel -- preventing intentional or calculated "assertion of divergent sworn positions." Johnson, supra, 223 Ga. App. at 650. See also Southmark, supra, 212 Ga. App. at 455.
It is well established that a failure to disclose an accrued cause of action in response to a direct question should be treated as a denial that the claim exists and thus, a "position" for purposes of judicial estoppel. Southmark, 212 Ga. App. at 456; Byrd v. JRC Towne Lake, 225 Ga. App. 506, 507-508 (484 SE2d 309) (1997). These cases, however, do not govern the result in this case because the plaintiff honestly answered the direct question put to her in her Chapter 13 petition.
Although she did have a duty to later supplement her bankruptcy petition to include the after-acquired cause of action, Chandler v. Samford Univ., 35 FSupp.2d 861, 864 (ND Ala. 1999), we should draw a distinction between affirmative misrepresentations and passive failures to supplement for purposes of judicial estoppel. An affirmative misrepresentation about an existing cause of action supports the inference, as a matter of law, that the person making the misrepresentation intentionally asserted a contradictory position. We cannot, however, draw the same inference from the passive conduct of failing to supplement a bankruptcy petition with an after-acquired cause of action, standing alone. While it could be an intentional omission warranting the application of judicial estoppel, it could also be an innocent mistake. Based on the facts of this case, the issue of whether the plaintiff intentionally asserted a contradictory position should be left for the finder of fact to decide. See Clark v. Perino, 235 Ga. App. 444, 446 (1) (509 SE2d 707) (1988).Justice will not be served by automatically punishing a party who honestly represents that she had no personal injury causes of action at the time she files a bankruptcy petition. Instead, a windfall is bestowed upon an undeserving party. While it is true that we are not "a court of equity" with power, for example, to issue injunctions, the principles of Justice and equity should guide us when carrying out our duty to apply the law to the facts before us.
For the above-stated reasons, I respectfully Dissent from the majority opinion.
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