REL: 11/07/2014




Notice: This opinion is subject to formal revision before publication in the advance
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the opinion is printed in Southern Reporter.




          SUPREME COURT OF ALABAMA
                           OCTOBER TERM, 2014-2015
                            ____________________

                                    1130342
                             ____________________

        Ex parte Jackson Hospital & Clinic, Inc., et al.

                       PETITION FOR WRIT OF MANDAMUS

                           (In re: Joanne Anderson

                                           v.

                  Jackson Hospital & Clinic, Inc., et al)

                             ____________________

                                    1130357
                             ____________________

                          Ex parte Joanne Anderson

                       PETITION FOR WRIT OF MANDAMUS

                           (In re: Joanne Anderson
                                 v.

          Jackson Hospital & Clinic, Inc., et al)

              (Montgomery Circuit Court, CV-12-1044)



STUART, Justice.

    Joanne Anderson sued Jackson Hospital and Clinic, Inc.,

Dr. Stephen K. Kwan, and Dr. Kwan's practice group, Capital

Cardio-Thoracic, P.C. (hereinafter referred to collectively as

"the Jackson Hospital defendants"), in the Montgomery Circuit

Court, asserting medical-malpractice claims against them.

Thereafter, the trial court granted a motion to substitute

bankruptcy trustee Daniel G. Hamm for Anderson as the real

party in interest pursuant to Rule 17, Ala. R. Civ. P.,

because Anderson had filed a petition for Chapter 7 bankruptcy

pursuant to 11 U.S.C. § 701 et seq. after her medical-

malpractice     claim   had   accrued.   The   Jackson   Hospital

defendants subsequently petitioned this Court for permission

to file an interlocutory appeal pursuant to Rule 5, Ala. R.

App. P., arguing that Hamm's attempt to be substituted as the

real party in interest was untimely under Rule 17;       Anderson

filed a separate Rule 5 petition for permission to appeal,




                                  2
1130342, 1130357

challenging the trial court's decision to remove her as the

plaintiff in this case.    We granted both petitions; however,

as explained infra, we now treat the parties' petitions for

permissive appeals as petitions for writs of mandamus, and we

deny those petitions.

                               I.

    On October 5, 2010, Anderson presented herself at the

Jackson Hospital emergency room complaining of chest pain.

Anderson had previously been diagnosed with coronary heart

disease, and it was ultimately determined that she now needed

coronary-artery-bypass surgery; on October 8, 2010, Dr. Kwan

performed the procedure.   Anderson thereafter had circulation

issues in her feet; however, she was discharged from the

hospital on October 25, 2010.       Dr. Kwan conducted follow-up

examinations with Anderson on November 2, 2010, and November

23, 2010, and on those visits she complained of continuing

pain and circulation issues with her feet.         During those

examinations, Dr. Kwan determined that parts of Anderson's

feet, including at least some toes, would likely have to be

amputated; however, a final decision on the matter was delayed




                                3
1130342, 1130357

because the swelling and blistering on Anderson's feet made it

difficult to fully evaluate them.

      On November 24, 2010, Anderson was again admitted to

Jackson Hospital. On November 27, 2010, Dr. Kwan examined her

again.     He noted at that time that circulation in her legs was

fine above the ankles, but that she had developed gangrene and

that parts of her feet were dead with no circulation at all.

After waiting for her overall condition to improve –– she was

also experiencing kidney and respiratory failure at this time

–– Dr. Kwan performed surgery on December 8, 2010, to amputate

parts of Anderson's feet.       During the course of the surgery,

he ultimately determined that the feet were no longer viable

and   he     accordingly     performed         bilateral    below-the-knee

amputations.

      For all that appears, Anderson thereafter recovered to

some extent and was discharged from Jackson Hospital.                     On

November 8, 2011, Anderson filed a petition for Chapter 7

bankruptcy in the United States Bankruptcy Court for the

Middle     District   of   Alabama.       As    part   of   that   petition,

Anderson completed schedules detailing her debts and her

assets.     Those schedules indicated that she had approximately


                                      4
1130342, 1130357

$28,000 of unsecured debt, consisting mostly of medical and

consumer    debt,     and   that     she   had    no   significant      assets.

Notably, she did not include among her assets any potential

cause of action against the Jackson Hospital defendants, even

though she was required by bankruptcy law to do so.                          See,

e.g., Transouth Fin. Corp. v. Murry, 311 B.R. 99, 102 (M.D.

Ala. 2004) ("One who files bankruptcy must disclose all of his

assets, including causes of action, lawsuits, or potential

lawsuits.").    On March 1, 2012, the bankruptcy court granted

Anderson a complete discharge of her debts, presumably putting

an end to those bankruptcy proceedings.

    On     October    9,    2012,    Anderson     initiated      the    instant

medical-malpractice         action    against      the   Jackson       Hospital

defendants.     On approximately May 2, 2013, Anderson filed

responses to interrogatories served upon her by the Jackson

Hospital    defendants      in   which      she   revealed    that     she    had

recently     filed    for    bankruptcy.           The   Jackson       Hospital

defendants     then     obtained      the     records     from     Anderson's

bankruptcy proceedings and, upon discovering that Anderson had

not disclosed a potential cause of action against them in the

list of assets filed with the bankruptcy court, prepared a


                                       5
1130342, 1130357

motion asking the trial court to enter a summary judgment in

their favor on judicial-estoppel grounds.            See, e.g., Luna v.

Dominion Bank of Middle Tennessee, Inc., 631 So. 2d 917, 919

(Ala. 1993) ("The doctrine of judicial estoppel applies, where

a debtor in bankruptcy proceedings fails to disclose any claim

that may be presented in a nonbankruptcy contest, to estop the

debtor from presenting the claim.").

    On Friday, May 24, 2013, one of the attorneys for the

Jackson   Hospital     defendants       notified   one   of   Anderson's

attorneys of the substance of the summary-judgment motion he

had prepared to file.         In an affidavit contained in the

record, the attorney for the Jackson Hospital defendants

states that Anderson's attorney asked him not to file the

motion until after the impending Memorial Day weekend and

that, as a courtesy, he waited until Tuesday, May 28, 2013, to

file the motion.      Prior to the filing on the afternoon of May

28 of an amended answer and the summary-judgment motion

asserting judicial estoppel as a ground, however, Anderson

filed a motion in the bankruptcy court seeking to reopen her

bankruptcy case, along with amended schedules listing as an

asset   her   cause   of   action   against    the   Jackson   Hospital


                                    6
1130342, 1130357

defendants.    Two days later, on May 30, 2013, Hamm filed a

similar motion seeking to reopen Anderson's bankruptcy case

and to be reappointed trustee, and he thereafter moved the

bankruptcy    court   to    authorize   him   to   employ   one   of    the

attorneys who had been retained by Anderson in her action

against the Jackson Hospital defendants as his attorney in

that action as well. The bankruptcy court eventually approved

all of those motions, reopening Anderson's bankruptcy case on

June 14, 2013, and, on July 8, 2013, authorizing Hamm to use

Anderson's attorney in the instant action.

    After first learning of Anderson's medical-malpractice

claim, Hamm also, on May 31, 2013, filed a motion with the

trial court in this action, notifying it that he had just

learned of Anderson's medical-malpractice claim and that he

was seeking to reopen Anderson's bankruptcy case and to be

reappointed trustee in the case.        Hamm further stated in that

motion that he was in current "discussions with an attorney to

represent    ...   the     plaintiff/trustee's      interest"     and   he

requested that the case be stayed until a decision was made as

to representation.         It is not clear whether the trial court




                                    7
1130342, 1130357

ever explicitly ruled on Hamm's request for a stay, but the

discovery process appears to have continued during this time.

    On November 4, 2013, Hamm filed a motion to formally

intervene in this action, asserting that he was the real party

in interest under Rule 17.       The Jackson Hospital defendants

thereafter filed an objection, arguing that Rule 17 allows a

real party in interest to be substituted for the original

party only if the motion seeking to make the substitution is

made within "a reasonable time" after the issue is raised,

and, they argued, Hamm's more than five-month delay was not a

"reasonable time."    On November 14, 2013, the trial court

conducted a hearing at which it heard arguments on the issues

raised by the parties in connection with the Jackson Hospital

defendants'   summary-judgment    motion   and   Hamm's   motion   to

intervene.    On December 9, 2013, the trial court entered an

order resolving those issues, stating as follows:

    "[W]ith regard to defendants' motion for summary
    judgment, the court notes that such motion is based
    upon the doctrine of judicial estoppel (contending
    that the plaintiff failed to disclose her cause of
    action to the bankruptcy court during her Chapter 7
    proceedings) and on the contention that plaintiff
    Joanne Anderson is not the real party in interest.
    ... [T]he plaintiff has now amended the complaint
    and [Hamm,] the trustee in bankruptcy has been
    permitted to intervene as the real party in

                                 8
1130342, 1130357

       interest.   Pursuant to Hamm v. Norfolk Southern
       Railway Co., 52 So. 3d 484 (Ala. 2010), the
       defendants' motion for summary judgment is denied in
       part, such that [Hamm] shall be permitted to pursue
       Joanne Anderson's claims against the defendants for
       a recovery up to the amount necessary to pay the
       claims   of  Anderson's   creditors   and   expenses
       associated with the related bankruptcy proceedings.
       The motion for summary judgment is granted in all
       other respects, and summary judgment is hereby
       entered in favor of the defendants and against
       Plaintiff Joanne Anderson as to all claims brought
       by her."

However, the trial court recognized that there was substantial

ground for difference of opinion regarding its conclusions of

law,    and    it   accordingly   certified    its     order   for    an

interlocutory appeal pursuant to Rule 5.

       On December 23, 2013, the Jackson Hospital defendants

petitioned this Court for permission to appeal immediately the

trial court's order insofar it held that Hamm's motion to

intervene was timely under Rule 17 (case no. 1130342), and, on

December      24,   2013,   Anderson   petitioned    this    Court   for

permission to appeal immediately the trial court's order

insofar as it held that she –– as opposed to Hamm acting on

behalf of her creditors –– was judicially estopped from

proceeding     with   her   medical-malpractice      claim   (case   no.

1130357).     On May 27, 2014, this Court granted both petitions


                                   9
1130342, 1130357

and ordered briefing.    This Court has now elected to treat

both petitions for permission to appeal as petitions for a

writ of mandamus.1   The Jackson Hospital defendants and Hamm

have now filed briefs in case no. 1130342, and the Jackson

Hospital defendants and Anderson have filed briefs in case no.

1130357.


    1
     Although this Court granted both the Jackson Hospital
defendants' petition and Anderson's petition to file
permissive appeals pursuant to Rule 5, upon further
examination it is apparent that a petition for a writ of
mandamus is the appropriate means by which to seek review of
the issues they raise –– whether Hamm timely moved to
substitute himself as the real party in interest and whether
Anderson should be allowed to proceed as the real party in
interest regardless of her bankruptcy filing and initial
failure to disclose her claim in those bankruptcy proceedings.
See Ex parte U.S. Bank Nat'l Ass'n, [Ms. 1120904, Feb. 7,
2014] ___ So. 3d ___, ___ (Ala. 2014) (listing issues this
Court has held to be appropriate for mandamus review); Ex
parte Tyson Foods, Inc., 146 So. 3d 1041 (Ala. 2013)
(reviewing, on petition for writ of mandamus, the trial
court's ruling on a motion seeking to add a real party in
interest); and Ex parte Chemical Lime of Alabama, Inc., 916
So. 2d 594, 596-97 (Ala. 2005) (considering, on petition for
writ of mandamus, whether plaintiffs had timely moved to
substitute defendant for a fictitiously named defendant).
Accordingly, we now exercise our discretion to treat the
parties' permissive appeals as petitions for the writ of
mandamus.   See, e.g., Ex parte Watson, 37 So. 3d 752, 757
(Ala. 2009) ("This Court ordered that the defendants' petition
for permission to appeal be treated as a petition for a writ
of mandamus ...."), and Ex parte G & G Steel, Inc., 601 So. 2d
990, 991 (Ala. 1992) ("This Court has elected to treat the
Rule 5 petition for permission to appeal as a petition for a
writ of mandamus.").
                              10
1130342, 1130357

                             II.

    In Hamm v. Norfolk Southern Ry. Co., 52 So. 3d 484, 493

n. 3 (Ala. 2010), this Court indicated that it reviews a trial

court's decision regarding what constitutes "a reasonable

time" for purposes of Rule 17 to determine whether the court

exceeded its discretion:

    "[T]he question whether a 'reasonable time' would
    have passed and whether the action should have been
    dismissed at that juncture for a failure of
    substitution are questions as to which a trial court
    is to exercise discretion based on its assessment of
    the type of case and its facts and the procedural
    history of the case.     [6A Charles Alan Wright,
    Arthur R. Miller & Mary Kay Kane,] Federal Practice
    & Procedure at § 1555 [(2d ed. 1990)] ('What
    constitutes a reasonable time is a matter of
    judicial discretion and will depend upon the facts
    of each case.')."

We further quoted in Hamm the United States Court of Appeals

for the Eleventh Circuit:

    "'"[W]e review the district court's application of
    judicial estoppel for abuse of discretion." Burnes
    [v. Pemco Aeroplex, Inc.], 291 F.3d [1282,] 1284
    [(11th Cir. 2002)].     "The abuse of discretion
    standard includes review to determine that the
    discretion was not guided by erroneous legal
    conclusions." Talavera v. School Bd. of Palm Beach
    County, 129 F.3d 1214, 1216 (11th Cir. 1997).'"

52 So. 3d at 489 (quoting Parker v. Wendy's Int'l, Inc., 365

F.3d 1268, 1271 (11th Cir. 2004)).       See also Hughes v.


                             11
1130342, 1130357

Mitchell Co., 49 So. 3d 192, 203 (Ala. 2010) (stating that

"there is no general formulation of principle dictating when

the   doctrine   of   judicial   estoppel   applies   [and]   such   a

decision is left to the court's discretion"). Thus, we review

the trial court's decision on both the Rule 17 and judicial-

estoppel   issues     to   determine   whether   it   exceeded   its

discretion.2

      2
     In Lumpkin v. City of Gulf Shores, 964 So. 2d 1233 (Ala.
Civ. App. 2006), the Court of Civil Appeals affirmed a summary
judgment entered in favor of the appellee, in part because
that court concluded that the appellants had failed to timely
substitute the real party in interest as a plaintiff.       It
appears in that case that the trial court had not articulated
its reasons for entering the summary judgment, and it is not
clear that the issue whether the plaintiffs had been given the
Rule 17(a)-mandated "reasonable time" to make substitution of
the proper real party in interest had been considered by the
trial court or even raised by the parties before the summary
judgment was entered. Accordingly, the Court of Civil Appeals
appropriately considered that issue de novo. See Lumpkin, 964
So. 2d at 1236 (stating that the appellants prefaced their
argument that they should still be allowed to substitute the
real party in interest by stating: "'[I]f the trial court's
rationale for dismissing [their] appeal was that [the
Association] instead of the [appellants] was the real party in
interest, then [the Association] should be joined or
substituted to prevent what is at present a gross miscarriage
of justice.'" (quoting the appellants' brief) (emphasis
added)). In the instant case, however, it is apparent from
the trial court's order ruling on the Jackson Hospital
defendants' summary-judgment motion and Hamm's motion to
intervene that the trial court had affirmatively considered
the timeliness issue and found that Hamm had moved within a
reasonable time to be named the real party in interest.
Accordingly, for the reasons explained in Hamm, 52 So. 3d at
                                  12
1130342, 1130357

                                 III.

    We   first    consider    the    Jackson     Hospital    defendants'

arguments in case no. 1130342 concerning the timeliness of

Hamm's intervention.        The issue presented in this case was

aptly stated by the trial court as being "whether [Hamm's]

motion   for   leave   to   intervene    and    to   file   [an]   amended

complaint was timely and properly filed pursuant to Rules 17

and/or 24 of the Alabama Rules of Civil Procedure and the

applicable statute of limitations."            Rule 17(a) provides, in

pertinent part:

    "No action shall be dismissed on the ground that it
    is not prosecuted in the name of the real party in
    interest until a reasonable time has been allowed
    after objection for ratification of commencement of
    the action by, or joinder or substitution of, the
    real party in interest; and such ratification,
    joinder, or substitution shall have the same effect
    as if the action had been commenced in the name of
    the real party in interest."

In this case, the first "objection" to Anderson's status as

the real party in interest to assert the medical-malpractice

claim against the Jackson Hospital defendants came on May 28,

2013, when the Jackson Hospital defendants filed an amended

answer succinctly asserting that "[Anderson] is not the real



489 n. 3, we review that decision for an excess of discretion.
                                    13
1130342, 1130357

party in interest in this case."   It is thereafter undisputed

that Hamm did not formally move to take Anderson's place as

the real party in interest until November 5, 2013 –– over five

months after the initial objection was made.   It is apparent

that Hamm became aware of the objection at approximately the

same time the objection was made because, on May 30, 2013, he

moved the bankruptcy court to reopen Anderson's bankruptcy

case; accordingly, the relevant question for the trial court

was whether that five-month delay was reasonable.

    The Jackson Hospital defendants essentially argue that a

five-month delay is per se unreasonable and, in support of

that argument, cite Lumpkin v. City of Gulf Shores, 964 So. 2d

1233 (Ala. Civ. App. 2006), and Wilson v. Tucker, No. 10-CV-

0714-CVE-FHM (N.D. Okla. Jan. 5, 2011) (not reported in F.

Supp. 2d).3   In Lumpkin, the Court of Civil Appeals indicated

that a summary judgment was due to be affirmed because, in the


    3
     The United States District Court in Wilson considered the
meaning of "a reasonable time" in Rule 17(a), Fed. R. Civ. P.,
which is substantially similar to Rule 17(a), Ala. R. Civ. P.
We have stated that "[b]ecause the Alabama Rules of Civil
Procedure are patterned after the Federal Rules of Civil
Procedure, federal cases construing the Federal Rules of Civil
Procedure are persuasive authority in construing the Alabama
Rules of Civil Procedure." Ex parte Alabama State Pers. Bd.,
54 So. 3d 886, 893 (Ala. 2010).
                              14
1130342, 1130357

two-month period after the appellee had articulated a real-

party-in-interest challenge, the appellants "did nothing" to

remedy the issue by moving either to substitute or to join the

identified real party in interest.                    964 So. 2d at 1236.

Similarly, in Wilson, the United States District Court for the

Northern District of Oklahoma granted the defendant's motion

to    dismiss    after    neither      the   plaintiff    nor    the    trustee

appointed in the plaintiff's separate bankruptcy case "made

any effort to substitute the trustee as the real party in

interest" in the two-month period after the defendant had

asserted a real-party-in-interest challenge.                     The Jackson

Hospital defendants argue that the principle to be gleaned

from    these     cases       is    that,    if   a   two-month     delay      is

unreasonable, then a five-month delay surely is unreasonable.

       We disagree.       After reviewing these and other relevant

cases, we think the principle that is most apparent is that

trial courts are best equipped to decide what constitutes "a

reasonable time" under Rule 17(a) in any particular case based

on their familiarity with the facts and specific history of

the    case,     and,    accordingly,        an   appellate     court    should

generally       defer    to   the    trial    court's    exercise       of   that


                                        15
1130342, 1130357

discretion.     Given the facts of a particular case, a trial

court may decide that two months is not a reasonable time, or

it may decide that an even shorter period is not reasonable,

or that a longer period is reasonable.             For example, in

Killmeyer v. Oglebay Norton Co., 817 F. Supp. 2d 681 (W.D. Pa.

2011), the United States District Court for the Western

District of Pennsylvania considered the same general issue

raised in this case –– what was a reasonable time for a

bankruptcy trustee to move to substitute himself as the real

party in interest in an action brought by a Chapter 7 debtor.

After noting that what constitutes a reasonable time is a

matter of judicial discretion dependant on the facts of the

case, the federal district court concluded that the trustee's

motion to substitute, made approximately four months after the

defendants    had   asserted   a    formal   real-party-in-interest

challenge and five months after the trustee first learned of

the action, was nevertheless timely.         817 F. Supp. 2d at 690.

The federal district court further noted that, as in the

instant case, part of any delay was attributable to the fact

that the trustee had not known of the action at the time it

was filed and, upon learning of the action, the trustee


                                   16
1130342, 1130357

subsequently had to seek the bankruptcy court's approval to

have counsel appointed to prosecute the claim on the trustee's

behalf.4    Id.

    Thus, the Killmeyer court concluded that a trustee's

motion to substitute himself as plaintiff for a Chapter 7

debtor     was    timely   even   though   that   motion   was   filed

approximately five months after the trustee first learned that

the Chapter 7 debtor had initiated the action.             The trial

court in this action made essentially the same conclusion, and

we cannot say that it exceeded its discretion by doing so.

Accordingly, the action should proceed as if it had been

commenced in the name of Hamm, the real party in interest.

Rule 17(a).       See also Board of Water & Sewer Comm'rs of City

of Mobile v. McDonald, 56 Ala. App. 426, 430-31, 322 So. 2d

717, 721 (Ala. Civ. App. 1975) (stating that, when Rule 17(a)

is applied, it is unnecessary to resort to Rule 15(c), Ala. R.



    4
     We further note that Hamm notified the trial court on May
31, 2013 –– just days after learning that Anderson had
initiated an action against the Jackson Hospital defendants ––
that   he    was   seeking    counsel   to   represent    "the
plaintiff/trustee's interest" in that case moving forward.
Thus, Hamm essentially notified the trial court at that time
that he ratified Anderson's commencement of the action and
would be taking it over.
                                   17
1130342, 1130357

Civ. P., to determine whether an amended pleading relates back

to the date of an original pleading).

                             IV.

    We next consider Anderson's argument in case no. 1130357

that she should be allowed to prosecute this action in her

individual capacity. The trial court stated the issue in that

regard as follows:

    "Whether [Anderson] is barred from prosecuting this
    action in her individual capacity: (a) based on the
    doctrine of judicial estoppel, by virtue of her not
    disclosing the presently advanced cause of action
    during her Chapter 7 proceedings, and/or (b) based
    on her not being the real party in interest."

Anderson essentially argues to this Court that the Jackson

Hospital defendants failed to establish that the doctrine of

judicial estoppel should apply and that the trial court's

ruling unfairly prevents her from petitioning the bankruptcy

court for permission to prosecute the medical-malpractice

action herself as the real party in interest.      Neither of

those arguments has merit.

    First, our decision in Hamm illustrates that the trial

court's application of the doctrine of judicial estoppel was

proper. In Hamm, the plaintiff filed a bankruptcy petition in

October 2004; that petition did not disclose any potential

                             18
1130342, 1130357

causes of action in the list of assets submitted to the

bankruptcy court. 52 So. 3d at 487. Nevertheless, in January

2005, the plaintiff initiated an action against his former

employer, and, in March 2005, he received a complete discharge

of debts and his bankruptcy case was closed.               Id.   In January

2006,    the   plaintiff's    former       employer    learned     of    the

bankruptcy case during a deposition, and it thereafter amended

its answer to assert the affirmative defense of judicial

estoppel and filed a motion for a summary judgment on that

same    ground.    Id.    Thereafter,       the   plaintiff      moved   the

bankruptcy court to reopen his bankruptcy estate, and he also

filed amended schedules listing the cause of action against

his former employer as an asset of the bankruptcy estate.                 52

So. 3d at 488.      Nevertheless, the trial court granted the

employer's summary-judgment motion, and, after the trial court

also denied a postjudgment motion seeking to substitute the

bankruptcy     trustee   as   the   real    party     in   interest,     the

plaintiff and the trustee filed a joint appeal to this Court.

Id.

       After holding that the bankruptcy trustee was in fact the

real party in interest, 52 So. 3d at 491-92, this Court


                                    19
1130342, 1130357

considered what effect the doctrine of judicial estoppel

should have in the case:

         "'In Ex parte First Alabama Bank, [883 So. 2d
    1236 (Ala. 2003),] this Court "embrace[d] the
    factors set forth in New Hampshire v. Maine[, 532
    U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001),]
    and join[ed] the mainstream of jurisprudence in
    dealing with the doctrine of judicial estoppel."'
    Middleton v. Caterpillar Indus., Inc., 979 So. 2d
    53, 60 (Ala. 2007) (quoting Ex parte First Alabama
    Bank, 883 So. 2d at 1246). For judicial estoppel to
    apply (1) 'a party's later position must be "clearly
    inconsistent" with its earlier position'; (2) the
    party must have been successful in the prior
    proceeding 'so that judicial acceptance of an
    inconsistent position in a later proceeding would
    create "the perception that either the first or
    second court was misled"'; and (3) 'the party
    seeking to assert an inconsistent position would
    derive an unfair advantage or impose an unfair
    detriment on the opposing party if not estopped.'
    New Hampshire, 532 U.S. at 750–51 (citations
    omitted); see Middleton, 979 So. 2d at 60–61; Ex
    parte First Alabama Bank, 883 So. 2d at 1244–45.
    This Court has stated that '[t]he purpose of
    judicial estoppel is "'to protect the integrity of
    the judicial process' by 'prohibiting parties from
    deliberately changing positions according to the
    exigencies of the moment.'"' Middleton, 979 So. 2d
    at 59 (quoting New Hampshire, 532 U.S. at 749–50;
    other citation omitted).

         "It is evident that the trial court properly
    applied the doctrine of judicial estoppel to [the
    plaintiff] when it entered the summary judgment
    against him. After he filed the ... action [against
    his former employer], [the plaintiff] failed to
    amend his bankruptcy schedules to reflect his ...
    claim as a potential asset, and thereafter he
    received a 'no-assets' discharge in the bankruptcy

                            20
1130342, 1130357

    proceeding. Despite this outcome, [the plaintiff]
    continued to prosecute the ... action. Thus, [the
    plaintiff] had taken clearly inconsistent positions;
    he was successful in his bankruptcy proceeding; and
    he potentially could have received the unfair
    advantage of a possible $750,000 'windfall' if he
    succeeded in his claim against [his former
    employer].

         "The fact that the trial court properly applied
    the   doctrine   of   judicial   estoppel  to   [the
    plaintiff], however, does not mean that that
    doctrine   necessarily    is  applicable  to   [the]
    bankruptcy trustee.     ...  The trustee has never
    taken inconsistent positions with regard to the ...
    claim because he did not know about the claim until
    the bankruptcy schedules were amended to reflect the
    existence of the claim as a potential asset to the
    estate.     Therefore, [the trustee] cannot be
    judicially estopped from pursuing the claim."

52 So. 3d at 494.    Thus, Hamm clearly indicates that the

doctrine of judicial estoppel can operate to bar a party from

pursuing an action if that party previously failed to disclose

the cause of action as an asset during bankruptcy proceedings

that take place after the cause of action arises.

    Anderson   nevertheless   argues   that   the   doctrine   of

judicial estoppel should not apply to her for three reasons.

First, she argues that, unlike the plaintiff in Hamm, she did

not know of the existence of her cause of action until after

her bankruptcy case was closed.    Thus, she argues, she has




                              21
1130342, 1130357

never knowingly asserted inconsistent positions so as to

implicate the doctrine of judicial estoppel.

      However,     this   Court    has     indicated    that    the   crucial

inquiry     is   not   whether    a   plaintiff      actually    knew      of   a

potential claim, but whether a reasonable person should have

known about the potential claim.             See Hamm, 52 So. 3d at 498

(citing Jinright v. Paulk, 758 So. 2d 553, 559 (Ala. 2000),

for   the    proposition    that      "among   the     questions      of   fact

essential to a determination of the applicability of the

doctrine of judicial estoppel is 'whether a debtor who is

engaged in bankruptcy proceedings knew or should have known

about claims or causes of action that should be disclosed as

assets'"), and Luna, 631 So. 2d at 919 ("[The plaintiff]

further contends that the doctrine of judicial estoppel should

not be applied to him because, he says, he was unaware of his

claims against [the defendant] until after his bankruptcy

discharge.       This argument is also without merit.            Certainly,

if the facts ... were as he says they were,                        then [the

plaintiff], acting as a reasonable person, would have known,

when he filed his bankruptcy proceeding, that he had a claim

against [the defendant].").           In this case, Anderson alleges


                                      22
1130342, 1130357

that the Jackson Hospital defendants' negligence following the

October 2010 heart surgery resulted in the amputation of her

feet in December 2010.         Thus, the result of the alleged

negligence was admittedly apparent by December 2010, and, if

the   facts   are   as   Anderson    has   asserted   them   to   be,   a

reasonable person should accordingly have been aware by that

time that a possible cause of action against the Jackson

Hospital defendants existed.         Moreover, Anderson essentially

agreed with this conclusion in a January 2013 amendment to her

complaint in which she stated that "[p]laintiff's injury and

defendants' substandard care [were] not discovered and could

not have reasonably been discovered prior to December of

2010."    "'"Normally, factual assertions in pleadings and

pretrial orders are considered to be judicial admissions

conclusively binding on the party who made them."'"               Noland

Health Servs., Inc. v. Wright, 971 So. 2d 681, 685-86 (Ala.

2007) (quoting Jones v. Kassouf & Co., 949 So. 2d 136, 142

(Ala. 2006) (Lyons, J., dissenting), quoting in turn White v.

ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983)).

Accordingly, we find no merit in Anderson's argument that the

trial court should not have applied the doctrine of judicial


                                    23
1130342, 1130357

estoppel against her because she alleges she was not aware

that she had a possible claim against the Jackson Hospital

defendants at any time during the pendency of her bankruptcy

case.5


    5
     We further note that we are not impressed by Anderson's
contention that, "[a]fter the cause of action against
appellees became known to [her], she took the extraordinary
measure of reopening her bankruptcy case and amending her
bankruptcy schedules to list the cause of action against
appellees." Anderson's brief in case no. 1130357, p. 21-22.
Anderson does not dispute that she moved to reopen her
bankruptcy case in May 2013 only after being notified that the
Jackson Hospital defendants were preparing to move for a
summary   judgment   on  a   judicial-estoppel   ground;   she
undisputedly took no action to do so on her own initiative in
the seven months following the initiation of her lawsuit. In
Hamm, we warned against the incentives that would be created
if the initial failure to disclose assets in bankruptcy
proceedings was excused by giving effect to subsequent
amendments without consequence:

    "'"Allowing [a debtor] to back-up, re-open the
    bankruptcy case, and amend his bankruptcy filings,
    only after his omission has been challenged by an
    adversary, suggests that a debtor should consider
    disclosing potential assets only if he is caught
    concealing them. This so-called remedy would only
    diminish the necessary incentive to provide the
    bankruptcy court with a truthful disclosure of the
    debtor's assets." Burnes[ v. Pemco Aeroplex, Inc.,
    291 F.3d 1282,] 1288 [(11th Cir. 2002)] (citation
    omitted). As such, [the debtor's] disclosure upon
    re-opening the bankruptcy estate deserves no
    favor.'"

52 So. 3d at 495 (quoting Barger v. City of Cartersville, Ga.,
348 F.3d 1289, 1297 (11th Cir. 2003)).
                             24
1130342, 1130357

    Anderson     next   argues   that    the   doctrine   of   judicial

estoppel should not have been applied against her because, she

argues, she will gain no unfair advantage if she is allowed to

pursue her action against the Jackson Hospital defendants in

that the first $28,000 of any judgment awarded would go to

those entities holding her discharged debt.               However, she

fails to recognize that she has already had $28,000 of debt

discharged and that the bankruptcy court, though it granted

her motion to reopen her bankruptcy case, denied her motion to

set aside the judgment discharging her debts.              In Hamm, we

noted that the unfair-advantage prong of the Ex parte First

Alabama Bank, 883 So. 2d 1236 (Ala. 2003), judicial-estoppel

test was satisfied because the plaintiff "potentially could

have received the unfair advantage of a possible $750,000

'windfall'" if he was successful in prosecuting the claim

omitted from his bankruptcy petition.          52 So. 3d at 494.   That

same potential for a windfall was present in this case as

well, and, as we explained in Hamm, it is sufficient to

establish the unfair-advantage prong of the judicial-estoppel

test;   accordingly,    Anderson's      argument   on   this   point   is

without merit.


                                  25
1130342, 1130357

     Anderson's      final    argument     regarding      the   doctrine   of

judicial estoppel is that the Jackson Hospital defendants

suffer from unclean hands in this matter, which, she says,

should     estop     them     from   asserting         judicial    estoppel.

Essentially,       Anderson    argues     that   the     Jackson    Hospital

defendants fraudulently concealed mistakes that, she generally

alleges, were made during her coronary surgery and/or her

follow-up care until after her bankruptcy case was completed

and that they accordingly should not be allowed to profit from

their wrongful conduct by invoking the doctrine of judicial

estoppel against her.         However, as discussed above, we have

already concluded, based partly upon Anderson's own statements

in   her    amended     pleadings,        that   the     Jackson   Hospital

defendants' alleged negligence could reasonably have been

discovered by December 2010.         Thus, Anderson cannot attribute

to the Jackson Hospital defendants her failure, in November

2011, to disclose to the bankruptcy court a claim based upon

that alleged negligence.

     Moreover, this Court has stated that "'the doctrine of

unclean hands cannot be applied in the context of nebulous

speculation    or     vague    generalities;     but     rather    it   finds


                                     26
1130342, 1130357

expression in specific acts of willful misconduct which is

morally reprehensible as to known facts.'"     Retail Developers

of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So. 2d

924, 932 (Ala. 2007) (quoting Sterling Oil of Oklahoma, Inc.

v. Pack, 291 Ala. 727, 746, 287 So. 2d 847, 864 (1973)).

Although Anderson has generally accused the Jackson Hospital

defendants of fraudulently hiding their alleged negligence,

she does not, in her initial brief to this Court, cite any

"specific acts of willful misconduct."         After the Jackson

Hospital   defendants   identified   this   deficiency,   Anderson

attempted to correct it in her reply brief; however, that

attempt comes too late.     As the Court of Criminal Appeals

explained in L.J.K. v. State, 942 So. 2d 854, 868-69 (Ala.

Crim. App. 2005):

    "'Recitation of allegations without citation to any
    legal authority and without adequate recitation of
    the facts relied upon has been deemed a waiver of
    the arguments listed.' Hamm v. State, 913 So. 2d
    460, 486 (Ala. Crim. App. 2002). [The appellant]
    cites no legal authority in support of his argument.
    He also fails to provide an adequate recitation of
    the facts relied upon in support of his argument;
    merely referring to the record without setting forth
    the facts in support of an argument is not
    sufficient to comply with Rule 28(a)(10), Ala. R.
    App. P.   Moreover, although [the appellant] cites
    Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
    2052, 80 L.Ed.2d 674 (1984), in his reply brief, and

                               27
1130342, 1130357

    lists four specific allegations of ineffective
    assistance of counsel, because his initial brief
    fails to comply with Rule 28(a)(10), and he did not
    include those specific allegations in his initial
    brief, we consider them to have been raised for the
    first time in his reply brief. ... As noted above,
    'an appellant may not raise a new issue for the
    first time in a reply brief.' Woods v. State, 845
    So. 2d [843] at 846 [(Ala. Crim. App. 2002)]. See
    also James v. State, 788 So. 2d 185, 192 n. 2 (Ala.
    Crim. App. 2000) (noting that an appellant may not
    raise for the first time in his reply brief specific
    allegations of ineffective assistance of counsel
    that were not raised in his initial appellate
    brief)."

We agree with the Court of Criminal Appeals' recitation of the

applicability of Rule 28(a)(10), Ala. R. App. P. Anderson has

not established that the trial court exceeded its discretion

in the manner in which it applied the doctrine of judicial

estoppel against her.

    Anderson's final argument is that the summary judgment

should be reversed because, she argues, she should be given

the opportunity to ask the bankruptcy court if she, instead of

Hamm, the trustee, can pursue her claim against the Jackson

Hospital defendants.    Anderson acknowledges that Hamm is

properly viewed as the real party in interest; however, she

argues that debtors are nevertheless sometimes allowed to

prosecute claims themselves if the trustee abandons the claim


                             28
1130342, 1130357

or the bankruptcy court authorizes the debtor to prosecute the

claim instead of the trustee.    See Hamm, 52 So. 3d at 491.   It

is evident by Hamm's actions in this case that he has no

intention of abandoning the action and leaving its prosecution

to Anderson, but Anderson argues that the bankruptcy court

might nevertheless authorize her to pursue the action instead

of Hamm and urges us to reverse the order entered by the trial

court so she can pursue this possibility with the bankruptcy

court.

    Although we have no desire to remove this issue from the

bankruptcy court's purview, Anderson's argument simply comes

too late.    Anderson could have made her request to the

bankruptcy court at any time before the entry of the judgment

that is the subject of these petitions but failed to do so.

Moreover, Anderson completely failed to raise this issue with

the trial court, and we cannot hold the trial court in error

for failing to give Anderson time to pursue this avenue with

the bankruptcy court when she never asked the trial court for

that additional time. See Andrews v. Merritt Oil Co., 612 So.

2d 409, 410 (Ala. 1992) ("This Court cannot consider arguments

raised for the first time on appeal; rather, our review is


                                29
1130342, 1130357

restricted to the evidence and arguments considered by the

trial court.").     Anderson's argument is without merit.

                                  V.

       Anderson sued the Jackson Hospital defendants in October

2012 alleging that both of her feet were amputated as a result

of Dr. Kwan's negligence. However, because Anderson failed to

disclose this potential cause of action when she filed for

bankruptcy in November 2011, the Jackson Hospital defendants

moved the trial court to enter a summary judgment in their

favor on the ground of judicial estoppel.           Thereafter, Hamm,

the bankruptcy trustee, moved to be substituted as the real

party in interest in the action initiated by Anderson based on

well established law holding that causes of action held by a

debtor in bankruptcy become the responsibility of the trustee.

The trial court subsequently entered an order substituting

Hamm    as   the   plaintiff,   and    both   the   Jackson   Hospital

defendants and Anderson sought review of that decision in this

Court: The Jackson Hospital defendants argue that Hamm waived

his right to be substituted as the real party in interest and

Anderson argues that she should be allowed to pursue her claim

instead of Hamm.      However, as explained above, the parties


                                  30
1130342, 1130357

have failed to establish that the trial court exceeded its

discretion with regard to either decision, and we accordingly

deny the parties' petitions for the writ of mandamus.

    1130342 –– PETITION DENIED.

    1130357 –– PETITION DENIED.

    Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.

    Murdock, J., concurs specially.

    Moore, C.J., concurs in the result.

    Parker, J., recuses himself.




                             31
1130342, 1130357

MURDOCK, Justice (concurring specially).

    I concur in the main opinion, but I write separately to

address note 2 of that opinion.         In note 2, the main opinion

summarizes the actions of the Court of Civil Appeals in

Lumpkin v. City of Gulf Shores, 964 So. 2d 1233 (Ala. Civ.

App. 2006), as follows:

    "[T]he Court of Civil Appeals affirmed a summary
    judgment entered in favor of the appellee, in part
    because that court concluded that the appellants had
    failed to timely substitute the real party in
    interest as a plaintiff. It appears in that case
    that the trial court had not articulated its reasons
    for entering the summary judgment, and it is not
    clear that the issue whether the plaintiffs had been
    given the Rule 17(a)-mandated 'reasonable time' to
    make substitution of the proper real party in
    interest had been considered by the trial court or
    even raised by the parties before the summary
    judgment was entered.    Accordingly, the Court of
    Civil Appeals appropriately considered that issue
    de novo."

___ So. 3d at ___ n. 2.       The notion that "the Court of Civil

Appeals appropriately considered [the stated] issue de novo"

would be correct only if it could be ascertained from the

record, including filings made in the trial court and the

trial court's order, that the trial court's summary-judgment

order was not based on that issue and, further, only if the

issue   was   one   that   could   be   invoked   sua   sponte   by   the


                                   32
1130342, 1130357

appellate court because it presented an alternative valid

"legal ground" for affirming the trial court's order and, in

addition, could be so invoked without implicating the due-

process rights of the parties adversely affected by that

invocation.   I do not read note 2 as saying anything other

than this.




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