                                  Illinois Official Reports

                                          Appellate Court



                              Shoup v. Gore, 2014 IL App (4th) 130911



Appellate Court              JOHN D. SHOUP, Plaintiff-Appellant, v. DANIEL W. GORE;
Caption                      DEBRA GORE, a/k/a DEBBIE S. GORE; AMEREN ILLINOIS
                             COMPANY, a/k/a AMEREN CIPS, a/k/a AMEREN ILLINOIS; and
                             CENTRAL ILLINOIS LIGHT COMPANY, a/k/a AMEREN CILCO,
                             a/k/a CILCO, Defendants-Appellees.


District & No.               Fourth District
                             Docket No. 4-13-0911


Filed                        June, 26, 2014


Held                         The trial court properly entered summary judgment for defendants in
(Note: This syllabus         plaintiff’s personal injury action based on judicial estoppel where
constitutes no part of the   plaintiff failed to disclose his pending personal injury action to the
opinion of the court but     bankruptcy court in which his bankruptcy proceeding was also
has been prepared by the     pending, since the elements of the judicial estoppel doctrine were
Reporter of Decisions        satisfied by plaintiff’s implied representation to the bankruptcy court
for the convenience of       that he had no pending lawsuit, while at the same time and under oath
the reader.)                 in both proceedings, he was pursuing personal injury damages in state
                             court, and he ultimately benefitted from the “totally inconsistent”
                             positions by receiving a bankruptcy discharge without disclosing to
                             the bankruptcy court that he could be awarded damages in the personal
                             injury action.



Decision Under               Appeal from the Circuit Court of McLean County, No. 12-L-82; the
Review                       Hon. Paul G. Lawrence, Judge, presiding.



Judgment                     Affirmed.
     Counsel on               Hania Sohail, of Strong Law Offices, of Peoria, for appellant.
     Appeal
                              Jonathan Stump, of Quinn, Johnston, Henderson, Pretorius & Cerulo,
                              of Peoria, for appellees Daniel W. Gore and Debra Gore.

                              John Twohy, of Eichhorn & Eichhorn, of Hammond, Indiana, for
                              appellees Ameren Illinois Company and Central Illinois Light
                              Company.


     Panel                    PRESIDING JUSTICE APPLETON delivered the judgment of the
                              court, with opinion.
                              Justices Turner and Steigmann concurred in the judgment and
                              opinion.


                                                OPINION

¶1         Plaintiff, John D. Shoup, appeals from the trial court’s judgment granting summary
       judgment in favor of defendants on the basis of judicial estoppel. Plaintiff claims judicial
       estoppel does not apply to the facts of this case. We disagree and affirm.

¶2                                            I. BACKGROUND
¶3          In February 2010, plaintiff filed a chapter 13 bankruptcy petition. See 11 U.S.C. §§ 1301 to
       1330 (2006). In October 2010, plaintiff’s underlying claim accrued against the defendants,
       Daniel W. Gore, Debra Gore, a/k/a Debbie S. Gore (hereinafter, the Gores), Ameren Illinois
       Company, a/k/a Ameren CIPS, a/k/a Ameren Illinois (hereinafter, Ameren), and Central
       Illinois Light Company, a/k/a Ameren CILCO, a/k/a CILCO (hereinafter, CILCO). Plaintiff
       began making payments pursuant to his bankruptcy repayment plan on April 15, 2010.
       Plaintiff concedes he did not amend his bankruptcy filing or otherwise advise the bankruptcy
       court or the trustee of his claim against defendants prior to receiving a discharge, which he
       received on June 25, 2012. (On July 2, 2013, he did advise the bankruptcy trustee of his
       complaint against defendants. However, the trustee stated in a July 3, 2013, letter to plaintiff’s
       bankruptcy attorney that, because the plan had been completed, “the debtor would have [no]
       further liability to the estate for any claims.”)
¶4          Plaintiff filed a personal-injury lawsuit against defendants on June 8, 2012 (prior to
       receiving a discharge by the bankruptcy court), in the McLean County circuit court. The basis
       for plaintiff’s claim was that, on October 12, 2010, he was surveying property owned by the
       Gores on behalf of Ameren and CILCO when he tripped and fell over a drainage hole. Any
       further factual information obtained by either party during discovery in this case is not relevant
       to the disposition and, therefore, is not addressed or summarized in this court’s order.
¶5          After conducting discovery, defendants filed separate motions for summary judgment,
       claiming the doctrine of judicial estoppel barred plaintiff’s claim because he never advised the


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       bankruptcy court of the claim against defendants. On October 1, 2013, the trial court entered a
       written order granting defendants’ motions for summary judgment. This appeal followed.

¶6                                             II. ANALYSIS
¶7          Plaintiff contends the elements of judicial estoppel are not present in this case primarily
       because he did not take inconsistent positions in different proceedings under oath as required
       for application of the doctrine. We disagree.
¶8          An appellate court reviews the trial court’s application of the doctrine of judicial estoppel
       for an abuse of discretion regardless of the procedural manner in which the issue was raised.
       Berge v. Mader, 2011 IL App (1st) 103778, ¶ 9. An abuse of discretion occurs only when the
       trial court’s decision is arbitrary, fanciful, or unreasonable or where no reasonable person
       would take the view adopted by the trial court. People v. Donoho, 204 Ill. 2d 159, 182 (2003).
       Contrary to plaintiff’s position, our review is deferential, rather than de novo.
¶9          The doctrine of judicial estoppel bars a party from making a representation in a case after
       he has successfully taken a contrary position in another case. Berge, 2011 IL App (1st) 103778,
       ¶ 12. The goal of the application of judicial estoppel is to protect the integrity of our system of
       justice and prevent a party from manipulating and making a mockery of our system of
       dispensing justice in all its forms. Berge, 2011 IL App (1st) 103778, ¶ 12. “At its heart, this
       doctrine prevents chameleonic litigants from ‘shifting positions to suit the exigencies of the
       moment’ [citations], engaging in ‘cynical gamesmanship’ [citation] or ‘[h]oodwinking’ a
       court. [Citation.]” Ceres Terminals, Inc. v. Chicago City Bank & Trust Co., 259 Ill. App. 3d
       836, 850 (1994).
¶ 10        Judicial estoppel applies if the following five separate elements are present. Those are as
       follows:
                “(1) the two positions must be taken by the same party; (2) the positions must be taken
                in judicial proceedings; (3) the positions must be given under oath; (4) the party must
                have successfully maintained the first position, and received some benefit thereby; and
                (5) the two positions must be ‘totally inconsistent.’ (Internal quotation marks
                omitted.)” Berge, 2011 IL App (1st) 103778, ¶ 13 (quoting Ceres Terminals, 259 Ill.
                App. 3d at 851).
¶ 11        “When a chapter 13 bankruptcy petition is filed, a new bankruptcy ‘estate’ is created, and
       the estate is made up of all of the debtor’s property at the time the case commences. [Citation.]
       The assets of the bankruptcy estate include all legal or equitable interests of the debtor in
       property as of the commencement of the case. [Citation.] The assets of the bankruptcy estate
       include the debtor’s unliquidated lawsuits. [Citation.]” Holland v. Schwan’s Home Service,
       Inc., 2013 IL App (5th) 110560, ¶ 116. “The filing of a bankruptcy petition is an assertion of
       the jurisdiction of the bankruptcy court over all the assets and property of the alleged
       bankrupt.” Dailey v. Smith, 292 Ill. App. 3d 22, 24 (1997). The bankruptcy estate “has been
       found to encompass ‘every conceivable interest of the debtor, future, non-possessory,
       contingent, speculative, and derivative.’ ” Dailey, 292 Ill. App. 3d at 24 (quoting In re Yonikus,
       996 F.2d 866, 869 (7th Cir. 1993)).
¶ 12        Before us are two seemingly conflicting authorities addressing the issue of whether judicial
       estoppel applies under circumstances similar to those presented here. First, in Berge, the First
       District found the trial court had not abused its discretion in applying the doctrine when the


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       plaintiff, who had filed a chapter 13 bankruptcy petition, never disclosed her personal-injury
       claim. Berge, 2011 IL App (1st) 103778, ¶ 21. After the plaintiff filed her bankruptcy petition,
       she was involved in an auto accident and sued the tortfeasors. After she filed the lawsuit, she
       converted her chapter 13 to a chapter 7 petition, but did not include the pending lawsuit. She
       received a discharge in October 2009 without the bankruptcy court knowing about her
       personal-injury claim. Berge, 2011 IL App (1st) 103778, ¶ 3. The tortfeasors filed a motion for
       summary judgment, raising the judicial-estoppel argument and the trial court granted the same.
       Berge, 2011 IL App (1st) 103778, ¶ 3.
¶ 13       Noting that “bad faith” was not one of the elements required for the application of judicial
       estoppel as the plaintiff argued, the court nevertheless held all of the elements had been
       satisfied and the plaintiff was precluded from proceeding with her lawsuit. Berge, 2011 IL App
       (1st) 103778, ¶¶ 6, 14. As to the first element, the court noted that in bankruptcy court, the
       plaintiff held the position she had no pending lawsuits yet she pursued her personal-injury
       action. Berge, 2011 IL App (1st) 103778, ¶ 14. Second, the conflicting positions were made in
       separate judicial proceedings. Berge, 2011 IL App (1st) 103778, ¶ 14. Third, she took these
       two separate positions under oath by filing a complaint and various bankruptcy filings in the
       respective proceedings. Berge, 2011 IL App (1st) 103778, ¶ 14. Fourth, the plaintiff received a
       benefit by having her debts discharged without the creditors knowing of her potential recovery
       in state court. Berge, 2011 IL App (1st) 103778, ¶ 14. Finally, the plaintiff never disclosed the
       existence of her lawsuit in bankruptcy court, yet actively pursued it in state court. Berge, 2011
       IL App (1st) 103778, ¶ 14.
¶ 14       Relying on Dailey and Cannon-Stokes v. Potter, 453 F.3d 446 (7th Cir. 2006), the Berge
       court agreed that “a debtor who does not disclose an asset cannot later realize a benefit from
       that concealed asset after having his or her debts discharged in bankruptcy.” Berge, 2011 IL
       App (1st) 103778, ¶ 16. The plaintiff’s arguments that (1) it was her bankruptcy attorney who
       had failed to include the lawsuit in her bankruptcy filings, and (2) she tried to reopen her
       bankruptcy case after it was closed in order to add the lawsuit were unavailing. The court
       viewed the plaintiff’s attempted remedial actions as doing a disservice to the doctrine of
       judicial estoppel, in that by accepting these after-the-fact actions, the court would seemingly be
       condoning a litigant’s “less-than-truthful asset disclosures with a hope of not getting caught.”
       Berge, 2011 IL App (1st) 103778, ¶ 18. The court also noted the doctrine applies equally to a
       chapter 7 and a chapter 13 bankruptcy, “as both chapters require full disclosure of assets.”
       Berge, 2011 IL App (1st) 103778, ¶ 20.
¶ 15       The second case is Holland, in which the Fifth District determined the trial court did not
       abuse its discretion when it declined to apply the doctrine. The plaintiff had filed for chapter 13
       bankruptcy protection yet failed to amend his filing to include his lawsuit against Schwan’s,
       his former employer, for retaliatory discharge. Holland, 2013 IL App (5th) 110560, ¶ 110. The
       plaintiff filed his bankruptcy petition in August 2008 and his repayment plan was confirmed in
       November 2008. The plaintiff’s claim against Schwan’s did not arise until May 2009 when he
       was terminated. The court described the plaintiff’s cause of action against Schwan’s as “not a
       prepetition cause of action,” meaning the plaintiff “could not have disclosed a claim for an
       injury that had not yet occurred.” Holland, 2013 IL App (5th) 110560, ¶ 117. Although the
       court noted a debtor’s continuing duty to disclose any potential lawsuits, it determined a
       subsequently filed lawsuit could not be said to be an “inconsistent position” from one taken
       earlier in a bankruptcy petition filed before the cause of action arose. Holland, 2013 IL App


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       (5th) 110560, ¶ 118. That is, the court noted that assets of the bankruptcy estate include the
       debtor’s unliquidated lawsuits (citing Dailey, 292 Ill. App. 3d at 24-25), but, at the same time,
       found that nondisclosure of a postpetition lawsuit failed to satisfy at least one element of the
       judicial-estoppel doctrine. The court stated: “Therefore, although he did not properly disclose
       the retaliatory discharge claim, he did not take two inconsistent positions under oath.”
       Holland, 2013 IL App (5th) 110560, ¶ 118.
¶ 16       The court held that it could not conclude that the trial court had abused its discretion in
       declining to apply the judicial-estoppel doctrine to the plaintiff’s lawsuit against Schwan’s
       when the plaintiff had not taken “two contrary positions under oath and the record [did] not
       establish that he intended to omit his claim against Schwan’s from his bankruptcy estate.”
       Holland, 2013 IL App (5th) 110560, ¶ 120. The court distinguished Berge by finding that the
       plaintiff in Berge, unlike the plaintiff in Holland, (1) knew of the undisclosed claim and had a
       motive to conceal it, and (2) received a benefit from the nondisclosure by receiving a discharge
       of his debt without his creditors knowing of the lawsuit. Holland, 2013 IL App (5th) 110560,
       ¶ 122. Further, the plaintiff in Holland did not benefit from the nondisclosure because the
       bankruptcy court dismissed his chapter 13 case for failing to make the required payments.
       Holland, 2013 IL App (5th) 110560, ¶ 122.
¶ 17       Contrary to plaintiff’s position, we find the reasoning in Berge more applicable than that in
       Holland primarily due to the fact that the plaintiff in Holland did not receive a benefit from the
       bankruptcy court. Here, plaintiff, like the plaintiff in Berge, benefitted by having his
       repayment plan established and performed without giving his creditors any knowledge of his
       potential to recover damages in his personal-injury action. Plaintiff’s failure to disclose left
       him with the ability to permanently avoid his debts after recovering a judgment against
       defendants. See Berge, 2011 IL App (1st) 103778, ¶ 14.
¶ 18       Based upon the authority presented, we find the trial court did not abuse its discretion in
       applying the doctrine of judicial estoppel when the plaintiff (1) took two different positions (by
       impliedly representing to the bankruptcy court he had no pending lawsuit while, at the same
       time, pursuing damages in a lawsuit in state court), (2) in two separate judicial proceedings, (3)
       under oath, (4) and received a discharge from the bankruptcy court without its knowledge of
       the potential recovery of damages from plaintiff’s pending personal-injury lawsuit against
       defendants, and (5) received the benefit from representing two “totally inconsistent” positions.
       See Berge, 2011 IL App (1st) 103778, ¶ 13 (quoting Ceres Terminals, 259 Ill. App. 3d at 851).
       All five elements are present in this case to justify the applicability of the doctrine.

¶ 19                                      III. CONCLUSION
¶ 20      For the reasons stated, we affirm the trial court’s judgment.

¶ 21      Affirmed.




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