Dennis v. Jackson

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CV-156

MELINDA DENNIS, ET AL, APPELLANTS,

V.

PATRICK G. JACKSON, ET AL., APPELLEES.

Appeal from the Superior Court of the
District of Columbia
(CAM-873-16)

(Hon. Elizabeth C. Wingo, Trial Judge)

(Argued February 2, 2021 Decided September 16, 2021)

Ray M. Shepard, was on the brief for appellants.

Janet A. Forero, Derek M. Stikeleather, were on the brief for appellees.

Before GLICKMAN, Associate Judge, THOMPSON, Associate Judge*, and LONG,
Senior Judge, Superior Court of the District of Columbia. **

*
Judge Thompson was an Associate Judge of the court at the time of
argument. Although Judge Thompson’s term ended on September 4, 2021, she
continues to serve as an Associate Judge until her successor is confirmed. See D.C.
Code § 11-1502 (2012 Repl.) (“Subject to mandatory retirement at age 74 and to
the provisions of subchapters II and III of this chapter, a judge of a District of
Columbia court appointed on or after the date of enactment of the District of
Columbia Court Reorganization Act of 1970 shall serve for a term of fifteen years,
and upon completion of such term, such judge shall continue to serve until the
judge’s successor is appointed and qualifies.”).
(continued…)
 2

LONG, Senior Judge: In this medical malpractice case, appellants (husband

and wife) challenge the grant of summary judgment against them in favor of

appellees, Patrick G. Jackson, M.D., and Georgetown University Hospital (“the

Hospital”). In detailed findings and conclusions of law set forth in open court on

December 18, 2018, and incorporated by reference in a written order on the same

date, the Hon. Elizabeth C. Wingo granted appellees’ motion to dismiss or, in the

alternative, for summary judgment. The judgment on appeal is based upon the

application of the doctrine of judicial estoppel. The doctrine recognizes that where

a party successfully assumes a certain position in a legal proceeding, that party

may not subsequently assume a contrary position in a different proceeding, simply

because that party’s interests have changed, particularly where the change in

position results in an unfair advantage to that party or where the change works an

unfair detriment upon another party. New Hampshire v. Maine, 532 U.S. 742, 749-

50 (2001). We affirm.

Here, the invocation of the doctrine of judicial estoppel arose from

appellants’ failure to disclose their malpractice claim as a potential asset in their

(…continued)
**
Sitting by designation pursuant to D.C. Code § 11-707(a) (2012 Repl.).
 3

bankruptcy petition in the United States Bankruptcy Court of Maryland. The

bankruptcy Trustee and the creditors whose debts where discharged were unaware

of this potential asset when the case was closed with the order of discharge.

Ordinarily, a failure to divulge a potential lawsuit as an asset in bankruptcy bars

litigation of the civil action in question. Based upon our analysis of the record and

pertinent case law, we conclude that appellants have failed to establish any abuse

of discretion in the trial court’s application of judicial estoppel. We further

conclude that appellants did not satisfy their burden to establish their chosen

defense, i.e. that the failure to disclose was the product of inadvertence or mistake.

We also hold that it was not error for the trial court to decline to submit the

substance of this defense to a jury, because the process of determining whether to

apply judicial estoppel is an equitable analysis to be performed by a judge and

because the remedy sought is equitable in nature.

I. Procedural Background and Undisputed Material Facts

While it is not relevant or necessary for us to probe the underlying merits of

the malpractice allegations, it is still important to summarize the essential nature of

this case. This is so because the character of the allegations is pertinent to

explaining when Ms. Dennis first knew that she had a basis for filing a civil action.

The timing of her knowledge of the claim is significant.
 4

Dr. Jackson performed abdominal surgery upon Ms. Dennis on October 5,

2012 at the Georgetown University Hospital. Shortly after being discharged on

October 7, 2012, Ms. Dennis encountered multiple problems from poor site

drainage, G-tube drainage, and other issues. Multiple additional surgeries

followed, performed by different surgeons, to alleviate the deleterious ill effects

and aftermath of the original surgery. The complaint, filed on February 4, 2016,

included multiple counts, articulating issues ranging from negligence in

performance of surgery, negligence in failing to obtain informed consent, gross

negligence, and loss of consortium for Ms. Dennis and her husband.

The various counts in the complaint reflected a specific demand for over $10

million in money damages. Appellants sought compensatory damages for personal

injury to Ms. Dennis. They included present and future pain and suffering, past

and future lost wages of Ms. Dennis, her loss of earning capacity, present and

future loss of her household services, her past and future medical expenses, mental

anguish, permanent physical injuries and disfigurement, and loss of consortium for

both appellants. The complaint originally included a demand for punitive

damages, although that particular demand was deleted when appellants filed an

Amended Complaint.

In analyzing the legal issues, we are further informed by the timeline of

events, weaving together the bankruptcy proceeding and the civil action that
 5

followed. As early as the summer of 2013, Ms. Dennis had decided that she

wanted to file suit against Dr. Jackson, and she admitted this in a declaration filed

with her opposition to the motion whose resolution is now on appeal, as well as in

her deposition.

On November 20, 2014, appellants filed a petition in bankruptcy. Ms.

Dennis confirmed in her declaration that they did so because her inability to return

to work after her initial surgery caused appellants to be unable to pay their existing

debts.

Every bankruptcy petition includes informational schedules requiring the

petitioner to divulge relevant information, including the petitioner’s assets and

liabilities, both actual and contingent. On “Schedule B – Personal Property,” a

petitioner is directed to identify assets in myriad, enumerated categories (from

bank accounts, to household goods, jewelry, real estate, and more). Among those

categories is one with the following heading: “Other contingent and unliquidated

claims of every nature, including tax refunds counterclaims of the debtor, and

rights to set off claims. Give estimated value of each.” In their Schedule B,

appellants listed nothing in this category, placing a capital X under a linked

column denominated as “NONE.”

Although appellees were not bankruptcy creditors, appellants did list as an

outstanding debt the sum of $302.36 in various co-pays owed to KCI USA, Inc.
 6

(hereinafter “KCI”). It is uncontested that these charges stemmed from billings for

wound dressings allegedly necessary to ameliorate the physical damage caused by

the alleged malpractice of appellees.

On March 9, 2015, the United States Bankruptcy Judge issued an order

discharging $86,163.06 in debts. The order of discharge included the entire debt

owed to KCI. Almost a year later, on February 4, 2016, appellants filed the instant

civil action against the Hospital and Dr. Jackson.

II. The Dispositive Motion and Positions of the Parties Below

Appellees filed on March 13, 2017, a motion to dismiss or, in the alternative,

for summary judgment, based specifically on the doctrine of judicial estoppel

because of the failure to divulge the potential lawsuit as an asset in the bankruptcy

proceeding. In their opposition to the motion, appellants argued that the failure to

list the civil action as an unliquidated asset was the product of mistake or

inadvertence. Moreover, appellants emphasized that material issues of disputed

fact still remained, in their view, because appellees were not among the creditors

whose debts were discharged, and that appellants therefore could not derive any

unfair advantage over appellees.

At a hearing on November 21, 2017, the trial court denied the motion

without prejudice to appellees re-raising the issue of estoppel, after completion of

discovery. The trial court specified that if information in discovery proved that
 7

there was a “meaningful connection” between the bankruptcy proceedings and the

instant lawsuit, all elements of judicial estoppel would be established. The trial

judge focused on the “connection” issue because instructive case law provides that

judicial estoppel is not triggered where there is “no meaningful connection”

between the bankruptcy proceeding and the subsequent litigation. Moses v.

Howard University Hospital, 606 F.3d 789, 799 (D.C. Cir. 2010).

After completion of discovery, appellees did file a follow-up motion for

summary judgment on May 23, 2018, setting forth the exact nature of the

connection and thus reviving the issue of judicial estoppel for final adjudication.

This was the context in which Judge Wingo convened the hearing on December

18, 2018, at which she reconsidered all elements of judicial estoppel and concluded

that appellees were entitled to a judgment in their favor. We set forth below the

essential positions of the parties with respect to the dispositive motion that is now

the subject of this appeal. A synopsis of their positions gives context for

understanding the present contentions of appellants as to why the judgment should

be reversed.

As the moving parties, appellees emphasized that the bankruptcy case had a

“meaningful connection” to the present malpractice action because (1) on Schedule

F of the Bankruptcy Petition, appellants listed KCI as one of their creditors, and (2)

the debt of $302.36 owed to KCI was for dressing materials ordered by another
 8

physician for closure of an abdominal wound that is the same wound that is the

subject of the instant lawsuit. Furthermore, appellees stressed that all of the

elements necessary for judicial estoppel were established and that the doctrine

should be invoked not only to protect the integrity of the judicial system (including

the Bankruptcy Court) but also to protect the interests of “the creditors, who

planned their actions in the bankruptcy proceeding on the basis of information

supplied in the disclosure statements.”

Appellants, in opposition, argued that there were multiple, remaining

contested issues of material fact, such that summary judgment was unsupportable.

They identified the contested issues as: (1) whether there was still a “meaningful

connection” between the KCI debt and the claims of creditors in the bankruptcy

proceeding because of the allegedly “miniscule” amount of the KCI debt

(compared to the potential damages in the civil action) and because appellees were

not creditors in the bankruptcy proceeding; (2) whether appellants intentionally

sought to mislead the Bankruptcy Court, asserting that there was no evidence of a

deliberate motive to do so and contending that there was no proof that appellants

knew of a basis for seeking punitive damages under Maryland law); and (3) that

there was no evidence that appellants intentionally sought to gain an unfair

advantage specifically over appellees in this civil action and where the non-

disclosure itself is not proof of such intent.
 9

The issue of mistake or inadvertence was a key aspect of the opposition to

the motion for summary judgment, and we note it because it is the foundation of

the overall position of appellants before this court. Ms. Dennis attempted to excuse

why she did not reveal her potential civil action in her Bankruptcy Court petition.

She made certain explanations in her deposition (taken on November 18, 2016), as

well as in a sworn declaration (hereinafter “Declaration”) that accompanied her

opposition to appellees’ renewed motion for summary judgment.

In her deposition, she testified that “mostly likely” in 2014, a fellow church

member referred her to the attorney who did agree to represent her and who sent

the Hospital a Notice of Intention to File Suit on or about July 1, 2015. In her

declaration, Ms. Dennis elaborated:

As I testified in my deposition, I began having
thoughts of filing a lawsuit against Dr. Jackson for the
harm he caused me in the summer of 2013 after I had
been under the care of [another physician] for several
months. While I certainly wanted to file a lawsuit, I did
not know whether or not I would ever be able to actually
pursue such a claim until approximately July 2015. I
knew that my ability to pursue a medical malpractice
action would be entirely contingent upon finding a
qualified expert witnesses with knowledge of the
applicable standard of care who were willing to support
my claim. I did not know in 2014 whether or not I would
actually be able to pursue a malpractice claim against Dr.
Jackson. 1

1
She stated in her deposition, “I’m a nurse [and] so I have understanding of things
and so I questioned things.” Referring to the decision to file a civil action as
(continued…)
 10

I recall [my bankruptcy attorney who filed the
petition] explaining to my husband and I [sic] that
Maryland law exempts from bankruptcy money received
as compensation for personal injuries. 2

Declaration at ¶¶ 3, 4.

The record contains no other details about the conversation between Ms.

Dennis and the bankruptcy lawyer, such as how the exemption issue came up or

what questions Ms. Dennis actually posed to her lawyer and what answers she

received.

III. The Trial Court’s Ruling

While it is not necessary to repeat the entirety of the trial court’s findings,

we summarize the key points that the trial court found to be convincing,

highlighting the particular findings and conclusions controlling the issues raised on

appeal.

The trial court’s findings tracked the basic elements that must be established

in order to apply judicial estoppel. In New Hampshire v. Maine, the Supreme

Court noted “several factors that typically inform the decision whether to apply the

doctrine in a particular case . . . .” They are: (1) that a party’s later position must

(…continued)
opposed to personally knowing that she had a claim, she stated that “thinking about
it and doing it are two different things.”
2
Declaration at ¶ 4.
 11

be “clearly inconsistent” with its earlier position in litigation; (2) that the party had

succeeded in persuading a court to accept the earlier position “so that judicial

acceptance of an inconsistent position in a later proceeding would create the

perception that either the first or the second court was misled;” 3 and (3) whether

the party taking the inconsistent position was seeking “to derive an unfair

advantage or impose an unfair detriment on the opposing party if not estopped.”

New Hampshire v. Maine, supra, at 750-751.

Where the first element is concerned, the trial court found that appellants

had taken a position in the civil action that was inconsistent with their position in

the bankruptcy case, because they failed to divulge to the Bankruptcy Court any

“unliquidated claims, whether exempt or not” and then asserted the identical

unliquidated malpractice claim that was known to appellants at the time of the

bankruptcy proceeding.

As to the second element, the trial judge found that appellants succeeded in

persuading the Bankruptcy Court to accept their position because they obtained

discharge of all debts identified in their petition, where one of the Schedules in the

petition asserted that appellants had no unliquidated claims. Further, the trial court

found that “judicial acceptance of her inconsistent position here would create . . .

the perception that the bankruptcy court [sic] was misled.”

3
New Hampshire v. Maine, supra, 532 U.S. at 750 (quotation omitted).
 12

Parsing the third element, the trial court did not find that appellants obtained

an unfair advantage over appellees specifically. Rather, the trial court found “that

the undisputed facts compel the conclusion that [Ms. Dennis] derived an unfair

advantage over her creditors, as at least part of the money she is seeking now, even

with the punitive damages claims removed as seen in her amended complaint,4 that

is, lost wages and pre-petitioned medical expenses, could have been used to satisfy

some of those claims.” The trial judge was aware that when the nondisclosure

problem was exposed, appellants attempted to neutralize the problem by

petitioning the Bankruptcy Court to reopen the case and exempt the entire

malpractice claim as an asset. Where appellees are concerned as the “opposing”

parties herein, the trial court concluded that Ms. Dennis “derived an advantage

over the defendant [sic] who could have negotiated with the trustee had this been

raised at a time when it was still an active case. By the time the petition to reopen

was filed, it was two years after the discharge.”

As part of its findings, the trial court noted that in the jurisprudence of

judicial estoppel there is effectively a fourth element that is important, i.e. that the

two judicial proceedings must have a “meaningful connection.” In that regard, the

4
With leave of the court, appellants filed on July 10, 2018, an amended complaint
that was identical to the original complaint except for removing the demand for
punitive damages and removing the Hospital as a defendant. The demands for non-
exempt prepetition medical expenses and lost wages remained.
 13

trial court specified that there was a clear connection between the bankruptcy case

and the civil action because appellants were “undeniably” suing to recover certain

prepetition medical expenses, some of which had included the KCI debts.

In considering the defense of inadvertence or mistake, the trial court

examined in detail how much Ms. Dennis knew at the time she filed her

bankruptcy petition and required schedules. The trial court rejected the defense of

mistake or inadvertence, noting that appellate courts interpret inadvertence

narrowly, “such that the failure to comply with the bankruptcy court’s disclosure

duty is inadvertent only when a party either lacks knowledge of the undisclosed

claim or has no direct motive for their concealment.” Looking to the actions and

knowledge of Ms. Dennis, the trial judge concluded:

There is, in my view, in this case no dispute on the
facts that she knew of the possibility of the claim and
wanted to assert it prior to the bankruptcy filing. And I
find that whether or not she knew of the specifics such as
whether there was an expert that would support her
position, is simply not relevant to the duty to disclose.5

I also find, and let me just note on that, that I think
any decision to the contrary would create a wholly
undesirable result, which is that you . . . could simply
avoid disclosing by not doing your due diligence as to

5
“The debtor need not know all the facts or even the legal basis for the cause of
action; rather, if the debtor has enough information . . . prior to confirmation to
suggest that it may have a possible cause of action, then that is a ‘known’ cause of
action such that it must be disclosed.’” Youngblood Group v. Lufkin Federal
Savings & Loan Ass’n., 932 F. Supp. 859, 867 (E.D. Tex. 1996).
 14

whether your claim was [supportable] by putting off the
question of whether you found an expert or not [sic].

The trial judge specifically relied upon the admissions in the sworn

declaration of Ms. Dennis, identifying how far back in time appellant knew she

wanted to file suit against Dr. Jackson – more than a year before filing her

bankruptcy petition. The trial court emphasized that,

when a plaintiff admits the factual basis for an
undisclosed claim also contributed to [her] bankruptcy,
courts have [] little problem finding that the debtor turned
plaintiff had knowledge of the undisclosed claim during
the bankruptcy proceedings, 6 given her statement in
opposition to . . . the original motion to dismiss.

The trial court was aware that Maryland law effectively exempts as a

bankruptcy asset any lawsuit damages obtained for personal injuries,7 but that

certain other damages associated with malpractice are not exempt. See Calafiore

6
The trial court cited for this observation the same conclusion in Robinson v
District of Columbia, 10 F. Supp. 3d 181, 188 (D. D.C. 2014).
7
We use the phrase “effectively” because no Maryland statute explicitly states (or
can state) that any particular property is exempt from the jurisdiction of the United
States Bankruptcy Court. Rather, the Maryland Code exempts certain assets from
“execution on a judgment.” Specifically, the Maryland Code exempts from
execution “money payable in the event of sickness, accident, injury, or death of
any person, including compensation for loss of future earnings. This exemption
includes but is not limited to money payable on account of judgments, arbitrations,
compromises, insurance, benefits, compensation, and relief.” Md. Cts. & Jud. Proc.
§ 11-504(b)(2). The effect of this statute on bankruptcy is indirect, but
unmistakable. If no creditor of a successful plaintiff could ever execute a
judgment by attaching exempt lawsuit proceeds, the exempted proceeds would also
be worthless to all bankruptcy creditors and the Trustee.
 15

v. Werner Enterprises, 418 F. Supp. 2d 795, 799-800 (D. Md. 2006) (noting that

the Maryland Code does not exempt as a bankruptcy asset damages for lost wages,

prepetition medical expenses, injuries to property, and punitive damages). The

trial judge thus reasoned that “where some of the claims asserted are not exempt,

therefore, this is not a case where there is no motive [to conceal the malpractice

claim]. . . you cannot say no harm, no foul in this case, is really the bottom line.”8

Balancing the equities was certainly a part of the trial court’s findings and

conclusions. The trial judge recognized the key equitable factor on the plaintiff’s

side, i.e. that Ms. Dennis had presented claims of medical problems that were

“both serious and debilitating.” The trial court reasoned that those problems did

not rise in significance above the nondisclosure problem for the bankruptcy

creditors or the Trustee. The trial court found that a combination of equities on the

defense side was more important, i.e. not only the bad effect of the nondisclosure

on both the creditors and appellees but also the harm to the bankruptcy system

itself, effectuated by a party who was represented by an attorney and who made a

conscious decision not to disclose. For these reasons, the trial court determined

that it was not equitable to allow appellants to obtain an “inappropriate windfall”

by being allowed to pursue the civil action.

8
Calafiore, supra, at 799-80 (“To the extent any aspects of the plaintiff’s plea for
damages fall into nonexempt categories, [the petitioner] did have a motive to
conceal.”).
 16

IV. Standard of Review

We recognize the bedrock principle that “[j]udicial estoppel is an ‘equitable

doctrine’ invoked at a court’s discretion to prevent ‘improper use of judicial

machinery.’” Hardy v. United States, 988 A.2d 950, 964 (D.C. 2010) (quoting New

Hampshire v. Maine, supra, at 750). We review the use of judicial estoppel

according to the abuse of discretion standard, and we will affirm where the trial

court has satisfied all of the requirements for invoking the doctrine. See Atkins v.

4940 Wisconsin, LLC, 93 A.3d 1286, 1289-90 (D.C. 2014).

V. Issues Raised on Appeal

In their brief, appellants identify two issues in challenging the judgment.

They are: (1) “[w]hether the Superior Court properly applied judicial estoppel in

the absence of a finding that Mr. and Mrs. Dennis would derive an unfair

advantage or impose an unfair detriment on the opposing parties if not estopped;”

and (2) “[w]hether, considering all of the facts and circumstances, a genuine issue

of material fact exists regarding whether the Dennis’ failure to identify this action

as ‘personal’ or ‘exempted’ property on their previously filed bankruptcy

schedules was a calculated attempt to improperly use the judicial machinery to

derive an unfair advantage or impose an unfair detriment on the Defendants.”

At oral argument, when asked to identify any abuse of discretion, counsel

for appellants raised three points. One, counsel stated that the trial court abused its
 17

discretion when it “focused on the wrong issue” by finding that the detriment

befalling appellees was the inability to settle the malpractice claim while appellants

were in the bankruptcy process. Two, counsel stated that the record contains no

proof that Ms. Dennis personally gained any advantage over appellees, because the

inability to settle the malpractice claim was (in counsel’s words) “ethereal.”

Finally, appellants’ counsel argued that the trial court abused its discretion by not

submitting to a jury the factual question of whether Ms. Dennis gained any

advantage for herself over appellees, or whether her nondisclosure created a

disadvantage specifically to appellees.

VI. Analysis

Our review of the record convinces us that neither of the two issues briefed

by appellants has merit. Scrutinizing additional points offered by appellants in oral

argument, we examine and adjudicate the two principal questions and the added

sub-issues as follows.

Issue One: Alleged Lack of Findings of Unfair Advantage Over Appellees

or Imposing an Unfair Detriment Upon Appellees.

As to the first issue raised by appellants, their argument lacks merit for

several reasons, and we discuss them in light of the Supreme Court’s teaching as to

the overarching purpose of judicial estoppel. In New Hampshire v. Maine, the

Supreme Court summarized the purpose of the doctrine of estoppel, saying:
 18

[I]ts purpose is to protect the integrity of the judicial
process, by prohibiting parties from deliberately
changing positions according to the exigencies of the
moment. . . . Because the rule is intended to prevent
improper use of judicial machinery, judicial estoppel is
an equitable doctrine invoked by a court at its discretion.

New Hampshire v. Maine, supra, 532 U.S. at 749-50 (internal quotations and

citations omitted).

As the issue before us is articulated in appellants’ brief, it actually involves

two sub-parts, one narrow and one broad. The narrow issue is whether the trial

court actually failed to make any findings that the nondisclosure resulted in an

unfair detriment to appellees specifically. The trial court clearly did make an

unfair-detriment finding, and it is incorrect to assert that there were no findings at

all on this subject. On the record at the hearing on December 18, 2018, the trial

judge identified the detriment to appellees as the inability to attempt to negotiate a

settlement with the Trustee. While appellants refer to it dismissively in their

briefing, it was still something specific and not without logic or clarity. Whether a

settlement finally would have been achieved is unknown, but the discrete detriment

was the lost opportunity to negotiate. Another unfair detriment is that, if the

Trustee had been aware of the claim, the Trustee “might have . . . decided not to

pursue it.” Moses v. Howard University, 606 F.3d at 799.

Appellants raise a broad issue when they argue that judicial estoppel can

only apply where the unfair detriment is suffered by a party that participated as the
 19

debtor’s “opponent” in both the bankruptcy case and the subsequent civil action.

This position reveals that appellants misunderstand why judicial estoppel exists

and what kind of proof is required to support a judgment based on that doctrine.

The pivotal issue is not about whether the nondisclosure caused an unfair detriment

to a particular party in a subsequent civil action, but rather whether the

nondisclosure created an unfair detriment to the creditors or whether it obstructed

the bankruptcy system itself. See, e.g. Love v. Tyson Foods, Inc., 677 F.3d 258,

261 (5th Cir. 2012) (citing In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir.

1999)). As another court cogently observed,

The rationale for . . . decisions [invoking judicial
estoppel to prevent a party who failed to disclose a claim
in bankruptcy proceedings from asserting that claim after
emerging from bankruptcy] is that the integrity of the
bankruptcy system depends on full and honest disclosure
by debtors of all of their assets. The courts will not
permit a debtor to obtain relief from the bankruptcy court
by representing that no claims exist and then
subsequently to assert those claims for his [or her] benefit
in a separate proceeding. The interests of both the
creditors, who plan their actions in the bankruptcy
proceeding on the basis of information supplied in the
disclosure statements, and the bankruptcy court, which
must decide whether to approve the plan of
reorganization on the same basis, are impaired when the
disclosure provided by the debtor is incomplete.

Rosenshein v. Kleban, 918 F. Supp. 98, 104 (S.D.N.Y. 1996).

The core fallacy in appellants’ position is the belief that there was no actual

detriment to the appellees because neither the doctor nor the Hospital was a
 20

creditor in the bankruptcy proceeding and thus, neither could have been an

“opposing party” in bankruptcy. Appellant is wrong, on multiple levels.

We are aware that in some of the case law on judicial estoppel, there are

references to proving that there was an unfair detriment to the “opposing party” or

an unfair advantage over the “opposing party.” However, in those cases (such as

New Hampshire v Maine, Atkins v. 4940 Wisconsin, LLC, and others cited in

appellants’ brief), it was only happenstance that the defendant in the civil action

was also a creditor in the related bankruptcy proceeding. Thus, it is not surprising

that those decisions referred to detriment to or advantage over the “opposing

party.” It was natural and logical to do so, because those references matched the

facts. Nonetheless, the significance of those references should not be inflated to be

a holding, or even a suggestion, that the opponent in the civil action had to have

been in privity with the bankruptcy petitioner, in order for judicial estoppel to

apply.

Quite to the contrary, in judicial estoppel litigation involving nondisclosure

in bankruptcy, it is not uncommon for a movant seeking judicial estoppel in a civil

action to be a party that was not a bankruptcy creditor. The classic example is seen

where the undisclosed cause of action was one for employment discrimination, and

where the job loss caused by the alleged discrimination was partly the reason for

the inability to pay debts and the need to file a bankruptcy petition. See, e.g.,
 21

Moses v. Howard Univ. Hospital, supra, (a Title VII action for retaliation)9;

Robinson v. District of Columbia, supra, (a claim of race discrimination under

Title VII and retaliation under the District of Columbia Whistleblower Protection

Act). In the present case, the parties seeking protection through judicial estoppel

likewise were not creditors before the Bankruptcy Court; but this is not in any way

a bar to invoking the doctrine.

We are constrained to add that, in complaining that appellees were not

specifically disadvantaged as bankruptcy creditors, appellants conflate judicial

estoppel with the doctrine of equitable estoppel. Equitable estoppel applies to

preclude a party from contradicting testimony or pleadings successfully maintained

in a prior judicial proceeding against the identical adverse party, where the adverse

party acted in reliance upon the opponent’s prior position and now faces injury if a

court were to permit the opponent to change positions. See Thoubboron v. Ford

Motor Co., 809 A.2d 1204, 1212-13 (D.C. 2002) (citations and quotations

omitted). In other words, privity between the parties must be present in both

proceedings.

In contrast, judicial estoppel requires neither privity between the parties in

the earlier proceeding nor detrimental reliance upon the opponent’s position. See

In Re Coastal Plains, supra, at 205 (“Because the doctrine is intended to protect

9
42 U.S.C. § 2000e et seq.
 22

the judicial system, rather than the litigants, detrimental reliance by the opponent

of the party against whom the doctrine is applied is not required.”) (italics in

original); Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 214 (1st

Cir. 1987) (“[H]arm to an opponent is not an invariable prerequisite to judicial

estoppel.”); Edwards v. Aetna Life Ins. Co., 690 F.2d 595, 598 (6th Cir. 1982)

(“Unlike equitable estoppel, judicial estoppel may be applied even if detrimental

reliance or privity does not exist.”). Thus, appellants’ contention is without legal

support.

Above all, the fallacy plaguing the appellants’ position is firmly debunked

by the Supreme Court’s admonition in New Hampshire v. Maine that the three

elements of judicial estoppel it recognized are not the proverbial straightjacket

appellants believe them to be. The Supreme Court stated:

In enumerating these factors, we do not establish
inflexible prerequisites or an exhaustive formula for
determining the applicability of judicial estoppel.
Additional considerations may inform the doctrine’s
application in specific factual contests. In this case, we
simply observe that the factors [herein] firmly tip the
balance of equities in favor of barring New Hampshire’s
present complaint.

New Hampshire v. Maine, supra, at 751 (emphasis added).

The net meaning of the above-quoted caveat in New Hampshire v. Maine is

that the doctrine may be applied where a bankruptcy petitioner’s knowing failure

to disclose an asset creates any one of several kinds of inequities. They include,
 23

but are not limited to (1) creating an unfair detriment to the creditors; (2) obtaining

an unfair advantage for the petitioner over the creditors; (3) creating an unfair

detriment to the opponent in the subsequent civil action; or (4) creating an unfair

advantage for the petitioner over the opponent in the civil action. Thus, any one

of these scenarios could have sufficed as a basis for the judgment herein.

In the present case, the trial court found evidence of more than one of the

above inequities: (1) harm to the bankruptcy creditors because of the

nondisclosure; (2) creation of an advantage for the appellants in the bankruptcy

case because the nondisclosure left them free to sue for damages that would have

been subject to potential distribution to the creditors; and (3) harm to the appellees

by eliminating their opportunity to settle the potential claims against them while

the bankruptcy case was still open. The record contains solid evidence of all three.

Where the creditors are concerned, the nondisclosure hid from them the

potential proceeds of litigation that were not exempt as bankruptcy assets. They

included lost wages, prepetition medical expenses and other monetary relief not

cloaked with bankruptcy exemption under Maryland law. The United States

Bankruptcy Code plainly addresses the issue of property alleged to be exempt from

treatment as an asset of the bankruptcy estate. The Code expressly recognizes that

exemption of property as a bankruptcy asset may arise from “State or local law.”

11 U.S.C. § 522(b)(3). However, the Code also provides, “The debtor shall file a
 24

list of property that the debtor claims as exempt under subsection (b) of this

section.” 11 U.S.C. § 522(l). This is the platform for litigating any objections to

application of the exemption in question. Yet, appellants did not comply with the

statutory duty to identify allegedly exempt assets.

Hiding altogether a mixed civil action potentially having both non-exempt

and exempt claims cannot be excused because of the existence of the state

exemption. It is the bankruptcy Trustee to whom an exemption issue must be

addressed – in the open and on the record of the Bankruptcy Court. Ergo, because

of the nondisclosure of the entire potential civil action, the creditors in appellants’

bankruptcy proceeding were cheated out of a possible resource for satisfying at

least some of their claims.

As the person appointed by the Bankruptcy Court to manage the disposition

of all assets and debts, the Trustee’s ability to function is central to the integrity of

the bankruptcy system. The nondisclosure left that officer of the Bankruptcy Court

powerless to perform one of a Trustee’s key statutory duties, i.e. applying the

assets to the claims where it is possible and practical to do so. 10 Where a potential

10
When a person files a petition for bankruptcy, this “creates an estate . . .
comprised of all . . . property,” including “all legal or equitable interests of the
debtor in property at the commencement of the case.” § 11 U.S.C. § 541(a)(1). As
the legal representative of the estate, appointed by the Bankruptcy Court, the
Trustee has the authority to file suit to assert the debtor’s claims. 11 U.S.C. § 323.
The Trustee also may seek a settlement of a claim available to the debtor and
(continued…)
 25

civil action is identified as an asset in bankruptcy, the Trustee is obligated and

empowered to determine what to do with it. The Trustee has a menu of options as

to potential nonexempt damages, such as pursuing a settlement or explicitly

abandoning the lawsuit as an asset but with an assignment of interest to the

creditors. When this entire range of choices for the Trustee is silently eviscerated

by a petitioner who hides a cause of action, the bankruptcy system itself has been

evaded and disrespected. That is exactly what happened in the present case.

Second, the trial court concluded that the nondisclosure fostered an unfair

advantage for the appellants. Where an unfair advantage to appellants was

concerned, the trial court specifically concluded that appellants did gain a distinct

advantage for themselves, because whatever damages they might achieve in the

civil action would never have been taken by the creditors left behind in

bankruptcy. That is a palpable, dollars and cents advantage. The trial court found

that, without the consequences of judicial estoppel, appellants would reap the

advantage of “an inappropriate windfall” because they would be able to keep the

advantage of the discharge of more than $86,000.00 in debts while suing for a

significantly larger sum of money, none of which could have been applied to their

debts. The trial judge wrote:

(…continued)
submit the proposed settlement to the Bankruptcy Court for approval, pursuant to
Fed. R. Bankr. P. 9019.
 26

The amount discharged, while small . . . compared
to the recovery sought in this case, is for most of the
world, a huge sum of money. More than $86,000.
Additionally, while the amount of medical bills that are
being discharged is absolutely just a tiny fraction of that
amount, in my view, that misses the point . . . . It’s all of
the creditors who were harmed, not just that one [KCI].

Third, the unfair detriment to the appellees as the civil action opponents was

not a token matter. We reject the argument of appellants that the trial court

“focused on the wrong issue” by concluding that the detriment to appellees was

short-circuiting their chance to settle the malpractice claim while appellants were

in the bankruptcy process. Counsel opined that the likelihood of settling the case

at that point was “ethereal.” This viewpoint has no merit for several reasons.

First, the law does not require the trial court to measure the likelihood of success of

a settlement attempt in order to find that the lost opportunity to attempt a

settlement was, in and of itself, a form of “unfair detriment.” Moreover, the trial

court below recognized the practicalities of why the loss of the chance to negotiate

a settlement was not a token bump in the road. In short, the trial court stated:

As a matter of common sense, the incentives for
the trustee to do anything at that point – no matter what
kind of accounting system was used by the creditors, that
loss has already been accounted for two years later. So
the incentives are completely different for the trustee and
for the creditors, than it would have been if it had been
disclosed at the time required.
 27

The trial court’s findings covered all iterations of unfair advantage and

unfair detriment arising from the nondisclosure.

Issue Two: Sufficiency of the Evidence Regarding Mistake or Inadvertence.

The second issue raised by appellants is similarly devoid of merit.

Appellants argue that the trial court committed reversible error by not submitting

the substance of the defense to a jury for adjudication. Related to that point,

appellants contend that the proper analytical model that the trial court was obliged

to use was the traditional summary judgment regimen, requiring the trial judge to

draw all factual inferences in favor of appellants and forbidding the trial judge

from making any findings on disputed facts. As an extension of this argument,

appellants state that we, as an appellate court, are obliged to revisit the summary

judgment decision de novo and not analyze the trial court’s decision using the

abuse of discretion standard.

We need not discuss any further the trial court’s reasoning for discounting

the merits of the defense of mistake or inadvertence, because appellants do not

actually contend that those factual findings were incorrect or illogical. Rather,

they argue that the trial court should not have made any such factual findings at all.

Alluding to Ms. Dennis’ statement that she made a “legal mistake” and that

she reasonably believed she was not required to reveal the claim before the

Bankruptcy Court, appellants contend that a “jury should be allowed to consider all
 28

[of the] facts and decide whether Ms. Dennis’ failure to identify this case in her

schedules was a confused blunder or an intentional lie to mislead the courts.”

Below, we explain why appellants are mistaken in their arguments regarding de

novo review and the injection of a jury into judicial estoppel.

De Novo Review. The argument that an appellate court must review de novo

the use of judicial estoppel is a concept that has no basis in law. As a threshold

matter, it is well established in this jurisdiction that “[t]he nature of a motion does

not turn on its caption or label, but rather its substance.” Nuyen v. Luna, 884 A.2d

650, 654 and n.3 (D.C. 2005) (citing Wallace v. Warehouse Employees Union No.

730, 482 A.2d 801, 804 (D.C. 1984)). Here, since the type of relief requested is a

judgment based upon the equitable remedy of judicial estoppel, which is most

certainly a discretionary decision of a trial judge, our role is only to determine

whether the trial court abused its discretion. Moreover, judicial estoppel manifestly

does not hinge upon the underlying merits of the complaint, as is typically seen in

the grant or denial of a motion for summary judgment. Thus, it does not matter

whether the request for relief through judicial estoppel is brought to the trial court

by way of a motion to dismiss, a motion for summary judgment, or any other

procedural vehicle.

While this court has always employed the abuse of discretion standard of

review to issues of judicial estoppel, we have never formally held that abuse of
 29

discretion is the correct standard. We hereby do so. We previously saw no reason

to state such an obvious holding, because this principle was self-evident from the

fact that the doctrine is an equitable one, imposed or withheld as a discretionary

matter.

Without question, the abuse of discretion is the correct standard for

reviewing the imposition or denial of judicial estoppel, for all of the reasons

succinctly explained by the United States Court of Appeals for the First Circuit in

Alternative Systems Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23 (1st Cir. 2004).

Holding that “the applicable rubric is abuse of discretion,” the First Circuit based

its conclusion on four lines of reasoning:

First, the Supreme Court has explained that ‘judicial
estoppel is an equitable doctrine invoked by a court at its
discretion.’ Second, deferential review often is
appropriate for matters in which the trial court is ‘better
positioned . . . to decide the issue in question.’ Judicial
estoppel is such a matter. Determining whether a litigant
is playing fast and loose with the courts has a subjective
element. Its resolution draws upon the trier’s intimate
knowledge of the case at bar and his or her first-hand
observations of the lawyers and their litigation strategies.
Third, abuse of discretion is a flexible standard, and the
amorphous nature of judicial estoppel places a high
premium on such flexibility. Last – but far from least –
the other courts of appeals to have addressed this
question have settled unanimously on abuse of discretion
review. A court of appeals should always be reluctant to
create a circuit split without a compelling reason, and
none exists here.
 30

Id. at 30-31 (quotations and citations omitted). 11

Factual Determinations by a Jury. There is no role for a jury in the

determination of whether to apply judicial estoppel, and the mere fact that a trial

judge must consider and weigh disputed issues of fact does not mean that part of

the judicial estoppel decision making must be left to a jury. This is clear from

several standpoints. First, since judicial estoppel is manifestly an equitable

remedy, there is no right to submit the decision making to a jury. This court has

firmly established that where the issue at hand and the remedy sought are equitable

in nature, there is no constitutional right to a jury trial on the issue. In re Estate of

Johnson, 820 A.2d 535, 538 (D.C. 2003); Johnson v. Fairfax Village

Condominium IV Unit Owners Ass’n, 641 A.2d 495, 505-06 (D.C. 1994); E.R.B. v.

J.H.F., 496 A.2d 607, 610-11 (D.C. 1985). Here, appellants do not go so far as to

claim a constitutional right to a jury trial on judicial estoppel. Rather, their only

11
At the present time, all of the federal circuits reviewing jury-demandable cases,
except the Sixth Circuit, recognize abuse of discretion as the proper standard for
reviewing judicial estoppel decisions. However, the Sixth Circuit has now
“questioned the continued viability” of de novo review because of the Supreme
Court’s description of judicial estoppel as “an equitable remedy ‘invoked by a
court at its discretion.’” Javery v. Lucent Techs., Inc., 741 F.3d 686, 697 (6th Cir.
2014) (internal citation omitted). Adopting the reasons “ably set forth” by the First
Circuit in Alternative Systems, the District of Columbia Circuit has added yet
another reason why de novo review is an inappropriate standard of review, stating:
“De novo review would displace the discretion of the district court to apply judicial
estoppel with the discretion of the appellate court to do so. We see no sense in
this.” Marshall v. Honeywell Tech. Systems, 828 F.3d 923, 928 (D.C. Cir. 2016).
 31

premise for demanding that the defense be decided by a jury is bootstrapping from

the fact that the case came to us through a summary judgment motion. This is a

classic error of exalting form over substance.

Second, there are numerous situations in which judges must weigh disputed

facts in order to exercise discretion on matters that are the obligation of a trial

judge to assess. They include, for example, ruling on the sufficiency of the

qualifications of an expert witness 12 and determining whether to exclude a juror for

cause based upon facts involving that person’s demeanor.13 Adjudicating a

demand for relief through judicial estoppel is only another such example.

12
E.g., Karamychev v. District of Columbia, , 811-12 (D.C. 2001) (affirmance of a
trial court’s assessment of a police officer’s qualifications to interpret the results of
a certain roadside sobriety test). “The admission or exclusion of expert testimony .
. . is committed to the trial court’s broad discretion.” In re Melton, 597 A.2d 892,
901 (D.C. 1991) (en banc). “The trial judge is in the best position to evaluate the
qualifications of an expert witness. We have therefore accorded the trial court
wide latitude in this area, and the trial judge’s decision should be sustained unless
it is manifestly erroneous.” Karamychev, 772 A.2d at 812 (internal quotations and
citations omitted).
13
E.g., Steele v. D.C. Tiger Market, 854 A.2d 175, 179 (D.C. 2004) (judge’s
decision to strike a potential juror during voir dire upheld where the judge assessed
the person’s demeanor based upon that person’s problematic “affect” and “cadence
of his voice”). Assessing demeanor, in real time, is as fact-bound as a process can
be. “’A trial judge . . . has broad discretion in deciding whether to excuse a juror
for cause’ to achieve that goal, among other reasons because the judge’s
assessment of a potential juror’s demeanor plays ‘such an important part’ in
evaluating the juror’s ability to serve.” Id. (quoting Rease v. United States, 403
A.2d 322, 325 (D.C. 1979) (quoting Ristaino v. Ross, 424 U.S. 589, 595 (1976)).
 32

In addition, at oral argument, we asked appellants’ counsel to identify the

basis for contending that the trial court was obliged to allow a jury to decide the

merits of the defense of mistake/inadvertence. Counsel cited three cases which he

asserted all involved delegating that fact-finding function to a jury as part of the

judicial estoppel analysis. They are: Eubanks v. CBSK Financial Group, Inc., 385

F.3d 894 (6th Cir. 2004); Ryan Operations G.P. v Santiam-Midwest Lumber Co.,

81 F.3d 355 (3rd Cir. 1996); and Access Limousine Service, Inc. v. Service Ins.

Agency, LLC, No. TDC-15-3724, 2016 U.S. Dist. LEXIS 145044 (D. Md., October

19, 2016).

None of the above three decisions supports appellants’ argument in any way.

In each instance, appellants rely on what was nothing more than either an appellate

reversal of the imposition of judicial estoppel or the decision of a trial judge not to

invoke the doctrine. In all three cases, the natural result was allowing the

underlying merits of the civil action to go forward in a trial on the merits.

None of the three decisions mentioned whether any party had even requested

a jury trial. Whatever was left for a jury or a judge to decide certainly had no

connection whatsoever to the adjudication of judicial estoppel issues. We

summarize and distinguish those decisions below.

In Eubanks, the United States Court of Appeals for the Sixth Circuit

reversed the District Court’s grant of a motion to dismiss based upon judicial
 33

estoppel.14 The Sixth Circuit concluded that the District Court had failed to

consider distinct evidence that the initial failure to disclose a potential civil action

was inadvertent. The Circuit observed:

The record established that Plaintiffs amended the
bankruptcy schedules once, and attempted to amend it a
second time, to finally place Defendant on the schedule
as a creditor and potential asset. Defendant, however,
provides no additional evidence that Plaintiffs
demonstrated fraudulent intentions toward the court.
Additionally, the record establishes that Plaintiffs put the
court and the Trustee on notice through correspondence,
motions, and status conference requests, thus supporting
the argument that the claim’s omission on the schedules
was merely inadvertent, particularly since Plaintiffs’
desire to pursue a liability claim against Defendant was a
fact known by all parties involved.

Id. at 898-99.

No party in Eubanks ever suggested that a jury should have performed any

fact finding on any aspect of the estoppel issue, and the Sixth Circuit never

questioned the trial court’s role as the sole fact-finder on judicial estoppel. If

anything, the appellate court reversed the dismissal because the trial court did not

properly discharge its fact-finding obligation.

In Ryan Operations G.P. (hereinafter “Ryan Operations”), the United States

Court of Appeals for the Third Circuit reversed the application of judicial estoppel

in granting summary judgment against Ryan Operations, the plaintiff below.

14
The motion to dismiss was filed pursuant to Fed. R. Civ. P. 12(b)(6).
 34

Appellant therein was a homebuilding company and had a claim against one of its

suppliers of wood trim, used in constructing thousands of homes. Ryan

Operations, supra, at 357. It filed a bankruptcy petition, seeking reorganization

rather than discharge of debts. It failed to list on a bankruptcy schedule a potential

claim against certain suppliers, who were the defendants and movants below. Id.

The Third Circuit rejected the contention that “intent to mislead or deceive

could be inferred from the mere fact of nondisclosure.” Id. at 364. The trial record

revealed that both the Trustee and the creditors were well aware of the supplier

claims before the bankruptcy case was closed. The Third Circuit concluded that

“there is no basis in this case for inferring that Ryan deliberately asserted

inconsistent positions in order to gain advantage – i.e., that it played fast and loose

with the courts.” Id. at 363. Several factual elements demonstrated that Ryan

Operations did not intend or receive any “appreciable” benefit from the

nondisclosure. Id.15 Nothing in this appellate decision discussed the use of a jury

to resolve the factual dispute about alleged inadvertence of the nondisclosure or the

15
For example, “the reorganization plan that the court and creditors approved
authorized Ryan to retain and enforce claims against any entity and to adjudicate
homeowner claims.” Id. at 364. In addition, the reorganization plan granted to the
creditors the right to receive “91 percent of any future recovery on the pine trim
claims, as well as the obligation to cover 91 percent of the loss if Ryan is unable to
recover the expenses incurred in the repair and replacement program from
defendants.” Id. at 363.
 35

lack of an unfair advantage to the plaintiff from the nondisclosure. The Third

Circuit remanded the case for further proceedings on the merits. Id. at 365.

In Access Limousine Service (in the United States District Court of

Maryland) the plaintiff filed a civil action against its former insurance company for

negligently failing to renew the plaintiff’s policy. As a result of the non-renewal,

Access could not operate its business, and it filed a bankruptcy petition. There was

no doubt that the plaintiff had failed to disclose the claim against its insurance

agency during the bankruptcy proceeding. The petition was dismissed because

Access failed to file required monthly operating reports, failed to make required

fee payments, and failed to provide information requested by the Trustee. Id. at

*4-5, 12. The Bankruptcy Court never issued an order of discharge. Thus, the

creditors were left free to sue on their own unpaid debts. Id. at *18.

The defendant insurance company filed a motion for summary judgment,

seeking relief through judicial estoppel. The United States District Court for the

District of Maryland denied that motion. Id. at *22. The District Court examined

and weighed the issue of the petitioner’s intent, where the nondisclosure was

concerned. The trial court stated,

The fact that Access did not act diligently to take all
necessary steps to obtain a bankruptcy discharge and
instead had its claim dismissed in a manner that
prevented a potential windfall in the event of recovery
may be indicative of a lack of intent to mislead. Thus,
there is, at a minimum, a genuine issue of material fact
 36

on whether Access’s failure to schedule the negligence
claim was intentional.

Id. at *17.

Even though the District Court denied the motion because a material factual

dispute existed, rather than make its own findings to resolve the dispute, the

important point is that the factual dispute about the defense of mistake or

inadvertence was not submitted to a jury. The District Court simply denied the

motion, and the estoppel issue came to an end.16

For all of the reasons set forth above, we are satisfied that the trial court’s

findings and conclusions on judicial estoppel are supported by the evidence and

applicable law. We find no error of law or abuse of discretion in any aspect of the

trial court’s rulings. The judgment stands.

So ordered.

16
We certainly do not subscribe to the practice of denying a request to impose
judicial estoppel simply because some of the facts are disputed. It is the trial
court’s duty to make findings as to whether the party with the burden of proof has
satisfied that burden and to grant or deny the requested relief accordingly. It is not
clear whether this is what the United States District Court meant in denying the
motion.