dissenting.
I respectfully dissent.
The purpose and justification for judicial estoppel are “to prevent the use of intentional self-contradiction as a means of obtaining unfair advantage in a forum provided for suitors seeking justice.” (Punctuation omitted; emphasis supplied.) Southmark Corp. v. Trotter, Smith &c., 212 Ga. App. 454, 455 (442 SE2d 265) (1994). It is “directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings.” (Punctuation omitted; emphasis supplied.) Johnson v. Trust Co. Bank, 223 Ga. App. 650, 651 (478 SE2d 629) (1996). Finally, it can be applied only to preclude “a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding.” (Emphasis supplied.) Southmark, supra, 212 Ga. App. at 455.
We should not apply judicial estoppel in this case for two reasons: (1) no evidence shows a previous position successfully asserted by the plaintiff; and (2) an issue of fact exists as to whether the plaintiff intentionally asserted a contradictory position.
The first reason precluding the application of judicial estoppel is rooted in the evidentiary burden placed on a party moving for summary judgment. If a defendant moves for summary judgment based upon a defense, as opposed to a lack of evidence supporting an essential element of the plaintiff’s case, the defendant must provide the trial court with evidence supporting application of the defense.1 See *639Jones v. Littlejohn, 222 Ga. App. 494, 496-497 (2) (474 SE2d 714) (1996). In this case, the defendant sought summary judgment from the trial court on the sole ground that the defense of judicial estoppel barred the plaintiff’s claim against her. As a result, she needed to come forward with evidence supporting the application of judicial estoppel to meet her burden of proof below.* 2 At the time of the trial court’s ruling, none of the plaintiff’s bankruptcy pleadings were in the record. The fact that the plaintiff’s bankruptcy was filed on August 15, 1994, and discharged on March 30, 1998, is established only through admissions in the parties’ summary judgment pleadings. See Versico, Inc. v. Engineered Fabrics Corp., 238 Ga. App. 837, 839 (1) (520 SE2d 505) (1999).
A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996). In this case, we have been provided with the entire record of the evidence before the trial court at the time it ruled on the defendant’s summary judgment motion.3 This record fails to show an essential requirement for application of judicial estoppel — that the plaintiff’s previous position was successfully asserted. Evidence that a plaintiff’s Chapter 13 bankruptcy case has been discharged, does not, standing alone, establish that the plaintiff “successfully asserted” an inconsistent position in the bankruptcy. A debtor’s confirmation plan could require a debtor to pay her creditors 100 percent of the money owed; in this circumstance, a failure to disclose a personal injury action would not benefit the debtor or harm the creditors. See, e.g., Donato v. Metro. Life Ins. Co., 230 B.R. 418, 424 (N.D. Cal. 1999); Elliott v. ITT Corp., 150 B.R. 36, 39 (N.D. Ill. 1992).
Federal courts recognize the necessity of the debtor’s “success” in this context and refuse to apply judicial estoppel when a Chapter 13 confirmation plan requires the debtor to pay 100 percent of the debt owed. Elliott, supra, 150 B.R. at 39. We should follow their lead and refuse to presume, as a matter of law, that a Chapter 13 bankruptcy discharge, standing alone, fulfills the defendant’s burden of proving the plaintiff’s successful assertion of an inconsistent position.
*640We cannot presume, from the absence of a transcript of the summary judgment hearing, that evidence was submitted during this hearing which supports the trial court’s grant of summary judgment. In Seamans v. True, 247 Ga. 721 (279 SE2d 447) (1981), our Supreme Court rejected an identical argument, stating:
The defendants note the absence of a transcript of the hearing on the motion for summary judgment and argue that this court must assume that evidence was presented at said hearing and that such evidence was sufficient to support the trial court’s grant of summary judgment. The trial court’s order granting the defendants’ motion for summary judgment states that the grant was based upon the pleadings of the parties and the affidavit of Arthur True. Accordingly, we do not assume that evidence was presented at the motion for summary judgment hearing. This argument is without merit.
Id. at 723.
In this case, the order granting summary judgment to the defendant states that the trial court’s findings were based upon “argument and citations of authority,” not evidence submitted during the hearing. It does not recite facts supporting the conclusion that Wolfork successfully asserted an inconsistent position in her Chapter 13 bankruptcy and neglects to analyze this prerequisite to the application of judicial estoppel. The only facts recited by the trial court are those included in the written arguments submitted to it by the parties. Under these circumstances, we cannot assume evidence was presented at the summary judgment hearing that supports a conclusion that is not contained in the trial court’s written order granting summary judgment. Id.
The facts and circumstances of this case are distinguishable from cases in which the trial court’s order demonstrates that it relied upon evidence not included in the record on appeal, when it ruled on a summary judgment motion. See, e.g., Lee v. Trust Co. Bank, 204 Ga. App. 28, 29 (2) (418 SE2d 407) (1992) (trial court’s order recites that evidence was presented at the summary judgment hearing, and the hearing transcript was not part of the record on appeal); Ga. Recovery v. Danley, 215 Ga. App. 236, 238 (2) (450 SE2d 263) (1994) (trial court’s order shows that evidence was presented at the summary judgment hearing, and the hearing transcript was not part of the record on appeal).
The defendant has apparently recognized the problem caused by her failure to meet her burden of proof below. After the plaintiff filed her notice of appeal on March 11, 1999, the defendant filed a “Sup*641plemental Brief in Support of Motion for Summary Judgment” in the trial court and included, for the first time, a portion of the plaintiff’s bankruptcy pleadings labeled Exhibit “A.” She also requested “that the clerk supplement the record that has been filed with the Court of Appeals.” After transmitting the supplemental brief to this Court, the state court clerk’s office notified this Court that Exhibit “A” was not attached to the defendant’s original summary judgment motion. As a result, it should not have been sent to this Court, and we will not consider it. RC Cola Bottling Co. v. Vann, 220 Ga. App. 479, 480-481 (1) (469 SE2d 523) (1996). We note, however, that consideration of Exhibit “A” would not alter the result in this case because it does not include the confirmation plan or any other evidence showing the plaintiff succeeded in the bankruptcy action.
Because the defendant failed to meet her burden of proving the “success” component of judicial estoppel, the trial court erred when it concluded this doctrine barred the plaintiff’s claim. Our analysis does not end here, however, because judicial estoppel should not have been applied for a second, alternative reason.
In this case, we are addressing, for the first time,4 whether a debtor’s failure to supplement her bankruptcy petition to disclose a personal injury cause of action that accrues over a year after she filed the bankruptcy petition warrants the application of judicial estoppel as a matter of law. When analyzing this issue, we must keep in mind the purpose behind judicial estoppel — preventing intentional or calculated “assertion of divergent sworn positions.” Johnson, supra, 223 Ga. App. at 651. See also Southmark, supra, 212 Ga. App. at 455.
It is well established that a failure to disclose an accrued cause of action in response to a direct question should be treated as a denial that the claim exists and, thus, a “position” for purposes of judicial estoppel. Southmark, 212 Ga. App. at 456; Byrd v. JRC Towne Lake, Ltd., 225 Ga. App. 506, 507-508 (484 SE2d 309) (1997). These cases, however, do not govern the result in this case because the plaintiff honestly answered the direct question put to her in her Chapter 13 petition.
Although she did have a duty to later supplement her bankruptcy petition to include the after-acquired cause of action, Chandler v. Samford Univ., 35 FSupp.2d 861, 864 (N.D. Ala. 1999), we should draw a distinction between affirmative misrepresentations and passive failures to supplement for purposes of judicial estoppel. An affirmative misrepresentation about an existing cause of action supports the inference, as a matter of law, that the person making *642the misrepresentation intentionally asserted a contradictory position. We cannot, however, draw the same inference from the passive conduct of failing to supplement a bankruptcy petition with an after-acquired cause of action, standing alone. While it could be an intentional omission warranting the application of judicial estoppel, it could also be an innocent mistake. Based on the facts of this case, the issue of whether the plaintiff intentionally asserted a contradictory position should be left for the finder of fact to decide. See Clark v. Per-ino, 235 Ga. App. 444, 446 (1) (509 SE2d 707) (1998).
Decided December 3, 1999 Reconsideration denied December 20, 1999 Graylin C. Ward, for appellants. Cobb & Walton, Bobby L. Cobb, Harper, Waldon & Craig, Russell D. Waldon, Janice M. Wallace, Jonathan M. Adelman, for appellees.Justice will not be served by automatically punishing a party who honestly represented that she had no personal injury causes of action at the time she filed a bankruptcy petition. Instead, a windfall is bestowed upon an undeserving party. While it is true that we are not “a court of equity” with power, for example, to issue injunctions, the principles of justice and equity should guide us when carrying out our duty to apply the law to the facts before us.
For the above-stated reasons, I respectfully dissent from the majority opinion.
If a defendant’s motion is based upon a lack of evidence supporting an essential element of the plaintiff’s case, the Supreme Court’s decision in Lau’s Corp. v. Haskins, 261 Ga. *639491 (405 SE2d 474) (1991) allows the defendant to meet its burden by merely pointing out the absence of evidence in the record to support the plaintiff’s case.
This burden of proof should not be confused with the burden of proof on appeal to show error based on the record created below.
The record does not include a transcript from the hearing on the summary judgment motion, perhaps because it was not transcribed. However, the trial court’s order states that its findings were based upon “argument and citations of authority” and there is no indication in the record that evidence was submitted to the trial court during the summary judgment hearing.
Since this is an issue of first impression, it logically follows that authority cannot be cited to directly support this portion of the dissent’s analysis. For the same reason, this analysis does not advocate a change in the law.