2020 Mass. App. Div. 20

September 13, 2019 - February 25, 2020

Appellate Division Southern District

Court Below: District Court, Barnstable Division

Present: Finnerty, P.J., Cunis & Campbell, JJ.

Anthony Alva for the plaintiff.

Douglas C. Galloway and William F. Burke for the defendants.

CUNIS, J. This is an appeal from the allowance of a motion for summary judgment in favor of the defendants, Richard W. Anderson Builders and Richard W. Anderson (hereinafter, "Anderson" [Note 2]), on grounds of judicial estoppel.

In 2013, Anderson installed a roof on the home of the plaintiff, Lisa Golfomitsos ("Golfomitsos"). The roof began to leak in 2015, and according to Golfomitsos, she made repeated requests of Anderson to fix it, to no avail. Golfomitsos initially filed a small claims action against Anderson on September 29, 2016, for $7,000 in damages.

After the small claims complaint was filed, Anderson learned that two months earlier, on July 25, 2016, Golfomitsos had filed a Chapter 13 petition for bankruptcy in the United States Bankruptcy Court. Anderson further learned that on August 4, 2016, as part of her bankruptcy case, Golfomitsos filed a "Schedule of Assets and Liabilities Form," in which she denied having knowledge of any claims against third parties. [Note 3] As a result, on or about October 31, 2016, Anderson filed a motion to transfer the case from small claims to the regular civil list, G.L. c. 218, ยง 24, arguing as a reason Golfomitsos's failure to disclose her claim against Anderson in her bankruptcy filing, and asserting judicial estoppel. The motion was allowed.

The District Court litigation proceeded until December 5, 2017, when a District Court judge allowed Anderson's motion to stay the case pending the resolution of Golfomitsos's bankruptcy case. At the request of Golfomitsos's attorney, the stay was lifted (after a hearing) on April 24, 2018. The Bankruptcy Court confirmed Golfomitsos's Chapter 13 bankruptcy plan on May 4, 2018, and approved her loan modification agreement on July 3, 2018.

On July 16, 2018, Anderson filed a motion for summary judgment, arguing, as he does in this appeal, that principles of judicial estoppel bar Golfomitsos's claims against him in the District Court. Specifically, Anderson argues that, despite knowing of her claim against him arising out of the leaking roof, Golfomitsos took a

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contrary position in her Chapter 13 bankruptcy filing when she affirmatively represented, under penalties of perjury, that she knew of no claims that she had against any third parties.

Golfomitsos opposed the summary judgment motion, the gist of her argument being that her failure to disclose her claim against Anderson was a good faith mistake and not done in an effort to conceal an asset. In her affidavit in support of the opposition, Golfomitsos asserted that, at the time she filed her bankruptcy papers, she believed Anderson would fix the roof and that she was unaware that she had a claim against him. Further, she asserted that her bankruptcy attorneys had told her that amending her disclosures was not necessary because her home was exempt property under bankruptcy laws.

In allowing the summary judgment motion on August 16, 2018, the District Court judge expressly rejected Golfomitsos's assertions, finding that her claim of "mistake" was undercut by the fact that she had never bothered to amend her bankruptcy disclosures to include her claim against Anderson, despite being on notice of Anderson's judicial estoppel defense since October of 2016.

On September 14, 2018 -- approximately one month after the allowance of the summary judgment motion and nearly two years after Golfomitsos was first alerted to Anderson's judicial estoppel claim -- Golfomitsos finally amended her bankruptcy disclosures to include her claim against Anderson. She subsequently filed a "motion for relief from judgment and reconsideration" and later an amended motion for the same, arguing for relief on grounds that she had now amended her bankruptcy disclosures to include her claim against Anderson. The same judge summarily denied the motions on November 2, 2018.

It is well established that a moving party is entitled to summary judgment when, viewing the evidence in a light most favorable to the nonmoving party, there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P. 56(c). See Halstrom v. Dube, 481 Mass. 480, 483 (2019). Because a judge engages in no fact finding in deciding a summary judgment motion, the judge's decision is reviewed de novo on appeal. Melrose Fish & Game Club, Inc. v. Tennessee Gas Pipeline Co., 89 Mass. App. Ct. 594, 597 (2016).

"Judicial estoppel is an equitable doctrine that precludes a party from asserting a position in one legal proceeding that is contrary to a position it had previously asserted in another proceeding." Sandman v. McGrath, 78 Mass. App. Ct. 800, 801 (2011), quoting Otis v. Arbella Mut. Ins. Co., 443 Mass. 634, 639-640 (2005). See also Blanchette v. School Comm. of Westwood, 427 Mass. 176, 184 (1998); Commonwealth v. Taylor, 96 Mass. App. Ct. 143, 147 (2019). The doctrine's purpose is to "prevent the manipulation of the judicial process by litigants." Cananvan's Case, 432 Mass. 304, 308 (2000). As an equitable doctrine, its application in a given case is a matter of judicial discretion. Otis, supra at 640. "[T]wo fundamental elements are widely recognized as comprising the core of a claim of judicial estoppel." Id. First, a litigant's position in one action must be "directly inconsistent," meaning "mutually exclusive," of the litigant's position in another action. Id. at 640-641, citing Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004). Second, the litigant "must have succeeded in convincing the court to accept its prior position," creating a perception that one or both courts were misled. Id. at 641. There may exist situations "where the party's prior position was asserted in good faith, and where circumstances provide a

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legitimate reason -- other than sheer tactical gain -- for the subsequent change in that party's position." Id. at 642. Such examples would include inadvertence, mistake, or the discovery of new information that was not known or readily available at the time the litigant took his or her initial position. Id. There exists no "categorical list" of requirements for or exceptions to the application of judicial estoppel and, again, in the end it is a matter of pure judicial discretion. Id.

Unlike the typical summary judgment decision that is reviewed de novo on appeal, summary judgment allowed on the basis of judicial estoppel is reviewed under the abuse of discretion standard. Otis, supra at 640. Nevertheless, as with any other matter decided on summary judgment, there must be no dispute as to material facts, and summary judgment is disfavored where "a party's state of mind or motive is in issue." Holland v. Kantrovitz & Kantrovitz LLP, 92 Mass. App. Ct. 66, 74 (2017), quoting Maimaron v. Commonwealth, 449 Mass. 167, 177 (2007).

Here, Golfomitsos's state of mind or motive is at issue. In her affidavit, Golfomitsos essentially asserted that she made a mistake: she did not believe she had a claim against Anderson at the time she filed for bankruptcy because of her expectation that Anderson would soon fix her roof, and that her failure to amend her bankruptcy filing was on advice from her lawyer. "[F]or purposes of summary judgment, the judge was required to accept" these assertions in Golfomitsos's affidavit because they present issues of fact that should be decided by a fact finder after trial, and not a judge deciding a summary judgment motion. Holland, supra at 74. Thus, it was error for the judge to allow the summary judgment motion.

We reverse the judgment allowing Anderson's motion for summary judgment and return the case to the District Court for further proceedings.


[Note 1] Richard Anderson.

[Note 2] The defendants will also be referred to as "he" or "him" in this opinion.

[Note 3] The fact that the bankruptcy filing preceded the filing of the small claim against Anderson is of no import, as "Schedule A/B: Property" asks filers to identify "[c]laims against third parties, whether or not you have filed a lawsuit or made a demand for payment" (emphasis added). Golfomitsos answered "no" to this question.