2014 IL App (4th) 130911 

NO. 4-13-0911 

IN THE APPELLATE COURT 

OF ILLINOIS 

FOURTH DISTRICT 

JOHN D. SHOUP, 

 Plaintiff-Appellant, 

 v. 

DANIEL W. GORE; 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. 

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 Appeal from 

 Circuit Court of 

 McLean County 

 No. 12L82 

 Honorable 

 Paul G. Lawrence, 

 Judge Presiding. 

 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 

FILED 

June 26, 2014 

Carla Bender 

4

th District Appellate 

Court, IL
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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 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. 
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¶ 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 
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quotations 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 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 
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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 
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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 (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. 
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¶ 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 
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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.