THIRD DIVISION

BARNES, P. J.,

BOGGS and BRANCH, JJ.

NOTICE: Motions for reconsideration must be

physically received in our clerk’s office within ten

days of the date of decision to be deemed timely filed.

http://www.gaappeals.us/rules/

March 26, 2015

In the Court of Appeals of Georgia

A14A1996. BARRON v. WELLS FARGO BANK, N. A.

BRANCH, Judge.

The trial court granted summary judgment in favor of Wells Fargo Bank, N. A.

in the bank’s suit to reform the legal description of property securing a debt owed to

the bank by appellant Mickey J. Barron. The bank argued that the security deed

mistakenly identified only part of Barron’s single parcel of real property. The trial

court based its ruling on judicial estoppel, finding that in his personal bankruptcy

proceeding, Barron declared that he owned only one parcel of real property, not two,

as he now contends. The trial court also granted summary judgment in favor of the

bank on Barron’s counterclaims. Barron appeals both decisions. We affirm.

Summary judgment is proper when there is no genuine issue of material fact

and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We
review a grant or denial of summary judgment de novo and construe the evidence in

the light most favorable to the nonmovant. Home Builders Assn. of Savannah v.

Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of Barron, the record shows that on December 16, 1996,

Barron purchased property located at 1610 Chattahoochee Run Drive in Suwanee

through a recorded warranty deed; the property, which is Lot 85 of the Chattahoochee

Run subdivision, is located on a corner of Chattahoochee Run Drive and Waterton

Lane. Barron financed the purchase and executed a security deed in that regard. On

June 28, 2001, Barron refinanced the debt and executed another security deed on

same property. The original warranty deed and both security deeds describe the

secured property with the identical language:

All that tract or parcel of land lying and being in Land Lot 239 of the 7th

District of Gwinnett County, Georgia, being lot 85, block B,

Chattahoochee Run Subdivision, Unit 1-C, as per plat recorded in Plat

Book 70, Pages 142 & 143, Gwinnett County records, which said plat

is incorporated herein and made a part hereof by reference. 

The referenced plat will be referred to herein as the “1995 Plat.” Barron constructed

a house on Lot 85 and occupied the home in 1997. 

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In 2002, Barron decided to purchase most of the vacant lot adjoining the back

of his property so that he could build a pool; the lot is known as Lot 94 and is located

on Waterton Lane. Barron admits that to execute the property transfer, the

owner/developer of Lot 94 redefined or “re-parceled” Lot 85 and the portion of Lot

94 that Barron sought to purchase by merging the sought-after portion of Lot 94

(hereinafter “Lot 94”) with Lot 85 and issuing Barron a quitclaim deed to the

redefined Lot 85. Thus, on April 26, 2002, John Wieland Homes issued to Barron,

who paid cash in exchange, a quitclaim deed that described the property as Lot 85 as

shown on a different plat:

All that tract or parcel of land lying and being in Unit 1-C,

Chattahoochee Run subdivision, Land Lot 239 of the 7th District,

Gwinnett County, Georgia, and being Lot 85 as per Plat Book 91, Page

43, Gwinnett County, Georgia, records, which recorded plat is

incorporated herein by reference. 

The referenced plat, the “2001 Plat,” shows the now enlarged Lot 85. After the

purchase, Barron took down a fence that separated the two lots, rebuilt the fence

around the now-combined parcel, and eventually constructed a swimming pool on the

newly acquired property. 

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In May 2004, Barron again sought to refinance hisresidential purchase money

debt, which was then held by Washington Mutual Bank, FA, (WaMu), and he

eventually executed a security deed in that regard. During the relevant negotiations,

Barron requested and received WaMu’s assurance that only the original property

would be used as security for the refinanced debt. The legal description of the

property given in the relevant May 5, 2004 security deed identifies the correct

property address and tax parcel number, and it refers to the 1995 Plat, not the 2001

Plat:

All that tract or parcel of land lying and being in land lot 239 of the 7th

District of Gwinnett County, Georgia, being Lot 85, Block B,

Chattahoochee Run Subdivision, Unit 1-C, as per plat recorded in Plat

Book 70, pages 142 & 143, Gwinnett County records, which said plat

is incorporated herein and made a part hereof as reference. 

The 1995 Plat, of course, shows the original Lot 85 that Barron purchased in 1996.

Other evidence shows that unlike Lot 85, Lot 94 was not originally a part of “Block

B” of the development but rather, “Block E.” Thus, Barron argues, the reference to

Block B in the May 2004 security deed lendsfurther support to his argument that that

deed referred only to the original Lot 85. In connection with the refinancing, Barron

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signed a promissory note for $269,520. On April 3, 2007, WaMu assigned the debt

and related documents to Wells Fargo Bank, NA. 

By 2011, Barron was “deeply in debt” and in default on the note to Wells

Fargo. On February 4, 2011, apparently on the eve of a foreclosure by Wells Fargo,

Barron filed a voluntary petition for bankruptcy under Chapter 7 of the Bankruptcy

Code. On Schedule A of his Bankruptcy petition, where he was required to “list all

real property in which the debtor has any legal, equitable, or future interest,” Barron

declared under penalty of purgery that he owned a single parcel of real property; he

identified this property as “1610 Chattahoochee Run Drive,” valued the property at

$250,000, and stated that the “amount of the secured claim” was $270,000. On

Schedule D, where he was required to list “all entities holding claims secured by

property of the debtor,” Barron declared that Wells Fargo held a secured claim

against him, and he indicated that the secured property was valued at $250,000, that

the amount of the claim was $260,000, and that the unsecured portion of the claim

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1 These figures are shown on an official form Schedule D, and the value for the

unsecured portion of the claim is shown in a column entitled “UNSECURED

PORTION, IF ANY.” The Advisory Committee Notes for the official form explain

that this column shows “the amount of any unsecured portion of the claim,” i.e.,

“amounts that exceed the value of the collateral.” Fed. R. Bankr. P. OFFICIAL Form

B 6, “1991 Enactment” and “2006 Amendment.” (Emphasis supplied).

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was $10,000. On other schedules, Barron declared over $2.6 million of unsecured

debts. Also, Barron did not list in the bankruptcy schedules that he had a claim

against Wells Fargo or WaMu. On May 19, 2011, Barron was discharged in

bankruptcy, which included being absolved of all of the unsecured debt. Wells Fargo,

however, retained a right to proceed against the secured property after Barron’s

discharge. 

On January 20, 2012, an employee of a title agency filed in the Gwinnett

County property records an “affidavit of scrivener’s error” in which the employee

averred that “someone” at the title agency caused the May 5, 2004 security deed to

be filed with an incorrect legal description in that it referenced the 1995 Plat instead

of the 2001 Plat. Within three weeks, Barron, too, filed a scrivener’s error affidavit

in which he averred that he had specifically negotiated with WaMu to exclude from

the secured property the portion of his property that he purchased in 2002 and that,

accordingly, the legal description in the May 5, 2004 security deed accurately

reflected the intent of the parties to that document. 

On August 20, 2012, Wells Fargo filed the present suit for an equitable

reformation of the 2004 security deed, arguing that the deed’s failure to reference the

2001 Plat was a mutual mistake between the parties. Wells Fargo sought to reformthe

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deed so that it could foreclose on the entire property located at 1610 Chattahoochee

Run Drive. Barron answered and counterclaimed to quiet title, for damages for

slander of title and intentional interference with property rights, and for declaratory

relief. The court granted summary judgment in favor of Wells Fargo on its claims and

Barron’s counterclaims. The court held that Barron was judicially estopped from

claiming ownership of the portion of Lot 94 that he purchased in 2002 free and clear

of Wells Fargo’s claim of a security interest. The trial court held that Barron failed

to disclose to the bankruptcy court the existence of the allegedly unencumbered

portion of his property, that he admitted that he considered the property to be “one

exempt parcel for the purposes of the bankruptcy,” and that he is therefore barred

from asserting that he owns Lot 94 free and clear of any security interest. 

1. Barron contends the trial court erred by concluding that he was judicially

estopped. We disagree.

The common law equitable doctrine of judicial estoppel provides that a party

may not assume a position in a legal proceeding, succeed by maintaining that

position, then assume a contrary position “‘especially if it be to the prejudice of the

party who has acquiesced in the position formerly taken by him.’” Roberts v. State,

278 Ga. 610, 612 (604 SE2d 781) (2004), quoting New Hampshire v. Maine, 532 U.

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S. 742, 749 (II) (121 SCt 1808, 149 LE2d 968) (2001) (citation omitted). “It is most

commonly invoked to prevent bankruptcy debtors from concealing a possible cause

of action, asserting the claimfollowing the discharge of the bankruptcy and excluding

resources from the bankruptcy estate that might have otherwise satisfied creditors.”

Period Homes v. Wallick, 275 Ga. 486, 488 (2) (569 SE2d 502) (2002) (citation

omitted). Judicial estoppel “is invoked by a court at its discretion, and intended to

prevent abuse of the judicial process. The circumstances under which it is appropriate

are not reduced to any general formula or rule.” Id. (citation omitted). Georgia courts

have followed the United States Supreme Court, however, in considering “three

factors pertinent to the decision whether to apply the doctrine in a particular case”:

(1) the party’s later position must be “clearly inconsistent” with its

earlier position; (2) the party must have succeeded in persuading a court

to accept the party’s earlier position; . . . absent success in a prior

proceeding, a party’s later inconsistent position introduces no risk of

inconsistent court determinations, and thus poses little threat to judicial

integrity; and (3) whether the party seeking to assert an inconsistent

position would derive an unfair advantage or impose an unfair detriment

on the opposing party if not estopped.

IBF Participating Income Fund v. Dillard-Winecoff, LLC, 275 Ga. 765, 766-767 (573

SE2d 58) (2002) (citation and punctuation omitted). We review a lower court’s

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application of judicial estoppel for abuse of discretion. Klardie v. Klardie, 287 Ga.

499, 502 (2) (697 SE2d 207) (2010); Pew v. One Buckhead Loop Condo. Assn., 305

Ga. App. 456, 460 (1) (b) (700 SE2d 831) (2010).

(a) Clear Inconsistency. Barron claims his assertion that he has title to Lot 94

free and clear of Wells Fargo’s security interest is not inconsistent with his

bankruptcy court declarations because he in fact listed his interest in Lot 94 on

Schedules A and D when he “listed $10,000 of the Property’s value as being

unsecured.” Barron continues: “Mr. Barron listed the $10,000 figure to identify [Lot

94]. Wells Fargo did not contest Barron’s claim that $10,000 of the property’s value

was unsecured.” (Emphasis supplied). This argument has no merit. The only place

that Barron wrote the figure “$10,000” on either Schedule A or D was on Schedule

D, where Barron declared that Wells Fargo had a secured claim against him and that

the “unsecured portion” was $10,000. The official bankruptcy form itself, especially

when read in light of the bankruptcy form advisory committee notes, shows that this

column required Barron to declare the unsecured portion of Wells Fargo’s claim, not

the portion of Barron’s property that was unsecured. See supra, n. 1. Barron offers no

citation of authority for his interpretation of the official Schedule D form, and it

defies the plain reading of the form. We conclude that the trial court acted within its

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discretion by holding that Barron did not declare Lot 94 as an unsecured parcel of

property in his bankruptcy filing.

Barron also averred that he “discussed” Lot 94 with the bankruptcy trustee and

told the trustee “what he was going to do.” But Barron did not testify that he told the

trustee that Lot 94 was unsecured; that Barron would not be listing Lot 94 as an item

of real property, as required, on Schedule A of his bankruptcy filings; or that he

would be placing a value in a column on Schedule D that is meant to contain the

portion of the creditor’s claim that is unsecured while harboring the secret intent to

convey a different meaning. Moreover, Barron admitted under oath in this case that

he considered Lot 85 and Lot 94 “to be one exempt parcel for the purposes of the

bankruptcy.” Again, the trial court did not abuse its discretion in concluding that

Barron failed to disclose his claim that he owned Lot 94 free and clear of any security

interest.

(b) Successin Bankruptcy Court. The facts also show that Barron successfully

convinced the bankruptcy court that he did not have an unsecured piece of real estate.

The bankruptcy court discharged Barron based on “a report of no distribution,”

“meaning that he had located no nonexempt assets that could be liquidated for the

benefit of creditors.” In re Sullivan, 2015 WL 780261 (Bankr. E.D. Cal. 2015); In re

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Kran, 760 F.3d 206, 209 (2dCir. 2014) (where trustee “concludesthat no non-exempt

property exists to be collected on behalf of creditors, he or she files a ‘No Asset’

report or a ‘Report of No Distribution’”).

(c) Unfair Advantage. Finally, the trial court was authorized to conclude that

Barron would derive an unfair advantage if not estopped in that he would have failed

to disclose an asset that might have been available to creditors if he had declared it

in his bankruptcy filings. See Pappacoda v. Palmetto Health, 2014 WL 4417559

(D.S.C. 2014) (after trustee issued report of no distribution,debtorjudicially estopped

from asserting claim that she failed to disclose in bankruptcy proceedings).

We conclude that the trial court did not abuse its discretion in applying judicial

estoppel to bar Barron from taking advantage of the possibility that he continues to

own Lot 94 following his discharge in bankruptcy. See, e.g., Battle v. Liberty Mut.

Fire Ins. Co., 276 Ga. App. 434, 436 (623 SE2d 541) (2005) (homeowner judicially

estopped from recovering insurance proceedsfor fire damage to his home because he

failed to declare the house as an asset in his earlier successful bankruptcy; there is no

requirement “that a party raising the defense of judicial estoppel must show that it

was directly affected by its opposing party’s prior inconsistent successful position”).

See generally Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir. 2006) (“All six

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[federal] appellate courts that have considered this question [as of 2006] hold that a

debtor in bankruptcy who denies owning an asset, including a chose in action or other

legal claim, cannot realize on that concealed asset after the bankruptcy ends.”)

(citations omitted).

2. Barron makes four additional arguments as to how the trial court erred in

granting summary judgment on Wells Fargo’s equitable claim to reform the deed

based onmutual mistake and his counterclaims, even if judicial estoppel is applicable. 

(a) Barron contends Wells Fargo is not entitled to summary judgment because

it failed to present evidence to show that the parties made a mutual mistake on the

April 26, 2002 security deed. But based on judicial estoppel, the trial court held that

Barron was “barred from asserting that he did not intend to encumber the entire

Property.” Because we have affirmed the trial court’s ruling on judicial estoppel,

Barron is barred from asserting any facts to contradict the trial court’s holding.

Because it has now been established that Barron intended to encumber the entire

property, which Wells Fargo also asserts, it is now undisputed that the April 26, 2002

security deed encumbered the combined Lot 85 and 94. Barron’s argument therefore

fails.

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(b) Barron contends the trial court erred by granting summary judgment

because Wells Fargo failed to produce a Rule 30 (b) (6) witness prior to the hearing

on the motion for summary judgment. Barron contends that he was therefore

“deprived [of] the opportunity to depose Wells Fargo on any evidence it possessed

relating to mutual mistake and its position on Mr. Barron’s contention that there has

been no mutual mistake.” The application of judicial estoppel — which has

established that Barron intended to encumber his entire property — defeats Baron’s

argument. 

In general, “this Court does not condone the grant of summary judgment while

a motion to compel discovery is pending, unless it can be determined that the

disallowed discovery would add nothing of substance to the party’s claim.” 915

Indian Trail v. State Bank & Trust Co., 328 Ga. App. 524, 535 (3) (759 SE2d 654)

(2014) (citation and punctuation omitted; emphasis in original). Here, Barron is

barred by judicial estoppel from contradicting that the parties intended to encumber

the entire property at issue in this case, the sole issue raised by Wells Fargo’s

complaint. Thus, a deposition of Wells Fargo can add nothing of substance to the

claim or any defenses thereto. We find no error.

(c) Barron contends that Wells Fargo’s complaint was untimely. 

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“An action to reform a written document may be brought within seven years

from the time the cause of action accrues.” Haffner v. Davis, 290 Ga. 753, 756 (3)

(725 SE2d 286) (2012) (citation omitted). “As a general rule, the statute of limitation

does not commence to run against an equitable action for reformation of a written

instrument based on mutual mistake or fraud until the mistake or fraud has been, or

by the exercise of reasonable diligence should have been, discovered.” Id. (citation

and punctuation omitted). Here, the fact that Barron intended the May 5, 2004

security deed to refer to his entire property was not known until he was discharged

in bankruptcy on May 19, 2011, based on his representation to the bankruptcy court

that he only had one piece of real property and that his entire property was pledged

as collateral. Moreover, “[t]here is an exception that permits the grant of [equitable]

relief [in the formof contract reformation] even in cases of negligence when the other

party has not been prejudiced.” Haffner, 290 Ga. at 756 (3). Here, Barron cannot be

prejudiced by the contract reformation because he is judicially estopped from

asserting an unencumbered interest in the property. Thus Wells Fargo’s complaint

was timely.

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(d) Barron contends that the trial court failed to consider his submission of

materialfacts asto which there exists a genuine issue. But the trial court’s application

of judicial estoppel controls allmaterial issues of factregardingWells Fargo’s claims.

3. Barron has not argued or cited authority in support of his counterclaims and,

accordingly, has abandoned any claims of error in that regard. See Court of Appeal

Rule 25 (c) (2). Moreover, all of Barron’s counterclaims are dependent on the same

issue resolved by way of judicial estoppel. For all of the above reasons, the trial court

did not err by granting summary judgment in favor of Wells Fargo on its claims and

on Barron’s counterclaims.

4. Barron’s assertion in his reply brief that his original counsel was ineffective

is not grounds for reversal. “[T]he constitutional right to effective assistance of

counsel does not extend to participantsin a civil dispute.” Mathes v. Mathes, 267 Ga.

845 (483 SE2d 573) (1997) (citation omitted). Moreover, this Court will not consider

arguments raised for the first time in a reply brief. Vann v. Finley, 313 Ga. App. 153,

154, n. 2 (721 SE2d 156) (2011).

Judgment affirmed. Barnes, P. J., and Boggs, J., concur.

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