REL: 11/07/2014

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the opinion is printed in Southern Reporter.

SUPREME COURT OF ALABAMA

OCTOBER TERM, 2014-2015

____________________

1130342

____________________

Ex parte Jackson Hospital & Clinic, Inc., et al.

PETITION FOR WRIT OF MANDAMUS

(In re: Joanne Anderson

v.

Jackson Hospital & Clinic, Inc., et al)

____________________

1130357

____________________

Ex parte Joanne Anderson

PETITION FOR WRIT OF MANDAMUS

(In re: Joanne Anderson
v.

Jackson Hospital & Clinic, Inc., et al)

(Montgomery Circuit Court, CV-12-1044)

STUART, Justice.

Joanne Anderson sued Jackson Hospital and Clinic, Inc.,

Dr. Stephen K. Kwan, and Dr. Kwan's practice group, Capital

Cardio-Thoracic, P.C. (hereinafter referred to collectively as

"the Jackson Hospital defendants"), in the Montgomery Circuit

Court, asserting medical-malpractice claims against them.

Thereafter, the trial court granted a motion to substitute

bankruptcy trustee Daniel G. Hamm for Anderson as the real

party in interest pursuant to Rule 17, Ala. R. Civ. P.,

because Anderson had filed a petition for Chapter 7 bankruptcy

pursuant to 11 U.S.C. § 701 et seq. after her medicalmalpractice claim had accrued. The Jackson Hospital

defendants subsequently petitioned this Court for permission

to file an interlocutory appeal pursuant to Rule 5, Ala. R.

App. P., arguing that Hamm's attempt to be substituted as the

real party in interest was untimely under Rule 17; Anderson

filed a separate Rule 5 petition for permission to appeal,

2
1130342, 1130357

challenging the trial court's decision to remove her as the

plaintiff in this case. We granted both petitions; however,

as explained infra, we now treat the parties' petitions for

permissive appeals as petitions for writs of mandamus, and we

deny those petitions.

I.

On October 5, 2010, Anderson presented herself at the

Jackson Hospital emergency room complaining of chest pain. 

Anderson had previously been diagnosed with coronary heart

disease, and it was ultimately determined that she now needed

coronary-artery-bypass surgery; on October 8, 2010, Dr. Kwan

performed the procedure. Anderson thereafter had circulation

issues in her feet; however, she was discharged from the

hospital on October 25, 2010. Dr. Kwan conducted follow-up

examinations with Anderson on November 2, 2010, and November

23, 2010, and on those visits she complained of continuing

pain and circulation issues with her feet. During those

examinations, Dr. Kwan determined that parts of Anderson's

feet, including at least some toes, would likely have to be

amputated; however, a final decision on the matter was delayed

3
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because the swelling and blistering on Anderson's feet made it

difficult to fully evaluate them. 

On November 24, 2010, Anderson was again admitted to

Jackson Hospital. On November 27, 2010, Dr. Kwan examined her

again. He noted at that time that circulation in her legs was

fine above the ankles, but that she had developed gangrene and

that parts of her feet were dead with no circulation at all.

After waiting for her overall condition to improve –– she was

also experiencing kidney and respiratory failure at this time

–– Dr. Kwan performed surgery on December 8, 2010, to amputate

parts of Anderson's feet. During the course of the surgery,

he ultimately determined that the feet were no longer viable

and he accordingly performed bilateral below-the-knee

amputations. 

For all that appears, Anderson thereafter recovered to

some extent and was discharged from Jackson Hospital. On

November 8, 2011, Anderson filed a petition for Chapter 7

bankruptcy in the United States Bankruptcy Court for the

Middle District of Alabama. As part of that petition,

Anderson completed schedules detailing her debts and her

assets. Those schedules indicated that she had approximately

4
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$28,000 of unsecured debt, consisting mostly of medical and

consumer debt, and that she had no significant assets. 

Notably, she did not include among her assets any potential

cause of action against the Jackson Hospital defendants, even

though she was required by bankruptcy law to do so. See,

e.g., Transouth Fin. Corp. v. Murry, 311 B.R. 99, 102 (M.D.

Ala. 2004) ("One who files bankruptcy must disclose all of his

assets, including causes of action, lawsuits, or potential

lawsuits."). On March 1, 2012, the bankruptcy court granted

Anderson a complete discharge of her debts, presumably putting

an end to those bankruptcy proceedings.

On October 9, 2012, Anderson initiated the instant

medical-malpractice action against the Jackson Hospital

defendants. On approximately May 2, 2013, Anderson filed

responses to interrogatories served upon her by the Jackson

Hospital defendants in which she revealed that she had

recently filed for bankruptcy. The Jackson Hospital

defendants then obtained the records from Anderson's

bankruptcy proceedings and, upon discovering that Anderson had

not disclosed a potential cause of action against them in the

list of assets filed with the bankruptcy court, prepared a

5
1130342, 1130357

motion asking the trial court to enter a summary judgment in

their favor on judicial-estoppel grounds. See, e.g., Luna v.

Dominion Bank of Middle Tennessee, Inc., 631 So. 2d 917, 919

(Ala. 1993) ("The doctrine of judicial estoppel applies, where

a debtor in bankruptcy proceedings fails to disclose any claim

that may be presented in a nonbankruptcy contest, to estop the

debtor from presenting the claim.").

On Friday, May 24, 2013, one of the attorneys for the

Jackson Hospital defendants notified one of Anderson's

attorneys of the substance of the summary-judgment motion he

had prepared to file. In an affidavit contained in the

record, the attorney for the Jackson Hospital defendants

states that Anderson's attorney asked him not to file the

motion until after the impending Memorial Day weekend and

that, as a courtesy, he waited until Tuesday, May 28, 2013, to

file the motion. Prior to the filing on the afternoon of May

28 of an amended answer and the summary-judgment motion

asserting judicial estoppel as a ground, however, Anderson

filed a motion in the bankruptcy court seeking to reopen her

bankruptcy case, along with amended schedules listing as an

asset her cause of action against the Jackson Hospital

6
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defendants. Two days later, on May 30, 2013, Hamm filed a

similar motion seeking to reopen Anderson's bankruptcy case

and to be reappointed trustee, and he thereafter moved the

bankruptcy court to authorize him to employ one of the

attorneys who had been retained by Anderson in her action

against the Jackson Hospital defendants as his attorney in

that action as well. The bankruptcy court eventually approved

all of those motions, reopening Anderson's bankruptcy case on

June 14, 2013, and, on July 8, 2013, authorizing Hamm to use

Anderson's attorney in the instant action.

After first learning of Anderson's medical-malpractice

claim, Hamm also, on May 31, 2013, filed a motion with the

trial court in this action, notifying it that he had just

learned of Anderson's medical-malpractice claim and that he

was seeking to reopen Anderson's bankruptcy case and to be

reappointed trustee in the case. Hamm further stated in that

motion that he was in current "discussions with an attorney to

represent ... the plaintiff/trustee's interest" and he

requested that the case be stayed until a decision was made as

to representation. It is not clear whether the trial court

7
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ever explicitly ruled on Hamm's request for a stay, but the

discovery process appears to have continued during this time.

On November 4, 2013, Hamm filed a motion to formally

intervene in this action, asserting that he was the real party

in interest under Rule 17. The Jackson Hospital defendants

thereafter filed an objection, arguing that Rule 17 allows a

real party in interest to be substituted for the original

party only if the motion seeking to make the substitution is

made within "a reasonable time" after the issue is raised,

and, they argued, Hamm's more than five-month delay was not a

"reasonable time." On November 14, 2013, the trial court

conducted a hearing at which it heard arguments on the issues

raised by the parties in connection with the Jackson Hospital

defendants' summary-judgment motion and Hamm's motion to

intervene. On December 9, 2013, the trial court entered an

order resolving those issues, stating as follows:

"[W]ith regard to defendants' motion for summary

judgment, the court notes that such motion is based

upon the doctrine of judicial estoppel (contending

that the plaintiff failed to disclose her cause of

action to the bankruptcy court during her Chapter 7

proceedings) and on the contention that plaintiff

Joanne Anderson is not the real party in interest.

... [T]he plaintiff has now amended the complaint

and [Hamm,] the trustee in bankruptcy has been

permitted to intervene as the real party in

8
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interest. Pursuant to Hamm v. Norfolk Southern

Railway Co., 52 So. 3d 484 (Ala. 2010), the

defendants' motion for summary judgment is denied in

part, such that [Hamm] shall be permitted to pursue

Joanne Anderson's claims against the defendants for

a recovery up to the amount necessary to pay the

claims of Anderson's creditors and expenses

associated with the related bankruptcy proceedings. 

The motion for summary judgment is granted in all

other respects, and summary judgment is hereby

entered in favor of the defendants and against

Plaintiff Joanne Anderson as to all claims brought

by her."

However, the trial court recognized that there was substantial

ground for difference of opinion regarding its conclusions of

law, and it accordingly certified its order for an

interlocutory appeal pursuant to Rule 5. 

On December 23, 2013, the Jackson Hospital defendants

petitioned this Court for permission to appeal immediately the

trial court's order insofar it held that Hamm's motion to

intervene was timely under Rule 17 (case no. 1130342), and, on

December 24, 2013, Anderson petitioned this Court for

permission to appeal immediately the trial court's order

insofar as it held that she –– as opposed to Hamm acting on

behalf of her creditors –– was judicially estopped from

proceeding with her medical-malpractice claim (case no.

1130357). On May 27, 2014, this Court granted both petitions

9
1130342, 1130357

and ordered briefing. This Court has now elected to treat

both petitions for permission to appeal as petitions for a

writ of mandamus. The Jackson Hospital defendants and Hamm 1

have now filed briefs in case no. 1130342, and the Jackson

Hospital defendants and Anderson have filed briefs in case no.

1130357.

Although this Court granted both the Jackson Hospital 1

defendants' petition and Anderson's petition to file

permissive appeals pursuant to Rule 5, upon further

examination it is apparent that a petition for a writ of

mandamus is the appropriate means by which to seek review of

the issues they raise –– whether Hamm timely moved to

substitute himself as the real party in interest and whether

Anderson should be allowed to proceed as the real party in

interest regardless of her bankruptcy filing and initial

failure to disclose her claim in those bankruptcy proceedings. 

See Ex parte U.S. Bank Nat'l Ass'n, [Ms. 1120904, Feb. 7,

2014] ___ So. 3d ___, ___ (Ala. 2014) (listing issues this

Court has held to be appropriate for mandamus review); Ex

parte Tyson Foods, Inc., 146 So. 3d 1041 (Ala. 2013)

(reviewing, on petition for writ of mandamus, the trial

court's ruling on a motion seeking to add a real party in

interest); and Ex parte Chemical Lime of Alabama, Inc., 916

So. 2d 594, 596-97 (Ala. 2005) (considering, on petition for

writ of mandamus, whether plaintiffs had timely moved to

substitute defendant for a fictitiously named defendant). 

Accordingly, we now exercise our discretion to treat the

parties' permissive appeals as petitions for the writ of

mandamus. See, e.g., Ex parte Watson, 37 So. 3d 752, 757

(Ala. 2009) ("This Court ordered that the defendants' petition

for permission to appeal be treated as a petition for a writ

of mandamus ...."), and Ex parte G & G Steel, Inc., 601 So. 2d

990, 991 (Ala. 1992) ("This Court has elected to treat the

Rule 5 petition for permission to appeal as a petition for a

writ of mandamus.").

10
1130342, 1130357

II.

In Hamm v. Norfolk Southern Ry. Co., 52 So. 3d 484, 493

n. 3 (Ala. 2010), this Court indicated that it reviews a trial

court's decision regarding what constitutes "a reasonable

time" for purposes of Rule 17 to determine whether the court

exceeded its discretion:

"[T]he question whether a 'reasonable time' would

have passed and whether the action should have been

dismissed at that juncture for a failure of

substitution are questions as to which a trial court

is to exercise discretion based on its assessment of

the type of case and its facts and the procedural

history of the case. [6A Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane,] Federal Practice

& Procedure at § 1555 [(2d ed. 1990)] ('What

constitutes a reasonable time is a matter of

judicial discretion and will depend upon the facts

of each case.')."

We further quoted in Hamm the United States Court of Appeals

for the Eleventh Circuit:

"'"[W]e review the district court's application of

judicial estoppel for abuse of discretion." Burnes

[v. Pemco Aeroplex, Inc.], 291 F.3d [1282,] 1284

[(11th Cir. 2002)]. "The abuse of discretion

standard includes review to determine that the

discretion was not guided by erroneous legal

conclusions." Talavera v. School Bd. of Palm Beach

County, 129 F.3d 1214, 1216 (11th Cir. 1997).'" 

52 So. 3d at 489 (quoting Parker v. Wendy's Int'l, Inc., 365

F.3d 1268, 1271 (11th Cir. 2004)). See also Hughes v.

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Mitchell Co., 49 So. 3d 192, 203 (Ala. 2010) (stating that

"there is no general formulation of principle dictating when

the doctrine of judicial estoppel applies [and] such a

decision is left to the court's discretion"). Thus, we review

the trial court's decision on both the Rule 17 and judicialestoppel issues to determine whether it exceeded its

discretion.

2

In Lumpkin v. City of Gulf Shores, 964 So. 2d 1233 (Ala. 2

Civ. App. 2006), the Court of Civil Appeals affirmed a summary

judgment entered in favor of the appellee, in part because

that court concluded that the appellants had failed to timely

substitute the real party in interest as a plaintiff. It

appears in that case that the trial court had not articulated

its reasons for entering the summary judgment, and it is not

clear that the issue whether the plaintiffs had been given the

Rule 17(a)-mandated "reasonable time" to make substitution of

the proper real party in interest had been considered by the

trial court or even raised by the parties before the summary

judgment was entered. Accordingly, the Court of Civil Appeals

appropriately considered that issue de novo. See Lumpkin, 964

So. 2d at 1236 (stating that the appellants prefaced their

argument that they should still be allowed to substitute the

real party in interest by stating: "'[I]f the trial court's

rationale for dismissing [their] appeal was that [the

Association] instead of the [appellants] was the real party in

interest, then [the Association] should be joined or

substituted to prevent what is at present a gross miscarriage

of justice.'" (quoting the appellants' brief) (emphasis

added)). In the instant case, however, it is apparent from

the trial court's order ruling on the Jackson Hospital

defendants' summary-judgment motion and Hamm's motion to

intervene that the trial court had affirmatively considered

the timeliness issue and found that Hamm had moved within a

reasonable time to be named the real party in interest. 

Accordingly, for the reasons explained in Hamm, 52 So. 3d at

12
1130342, 1130357

III.

We first consider the Jackson Hospital defendants'

arguments in case no. 1130342 concerning the timeliness of

Hamm's intervention. The issue presented in this case was

aptly stated by the trial court as being "whether [Hamm's]

motion for leave to intervene and to file [an] amended

complaint was timely and properly filed pursuant to Rules 17

and/or 24 of the Alabama Rules of Civil Procedure and the

applicable statute of limitations." Rule 17(a) provides, in

pertinent part:

"No action shall be dismissed on the ground that it

is not prosecuted in the name of the real party in

interest until a reasonable time has been allowed

after objection for ratification of commencement of

the action by, or joinder or substitution of, the

real party in interest; and such ratification,

joinder, or substitution shall have the same effect

as if the action had been commenced in the name of

the real party in interest."

In this case, the first "objection" to Anderson's status as

the real party in interest to assert the medical-malpractice

claim against the Jackson Hospital defendants came on May 28,

2013, when the Jackson Hospital defendants filed an amended

answer succinctly asserting that "[Anderson] is not the real

489 n. 3, we review that decision for an excess of discretion.

13
1130342, 1130357

party in interest in this case." It is thereafter undisputed

that Hamm did not formally move to take Anderson's place as

the real party in interest until November 5, 2013 –– over five

months after the initial objection was made. It is apparent

that Hamm became aware of the objection at approximately the

same time the objection was made because, on May 30, 2013, he

moved the bankruptcy court to reopen Anderson's bankruptcy

case; accordingly, the relevant question for the trial court

was whether that five-month delay was reasonable. 

The Jackson Hospital defendants essentially argue that a

five-month delay is per se unreasonable and, in support of

that argument, cite Lumpkin v. City of Gulf Shores, 964 So. 2d

1233 (Ala. Civ. App. 2006), and Wilson v. Tucker, No. 10-CV0714-CVE-FHM (N.D. Okla. Jan. 5, 2011) (not reported in F.

Supp. 2d). In Lumpkin, the Court of Civil Appeals indicated 3

that a summary judgment was due to be affirmed because, in the

The United States District Court in Wilson considered the 3

meaning of "a reasonable time" in Rule 17(a), Fed. R. Civ. P.,

which is substantially similar to Rule 17(a), Ala. R. Civ. P. 

We have stated that "[b]ecause the Alabama Rules of Civil

Procedure are patterned after the Federal Rules of Civil

Procedure, federal cases construing the Federal Rules of Civil

Procedure are persuasive authority in construing the Alabama

Rules of Civil Procedure." Ex parte Alabama State Pers. Bd.,

54 So. 3d 886, 893 (Ala. 2010). 

14
1130342, 1130357

two-month period after the appellee had articulated a realparty-in-interest challenge, the appellants "did nothing" to

remedy the issue by moving either to substitute or to join the

identified real party in interest. 964 So. 2d at 1236. 

Similarly, in Wilson, the United States District Court for the

Northern District of Oklahoma granted the defendant's motion

to dismiss after neither the plaintiff nor the trustee

appointed in the plaintiff's separate bankruptcy case "made

any effort to substitute the trustee as the real party in

interest" in the two-month period after the defendant had

asserted a real-party-in-interest challenge. The Jackson

Hospital defendants argue that the principle to be gleaned

from these cases is that, if a two-month delay is

unreasonable, then a five-month delay surely is unreasonable. 

We disagree. After reviewing these and other relevant

cases, we think the principle that is most apparent is that

trial courts are best equipped to decide what constitutes "a

reasonable time" under Rule 17(a) in any particular case based

on their familiarity with the facts and specific history of

the case, and, accordingly, an appellate court should

generally defer to the trial court's exercise of that

15
1130342, 1130357

discretion. Given the facts of a particular case, a trial

court may decide that two months is not a reasonable time, or

it may decide that an even shorter period is not reasonable,

or that a longer period is reasonable. For example, in

Killmeyer v. Oglebay Norton Co., 817 F. Supp. 2d 681 (W.D. Pa.

2011), the United States District Court for the Western

District of Pennsylvania considered the same general issue

raised in this case –– what was a reasonable time for a

bankruptcy trustee to move to substitute himself as the real

party in interest in an action brought by a Chapter 7 debtor. 

After noting that what constitutes a reasonable time is a

matter of judicial discretion dependant on the facts of the

case, the federal district court concluded that the trustee's

motion to substitute, made approximately four months after the

defendants had asserted a formal real-party-in-interest

challenge and five months after the trustee first learned of

the action, was nevertheless timely. 817 F. Supp. 2d at 690.

The federal district court further noted that, as in the

instant case, part of any delay was attributable to the fact

that the trustee had not known of the action at the time it

was filed and, upon learning of the action, the trustee

16
1130342, 1130357

subsequently had to seek the bankruptcy court's approval to

have counsel appointed to prosecute the claim on the trustee's

behalf. Id. 4

Thus, the Killmeyer court concluded that a trustee's

motion to substitute himself as plaintiff for a Chapter 7

debtor was timely even though that motion was filed

approximately five months after the trustee first learned that

the Chapter 7 debtor had initiated the action. The trial

court in this action made essentially the same conclusion, and

we cannot say that it exceeded its discretion by doing so. 

Accordingly, the action should proceed as if it had been

commenced in the name of Hamm, the real party in interest. 

Rule 17(a). See also Board of Water & Sewer Comm'rs of City

of Mobile v. McDonald, 56 Ala. App. 426, 430-31, 322 So. 2d

717, 721 (Ala. Civ. App. 1975) (stating that, when Rule 17(a)

is applied, it is unnecessary to resort to Rule 15(c), Ala. R.

We further note that Hamm notified the trial court on May 4

31, 2013 –– just days after learning that Anderson had

initiated an action against the Jackson Hospital defendants ––

that he was seeking counsel to represent "the

plaintiff/trustee's interest" in that case moving forward. 

Thus, Hamm essentially notified the trial court at that time

that he ratified Anderson's commencement of the action and

would be taking it over.

17
1130342, 1130357

Civ. P., to determine whether an amended pleading relates back

to the date of an original pleading).

IV.

We next consider Anderson's argument in case no. 1130357

that she should be allowed to prosecute this action in her

individual capacity. The trial court stated the issue in that

regard as follows:

"Whether [Anderson] is barred from prosecuting this

action in her individual capacity: (a) based on the

doctrine of judicial estoppel, by virtue of her not

disclosing the presently advanced cause of action

during her Chapter 7 proceedings, and/or (b) based

on her not being the real party in interest."

Anderson essentially argues to this Court that the Jackson

Hospital defendants failed to establish that the doctrine of

judicial estoppel should apply and that the trial court's

ruling unfairly prevents her from petitioning the bankruptcy

court for permission to prosecute the medical-malpractice

action herself as the real party in interest. Neither of

those arguments has merit.

First, our decision in Hamm illustrates that the trial

court's application of the doctrine of judicial estoppel was

proper. In Hamm, the plaintiff filed a bankruptcy petition in 

October 2004; that petition did not disclose any potential

18
1130342, 1130357

causes of action in the list of assets submitted to the

bankruptcy court. 52 So. 3d at 487. Nevertheless, in January

2005, the plaintiff initiated an action against his former

employer, and, in March 2005, he received a complete discharge

of debts and his bankruptcy case was closed. Id. In January

2006, the plaintiff's former employer learned of the

bankruptcy case during a deposition, and it thereafter amended

its answer to assert the affirmative defense of judicial

estoppel and filed a motion for a summary judgment on that

same ground. Id. Thereafter, the plaintiff moved the

bankruptcy court to reopen his bankruptcy estate, and he also

filed amended schedules listing the cause of action against

his former employer as an asset of the bankruptcy estate. 52

So. 3d at 488. Nevertheless, the trial court granted the

employer's summary-judgment motion, and, after the trial court

also denied a postjudgment motion seeking to substitute the

bankruptcy trustee as the real party in interest, the

plaintiff and the trustee filed a joint appeal to this Court. 

Id. 

After holding that the bankruptcy trustee was in fact the

real party in interest, 52 So. 3d at 491-92, this Court

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1130342, 1130357

considered what effect the doctrine of judicial estoppel

should have in the case:

"'In Ex parte First Alabama Bank, [883 So. 2d

1236 (Ala. 2003),] this Court "embrace[d] the

factors set forth in New Hampshire v. Maine[, 532

U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001),]

and join[ed] the mainstream of jurisprudence in

dealing with the doctrine of judicial estoppel."' 

Middleton v. Caterpillar Indus., Inc., 979 So. 2d

53, 60 (Ala. 2007) (quoting Ex parte First Alabama

Bank, 883 So. 2d at 1246). For judicial estoppel to

apply (1) 'a party's later position must be "clearly

inconsistent" with its earlier position'; (2) the

party must have been successful in the prior

proceeding 'so that judicial acceptance of an

inconsistent position in a later proceeding would

create "the perception that either the first or

second court was misled"'; and (3) '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.' 

New Hampshire, 532 U.S. at 750–51 (citations

omitted); see Middleton, 979 So. 2d at 60–61; Ex

parte First Alabama Bank, 883 So. 2d at 1244–45. 

This Court has stated that '[t]he purpose of

judicial estoppel is "'to protect the integrity of

the judicial process' by 'prohibiting parties from

deliberately changing positions according to the

exigencies of the moment.'"' Middleton, 979 So. 2d

at 59 (quoting New Hampshire, 532 U.S. at 749–50;

other citation omitted).

"It is evident that the trial court properly

applied the doctrine of judicial estoppel to [the

plaintiff] when it entered the summary judgment

against him. After he filed the ... action [against

his former employer], [the plaintiff] failed to

amend his bankruptcy schedules to reflect his ...

claim as a potential asset, and thereafter he

received a 'no-assets' discharge in the bankruptcy

20
1130342, 1130357

proceeding. Despite this outcome, [the plaintiff]

continued to prosecute the ... action. Thus, [the

plaintiff] had taken clearly inconsistent positions;

he was successful in his bankruptcy proceeding; and

he potentially could have received the unfair

advantage of a possible $750,000 'windfall' if he

succeeded in his claim against [his former

employer].

"The fact that the trial court properly applied

the doctrine of judicial estoppel to [the

plaintiff], however, does not mean that that

doctrine necessarily is applicable to [the]

bankruptcy trustee. ... The trustee has never

taken inconsistent positions with regard to the ...

claim because he did not know about the claim until

the bankruptcy schedules were amended to reflect the

existence of the claim as a potential asset to the

estate. Therefore, [the trustee] cannot be

judicially estopped from pursuing the claim."

52 So. 3d at 494. Thus, Hamm clearly indicates that the

doctrine of judicial estoppel can operate to bar a party from

pursuing an action if that party previously failed to disclose

the cause of action as an asset during bankruptcy proceedings

that take place after the cause of action arises. 

Anderson nevertheless argues that the doctrine of

judicial estoppel should not apply to her for three reasons.

First, she argues that, unlike the plaintiff in Hamm, she did

not know of the existence of her cause of action until after

her bankruptcy case was closed. Thus, she argues, she has

21
1130342, 1130357

never knowingly asserted inconsistent positions so as to

implicate the doctrine of judicial estoppel. 

However, this Court has indicated that the crucial

inquiry is not whether a plaintiff actually knew of a

potential claim, but whether a reasonable person should have

known about the potential claim. See Hamm, 52 So. 3d at 498

(citing Jinright v. Paulk, 758 So. 2d 553, 559 (Ala. 2000),

for the proposition that "among the questions of fact

essential to a determination of the applicability of the

doctrine of judicial estoppel is 'whether a debtor who is

engaged in bankruptcy proceedings knew or should have known

about claims or causes of action that should be disclosed as

assets'"), and Luna, 631 So. 2d at 919 ("[The plaintiff]

further contends that the doctrine of judicial estoppel should

not be applied to him because, he says, he was unaware of his

claims against [the defendant] until after his bankruptcy

discharge. This argument is also without merit. Certainly,

if the facts ... were as he says they were, then [the

plaintiff], acting as a reasonable person, would have known,

when he filed his bankruptcy proceeding, that he had a claim

against [the defendant]."). In this case, Anderson alleges

22
1130342, 1130357

that the Jackson Hospital defendants' negligence following the

October 2010 heart surgery resulted in the amputation of her

feet in December 2010. Thus, the result of the alleged

negligence was admittedly apparent by December 2010, and, if

the facts are as Anderson has asserted them to be, a

reasonable person should accordingly have been aware by that

time that a possible cause of action against the Jackson

Hospital defendants existed. Moreover, Anderson essentially

agreed with this conclusion in a January 2013 amendment to her

complaint in which she stated that "[p]laintiff's injury and

defendants' substandard care [were] not discovered and could

not have reasonably been discovered prior to December of

2010." "'"Normally, factual assertions in pleadings and

pretrial orders are considered to be judicial admissions

conclusively binding on the party who made them."'" Noland

Health Servs., Inc. v. Wright, 971 So. 2d 681, 685-86 (Ala.

2007) (quoting Jones v. Kassouf & Co., 949 So. 2d 136, 142

(Ala. 2006) (Lyons, J., dissenting), quoting in turn White v.

ARCO/Polymers, Inc., 720 F.2d 1391, 1396 (5th Cir. 1983)). 

Accordingly, we find no merit in Anderson's argument that the

trial court should not have applied the doctrine of judicial

23
1130342, 1130357

estoppel against her because she alleges she was not aware

that she had a possible claim against the Jackson Hospital

defendants at any time during the pendency of her bankruptcy

case.5

We further note that we are not impressed by Anderson's 5

contention that, "[a]fter the cause of action against

appellees became known to [her], she took the extraordinary

measure of reopening her bankruptcy case and amending her

bankruptcy schedules to list the cause of action against

appellees." Anderson's brief in case no. 1130357, p. 21-22.

Anderson does not dispute that she moved to reopen her

bankruptcy case in May 2013 only after being notified that the

Jackson Hospital defendants were preparing to move for a

summary judgment on a judicial-estoppel ground; she

undisputedly took no action to do so on her own initiative in

the seven months following the initiation of her lawsuit. In

Hamm, we warned against the incentives that would be created

if the initial failure to disclose assets in bankruptcy

proceedings was excused by giving effect to subsequent

amendments without consequence:

"'"Allowing [a debtor] to back-up, re-open the

bankruptcy case, and amend his bankruptcy filings,

only after his omission has been challenged by an

adversary, suggests that a debtor should consider

disclosing potential assets only if he is caught

concealing them. This so-called remedy would only

diminish the necessary incentive to provide the

bankruptcy court with a truthful disclosure of the

debtor's assets." Burnes[ v. Pemco Aeroplex, Inc.,

291 F.3d 1282,] 1288 [(11th Cir. 2002)] (citation

omitted). As such, [the debtor's] disclosure upon

re-opening the bankruptcy estate deserves no

favor.'"

52 So. 3d at 495 (quoting Barger v. City of Cartersville, Ga.,

348 F.3d 1289, 1297 (11th Cir. 2003)). 

24
1130342, 1130357

Anderson next argues that the doctrine of judicial

estoppel should not have been applied against her because, she

argues, she will gain no unfair advantage if she is allowed to

pursue her action against the Jackson Hospital defendants in

that the first $28,000 of any judgment awarded would go to

those entities holding her discharged debt. However, she

fails to recognize that she has already had $28,000 of debt

discharged and that the bankruptcy court, though it granted

her motion to reopen her bankruptcy case, denied her motion to

set aside the judgment discharging her debts. In Hamm, we

noted that the unfair-advantage prong of the Ex parte First

Alabama Bank, 883 So. 2d 1236 (Ala. 2003), judicial-estoppel

test was satisfied because the plaintiff "potentially could

have received the unfair advantage of a possible $750,000

'windfall'" if he was successful in prosecuting the claim

omitted from his bankruptcy petition. 52 So. 3d at 494. That

same potential for a windfall was present in this case as

well, and, as we explained in Hamm, it is sufficient to

establish the unfair-advantage prong of the judicial-estoppel

test; accordingly, Anderson's argument on this point is

without merit.

25
1130342, 1130357

Anderson's final argument regarding the doctrine of

judicial estoppel is that the Jackson Hospital defendants

suffer from unclean hands in this matter, which, she says,

should estop them from asserting judicial estoppel. 

Essentially, Anderson argues that the Jackson Hospital

defendants fraudulently concealed mistakes that, she generally

alleges, were made during her coronary surgery and/or her

follow-up care until after her bankruptcy case was completed

and that they accordingly should not be allowed to profit from

their wrongful conduct by invoking the doctrine of judicial

estoppel against her. However, as discussed above, we have

already concluded, based partly upon Anderson's own statements

in her amended pleadings, that the Jackson Hospital

defendants' alleged negligence could reasonably have been

discovered by December 2010. Thus, Anderson cannot attribute

to the Jackson Hospital defendants her failure, in November

2011, to disclose to the bankruptcy court a claim based upon

that alleged negligence.

Moreover, this Court has stated that "'the doctrine of

unclean hands cannot be applied in the context of nebulous

speculation or vague generalities; but rather it finds

26
1130342, 1130357

expression in specific acts of willful misconduct which is

morally reprehensible as to known facts.'" Retail Developers

of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So. 2d

924, 932 (Ala. 2007) (quoting Sterling Oil of Oklahoma, Inc.

v. Pack, 291 Ala. 727, 746, 287 So. 2d 847, 864 (1973)). 

Although Anderson has generally accused the Jackson Hospital

defendants of fraudulently hiding their alleged negligence,

she does not, in her initial brief to this Court, cite any

"specific acts of willful misconduct." After the Jackson

Hospital defendants identified this deficiency, Anderson

attempted to correct it in her reply brief; however, that

attempt comes too late. As the Court of Criminal Appeals

explained in L.J.K. v. State, 942 So. 2d 854, 868-69 (Ala.

Crim. App. 2005):

"'Recitation of allegations without citation to any

legal authority and without adequate recitation of

the facts relied upon has been deemed a waiver of

the arguments listed.' Hamm v. State, 913 So. 2d

460, 486 (Ala. Crim. App. 2002). [The appellant]

cites no legal authority in support of his argument. 

He also fails to provide an adequate recitation of

the facts relied upon in support of his argument;

merely referring to the record without setting forth

the facts in support of an argument is not

sufficient to comply with Rule 28(a)(10), Ala. R.

App. P. Moreover, although [the appellant] cites

Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), in his reply brief, and

27
1130342, 1130357

lists four specific allegations of ineffective

assistance of counsel, because his initial brief

fails to comply with Rule 28(a)(10), and he did not

include those specific allegations in his initial

brief, we consider them to have been raised for the

first time in his reply brief. ... As noted above,

'an appellant may not raise a new issue for the

first time in a reply brief.' Woods v. State, 845

So. 2d [843] at 846 [(Ala. Crim. App. 2002)]. See

also James v. State, 788 So. 2d 185, 192 n. 2 (Ala.

Crim. App. 2000) (noting that an appellant may not

raise for the first time in his reply brief specific

allegations of ineffective assistance of counsel

that were not raised in his initial appellate

brief)."

We agree with the Court of Criminal Appeals' recitation of the

applicability of Rule 28(a)(10), Ala. R. App. P. Anderson has

not established that the trial court exceeded its discretion

in the manner in which it applied the doctrine of judicial

estoppel against her.

Anderson's final argument is that the summary judgment

should be reversed because, she argues, she should be given

the opportunity to ask the bankruptcy court if she, instead of

Hamm, the trustee, can pursue her claim against the Jackson

Hospital defendants. Anderson acknowledges that Hamm is

properly viewed as the real party in interest; however, she

argues that debtors are nevertheless sometimes allowed to

prosecute claims themselves if the trustee abandons the claim

28
1130342, 1130357

or the bankruptcy court authorizes the debtor to prosecute the

claim instead of the trustee. See Hamm, 52 So. 3d at 491. It

is evident by Hamm's actions in this case that he has no

intention of abandoning the action and leaving its prosecution

to Anderson, but Anderson argues that the bankruptcy court

might nevertheless authorize her to pursue the action instead

of Hamm and urges us to reverse the order entered by the trial

court so she can pursue this possibility with the bankruptcy

court.

Although we have no desire to remove this issue from the

bankruptcy court's purview, Anderson's argument simply comes

too late. Anderson could have made her request to the

bankruptcy court at any time before the entry of the judgment

that is the subject of these petitions but failed to do so. 

Moreover, Anderson completely failed to raise this issue with

the trial court, and we cannot hold the trial court in error

for failing to give Anderson time to pursue this avenue with

the bankruptcy court when she never asked the trial court for

that additional time. See Andrews v. Merritt Oil Co., 612 So.

2d 409, 410 (Ala. 1992) ("This Court cannot consider arguments

raised for the first time on appeal; rather, our review is

29
1130342, 1130357

restricted to the evidence and arguments considered by the

trial court."). Anderson's argument is without merit.

V.

Anderson sued the Jackson Hospital defendants in October

2012 alleging that both of her feet were amputated as a result

of Dr. Kwan's negligence. However, because Anderson failed to

disclose this potential cause of action when she filed for

bankruptcy in November 2011, the Jackson Hospital defendants

moved the trial court to enter a summary judgment in their

favor on the ground of judicial estoppel. Thereafter, Hamm,

the bankruptcy trustee, moved to be substituted as the real

party in interest in the action initiated by Anderson based on

well established law holding that causes of action held by a

debtor in bankruptcy become the responsibility of the trustee. 

The trial court subsequently entered an order substituting

Hamm as the plaintiff, and both the Jackson Hospital

defendants and Anderson sought review of that decision in this

Court: The Jackson Hospital defendants argue that Hamm waived

his right to be substituted as the real party in interest and

Anderson argues that she should be allowed to pursue her claim

instead of Hamm. However, as explained above, the parties

30
1130342, 1130357

have failed to establish that the trial court exceeded its

discretion with regard to either decision, and we accordingly

deny the parties' petitions for the writ of mandamus.

1130342 –– PETITION DENIED.

1130357 –– PETITION DENIED.

Bolin, Shaw, Main, Wise, and Bryan, JJ., concur.

Murdock, J., concurs specially.

Moore, C.J., concurs in the result.

Parker, J., recuses himself.

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1130342, 1130357

MURDOCK, Justice (concurring specially).

I concur in the main opinion, but I write separately to

address note 2 of that opinion. In note 2, the main opinion

summarizes the actions of the Court of Civil Appeals in

Lumpkin v. City of Gulf Shores, 964 So. 2d 1233 (Ala. Civ.

App. 2006), as follows:

"[T]he Court of Civil Appeals affirmed a summary

judgment entered in favor of the appellee, in part

because that court concluded that the appellants had

failed to timely substitute the real party in

interest as a plaintiff. It appears in that case

that the trial court had not articulated its reasons

for entering the summary judgment, and it is not

clear that the issue whether the plaintiffs had been

given the Rule 17(a)-mandated 'reasonable time' to

make substitution of the proper real party in

interest had been considered by the trial court or

even raised by the parties before the summary

judgment was entered. Accordingly, the Court of

Civil Appeals appropriately considered that issue

de novo."

___ So. 3d at ___ n. 2. The notion that "the Court of Civil

Appeals appropriately considered [the stated] issue de novo"

would be correct only if it could be ascertained from the

record, including filings made in the trial court and the

trial court's order, that the trial court's summary-judgment

order was not based on that issue and, further, only if the

issue was one that could be invoked sua sponte by the

32
1130342, 1130357

appellate court because it presented an alternative valid

"legal ground" for affirming the trial court's order and, in

addition, could be so invoked without implicating the dueprocess rights of the parties adversely affected by that

invocation. I do not read note 2 as saying anything other

than this.

33