REL: 11/07/2014

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern Reporter . Readers are requested to notify the Reporter of Decisions , Alabama Appellate Courts, 300 Dexter Avenue, Montgomery, Alabama 36104-3741 ((334) 229- 0649), of any typographical or other errors, in order that corrections may be made before the opinion is printed in Southern Reporter
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# SUPRE ME CO URT O F ALA BAMA

OCTOB ER TE RM, 2 014-2 015

_____ _____ _____ _____ 11303 42

_____ _____ _____ _____ Ex pa rte J ackso n Hos pital & Cl inic, Inc. , et al.

PETIT ION F OR WR IT OF MAND AMUS (In r e: Jo anne Ander son

v. Jacks on Ho spita l & C linic , Inc ., et al)

_____ _____ _____ _____ 11303 57

_____ _____ _____ _____ Ex pa rte J oanne Ande rson PETIT ION F OR WR IT OF MAND AMUS (In r e: Jo anne Ander sonv. Jacks on Ho spita l & C linic , Inc ., et al) (Mont gomer y Cir cuit Court , CV- 12-10 44)

STUAR T, Ju stice
. Joann e Ander son sued J a ckson Hospi tal and Clini c, Inc., Dr. Steph en K . Kwan, and Dr. Kwan' s pract ice group , Capit al Cardi o-Tho racic , P.C. (here inaft er refer red to colle ctive ly as "the Jacks on Hospi tal defen dants "), in the Montg omery Circu it Court , asser ting medic al-ma lprac tice claim s again st them.
T h ereaf ter, the trial court grant ed a motio n to subst itute b a n k ruptc y trust ee Danie l G. Hamm for Ander son as the real party in inter est pursu ant to Rule 17, Ala. R. Ci v . P ., becau se Ander son had filed a petit ion for Chapt er 7 bankr uptcy pursu ant to 11 U.S.C . § 701 et seq. after her medic almalpr actic e claim had accru ed. The Jacks on Hospi tal defen dants subs equen tly p etiti oned this Court for permi ssion to file an inter locut ory app e a l pursu ant to Rule 5, Ala. R. App. P., argui ng that Hamm' s attem pt to be subst itute d as the real party in i ntere st wa s unt imely unde r Rul e 17; And erson f i l e d a separ ate Rule 5 petit ion for permi ssion to appea l,

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chall engin g the trial court ' s decis ion to remov e her as the plain tiff in th is ca se. We gr anted both peti tions ; how ever,

as expla ined infra , w e now treat the parti es' petit ions for permi ssive appea ls as petit ions for writs of manda mus, and we deny those peti tions
. I. On Octob er 5, 2010, Ander son pres e n ted herse lf at the Jacks on Hospi tal emerg ency room compl ainin g of chest p a i n. Ander son had previ ously been diagn osed with coron ary h e a rt disea se, and it was ultim ately deter mined that she now neede d

coron ary-a rtery -bypa ss su rgery ; on Octob er 8, 2010 , Dr. Kwan perfo rmed the proce dure. Ander son there after had circu latio n issue s in her feet; howev er, sh e w a s d ischa rged from the hospi tal on Octob er 25, 2010. Dr. K wan condu cted follo w-up exami natio ns wi th An derso n on Novem ber 2 , 201 0, an d Nov ember 23, 2010, and on those visit s she compl ained of conti n u i ng pain an d c i r c u latio n issue s with her feet. Durin g those exami natio ns, Dr. Kwan deter mined that parts of Ander s o n 's feet, inclu ding a t least some toes, would likel y have to be amput ated; howev er, a final decis ion on the matte r was delay ed

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becau se the swell ing and blist ering on Ander son's feet made it diffi cult to fu lly e valua te th em. On Novem ber 24, 2010, Ander son was again ad m i t ted to Jacks on Hospi tal. On Novem ber 27, 2010, Dr. Kwan exami ned her again
. He noted at that time that circu latio n in her legs was fine above the ankle s, but that she had devel oped gangr ene and that parts of h er fe et we re de ad wi th no circ ulati on at all. After waiti ng for her overa ll condi tion to impro ve –– she was also exper ienci ng kidne y and respi rator y failu re at this time

–– Dr. Kwan perfo rmed surge ry on Decem ber 8, 2010, to amput ate parts of A nders on's feet. Dur ing t he co urse of th e sur gery, he ul timat ely d eterm ined that the f eet w ere n o lon ger v iable and he accor dingl y perfo rmed bilat eral below -the- knee amput ation s. F o r a ll that appea rs, Ander son there after recov ered t o

some exten t and was disc h a r g e d from Jacks on Hospi tal. On Novem ber 8, 2011, Ander son f i l e d a petit ion for Chapt er 7 bankr uptcy in t h e Unite d State s Bankr uptcy Court for the Middl e Di s t rict of Alaba ma. As part of that petit ion, Ander son compl eted sched ules de taili ng her debts and her asset s. Those sched ules indic ated that she had appro ximat ely

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$28,0 00 of unsec ured debt, c onsis ting mostl y of medic al and

consu me r d e b t, and that she had no signi fican t asset s. Notab ly, she did not inclu de among her asset s any poten tial

cause of actio n again st the Jacks on Hospi tal defen dants , even thoug h she was requi red by bankr uptcy l a w t o do so. See, e.g., Tr a n s o uth Fin. Corp. v. Murry , 311 B.R. 99, 102 (M.D. Ala. 2004) ("One who files bankr uptcy must discl ose all of his asset s, inclu ding cause s of actio n, lawsu its, or pote n t i al lawsu its." ). O n Mar ch 1, 2012 , the bank ruptc y cou rt gr anted Ander son a compl ete disch arge of her debts , presu mably putti ng

an en d to those bank ruptc y pro ceedi ngs. On Octob er 9, 2012, Ander son initi ated the insta nt medic al-ma lprac tice actio n again st the Jacks on Hospi tal defen dants . On a p proxi matel y May 2, 2013, Ander son filed respo nses to inter rogat ories se rved upon her by the Jacks on Hospi tal defen d a n t s in which she revea led that she had

recen tly filed f or bankr uptcy . The Jacks on Hospi tal defen dants then obtai ned the recor ds fr o m Ander son's bankr uptcy proce eding s and, upon disco verin g that Ander son had not discl osed a poten tial cause of actio n again st them in the list of asset s filed with the bankr uptcy court , prepa r e d a

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motio n ask ing t he tr ial c ourt to en ter a summ ary j udgme nt in their favor on judic ial-e stopp el groun ds. See, e.g., Luna v. Domin ion B ank o f Mid dle T ennes see, Inc., 631 So. 2 d 917 , 919 (Ala. 1993) ("The doctr ine of judic ial estop pel appli es, where

a debto r in bankr uptcy proce eding s fails to discl ose any claim that may be prese nted in a nonba nkrup tcy conte st, to estop the debto r fro m pre senti ng th e cla im.")
. O n F riday , May 24, 2013, one of the attor neys for the Jacks on Hospi tal defen dants notif ied one of Ander son's attor neys of th e sub stanc e of the s ummar y-jud gment moti on he had prepa red to file. In an a f f idavi t conta ined in the

recor d, the attor ney fo r the Jacks on Hospi tal defen dants state s that A n d e r son's attor ney asked him not to file the motio n until aft e r the impen ding Memor ial Day weeke nd and that, as a court esy, he waite d until Tuesd ay, May 28, 2013, to file the motio n. Prior to the filin g on the after noon of May 28 of an amend ed answe r and the summa ry-ju dgm e n t motio n

asser ting judic ial estop pel as a groun d, howev er, And e r s on filed a mo tion in th e ban krupt cy co urt s eekin g to reope n her bankr uptcy case, along with amend ed sched ules listi ng as an asset her cause of actio n again st the Jac k s o n Hospi tal

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d e f e ndant s. Two days later , on May 30, 2013, Hamm fi l e d a simil ar motio n seeki ng t o reope n Ander son's bankr uptcy case and to be reapp ointe d trust ee, and he there after move d t he bankr uptcy court to autho rize him to em p l oy one of the attor neys who had been retai ned by An d e r s o n in her actio n again st the Jacks on Hospi tal defen dants as his attor n e y in that actio n as well. The bankr uptcy court event ually appro ved all of those motio ns, reope ning Ander son's bankr uptcy case on June 14, 2 013, and, on Ju ly 8, 2013 , aut horiz ing H amm t o use Ander son's atto rney in th e ins tant actio n. After first learn ing of Ander son's medic al-ma lprac tice

c l a i m, Hamm also, on May 31, 2013, filed a motio n wit h t h e trial court i n t his actio n, notif ying it that he had just learn ed of Ander son's medic al-ma lpr a ctice claim and that he

was seeki ng to reope n Ander son's bankr uptcy case and t o be reapp ointe d trust ee in the case. Hamm furth er state d in that motio n that he was in curre nt "disc ussio ns with an attor ney to repre sent ... the plain tiff/ trust ee's inter est" and he reque sted that the case be staye d until a decis ion was made as to repre sen t a t i on. It is not clear wheth er the trial court

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ever expli citly ruled on Ham m ' s reque st for a stay, but the disco very proce ss appea rs to have conti nued durin g this time. On Novem ber 4, 2013, Hamm filed a motio n to f o rmall y inter vene in this actio n, asser ting that he was the real party in inter est u nder Rule 17. The Jacks on Hospi tal defen dants there after file d an objec tion, argu ing t hat R ule 1 7 all ows a real party in inter est to be subst itute d for t h e o rigin al party only if t he mo tion seeki ng to make the subst ituti on is made withi n "a reaso nable time" after the issue is ra i s e d, and, they argue d, Hamm' s more than five- month delay was not a "rea s o n a b le time. " On Novem ber 14, 2013, the trial court condu cted a heari ng at which it heard argum ents on the issue s raise d by the parti es in conne ction with the Jacks on Hospi tal defen dants ' summa ry-ju dgmen t motio n and Hamm' s motio n to inter vene. On Decem ber 9, 2013 , t h e trial court enter ed an order reso lving thos e iss ues, stati ng as foll ows: "[W]i th regar d to defen dants ' motio n for summa ry judgm ent, the court notes that such motio n is based upon the doctr ine of judic ial estop pel (cont end i ng that the plai n tiff faile d to discl ose her cause of actio n to the bankr uptcy court durin g her Chapt er 7 proce eding s) and on the conte ntion that plain tiff Joann e Ande r son is not the real party in inter est.

... [T ] h e plain tiff has now amend ed the compl aint and [Hamm ,] the trust ee in bankr uptcy has been permi tted to inter vene as the real party in

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inter est. Pursu ant to Hamm v. Norfo lk South ern Railw ay Co., 52 So. 3d 484 (Ala. 2010) , the defen dants ' motio n for summa ry judgm ent is denie d in part, such that [Hamm ] shall be permitt ed to pursu e Joann e Ander son's claim s again st the defen dants for a recov ery up to the amoun t neces sary to pay the claim s of Ander son's credi tors and expen ses assoc iated with the relat ed bankr uptcy proce eding s. The motio n for summa ry judgm ent is g r a nted in all other respe cts, and summa ry judgm ent is h e r e by enter ed in favor of the defen dants and again st Plain tiff Joann e Ander son as to all claim s broug ht by he r." Howev er, the trial court recog nized that there was subst antia l groun d for diffe rence of opini on regar ding its concl usion s of law, and it accor dingl y certi fied its ord e r for an inter locut ory a ppeal purs uant to Ru le 5. On Decem ber 23, 2013, the J ackso n Hospi tal defen dants petit ioned this Court for permi ssion to appea l immed iatel y the trial court 's or d e r i nsofa r it held that Hamm' s motio n to inter vene was timel y under Rule 17 (case no. 11303 42), and, on Decem ber 24, 2013, Ander son petit ioned this Court for permi ss ion to appea l immed iatel y the trial court 's order insof ar as it held t h a t she –– as oppos ed to Hamm actin g on behal f of her c r e d itors –– was judic ially estop ped from proce eding with her medic a l-mal pract ice claim (case no. 11303 57). On May 27, 2014, this Court grant ed both petit ions

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and order ed brief ing. This Court has now elect ed to treat both petit ions for permi ssion to appea l as petit ions f o r a writ of manda mus. The Jacks on Hospi tal defen d a n t s a n d Hamm 1 have now filed brief s in case no. 11303 42, and the Jacks on Hospi tal defen dants and Ander son have filed brief s in case no. 11303 57.

Altho ugh this Court grant ed b o th the Jacks on Hospi tal 1 d e f endan ts' petit ion and Ander son's petit ion to fil e permi ssive appea ls pursu a n t to Rule 5, upon furth er exami natio n it is appar ent that a petit ion for a writ of manda mus i s the appr opria te me ans b y whi ch to seek revi ew of the issue s they raise –– wheth e r H amm timel y moved to subst itute hims elf a s the real part y in inter est a nd wh ether Ander son shoul d be allow ed to proce ed as the real party in int erest regar dless of her bankr uptcy filin g and initi al failu re to discl ose her claim in those bankr uptcy proce eding s. See Ex parte U.S. Bank Nat'l Ass'n , [Ms. 11209 04, F e b . 7, 2014] ___ So. 3d ___, ___ (Ala. 2014) (list ing issue s this C o urt has held to be appro priat e for manda mus revie w) ; E x parte Tyson Foods , Inc., 146 So. 3d 104 1 ( A l a . 2013) ( r e v i ewing , on petit ion for writ of manda mus, the trial co u r t ' s r uling on a motio n seeki ng to add a real party in inter es t ); and Ex parte Chemi cal Lime of Alaba ma, Inc., 916 So. 2 d 594 , 596 -97 ( Ala. 2005) (con sider ing, on pe titio n for writ of manda mus, wheth er plain tiffs had ti m e l y moved to subst itute d efend ant for a ficti tious ly named defen dant) . Accor dingl y, we now exerc ise our discr etion to trea t t he p a r ties' permi ssive appea ls as petit ions for the writ o f manda mus. See, e . g . , E x parte Watso n, 37 So. 3d 752, 757 (Ala. 2009) ("Thi s Court order ed that the defen dants ' petit ion for p ermis sion to ap peal be tr eated as a peti tion for a writ of manda mus ...." ), and Ex parte G & G Steel , Inc., 601 So. 2d 990, 991 (Ala. 1992) ("Thi s Court has elect ed to treat the Rule 5 pet ition for permi ssion to a ppeal as a peti tion for a writ of ma ndamu s."). 1011303 42, 1 13035 7 II.

In Hamm v. Norfo lk South ern Ry . Co., 52 So. 3d 484, 493

n. 3 (Ala. 2010) , this Court indic ated that it revie ws a trial court 's decis ion regar ding what c o n stitu tes "a reaso nable time" for purpo ses o f Rul e 17 to de termi ne wh ether the court

excee ded i ts di scret ion: "[T]h e que stion wheth er a 'reas onabl e time' would have passe d and wheth er the actio n should have been dismi ssed at that junct ure for a failu re of subst ituti on are quest ions as to which a trial court is to exerc ise discr etion based on its asses sment of th e t y p e of case and its facts and the proce dural histo ry of the case. [6A C h a r l e s Alan Wrigh t, Arthu r R. Mille r & Mary Kay Kane,] Feder al Pract ice & Proce dure at § 1555 [(2d ed. 1990) ] ('Wha t const itute s a r e a s o n able time is a matte r of judic ial discr etion and will depen d upon the facts of ea ch ca se.') ." We fu rther quot ed in Hamm the Unite d Sta tes C ourt of Ap peals for t he El event h Cir cuit: "'"[W ]e revie w th e distr ict court 's appli catio n of judic ial estop pel for abuse of discr etion ." Burne s [v. Pemco Aerop lex, Inc . ] , 291 F.3d [1282 ,] 1284 [(11t h Cir. 2002) ]. "The a b use of discr etion stand ard inclu des r e v i ew to deter mine that the discr etion was not guide d b y erron eous legal concl usion s." Talav era v. Schoo l Bd. of Palm Beach Count y, 12 9 F.3 d 121 4, 12 16 (1 1th C ir. 1 997). '" 52 So . 3d at 48 9 (qu oting Park er v. Wend y's I nt'l, Inc. , 365 F.3d 1268, 1271 (11th Cir. 2004) ). See also Hughe s v.

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Mitch ell Co., 49 So. 3d 192, 203 (Ala. 2010) (stat ing that "ther e is no ge neral form ulati on of prin ciple dict ating when the doctr ine of judic ia l e s t oppel appli es [and] such a decis ion is left to the court 's discr etion "). Thus, we revie w the t rial court 's de cisio n on both the R ule 1 7 and judi cialestop pel is s ues to deter mine wheth er it excee ded its discr etion
. 2

In Lumpk in v. City of Gulf Shore s, 964 So. 2d 1233 (Ala. 2 Civ. App. 2006) , the Court of Civil Appea ls affir med a summa ry judgm ent enter ed in favor of the a p p ellee , in part becau se that court concl uded that the appel lants had faile d to timel y subst itute the real party in inter est a s a plain tiff. It appea rs in that case that the trial court had not artic ulate d its r eason s for ente ring the s ummar y jud gment , and it i s not clear that the issue wheth er the plain tiffs had been given the Rule 17(a) -mand ated "reas onabl e time" to make subst ituti on of the p roper real part y in inter est h ad be en co nside red b y the trial cour t or even raise d by the p artie s bef ore t he su mmary judgm ent was enter ed. Accor dingl y, the Court of Civil Appea ls appro priat ely consi dered that issue de novo. See Lumpk in, 964 So. 2d at 1 2 3 6 (stat ing that the appel lants prefa ced their argum ent t hat t hey s hould stil l be allow ed to subs titut e the real party in i ntere st by stat ing: "'[I ]f th e tri al co urt's ratio nale for dismi ssing [thei r] appea l was that [the Assoc iatio n] inste ad of the [appe llant s] was the real party in inter es t , then [the Assoc iatio n] shoul d be joine d or subst itute d to preve nt what is at prese nt a gross misca rriag e of justi ce.'" (quot ing the appel lants ' brie f) (emph asis added )). In the insta nt case, howev er, it is appar ent f r o m t h e trial court 's order rulin g on the Jacks on Hospi t a l defen dants ' summa ry-ju dgmen t motio n and Hamm' s motio n to inter vene that the trial court had affir mativ ely consi dered the timel iness issue and found that Hamm had m o v e d withi n a reaso nable time to be na med the real party in inter est. Accor dingl y, fo r the reas ons e xplai ned i n Ham m, 52 So. 3d at 1211303 42, 1 13035 7 III.

We first consi der the Jacks on Hospi t al defen dants ' argum ents in case no. 11303 42 conce rning the timel ine s s of Hamm' s inter venti on. The issue prese nted in this cas e w as aptly state d by the trial court as being "whet her [Ha m m ' s] motio n for leave t o inter vene and to file [an] amend ed compl aint was t imely and prope rly f iled pursu ant t o Rul es 17 and/o r 24 of the Alaba ma Rules of Civil Proce dure a n d the appli cable stat ute o f lim itati ons." Rul e 17( a) pr ovide s, in perti nent part: "No actio n shall be dismi ssed on the ground that it is not prose cuted in the name of the real party in inter est until a reaso nable time has been a l l owed after objec tion for ratif icati on of comme nceme nt of the actio n by, or joind er or s u b stitu tion of, the real party i n inter est; and such ratif icati on, joind er, or subst ituti on shall have the same effec t as if the actio n had been comme nced in the name of the r eal p arty in in teres t." In this case, the first "ob j ectio n" to Ander son's statu s as the r eal p arty in in teres t to asser t the medi cal-m alpra ctice claim again st the Jacks on Hospi tal defen dants came on May 28, 2013, when the Jacks on Hospi tal defen dants filed an amend ed

answe r suc cinct ly as serti ng th at "[ Ander son] is no t the real

489 n. 3, we revie w that decis ion for an exces s of discr etion
. 1311303 42, 1 13035 7

party in inter est in this case. " It is there after undis puted that Hamm did not forma l l y m ove to take Ander son's place as the real party in inter est until Novem ber 5, 2013 –– over five month s aft er th e ini tial objec tion was m ade. It i s app arent that Hamm becam e awa re of the objec tion at ap proxi matel y the

same time the objec tion was made becau se, on May 30, 2013, he moved the bankr uptcy court to reope n Ander son's bankr u p t cy
case; acco rding ly, t he re levan t que stion for the t rial court

was w hethe r tha t fiv e-mon th de lay w as re asona ble. The Jacks on Hospi tal defen dants essen tiall y argue that a five- month delay is per se unrea sonab le and, in suppo r t of that argum ent, cite Lumpk in v. City of Gulf Shore s, 964 So. 2d 1233 (Ala. Civ. App. 2006 ), an d Wil son v . Tuc ker, No. 1 0-CV0714- CVE-F HM (N.D. Okla. Jan. 5, 2011) (not repor ted i n F. Supp. 2d). In Lumpk in, the Court of Civil Appea ls indic ated

3 that a summa ry judgm ent was due to be affir med becau se, in the

The Unite d State s Distr ict Court in Wilso n consi dered the 3 meani ng of "a reaso nable time" in Rule 17(a) , Fed. R. Civ. P., which is subst antia lly simil ar to Rule 17(a) , Ala. R. Civ. P. We have state d tha t " [ b ]ecau se the Alaba ma Rules of Civil Proce dure a r e patte rned after the Feder al Rules of Civil Proce dure, feder al cases const ruing the Feder al Rules of Civil Proce dure are p ersua sive autho rity in co nstru ing t he Al abama Rules of Civil Proce dure. " Ex parte Alaba ma State Pers. Bd., 54 So . 3d 886, 893 ( Ala. 2010)
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two-m onth perio d after the a ppell ee had artic ulate d a realparty -in-i ntere st ch allen ge, t he ap pella nts " did n othin g" to remed y the issue by movin g eithe r to subst itute or to join the i d e n tifie d real party in inter est. 964 So. 2d at 1236
. Simil arly, in Wilso n, the Unite d State s Distr ict Court for the North ern D istri ct of Okla homa grant ed th e def endan t's m otion to dismi ss after neith er the plai n t i f f nor the trust ee

a ppoin ted in the plain tiff' s separ ate bankr uptcy case "made

a ny effor t to subst itute the trust ee as the real part y i n i n teres t" in the two-m onth perio d after the defen dant had

asse r t ed a real- party -in-i ntere st chall enge. The Jacks on Hospi tal defen dants argue that the princ iple to be gl e aned from these cases is that , i f a two-m onth delay is

unrea sonab le, then a five- month delay surel y is unrea sonab le.
W e disag ree. After revie wing these and other relev an t

cases , we think the princ ip l e t hat is most appar ent is that trial cour ts ar e bes t equ ipped to d ecide what cons titut es "a

reaso nable time" under Rule 17(a) in any parti cular case based

on their famil i a rity with the facts and speci fic histo ry of the case, and, accor dingl y, an appel late court shoul d g e neral ly defer to the trial court 's exerc ise of t h a t

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discr etion
. Given the fact s o f a p a rticu lar case, a trial court may decid e that two month s is not a reaso nable time, or it ma y dec ide t hat a n eve n sho rter perio d is not r eason able,

o r t hat a longe r perio d is reaso nable . For examp le, i n Killm eyer v. Ogleb ay Norto n Co., 817 F. Supp. 2d 681 (W.D. Pa. 2011) , the Unite d State s D i stric t Court for the Weste rn Distr ict of Penns ylvan ia consi dered the same gener al i s s ue raise d in this case –– what was a reaso nable ti m e f o r a bankr uptcy trus tee t o mov e to subst itute hims elf a s the real party in inter est in an actio n broug ht by a Chapt er 7 debto r. Afte r n o t ing that what const itute s a reaso nable time is a matte r of judic ial discr etion depen dant on t he facts of the
case, the feder al distr ict court concl uded that the trust ee's motio n to subst itute , made appro ximat ely four month s after the defen dants had asser ted a forma l real- party -in-i ntere st chall enge and f ive m onths afte r the trus tee f irst learn ed of the actio n, was never thele ss timel y. 817 F. Supp. 2d at 690. The feder al dis t r i c t c ourt furth er noted that, as in the insta nt ca se, p art o f any dela y was attr ibuta ble t o the fact that the tr u s t e e had not known of the actio n at the time it

was filed and, upon learn ing of the ac tion, the trust ee

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subse quent ly had to seek the bankr uptcy court 's appro val to have couns el appoi nted to prose cute the claim on the trust ee's behal f. Id.

4 Thus, the Killm e y er court concl uded that a trust ee's motio n to subst itute himse lf as plain t i f f for a Chapt er 7 debto r was timel y even thoug h that motio n was filed appro ximat ely five month s after the trust ee first learn ed that the Chapt er 7 debto r had initi ated the actio n. T h e t rial court in this actio n made essen tiall y the same concl usion , and

we canno t say that it excee ded its discr etion by doing so. Accor dingl y, th e a c t i o n shoul d proce ed as if it had been

comme nced in the name of Hamm, the real party in inter est. Rule 17(a) . Se e als o Boa rd of Wate r & S ewer Comm' rs of City of Mobil e v. McDon ald, 56 Ala. App. 4 2 6 , 4 3 0 -31, 322 So. 2d 717, 721 (Ala. Civ. App. 1975) (stat ing that, when Rule 17(a) is appli ed, it is unnec essar y to resor t to Rule 15(c) , Ala. R.

We furth er note that Hamm notif ied the trial court on May 4 31, 2013 –– just days after learn ing that A n d erson had initi ated an actio n again st the Jacks on Hospi tal defen dants

–– that he was seeki ng couns el to repre sent " the plain tiff/ trust ee's inter est" in t h a t case movin g forwa rd. Thus, Hamm esse ntial ly no tifie d the tria l cou rt at that time that he ratif ied Ander son's comme n cemen t of the actio n and would be t aking it o ver. 1711303 42, 1 13035 7

Civ. P., to deter mine wheth er an amend ed plead ing relat es back to th e dat e of an or igina l ple ading ). IV. We next consi der Ander son's argum ent in case no. 11303 57 that she shoul d be allow ed to prose cute this actio n in her indiv idual capac ity. The trial court state d the issue in that regar d as follo ws: "Whet her [Ande rson] is barre d from prose cutin g this actio n in her indiv idual capac ity: (a) based on the doctr ine of judicia l estop pel, by virtu e of her not di sclos ing the prese ntly advan ced cause of actio n durin g her Chapt er 7 proce eding s, and/o r (b) based on he r not bein g the real part y in inter est." Ander son essen tiall y argue s to this Court that the Ja c kson Hospi tal d efend ants faile d to estab lish that the d octri ne of judic ial estop p e l shoul d apply and that the trial court 's rulin g unf airly prev ents her f rom p etiti oning the bankr uptcy court for permi ssion t o prose cute the medic al-ma lprac tice actio n herse lf as the real p a r ty in inter est. Neith er of those argu ments has merit
. F i rst, our decis ion in Hamm illus trate s that the trial court 's ap plica tion of th e doc trine of j udici al es toppe l was prope r. In Hamm, the plain tiff filed a bankr uptcy petit ion in Octob er 2004; that petit ion did not discl ose any pote n tial

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cause s of actio n i n t h e list of asset s submi tted to the bankr uptcy court . 52 So. 3d at 487. Never thele ss, in Janua ry 2005, the plain tiff initi ated an actio n again st his f o rmer emplo yer, and, in March 2005, he recei ved a compl ete disch arge of debts and his bankr uptcy case was close d. Id. In Janua ry 2006, the p l ainti ff's forme r emplo yer learn ed of the bankr uptcy case durin g a depos ition , and it there after amend ed its answe r to asser t the affir mativ e defen se of j u dicia l estop pel and filed a motio n for a summa ry judgm ent on that

same groun d. Id. There aft e r , the plain tiff moved the bankr uptcy court to reope n his bankr uptcy estat e, and he also filed amend ed sched ules listi ng the cause o f actio n again st his forme r emplo yer as an asset of the bankr uptcy estat e. 52 So. 3d at 488. N e v e rthel ess, the trial court grant ed the emplo yer's summa ry-ju dgmen t motio n, and, after the trial court also denie d a postj udgme nt motio n seeki ng to subst itute the bankr uptcy trust ee as t h e r eal party in inter est, the plain tiff and the trust ee filed a joint appea l to this Court . Id. After holdi ng that the bankr uptcy trust ee was in fact the real party in inter est, 52 So. 3d at 4 9 1

- 9 2, this Court

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consi dered what effec t the doctr ine of judic ial estop pel shoul d hav e in the c ase:

"'In Ex parte Fir s t Alaba ma Bank, [883 So. 2d 1 236 (Ala. 2003) ,] this Court "embr ace[d ] t h e f a ctors set forth in New Hamps hire v. Maine [, 532 U.S. 742, 121 S . Ct. 1808, 149 L.Ed. 2d 968 (2001 ),] and j o i n [ ed] the mains tream of juris prude nce in deali ng with the doctr ine of judic ial estop pel." ' Middl eton v. Cater pilla r Indus ., Inc., 979 So. 2d 53, 60 (Ala. 2007) (quot ing E x parte First Alaba ma Bank, 883 So. 2d at 1246)
. For judic ial estop pel to apply (1) 'a party 's later posit ion must be "clea rly incon siste nt" with its earli er posit ion'; (2) the party must have been su c c e s s ful in the prior proce eding 'so t hat judic ial accep tance of an in consi stent posit ion in a later proce eding would creat e "the perce ption that eithe r the first or se c o n d court was misle d"'; and (3) 'the party seeki ng to asser t an incon siste nt posit ion would deriv e a n unfai r advan tage or impos e an unfai r detri ment on the oppos ing party if not esto p p ed.' New Hamps hire, 532 U.S. at 7 50–51 (cita tions omitt ed); see Middl eton, 97 9 S o. 2d at 60–61 ; Ex p a r te First Alaba ma Bank, 883 So. 2d at 1244– 45 . This Court has state d t h a t ' [t]he purpo se of judic ial estop pel is "'to prote ct t he integ rity of t h e judic ial proce ss' by 'proh ibiti ng parti es from delib erate ly chang ing posit ions accor ding to the exige ncies of the momen t.'"' Middl eton, 979 So. 2d at 59 (qu o t ing New Hamps hire, 532 U.S. at 749–5 0; other cita tion omitt ed). "It is evide nt that the trial court prope rly appli ed the doctr ine of judic ial e stopp el to [the plain tiff] w h e n it enter ed the summa ry judgm ent again st him. After he filed the ... actio n [agai nst his for m e r emplo yer], [the plain tiff] faile d to amend h i s bankr uptcy sched ules to refle ct his
... claim as a poten tial asset , and there after he recei ved a 'no-a ssets ' disch arge in the bankr uptcy

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pro c eedin g. Despi te this outco me, [the plain tiff] conti nued to prose c u te the ... actio n. Thus, [the plain tiff] had taken clear ly incon siste nt posit ions; he was succe ssful in his bankr uptcy proce eding ; and he poten tiall y co u l d have recei ved the unfai r advan tage of a possi ble $750, 00 0 'wind fall' if he succe eded in his claim again st [his forme r emplo yer]. "The fact that the trial court prope rly appli ed the doctr in e o f judic ial estop pel to [the p laint iff], howev er, does not mean that tha t doctr ine neces saril y is appli cable to [the] bankr uptcy trust ee. . . . The trust ee has never taken incon siste nt posit ions with regar d to the ... claim becau se he did not know about the claim until the bankr uptcy sched ules were amend ed to refle ct the exist ence of the claim as a p otent ial asset to the estat e. There fore, [ the trust ee] canno t be judic ially esto pped from pursu ing t he cl aim." 52 So. 3d at 494. T h u s , Hamm clear ly indic ates that the doctr ine of judic ial estop pel can opera te to bar a party from pursu ing an actio n if that party previ ously faile d to discl ose the cause of actio n as an asset durin g bankr uptcy proce eding s that take place afte r the caus e of actio n ari ses. And erson never thele ss argue s that the doctr ine of judic ial e stopp el sh ould not a pply to he r for thre e rea sons. First , she argue s that, unlik e the plain tiff in Hamm, she did not k now o f the exis tence of h er ca use o f act ion u ntil after her bankr uptcy case was close d. Thus, she argue s, she has

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never knowi ngly asser ted incon siste nt posit ions so as to impli cate the d octri ne of judi cial estop pel. Howev er, this Court has indic ated that the cruci al inqui ry is not wheth er a p l a i n tiff actua lly knew of a poten tial claim , but whet her a reas onabl e per son s hould have known abou t the pote ntial clai m. S ee Ha mm, 5 2 So. 3d a t 498 (cit i n g Jinri ght v. Paulk , 758 So. 2d 553, 559 (Ala. 2000) , f o r t h e propo sitio n that "amon g the quest ions of fact

e s s entia l to a deter minat ion of the appli cabil ity of th e d o c t r ine of judic ial estop pel is 'whet her a debto r who is engag ed in bankr uptcy proce eding s knew or shoul d have known about clai ms or caus es of acti on th at sh ould be di sclos ed as asset s'"), and Luna, 631 So. 2d a t 9 1 9 ("[Th e plain tiff] furth er conte nds that the doctr ine of judic ial estop pel shoul d not be appli ed to him becau se, he says, he was unawa re of his claim s again st [the defe n d a n t ] until after his bankr uptcy disch arge. Thi s arg ument is a lso w ithou t mer it. Certa inly, if the facts ... were as he says they wer e , then [the plain tiff] , act ing a s a r eason able perso n, wo uld h ave k nown, when he fi led h is ba nkrup tcy p rocee ding, that he h ad a claim again st [the defen dant] ."). In this case, Ander son alleg es

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that the Jacks on Hospi tal defen dants ' negli gence follo wing the Octob er 20 10 he art s urger y res ulted in t he am putat ion o f her feet in Decem ber 2010. Thus, the resul t o f t h e alleg ed negli gence was admit tedly appa rent by De cembe r 201 0, an d, if the facts are as Ander son has asser ted them to be, a

reaso nable pers on sh ould accor dingl y hav e bee n awa re by that time that a possi ble cause of actio n ag a i n s t t he Jacks on Hospi tal d efend ants exist ed. Moreo ver, Ander son e ssent ially agree d with this concl usion in a Janua ry 2013 amend ment to her compl aint in wh ich s he st ated that "[p]l ainti ff's injur y and defen dants ' sub stand ard c are [ were] not disco vered and could not have reaso nably bee n d iscov ered prior to Decem ber of 2010. " "'"No rmall y, factu al as serti ons in plead ings and pretr ial order s are consi dered to be ju dicia l admis sions concl usive ly bindi ng on the par t y who made them. "'" Nolan d Healt h Servs ., Inc. v. Wrig h t , 971 So. 2d 681, 685-8 6 (Ala. 2 0 0 7 ) (quot ing Jones v. Kasso uf & Co., 949 So. 2d 136 , 1 4 2 (Ala. 2006) (Lyon s, J., disse nting ), quoti ng in turn White v. ARCO/ Polym ers, Inc., 720 F.2d 1391, 1396 (5th Cir. 19 8 3)). Accor dingl y, we find no merit in Ander son's argum ent that the trial cour t sho uld n ot ha ve ap plied the doctr ine o f jud icial

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estop pel again st her becau se she alleg es she was not a w a re that she had a possi ble claim again st the Jacks on Hos p i t al defen dants at a ny ti me du ring the p enden cy of her bankr uptcy

case. 5

We further note that we are not impresse d by Ander son's 5 conte ntion that, "[a]f ter the cause of actio n again st appel lees becam e known to [her] , she took t he extra ordin ary measu re of reope ning her ba n k ruptc y case and amend ing her bankr uptcy sched ules to lis t t he cause of actio n again st appel lees. " An derso n's b rief in ca se no . 113 0357, p. 2 1-22. Ander son does not dispu te that she moved to r e o pen her bankr uptcy case in May 2013 only after being notif ied that the Jacks on Hospi tal defen dants were prepa ring t o move for a summa ry judgm en t on a judic ial-e stopp el groun d; she undis puted ly took no actio n to do so on her own initi ative in the seven month s follo wing the initi ation of her lawsu it. In Hamm, we w arned agai nst t he in centi ves t hat w ould be cr eated if the initi al failu re to d i s c lose asset s in bankr uptcy p r o c e eding s was excus ed by givin g effec t to subse quent amend ments with out c onseq uence : "'"Al lowin g [a debto r] to back- up, re-o p e n the bankr uptcy case, and amend his b ankru ptcy filin gs, on l y after his omiss ion has been chall enged by an adver sary, sugge sts that a debto r shoul d consi der dis c l o s ing poten tial asset s only if he is caugh t conce aling them. This so-ca lled remed y would only dimin ish the neces s a r y incen tive to provi de the bankr uptcy court with a tru thful discl osure of the debto r's asset s." Burne s[ v. Pemco Aerop lex, Inc., 291 F.3d 1282, ] 1288 [(11t h Ci r . 2002) ] (cita tion omitt ed). As such, [the debto r's] discl osure upon re-op ening the bankr uptcy estat e deser ves no favor .'" 52 So. 3d at 495 (quot ing Barge r v. City of Carte rsvil le, Ga., 348 F .3d 1 289, 1297 (11th Cir. 2003 )). 2411303 42, 1 13035 7

Ander son next argue s that the doctr ine of judic ial estop pel shoul d not have been appli ed again st her becau se, she argue s, she will gain no unfai r advan tage if she is allow ed to pursu e her acti on ag ainst the Jacks on Ho spita l def endan ts in that the first $28,0 00 of any judgm ent award ed would go to those entit ies holdi ng her disch arged deb t . Howev er, she fail s t o recog nize that she has alrea dy had $28,0 00 of debt disch arged and that the bankr uptcy court , thoug h it grant ed her motio n to reope n her bankr uptcy case, denie d her motio n to set aside the judgm ent disch argin g her debts . In Hamm, we noted that the unfai r-adv antag e prong of the Ex parte First Alaba ma Ba nk, 8 83 So . 2d 1236 (Ala. 2003 ), ju dicia l-est oppel test was satis fied becau se the plain tif f "pote ntial ly could have recei ved th e unfai r advan tage of a possi ble $750, 000 'wind fall' " if he wa s succe ssful in prose cutin g the claim omitt ed from his bankr uptcy petit ion. 52 So. 3d at 494. That

same poten tial for a windf al l w a s prese nt in this case as

we l l , and, as we expla ined in Hamm, it is suffi cient to estab lish the unfai r-adv antag e prong of the judic ial-e stopp el test; accor dingl y, Ander so n ' s argum ent on this point is witho ut me rit.

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Ander son's final argum en t regar ding the doctr ine of judic ial estop pel is that t h e Jacks on Hospi tal defen dants suffe r from uncle an hands in this matte r, which , she s a y s, shoul d e stop them from asser ting judic ial estop pel. Essen tiall y, Ander son argue s that the Jacks on Hospi tal defen dants fraud ulent ly conce aled mista kes that, she gener ally alleg es, were made durin g her coron ary surge r y and/o r her follo w-up care until afte r her bank ruptc y cas e was comp leted and that they accor dingl y shoul d not be allow ed to profi t from their wrong ful condu ct by invok ing the doctr ine of judic ial estop pel again st her. Howev er, as discu ssed ab o ve, we have alrea dy concl uded, based partl y upon Ander son's own state ments in h e r amend ed plead ings, that the Jacks on Hospi tal defen dants ' alle g e d negli gence could reaso nably have been disco vered by Decem ber 2010. Thus, Ander son canno t attri bute to the Jacks on Hospi tal def endan ts her failu re, in Novem ber 2011, to d isclo se to the bankr uptcy cour t a c laim based upon that alleg ed ne glige nce. Moreo ver, this Court has state d that "'the doctr ine of uncle an hands canno t be appli ed in the conte xt of neb u l o us specu latio n or vague gener aliti es; but ra t h e r it finds

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expre ssion in speci fic acts of willf ul misco nduct whi c h is moral ly repre hensi ble as to known facts .'" Retai l Devel opers of Alaba ma, LLC v. E a s t G a d s d en Golf Club, Inc., 985 So. 2d 924, 932 ( Ala. 2007) (quo ting Sterl ing O il of Okla homa, Inc.

v. Pack, 291 Ala. 727, 7 4 6 , 2 87 So. 2d 847, 864 (1973 )). Altho ugh A nders on ha s gen erall y acc used the J ackso n Hos pital defe n d a n ts of fraud ulent ly hidin g their alleg ed negli gence ,

s h e does not, in her initi al brief to this Court , cit e a n y "spec ific acts of willf ul misco nduct ." After the Jac k s on Hospi tal defen dants ident ified this defic iency , Ander son atte m p t e d to corre ct it in her reply brief ; howev er, that attem pt c o m e s too late. As the Court of Crimi nal Appea ls expla ined in L.J.K . v. State , 942 So. 2d 854, 868-6 9 (Ala. Crim. App. 2005 ): "'Rec itati on of alleg ation s witho ut citat ion to any legal autho rity a n d witho ut adequ ate recit ation of the facts relie d upon has been deeme d a w a i v e r of the argum e n t s l isted .' Hamm v. State , 913 So. 2d 460, 486 (Ala. Crim. App. 2002)
. [The appel l a n t ] cites no legal autho rity in suppo rt of his argum ent. He also fails to provi de an adequ ate recit ation of the facts relie d upon in suppo rt o f his argum ent; merel y refer ring to the recor d witho ut setti ng forth the f a cts in suppo rt of an argum ent is not suffi cient to compl y with Rule 28(a) ( 1 0 ), Ala. R. App. P . Moreo ver, altho ugh [the appel lant] cites Stric kland v. Washi ngton , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984 ), in his reply brief , and

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lists four speci fic alleg ation s of ineff ectiv e assis tance of couns el, becau se his initi al brief fails to compl y with Rule 28(a) (10), and he did not inclu de those speci fic alleg ation s in his in itial brief , we consi der them to have been raised for the first time in his reply brief
. ... As noted above , 'an appe l lant 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 . 2 0 0 2 )]. See also James v. State , 788 So. 2d 185, 192 n. 2 (Ala. Crim. App. 20 0 0) (noti ng that an appel lant may not raise for the first time in his reply brief speci fic alleg ation s of ineff ectiv e assis tance of couns el that were not raise d in hi s i nitia l appel late brief )." We agree with the Court of Crimi nal Appea ls' recit ation of the appli cabil ity of Rule 28(a) (10), Ala. R. App. P. Ander son has not e stabl ished that the trial cour t exc eeded its discr etion in the manne r in which it appli ed the doctr ine of judic ial estop pel a gains t her . Ander son's final argum ent is that the s u m m ary judgm ent shoul d be rever sed becau se, she argue s, she shoul d be given the oppor tunit y to ask the bankr uptcy court if she, inste ad of Hamm, the trust ee, can p ursue her claim again st the Jacks on Hospi tal defen d ants. Ander son ackno wledg es that Hamm is prope rly viewe d as the real party in inter est; howev er, she argue s that debto rs are never thele ss som e t i m e s allow ed to prose cute claim s thems elves if the trust ee aband ons the claim

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or the bankr uptcy court autho rizes the debto r to prose cute the claim inste ad of the trust ee. See Hamm, 52 So. 3d at 491. It is evid e n t b y Hamm' s actio ns in this case that he has no inten tion of aband oning the actio n and leavi ng its prose cutio n to Ander son, but Ander son argue s that the bankr uptcy c ourt might never thele ss autho rize her to pursu e the actio n inste ad of Hamm and urges us to rever se the order enter ed by the trial court so s he ca n pur sue t his p ossib ility with the bankr uptcy court . Altho ugh we have no desir e to remov e this issue from the bankr uptcy cour t's p urvie w, An derso n's a rgume nt si mply comes too late. Ander son could have made her reque st to the bankr uptcy court at any time befor e the entry of the judgm ent that is the subje ct of these petit i o n s b u t f ailed to do so. Moreo ver, Ander son compl etely faile d to raise this issue with the t rial court , and we c annot hold the trial cour t in error for f ailin g to give Ander son t ime t o pur sue t his a venue with the bankr uptcy court when she never asked the trial court for that addit ional time. See Andre ws v. Merri tt Oil Co., 612 So. 2d 409, 410 (Ala. 1992) ("Thi s Court canno t consi der argum ents raise d for the first time on appea l; rathe r, our revie w is

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restr icted to the evide nce and argum ents consi dered b y the trial cour t."). And erson 's ar gumen t is witho ut me rit. V. Ander son sued the Jacks on Hospi tal defen dants in Octob er 2012 alleg ing that both of her feet were amput ated as a resul t of Dr. Kwan' s negli gence . Howev er, becau se Ander son faile d to discl ose this poten tial cause of actio n when she file d f or bankr uptcy in N ovemb er 20 11, t he Ja ckson Hosp ital defen dants moved the trial court to enter a summa ry judgm ent in their favor on t he gr ound of ju dicia l est oppel . Th ereaf ter, Hamm, the bankr uptcy trust ee, moved to be subst itute d as the real party in inter est in the actio n initi ated by Ander son based on well estab lishe d law hold ing t hat c auses of a ction held by a debto r in bankr uptcy becom e the respo nsibi lity of the trust ee. The trial court subse quent ly enter ed an order subst it u t i ng Hamm as the plain tiff, and both the Jacks on Hospi tal defen dants and Ander son sough t revie w of that decis ion in this Court : The Jacks on Hospi tal defen dants argue that Hamm waive d his right to be subst itute d as the real party in inter est and Ander son argue s that she shoul d be allow ed to pursu e her claim inste ad of Hamm. Howev er, as expla ined above , the pa r t i es

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have faile d to estab lish that the trial court excee de d i ts discr etion with regar d to eithe r decis ion, and we accor dingl y deny the p artie s' pe titio ns fo r the writ of m andam us. 11303 42 –– PETI TION DENIE D. 11303 57 –– PETI TION DENIE D. Bolin , Sha w, Ma in, W ise, and B ryan, JJ., conc ur. Murdo ck, J ., co ncurs spec ially
. Moore , C.J ., co ncurs in t he re sult. Parke r, J. , rec uses himse lf.

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MURDO CK, J ustic e (co ncurr ing s pecia lly).
I concu r in the main opini on, b u t I write separ ately to addre ss no te 2 of th at op inion . In note 2, t he ma in op inion

summa rizes the actio ns of the Court of Civil Appea ls i n L u m p kin v. City of Gulf Shore s, 964 So. 2d 1233 (Ala. C i v . App. 2006) , as follo ws: "[T]h e Court of C i v il Appea ls affir med a summa ry judgm ent en t ered in favor of the appel lee, in part becau se that court concl uded that the appel lants had faile d to timel y subst itute the r e a l party in inter est as a plain tiff. It appe a r s i n that case that the trial court had not artic ulate d its reaso ns for e n terin g the summa ry judgm ent, and it is not clear that the issue wheth er the plain tiffs had been given the Rule 17(a) -ma n dated 'reas onabl e time' to make subs t i t ution of the prope r real party in inter e st had been consi dered by the trial court or even raise d by t h e parti es befor e the summa ry judgm ent was enter ed. Acco r d i n gly, the Court of Civil Appea ls appro priat ely consi dered that issue de no vo." ___ S o. 3d at _ __ n. 2. The n otion that "the Cour t of Civil Appea ls ap propr iatel y con sider ed [t he st ated] issu e de novo" would be corre ct only if it c o u l d be ascer taine d from the

recor d, inclu ding filin gs made i n t h e trial court and the trial cour t's o rder, that the trial cour t's s ummar y-jud gment order was n o t b a s e d on that issue and, furth er, only if the issue was one that could be invok ed sua spont e b y t h e

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appel late court becau s e i t prese nted an alter nativ e valid "lega l gro und" for a ffirm ing t he tr ial c ourt' s ord er an d, in addit ion, could be so invok ed witho ut impli catin g the dueproce ss right s o f the parti es adver sely affec ted by that i n v o catio n. I do not read note 2 as sayin g anyth ing o t h e r than this.

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