Johnson v. Fuller Family Holdings, LLC

2017 IL App (1st) 162130

91 N.E.3d 537

Gregory JOHNSON and Natasha Johnson, Plaintiffs–Appellants,

v.FULLER FAMILY HOLDINGS, LLC, a Delaware Limited Liability Company, ABM Janitorial Services–Midwest, LLC, a Delaware Limited Liability Company, 30 N. LaSalle, L.P., a Delaware Limited Partnership, and Tishman Speyer Properties, L.P., a Delaware Limited Liability Partnership, Defendants–Appellees.

No. 1–16–2130

Appellate Court of Illinois, First District, SIXTH DIVISION.

December 8, 2017

Peter A. Cantwell, of Cantwell & Cantwell, of Chicago, for appellants.

Julie A. Tuescher, Matthew A. Eliaser, James A. Ahern, and Daniel J. Basler, of Cassiday Schade LLP, and Melissa A. Murphy Petros and John Stiglich II, of Wilson Elser Moskowitz Edelman & Dicker LLP, both of Chicago, for appellees.

JUSTICE CONNORS delivered the judgment of the court, with opinion.

¶ 1 Plaintiffs, Gregory Johnson and Natasha Johnson, appeal from the trial court's order that granted the motion to dismiss brought by defendants, ABM Janitorial Services–Midwest, LLC (ABM), Fuller Family Holdings, LLC (Fuller), 30 N. LaSalle, L.P. (30 N. LaSalle), and Tishman Speyer Properties, L.P. (Tishman) (hereinafter collectively referred to as defendants). The trial court found that due to plaintiffs' failure to disclose their personal injury claim during their bankruptcy proceeding, judicial estoppel barred plaintiffs from bringing the instant lawsuit. Plaintiffs assert that the trial court's decision was in error because their failure to disclose was inadvertent. We find that the record before us does not evince an intent to deceive or mislead by plaintiffs. Therefore, we reverse the decision of the trial court, and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 The underlying case here stems from the personal injuries suffered by plaintiff Gregory Johnson as a result of a slip and fall in a stairwell at work. On December 15, 2010, Gregory was working as a security guard for Whelan Security of Illinois, Inc. (Whelan), at 30 North LaSalle Street in Chicago, which required him to patrol the exterior of the building. While on patrol, Gregory fell due to the allegedly negligently-maintained condition of the stairs. As a result of his work-related injury, Gregory filed a workers' compensation claim against Whelan on August 25, 2011, and received benefits.

¶ 4 On December 14, 2012, plaintiffs filed their complaint in the circuit court of Cook County alleging negligence against defendants, specifically that defendants negligently owned, operated, managed, maintained, or controlled the premises. Plaintiffs' complaint was brought by Gregory for his personal injuries and by Gregory's wife, Natasha, for her loss of consortium.

¶ 5 Prior to setting forth the pertinent procedural facts from the circuit court, we find it necessary to address plaintiffs' bankruptcy proceedings. On June 14, 2012, six months prior to filing the instant personal injury lawsuit, plaintiffs jointly filed a petition for chapter 7 bankruptcy ( 11 U.S.C. § 101 (2006) ) in the United States District Court for the Northern District of Illinois and were represented by Peter Francis Geraci Law, LLC, during their bankruptcy proceeding. Plaintiffs' petition included various "schedules" that contained their assets and liabilities. One of the disclosures in Schedule B, which covered personal property, required plaintiffs to describe, "[o]ther contingent and unliquidated claims of every nature, including tax refunds, counter claims of the debtor, and rights to set off claims." In response to this item, plaintiffs listed: "Workers compensation case with Patricia Lannon 312.236.5412." Plaintiffs listed the value of that case as "[u]nknown." Both plaintiffs electronically signed the disclosures under penalty of perjury.

¶ 6 On August 8, 2012, a meeting of the creditors occurred, during which plaintiffs were asked questions regarding their assets and liabilities by the bankruptcy trustee, Mr. Horace Fox. In relevant part, the following exchange occurred between Mr. Fox and Gregory:

"MR. FOX [bankruptcy trustee]: In the last 2 years, has either of you suffered any pers—physical injury that would allow you to sue the person that caused you that damage and make them pay you money?

MR. JOHNSON [plaintiff]: Yes, I have.

MR. FOX: How long ago did that occur?

MR. JOHNSON: Worker's [c]ompensation. It happened in, uh—

MR. FOX: Did you say [w]orkers [c]ompensation?

MR. JOHNSON: Yes.

MR. FOX: Okay.

MR. JOHNSON: December—

MR. FOX: We don't have to have this conversation because you get to keep 100% of any [w]orkers [c]ompensation award.

MR. JOHNSON: Okay.

MR. FOX: Okay. But I appreciate your honesty."

On October 10, 2012, approximately two months prior to the filing of plaintiffs' personal injury lawsuit in circuit court, plaintiffs received a discharge in bankruptcy and their bankruptcy case was closed.

¶ 7 As previously stated, plaintiffs' circuit court complaint was filed on December 14, 2012. Both plaintiffs gave deposition testimony on November 11, 2013. Natasha testified first, with her deposition beginning at 1 p.m. Gregory testified after Natasha, with his deposition beginning at 2:50 p.m., and ending after 8 p.m. During his deposition, Gregory testified that he had filed two lawsuits prior to the instant personal injury case: a personal injury claim related to a 2000 motorcycle accident and a property damage claim related to a 2002 car accident. Gregory also testified that he and his wife had filed for personal bankruptcy. When asked if the instant lawsuit had been disclosed as an asset in the bankruptcy, Gregory responded, "No. It wasn't, no."

¶ 8 Most relevant to the issues raised in this appeal, is the following exchange from Gregory's deposition:

"Q. While you may not have been asked it by the bankruptcy trustee, did you disclose the fact that you had been involved in an accident that could potentially result in a third-party action against other entities during the bankruptcy proceedings?

MR. CANTWELL [plaintiffs' attorney]: Objection. If he disclosed the workmen's comp claim, that certainly is about—There's no other workmen's comp claim he ever made, I don't think. Not that I know of.

Q. [Defendant ABM's attorney:] Do you understand my question?

A. You're asking me if I filed a lawsuit for workers' compensation—

Q. No. What I'm asking is, you testified that you disclosed that you had a workers' comp action—

A. That's right.

Q. —proceeding with respect to this incident. Did you disclose that you might potentially file a lawsuit with respect to something non-workers' compensation resulting from the December 15, 2010, accident regardless of whether you were asked it by the bankruptcy trustee or not?

A. I told him I had no idea. I didn't know if I would do anything because at that time I didn't even have my surgery.¹

Q. Okay.

A. When I first talked to a—the bankruptcy lawyers, I had no idea that I would even file a lawsuit, period.

Q. But you had been injured as of at least that time, correct?

A. Yes.

Q. And at that point in time that you consulted the—Do you recall when exactly you first retained the law firm of Peter Francis Geraci to represent you in the bankruptcy proceeding?

A. Not offhand because they give you a consultation and they give you—they set up another meeting where you confirm everything and then you go through another process of them showing you all the records of whatever you owe, funds that you want to claim on you bankruptcy and so forth and so on."

¶ 9 On November 13, 2013, two days after plaintiffs' depositions, two of defendants, ABM and Fuller, filed an emergency motion to dismiss pursuant to the doctrines of standing and judicial estoppel.

¶ 10 On December 13, 2013, plaintiffs filed a motion to reopen their bankruptcy case in federal court. The motion asked that their case be reopened so as to allow plaintiffs to amend their bankruptcy schedules to include their personal injury claim that was then pending in circuit court. The motion stated that plaintiffs "believed that they had disclosed the unliquidated contingent claims by listing the [w]orker's [c]ompensation claim on their [s]chedules," and explained that "[n]o claim against any third parties had been filed or was pending in any [c]ourt at the time of [plaintiffs'] filing of their [bankruptcy petition] or during the pendency of the [b]ankruptcy case, and any failure by [plaintiffs] to disclose the potential third party claims was inadvertent and an honest mistake." On December 20, 2013, the bankruptcy court granted² plaintiffs' motion to reopen their case and allow the trustee and the court to address the disposition of plaintiffs' circuit court personal injury lawsuit.

¶ 11 On March 17, 2014, the circuit court placed plaintiffs' case on the bankruptcy stay calendar.

¶ 12 On July 29, 2014, the parties in the bankruptcy case, including the trustee and plaintiffs' attorney for their personal injury case, appeared before the bankruptcy court. The trustee informed the court that he had filed a no-asset report, and that the case was ready to be reclosed. It was then brought to the court's attention that plaintiffs had a pending state court case. The trustee stated that they had not sought to administer that asset other than discussions with defendants' counsel regarding a possible settlement of plaintiffs' personal injury claim, however "[t]hey were unwilling to offer any kind of settlement that would yield a dividend for the estate after payment of liens, attorney fees and exemptions to the debtors." Additionally, the trustee acknowledged that there was a controversy regarding whether plaintiffs properly disclosed their personal injury claim, and plaintiffs' counsel informed the court that defendants filed a motion to dismiss based on judicial estoppel in the personal injury action. The court responded that judicial estoppel would not apply against the trustee but asked if the trustee intended to nonetheless abandon the claim. The trustee confirmed his intent to...