No. 1-20-0818 Opinion filed December 27, 2021

FIRST DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

DARRIUS DUNIVER, ) Appeal from the Circuit Court ) Of Cook County, Illinois. Plaintiff-Appellant, ) ) No. 2019 L 000546 v. ) ) The Honorable CLARK MATERIAL HANDLING COMPANY;) Kathy M. Flanagan BATTERY HANDLING SYSTEMS, INC.; ) Judge Presiding. EQUIPMENT DEPOT OF ILLINOIS, INC.; ) and NEOVIA LOGISTICS SERVICES, LLC, ) ) ) Defendants-Appellees. )

JUSTICE WALKER delivered the judgment of the court, with opinion. Justice Pucinski and Justice Coghlan concurred in the judgment and opinion.

OPINION

¶1 Plaintiff Darius Duniver filed a personal injury action against Clark Material Handling

Company (Clark), Battery Handling Systems, Inc. (Battery Handling Systems), Equipment

Depot of Illinois, Inc. (EDI), and Neovia Logistics Services, LLC (Neovia) (collectively,

“Defendants”). The circuit court entered summary judgment in favor of defendants, finding No. 1-20-0818

Duniver was judicially estopped and lacked standing to bring his claim because he failed to

disclose his personal injury action to the bankruptcy court. Duniver appeals, arguing the circuit

court erred in granting summary judgment. We find that Duniver received no significant

benefit in the bankruptcy proceedings, he did not deliberately fail to disclose his personal injury

claim to the bankruptcy court, and judicial estoppel is not warranted. Therefore, we reverse the

circuit court’s judgment and remand for further proceedings.

¶2 I. BACKGROUND

¶3 On July 30, 2017, Duniver was injured during his employment, resulting in the loss of his

leg. While working on a forklift recently modified with changed batteries by Battery Handling

Systems, Duniver alleged that his forklift suddenly reversed directions. He attempted to stop

the forklift but claimed the forklift did not have a functioning emergency stop button. On

January 16, 2019, Duniver filed a personal injury lawsuit against defendants in the circuit court

of Cook County.

¶4 On February 8, 2019, Duniver filed for voluntary Chapter 13 bankruptcy in the United

States Bankruptcy Court for the Northern District of Illinois. One of the forms he was required

to complete asked if he had any claims against third parties, regardless of whether he pursued

legal action. Duniver responded, “No.” Another schedule asked if there were any “Other

contingent and unliquidated claims of every nature, including counterclaims of the debtor and

rights to set off claims.” Duniver marked “Yes” and described the claim as “Darrius Duniver

Workman’s Comp Desparti Law Group Rommiumicci & Blanch v.” Duniver’s statement of

financial affairs required him to list all lawsuits and court actions to which he was a party. He

disclosed a collection action but did not include this personal injury action.

2 No. 1-20-0818

¶5 On March 14, 2019, Duniver testified under oath in the bankruptcy proceeding, and

confirmed that the petition and schedules were accurate and complete. When asked whether

he was suing anyone, Duniver said “no.” On July 24, 2019, the bankruptcy court entered an

order that confirmed Duniver’s Chapter 13 plan.

¶6 On September 10, 2019, Neovia moved for summary judgment in the personal injury suit.

Neovia claimed Duniver’s personal injury suit was barred by judicial estoppel, and he lacked

standing under Illinois law because his personal injury claim was required to be brought by the

bankruptcy estate. Clark, Battery Handling Systems, and EDI joined in the motion. In response,

Duniver argued that he relied on his bankruptcy counsel to inform him of any inaccuracies and

judicial estoppel was inapplicable because his failure to disclose the personal injury action was

inadvertent.

¶7 On January 22, 2020, Duniver amended his Chapter 13 bankruptcy forms to include his

personal injury lawsuit. On February 19, 2020, the bankruptcy court dismissed Duniver’s

bankruptcy case for failure to make confirmed plan payments.

¶8 The circuit court granted the defendants’ motion for summary judgment on February 24,

2020. The circuit court found the elements of judicial estoppel were satisfied, and Duniver

intentionally deceived the trustee in the bankruptcy proceeding.

¶9 Duniver filed a motion to reconsider the summary judgment ruling on March 24, 2020, and

the motion was denied. Duniver filed a timely notice of appeal.

¶ 10 II. ANALYSIS

¶ 11 On appeal, Duniver argues judicial estoppel was inappropriate because defendants did not

prove by clear and convincing evidence that his failure to list the personal injury claim resulted

from an intention to deceive the bankruptcy court and the court erred in granting summary

3 No. 1-20-0818

judgment. Duniver asks this court to reverse the circuit court’s grant of summary judgment and

remand for further proceedings.

¶ 12 We traditionally review the circuit court’s discretionary rulings for an abuse of discretion,

but where the circuit court’s ruling on judicial estoppel terminates the litigation, our review is

de novo. Seymour v. Collins,

. This matter was resolved in the circuit

court pursuant to summary judgment, and we review a circuit court’s entry of summary

judgment de novo. Parkway Bank & Trust Co. v. Korzen,

, ¶ 14. De

novo review is without deference to the trial court’s judgment or reasoning.” People v. Randall,

. Summary judgment is appropriate if no material fact is in

dispute, if reasonable persons could not draw differing “inferences from the undisputed

material facts,” and if reasonable persons could not “differ on the weight to be given the

relevant factors of a legal standard.” (Internal quotation marks omitted.) Seymour,

. In reviewing an order granting summary judgment, we strictly construe the

record against the movant and view it in favor of the nonmoving party. Id. ¶ 49. Summary

judgment is a drastic measure and should only be granted if the movant’s right to judgment is

clear and free from doubt. Id.

¶ 13 The doctrine of judicial estoppel prevents a party from taking contradictory positions in

separate judicial proceedings. Moy v. Ng,

(2007). Judicial estoppel

aims “to protect the integrity of the judicial process, [citation], by prohibiting parties from

deliberately changing positions according to the exigencies of the moment.” (Internal quotation

marks omitted.) New Hampshire v. Maine,

(2001). Our supreme court

has identified the prerequisites to determine whether judicial estoppel applies. Seymour,

. The party to be estopped must have “(1) taken two positions, (2) that are

4 No. 1-20-0818

factually inconsistent, (3) in separate judicial or quasi-judicial administrative proceedings,

(4) intending for the trier of fact to accept the truth of the facts alleged, and (5) have succeeded

in the first proceeding and received some benefit from it.”

We review these

factors de novo. Id. ¶ 49.

¶ 14 If all prerequisites have been established, the court must then determine whether judicial

estoppel should be applied. Id. Multiple factors may affect that decision, including the

significance or impact of the party’s action in the first proceeding and “whether there was an

intent to deceive or mislead, as opposed to the prior position having been the result of

inadvertence or mistake.” Id.

¶ 15 As a preliminary matter, defendants argue in the alternative that Duniver lacked standing

to pursue his personal injury lawsuit in his own name. Defendants contend that because

Duniver’s bankruptcy case was dismissed, he can no longer request permission from the

bankruptcy court to pursue his personal injury lawsuit on behalf of his estate. In response,

Duniver claims the circuit court already established he has standing. The circuit court entered

a memorandum opinion on February 24, 2020, acknowledging that Duniver could still obtain

permission from the bankruptcy court but found that it would be “futile in light of the ruling

with regard to judicial estoppel.” In similar cases, we have found that standing can revest in

the debtor when the bankruptcy trustee abandons the personal injury claim. See Johnson v.

Fuller Family Holdings, LLC,

; Board of Managers of the 1120

Club Condominium Ass’n v. 1120 Club, LLC,

. Here, the

bankruptcy trustee did not abandon the personal injury claim; Duniver’s bankruptcy was

dismissed. The dismissal of Duniver’s Chapter 13 bankruptcy, in effect, revested his standing.

Therefore, we find that Duniver had standing to pursue his personal injury claim.

5 No. 1-20-0818

¶ 16 We must next determine whether judicial estoppel supported the grant of summary

judgment. The dispositive issue in this case is whether the plaintiff intentionally failed to

disclose his personal injury claim to the bankruptcy court, but we first examine the five

elements of judicial estoppel to determine whether there is clear and convincing evidence to

support its application. Davis v. Pace Suburban Bus Division of the Regional Transportation

Authority,

. Duniver does not dispute that his actions satisfy

four of the five elements. Duniver satisfied the first and second elements by taking two

factually inconsistent positions when he made the attestation that he had no claims against third

parties during his bankruptcy proceeding. Duniver satisfied the third element by taking

opposing positions in the bankruptcy proceeding and the personal injury proceeding. He

satisfied the fourth element because he intended for the courts in both proceedings to accept

the truths of the facts alleged.

¶ 17 Duniver maintains that the circuit court erred applying judicial estoppel because: (1) the

final element was not satisfied and he did not receive any benefit, (2) defendants did not prove

an intent to deceive by clear and convincing evidence, and (3) the circuit court applied the

wrong burden of proof in finding the fifth prerequisite was satisfied. Defendants argue that

Duniver failed to preserve the argument that he received no benefit from nondisclosure because

he did not raise the argument in his brief in opposition to the motion for summary judgment

and that, even if the argument is preserved, the circuit court did not err in finding Duniver

benefitted from nondisclosure.

¶ 18 Duniver did not raise the benefit argument until he filed his motion to reconsider.

Arguments raised for the first time in a motion for reconsideration in the circuit court are

waived on appeal. Caywood v. Gossett,

(2008). Accordingly, Duniver

6 No. 1-20-0818

has forfeited this issue. However, forfeiture of issues on appeal is a limitation on the parties

and not on the appellate court; as such, the court can overlook forfeiture and address an issue

when it is necessary to obtain a just result or to maintain a sound body of precedent. Village of

New Athens v. Smith,

(citing Jill Knowles Enterprises, Inc. v.

Dunkin,

). We choose to overlook forfeiture because it is

necessary to obtain a just result in this case.

¶ 19 Duniver argues that he did not benefit from the factually inconsistent positions because he

never received a discharge of debt. Defendants argue that Duniver benefited from an automatic

stay. In support of their argument, defendants cite the Seventh Circuit’s decision in Williams

v. Hainje,

(7th Cir. 2010). In Williams, the plaintiff filed for bankruptcy

without disclosing his pending civil rights suit. Defendants filed a motion for summary

judgment arguing that the plaintiff was judicially estopped for failing to disclose his claim to

creditors. The Seventh Circuit found that while the plaintiff’s Chapter 13 bankruptcy was

dismissed without a discharge, he benefited from an automatic stay. Duniver insists that the

facts here are distinguishable from Williams because “there were or would have been collection

proceedings absent the stay” in those cases. Duniver maintains he was unable to work due to

his missing leg, that no creditor was likely to pursue collection of a debt, and that, even if one

had, it would not have received payment. In reaching its decision in Williams, the Seventh

Circuit emphasized that the assets were shielded from creditors for 20 months before being

dismissed.

Unlike the plaintiff in Williams, Duniver’s bankruptcy was dismissed after only

11 months.

¶ 20 This court has previously held that a party derives some benefit when debt is discharged.

See Barnes v. Lolling,

(finding the plaintiff “received a benefit”

7 No. 1-20-0818

from failing to disclose a personal injury claim “by having more than $92,000 of her unsecured

debt discharged in bankruptcy without having to increase her payments to her creditors in light

of the claim”); Shoup v. Gore,

(finding “the plaintiff received

a benefit by having her debts discharged without the creditors knowing of her potential

recovery in state court”). Here, Duniver had none of his debt discharged, and his Chapter 13

plan was dismissed for failure to make payments. Therefore, he received no benefit. See

Holland v. Schwan’s Home Service, Inc.,

(finding plaintiff

“did not benefit from the nondisclosure because the bankruptcy court dismissed his chapter 13

plan for failure to make the plan’s required payments”). Hence, judicial estoppel does not

apply.

¶ 21 Although we find judicial estoppel inapplicable, we will address Duniver’s claim that

defendants did not prove his intent to deceive. If all elements of judicial estoppel had been

proven, we would exercise our discretion in determining whether to apply the doctrine.

Seymour,

. We may consider the significance of plaintiff’s benefit in the

first proceeding.

Our supreme court has found that the dispositive issue is whether the

plaintiff deliberately failed to disclose his personal injury claim to the bankruptcy court, and

in Seymour, the supreme court found no evidence that plaintiffs intended to mislead the court

by failing to disclose a personal injury claim. Id. ¶ 54. The court was unwilling to “presume

that the debtors’ failure to disclose was deliberate manipulation.” (Emphasis omitted.) Id. ¶ 62.

If the debtor “deliberately change[d] positions according to the exigencies of the moment,”

summary judgment would have been appropriate. Id. ¶ 63.

¶ 22 Here, Duniver contends that his failure to disclose was inadvertent. To support his claim,

Duniver argues the extensive bankruptcy forms he completed were the source of his mistake.

8 No. 1-20-0818

He also argues that the trustee should have recognized he was suing someone because the

worker’s compensation claim was disclosed that he had “other contingent and unliquidated

claims of every nature.” Relying on the trustee’s failure to acknowledge this inconsistency,

Duniver insists his answers in the petition “did not represent an intent to deceive but rather

reflect that no one put emphasis on this suit’s importance.”

¶ 23 In response, defendants contend that Duniver’s amended schedule does not show

inadvertence because a “pattern of being asked to disclose but failing to disclose” does not

amount to inadvertence. Defendants argue Duniver’s signing of the bankruptcy petition

supports their claim of deception, and by signing the bankruptcy petition, Duniver’s argument

that he was confused by the length of the petition holds no merit. Duniver counters by

contending he relied on his bankruptcy counsel to file accurate schedules.

¶ 24 Viewing the evidence in a light most favorable to Duniver, we find that the evidence

presented fails to show an intent to deceive or mislead. Following our supreme court’s decision

in Seymour, we find that Duniver did not deliberately fail to disclose his personal injury claim

to the bankruptcy court. The application of judicial estoppel “should not be used where to do

so would result in an injustice.” Ceres Terminals, Inc. v. Chicago City Bank & Trust Co.,

(1994). Therefore, as our supreme court did in Seymour, we find that

judicial estoppel is not warranted.

¶ 25 III. CONCLUSION

¶ 26 For the forgoing reasons, we reverse the grant of summary judgment entered in favor of

defendants because Duniver did not receive a significant benefit in the bankruptcy proceedings,

he did not deliberately fail to disclose his personal injury claim to the bankruptcy court, and

judicial estoppel is not warranted. We remand the cause for further proceedings.

9 No. 1-20-0818

¶ 27 Reversed and remanded.

10 No. 1-20-0818

No. 1-20-0818

Cite as: Duniver v. Clark Material Handling Co.,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 2019-L- 000546; the Hon. Kathy M. Flanagan, Judge, presiding.

Attorneys Michael Rathsack, Michael R. Grieco, and Michael E. for Holden, all of Chicago, for appellant. Appellant:

Attorneys Julie A. Teuscher and Christopher Cassidy, of Cassiday Schade for LLP, Kurt E. Olsen, of Krakar & Olsen, Brian W. Bell, Michael A. Appellee: McCaskey, and Catherine B. Weiler, of Swanson, Martin & Bell, LLP, and Michael E. Kujawa and Deborah A. Ostvig, of Schain, Banks, Kenny & Schwartz, Ltd., all of Chicago, for appellees.

11