Georgia applies the federal doctrine of judicial estoppel to preclude the prosecution of unliquidated tort claims that discharged debtors failed to list as assets in their federal bankruptcy petitions. Southmark Corp. v. Trotter, Smith c., 212 Ga. App. 454, 455-456 ( 442 S.E.2d 265) (1994). The question in this appeal is whether a debtor's failure to supplement a Chapter 13 bankruptcy petition or to reopen the bankruptcy proceedings so as to list a cause of action accruing after the filing of the petition but before the discharge of the bankruptcy precludes the debtor from pursuing the cause of action in a Georgia state court.

Under Georgia law, judicial estoppel is a matter for summary judgment, and the Court considers Defendant's motion as such. Southmark Corp. v. Trotter, et al. , 212 Ga.App. 454, 442 S.E.2d 265, 266 (1994). For the reasons discussed below, the Court GRANTS Defendant's motion for summary judgment.

"The primary purpose of the doctrine is not to protect the litigants, but to protect the integrity of the judiciary." Southmark Corp. v. Trotter, Smith Jacobs, 212 Ga. App. 454, 455 ( 442 S.E.2d 265) (1994). 1. Cochran opposed the motion for summary judgment by arguing that judicial estoppel should not apply because she did not intend to deceive anyone and the reason she did not list the tort claim in her bankruptcy case was because her lawyer told her it was not necessary. As previously stated, the trial court correctly found this was no defense, citing Byrd v. JRC Towne Lake, 225 Ga. App. 506 ( 484 S.E.2d 309) (1997).

" (Citations and punctuation omitted.) Southmark Corp. v. Trotter, Smith Jacobs, 212 Ga. App. 454, 455 ( 442 S.E.2d 265) (1994). "The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings."

"The federal doctrine of judicial estoppel precludes a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding." Southmark Corp. v. Trotter, Smith Jacobs, 212 Ga. App. 454, 455 ( 442 SE2d 265) (1994). This court in Southmark went on to hold:

The rationale is that the failure to reveal an asset (such as a cause of action) results in three problems: (1) it constitutes a denial that the asset exists, (2) it deprives the bankruptcy court of the information needed to evaluate and rule on the bankruptcy petition, and (3) it deprives creditors of resources that may satisfy unpaid obligations. 212 Ga. App. 454, 455 ( 442 S.E.2d 265) (1994). (Footnote omitted.)

1. Judicial estoppel is a federal doctrine that "precludes a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding." Southmark v. Trotter, Smith Jacobs, 212 Ga. App. 454, 455 ( 442 S.E.2d 265) (1994) (Emphasis supplied.)Wolfork v. Tackett, 273 Ga. 328 ( 540 S.E.2d 611)(2001). It is "directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings."

[Cits.] The doctrine does not require reliance or prejudice before a party may invoke it. [Cit.]Southmark Corporation v. Trotter, Smith Jacobs, 212 Ga. App. 454, 455 ( 442 S.E.2d 265) (1994). "`The doctrine is directed against those who would attempt to manipulate the court system through the calculated assertion of divergent sworn positions in judicial proceedings and is designed to prevent parties from making a mockery of justice through inconsistent pleadings.' [Cit.]"

Applying this to both Chapter 7 and Chapter 13 bankruptcy petitions, we have held that in light of the stringent disclosure requirements of bankruptcy law, the failure to disclose an asset (such as a personal injury cause of action) in the bankruptcy schedules amounts to a denial that such asset exists and bars subsequent efforts to pursue the tort claim in a Georgia court.Southmark Corp. v. Trotter, Smith Jacobs, 212 Ga. App. 454, 455 ( 442 S.E.2d 265) (1994); see Smalls v. Walker, ___ Ga. App. ___ (Case No. A99A2020, decided March 24, 2000).Smalls, supra, slip op. at (2) (Chapter 13); Reagan v. Lynch, 241 Ga. App. 642, 643-644 ( 524 S.E.2d 510) (1999) (Chapter 7); Byrd v. JRC Towne Lake, Ltd., 225 Ga. App. 506, 507 ( 484 S.E.2d 309) (1997) (Chapter 13).

While a recent decision of this court has used the term (see In the Interest of K.M.H., 209 Ga. App. 194, 195 (2) ( 433 S.E.2d 117) [1993]), that case was not referring to exactly the same concept as involved here. Our earlier decision referenced a concept under Georgia law, while we are dealing here with a concept from federal law which has no exact equivalent under Georgia law.Southmark Corp. v. Trotter, Smith Jacobs, 212 Ga. App. 454, 455 ( 442 S.E.2d 265) (1994). "The federal doctrine of judicial estoppel precludes a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding."