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D'Antignac v. Deere & Co.

Court of Appeals of Georgia, Third Division

August 16, 2017

D'ANTIGNAC
v.
DEERE & COMPANY d/b/a JOHN DEERE COMMERCIAL PRODUCTS, INC.

          ELLINGTON, P. J., ANDREWS and RICKMAN, JJ.

          ANDREWS, JUDGE.

         This appeal arises from Veronica D'Antignac's suit against her employer, Deere & Company d/b/a John Deere Commercial Products, Inc. ("John Deere") for intentional infliction of emotional distress and negligent retention. The superior court granted summary judgment to John Deere, finding that, inter alia, D'Antignac's claims were barred by the doctrine of judicial estoppel because of her failure to disclose these claims in a prior Chapter 13 bankruptcy case. We agree and affirm.

         Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 S.E.2d 564) (2003).

         So viewed, the record shows that beginning in 2004, D'Antignac was employed at a John Deere factory in Grovetown as an assembly technician. On June 25, 2008, D'Antignac's co-worker Alfredo Renzi showed her a noose he had made and tried to place it around her neck. D'Antignac immediately reported the incident to a manager, and Renzi was terminated within hours. However, two days later, another "lasso-type noose rope" was sent down the assembly line to D'Antignac's work station. D'Antignac left work and remained out on disability until the end of June 2010.

         Previously, in February 2005, D'Antignac and her then-husband had filed for Chapter 13 bankruptcy. In the bankruptcy petition, D'Antignac was required to disclose all personal property, including "[o]ther contingent and unliquidated claims of every nature[.]" A bankruptcy plan to repay D'Antignac's creditors was confirmed on August 8, 2005, but she was not discharged from bankruptcy until November 5, 2008. Thereafter, on February 5, 2009, the bankruptcy court issued a final decree, discharged the trustee, and closed D'Antignac's case. D'Antignac never listed her claims against John Deere as an asset in her bankruptcy filings.

         Meanwhile, by August 2008, D'Antignac had obtained legal counsel to pursue her claims against John Deere. And on August 22, 2008, she filed an EEOC complaint. Between August and November 2008, D'Antignac, through counsel, communicated with John Deere about the possibility of settling the case before she filed suit. During these negotiations, she offered to settle her claims for $2, 000, 000.

         On June 1, 2010, the EEOC issued a right-to-sue letter, and that month, D'Antignac filed a complaint in state court against John Deere and Renzi, asserting claims for intentional infliction of emotional distress, assault, aggravated assault, and negligent retention. And on August 31, 2010, D'Antignac also filed suit in federal court against John Deere and Renzi, alleging sexual and racial harassment in violation of Title VII of the Civil Rights Act of 1964.

         In March 2012, in the federal case, John Deere moved for summary judgment, which the district court granted, finding that D'Antignac's federal claim was barred by judicial estoppel because she failed to disclose it during her bankruptcy proceedings. The federal district court also found that D'Antignac's unsecured creditors were paid only 38.5 percent of the amount of their respective claims. The 11th Circuit affirmed the district court decision, and the Supreme Court of the United States denied D'Antignac's petition for certiorari. D'Antignac v. Deere & Co., 604 Fed.Appx. 875 (11th Cir. 2015), cert. denied (136 S.Ct. 808, 193 L.Ed.2d 713) (2016). In June 2012, after John Deere filed its motion for summary judgment in federal court, D'Antignac moved to reopen her bankruptcy case, but the bankruptcy court denied her motion because more than five years had passed since she had filed for bankruptcy and the court could no longer modify her plan or provide for additional payments.

         Thereafter in April 2014, D'Antignac dismissed without prejudice her first state court suit against John Deere. In October 2014, D'Antignac re-filed the instant suit against John Deere, setting forth claims for intentional infliction of emotional distress and negligent retention, and seeking general and punitive damages.[1] John Deere again filed a motion for summary judgment asserting that D'Antignac's claims for intentional infliction of emotional distress and negligent retention failed as a matter of law and were barred by res judicata and judicial estoppel. Following a hearing, the trial court granted summary judgment to John Deere, finding that D'Antignac's claims were barred by res judicata because the claims had already been adjudicated or could have been adjudicated in federal court. The trial court also found that, under federal and state law, D'Antignac's claims were barred by judicial estoppel. Finally, the trial court determined that, even if her claims were not barred, they failed as a matter of law. Finding no just reason for delay, the trial court entered final judgment in favor of John Deere. D'Antignac appeals, contending that the trial court erred in granting summary judgment (1) on the basis of judicial estoppel, (2) on the basis of res judicata, (3) as to her claim for intentional infliction of emotional distress, and (4) as to her claim for negligent retention.

         1. D'Antignac asserts that the trial court erred in granting summary judgment on the basis of judicial estoppel. We disagree.

         (a) In her brief, D'Antignac enumerated four claims of error, as set forth above. However, in the argument section of her brief, she begins, not with any of her enumerated errors, but with an un-enumerated claim that no court (either federal or state) has had jurisdiction to consider John Deere's motions asserting judicial estoppel or enter judgment based on the doctrine of judicial estoppel because those motions and judgments violate the automatic stay of the bankruptcy case and are therefore void. But this Court "has jurisdiction to decide only those issues fairly raised by an enumeration of error[.]" Coweta County v. Simmons, 269 Ga. 694, 695 (507 S.E.2d 440) (1998); accord Williams v. State, 320 Ga.App. 831, 837 (5) n.23 (740 S.E.2d 766) (2013). Even if this issue was fairly raised by an enumeration of error, D'Antignac's argument is without merit. An automatic stay only continues until the bankruptcy case is closed, the case is dismissed, or the case is discharged, whichever occurs first. See 11 USC § 362 (c) (2); Bullard v. Blue Hills Bank, ___ U.S. ___ (II) (135 S.Ct. 1686, 1693, 191 L.Ed.2d 621) (2015) (noting that "[d]ismissal lifts the automatic stay entered at the start of bankruptcy"). D'Antignac was discharged from bankruptcy in 2008. Because the stay was lifted in 2008, there was no stay to violate at the time that John Deere filed its motions for summary judgment or the courts granted the motions, as D'Antignac's suits were not even filed until 2010.

         (b) D'Antignac also asserts that judicial estoppel does not apply because she had no continuing duty to notify the bankruptcy court of her claims against John Deere.

         Since 1994, Georgia courts have applied the federal doctrine of judicial estoppel. See Nat'l Bldg. Maintenance Specialists, Inc. v. Hayes, 288 Ga.App. 25, 26 (653 S.E.2d 772) (2007). "The 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." Period Homes v. Wallick, 275 Ga. 486, 488 (2) (569 S.E.2d 502) (2002). As our Supreme Court has explained: "The federal doctrine of judicial estoppel precludes a party from ...


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