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Harris v. fortin

Court of Appeals of Washington, Division 1

September 8, 2014

Corey Harris et al., Appellants ,
v.
Michael Fortin, Respondent

Oral Argument July 21, 2014

Appeal from Clark Superior Court. Docket No: 11-2-03513-5. Date filed: 02/28/2013. Judge signing: Honorable Scott a Collier.

Scott St. Clair Anders and Russell D. Garrett (of Jordan Ramis PC ), for appellants.

Stephen G. Leatham (of Heurlin Potter Jahn Leatham & Holtmann ), for respondent.

AUTHOR: Michael J. Trickey, J. WE CONCUR: Linda Lau, J., Ann Schindler, J.

OPINION

Page 557

Trickey, J.

[183 Wn.App. 524] ¶ 1 The doctrine of judicial estoppel prevents a party from asserting a particular position in a judicial proceeding and later taking a clearly inconsistent position in order to gain an advantage. Here, throughout their bankruptcy proceedings, appellants maintained that a promissory note, on which respondent agreed to pay them a principal amount of $400,000.00, had no value and was uncollectable. Less than a year later, appellants sued respondent in state court to recover the amount owed on that same promissory note. Under these circumstances, the trial court did not abuse its discretion in finding the appellants judicially estopped from pursuing the action. We affirm.

FACTS

¶ 2 On April 26, 2010, Corey and Juline Harris (collectively Harris) filed a petition for bankruptcy under Chapter 7 of the United States Bankruptcy Code.[1] Harris submitted schedules detailing Harris's assets and liabilities. On Schedule B, Harris listed a promissory note as an " [u]ncollectible promissory note from Michael A. Fortin ($400,000[.00])" with a " current value" of " 0.00." [2] The promissory note referenced is dated April 1, 2006.[3] Harris testified under oath that Fortin was insolvent and the debt was uncollectible.[4] The bankruptcy trustee found no available property for distribution. On

Page 558

December 3, 2010, the bankruptcy court discharged Harris's debts.[5]

¶ 3 Approximately nine months later, in September 2011, Harris brought the current state court lawsuit against Fortin to collect on the promissory note previously designated [183 Wn.App. 525] as having a zero value.[6] Harris sought damages in the amount of $956,000.00 under alleged claims of breach of contract, fraud, or negligent misrepresentation.[7] Harris alternatively sought relief in the amount of $400,000.00 under theories of conversion and rescission.[8]

¶ 4 On January 26, 2012, Harris filed an amended schedule with the bankruptcy court, still listing the promissory note as ...


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