STUART, Justice.
Joanne Anderson sued Jackson Hospital and Clinic, Inc., Dr. Stephen K. Kwan, and Dr. Kwan's practice group, Capital Cardio-Thoracic, P.C. (hereinafter referred to collectively as "the Jackson Hospital defendants"), in the Montgomery Circuit Court, asserting medical-malpractice claims against them. Thereafter, the trial court granted a motion to substitute bankruptcy trustee Daniel G. Hamm for Anderson as the real party in interest pursuant to Rule 17, Ala. R. Civ. P., because Anderson had filed a petition for Chapter 7 bankruptcy pursuant to 11 U.S.C. § 701 et seq. after her medical-malpractice claim had accrued. The Jackson Hospital defendants subsequently petitioned this Court for permission to file an interlocutory appeal pursuant to Rule 5, Ala. R.App. P., arguing that Hamm's attempt to be substituted as the real party in interest was untimely under Rule 17; Anderson filed a separate Rule 5 petition for permission to appeal, challenging the trial court's decision to remove her as the plaintiff in this case. We granted both petitions; however, as explained infra, we now treat the parties' petitions for permissive appeals as petitions for writs of mandamus, and we deny those petitions.
On October 5, 2010, Anderson presented herself at the Jackson Hospital emergency room complaining of chest pain. Anderson had previously been diagnosed with coronary heart disease, and it was ultimately determined that she now needed coronary-artery-bypass surgery; on October 8, 2010, Dr. Kwan performed the procedure. Anderson thereafter had circulation issues in her feet; however, she was discharged from the hospital on October 25, 2010. Dr. Kwan conducted follow-up examinations with Anderson on November 2, 2010, and November 23, 2010, and on those visits she complained of continuing pain and circulation issues with her feet. During those examinations, Dr. Kwan determined that parts of Anderson's feet, including at least some toes, would likely have to be amputated; however, a final decision on the matter was delayed because the swelling and blistering on Anderson's feet made it difficult to fully evaluate them.
On November 24, 2010, Anderson was again admitted to Jackson Hospital. On November 27, 2010, Dr. Kwan examined her again. He noted at that time that circulation in her legs was fine above the ankles, but that she had developed gangrene and that parts of her feet were dead with no circulation at all. After waiting for her overall condition to improve — she was also experiencing kidney and respiratory failure at this time — Dr. Kwan performed surgery on December 8, 2010, to amputate parts of Anderson's feet. During the course of the surgery, he ultimately
For all that appears, Anderson thereafter recovered to some extent and was discharged from Jackson Hospital. On November 8, 2011, Anderson filed a petition for Chapter 7 bankruptcy in the United States Bankruptcy Court for the Middle District of Alabama. As part of that petition, Anderson completed schedules detailing her debts and her assets. Those schedules indicated that she had approximately $28,000 of unsecured debt, consisting mostly of medical and consumer debt, and that she had no significant assets. Notably, she did not include among her assets any potential cause of action against the Jackson Hospital defendants, even though she was required by bankruptcy law to do so. See, e.g., Transouth Fin. Corp. v. Murry, 311 B.R. 99, 102 (M.D.Ala. 2004) ("One who files bankruptcy must disclose all of his assets, including causes of action, lawsuits, or potential lawsuits."). On March 1, 2012, the bankruptcy court granted Anderson a complete discharge of her debts, presumably putting an end to those bankruptcy proceedings.
On October 9, 2012, Anderson initiated the instant medical-malpractice action against the Jackson Hospital defendants. On approximately May 2, 2013, Anderson filed responses to interrogatories served upon her by the Jackson Hospital defendants in which she revealed that she had recently filed for bankruptcy. The Jackson Hospital defendants then obtained the records from Anderson's bankruptcy proceedings and, upon discovering that Anderson had not disclosed a potential cause of action against them in the list of assets filed with the bankruptcy court, prepared a motion asking the trial court to enter a summary judgment in their favor on judicial-estoppel grounds. See, e.g., Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So.2d 917, 919 (Ala.1993) ("The doctrine of judicial estoppel applies, where a debtor in bankruptcy proceedings fails to disclose any claim that may be presented in a nonbankruptcy contest, to estop the debtor from presenting the claim.").
On Friday, May 24, 2013, one of the attorneys for the Jackson Hospital defendants notified one of Anderson's attorneys of the substance of the summary-judgment motion he had prepared to file. In an affidavit contained in the record, the attorney for the Jackson Hospital defendants states that Anderson's attorney asked him not to file the motion until after the impending Memorial Day weekend and that, as a courtesy, he waited until Tuesday, May 28, 2013, to file the motion. Prior to the filing on the afternoon of May 28 of an amended answer and the summary-judgment motion asserting judicial estoppel as a ground, however, Anderson filed a motion in the bankruptcy court seeking to reopen her bankruptcy case, along with amended schedules listing as an asset her cause of action against the Jackson Hospital defendants. Two days later, on May 30, 2013, Hamm filed a similar motion seeking to reopen Anderson's bankruptcy case and to be reappointed trustee, and he thereafter moved the bankruptcy court to authorize him to employ one of the attorneys who had been retained by Anderson in her action against the Jackson Hospital defendants as his attorney in that action as well. The bankruptcy court eventually approved all of those motions, reopening Anderson's bankruptcy case on June 14, 2013, and, on July 8, 2013, authorizing Hamm to use Anderson's attorney in the instant action.
After first learning of Anderson's medical-malpractice claim, Hamm also, on May 31, 2013, filed a motion with the trial court
On November 4, 2013, Hamm filed a motion to formally intervene in this action, asserting that he was the real party in interest under Rule 17. The Jackson Hospital defendants thereafter filed an objection, arguing that Rule 17 allows a real party in interest to be substituted for the original party only if the motion seeking to make the substitution is made within "a reasonable time" after the issue is raised, and, they argued, Hamm's more than five-month delay was not a "reasonable time." On November 14, 2013, the trial court conducted a hearing at which it heard arguments on the issues raised by the parties in connection with the Jackson Hospital defendants' summary-judgment motion and Hamm's motion to intervene. On December 9, 2013, the trial court entered an order resolving those issues, stating as follows:
However, the trial court recognized that there was substantial ground for difference of opinion regarding its conclusions of law, and it accordingly certified its order for an interlocutory appeal pursuant to Rule 5.
On December 23, 2013, the Jackson Hospital defendants petitioned this Court for permission to appeal immediately the trial court's order insofar it held that Hamm's motion to intervene was timely under Rule 17 (case no. 1130342), and, on December 24, 2013, Anderson petitioned this Court for permission to appeal immediately the trial court's order insofar as it held that she — as opposed to Hamm acting on behalf of her creditors — was judicially estopped from proceeding with her medical-malpractice claim (case no. 1130357). On May 27, 2014, this Court granted both petitions and ordered briefing. This Court has now elected to treat both petitions for permission to appeal as petitions for a writ of mandamus.
In Hamm v. Norfolk Southern Ry. Co., 52 So.3d 484, 493 n. 3 (Ala.2010), this Court indicated that it reviews a trial court's decision regarding what constitutes "a reasonable time" for purposes of Rule 17 to determine whether the court exceeded its discretion:
We further quoted in Hamm the United States Court of Appeals for the Eleventh Circuit:
52 So.3d at 489 (quoting Parker v. Wendy's Int'l, Inc., 365 F.3d 1268, 1271 (11th Cir.2004)). See also Hughes v. Mitchell Co., 49 So.3d 192, 203 (Ala.2010) (stating that "there is no general formulation of principle dictating when the doctrine of judicial estoppel applies [and] such a decision is left to the court's discretion"). Thus, we review the trial court's decision on both the Rule 17 and judicial-estoppel issues to determine whether it exceeded its discretion.
We first consider the Jackson Hospital defendants' arguments in case no. 1130342 concerning the timeliness of Hamm's intervention. The issue presented in this case was aptly stated by the trial court as being "whether [Hamm's] motion for leave to intervene and to file [an] amended complaint was timely and properly filed pursuant to Rules 17 and/or 24 of the Alabama Rules of Civil Procedure and the applicable statute of limitations." Rule 17(a) provides, in pertinent part:
In this case, the first "objection" to Anderson's status as the real party in interest to assert the medical-malpractice claim against the Jackson Hospital defendants came on May 28, 2013, when the Jackson Hospital defendants filed an amended answer succinctly asserting that "[Anderson] is not the real party in interest in this case." It is thereafter undisputed that Hamm did not formally move to take Anderson's place as the real party in interest until November 5, 2013 — over five months after the initial objection was made. It is apparent that Hamm became aware of the objection at approximately the same time the objection was made because, on May 30, 2013, he moved the bankruptcy court to reopen Anderson's bankruptcy case; accordingly, the relevant question for the trial court was whether that five-month delay was reasonable.
The Jackson Hospital defendants essentially argue that a five-month delay is per se unreasonable and, in support of that argument, cite Lumpkin v. City of Gulf Shores, 964 So.2d 1233 (Ala.Civ.App.2006), and Wilson v. Tucker, No. 10-CV-0714-CVE-FHM (N.D.Okla. Jan. 5, 2011) (not reported in F.Supp.2d).
We disagree. After reviewing these and other relevant cases, we think the principle that is most apparent is that trial courts are best equipped to decide what constitutes "a reasonable time" under Rule 17(a) in any particular case based on their familiarity with the facts and specific history of the case, and, accordingly, an appellate court should generally defer to the trial court's exercise of that discretion. Given the facts of a particular case, a trial court may decide that two months is not a reasonable time, or it may decide that an even shorter period is not reasonable, or that a longer period is reasonable. For example, in Killmeyer v. Oglebay Norton Co., 817 F.Supp.2d 681 (W.D.Pa.2011), the United States District Court for the Western District of Pennsylvania considered the same general issue raised in this case — what was a reasonable time for a bankruptcy trustee to move to substitute himself as the real party in interest in an action brought by a Chapter 7 debtor. After noting that what constitutes a reasonable time is a matter of judicial discretion dependant on the facts of the case, the federal district court concluded that the trustee's motion to substitute, made approximately four months after the defendants had asserted a formal real-party-in-interest challenge and five months after the trustee first learned of the action, was nevertheless timely. 817 F.Supp.2d at 690. The federal district court further noted that, as in the instant case, part of any delay was attributable to the fact that the trustee had not known of the action at the time it was filed and, upon learning of the action, the trustee subsequently had to seek the bankruptcy court's approval to have counsel appointed to prosecute the claim on the trustee's behalf.
Thus, the Killmeyer court concluded that a trustee's motion to substitute himself as plaintiff for a Chapter 7 debtor was timely even though that motion was filed approximately five months after the trustee first learned that the Chapter 7 debtor had initiated the action. The trial court in this action made essentially the same conclusion, and we cannot say that it exceeded its discretion by doing so. Accordingly, the action should proceed as if it had been commenced in the name of Hamm, the real party in interest. Rule 17(a). See also Board of Water & Sewer Comm'rs of City of Mobile v. McDonald, 56 Ala.App. 426, 430-31, 322 So.2d 717, 721 (Ala.Civ.App. 1975) (stating that, when Rule 17(a) is applied, it is unnecessary to resort to Rule 15(c), Ala. R. Civ. P., to determine whether an amended pleading relates back to the date of an original pleading).
We next consider Anderson's argument in case no. 1130357 that she should be
Anderson essentially argues to this Court that the Jackson Hospital defendants failed to establish that the doctrine of judicial estoppel should apply and that the trial court's ruling unfairly prevents her from petitioning the bankruptcy court for permission to prosecute the medical-malpractice action herself as the real party in interest. Neither of those arguments has merit.
First, our decision in Hamm illustrates that the trial court's application of the doctrine of judicial estoppel was proper. In Hamm, the plaintiff filed a bankruptcy petition in October 2004; that petition did not disclose any potential causes of action in the list of assets submitted to the bankruptcy court. 52 So.3d at 487. Nevertheless, in January 2005, the plaintiff initiated an action against his former employer, and, in March 2005, he received a complete discharge of debts and his bankruptcy case was closed. Id. In January 2006, the plaintiff's former employer learned of the bankruptcy case during a deposition, and it thereafter amended its answer to assert the affirmative defense of judicial estoppel and filed a motion for a summary judgment on that same ground. Id. Thereafter, the plaintiff moved the bankruptcy court to reopen his bankruptcy estate, and he also filed amended schedules listing the cause of action against his former employer as an asset of the bankruptcy estate. 52 So.3d at 488. Nevertheless, the trial court granted the employer's summary-judgment motion, and, after the trial court also denied a postjudgment motion seeking to substitute the bankruptcy trustee as the real party in interest, the plaintiff and the trustee filed a joint appeal to this Court. Id.
After holding that the bankruptcy trustee was in fact the real party in interest, 52 So.3d at 491-92, this Court considered what effect the doctrine of judicial estoppel should have in the case:
52 So.3d at 494. Thus, Hamm clearly indicates that the doctrine of judicial estoppel can operate to bar a party from pursuing an action if that party previously failed to disclose the cause of action as an asset during bankruptcy proceedings that take place after the cause of action arises.
Anderson nevertheless argues that the doctrine of judicial estoppel should not apply to her for three reasons. First, she argues that, unlike the plaintiff in Hamm, she did not know of the existence of her cause of action until after her bankruptcy case was closed. Thus, she argues, she has never knowingly asserted inconsistent positions so as to implicate the doctrine of judicial estoppel.
However, this Court has indicated that the crucial inquiry is not whether a plaintiff actually knew of a potential claim, but whether a reasonable person should have known about the potential claim. See Hamm, 52 So.3d at 498 (citing Jinright v. Paulk, 758 So.2d 553, 559 (Ala. 2000), for the proposition that "among the questions of fact essential to a determination of the applicability of the doctrine of judicial estoppel is `whether a debtor who is engaged in bankruptcy proceedings knew or should have known about claims or causes of action that should be disclosed as assets'"), and Luna, 631 So.2d at 919 ("[The plaintiff] further contends that the doctrine of judicial estoppel should not be applied to him because, he says, he was unaware of his claims against [the defendant] until after his bankruptcy discharge. This argument is also without merit. Certainly, if the facts ... were as he says they were, then [the plaintiff], acting as a reasonable person, would have known, when he filed his bankruptcy proceeding, that he had a claim against [the defendant]."). In this case, Anderson alleges that the Jackson Hospital defendants' negligence following the October 2010 heart surgery resulted in the amputation of her feet in December 2010. Thus, the result of the alleged negligence was admittedly apparent by December 2010, and, if the facts are as Anderson has asserted them to be, a reasonable person should accordingly have been aware by that time that a possible cause of action against the Jackson Hospital defendants existed. Moreover, Anderson essentially agreed with this conclusion in a January 2013 amendment
Anderson next argues that the doctrine of judicial estoppel should not have been applied against her because, she argues, she will gain no unfair advantage if she is allowed to pursue her action against the Jackson Hospital defendants in that the first $28,000 of any judgment awarded would go to those entities holding her discharged debt. However, she fails to recognize that she has already had $28,000 of debt discharged and that the bankruptcy court, though it granted her motion to reopen her bankruptcy case, denied her motion to set aside the judgment discharging her debts. In Hamm, we noted that the unfair-advantage prong of the Ex parte First Alabama Bank, 883 So.2d 1236 (Ala. 2003), judicial-estoppel test was satisfied because the plaintiff "potentially could have received the unfair advantage of a possible $750,000 `windfall'" if he was successful in prosecuting the claim omitted from his bankruptcy petition. 52 So.3d at 494. That same potential for a windfall was present in this case as well, and, as we explained in Hamm, it is sufficient to establish the unfair-advantage prong of the judicial-estoppel test; accordingly, Anderson's argument on this point is without merit.
Anderson's final argument regarding the doctrine of judicial estoppel is that the Jackson Hospital defendants suffer from unclean hands in this matter, which, she
Moreover, this Court has stated that "`the doctrine of unclean hands cannot be applied in the context of nebulous speculation or vague generalities; but rather it finds expression in specific acts of willful misconduct which is morally reprehensible as to known facts.'" Retail Developers of Alabama, LLC v. East Gadsden Golf Club, Inc., 985 So.2d 924, 932 (Ala.2007) (quoting Sterling Oil of Oklahoma, Inc. v. Pack, 291 Ala. 727, 746, 287 So.2d 847, 864 (1973)). Although Anderson has generally accused the Jackson Hospital defendants of fraudulently hiding their alleged negligence, she does not, in her initial brief to this Court, cite any "specific acts of willful misconduct." After the Jackson Hospital defendants identified this deficiency, Anderson attempted to correct it in her reply brief; however, that attempt comes too late. As the Court of Criminal Appeals explained in L.J.K. v. State, 942 So.2d 854, 868-69 (Ala. Crim.App.2005):
We agree with the Court of Criminal Appeals' recitation of the applicability of Rule 28(a)(10), Ala. R.App. P. Anderson has not established that the trial court exceeded its discretion in the manner in which it applied the doctrine of judicial estoppel against her.
Anderson's final argument is that the summary judgment should be reversed because, she argues, she should be given the opportunity to ask the bankruptcy court if
Although we have no desire to remove this issue from the bankruptcy court's purview, Anderson's argument simply comes too late. Anderson could have made her request to the bankruptcy court at any time before the entry of the judgment that is the subject of these petitions but failed to do so. Moreover, Anderson completely failed to raise this issue with the trial court, and we cannot hold the trial court in error for failing to give Anderson time to pursue this avenue with the bankruptcy court when she never asked the trial court for that additional time. See Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992) ("This Court cannot consider arguments raised for the first time on appeal; rather, our review is restricted to the evidence and arguments considered by the trial court."). Anderson's argument is without merit.
Anderson sued the Jackson Hospital defendants in October 2012 alleging that both of her feet were amputated as a result of Dr. Kwan's negligence. However, because Anderson failed to disclose this potential cause of action when she filed for bankruptcy in November 2011, the Jackson Hospital defendants moved the trial court to enter a summary judgment in their favor on the ground of judicial estoppel. Thereafter, Hamm, the bankruptcy trustee, moved to be substituted as the real party in interest in the action initiated by Anderson based on well established law holding that causes of action held by a debtor in bankruptcy become the responsibility of the trustee. The trial court subsequently entered an order substituting Hamm as the plaintiff, and both the Jackson Hospital defendants and Anderson sought review of that decision in this Court: The Jackson Hospital defendants argue that Hamm waived his right to be substituted as the real party in interest and Anderson argues that she should be allowed to pursue her claim instead of Hamm. However, as explained above, the parties have failed to establish that the trial court exceeded its discretion with regard to either decision, and we accordingly deny the parties' petitions for the writ of mandamus.
1130342 — PETITION DENIED.
1130357 — PETITION DENIED.
BOLIN, SHAW, MAIN, WISE, and BRYAN, JJ., concur.
MURDOCK, J., concurs specially.
MOORE, C.J., concurs in the result.
PARKER, J., recuses himself.
MURDOCK, Justice (concurring specially).
I concur in the main opinion, but I write separately to address note 2 of that opinion. In note 2, the main opinion summarizes the actions of the Court of Civil Appeals in Lumpkin v. City of Gulf
167 So.3d at 329-30 n. 2. The notion that "the Court of Civil Appeals appropriately considered [the stated] issue de novo" would be correct only if it could be ascertained from the record, including filings made in the trial court and the trial court's order, that the trial court's summary-judgment order was not based on that issue and, further, only if the issue was one that could be invoked sua sponte by the appellate court because it presented an alternative valid "legal ground" for affirming the trial court's order and, in addition, could be so invoked without implicating the due-process rights of the parties adversely affected by that invocation. I do not read note 2 as saying anything other than this.
52 So.3d at 495 (quoting Barger v. City of Cartersville, Ga., 348 F.3d 1289, 1297 (11th Cir.2003)).