THE CIRCUIT COURT OF THE CITY OF ROANOKE David B. Carson,
WILLIAM C. MIMS JUSTICE.
appeal, we consider whether judicial estoppel is an
affirmative defense that is waived if not pled.
December 2012, Russell E. Eilber filed a Chapter 13
bankruptcy petition in the United States Bankruptcy Court for
the Western District of Virginia. Included with his petition
was a proposed Chapter 13 payment plan, which required that
he make 36 monthly payments to the bankruptcy trustee for the
benefit of his creditors. The bankruptcy court confirmed the
proposed Chapter 13 plan after determining that it satisfied
the requirements of 11 U.S.C. § 1325(a).
one year later, Eilber began working as the "facilities
manager" for New Horizons Healthcare, Inc. ("New
Horizons"). In this role, he was responsible for
supervising the work of Amanda Guthrie and Brittney Sigmon,
who cleaned the New Horizons facility daily. Guthrie and
Sigmon were employed by Floor Care Specialists, Inc.
("FCS"), an independent contractor that provided
janitorial services for New Horizons.
September 2014, New Horizons terminated Eilber's
employment. Eilber responded by filing a defamation action in
the circuit court against FCS, Guthrie, Sigmon, and a FCS
manager ("appellees"). His complaint asserted that
he was fired as the result of defamatory statements made by
Sigmon and Guthrie. He further claimed that these statements
were defamatory per se because they prejudiced him in his
trade or profession. Appellees demurred, arguing that the
complaint failed to state a claim for defamation per se.
After briefing and argument by counsel, the circuit court
denied the demurrers.
April 2016, Eilber completed the payments required by the
Chapter 13 plan. The bankruptcy court then ordered the
discharge of his remaining unsecured debts. Appellees
subsequently moved for summary judgment in the circuit court
on the ground that Eilber lacked standing to prosecute his
defamation action because he failed to disclose the claim to
the bankruptcy court. After Eilber filed a brief in
opposition to the motion for summary judgment, appellees
filed a reply brief in which they argued for the first time
that Eilber was judicially estopped from prosecuting his
defamation action. They contended that Eilber's failure
to timely disclose his claim to the bankruptcy court meant
that he took the position that no such claim existed.
hearing, the circuit court found that Eilber's defamation
action arose after confirmation of the Chapter 13 plan, but
prior to the bankruptcy discharge. It also found that he did
not disclose his defamation action until after the discharge.
Based on these findings, the court concluded that Eilber
lacked standing and, alternatively, that the doctrine of
judicial estoppel prohibited him from prosecuting his
defamation claim after taking the position in the bankruptcy
court that it did not exist. Accordingly, the court granted
appellees' motion for summary judgment and dismissed
Eilber's claim with prejudice.
appeal, Eilber presents two assignments of error:
1. The trial court erred when [it] held that Eilber as a
debtor in a Chapter 13 bankruptcy did not have standing to
bring a cause of action that acc[ru]ed subsequent to [the]
filing of his Chapter 13 bankruptcy petition, subsequent to
the confirmation of [his] Chapter 13 payment plan, but prior
to . . . receiving a Chapter 13 discharge.
2. The trial court erred when [it] ruled that the doctrine of
judicial estoppel bars Eilber from pursuing the cause(s) of
action in [his] complaint because the defensive pleadings do
not allege judicial estoppel as an affirmative defense . . .
appellees present the following assignment of cross-error:
1. The circuit court erred in finding that [Eilber] stated a
cause of action for defamation per se.
at the outset that Eilber's second assignment of error
does not challenge the circuit court's substantive
application of judicial estoppel. Rather, it presents only
the narrow question of whether judicial estoppel is an
affirmative defense that is waived if not pled. We review
this question of ...