Eller v. ABM Industries Inc.

── Eller v. ABM Industries Inc. ── Court: Court of Appeals of Oregon Date: May 13, 2026 Author: Ortega Category: General No. 395 May 13, 2026 381 IN THE COURT OF APPEALS OF THE STATE OF OREGON Kyle ELLER, Plaintiff-Appellant, v. ABM INDUSTRIES INCORPORATED, Defendant, and ABM INDUSTRY GROUPS, LLC, a Delaware limited liability company, Defendant-Respondent. Multnomah County Circuit Court 21CV19619; A180685 Michael A. Greenlick, Judge. Argued and submitted January 6, 2025. Nadia Dahab argued the cause for appellant. Also on the briefs were Sugerman Dahab; and Joseph E. Piucci and Piucci Law. Shayna M. Rogers argued the cause for respondent. Also on the brief was Cosgrave Vergeer Kester, LLP. Before Ortega, Presiding Judge, Hellman, Judge, and O’Connor, Judge.* ORTEGA, P. J. Reversed and remanded. ______________ * O’Connor, Judge, vice Mooney, Senior Judge. 382 Eller v. ABM Industries Inc. Cite as 349 Or App 381 (2026) 383 ORTEGA, P. J. Plaintiff Kyle Eller appeals a general judgment dismissing his negligence claim against defendant ABM Industry Groups, LLC that was entered after the trial court granted summary judgment in favor of defendant on the ground that the equitable doctrine of judicial estoppel bars plaintiff’s claim. We conclude that defendant failed to estab- lish the affirmative defense of judicial estoppel as a matter of law and that the trial court therefore erred in granting summary judgment on that basis. We reverse and remand. STANDARD OF REVIEW On review of a grant of summary judgment, we view the summary judgment record in the light most favor- able to the nonmoving party—in this case, plaintiff—and determine whether there are genuine issues of material fact and whether defendant, as the moving party, is entitled to judgment as a matter of law on its affirmative defense of judicial estoppel. ORCP 47 C; Gazitt v. City of Portland, 341 Or App 407, 409, 574 P3d 484 (2025). We state the relevant facts in accordance with that standard. FACTS In 2019, plaintiff slipped and fell while at work, suffering injuries that required several surgeries. In April 2021, plaintiff filed for bankruptcy, and although he listed his pending workers’ compensation claim on his bankruptcy petition, he did not separately list this as-then-unfiled third- party negligence claim against defendant. In May 2021, plaintiff initiated this action. In July 2021, plaintiff obtained an order discharging his debts in federal bankruptcy court. In May 2022, defense counsel informed plain- tiff’s counsel that plaintiff’s omission of this claim in his bankruptcy proceeding supported the application of judi- cial estoppel to bar his claim. Plaintiff’s counsel, who did not represent plaintiff in his bankruptcy case, contacted the court-appointed bankruptcy trustee, who immediately moved to reopen plaintiff’s bankruptcy case to adminis- ter an undisclosed asset. On May 17, the bankruptcy court ordered plaintiff’s case reopened for further administration, 384 Eller v. ABM Industries Inc. and on May 24, plaintiff filed an amended petition listing this claim in his asset schedule. In August 2022, defendant moved for summary judgment on the grounds that judicial estoppel bars plain- tiff’s negligence claim. Defendant argued that “plaintiff obtained the benefit of a discharge, without payment, of more than $100,000 of his debts” in his bankruptcy proceed- ing, and that “it was obtained through plaintiff’s failure to inform the trustee or his creditors of the claim he intended to bring against defendant, a failure that is tantamount to an admission that no such claim existed.” Plaintiff responded that judicial