MARTIN v. CASH EXPRESS, INC

ns in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.'" Ex parte General Motors Corp., 769 So.2d 903, 906 (Ala. 1999) (citations omitted).

"Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant." Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala. 1997).

Analysis Judicial Estoppel

The plaintiffs first argue that the trial court erred in finding that Neva Martin could not be a class member because she was an employee of Cash Express and that, because Eric's claims were, at best, based on joint transactions with Neva, Eric Martin could not maintain an independent claim against Cash Express. The plaintiffs argue that Neva was not an employee of Cash Express, and they point to testimony that, they say, Cash Express took out of context while disregarding testimony that shows that Neva was never an employee of Cash Express but had worked for a manager of a Cash Express location who had paid her out of her personal funds, not using Cash Express money. We need not decide that issue, however, because, for the reasons presented below, we agree with the trial court that both Neva and Eric were judicially estopped as a result of their bankruptcy proceeding from pursuing the claims against Cash Express.

The Court of Civil Appeals recently summarized the current status of the doctrine of judicial estoppel in Alabama:

"In 2003, our Supreme Court followed the United States Supreme Court's decision in New Hampshire v. Maine, 532 U.S. 742, 121 S.Ct. 1808, 149 L.Ed.2d 968 (2001), regarding the applicability of the doctrine of judicial estoppel. See Ex parte First Alabama Bank, 883 So.2d 1236, 1246 (Ala. 2003) (overruling Porter v. Jolly, 564 So.2d 434 (Ala. 1990), and cases consistent with Porter regarding the requirements to show judicial estoppel). In Ex parte First Alabama Bank, the Alabama Supreme Court held that for judicial estoppel to apply:.

"`(1) "a party's later position must be `clearly inconsistent' with its earlier position"; (2) the party must have been successful in the prior proceeding so that "judicial acceptance of an inconsistent position in a later proceeding would create `the perception that either the first or second court was misled'"; and (3) the party seeking to assert an inconsistent position must "derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped."'

" Id. at 1244 (citations omitted)."

Lewis v. First Tuskegee Bank, 964 So.2d 36, 40-41 (Ala.Civ.App. 2007).

In its June 29, 2006, motion, Cash Express argued that the doctrine of judicial estoppel bars the Martins' action:

"Because the Martins have been discharged from their bankruptcy without ever amending their bankruptcy filings to include their potential cause of action against Cash Express, they are judicially estopped from bring this action.

"`The doctrine of judicial estoppel applies to preclude a party from assuming a position in a legal proceeding inconsistent with one previously asserted. Judicial estoppel looks to the connection between the litigant and the judicial system, while equitable estoppel focuses on the relationship between the parties to the prior litigation.'

" Ex parte First Alabama Bank, 883 So.2d 1236 (Ala. 2003).

"In the First Alabama Bank case, the Alabama Supreme Court adopted the United States Supreme Court formulation for proving judicial estoppel as follows:

`"We today embrace the factors set forth in New Hampshire v. Maine, 532 U.S. 742 (2001),] and join the mainstream of jurisprudence in dealing with the doctrine of judicial estoppel.'

" Ex parte First Alabama Bank, 883 So.2d at 1246.

"In so doing, the Alabama Supreme Court explained that the following elements were required to show judicial estoppel:

"`The [United States Supreme] Court held that for judicial estoppel to apply (1) a party's later position must be "clearly inconsistent" with its earlier position; (2) the party must have been successful in the prior proceeding so that "judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or second court was misled . . ." and (3) the party seeking to assert an inconsistent position must "derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped."`

" Ex parte First Alabama Bank, 883 So.2d 1236, 1244-1245 (Ala. 2003).

"In essence, the First Alabama Bank decision abolished the requirements of showing privity or reliance by the party seeking to show judicial estoppel. Id., at 1242.

"In the case of Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So.2d 917, 918-19 (Ala. 1993), the Alabama Supreme Court observed the following:

"`In applying the doctrine of judicial estoppel, this Court considers the relationship between the litigant and the judicial system. The doctrine applies to preclude a party from assuming a position in a legal proceeding inconsistent with a position previously asserted. . . . Further, it has been specifically held that a debtor in bankruptcy must disclose any litigation likely to arise in a nonbankruptcy context . . . 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.'

"(Emphasis added [by Cash Express].) (Citations omitted.)

"The Alabama Supreme Court then held that summary judgment was due to be granted against a debtor who had not listed his claim against a bank as part of his assets, even though the lawsuit based on that claim was filed 17 months after his discharge from bankruptcy, because the facts on which the lawsuit were based were known to the debtor during his bankruptcy.

"`Luna further contends that the doctrine of judicial estoppel should not be applied to him because, he says, he was unaware of his claims against Dominion until after his bankruptcy discharge. This argument is also without merit. Certainly, if the facts of his loan with Dominion were as he says they were, then Luna, acting as a reasonable person, would have known, when he filed his bankruptcy proceeding that he had a claim against Dominion.'

" Luna, 631 [So.2d] at 919.

"See also, Bertrand v. Handley, 646 So.2d 16 (Ala. 1994) (tenant's failure to disclose her default judgment against landlord as an asset in bankruptcy estopped her from asserting her claim against the landlord once she was discharged from bankruptcy.).

"Although both Luna and Bertrand involved Chapter 7 bankruptcies, the same rule applies to Chapter 13 bankruptcies. As the Eleventh Circuit explained in the case of De Leon v. Comcar Ind., Inc., 321 F.3d 1289, 1291 (11th Cir. 2003):

"`De Leon attempts to distinguish [between] a debtor who file[s] for bankruptcy under Chapter 7, which allows for the complete discharge of debts and . . . bankruptcy under Chapter 13 through which . . . debts [are] discounted and repaid. However, a financial motive to secret assets exists under Chapter 13 as well as under Chapter 7 because the hiding of assets affects the amount to be discounted and repaid. . . . We also conclude that any distinction between the types of bankruptcies available is not sufficient enough to affect the applicability of judicial estoppel because the need for complete and honest disclosure exists in all types of bankruptcies. Accordingly, we hold that the rule established in Burnes [v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002)], that judicial estoppel bars a plaintiff from asserting claims previously undisclosed to the bankruptcy court where the plaintiff both knew about the undisclosed claims and had a motive to conceal them from the bankruptcy court, applies equally in Chapter 13 bankruptcy cases.'

"The De Leon court also points out the futility of an attempt for the debtor to reopen his bankruptcy case to amend his schedule of assets once an opposing party has filed a motion to dismiss the lawsuit.

"`While Chapter 13 does allow amendments to be made to add after-acquired assets and Chapter 7 does not, De Leon did not make such an amendment even after he filed suit. Despite [De Leon]'s continuing duty to disclose all assets or potential assets to the bankruptcy court, he did not amend his bankruptcy documents to add a potential employment discrimination claim until after Comcar relied on it in its motion to dismiss the case.

"`The success of our bankruptcy laws requires a debtor's full, honest disclosure. Allowing [the plaintiff] to back-up, reopen the bankruptcy case and amend his bankruptcy filings, only after his omission has been challenged by an adversary, suggests that a debtor should consider disclosing potential assets only if he is caught concealing them.'

"[ De Leon], 321 F.3d at 1291-1292.

" See, Crider v. Misty Acres, Inc., 893 So.2d 1165, 1171 (Ala.Civ. App.) 2004 (`Courts in Alabama have held that a plaintiff is judicially estopped from bringing a cause of action in state court that was not timely listed in his bankruptcy proceedings as at least a contingent asset.')

"Accordingly, the claims by the Martins are due to be dismissed."

The Martins argue that they did not know that they had a claim against Cash Express when they filed their petition in bankruptcy and, citing Ex parte Moore, 793 So.2d 762 (Ala. 2000), further argue that they had no obligation to amend then-bankruptcy schedules to show the claim because they had filed for bankruptcy under Chapter 13 and would pay the remaining debts from earnings and not from, assets. In Ex parte Moore,' this Court, quoting Jinright v. Paulk, 758 So.2d 553, 559 (Ala. 2000), held that a debtor's failure to disclose his action against a mobile-home retailer during his Chapter 13 proceeding did not judicially estop his claims against the retailer. Quoting again from Jinright, this Court stated:

"`[A] debtor's mere knowledge or awareness of a potential claim and the debtor's failure to include the claim as an asset on the bankruptcy schedules filed with the court, without more, are not sufficient to invoke the application of the doctrine of judicial estoppel.'" 793 So.2d at 765.

"`[N]othing before us indicates that the Jinrights will benefit from that omission, nor has there been any showing that Paulk and Option Builders have been prejudiced by the omission.' 758 So.2d at 560. Likewise, nothing now before us indicates that Moore will benefit from his omission or that Southern Housing, as a noncreditor, was prejudiced by that omission."

793 So.2d at 766. However, we note that this Court's decision in Ex parte Moore predated Ex parte First Alabama Bank, 883 So.2d 1236 (Ala. 2003), in which this Court adopted a new standard for judicial estoppel as discussed above. We also find the reasoning in De Leon v. Comcar Indus., Inc., 321 F.3d 1289 (11th Cir. 2003) persuasive; particularly persuasive is its statement that "a financial motive to secret assets exists under Chapter 13 as well as under Chapter 7 because the hiding of assets affects the amount to be discounted and repaid." 321 F.3d at 1291 (emphasis added). Under the Chapter 13 bankruptcy plan approved for the Martins, a furniture store, for example, was to receive $534 of a $1,068.83 secured debt and $373.80 of another secured debt in the amount of $800, payable at $8.90 and $6.23 per month, respectively, as the result of discounting based oh assets and earnings available for repayment. The approved plate also provided that unsecured creditors would be paid approximately 40% of the amount' owed to them. The record before us does not indicate whether Cash Express was a creditor that would recover under the Martins' Chapter 13 bankruptcy plan and, if so, what its portion would be.

Like the appellant in Luna v. Dominion Bank of Middle Tennessee, Inc., 631 So.2d 917 (Ala. 1993), the Martins argue that they did not know that they had an action against Cash Express when they filed their petition in bankruptcy. The Martins, however, had a continuing duty to disclose all potential assets to the bankruptcy court. De Leon, 321 F.3d at 1292. The record indicates that the majority of the loans that are the subject of this action were made in 1999 and in the spring of 2000. The Martins filed their bankruptcy petition on July 3, 2000, and the bankruptcy plan was approved on January 17, 2001. The Martins filed their complaint against Cash Express on February 12, 2002, and they were discharged in bankruptcy more than four years later on April 6, 2006, never having included their claim against Cash Express in the bankruptcy estate.

The Martins argue that, because the action was filed after the bankruptcy plan was confirmed, they could pursue the claim without including it in their bankruptcy estate. However, because the cause of action arose at the time the loans were made, it should have been included as a potential asset in the bankruptcy petition. "A cause of action accrues at the time the complained-of action first gives rise to injury, even if the full extent of the injury is not apparent at the time." Van Hoof v. Van Hoof, 997 So.2d 278, 296(Ala. 2007). The Martins argue that the action against Cash Express was filed after the confirmation of their Chapter 13 bankruptcy plan and that Muse v. Accord Human Resources, Inc., 129 Fed.Appx. 487 (11th Cir. 2005) (not published in F.2d), a case very similar to this one, was decided contra to De Leon, holding that the claim in Muse arose after the confirmation of the plan and was not, therefore, a part of the bankruptcy estate. The bankruptcy court in In re Harvey, 356 B.R. 557 (Bankr.S.D.Ga. 2006), found first that, as an unpublished opinion, Muse was not binding and next that the case on which Muse relied, Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000), was rendered unpersuasive.

"While Telfair was applied to post-confirmation causes of action in Muse, [In re] Carter [, 258 B.R. 526 (Bankr. S.D.Ga. 2001),] and [ In re] Ross, [ 278 B.R. 269 (Bankr.M.D.Ga. 2001),] none of these cases are persuasive in light of Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282 (11th Cir. 2002), which held that a debtor's failure to amend his bankruptcy schedules to reveal a discrimination lawsuit instituted two years after he filed his bankruptcy case triggered judicial estoppel. The Court held that the debtor had a continuing duty to amend his schedules, both after confirmation of his Chapter 13 plan when he filed his lawsuit, and later when his case was converted to Chapter 7. Id. at 1287, 1289. `[The debtor] filed and pursued his employment discrimination claims during the pendency of his Chapter 13 case, but never amended his financial statements to include the lawsuit.' I'd. at 1287-88. Further, after converting to Chapter 7, `he once again failed to disclose the pending lawsuit to the bankruptcy court.' Id. at 1288. These conclusions clearly reveal that extending Telfair's vesting rule to post-confirmation assets is tenuous at best.

"While Burnes does not articulate the impact of its ruling on Telfair, it could only have concluded that the debtor's schedules must be amended if it believed that post-confirmation causes of action remain estate property. Otherwise, the failure to amend to reveal those assets could hardly set the stage for a judicial estoppel attack. See also Ajaka v. BrooksAmerica Mortgage Corp., 453 F.3d 1339, 1345 (11th Cir. 2006) (reaffirming Burnes's continuing duty to amend standard in the context of the post-confirmation discovery of a pre-petition cause of action)."

356 B.R. at 562. Thus, whether their cause of action against Cash Express is said to have accrued before or after the confirmation of the bankruptcy plan, the Martins were required to amend their bankruptcy plan to include the claim as an asset of the bankruptcy estate.

Because the Martins' petition in bankruptcy did not include the potential claim against Cash Express, and because they failed to include the claim in the bankruptcy plan once the complaint against Cash Express was filed, the position taken in the bankruptcy court was clearly inconsistent with the position taken in the complaint. The Martins were successful in having the plan confirmed and their debts discharged despite the inconsistency, and the Martins derived an unfair advantage over their creditors by not revealing the existence of the potential recovery from Cash Express. For these reasons, we affirm the judgment of the trial court to the extent that it holds that the Martins were estopped from pursuing a claim they failed to include as a potential asset of their bankruptcy estate.

Law of the Case

The Martins argue that Judge Millican erred in finding that they were estopped from pursuing their claims because two earlier judicial-estoppel-based motions for a summary judgment were denied by two different judges in this case, and the denial of the motions had become the, law of the case. They argue that, " despite [the fact] that neither the relevant facts nor the applicable law had changed, Judge Millican ignored the earlier rulings . . . and held that the Martins were judicially estopped." Martins' brief, at 48-49(emphasis in original). They argue that Judge Millican exceeded his discretion in allowing Cash Express to litigate the issue for a third time.

This Court recently addressed the law-of-the-case doctrine, in Belcher v. Queen, 39 So.3d 1023 (Ala. 2009):

"The law-of-the-case doctrine provides that when a court decides upon a rule of law, that rule should continue to govern the same issues in subsequent stages in the same case, thereby hastening an end to litigation by foreclosing the possibility of repeatedly litigating an issue already decided. Ex parte Discount Foods, Inc., 789 So.2d 842, 846 n. 4 (Ala. 2001). The law-of-the-case doctrine may be disregarded if the court is convinced its prior decision was clearly erroneous or there has been an intervening change in the law. . . ."

39 So.3d at 1038. The trial court ruled against the Martins after they made their argument that the law-of-the-case doctrine applied. Belcher v. Queen clearly permits the trial court to disregard the doctrine if it is convinced that the earlier decisions were clearly erroneous. Because "we will affirm a summary judgment if there is any ground upon which the judgment could have been based, McCloud v. City of Irondale, 622 So.2d 1272, 1773 (Ala. 1993)," Wadsworth v. Jewell, 902 So.2d 664, 668 (Ala. 2004), the judgment of the trial court holding that the Martins' claims are barred under the doctrine of judicial estoppel is affirmed.

Claim or Defense Preclusion

Although Cash Express did not use the term "claim preclusion" in its argument to this Court, claim preclusion is inherent in that portion of the judgment of the trial court holding that Knight and Lyons had admitted that their debts were valid by virtue of accepting a default judgment, which default judgment is "determinative of the issues presented in the complaint on which it is based, both in the action in which it is taken and in all subsequent actions. State Farm Mut. Auto. Ins. Co. v. Day, 414 So.2d 105, 106 (Ala. Civ.App. 1982)." The trial court similarly held that Richard's consent judgment constituted her agreement that her debt was valid and that she may not now claim that the debt is invalid.

"The traditional res judicata case (frequently referred to as a claim preclusion) involves prior litigation between a plaintiff and a defendant, which is decided on the merits by a court of competent jurisdiction, and then a subsequent attempt by the prior plaintiff to relitigate the same cause of action against the same defendant, or perhaps to relitigate a different claim not previously litigated but which arises out of the same evidence. Alabama law is well settled that this will not be allowed. A valid, final judgment on the merits of the claim extinguishes the claim. If the plaintiff won, the claim is merged into the judgment; if the defendant won, the plaintiff is barred from relitigating any matter which could have been litigated in the prior action. Lesley v. City of Montgomery, [ 485 So.2d 1088 (Ala. 1986)]; Ozley v. Guthrie, [ 372 So.2d 860 (Ala. 1979)]; Wheeler v. First Alabama Bank of Birmingham, [ 364 So.2d 1190 (Ala. 1978)]; McGruder v. B L Construction, Inc., [ 331 So.2d 257 (Ala. 1976)]. Likewise, under res judicata we have consistently rejected an attempt by a former defendant to relitigate issues that were, or could have been, raised in prior litigation that ended in a valid adjudication by a court of competent jurisdiction. Educators' Investment Corp. of Alabama, Inc. v. Autrey, [ 383 So.2d 536 (Ala. 1980)]; A.B.C. Truck Lines, Inc. v. Kenemer, [2A7 Ala. 543, 25 So.2d 511 (1946)]."

Whisman v. Alabama Power Co., 512 So.2d 78, 81 (Ala. 1987).

In the trial court, Cash Express made its prima facie case for a dismissal or a summary judgment by producing evidence indicating that the Martins could not be class representatives and that Knight, Lyons, and Richard did not qualify as class members because they had accepted default or consent judgments in earlier actions involving Cash Express. Cash Express had presented testimony and documentary evidence regarding the existence of those judgments. At that point, the burden shifted to the plaintiffs to create a material issue of fact to preclude a summary judgment.

In their response to Cash Express's motion for a summary judgment, the plaintiffs argued that the actions that resulted in the judgments against Knight, Lyons, and Richard did not litigate the legality of the payday loans. Citing Byrd v. Fowler, 50 Ala.App. 596, 281 So.2d 647, 651 (Ala. Civ.App. 1973), which quoted 50 C.J.S. Judgments § 687, they argued that "unless a defendant asserts a counter-claim or set off, res judicata applies only as `to any matter actually at issue and determined in the former action. . . .'" Cash Express's motion cited State Farm Mutual Insurance Co. v. Day, 414 So.2d 105, 106 (Ala. Civ.App. 1982), for the principle that "[a] default judgment is determinative of the issues presented in the complaint on which it is based, both in the action in which it is taken and in all subsequent actions." Cash Express also quoted 10A Charles Alan Wright, Arthur R. Miller Mary K. Kane, Federal Practice and Procedure § 2684 (3d ed. 1998), for the proposition that "when a judgment by default is entered, it generally is treated as conclusive and final adjudication of the issues necessary to justify the relief awarded and is given the same effect as between the parties as a judgment rendered after a trial on the merits." (Emphasis added.)

The language quoted by Cash Express from Wright's treatise addresses the issue-preclusion effect of a default judgment entered pursuant to Rule 55, Ala. R. Civ. P. The next sentence in the treatise refers to the claim or defense preclusion aspect of res judicata with which we are faced here: "The claim-preclusion and issue-preclusion ramifications of a default judgment are discussed in detail elsewhere in this Treatise." A footnote references § 4442, which was cited by the trial court in its order.

"`Valid default judgments establish claim and defense preclusion in the same way as litigated judgments, and are equally entitled to enforcement in other jurisdictions.' Wright, Miller Kane, Federal Practice and Procedure, Civil 3d § 4442, p. 236.

"Accordingly, Mr. Knight and Mr. Lyons are bound by the terms of their default judgments and cannot now claim that the debt that they admitted was valid and due to be paid is now invalid."

Wright's treatise distinguishes the effect of a default judgment as to issue preclusion versus claim or defense preclusion:

"Judgment by default commands the full effects of claim and defense preclusion. Judgment by default in the technical sense that the issues have not been litigated does not warrant issue preclusion for the very reason that the issues have not been litigated or decided."

18A Charles Alan Wright, Arthur R. Miller Edward H. Cooper, Federal Practice and Procedure § 4442 (2d ed. 2002).

Under Alabama caselaw, we look not only to those claims or defenses that were raised, but also to those that could have been raised. A.B.C. Truck Lines, Inc. v. Kenemer, 247 Ala. 543, 547, 25 So.2d 511, 514 (1946) ("There is a good exposition of the doctrine in 2nd Black on Judgments, where it is first noted that `it is a general rule that a valid judgment for the plaintiff definitely and finally negatives every defense that might and should have been raised against the action; and this is true, not only with respect to further or supplementary proceedings in the same cause, but for the purposes of every subsequent suit between the same parties, whether founded upon the same or a different cause of action. "A party cannot relitigate matters which he might have interposed, but failed to do, in a prior action between the same parties or their privies in reference to the same subject-matter. . . ." `2nd Black on Judgments, § 754."); Ashurst v. Preferred Life Assurance Soc'y of Montgomery, 282 Ala. 119, 129-30, 209 So.2d 403, 411-12 (1968) ("We have a number of cases which, in effect, hold that the doctrine of res judicata is far broader than the determination of the question directly involved in the prior action, and the prior judgment extends to all questions falling within the scope of the original action, and which could have been presented by exercising due diligence, and extends to both the claim and the defense."); and Owen v. Miller, 414 So.2d 889, 890 (Ala. 1981) ("Furthermore, if plaintiff wins, defendant is barred from raising any defense that could have been litigated in the former action, regardless of whether it was actually litigated, if the matter constitutes a ground for an action against plaintiff." (paraphrasing Restatement (Second) of Judgments)).

Knight, Lyons, and Richard could have asserted the" defense of illegality of the loan as a defense to the prior actions against them by Cash Express; they are now precluded from using those same available defenses as the basis of a cause of action against the former plaintiff in those actions.

On appeal the plaintiffs argue that claim or defense preclusion should not prevent Knight, Lyons, and Richard from pursuing their claims against Cash Express because they each had multiple loan transactions with Cash Express and the default judgments and consent judgment addressed only one loan transaction of each plaintiff. However, Cash Express shows that this argument was not made in the trial court. "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." Andrews v. Merritt Oil Co., 612 So.2d 409, 410 (Ala. 1992). Therefore, the trial court's judgment as to this issue is due to be affirmed.

Other Issues

The plaintiffs filed a motion for a summary judgment as to Cash Express's liability based on this Court's holding in Austin v. Alabama Check Coshers Ass'n, 936 So.2d 1014 (Ala. 2005). The trial court "failed to grant" that motion, and the plaintiffs argue that, because this case is identical to Austin, the judgment of the trial court should be reversed. They make no legal argument, however, showing the similarity of the two cases, nor do they explain how persons who are not qualified to bring an action, as is the case with certain of the plaintiffs, would be qualified under Austin. Thus, we decline to consider this claim.

The plaintiffs' final argument is that Judge Kimberley's recusal was forced by Cash Express's improper "judge-shopping." The plaintiffs contend that Cash Express hired Judge Kimberley's former law partner specifically to force Judge Kimberley to recuse himself from the case, but they provide only a sequence of events and conjecture to support their claim. They did not challenge the former law partner's notice of appearance, nor did they raise the issue of purported judge-shopping in the trial court. 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. Rodriguez-Ramos v. J. Thomas Williams, Jr., M.D., P.C., 580 So.2d 1326 (AJa. 1991).

Conclusion

We agree that the Martins were judicially estopped from bringing their claims against Cash Express, and we affirm the judgment of the trial court as to them. Knight, Lyons, and Richard were precluded from pursuing claims that they could have raised as defenses in the previous actions brought by Cash Express against them that ended in default or consent judgments. Therefore, as to them, the judgment of the trial court is affirmed.

AFFIRMED.

COBB, C.J., and LYONS, WOODALL, STUART, SMITH, BOLIN, MURDOCK, and SHAW, JJ., concur in the result.