                                   COURT OF APPEALS
                                EIGHTH DISTRICT OF TEXAS
                                     EL PASO, TEXAS

                                                §
 JASON FERGUSON and                                             No. 08-07-00051-CV
 BOBBIE FERGUSON,                               §
                                                                    Appeal from
                        Appellants,             §
                                                                 95th District Court
 v.                                             §
                                                              of Dallas County, Texas
 BUILDING MATERIALS                             §
 CORPORATION OF AMERICA,                                          (TC # 06-12009)
 CPC LOGISTICS, INC., and                       §
 ROBERT JAMES MATTOX,
                                                §
                        Appellees.


                                          OPINION

       Jason and Bobbie Ferguson appeal the summary judgment granted in favor of Building

Materials Corporations of America (BMCA), CPC Logistics, Inc. (CPC), and Robert James Maddox

(collectively “Appellees”). We must decide whether the Fergusons’ failure to list a personal injury

claim in their bankruptcy schedules forecloses their claims. Because we believe it must, we affirm.

                                      FACTUAL SUMMARY

       On March 26, 2005, a tractor-trailer driven by Maddox collided with a vehicle and careened

into a building in which Jason Ferguson was standing, causing it to collapse around him. The

Fergusons filed suit against Appellees on April 12, 2005. While the lawsuit was still pending, the

Fergusons filed a voluntary petition for bankruptcy under Chapter 13. As part of the bankruptcy

proceedings, the Fergusons completed a “Statement of Financial Affairs” form on June 8, 2005,

listing their lawsuit and noted its status as pending. They participated in a Section 341 creditors

meeting with the bankruptcy trustee on July 12, 2005. The report from that meeting indicated the
Fergusons had a pending lawsuit in which they were the plaintiffs and bore the notation “filed suit

on car wreck; requested pleadg.” Also on June 8, 2005, the Fergusons completed their Debtor’s

Schedules. Schedule B required them to list their personal property, but they omitted the personal

injury claims. On February 15, 2006, the Debtor’s Final Chapter 13 Plan and Motion for Valuation

was completed. It listed the Fergusons’ secured and unsecured creditors, required the Fergusons to

pay $16,980, and estimated payment of 7.25 percent toward general unsecured claims. On May 16,

2006, the bankruptcy court approved the plan.

       On June 26, 2006, BMCA filed a motion for summary judgment claiming the Fergusons’

lawsuit was barred by judicial estoppel because they had failed to identify their claims as assets in

the bankruptcy schedules. CPC and Maddox followed with their own motion. The trial court

granted both motions in separate orders. The Fergusons bring one issue for review, contending that

judicial estoppel is inapplicable.

                                     JUDICIAL ESTOPPEL

       The Fergusons contend judicial estoppel is inapplicable since they informed their bankruptcy

attorney, their bankruptcy trustee, and the bankruptcy court about the personal injury lawsuit. The

lawsuit was listed in the Statement of Financial Affairs, but it was omitted from Schedule B. The

Fergusons claim the omission was inadvertent, unintentional, and a mere clerical error. They have

since filed an amended Schedule B.
                                       Standard of Review

       “Summary judgment is appropriate when there is no genuine issue as to any material fact and

judgment should be granted in favor of the movant as a matter of law.” Diversicare General

Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005). A defendant moving for summary

judgment based on an affirmative defense must conclusively prove all of the elements of the

affirmative defense. KPMG Peat Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d

746, 748 (Tex. 1999); Mitchell v. Fort Davis State Bank, 243 S.W.3d 117, 122 (Tex.App.--El Paso

2007, no pet.). When reviewing a motion for summary judgment, we must assume all of the

evidence favorable to the non-movant is true, indulge every reasonable inference in favor of the non-

movant, and resolve any doubts in favor of the non-movant. Edwards v. Mesa Hills Mall Co. Ltd.

Partnership, 186 S.W.3d 587, 590 (Tex.App.--El Paso 2006, no pet.). Where the trial court does

not specify the grounds upon which summary judgment is granted, as in this case, we must affirm

if any of the grounds are meritorious. FM Properties Operating Co. v. City of Austin, 22 S.W.3d

868, 872 (Tex. 2000).

                               Requirements of Judicial Estoppel

       Since judicial estoppel was raised in the context of a bankruptcy case, we apply federal law.

In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999). Judicial estoppel is “a common law

doctrine by which a party who has assumed one position in his pleadings may be estopped from

assuming an inconsistent position.” Id., citing Brandon v. Interfirst Corp., 858 F.2d 266, 268 (5th

Cir. 1988). The purpose of the doctrine is to protect the integrity of the judicial process by

preventing parties from playing “fast and loose” with the courts for their own self interests. Id.

Thus, the doctrine is intended to protect the judicial system rather than litigants. Id. The policies

underlying the doctrine include “preventing internal inconsistency, precluding litigants from playing
fast and loose with the courts, and prohibiting parties from deliberately changing positions according

to the exigencies of the moment.” Id. at 206, citing United States v. McCaskey, 9 F.3d 368, 378 (5th

Cir. 1993). The doctrine is generally applied when intentional self-contradiction is used to obtain

an unfair advantage. Id.

         Application of the doctrine is a matter of regional circuit law. See Minnesota Mining and

Manufacturing Company v. Chemque, Inc., 303 F.3d 1294 (Fed.Cir. 2002)(Citing In re Coastal

Plains, the court stated that the law of the Fifth Circuit applied.). The Fifth Circuit has recognized

three particular requirements for the doctrine of judicial estoppel. The party is judicially estopped

if: (1) its position is clearly inconsistent with the previous one; (2) the court accepted the previous

position; and (3) the non-disclosure was not inadvertent. In re Superior Crewboats, 374 F.3d 330,

335 (5th Cir. 2004); In re Coastal Plains, 179 F.3d at 206 & 210. Judicial acceptance “means only

that the first court has adopted the position urged by the party, either as a preliminary matter or as

part of a final disposition.” Id. at 206, citing Reynolds v. Commissioner of Internal Revenue, 861

F.2d 469, 473 (6th Cir. 1988). A debtor’s failure to disclose is “inadvertent” only when, in general,

the debtor either lacks knowledge of the undisclosed claims or has no motive for concealment. In

re Coastal Plains, 179 F.3d at 210.

                                                   Duty to Disclose

         A debtor has an express, affirmative duty to disclose all assets including contingent and

unliquidated claims. Id. at 208; see 11 U.S.C. § 521 (a)(1)(2005).1 A debtor’s duty to disclose is

a continuing duty, and requires that a debtor disclose all potential causes of action. Id. The

bankruptcy system depends on full disclosure by debtors because the interests of both the creditors,


         1
           Debtor shall file a list of creditors and unless the court orders otherwise a schedule of assets and liabilities;
a schedule of current income and current expenditures, and a statement of the debtor’s financial affairs. See 11 U.S.C.
§ 521 (a)(1)(A) & (B)(i),(ii),(iii)(2005).
who plan their actions based on the supplied disclosure statements, and the bankruptcy court, which

decides whether to approve the plan of reorganization on the same basis, are impaired when

disclosure is incomplete. Id. Debtors are also obligated to update their schedules as necessary to

assure full disclosure. In re Superior Crewboats, 374 F.3d at 333.

                                    Clearly Inconsistent Position

        Under the Bankruptcy Code, the Fergusons were required to file a schedule of assets and

liabilities, a schedule of current income and current expenditures, and a statement of the debtor’s

financial affairs. See 11 U.S.C. § 521 (a)(1)(A) & (B)(i),(ii),(iii)(2005). On June 8, 2005, the

Fergusons listed the lawsuit under “Suits and administrative proceedings, executions, garnishments

and attachments” in their Statement of Financial Affairs. They provided the cause number, listed

the nature of the case as a “civil proceeding,” identified the trial court as the 95th Judicial District

Court in Dallas County, and noted the status as pending. The same day, they completed the

Debtor’s Schedules. They did not list the lawsuit in their “Schedule B” which listed all of their

personal property. Both the Statement of Financial Affairs and the schedules were signed under

penalty of perjury.

        Appellees contend that the Fergusons’ failure to disclose the lawsuit as an asset in their

bankruptcy schedule is a prior inconsistent position. They rely upon a multitude of cases holding

that debtors who failed to disclose claims in bankruptcy filings were judicially estopped. See Jethroe

v. Omnova Solutions, Inc., 412 F.3d 598, 600 (5th Cir. 2005)(under penalty of perjury, debtor

marked “X” in column indicating she had no “other contingent and unliquidated claims of [any]

nature, and indicated she had no pending “suits and administrative proceedings,” thus, debtor

concealed lawsuit while bankruptcy case remained open); In re Superior Crewboats, Inc., 374 F.3d

330, 335 (5th Cir. 2004)(debtors omission of personal injury claim from their mandatory bankruptcy
filings was tantamount to a representation that no such claim existed); In re Coastal Plains, 179 F.3d

197, 210 (5th Cir. 1999)(debtors omission of claims from schedules and stipulation represented that

none existed); Horsley-Layman v. Adventist Health System/Sunbelt, Inc., 221 S.W.3d 802, 807-08

(Tex.App.--Fort Worth 2007, pet. denied)(although debtor argued the bankruptcy court was aware

of her claims because she mentioned them in motions with the court, debtor had a duty to amend her

bankruptcy schedules and by omitting the claim from her schedules she represented that no such

claim existed); Brown v. Swett & Crawford of Texas, Inc., 178 S.W.3d 373, 381 (Tex.App.--Houston

[1st Dist.] 2005, no pet.)(debtor’s bankruptcy petition in which he stated he had assets under $50,000

clearly conflicted with his claims that he was entitled to receive a $79,700 bonus); Dallas Sales Co.

Inc. v. Carlisle Silver Co., Inc., 134 S.W.3d 928, 932 (Tex.App.--Waco 2004, pet. denied)(debtor

failed to list lawsuit claims as assets in bankruptcy schedule, and debtor had knowledge of claims

at time when could have amended schedules but did not do so); Cleaver v. Cleaver, 140 S.W.3d 771,

773 &775 (Tex.App.--Tyler 2004, no pet.)(debtor was judicially estopped from claiming trust

account interest where debtor listed divorce action in statement of financial affairs but failed to list

the suit in its schedule of assets and bankruptcy was discharged); Stewart v. Hardie, 978 S.W.2d 203,

208 (Tex.App.--Fort Worth 1998, pet. denied)(debtor’s claim accrued prior to filing his bankruptcy

petition and debtor did not file suit until two months after bankruptcy was discharged).

        The Fergusons counter that their disclosure of the suit in the Section 341 creditors meeting

and in the amended Schedule B distinguish this case from those we have just described. The

creditors meeting was held on July 12, 2005, and the Fergusons tendered a certified copy of the

hearing report. The hearing officer noted the Fergusons had a pending lawsuit in which they were

a plaintiff or counter-claimant. The report stated the name and telephone number of trial counsel,

as well as the notation “filed suit on car wreck; requested pleadg.” The Fergusons also provided the
affidavit of Angela Allen, staff attorney for Tim Truman, the bankruptcy trustee. Allen stated that

the Fergusons had disclosed their personal injury lawsuit to the hearing officer at the Section 341

creditors meeting and had filed amended Schedules B and C on July 5, 2006. Her office has received

the amended schedules and was fully aware of the lawsuit. According to Allen, the Fergusons

submitted a request to modify their confirmed Chapter 13 plan to pay 100 percent of all unsecured

creditors’ claims.2

       Significantly, the creditors meeting and the scheduling amendments occurred after Appellees

filed their motions for summary judgment. Moreover, persuasive authority holds that disclosure

during the Section 341 meeting is insufficient. In re Superior Crewboats, 374 F.3d at 336 n.4.3

“The courts will not permit a debtor to obtain relief from the bankruptcy court by representing that

no claims exist and then subsequently to assert those claims for his own benefit in a separate


       2
           Allen’s affidavit also stated:

       During a pending Chapter 13 Bankruptcy, all settlements or judgments of personal injury claims must
       be approved by my office, the Standing Chapter 13 Trustee, and the Court before any disbursement
       may be made. My office would object and not approve any personal injury settlement or judgment
       to be dispersed unless any non-exempt portion of the proceeds satisfied all unsecured proof of claims
       filed in this or any other bankruptcy case that Mr. Tim Truman is appointed as the Standing Chapter
       13 Trustee. In this instant case, I would object to any non-exempt personal injury settlement or
       judgment that did not propose to pay the unsecured creditors.

       3
           In Footnote 4, the Fifth Circuit stated in relevant part:

       The district court placed significant weight on the disclosure of the claim to the trustee at the creditors’
       meeting on July 12, 2001, concluding that once the trustee became aware of the claim, he had an
       affirmative duty to investigate its viability before discharging it. Thus, in the district court’s view,
       scheduling the asset, without more, would not have altered the outcome. See Superior I, 2003 W L
       133228 at *6. The district court’s reasoning misses the mark.

                                                     .       .         .

       The Eleventh Circuit rejected the bankruptcy court’s reasoning, relied on by the district court here,
       that the trustee’s lack of diligence in pursuing the claim excused the debtor’s dishonesty. Rather, the
       court found that the ‘foremost responsibility in this matter was for Barger to fully disclose her assets.
       She did not satisfy her duty. Instead, she dissembled to the trustee and indicated her discrimination
       claim had no monetary value. As such, the trustee can hardly be faulted for not further investigating
       Barger’s discrimination suit.’ Id., citing In re Barger, 279 B.R. 900 (Bankr.N.D.Ga.2002). The
       present case is no different.
proceeding.” Cleaver, 140 S.W.3d at 774, citing Browning Mfg., 179 F.3d at 208. Nor are we

inclined to hold that the Fergusons may avoid judicial estoppel by filing an amended Schedule B.

An amendment, filed only after challenge by an adversary, suggests that a debtor should consider

disclosing potential assets only if caught concealing them. In re Superior Crewboats, 374 F.3d at

336, citing Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1288 (11th Cir. 2002). We thus

conclude that the Fergusons took a clearly inconsistent position.

                                    Position Accepted by Court

       We need address this second requirement only briefly. The Fergusons, in essence, claim “no

harm, no foul” because they amended Schedule B such that their creditors ultimately recovered 100

percent on their claims. Because their debts were not discharged, they argue that the bankruptcy

court never accepted their clearly inconsistent position. The Fifth Circuit has determined that the

second element of judicial estoppel is satisfied when a bankruptcy court confirms a plan in a Chapter

13 proceeding. Jethro, 412 F.3d at 600.

                                  Unintentional and Inadvertent

       To prove that a failure to disclose was inadvertent, the Fergusons must establish either that

they did not know of the inconsistent position or that they had no motive to conceal it from the court.

Id. at 600-01. The first prong of inadvertence looks to the debtors’ knowledge of the claims. Guerra

v. Lehman Commercial Paper, Inc., No. H-06-1444, 2007 WL 419517 *6 (S.D.Tex. Feb. 5, 2007).

The Fergusons readily concede knowledge. We turn now to the tipping point of this case: Did the

Fergusons have a motive to conceal the claim?

       “The courts frequently observe that a debtor who obtains a confirmation based on schedules

that do not disclose contingent claims that are subsequently asserted have a motive to conceal those

claims from the bankruptcy court.” Id., citing In re Coastal Plains, 179 F.3d at 212-13. The
Fergusons’ bankruptcy plan, confirmed by the bankruptcy court, entitled creditors to some seven

cents on the dollar. Once the motions for summary judgment were filed and the schedules amended,

the creditors were to be compensated dollar for dollar. Appellees contend that this more than

demonstrates a motive to conceal.

        The Fergusons respond that while it may be an objective motive, we must nevertheless

consider their subjective motivation. The record contains an affidavit from their bankruptcy attorney

acknowledging the scheduling error and calling it a simple clerical mistake. Similar claims have

been unsuccessfully argued in other cases:

        If [the debtor] ‘chose poorly’ in his selection of counsel, such does not provide relief
        here. The Court finds that the conduct of [the debtor] does not operate to relieve him
        of the harsh consequences resulting from application of the doctrine. Some cases
        have not foreclosed debtors from pursuing claims not previously disclosed. See
        generally, Pealo v. AAF McQuay, Inc., 140 F.Supp.2d 233 (N.D.N.Y. 2001); Ryan
        Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355 (3rd Cir. 1996)
        (requiring a showing of intentional fraud). However, these cases are inapposite to the
        rule of law in this circuit.

Estel v. Bigelow Management, Inc., 323 B.R. 918, 923 (E.D.Tex. 2005).

        We turn now to a decision from the Northern District of Texas, which the Fergusons claim

defeats summary judgment. See Wakefield v. SWS Securities, Inc., 293 B.R. 372 (N.D. Texas 2003).

Applying a purely objective standard, the bankruptcy court held that Wakefield did not have a motive

to conceal because, “objectively, [Wakefield’s] concealment and subsequent discharge would have

had no effect on such claim because it was owned by him and not by his estate . . . .” Id. at 379. In

vacating and remanding, the district court concluded that the bankruptcy court had erred in

construing the “motive test” as purely objective, “devoid of any subjective component.” Id. at 380.

Because subjective intent is part of the equation, the Fergusons contend they have raised a genuine

issue of material fact.
       Wakefield is noteworthy for its peculiar fact pattern. Wakefield was a securities broker who

had worked for several companies before joining SWS Securities. At each position, he obtained

advances against commissions that were forgiven over a negotiated period of time. A broker who

leaves employment before the loan is forgiven becomes obligated to pay the balance. Wakefield

owed money to two brokerage firms during his employment with SWS. One of these debts was

arbitrated by the National Association of Securities Dealers and Wakefield was ordered to pay

$90,675. He was notified that his broker’s license would be suspended unless he paid the award,

made arrangements for payments, or demonstrated that he had filed for bankruptcy. When

Wakefield told his branch manager that he might need to file for bankruptcy, the manager cautioned

that filing would be grounds for termination. Wakefield filed under Chapter 7 and was terminated.

SWS had creditor status in the bankruptcy because Wakefield owed the firm $98,300 for a front-

money loan. On the date of discharge, Wakefield learned that he had a potential claim under Section

525(b) of the Bankruptcy Code. His attorney declined to represent him in that litigation and his

successor attorney opted to file a motion to reopen the bankruptcy case to bring the litigation in

bankruptcy court. When he pursued an adversary proceeding alleging claims of discrimination in

violation of Section 525(b), SWS asserted the defense of judicial estoppel, contending that

Wakefield had failed to include the claim in his bankruptcy schedules. The bankruptcy court

rejected the defense and found that SWS had violated Section 525(b) by terminating Wakefield’s

employment solely because he had filed for bankruptcy protection. On appeal, SWS complained that

the bankruptcy court had improperly applied an objective standard to ascertain whether Wakefield

had a motive to conceal his discrimination claim. Simply stated, the bankruptcy court found that

Wakefield had no objective motive to conceal an asset that did not need to be disclosed since it was

a personal asset and not part of the bankruptcy estate. Wakefield, 293 B.R. at 379. The district court
disagreed, concluding “that an assessment of Wakefield’s motive not to disclose his § 525(b) claim

must include subjective considerations.” Id. at 381.

        On remand, the bankruptcy court determined that Wakefield could have no objective motive

to conceal because the claim did not exist as of the commencement of the case. See Wakefield v.

Southwest Securities, Inc., 312 B.R. 333, 340 (N.D. Texas 2004). And because he had no obligation

to file an amended schedule to list the claim, he lacked a subjective motive as well. Id. at 342. In

a not-so-subtle aside, the court explained the distinction. “The importance of reading the Bankruptcy

Code as a whole cannot be overstated.” Id. at 338. Chapter 13 cases impose different obligations

on a debtor than Chapter 7 cases. Id. Under Chapter 13, the bankruptcy estate includes property

acquired after the petition is filed but before the case is closed, dismissed, or converted. Id. For that

reason, the Chapter 13 debtor has a continuing duty to disclose. These provisions have no

application in Chapter 7 proceedings. Id. Indeed, Wakefield has been discounted where an objective

motive exists. See Benton v. Ryan’s Family Steakhouse, 222 F.R.D. 112, 114. (S.D. Miss.

2004)(finding reliance on Wakefield misplaced where the debtor plainly had motive to conceal her

claims from the standpoint of an objective analysis).

        Moreover, were a subjective analysis required in every case, summary judgments would be

universally unavailable. The shear plethora of cases in the Fifth Circuit upholding summary

judgment on virtually identical facts belies this assertion. For all of these reasons, we overrule the

Fergusons’ sole point. The judgment of the trial court is affirmed.



June 12, 2008
                                                        ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Carr, JJ.
Chew, C.J., dissenting
                                D I S S E N T I N G O P I N I ON

        The majority opinion follows the “shear plethora of cases in the Fifth Circuit upholding

summary judgments on virtually identical facts.” I must respectfully dissent because I believe those

authorities to be an unconscionable insistence on form that enforces a penalty disproportionate to

the primary obligation of a debtor in bankruptcy.

        11 U.S.C. § 521 provides that: “[t]he debtor shall - (1) file a list of creditors, and unless the

court orders otherwise, a schedule of assets and liabilities, a schedule of current income and current

expenditures, and a statement of the debtor’s financial affairs.” The law suit here was reported in

the statement of financial affairs, but initially omitted in the schedule of assets and liabilities.

        “Official Form 6 - Schedules” provides an alphabet of fill-in-the-blank schedules, – A

through J. The initial omission in this case occurred in “Schedule B-Personal Property” which

itemizes 35 types of personal property. As a “contingent and unliquidated claim” the appellant’s law

suit apparently should have been listed under item “18. Equitable or future interests, life estates, and

rights or powers exercisable for the benefit of the debtor other than those listed in Schedule of Real

Property.” It was not listed in the initial filing. It appears that the amended Schedule B listed the

law suit under item “18 - Other liquidated debts owing debtor including tax refunds.”

        “Official Form 7 - Statement of Financial Affairs” is a series of 25 fill-in-the blank questions.

Question 4 is titled:     “Suits and administrative proceedings, executions, garnishments and

attachments[.]” In the initial bankruptcy petition, the appellants disclosed the pending lawsuit in that

question, providing the caption and style of the suit, nature, court and status.

        I simply do not believe that an omission on a fill-in-the blank government form, whether a

bankruptcy form, a naturalization petition or a liquor license application, standing alone, can be the
basis, as a matter of law, of a prior inconsistent position that would support judicial estoppel. It also

seems to me that, in fact, there was no omission in their basic reporting obligation as debtors under

11 U.S.C. § 521; the law suit was listed in the Statement of Financial Affairs. Finally, as I

understand the purpose of judicial estoppel, it is to protect the integrity of the judicial system and

not the litigants. I find nothing in the facts of this case to suggest that the integrity of the judicial

system, specifically the bankruptcy case, was breached in any material way.

        I respectfully dissent.


June 12, 2008
                                                        DAVID WELLINGTON CHEW, Chief Justice
