ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEES
Joshua E. McAfee                                      ANONYMOUS PHYSICIAN #1 AND
McAfee Law, LLC                                       ANONYMOUS PHYSICIAN #2
Bloomington, Indiana
                                                      Joseph C. Klausing
                                                      Stephanie L. Caldwell
                                                      O’Bryan, Brown & Toner, PLLC
                                                      Louisville, Kentucky
                                                      ANONYMOUS PHYSICIAN #3
                                                      Adriana Katzen
                                                      James F. Bleeke
                                                      Bleeke Dillon Crandall
                                                      Indianapolis, Indiana
                                                      ANONYMOUS NURSE PRACTITIONER
                                                      David G. Field
                                                      Michael F. Mullen
                                                      Schultz & Pogue, LLP
                                                      Indianapolis, Indiana
                                                      ANONYMOUS CORPORATION AND
                                                      ANONYMOUS HOSPITAL
                                                      Anthony L. Holton
                                                      Wilkinson, Goeller, Modesitt,
                                                      Wilkinson & Drummy, LLP
                                                      Terre Haute, Indiana                 Feb 19 2016, 9:02 am




                                           IN THE
    COURT OF APPEALS OF INDIANA




Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016            Page 1 of 17
      Richard W. Lorenz and any                             February 19, 2016
      Successor Trustee, as Trustee, of                     Court of Appeals Case No.
      the Bankruptcy Estate of Willie                       28A01-1501-CT-50
      R. Gauldin,                                           Appeal from the Greene Superior
      Appellant,                                            Court
                                                            The Honorable Dena Martin, Judge
              v.
                                                            Trial Court Cause No.
                                                            28D01-1407-CT-14
      Anonymous Physician #1, et al.,
      Appellees




      Robb, Judge.



                               Case Summary and Issues
[1]   Willie Gauldin filed for Chapter 7 bankruptcy in July 2012 and was discharged

      in November 2012. In March 2014, Gauldin filed with the Indiana Department

      of Insurance a proposed complaint for medical malpractice against Anonymous

      Physician #1, Anonymous Physician #2, Anonymous Physician #3,

      Anonymous Nurse Practitioner, Anonymous Hospital, and Anonymous

      Corporation (collectively, the “Medical Providers”), alleging acts of negligence

      occurring in March and April 2012. The Medical Providers filed motions for

      preliminary determination in the trial court seeking to have the proposed

      complaint dismissed because the medical malpractice claim had not been

      included as a possible asset in the bankruptcy. Richard W. Lorenz, the trustee

      of Gauldin’s bankruptcy estate (the “Trustee”), thereafter filed a motion for

      relief from judgment in the bankruptcy court. The bankruptcy court granted the

      Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016         Page 2 of 17
      motion, reopened the bankruptcy, and reappointed the Trustee. The Trustee

      sent an amended proposed medical malpractice complaint naming the Trustee

      as plaintiff to the Department of Insurance and also moved the trial court to

      substitute the Trustee as the real party in interest. The trial court did not rule on

      the motion to substitute but granted the Medical Providers’ motions for

      preliminary determination and ordered the proposed complaint be dismissed.


[2]   The Trustee now appeals, raising the following consolidated and reordered

      issues for our review: 1) whether the trial court had subject matter jurisdiction

      to rule on the motions for preliminary determination after the bankruptcy court

      reopened the bankruptcy; and 2) if so, whether the trial court erred in

      dismissing the proposed complaint. Concluding the trial court had jurisdiction

      to rule on the motions but erred in dismissing the proposed complaint, we

      reverse.



                            Facts and Procedural History
[3]   On March 30, 2012, Gauldin began feeling ill. Over the course of the next

      several days, he was treated at Anonymous Hospital and Anonymous

      Corporation by Anonymous Physician #1, Anonymous Physician #2,

      Anonymous Physician #3, and Anonymous Nurse Practitioner. Ultimately,

      Gauldin was admitted to Bloomington Hospital in acute renal failure. By the

      time Gauldin was discharged, he had incurred medical expenses of

      approximately $190,000.00 and was unable to continue working as a truck

      driver due to disability.

      Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016   Page 3 of 17
[4]   On August 22, 2012, Gauldin and his wife filed a Voluntary Petition for

      Chapter 7 bankruptcy protection in the United States Bankruptcy Court for the

      Southern District of Indiana. The assets listed on Schedule B – Personal

      Property included automobiles, household goods, and bank accounts worth

      approximately $8,000.00. Under “[o]ther contingent and unliquidated claims

      of every nature,” Gauldin listed “none.” Appellant’s Appendix at 23.1 He

      listed debts of $194,536.74, including his medical debts from March and April

      of 2012. Lorenz was named trustee of the bankruptcy estate. Based on the

      Trustee’s report to the court that there was no property available for

      distribution, the bankruptcy court entered an Order in No Asset Case on

      November 2, 2012, ordering the scheduled property of the estate be abandoned,

      any secured creditors be granted relief from the stay, and the Trustee be

      discharged. On November 27, 2012, the bankruptcy court granted a discharge

      of debtors and the bankruptcy case was closed.


[5]   On March 28, 2014, Gauldin filed with the Department of Insurance a

      proposed complaint for damages alleging medical malpractice by the Medical

      Providers during their treatment of him in March and April of 2012. On July



      1
        We note that Anonymous Physicians #1 and #2 have filed an Appellee’s Appendix, as have Anonymous
      Physician #3 and Anonymous Nurse Practitioner. Although each of these appendices includes some
      documents not included in the Appellant’s Appendix, each also includes documents that were included in
      Appellant’s Appendix. Indiana Appellate Rule 50(A)(3) specifically states that an appellee’s appendix “shall
      not contain any materials already included in appellant’s Appendix . . . .” Although we understand the
      repetition between the two appellees’ appendices, as they were filed at virtually the same time, there was no
      reason for either to include documents the Appellant included in its appendix. For instance, in the three
      appendices, Gauldin’s eighty-five-page original bankruptcy petition appears in its entirety four times. In all
      cases, but especially in a case such as this with three separate appendices, the omission of documents already
      available to the court is important to facilitating our review.

      Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016                        Page 4 of 17
      14, 2013, Anonymous Physicians #1 and #2 filed in the trial court a Petition

      for Preliminary Determination and Motion for Summary Judgment. The

      petition alleged that because Gauldin failed to list a cause of action for medical

      malpractice in his bankruptcy petition filed after the alleged negligence

      occurred, he had no standing to pursue this cause of action. On July 29, 2014,

      Anonymous Physician #3 filed in the trial court a Motion for Preliminary

      Determination of Law to Dismiss [Gauldin’s] Proposed Complaint for

      Damages alleging the lawsuit was barred for lack of standing and also

      precluded on the basis of judicial estoppel. Anonymous Nurse Practitioner

      later joined in Anonymous Physician #3’s motion.2


[6]   On July 28, 2014, Lorenz, as trustee of Gauldin’s bankruptcy estate, filed in the

      bankruptcy court a Motion to Reopen Bankruptcy Case and Motion for Relief

      from the November 2, 2012 Order in No Asset Case. On July 29, 2014, the

      bankruptcy court granted the Motion for Relief from Judgment and also

      granted the Motion to Reopen Bankruptcy Case. The case was reopened and

      Lorenz was reappointed Trustee of the bankruptcy estate. On August 1, 2014,

      Gauldin filed in the bankruptcy court an amended Schedule B, which, under

      “[o]ther contingent and unliquidated claims of every nature,” now included

      “[p]ossible collection from proposed complaint for damages with the State of

      Indiana Department of Insurance for injuries sustained prior to the filing of the




      2
        Anonymous Corporation and Anonymous Hospital did not file any motions in the trial court but have filed
      a joint brief in this appeal.

      Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016                   Page 5 of 17
      bankruptcy case, and which claim is an asset of this bankruptcy estate.”

      Appellant’s App. at 160. The value of the claim was listed as unknown. On

      August 7, 2014, an Amended Proposed Complaint for Damages was filed with

      the Department of Insurance listing “Richard W. Lorenz, Trustee of the

      Bankruptcy Estate of Willie R. Gauldin” as the plaintiff. And on August 8,

      2014, Gauldin filed in the trial court a Motion for Substitution of Real Party in

      Interest seeking to have Lorenz, as Trustee, substituted for Gauldin.


[7]   The trial court held a hearing on December 8, 2014, at which it considered the

      two motions for preliminary determination and the motion for substitution. On

      January 14, 2015, the trial court issued an order granting the petitions for

      preliminary determination and ordering the proposed complaint be dismissed

      with prejudice. The trial court did not rule on the motion for substitution.3 The

      Trustee now appeals.




      3
       Because the trial court did not rule on the motion for substitution, Gauldin filed a notice of appeal in his
      own name and simultaneously filed a motion for substitution of real party in interest seeking to substitute the
      Trustee as appellant. This court granted the motion to substitute on February 20, 2015.
      On May 18, 2015, Lorenz’s appointment as Trustee was revoked due to his resignation, and Lou Ann
      Marocco was named Successor Trustee. On Lorenz’s motion and by order of this court dated July 13, 2015,
      the appellant in this case is now “Richard W. Lorenz and any Successor Trustee, as Trustee of the
      Bankruptcy Estate of Willie R. Gauldin.”

      Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016                         Page 6 of 17
                                 Discussion and Decision
                                I. Trial Court’s Jurisdiction
[8]   In most instances, the Medical Malpractice Act (the “Act”) requires that before

      a party may commence a medical malpractice action against a health care

      provider in an Indiana trial court, the party’s proposed complaint must first be

      presented to a medical review panel through the Department of Insurance, and

      the panel must render an opinion as to whether the defendant failed to act

      within the appropriate standard of care. Ind. Code § 34-18-8-4; Ind. Code § 34-

      18-10-22. Thus, a trial court does not generally have jurisdiction over a medical

      malpractice action until proceedings before the Department of Insurance

      conclude. However, the Act does give a trial court limited authority to assert

      jurisdiction over threshold issues while a proposed complaint is pending before

      the medical review panel. Haggerty v. Anonymous Party 1, 998 N.E.2d 286, 294

      (Ind. Ct. App. 2013); see also Ind. Code § 34-18-8-7(a)(3). The trial court may

      set a trial date, Ind. Code § 34-18-8-7(a)(3); dismiss the action for failure to

      prosecute, Ind. Code § 34-18-8-8; compel discovery, Ind. Code § 34-18-11-

      1(a)(2); or “preliminarily determine an affirmative defense or issue of law or

      fact that may be preliminarily determined under the Indiana Rules of

      Procedure[,]” Ind. Code § 34-18-11-1(a)(1). The effect of this section is to allow

      a trial court to dismiss a proposed action at an early stage in the proceedings.


[9]   The Trustee claims that, despite this authority to determine matters regarding

      affirmative defenses (such as standing and judicial estoppel), the trial court lost


      Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016   Page 7 of 17
       subject matter jurisdiction “[a]fter the bankruptcy court allowed Mr. Gauldin to

       cure his bankruptcy case and list his Medical Malpractice Complaint as an asset

       of the bankruptcy[.]” Appellant’s Brief at 30. The Trustee is mistaken.


[10]   “Subject matter jurisdiction exists when the Indiana Constitution or a statute

       grants the court the power to hear and decide cases of the general class to which

       any particular proceeding belongs.” R.L. Turner Corp. v. Town of Brownsburg,

       963 N.E.2d 453, 457 (Ind. 2012). “All standard superior courts have . . .

       original and concurrent jurisdiction in all civil cases and in all criminal cases[.]”

       Ind. Code § 33-29-1-1.5(1). The Medical Providers filed their motions for

       preliminary determination in Greene Superior Court, “a standard superior

       court as described in IC 33-29-1.” Ind. Code § 33-33-28-2(b). Indiana Code

       section 34-18-11-1 grants a court with jurisdiction over the subject matter the

       limited power to determine an affirmative defense or issue of law while a

       proposed complaint for medical malpractice is pending before the medical

       review panel. Therefore, notwithstanding the bankruptcy court’s actions, the

       trial court clearly had subject matter jurisdiction over the Medical Providers’

       motions for preliminary determination. Cf. West v. Wadlington, 933 N.E.2d

       1274, 1277 (Ind. 2010) (holding that a court with general authority to hear

       claims of defamation and invasion of privacy was “not ousted of subject matter

       jurisdiction [over those claims] merely because the defendant pleads a religious

       defense. Rather, pleading an affirmative defense like the Free Exercise Clause

       may under certain facts entitle a party to summary judgment.”) (emphasis in

       original). Whether and to what extent the trial court was obligated to defer to


       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016   Page 8 of 17
       the bankruptcy court’s determinations in exercising that jurisdiction will be

       discussed below.


                          II. Dismissal of Proposed Complaint
                                        A. Standard of Review
[11]   When evidence accompanies a motion for preliminary determination,4 the

       motion is akin to a motion for summary judgment. Haggerty, 998 N.E.2d at

       294. We review a summary judgment ruling by applying the same standard as

       the trial court: if the evidence shows there are no genuine issues of material fact

       and the moving party is entitled to judgment as a matter of law, summary

       judgment is appropriate. Ind. Trial Rule 56(C); Csicsko v. Hill, 808 N.E.2d 80,

       82-83 (Ind. Ct. App. 2004), trans. denied. We construe all facts and reasonable

       inferences from the designated evidence in the light most favorable to the non-

       moving party. Csicsko, 808 N.E.2d at 83. “When a pure question of law is

       presented, we review the matter de novo.” Hodge v. Johnson, 852 N.E.2d 650,

       652 (Ind. Ct. App. 2006), trans. denied. “A pure question of law is one that

       requires neither reference to extrinsic evidence, the drawing of inferences

       therefrom, nor the consideration of credibility questions for its resolution.”

       Bader v. Johnson, 732 N.E.2d 1212, 1216 (Ind. 2000) (quoting 4A Kenneth M.

       Stroud, Indiana Practice § 12.3 at 134 (2d ed. 1990)).




       4
        Anonymous Physicians #1 and #2 designated evidence in support of their motion for preliminary
       determination. The Trustee did likewise in its response to both motions for preliminary determination.

       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016                      Page 9 of 17
                                                B. Standing
[12]   The Bankruptcy Code provides that the bankruptcy estate consists of all legal or

       equitable interests of the debtor in property as of the commencement of the

       case. 11 U.S.C. § 541(a)(1). This includes any unliquidated assets, such as

       personal injury causes of action. Hammes v. Brumley, 659 N.E.2d 1021, 1025

       n.4 (Ind. 1995). Both motions for preliminary determination asserted that

       Gauldin had no standing to pursue this medical malpractice action because the

       cause of action was an asset of the bankruptcy estate.


[13]   Standing is similar to, though not identical with, the real party in interest

       requirement of Indiana Trial Rule 17. Beason-Strange-Claussen v. City of

       Hammond, 701 N.E.2d 1288, 1290 (Ind. Ct. App. 1998), trans. denied. Trial

       Rule 17(A) provides that “[e]very action shall be prosecuted in the name of the

       real party in interest.” “Standing refers to the question of whether a party has

       an actual demonstrable injury for purposes of a lawsuit.” Hammes, 659 N.E.2d

       1029. A party must have standing in order to invoke a court’s jurisdiction. Id.

       at 1029-30. “A real party in interest, on the other hand, is the person who is the

       true owner of the right sought to be enforced [and] is entitled to the fruits of the

       action.” Id. at 1030. “A party with standing and a real party in interest are not

       necessarily one and the same.” Krasnoff v. Educ. Res. Inst., No. 49A04-1501-CC-

       3, 2015 WL 5662525, at *3 (Ind. Ct. App. Sept. 24, 2015).


[14]   In the wake of a Chapter 7 bankruptcy, the bankrupt party is not the real party

       in interest to a personal injury lawsuit arising before or during the bankruptcy;


       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016   Page 10 of 17
       the trustee of the bankruptcy estate is. Hammes, 659 N.E.2d at 1030. However,

       the bankrupt party does have standing to sue because he is the party who

       sustained a direct injury as a result of the conduct at issue. Id.; see also Beason-

       Strange-Claussen, 701 N.E.2d at 1291 (“According to the rationale expressed in

       Hammes, Rebecca [as the debtor] was not the real party in interest [to her

       personal injury lawsuit]. Rebecca’s bankruptcy trustee was the real party in

       interest; however, Rebecca did have standing to sue. She had a demonstrable

       injury allegedly caused by the parties she was suing.”) (citations omitted).


[15]   Gauldin, as the party injured by the Medical Providers’ alleged negligence, has

       standing to sue because he suffered a direct injury as a result of the conduct at

       issue. However, because the negligence took place—and his cause of action

       accrued—before he filed for bankruptcy, his cause of action is an asset of his

       bankruptcy estate, and the Trustee is the real party in interest for purposes of

       prosecuting the action. To remedy this defect, Gauldin’s bankruptcy was

       reopened, and he moved to substitute the Trustee as plaintiff on the proposed

       complaint. Trial Rule 17(A)(2) provides,

               [n]o action shall be dismissed on the ground that it is not
               prosecuted in the name of the real party in interest until a
               reasonable time after objection has been allowed for the real
               party in interest to ratify the action, or to be joined or substituted
               in the action. Such ratification, joinder, or substitution shall have
               the same effect as if the action had been commenced initially in
               the name of the real party in interest.




       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016   Page 11 of 17
       By its clear language, Trial Rule 17 encourages allowing the real party in

       interest to be joined or substituted in the action, and such substitution relates

       back to the date the initial complaint was filed. Blackford v. Boone Cnty. Area

       Plan Comm’n, 43 N.E.3d 655, 667-68 (Ind. Ct. App. 2015). Thus, in Hammes,

       our supreme court held that “[b]ecause the [bankrupt] parties had standing to

       sue, but simply were not the real parties in interest, they should be permitted to

       amend their original complaints to add their respective bankruptcy trustees to

       be substituted as real parties in interest, and have that amendment relate back to

       the original filing . . . .” 659 N.E.2d at 1030.


[16]   Because Gauldin had standing to sue, he was allowed to amend his proposed

       complaint to name the Trustee as the real party in interest and have that

       amendment relate back to the time of the original filing.5 To the extent the trial




       5
           The appellees take varying positions regarding this issue on appeal.

       Anonymous Physicians #1 and #2 argue that, even though all pending motions were before the trial court
       and considered at the December 8, 2015, hearing, the fact the trial court granted the motions for preliminary
       determination and dismissed the proposed complaint without first ruling on the motion for substitution
       means the proper party to pursue the action was never before the trial court and the case was not commenced
       within the statute of limitations.
       Anonymous Physician #3 and Anonymous Nurse Practitioner seem to assume the proposed complaint was
       properly amended but argue that even the amended proposed complaint naming “Richard W. Lorenz,
       Trustee of the Bankruptcy Estate of Willie R. Gauldin” is not brought in the name of the real party in interest
       because Lorenz is no longer the trustee. This is a hyper-technical argument that fails to acknowledge it is the
       office or position of Trustee that is important, not the name of the specific person serving as trustee at any
       given time.
       Anonymous Corporation and Anonymous Hospital present their argument in this regard on the basis that the
       trial court denied Gauldin’s motion to substitute on its merits. See Joint Appellees’ Brief at 14-16. However,
       there is no support in the record for the assertion the trial court “exercised its discretion to deny leave to
       amend the pleadings.” Id. at 16. Rather, the trial court simply did not rule on the motion one way or the
       other, presumably because it believed granting the motions for preliminary determination rendered the
       motion moot.

       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016                       Page 12 of 17
       court granted the motions for preliminary determination based upon Gauldin’s

       lack of standing or failure to prosecute in the name of the real party in interest,6

       it erred.


                                            C. Judicial Estoppel
[17]   Anonymous Physician #3 and Anonymous Nurse Practitioner also alleged in

       their motion for preliminary determination that the proposed complaint should

       be dismissed pursuant to the doctrine of judicial estoppel. 7


[18]   It is a basic tenet of bankruptcy law that “all assets of the debtor, including all

       pre-petition causes of action belonging to the debtor, are assets of the

       bankruptcy estate that must be scheduled for the benefit of creditors.” Price v.

       Kuchaes, 950 N.E.2d 1218, 1227 (Ind. Ct. App. 2011) (quoting Kunica v. St. Jean

       Fin., Inc., 233 B.R. 46, 52 (S.D.N.Y. 1999)), trans. denied. Judicial estoppel is an

       equitable doctrine that prevents a litigant, absent a good explanation, from



       All of this, of course, assumes the trial court was required to grant Gauldin permission to amend his
       proposed complaint. Trial Rule 15(A) states that “[a] party may amend his pleading once as a matter of
       course at any time before a responsive pleading is served . . . . Otherwise a party may amend his pleading
       only by leave of court or by written consent of the adverse party . . . .” “A motion to dismiss does not qualify
       as a responsive pleading for the purposes of the trial rule.” Comer v. Gohil, 664 N.E.2d 389, 393 (Ind. Ct.
       App. 1996), trans. denied. As the motions for preliminary determination were, in effect, motions to dismiss,
       no responsive pleading had yet been filed to the proposed complaint, and Gauldin was entitled to amend the
       pleading without leave of court.
       6
        The trial court did not state the basis for its order granting the motions for preliminary determination and
       dismissing the proposed complaint.
       7
         Anonymous Physician #3 and Anonymous Nurse Practitioner allege in their brief that Gauldin waived
       appellate review of this issue by not raising it to the trial court. However, Gauldin was under no obligation
       to raise to the trial court or counter the Medical Providers’ affirmative defense on which they had the burden of
       proof in order to preserve error in the trial court’s ruling on it. Moreover, we note that their citation to
       Appellate Rule 46(A)(8)(a) is inapposite to their argument: that rule (and the case cited in support) concerns
       failure to adequately raise an issue on appeal.

       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016                         Page 13 of 17
       “gain[ing] an advantage by litigating on one theory and then pursu[ing] an

       incompatible theory in subsequent litigation.” Morgan Cnty. Hosp. v. Upham,

       884 N.E.2d 275, 280 (Ind. Ct. App. 2008) (citation omitted), trans. denied. It

       can be applied where a bankruptcy debtor fails to schedule or otherwise disclose

       a cause of action to the bankruptcy court and later seeks to recover on that

       action in state court. Price, 950 N.E.2d at 1227. Judicial estoppel applies only

       to intentional misrepresentation, so the dispositive issue is the bad faith intent

       of the litigant. Robson v. Tex. E. Corp., 833 N.E.2d 461, 466 (Ind. Ct. App.

       2005), trans. denied. “[J]udicial estoppel is not meant to be a technical defense

       for litigants seeking to derail potentially meritorious claims.” Id. (citing Ryan

       Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 365 (3d Cir. 1996)).


[19]   Under the United States Constitution, the federal government has the exclusive

       power to promulgate bankruptcy laws. U.S. Const., art. 1, § 8. Because

       bankruptcy law is exclusively federal, it preempts state law pursuant to the

       supremacy clause, and Indiana courts therefore have limited jurisdiction over

       matters relating to bankruptcy proceedings. See Goodman v. Serine, 6 N.E.3d

       481, 483-84 (Ind. Ct. App. 2014). When a bankruptcy court addresses a specific

       issue bearing on a state law claim, we should apply the bankruptcy court’s

       finding unless doing so would compromise Indiana’s legal framework. Holiday

       v. Kinslow, 659 N.E.2d 647, 649 (Ind. Ct. App. 1995).


[20]   A bankruptcy case may be re-opened at the bankruptcy court’s discretion.

       Hammes, 659 N.E.2d at 1028 (citing 11 U.S.C. § 350(b); Matter of Shondel, 950

       F.2d 1301, 1304 (7th Cir. 1991)). In Hammes, our supreme court addressed a

       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016   Page 14 of 17
       group of cases in which the debtors failed to list certain claims (including in one

       case a medical malpractice claim) as assets in their respective bankruptcy

       petitions but then successfully petitioned the bankruptcy court to reopen their

       bankruptcy estates so they could remedy this error and add the unlisted claims.

       659 N.E.2d at 1025-27.


               Here, the bankruptcy court exercised its discretion in reopening
               the bankruptcy cases so that the debtors could remedy the error
               of failing to list certain claims—the error which precluded the
               debtors from pursuing their claims. As such, it seems the
               bankruptcy court clearly exercised its discretion in reopening the
               estates to permit the debtors to pursue their claims. Again, we
               recognize the bankruptcy court’s preeminence in bankruptcy
               matters and hence we cannot frustrate the bankruptcy court’s
               intent to permit the debtors to proceed with their lawsuits by
               reopening the estates to add the unlisted claims. Therefore, we
               conclude that the debtors are now entitled to proceed with their
               respective lawsuits . . . .


       Id. at 1028-29.


[21]   So, too, here: the bankruptcy court reopened Gauldin’s bankruptcy at the

       Trustee’s request and allowed the filing of an amended schedule listing the

       pending medical malpractice action as an asset. For a state court to rule that

       the medical malpractice action is judicially estopped from going forward would

       be to “frustrate the bankruptcy court’s intent” in reopening the bankruptcy

       estate to permit the lawsuit to proceed. See Price, 950 N.E.2d at 1230 (noting,

       based upon the supremacy of federal law and the exclusive jurisdiction of the

       federal bankruptcy court, “we may not and will not second-guess the


       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016   Page 15 of 17
       bankruptcy court’s reasoning” in entering an order that a bankruptcy could

       proceed with the trustee’s knowledge of a pending legal malpractice action that

       was not originally listed in the debtor’s bankruptcy petition).


[22]   The Medical Providers claim allowing the negligence action to proceed would

       unjustly enrich Gauldin because only one creditor re-filed a claim after the

       bankruptcy was reopened. There is no allegation, however, that all creditors

       were not apprised of the reopening of the bankruptcy estate, and should a

       recovery be obtained from this action, the distribution of the bankruptcy estate

       will be up to the bankruptcy court. Hammes, 659 N.E.2d at 1028 (noting that

       reopening a bankruptcy case puts the bankruptcy estate back into the process of

       administration) (citing In re Succa, 125 B.R. 168, 170 (Bankr. W.D. Tex. 1991)).

       We also note the Hammes court’s discussion of the “sound public policy”

       behind permitting debtors to substitute the trustee as the real party in interest:


               In general, the plaintiff-debtor does not have anything to gain
               from failing to commence a suit in the name of the trustee,
               because a debtor who fails to do so is precluded from pursuing
               that claim in his or her own name. Instead, it is the creditors of
               such plaintiff-debtors who are deprived of access to a potential
               asset. The innocent creditors of the plaintiff-debtors should not
               suffer due to commencing a lawsuit in the name of the plaintiff-
               debtor rather than in the name of the trustee.


       Id. at 1030.


[23]   To the extent the ruling on the motion for preliminary determination was based

       upon the doctrine of judicial estoppel, the trial court erred.


       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016   Page 16 of 17
                                               Conclusion
[24]   The trial court erred in granting the Medical Providers’ motions for preliminary

       determination as neither lack of standing nor judicial estoppel serves as a basis

       for dismissing the proposed complaint. The judgment of the trial court is

       reversed.


[25]   Reversed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Opinion 28A01-1501-CT-50 | February 19, 2016   Page 17 of 17
