                                                          [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                               FILED
                     FOR THE ELEVENTH CIRCUIT
                                                       U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                       ________________________               April 18, 2005
                                                          THOMAS K. KAHN
                             No. 04-16491                       CLERK
                         Non-Argument Calendar
                       ________________________

                     D. C. Docket No. 03-00086-CV-2


MORRIS E. MUSE,
                                                Plaintiff-Appellant,

                                  versus

ACCORD HUMAN RESOURCES, INC.,
PEACHTREE PEST CONTROL
COMPANY, INC.,
                                                Defendants-Appellees.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                     _________________________

                             (April 18, 2005)

Before BLACK, HULL and PRYOR, Circuit Judges.

PER CURIAM:
       Plaintiff Morris E. Muse appeals the district court’s grant of summary

judgment to defendants Accord Human Resources, Inc. and Peachtree Pest

Control, Inc. (collectively referred to as “defendants”) in his action to recover

unpaid wages under the Fair Labor Standards Act (“FLSA”). After review, we

conclude that the district court erred in applying judicial estoppel to bar Muse’s

unpaid wage claim. Thus, we reverse the grant of summary judgment.

                                  I. BACKGROUND

       On November 7, 1997, Muse commenced a Chapter 13 bankruptcy action

and filed a schedule of assets under oath. The bankruptcy plan was confirmed on

April 7, 1998.1 Muse was discharged from debt on August 8, 2003, and his

bankruptcy case was closed on June 25, 2004.

       From on or about January 3, 2000 to September 6, 2002, Muse was

employed by the defendants. On June 6, 2003, Muse filed this action pursuant to

the Fair Labor Standards Act seeking to recover unpaid overtime wages allegedly

owed to him by defendants from January 3, 2000 until September 6, 2002. Thus,

Muse’s wage claim did not arise until after his bankruptcy plan was confirmed in

1998. Although his wage claim did arise before his bankruptcy case was closed,



       1
      Under the bankruptcy plan, there was a 60-month repayment period that expired on
November 11, 2002.

                                             2
Muse did not amend his schedule of assets to reflect his wage claim against the

defendants.

      In September 2004, the defendants in the unpaid wage claim suit filed a

motion for summary judgment based on the doctrine of judicial estoppel. The

defendants asserted that by not listing his wage claim in his bankruptcy schedule,

Muse had taken the position that he had no wage claim in the bankruptcy

proceeding. Judicial estoppel precludes a party from asserting a claim in a legal

proceeding that is inconsistent with a claim taken by that party in a previous

proceeding. Burnes v. Pemco Aeroplex, Inc., 291 F.3d 1282, 1285 (11th Cir.

2002). In the context of a bankruptcy case, judicial estoppel bars a plaintiff from

asserting claims previously undisclosed to the bankruptcy court where the plaintiff

both knew about the claims and had a motive to conceal them from the bankruptcy

court. DeLeon v. Comcar Indus., Inc., 321 F.3d 1289, 1291 (11th Cir. 2003).

      On November 10, 2004, the district court granted the defendants’ summary

judgment motion. The district court concluded that Muse’s unpaid wage claim

was barred by the doctrine of judicial estoppel because Muse had a pending

Chapter 13 bankruptcy action and a confirmed bankruptcy plan in existence at the

time his unpaid wage claim arose and he did not disclose his unpaid wage claim to

the bankruptcy court. Muse appealed.

                                         3
                                        II. DISCUSSION

       The issue in this case is whether the district court properly held that Muse

was judicially estopped from asserting his unpaid wage claim when Muse failed to

disclose that claim to the bankruptcy court. The answer is no, because Muse’s

unpaid wage claim arose after confirmation of the bankruptcy plan, was not part of

the bankruptcy estate, and, thus, Muse did not have a duty to disclose it.

       In Telfair v. First Union Mortgage Corp., 216 F.3d 1333 (11th Cir. 2000),

this Court analyzed 11 U.S.C. §§ 1306 and 1327(b), the two provisions of the

Bankruptcy Code that determine what constitutes property of the estate following

confirmation of the bankruptcy plan.2 After a thorough analysis, the Telfair Court

held that assets acquired post-confirmation are not property of the bankruptcy

estate unless they are necessary to maintain the bankruptcy plan. Telfair, 216 F.3d

at 1340. In doing so, this Court stated:


       2
        Section 1306 states in relevant part:
       (a) Property of the estate includes, in addition to the property specified in section 541
       of this title . . .
       (2) earnings from services performed by the debtor after the commencement of the
       case but before the case is closed, dismissed, or converted to a case under chapter 7,
       11, or 12 of this title, whichever occurs first.
11 U.S.C. § 1306.

        Section 1327(b) states: “Except as otherwise provided in the plan or the order confirming
the plan, the confirmation of a plan vests all of the property of the estate in the debtor.” 11
U.S.C. § 1327(b).


                                                   4
      We . . . read the two sections, 1306(a)(2) and 1327(b), to mean simply
      that while the filing of the petition for bankruptcy places all the property
      of the debtor in the control of the bankruptcy court, the plan upon
      confirmation returns so much of that property to the debtor’s control as
      is not necessary to the fulfillment of the plan.

Id. (internal quotation marks and citation omitted).

      In the instant case, confirmation of the bankruptcy plan occurred on April 7,

1998. Applying Telfair, any property interest acquired by Muse after April 7,

1998, which was not necessary to fulfill the plan, became the property of the

debtor (Muse). The unpaid wage claim arose in January 2000, nearly two years

after confirmation and there is no assertion that those asserts were necessary to

meet the terms of the bankruptcy plan. Therefore, the unpaid wage claim was not

part of the bankruptcy estate. Because it was not part of the bankruptcy estate,

Muse had no duty to disclose it. Two recent bankruptcy court decisions in our

circuit with nearly identical facts support our conclusion in this case.

      In In re Carter, 258 B.R. 526, 527 (Bankr. S.D. Ga. 2001), the debtors filed

for Chapter 13 bankruptcy on July 6, 1995, and their bankruptcy plan was

confirmed on November 21, 1995. The debtors received a discharge on April 18,

2000, and the case was closed on May 10, 2000.

      On October 17, 1998, the debtors were involved in an automobile collision,

and they subsequently filed suit against the driver of the other vehicle. The driver,

                                           5
defendant in the tort action, filed a motion for summary judgment based on the

doctrine of judicial estoppel, asserting that the debtors had taken the position that

they had no tort claim in the bankruptcy proceeding because their schedules did

not list it. Id. In response to the defendant driver’s motion for summary judgment,

the debtors filed a motion in the bankruptcy court to reopen the bankruptcy case in

order to amend their schedules to reflect the tort claim.

      The bankruptcy court in In re Carter determined that the tort claim, which

arose in 1998 almost three years after confirmation of the plan in 1995, was not

necessary for the plan, and thus was not part of the bankruptcy estate. Id. Because

the tort claim was not part of the bankruptcy estate, the debtors had no duty to

disclose the claim. And because the debtors had no duty to disclose the tort claim

in the bankruptcy case, pursuing the tort claim in state court was not inconsistent

with their position in bankruptcy court. Thus, the bankruptcy court in In re Carter

held that the debtors were not judicially estopped from pursuing their tort claim

and there was no need to reopen their bankruptcy case. In determining that

judicial estoppel was inapplicable, the bankruptcy court stated as follows:

      Judicial estoppel is inapplicable because the post plan confirmation tort
      claim was simply not involved in the bankruptcy case. The debtors had
      no reason much less obligation to disclose it. The tort claim belongs to
      the debtors and not the bankruptcy estate.



                                          6
Id. at 528 (emphasis added).

      Similarly, in In re Ross, 278 B.R. 269 (Bankr. M.D. Ga. 2001), the debtors

filed for Chapter 13 bankruptcy on February 19, 1998 and their bankruptcy plan

was confirmed on May 14, 1998. The debtors’ bankruptcy case was dismissed in

August 1999. In March 1999, one of the debtors was involved in an automobile

accident and she subsequently filed suit seeking to recover tort damages as a result

of the automobile accident. Id. at 270. The defendant filed a motion for summary

judgment on the ground that the doctrine of judicial estoppel barred the debtor

from pursuing her tort claim because she failed to list the claim on her schedules.

      Following the bankruptcy court in In re Carter, the bankruptcy court in In re

Ross held that judicial estoppel was inapplicable. The In re Ross bankruptcy court

stated that “nondisclosure of the claim in the bankruptcy case is not inconsistent

with asserting the claim in another forum.” Ross, 278 B.R. at 275.

      We are, of course, bound to follow Telfair, and in doing so, we agree with

the reasoning of the bankruptcy courts in In re Carter and In re Ross. The unpaid

wage claim arose in January 2000, nearly two years after plan confirmation in

April 1998, and there is no assertion that it was necessary for the plan. Therefore,

the unpaid wage claim was not part of the bankruptcy estate, Muse had no duty to

disclose it, and Muse is not judicially estopped from bringing his unpaid wage

                                         7
claim against the defendants in this case. See Ross, 278 B.R. at 275; Carter, 258

B.R. at 528; see also Telfair, 216 F.3d at 1340.

      Accordingly, we reverse the district court’s grant of summary judgment to

the defendants based on judicial estoppel and remand this case for further

proceedings consistent with this opinion.

      REVERSED AND REMANDED.




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