                                                                                                             \t
                                                                                                             f
                                                                                                             I
                                                                                                             I
                                                                                                             i
                                                                                                              I!
                                                                             FILED 

                                                                          JULY 23, 2015 

                                                                                                             ,I
                                                                  In the Office of the Clerk of Cou rt 
     i
                                                                 WA State Court of Appeals, Division III 

                                                                                                             !
            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


WILLIAM LOHMAN,                                )
                                               )         No. 32083-9-111
                     Appellant,                )         (Consolidated with
                                               )         No. 32276-9-111)
       v.                                      )
                                               )
MELCHER MANUFACTURING, INC,                    )         UNPUBLISHED OPINION
a Washington corporation; NEWESCO,             )
INC., d/b/a NELSON WESTERBERG,                 )
INC., an Illinois corporation, and DOES        )
1-10,                                          )
                                               )
                     Respondent.               )

       KORSMO,   J. - William Lohman appeals the dismissal of his personal injury claim,

arguing that the trial court incorrectly determined that he was not the real party in interest.

We agree that the bankruptcy trustee was the true real party in interest and affirm.

                                           FACTS

       Mr. Lohman worked as a long haul trucker and was employed in 2010 by Nelson

Westerberg, Inc. (Newesco) of Chicago. In August, 2010, Mr. Lohman was injured in a

fall from a ramp while unloading a truck near Dallas, Texas. His injuries required several

surgeries. Newesco terminated his employment.
No. 32083-9-III (consolidated with 32276-9-III)
Lohman v. Melcher Mfg., Inc.


       Having large debts, Mr. Lohman filed for Chapter 7 bankruptcy in California in

November 2011. Lewis D. Partridge was named the Bankruptcy Trustee. In his filings,

Mr. Lohman did not identify any tort claims as assets of his estate. He valued his

Worker's Compensation claim at zero dollars. The claim eventually settled for $65,000.

The bankruptcy was closed as a no-assert bankruptcy on November 2,2012; over

$500,000 in debt was discharged.

      Two months prior to the closure of the bankruptcy, Mr. Lohman sued Newesco

and Melcher Manufacturing (Melcher), the manufacturer of the ramp, in the Spokane

County Superior Court. Mr. Lohman's theory against Melcher was that the ramp had

malfunctioned. He sued Newesco on several theories-negligence in the use of the ramp

and termination in violation of the Americans with Disabilities Act and the Washington

Law Against Discrimination.

      The defendants initially removed the case to the federal district court, but that

court remanded the matter to the superior court. The defendants moved for summary

judgment. On May 17, 20l3, Mr. Lohman successfully sought a continuance to conduct

discovery and get the bankruptcy trustee involved. Five weeks later, the trial court again

continued the summary judgment motion because the trustee had not appeared. Kimberly

Husted, a successor trustee, 1 appeared the following month through an attorney who was



       1 Mr.   Partridge was suffering from cancer that ultimately claimed his life.

                                               2

No. 32083-9-111 (consolidated with 32276-9-111)
Lohman v. Melcher Mfg., Inc.


not licensed in Washington. Two more continuances followed to allow Ms. Husted to

"gather all the facts" and obtain Washington counsel.

       The trial court requested a presentment hearing to enter an order substituting the

bankruptcy trustee as plaintiff and continued the summary judgment motions until

November 15. The substitution order entered on October 11. The trial court determined

that the tort claims arose prior to the bankruptcy filing and belonged to the trustee

because the claims had not been disclosed to the bankruptcy court. The court concluded

that Mr. Lohman was judicially estopped from bringing the claims.

       The trustee and the defendants then entered into a settlement of the tort claims in

the bankruptcy court. Thereafter, the superior court dismissed the claims with prejudice.

Mr. Lohman timely appealed to this court.

                                        ANALYSIS

       Mr. Lohman argues that he, not the bankruptcy trustee, was the real party in

interest and that the trial court erred in applying judicial estoppel and collateral estoppel

against him. The respondents seek attorney fees for responding to a frivolous appeal.

We address only the real party in interest issue and deny the request for fees.

       "Every action shall be prosecuted in the name of the real party in interest."

CR 17(a) (partial). The purpose of this rule is to "protect the defendant against a

subsequent action by the party actually entitled to recover, and to insure generally that the




                                              3

No. 32083-9-III (consolidated with 32276-9-III)
Lohman v. Melcher Mfg., Inc.


judgment will have its proper effect as res judicata." Beal v. City ofSeattle , 134 Wn.2d

769, 777, 954 P.2d 237 (1998) (quoting the federal rule's Advisory Committee).

       A bankruptcy estate encompasses the debtor's legal and equitable interest in

property "as of the commencement of the case." 11 U.S.C. § 541 (a)(l). Property of the

estate that is not abandoned and not administered remains property of the estate even

after the estate closes. 11 U.S.C. § 554(d). When a debtor fails to list a legal claim in

bankruptcy proceedings and the case is subsequently re-opened, "there is no debate" that

the bankruptcy trustee is the real party in interest, not the debtor. Bartley-Williams v.

Kendall, 134 Wn. App. 95, 101, 138 P.3d 1103 (2006) (quoting Sprague v. Sysco Corp.,

97 Wn. App. 169, 172,982 P.2d 1202 (1999)); DeAtley v. Barnett, 127 Wn. App. 478,

483, 112 P.3d 540 (2005). Rights of action may be subject to exemption under II U.S.C.

§ 522(1), but the debtor must take affirmative steps to remove exempt property from the

estate. 11 U.S.C. §§ 522(1), 541; Linklater v. Johnson, 53 Wn. App. 567,570,768 P.2d

1020 (1989).

       Mr. Lohman's situation is a classic example of these principles. See Bartley-

Williams, 134 Wn. App. at 100. The basis for his tort claims accrued prior to the

bankruptcy proceedings and he did not disclose them in the bankruptcy. As a result, the

claims were neither abandoned nor administered. Therefore, these unscheduled assets

still belong to the bankruptcy estate and the trustee is the real party in interest.




                                               4

No. 32083-9-III (consolidated with 32276-9-III)
Lohman v. Melcher Mfg., Inc.


       This case is very similar to Linklater. There, Mr. Linklater had a right of action

for misrepresentation that was incidental to the purchase of a home. 53 Wn. App. at 568.

He subsequently filed for bankruptcy but did not disclose the right of action to the trustee.

Id. After he was discharged in bankruptcy, he sued the realtor and sellers in tort. Id. The

superior court dismissed the action for lack of standing. Id. at 569. This court affirmed

the trial court's determination that he lacked standing and was not the real party in

interest. Id. at 570. We stated that "a discharged debtor lacks legal capacity to

subsequently assert title to and pursue an unscheduled claim simply because a trustee,

without knowledge of the claim, took no action with respect to it." Id.; Accord, DeAtley,

127 Wn. App. at 483.

       Mr. Lohman attempts to distinguish Linklater on the basis that here his trustee was

aware of his tort causes of action. Br. of Appellant at 9-10. He reasons that the trustee

was alerted to the causes of action because of the workman's compensation claim on the

bankruptcy schedules and because he mentioned them at a creditors' meeting. There are

several problems with that position. First, he provided no record that he made these oral

representations. Second, disclosing the workman's compensation claim is not equivalent

to disclosing the tort causes of action. Third, oral disclosures are inadequate to put a

trustee on notice of the asset. See Baldwin v. Silver, 147 Wn. App. 531, 196 P.3d 170
                                                                                                r
(2008) (holding that an oral disclosure of the claim to the bankruptcy trustee is not
                                                                                                I
                                                                                                I
enough for purposes ofjudicial estoppel); Cunningham v. Reliable Concrete Pumping,

                                             5

No. 32083-9-III (consolidated with 32276-9-III)
Lohman v. Melcher Mfg., Inc.


Inc., 126 Wn. App. 222, 229, 108 P.3d 147 (2005) (holding that an oral disclosure of an

asset is not adequate to escape judicial estoppel). On this record, Linklater is controlling.

       Mr. Lohman also argues that the repeated delays by the trial court unnecessarily

led to the involvement of the successor trustee. Specifically, he writes the "case was

stretched out long enough that a Trustee with a private law firm was substituted

regardless of Plaintiffs honesty or representations to the Bankruptcy Court and the prior

Trustee's disinclination to re-open the Chapter 7 case." Br. of Appellant at 9.

Nevertheless, the fact that the trustee was "disinclined" to intervene does not mean that

Mr. Lohman could bring the claim. See Linklater, 53 Wn. App. at 570 (where the

bankruptcy trustee did not intervene, the action was dismissed against all defendants).

Whether or not the trustee intervened, Mr. Lohman would still not be the proper party. In

reality, the trial court delayed the summary judgment motion to avoid dismissing the case

prior to giving Mr. Lohman the opportunity to get the trustee involved. 2 Mr. Lohman

does not cite any authority for his proposition that the trial court's procedure was an

abuse of discretion. Indeed, CR 17(a) expressly empowers trial judges to continue




       2  The trial court granted the first continuance saying: "I am not prepared to dismiss
it right now. I am prepared to grant a brief continuance so something can be provided."
Report of Proceedings (RP) at 33 (referring both to discovery and information on whether
the trustee would intervene). At a later hearing the trial court, again, delayed the summary
judgment motion to allow time for Mr. Lohman to reopen the bankruptcy. RP at 55.

                                             6

No. 32083-9-III (consolidated with 32276-9-III)
Lohman v. Melcher M/g., Inc.


actions to allow for the real party in interest to appear.3 Finally, if this is a veiled

argument for abandonment it fails for two reasons. First, after his bankruptcy was

reopened, the bankruptcy court did not treat the claims as if they had been abandoned,

and second, declining to intervene is not the legal equivalent of abandoning an asset in

bankruptcy. See Stevens v. City o/Centralia, 86 Wn. App. 145, 153,936 P.2d 1141

(1997) (abandonment of asset in bankruptcy requires notice and hearing for creditors of

estates).

       Mr. Lohman lacked standing to pursue this action. The trial court properly

continued the matter until the trustee could take over the case. Once that occurred, the

trustee settled the claims in bankruptcy court. If Mr. Lohman wanted to challenge the

trustee's authority or settlement decision, he needed to do so in that forum.

       The respondents argue that they are entitled to attorney fees for defending a

frivolous action. RAP 18.9(a). While that issue is a close one, we conclude that this

appeal, while lacking in merit, was not frivolous. Accordingly, we decline to award

attorney fees in this appeal, although as the prevailing parties, the respondents are entitled

to statutory costs and fees. RAP 14.2 et seq.




        3 "No 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 has been allowed ... for ... joinder or
substitution of, the real party in interest." CR 17(a) (partial).


                                               7

No. 32083-9-111 (consolidated with 32276-9-111)
Lohman v. Melcher Mfg., Inc.


      Affirmed.

      A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                  I          FO,],
WE CONCUR:




      Brown, J.




                                            8

