Lead Opinion
I. Introduction
In this medical malpractice case, appellant Heidi C. Horsley-Layman appeals the trial court’s order granting summary judgment to appellees Adventist Health System/Sunbelt, Inc. d/b/a Huguley Memorial Medical Center, Dr. Kalman S. Narayan, and Dr. Fernando S.M. Angeles based on judicial estoppel. In three issues, appellant argues that fact issues remain regarding the doctrine of judicial estoppel, the ostensible agency of appellee Huguley, and appellant’s affirmative defense of waiver. We affirm.
II. Background Facts and Procedural History
Appellant, a physician, filed for Chapter 13 bankruptcy on November 30, 1992. Along with the filing, appellant and her husband signed several sworn schedules under oath. These schedules reflected outstanding creditor claims totaling $337,180.71 and indicated that appellant did not own any contingent or liquidated claims. Appellant also swore in her Statement of Financial Affairs that she was not a party to any lawsuit. On September 21, 1993, the bankruptcy court issued an Order Confirming Chapter 13 Plan, Value of Collateral and Allowing Attorney Fees, which provided for appellant’s payments under the Chaрter 13 plan.
At the suggestion of her sister, Dr. Shelia Horsley, appellant visited Huguley Memorial Medical Center on December 6, 1993 for gastrointestinal problems. Appellant noticed no posting, notation, or verbal instruction that the physicians practicing in the hospital werе not employed by the hospital, and appellant did not choose any of the physicians that treated her. Dr. Kalman S. Narayan performed tests to determine the source of appellant’s problems and scheduled a gallbladder surgery for December 7, 1993. Dr. Fernando S.M. Angeles performed the surgery, which resulted in the complications that are the source of this litigation. Appellant developed three hematomas due to the bleeding in her abdomen and as a result, experienced seizures, incontinence, negative рersonality changes, and short-term memory loss. Because of these disabilities, appellant could no longer maintain her physician’s practice.
On February 18, 1994, the trustee in appellant’s Chapter 13 bankruptcy filed a motion to dismiss because appellant had fallen behind on the payments required by her original Chapter 13 plan. In response, on April 4,1994, appellant filed a motion to abate the original plan payments. In this motion, appellant described the injuries she sustained from the gallbladder surgery. On May 3, 1994, the bankruptcy court, noting thаt abatement was in the best interest of all parties because of appellant’s catastrophic illness, granted the abatement motion.
On September 19, 1995, after appellant continued to miss payments, the bankruptcy trustee filed a second motion to dismiss, and thе bankruptcy court granted it. Appellant then filed a motion for rehearing of the dismissal, and the bankruptcy court reinstated the proceedings on October 24, 1995, after determining that appellant cured the deficiencies in the plan payments.
Based on the injuries aрpellant suffered as a result of her gallbladder surgery,
Because of the appellate process, the medical malpractice case was inactive for several years, but appellant’s bankruptcy proceedings continued. Appellant and her husband filed а response to the trustee’s third motion to dismiss on July 13,1998, in which they mentioned the malpractice lawsuit and requested permission to modify the payment plan. The bankruptcy court allowed the modification. On October 13, 1998, the trustee filed his final report in appellant’s bankruptcy рroceeding, and appellant was discharged from bankruptcy on October 14,1998.
In her malpractice suit, appellant filed a third amended original petition on January 10, 2005, and appellee Dr. Angeles filed his first amended original answer alleging judicial estoppel on August 19, 2005. Appel-lees filed motions for summary judgment on the basis of judicial estoppel in August 2005 asserting that appellant failed to disclose her pending medical malpractice claim to the bankruptcy court in accordance with her plan. The trial court granted these motions. This appeal followed.
III. Appellant’s First and Third Issues
We address appellant’s first and third issues together because they are related. In her first issue, appellant complains that summary judgment on the affirmative defense of judicial estoppel was inappropriate because fact issues remain unresolved. In her third issue, appellant alleges that ap-pellees waived their right to assert judicial estoppel as a defense.
A. Standard of Review
A defendant is entitled to summary judgment on an affirmative defense if the defendant conclusively proves all thе elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel,
B. Applicable Law
1. Bankruptcy Law
In a bankruptcy action, the debt- or must disclose all assets including contingent or unliquidated claims. 11 U.S.C.A. § 521(a)(1) (West Supp.2006). The duty to disclose is a continuing duty that requires the debtor to amend schedules and forms if circumstances surrounding the bankruptcy change. In re Coastal Plains, Inc.,
2. Judicial Estoppel
The doctrine of judicial estoppel applies when a party attempts to assert a claim that is inconsistent with a claim asserted in a prior proceeding.
To establish judicial estoppel involving a bankruptcy case, three elements must be proven: (1) the party to be estopped has taken a position clearly inconsistent with its previous position; (2) the previous court must have accepted the previous position; and (3) the previous inconsistent position was not inadvertent. See id. A previous inconsistent position is only inadvеrtent when the debtor lacks knowledge of the inconsistent position or has no motive for the inconsistency. Id. at 210.
C. Analysis
Appellant filed for Chapter 13 bankruptcy on November 30, 1992. The complications that form the basis of this suit occurred on December 6 and 7, 1993. Subsequently, appellаnt amended her bankruptcy filings several times without formally including this claim as an asset.
Although appellant never officially amended the bankruptcy schedules, she and her husband filed a response to a motion to dismiss in the bankruptcy court in July 1998 that explained the malpractiсe claim. Appellant and her husband also filed a modification plan in the bankruptcy court in August 1998 that mentioned the medical malpractice claim, but they did not state the amount of recovery sought. Appellant and her husband were discharged from bankruptcy on October 14,1998 without the court taking the malpractice claim into account.
Appellant concedes that she did not amend her bankruptcy schedules. According to appellant, regardless of this concession, the appellees still lose because they fаiled to establish as a matter of law the three elements of judicial estoppel. We disagree.
1. Clearly Inconsistent Position
Appellant argues that by mentioning her malpractice claim in motions with the bankruptcy court, she did not take the position that no claim existed. However, debtors hаve a continuing duty to formally amend their bankruptcy schedules if their circumstances change during bankruptcy. See In re Superior Crewboats, Inc.,
Here, appellant attempts to pursue this malpractice claim even though she did not previously alert her bankruptcy creditors as to how much the claim was worth or that the claim even existed. Even though appellant noted the malpractice claim on at least two other filings with the bankruptcy court, she had a duty to amend the schedules. See id. By omitting this claim from her schedules, apрellant represented to her creditors that no such claim existed. See In re Coastal Plains,
2.Position Accepted by Court
To prove the acceptance prong, a party must show that the previous court adopted the position urged by the party. Id. at 206. A court adopts the position if it relies on the assertion in making a decision or ruling. Id.
Here, the bankruptcy court discharged appellant based on her list of assets in the schedules, and the schedule did not include the malpractice claim.
3.Not Inadvertent
A debtor can establish inadvertence by showing that she did not know of the claim or had no motive to conceal the claim. Id. at 210. Appellant certainly knew about the claim because she pursued it while she was still under a duty to disclose all of her assets and claims. Id. at 208.
After reviewing the record and procedural history of appellant’s bankruptcy and malpractice cases, we conclude and hold that appellant asserted inconsistent positions, the bankruptcy court accepted the position that appellant had no malpractice claim, and appellant knew of the malpraсtice claim while she was under a duty to disclose her assets. Therefore, appellant’s discharge from bankruptcy after nondisclosure of her malpractice claim precludes her from pursuing that claim. See id. at 213.
4.Waiver
Appellant argues that appel-lees waived the defense of judicial estoppel because they did not assert it at an earlier time. Waiver is defined as an intentional relinquishment of a known right or conduct inconsistent with claiming that right. Int’l Ins. Co. v. RSR Corp.,
Appellant filed suit against appellees on February 16, 1996 and was discharged from bankruptcy on October 14, 1998. From 1998 to 2002, the case against Dr. Angeles was appealed twicе regarding dismissal for appellant’s failure to provide proper expert reports. See Horsley-Layman,
We disagree with appellant’s assertion that Spinks v. Brown is compelling authority.
Because our conclusions оn issues one and three dispose of appellant’s claims against all parties, we do not reach the issue of ostensible agency. See Tex.R.App. P. 47.1.
IV. Conclusion
Having overruled appellant’s first and third issues, we affirm the trial court’s order granting summary judgment in favor of appellees.
DAUPHINOT, J. filed a dissenting opinion.
Notes
. During the seven-month аbatement period, appellant was excused from making her regularly scheduled Chapter 13 plan payments.
. Although appellant’s case against Dr. Ange-les was initially dismissed by the trial court on November 8, 1996, her claims against the other appellees were still pending. See Horsley-Layman,
. To “promote the goal of uniformity and predictability in bankruptcy proceedings” and to “give the proper effect to the judgment of the bankruptcy court,” we will apрly federal bankruptcy law to this issue. In re Coastal Plains,
Dissenting Opinion
dissenting.
I must respectfully dissent from the majority opinion because I cannot agree that Appellant’s failure to amend the schedule amounted to a representation that the otherwise disclosed claim did not exist.