B.C. Phillips and Wife, Barbara Phillips v. Flying J Inc. and Chloe Purifoy , 2012 Tex. App. LEXIS 4813 ( 2012 )

NO. 07-11-0368-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL B
JUNE 15, 2012
_____________________________
B.C. PHILLIPS AND WIFE, BARBARA PHILLIPS,
Appellants
v.
FLYING J INC. AND CHLOE PURIFOY,
Appellees
_____________________________
FROM THE 99TH DISTRICT COURT OF LUBBOCK COUNTY;
NO. 2010-550,756; HONORABLE WILLIAM C. SOWDER, PRESIDING
_____________________________
Opinion
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Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
B. C. Phillips and his wife Barbara Phillips (the Phillips) appeal from a summary
judgment. The two litigants had sued Flying J Inc. and Chloe Purifoy (collectively
referred to as Flying J) to recover damages purportedly suffered by B. C. when he
slipped and fell at one of Flying J’s gas stations. Once issue was joined, Flying J
moved for summary judgment, contending that the Phillips were judicially estopped from
pursuing the claim since they failed to disclose it as an asset in their Chapter 13
bankruptcy schedules. The trial court granted the motion and entered judgment
denying the Phillips any recovery against the movants. Three issues pend before us
and all involve the propriety of the summary judgment. Allegedly, Flying J did not
establish, as a matter of law, the affirmative defense of judicial estoppel; and the trial
court improperly acted as a factfinder. We reverse.
Facts
The following facts are undisputed. First, the Phillips sought bankruptcy relief
under Chapter 13 of the United States Bankruptcy Code. Second, their payment plan
was confirmed in October of 2005. Third, B. C. purportedly fell on Flying J’s property on
December 15, 2009, while the bankruptcy remained pending. Fourth, B. C. admitted to
contacting legal counsel on December 16, 2009, to discuss a possible suit against
Flying J. Fifth, the Phillips moved to modify their bankruptcy payment plan on January
20, 2010, to reduce the debt payable to their creditors under the plan. Sixth, the
reasons given to justify the modification consisted of B. C. a) falling ”in the process of
fueling his truck,” b) “breaking his hip,” c) suffering a stroke the next day, d) suffering
paralysis as a result of the stroke, and e) being unable to operate the debtors‘ business,
which business was their “sole source of income.” Seventh, on February 1, 2010, the
Phillips sued Flying J for negligence because the company left a water faucet on in
freezing weather and for the recovery of damages purportedly arising from B. C.
slipping on the frozen water. Eighth, on February 26, 2010, the bankruptcy court
granted the request to “decrease” the plan base (or payments due under the previously
confirmed plan) “as proposed by the Debtor(s),” because “it appear[ed] that the
circumstances of the Debtor(s) warrant providing for a decrease in plan base.” Ninth,
no mention was made in the motion to modify of Flying J, the fall occurring on Flying J’s
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property, or the fall allegedly being caused by Flying J allowing its water faucet to run
during freezing weather. Tenth, on March 5, 2010, the bankruptcy court discharged the
Phillips of their debts.
Discussion
Flying J moved for summary judgment on the basis of judicial estoppel. The
doctrine allegedly applied because the Phillips had a continuing obligation to update or
amend their bankruptcy schedules or otherwise reveal newly acquired assets, and they
said nothing about the cause of action against Flying J in any of those documents.
It is true that judicial estoppel may be invoked to deny plaintiffs the opportunity to
prosecute claims they failed to disclose during their bankruptcy. Jackson v. Hancock &
Canada, L.L.P., 245 S.W.3d 51, 55 (Tex. App.–Amarillo 2007, pet. denied). It is also
true that judicial estoppel is an affirmative defense. Id at 54-55. Thus, Flying J, as the
defendant invoking the doctrine, had the obligation to prove each element of the
affirmative defense, as a matter of law, to win summary judgment. Randall’s Food Mkts,
Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). It attempted to meet that burden by
supplying a copy of the motion to modify the payment plan and arguing, via the body of
the summary judgment motion, that the Phillips’ bankruptcy schedules said nothing of
the claim. The only schedules appearing of record, however, were schedules “I” and
“J,” which list the debtors’ “current income” and “current expenditures,” respectively.
We find in the record neither the schedule of assets and liabilities (or debts) which a
debtor is statutorily required to file. 11 U.S.C.A. § 521(a)(1)(B)(i) (Supp. 2012). Nor do
we find any admissible evidence suggesting that those schedules were never amended.
Instead, Flying J’s attorney simply stated as much in the body of a motion for summary
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judgment. Moreover, the statement was unsworn and falls short of constituting
competent evidence. See Alaniz v. Rebello Food & Bev., L.L.C., 165 S.W.3d 7, 15 n.12
(Tex. App.–Houston [14th Dist.] 2005, no pet.) (stating that an unsworn transcript is not
evidence).
Similarly missing is any admission or concession by the Phillips that their suit
against Flying J was omitted from any bankruptcy schedule. They merely contended
that it was implicitly disclosed in their motion to modify the plan. But, unless they had
some duty to disclose it in that particular motion as opposed to some bankruptcy
schedule, omitting it from that document does not permit us to conclude that they failed
to disclose it as required by bankruptcy law. It may have been disclosed elsewhere.
And, no one argues, much less cites us to an authority holding that additional assets
must be disclosed in a motion to modify, as opposed to a schedule of assets or an
amendment thereof.
Simply put, Flying J did not carry its burden to prove its allegation that the suit
was not disclosed. It may well be that it was not. However, that is a factual issue that
must be proven by competent evidence, not through a mere unsworn utterance. More
importantly, the Phillips had no burden to prove otherwise or even say anything until the
summary judgment movant carried its burden. City of Houston v. Clear Creek Basin
Authority, 589 S.W.2d 671, 678 (Tex. 1979) (stating that the party filing a traditional
motion for summary judgment has the burden to prove his contention as a matter of law
irrespective of whether the non-movant files a response).
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In sum, we do not say that Flying J is wrong, but only that it failed to prove, as a
matter of law, that it was right. We reverse the summary judgment and remand the
cause.
Per Curiam
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