Petitioners' Brief on the Merits - Supreme Court of Texas

1. Brown v. Swett & Crawford of Texas, Inc.
In the Brown case, the application of judicial estoppel largely turned on
whether the plaintiff’s prior inconsistent position had been “accepted” by the
bankruptcy court. The court of appeals ultimately concluded that dismissal of the
bankruptcy based on the trustee’s conclusion that there were no assets that existed
for the benefit of the creditors constituted “acceptance” by the court of the party’s
inconsistent position. Brown v. Swett & Crawford of Texas, Inc., 178 S.W.3d 373,
381 (Tex. App.—Houston [1 st Dist.] 2005, no pet.).
However, in the present case, not only has there been no dismissal, but the
bankruptcy is still pending and amended schedules have been filed reflecting this
case as an asset. (R. at 395, 448-49).
2. Cleaver v. Cleaver.
In the Cleaver case, the plaintiff successfully maintained his position before
a bankruptcy court that his lawsuit offered no potential assets for the bankrupt
estate. Cleaver v. Cleaver, 140 S.W.3d 771, 775 (Tex. App.—Tyler 2004, no pet.)
Based on this representation, the plaintiff was discharged in bankruptcy. Id. at
773. The court noted that a debtor has a continuing duty to disclose to the
bankruptcy court causes of action belonging to the debtor. Id. at 774.
In the present case, the Fergusons’ bankruptcy has not been discharged and
is still pending. Moreover, the Fergusons complied with their continuing duty to
make disclosures to the bankruptcy court by filing their amended schedules to
PETITIONERS’ BRIEF ON THE MERITS 24