UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-11118

_____________________

In The Matter of: COASTAL PLAINS, INC.,

Debtor.

BROWNING MANUFACTURING,

Appellant/Cross-Appellee,

versus

JEFFREY H. MIMS, Trustee for the Bankruptcy

Estate of Coastal Plains, Inc.;

INDUSTRIAL CLEARINGHOUSE, INC.,

Appellees/Cross-Appellants.

INDUSTRIAL CLEARINGHOUSE, INC., Successor in

interest to Coastal Plains Inc.; JEFFREY H.

MIMS, Trustee of The Estate of Coastal Plains, Inc.,

Appellees/Cross-Appellants,

versus

BROWNING MANUFACTURING, formerly known as

Emerson Electric Company, formerly known

as Emerson Power Transmission Corporation,

Appellant/Cross-Appellee.

_____________________

No. 97-11119

_____________________

In The Matter Of: COASTAL PLAINS, INC.,

Debtor.

INDUSTRIAL CLEARINGHOUSE, INC.; JEFFREY H. MIMS,

Trustee of The Estate of Coastal Plains, Inc.,

Appellees-Appellants,

versus

BROWNING MANUFACTURING, formerly a

Division of Emerson Electric Company,

Appellant-Appellee.- 2 - _____________________

No. 98-10246

_____________________

In The Matter Of: COASTAL PLAINS, INC.,

Debtor.

BROWNING MANUFACTURING,

Appellant,

versus

JEFFREY H. MIMS, Trustee for the Bankruptcy

Estate of Coastal Plains, Inc.;

INDUSTRIAL CLEARINGHOUSE, INC.,

Appellees.

INDUSTRIAL CLEARINGHOUSE, INC., Successor in

interest to Coastal Plains, Inc.; JEFFREY H. MIMS,

Trustee for the Bankruptcy Estate of Coastal Plains, Inc.,

Appellees,

versus

BROWNING MANUFACTURING, formerly known as Emerson

Electric Company, formerly known as

Emerson Power Transmission Corporation,

Appellant.

_______________________ ___________________________________________

Appeals from the United States District Court

for the Northern District of Texas

_________________________________________________________________ June 18, 1999- 3 -

Before REYNALDO G. GARZA, POLITZ, and BARKSDALE, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

For all but one of the claims at hand, the overarching issue

is whether the bankrupt cy court abused its discretion by not

judicially estopping plaintiffs Industrial Clearinghouse and the

Trustee for the bankruptcy estate of Coastal Plains from pursuing

claims against Browning, Coastal’s largest unsecured creditor; the

linchpin being whether nondisclosure of those claims in Coastal’s

bankruptcy schedules or its stipulation for lifting the automatic

bankruptcy stay to allow Coastal’ s largest secured creditor to

for eclose on Coastal’s assets, later purchased by Industrial

Clearinghouse (formed by Coastal’s CEO), falls under the exception

to judicial estoppel advanced by plaintiffs, Coastal’s successors

— that, even though Coastal had knowledge of the claims, the

nondisclosure was nevertheless “inadvertent”. For plaintiffs’ one

claim not subject to judicial estoppel (tortious interference), the

key issue is whether it is time-barred. Browning appeals the $5.2

milli on judgment on a jury verdict in favor of plaintiffs;

plaintiffs cross-appeal the substantial post-verdict reduction in

damages. We REVERSE and RENDER judgment for Browning.

I.

Coastal Plains, Inc., an equipment distributor, was purchased

by Bill Young in 1984 for approximately $9 million. The business

plan included making Browning Manufacturing, formerly a division of

Emerson Electric Company, Coastal’s leading supplier.- 4 -

In January 1986, Coastal acknowledged its financial problems

to its creditors and implicitly threatened bankruptcy if they did

not agree to a workout plan, pursuant to which Coastal would return

to its creditors inventory they had sold on credit to Coastal; the

creditors would pay Coastal 50 percent of the inventory’s cost and

write off Coastal’s debt; and the money so raised would be paid to

Coastal’s secured lender, Westinghouse Credit Corporation. Many

creditors rejected the proposal.

The next month, owed $1.3 million by Coastal, Browning agreed

to a transaction which tracked Coastal’s earlier proposed workout

plan. In late February 1986, Coastal began returning inventory to

Browning; this was soon disconti nued because Browning’s parent,

Emerson, wanted to postpone the transaction until the next quarter.

Accordingly, in mid-March, Coastal and Browning agreed that,

if the transaction was not completed by 3 April, Browning would

transfer the returned -inventory back to Coastal. The inventoryreturn to Browning was completed by the end of March.

Nevertheless, becoming more concerned about Coastal’s

potential bankruptcy, Browning did not complete the transaction

(payment, etc.) by 3 April. Therefore, Coastal demanded that

Browning return the inventory not later than 20 April.

But, on 16 April, Young, for Coastal, signed a voluntary

Chapter 11 ba nkruptcy petition, which was filed on 22 April.

Coastal advised its creditors that bankruptcy had become necessary

because all of them had not accepted its proposed workout plan.

Coastal owed in excess of $8.5 million to Westinghouse, and- 5 -

approximately $8 million to other creditors. Browning was

Coastal’s largest unsecured creditor.

A week after filing its petition, Coastal initiated an

adversary proceeding against Brow ning, seeking an order both

enjoining it from disposing of the returned-inventory and directing

its transfer to Coastal. Coastal also claimed conversion;

interference with contracts and/or business relationships because

of Browning’s failure to return inventory; punitive d amages; and

violation of the automatic stay.

The complaint did not specify the amount of damages sought,

and there were no allegations tha t Browning’s actions caused the

failure of Coastal’s pre-bankruptcy workout plan. (Concerning this

critic al point for judicial estoppel purposes, discussed i nfra

,

Coastal’s bankruptcy attorney testified at a bankruptcy hearing

seven years later that the primary purpose of the adversary

proceeding was the inventory-return. )

Shortly after the adversary proceeding was filed, the

ba nkruptcy court found that Browning had violated the automatic

stay and ordered the inventory returned to Coastal; th e other

claims were not addressed. Browning completed the inventory-return

before the end of May

.

Soon thereafter, on 6 June, Wayne Duke, Coastal’s CEO,

executed sworn bankruptcy schedules for Coastal. But, although he

believed that Coastal had claims of up to $10 million against

Browning, they were not disclosed in the bankruptcy schedules and

statement of financial affairs. And, although Coastal’s $1.3- 6 -

million debt to Browning was listed in the schedule of liabilities,

it was not specified as contingent, disputed, or subject to setoff.

Three months later, on 9 September, in moving for relief from

the automatic stay so that it could foreclose on Coastal’s assets,

Westinghouse (secured lender) asserted that it was owed in excess

of $8 million by Coastal; that this debt was nearly equal to the

value of the collateral; and that reorganization was not possible.

On 18 September, Westinghouse and Coastal submitted in support of

the lift-stay motion a stipulation, prepared by Westinghouse, that

included estimates of the value of Coastal’s assets, including that

its general i ntangible assets consisted of computer software

programs, customer lists, and vendor lists, with a total worth less

than $20,000. N o mention was made of any claims against Browning

.

The stipulation showed more than a $5 million shortfall between the

value of Coastal’s assets and its debt to Westinghouse.

Browning withdrew its objection to lifting the stay. On 19

September, the day after the stipulation was filed, Westinghouse’s

lift-stay motion was granted; it foreclosed on Coastal’s assets,

conducting an auction on 7 October. N o mention of Coastal’s claims

aga inst Browning was made in the foreclosure notices or

advertisements, or at the auction

.

A Browning representative attended the auction and bid on the

inventory. The highest bid on Coastal’s general intangibles

( which, again, were not described as including its claims against

Browning ) was $2,000. Westinghouse was the successful bidder,

purchasing the assets for $3.25 million.- 7 -

On 8 October, the day after the auction, and pursuant to

negotiations the preceding month prior to executing the lift-stay

stipulation, Westinghouse entered into a consignment agreement with

Industrial Clearinghouse, Inc. (IC), to sell the assets

Westinghouse had purchased at the auction. IC had been formed by

Coastal’s CEO, Duke, who was also IC’s CEO; that same day, all of

Coastal’s emp loyees became IC employees; and it used the same

computer software and customer lists that had been used by Coastal.

In February 1987, IC purchased the remaining Coastal assets

from Westinghouse for $1.24 milli on. Those assets expressly

included the previous ly undisclosed “potential cause of action

against Browning”.

The Chapter 11 reorganization was c onverted to a Chapter 7

liquidation that April. After the Trustee filed a no-asset report

and applied for closing the bankruptcy case, it was closed in

February 1988.

But, the case was re-opened that March, to address issues

unrelated to Browning. That April, after IC advised the Trustee

that it wanted the claims against Browning prosecuted, and the

Trustee refused, because a successful conclusion would benefit only

IC, IC advised it would pursue the adversary proceeding. In

October 1988, IC was substituted for Coastal in the long dormant

(since May 1986) adversary proceeding against Browning.

IC filed its first amended complaint in March 1989, alleging

that Browning’s breach of the return-invento r y agreements and

return-delay caused Coastal’s bankruptcy and demise; and asserting- 8 -

claims for breach of contract, co nversion, interference with

contracts and/or business rel ationships, fraud, and violation of

the automatic stay. A second amended complaint was filed in late

1989; a third, in early 1992.

In September 1992, the Trustee again moved to close the case

and for his discharge. IC filed its fourth amended complaint that

December.

The adversary proceeding was set for trial in May 1993 in the

district court, which had withdrawn the r eference from the

bankruptcy court. But, on the eve of trial, the Trustee moved to

intervene, claiming t hat Coastal’s bankruptcy estate owned the

claims being pursued against Browning. The district court referred

the case to the bankruptcy court for the ownership determination.

In bankruptcy court, Browning asserted, i nter alia

, that,

based on Coastal’s nondisclosure in its bankruptc y schedules and

the lift-stay stipula tion, IC and the Trustee were equitably a nd

judicially estopped. Regarding judicial estoppel, IC responded

that the claims had been omitted through counsel’s oversight.

Following a July 1993 hearing, the bankruptcy court ruled that

the estate owned the tort claims; IC, those in contract.

Contemporaneously, IC and the Trustee agreed to share any recovery

against Browning, with IC to receive 85 percent.

In May 1994, following a hearing that January, the bankruptcy

court approved the Trustee/IC (plaintiffs) sharing agreement and,

inter alia , rejected judicial estoppel. Browning appealed to the

d istrict court, which affirmed; and to our court, which affir med- 9 -

approval of the sharing agreement, but dismissed Browning’s appeal

as to judicial estoppel, holding that the ruling was interlocutory.

(Most unfortunately, Browning did not seek certification from the

district court that, pursuant to 28 U.S.C. § 1292(b), the judicial

estoppel ruling “involve[ d] a controlling question of law as to

which there is substantial ground for difference of opinion and

that an immediate appeal from the order may materially advance the

ultimate termination of the litigation”.)

At trial in district court in early 1996 (ten years after the

adversary proceeding was filed), the jury found against plaintiffs’

fraud claim; but, inter alia

, awarded them $5 million for breach of

contract, $2.5 million for conversion, $1.75 million for breach of

fiduciary duty, $1.3 million for tortious interference, and $7.5

million in punitive damages.

Browning’s new trial motion was den ied; its motion for

judgment as a matter of l aw, granted in part. The court found

insufficient evidence for breach of fiduciary duty ; ordered

plaintiffs to e lect a recovery from among the three remaining

substantive awards; reduced punitive damages to $4 million; granted

Browning a $1.4 million setoff; denied its motion to set aside the

bankruptcy court’s judicial estoppel ruling; and limited

prejudgment interest.

P laintiffs elected, under protest, to recover for breach of

contract (concomitantly, no punitive damages). The final judgment

awarded d amages of $3.6 million ($5 million for contract breach- 10 -

less $1.4 million setoff), and $1.6 million for attorney’s fees and

costs.

II.

Among numerous issues presented, Browning claims judicial

estoppel, except for the tortious interference claim. Plaintiffs

cross-appeal. We hold that plaintiffs are judicially estopped,

except for the interference claim; it is time-barred.

A.

Although we are the second court to review the bankruptcy

court’s judicial estoppel ruling, we review it “as if this were an

appeal from a trial in the district court”. Phoenix Exploration,

Inc. v. Yaquinto (Matter of Murexco Petroleum, Inc.) , 15 F.3d 60,

62 (5th Cir. 1994). Because judicial estoppel is an equitable

doctrine, and the decision whether to invoke it within the court’s

discretion, we review for abuse of discretion the ban kruptcy

court’s rejection of the doctrine. See, e.g., Ergo Science, Inc.

v. Martin , 73 F.3d 595, 598 (5th Cir. 1996).

“[A]n abuse of discretion standard does not mean a mistake of

law is beyond appellate correction”, because “[a] district court by

definition abuses its discretion when it makes an error of law”.

Koon v. United States

, 518 U.S. 81, 100 (1996). Accordingly,

“[t]he abuse of discretion standard includes review to determine

that the discretion was not guided by erroneous legal conclusions”.

Id

. S ee also Latvian Shipping Co. v. Baltic Shipping Co.

, 99 F.3d

690, 692 (5th Cir. 1996) (“We will not find an abuse of discretion

unless the district court’s factual findings are clearly erroneous1 See also Data Gen eral Corp. v. Johnson , 78 F.3d 1556, 1565

(Fed. Cir. 1996) (“The doctrine of judicial estoppel is that where

a party successfully urges a particular position in a legal

proceeding, it is estopped from taking a contrary position in a

subsequent proceeding where its interests have changed”); Reynolds

v. Commissioner of Internal Revenue

, 861 F.2d 469, 472-73 (6th Cir.

1988) (internal quotation marks and citations om itted) (“Courts

have used a variety of metaphors to describe the doctrine,

characterizing it as a rule against playing fast and loose with the

courts, blowing hot and cold as the occasion demands, or having

one’s cake and eating it too. Emerson’s dictum that a foolish

consistency is the hobgoblin of little minds cuts no ice in this

context”).

- 11 - or incorrect legal standards were applied”); Meadowbriar Home for

Children, Inc. v. Gunn

, 81 F.3d 521, 535 (5th Cir. 1996) (court

“abuses its discretion if it bases its decision on an erroneous

view of the law or on a clearly erroneous assess ment of the

evidence”).

Because judic ial estoppel was raised in the context of a

bankruptcy case, involving Coastal’s express duty und er the

Bankruptcy Code to disclose its assets, we apply federal law. S ee

Johnson v. Oregon Dept. of Human Resources

, 141 F.3d 1361, 1364

(9th Cir. 1998) (action under Americans with Disabilities Act;

“[f]ederal law govern s the application of judicial estoppel in

federal courts”).

Judicial estoppel is “a common law doctrine by which a party

who has assumed one position in his pleadings may be estopped from

assuming an inconsistent position”. Brandon v. Interfirst Corp.

,

858 F.2d 266, 268 (5th Cir. 1988). 1 The purpose of the doctrine is

“to protect the int egrity of the judicial process”, by

“prevent[ing] parties from playing fast and loose with the courts

to suit the exigencies of self interest”. I d

. (internal quotation2 See also United States v. McCaskey

, 9 F.3d 368, 379 (5th Cir.

1993) (purpose of doctrine is “to protect the integrity of the

judicial process and to prevent unfair and manipulative use of the

court system by litigants”), cert. denied

, 511 U.S. 1042 (1994);

McNemar v. Disney Store, Inc.

, 91 F.3d 610, 616 (3d Cir. 1996)

(“The doctrine of judicial estoppel serves a consistently clear and

undisputed juri sprudential purpose: to protect the integrity of

the courts.”), cert. denied

, 519 U.S. 1115 (1997); M atter of

Cassidy , 892 F.2d 637, 641 (7th Cir.), cert. denied , 498 U.S. 812

(1990) (“Judicial estoppel is a doctr ine intended to prevent the

perversion of the judicial process”); R eynolds

, 861 F.2d at 472

(internal quotation marks and citation omitted) (“The purpose of

the doctrine is to protect the courts from the perversion of

judicial machinery”).

3 See also McNemar

, 91 F.3d at 617 (rejecting contention that

party seeking estoppel must show that it would be prejudiced unless

opponent is estoppe d); Ryan Operations G.P. v. Santiam-Midwest

Lumber Co.

, 81 F.3d 355, 360 (3d Cir. 1996) (“While privity and/or

detrimental reliance are often present in judicial estoppel cases,

they are no t required”); D ata General

, 78 F.3d at 1565; Fleck v.

KDI Sylvan Pools, Inc.

, 981 F.2d 107, 121-22 (3d Cir. 1992), cert.

denied , 507 U.S. 1005 (1993).

- 12 - marks, parentheses, and citation omitted). 2 Because the doctrine

is intended to protect the judicial system, rather than the

litigants

, detrimental reliance by the opponent of th e party

against whom the doctrine is applied is not necessary. S ee Matter

of Cassidy , 892 F.2d 637, 641 & n.2 (7th Cir.), cert. denied , 498

U.S. 812 (1990). 3

“The policies underlying the doctrine include preventing

internal inconsistency, precluding litigants from playing fast and

loose with the courts, an d prohibiting parties from deliberately

changing positions according to the exigencie s of the moment.”

United States v. McCaskey

, 9 F.3d 368, 378 (5th Cir. 1993). The

doctrine is generally applied where “intentional self-contradiction

is being used as a means of obtaining unfair advantage in a forum4 See also Taylor v. Food World, Inc. , 133 F.3d 1419, 1422

(11th Cir. 1998) (int ernal quotation marks and citation omitted)

(“Judicial estoppel is applied to the calculated assertion of

divergent sworn positions

... and is designed to prevent parties

from making a mockery of justice by inconsistent pleadings”); Ryan

, 81 F.3d at 358 (“The basic pr inciple ... is that absent any good

explanation, a party should not be allowed to gain an advantage by

litigation on one theory, and then seek an inconsistent advantage

by pursuing an incompatible theory”). “[W]here a party assumes a

certain position in a legal proceeding, and succeeds in maintaining

that position, he may not thereafter, simply because his interests

have changed, assume a contrary position.” Davis v. Wakelee , 156

U.S. 680, 689 (1895).

5 Cf

. McNemar

, 91 F.3d at 617 (rejecting contention that party

seeking estoppel must show that prior statement was accepted by a

judicial tribunal); Ryan

, 81 F.3d at 361 (doctrine of judicial

estoppel contains no requirement that “a party must have benefitted

from her prior position in order to be judicially estopped from

subsequently asserting an inconsistent one”; but, obviously,

“threat to the integrity of the judicial process from subsequent

assertion of an incompatible position is more immediate” when

tribunal has acted in reliance on party’s initial assertion).

- 13 - provided for suitors seeking justice”. S carano v. Central R. Co.

,

203 F.2d 510, 513 (3d Cir. 1953). 4

Most co urts have identified at least two limitations on the

application of the doctrine: (1) it may be applied only where the

position of the party to be estopped is clearly inconsistent with

its previous one; and (2) that party must have convinced the court

to accept that previous position. See United States for use of

American Bank v. C.I.T. Construction Inc. of Tex.

, 944 F.2d 253,

258 (5th Cir. 199 1) (“The ‘judicial acceptance’ requirement

minimizes the danger of a party contradicting a court’s

determination based on the party’s prior position and, thus,

mitigates the corresponding threat to judicial integrity”); Matter

of Cassidy

, 892 F.2d at 641; Folio v. City of Clarksburg, W.V., 134

F.3d 1211, 1217-18 (4th Cir. 1998). 5- 14 -

The Sixth Circuit has explained that the “judicial acceptance”

requirement “does not mean that the party against whom the judicial

estoppel doctrine is to be invoked must have prevailed on the

merits. Rather, judicial acceptance means only that the first

court has adopted the position urged by t he party, either as a

preliminary matter or as part of a final disposition”. R eynolds v.

Commissioner

of Internal Revenue , 861 F.2d 469, 473 (6th Cir.

1988).

Some courts have imposed addi tional requirements. For

example, the Fourth Circuit holds that the position must be one of

fact instead of law. Folio , 134 F.3d at 1217-18. Contra

, Matter

of Cassidy , 892 F.2d at 642 (“the change of position on the legal

question is every bit as harmful to the administration of justice

as a change on an issue of fact”).

And, many courts have imposed the additional requirement that

the party to be estopped must have acted intentionally, not

inadvertently. E.g.

, Johnson , 141 F.3d at 1369 (“If incompatible

positions are based not on chicanery, but only on inadvertence or

mistake, judicial estoppel does not app ly”); F olio

, 134 F.3d at

1217-18; McNemar v. Disney Store, Inc. , 91 F.3d 610, 618 (3d Cir.

1996) (internal quotation mar ks and citation omitted) (part of

threshold inquiry for application of judicial estoppel is whether

party to be estopped “assert[ed] either or both of the inconsistent

positions in bad faith– i.e.

, with intent to play fast and loose

with the court”); Ryan Op erations G.P. v. Santiam-Midwest Lumber

Co.

, 81 F.3d 355, 358, 362 (3d Cir. 1996) (internal quotation marks- 15 -

and citation omitted) (judicial estoppel doctrine “not intended to

eliminate all inconsistencies, however slight or inadvertent;

rather, it is designed to prevent litigants from playing fast and

loose with the courts”; doctrine “does not apply when the prior

position was taken because of a good faith mistake rather than as

part of a scheme to mislead the court”; inconsistency “must be

attributable to i ntentional wrongdoing”); M atter of Cassidy

, 892

F.2d at 642 (judicial estoppel should not be applied “where it

would work an injustice, such as where the former position was the

product of inadvertence o r mistake”); J ohnson Serv. Co. v.

TransAmerica Ins. Co.

, 485 F.2d 164, 175 (5th Cir. 1973) (applying

Texas law on judicial estoppel; “the rule looks toward cold

manipulation and not an unthinking or confused blunder”).

Browning maintains that, beca u se of the nondisclosure in

Coastal’s bankruptcy schedules and its lift-stay stipulation,

plaintiffs, as Coastal’s successors, are judicially estopped

(except for the tortious interference claim).

Despite the undisputed facts tha t Coastal was aware of, but

did not disclo se, the claims, the bankruptcy court rejected

judicial estoppel, stating that, fromthe inception of Coastal’s

adversary proceeding, Browning, the Trustee, and Westinghouse were

aware of that action. That statement, however, is in the section

of the opinion addressing e quitable estoppel (which, of cours e

,

requires detrimental reliance; that defense is no longer at issue).

Because the nondisclosure is not discussed in the part on judicial

e stoppel, it is unclear whether, in rejecting such estoppel, the- 16 -

court relied on the parties’ awareness of the adversary proceeding.

With respect to the lift-stay stipulation, the ba nkruptcy

c ourt noted that it was prepared by Westinghouse’s attorneys and

reviewed by Coastal’s attorney, who “checked it with his client for

accuracy” when it was signed. The court stated that Westinghouse

and Coastal’s attorneys “overlooked” the adve rsary proceeding in

arriving at the $20,000 figure for Coastal’s general intangibles;

but ruled that it was not their “intent to omit mention of the

Browning lawsuit”; and concluded that “[s]uch omission appears to

h ave been inadvertent, as opposed to any outright conspiracy, or

intentional self-cont radiction being used as a means to obtain

unfair advantage”. In this regard, the court concluded that the

lift-stay stipulation was not intended to be an “exhaustive listing

of assets”.

The bankruptcy court found that when the stipulation was

signed and the stay lifted, Duke, Coastal’s CEO and later IC’s,

believed that Browning’s act ions had damaged Coastal in the $10

million range. The bankruptcy court stated that “[i]t appears that

s uch lawsuit did have value, but such value did not approach the

projected deficiency of approximately $5 million that

[Westinghouse] anticipated would exist after” it s old Coastal’s

assets.

Accordingly, the bankruptcy court held that Coast al’s tort

claims were not foreclosed upon and were not affected by judicial

estoppel . Likewise, the court concluded that there was

“insufficient factual or legal ju stification to show that [IC]- 17 -

should be judicially estopped

... from asserting

... contract

claims of Coastal ... [greater than] $20,000”; and that there was

insufficient proof that Coastal, IC, or Westinghouse participated

in a fraud on the court or creditors with respect to listing assets

on Coastal’s schedules, the lift-stay stipulation, or lifting the

stay.

On appeal, the district court summarily “agree[d] with the

Bankruptcy Court’s findings [, especially concerning inadvertence,]

and [held] that judicial estoppel should not be applied”.

It goes without saying that the Bankruptcy Code and Rules

impose upon bankruptc y debtors an express, affirmative duty to

disclose all assets, including contingent and unliquidated claims

.

11 U.S.C. § 521(1) (“The debtor shall–(1) file a list of creditors,

and unless the court orders otherwise, a schedule of assets and

liabilities, a schedule of current income and current expenditures,

and a statement of the debtor’s financial affairs”). “The duty of

disclosure in a bankruptcy proceeding is a continuing one, and a

de btor is required to disclose all potential causes of action”.

Youngblood Group v. Lufkin Fed. Sav. & Loan Ass’n , 932 F. Supp.

859, 867 (E.D. Tex. 1996). “‘The debtor need not know all the

facts or even the legal basis for the cause of action; rather, if

the debtor has enough information

... prior to confirmation to

suggest that it may have a possible cause of action, then that is

a “known” cause of action such that it must be disclo sed’”. I d

.

(brackets omitted; quoting Union Carbide Corp. v. Viskase Corp. (In

re Envirodyne Indus., Inc.)

, 183 B.R. 812, 821 n.17 (Bankr. N.D.6 See also Ryan

, 81 F.3d at 362 (“disclosure requirements are

crucial to the effective functioning of the federal bankruptcy

system”); Louden v. Federal Land Bank of Louisville (In re Louden)

, 106 B.R. 109, 112 (Bankr. E.D. Ky. 1989) (“[w]ithout

... disclosure

[required by 11 U.S.C. § 521], the basic system of marshalling of

assets and the result ing distribution of proceeds to creditors

- 18 - Ill. 1995)). “ A ny claim with potential must be disclosed

, even if

it is ‘contingent, dependent, or conditional’”. I d

. (quoting

W estland Oil Dev. Corp. v. MCorp Management Solutions, Inc. , 157

B.R. 100, 103 (S.D. Tex. 1993)) (emphasis added).

Viewed against the backdrop of the bankruptcy system and the

ends it seeks to achieve, the importance of this disclosure duty

cannot be overemphasized. See generally Oneida Motor Freight, Inc.

v. United Jersey Bank

, 848 F.2d 414 (3d Cir.) (discussing

importance of disclosure to creditors and to ba nkruptcy court),

cert. denied , 488 U.S. 967 (1988).

The rationale for

... decisions [invoking

judicial estoppel to prevent a party who

failed to disclose a claim in bankruptcy

proceedings from asserting that claim after

emerging from bankruptcy] is that the

integrity of the bankruptcy system depends on

full and honest disclosure by deb tors of all

of their assets

. The courts will not permit a

debtor to obtain relief from the bankruptcy

court by representing that no claims exist and

then subsequently to assert those claims for

his own benefit in a separate proceeding. T he

interests of both the creditors, who plan

their actions in the bankruptcy proceeding on

the basis of information supplied in the

disclosure statements, and the bankruptcy

court, which must decide whether to approve the plan of reorganization on the same basis,

are impaired when the disclosure provided by

the debtor is incomplete

.

Rosenshein v. K leban , 918 F. Supp. 98, 104 (S.D.N.Y. 1996)

(emphasis added). 6would be an impossible task”).

7 See also Chandler v. Samford University , 35 F. Supp. 2d 861

(N.D. Ala. 1999); Youngblood Group , 932 F. Supp. 859; Rosenshein

, 918 F. Supp. 98; Okan’s Foods, Inc. v. Windsor Associates Ltd.

Partnership (In re Okan’s Foods, Inc.) , 217 B.R. 739 (Bankr. E.D.

Pa. 1998); W elsh v. Quabbin Timber, Inc.

, 199 B.R. 224 (D. Mass.

1 996); Freedom Ford, Inc. v. Sun Bank & Trust Co. (Ma tter of

Freedom Ford)

, 140 B.R. 585 (Bankr. M.D. Fla. 1992); State of Ohio,

Dept. of Taxation v. H.R. P. Auto Center, Inc. (In re H.R.P. Auto

Center, Inc.)

, 130 B.R. 247 (Bankr. N.D. Ohio 1991); Sure-Snap

Corp. v. Bradford Nat’l Bank

, 128 B.R. 885 (D. Vt.), a ff’d

, 948

F.2d 869 (2d Cir. 1991); Pako Corp. v. Citytrust

, 109 B.R. 368 (D.

- 19 - As Coastal’s bankruptcy attorney admitted at the July 1993

bankruptcy court hearing, it is very important that a debtor’s

bankruptcy sch edules and statement of affairs be as accurate as

possible, because that is the initial information upon which all

creditors rely. The significance of the undisclosed claims was

underscored by the testimony of Westinghouse’s counsel at that same

hearing. When asked why the claims against Browning were not

included with the assets described in the lift-stay stipulation, he

testifi ed that it was not intended to be an exhaustive list of

Coastal’s assets; tha t, in order to determine Coastal’s assets,

creditors should have looked instead at, i nter alia

, Coastal’s

schedules and statement of finan cial affairs. (Of course, such

claims/assets were not there disclosed.)

Courts in numerous cases have precluded debtors or f ormer

debtors from pursuing claims about which the debtors had knowledge,

but did not disclose, during the debtors’ bankruptcy proceedings.

See, e.g.

, Payless Wholesale Distributors, Inc. v. Alberto Culver

(P.R.) Inc.

, 989 F.2d 570 (1s t Cir.), c ert. denied

, 510 U.S. 931

(1993); Oneida

, 848 F.2d 414. 7 It is along this line that BrowningMinn. 1989); Louden , 106 B.R. 109; Hoffman v. First Nat’l Bank of

Akron, IA (In re Hoffman) , 99 B.R. 929 (N.D. Iowa 1989); G alerie

Des Monnaies of Geneva v. Deutsche Bank, A.G. (In re Galerie Des

Monnaies of Geneva, Ltd.)

, 55 B.R. 253 (Bankr. S.D.N.Y. 1985),

aff’d

, 62 B.R. 224 (S.D.N.Y. 1986). C f

. Donaldson v. Bernstein

, 104 F.3d 547 (3d Cir. 1997) (debtors’ principals judicially

estopped from asserting that one of th em had terminated

relationship with debtor because debtor did not disclose alleged

resignation prior to bankruptcy court’s a pproval of plan of

reorganization); Cullen Center Bank & Trust v. Hensley (Matter of

Criswell)

, 102 F.3d 1411 (5th Cir. 1997) (Chapter 7 trustee

judicially estopped from asserting that creditor was not transferee

of oil and gas properties that debtor fraudulently conveyed to

children, because trustee succeeded in preference action based on

assertion that creditor’s lien was a transfer ) ; Eubanks v.

F.D.I.C.

, 977 F.2d 166 (5th Cir. 1992) (res judicata effect of

order confirming plan of reo rganization barred debtors from

asserting undisclosed claims); County Fuel Co., Inc. v. Equitable

Bank Corp.

, 832 F.2d 290 (4th Cir. 1987) (debtor’s failure to

assert breach of contract counterclaim to proof of claim filed by

cre ditor barred subsequent breach of contract action against

creditor based on “principles of waiver closely relat ed to those

that, in the interests of repose and integr ity, underlie res

judicata”); United Virginia Bank/Seaboard Nat’l v. B.F. Saul Real

Estate Investment Trust , 641 F.2d 185 (4th Cir. 1981) (creditor

judicially estopped from litigating issue based on earlier

inconsistent position in bankruptcy proceedings).

- 20 - takes its stand. It maintains that the bankruptcy court applied an

incorrect standard of law and , therefore, abused its discretion;

that, rather than basing its decision on lack of knowledge vel non

,

the court improperly based it on self-serving claims of lack of

intent to conceal. Browning maintains that “inadvertence” should

preclude judicial estoppel only when the inconsistent positions

result from a lack of knowledge. We need not agree entirely with

Browning’s contention, in order to conclude, as discu ssed below,

that the bankruptcy court abused its discretion.

1.

Plaintiffs respond that the first jud icial estoppel prong

(inconsistent positions) is not satisfied, because Coastal- 21 -

fulfilled its duty to d isclose its claims against Browning by

initiating the adversary proceeding in A pril 1986, a week after

filing its Chapter 11 petition. According to plaintiffs, the

subsequent nondisclosure was inconsequential because, in the light

of the ad versary proceeding, everyone involved in the bankruptcy

proceeding, including Browning, was aware of the claims.

a.

The record contradicts that assertion; Browning, Westinghouse,

and Coastal’s bankruptcy counsel all believed that, after Browning

returned the inventory in May 1986, little remained of the

adversary proceeding. Coastal’s bankruptcy attorney testified at

the July 1993 bankruptcy court hearing that the primary purpose of

the adversary proceeding was to cause that inventory return. The

attorney who represented Westinghouse in connection with lifting

the stay testified similarly that Coastal’s claims against Browning

were not mentioned in the lift-stay stipulation, during the liftstay hearing, in the notice of the au ction, or at the auction

because Westinghouse believed that the claims sought inventory

t urnover from Browning, which had already been accomplished; and

that there was little left to be done in that adversary proceeding.

Likewise, at a bankruptcy hearing in January 1994, Browning’s

attorney testified that inventory turnover was the essence of the

adversary proceeding.

In the light of that consensus, it was particularly important

for Duke (Coastal) to disclose his vastly different view: that the

claims were worth millions. In sum, this silence led Browning, the8 Even if detrimental relianc e were an element, there is

evidence that Browning relied on the no-claims-existed

representations in withdrawing its objection to lifting the stay

and in not bidding at the auction on Coastal’s intangible assets.

- 22 - other creditors, and the bankruptcy court to believe that Coastal’s

claims against Browning were resolved in May 1986, when it returned

the inventory.

b.

Moreove r, B rowning’s knowledge of the claims

, or its nonreliance on the nondisclosure, even if supported by the record, are

irrelevant. As discussed s upra

, unl ike the well-known reliance

element for other forms of estoppel, such as equitabl e estoppel,

detrimental reliance by the party seeking judicial estoppel is not

required. Again, the purpose of j udicial estoppel is not to

protect the litigants; it is to protect the integrity of the

judicial system. 8

Accordingly, the inconsistent positions prong for judicial

estoppel is satisfied. By omitting the claims from its schedules

and stipulation, Coastal represented that none existed. Likewise,

in scheduling its debt to Browning, Coastal did not specify that it

was disputed, contingent, or subject to setoff. But in this

proceeding, plaintiffs have asserted claims for $10 million against

Browning for allegedly causing Coastal’s bankruptcy and demise.

2.

Plaintiffs do not seriously dispute that the second prong for

judicial estoppel (acceptance of Coastal’s fi rst position by the

bankruptcy court) is satisfied. The stay was lifted based in part9 See, e.g.

, Brassfield v. Jack McLendon Furniture, Inc.

, 953

F. Supp. 1424 (M.D. Ala. 1996) (in Chapter 7 case, whe re claims

accrued after filing petition, and where debtor was not aware of

claims during bankruptcy, debtor not judicially estopped from

asserting unsch eduled claims); D awson v. J. G. Wentworth & Co.,

Inc. , 946 F. Supp. 394 (E.D. Pa. 1996) (although debtor disclosed

claim in amended bankru ptcy schedules, fact issue regarding

debtors’ good or bad faith in not disclosing claims in original

bankruptcy schedules precluded summary judgment based on judicial

estoppel); Richardson v. United Parce l Serv. , 195 B.R. 737 (E.D.

Mo. 1996) (judicial estoppel inapplicable for undisclosed claim

where deb tor’s bankruptcy case was still pending, assets had not

been distributed, and no plan had been confirmed); In re Envirodyne

Industries, Inc.

, 183 B.R. 812 (where retention of jurisdiction in

plan of reorganization put creditors on notice as to possibility of

such actions, and debtor’s undisclosed counterclaim did not assert

position contrary to listing of creditor’s claimas undisputed,

judicial estoppel did not bar debtor from pursuing counterclaim and

setoff request); Elliott v. ITT Corp.

, 150 B.R. 36 (N.D. Ill. 1992)

(where debtor was unaware that claim against creditor existed, and

amended schedule after discovery of potential claims, judicial

estoppel inapplicable); Neptune World Wide Moving, Inc. v.

Schneider Moving & Storage Co. (In re Neptune World Wide Moving,

- 23 - on the stipulation, which represented that Coastal’s intangible

assets were worth less than $20,000; and that its assets were

inadequate to satisfy its debt to Westinghouse.

3.

Nevertheless, plaintiffs maintain that judicial estoppel is

inapplicable because the nondisclosure was unintentional and

inadvertent. On this record, plaintiffs’ and the bankruptcy

court’s reliance on inadvertence to preclude judicial estoppel is

misplaced. Therefore, the court abused its discretion.

Our review of the jurisprudence convinces us that , in

considering judicial estoppel for bankruptcy cases , the debtor’s

failure to satisfy its statutory disclosure duty is “inadvertent”

only when, in general, the debtor either lacks knowledge of the

undisclosed claims or has no motive for their concealment. 9Inc.)

, 111 B.R. 457 (Bankr. S.D.N.Y. 19 90) (fact issue regarding

debtor’s contention that defendants concealed and altered documents

which prevented debtor from discovering and disclosing preferential

or fraudulent transfer claims in disclosure st atement precludes

dismissal based on judicial estoppel).

- 24 - Two cases from the Third Circuit aptly illustrate the critical

distinction between nondisclo sures based on a lack of knowledge,

and those where, as here, the debtor fails to satisfy its

disclosure duty despite knowledge of the undisclose d facts. In

Oneida

, 848 F.2d 414, judicial estoppel barred a former Chapter 11

debtor from prosecuting against a bank claims not disclosed during

the bankruptcy proceedings. The excuse for nondisclosure was not

lack of knowledge; instead, that the bankruptcy case was never in

a procedural posture for the claims to be properly asserted. Id

.

at 418. Although the court stopped short of holding that the

nondisclosure was equivalent to taking a position that the claims

did not exist, it concluded that the debtor’s acknowledgment of its

debt to the bank, without any indication that the debt was disputed

or subject to setoff (as is the situation here), constituted a

position inconsistent with its later action against the bank. I d

.

at 419.

On the other hand, in Ryan

, 8 1 F.3d 355, the Third Circuit

concluded that a Chapter 11 d ebtor’s earlier nondisclosure would

not judicially estop the debtor from pursuing the claims outside of

bankruptcy, because there was no evidence that the debtor acted in

bad faith. I d

. at 362. The debtor, a builder, asserted claims

against the manufacturers and suppliers of an allegedly defective- 25 -

product; but it had not listed any potential claims regarding the

product in its bankruptcy schedules.

The court distinguished Oneida on the ground that the debtor

there not only failed to disclose its potential claim as a

contingent asset, but also scheduled its debt as a liabil ity,

without disclosing an offset possibility. Id . at 363. The court

stated that the O neida debtor had knowledge of its claim when it

filed for bankruptcy because the “gravamen of [its] c ase against

the bank was that the bank’s actions were responsible for forcing

[the deb tor] into bankruptcy”, i d .; and noted that the Oneida

debtor had a motive t o conceal the claim because, had the bank

known that the debtor would seek restitution of the amount paid to

the bank under the plan, the bank “might well have voted against

approval of the plan”. I d

. The R yan court concluded that, in

Oneida

, it was “[t]his combination of knowledge of the claim and

motive for concealment in the face of an affirmative duty to

disclose [that] gave rise to an inference of intent sufficient to

satisfy the [bad faith] requirements of judicial estoppel”. I d

. at

363.

In contrast, the court stated that there was no basis for

inferring that the Ryan debtor “deliberately asserted inconsistent

positions in order to gain advantage”, id

. at 363, because there

was “no evidence that the nondisclosure played any role in the

confirmation of the plan or that disclosure of the potential claims

would have led to a different result”, id .; and the debtor’s

failure to list claims against the manufacturers and suppliers as- 26 -

contingent assets was offset by its failure to list, as contingent

liabilities, claims asserted against the debtor by homeowners for

the defective product. Id . The court also noted that the debtor

would derive no appreciable benefit from the nondisclosure, because

creditors would receive 91 percent of any recovery on the claims,

id .; and that the debtor’s actions subsequent to filing its

schedules, including obtaining authorization from the bankruptcy

court to pursue the claims, were inconsistent with an intent to

deliberately conceal them. Id . at 364. The court concluded that

intent to mislead or deceive could not be inferred from the mere

fact of nondisclosure. Id . at 364-65.

In Okan’s Foods, Inc. v. Windsor Associates Ltd. Partnership

(In re Okan’s Foods, Inc.)

, 217 B.R. 739 (Bankr. E.D. Pa. 1998),

the bankruptcy court held that the “bad faith” element mandated by

Ryan was satisfied by “[s]tatements or conduct of the debtor

evincing a reckless disregard for the truth”. I d

. at 755. There,

a Chapter 11 debtor, followin g plan confirmation, filed an

adversary complaint against its creditor-landlord, asserting claims

under 42 U.S.C. § 1983, and alleging that the creditor’s actions

caused its bankruptcy. The court found that, because “the

undisclosed claim involved allegations that a particular creditor’s

conduct precipitated the filing of the bankruptcy case and that

substantial damage to its business occurred as a result

..., all of

the facts underlying the claims were available and known to the

debtor well before confirmation”, id

. at 756, and inferred that the

debtor’s motive for the pre-confi rmation nondisclosure was “to- 27 -

preserve for its own uses, to the exclusion of its creditors, any

recovery it might obtain upon a successful prosecution of such

claim”. Id

.

Coastal’s claimed “inadvertence” is not the type that

precludes judicial estoppel against plaintiffs, as Coastal’s

successors, from asserting in the instant litigation the previously

nondisclosed claims; Coastal both knew of the facts giving rise to

its inconsistent positions, and had a motive to conceal the claims.

It is undisputed that Duke, who, as Coastal’s CEO, signed

Coastal’s schedules, then believed that Coastal had claims for $10

million against Browning. And, as found by the bankruptcy court,

he continued to maintain that belief when he authorized Coastal’s

attorney to execute the lift-stay stipulation. At the July 1993

bankruptcy hearing, when asked why he did not disclose those claims

on Coastal’s schedules, Duke responded that “[w]e pretty much

relied on our attorneys. We had no experience in filling those

out, and we provided them the information, and maybe later on

during the process,

... a couple of months down the road we may

have filled the m out ourselves.... We went to [a] library and

tried to find books on how to fill these forms out....” He

testified further: “[W]e had never done these kind of statements

before, and we depended upon our legal counsel

... about these

types of things, and he had kind of a check list for us.... [W]e

depended upon [him] to give us the guidance on what to put....”

Finally, Duke testified that he did not know what “contingent” and

“unliquidated” claims meant under bankruptcy law; that Coasta l’s- 28 -

counsel told him “what to put” on the schedules; that it was

counsel’s con clusion that “there was no value” in the claims

against Browning; and that, if there was an error, it was “just an

oversight”.

But, at that July 1993 hearing, Coastal’s bankruptcy attorney

testified that th e adversary proceeding against Browning was a

contingent or unliquidated claim that should have been included on

Coastal’s schedules; and conceded that Coastal’s debt to Browning

“probably” should have been listed as being disputed. Although the

attorney testified that it was his firm’s policy to discuss

schedules with clients, he did not recall his specific involvement

in preparing the schedules, could not recall any discussions with

Young or Duke about the claims against Browning, and could not

testify as to why the adversary proceeding was n ot listed as a

contingent or unliquidated claim.

Duke’s claimed lack of awareness of Coastal ’s statutory

disclosure duty for its claims against Browning is not re levant.

See Chandler v. Samford University , 35 F. Supp. 2d 861, 865 (N.D.

Ala. 1999) (“Research reveals no case in which a court accepted

such an excuse for a party’s failure to comply with the requirement

of full disclosure”). In any event, no one testified that

Coastal’s bankruptcy attorney advised Coastal not to disclose the

claims.

Moreover, Coastal had a motive for concealing them. Had those

claims, believed to be worth $10 million (more than enough to

satisfy Coastal’s debt to Westinghouse) been disclosed, Coastal’s- 29 -

unsecured creditors might have opposed lifting the stay, and the

bankruptcy court might have r eached a different decision in that

regard. Or, even had the stay been lifted, creditors, including

Browning, might have chosen to bid more at the foreclosure auction

for Coastal’s assets. Browning’s representative at the auction

testified that, had Browning been aware that Coastal’s claims

against it were then being sold, he “strongly suspect[ed]” that

Browning would have authorized him to bid on them.

Coastal avoided p aying its debts by filing bankruptcy. Yet

IC, formed by Coastal’s CEO, purchased Coastal’s assets, including

the undisclosed $10 million claim against Browning, for only $1.24

million, and continued to sell Browning’s former inventory at

discou nted prices, then obtained a net judgment of $3.6 million

against Browning on the undisclosed claims. For facts similar to

those at hand, the bankrupt cy court’s interpretation of the

“inadvertence” exception for judicial estoppel would encourage

bankruptcy debtors to concea l claims, write off debts, purchase

debtor assets at bargain prices, and then sue on undisclosed claims

and possibly recover windfalls. This, of course, would be to the

detriment of creditors who decided not to bid on the debtor’s

assets at a foreclosure sale because they lacked knowledge about

the existence or value of the undisclosed claims.

Needless to say, judicial estoppel is intended to prevent just

such a process. As the First Circuit aptly stated in Payless :

The basic principle of bankruptcy is to obtain

a discharge from one’s creditors in return for

all one’s assets, except those exemp t, as a

result of which creditors release their own- 30 - claims and the bankrupt can start fresh.

Assuming there is validity in [debtor’s]

present suit, it has a better plan. Conceal

your claims; get rid of your creditors on the

cheap, and start over with a bundle of rights.

This is a palpable fraud that the court will

not tolerate, even passively. [Debtor], having

obtained judicial relief on the representation

that no claims existed, can not now resurrect

them and obtain relief on the opposite basis.

989 F.2d at 571.

4.

Finally, plaintiffs maintain that judicial estoppel would be

inequitable because Browning also took inconsistent positions on

issues related to its defense (regarding owners hip of the claims

and whether they were foreclosed on by Westinghouse). We disagree.

Again, the purpose of judicial estoppel is to protect the integrity

of courts, not to punish adversaries or to protect litigants.

B.

As noted, the only claim not barred by judicial estoppel is

that fo r tortious interference. Plaintiffs claimed that, around

the start of 1986, and but for Browning’s interference, Walter

Helms would have purchased Coastal for $10 million. Helms

testified that Browning’s president, Kooyman, told him (Helms) that

he had heard Helms was interested in purchasing Coastal; Helms

confirmed that he intended to do so; and Kooyman told Helms that

“he couldn’t divulge certain things that were going on, but it

probably would be a good idea if [Helms] held up a little bit”.

Browning presents, inter alia

, a meritorious limitations bar.

1.- 31 -

Although Coastal raised tortious interference claims against

Browning in its original complaint (filed in 1986), and IC did

l ikewise in several of its amended complaints, those claims were

premised on Browning’s failure to return inventory and its impact

on Coasta l’s relationships with its customers and secured lender

(Westinghouse). It was n ot until late December 1993, over seven

years after the adversary proceeding was filed, that IC moved for

leave to file a fifth amended complaint which, for the first time

,

claimed tortious interference based on the alleged Helms-purchase.

That amended complaint was not filed until almost two years later,

in 1995. And, plaintiffs subsequently restricted their tortious

interference claim to the Helms-purchase.

Under Tex as law, a two-year limitations period applies to

tortious interference claims, T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. §

16.003(a); First Nat’l Bank of Eagle Pass v. Levine

, 721 S.W.2d

287, 289 (Tex. 1986); and, “[f]or the purposes of application of

the statute of limitations, a cause of action generally accrues at

the time when facts come into existence which authorize a claimant

to seek a judicial remedy.... Put another way, a cause of action

can generally be said to accrue when the wrongful act effects an

injury”. Murray v. San Jacinto Agency, Inc. , 800 S.W.2d 826, 828

(Tex. 1990) (internal quotation marks and cit ation omitted); s ee

also Computer Associates Int’l, Inc. v. Altai, Inc.

, 918 S.W. 2 d

453, 458 (Tex. 1996 ) (“The traditional rule in Texas is that a

cause of action accrues and the two-year limitations period begins

to run as soon as the owner suffers some injury, regardless of when- 32 -

the injury becomes disc overable”). On the other hand, “[t]he

discovery rule exception defers accrual of a cause of action until

the plaintiff knew or, exercising reasonable diligence, should have

known of the facts giving rise to the cause of acti on”. Id. at

455.

But, the Texas Supreme Court has stated that “[t]he discovery

rule, in application, proves to be a very limited exception to

statutes of limitations”. I d

. at 455 (internal quotation marks and

citation omitted); see al so S.V. v. R.V. , 933 S.W.2d 1, 25 (Tex.

1996) (“exceptions to the legal injury rule should be few and

narrowly drawn”). “Generally, application [of the discovery rule]

has b een permitted in those cases where the nature of the injury

incurred is inherently undiscoverable and the evidence of injury is

objectively v erifiable”. A ltai

, 918 S.W.2d at 456 (internal

quotation marks and citation omitted).

In seeking judgment as a matter of law, Browning asserted that

the interference claim was time-barred. Plaintiffs had to prove

applicability of the discovery rule: first, that tort ious

interference claims are inherently undiscoverable; and second, that

their claim is objectively verifiable. S ee Woods v. William M.

Mercer, Inc. , 769 S.W.2d 515, 518 (Tex. 1988).

a.

Browning contends that the claimis not inherently

undiscoverable because the alleged injury is not, by its nature,

unlikely to be discovered within the limitations period. Along

this line, Browning maintains that Coastal became aware of its- 33 -

injury when the alleged sale did not materialize; and that, by

simply asking Helms, the putative purcha ser, Coastal could have

discovered the alleged interference.

Plaintiffs counter that the claim was inherently

undiscoverable because of the difficulty of learning about secret

communications between third parties. They point out that Young,

Coastal’s former president and chairman, testified that he asked

Helms why he wanted to delay purchasing Coastal, and that Helms

refused to explain until his January 1993 deposition. Duke

testified similarly that, until January 1993, Helms never mentioned

why he did not complete the purchase.

“The requirement of inherent undiscoverability recognizes that

the discovery rule exception should be pe rmitted only in

circumstances where it is difficult for the injured party to learn

o f the negligent act or omission”. A ltai

, 918 S.W.2d at 456

(internal quotation marks and citation omitted). “Inherently

undiscoverable encompasses the requirement that the exist ence of

the injury is not ordinarily discoverable, even though due

diligence has been used”. I d

. The Texas Supreme Court has stated

that “[t]he common thread in [the ‘inherently undisco verable’]

cases is that when the wrong and inju ry were unknown to the

plaintiff because of their very nature and not because of any fault

of the plaintiff, accrual of the cause of action was delayed”.

S.V. , 933 S.W.2d at 7.

“To be ‘inhe rently undiscoverable,’ an injury need not be

absolutely impossible to discover, else suit would never be filed- 34 -

and the question whether to apply the discovery rule would never

arise.” I d

. “Nor does ‘inherently undiscoverable’ mean merely

that a particular plaintiff did not discover his injury within the

prescribed period of limitations; discovery of a particular injury

is dependent not solely on the nature of the injury but on the

circumstances in which it occurred and plaintiff’s diligence as

well”. I d

. “An injury is inherently undiscoverable if it is by

nature unlikely to be discovered within the prescribed limitations

period despite due diligence”. Id

.

Helms was listed in October 1989 as an expert witness for

plaintiffs, and so testified. There was also evidence that he was

a director of IC’s parent, Overline Corporation; that he had been

paid $50,000 annually as a consultant for Overline; that he had

owned ten percent of its stock; and that he was a creditor of IC.

Under these circumstances, Helms’ failure until his deposition in

January 1993 to inform plaintiffs of Browni ng’s alleged

interference is inexplicable.

We doubt that tortious interference is the type of conduct

that, by its nature

, is unlikely, despite due diligence, to be

discovered within the limitations period. In any event, it is not

necessary for us to decide that question. The discovery rule is

inappli cable because, as discussed below, the claim is not

objectively verifiable.

b.

Browning asserts that the claim is not objectively verifiable

because there is no objective or documentary e vidence of either- 35 -

Helms’ alleged offer or Browning’s alleged interference.

Plaintiffs respond, based on Helms’ eyewitness account, that the

claim is objectively verifiable.

The Texas Supreme Court has stated that “the bar of

limitations cannot be lowered for no other reason than a swearing

match between parties over facts and between experts over

opinions”. S.V. , 933 S.W.2d at 15. The requirement of objective

verifiability requires physical or other evidence, such as an

objective eyewitness account, to corroborate the existence of the

claim. S ee S.V.

, 933 S.W.2d at 15. “Objectively verifiable

evidence is the key factor for determining the discovery rule’s

applicability.” A skanase v. Fatjo

, 130 F.3d 657, 668 (5th Cir.

1997).

There is no documentary evidence of Helms’ proposed purchase

or Kooyman’s alleged comment regarding it. The only evidence

concerning Helms’ alleged agreement to purchase Coastal is his and

Young’s testimony; the only evidence concerning interference is

Helms’ testimony. Kooyman, Browning’s president, did not testify

at trial; his testimony was presented by deposition. And, he was

not deposed about his alleged interference — his alleged comments

to Helms.

As stated, Helms testified as a paid e xpert witness for

plaintiffs, was a creditor of IC, and was a consultant, part owner,

and director of IC’s parent. He also had other close ties to the

Coastal and IC principals: at the time of Helms’ testimony, Young

was running a company for Helms; and both Young and Duke had served- 36 -

as expert witnesses for Helms in prior litigation involving one of

Helms’ companies.

2.

Because the discovery rule does not apply to the interference

claim, it is time-barred unless it relates back to the complaints

filed within the limitations period. Rule 15(c) of the Federal

Rules of Civil Procedure provides, in pertinent part:

An amendment of a pleading relates back to the

date of the original pleading when

(1) relation back is permitted by the

law that provides the statute of limitations

applicable to the action, or

(2) the claim or defense asserted in the

amended pleading arose out of the conduct,

transaction, or occurrence set forth or

a t tempted to be set forth in the original

pleading....

F ED

. R. C IV

. P. 15(c).

“[U]nder Rule 15(c), an amendment to a complaint will relate

back to the date of the original complaint if the claim asserted in

the amended ple ading arises out of the conduct, transaction, or

occurrence set forth or attempted to be set forth in the original

pleading”. F .D.I.C. v. Conner

, 20 F.3d 1376, 1385 (5th Cir. 1994)

(internal quotation marks and citation omitted).

The theory that animates this rule is that

once litigation involving particular cond uct

or a given transaction or occurrence has been

instituted, the parties are not entitled to

the protection of the statute of limitations

against the later assertion by amendment of

defenses or claims that arise out of the same

conduct, transaction, or occurrence as set

forth in the original pleading. Permitting

such an augmentation or rectification of

claims that have been asserted before the- 37 - limitations period has run does not offend the

purpose of a statute of limitations, which is

simply to prevent the assertion of stale

claims.

Id . (internal quotation marks and citation omitted).

Browning notes that the tortious interference claim is based

on a different transaction than the earlier claims, which are based

on Browning’s failure to return inventory to Coastal. Plaintiffs

cou nter that the relation-back doctrine applies because Browning

had ample notice, after more than seven years of litigation, that

plaintiffs were suing on all of Browning’s acts that caused

Coastal’s demise; and that Browning’s proposed-purchase

interference was merely part of its broader plan to destroy

Coastal.

We conclude that the claim does not arise out of the same

conduct, transaction, or occurrences presented in the timely-filed

complaint s. As the district court stated in its post-verdict

order:

All of the claims asserted by plaintiffs

revolve around two sets of occurrence s. The

tortious interference ... claim stems from an

attempted sale of Coasta l Plains to a third

party.... The remaining claims involve the

failure of Browning to return inventory to

Coastal Plains.

And, in awarding attorney’s fees, the district court stated that

“[t]he tortious interference claim is not factually interrelated to

the other claims as it arose from a separate transaction”.

Moreover, plaintiffs’ contention that their tortious

interference claim is based on the same transaction or occurrence

as their other claims is not consistent with positions they have- 38 -

taken with respect to a ttorney’s fees and Browning’s right to

setoff. In seeking attorney’s fees, one of plaintiffs’ attorneys

stated by affidavit: “ [w]ith the exception of the claim involving

tortious interference

, all of the causes of action pled in this

case were dependent upon the same set of facts or circumstances”.

(Emphasis added.) In their appellate brief here, pla intiffs

contend that Browning’s tortious int erference caused a separate

injury to Coastal; and assert that, if we affirm the judgment

solely on the basis of the interference claim, Browning will not be

entitled to a setoff because “[t] ortious interference is not

sufficiently connected with Browning’s claim to permit an offset”.

III.

For the foregoing reasons, the judgment is REVERSED

, and

judgment is RENDERED in favor of Browning.

REVERSED and RENDERED