In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-19-00282-CV

___________________________

On Appeal from the 348th District Court

Tarrant County, Texas

Trial Court No. 348-298642-18

Before Sudderth, C.J.; Birdwell and Womack, JJ.

Memorandum Opinion by Justice Birdwell

HAROLD MILLER, Appellant

V.

CONFORMIS, INC. AND JOSEPH BERMAN, Appellees
2

MEMORANDUM OPINION

The trial court granted summary judgment against appellant Harold Miller on the 

basis of judicial estoppel. The hitch was Miller’s failure to disclose this lawsuit in an 

ongoing bankruptcy, contrary to his duty to disclose all his assets. Appellees Conformis, 

Inc. and Joseph Berman argued that in equity, it was only fair to estop Miller from 

pursuing this undisclosed lawsuit. Appellees cited a wealth of Fifth Circuit authority to 

support their position, and the trial court agreed.

But the unique circumstances of Miller’s case—namely, the fact that he was a 

Chapter 13 debtor who had agreed to repay all of his debts—renders the Fifth Circuit’s 

work on this subject distinguishable. In light of these distinctions, we hold that 

appellees failed to conclusively prove three of judicial estoppel’s four elements. We 

therefore reverse the summary judgment and remand.

I. BACKGROUND AND CHAPTER 13 BANKRUPTCY

In 2013, Miller filed for Chapter 13 bankruptcy. In a questionnaire for his 

bankruptcy attorney, he truthfully indicated that he had no claims against third parties. 

The attorney filed with the bankruptcy court a schedule indicating that while Miller had 

many assets, those assets did not include any claims against third parties. The 

bankruptcy court approved Miller’s Chapter 13 plan.

Miller’s Chapter 13 plan was atypical. In a typical Chapter 13 bankruptcy, the 

debtor keeps his property and pays down his debt with monthly payments based on his 
3

disposable income.1

 In re Murphy, 474 F.3d 143, 148 (4th Cir. 2007); see Harris v. 

Viegelahn, 575 U.S. 510, 135 S. Ct. 1829, 1835 (2015). The debtor pays all of his 

disposable income for the benefit of creditors for either a three-year or five-year 

“commitment period”; that period is usually three years if the debtor’s income is below 

the state median, five years if above. See 11 U.S.C.A. § 1325(b)(4); In re Pautin, 521 B.R. 

754, 759 (Bankr. W.D. Tex. 2014). If the debtor makes all of his payments, the debtor 

ordinarily receives a “broad[]” discharge of many types of debt. See United Student Aid 

Funds, Inc. v. Espinosa, 559 U.S. 260, 268, 130 S. Ct. 1367, 1376 (2010). Thus, the chief 

virtues of a Chapter 13 plan are that it allows the debtor to retain his property and to 

make structured payments leading to a discharge of many unsecured debts. See Harris, 

135 S. Ct. at 1835.

But in his plan, Miller proposed to pay all of his debts, secured and unsecured, 

creating an atypical2 “100% plan.” At the end of his five-year plan, no debt would be 

discharged. Miller was using Chapter 13 simply to retain his property and to make 

structured payments on the debt. Thus, Miller’s payment amount was not based on his 

disposable income, but on the size of his debts.

1

The Bankruptcy Code defines “disposable income” as “current monthly 

income” less “amounts reasonably necessary to be expended” for “maintenance or 

support,” business expenditures, and certain charitable contributions. Ransom v. FIA 

Card Servs., N.A., 562 U.S. 61, 65, 131 S. Ct. 716, 721 (2011) (quoting 11 U.S.C.A. 

§ 1325(b)(2)(A)(i)–(ii)).

2

See In re Dubois, 834 F.3d 522, 532 (4th Cir. 2016) (“Chapter 13 debtors typically 

do not enter into 100 percent repayment plans . . . .”).
4

In March 2016, Miller had a Conformis knee replacement. The implant was 

allegedly ill-fitting and required a second replacement to correct the problem. In 

November 2016, Miller’s attorney sent a letter of intent to sue appellees Conformis and 

his surgeon, Berman. However, he did not update his bankruptcy schedules to list the 

lawsuit as an asset.

Miller was unable to keep up with his bankruptcy payments, and in June 2017,

his bankruptcy was dismissed without prejudice. He refiled his bankruptcy case in 

December 2017, but in his updates and revisions, he failed to mention his potential 

lawsuit against Conformis and Berman. Again it was a five-year, 100% plan, and as 

before, the bankruptcy court approved the plan.

In March 2018, Miller sued Conformis and Berman. In March 2019, the 

defendants deposed Miller and discovered the bankruptcy. Miller’s affidavit explained

that at the deposition, he learned for the first time that he needed to include the lawsuit 

in his list of scheduled assets. In April 2019, Miller amended his bankruptcy filings to 

include the lawsuit, which Miller valued at $250,000.

Also in April 2019, the defendants moved for summary judgment on grounds of 

judicial estoppel. They argued that Miller had a duty to disclose this lawsuit to the 

bankruptcy court, and because Miller failed to disclose this suit, he should be estopped 

from proceeding. The trial court agreed and granted summary judgment against Miller.
5

II. JUDICIAL ESTOPPEL

In his first and second issues on appeal, Miller challenges appellees’ proof to 

support the elements of judicial estoppel. Appellees assert that they have offered 

conclusive proof to support the defense, including evidence

• that Miller took inconsistent positions in that he failed to disclose the suit 

in the bankruptcy proceedings, but he then brought this suit;

• that the bankruptcy court officially adopted his inconsistent position by 

confirming his bankruptcy plan; 

• that Miller had a financial motive to conceal the suit, such that it was safe 

to presume his nondisclosure was not inadvertent; and

• that Miller derived an unfair benefit from the nondisclosure.

We hold that appellees have conclusively proved the first element of judicial 

estoppel. However, as we explain, there remain questions of fact on the other elements, 

which preclude summary judgment.

A. Standard of Review and Applicable Law

Judicial estoppel is an affirmative defense upon which appellees had the burden 

of proof. See Ventling v. Johnson, 466 S.W.3d 143, 146 (Tex. 2015). A defendant who 

conclusively proves all elements of an affirmative defense is entitled to summary 

judgment. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). An issue is 

conclusively established if reasonable minds could not differ about the conclusion to 
6

be drawn from the facts in the record. Cmty. Health Sys. Prof’l Servs. Corp. v. Hansen, 525 

S.W.3d 671, 681 (Tex. 2017). In reviewing summary judgment, we view the evidence 

in the light most favorable to the nonmovant, crediting evidence if a reasonable jury 

could do so and disregarding contrary evidence and inferences unless a reasonable jury 

could not. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125, 130 (Tex. 2018).

“Judicial estoppel precludes a party who successfully maintains a position in one 

proceeding from afterwards adopting a clearly inconsistent position in another 

proceeding to obtain an unfair advantage.” Ferguson v. Bldg. Materials Corp. of Am., 295 

S.W.3d 642, 643 (Tex. 2009) (per curiam). A party cannot be judicially estopped if it 

did not prevail in the prior action. Id. The doctrine is not intended to punish 

inadvertent omissions or inconsistencies but rather to prevent parties from playing fast 

and loose with the judicial system for their own benefit. Id.

The integrity of the bankruptcy system depends on full and honest disclosure by 

debtors of all of their assets. In re Coastal Plains, Inc., 179 F.3d 197, 208 (5th Cir. 1999). 

“Judicial estoppel, however, should be applied with caution to avoid impinging on the 

truth-seeking function of the court, because the doctrine precludes a contradictory 

position without examining the truth of either statement.” Eubanks v. CBSK Fin. Grp., 

Inc., 385 F.3d 894, 897 (6th Cir. 2004) (internal quotations omitted). It is not to be 

mechanically applied and demands a flexible approach. Slater v. U.S. Steel Corp., 871 

F.3d 1174, 1187 (11th Cir. 2017) (op. on reh’g en banc); accord Matter of Parker, 789 Fed. 

App’x 462, 464 (5th Cir. 2020) (per curiam).
7

This court applies federal law when deciding whether judicial estoppel applies 

based on a position that a party took in prior bankruptcy proceedings. Flores v. Deutsche 

Bank Nat’l Tr. Co., No. 02-12-00033-CV, 2014 WL 4109645, at *5 (Tex. App.—Fort 

Worth Aug. 21, 2014, no pet.) (mem. op.) (citing Stewart v. Hardie, 978 S.W.2d 203, 208 

n.1 (Tex. App.—Fort Worth 1998, pet. denied) (op. on reh’g)). To prevail, appellees

must conclusively establish the elements of judicial estoppel under the federal test: 

(1) that Miller’s current position is clearly inconsistent with his former position, (2) that 

the trial court accepted his first position (i.e. that Miller “successfully maintain[ed]” the 

earlier position), (3) that Miller’s actions were not inadvertent, and (4) that Miller would 

gain an unfair advantage or impose an unfair detriment on the opposing party if not 

estopped. Id.; see Horsley-Layman v. Adventist Health Sys./Sunbelt, Inc., 221 S.W.3d 802, 

807 (Tex. App.—Fort Worth 2007, pet. denied).

B. Inconsistent Positions

Under our precedent, it is beyond dispute that Miller took inconsistent positions. 

In a bankruptcy action, the debtor must disclose all assets including contingent or 

unliquidated claims. Horsley-Layman, 221 S.W.3d at 806. A debtor’s nondisclosure of 

his claim to the bankruptcy court is “tantamount to a representation that no such claim[] 

existed.” Haren v. Wells Fargo Bank, N.A., No. 02-14-00148-CV, 2015 WL 2341924, at 

*5 (Tex. App.—Fort Worth May 14, 2015, pet. denied) (mem. op.); see Horsley-Layman, 

221 S.W.3d at 807–08. Thus, Miller has taken inconsistent positions by effectively 
8

asserting that his claim did not exist, but later filing this claim, effectively asserting that 

it does exist.

C. Judicial Acceptance and Successfully Maintaining the Position

We have never addressed whether the trial court’s action—simply confirming 

Miller’s bankruptcy plan—qualifies as successfully maintaining the earlier position or 

the trial court formally accepting it. To date, we have only applied judicial estoppel at 

final discharge: only when the bankruptcy is finally closed and the debt is discharged 

have we held that the debtor succeeded in concealing a lawsuit. See Haren, 2015 WL 

2341924, at *5; Flores, 2014 WL 4109645, at *6; Horsley-Layman, 221 S.W.3d at 808;

Stewart, 978 S.W.2d at 208.

There is mixed authority on whether confirming a bankruptcy plan satisfies the 

second element of judicial estoppel. The Fifth Circuit has held that confirmation of a 

Chapter 13 plan means that the debtor has succeeded in concealing the lawsuit. See 

Allen v. C & H Distribs., L.L.C., 813 F.3d 566, 573 (5th Cir. 2015); Flugence v. Axis Surplus 

Ins. Co. (In re Flugence), 738 F.3d 126, 130 (5th Cir. 2013) (per curiam) (op. on reh’g); 

Jethroe v. Omnova Sols., Inc., 412 F.3d 598, 600 (5th Cir. 2005). Conversely, other federal 

circuits have suggested that the line should be drawn at discharge. See Sadlowski v. 

Michaels Stores, Inc., 672 Fed. App’x 729, 730 (9th Cir. 2016) (concluding that the debtor’s 

position was not accepted because the debtor “did not receive a discharge, a favorable 

ruling, or any other benefit”); Strauss v. Rent-A-Ctr., Inc., 192 Fed. App’x 821, 823 (11th 

Cir. 2006) (per curiam) (concluding that judicial estoppel should not apply, in part 
9

because “[t]he bankruptcy court never entered any order discharging any of Strauss’s 

debts”); Stallings v. Hussmann Corp., 447 F.3d 1041, 1049 (8th Cir. 2006) (holding that 

there was no judicial acceptance because “the bankruptcy court never discharged 

Stallings’s debts based on the information that Stallings provided in his schedules”). 

The Dallas Court of Appeals has endorsed the latter view. Norris v. Brookshire Grocery 

Co., 362 S.W.3d 226, 231 (Tex. App.—Dallas 2012, pet. denied) (citing Stallings with 

approval).

We need not decide which view is correct. It is enough to note that the Fifth 

Circuit’s primary justification for its holding is inapplicable to the unique facts of this 

case—in particular, the fact that Miller is a Chapter 13 debtor on a 100% plan. The 

Fifth Circuit has reasoned that when a bankruptcy court confirms a plan, judicial 

acceptance can be inferred because awareness of the undisclosed claim might affect the 

bankruptcy court’s decision making: “[h]ad the court been aware of the claim, it may 

well have altered the plan.” Allen, 813 F.3d at 573 (quoting Flugence, 738 F.3d at 130). 

For a typical Chapter 13 debtor whose plan payments are based on his disposable 

income, this is a fair stance. The bankruptcy court has arguably accepted the debtor’s 

representation of his income by approving payments based on that income, and if 

additional sources of income were disclosed, this might lead the bankruptcy court to 

increase the debtor’s payments to creditors. And when a lawsuit is settled or won, the 

proceeds could be considered income. See, e.g., Ortiz-Peredo v. Viegelahn, 587 B.R. 321, 
10

326–27 (W.D. Tex. 2018) (deeming settlement proceeds to be income that was subject 

to distribution); In re Stretcher, 466 B.R. 891, 896 (Bankr. W.D. Tex. 2011) (same).3

But here, Miller’s payments were not based on his income, and thus extra sources 

of income were of no consequence to how much he would pay under his plan. See

Martinez v. Viegelahn, 581 B.R. 486, 498–99 (W.D. Tex. 2017) (quoting In re Richall, 470 

B.R. 245, 249 (Bankr. D.N.H. 2012)); see also 11 U.S.C.A. § 1325(b)(1). Under these 

distinctive facts, it is difficult to say that the confirmation of Miller’s Chapter 13 plan 

operates as an “acceptance” of Miller’s nondisclosure of potential sources of income, 

because that confirmed plan had nothing to do with Miller’s income and likely would 

not have changed no matter how much income Miller disclosed.

We are also swayed by reasons of policy. It is said that the judicial acceptance 

element “ensures that judicial estoppel is only applied in situations where the integrity 

of the judiciary is jeopardized.” Allen, 813 F.3d at 572–73. But if the integrity of the 

bankruptcy court is truly jeopardized, the bankruptcy court has plenty of tools to 

protect itself. Martineau v. Wier, 934 F.3d 385, 395 (4th Cir. 2019); see Law v. Siegel, 571 

U.S. 415, 427, 134 S. Ct. 1188, 1198 (2014). A bankruptcy court can impose a variety 

of sanctions, including denial of a discharge. Law, 571 U.S. at 427, 134 S. Ct. at 1198. 

The court may also “deny an exemption for the proceeds from the debtor’s lawsuit; it 

3

But see In re Connor, 463 B.R. 14, 18–19 (E.D. Mich. 2012) (collecting cases

holding that a lawsuit was not present income when the lawsuit remained pending at 

confirmation), aff’d sub nom. Connor v. Carroll, 511 Fed. App’x 537, 538 (6th Cir. 2013).
11

may even fine or imprison a debtor for contempt or refer the matter for the United 

States Attorney’s Office to consider prosecuting the debtor for perjury.” Slater, 871 

F.3d at 1187 (citation omitted).

Indeed, these solutions may be preferable to judicial estoppel, because they target 

an immoral debtor but leave his innocent creditors unharmed:

Judges understandably favor rules that encourage full disclosure in 

bankruptcy. Yet pursuing that end by applying judicial estoppel to 

debtors’ self-contradiction would have adverse effects on third parties: 

the creditors. Biesek’s nondisclosure in bankruptcy harmed his creditors 

by hiding assets from them. Using this same nondisclosure to wipe out 

his FELA claim would complete the job by denying creditors even the 

right to seek some share of the recovery. Yet the creditors have not 

contradicted themselves in court. They were not aware of what Biesek 

has been doing behind their backs. Creditors gypped by Biesek’s 

maneuver are hurt a second time by the district judge’s decision. Judicial 

estoppel is an equitable doctrine, and using it to land another blow on the 

victims of bankruptcy fraud is not an equitable application. Instead of 

vaporizing assets that could be used for the creditors’ benefit, district 

judges should discourage bankruptcy fraud by revoking the debtors’ 

discharges and referring them to the United States Attorney for potential 

criminal prosecution.

Biesek v. Soo Line R.R. Co., 440 F.3d 410, 413 (7th Cir. 2006); accord Ah Quin v. Cty. of 

Kauai Dep’t of Transp., 733 F.3d 267, 276 (9th Cir. 2013); Kane v. Nat’l Union Fire Ins. Co., 

535 F.3d 380, 387–88 (5th Cir. 2008) (per curiam). “Judicial estoppel is an equitable 

doctrine, and it is not equitable to employ it to injure creditors who are themselves 

victims of the debtor’s deceit.” Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir. 2006) 

(Easterbrook, J.).
12

And at the same time that it disadvantages innocent creditors, judicial estoppel 

hands a “windfall” to the alleged wrongdoer whom the plaintiff has sued. Martineau, 

934 F.3d at 396 (quoting Slater, 871 F.3d at 1187); see Ah Quin, 733 F.3d at 275 

(“Perversely, the only ‘winner’ in this scenario is the alleged bad actor in the estopped 

lawsuit.”).4

Because the Fifth Circuit’s primary justification is inapplicable to these facts, 

because persuasive policy reasons weigh against finding an acceptance, and because we 

operate under a standard of review that requires us to view the matter in the light most 

favorable to Miller, we cannot conclusively say that Miller’s position was judicially adopted 

or successfully maintained simply because the bankruptcy court confirmed his 

Chapter 13 plan. See Frost Nat’l Bank, 315 S.W.3d at 508. Rather, for purposes of 

summary judgment, we hold that reasonable minds could differ on whether Miller 

prevailed in the bankruptcy court. See Cmty. Health, 525 S.W.3d at 681; Ferguson, 295 

4

Moreover, even after approving the Chapter 13 bankruptcy plan, the debtor’s 

and the court’s positions remain somewhat fluid, and inadvertent nondisclosures are 

readily subject to correction after approval, which may imply that merely confirming 

the plan does not qualify as a firm judicial acceptance. After approval, the bankruptcy 

code and rules “liberally permit debtors to amend their disclosures when an omission 

is discovered.” Slater, 871 F.3d at 1186. “Bankruptcy Rule 1009, which was proposed 

by the Supreme Court and adopted by Congress, permits a debtor to amend a schedule 

or statement ‘as a matter of course at any time before the case is closed.’” Id. (quoting 

Fed. R. Bankr. P. 1009(a)). Creditors, debtors, and trustees retain the option of pursuing 

a modification “[a]t any time . . . before the completion of payments under such plan.” 

11 U.S.C.A. § 1329(a). And if the debtor does not comply with his obligations, the 

whole of the plan may be undone and set back to square one. See 11 U.S.C.A. § 1307(c).
13

S.W.3d at 643. Appellees have not carried their burden to conclusively establish the 

second element of judicial estoppel.

Because appellees have not conclusively established the second element, Miller 

is entitled to reversal of the summary judgment. Nonetheless, in an abundance of 

caution, we proceed to address the remaining elements of judicial estoppel.

D. Inadvertence

For the third element, we ask whether the party to be estopped has “acted 

intentionally, not inadvertently.” Coastal Plains, 179 F.3d at 206. We have held that a 

previous inconsistent position is inadvertent only when the debtor lacks knowledge of 

the inconsistent position or has no motive for the inconsistency. Horsley-Layman, 221 

S.W.3d at 807.

A financial motive is “almost always” present “if a debtor fails to disclose a claim 

or possible claim to the bankruptcy court”; “[m]otivation in this context is self-evident 

because of potential financial benefit resulting from the nondisclosure.” Flores, 2014 

WL 4109645, at *6 (quoting Love v. Tyson Foods, Inc., 677 F.3d 258, 262 (5th Cir. 2012)). 

The nearest parallel we have found to Miller’s case is U.S. ex rel. Long v. GSDMIdea City, 

L.L.C., in which the Fifth Circuit held that there was a financial motive to conceal a 

lawsuit for a debtor who had what the court referred to as a “100% repayment plan.” 

798 F.3d 265, 273 (5th Cir. 2015). But unlike Miller’s 100% plan, the debtor in Long

had some unsecured creditors who did not file claims, and $4,504.91 of those unsecured 

debts were discharged at the end of the commitment period. See id. Also unlike Miller’s 
14

plan, the debtor was not paying interest on his debts, possibly to accommodate the 

limits of his disposable income. See id. On those facts, the Long court held that the 

debtor had three financial motives to conceal potential sources of income: “(1) he was 

not required to pay any interest on his debts; (2) he was given five years (rather than a 

shorter period) to repay the principal on his debts; and (3) $4,504.91 in unsecured claims 

were discharged.” Id. The court reasoned that had the debtor disclosed his claims, “his 

creditors may have sought modification and the bankruptcy court might have modified 

his plan to require paying some of the interest, paying over a shorter period, or paying 

some of the discharged debts.” Id.

However, “‘[a]lthough it may generally be reasonable to assume that a debtor 

who fails to disclose a substantial asset in bankruptcy proceedings gains an advantage,’ 

the specific facts of a case may weigh against such an inference.” Stallings, 447 F.3d at 

1049 (quoting Ryan Operations G.P. v. Santiam–Midwest Lumber Co., 81 F.3d 355, 363 (3d 

Cir. 1996)). The specific facts of this case—primarily Miller’s true 100% plan—show 

that none of the motives advanced in Long apply here.

Unlike Long, Miller was already paying interest on his unsecured debts “at the 

legal rate from the petition date” pursuant to the bankruptcy court’s order. Moreover, 

under Miller’s true 100% plan, his payments were not based on or limited by his income, 

and there is no reason to believe that if he obtained more income in the future, it would 

call for higher interest payments. Cf. 11 U.S.C.A. § 1322(b)(10).
15

Also, it does not appear that Miller had a motive to manipulate his plan duration. 

To review, debtors usually receive a three-year plan if they are under their state’s median 

income, but a five-year plan if they are above the median. See 11 U.S.C.A. § 1325(b)(4); 

see also 11 U.S.C.A. § 1322(d). But in both the 2013 and 2017 bankruptcies, Miller was 

already on a five-year plan, so even if he disclosed additional sources of income that 

took him further above the state median, his situation would likely remain unchanged. 

And conversely, because his payments were not based on his income, obtaining 

additional income would not necessarily shorten the duration of his plan. See Martinez, 

581 B.R. at 499 (observing that debtors who have agreed to pay the full amount of their 

debt are not required to make higher payments based on their income even if by doing 

so they “could pay off their unsecured creditors in a shorter period of time” (quoting 

Richall, 470 B.R. at 249)). Thus, disclosure of additional income would likely not alter 

his plan duration.

Finally, the Long court proposed that the debtor had a motive to conceal income 

in order to avoid being required to pay the “$4,504.91 in unsecured claims” that were 

discharged at the end of the plan. See Long, 798 F.3d at 273. But Miller’s payments 

were based on the amount of his debt apportioned out over the life of his plan, not his 

income. Thus, any future income from this lawsuit would not have justified a 

modification to increase his payments. See Martinez, 581 B.R. at 498 (holding that the 

debtor’s disposable income is effectively immaterial to the amount of payments “when 

the confirmed plan already pays unsecured creditors in full”). Moreover, unlike Long,
16

no debt was going to be discharged under his 100% plan, and thus concealing sources 

of future income would not bring him any closer to a discharge of debts. In that regard 

especially, Long is distinguishable.

In judicial estoppel cases stemming from bankruptcy proceedings, a dispute 

about the existence of a motive may be “a question of fact which is not subject to 

resolution on summary judgment.” Thompson v. Cont’l Airlines, 18 S.W.3d 701, 704 (Tex. 

App.—San Antonio 2000, no pet.) (summarizing In re Okan’s Foods, Inc., 217 B.R. 739, 

755 (Bankr. E.D. Penn. 1998)); see State v. Clear Channel Outdoor, Inc., 463 S.W.3d 488, 

493 (Tex. 2015) (“As a general rule, intent is a question of fact to be decided by the 

jury.”). None of the motives identified in Long apply to the unique facts of this case, 

and appellees have not offered any evidence tending to show that Miller had some other 

motive to conceal his lawsuit. We therefore hold that a fact question remains as to the 

third element of judicial estoppel.

E. Unfair Advantage or Detriment

Consistent with our conclusion that there is no evidence of a motive to gain 

benefits or impose detriments, we also conclude that there is no evidence that such 

benefits or detriments actually materialized, as would satisfy the fourth element of 

judicial estoppel. See New Hampshire v. Maine, 532 U.S. 742, 751, 121 S. Ct. 1808, 1815 

(2001); Ferguson, 295 S.W.3d at 644; Flores, 2014 WL 4109645, at *5.5

 Miller’s actions in 

5

Berman insists that unfair benefit or detriment is not an element of judicial 

estoppel under the federal test. To the contrary, the United States Supreme Court 
17

the bankruptcy proceeding did not prejudice appellees because they were not involved 

with the bankruptcy in any way. See Ashmore v. CGI Grp., Inc., 923 F.3d 260, 279 (2d 

Cir. 2019). And appellees have not identified any unfair benefits or detriments that 

were actually reaped by Miller or visited on his creditors. Indeed, the Second Circuit 

has held that where, as here, “the [p]lan already required the [debtors] to repay their 

creditors in full,” the nondisclosure gave rise to only a de minimis benefit to the debtors

that was insufficient to justify the application of judicial estoppel. See Clark v. AII 

Acquisition, LLC, 886 F.3d 261, 267 (2d Cir. 2018).

Even supposing there were unfair benefits or detriments, Miller amended his 

bankruptcy schedules before the trial court took definitive action. To a limited degree, 

this would have mitigated any benefit or detriment. See Spaine v. Cmty. Contacts, Inc., 756 

F.3d 542, 547 (7th Cir. 2014) (“Spaine’s creditors were not and could not have been 

injured by incomplete Chapter 7 schedules that were orally corrected before Spaine 

received a discharge.”); see also Ashmore, 923 F.3d at 278 (concluding that any harm from 

a nondisclosure was mitigated by the debtor’s corrective action once he realized his 

error); Ah Quin, 733 F.3d at 273–74 (similar); cf. Martineau, 934 F.3d at 397 (suggesting 

similar reasoning based on Ah Quin).

recognized the importance of this consideration in New Hampshire v. Maine, 532 U.S. at

751, 121 S. Ct. at 1815, and both the Texas Supreme Court and this court have treated 

it as an element, see Ferguson, 295 S.W.3d at 644; Flores, 2014 WL 4109645, at *5. Berman 

offers us no reason to depart from binding precedent.
18

We therefore hold that appellees have failed to conclusively prove the fourth 

element of judicial estoppel. We sustain Miller’s first and second issues.6

III. STANDING

Lastly, Conformis contends that Miller lacked standing to pursue his claim in the 

first place. Conformis argues that the lawsuit became part of Miller’s bankruptcy estate 

and that all his rights to this asset were extinguished. According to Conformis, the 

bankruptcy trustee was the only one with standing to bring the claim.

Standing is a prerequisite to subject-matter jurisdiction, and subject-matter 

jurisdiction is essential to a court’s power to decide a case. Teal Trading & Dev., LP v. 

Champee Springs Ranches Prop. Owners Ass’n, 593 S.W.3d 324, 331 (Tex. 2020). We review 

questions of standing de novo. Farmers Tex. Cty. Mut. Ins. Co. v. Beasley, 598 S.W.3d 237, 

240 (Tex. 2020).

When a person files a bankruptcy petition, he loses all right, title, and interest in 

all of his property, and his property is then vested in his bankruptcy estate. Martin v. 

Clinical Pathology Labs., Inc., 343 S.W.3d 885, 888 (Tex. App.—Dallas 2011, pet. denied) 

(citing, inter alia, 11 U.S.C.A. § 541(a)(1)). Thus, in general, bankruptcy under chapters 

other than Chapter 13 may affect a debtor’s standing to sue. See id.

6

This renders it unnecessary to consider Miller’s third issue, in which he offers a 

fallback position: that even if appellees conclusively established the defense of judicial 

estoppel, the bankruptcy trustee should nonetheless be allowed to bring the suit for the 

benefit of his creditors.
19

However, Chapter 13 has “distinctive features” that preserve the debtor’s 

standing. Id. Although a Chapter 13 debtor loses all right, title, and interest in his

property under § 541(a)(1), he remains in possession of all property of the estate under 

§ 1306(b). Id. “Thus, every federal circuit court that has addressed the issue has 

concluded that Chapter 13 debtors retain standing to sue on claims that are owned by 

the bankruptcy estate.” Id. (collecting cases). Moreover, § 1327(b) provides that when 

a Chapter 13 plan is confirmed, all property of the bankruptcy estate revests in the 

debtor, except as otherwise specified in the bankruptcy plan or order confirming the 

plan—and here, the plan and the order did not specify otherwise. See id. at 890; Dowler 

v. Delta Inv. Hous., Inc., 834 S.W.2d 127, 129 (Tex. App.—Eastland 1992, no writ) 

(quoting 11 U.S.C.A. § 1327(b)). Miller’s Chapter 13 bankruptcy therefore posed no 

obstacle to his standing to sue.

IV. CONCLUSION

Appellees conclusively proved the first element of judicial estoppel, inconsistent 

positions. However, for purposes of the second element, a mere confirmation of 

Miller’s plan does not conclusively show a judicial acceptance under these distinctive 

facts. For purposes of the third element, none of the financial motives posited in Long

apply to the facts of this case, and appellees have not conclusively proved any other 

sort of motive. Finally, for purposes of the fourth element, appellees did not 

conclusively prove that Miller gained an unfair benefit or imposed an unfair detriment. 
20

Because appellees failed to conclusively establish their affirmative defense, summary 

judgment was inappropriate. We therefore reverse and remand for further proceedings.

/s/ Wade Birdwell

Wade Birdwell

Justice

Delivered: July 30, 2020