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In re Saunders v3/17/2000
OCTOBER TERM, 1999-2000
Ex parte Larry N. Saunders and Sandra Saunders
PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CIVIL APPEALS
HOUSTON, Justice.
WRIT DENIED; NO OPINION.
Hooper, C.J., and Maddox, See, and Brown, JJ., concur.
Cook, Lyons, Johnstone, and England, JJ., dissent.
LYONS, Justice (dissenting).
I respectfully dissent. The defendants, North Alabama Neurological, P.A., and Robert L. Hash II, M.D., assert that the doctrine of judicial estoppel bars the plaintiffs from proceeding with this medical-malpractice action. The defendants say that the plaintiffs Saunderses' allegations of malpractice relate to events that had occurred before the Saunderses filed a petition under Chapter 7 of the United States Bankruptcy Code. When they filed their bankruptcy schedules, the Saunderses did not list as an asset the claim they now assert against these defendants. They were required by 11 U.S.C. § 521 to list such claims. The defendants argue that, because the Saunderses did not list the claim, they are now precluded by the doctrine of judicial estoppel from maintaining this action, which the Saunderses filed several months after receiving their discharge in bankruptcy. The trial court entered a summary judgment in favor of the defendants, on the ground of judicial estoppel. The Court of Civil Appeals affirmed. Saunders v. North Alabama Neurological, P.A., [Ms. 2971312, November 19, 1999] ___ So. 2d ___ (Ala. Civ. App. 1999).
As a preliminary matter, I will state that I have concerns about the Saunderses' standing to bring this action. Once a debtor is discharged pursuant to Chapter 7, as the Saunderses were, the trustee, and not the debtor, has standing to pursue the debtor's claims that arose before the bankruptcy petition was filed. Stanley v. Sherwin-Williams Co., 156 B.R. 25 (Bankr. W.D. Va. 1993); DeLarco v. DeWitt, 136 A.D.2d 406, 527 N.Y.S.2d 615 (1988). See, also, In re Griner, 240 B.R. 432 (Bankr. S.D. Ala. 1999). After a bankruptcy estate is closed, "the debtor or other party in interest" can seek to reopen the estate "to administer assets, to accord relief to the debtor, or for other cause." 11 U.S.C. § 350. In this case, the Saunderses could have moved to reopen the case in their Chapter 7 bankruptcy to permit the trustee to assert a claim against the defendants. However, the Saunderses have not sought to have the trustee assert such a claim; they commenced this action in their own names. But, at this stage we have before us insufficient information to determine whether the defendants challenged the Saunderses' capacity to bring this action. Rule 9(a), Ala. R. Civ. P., provides that one challenging a party's capacity to sue must raise the challenge by "specific negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge." A general denial does not satisfy the requirements of Rule 9(a). Gardendale Subaru Motors, Inc. v. Fields, 345 So. 2d 1357 (Ala. Civ. App. 1976), cited with approval in Alabama Power Co. v. White, 377 So. 2d 930 (Ala. 1979). The defense based on lack of capacity, raised by "specific negative averment," cannot be raised for the first time after the entry of a judgment. White, 377 So. 2d at 935.
This Court recently released Jinright v. Paulk, [Ms. 1972275, January 28, 2000] ___ So. 2d ___ (Ala. 2000), in which we discussed whether a debtor's knowledge of a potential claim and the debtor's failure to list it as an asset on the bankruptcy schedules were sufficient to invoke the application of the doctrine of judicial estoppel:
" debtor's mere knowledge or awareness of a potential cla
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