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BANKRUPTCY AND STATE COURT PROCEEDINGS - CASE LAW
Judicial Estoppel Does Not Bar Bankruptcy Trustee from Prosecuting Med-Mal Case that Plaintiff
Failed to Disclose as Asset in Bankruptcy Court
Tow v. Pagano (Tex.App. - Houston [1st Dist.] Nov. 5, 2009)(Higley)
(no judicial estoppel based on nondisclosure of med-mal cause of action as asset in bankruptcy suit,
suit by trustee no time-barred, relationship between federal bankruptcy and state court proceedings) REVERSE
TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Higley
Before Justices Higley, Sharp and Mirabal
01-07-00464-CV Rodney Tow, Trustee for the Bankruptcy Estate of Erwina v. Scott K. Pagano, D.C. and
Campbell Chiropractic Wellness Center
Appeal from 333rd District Court of Harris County
Trial Court Judge: Hon. Joseph Halbach
Discharge in Bankruptcy As Affirmative Defense that Must be Pleaded to Avoid Waiver
In the final issue presented on appeal, Monk claims the trial court's judgment is void because the debt he owed
to Westgate was discharged in bankruptcy. However, discharge in bankruptcy is an affirmative defense that
must be pleaded. See Tex. R. Civ. P. 94; Sparks v. Booth, 232 S.W.3d 853, 871 (Tex. App.- Dallas 2007, no
pet.). An affirmative defense that is not pleaded or proved, and on which findings are not obtained, is waived
and cannot be preserved by raising the affirmative defense for the first time in a motion for new trial. Hamm v.
Millennium Income Fund, L.L.C., 178 S.W.3d 256, 268 (Tex. App.- Houston [1st Dist.] 2005, pet. denied).
Here, discharge in bankruptcy was not raised or even hinted-at by the pleadings. Instead, the affirmative
defense was not presented to the trial court until Monk's motion for new trial, which did not preserve the issue for
our review. See id. Thus, we overrule Monk's final issue.
Monk v. Westgate Homeowners' Association, Inc. (Tex.App.- Houston [14th Dist.] Aug. 11, 2009)(Price)
(motion for new trial overruled by operation of law not sufficient to preserve complaint about lack of proper notice
of summary judgment motion hearing)(discharge in bankruptcy was not pleaded as affirmative defense)(pro se
appeal)
AFFIRMED: Opinion by Senior Justice Frank C. Price, sitting by assignment
Before Price, Justices Brock Yates and Guzman
14-07-00886-CV Joseph Monk v. Westgate Homeowners' Association, Inc.
Appeal from 270th District Court of Harris County
Trial Court Judge: Brent Gamble
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