FILED
Jul 06 2023, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Nicholas G. Brunette David W. Stone IV
Katherine M. Haire Stone Law Office & Legal Research
REMINGER CO., L.P.A. Anderson, Indiana
Indianapolis, Indiana Bradford J. Smith
Ken Nunn Law Office
Bloomington, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Red Lobster Restaurants LLC, July 6, 2023
Appellant-Defendant, Court of Appeals Case No.
22A-CT-2221
and Appeal from the Marion County
Superior Court
Progressive Flooring Services, Inc.,
and Dwayne Featheroff, The Honorable Timothy Oakes,
Judge
Defendants, Trial Court Cause No.
49D02-2008-CT-029481
v.
Abigail Fricke,
Appellee-Plaintiff
Opinion by Judge May
Judges Mathias and Tavitas concur.
May, Judge.
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 1 of 19
[1] Red Lobster Restaurants LLC (“Red Lobster”) appeals the denial of its motion
for summary judgment in a personal injury action filed against it by Abigail
Fricke. 1 Red Lobster raises two issues, which we revise, restate, and reorder as:
(1) Whether the trial court abused its discretion when it denied Red
Lobster’s motion to strike Fricke’s affidavit opposing the motion for
summary judgment; and
(2) Whether the trial court erred when it denied Red Lobster’s motion for
summary judgment because:
(2.1) Fricke was judicially estopped from pursuing her claim
against Red Lobster because she belatedly disclosed her claim to
the Chapter 13 bankruptcy trustee; or
(2.2) Fricke lacked standing to bring a claim against Red Lobster.
We affirm.
Facts and Procedural History 2
1
Progressive Flooring Services, Inc., and Dwayne Featheroff are not parties to this appeal.
2
We heard oral argument in this case on May 19, 2023, in Fort Wayne, Indiana. The event was hosted by
the Indiana State Bar Association’s Leadership Development Academy (“ISBA LDA”) in the Allen County
Courthouse. We are grateful to the ISBA LDA event organizers and the Allen County Courthouse
Administrator for their hospitality in hosting the event. We also thank counsel for their presentations.
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 2 of 19
[2] On May 17, 2017, Fricke filed a Chapter 13 petition for bankruptcy in the
United States Bankruptcy Court for the Southern District of Indiana. The
petition required Fricke to disclose whether she had any claims against third
parties, including claims arising from accidents, employment disputes,
insurance claims, or rights to sue, and Fricke indicated that she did not have
any such claims. At the time Fricke filed for bankruptcy, she also executed a
document entitled: “Rights and Responsibilities of Chapter 13 Debtors and
their Attorneys.” (App. Vol. II at 114) (emphasis removed). It explained the
various responsibilities of the debtor after the bankruptcy case is filed, including
agreeing to “[c]ontact the attorney promptly if the debtor acquires any property
after the petition is filed. Such property might include, but is not limited to,
personal injury proceeds, inheritances, lottery winnings, etc.” (Id. at 115.)
[3] On September 8, 2017, the bankruptcy court entered an order confirming
Fricke’s payment plan. 3 The plan required Fricke to pay $1,350.00 a month to
the bankruptcy trustee for a period of sixty months. The payment plan also
3
A Chapter 13 bankruptcy plan is sometimes called a “wage earner plan” and requires the debtor to make
payments over a period of several years before the debtor’s debts are discharged:
A Chapter 13 bankruptcy can be filed by an individual who has unsecured debts of less
than $100,000 and secured debts of less than $350,000. A Chapter 13 Plan is an
individual reorganization plan, and proposes a plan for modification of debt and/or
repayment of debts over a three- or five-year plan. Debts not paid in full under the plan
are discharged. A Chapter 13 Plan can be withdrawn at any time, which is not true of a
Chapter 7 bankruptcy.
Deborah Benoit, Enforceability of Dissolution of Marriage Decrees in Bankruptcy, 48 J. Mo. B. 499, 503
(1992).
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 3 of 19
provided that “[i]f additional property comes into the estate pursuant to 11
U.S.C. § 1306(a)(1) or if the Trustee discovers undisclosed property of the
estate, then the Trustee may obtain such property or its proceeds to increase the
total amount to be paid under the plan.” (Id. at 132.)
[4] On December 31, 2019, Fricke went to a Red Lobster restaurant in Indianapolis
and tripped on an unmarked, elevated portion of the floor in the restaurant’s
lobby. On August 26, 2020, she sued the restaurant alleging Red Lobster
negligently failed to maintain its premises in a safe condition. 4 During
discovery, Fricke responded to interrogatories, including:
2. State whether you have ever been a party, plaintiff or
defendant, in any lawsuit, whether civil or criminal, or a
bankruptcy and identify the matter by Court, case number and
caption. If a criminal case involved conviction for a felony or a
misdemeanor involving dishonesty or false statements, also
identify the date of conviction, court, case caption and sentence.
ANSWER: No, I have not.
(Id. at 156.)
4
Fricke also alleged Dwayne Featheroff and Progressive Flooring Services, Inc., negligently installed the
floor in the restaurant. Progressive and Featheroff joined in Red Lobster’s motion for summary judgment
before the trial court but, as noted earlier, are not parties to this appeal.
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 4 of 19
[5] On May 29, 2021, Red Lobster filed a motion for summary judgment. Red
Lobster asserted: 5
As a matter of law, Defendant Red Lobster Restaurants LLC is
not liable for the injuries claimed by Plaintiff Abigail Fricke
because it is undisputed that Plaintiff has a bankruptcy action
pending before the United States Bankruptcy Court, Southern
District of Indiana, and she failed to properly disclose this
lawsuit therein. As a result, Plaintiff Abigail Fricke is judicially
estopped and lacks standing to pursue the instant action, and
summary judgment must be granted.
(Id. at 42) (emphasis in original).
[6] On June 11, 2021, Fricke filed an amended schedule of assets in the bankruptcy
court, and in that schedule, she listed her personal injury action against Red
Lobster as an asset. Fricke also filed a notice of retention and compensation
terms in her bankruptcy proceeding. The notice disclosed that Fricke retained
the Ken Nunn Law Office to pursue her personal injury claim against Red
Lobster and the terms of her compensation agreement with the law firm. The
notice also explained:
4. The Chapter 13 Trustee has been advised of the terms of
compensation and consents to those terms. The [Ken Nunn Law
Office] has been advised of the Debtors’ [sic] pending bankruptcy
case, the obligation to provide information Regarding the Claim
5
Red Lobster’s motion for summary judgment also asserted it was entitled to summary judgment on the
basis that it did not have notice of an unreasonable risk of harm from the elevated floor. However, the trial
court bifurcated the issues on summary judgment, and Red Lobster appeals from the trial court’s order
denying its motion for summary judgment on only the issues of standing and judicial estoppel.
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 5 of 19
to the Trustee upon request, and the requirement to hold any
funds received as a result of the settlement or resolution of the
Claim until obtaining instructions from the Trustee or the Court.
5. The Debtor, Abigail Carol Fricke, shall remain in possession
and control of the Claim and have the authority to settle. The
Chapter 13 Trustee shall not be named or substituted as a party
of interest, nor shall the Trustee be required to execute a release
as part of any settlement of the Claim. The Debtor shall not
dispose of any funds received [as] a result of settlement or
distribution before obtaining consent of the Trustee.
6. If the bankruptcy case is still pending under Chapter 13 at the
time the Claim is resolved either by settlement or court action,
the Debtor shall advice [sic] the Chapter 13 Trustee of the
resolution, including the compensation to be received by the
[Ken Nunn Law Office].
(App. Vol. III at 89-90.)
[7] On July 15, 2021, the bankruptcy trustee filed a motion to dismiss Fricke’s
bankruptcy case because Fricke was delinquent in her payments to the trustee. 6
Fricke initially filed an objection to the trustee’s motion to dismiss in which she
stated that she desired to come to an agreement with the trustee to resolve the
6
The record before us does not include a copy of the motion to dismiss filed by the bankruptcy trustee.
However, in its designation of evidence, Red Lobster asked the trial court to take judicial notice of the
records in Fricke’s bankruptcy proceeding, In re: Abigail Carol Fricke, Case No. 17-03681-JMC-13 (S.D. Ind.),
and those records are accessible via the federal court’s case management system PACER. See Ind. Rule of
Evid. 201(a)(1)(B) (The court may judicially notice a fact that “can be accurately and readily determined
from sources whose accuracy cannot reasonably be questioned.”) & 201(a)(2)(C) (records of a court of this
state).
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 6 of 19
motion to dismiss, but Fricke later withdrew her objection. On September 22,
2021, the bankruptcy court granted the trustee’s motion to dismiss.
[8] On November 4, 2021, Fricke filed her response in opposition to Red Lobster’s
motion for summary judgment. Fricke noted that “judicial estoppel is an
equitable doctrine and requires that the Court consider the equities involved.”
(Id. at 17.) She explained she “mistakenly, without any intent to mislead, did
not realize that she had to list her personal injury lawsuit as an asset in a
bankruptcy that she had filed two and a half years earlier.” (Id. at 17-18.)
Fricke also asserted that Red Lobster’s argument that she lacked standing to
bring her personal injury claim was moot because her bankruptcy counsel gave
notice to the bankruptcy court regarding the claim. In her designation of
evidence supporting her summary judgment response, Fricke included an
affidavit in which she averred:
5. At the time of the incident of December 31, 2019 and the
filing of my lawsuit on August 24, 2020, I did not know that the
personal injury lawsuit was considered an asset. I did not know
that I needed to notify my bankruptcy attorney about it or that I
needed to list it as an asset in the bankruptcy.
6. I was not trying to mislead anybody. Because I had filed for
bankruptcy two and a half years earlier, it did not cross my mind
that I needed to let my bankruptcy attorney know that I was
involved in an incident on December 31, 2019 or that I was
pursuing a lawsuit.
7. When I was answering interrogatory questions with the
assistance of the Ken Nunn Law Office, I did not realize that the
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 7 of 19
bankruptcy was considered a lawsuit, because I was not suing
anyone or being sued by anyone. I overlooked the word
“bankruptcy” and thought I was answering correctly because I
was not a plaintiff or a defendant in the bankruptcy. I did not
mean to mislead anybody by failing to disclose my bankruptcy in
my interrogatory responses. It was a mistake.
(Id. at 92-93.) On November 13, 2021, Red Lobster filed a motion to strike
Fricke’s affidavit from the designation of evidence. Red Lobster argued the
affidavit should be stricken because it was self-contradictory and contradicted
Fricke’s prior sworn interrogatory answers. Fricke responded that the affidavit
provided the court with information regarding her “state of mind and intent,
which is directly relevant to deciding whether to dismiss her personal injury
lawsuit based on the equitable doctrine of judicial estoppel.” (Id. at 118.)
[9] The trial court held a hearing on Red Lobster’s motion for summary judgment
on December 20, 2021. On January 4, 2022, the trial court summarily denied
both Red Lobster’s motion to strike and its motion for summary judgment. The
trial court certified the orders denying Red Lobster’s motion to strike and
motion for summary judgment for interlocutory appeal, and we accepted
jurisdiction over the interlocutory appeal on October 14, 2022. On February 2,
2023, the trial court entered an order staying proceedings in the trial court
pending the outcome of this interlocutory appeal.
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 8 of 19
Discussion and Decision
1. Motion to Strike
[10] We first address Red Lobster’s contention that the trial court erred in denying
its motion to strike Fricke’s affidavit. “The trial court has broad discretion in
ruling on motions to strike in the summary judgment context. Its decision will
not be reversed unless prejudicial error is clearly demonstrated.” Hamilton v.
Hamilton, 132 N.E.3d 428, 431-32 (Ind. Ct. App. 2019).
[11] “In ruling on a motion for summary judgment, the trial court will consider only
properly designated evidence which would be admissible at trial.” Seth v.
Midland Funding, LLC, 997 N.E.2d 1139, 1141 (Ind. Ct. App. 2013). Trial Rule
56(E) requires affidavits designated either in support of or in opposition to a
motion for summary judgment be made on personal knowledge, set forth facts
as would be admissible in evidence, and affirmatively show that the affiant is
competent to testify to the matters therein. These requirements “are mandatory
and a court considering a summary judgment motion should disregard
inadmissible information contained in supporting or opposing affidavits. The
party offering the affidavit into evidence bears the burden of establishing its
admissibility.” D.H. by A.M.J. v. Whipple, 103 N.E.3d 1119, 1126 (Ind. Ct. App.
2018), reh’g denied, trans. denied.
[12] In Gaboury v. Ireland Rd. Grace Brethren, Inc., our Indiana Supreme Court
explained “contradictory testimony contained in an affidavit of the nonmovant
may not be used by him to defeat a summary judgment motion where the only
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 9 of 19
issue of fact raised by the affidavit is the credibility of the affiant.” 446 N.E.2d
1310, 1314 (Ind. 1983) (quoting Wachovia Mortg. Co. v. Autry-Barker-Spurrier Real
Est., Inc., 249 S.E.2d 727, 732 (N.C. Ct. App. 1978), reh’g denied. Likewise, in
Chance v. State Auto Ins. Co., we stated: “A party cannot create an issue of
material fact for summary judgment purposes by contradicting a prior sworn
statement.” 684 N.E.2d 569, 571 (Ind. Ct. App. 1997), reh’g denied, trans.
denied. Thus, Red Lobster contends the trial court erred in denying its motion
to strike Fricke’s affidavit because the affidavit “contradicted Fricke’s prior
sworn interrogatory response and was inherently irreconcilable with itself.”
(Appellant’s Br. at 27.) The restaurant asserts Fricke’s statement that she “did
not realize that the bankruptcy was considered a lawsuit” and her statement
that she “‘overlooked the word ‘bankruptcy’’” in answering the interrogatory
“are in direct conflict with each other.” (Id. at 29-30) (quoting App. Vol. III at
92-93). Red Lobster argues: “Fricke could not have simultaneously overlooked
the word ‘bankruptcy’ yet also been able to contemplate that her bankruptcy
was not subject to disclosure regardless simply because she believed that she
‘was not suing anyone or being sued by anyone.’” (Id. at 30.)
[13] However, Red Lobster’s argument misses the boat. Fricke is not using her
affidavit to contradict her prior sworn testimony. She is using the affidavit to
explain her own mindset and intentions. While Fricke’s averments are self-
serving, a party may use “a perfunctory and self-serving” affidavit to
demonstrate a genuine issue of material fact requiring resolution at trial.
Hughley v. State, 15 N.E.3d 1000, 1004 (Ind. 2014). Fricke has consistently
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 10 of 19
asserted that her failure to notify the bankruptcy court earlier about her personal
injury suit was nothing more than a good faith mistake. Both of Fricke’s
explanations for incorrectly answering the interrogatory—that she overlooked
the word bankruptcy and that she did not think of her bankruptcy as a lawsuit
because she was not suing anyone or being sued by anyone—explain why she
believed she did not need to disclose the bankruptcy. They convey that Fricke
was acting in good faith rather than trying to hide her bankruptcy. Therefore,
we hold the trial court did not abuse its discretion in denying Red Lobster’s
motion to strike. Cf. Bunger v. Brooks, 12 N.E.3d 275, 281 (Ind. Ct. App. 2014)
(holding trial court abused its discretion in striking doctor’s affidavit because the
affidavit did not contradict the doctor’s deposition testimony).
2. Motion for Summary Judgment
[14] Our standard of review following a trial court’s order on summary judgment is
well-settled:
When we review a grant or denial of a motion for summary
judgment, our standard of review is the same as it is for the trial
court. Reed v. Reid, 980 N.E.2d 277, 285 (Ind. 2012). The
moving party must show there are no genuine issues of material
fact and he is entitled to judgment as a matter of law. Id. If the
moving party carries its burden, then the nonmoving party must
present evidence establishing the existence of a genuine issue of
material fact. Id. In deciding whether summary judgment is
proper, we consider only the evidence the parties specifically
designated to the trial court. Ind. Trial Rule 56(C), (H). We
construe all factual inferences in favor of the non-moving party
and resolve all doubts regarding the existence of a material issue
against the moving party. Reed, 980 N.E.2d at 285.
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 11 of 19
Asklar v. Gilb, 9 N.E.3d 165, 167 (Ind. 2014). “We ‘consciously err[ ] on the
side of letting marginal cases proceed to trial on the merits, rather than risk
short-circuiting meritorious claims.’” Brown by Brown v. Southside Animal Shelter,
Inc., 158 N.E.3d 401, 405 (Ind. Ct. App. 2020) (quoting Hughley, 15 N.E.3d at
1004), aff’d on reh’g, 162 N.E.3d 1121 (Ind. Ct. App. 2021), trans. denied.
2.1 Judicial Estoppel
[15] Red Lobster first argues it is entitled to summary judgment pursuant to the
doctrine of judicial estoppel. “Judicial estoppel is a judicially created doctrine
that seeks to prevent a litigant from asserting a position inconsistent with one
asserted in the same or a previous proceeding.” Robson v. Texas E. Corp., 833
N.E.2d 461, 466 (Ind. Ct. App. 2005), trans. denied. It “is not intended to
eliminate all inconsistencies; rather, it is designed to prevent litigants from
playing ‘fast and loose’ with the courts.” Id. “The basic principle of judicial
estoppel is that, absent a good explanation, a party should not be permitted to
gain an advantage by litigating on one theory and then pursue an incompatible
theory in subsequent litigation.” Id. “Judicial estoppel only applies to
intentional misrepresentation, so the dispositive issue supporting the application
of judicial estoppel is the bad-faith intent of the litigant subject to estoppel.” Id.
[16] We apply a burden shifting test to determine whether judicial estoppel should
bar a cause of action that was not scheduled as an asset in a bankruptcy
proceeding. Morgan Cnty. Hosp. v. Upham, 884 N.E.2d 275, 280 (Ind. Ct. App.
2008), trans. denied. “An inference of bad faith arises when the party asserting
judicial estoppel demonstrates that a debtor-plaintiff had knowledge of an
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 12 of 19
unscheduled claim and motive for concealment in the face of a duty to
disclose.” Id. If the party asserting judicial estoppel presents sufficient evidence
to create an inference of bad faith, the debtor-plaintiff then has the burden of
presenting evidence that the nondisclosure was made in good faith. Id. “While
knowledge and motive are important in establishing judicial estoppel, the
inquiry does not end there if the debtor-plaintiff comes forward with evidence
indicating that the non-disclosure was made in good faith.” Id. The “ultimate
purpose” of the burden shifting test “is to determine the actual presence of bad
faith.” Id.
[17] When assessing whether to apply judicial estoppel, “we must give due
consideration to all of the circumstances of a particular case.” Id. It “is not
meant to be a technical defense for litigants seeking to derail potentially
meritorious claims.” Id. In Spaine v. Cmty. Contacts, Inc., the Seventh Circuit
explained that “[c]ourts do not apply judicial estoppel for the benefit of the
defendant but try to protect courts and creditors from deception and
manipulation. Judicial estoppel is an equitable doctrine intended to induce
debtors to be truthful in their bankruptcy filings.” 756 F.3d 542, 547 (7th Cir.
2014) (holding factual issue regarding whether Chapter 7 debtor intended to
conceal employment discrimination claim precluded summary judgment)
(internal quotation marks and brackets omitted).
[18] Red Lobster argues Fricke had a duty to disclose her personal injury claim in
the bankruptcy proceeding. See, e.g., Cowling v. Rolls Royce Corp., No. 1:11-cv-
01719, 2012 WL 4762143 at *2-4 (S.D. Ind. Oct. 5, 2012) (determining debtor-
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 13 of 19
plaintiff had a duty to disclose in his Chapter 13 bankruptcy proceeding an
employment discrimination claim that the debtor-plaintiff acquired while his
Chapter 13 bankruptcy proceeding was pending); Rainey v. United Parcel Serv.,
Inc., 466 Fed. Appx. 542, 544 (7th Cir. 2012) (“Debtors have a continuing duty
to schedule newly acquired assets while the bankruptcy case is open.”). Yet,
Red Lobster contends, despite this duty, Fricke did not disclose her personal
injury claim to the bankruptcy trustee until after Red Lobster filed its motion for
summary judgment. Fricke disputes whether she had a legal duty to amend her
schedule of assets in the bankruptcy court to include her tort claim, but she
disclosed the claim nonetheless.
[19] In Upham, Upham sued Morgan County Hospital and several of its doctors
alleging medical malpractice in the death of her husband. 884 N.E.2d at 277.
Upham did not list the claim as an asset when she filed for bankruptcy, and she
only amended her schedule of assets when her bankruptcy came to light in the
medical malpractice action. Id. at 278. Thereafter, the bankruptcy court issued
an order that any sums obtained by Upham as a result of the medical
malpractice action were to be reported to the court and the trustee and
distributed to her creditors. Id. The hospital moved for summary judgment on
the basis that Upham’s claim was barred by judicial estoppel. Id. In response to
the hospital’s motion for summary judgment, Upham submitted an affidavit in
which she attested that she did not intend to mislead the bankruptcy court, and
she did not realize the medical malpractice claim was an asset. Id. at 278-79.
The trial court denied the hospital’s motion. Id. at 279.
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 14 of 19
[20] We affirmed the trial court’s denial of the hospital’s summary judgment motion
because a genuine issue of material fact existed regarding whether Upham’s
failure to disclose the medical malpractice action was a good-faith mistake. Id.
at 283. We then went on to explain that judicial estoppel is an equitable
doctrine, and “[b]efore applying judicial estoppel, a court should consider all of
the equities, which would include the interests of the plaintiff/debtor’s
creditors.” Id. We observed that “[a]pplication of judicial estoppel in this case
could potentially have negative consequences for Upham’s creditors by denying
them an opportunity to recoup their losses should Upham prevail in this
action.” Id. We also noted the hospital failed to explain how Upham’s belated
disclosure in the bankruptcy action prejudiced the hospital. Id. Therefore, we
concluded that “we perceive no practical or equitable reason for awarding
summary judgment to the Appellant’s [sic] based on the fortuitous (thus would
it be, from the Appellants’ perspective, if we reversed on this basis) existence of
Upham’s bankruptcy action.” Id.
[21] Like in Upham, Fricke averred that she did not intend to conceal her personal
injury suit from the bankruptcy court. Consequently, a factual dispute exists
regarding whether Fricke intentionally concealed the personal injury suit from
the bankruptcy court. Moreover, the bankruptcy trustee moved to dismiss
Fricke’s bankruptcy petition after Fricke disclosed the personal injury suit to the
trustee, and we fail to see how any of Fricke’s creditors were harmed by her
failure to disclose the suit earlier. Thus, as in Upham, we affirm the trial court’s
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 15 of 19
denial of Red Lobster’s motion for summary judgment based on judicial
estoppel. 7
2.2 Standing
[22] Red Lobster also argues it is entitled to summary judgment because Fricke did
not have standing to initiate suit. “Standing refers to whether a party has an
actual demonstrable injury for purposes of a lawsuit. The primary purpose of
standing is to [ensure] that the party before the court has a substantive right to
enforce the claim being made.” In re G.R., 863 N.E.2d 323, 326 (Ind. Ct. App.
2007) (internal citation omitted).
7
During oral argument, Red Lobster also analogized the instant case to Williams v. Hainje, 375 Fed. Appx.
625 (7th Cir. 2010), reh’g en banc denied. In Williams, a police dog bit Anthony Williams, and Williams
initiated a civil rights suit against the police officer who released the dog. Id. at 626. While the civil rights
suit was pending, Williams filed a petition for Chapter 13 bankruptcy. Id. Williams did not disclose his civil
rights claim when he filed his bankruptcy petition, but he nonetheless sought relief in the bankruptcy court
from the medical debts he incurred after the police dog bit him. Id. The police officer in the civil rights
action moved for summary judgment based on the doctrine of judicial estoppel, and the trial court granted
the police officer’s motion. Id. at 627. The Seventh Circuit affirmed. Id. at 628. Even though the
bankruptcy court dismissed Williams’s Chapter 13 petition while his appeal in the civil rights case was
pending, the Court observed “Williams still received significant financial benefits during his short stint in
bankruptcy.” Id. at 627. Moreover, the Court held the district court reasonably inferred Williams made a
knowing misrepresentation when he failed to disclose his civil rights claim to the bankruptcy court. Id. at
628.
However, unlike Williams, Fricke’s personal injury claim arose after she filed her Chapter 13 bankruptcy
petition, and the record does not indicate that Fricke tried to use her bankruptcy petition in one forum to
avoid certain debts while at the same time, in a second forum, seeking recovery from an alleged tortfeasor for
those debts. In addition, the trial court in Williams found that he intentionally concealed his civil rights claim
when he omitted it from the schedule of assets he filed with the trial court, and the Seventh Circuit held that
finding was not clear error. Id. Here, the trial court made no similar finding, and the parties dispute whether
Fricke intentionally concealed her tort claim in the bankruptcy proceeding. Where, as here, genuine issues of
material fact exist, denial of summary judgment is appropriate.
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 16 of 19
[23] Red Lobster asserts a lack of standing because Fricke sued in her own name
rather than in the name of the bankruptcy estate. Federal Rule of Bankruptcy
Procedure 6009 provides:
With or without court approval, the trustee or debtor in
possession may prosecute or may enter an appearance and
defend any pending action or proceeding by or against the
debtor, or commence and prosecute any action or proceeding in
behalf of the estate before any tribunal.
In Cable v. Ivy Tech State Coll., the Seventh Circuit explained that “[t]he Chapter
13 debtor has standing to bring claims that benefit the estate.” 200 F.3d 965,
967 n.1 (7th Cir. 1999), overruled on other grounds by Hall v. Tangherlini, 724 F.3d
965, 967 n.1 (7th Cir. 2013). Other United States Circuit Courts of Appeals
have likewise held Chapter 13 debtors have standing to bring suits in their own
names on behalf of the estate. See, e.g., Dufrene v. ConAgra Foods, Inc., 196 F.
Supp. 3d 979, 982 (D. Minn. 2016) (“[A]t least six circuit courts of appeals have
concluded that Chapter 13 debtors have standing to pursue causes of action in
their own name on behalf of the bankruptcy estate.”).
[24] Nevertheless, Red Lobster contends a debtor can only act on behalf of the estate
when the debtor has disclosed the cause of action to the bankruptcy court,
trustee, and creditors. Therefore, Red Lobster argues, Fricke was not acting on
behalf of the estate when she brought the instant personal injury suit in her own
name. We disagree.
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[25] Fricke had standing because she sustained a direct injury. Lorenz v. Anonymous
Physician #1, 51 N.E.3d 391, 397 (Ind. Ct. App. 2016) (“the bankrupt party does
have standing to sue because he is the party who sustained a direct injury as a
result of the conduct at issue”). We also do not accept Red Lobster’s argument
that Fricke was not acting on behalf of the estate in pursuing her personal injury
lawsuit. The trustee did not intervene when Fricke disclosed the nature of her
personal injury claim and the terms of her compensation agreement with the
law firm representing her in the personal injury action. Fricke remained “in
possession and control of the Claim and [had] the authority to settle.” (App.
Vol. III at 90.) Fricke was also under an obligation to advise the trustee upon
the resolution of her claim and to not dispose of any funds without first
obtaining the consent of the trustee. Thus, had Fricke’s bankruptcy petition not
been dismissed, any recovery would have been available to satisfy her creditors.
The trial court properly rejected Red Lobster’s argument that Fricke lacked
standing. See, e.g., Hammes v. Brumley, 659 N.E.2d 1021, 1030 (Ind. 1995)
(holding bankrupt party had standing to sue and motion to amend complaint to
substitute name of bankruptcy trustee as real party in interest related back to
filing of original complaint).
Conclusion
[26] The trial court did not abuse its discretion when it denied Red Lobster’s
motion to strike Fricke’s affidavit. The trial court also did not err when it
denied Red Lobster’s motion for summary judgment because Fricke had
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 18 of 19
standing to bring suit in her own name and a genuine issue of material fact
exists regarding whether Fricke intentionally concealed her personal injury
lawsuit from the bankruptcy court. Therefore, we affirm the trial court.
[27] Affirmed.
Mathias, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Opinion 22A-CT-2221 | July 6, 2023 Page 19 of 19