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Lowry v. KTI Specialty Waste Services
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MAINE SUPREME JUDICIAL COURT 				Reporter of Decisions
Decision: 	2002 ME 58
Docket:	Yor-01-641
   on Briefs: 	March 26, 2002
Decided: 	April 9, 2002

	and LEVY, JJ.



	[¶1] John Lowry appeals from the judgment entered in the Superior
Court (York County, Fritzsche, J.) dismissing with prejudice his breach of
contract, tortious interference with contract, constructive discharge, and
defamation claims as barred by judicial estoppel.  Lowry argues that judicial
estoppel is an extreme remedy in this case, and that he should be allowed to
pursue these claims, once they are abandoned by a bankruptcy trustee.  Lowry
lacked standing to bring these claims.  We dismiss.
	[¶2]   After he was confronted with allegations of sexual harassment by
co-workers, Lowry tendered his written resignation to his supervisor at KTI
Specialty Waste Services, Inc.  The next day Lowry sought to rescind his letter,
after he had consulted his attorney.  KTI declined to take him back. 
	[¶3] Lowry filed a bankruptcy petition six months after he left KTI.  He
did not list any claim against KTI on his schedule of assets attached to his
bankruptcy petition.  He was adjudged a bankrupt and the United States
Bankruptcy Court discharged Lowry's debts.  Lowry then brought suit against
KTI, alleging, inter alia, breach of contract, wrongful discharge, and defamation. 
	[¶4] We review the issue of a party's status for standing to sue de novo.
Bissias v. Koulovatos, 2000 ME 189, ¶ 6, 761 A.2d 47, 49.    
	[¶5] The Bankruptcy Code requires that a petitioning debtor list all of his
assets and liabilities on a schedule of assets and liabilities, including any
causes of action.  11 U.S.C. § 521 (1994).  The bankruptcy trustee has
discretion to abandon property, including claims.  Id. at § 554 (a) & (b).  An
asset that is not on the bankruptcy petition's schedule of assets remains the
property of the bankruptcy estate, and has not been abandoned by the trustee. 
Id. at § 554(d).
	[¶6]  We recently held that a party lacked standing to bring suit on a
claim that arose prior to a bankruptcy filing but was not included on the asset
schedule, because that claim remained property of the bankruptcy estate and
was held by the bankruptcy trustee.  Bureau v. Gendron, 2001 ME 157, ¶ 12,
783 A.2d 643, 646.  We recognized that "if an asset is not included on the
schedule, the asset remains the property of the estate and does not revert back
to the debtor at the close of the bankruptcy case." Id. ¶ 11.  We affirmed the
trial court's grant of a summary judgment on the ground that the plaintiff
lacked the standing to bring the claim. 
	[¶7] As in Bureau, Lowry's potential claims remain part of the bankruptcy
estate.  Lowry has not reopened his bankruptcy case and amended his
statement of assets.{1}  Should the Bankruptcy Court permit him to do so, these
assets would remain the property of his bankruptcy estate for the trustee to
pursue against KTI or abandon to Lowry.  For this reason, Lowry presently
lacks standing to bring these claims against KTI.{2}
	The entry is:
			Case dismissed.
Attorney for plaintiff: Harry B. Center II, Esq. Smith Elliott Smith & Garmey, P.A. P O Box 1179 Saco, ME 04072 Attorneys for defendant: Ella L. Brown, Esq. Jared DesRosiers, Esq. Pierce Atwood One Monument Square Portland, ME 04101-1100
FOOTNOTES******************************** {1} . Upon a showing of good cause, Lowry can reopen his bankruptcy case under 11 U.S.C. § 350 (b). {2} . Because we conclude that Lowry lacks standing, we do not address the separate issue of judicial estoppel.