NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
SHELLY L. CHITTIM, )
)
Appellant, )
)
v. ) Case No. 2D15-4578
)
DAVID M. CHITTIM, )
)
Appellee. )
)
Opinion filed June 30, 2017.
Appeal from the Circuit Court for
Hillsborough County; Wesley D. Tibbals,
Judge.
J. Chad Self, C. Todd Marks, Kelly M.
Albanese, and Kylie M. Caporuscio of
Westchase Law, Tampa, for Appellant.
Elizabeth S. Wheeler and Carl J. Ohall
of Berg & Wheeler, P.A., Brandon, for
Appellee.
ROTHSTEIN-YOUAKIM, Judge.
In this appeal, Shelly L. Chittim, the Former Wife, challenges the trial
court's postbankruptcy denial of her motion for attorneys' fees and costs, which was
based on a prebankruptcy award of attorneys' fees and costs in her dissolution
proceeding. For the reasons set forth in the trial court's order, we agree that the Former
Wife's attorneys, Westchase Law, cannot pursue a claim for attorneys' fees and costs
against either the Former Wife or David M. Chittim, the Former Husband. We disagree,
however, that the Former Wife is no longer entitled to the award of attorneys' fees and
costs against the Former Husband that the trial court entered before she declared
bankruptcy. Accordingly, we vacate the trial court's order and remand for a
determination of the reasonable attorneys' fees and costs to which the Former Wife is
entitled.
Course of Proceedings
In August 2014, the trial court entered a final judgment of dissolution
awarding the Former Wife attorneys' fees and costs against the Former Husband (the
fee award) pursuant to her request under section 61.16, Florida Statutes (2012), and
Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997); directing the parties to try to agree on
the amount of reasonable attorneys' fees "that the Husband shall pay the wife"; and
reserving jurisdiction in case the parties were unable to agree. In September 2014,
having received no satisfactory response from the Former Husband, the Former Wife
moved for the court to enter an order awarding her reasonable attorneys' fees and
costs. In December 2014, however, she declared bankruptcy, which stayed the
determination.
Westchase Law represented the Former Wife in both the dissolution and
the bankruptcy proceedings. As part of its agreement to represent her in the dissolution
proceeding, Westchase Law had filed a charging lien against her property. In the
bankruptcy proceeding, however, it did not file any claim in connection with its fees and
costs in the dissolution proceeding, and the Former Wife did not declare the fee award,
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either as an asset due to her or as a debt that she owed to Westchase Law, in her
bankruptcy petition.
In April 2015, the bankruptcy court granted the Former Wife a discharge
under 11 U.S.C. § 727 (2012).
In August 2015, at the direction of the trial court, the parties filed
memoranda of law addressing the effect of the bankruptcy proceeding on the fee award.
The Former Husband argued that the Former Wife should be judicially estopped from
pursuing the fee award against him in light of her failure to include it as an asset on her
bankruptcy petition and that, in any event, the fee award should be zero because the
bankruptcy proceeding had discharged the Former Wife's debt to Westchase Law. The
Former Wife argued that judicial estoppel was unwarranted because she had
consistently maintained that the fee award was not an asset of the bankruptcy estate,
that her bankruptcy proceeding had not discharged the Former Husband's debt to her,
that Westchase Law's lien was enforceable against both her and the Former Husband
and could not be discharged in the bankruptcy, and that, in any event, she had
reaffirmed her debt to Westchase Law after the bankruptcy had been discharged.
At a hearing before the trial court in September 2015, the evidence
established that the Former Wife had disclosed the dissolution proceeding to the
bankruptcy trustee in her statement of financial affairs and that, before the discharge,
the trustee had also found out about the fee award. The trustee testified that after
investigating the dissolution proceeding, she had not considered the fee award to be an
asset of the estate.
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The Former Wife's expert testified that absent any reaffirmation
agreement, the Former Wife's debt to Westchase Law had been discharged and was
uncollectible against her. The expert clarified that the debt still exists but is simply
unenforceable by Westchase Law against the Former Wife. Although the Former Wife's
counsel repeatedly asserted that the Former Wife had reaffirmed her debt to Westchase
Law, no evidence of any reaffirmation agreement was presented.
The trial court concluded that the Former Wife was not entitled to the fee
award because (1) she was judicially estopped from pursuing the award based on her
failure to list it as an asset in her bankruptcy petition and (2) she no longer owed
Westchase Law any fees or costs because the bankruptcy had discharged her debt to it
and because it had waived its claim by failing to file proof of the claim in the bankruptcy
proceeding. The Former Wife challenges those conclusions on appeal.
Analysis
"[J]udicial estoppel 'is an equitable doctrine invoked by a court at its
discretion.' " New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting Russell v.
Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990)). It "prevents litigants from taking
inconsistent positions in separate judicial or quasi-judicial proceedings," Crawford
Residences, LLC v. Banco Popular N. Am., 88 So. 3d 1017, 1020 (Fla. 2d DCA 2012)
(quoting Zeeuw v. BFI Waste Sys. of N. Am., Inc., 997 So. 2d 1218, 1220 (Fla. 2d DCA
2008)), and
[a]t its core . . . requires a showing that a litigant successfully
maintained a position in one proceeding while taking an
inconsistent position in a later proceeding, and that the other
party was misled and changed its position in such a way that
it would be unjust to allow the litigant to take the inconsistent
position.
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Id. Judicial estoppel requires, among other things, that the separate proceedings
involve the same parties, that the party seeking estoppel relied on or was misled by the
other party's former position, and that the party seeking estoppel changed his or her
position to his or her detriment based on the other party's former position. Fintak v.
Fintak, 120 So. 3d 177, 186 (Fla. 2d DCA 2013).
We agree with the Former Wife that the trial court erred in concluding that
she should be judicially estopped from claiming entitlement to the fee award because
the dissolution proceeding and the bankruptcy proceeding do not involve the same
parties. Moreover, the record does not indicate that any party to either proceeding was
misled by or changed its position based on the Former Wife's failure to disclose the fee
award as an asset in her bankruptcy petition. The bankruptcy trustee learned about the
fee award during the bankruptcy proceeding and did not consider it to be an asset of the
estate. And although the Former Wife's failure to disclose the award gave the Former
Husband an argument for not paying the award that he would not have had otherwise,
the record does not indicate that he relied on or was misled by that failure to his
detriment.
The trial court also erred in concluding that "[t]he Former Wife is not
entitled to recover attorneys' fees because she no longer owes her attorneys any fees
or costs." Although the bankruptcy court discharged all of her prepetition debts, debts
discharged in bankruptcy do not cease to exist; they simply become unenforceable. In
re Quigley, 391 B.R. 294, 302 (Bankr. N.D.W. Va. 2008) (and cases cited therein); see
also 11 U.S.C. § 524 (explaining effect of discharge in bankruptcy proceeding).
Similarly, Westchase Law's failure to file a proof of claim in the bankruptcy proceeding
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does not waive the Former Wife's debt to Westchase Law but simply waives Westchase
Law's ability to recover on the debt. See In re Aloia, 496 B.R. 366, 378 (Bankr. E.D. Pa.
2013) ("[D]isallowance of a claim owing to a creditor's failure to file a timely proof of
claim does not negate the claim itself. It simply means that the creditor may be unable
to receive a distribution from the chapter 7 trustee under 11 U.S.C. § 726."). In other
words, to the extent that the Former Wife owed Westchase Law any fees and costs at
the time of the discharge, she still owes them. But unless she reaffirmed the debt—and
we agree with the trial court that nothing in the record establishes that she did—
Westchase Law cannot collect on it.
Because the trial court erred in concluding that the Former Wife was
judicially estopped from pursuing the fee award and was otherwise no longer entitled to
do so because she no longer owes her attorneys any fees or costs, we vacate the
court's order on those grounds and remand for a determination of her reasonable
attorneys' fees and costs.1 The trial court's order is affirmed in all other respects.
Vacated in part; affirmed in part; remanded with instructions.
CASANUEVA and CRENSHAW, JJ., Concur.
1
In so remanding, we do not foreclose the trial court's consideration of any
equitable factors. See Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997) (observing that
proceedings under chapter 61, Florida Statutes, "are in equity and governed by basic
rules of fairness as opposed to the strict rule of law" (§ 61.011, Fla. Stat. (1995)).
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