IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
November 29, 2017
SHELLY L. CHITTIM, )
)
Appellant, )
)
v. ) Case No. 2D15-4578
)
DAVID M. CHITTIM, )
)
Appellee. )
)
BY ORDER OF THE COURT:
The Former Husband's motion for rehearing is denied. The Former
Husband's motion for clarification is granted. The prior opinion dated June 30, 2017 is
withdrawn and the attached opinion is issued in its place. No further motions for
rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER
MARY ELIZABETH KUENZEL, CLERK
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 November 29, 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,
either as an asset due to her or as a debt that she owed to Westchase Law, in her
bankruptcy petition.
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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.
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
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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 "requires a showing that a litigant successfully maintained a position in one
proceeding while taking an inconsistent position in a later proceeding," id. The purpose
of the doctrine is to prevent a party from "making a mockery of justice by inconsistent
pleadings" and from "playing fast and loose with the courts." Carter v. State, 980 So. 2d
473, 484 (Fla. 2008) (first quoting Am. Nat'l Bank v. Fed. Deposit Ins. Corp., 710 F.2d
1528, 1536 (11th Cir.1983); then quoting Russell, 893 F.2d at 1037).
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In Slater v. U.S. Steel Corp., 27 Fla. L. Weekly Fed. C190, C193 (11th Cir.
Sept. 18, 2017) (en banc), the United States Court of Appeals for the Eleventh Circuit
recently addressed the doctrine in the context of a party who fails to identify a pending
civil claim as an asset in the bankruptcy proceeding. In that well-reasoned opinion, the
Eleventh Circuit en banc retreated from its earlier case law—on which the trial court in
this case relied—prescribing an effectively ipso facto approach to determining whether
such a party intended to make a mockery of justice, i.e., the failure to identify the claim
evidenced, in itself, an intent to manipulate the proceedings. The Eleventh Circuit
clarified that an evaluation of intent requires consideration of "all the facts and
circumstances of the particular case," including
such factors as the [party's] level of sophistication, whether
and under what circumstances the [party] corrected the
disclosures, whether the [party] told his bankruptcy attorney
about the civil claims before filing the bankruptcy disclosures,
whether the trustee or creditors were aware of the civil lawsuit
or claims before the [party] amended the disclosures, whether
the [party] identified other lawsuits to which he was a party,
and any findings or actions by the bankruptcy court after the
omission was discovered.
Id.
We are persuaded by the rationale behind Slater and, consistently with
that opinion—of which, we emphasize, the trial court did not have the benefit—we hold
that the trial court erred in concluding that the Former Wife should be judicially estopped
from pursuing the attorney's fees award. The Former Wife disclosed the dissolution
proceeding to the bankruptcy trustee, including that attorney's fees had been awarded
(in an amount yet to be determined) in that proceeding; the trustee informed the Former
Wife that the trustee had no interest in the attorney's fees; the trustee also informed the
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Former Wife that the trustee had communicated with the Former Husband's counsel
regarding the existence of the fee award in the final judgment and the existence of a
charging lien filed by the Former Wife's attorneys; and the trustee, in fact, took no action
with respect to the fee award in the bankruptcy proceeding. The totality of the
circumstances, therefore, does not support a finding that the Former Wife intended to
make a mockery of justice or that she was attempting to "play fast and loose with the
courts."
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
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.
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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.
1In 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" (citing § 61.011, Fla. Stat. (1995)).
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