Steven E. Dotlich v. Tucker Hester, LLC

Dec 31 2015, 9:58 am
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Matthew A. Griffith Bradley J. Buchheit
Griffith Law Group, LLC Tucker Hester Baker & Krebs, LLC
Indianapolis, Indiana Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven E. Dotlich, December 31, 2015
Appellant-Defendant, Court of Appeals Case No.
29A02-1503-CC-125
v. Appeal from the Hamilton
Superior Court
Tucker Hester, LLC, The Honorable Steven R. Nation,
Appellee-Plaintiff. Judge
Trial Court Cause No.
29D01-1112-CC-12997
Brown, Judge.
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[1] Steven E. Dotlich appeals the trial court’s entry of summary judgment in favor
of William Tucker with respect to Dotlich’s malpractice claim against Tucker.
Dotlich raises five issues which we consolidate and restate as whether the court
erred in entering summary judgment in favor of Tucker. We affirm.
Facts and Procedural History
[2] Dotlich first met with Tucker, an attorney with Tucker Hester, LLC (the
“firm”) on January 24 or 25, 2011. At the meeting, Dotlich explained that most
of his debts were secured by crane equipment, vehicles, or other assets, and that
he was mostly concerned about saving his family home and his 12.5% limited
partnership interest his father had given him in Speedway Industrial Park, L.P.
Dotlich met again with Tucker on February 3, 2011, at which time Dotlich
signed an engagement letter, and Tucker filed a voluntary petition for
bankruptcy under Chapter 7 of the Bankruptcy Code on behalf of Dotlich on
the same day. Tucker filed “Schedule B – Personal Property” with the
bankruptcy court on February 17, 2011, which included an interest of 12.5% in
“Speedway Industrial Park, Inc.”1 Appellant’s Appendix at 149. Tucker filed a
1
Specifically, the description of the property provided:
Speedway Industrial Park, Inc. - Debtor owns 12.5% interest in this entity. Remaining
ownership interest is as follows: Dan Dotlich 12.5%, Rudy Dotlich 12.5%, Dale Dotlich
12.5%, Monnie Dotlich 24.5%, Margaret Dotlich 24.5%, MD Realty, Inc. 1%. Debtor has
no records for the corporation. There has been litigation between debtor and other owners
of the corporation. Debtor is unable to obtain any information regarding the corporation.
To obtain the information, Trustee should contact . . . , CPA, or Monnie Dotlich. Contact
information for [CPA]. Contact information for Monnie Dotlich: . . . . Debtor has never
received dividends and is obligated to pay taxes every year.
Appellant’s Appendix at 149. The property was also listed on Schedule C for property claimed as exempt,
the “Value of Claimed Exemption” for the property was listed as $279.00, and the “Current Value of
Property Without Deducting Exemption” was listed as “Unknown.” Id. at 154.
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motion to withdraw his appearance from Dotlich’s bankruptcy case on August
24, 2011, and two days later the court granted the motion.
[3] On December 23, 2011, the firm filed a Complaint on Account in the Hamilton
Superior Court against Dotlich alleging that he owed the firm $10,658.73. On
February 23, 2012, Dotlich by new counsel filed an answer. On April 2, 2012,
Dotlich’s new counsel also entered an appearance for him in his bankruptcy
case. In the Hamilton Superior Court, Dotlich filed a Motion for Leave to
Amend Answer to Complaint and a Motion to Join Person as Party on July 27,
2012, and the court granted the motions, including that William Tucker was
named as a counter-defendant on August 1, 2012,. Dotlich filed an Amended
Answer and Counterclaims on August 28, 2012, alleging:
1. There was an attorney-client relationship between William
Tucker and his law firm (“the Firm,”) as attorneys, and Steven E.
Dotlich, as client.
2. As a result of the attorney-client relationship, Tucker and the
Firm, who held themselves out to the public as possessing greater
than ordinary knowledge and skill in the field of bankruptcy law,
had a duty to represent Mr. Dotlich with the reasonable care,
skill, and diligence ordinarily possessed and exercised by
attorneys specializing in the field of bankruptcy law, under
similar circumstances.
3. Tucker and the Firm’s conduct in filing bankruptcy for Mr.
Dotlich, was a breach of their duty to exercise reasonable care,
skill, and diligence on Mr. Dotlich’s behalf.
4. As a result of said negligence in filing bankruptcy on behalf of
Mr. Dotlich, Mr. Dotlich sustained injury and loss.
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Id. at 127-128.2 The bankruptcy court’s docket shows that a discharge of debtor
was entered on March 4, 2013, and that the bankruptcy case was closed on
April 8, 2014.
[4] On June 19, 2014, Tucker filed a motion for summary judgment together with a
designation of evidence. He contended that Dotlich was judicially estopped
from pursuing his counterclaim, that Dotlich failed to amend his bankruptcy
schedules to reflect his malpractice claim and accordingly represented to the
bankruptcy court that he had no such claim, and that Dotlich would gain an
unfair advantage if not estopped as the bankruptcy trustee relied on his
misrepresentations and determined that there were fewer available assets for
distribution to his creditors.
[5] Dotlich filed a response together with designated evidence. He contended that
Tucker’s motion was premised on the false conclusion that the malpractice
claim is an asset of the bankruptcy estate, and that Tucker made a number of
post-petition errors, including improperly listing assets as exempt and failing to
accurately describe assets and their true values. He noted that Chapter 7 differs
from bankruptcy under Chapters 11 and 13, and asserted that the filing of a
2
Also, his answer, Dotlich asserted affirmative defenses including that: (1) the firm overbilled him for the
services that were actually provided; (2) the legal services provided by the firm were poor in quality and do
not deserve the compensation outlined in the account agreement for the quality of work that was expected of
the firm; (3) the firm failed to communicate properly with Dotlich concerning the services it was obligated to
provide; (4) the firm failed to provide Dotlich with proper instructions regarding the legal services it was
obligated to provide; (5) the firm failed to follow Dotlich’s instructions and is seeking fees that were not
earned; (6) Dotlich repeatedly objected to and complained about the firm’s services and bills; and (7) the firm
harmed Dotlich’s legal rights and committed negligence.
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Chapter 7 bankruptcy petition creates a bankruptcy estate encompassing all
interests of the debtor in property “as of the commencement of the case” and
that his malpractice claim arose after the filing of the petition. Id. at 109.
[6] In his reply, Tucker argued that only the bankruptcy trustee could pursue the
claims, and all of the elements of a claim for legal malpractice were present at
the time the bankruptcy petition was filed. He also argued that, even if the
malpractice claim did not accrue under Indiana law “as of” the filing date, the
claim has sufficient roots in Dotlich’s pre-bankruptcy activities to warrant
inclusion in his bankruptcy estate. Id. at 913.
[7] On December 15, 2014, the court held a hearing, and on February 9, 2015,
entered summary judgment in favor of Tucker and against Dotlich on Dotlich’s
counterclaim. The court found that Dotlich received a discharge in bankruptcy
more than seven months after he moved for leave to file his counterclaim in this
case, he did not amend his bankruptcy schedules or notify the trustee of the
claim, and that the counterclaim was property of the bankruptcy estate and only
the bankruptcy trustee could pursue it. The court noted that Section 541(a)(1)
of the Bankruptcy Code defines “property of the estate” to include “all legal or
equitable interests of the debtor in property as of the commencement of the
case,” and that property of the estate is broadly construed. Id. at 14 (citing 11
U.S.C. § 541(a)(1)). The court found that causes of action that accrue as a
result of the filing of a bankruptcy petition are property of the estate. Id. at 15
(citing In re Strada Design Assocs., Inc., 326 B.R. 229, 235 (Bankr. S.D. N.Y.
2005); In re Alvarez, 224 F.3d 1273, 1278 (11th Cir. 2000), cert. denied, 531 U.S.
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1146; In re Dow, 132 B.R. 853, 860 (Bankr. S.D. Ohio 1991)). The court further
stated that this conclusion follows from a comparison between 11 U.S.C. §§
541(a)(1) and (a)(7), where Section 541(a)(1) deals with the debtor’s interests
“as of the commencement of the case” as opposed to interests “before” or
“prior to” filing, id. (citing Alvarez, 224 F.3d at 1278), and Section 541(a)(7)
defines property of the estate to include any interest in property that the estate
acquires “after the commencement of the case.” Id.
[8] The court found that, under Indiana law, a legal malpractice claim consists of
four elements: an attorney-client relationship, negligence, proximate cause, and
damages, and that a claim “based on negligently advising a client to file a
bankruptcy petition accrues, at the latest, at the time the petition is filed.”
Strada Design Associates, 326 B.R. at 237; see also Alvarez, 224 F.3d at 1279
(same); In re Bounds, 495 B.R. 725, 732 (W.D. Tex. 2013) (same); Dow, 132
B.R. at 859-60 (same). The court noted that Dotlich’s counterclaim alleged that
“Tucker breached his duty of care by filing Dotlich’s bankruptcy petition” and
that “Tucker’s breach was the proximate cause of Dotlich’s damages.” Id. at
18-19 (citing In re Seven Seas Petroleum, Inc., 522 F.3d 575, 583 (5th Cir. 2008)
(the facial allegations of the complaint limit and guide the accrual analysis)).
[9] The court further concluded that, “[a]ssuming for the sake of argument that
Dotlich’s malpractice claim did not accrue under Indiana law ‘as of’ the filing
date, it still has sufficient roots in Dotlich’s pre-bankruptcy activities to warrant
inclusion into his estate.” Id. at 20. The court found in part:
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28. Here, Dotlich’s malpractice claim has all its roots in his pre-
bankruptcy past. He consulted with and retained Tucker prior to
the petition date. The allegations of lack of due care, culminating
in the filing of Dotlich’s chapter 7 petition, relate to Tucker’s pre-
petition advice. Finally, Dotlich suffered his alleged injury—loss
of control of his ownership interest in Speedway Industrial Park,
Inc., subjecting it to the liquidation powers of the trustee—at the
moment the petition was filed.
Id. at 17, 20-21.
[10] The court found that unless and until the bankruptcy trustee abandoned the
claim from the estate, Dotlich had no standing to pursue it.
[11] The court also concluded that Dotlich is judicially estopped from pursuing his
counterclaim, noting that federal courts have developed a basic default rule
that, if a plaintiff-debtor omits a pending (or soon-to-be-filed) lawsuit from the
bankruptcy schedules and obtains a discharge (or plan confirmation), judicial
estoppel bars the action and that Indiana abides by this rule. Id. at 24 (citing
Hammes v. Brumley, 659 N.E.2d 1021, 1028 n.4 (Ind. 1997) (“Unless scheduled
by the debtor and abandoned by the trustee in bankruptcy, such [assets] may no
longer be pursued by the debtor.”), reh’g denied; Shewmaker v. Etter, 644 N.E.2d
922, 930 (Ind. Ct. App. 1994) (“Indiana will not allow a debtor who has
shielded assets from his creditors to pursue that asset in its courts.”), adopted by
Hammes).
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[12] The order provided there was no just reason for delay and expressly directed the
entry of judgment in favor of Tucker and against Dotlich on his counterclaim
pursuant to Trial Rule 54(B).
Issue and Standard of Review
[13] The issue is whether the trial court erred in entering summary judgment in
favor of Tucker on Dotlich’s counterclaim. Our standard of review is the same
as it is for the trial court. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013).
The moving party bears the initial burden of making a prima facie showing that
there are no genuine issues of material fact and that it is entitled to judgment as
a matter of law. Id. Summary judgment is improper if the moving party fails to
carry its burden, but if it succeeds, then the nonmoving party must come
forward with evidence establishing the existence of a genuine issue of material
fact. Id. We construe all factual inferences in favor of the nonmoving party and
resolve all doubts as to the existence of a material issue against the moving
party. Id. An appellate court reviewing a challenged trial court summary
judgment ruling is limited to the designated evidence before the trial court, but
is constrained to neither the claims and arguments presented at trial nor the
rationale of the trial court ruling. Id.
[14] In the summary judgment context, we are not bound by the trial court’s specific
findings of fact and conclusions of law. Rice v. Strunk, 670 N.E.2d 1280, 1283
(Ind. 1996). They merely aid our review by providing us with a statement of
reasons for the trial court’s actions. Id. The fact that the parties make cross-
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motions for summary judgment does not alter our standard of review.
Huntington v. Riggs, 862 N.E.2d 1263, 1266 (Ind. Ct. App. 2007), trans. denied.
The Parties’ Arguments
[15] Dotlich contends that, by ignoring uncontested evidence and mischaracterizing
his counterclaim, the trial court was able to apply the law in such a way as to
explain why it rendered judgment against him. He concedes that, if his claim
was property of the bankruptcy estate, then only the bankruptcy trustee could
bring it. He asserts, however, that Tucker, “per bankruptcy rules, had 14 days
to gather and analyze documents and data necessary to determine the propriety
of continuing the bankruptcy for Dotlich, or whether other non-bankruptcy
strategies and remedies would have been advisable,” and that “[h]ad Tucker
done his job properly, Tucker would have concluded that bankruptcy was a
very poor choice for Dotlich, and Tucker would have and should have allowed
Dotlich’s bankruptcy to be automatically dismissed at the end of that 14-day
period.” Appellant’s Brief at 11. He asserts that Tucker committed malpractice
on February 17, 2011 when he filed the schedules which listed the partnership
interest as an exempt asset and as having a value of $279, and that Tucker made
no attempt to mitigate the losses he caused. Dotlich also argues that he is not
judicially estopped from asserting Tucker’s post-petition bad acts because post-
petition causes of action in a Chapter 7 bankruptcy are the right of the debtor
alone to pursue.
[16] The firm argues that “[t]he filing of the petition caused the (alleged) harm that
Dotlich complains of—not the filing of the schedules 14 days later” and that “at
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the moment his petition was filed, he lost control of his ownership interest in
Speedway Industrial Park (an asset), subjecting it to the liquidation powers of
the trustee.” Id. at 17-18.
[17] The firm also asserts without citation to authority that every federal court of
appeals that has considered the question “has held that a debtor in bankruptcy
who receives a discharge (i.e., a personal financial benefit) by representing that
he has no valuable legal causes of action cannot turn around after the
bankruptcy ends and try to recover on a supposedly nonexistent claim.” Id. at
25.
Discussion
[18] The trial court found that Dotlich’s malpractice claim constituted an asset or
property of his bankruptcy estate on three bases, namely, that the malpractice
claim arose at the time the bankruptcy petition was filed, that the claim was
sufficiently rooted in Dotlich’s pre-bankruptcy past such that it should be
considered property of his bankruptcy estate, and that Dotlich is judicially
estopped from pursuing the claim.
[19] We first turn to when Dotlich’s malpractice claim arose. Tucker filed a
voluntary petition for bankruptcy under Chapter 7 on behalf of Dotlich on
February 3, 2011. Pursuant to 11 U.S.C. § 541(a), the commencement of a
bankruptcy action by filing a bankruptcy petition creates an estate, and with
certain exceptions the “property of the estate” includes “all legal or equitable
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interests of the debtor in property as of the commencement of the case.”3
(Emphasis added). The scope of the property defined by Section 541 to be
property of the estate is broad, and in general all interests of a debtor, both legal
and equitable, are property of the estate. In Matter of Jones, 768 F.2d 923, 926
(7th Cir. 1985). Whether a particular interest held by the debtor is “property of
the estate” is a question of federal bankruptcy law, but the nature and extent of
that interest is defined by state law. Butner v. United States, 440 U.S. 48, 54-55,
99 S. Ct. 914, 917-918 (1979); In Matter of Jones, 768 F.2d at 927; see In re Marrs-
Winn Co., Inc., 203 B.R. 964, 971-972 (Bankr. C.D. Ill. 1995). “Property of the
estate” is broadly construed. See United States v. Whiting Pools, 462 U.S. 198,
204-05, 103 S. Ct. 2309, 2313 (1983). “This policy is embodied in the concept
that property of the estate may include property that a debtor receives post-
petition where its origins are sufficiently rooted in the debtor’s pre-bankruptcy
past.” In re Stewart, 452 B.R. 726, 741 n.9 (Bankr. C.D. Ill. 2011) (citing Segal,
382 U.S. at 380, 86 S. Ct. 511).
3
Section 541(a) provides in part:
The commencement of a case under section 301, 302, or 303 of this title creates an estate.
Such estate is comprised of all the following property, wherever located and by
whomever held:
(1) Except as provided in subsections (b) and (c)(2) of this section, all legal or
equitable interests of the debtor in property as of the commencement of the case.
...
*****
(7) Any interest in property that the estate acquires after the commencement of
the case.
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[20] In Indiana, the elements of an action for legal malpractice are: “(1) employment
of an attorney, which creates a duty to the client; (2) failure of the attorney to
exercise ordinary skill and knowledge (breach of the duty); and (3) that such
negligence was the proximate cause of (4) damage to the plaintiff.” Reiswerg v.
Statom, 926 N.E.2d 26, 30 (Ind. 2010). Generally, for an action to accrue, it is
not necessary that the full extent of the damage be known or even ascertainable,
but only that some ascertainable damage has occurred. See Cooper Indus., LLC v.
City of S. Bend, 899 N.E.2d 1274, 1280 (Ind. 2009).
[21] In his counterclaim, Dotlich alleged in part that “Tucker and the Firm’s
conduct in filing bankruptcy for Mr. Dotlich, was a breach of their duty to
exercise reasonable care, skill, and diligence on Mr. Dotlich’s behalf” and that
“[a]s a result of said negligence in filing bankruptcy on behalf of Mr. Dotlich, Mr.
Dotlich sustained injury and loss.” Appellant’s Appendix at 128 (emphases
added). According to his claim, Tucker committed malpractice when he filed
the bankruptcy petition on behalf of Dotlich.
[22] When the Chapter 7 voluntary petition was filed, Dotlich’s bankruptcy estate
was created and his interests in property vested in the estate, and all of the legal
ramifications attendant to the creation of the estate came into existence. See In
re Alvarez, 224 F.3d at 1277. In his designated affidavit, Dotlich stated that he
first met with Tucker on January 24 or 25, 2011, at which time he explained to
Tucker that he was mostly concerned about saving his family home and his
12.5% limited partnership interest in Speedway Industrial Park, L.P. Dotlich
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stated that, at that meeting, Tucker recommended an emergency bankruptcy
and that there was no substantive discussion about whether he should file
bankruptcy or pursue other strategies. He stated he met again with Tucker on
February 3, 2011, that Tucker rushed him to sign his engagement letter, again
there was no substantive discussion about his bankruptcy, and that Tucker filed
his bankruptcy petition that day. In his appellant’s brief, Dotlich argues that
Tucker failed to advise him that his most valuable assets could be better
protected outside bankruptcy. He does not dispute that his limited partnership
interest became property of the bankruptcy estate as of the filing of the petition.
[23] In opposition to Tucker’s summary judgment motion, Dotlich designated the
affidavit of Grant Shipley. Shipley stated that a partnership interest cannot
typically be sold at the request of a creditor but rather the creditor’s remedy is to
obtain a charging order requiring that profits and distributions be redirected to
the creditor, that it would be prudent to advise a debtor to weigh the benefits of
waiting out the collection process rather than filing bankruptcy with the
potential that the trustee would sell the limited partnership interest, and that the
bankruptcy trustee can step into the shoes of the debtor and sell the partnership
interest unless it is exempt. He stated in reviewing the docket sheet in the
bankruptcy case, he did not see that the trustee objected to Dotlich’s claimed
exemption. Dotlich stated in his affidavit that his interest in the limited
partnership was sold to one of his family members for around $80,000.
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[24] The filing of the petition obligated the trustee to liquidate Dotlich’s assets,4 11
U.S.C. § 704(1), and the deprivation of this asset caused harm to him at the
time of the filing. See In re Alvarez, 224 F.3d at 1277 (noting, in response to the
debtor’s argument that the harm did not occur until after the petition was filed,
that the debtor’s loss of ownership and control of his assets which occurred
when the petition was filed constituted a significant and tangible change which
obviously caused harm to him); see also In re Strada, 326 B.R. at 237 (holding,
where the debtors argued they did not suffer injury until after the petition was
filed, that the filing of the petition obligated the trustee to liquidate the debtors’
assets, that the filing decreased their values as measured by the difference
between their going concern and liquidation values, and that just being in
Chapter 7 was sufficient harm itself to impose a duty on the firm to rectify it); In
re Dow, 132 B.R. at 860 (holding that the damages caused by the alleged
malpractice occurred at the point of the filing of the Chapter 7 bankruptcy
petition). Also, Dotlich’s assertion that Tucker failed to permit the bankruptcy
proceeding to be dismissed relates to a failure to seek to remedy the initial
negligent act or ameliorate the harm rather than the act that completed the
malpractice. See In re Alvarez, 224 F.3d at 1278 n.10 (noting that the debtor’s
allegation of a post-filing failure was more aptly described as simply a failure to
seek to remedy the initial negligent act or ameliorate the harm rather than as an
independent act of negligence). We conclude that Dotlich’s malpractice claim
4
The decrease in value of Dotlich’s property to its liquidation value constitutes harm. See In re Strada, 326
B.R. at 237.
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arose with the filing of the bankruptcy petition and thus constituted property of
the bankruptcy estate under 11 U.S.C. § 541.
[25] In addition, according to Segal v. Rochelle, 382 U.S. 375, 86 S. Ct. 511 (1966), a
claim can be sufficiently rooted in a debtor’s pre-bankruptcy past such that the
claim should be considered property of the debtor’s bankruptcy estate. The
Court in Segal considered whether the debtors’ claims for loss-carryback tax
refunds were property of the debtors’ bankruptcy estates. The Court
determined that two key elements pointing toward realization of a refund
existed at the time the bankruptcy petitions were filed, that taxes had been paid
on net income within the past three years and that the year of bankruptcy at
that point exhibited a net operating loss. Id. at 380, S. Ct. at 515. The Court
concluded that the loss-carryback refund claim was “sufficiently rooted in the
pre-bankruptcy past . . . that it should be regarded as ‘property’ . . . .” Id.
[26] The trial court did not err in determining that Dotlich’s malpractice claim was
firmly rooted in the pre-bankruptcy past such that the claim constituted
property of his bankruptcy estate. See In re Alvarez, 224 F.3d at 1278-1279
(concluding that the debtor’s legal malpractice cause of action was sufficiently
rooted in his pre-bankruptcy past that it should be considered property of the
debtor as of the commencement of his bankruptcy case and thus property of his
estate and noting that the malpractice claim was even more firmly rooted in the
pre-bankruptcy past than the claim in Segal) (citing In re Tomaiolo, 205 B.R. 10,
15 (Bankr. D. Mass. 1997) (holding that the debtor’s malpractice claims were
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sufficiently rooted in the pre-bankruptcy past to be includible in his bankruptcy
estate, noting that his claims concerning advice given him to file bankruptcy
was based upon pre-petition conduct of the defendants, and observing that,
although the debtor alleged post-petition negligence in the defendants’ failure to
cure errors in documents, that conduct had pre-petition roots), aff’d; see also In re
Strada, 326 B.R. at 238 (holding the malpractice claims had all of their roots in
the debtors’ pre-bankruptcy past and noting that the firm was consulted with
and retained prior to the petition date, that the allegations of lack of care
culminated in the filing of the Chapter 7 petitions, and that the debtors suffered
their injury and decline in value at the moment the petitions were filed).
[27] Further, Dotlich is judicially estopped from pursuing his malpractice claim.
“[A] debtor in bankruptcy who denies owning an asset, including a chose in
action or other legal claim, cannot realize on that concealed asset after the
bankruptcy ends.” Cannon-Stokes v. Potter, 453 F.3d 446, 448 (7th Cir. 2006)
(citing Payless Wholesale Distribs., Inc. v. Alberto Culver (P.R.) Inc., 989 F.2d 570,
571 (1st Cir. 1993) (holding that the district court should have recognized the
defense of judicial estoppel and dismissed Payless’s complaint, and stating that
“[t]he basic principle of bankruptcy is to obtain a discharge from one’s creditors
in return for all [of] one’s assets, except those exempt, as a result of which
creditors release their own claims and the bankrupt can start fresh,” and that
Payless had “a better plan. Conceal your claims; get rid of your creditors on the
cheap, and start over with a bundle of rights. This is a palpable fraud that the
court will not tolerate, even passively,” and that “Payless, having obtained
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judicial relief on the representation that no claims existed, can not now
resurrect them and obtain relief on the opposite basis”), cert. denied, 510 U.S.
931), cert. denied, 549 U.S. 1099. See Robinson v. Tyson Foods, Inc., 595 F.3d
1269, 1274-1275 (11th Cir. 2010) (noting that the duty to disclose all assets and
potential assets applies to proceedings under Chapter 13 and Chapter 7 alike
and is a continuing one that does not end once the forms are submitted to the
bankruptcy court), reh’g and reh’g en banc denied; Cannon-Stokes, 453 F.3d at 447-
448 (noting that Cannon-Stokes filed a Chapter 7 bankruptcy petition and was
discharged and finding that judicial estoppel blocked her attempt to realize a
claim for her personal benefit).
[28] Based upon the designated evidence, Dotlich’s malpractice claim constituted
property of the bankruptcy estate under 11 U.S.C. § 541. Accordingly, the trial
court did not err in determining that Dotlich is precluded from pursuing the
claim and in entering summary judgment in favor of Tucker on Dotlich’s
counterclaim for malpractice.
[29] To the extent Dotlich argues the court erred in denying his verbal cross-motion
for summary judgment on the firm’s collection claim, we note that under
Appellate Rule 2(H)(2) an order is a final appealable judgment if “the trial court
in writing expressly determines under Trial Rule 54(B) . . . there is no just
reason for delay and in writing expressly directs the entry of judgment (i) under
Trial Rule 54(B) as to fewer than all the claims or parties . . . .” A “Trial Rule
54(B) certification of an order that disposes of less than the entire case must
contain the magic language of the rule.” Ramsey v. Moore, 959 N.E.2d 246, 253
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(Ind. 2012) (citing Georgos v. Jackson, 790 N.E.2d 448, 452 (Ind. 2003), reh’g
denied). The trial court’s order in this case contains the “magic language” of
Trial Rule 54(B) with respect to its entry of summary judgment “in favor of
Tucker and against Dotlich on his counterclaim against Tucker,” but does not
include the language of Trial Rule 54(B) with respect to the denial of Dotlich’s
verbal cross-motion for summary judgment on the firm’s collection claim.
Appellant’s Appendix at 35. Accordingly, the portion of the court’s order
denying Dotlich’s verbal cross-motion for summary judgment does not fall
under Appellate Rule 2(H)(2). See Ramsey, 959 N.E.2d at 253 (observing that
the “magic language” in the trial court’s order applied to only the portion of the
order regarding the grant of summary judgment for Dr. Ramsey, that it was
apparent that the trial court intended the Rule 54(B) language to apply solely to
that claim, and that there was a clear absence of the Rule 54(B) language in the
portion of the court’s order denying other motions, and concluding that,
accordingly, the relevant part of the trial court’s order did not fall under
Appellate Rule 2(H)(2)).
Conclusion
[30] For the foregoing reasons, we affirm the trial court’s entry of summary
judgment in favor of Tucker on Dotlich’s counterclaim for malpractice.
[31] Affirmed.
Riley, J., and Altice, J., concur.
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