MANUEL ANTONIO SALAZAR-ABREU AND GLADYS MARIA SALAZAR

v.

WALT DISNEY PARKS AND RESORTS U.S., INC.

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

MANUEL ANTONIO SALAZAR-ABREU

AND GLADYS MARIA SALAZAR,

Appellants,

v. Case No. 5D17-2135

WALT DISNEY PARKS AND RESORTS U.S., INC.,

Appellee.

________________________________/

Opinion filed December 28, 2018

Appeal from the Circuit Court for Orange County, Bob Leblanc, Judge.

Sonia Roca, of Lopez Roca, P.A., Miami, for Appellants.

Angela C. Flowers, of Kubicki Draper, Ocala, for Appellee.

PER CURIAM.

Manuel Antonio Salazar-Abreu and Gladys Maria Salazar (Appellants) appeal the final summary judgment entered in favor of Walt Disney Parks and Resorts U.S., Inc. (Disney) based on judicial estoppel. Appellants argue, inter alia, that the trial court improperly applied the standard adopted by the United States Court of Appeals for the Eleventh Circuit rather than the Florida standard for judicial estoppel when ruling on

Appellants filed their negligence and loss of consortium claims against Disney for a slip and fall in the Epcot Center parking lot while Manuel had a preexisting Chapter 13 bankruptcy petition pending before the United States Bankruptcy Court for the Southern District of Florida. Disney was not a party in Manuel's bankruptcy case. It is undisputed that Manuel failed to disclose the existence of his claim against Disney to the bankruptcy court. A debtor in bankruptcy has a continuing duty to disclose assets, including new causes of action, to the bankruptcy court after the petition is filed. 11 U.S.C. § 521(a)(1)(B)(i); Allen v. C & H Distribs., LLC, 813 F. 3d 566, 573 (5th Cir. 2015) (citing Flugence v. Axis Surplus Ins. Co. (In re Flugence), 738 F. 3d 126, 129 (5th Cir. 2013)); Hamilton v. State Farm Fire & Cas. Co., 270 F. 3d 778, 785 (9th Cir. 2001) (citing In re Coastal Plains, Inc., 179 F. 3d 197, 208 (5th Cir. 1999)). The bankruptcy court confirmed a Chapter 13 plan, but it later dismissed the bankruptcy case without discharge upon motion by the trustee due to Manuel's failure to make payments under the plan. The dismissal without discharge essentially returned the parties to the bankruptcy case to the positions they had occupied before the bankruptcy petition was filed. See 11 U.S.C. § 349(b); In re Lopez, 897 F. 3d 663, 670 (5th Cir. 2018) (quoting In re Oparaji, 698 F. 3d 231, 238 (5th Cir. 2012)). Based on Manuel’s failure to disclose the lawsuit as a potential asset in the bankruptcy proceedings, Disney moved for summary judgment relying on a theory of judicial estoppel. "Judicial estoppel is an equitable doctrine that is used to prevent litigants from taking totally inconsistent positions in separate judicial, including quasi-judicial,

In Florida, judicial estoppel encompasses the following four elements: [1] A claim or position successfully maintained in a former action or judicial proceeding [2] bars a party from making a completely inconsistent claim or taking a clearly conflicting position in a subsequent action or judicial proceeding, [3] to the prejudice of the adverse party,[2] [4] where the parties are the same in both actions, subject to the "special fairness and policy considerations" exception to the mutuality of parties requirement.

Grau, 899 So. 2d at 400 (original footnote omitted) (citing Blumberg, 790 So. 2d at 1066); accord Town of Ponce Inlet v. Pacetta, LLC, 226 So. 3d 303, 312 (Fla. 5th DCA 2017)

1 The "mockery of justice" language was taken from an Eleventh Circuit case, American National Bank v. Federal Deposit Insurance Corp., 710 F. 2d 1528, 1536 (11th Cir. 1983), but it was not incorporated into the Florida rule. Grau, 899 So. 2d at 400 (quoting Blumberg, 790 So. 2d at 1066).

2 Prejudice "occurs when 'the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.'" Grau, 899 So. 2d at 400 n.3 (quoting New Hampshire v. Maine, 532 U.S. 742, 751 (2001)).

New Hampshire, 532 U.S. at 750-51 (citations omitted). The Supreme Court further stated that "[i]n enumerating these factors, we do not establish inflexible prerequisites or an exhaustive formula for determining the applicability of judicial estoppel." Id. at 751. It noted that "[a]dditional considerations may inform the doctrine's application in specific factual contexts." Id. One of those additional considerations can be whether "a party's prior position was based on inadvertence or mistake." Id. (citing John S. Clark Co. v. Faggert & Frieden, P.C., 65 F. 3d 26, 29 (4th Cir. 1995)). Notably, the United States Supreme Court's factors in New Hampshire differ from Florida's rule in that there is no mutuality factor. Compare New Hampshire, 532 U.S. at 750-51, with Grau, 899 So. 2d at 400 (citing Blumberg, 790 So. 2d at 1066).

The United States Circuit Courts of Appeals for the First, Second, Seventh, Eighth, Ninth, and Tenth Circuits essentially adhere to the factors enumerated in New Hampshire. See Sexual Minorities Uganda v. Lively, 899 F. 3d 24, 32-33 (1st Cir. 2018); Clark v. AII Acquisition, LLC, 886 F. 3d 261, 266-67 (2d Cir. 2018); Ah Quin v. Cty. of Kauai Dep't of Transp., 733 F. 3d 267, 271, 277 (9th Cir. 2013); Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F. 3d 785, 795 (7th Cir. 2013); Eastman v. Union Pac. R.R. Co., 493 F. 3d 1151, 1156-57 (10th Cir. 2007); Stallings v. Hussmann Corp., 447 F. 3d 1041, 1047 (8th Cir. 2006); Hamilton v. State Farm Fire & Cas. Co., 270 F. 3d 778, 783 (9th Cir. 2001).

Here, the trial court determined that Appellants "made inconsistent statements under oath in two different proceedings" and that "these inconsistent statements were calculated to make a mockery of the judicial system." This is the Eleventh Circuit rule. See Slater, 871 F. 3d at 1181-82. The Eleventh Circuit rule differs from the Florida rule because it does not consider whether the inconsistent claim was successfully asserted in the prior action, whether there was prejudice to the opposing party, or whether there was mutuality of the parties subject to the special fairness and policy considerations exception. Compare id., with Grau, 899 So. 2d at 400 (citing Blumberg, 790 So. 2d at 1066). Because the federal Eleventh Circuit rule for judicial estoppel is not the same as the

Accordingly, we reverse the final summary judgment entered by the trial court and remand for rehearing utilizing the correct standard. See id. (reversing for applying federal rule rather than Florida rule on judicial estoppel).

REVERSED AND REMANDED.

TORPY, BERGER and WALLIS, JJ., concur.