SUMMARY OF REPLY

 

Vickie obtained her discharge on March 8, 1999. Nearly two years later, Vickie’s inequitable and disruptive conduct in the Texas Probate Court prompted the court to award Pierce $541,000 in attorneys’ fees incident to his declaratory relief action filed on February 9, 2001. The main question in this appeal is whether Vickie’s 1999 discharge shields her from liability for events that transpired nearly two years later. This question must be answered in the negative because a discharge in bankruptcy does not shield a debtor from post-discharge liabilities. See O’Loghlin v. County of Orange, 229 F.3d 871, 874-75 (9th Cir. 2000).

 

Contrary to Vickie’s arguments, her liability for the fee award is properly post-discharge in nature because all the events necessary to establish her liability arose post-discharge (i.e., Pierce’s filing of his declaratory judgment action, the probate trial, Vickie’s conduct giving rise to liability, and the fee award itself). Further, it is legally inconceivable that Vickie’s liability for the fee award could have arisen at the time of, or prior to, her discharge. First, none of the factual events giving rise to liability had yet occurred. Second, under Texas law, Pierce had neither the right nor the opportunity to pursue his declaratory relief action (let alone seek to recover any fees) until Vickie withdrew her claim against him in the middle of the probate trial in 2001. See Hitchcock Prop. Inc. v. Levering, 776 S.W.2d 236, 239 (Tex. App. — Houston 1989, writ denied); Wyne v. Hybner, 2001 WL 1003298 at *4 (Tex. App. — Corpus Christi Aug. 31, 2001) (not designated for publication) (declaratory judgment action to determine plaintiff’s rights may not be pursued, and attorneys’ fees may not be recovered under declaratory judgment statute, where plaintiff is pursuing claim on same rights).

 

As the District Court properly determined, “it is not seriously asserted that Pierce’s declaratory judgment claim [or his right to attorneys’ fees] arose prior to Vickie’s discharge.” ER-9. More important, nowhere in her brief does Vickie even argue, let alone demonstrate, that Pierce had any grounds for recovering his attorneys’ fees prior to 2001, or any legal right to do so prior to that time. That is because Pierce’s right, together with all of the events giving rise to Vickie’s liability, did not occur until long after she obtained her discharge. Under the correct legal standard, these points are sufficient to resolve this appeal in Pierce’s favor, and Vickie’s contrary arguments that the fee award should be subsumed within her 1999 discharge are without merit.

 

At the outset, Vickie presents this appeal as involving the question “whether a bankruptcy court may interpret and enforce its own discharge order against a state court judgment that violates it.” Vickie’s Brief (“VB”) at 1. Vickie’s effort to characterize the appeal in this way, however, merely begs the threshold question whether the Probate Court’s fee award violates Vickie’s discharge in the first place. It is axiomatic that a bankruptcy court has authority to enforce its discharge order against a state court judgment that violates the debtor’s discharge. The question here, however, is whether any violation of Vickie’s discharge occurred. As summarized above, here there is no violation because a discharge in bankruptcy applies only to liabilities that arose before the debtor obtains a discharge and Vickie’s liability for the fee award arose after her discharge in this case.

 

In an effort to obscure the nature of the Probate Court’s fee award, Vickie cloaks her arguments in irrelevant and disputed factual assertions involving issues and claims that are not presently before the Court in this appeal.[1] As is pertinent here, the basis for the

Probate Court’s fee award is evident from the relevant record in the probate proceeding and, most critically, the text of the Probate Court’s judgment. Exercising its authority under the Texas Declaratory Judgments Act, the Probate Court clearly awarded Pierce his attorneys’ fees in the amount of $541,000 based on Vickie’s conduct during the probate trial. Specifically, the Probate Court explicitly based the fee award “solely and exclusively” on events that occurred during the trial, and found that the award did not “arise from any conduct that occurred on or before March 8, 1999” -- the date of Vickie’s discharge. ER 1052, 1057. Further, it is clear that the court made its award exclusively under the Texas Declaratory Judgments Act incident to Pierce’s request for declaratory relief because no other claim carried with it any right to attorneys’ fees in Pierce’s favor. Because Pierce had no right to his award until after Vickie obtained her discharge, and because all of the events giving rise to the award arose long after March 8, 1999, Vickie’s discharge simply does not apply to bar the award.

 

Vickie counters that the fee award violates her discharge on the theory that the award is “rooted” in pre-discharge facts and claims surrounding the death of J. Howard. VB at 20. It is true, of course, that some of the facts underlying the relationship between Pierce, Vickie, and J. Howard extend many years into the past. These facts, however, are not relevant to the award of attorneys’ fees because the award is not based on any of them. Rather, the award is based on Vickie’s post-discharge conduct in the Probate Court and arises in the context of Pierce’s 2001 declaratory judgment action.

 

As this Court has held, regardless of the longevity of the relationship between the parties or the existence of other disputes between them that pre-date the debtor’s discharge, each particular claim arises for discharge purposes “at the time of the events giving rise to the claim.” O’Loghlin v. County of Orange, 229 F.3d at 874. As the District Court determined in this case, “[o]nce Pierce filed his declaratory judgment action [in 2001], he had the authority to seek attorneys’ fees on that claim under Texas law. A claim for those fees therefore arose at that time.” ER-11 (emphasis added). As a matter of law, Pierce had no legal or factual right to his attorneys’ fees prior to 2001, and thus the fee award cannot violate Vickie’s 1999 discharge.

 

Rejecting this analysis, Vickie contends that the fee award should be subsumed within her 1999 discharge on the theory that the “source” of her liability is Pierce’s declaratory judgment action, and this action involves pre-discharge events. In support of this argument, Vickie relies on Kadjevich v. Kadjevich (In re Kadjevich), 220 F.3d 1016 (9th Cir. 2000) and In re Abercrombie, 139 F.3d 755 (9^th Cir. 1998). Vickie’s reliance on these cases, however, is misplaced. In both cases, the relevant fee awards arose pre-bankruptcy from causes of action that the plaintiffs were already asserting against the debtors well before the debtors filed for bankruptcy relief. Nothing in either decision even remotely suggests that a postdischarge fee award based on post-discharge conduct arising in the context of a post-discharge declaratory judgment action should be treated as pre-discharge in nature.

 

Specifically, in Abercrombie, the plaintiff asserted a breach of contract claim against the debtor, and likewise asserted a right to attorneys’ fees from a provision of the relevant contract. Similarly, in Kadjevich, the plaintiff asserted a right to attorneys’ fees arising from a pre-bankruptcy tort claim. In both cases, at the time the debtors’ filed for bankruptcy, their obligation to pay some amount of attorneys’ fees was already fixed and the only issue was the amount that the debtors would owe depending on the extent of the litigation. In addition, the fees were incurred exclusively as expenses of establishing the debtors’ liability for other pre-bankruptcy debts (i.e., the plaintiffs’ respective contract and tort claims).

 

This case is entirely different. First, at the time Vickie obtained her discharge in 1999, Pierce had no right to file a declaratory judgment action and no right to attorneys’ fees. Indeed, at the time Vickie obtained her discharge no one knew that he would ever have the right to file a declaratory judgment action against her. More important, no one knew that Vickie would engage in the inequitable and disruptive conduct that ultimately gave rise to her liability. Accordingly, when Vickie obtained her discharge, her future liability for Pierce’s attorneys’ fees was not properly a “debt” for bankruptcy discharge purposes because none of the events necessary for liability had yet occurred.

 

Second, the essential purpose of Pierce’s declaratory judgment action was not to establish a debt against Vickie. Rather, its essential purpose was to establish her rights in connection with J. Howard’s assets. Although the fee award itself is a debt that Vickie owes, it cannot be characterized as simply an expense of establishing some other pre-discharge liability. On the contrary, the fee award was occasioned exclusively by Vickie’s post-discharge conduct in the Probate Court in 2001, and Vickie cannot use her 1999 discharge to shield herself from the consequences of that conduct. See Siegal v. Federal Home Loan Morg. Corp., 143 F.3d 525, 533-34 (9th Cir. 1998).

 

Unable to demonstrate legitimately that the fee award is a predischarge debt, Vickie next contends that the Bankruptcy Court could simply rewrite the fee award to make it so. In this case, the Bankruptcy Court rewrote the factual basis for the award by concluding that Vickie did not engage in any disruptive or inequitable conduct during the probate trial sufficient to support the award, and that the award arose from facts other than those that the Probate Court identified. ER 1073-74. The District Court affirmed. ER 4. This was error. While a bankruptcy court may review a state court judgment to determine if that judgment violates a debtor’s discharge, the bankruptcy court is not free to reconstitute or reconsider the judgment’s underlying factual predicates. If a state court issues a judgment based on one set of factual events, the bankruptcy court is not free to conclude that the judgment is really based on some other set of factual events, or that the events on which the judgment is based are insufficient to sustain the judgment under state law. Review of the sufficiency of a state court judgment is a matter reserved for the state appellate courts under long-standing principles of federalism embodied in the Rooker-Feldman doctrine. See Doe & Assocs. Law Offices v. Napolitano, 252 F.3d 1026, 1030 (9th Cir. 2001) (noting that the purpose of the Rooker-Feldman doctrine is to protect state judgments from collateral attack by federal courts).

 

In support of her contention that the Bankruptcy Court had broad discretion to recharacterize the Probate Court’s award, Vickie cites In re Pavelich, 229 B.R. 777 (B.A.P. 9th Cir. 1999). Pavelich, however, does not support Vickie’s position, and her reliance on this decision is misplaced. Although a Bankruptcy Court may consider whether a particular debt is pre- or post-discharge in nature, the court may not rewrite the basis of the obligation in conducting its analysis. As the Probate Court determined, the basis for Vickie’s liability for the fee award is exclusively post-discharge events. Because the events giving rise to Vickie’s liability all occurred post-discharge, and because Pierce had no legal right to pursue his declaratory relief action until 2001, Vickie’s liability is properly post-discharge in nature.

 

Finally, Vickie cannot properly invoke the doctrine of judicial estoppel to support the Bankruptcy Court’s ruling in this case. A federal court simply does not have jurisdiction to overturn the ruling of another court on grounds of judicial estoppel - a legal point that Vickie does not contest. In addition, even if the doctrine could be used in this way, Pierce did not make any misrepresentations to the Bankruptcy Court regarding the fee award, and Vickie’s arguments to the contrary are without merit.

 

A.        Neither The Bankruptcy Court Nor The District Court Could

Ignore The Probate Court’s Factual Basis For The Fee Award

When Reviewing Whether That Award Violated Vickie’s Discharge.

 

Vickie’s arguments, as well as those of the Bankruptcy and District Courts, rest on a fundamental misunderstanding of the law of discharge and the relevant issues in this case. The issue here is not, as Vickie asserts, whether a bankruptcy court has the authority to interpret and enforce its own discharge order. It does. Nor is the issue whether a bankruptcy court may review a state court judgment in order to determine whether that judgment violates a discharge order. It may. The issue here is whether a bankruptcy court may ignore a state court’s stated basis for its judgment and then affirmatively reconsider and rewrite the factual foundation for that judgment. It may not.

 

While a bankruptcy court may review a state court judgment to determine if the judgment violates a discharge, that power is not a license to rewrite the basis for the judgment. Conversely, while a state court may issue a judgment giving rise to a particular debt, it does not have the power to modify the terms of a discharge order which may apply to that debt. Put another way, there is a clear jurisdictional boundary between the power of a bankruptcy court over its discharge order and the power of a state court over the creation of a particular debt. That boundary, of course, is marked not only by the Bankruptcy Code but also by the basic principles of federalism embodied in the Rooker-Feldman doctrine, which holds generally that the United States Supreme Court is the only federal court that may reverse and rewrite a state court judgment. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, 44 S. Ct. 149, 68 L. Ed. 362 (1923) (“Under the legislation of Congress, no court of the United States other than this Court could entertain a proceeding to reverse or modify [a state court] judgment for errors . . . To do so would be an exercise of appellate jurisdiction. The jurisdiction possessed by the District Courts is strictly original”); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476, 103 S. Ct. 1303, 75 L. Ed. 2d 206 (1983).

 

The policy behind this jurisdictional dichotomy is obvious. If a state court could issue binding judgments modifying a discharge order, “creditors would be free to rush into friendly courthouses around the nation to garner favorable relief.” In re McGhan, 288 F.3d 1172, 1180 (9th Cir. 2002) (internal quotations omitted). Similarly, if a federal court could freely revisit and rewrite the factual underpinnings of state court judgments, debtors would rush into federal court seeking to overturn any adverse state court judgments as soon as the verdict was rendered.

 

Of course, that is precisely what happened here. The Probate Court explicitly determined that the fee award was “solely and exclusively based upon evidence relating to the attorneys’ fees incurred during the trial which occurred in this cause between September 18, 2000 and February 18, 2001,” ER 1057, and did not “arise from any conduct that occurred on or before March 8, 1999.” ER 1052. Displeased with the Probate Court’s findings, Vickie turned to the Bankruptcy Court, claiming that the award violated her discharge. ER 497-501. As discussed more fully below, however, the Bankruptcy Court’s occasion to review the fee award embraced only the power to determine whether that award, as written, violated the discharge. Neither the Bankruptcy Court nor the District Court could ignore the Probate Court’s factual basis for the award in reviewing whether that award violated Vickie’s discharge.

 

1. The Bankruptcy And District Courts Could Not Act As State Appellate Courts And Rewrite The Factual Basis For The Fee Award.

 

The question of whether or not a particular debt is dischargeable comprises two distinct issues: “(1) whether the debtor owes a debt to the [creditor] and (2) whether the debt owed by the debtor to the [creditor] is dischargeable.” In re Mannie, 258 B.R. 440, 444-45 (Bankr. N.D. Cal. 2001). The first issue -- the existence and underpinnings of a particular debt – falls squarely within the jurisdiction of the state courts, and the Rooker-Feldman doctrine bars a federal court from reconsidering the state court’s determination as to the existence of, or basis for, that debt. See id. at 445. Furthermore, the state court may err in its judgment giving rise to a debt (either factually or legally), but any error in that regard can only be corrected through the state appellate review process. Id. at 445 n.4. See In re Audre, 216 B.R. 19, 32 (B.A.P. 9th Cir. 1997) (holding that Rooker-Feldman barred bankruptcy court from reversing or modifying state court judgment on tort claim against debtor, even if factual basis for judgment was in error).

 

For example, in In re Audre, a California family court found against the debtor in tort for $11.5 million. 216 B.R. at 22-23. The debtor then sought to have the bankruptcy court disallow the claim or estimate it at $0 pursuant to § 502(c) of the Bankruptcy Code. Id. The bankruptcy court refused to do so, holding that the Rooker-Feldman doctrine barred it from altering the state court judgment. Id. at 24. On appeal, the Bankruptcy Appellate Panel (“BAP”) affirmed the bankruptcy court’s holding and held further that the Rooker-Feldman doctrine would apply even if the state court’s judgment were in error. Id. at 29. The proper recourse to challenge any such error, the Appellate Panel concluded, was through the state appellate system. Id. Addressing an alternative argument, the court also held that even if § 502 were applicable, the state court had determined the value of the claim and Rooker-Feldman prevented the bankruptcy court from valuing it otherwise. Id.

 

Like the state court in Audre, the Probate Court here determined the value of the fee award and articulated the factual basis for that award in its judgment. If Vickie believed that the award was in error, her proper recourse was to appeal the decision through the Texas appellate system. The Bankruptcy and District Courts could not act as a Texas appellate court and rewrite the factual basis for the fee award that had already been determined by the Probate Court.

 

2. In Re Pavelich And Other Cases Cited by Vickie Are Inapposite To The Issue In This Appeal.

 

The second issue concerning a discharge -- whether a state court judgment giving rise to a debt violates a discharge – clearly falls within a bankruptcy court’s authority, and may also be considered by a state court when discharge is raised as a defense to a state cause of action. See In re McGhan, 288 F.3d at 1180 (9th Cir. 2002). Yet, just as a federal court may not modify or misconstrue the basis for a state court’s judgment, a state court is not free to misconstrue the applicability of the discharge order, or modify its scope or terms. In re McGhan, 288 F.3d at 1180-81. See also In re Gruntz, 202 F.3d 1074, 1082-83 (9th Cir. 2000) (Rooker-Feldman doctrine does not bind federal courts to state court modifications of automatic stay). If a state court were to do so, its judgment would be void, Rooker-Feldman would not apply, and a bankruptcy court would not be bound by the state court’s purported modification of the discharge. See In re McGhan, 288 F.3d at 1180-81 (holding that state court was without jurisdiction to ignore or modify bankruptcy court’s discharge injunction).

 

But that is not what happened here. The Probate Court never undertook to determine whether the fee award violated Vickie’s 1999 discharge or modified the terms of that discharge. All that the Probate Court did was to determine the factual basis for its own award – including its finding that the award was based exclusively on events that occurred after Vickie obtained her discharge. Under the Rooker-Feldman doctrine, that factual determination was not subject to review by the Bankruptcy Court or District Court.

 

Missing this point entirely, Vickie cites In re Pavelich, 229 B.R. 777 (B.A.P. 9th Cir. 1999) for the proposition that a bankruptcy court may not only review a state court judgment to see if it violates a discharge, but may also give “no weight” to a state court’s factual basis for that judgment. VB at 33-6. As explained above, however, that is not the law in this Circuit or elsewhere, and Vickie’s reliance on Pavelich is inapposite.

 

In Pavelich a law firm sued the Paveliches in state court to collect unpaid fees for services it rendered to the Paveliches both before and after the Paveliches received a bankruptcy discharge. 229 B.R. at 780. Of the total $16,402.45 in fees sought, about $3,925 related to services rendered after the discharge. Id. The Paveliches raised the defense of discharge but the state court entered judgment in favor of the law firm for $3,816.83, without explaining its reasoning. Id. The Paveliches then filed a motion in the bankruptcy court seeking sanctions against the law firm for bringing suit in violation of the discharge order. The bankruptcy court determined that the Rooker-Feldman doctrine prevented it from engaging in any review of the state court judgment or considering whether the law firm’s action in bringing the suit violated the discharge order. Id. at 780.

 

The BAP reversed, holding that the Rooker-Feldman doctrine did not strip the bankruptcy court of jurisdiction to consider whether the state court’s judgment violated the discharge injunction. Id. at 783. This holding, however, simply stands for the proposition that a bankruptcy court may review a state court judgment to determine whether that judgment violates a discharge. But nowhere in Pavelich (or in any other case Vickie cites) does the court hold that a federal court, while undertaking that review, may rewrite or recharacterize the underlying factual underpinnings of a state court judgment. No such authority exists because such a holding would be anathema to the foundational precepts of federalism and would encourage the forum shopping that Rooker-Feldman is designed to prevent.2

 

In this case, as noted, the Probate Court never made any determination as to the dischargeability of the fee award. In fact, the only action taken by the Probate Court was to establish the existence of the debt by awarding attorneys’ fees to Pierce. It strains the imagination to conclude that the Probate Court somehow “modified” or “dissolved” Vickie’s discharge order when it stated that it was awarding attorneys’ fees based on Vickie’s conduct during the trial “which occurred . . . between September 18, 2000 and February 18, 2001.” ER-1057 at ¶ 3.39. See McGhan, 288 F.3d at 1179 (state court lacks authority to modify or dissolve a discharge order or the § 524 discharge injunction). The question whether the fee award fell within the scope of the discharge order was then left to the Bankruptcy Court. But the Bankruptcy Court was not free to begin its analysis ex nihilo. There was a factual record established by the state court judgment, which could not be ignored or rewritten. The Probate Court’s findings clearly established that the fee award was based on postdischarge events. Neither the Bankruptcy Court nor the District

Court could alter that factual basis for the fee award.

 

B. The Fee Award Is A Post-Discharge Obligation Arising Out Of Vickie’s Post-Discharge Conduct And Post-Discharge Events.

 

Freeing herself and the courts below from the constraints of the Rooker-Feldman doctrine, Vickie devotes much of her brief to arguing that the fee award was “rooted in” and “necessarily flowed from” pre-discharge events and that none of her post-discharge

conduct supports the fee award. See VB at 24-32. This challenge to the factual underpinnings of the fee award only illustrates the point discussed above: neither the Bankruptcy Court nor the District Court could act as a Texas appellate court and rewrite the Probate Court’s factual foundation for the fee award. In addition, Vickie’s characterization of the award and the record is also in error.

 

1. The Fee Award is Not “Rooted” in Pre-Discharge Events.

Vickie concedes that the fee award “stems from” Pierce’s postdischarge declaratory relief action. VB at 24. That fact alone is sufficient to resolve this appeal in Pierce’s favor: if the fee award derives from Pierce’s post-discharge declaratory relief action, then Pierce’s right to payment of that award necessarily arose after Vickie’s discharge because Pierce had no right to pursue his declaratory relief action until after Vickie attempted to withdraw from the probate proceeding in the middle of trial in 2001. Similarly, a second (and more important) fact is also sufficient to resolve this appeal against Vickie: that Vickie’s conduct giving rise to her liability for the fee award occurred entirely after her discharge.

 

Under the Texas Declaratory Judgment Act, a defendant may not pursue a declaratory relief action (and a fortiori may not seek an award of attorneys’ fees) to determine rights or interests that are already the subject of a pending action brought by the plaintiff. See Hitchcock Prop. Inc. v. Levering, 776 S.W.2d 236, 239 (Tex. App.— Houston 1989, writ denied).

 

Until 2001, Vickie maintained her own claims in the Probate Court as to her rights and interests in connection with J. Howard’s assets. Indeed, it was Vickie who commenced the probate proceedings in the first place precisely for this purpose. ER 60. In the middle of the jury trial, Vickie sought to “nonsuit” her claims and withdraw from the proceeding, while at the same time maintaining her right to reassert her claims at a later date, creating an impossible situation for the probate judge. ER 1047. See also PB at 12-13. When Vickie was unable to withdraw entirely, she sought to enjoin the probate trial by obtaining injunctive relief in federal court. ER 497-501. Thereafter, her conduct at

trial was otherwise so disruptive and outrageous that it prompted the probate judge to admonish her to “stop lying.” ER 482.

 

Under Texas law, it was only after Vickie “nonsuited” her claims in the Probate Court in 2001 that Pierce was able to file his declaratory judgment action. Similarly, it was only after Vickie engaged in the conduct recited above that Pierce became entitled to an award of attorneys’ fees. Because all of this occurred long after Vickie obtained her discharge, the fee award on which it is based does not constitute a dischargeable debt.

 

Ignoring her own conduct, Vickie attempts to divorce the fee award from Pierce’s post-discharge declaratory relief action by tying the action to irrelevant pre-discharge events. VB at 24-25. In support of her effort, Vickie relies on the District Court’s conclusion that “[e]ven though Pierce incurred the costs of the declaratory judgment action after Vickie obtained her discharge, the underlying events that gave rise to the cause of action (J. Howard’s death) occurred pre-discharge.” ER-11. See VB at 24.

 

The trouble with Vickie’s argument, however, is that her liability for the fee award (a) simply did not exist before 2001, (b) cannot be divorced from her post-discharge conduct, and (c) has nothing to do with the events surrounding J. Howard’s death. In addition, the District Court’s analysis on which her argument rests is inconsistent with the court’s other correct finding that Pierce’s claim for attorneys’ fees arose in 2001. As the District Court stated, “[o]nce Pierce filed his declaratory judgment action, he had the authority to seek attorneys’ fees on that claim under Texas law. A claim for those fees therefore arose at that time.” ER at 11 (emphasis added). Ultimately, the District Court ignored the import of its own finding, and its ultimate conclusion, together with Vickie’s arguments, are contrary to this Court’s holding and analysis in O’Loghlin.

 

In this Circuit, a claim arises for discharge purposes “at the time of the events giving rise to the claim.” O’Loghlin v. County of Orange, 229 F.3d 871, 874 (9th Cir. 2000); see also In re Parker, 313 F.3d 1267, 1269 (10th Cir. 2002). Here, the relevant (and only) “claim” that Pierce holds against Vickie is Pierce’s right to payment of the fee award. Moreover, the events giving rise to the fee award are (a) Pierce’s post-discharge declaratory judgment action, (b) Vickie’s post-discharge conduct, (c) Pierce’s post-discharge incurrence of his fees, and (d) the Probate Court’s post-discharge award of the fees under a post-discharge claim of entitlement.

 

In O’Loghlin, this Court rejected the argument that a postdischarge liability must be considered pre-discharge in nature because the parties have a longstanding relationship and a history of similar claims between them. In O’Loughlin, the Court recognized that the relationship between the plaintiff and defendant, as well as most of the facts surrounding the defendant’s discrimination against the plaintiff, stretched far back into the defendant’s pre-discharge past. O’Loghlin 229 F.3d at 874-75. Nevertheless, the Court determined that the plaintiff’s claim for post-discharge misconduct was not subject to the defendant’s discharge because the discharge did not extend to shelter the defendant from liability based on post-discharge events. See id. A hypothetical further illustrates this point: suppose that, in a proceeding before a trial court, a litigant engaged in misconduct for which the court imposed a monetary sanction. Suppose further that, one week after the trial court imposed the sanction, the litigant obtained a discharge in bankruptcy relieving her from all liability for that sanction. In addition, suppose that, after obtaining the discharge, the litigant engaged in further misconduct during the course of the same proceeding. Under the District Court’s holding (and Vickie’s argument), the trial court would be powerless to impose a second sanction for the litigant’s post-discharge misconduct because the misconduct occurred during the course of litigation that began before she obtained her discharge. As this Court has held, such reasoning is not the law precisely because it would convert the shield of a discharge into a sword, effectively granting the debtor a license to be free from future liabilities. See id. Under O’Loghlin, Vickie cannot divorce the fee award from her own post-discharge conduct on which it is based in order to marry the award to events of her pre-discharge past.

 

2. Vickie’s Post-Discharge Conduct During the Probate Trial Supports the Fee Award.

 

In an effort to both distinguish O’Loughlin and undermine the Probate Court’s factual basis for its fee award, Vickie argues that she “exhibited no sanctionable, tortious behavior at trial that would constitute the type of independent conduct to which the O’Loghlin principle might apply.” VB at 30. Of course, as explained above, that factual determination was for the Probate Court alone to decide. Moreover, Vickie’s interpretation of events is contradicted by the record.

 

It must be emphasized that Vickie herself commenced the probate proceeding. ER 60. Subsequently, after years of litigation, Vickie announced the non-suit of her claims in the middle of the Probate Court’s five-month jury trial. ER 1047. At the same time, Vickie attempted to reserve for herself the right to come back to the Probate Court to reassert all her claims if matters did not work out in federal court, creating an unworkable situation for the court. See PB at 12-13.

 

The Probate Court was also confronted with other conduct by Vickie that seriously disrupted and delayed the probate proceeding. Among other things, that conduct included Vickie’s repeated refusals to answer truthfully the questions put to her on the witness stand -- conduct that occurred so frequently that the exasperated Probate Court finally had to explain to Vickie that “the qualified privilege to testify does not allow you to make-up stories, and most of -- a lot of your testimony in the last day or so has been made-up stories.” ER-483. See id. at 482 (stating that Vickie “is going to answer the questions that are asked only, and she is going to stop lying.”). Indeed, far from one “single incident,” as Vickie claims (VB at 30 n.13), Vickie’s disruptive conduct and unfounded accusations permeate the probate trial record and led to repeated admonitions from the Probate Court. See e.g., ER-483 (instructing Vickie that “you are not entitled to just say anything that comes out of your mouth. You are going to have to listen carefully to the questions and just answer the questions.”); ER-485 (explaining to Vickie’s counsel that “[s]he can’t continue to act out and act improperly so that she can get to go home and not come back.”); ER-493 (directing Vickie’s counsel to “tell her that she should not say anything about Pierce killing his father” and to “try to convince her that this is not an opportunity for her to say whatever pops into her head. A lot of the testimony has not

been responsive to the questions.”).

 

As the foregoing demonstrates, Vickie’s argument that she engaged in no post-discharge conduct sufficient to establish a basis for the fee award is both irrelevant and without merit.

 

3. Vickie’s Reliance On Abercrombie And Kadjevich Is Misplaced.

 

Vickie relies on Kadjevich v. Kadjevich (In re Kadjevich), 220 F.3d 1016 (9th Cir. 2000) and Abercrombie v. Hayden Corp. (In re Abercrombie), 139 F.3d 755 (9th Cir. 1998) to bolster her contention that the fee award derives from pre-discharge events. Under her interpretation of these decisions, a fee award is subject to discharge if the underlying action to which the award relates derives from pre-discharge events and, therefore, is also subject to discharge. VB at 25. Vickie’s broad interpretation, however, is not the holding of these decisions. As explained in Pierce’s Opening Brief, both decisions conclude only that pre-bankruptcy rights to recover attorneys’ fees arising out of pre-bankruptcy contract and tort actions do not qualify as administrative expenses. PB at 34-36. In this instance, Pierce’s right to his attorneys’ fees is not pre-discharge in nature because it did not exist before 2001. Similarly, his declaratory judgment action is also not pre-discharge in nature because he had no right to pursue it until 2001. Accordingly, Vickie’s reliance on Kadjevich and Abercrombie is misplaced.

 

Vickie’s analysis is also inconsistent with the fact that the Bankruptcy Court never enjoined Pierce from pursuing his declaratory judgment action in the first place. As the District Court determined in reversing the Bankruptcy Court’s injunctions against proceedings in the Probate Court, “[w]hile the bankruptcy court did not specifically state whether it was ruling that Pierce could proceed with all the declaratory relief sought in his probate court counterclaims against Vickie, that appears to be the logical import of its ruling, and this Court agrees.” ER-983.

 

Further, Vickie’s argument is inconsistent with the fact that, following the District Court’s reversal and remand of the Bankruptcy Court’s injunctions, the Bankruptcy Court specifically did not determine that Pierce’s pursuit of his declaratory judgment action violated Vickie’s discharge. Nor could the court have done so. A discharge in bankruptcy applies only against debts that the debtor owes before the debtor obtains the discharge. It does not prevent a determination of the debtor’s rights and interests in a probate proceeding. If it did, this would lead to the absurd result that a debtor who obtains a discharge could never be adjudicated to have rights in or against another person or property of a probate estate. Because Vickie’s discharge did not bar Pierce’s declaratory judgment action to determine her rights and interests, it follows that the fee award that “stems from” Pierce’s post-discharge declaratory relief action is also not barred.

 

C. There Is No Factual Or Legal Basis For The Application Of Judicial Estoppel In This Case.

 

In addition to rewriting the Probate Court’s stated basis for the fee award, the Bankruptcy Court also held that it could review and overturn the award under the doctrine of judicial estoppel. ER-1075-76. The Bankruptcy Court, however, cited no authority for the novel proposition that a federal court may do so. Id. Indeed, no such authority exists. See PB at 44. As Pierce explained in his Opening Brief, judicial estoppel is not a doctrine that allows federal courts to void state court orders. PB at 43-44. Rather, the doctrine is merely an equitable defense that applies to prevent a party who successfully obtains relief in one proceeding from obtaining relief in a second proceeding on the basis of a contradictory position. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001).

 

Significantly, the District Court declined to address, and did not affirm, the Bankruptcy Court’s holding on this point. Nevertheless, Vickie now insists that this Court adopt the Bankruptcy’s Court’s erroneous analysis.

 

At the outset, Vickie supplies no authority to support the Bankruptcy Court’s application of the doctrine of judicial estoppel to void the fee award. Instead of relevant legal argument, she simply resorts to mischaracterization of the record and ad hominum attacks in an attempt to justify the Bankruptcy Court’s holding. For example, without support, she labels Pierce’s conduct as “the essence of manipulation” (VB at 38) and accuses Pierce of deliberately “misleading the bankruptcy court” (VB at 39) and “playing fast and loose with the courts” (VB at 41). Vickie all but calls Pierce a liar, claiming that he knew “his statements would mislead the bankruptcy court” and that his statements to the court were “false.” VB at 41-2.

 

Respectfully, such unsupported accusations have no place in this, or any proceeding. Indeed, in a related appeal, this Court previously cautioned the parties to “refrain from derogatory remarks about the opposing counsel or party.” See Docket No. 02-56002, 02-56067, Order Denying Vickie’s Motion to Strike Pierce’s Motion for Summary Reversal filed October 18, 2002 at 2.

 

Unfortunately, Vickie seems unable to abide by this directive. More important, Vickie’s unfounded accusations and mischaracterizations of the record cannot change the fact that Pierce never took contradictory positions before the Bankruptcy and Probate Courts. Indeed, he could not have done so, as the question of the recovery of his attorneys’ fees never arose. As explained in Pierce’s Opening Brief, Pierce complied with the Bankruptcy Court’s orders. See PB at 46-47. Indeed, the Bankruptcy Court itself determined that Pierce had so complied. ER-967-71.

 

CONCLUSION

 

For the foregoing reasons, together with those set forth in Pierce’s opening brief, Pierce respectfully requests that this Court reverse the District Court’s Order Affirming the Bankruptcy Court’s First Amended Opinion on Application of Discharge, and remand this matter to the District Court with a direction that it vacate, in its entirety, the Bankruptcy Court’s First Amended Opinion on Application of Discharge.