Jalbert v. Mulligan (In re Mulligan)

560 B.R. 22
CourtUnited States Bankruptcy Court, D. Connecticut
DecidedSeptember 29, 2016
DocketCase No.: 10-50037 (AMN); Adv. Proc.: 10-5023 (AMN
StatusPublished
Cited by1 cases

This text of 560 B.R. 22 (Jalbert v. Mulligan (In re Mulligan)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, D. Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jalbert v. Mulligan (In re Mulligan), 560 B.R. 22 (Conn. 2016).

Opinion

MEMORANDUM OF DECISION AND ORDER ON MOTION FOR SUMMARY JUDGMENT

Ann M. Nivens, United States Bankruptcy Judge District of Connecticut

I. INTRODUCTION

The issue before the court is whether a June 11, 2013 decision entered in the Connecticut Superior Court (the “State Court”) between the parties to this adversary proceeding should have preclusive effect over the claims pending here based on the doctrine of collateral estoppel. If it does, this court must find that some or all of plaintiffs’ claims against the defendant in this adversary proceeding are nondis-chargeable under the Bankruptcy Code.

The State Court found that Lawrence R. Mulligan (“Mulligan”), one of the debtors in the main bankruptcy case, Docket No. 10-50037 (the “Main Case”), and the defendant in this adversary proceeding, was liable to the plaintiffs, Bruce K. Jal-bert and Pamela D. Jalbert, for conversion, statutory theft, a violation of the Connecticut Unfair Trade Practices Act (“CUTPA”), and larceny by false pretenses. However, the State Court also found that Mulligan was not liable to the plaintiffs for fraud.

Following a number of memoranda and hearings, the parties agreed that the key issue before this court is whether in reaching its decision, the State Court determined that Mulligan had the requisite intent to commit defalcation under 11 U.S.C. § 523(a)(4).1 If so, then Mulligan’s debt to the plaintiffs resulting from the State Court action should be deemed nondis-chargeable.

In addition, the plaintiffs claimed that the debt should be nondischargeable pursuant to 11 U.S.C. § 523(a)(2)(A), although neither party discussed this claim extensively, and both parties briefed the question of the applicability of 11 U.S.C. § 523(a)(2)(6), even though the plaintiffs did not raise it as a claim in their complaint or motion for judgment.

The parties further agreed that the standards for a motion for summary judgment should guide the court’s determina[28]*28tion. AP-ECF No. 86,2 Transcript of 1/13/15 hearing.

II. JURISDICTION, VENUE, AND STANDING

This court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1334(b) and 157(b), and the District Court’s Order of referral of bankruptcy matters, dated September 21, 1984. This adversary proceeding is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(J) (objections to discharge). This adversary proceeding arises under the chapter 7 Main Case pending in this District; therefore, venue is proper in this District pursuant to 28 U.S.C. § 1409. The plaintiffs have standing to seek the relief sought in the complaint because, as creditors in the Main Case, they may object to the granting of a discharge pursuant to 11 U.S.C. § 727(c)(1).

III. PROCEDURAL BACKGROUND

Mulligan and his spouse, Renee T. Mulligan, filed a petition under chapter 7 of the United States Bankruptcy Code on January 8, 2010 (the “Petition Date”). In. their schedule of liabilities, they listed an unsecured, disputed debt to the plaintiffs in the amount of $150,000 incurred in 2008 with the consideration listed as “Judgment.” On March 29, 2010, the plaintiffs filed the complaint in the present adversary proceeding. The complaint, styled as a “complaint objecting to, dischargeability of debt,” sought a judgment finding Mulligan liable for conversion (Count I), statutory theft (Count II), violation of CUTPA (Count III), fraud (Count IV), and false pretenses (Count V). AP-ECF No. 1. The plaintiffs alleged that by committing the actions alleged in each of the first four counts, Mulligan had “defrauded the [plaintiffs] by way of fraud or defalcation while acting in a fiduciary capacity contrary to 11 U.S.C. § 523(a)(4).” The plaintiffs further alleged that by obtaining money by false pretenses and/or actual fraud as alleged in Count V, Mulligan had acted “contrary to 11 U.S.C. § 523(a)(2)(A) and therefore the debts owed by [Mulligan] to the plaintiffs should be deemed nondis-chargeable.”3 The plaintiffs requested both that the court enter judgment for money damages, punitive damages, interest, treble damages, attorney’s fees, and costs of the suit, and that it determine that judgment to be nondischargeable.

In a June 15, 2010 hearing, United States Bankruptcy Judge Alan H. W. Shiff (now retired) determined that the liability questions would be better answered in state court. AP-ECF No. 67, Exh A. During the hearing, the' parties discussed a state court action, Jalbert v. Mulligan, Superior Court, judicial district of Waterbury, Docket No. CV-08-6001044-S (the “State Court Action”), that had been pending on the Petition Date. AP-ECF No. 67, Exh A. The court asked whether the action had the same core as the adversary proceeding. AP-ECF No. 67, Exh A. Mullí-[29]*29gan’s attorney stated that the state court action was broader than the adversary proceeding. AP-ECF No. 67, Exh A. The judge instructed the parties to “find out if there’s any liability” in state court where the matter had already been pending. AP-ECF No. 67, Exh. A p. 10. Judge Shiff further stated the parties should “fight it out or settle it, or dp whatever you’re going to do in the state court where it is already in progress. ... [I]f there’s a finding of common law fraud that — and there’s an amount of a debt, I should think you’d all say then that debt should be not discharged. If there’s fraud, the debt should not be discharged. Conversely, the opposite result.”4 AP-ECF No. 67, Exhibit A p. 11. The plaintiffs’ attorney then asked whether the court would be entering an order for relief from stay. Judge Shiff stated he had ruled on' the bench and confirmed that the parties consented to relief from stay; the plaintiffs’ attorney stated, “[w]e stipulate, Your Honor.” AP-ECF No. 67, Exhibit A p. 12. The judge then ordered, “you go ahead and continue what you’ve started in the state court.” AP-ECF No. 67, Exhibit A p. 12. The .court entered a docket entry, stating the parties stipulated to relief from the automatic stay on June 15, 2010, and the parties filed a stipulated notice of relief from stay in the State Court Action on August' 9, 2010.5 See AP-ECF No. 62, Exhibit C.

After the State Court had entered judgment in the plaintiffs’ favor in the State Court Action, they moved for judgment in this adversary proceeding. AP-ECF No. 53.

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Bluebook (online)
560 B.R. 22, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jalbert-v-mulligan-in-re-mulligan-ctb-2016.