Maloney v. Converse

Opinion

USCA1 Opinion

October 11, 1996        [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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No. 96-1151



                            MARTIN JAMES MALONEY, DEBTOR,



                                      Appellant,



                                          v.



                 SARA CONVERSE, f/k/a SARA MALONEY AND GERARD KELLEY,



                                      Appellees.


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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                              FOR THE DISTRICT OF MAINE



                     [Hon. D. Brock Hornby, U.S. District Judge]
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                                 ____________________



                                        Before



                                Torruella, Chief Judge,
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                          Boudin and Lynch, Circuit Judges.
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                                 ____________________



            Martin J. Maloney on brief pro se.
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            Richard S.  Emerson, Jr. and  Childs, Emerson, Rundlett, Fifield &
            ________________________      ____________________________________

        Childs on brief for appellee Sara Converse.
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Per Curiam.  Pro se debtor  Martin James Maloney appeals
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            a  district  court order  that  affirmed  a bankruptcy  court



            decision which  held that  a $400,000 civil  judgment against



            Maloney was  not dischargeable under 11  U.S.C.   523(a)(6).1
                                                                        1



            We affirm.



                 The  record discloses that after a  bench trial, a Maine



            superior court  awarded the  foregoing judgment  to Maloney's



            ex-wife,  appellee  Sara  Converse,  in a  civil  action  for



            assault and intentional infliction of emotional distress. The



            bankruptcy  court concluded  that  the Maine  superior  court



            decision underlying the civil judgment  collaterally estopped



            Maloney from relitigating whether  his conduct in  assaulting



            appellee after murdering her  male companion was "willful and



            malicious" within the meaning of    523(a)(6).2  The superior
                                                          2



            court issued a four page decision which detailed its findings



            of fact and  conclusions of  law, which we  will not  recount



            here.  For  our purposes it  is sufficient  to note that  the



            superior  court specifically found that Maloney had committed



            a  "vicious  assault"  that was  "unmistakably  calculated to



            cause  great anguish" to appellee and that Maloney had spared


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               111 U.S.C.     523(a)(6) bars  a debtor  from obtaining  a
               1

            discharge of any  debt "for willful  and malicious injury  by

            the  debtor to another entity  or to the  property of another

            entity."



               2Maloney  is  presently  serving a  30-year  sentence  for
               2

            murder  and aggravated assault as a result of the events that

            gave rise to the civil tort judgment.



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appellee's  life in order to witness her anguish at the death



            of her companion.3
                             3



                 Under both  Maine and federal  law, collateral  estoppel



            will bar a litigant from relitigating an issue if, in a prior



            proceeding,  the  issue  was:  (1)  actually  litigated,  (2)



            determined  by   a  valid,   final  judgment,  and   (3)  the



            determination is essential  to the judgment.   See Grogan  v.
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            Garner,  498  U.S.  279,  284  (1991);  Lundborg  v.  Phoenix
            ______                                  ________      _______



            Leasing, Inc., 91 F.3d  265, 271 (1st Cir. 1996);  Sevigny v.
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            Home  Builders  Assoc. of  Maine, 429  A.2d 197,  201-02 (Me.
            ________________________________



            1981).4   We  have no  trouble  concluding that  the superior
                  4



            court's  findings  established  that  Maloney's  conduct  was



            deliberate, intentional, and  therefore "willful" within  the



            meaning  of     523(a)(6).   See  3  Collier  on  Bankruptcy,
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             523.16[1], at 523-12 (citing H. R. Rep. No. 595, 95th Cong.,



            1st Sess. 363  (1977); S. Rep. No.  989, 95th Cong.  2d Sess.



            77-79 (1978)).   These  findings also establish  that Maloney



                                
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               3In  addition, the  superior court  concluded that  "there
               3

            could  not be  a clearer  case of  intentional infliction  of

            emotional distress."   



               4We recognize that authority indicates that,  "[w]here the
               4

            issue previously  litigated was litigated under  state law, a

            bankruptcy court will apply the law of collateral estoppel of

            the relevant state."   See 3 Roy  Babitt, et al., Collier  on
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            Bankruptcy,  523.05D, at 523-20  (Lawrence King ed., 15th ed.
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            1996)(collecting  cases); In  re McNallen,  62 F.3d  619, 624
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            (4th Cir. 1995).  But see Wood v. Dealers Financial Services,
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            ___ B.R. ___, No.  95-40447, 1996 WESTLAW 434430  (E.D. Mich.

            July 31,  1996)(stating contrary view). As  the principles of

            collateral  estoppel are the same under Maine law and federal

            law, we need not decide which controls. 



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harbored a specific intent  to injure appellee, therefore his



            conduct was "malicious" under  either the implied malice test



            that this court has applied in the past, see In re Nance, 556
                                                     ___ ___________



            F.2d  602, 611  (1st Cir.  1977), or  the specific  and other



            malice  tests more  recently  employed by  other courts,  see
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            Piccuto  v.  Dwyer,  39  F.3d  37,  41   &  n.  3  (1st  Cir.
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            1994)(collecting cases).   As  the superior  court's decision



            established  that   Maloney's   conduct  was   "willful   and



            malicious"  within the  meaning  of  523(a)(6)  and that  the



            other  prerequisites for  applying  collateral  estoppel  are



            present, the  bankruptcy court properly held  that Maloney is



            barred from relitigating these issues now.



                 On  appeal, Maloney  argues  that  the bankruptcy  court



            erred by applying collateral estoppel without first reviewing



            the  transcript of  his state  trial.   He contends  that the



            transcript  would show  that  the issues  of willfulness  and



            maliciousness were  not fully  and fairly litigated  in state



            court  because  his defense  attorney  failed  to present  an



            adequate defense.5  As Maloney did not assert this particular
                             5



            objection  in the bankruptcy court, it is not properly before



            us.  See In re Menna, 16  F.3d 7, 9 n.2 (1st Cir. 1994). Even
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            if it were, Maloney would not  prevail, for it was his burden


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               5Maloney specifically complains  that his attorney  waived
               5

            his right to trial  by jury without his knowledge  or consent

            and  failed  to  present  evidence, which  Maloney  does  not

            describe.     



                                         -4-



to produce  the transcript as the  party resisting collateral



            estoppel. See Van Houten v. Harco Const., Inc., 655 A.2d 331,
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            333-34 (Me. 1995); Hossler  v. Barry, 403 A.2d 762,  769 (Me.
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            1979)(party  resisting  collateral  estoppel  has  burden  of



            proving  prejudice).    As   Maloney  failed  to  submit  the



            transcript  (indeed,  the record  suggests  that  he did  not



            attempt to secure  it until after  judgment was entered),  he



            failed to meet his  burden of proof, and the entry of summary



            judgment for appellee was proper. See In re Menna, 16 F.3d at
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            9  ("'[a]s to any essential  factual element of  its claim on



            which  the nonmovant would bear the burden of proof at trial,



            its  failure  to come  forward  with  sufficient evidence  to



            generate a trialworthy issue warrants summary judgment to the



            moving party'"(citations omitted)).6    Maloney  also  claims
                                               6


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               6We note that in the context of cases in which the precise
               6

            grounds of a  prior state court  judgment were unclear,  some

            circuits have required bankruptcy courts to review the entire

            record  of   the  state  trial  before   applying  collateral

            estoppel. See, e.g.,  Wheeler v. Laudani,  783 F.2d 610,  615
                      ___  ____   _______    _______

            (6th  Cir. 1986); Spilman v.  Harley, 656 F.2d  224, 228 (6th
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            Cir. 1981);  Matter of Ross, 602 F.2d 604, 605-08 & n. 10 (3d
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            Cir. 1979).  We  do not think that such  review is invariably

            required where, as here, the portion of the  record submitted

            by the appellee  makes out  a prima facie  case for  applying

            collateral estoppel.  Cf. Combs v. Richardson,  838 F.2d 112,
                                  ___ _____    __________

            113-17 (4th Cir. 1988)(applying collateral estoppel based  on

            review of  jury instructions and verdict).   Moreover, review

            of the transcript was not necessary because even if Maloney's

            assertion that  defense counsel was inadequate  is true, "the

            general  rule  is  that  'ignorance  or  carelessness  of  an

            attorney'  does  not  provide a  basis  for  relief from  the

            effects  of an adverse civil judgment." In re Braen, 900 F.2d
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            621, 629 (3d Cir. 1990) (citation omitted), cert. denied, 498
                                                        _____ ______

            U.S. 1066 (1991).   



                                         -5-



that  the bankruptcy court denied him the right to submit the



            transcript by issuing its  ruling before the 60-day discovery



            period that had been  set by a pretrial scheduling  order had



            expired.  The  point is meritless,  for the record  discloses



            that  the  discovery  period  expired on  the  day  that  the



            bankruptcy court  issued its  decision. Moreover,  this claim



            has also been  waived, for  Maloney did not  protest that  he



            required  further  time  to  complete  discovery  during  the



            hearing on appellee's motion for summary judgment.  See In re
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            Cress, 106 B.R. 246,  248 (D. Kan. 1989), aff'd,  930 F.2d 32
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            (10th Cir. 1991)(TABLE)(debtors' failure to  seek continuance



            of summary judgment proceedings  until further discovery  was



            completed  barred debtors  from complaining  about incomplete



            discovery  on appeal).   As  both of  Maloney's arguments  on



            appeal  are  meritless  and  the  application  of  collateral



            estoppel  otherwise  appears  proper,  the  judgment  of  the



            district court is affirmed.
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