Taylor v. Jasper

1All statutory and rule references are to the Bankruptcy
Code as it existed before the effective date of the Bankruptcy
Abuse Prevention and Consumer Protection Act of 2005.
2Federal Rule of Bankruptcy Procedure 7056 adopts Federal
Rule of Civil Procedure 56.
UNITED STATES BANKRUPTCY COURT
FOR THE DISTRICT OF NEW MEXICO
In re:
JEFFREY L. JASPER,
Debtor. 	No. 7-05-14282 SA
HENRY W. TAYLOR III,
Plaintiff,
v. 	Adv. No. 05-1192 S
JEFFREY LANE JASPER,
Defendant.
MEMORANDUM OPINION ON PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Plaintiff’s Motion for
Summary Judgment (doc 11), Defendant’s Response (doc 15) and
Plaintiff’s Reply (doc 16). 	Plaintiff appears through his
attorney Jacobvitz, Thuma & Walker (Stephanie L. Schaeffer).
Defendant appears through his attorney the Law Office of Gerald
R. Velarde. 	This is a core proceeding. 	28 U.S.C. §
157(b)(2)(I) 1.
Federal Rule of Civil Procedure 56(c) 2 provides, in
part, “The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
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the moving party is entitled to a judgment as a matter of law.”
In determining the facts for summary judgment purposes, the Court
may rely on affidavits made with personal knowledge that set
forth specific facts otherwise admissible in evidence and sworn
or certified copies of papers attached to the affidavits.
Fed.R.Civ.P. 56(e). 	The court does not try the case on
competing affidavits or depositions; the court's function is only
to determine if there is a genuine issue for trial. 	Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). 	Finally, the
Court examines the factual record and reasonable inferences
therefrom in the light of the nonmovant. 	Thomas v. International
Business Machines, 48 F.3d 478, 484 (10 th Cir. 1995); Cole v.
Ruidoso Municipal Schools, 43 F.3d 1373, 1377 (10 th Cir. 1994).
New Mexico Local Bankruptcy Rule 7056-1 governs summary
judgment practice in this district. 	That rule provides, in part:
A memorandum in opposition to the motion shall contain
a concise statement of the material facts as to which
the party contents a genuine issue does exist. 	Each
fact in dispute shall be numbered, shall refer with
particularity to those portions of the record upon
which the opposing party relies, and shall state the
number of the movant’s fact that is disputed. 	All
material facts set forth in the statement of the movant
shall be deemed admitted unless specifically
controverted.
Plaintiff’s Motion contains 11 material facts which he
claims are undisputed. 	Defendant’s Response to the motion
disputes facts 2, 3, 4 and 11 by stating that a genuine issue
exists as to those facts. 	The Response, however, does not refer
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3Tex. Penal Code Ann. § 22.02 (1992), Aggravated Assault,
provides, in part:
(a) A person commits an offense if the person commits assault as
defined in Section 22.01 of this code and the person:
(1) causes serious bodily injury to another, including the
persons’s spouse; ...
Tex. Penal Code Ann. § 22.01 (1992), Assault, provides, in part:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily
(continued...)
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with particularity to any portions of the record upon which
Defendant relies. 	When a motion for summary judgment is made and
supported by affidavits or other evidence, an adverse party may
not rest upon mere allegations or denials. 	Fed.R.Civ.P. 56(e).
Therefore, the Court will take all 11 facts stated by Plaintiff
as undisputed. 	The remaining issue for the Court is to determine
if, based on those facts, Plaintiff is entitled to judgment as a
matter of law.
UNDISPUTED FACTS
1. 	On May 25, 2005, Jeffrey Lane Jasper (“Debtor”) commenced the
above-captioned voluntary bankruptcy case under Chapter 7. 	Under
Bankruptcy Code § 301, commencement of the bankruptcy case
constituted an order for relief under Chapter 7. 	Michael Caplan
was appointed Chapter 7 trustee and continues to serve in that
capacity. 	The bankruptcy case is pending and has not been
dismissed.
2. 	On November 15, 1992, Defendant committed an aggravated
assault 3 on Plaintiff. 4
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3(...continued)
injury to another, including the person’s spouse; ...
Under Texas law, intent to cause serious bodily injury is an
element of aggravated battery. 	See Smith v. State, 881 S.W.2d
727, 734 (Tex. Ct. App. 1994); Coit v. State, 629 S.W.2d 263,265
(Tex. Ct. App. 1982).
4As noted above, Defendant claims this fact is disputed.
However, the Texas Civil Judgment Finding ¶ 1 states: “1. That on
November 15, 1992, Defendant, Jeffrey Lane Jasper, committed an
assault on Plaintiff Henry W. Taylor, III.” 	And, the Texas
Criminal Judgment states: “We, the jury, find beyond a reasonable
doubt that the defendant, JEFFERY LANE JASPER, is guilty of the
offense of AGGRAVATED ASSAULT BY CAUSING SERIOUS BODILY INJURY as
alleged in the indictment. ... IT IS, THEREFORE, CONSIDERED,
ORDERED, ADJUDGED AND DECREED that the said defendant is guilty
of the offense of AGGRAVATED ASSAULT and that the said defendant
committed the said offense on the 15 TH DAY OF NOVEMBER, 1992...”
5As noted above, Defendant claims this fact is disputed.
However, the Texas Civil Judgment Findings ¶ 2 and 3 state: “2.
That Plaintiff, Henry W. Taylor, III, was injured as a result of
the assault by Defendant; 3. 	That the assault committed by
Defendant on Plaintiff was willful and malicious, and was
actuated by malice.” 	And, Defendant was convicted of Aggravated
Assault, an element of which is intent to cause serious bodily
injury.
6As noted above, Defendant claims this fact is disputed.
However, the trial transcript of the default hearing, page 7,
states in part:
Q. 	And could you please briefly tell the Court what you’ve
gone through as a result of the injuries you received from
Mr. Jasper.
A. 	To start with I had a broken arm, with a cast, of
course. 	The index finger – middle finger on my right hand
was bitten off and was extremely painful. 	It was sewn back
on at the hospital, or part of it was.
The broken arm didn’t heal, I had to have an operation
(continued...)
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3. 	Debtor intentionally caused injury to Taylor. 5
4. 	The Debtor broke Taylor’s left arm and severed the tip of
Taylor’s right middle finger when Debtor bit Taylor’s finger. 6
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6(...continued)
later on. 	I have a steel plate in my left arm.
Page -5-
5. 	Taylor suffered damages as a result of the assault in the
following amounts:
a. 	$9,384.37 as reasonable and necessary medical expenses;
b. 	$117,308.00 as lost wages, lost retirement benefits,
and cost of living adjustments;
c. 	$75,000 for past and future pain and suffering;
d. 	$75,000 as punitive damages;
e. 	Pre-judgment interest; and
f. 	Post-judgment interest accrued from 9/3/1996 through
the petition date in the amount of $251,600.54.
5. 	On April 10, 1996, in a Texas criminal case, after trial by
jury where Defendant was represented by counsel, a jury in
District Court 142 nd Judicial District, Midland County, Texas
found Defendant guilty of the offense of Aggravated Assault by
Causing Serious Bodily Injury. 	The Texas Criminal Judgment was
entered on May 1, 1996.
6. 	On December 7, 1992, Taylor filed a complaint against the
Debtor for assault in the District Court of Midland County, Texas
captioned Henry W. Taylor, III vs. Jeffrey Lane Jasper, Case No.
CV-39350.
7. 	On December 30, 1992, Defendant filed an answer in the Texas
Civil Case.
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7As noted above, Defendant claims this fact is disputed.
However, the Texas Civil Judgment Finding ¶ 3 states “That the
assault committed by Defendant on Plaintiff was willful and
malicious, and was actuated by malice.”
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8. 	On August 13, 1996, the Texas Civil Case came on to be heard
in the District Court of Midland County, Texas. 	Defendant,
although being duly and legally cited to appear and having
previously filed an answer and responsive pleading in the matter,
failed to appear. 	The Texas Court directed the Bailiff to make a
verbal announcement in the hall and outside doors of the
courthouse. 	Having no response, the Court proceeded to dismiss
the jury panel and proceed with the trial to the bench. 	The
Defendant did not participate in the trial nor did he present any
evidence to refute the testimony of the Plaintiff or present any
evidence concerning his defenses.
9. 	On September 4, 1994, the Texas Civil Court entered judgment
against the Debtor.
10. 	The Texas Court awarded the amounts listed in paragraph 5
above to Taylor.
11. 	The amount awarded by the Texas Court is the result of
Debtor’s willful and malicious injury to Taylor. 7
CONCLUSIONS OF LAW
Plaintiff’s Motion is based upon the prior Texas state court
proceedings and their collateral estoppel effect.
Collateral estoppel applies in bankruptcy court
actions to determine the dischargeability of a debt.
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Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct.
654, 112 L.Ed.2d 755 (1991). 	“Under collateral
estoppel, ‘once a court has decided an issue of fact or
law necessary to its judgment, that decision may
preclude relitigation of the issue in a suit on a
different cause of action involving a party to the
first case.’ ” 	Sil-Flo, Inc. v. SFHC, Inc., 917 F.2d
1507, 1520 (10th Cir.1990) (quoting Allen v. McCurry,
449 U.S. 90, 94, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980)).
While a bankruptcy court ultimately determines whether
a debt is dischargeable under § 523, under the
collateral estoppel doctrine, a state court judgment
may preclude the relitigation of settled facts. 	See
Klemens v. Wallace (In re Wallace), 840 F.2d 762,
764-65 (10th Cir. 1988).
When a federal court applies the collateral
estoppel doctrine to a state court judgment, it must
look to the preclusion law of the state where the
judgment was rendered. 	Marrese v. Am. Acad. of
Orthopaedic Surgeons, 470 U.S. 373, 380, 105 S.Ct.
1327, 84 L.Ed.2d 274 (1985) (holding that in cases
exclusively within federal jurisdiction, state law
determines the preclusive effect of a prior state court
judgment unless an exception to the Full Faith and
Credit Statute applies); 	see also Phelps v. Hamilton,
122 F.3d 1309, 1318 (10th Cir.1997); 	State of Mo. ex
rel. Nixon v. Audley (In re Audley), 275 B.R. 383, 387
(10th Cir. BAP 2002).
McCain Foods USA, Inc. v. Shore (In re Shore), 317 B.R. 536, 541
(10 th Cir. BAP 2004). 	Because the state court proceedings were
in Texas, Texas collateral estoppel laws apply.
Under Texas law when a defendant files an answer but later
fails to participate in the trial, the plaintiff can obtain a
form of default judgment called “a post-answer default judgment.”
Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). 	The post-
answer default is neither an abandonment of defendant’s answer
nor an implied confession of any issues. 	Id. 	See also Sharif v.
Par Tech, Inc., 135 S.W.3d 869, 872 (Tex. Ct. App. 2004)(Same.)
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After a post-answer default, judgment cannot be entered on the
pleadings alone; the plaintiff in such a case must offer evidence
and prove his or her case as in a judgment after trial. 	Stoner,
578 S.W.2d at 682; Sharif, 135 S.W.3d at 873; Pancake v. Reliance
Ins. Co. (In re Pancake), 106 F.3d 1242, 1244 (5 th Cir.
1997)(Applying Texas law.)
Under Texas law, collateral estoppel “bars relitigation
of any ultimate issue of fact actually litigated and
essential to the judgment in a prior suit, regardless
of whether the second suit is based upon the same cause
of action.” Bonniwell v. Beech Aircraft Corp., 663
S.W.2d 816, 818 (Tex. 1984). 	Before applying
collateral estoppel, the court must determine that the
facts asserted in the second proceeding were fully and
fairly litigated in the first, that the facts were
essential to the judgment, and that the parties were
cast as adversaries in the first action. 	Id. (citing
Restatement (Second) of Judgments § 27 (1982)); [Garner
v. Lehrer (]In re Garner, 56 F.3d [677] at 679-80 [(5 th
Cir. 1995)]; Amica Mut. Ins. Co. v. Moak, 55 F.3d 1093,
1097 (5th Cir.1995).
Gober v. Terra + Corp. (In re Gober), 100 F.3d 1195, 1201 (5 th
Cir. 1996). 	Notably, “issues in a post-answer default judgment
are actually litigated for the purposes of collateral estoppel
and may be given preclusive effect in a subsequent
dischargeability proceeding in bankruptcy.” 	Id. at 1204. 	See
also Pancake, 106 F.3d at 1244 (“We have held under Texas law
that where the court enters a default judgment after conducting a
hearing or trial at which the plaintiff meets his evidentiary
burden, the issues raised therein are considered fully and fairly
litigated for collateral estoppel purposes.”)(Citation omitted.)
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In the case at bar, the identities of the parties are the
same, the same set of core facts is at issue, and, by virtue of
Defendant’s post-answer default, the issues were actually
litigated. 	Texas law collaterally estops relitigation of the
dischargeability issues.
Plaintiff seeks a declaration that his claim is
nondischargeable under 11 U.S.C. § 523(a)(6), which provides:
A discharge under section 727, 1141, 1228(a), 1228(b),
or 1328(b) of this title does not discharge an
individual debtor from any debt--
...
(6) for willful and malicious injury by the debtor to
another entity or to the property of another entity.
The Supreme Court has explained that this statute refers only to
“acts done with the actual intent to cause injury.” 	Kawaauhau v.
Geiger, 523 U.S. 57, 61 (1998).
Nondischargeability under § 523(a)(6) requires proof of
two elements-that the injury is both willful and
malicious. 	Panalis v. Moore (In re Moore), 357 F.3d
1125, 1129 (10th Cir.2004) (holding that there must be
proof of both a “willful act” and “malicious injury” to
establish nondischargeability under § 523(a)(6)); 	see
also Mitsubishi Motors Credit of Am., Inc. v. Longley
(In re Longley), 235 B.R. 651, 655 (10th Cir. BAP 1999)
(collecting opinions interpreting § 523(a)(6)). 	A
“willful act” is one in which the debtor must “ ‘desire
... [to cause] the consequences of his act or ...
believe [that] the consequences are substantially
certain to result from it.’ ” 	Moore, 357 F.3d at 1129
(quoting Longley, 235 B.R. at 657). 	A malicious
injury occurs when there is proof that the debtor
either intended the resulting injury or intentionally
took action that was substantially certain to cause the
injury. 	Id. 	The test for this element is a subjective
one: 	the court must determine what the debtor knew or
intended with respect to the consequences of his
actions. 	Id. 	The creditor bears the burden of
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establishing nondischargeability by a preponderance of
the evidence. 	Holaday v. Seay (In re Seay), 215 B.R.
780, 785 (10th Cir. BAP 1997).
Shore, 317 B.R. at 542.
The Court finds that the Texas judgments and transcript of
the trial testimony satisfy the elements of section 523(a)(6) and
that summary judgment should be entered against Defendant.
Honorable James S. Starzynski
United States Bankruptcy Judge
copies to:
Stephanie L Schaeffer
500 Marquette Ave NW Ste 650
Albuquerque, NM 87102-5341
Gerald R Velarde
2531 Wyoming Blvd NE
Albuquerque, NM 87112-1027
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