1:05-ap-01274•Daulton v. Daulton
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UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION In Re Cherie F. Daulton Debtor - - - - - - - - - - - - - - - Walter L. Daulton Plaintiff vs. Cherie F. Daulton Defendant ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 05-16995 Adversary No. 05-1274 Chapter 7 Judge Burton Perlman DECISION AND ORDER DENYING MOTION FOR SUMMARY JUDGMENT This adversary proceeding arises in the underlying bankruptcy case filed by defendant Cherie F. Daulton. Plaintiff, Walter L. This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio. IT IS SO ORDERED. Dated: December 19, 2006 ____________________________________________________________ Case 1:05-ap-01274 Doc 26 Filed 12/19/06 Entered 12/20/06 09:23:01 Desc Main Document Page 1 of 9
2 Daulton, is a cousin of defendant. Plaintiff in this proceeding seeks to have declared non-dischargeable, pursuant to 11 U.S.C.§ 523(a)(6), a judgment awarded to him in a state court of Ohio. The complaint herein contains Claim I and Claim II. Claim II has been referred to the state court for further proceedings, though any determination of non-dischargeability remains with this Court. Claim I asserts a claim for non-dischargeability of a state court judgment pursuant to 11 U.S.C. § 523 (a)(6). Now before the Court is plaintiff’s Motion for Summary Judgment on Claim I. In support of his motion, plaintiff presents the transcript of a deposition given by defendant on June 22, 2006, as well as his own affidavit. In response to the motion, defendant presents her affidavit as well as documents showing an indictment and verdict against plaintiff for tax fraud. (The state court injunction and related documents are exhibits in the deposition of defendant as well as exhibits attached to the complaint.) In his Motion for Summary Judgment, plaintiff asserts that a state court judgment awarding damages for the violation of a permanent injunction is non-dischargeable. He says that case law demonstrates that violation of a state court injunction in and of itself rises to the willful and malicious standard of 11 U.S.C. § 523(a)(6). Additionally, he maintains that defendant is collaterally estopped from asserting that her conduct does not meet that standard. In her response, defendant asserts that there are Case 1:05-ap-01274 Doc 26 Filed 12/19/06 Entered 12/20/06 09:23:01 Desc Main Document Page 2 of 9
3 genuine issues of material fact in regard to whether the willful and malicious standard is met by the state court order itself. She also refutes plaintiff’s argument that collateral estoppel precludes her from litigating that her actions were not willful and malicious. Finally, she argues that plaintiff’s testimony is not credible, noting his conviction for preparing false tax returns. Motions for Summary Judgment are governed by Fed.R.Civ.P. 56, which is incorporated here by Fed. R. Bankr. P. 7056. The rule provides in part that a motion for summary judgment is to be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” The moving party bears the initial burden of showing that there exists no issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986). The non-moving party, however, bears the ultimate burden of showing that a genuine issue of material fact exists. Id. From the evidence in the record, we find the following facts. Claim I of plaintiff’s original complaint relates to a permanent injunction against the defendant issued in the Court of Common Pleas in Butler County, Ohio, on January 14, 2002 pursuant to a settlement agreement entered into by the parties. The injunction, among other things, orders that defendant not engage in tax Case 1:05-ap-01274 Doc 26 Filed 12/19/06 Entered 12/20/06 09:23:01 Desc Main Document Page 3 of 9
4 preparation services for certain clients of plaintiff and that she not disparage plaintiff’s reputation. On April 29, 2002 and again on September 19, 2003, the Court of Common Pleas found defendant in contempt of court for violating the injunction. On October 23, 2003 the Court set damages in accordance with the damages clause of the injunction, including $10,000 per violation, fees and costs. The court found five violations, including preparing four sets of tax returns and making “disparaging remarks about plaintiff’s ethics and professionalism in a letter” to a fifth individual. Total damages awarded were $104,123.70, of which $98,540.72 is still due. Plaintiff asserts that he has two alternative theories entitling him to relief. He contends that on either basis his claim falls within the exception to discharge provided by 11 U.S.C. §523(a)(6). The statute states in pertinent part: §523, Exceptions to Discharge. (a) A discharge under 727...of this title does not discharge an individual debtor debtor from any debt- *** (6) for willful and malicious injury by the debtor to another entity or to the property of another entity *** Plaintiff’s first theory is that the state court judgment in and of itself is sufficient to meet the test of §523(a)(6). Plaintiff’s alternative contention is that the doctrine of collateral estoppel precludes the defendant from litigating the Case 1:05-ap-01274 Doc 26 Filed 12/19/06 Entered 12/20/06 09:23:01 Desc Main Document Page 4 of 9
5 material elements of the §523(a)(6) claim; injury, willfulness, and malice. As a threshold matter, the Court has decided that plaintiff’s position that he has alternative bases for liability is not well taken. We find that there is but one basis for relief for plaintiff. His above stated first theory he claims is supported by Spring Works, Inc. v. Sarff, (In re Sarff)242 B.R. 620 (6th Cir BAP, 2000). Yet the Sarff case itself depends upon the doctrine of collateral estoppel, and we hold that the only basis that plaintiff has to support his motion for summary judgment is that he is entitled to summary judgment because this Court must accord collateral estoppel to the holding of the state court. As to applicable law, an overriding consideration is that to make out a case under §523(a)(6), the requirements of case law interpreting 523(a)(6) must be met. The U.S. Supreme Court has held that only acts done with intent to cause injury, and not merely acts done intentionally, meet the level of willful and malicious injury for the purpose of §523(a)(6). Kawaauhau v. Geiger, 523 U.S. 57, 57-58 (1998). The Sixth Circuit has held that willfulness includes the debtor’s subjective belief that the injury is “substantially certain to result” from his actions. Markowitz v. Campbell, (In re Markowitz) 190 F.3d 455 (6th Cir. 1999). We turn next to the applicable law regarding collateral estoppel. The United States Bankruptcy Appellate Panel of the Sixth Case 1:05-ap-01274 Doc 26 Filed 12/19/06 Entered 12/20/06 09:23:01 Desc Main Document Page 5 of 9
6 Circuit discussed the application of collateral estoppel to dischargeability proceedings in the Sarff case,supra. Concluding that the doctrine is applicable in dischargeability proceedings, the Court noted that the determination of a factual or legal issue in a judgment is conclusive in later litigation if it was actually litigated and determined and the determination was essential to the judgment. Id. at p. 624 (citing Corzin v. Fordu, 209 B.R. 854, 862 (6th Cir. BAP 1997) quoting Shelar v. Shelar, 910 F. Supp. 1307, 1312 (N.D. Ohio 1995). In its decision, the Court also said that whether collateral estoppel applies would depend upon whether or not state courts would give collateral estoppel effect to the judgment. Sarff at p. 624 (citing Bay Area Factors v. Calvert, 105 F. 3d 315 (6th Cir. 1997). Under Ohio law, a party must plead and prove the following elements for collateral estoppel to take effect: (1) the party against whom estoppel is sought must have been a party or in privity with a party to the prior action; (2) there must be a final judgment on the merits in the previous case after a full and fair opportunity to litigate the issue; (3) the issue must have been admitted or actually tried and decided and must be necessary to the final judgment; and finally, (4) the issue must have been identical to the issue involved in the prior suit. Sarff, supra at p. 2, 624; Wilcox v. Wilcox (In re Wilcox),229 B.R. 411, 415-16 (Bankr. N.D. Ohio 1998). The first prong of the test for collateral estoppel is met Case 1:05-ap-01274 Doc 26 Filed 12/19/06 Entered 12/20/06 09:23:01 Desc Main Document Page 6 of 9
7 because the parties here are the same as those in the state court proceedings. The second element is whether there was a final judgment on the merits after the parties had a full and fair opportunity in the state court to litigate the material issues of the dischargeability claim. The defendant does not dispute that there was a final judgment. Plaintiff contends that there was also a full and fair opportunity to litigate the issues, recalling that defendant had representation through most of the proceedings (save having an attorney present during the damages proceedings) and she testified there. The second element is therefore met. It is the third element of the collateral estoppel test which is crucial here. We have seen what authoritative court cases have held is required before a violation of §523(a)(6) can be found. The third element is whether the acts of defendant were done with the intent of injuring plaintiff or with a belief that injury was substantially certain to result from her action. We hold that this question was not before the state court. In Ohio, a court or judge in chambers may find a person in contempt when that person is disobedient of or resists a lawful writ, process, order, rule, judgment or command of a court or officer. R.C. §2705.02(A). To show contempt, it is “necessary to establish a valid court order, knowledge of the order, and violation of it.” Arthur Young v. Kelly, 68 Ohio App. 3d 287, 295, 588 N.E. 2d 233 (10th Dist. Franklin County 1990). Moreover, for Case 1:05-ap-01274 Doc 26 Filed 12/19/06 Entered 12/20/06 09:23:01 Desc Main Document Page 7 of 9
8 civil contempt, “intent to violate the order need not be proved.” Arthur Young v. Kelly, 68 Ohio App. 3d 287, 295, citing Windham Bank v. Tomaszcyk, 27 Ohio St. 2d 55, paragraph 3 of the syllabus, 271 N.E. 2d 815 (Ohio 1971). Indeed state law regarding civil contempt clearly indicates that “[p]roof of purposeful, willing, or intentional violation of a court order is not a prerequisite to a finding of contempt.” Pugh v. Pugh, 15 Ohio St. 3d 136, 140, 472 N.E.2d 1085 (1984) (emphasis in original); Carroll v. Detty, 113 Ohio App. 3d 708, 681 N.E. 2d 1383 (4th Dist. Ross County 1996). Intent to injure is not a required element of civil contempt, let alone a material element under Ohio laws. In this case, the state court entry finding defendant in contempt does not address the question of intent to injure. It does not make any fact findings regarding defendant’s subjective belief regarding the effects of her actions. The final prong of the collateral estoppel test requires that the issues involved in the present case be identical to the issue involved in the prior proceeding. In re Wilcox, 229 B.R. 411, 417. Because the necessary elements required for contempt in an Ohio court are different than the §523(a)(6) requirements, the fourth element for collateral estoppel in an Ohio Court is not met. Because the third and fourth prongs of collateral estoppel requirements are not met and because plaintiff has not shown that he is entitled to judgment as a matter of law, summary judgment Case 1:05-ap-01274 Doc 26 Filed 12/19/06 Entered 12/20/06 09:23:01 Desc Main Document Page 8 of 9
9 must be denied. Moreover, it has been said: “Summary judgment is generally not well suited for cases in which motive and intent are at issue.” Perry v. McGinnis, 209 F.3d 597 (6th cir. 2000). Because genuine issues of material fact exist, summary judgment is denied. IT IS SO ORDERED. Copies to: John A. Rebel 15 E. Eighth Street, Ste. 107 Cincinnati, OH 45202 Thomas Geygan 8050 Hosbrook Road Cincinnati, Oh 45236 Harry Zornow 860 N.W. Washington Blvd, Ste J. Hamilton, OH 45013 U.S. Trustee 36 E. 7 th Street, Ste 2050 Cincinnati, OH 45202 ### Case 1:05-ap-01274 Doc 26 Filed 12/19/06 Entered 12/20/06 09:23:01 Desc Main Document Page 9 of 9
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