Nitzel et al v. Nunley

1
IN THE UNITED STATES BANKRUPTCY COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
IN RE:
JASON MATTHEW NUNLEY,
Debtor.
Case No. 23-11317-T
Chapter 7
MALLORY NITZEL and SHANE
NITZEL,
Plaintiffs,
v.
JASON MATTHEW NUNLEY,
Defendant.
Adv. No. 24-01002-T
MEMORANDUM OPINION
THIS MATTER comes before the Court pursuant to Plaintiffs’ Motion for Summary
Judgment (the “Motion”),1 filed by Mallory Nitzel and Shane Nitzel (“Plaintiffs”); Defendant’s
1 ECF No. 44.
Dated: September 8, 2026
________________________________________________________________
The following is ORDERED:
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 1 of 12

2
Response to Plaintiffs’ Motion for Summary Judgment,2 filed by Jason Matthew Nunley
(“Defendant”); and Plaintiffs’ Reply in Support of Motion for Summary Judgment.3 Plaintiffs hold
a state court judgment against Defendant and filed this adversary proceeding to except the
judgment from discharge pursuant to 11 U.S.C. § 523(a)(6).4 The following findings of fact and
conclusions of law are made pursuant to Federal Rule of Civil Procedure 52, made applicable to
this bankruptcy proceeding by Federal Rule of Bankruptcy Procedure 7052.
Jurisdiction
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(b), and venue is
proper pursuant to 28 U.S.C. § 1409. Reference to the Court of this matter is proper pursuant to
28 U.S.C. § 157(a). Determination as to the dischargeability of a debt is a “core” proceeding as
that term is defined by 28 U.S.C. § 157(b)(2)(I).
Summary Judgment Standard
The United States Court of Appeals for the Tenth Circuit has held that:
Summary judgment is appropriate when “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “An issue is ‘genuine’ if there is sufficient evidence on
each side so that a rational trier of fact could resolve the issue either way.” Adler v.
Wal–Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998). “An issue of fact is
‘material’ if under the substantive law it is essential to the proper disposition of the
claim.” Id. Put differently, “[t]he question . . . is whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided
that one party must prevail as a matter of law.” Shero v. City of Grove, 510 F.3d
1196, 1200 (10th Cir. 2007) (quotation omitted). “On summary judgment the
inferences to be drawn from the underlying facts must be viewed in the light most
favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (quotation
omitted).5
2 ECF No. 49.
3 ECF No. 50.
4 Unless otherwise noted, all statutory references are to sections of the United States
Bankruptcy Code, 11 U.S.C. § 101 et seq.
5 Becker v. Bateman, 709 F.3d 1019, 1022 (10th Cir. 2013).
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 2 of 12

3
When the nonmoving party fails to respond to a movant’s assertion of fact, the Court may
“consider the fact undisputed for purposes of the motion.” 6 Nonetheless, the Court must
“examin[e] the moving party’s submission to determine if it has met its initial burden of
demonstrating that no material issues of fact remain for trial and the moving party is entitled to
judgment as a matter of law.” 7
Findings of Fact
For purposes of the Motion, the Court finds there is no genuine dispute as to the following
facts:8
1. 	On July 16, 2020, Plaintiffs filed a civil action in the District Court of Tulsa County,
State of Oklahoma (“State Court”), captioned Shane Nitzel and Mallory Nitzel v. Jason Nunley,
Case No. CJ-2020-2218 (“State Court Action”).9
2. 	In the State Court Action, Plaintiffs asserted several claims against Defendant,
including a claim for intentional infliction of emotional distress.10
6 Fed. R. Civ. P. 56(e)(2), made applicable to this proceeding by Fed. R. Bankr. P. 7056.
See also Bankr. N.D. Okla. Local Rule 7056-1(B) (“All properly supported material facts set forth
in the movant’s statement shall be deemed admitted for the purpose of summary judgment unless
specifically controverted by a statement of the non-movant that is supported by evidentiary
material.”).
7 Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002).
8 These facts were alleged by Plaintiffs in the Motion. See ECF No. 44. Because Defendant
failed to controvert Plaintiffs’ statement of undisputed material facts with particularity, Plaintiffs’
facts as set forth in the Motion are deemed admitted for purposes of the pending summary
judgment motion. See Bankr. N.D. Okla. LR 7056-1(B); Garrett v. Vaughan (In re Vaughan), 342
B.R. 385 (Table), 2006 WL 751388, at *3 (10th Cir. BAP Mar. 22, 2006) (“Necessary to the
effective rebuttal of a summary judgment motion is the non-moving party’s demonstration that
genuine issues of fact remain. Non-moving parties raise genuine issues of material fact by
controverting the moving party’s factual averments with particularity.”).
9 ECF No. 44, Ex. 1 at 5-10 (State Court Petition).
10 Id. at 8.
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 3 of 12

4
3. 	As a sanction for violating a court order compelling discovery, the State Court
entered default judgment against Defendant as to liability only on Plaintiffs’ claim for intentional
infliction of emotional distress.11 The State Court reserved the question of damages for trial.12
4. 	Defendant was present at trial and represented himself pro se. 13
5. 	The issues for the jury to decide at trial were whether Plaintiffs suffered actual
damages due to Defendant’s intentional infliction of emotional distress and whether Defendant
should be subject to punitive damages. 14
6. 	After the parties presented their respective cases, the State Court instructed the jury
on the law regarding actual and punitive damages.15
7. 	As to compensatory damages, the State Court instructed the jury that they may
assess actual or nominal damages for intentional infliction of emotional distress and that Plaintiffs
were only entitled to an amount to compensate for the injuries directly caused by the emotional
distress.16 The State Court also instructed the jury that nominal damages would be awarded if
Plaintiffs could not prove they suffered actual damages.17
8. 	As to punitive damages, the State Court instructed the jury that they “must also
find” whether Plaintiffs proved “by clear and convincing evidence” that “Defendant acted in
reckless disregard of the rights of others and/or intentionally and with malice towards others.”18
11 Id. at 202 (Order Granting Plaintiffs’ Motion for Sanctions).
12 Id.
13 Id. at 369 (Jury Minute).
14 ECF No. 44, Ex. 1 at 345 (Statement of the Case).
15 Id. at 346-68 (Jury Instructions).
16 Id. at 360 (Jury Instruction No. 15).
17 Id.
18 Id. at 362 (Jury Instruction No. 17).
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 4 of 12

5
The State Court instructed the jury that “[m]alice involves either hatred, spite, or ill-will, or else
the doing of a wrongful action intentionally without just cause or excuse.”19
9. 	The jury unanimously found in favor of Plaintiffs and awarded actual damages in
the sum of $50,000.00.20
10. 	The jury also found by clear and convincing evidence that Defendant “acted in
reckless disregard of the rights of others,” and “intentionally and with malice towards others.”21
11. 	The jury awarded Plaintiffs punitive damages in the amount of $100,000.00.22
12. 	On January 3, 2023, the State Court entered judgment consistent with the jury’s
verdict.23
13. 	The Exhibit filed with the Motion constitutes the entire judgment roll from the State
Court Action.24
14. 	On November 17, 2023, Defendant filed a Chapter 7 Voluntary Petition in this
Court, Case Number 23-11317-T. 25
15. 	On February 12, 2024, Plaintiffs filed their Complaint initiating this adversary
proceeding.26
16. 	Plaintiffs then filed the instant Motion on June 22, 2026.27
19 ECF No. 44, Ex. 1 at 362.
20 Id. at 372. (Verdict Form – Intentional Infliction of Emotional Distress).
21 Id.
22 Id. at 374 (Verdict Form – Second Stage).
23 Id. at 382-83 (Journal Entry of Judgment).
24 See Burris v. Burris (In re Burris), 591 B.R. 779, 793-94 (Bankr. W.D. Okla. 2019)
(“Failure to produce the judgment roll is fatal to a request that a prior judgment be given preclusive
effect.”); Grassmann v. Brown (In re Brown), 570 B.R. 98, 113 (Bankr. W.D. Okla. 2017)
(“Without the entire judgment roll, it is not possible for this Court to determine what issues were
actually litigated and the legal standards employed by the State Court.”).
25 Case No. 23-11317, ECF No. 1.
26 ECF No. 1.
27 ECF No. 44.
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 5 of 12

6
To the extent the Conclusions of Law contain any items that should more appropriately be
considered Findings of Fact, they are incorporated herein by this reference.
Conclusions of Law
A. 	Section 523(a)(6) – Willful and Malicious Injury
“[A] central purpose of the [Bankruptcy] Code is to provide a procedure by which certain
insolvent debtors can reorder their affairs, make peace with their creditors, and enjoy ‘a new
opportunity in life with a clear field for future effort, unhampered by the pressure and
discouragement of preexisting debt.’”28 Such an opportunity, however, is reserved for the “honest
but unfortunate debtor.”29 As such, there are certain categories of debts which are excepted from
a debtor’s discharge, including “debts involving a debtor’s unacceptable conduct, such as
dishonesty, fraud, intentional injury, or morally reprehensible conduct.”30 While these exceptions
to discharge are meant to strike a balance between debtors and their creditors, they are to be
narrowly construed with any doubts resolved in the debtor’s favor.31 Furthermore, a creditor
seeking to except its claim from discharge pursuant to § 523 must prove the claim is
nondischargeable by a preponderance of the evidence.32
Here, 	Plaintiffs 	argue 	that 	the 	debt 	resulting 	from 	the 	State 	Court 	Action 	is
nondischargeable pursuant to § 523(a)(6), which excepts from discharge a debt “for willful and
28 Grogan v. Garner, 498 U.S. 279, 286 (1991) (quoting Loc. Loan Co. v. Hunt, 292 U.S.
234, 244 (1934)).
29 Id. at 287.
30 Oil States Indus., Inc. v. Nambakam (In re Nambakam), No. 19-01108, 2021 WL
3777567, at *6 (Bankr. W.D. Okla. Aug. 25, 2021) (citing Hoffman v. Anstead (In re Anstead),
448 B.R. 202, 207 (Bankr. N.D. Ohio 2011)).
31 See DSC Nat’l Props., LLC v. Johnson (In re Johnson), 477 B.R. 156, 168 (10th Cir.
BAP 2012); Glencove Holdings, LLC v. Bloom (In re Bloom), No. 22-1005, 2022 WL 2679049,
at *5 (10th Cir. July 12, 2022).
32 Grogan, 498 U.S. at 287.
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 6 of 12

7
malicious injury by the debtor to another entity or to the property of another entity.” For conduct
to be willful for purposes of § 523(a)(6), there must have been “a deliberate or intentional injury,
not merely a deliberate or intentional act that leads to injury.”33 “This description generally
encompasses intentional torts, which require the actor intend the consequences of his act and not
simply the act itself.”34 Thus, the test is subjective and the creditor must prove “that the debtor
either intend the resulting injury or intentionally take action that is substantially certain to cause
the injury.”35 To be malicious, “the debtor must have ‘acted with a culpable state of mind vis-à-
vis the actual injury caused the creditor.’”36 This means the debtor’s actions must have been
wrongful and done without just cause or excuse, “even in the absence of personal hatred, spite or
ill-will.”37 Thus, while a showing of specific intent to harm, i.e., hatred, spite, or ill will, may
satisfy the malicious element, it is not required.38 Rather, the required threshold showing is the less
33 Owens v. Yiannos (In re Yiannos), 673 B.R. 453, 489 (Bankr. D. Colo. 2025) (quoting
Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998)) (quotations omitted); Blue Sky Bank v. Sitton (In
re Sitton), No. 24-1046, 2024 WL 4481704, at *3 (Bankr. W.D. Okla. Oct. 11, 2024) (“The
‘willful’ element requires both an intentional act and an intended harm; an intentional act that leads
to harm is not sufficient.”).
34 Myers Operations, Inc. v. Noles (In re Noles), No. 22-01058, 2023 WL 2636311, at *11
(Bankr. W.D. Okla. Mar. 24, 2023) (citing In re Smith, 618 B.R. 901, 912 (10th Cir. BAP 2020)).
See Kawaauhau, 523 U.S. at 61-62.
35 Panalis v. Moore (In re Moore), 357 F.3d 1125, 1129 (10th Cir. 2004) (quoting Hope v.
Walker (In re Walker), 48 F.3d 1161, 1164 (11th Cir. 1995)).
36 In re Yiannos, 673 B.R. at 489 (quoting In re Smith, 618 B.R. at 919).
37 In re Smith, 618 B.R. at 918 n.106 (quoting Hope v. Walker (In re Walker), 48 F.3d 1161,
1164 (11th Cir. 1995)). See Murphy v. Snyder (In re Snyder), 939 F.3d 92, 105 (2d Cir. 2019);
Kane v. Stewart Tilghman Fox & Biachi Pa (In re Kane), 755 F.3d 1285, 1294 (11th Cir. 2014);
Old Republic Nat’l Title Ins. Co. v. Levasseur (In re Levasseur), 737 F.3d 814, 818 (1st Cir. 2013);
In re Burris, 598 B.R. at 334. See also Bertone v. Wormington (In re Wormington), 555 B.R. 794,
800 (Bankr. W.D. Okla. 2016); Gerlich v. Barwick (In re Barwick), No. 19-01060, 2021 WL
839079, at *5 (Bankr. W.D. Okla. Mar. 4, 2021); Kanaga v. Landon (In re Landon), 657 B.R. 128,
141 (Bankr. N.D. Okla. 2024) (citations omitted).
38 See Davies v. Batcheler (In re Batcheler), 600 B.R. 680, 695 (Bankr. S.D. Fla. 2019)
(“Because a showing of specific intent to harm another is not required, this element follows a
slightly less stringent standard than willfulness.”).
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 7 of 12

8
rigorous standard of implied or constructive malice, i.e., wrongful and done without just cause or
excuse.
B. 	Issue Preclusion
Plaintiffs rely on the doctrine of issue preclusion in support of their request for summary
judgment as to their nondischargeability claim. Defendant contends that issue preclusion does not
apply here because he was not given a full and fair opportunity to actually litigate the issue of
liability in the State Court Action.
“Courts use the doctrine of issue preclusion to prevent the relitigation of issues or facts
raised in a second suit on a separate claim between the parties.”39 In other words, issue preclusion
“prevents a party that has lost the battle over an issue in one lawsuit from relitigating the same
issue in another lawsuit.”40 Moreover, “[i]t is settled law that ‘the doctrine of issue preclusion,
does, under appropriate circumstances, apply in discharge exception proceedings pursuant to
§ 523(a).’”41 “The preclusive effect of a state court judgment in a subsequent federal lawsuit
generally is determined by the full faith and credit statute . . . . This statute directs a federal court
to refer to the preclusion law of the State in which judgment was rendered.”42 As such, this Court
must determine to what extent, if any, the judgment rendered by the State Court Action is
preclusive under Oklahoma law.
“In Oklahoma, issue preclusion can be invoked where a court has decided an issue of fact
or law necessary to its judgment to prevent the same parties or their privies from relitigating that
39 Ford v. Landon (In re Landon), 619 B.R. 727, 733 (Bankr. N.D. Okla. 2020). See Bobby
v. Bies, 556 U.S. 825, 834 (2009).
40 Melnor, Inc. v. Corey (In re Corey), 583 F.3d 1249, 1251 (10th Cir. 2009).
41 In re Landon, 619 B.R. at 733 (quoting Grogan, 498 U.S. at 285 n.11).
42 Marrese v. Am. Acad. of Orthopaedic Surgeons, 470 U.S. 373, 380 (1985). See Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 293 (2005).
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 8 of 12

9
issue in a subsequent suit brought upon a different claim.”43 To establish issue preclusion under
Oklahoma law, the party asserting issue preclusion must prove the following:
(i) the party against whom [issue preclusion] is being asserted must have been a
party to the prior action; (ii) the issue subject to preclusion was actually adjudicated
in the prior case; (iii) the adjudicated issue was necessary and essential to the
outcome of the prior case; and (iv) the party against whom it is interposed had a
full and fair opportunity to litigate the claim or critical issue. 44
An issue is actually litigated “only if: (i) it is properly raised in pleadings or otherwise submitted
for determination in a prior action; and (ii) judgment would not have been rendered but for the
determination of that issue.”45 However, “a party may be estopped from requiring the ‘actually
litigated’ element of issue preclusion be met where a default judgment is entered against such party
as a sanction or penalty[.]”46
First, the parties in this case are the same as those involved in the State Court Action.
Therefore, the first element required to prove the applicability of issue preclusion is satisfied.
Second, the State Court sanctioned Defendant for violating its discovery order by entering
default judgment against him on Plaintiffs’ claim for intentional infliction of emotional distress.
The State Court specified in its order sanctioning Defendant that it found in favor of Plaintiffs as
to liability only and reserved the issue of damages for trial. Defendant then filed a motion to vacate
the default judgment, which the State Court denied. Thus, the order entering default judgment
against Defendant as a sanction for violation of the State Court’s discovery order is a final
43 In re Nambakam, 2021 WL 3777567, at *6 (first citing Okla. Dep’t of Pub. Safety v.
McCrady, 176 P.3d 1194, 1199 (Okla. 2007); and then Miller v. Miller, 956 P.2d 887, 897 (1998)).
44 Durham v. McDonald’s Rest. of Oklahoma, Inc., 256 P.3d 64, 66-67 (Okla. 2001).
45 In re Burris, 591 B.R. at 793 (citing McCrady, 176 P.3d at 1199).
46 In re Nambakam, 2021 WL 3777567, at *7 (first citing In re Corey, 394 B.R. at 527-28;
and then Zilm v. Roberts (In re Roberts), 505 B.R. 555, 567-68 (Bankr. N.D. Okla. 2014)).
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 9 of 12

10
judgment. Although default judgments are not generally given preclusive effect,47 Defendant is
estopped from claiming the issue of liability was not actually litigated, as the default judgment was
entered because of Defendant’s failure to comply with the court’s discovery order. Defendant
effectively waived or forfeited the “actually litigated” element of issue preclusion and will not now
be rewarded for prior abusive litigation behavior.48
The damages awarded in the State Court Action, on the other hand, were actually litigated
and determined via jury trial. The jury was instructed, and required to find, that “Plaintiffs
sustained actual injuries as a direct result of the claimed emotional distress” in order to award
actual damages.49 To award punitive damages, it was also required to determine whether Plaintiffs
proved “by clear and convincing evidence” that “Defendant acted . . . intentionally and with malice
towards others.”50 Under Oklahoma law, a party acts “intentionally” when inflicting emotional
distress if the party “desired to cause such distress or knew that such distress was substantially
certain to result from [the party’s] conduct.”51 Regarding malice, the jury instructions provided
that maliciousness under Oklahoma law “involves either hatred, spite, or ill-will, or else the doing
of a wrongful action intentionally without just cause or excuse.”52 The verdict forms indicate the
jury found that, not only did Plaintiffs sustain injuries as a direct result of Defendant’s conduct,
47 NLRB v. Gordon (In re Gordon), 303 B.R. 645, 654 (Bankr. D. Colo. 2003) (citing
Arizona v. California, 530 U.S. 392, 414 (2000)).
48 See In re Roberts, 505 B.R. at 568 (“[P]ermitting litigants who have been adjudicated as
abusive to avoid the preclusive consequences of a penalty default judgment would reward (and
perhaps encourage) bad behavior.”).
49 ECF No. 44, Ex. 1 at 360.
50 Id. at 362.
51 Parrett v. UNICCO Serv. Co., 127 P.3d 572, 576 (Okla. 2005) (quoting OUJI (civil) No.
20.2)). 52 ECF No. 44, Ex. 1 at 362. Oklahoma’s definition of malice encompasses both “express
malice,” which requires a more stringent showing of personal animus, such as hatred, spite, or ill
will, in addition to “implied malice,” which is a less exacting standard. See Park v. Sec. Bank &
Tr. Co., 512 P.2d 113, 119 (Okla. 1973).
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 10 of 12

11
but Defendant acted intentionally and with malice.53 This finding is consistent with the standard
for willful and malicious injury under § 523(a)(6) 54 and the Court finds that the second element of
issue preclusion is met.
Third, as alluded to above, the jury could not have awarded actual and punitive damages
absent a finding that Plaintiffs sustained injuries because of Defendant’s conduct and that
Defendant acted intentionally and with malice. As such, the issue of whether Defendant caused
Plaintiffs’ injuries, and in doing so acted willfully and with malice, was necessary and essential to
the outcome of the State Court Action. Thus, Plaintiffs have satisfied the third element required to
prove the applicability of issue preclusion.
Fourth, Defendant was represented by counsel, albeit sporadically, prior to the trial in the
State Court Action. Furthermore, although he proceeded pro se during the trial, Defendant was
present and had a full and fair opportunity to defend himself. The Court finds the fourth and final
element required to demonstrate the applicability of issue preclusion is met.
The issue of whether Defendant injured Plaintiffs through his willful and malicious conduct
was actually litigated and established in the State Court Action. Such a finding is binding on this
Court under the principles of issue preclusion. Therefore, Plaintiffs have established a willful and
malicious injury under § 523(a)(6) and are entitled to summary judgment on their claim of
nondischargeability.
53 Id. at 372.
54 See, e.g., In re Barwick, 2021 WL 839079, at *10; In re Nambakam, 2021 WL 3777567,
at *10; Commc’n Fed. Credit Union v. Lewis (In re Lewis), 31 B.R. 83, 86 (Bankr. W.D. Okla.
1983).
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 11 of 12

12
Conclusion
For the reasons set forth above, Plaintiffs’ Motion for Summary Judgment is GRANTED.
The Court finds there are no genuine issues of material fact in dispute in this case. The Court
further 	finds 	Plaintiffs 	have 	met 	their 	burden 	under 	§ 	523(a)(6) 	to 	show 	their 	debt 	is
nondischargeable, and that they are entitled to judgment as a matter of law.
A separate judgment in accordance with this Memorandum Opinion is entered concurrently
herewith.
###
Case 24-01002-T Document 51 Filed in USBC ND/OK on 09/08/26 Page 12 of 12