In re Love

• Decision Date: 10 August 2006
• Docket Number: Adversary No. 06-02019.,Bankruptcy No. 05-23129.
• Citation: 347 B.R. 362
• Parties: In re Donald LOVE, Debtor. T.K., a minor, by D.M., as next friend, Plaintiff, v. Donald Love, Defendant.
• Court: U.S. Bankruptcy Court — Western District of Missouri

Page 362

347 B.R. 362

In re Donald LOVE, Debtor T.K., a minor, by D.M., as next friend, Plaintiff, v. Donald Love, Defendant.

Bankruptcy No. 05-23129.

Adversary No. 06-02019.

United States Bankruptcy Court, W.D. Missouri.

August 10, 2006.

John C. Reed, Pletz and Reed, Jefferson City, MO, for Debtor.

MEMORANDUM OPINION

DENNIS R. DOW, Bankruptcy Judge.

This adversary comes before the Court on the Motion for Summary Judgment filed by T.K., a minor, by D.M., as next friend ("Plaintiff"), against Donald Love ("Debtor"), for a determination of dischargeability under 11 U.S.C. & sect; 523(a)(6), of any damages that Plaintiff obtains for the willful and malicious injury caused by Debtor. In support of the Motion for Summary Judgment, Plaintiff relies on the guilty verdict filed in Debtor's criminal case, which is outlined in the Order and Judgment dated March 28, 2003 and affirmed in the appellate opinion dated June 28, 2004, for acts of sexual misconduct against Plaintiff. This is a core proceedings under 28 U.S.C. & sect; 157(b)(2)(I) over which the Court has jurisdiction pursuant to 28 U.S.C. & sect;§ 1334(b), 157(a) and (b)(1). The following constitutes my Findings of Fact and Conclusions of Law in accordance with Rule 7052 of the Federal Rules of Bankruptcy Procedure. For the reasons set forth below, the Court finds that any damages Plaintiff obtains against Debtor for his sexual molestation of her are nondischargeable pursuant to § 523(a)(6) and grants Plaintiff's Motion for Summary Judgment.

I. STANDARD FOR SUMMARY JUDGMENT

Federal Rule of Bankruptcy Procedure 7056(c), applying Federal Rule of Civil Procedure 56(c), provides that summary judgment is appropriate "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." Fed.R.Civ.P. 56(c); Fed. R. Bankr.P. 7056; Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party moving for summary judgment has the initial burden of proving that there is no genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 161, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met this initial burden of proof, the non-moving party must set forth specific facts sufficient to raise a genuine issue for trial, and may not rest on its pleadings or mere assertions of disputed facts to defeat the motion. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). "A `genuine issue' in the context of a motion for summary judgment is not simply a `metaphysical doubt as to the material facts'." Id. Rather, "a genuine issue exists when the evidence is such that a reasonable fact finder could find for the non-movant." Buscaglia v. United States, 25 F.3d 530, 534 (7th Cir.1994). When reviewing the record for summary judgment, the court is required to draw all reasonable inferences in favor of the nonmovant; however, the court is "not required to draw every conceivable inference from the record-only those inferences that are reasonable." Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir. 1991).

II. FACTUAL BACKGROUND

On December 14, 2001, Debtor, while acting as Santa Claus at the Stonecrest Mall in Osage Beach, Missouri, did purposely subject Plaintiff to sexual contact by rubbing his hand against Plaintiffs crotch area while Plaintiff was sitting on his lap. Plaintiff was seven years old at the time of the incident. Debtor was charged and convicted in the Circuit Court of Laclede County, Missouri of violating § 566.090 RSMo. Section 566.090 states:

A person commits the crime of sexual misconduct in the first degree if he has deviate sexual intercourse with another person of the same sex or he purposely subjects another person to sexual contact or engages in conduct which could constitute sexual contact except that the touching occurs through the clothing without the person's consent.

Mo.Rev.Stat. & sect; 566.090(1). Sexual contact is defined as:

... any touching of another person with the genitals or any touching of the genitals or anus of another person or the breast of a female person, for the purpose of arousing or gratifying sexual desire of any person.

Mo.Rev.Stat. & sect; 566.010(3). After a contested hearing to the bench, where Debtor was represented by an attorney, Debtor was convicted of Sexual Misconduct in the First Degree against Plaintiff and three other children¹. Debtor appealed the conviction and it was affirmed, as to three of the sexually molested children, including Plaintiff, in State v. Love, 134 S.W.3d 719 (Mo.App. S.D.2004)².

Plaintiff filed an adversary proceeding against Debtor pursuant to 11 U.S.C. § 523(a)(6) for denial of discharge of any judgment which she may obtain against Debtor arising from his sexual molestation of her in December, 2001.

III. DISCUSSION AND ANALYSIS

In this case, Plaintiff argues that the conviction rendered in the criminal case establishes that Debtor willfully and maliciously injured her, that the Order and Judgment collaterally estops Debtor from re-litigating any issue decided in that case and that no genuine issue of material fact, with regard to dischargeability under § 523(a)(6), remains for this Court to decide. Debtor contends that, although he was convicted of Sexual Misconduct in the First Degree, that his conviction only established that he touched Plaintiff for his own sexual gratification, that his intent was not an issue litigated in the criminal matter and that he did not intend to injure Plaintiff. Debtor's argument is that summary judgment is not proper, and collateral estoppel is not implicated, because the issue of his intent remains a genuine issue of material fact.

The Supreme Court has held that the doctrine of collateral estoppel is applicable in dischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 284 n. 11, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991). When determining whether collateral estoppel arises from a prior state court judgment, federal courts apply the law of the state in whose courts the prior judgment was entered. Osborne v. Stage, 321 B.R. 486, 493 (8th Cir. BAP 2005); Factors v. Calvert (In re Calvert), 105 F.3d 315, 319 (6th Cir.1997)(holding that the Full Faith and Credit Statute directs federal court to refer to the preclusion law of the state in which the judgment was rendered); Pahlavi v. Ansari (In re Ansari), 113 F.3d 17, 19 (4th Cir.1997).

Under Missouri law, collateral estoppel, also referred to as issue preclusion, has four elements: (1) the issue decided in the prior adjudication mirrors that in the present action; (2) the prior adjudication resulted in a final decision on the merits; (3) the party against whom collateral estoppel may apply participated as a party or in privity with a party to the prior adjudication; and (4) the party against whom the doctrine may apply has had a full and fair opportunity to litigate the issue. Galaxy Steel & Tube, Inc. v. Douglass Coal & Wrecking, Inc., 928 S.W.2d 420, 422 (Mo.Ct.App.1996). The party asserting collateral estoppel has the burden of establishing that all four elements are satisfied. Johnson v. Miera, 926 F.2d 741, 743 (8th Cir.1991) citing Spilman v. Harley, 656 F.2d 224, 229 (6th Cir.1981). When making the determination that an issue was actually litigated and was necessary to the decision in the prior proceeding, the court should examine the entire record of the earlier case. Miera, 926 F.2d at 743.

Here, the only element of collateral estoppel in question is whether the issue of "intent to harm," for purposes of § 523(a)(6), was decided in the criminal action against Debtor. Debtor argues that the criminal court's findings were based on a determination that Debtor touched Plaintiffs crotch area for the purpose of gratifying his own sexual desire, rather than an actual intent to harm Plaintiff. Debtor suggests that because the criminal court did not specifically find that he intended to harm Plaintiff, and because he affirmatively stated he did not intend to harm Plaintiff in his affidavit³, that the issue of his intent remains a genuine issue of material fact for this Court to decide. Plaintiff contends that because the act of an adult sexually molesting a child is so abhorred in society, and that such an act is certain or substantially certain to cause a child harm, that the Court may infer an intent to harm.

Section 523(a)(6) of the Bankruptcy Code provides:

(a) 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.

11 U.S.C. & sect; 523(a)(6).

Under & sect; 523(a)(6), a debtor is not discharged of any debt for "willful and malicious injury" to another. Johnson v. Fors, 259 B.R. 131, 137 (8th Cir. BAP 2001). In the Eighth Circuit, the terms "willful" and "malicious" are two distinct elements, each of which must be shown to establish an exception to discharge. Fischer v. Scarborough (In re Scarborough), 171 F.3d 638, 640 (8th Cir.1999).

A. Willfulness

In Barclays American/Bus. Credit Inc, v. Long (In re Long ), 774 F.2d 875, 881 (8th Cir.1985), the Eighth circuit defined "willfull" as "headstrong and knowing" conduct. The United States Supreme Court addressed the term "willful" for purposes of & sect; 523(a)(6) and concluded that:

The word "willful" in (a)(6) modifies the word "injury," indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury .... the (a)(6) formulation triggers in the lawyer's mind the category of "intentional torts," as distinguished from negligent or reckless torts.

Kawaauhau v. Geiger, 523 U.S....