Larsen v. Jendusa–nicolai

• Citation: 442 B.R. 905
• Decision Date: 30 December 2010
• Docket Number: No. 10–CV–204.,10–CV–204.
• Parties: David M. LARSEN, Appellant,v.Teri JENDUSA–NICOLAI, David M. Nicolai, A.M.L., and H.M.L., minors by their Guardian Ad Litem, Patrick O. Dunphy, Appellees.
• Court: U.S. District Court — Eastern District of Wisconsin

442 B.R. 905

David M. LARSEN, Appellant,

v.Teri JENDUSA–NICOLAI, David M. Nicolai, A.M.L., and H.M.L., minors by their Guardian Ad Litem, Patrick O. Dunphy, Appellees.

No. 10–CV–204.

United States District Court, E.D. Wisconsin.

Dec. 30, 2010.

David M. Larsen, Waupun, WI, pro se.Sarah Frink Kaas, Cannon & Dunphy SC, Brookfield, WI, for Appellees.

ORDER

J.P. STADTMUELLER, District Judge.

This case arises out of appellant-debtor's assault, kidnapping and attempted murder of his ex-wife, appellee Teri Jendusa–Nicolai (“Ms. Jendusa–Nicolai”). See State v. Larsen, 2007 WI App 147, 302 Wis.2d 718, 736 N.W.2d 211; see also United States v. David M. Larsen, 615 F.3d 780 (7th Cir.2010). On March 11, 2010, appellant David M. Larsen (“Larsen”) appealed a decision by the United States Bankruptcy Court for the Eastern District of Wisconsin (“bankruptcy court”) holding that state court tort judgments rendered against Larsen were not dischargeable under 11 U.S.C. § 523(a)(6), which precludes a debtor from discharging a debt caused by the debtor's willful and malicious injury to a person or property. In an adversary proceeding the bankruptcy court denied discharge and entered summary judgment in favor of the creditor-appellees because it concluded that the state court judgment determined that Larsen's conduct was willful and malicious, and that therefore, issue preclusion barred Larsen from attempting to litigate the issue in a bankruptcy proceeding. The court affirms the decision of the bankruptcy court.

BACKGROUND

The facts are as follows: On the three year anniversary of their divorce, Ms. Jendusa–Nicolai went to the home of her ex-husband, Larsen, to pick up their daughters. After her arrival, Larsen locked the children in a bedroom and attacked Ms. Jendusa–Nicolai, beating her with a baseball bat. He bound her with duct tape to prevent any attempt at escape, stripped her of her pants, shoes, and socks, stuffed her in a garbage can partially filled with snow, and placed the can in the unheated cargo box of his pickup truck. Larsen then drove his ex-wife to an unheated storage locker he had rented, placed boxes on top of the garbage can to prevent her escape, and left. Ms. Jendusa–Nicolai remained bound, in the snow-filled garbage can, for over 18 hours before she was rescued. As a result, Ms. Jendusa–Nicolai suffered many injuries, including severe bruising and contusions, facial lacerations, hypothermia, the loss of all ten of her toes to frostbite, and a miscarriage.¹

Larsen was convicted in state court of attempted first-degree intentional homicide and interference with custody and sentenced to 37 years in state prison. See Larsen, 2007 WI App147, ¶ 1, 302 Wis.2d 718, 736 N.W.2d 211. Because Larsen had transported Ms. Jendusa–Nicolai across state lines, he was also charged in federal court, and convicted of kidnapping and interstate domestic violence. United States v. Larsen, No. 04–CR–29 (E.D.Wis. Aug. 7, 2008). Appellant was sentenced to life imprisonment for the kidnapping offense and 120 months on the domestic violence offense to run concurrently to the state sentence. Id.

Ms. Jendusa–Nicolai and her family then commenced a civil suit against Larsen for compensatory and punitive damages. In re Larsen, 422 B.R. at 917. ² A bench trial in the civil action was held, with the debtor present and represented by counsel. Id. The Racine County Circuit Court ruled in favor of the plaintiffs on their claims for assault and battery, intentional infliction of emotional distress, false imprisonment, and loss of society and companionship. Id.³

On March 13, 2009, Larsen filed a voluntary petition for Chapter 7 bankruptcy. The appellees brought an adversary proceeding objecting to the dischargeability of certain obligations incurred by Larsen—specifically the state court judgment for damages. The appellees moved for summary judgment asserting that they were entitled to a nondischargeability judgment pursuant to 11 U.S.C. § 523(a)(6).⁴ On January 29, 2010, an order for nondischargeable judgment was entered. The bankruptcy court held that issue preclusion precluded relitigation of the state court tort judgments which established a willful and malicious injury under § 523(a)(6).

DISCUSSION

I. Procedural Defects

As an initial matter, the court is obliged to discuss the procedural defects in Larsen's appeal because the deficiencies affect the court's review. On February 8, 2010, Larsen properly and timely filed, in the bankruptcy court, a notice of appeal from the bankruptcy court's decision in adversary case number 09–2231. (Docket # 1).⁵ Pursuant to Federal Bankruptcy Rule 8006, within fourteen days of filing the Notice of Appeal with the bankruptcy court, Larsen was required to file a designation of items to be included in the record on appeal as well as a statement of the issues to be presented. Fed. R. Bankr.P. 8006. Larsen failed to do so.⁶ On August 5, 2010, over six months after filing his Notice of Appeal, Larsen filed a Motion for Extension of Time to file a designation of items to be included in the record on appeal as well as a purported designation of items. (Docket # 9). Not only is such a filing months overdue, but it follows an inappropriate procedure and is substantively lacking. First, a designation of items and a statement of the issues should be filed with the clerk of the bankruptcy court, not the clerk of the district court. Fed. R. Bankr.P. 9001(3). Because Larsen's August 5, 2010 filing was filed with the district court clerk, it did not effectuate the transfer of the entire record to this court. Furthermore, Larsen's designation of items simply provides excuses for his failure to designate the record at the outset of this appeal, including that he assumed the record would be forwarded to the district court as it is in criminal cases.⁷ Larsen then requests that the entire record be included on appeal. This designation of items for the record is insufficient. The result is that this court has before it only the bankruptcy court's decision from which to determine whether the bankruptcy court erred. This is inherently problematic because the bankruptcy court's decision is dependent upon an analysis of the state court's civil judgment and findings of fact. Thus, the court is limited to the excerpts of the state court transcript and judgment that the bankruptcy court cited in its decision. Such circumstances do not facilitate a meaningful review. Indeed, Larsen's briefs fail to cite to the record other than to reference page numbers of the bankruptcy court's decision, thereby further hindering the court's ability to fully analyze the record and the sufficiency of the bankruptcy court's findings.⁸ It also appears that Larsen has failed to comply with Bankruptcy Rule 8010(a)(1), which requires a “statement of the facts relevant to the issues presented for review, with appropriate references to the record” to be included in the appellant's brief. Fed. R. Bankr.P. 8010(a)(1). Though Larsen's initial brief has a heading labeled “Statement of the Facts,” he merely lists the procedural history of the bankruptcy proceedings. (Appellant's Br. 4). The court appreciates that Larsen's access to the necessary resources for managing this appeal is limited due to his financial circumstances and incarceration, yet Bankruptcy Rule 8010 is significant because it serves a substantive function by providing the opposing party and the court an indication of “which flaws in the appealed order or decision motivate the appeal.” In re Gulph Woods Corp., 189 B.R. 320, 323 (E.D.Pa.1995).

Accordingly, the appellees urge the court to dismiss Larsen's appeal due to his failure to comply with the rules governing bankruptcy appeals. (Appellees' Br. 11–12). Bankruptcy Rule 8001(a) gives the court authority to dismiss an appeal for failure to comply with the rules. Though failure to comply with Rule 8006 is not jurisdictional, it may provide the basis for dismissal of an appeal. In In re Thompson, 140 B.R. 979 (N.D.Ill.1992), aff'd 4 F.3d 997 (7th Cir.1993), the bankruptcy court dismissed an appeal for just such a failure. The court explained that “the burden of providing [the district court] with an adequate record on appeal is squarely on the appellant.” Id. The court went on to note that “ ‘unless the record that is brought before the court affirmatively shows the occurrence of the matters upon which the appellant relies for relief, the appellant may not urge those matters on appeal.’ ” Id. (quoting 9 Lawrence King, Collier on Bankruptcy ¶ 8006.04 (1992)). The court further stated that an adequate designation of issues on appeal is necessary to put the appellee on notice as to which issues it must defend against and whether the appellant's designation of issues will produce a record adequate for the reviewing court. Id.

Other courts have found it appropriate to dismiss a bankruptcy appeal for similar shortcomings. See In re Champion, 895 F.2d 490, 492 (8th Cir.1990) (holding that a district court did not abuse its discretion by dismissing an appeal where the appellant failed to file a designation of the record or a statement of the issues as required by Bankruptcy Rule 8006); see also In re Fitzsimmons, 920 F.2d 1468, 1472 (9th Cir.1990) (dismissal proper where corporation failed to timely serve designation of the record and failed to make a written request for the record).

As a general rule, when determining whether to dismiss an appeal based on noncompliance with nonjurisdictional bankruptcy procedure requirements, the court must consider: (1) whether alternative measures in lieu of dismissal are available; and (2) whether the conduct giving rise to the dismissal was caused by the party's attorney. Matter of Thompson, No. 92–2587, 1993 WL 347181, at *4 (7th Cir.1993) (citing Greco v. Stubenberg, 859 F.2d 1401, 1404 (9th Cir.1988)). Larsen is proceeding pro se, and, therefore, he is responsible for the conduct giving rise...