Townsend v. Willman (In re Willman)
| Decision Date | 05 October 2020 |
| Docket Number | Adversary Proceeding No. 20-5013-JPS,Case No. 20-50365-JPS |
| Parties | In the Matter of: JOSEPH M. WILLMAN, JR., JAMIE B. O'HARA, Debtors KELLY TOWNSEND, Plaintiff v. JOSEPH M. WILLMAN, JR., JAMIE B. O'HARA, Defendants |
| Court | U.S. Bankruptcy Court — Middle District of Georgia |
For Debtors/Defendants:
Wesley J. Boyer
Boyer Terry LLC
348 Cotton Avenue
Ste 200
Macon, GA 31201
For Plaintiff:
W. Steven Harrell
Steven Harrell, Attorney at Law
P.O. Box 1343
Perry, GA 31069
In this adversary proceeding, Plaintiff is the assignee of a judgment entered by the Court of Common Pleas Probate Division, Columbiana County, Ohio (the "Probate Court") against Debtors. Plaintiff timely filed this adversary proceeding against Debtors asking that the judgment be declared nondischargeable under 11 U.S.C. § 523(a)(4) and (a)(6).1 Plaintiff has filed a motion for summary judgment (Docket No. 15), supported by her legal brief, affidavit and copies of judgments and other filings from the Probate Court and the Twiggs County, Georgia Superior Court (where the judgment was domesticated). Debtors have responded by filing their own brief and affidavits.
Having reviewed the pleadings, briefs, affidavits, exhibits and the law, the Court will now publish its decision. For the reasons stated below, Plaintiff's motion for summary judgment is denied in part and granted in part.
For the most part, the facts are not in dispute. Any alleged factual disputes have been resolved by the Probate Court.
Plaintiff and Debtor Jamie B. O'Hara are sisters. Their father, John C. O'Hara, was diagnosed with cancer in 2012. Thereafter, he moved from Ohio to Georgia to live with Debtors. Debtors helped the father move his belongings to Georgia, including, and as desired by thefather, an extensive gun collection. Gradually, the father's mental and physical condition deteriorated. At some point, Plaintiff came to Georgia and took the father back to Ohio. However, the gun collection was not moved and remained at Debtors' home. The father died in Ohio on February 5, 2013.
Plaintiff filed the father's will in the Probate Court and, pursuant to the terms of the will, was appointed executrix of the Estate of John C. O'Hara. She also filed a Complaint for Concealment of Assets against Debtors, alleging that the guns were property of the Estate and were wrongfully appropriated by Debtors.
A hearing was held in the Probate Court on July 25, 2013, at which Plaintiff and her counsel and Debtors and their counsel attended. Debtors' counsel stipulated, and Ms. O'Hara acknowledged, that she was in possession of the subject guns, which numbered at least 100. The Probate Court entered an order prohibiting Debtors from disposing of the guns and ordered Debtors to make them available to the Estate to be photographed, appraised, inspected and inventoried.
Thereafter, Plaintiff filed a Motion to Return Assets in the Probate Court, alleging that Debtors had refused to cooperate in making the guns available for inspection and appraisal. On November 6, 2013, and again on November 14, 2013, the Probate Court entered orders requiring Debtors to return the guns to the state of Ohio and to the Estate.
On January 9, 2014, Plaintiff and her counsel and Debtors and their counsel again appeared in the Probate Court. At this hearing, Debtors testified that they had not returned the guns as previously ordered by the Court. They also admitted to having only 17 guns, which was in conflict with the stipulation made at the July 25, 2013 hearing that they had at least 100 guns.The Probate Court found Debtors in contempt for failure to comply with its previous orders and sentenced each Debtor to 30 days in jail plus a fine of $250 each. The Court ordered Debtors to each immediately serve 2 days in jail and then gave them the opportunity to purge themselves of the remaining 28 days by complying with the Court's November 14, 2013 turnover order within 90 days.
On March 14, 2014, the Probate Court held a hearing on the merits of the Complaint for Concealment of Assets. Plaintiff and her counsel attended. Debtors also attended, but this time pro se, their counsel having previously filed a motion to withdraw. After hearing evidence, the Court gave the parties an opportunity to submit proposed findings of fact and conclusions of law. Plaintiff filed proposed findings and conclusions, but Debtors did not.
On April 23, 2014, the Court entered its judgment on the Complaint. It found that Debtors had failed to comply with its prior turnover orders or purge themselves of the Court's prior contempt order. Accordingly, the Court ordered Debtors to serve 14 days in jail.
The Court also "found the [Debtors] continue to withhold, conceal and secret (sic) assets rightfully belonging to the Estate of John C. O'Hara." (Plaintiff's Exhibit 4, p. 3, ¶ 18). The Court further found that, at the time of his death, Mr. O'Hara owned 133 Smith & Wesson Revolvers having a value of $80,646 and 68 additional guns of various makes having a value of $68,275. The Court found that Debtors had returned some of these guns, specifically Smith & Wesson guns having a value of $8,970 and non-Smith & Wesson guns having a value of $7,120. The Court found that other guns returned by Debtors were not from Mr. O'Hara's collection. The Court granted the Estate judgment against Debtors for "$68,099, representing the net value of Smith & Wesson guns concealed by [Debtors]" and "$57,841...representing the net value ofnon-Smith & Wesson guns concealed by [Debtors]". (Plaintiff's Exhibit 4, p. 7, ¶ 20). Debtors did not appeal this judgment.
On July 29, 2019, the Superior Court of Twiggs County, Georgia entered an order domesticating the judgment in Georgia pursuant to the Uniform Enforcement of Foreign Judgments Act, O.C.G.A. § 9-12-130.
On November 19, 2014, the Probate Court entered an order which provided:
(Plaintiff's Exhibit 5). Pursuant to that order, the judgment against Debtors was assigned to Plaintiff, individually, pursuant to an Assignment dated November 29, 2014. (Plaintiff's Exhibit 6).
Debtors filed for Chapter 7 relief in this Court on February 24, 2020.
Plaintiff contends that her judgment is nondischargeable under 11 U.S.C. § 523(a)(4) and (6). Those Code provisions provide:
Plaintiff has the burden of proof by a preponderance of the evidence that the claim is non-dischargeable. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991).
Plaintiff also contends that the doctrine of collateral estoppel precludes Debtors from denying the nondischargeable nature of the judgment. The Eleventh Circuit Court of Appeals has held:
Collateral estoppel, or issue preclusion, bars relitigation of an issue previously decided in judicial or administrative proceedings if the party against whom the prior decision is asserted had a "full and fair opportunity" to litigate that issue in an earlier case. Allen McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308 (1980). Collateral estoppel principles apply to dischargeability proceedings. Grogan v. Garner, 498 U.S. 279, 285 n.11, 111 S.Ct. 654, 658 n.11, 112 L.Ed.2d 755 (1991). If the prior judgment was rendered by a state court, then the collateral estoppel law of that state must be applied to determine the judgment's preclusive effect. In re Touchstone, 149 B.R. 721, 725 (Bankr. S.D. Fla. 1993).
St. Laurent v. Ambrose (In re St. Laurent), 991 F.2d 672, 675-76 (11th Cir. 1993).
Since the judgment in question was entered by the Probate Court in Ohio, this Court will apply that state's version of collateral estoppel.
In Ohio, the doctrine of res judicata encompasses both issue preclusion, also known as collateral estoppel, and claim preclusion. State ex rel. Nickoli v. Erie MetroPark, 124 Ohio St. 3d 449, 2010-Ohio-606, 923 N.E.2d 588, ¶ 21. "'Claim preclusion prevents subsequent actions, by the same parties or their privies, based upon any claim arising out of a transaction that was the subject matter of a previous action.'" Nickoli at ¶ 21, quoting Ft. Frye Teachers Assn., OEA/NEA v. State Emp. Relations Bd., 81 Ohio St. 3d 392, 395, 692 N.E.2d 140 (1998). Under claim preclusion, a previousjudgment is conclusive as to all claims that were or might have been litigated in the first action. State ex rel. Schachter v. Ohio Pub. Emps. Retirement Bd., 121 Ohio St.3d 526, 2009-Ohio-1701, 905 N.E.2d 1210, ¶ 27. The doctrine of issue preclusion provides that "'a fact or a point that was actually and directly at issue in a previous action, and was passed upon and determined by a court of competent jurisdiction, may not be drawn into question in a subsequent action between the same parties or their privies, whether the cause of action in the two actions be identical or different.'" State ex rel. Davis v. Pub. Emps. Retirement Bd., 120 Ohio St.3d 386, 2008-Ohio-6254, 899 N.E. 2d 975, ¶ 27, quoting Ft. Frye Teachers Assn. at 395, 692 N.E.2d 140. Essentially, issue preclusion...
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