October 11, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1151
MARTIN JAMES MALONEY, DEBTOR,
Appellant,
v.
SARA CONVERSE, f/k/a SARA MALONEY AND GERARD KELLEY,
Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Chief Judge,
Boudin and Lynch, Circuit Judges.
Martin J. Maloney on brief pro se.
Richard S. Emerson, Jr. and Childs, Emerson, Rundlett, Fifield &
Childs on brief for appellee Sara Converse.
Per Curiam. Pro se debtor Martin James Maloney appeals
a district court order that affirmed a bankruptcy court
decision which held that a $400,000 civil judgment against
Maloney was not dischargeable under 11 U.S.C. 523(a)(6).1
1
We affirm.
The record discloses that after a bench trial, a Maine
superior court awarded the foregoing judgment to Maloney's
ex-wife, appellee Sara Converse, in a civil action for
assault and intentional infliction of emotional distress. The
bankruptcy court concluded that the Maine superior court
decision underlying the civil judgment collaterally estopped
Maloney from relitigating whether his conduct in assaulting
appellee after murdering her male companion was "willful and
malicious" within the meaning of 523(a)(6).2 The superior
2
court issued a four page decision which detailed its findings
of fact and conclusions of law, which we will not recount
here. For our purposes it is sufficient to note that the
superior court specifically found that Maloney had committed
a "vicious assault" that was "unmistakably calculated to
cause great anguish" to appellee and that Maloney had spared
111 U.S.C. 523(a)(6) bars a debtor from obtaining a
1
discharge of any debt "for willful and malicious injury by
the debtor to another entity or to the property of another
entity."
2Maloney is presently serving a 30-year sentence for
2
murder and aggravated assault as a result of the events that
gave rise to the civil tort judgment.
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appellee's life in order to witness her anguish at the death
of her companion.3
3
Under both Maine and federal law, collateral estoppel
will bar a litigant from relitigating an issue if, in a prior
proceeding, the issue was: (1) actually litigated, (2)
determined by a valid, final judgment, and (3) the
determination is essential to the judgment. See Grogan v.
Garner, 498 U.S. 279, 284 (1991); Lundborg v. Phoenix
Leasing, Inc., 91 F.3d 265, 271 (1st Cir. 1996); Sevigny v.
Home Builders Assoc. of Maine, 429 A.2d 197, 201-02 (Me.
1981).4 We have no trouble concluding that the superior
4
court's findings established that Maloney's conduct was
deliberate, intentional, and therefore "willful" within the
meaning of 523(a)(6). See 3 Collier on Bankruptcy,
523.16[1], at 523-12 (citing H. R. Rep. No. 595, 95th Cong.,
1st Sess. 363 (1977); S. Rep. No. 989, 95th Cong. 2d Sess.
77-79 (1978)). These findings also establish that Maloney
3In addition, the superior court concluded that "there
3
could not be a clearer case of intentional infliction of
emotional distress."
4We recognize that authority indicates that, "[w]here the
4
issue previously litigated was litigated under state law, a
bankruptcy court will apply the law of collateral estoppel of
the relevant state." See 3 Roy Babitt, et al., Collier on
Bankruptcy, 523.05D, at 523-20 (Lawrence King ed., 15th ed.
1996)(collecting cases); In re McNallen, 62 F.3d 619, 624
(4th Cir. 1995). But see Wood v. Dealers Financial Services,
B.R. , No. 95-40447, 1996 WESTLAW 434430 (E.D. Mich.
July 31, 1996)(stating contrary view). As the principles of
collateral estoppel are the same under Maine law and federal
law, we need not decide which controls.
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harbored a specific intent to injure appellee, therefore his
conduct was "malicious" under either the implied malice test
that this court has applied in the past, see In re Nance, 556
F.2d 602, 611 (1st Cir. 1977), or the specific and other
malice tests more recently employed by other courts, see
Piccuto v. Dwyer, 39 F.3d 37, 41 & n. 3 (1st Cir.
1994)(collecting cases). As the superior court's decision
established that Maloney's conduct was "willful and
malicious" within the meaning of 523(a)(6) and that the
other prerequisites for applying collateral estoppel are
present, the bankruptcy court properly held that Maloney is
barred from relitigating these issues now.
On appeal, Maloney argues that the bankruptcy court
erred by applying collateral estoppel without first reviewing
the transcript of his state trial. He contends that the
transcript would show that the issues of willfulness and
maliciousness were not fully and fairly litigated in state
court because his defense attorney failed to present an
adequate defense.5 As Maloney did not assert this particular
5
objection in the bankruptcy court, it is not properly before
us. See In re Menna, 16 F.3d 7, 9 n.2 (1st Cir. 1994). Even
if it were, Maloney would not prevail, for it was his burden
5Maloney specifically complains that his attorney waived
5
his right to trial by jury without his knowledge or consent
and failed to present evidence, which Maloney does not
describe.
-4-
to produce the transcript as the party resisting collateral
estoppel. See Van Houten v. Harco Const., Inc., 655 A.2d 331,
333-34 (Me. 1995); Hossler v. Barry, 403 A.2d 762, 769 (Me.
1979)(party resisting collateral estoppel has burden of
proving prejudice). As Maloney failed to submit the
transcript (indeed, the record suggests that he did not
attempt to secure it until after judgment was entered), he
failed to meet his burden of proof, and the entry of summary
judgment for appellee was proper. See In re Menna, 16 F.3d at
9 ("'[a]s to any essential factual element of its claim on
which the nonmovant would bear the burden of proof at trial,
its failure to come forward with sufficient evidence to
generate a trialworthy issue warrants summary judgment to the
moving party'"(citations omitted)).6 Maloney also claims
6
6We note that in the context of cases in which the precise
6
grounds of a prior state court judgment were unclear, some
circuits have required bankruptcy courts to review the entire
record of the state trial before applying collateral
estoppel. See, e.g., Wheeler v. Laudani, 783 F.2d 610, 615
(6th Cir. 1986); Spilman v. Harley, 656 F.2d 224, 228 (6th
Cir. 1981); Matter of Ross, 602 F.2d 604, 605-08 & n. 10 (3d
Cir. 1979). We do not think that such review is invariably
required where, as here, the portion of the record submitted
by the appellee makes out a prima facie case for applying
collateral estoppel. Cf. Combs v. Richardson, 838 F.2d 112,
113-17 (4th Cir. 1988)(applying collateral estoppel based on
review of jury instructions and verdict). Moreover, review
of the transcript was not necessary because even if Maloney's
assertion that defense counsel was inadequate is true, "the
general rule is that 'ignorance or carelessness of an
attorney' does not provide a basis for relief from the
effects of an adverse civil judgment." In re Braen, 900 F.2d
621, 629 (3d Cir. 1990) (citation omitted), cert. denied, 498
U.S. 1066 (1991).
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that the bankruptcy court denied him the right to submit the
transcript by issuing its ruling before the 60-day discovery
period that had been set by a pretrial scheduling order had
expired. The point is meritless, for the record discloses
that the discovery period expired on the day that the
bankruptcy court issued its decision. Moreover, this claim
has also been waived, for Maloney did not protest that he
required further time to complete discovery during the
hearing on appellee's motion for summary judgment. See In re
Cress, 106 B.R. 246, 248 (D. Kan. 1989), aff'd, 930 F.2d 32
(10th Cir. 1991)(TABLE)(debtors' failure to seek continuance
of summary judgment proceedings until further discovery was
completed barred debtors from complaining about incomplete
discovery on appeal). As both of Maloney's arguments on
appeal are meritless and the application of collateral
estoppel otherwise appears proper, the judgment of the
district court is affirmed.
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