IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-30850
Summary Calendar
IN RE: DAVID ALAN DELANEY,
Debtor.
DAVID ALAN DELANEY,
Appellee,
versus
DANNY CORLEY, JR., a/k/a BO CORLEY,
Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
(CA-94-1550)
December 21, 1995
Before HIGGINBOTHAM, DUHÉ, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*
Danny Corley appeals from the United States District Court's
judgment reversing the decision of the United States Bankruptcy
Court and remanding for further proceedings.
I.
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
On the evening of September 24, 1986, David Delaney shot Danny
Corley. In the ensuing state court tort action, the state court
rendered judgment in favor of Corley and awarded $1.4 million in
damages. The Louisiana Court of Appeals modified the judgment,
increasing the percentage of fault assigned to Delaney from 50% to
80%. See Corley v. Delaney, 629 So.2d 1255 (La. Ct. App. 1993),
writ denied, 637 So.2d 156 (La. 1994).
After the state trial court rendered its judgment, Delaney
filed for bankruptcy protection in the United States Bankruptcy
Court for the Western District of Louisiana on October 9, 1992. On
January 12, 1993, Corley filed his Creditor's Complaint to
Determine Dischargeability, seeking a declaration that the state
court judgment was non-dischargeable under 11 U.S.C. § 523(a)(6).
11 U.S.C. § 523(a)(6) exempts from discharge any debt "for willful
and malicious injury by the debtor to another entity or to the
property of another entity."
The bankruptcy court rendered judgment for Corley, concluding
that the "debtor clearly committed willful and malicious acts
against the plaintiff." To support its conclusion, the bankruptcy
court reasoned:
It is beyond peradventure that loading a twelve gauge,
double barreled, sawed-off shotgun and pointing it toward
the face of another unarmed person or against a
windshield just beyond the face is wrongful and without
just cause. The facts also support a finding that the
acts were deliberate, intentional and led to the
plaintiff's injuries. The debtor systematically went to
his room and loaded the gun. He briefly put it down when
reprimanded by his father. Even after his father advised
him to relinquish it, he again picked up the weapon, put
his finger on the trigger and headed outside to confront
the plaintiff.
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On appeal, the district court reversed the judgment of the
bankruptcy court and remanded the case for further proceedings.
The district court reasoned:
We have no quarrel with the conclusions that the loading
and pointing were intentional acts. But the factual
findings do not address or evaluate the damage causing
activity, viz: the discharge of the gun upon Delaney's
tapping on the windshield. But for that act, no damage
could have occurred. The shot gun must discharge to
produce the injury suffered by Mr. Corley.
Our reading of the record leads to a finding that
the weapon discharge was inadvertent, unintended, and
totally accidental. We are driven to that conclusion for
many reasons, including the trial testimony of David
Delaney at page 322; the trial testimony of William
Meyers at page 51; and the deposition testimony of the
victim himself at pages 34, 42, and 60. We are
particularly interested in the victim's assertion that
Mr. Delaney "tapped twice to get my attention, I guess to
get my attention." page 60.
Thus, we are left with the inescapable conclusion
that there is no finding of fact to support the decision
that the damage causing act of Mr. Delaney was willful
and malicious. Hence, the decision of the bankruptcy
court is reversed. This matter is returned to the
bankruptcy court for further action not inconsistent with
this opinion.
This timely appeal followed.
II.
Decisions entered by a district court sitting in bankruptcy
are not appealable to the court of appeals unless they are final.
28 U.S.C. § 158(d); In re Aegis Specialty Marketing Inc. of
Alabama, 68 F.3d 919, 921 (5th Cir. 1995). "[W]here a district
court's remand entails significant further proceedings, such as
additional fact-finding, then the order should not be considered
final." Id.; see also In re Harrington, 992 F.2d 3, 6 (1st Cir.
1993) (holding that district court order remanding a case for
further proceedings is not final unless the district court order
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"resolves all procedural and substantive issues necessary to
conclude the entire appeal").
In this case, the district court's order remanding the case to
the bankruptcy court entails significant further proceedings that
render the district court's order non-final. Although the district
court found, on its review of the record as it stood, that "the
weapon discharge was inadvertent, unintended, and totally
accidental," the district court did not rule out the possibility
that the bankruptcy court would reopen the proceedings to consider
additional evidence on remand. Given this possibility of
additional fact-finding, we are not persuaded that the district
court opinion "resolves all procedural and substantive issues
necessary to conclude" this litigation.
Appeal DISMISSED.
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