14-1422-bk
Andrews v. McCarron

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A
SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH
THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
11th day of February, two thousand and fifteen.


Present:
            BARRINGTON D. PARKER,
            PETER W. HALL,
            DEBRA ANN LIVINGSTON,
                        Circuit Judges,
____________________________________________________

VINCENT S. ANDREWS, ROBERT L. ANDREWS,

                      Debtors-Appellants,

               v.                                                           No. 14-1422-bk

CHRISTOPHER MCCARRON, LAFFIT PINCAY, JR.,

                  Creditors-Appellees.
____________________________________________________

For Appellants:       RICHARD E. WEILL (Robert Silver, Stuart H. Singer, and
                      William T. Dzurilla, on the brief), Boies, Schiller & Flexner LLP
                      New York, New York.

For Appellees:    IRVE J. GOLDMAN, Pullman & Comley LLC, Bridgeport, Connecticut.
____________________________________________________

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       Appeal from a judgment of the United States District Court for the District of

Connecticut (Thompson, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Debtors-Appellants Vincent and Robert Andrews appeal from a final judgment entered

in favor of the Creditors-Appellees by the District Court affirming a Bankruptcy Court order that

determined a Central District of California judgment against the Appellants was non-

dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A). Relying on its analysis of the California

action, the Bankruptcy Court ruled that Appellants were collaterally estopped from relitigating

whether their conduct underlying the judgment against them constituted fraud. We assume the

parties‟ familiarity with the facts, the procedural history, and the issues raised in this appeal.

       Our review “of an order of a district court issued in its capacity as an appellate court is

plenary.” In re DeTrano, 326 F.3d 319, 321 (2d Cir. 2003) (citing In re Manville Forest Prods.

Corp., 896 F.2d 1384, 1388 (2d Cir.1990)). We therefore review a bankruptcy court‟s findings of

fact for clear error and its conclusions of law de novo. Id. Relitigation of an issue of fact or law

may be precluded on the basis of collateral estoppel only if that issue was raised in a previous

proceeding in which the issue was “actually litigated and decided.” Purdy v. Zeldes, 337 F.3d

253, 258 (2d Cir. 2003). “If an issue was not actually decided in [a] prior proceeding, or if its

resolution was not necessary to the judgment, its litigation in a subsequent proceeding is not

barred by collateral estoppel.” Postlewaite v. McGraw-Hill, 333 F.3d 42, 48 (2d Cir. 2003). The

party seeking preclusion “„bears the burden of showing with clarity and certainty what was

determined by the prior judgment.‟” Id. at 49 (quoting BBS Norwalk One, Inc. v. Raccolta, Inc.,

117 F.3d 674, 677 (2d Cir. 1997)) (emphasis omitted).



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       Appellants contend that they are not collaterally estopped by the California action from

litigating whether their conduct giving rise to the judgment against them constituted fraud under

§ 523(a)(2)(A). Specifically, they argue that the element of justifiable reliance was decided under

a different standard in the California action than the standard Appellees are required to meet

under § 523(a)(2)(A) for the debt to be non-dischargeable in bankruptcy.

       In Field v. Mans, 516 U.S. 59 (1995), the Supreme Court resolved a conflict among the

circuits regarding the level of reliance § 523(a)(2)(A) requires a creditor to demonstrate in order

for a debt to be non-dischargeable on the basis that it was procured by fraud. The Court looked to

the common law for guidance and, in so doing, parsed the differences between reasonable and

justifiable reliance. The Court explained that “[j]ustification is a matter of the qualities and

characteristics of the particular plaintiff, and the circumstances of the particular case,” id. at 71

(quoting Restatement (Second) of Torts § 545A, Comment b (1976)), and ultimately held that

“justifiable, but not reasonable, reliance” was required. Id. at 74-75.

       The jury in the California action was instructed that justifiable reliance was an element

required to be proven with respect to Appellees‟ state law intentional misrepresentation claims.

The instruction stated:

               A party claiming to have been defrauded by a false representation
               must not only have acted in reliance thereon but must have been
               justified in such reliance, that is, the situation must have been such
               as to make it reasonable for him, in the light of the circumstance
               and his intelligence, experience and knowledge, to accept the
               representation without making an independent inquiry or
               investigation.

J.A. 934. This instruction fully comports with the standard of justifiable reliance required to

prove common law fraud and thus satisfies that element of § 523(a)(2)(A). In fact, this

instruction went beyond what § 523(a)(2)(A) demands, since it required the jury also to consider



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the reasonableness of Appellees‟ reliance—a factor the Court expressly rejected in Field when it

articulated the less rigid standard of justifiable reliance. The language in the Field opinion

describing a person‟s duty “to use his senses,” and to take a “cursory glance,” 516 U.S. at 71,

does not alter the common law meaning of justifiable reliance as Appellants contend. Nor does

the Court‟s use of that language formally graft a new requirement onto § 523(a)(2)(A).

        To the extent that Appellants argue that the relevant facts were not considered in the

California action, that claim, too, falls short. Appellants introduced the disclosure statements as

evidence. Appellees admitted to receiving and signing those disclosures without reading them.

Furthermore, the court drew the jury‟s attention to the disclosure statements immediately after

issuing its instruction on justifiable reliance.

        Appellants‟ argument as to fiduciary fraud is similarly unpersuasive. The jury instruction

upon which that argument relies was separated from the justifiable reliance charge by twelve

pages of instructions, and was unmistakably limited to the Appellants‟ statute of limitations

defense.

        Because the issue of justifiable reliance within the meaning of 11 U.S.C. § 523(a)(2)(A)

was identical to the issue that was fully and fairly litigated in the California action, Appellants

are collaterally estopped from relitigating whether the judgment debt was procured by fraud, and

that debt is therefore non-dischargeable.

        We have considered the Appellants‟ remaining arguments and find them to be without

merit. Accordingly, the judgment of the district court is AFFIRMED.

                                                       FOR THE COURT:
                                                       Catherine O‟Hagan Wolfe, Clerk




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