
USCA1 Opinion

	




        October 11, 1996        [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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.                                         -2-            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.                                          -3-            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).                                            -5-            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.                              ________                                         -6-
