DEBTOR CASE NO. 90-01261





VS. ADV. NO. 90-0374






This matter is before the Court on the plaintiff's Motion for Summary Judgment that the defendant's debt to the plaintiff is non-dischargeable pursuant to 11 U.S.C. '523(a)(6). The plaintiff contends that there is no genuine issue as to any material fact. The defendant has not filed a response. This Court has jurisdiction of this matter pursuant to 28 U.S.C. '1334(b); it is a core proceeding pursuant to 28 U.S.C. '157(b)(2)(I).

It is uncontroverted that the plaintiff received a judgment against the defendant in Campbell Circuit Court on January 5, 1989, upon findings that the defendant had committed a battery against the plaintiff and that the battery was committed willfully, maliciously and without justification. The record reveals that "Question No. 3" posed to the jury was, "Do you find from the evidence that the battery by Michael Graves upon Michael Hunter was willful, malicious and without justification?" The answer given by the jury was "yes". The judgment was entered on January 11, 1989. The defendant made several post-trial motions, seeking to have the judgment set aside and challenging the award of punitive damages. The Campbell Circuit Court overruled the defendant's post-trial motions on February 15, 1989.

The defendant filed his bankruptcy petition in this Court on September 28, 1990. The debt to the plaintiff was the only debt the defendant sought to discharge. On December 17, 1990, the plaintiff initiated this proceeding by the filing of a Complaint, seeking to have his judgment excepted from discharge pursuant to 11 U.S.C. '523(a)(6). The defendant filed his Answer on January 17, 1991, maintaining as a defense that the judgment of the Campbell Circuit Court was not for willful or malicious injury. He also argued that the judgment was not based on the "clear and convincing" standard of evidence which, he contends, is required by 11 U.S.C. '523(a)(6).

The question before this Court is whether the defendant is precluded by the Campbell Circuit Court's finding of willful and malicious conduct from raising it as an issue herein. Issue preclusion or collateral estoppel may be employed in cases involving dischargeability questions if the precise issue was raised in the prior proceeding, if it was actually litigated, and if its determination was necessary to the outcome in state court. Spilman v. Harley, 656 F.2d 224 (6th Cir. 1981). See also In re Stiles, 118 B.R. 81 (Bkrtcy.W.D.Tenn. 1990); In re Harper, 117 B.R. 306 (Bkrtcy.N.D.Ohio 1990); Matter of Dine, 116 B.R. 101 (Bkrtcy.S.D.Ohio 1990). In the case at bar, the record indicates that these requirements were met.

The defendant has contended in his Answer that the clear and convincing evidence standard is required for a finding of non-dischargeability, a standard which he maintains was not employed in the state court action. The record does not indicate that the Campbell Circuit Court announced what the standard of evidence was. At any rate, the defendant's contention that clear and convincing evidence is required for a finding of non-dischargeability is not correct. As the Supreme Court observed in the recent case of Grogan v. Garner, 111 S.Ct. 654 (1991), neither '523, nor anything in its legislative history or the legislative history of its predecessor, prescribes a standard of proof. At 655. Courts have been split as to the appropriate standard in '523(a)(6) cases. The preponderance of evidence standard has generally been applied in Kentucky. In re Boren, 47 B.R. 293 (Bkrtcy.W.D.Ky. 1985); In re Stephens, 26 B.R. 389 (Bkrtcy.W.D.Ky. 1983); In re Tanner, 17 B.R. 201 (Bkrtcy.W.D.Ky 1982). Therefore, the standard of evidence employed by the Campbell Circuit Court does not affect this Court's application of collateral estoppel principles.

In consideration of all of the above, it is the opinion of this Court that the plaintiff has carried forward his burden of demonstrating pursuant to FRCP 56(c) that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. FRCP(e) requires that when a motion for summary judgment is made and supported, an adverse party must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not respond, summary judgment, if appropriate, shall be entered against the adverse party. The defendant not having responded to the plaintiff's Motion for Summary Judgment, said Motion should be SUSTAINED.


By the Court -






Copies to:

Gregory W. McDowell, Esq.

D. Michael Foellger, Esq.

Bernard Southgate, Esq.