FOR THE NORTHERN DISTRICT OF CALIFORNIA
SHARON LOWERY, No. 1-88-01411
DONALD LOWERY, No. 1-88-01410
NORMA HARVEY SPENCER, Executrix
of the Estate of A. J. Kryla,
v. A.P. No. 1-89-0009
BUTCH LOWERY and SHARON
Amended Memorandum of Decision
In February, 1988, Norma Spencer, as personal representative of the estate of Joseph Kryla,
deceased, obtained a judgment in a state court jury trial against defendants Donald and Sharon
Lowery in the amount of $164,804.85, which included $81,614.00 in punitive damages. This
action seeks to have that debt declared nondischargeable pursuant to section 523(a)(6) of the
In the state court trial, the jury returned detailed special findings. The jury found that the
defendants used undue influence to obtain property from the deceased, and that they converted
his property to their own use. The jury was given a special instruction that "[t]o establish the
plaintiff's right to punitive damages, the ordinary preponderance of the evidence test is not
sufficient. The plaintiff must prove the elements allowing an award of punitive damages by clear
and convincing evidence." The instruction went on to define "clear and convincing."
Based upon the jury findings, plaintiff has brought the instant motion for summary judgment.
Defendants have filed no declarations or other papers in opposition to the motion, aside from a
two-page brief arguing that the jury verdict is not a valid basis for summary judgment because
there was no specific finding of "wanton, malicious or fraudulent conduct" on the part of the
defendants and no apportionment of liability between them.
The jury was instructed that it could award punitive damages only if it found by clear and
convincing evidence that the defendants were guilty of oppression, fraud or malice. In the
instruction, each of those terms was defined. Those definitions were at least as demanding, if not
more so, than the standard for nondischargeable conduct established in In re Cecchini
Cir.1985) 772 F.2d 1493, 1496. Moreover, the fact that the jury returned the judgment against
both defendants indicates that they viewed both defendants as equally guilty. The Court therefore
sees no merit in defendants' arguments.
Defendants are correct in their argument that the state court judgment is not res judicata
action. Brown v. Felson
(1979) 442 U.S. 127. However, the findings of a trier of fact create a
rebuttable presumption as to any issues actually litigated and necessary to the state court judgment
under the doctrine of collateral estoppel. In re Houtman
(9th Cir.1978) 568 F.2d 651, 653.
Where a state court jury has been instructed that it may only award punitive damages on such
terms as would justify a finding of nondischargeable liability under section 523(a)(6) of the
Bankruptcy Code, summary judgment is properly granted in the subsequent dischargeability
proceeding. In re Mueller
(Bkrtcy. D.Colo.1983) 34 B.R. 869, 873.
Since the presumptions raised by the doctrine of collateral estoppel are rebuttable in this circuit,
a trial would be necessary if defendants had raised any triable issue in response to the motion.
However, the absence of even a single declaration leaves the prima facie
case established by the
jury verdict entirely unrebutted, and summary judgment in favor of the plaintiff is therefore proper.
Russell, Bankruptcy Evidence Manual
(West supp. 1989), section 7, p. 12. Plaintiff's motion will
accordingly be granted.
Counsel for plaintiff shall submit a form of order granting the motion for summary judgment
and a form of judgment.
Dated: June 22, 1989 _______________________