Charles E . Smith, J r . v . Mary Maynes CV-96-067-M 05/15/96 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Charles E . Smith, Jr., Appellant and Debtor,

v. Civil N o . 96-67-M

Mary E . Maynes, Appellee.

O R D E R The bankruptcy court (Yacos, J.) granted summary

judgment in favor of appellee, Mary E . Maynes, holding that a

$5000 debt owed to her by the appellant, Charles E . Smith, was

not dischargeable in bankruptcy. For the reasons discussed

below, the bankruptcy court's decision is affirmed.

I. STANDARD OF REVIEW

This court reviews de novo a bankruptcy court's order

granting summary judgment under Bankruptcy Rule 7056. Piccicuto

v . Dwyer,

7 , 40 (1st Cir. 1994). The district court is

obligated to independently determine whether the record supports

the legal conclusion that no genuine issues of material fact

exist for trial and whether, in light of the facts, the

prevailing party is indeed entitled to judgment as a matter of

law. The record is to be read, and all reasonable inferences are

to be drawn, in favor of the party opposing summary judgment.

Piccicuto,

0 ; In re Varrasso,

6 0 , 763 (1st

Cir. 1994). Having carefully considered the record and the parties' briefs on appeal, the court is convinced that the

bankruptcy court's decision is correct under the prevailing law.

II. DISCUSSION

Consistent with the standard of review outlined above, the facts relied upon herein are taken from the record and read in a

light most favorable to the appellant.

A. Factual and Procedural Background

The parties live next to one another and share a common

property line. On April 1 8 , 1993, appellant was cutting brush

and other vegetation along the common border and strayed over the

line onto appellee's property. Appellee saw him and informed him

that he was on her land. After some discussion, appellee gave

appellant permission to continue cutting dead trees and debris on

her land. Later, appellee noticed that appellant had cut down a

balsam fir tree that was alive and about sixteen feet tall. The

fir was on appellee's land. Apparently a heated discussion

ensued, and a local police officer was called to the scene.

Appellee subsequently brought suit against appellant in the

Lebanon, New Hampshire, District Court alleging that he had

unlawfully cut down a number of live trees on her property

without permission and in violation of the state timber trespass statute.

The case was tried to Judge Thomas A . Rappa, Jr., who issued

written findings on September 1 3 , 1993. Judge Rappa determined,

in relevant part: 1 2 . The Court finds that, even though it may be obvious to a trained arborist, after the fact, that both the cherry tree and the numerous hardwood saplings in dispute were live trees when cut, the plaintiff [appellee] has not met her burden of proof with respect to that aspect of her claim. In other words, with respect to those trees she has not shown the defendant [appellant] willfully acted beyond the scope of his understanding of their agreement.

1 3 . Specifically, the Court finds the[re] is sufficient ambiguity with respect to the scope of the understanding between the parties to deny the plaintiff recovery based on the defendant's position that he thought he had permission to cut those trees.

1 4 . However, when it comes to the Balsam fir the defendant [appellant] cannot benefit from the same ambiguity. Unlike the deciduous trees, the fir was unquestionably alive, even to the grossest amateur forester. As such the plaintiff is entitled to recover damages pursuant to the statute.

Maynes v . Smith, N o . 93-CV-00035, slip o p . at 3 (Lebanon Dist.

Ct., N.H. Sept. 1 3 , 1993) (emphasis added).

The state statute at issue in the state litigation, N.H.

Rev. Stat. Ann. ("RSA") § 539:1 (Supp. 1994) provides:

3 No person shall willfully and unlawfully cut, fell, destroy, injure or carry away any tree . . . which is on the land of another person, . . . without the permission of that person or his agent. The statute further provides for the payment of damages to the

injured landowner in the amount of 10 times the market value of every tree so cut. RSA 539:3-a. The New Hampshire Supreme Court

has interpreted the statute as imposing liability only for

knowing violations: "To subject a party to the penalty

provisions of RSA 539:1 (Supp. 1979) [the substantively identical

predecessor statute], it must appear that the act was done

knowingly and wilfully and not through accident or mistake."

Hynes v . Whitehouse,

1 7 , 420 (1980); see also Morrill

v . Webb,

(1983).

Based on the prior adjudication in state court, the

bankruptcy court determined that appellant was collaterally

estopped from denying in his bankruptcy proceeding that his act

in cutting down the balsam fir was "willful and malicious" within

the meaning of

(a)(6). Under section 523(a)(6),

an individual debtor is not discharged from any debt "for willful

and malicious injury by the debtor to another entity or to the

property of another entity." Giving preclusive effect to the

state court judgment, the bankruptcy court determined that

4 appellant's debt to appellee did arise from his willful and

malicious injury to appellee's property and, thus, was not

dischargeable.

B. Malicious Conduct

On appeal, appellant challenges the bankruptcy court's

construction of the term "malicious" as used in

(a)(6). He suggests that because a genuine issue of material

fact does exist - that i s , whether his cutting was "malicious"

within the meaning of the bankruptcy code - summary judgment

should not have been entered. Appellant does not contest the

fact that the state court previously determined that he cut down

appellee's fir tree, or that he intended to cut it down, or that

he acted "willfully" within the meaning of section 523(a)(6). He

only denies that the state court judgment necessarily determined

that his action was also "malicious" as that term is used in

section 523(a)(6).

Reviewing de novo the bankruptcy court's legal determination

regarding the preclusive effect of the prior state court

judgment, this court agrees that the state court's decision

constitutes a preclusive finding that appellant's act was

"willful and malicious" within the meaning of section 523(a)(6).

5 In his brief, appellant argues that the state court's finding that he cut the tree knowingly and willfully should not have been accorded any preclusive effect as to the "malicious" element of section 523(a). A finding of knowing and willful destruction of property, he contends, does not constitute a finding of malicious destruction of property within the meaning of the bankruptcy code. (Appellant Reply Br. at 1.)

Citing In re Tinkham,

(Bankr. D.N.H. 1986), appellant asserts that proper construction of the term

"malicious" requires appellee to show, or the state court to have found, that his cutting was a "deliberate act[] which he knew [was] certain or substantially certain to result in injury to property."

While a great deal has been written about the correct construction of the term "malicious" as used in section 523(a)(6), 1 the definition proposed by the bankruptcy court in

1 The Court of Appeals for the First Circuit has "not yet passed on this difficult and controversial issue." Piccicuto v . Dwyer,

7 , 41 n.3 (1st Cir. 1994). Nine other circuits have considered the issue, with varying results. See, e.g., In re Printy,

1 , 71 n.5 (Bankr. D. Mass. 1995) (collecting cases)("[T]here is no consensus as to whether the statute requires an intentional act that results in injury or an act committed with the intention of causing injury. [citations omitted] Indeed, among those courts that require an intentional act that results in injury there is disagreement as to whether the wrongful act must almost certainly produce harm or whether a high probability of causing harm suffices."). But, in this case, whether one construes the term "malicious" to cover wrongful acts

6 Tinkham and argued by the appellant is both appropriate and well

within the bounds of reasonable statutory construction. Under

that construction, which requires the appellant's conduct to be

deliberate and substantially certain to result in injury to

property, it is clear that the state court judgment constitutes a finding of "malicious" conduct under

(a)(6).

In the state litigation, the court unquestionably determined

that:

1 . Appellant was on appellee's land;

2 . He intentionally cut down a balsam fir tree on

her land knowing the tree belonged to her;

3 . He knew the fir tree was alive and knew that he did

not have the appellee's permission to cut i t ; and

4 . He cut the fir tree knowingly, willfully, and

unlawfully within the meaning of RSA 539:1. See Hynes,

.

Appellant cannot seriously argue that under those facts, already

determined against him in the prior litigation, he did not act

deliberately or did not know that his act was certain or

done with intent to injure, or wrongful acts that will almost certainly produce injury, or wrongful acts that have a high probability of causing injury, appellant's conduct, as found by the state court in the prior civil litigation, qualifies as "malicious" within the meaning of section 523(a)(6).

7 substantially certain to result in injury to appellee's property.

Appellant counters that "it would be entirely consistent

with [the state court's] judgment that [appellant] negligently,

but in good faith, believed the tree in question was on his own

property; or negligently, but in good faith believed the tree in

question to be dead. In short, the state court did not need to

reach the critical question of `malice,' and by all accounts did

not reach it." (Appellant Reply B r . at 4.) But the state court

judgment is entirely inconsistent with such postulates. Simple

negligent timber trespass is not sufficient to establish

liability under RSA 539:1 and RSA 539:3-a. Hynes,

. In finding appellant liable, the state court necessarily

determined that appellant knew he was on the land of another,

knew he was cutting a tree belonging to someone else, and knew

(because the tree was undeniably alive) that he did not have the

landowner's permission to do s o , but nevertheless went ahead and

intentionally destroyed the property. While not specifically

declared to be "malicious" by the state court, the conduct found

by the state court does, as a matter of law, constitute malicious

conduct within the meaning of that term as it is used in

(a)(6).

8 III. CONCLUSION

Because the findings of the state court constitute a finding

that appellant acted willfully and maliciously within the meaning

of

(a)(6), and because those findings must be

given preclusive effect in appellant's bankruptcy proceeding, the $5000 debt owed by appellant to appellee is not dischargeable as

a matter of law. Accordingly, the Order of the bankruptcy court

granting summary judgment in favor of appellee is hereby

affirmed.

SO ORDERED.

Steven J. McAuliffe United States District Judge May 1 5 , 1995 cc: William E . Connor, Esq. Donald C . Koury, Esq. Victor W . Dahar, Jr., Esq.

9