## Facts

- In August 2003, Hilda Cristina Hermosilla (Cristina) filed for divorce after her husband, Alex Hermosilla (Alex), violently assaulted her.
- In February 2005, Alex filed a Chapter 7 bankruptcy petition.
- Cristina filed an adversary proceeding in the bankruptcy court seeking a determination that any damages stemming from the assault were nondischargeable as a debt for “willful and malicious injury” under 11 U.S.C. § 523(a)(6), even though her personal-injury claim had not yet been reduced to a civil judgment.
- In December 2005, while the bankruptcy adversary was pending, the Massachusetts Probate and Family Court entered a final divorce judgment. The judgment was later amended to state that Cristina “waived all claims which were or could have been brought” in the divorce proceeding.
- In the bankruptcy case, the parties submitted a joint statement of facts in which Alex admitted he intentionally struck Cristina and that she suffered physical injuries from the assault.
- In March 2010, the bankruptcy court proceeded with trial preparations on dischargeability. Cristina moved for summary judgment based on the stipulated facts and § 523(a)(6).
- Alex opposed summary judgment, arguing (among other things) that: (1) the bankruptcy court lacked jurisdiction because the personal-injury claim was unliquidated and not reduced to judgment; (2) the statute of limitations barred any tort claim; (3) the divorce stipulation waived the tort claim and/or res judicata applied; and (4) intent and injury remained disputed facts.
- The bankruptcy court rejected Alex’s arguments as contrary to the stipulations and settled bankruptcy law, granted summary judgment for Cristina on nondischargeability, and ordered Alex’s counsel to show cause regarding sanctions for advancing frivolous positions.
- Alex appealed to the U.S. District Court for the District of Massachusetts. He did not timely file the designation of the record and statement of issues required by Fed. R. Bankr. P. 8009. Cristina moved to strike/dismiss the appeal and sought fees and costs for defending a frivolous appeal.

## Issues

1. Whether the district court should dismiss the bankruptcy appeal because Alex failed to timely file the designation of record and statement of issues required by Fed. R. Bankr. P. 8009.
2. Whether Alex’s appeal was substantively meritless such that the bankruptcy court’s summary judgment ruling of nondischargeability under 11 U.S.C. § 523(a)(6) should be upheld.
3. Whether Alex and/or his counsel should be required to pay Cristina’s attorney’s fees and costs for a frivolous appeal under 28 U.S.C. § 1927 and the district court’s power to control abusive litigation conduct.

## Decision

- The district court granted Cristina’s motion to strike and dismissed the appeal because Alex failed to comply with Fed. R. Bankr. P. 8009 after extensions and delays.
- The district court also addressed the merits and concluded that, even absent the procedural default, the appeal failed:
  - Cristina’s unliquidated tort claim qualified as a “claim,” and Alex’s resulting liability qualified as a “debt,” even without a separate civil judgment.
  - The bankruptcy court had core jurisdiction to determine dischargeability under 28 U.S.C. § 157(b)(2)(I).
  - Alex’s statute-of-limitations and divorce-waiver/res judicata theories did not defeat the existence or dischargeability of the debt in these circumstances.
  - Summary judgment was proper because Alex’s asserted factual disputes about intent and injury contradicted the parties’ stipulated facts.
- The district court granted Cristina’s request for sanctions, finding the appeal frivolous and concluding that counsel had unreasonably and vexatiously multiplied the proceedings; it awarded Cristina reasonable attorney’s fees and costs incurred on appeal and sent the matter back for calculation of the amount.

## Legal Principles

- An appellant’s failure to timely file a designation of the record and statement of issues under Fed. R. Bankr. P. 8009 can justify dismissal of a bankruptcy appeal, particularly where delays persist after extensions and cause prejudice.
- For dischargeability purposes, the Bankruptcy Code defines “claim” broadly to include any “right to payment” whether or not reduced to judgment, liquidated, fixed, contingent, matured, unmatured, disputed, or undisputed. 11 U.S.C. § 101(5). A “debt” is “liability on a claim.” § 101(12).
- Bankruptcy courts may determine the dischargeability of unliquidated tort liabilities; dischargeability determinations are core proceedings under 28 U.S.C. § 157(b)(2)(I).
- Under 11 U.S.C. § 523(a)(6), a debt is nondischargeable when it arises from “willful and malicious injury,” which requires an actual intent to cause injury (not merely negligent or reckless conduct).
- A party cannot create a genuine dispute of material fact by contradicting facts to which the party stipulated; stipulations can support summary judgment when they establish the elements of § 523(a)(6).
- Divorce-judgment language stating that a spouse “waived all claims” in the divorce proceeding does not automatically extinguish a separate intentional-tort personal-injury claim, especially where the family court did not adjudicate that tort claim on the merits.
- A court may require an attorney to pay the opposing party’s excess costs, expenses, and attorney’s fees when the attorney unreasonably and vexatiously multiplies proceedings. 28 U.S.C. § 1927.

## Conclusion

Hermosilla v. Hermosilla held that Alex’s bankruptcy appeal was properly dismissed for failure to meet Rule 8009’s record-designation and issue-statement requirements, and that the appeal was also meritless because Cristina’s unliquidated assault-based claim was a “debt” and nondischargeable under § 523(a)(6) on stipulated facts showing intentional injury; the district court further awarded Cristina fees and costs as sanctions because the appeal needlessly prolonged the case.


Hermosilla v. Hermosilla, 447 B.R. 661 (2011)