Case Law
Decision Date
02
Nov 2018
Name
IN RE: Brandon BURRIS, and Tisha Burris, Debtors. Jason Burris, Plaintiff, v. Brandon Burris, Defendant.
Attorney(s)
Brock Z. Pittman, Jeffrey E. Tate, Christensen Law Group, P.L.L.C., Oklahoma City, OK, for Plaintiff., Douglas M. Gierhart, Choctaw, OK, for Defendant., Sarah A. Hall, United States Bankruptcy Judge On October 1, 2018, plaintiff Jason Burris ("J Burris") filed his Plaintiff's Motion for Summary Judgment with Brief, and with Notice of Opportunity for Hearing [Doc. 21] (the "Motion"). In the Motion, J Burris requested entry of summary judgment against defendant Brandon Burris ("Defendant") on his claim under 11 U.S.C. § 523(a)(6) on the basis of either collateral estoppel and/or the undisputed facts. Defendant filed his Defendant's Response and Amended Counter-Motion for Summary Judgment with Notice of Opportunity for Hearing [Doc. 33] on October 29, 2018 (the "Cross-Motion"), objecting to entry of summary judgment and seeking summary judgment. The matter has been fully briefed., The parties to this adversary proceeding are siblings and only two of the many litigants involved in contentious and acrimonious probate litigation over their deceased father's estate. Here, J Burris seeks to except a state court judgment awarding him attorney fees against Defendant in the probate litigation from Defendant's discharge under Section 523(a)(6) for willful and malicious injury. Defendant, naturally, disputes that his actions were neither willful or malicious., As a result of procedural missteps by Defendant, the bulk of J Burris' "Material Facts" are undisputed and deemed admitted. A general denial without more cannot be used to avoid summary judgment. American Express Bank v. Mowdy (In re Mowdy ), 526 B.R. 63, 70 (Bankr. W.D. Okla. 2015) (citing Sartori v. Susan C. Little & Assoc. P.A., 571 F. App'x 677, 680 (10th Cir. 2014) (citing Pasternak v. Lear Petroleum Expl., Inc., 790 F.2d 828, 834 (10th Cir. 1986) ) ). "Under Rule 56, Fed. R. Civ. P. (as applicable pursuant to Fed. R. Bankr. P. 7056 ) and as well as the local rule, the non-moving party is required to controvert the material facts asserted by the moving party and to support that controversion with specific citation to the record consisting of pleadings, discovery, documents, affidavits and depositions. Bank of Cushing v. Vaughan (In re Vaughan ), 342 B.R. 385, 2006 WL 751388 (10th Cir. BAP 2006). General denials without support are not a competent controversion of material facts, and it is not incumbent upon the court to sift through the record for facts to support the controversion. Rather, it is the non-moving party's obligation to locate and direct the Court to those facts and their support in the record. Vaughan, 342 B.R. at 385." Mowdy, 526 B.R. at 71 ¶ 29, n.1., Defendant completely failed to support his denial of certain material facts alleged in J Burris' Motion that were properly supported by evidence in the record. Therefore, the material facts, taken directly from J Burris' Motion, as set forth below (with some modifications to remove irrelevant facts and/or inflammatory and emotionally-charged language), are deemed admitted for purposes of summary judgment and for purposes of trial.
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