Cagney v. Smith (In Re Cagney)

FILED
NOT FOR PUBLICATION JAN 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
In re: THOMAS M. CAGNEY, No. 11-60009
Debtor. BAP No. 10-1035
THOMAS M. CAGNEY, MEMORANDUM *
Appellant,
v.
ANDREA J. SMITH,
Appellee.
Appeal from the Ninth Circuit
Bankruptcy Appellate Panel
Pappas, Jury, and Bauer, Bankruptcy Judges, Presiding
Submitted January 17, 2012 **
Before: LEAVY, TALLMAN, and CALLAHAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Thomas M. Cagney appeals pro se from the Bankruptcy Appellate Panel’s
(“BAP”) judgment affirming the bankruptcy court’s order determining that an
Arizona state court civil judgment owed to Andrea J. Smith was nondischargeable
debt. We have jurisdiction under 28 U.S.C. § 158(d). We independently review
decisions of the BAP, and review de novo the bankruptcy court’s conclusions of
law and for clear error its findings of fact, Wickland Oil Co. v. Official Creditors’
Comm. (In re Wolverton Assocs.), 909 F.2d 1286, 1292 (9th Cir. 1990), and we
affirm.
The bankruptcy court did not clearly err in finding that Cagney assaulted
Smith with a shotgun given the evidence in the record, including Cagney’s guilty
plea to aggravated assault with a deadly weapon. See id. (bankruptcy court’s
factual findings should be affirmed unless, after reviewing all the evidence, there is
a “definite and firm conviction that a mistake has been committed” (citation
omitted)). Accordingly, the bankruptcy court properly determined that the debt to
Smith resulting from the aggravated assault was nondischargeable. See 11 U.S.C.
§ 523(a)(6) (debts obtained for willful and malicious injury by the debtor to
another entity are nondischargeable); Ariz. Rev. Stat. §13-1203(A)(2) (“A person
commits assault by . . . [i]ntentionally placing another person in reasonable
2 11-60009
apprehension of imminent physical injury.”); id. § 13-1204 (A)(2) (providing that a
person commits aggravated assault if “the person uses a deadly weapon or
dangerous instrument”).
Cagney’s remaining contentions are unpersuasive.
Cagney’s motion to file a late reply brief is granted.
AFFIRMED.
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