United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2387

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In Re: David R. Swimmer, *

*

Debtor. *

*

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*

David R. Swimmer, * Appeal from the United States 

* District Court for the Eastern

Plaintiff - Appellant, * District of Missouri.

*

v. * [UNPUBLISHED]

*

Catherine V. Manzonelli, *

*

Defendant - Appellee. *

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Submitted: January 14, 1998

Filed: August 13, 1998 

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Before LOKEN, FLOYD R. GIBSON, and MURPHY, Circuit Judges.

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PER CURIAM.

In this case, the bankruptcy court entered a judgment against appellant David R.

Swimmer awarding Catherine Manzonelli and her minor children, Brandon and

Alexandra Manzonelli, $21,592.18 in compensatory damages and $30,000 in punitive

damages. The bankruptcy court also ruled that Swimmer's debt to the Manzonellis was
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nondischargeable. See 11 U.S.C. § 523(a)(2) and (4) (1994). The district court

affirmed the bankruptcy court's judgment. Swimmer appeals, and we affirm.

I. BACKGROUND

On October 8, 1991, Manzonelli contacted Swimmer, a licensed Missouri

attorney, to represent her in a wrongful death action arising out of the July 1991 death

of her husband. Swimmer agreed to represent Manzonelli in the wrongful death action

and also agreed to assist her in obtaining disputed life insurance proceeds relating to

her husband's death. Manzonelli signed an Attorney's Employment Contract, which

summarized the services Swimmer would provide. Sometime after Manzonelli signed

the contract, Swimmer unilaterally altered the contract in an attempt to collect attorneys

fees from all life insurance proceeds, rather than from only the policies which were in

dispute. Swimmer subsequently filed an attorney's lien on all life insurance proceeds,

some of which were undisputed and were to be paid to the benefit of the children. 

Manzonelli did not learn of the modified contract until she received a copy from

the insurance company. Swimmer refused Manzonelli's requests to release his liens on

the insurance policies. Swimmer contends that he agreed to release the lien in April of

1992, and then again in September 1992, but only in exchange for expenses incurred

in the representation. Manzonelli apparently refused these offers.

On November 9, 1992, Swimmer filed a Chapter 7 bankruptcy petition. On

December 10, 1992, the bankruptcy court dismissed Swimmer's case, and Manzonelli,

as a listed creditor, received notice of that dismissal. Swimmer successfully moved the

bankruptcy court to reopen his Chapter 7 proceedings, but failed to notify all creditors

and interested parties of the reopened proceeding, despite an order of the bankruptcy

court that he do so.
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After learning that the bankruptcy proceeding had been reopened, Manzonelli

filed an adversary complaint seeking a judgment requiring Swimmer to release his liens

and a determination that any damages Swimmer owed to her were nondischargeable.

Swimmer filed an answer on July 13, 1993. The court mailed a summons and notice

of a pretrial conference set for July 22, 1993 to Swimmer and his attorney at their

shared Clayton law office. However, neither Swimmer nor his attorney appeared at the

pretrial conference.

Manzonelli requested a default order from the court. The court, under the

mistaken belief that Swimmer had not filed an answer, granted the default judgment.

When the court notified Swimmer of the default judgment, he filed a motion for

reconsideration. On August 18, 1993, upon recognizing that Swimmer had filed an

answer, the bankruptcy court set aside the default order. On the same day, the court

entered an order scheduling pretrial deadlines and setting trial for November 15, 1993.

These orders were mailed to Swimmer and his attorney at their shared office.

On November 15, neither Swimmer nor his attorney appeared for trial. The

court, sitting without a jury, declined to enter a default judgment because Swimmer had

filed an answer. The court received evidence from Manzonelli, which included

testimony and documentary evidence. The court found that Swimmer's actions were

willful and malicious and ordered compensatory damages in the amount of $21,592.18,

in addition to four percent interest on the life insurance proceeds from February 20,

1992, until the date Swimmer released the liens on said proceeds. The bankruptcy

court also awarded punitive damages totaling $30,000. The court made these awards

nondischargeable pursuant to 11 U.S.C. § 523(a)(2) and (a)(4).

The court mailed the judgment to Swimmer and his attorney at their law office

on May 13, 1996. Swimmer, through new counsel, filed a motion for reconsideration

on May 23, 1996, which was denied. In support of his motion, both Swimmer and his

former counsel submitted affidavits stating that they had not received notice of the
The HONORABLE DAVID P. McDONALD, United States Bankruptcy Judge 1

for the Eastern District of Missouri.

The HONORABLE CATHERINE D. PERRY, United States District Judge for 2

the Eastern District of Missouri.

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November 15, 1993 trial date. The bankruptcy court denied Swimmer's motion for

1

reconsideration. Swimmer appealed to the district court, which affirmed the

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bankruptcy court's judgment. Swimmer now appeals to this court, and we affirm.

II. DISCUSSION

We apply the same standards of review to the bankruptcy court's orders as the

district court. We review findings of fact for clear error and conclusions of law de

novo. See Wegner v. Grunewaldt, 821 F.2d 1317, 1320 (8th Cir. 1987). 

Swimmer contends that the bankruptcy court erred in refusing to set aside the

"default" judgment because he did not receive three days' written notice before the

hearing, see Fed. R. Civ. P. 55(b)(2), and because he set forth good and meritorious

defenses in his motion for reconsideration, see Fed. R. Civ. P. 55(c). However, the

bankruptcy court did not enter a default judgment against Swimmer. Rather, the court

entered a judgment in favor of Manzonelli following a trial on the merits. The

bankruptcy judge specifically stated that Swimmer was "not in a default posture

because he did file an answer." Swimmer's App. at 86-87. Because the bankruptcy

court did not enter a default judgment, Swimmer's Rule 55 arguments are without merit.

Swimmer claims that the bankruptcy court should have set aside the judgment

because Swimmer did not receive notice of the November 15, 1993 trial date.

Swimmer filed affidavits to establish that he did not receive such notice. We conclude

that the bankruptcy judge did not clearly err by refusing to credit Swimmer's affidavits.

The bankruptcy judge's docket sheet demonstrates that Swimmer had a history of
Because we conclude that Swimmer's debts are nondischargeable under section 3

523(a)(4), we do not discuss nondischargeability under section 523(a)(2).

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disregarding court-ordered deadlines and delaying proceedings. Throughout the early

years of these proceedings, up to and including the trial date, Swimmer had been served

at the same address, his office at 7777 Bonhomme Avenue in Clayton, Missouri, which

was also the address of his attorney. Swimmer admits that he received some notices

at this address but claims he did not receive others. Swimmer claims that he did not

receive the notice setting the trial date, but fails to explain how he became aware of the

outcome of the motion to set aside default, which was mailed the same day. The

bankruptcy judge's finding that Swimmer's and his counsel's affidavits were not credible

is fully supported by the evidence and is not clearly erroneous.

Swimmer also argues that the bankruptcy court's award of punitive damages in

favor of Brandon and Alexandria Manzonelli was in error because neither of the

children were named parties in the dispute. We do not address the merits of this

argument because Swimmer did not properly raise the argument in the bankruptcy

court. See Exec Tech Partners v. Resolution Trust Corp. (In re: Exec Tech Partners),

107 F.3d 677, 681 (8th Cir. 1997). Furthermore, Swimmer has abandoned this issue

because he has not conformed with the appropriate briefing standards. See Fed. R.

App. P. 28(a)(6) ("The argument must contain the contentions of the appellant on the

issues presented, and the reasons therefor, with citations to the authorities, statutes, and

parts of the record relied on."); United States v. Gonzalez, 90 F.3d 1363, 1369-70 (8th

Cir. 1996).

Finally, Swimmer contends that the record as a whole does not support an award

of punitive damages or a determination that his debts to the Manzonellis are

nondischargeable. We disagree. The bankruptcy court correctly determined that

Swimmer's conduct justified an award of punitive damages under Missouri law and a

determination that his debts were nondischargeable under 11 U.S.C. § 523(a)(4).3
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Under Missouri law, "'[p]unitive damages may be awarded for conduct that is

outrageous, because of the defendant's evil motive or reckless indifference to the rights

of others.'" Burnett v. Griffith, 769 S.W.2d 780, 789 (Mo. 1989) (quoting Restatement

(Second) of Torts § 908(2) (1979)). We agree with the bankruptcy court's conclusion

that Swimmer's conduct rose to a level which justified an award of punitive damages.

Swimmer, who had been hired by Manzonelli to represent her best interests,

unilaterally altered his Attorney Employment Contract to increase the payment he

would receive. Following this inappropriate action, Swimmer refused to release his illbegotten liens on the undisputed insurance policies. Thus, the award of punitive

damages was appropriate under Missouri law.

We also conclude that the bankruptcy court properly determined that Swimmer's

debts to the Manzonellis were nondischargeable under 11 U.S.C. § 523(a)(4).

Swimmer, as Manzonelli's attorney, was acting in a fiduciary capacity. See Tudor

Oaks Ltd. Partnership v. Cochrane (In re: Cochrane), 124 F.3d 978, 984 (8th Cir.

1997), cert. denied, 118 S. Ct. 1044 (1998). Swimmer's actions of altering the contract

and placing a lien on all of the undisputed insurance proceeds payable to Manzonelli

and her children was sufficient to establish fraud or defalcation under 11 U.S.C. §

523(a)(4). See id.

III. CONCLUSION

For the reasons set forth in the above opinion, we affirm the bankruptcy court's

judgment.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.