In Re Larry Arnold Wall, Debtor.larry Arnold Wall, Appellant, v. Shirley Diane Wellema, Appellee, 108 F.3d 340 (9th Cir. 1997)

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U.S. Court of Appeals for the Ninth Circuit - 108 F.3d 340 (9th Cir. 1997) Submitted Feb. 18, 1997. *Decided Feb. 20, 1997

Before: ALARCN, CANBY, and TASHIMA, Circuit Judges.


MEMORANDUM** 

Larry Wall appeals pro se the district court's affirmance of the Bankruptcy Court's summary judgment for Shirley Wellema, the judgment creditor. Wall contends that the district court erred by finding that the state court judgment rendered against him for sexual battery against Wellema was not dischargeable pursuant to 11 U.S.C. § 523(a) (6). We have jurisdiction under 28 U.S.C. § 158(d), and we affirm for the reasons set forth in the district court's order filed April 28, 1995.

Wellema also requests damages in the amount of $6,350.00 pursuant to Fed. R. App. P. 38(a) for filing a frivolous appeal. Rule 38, however, only permits an award of damages "after a separately filed motion or notice from the court and reasonable opportunity to respond." See Fed. R. App. P. 38(a). Accordingly, Wellema's request for damages under Rule 38 is denied without prejudice. See Gabor v. Frazer, 78 F.3d 459, 460 (9th Cir. 1996) (denying Rule 38 motion made in appellate brief without prejudice, and allowing the requesting party to file a separate fee motion).

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a); 9th Cir.R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3