Opinion
Bankruptcy No. 2:12–bk–36407–TD. Adversary No. 2:12–ap–02406–TD.
2013-11-4
In re Justin Thomas CHLARSON, Debtor. Kendra Vorhies Flores, Plaintiff, v. Justin Thomas Chlarson, Defendant.
Tina M. Locklear, Law Offices of Tina Locklear, Irvine, CA, for Plaintiff. Justin Thomas Chlarson, pro se.
Tina M. Locklear, Law Offices of Tina Locklear, Irvine, CA, for Plaintiff. Justin Thomas Chlarson, pro se.
MEMORANDUM DECISION
THOMAS B. DONOVAN, Bankruptcy Judge.
This memorandum addresses Plaintiff's Motion for Summary Judgment (sometimes, Motion) brought in the above-captioned adversary proceeding pursuant to Federal Rule of Civil Procedure 56 as made applicable by Federal Rule of Bankruptcy Procedure 7056. The Motion is based on a judgment awarded to Plaintiff by the Superior Court of the State of Washington. The superior court judgment was based on an arbitrator's detailed findings and conclusions. The relevant history leading up to the superior court judgment is set forth below.
Plaintiff Kendra Vorhies Flores (Flores) sued Defendant Justin Thomas Chlarson (Chlarson) in the superior court in August 2011. Flores' complaint alleged, among other things, conversion, outrage, and malicious injury to an animal based on allegations of Chlarson's involvement in the death of Flores's cat. Chlarson filed an answer to the superior court complaint. The matter was sent to arbitration, both parties participated and testified, and on April 19, 2012, the arbitrator rendered written findings and conclusions. On April 20, 2012, the superior court entered judgment in Flores' favor based on the arbitrator's findings and conclusions and awarded Flores $25,460.00.
The complete arbitrator's decision is attached as Appendix A. The Judgment Summary and Order Granting Judgment on Award is attached as Appendix B.
On August 1, 2012, Chlarson filed a voluntary chapter 7 petition in this court. Flores timely filed this adversary proceeding on September 26, 2012, seeking nondischargeability of her $26,460 superior court judgment pursuant to 11 U.S.C. 523(a)(6). Flores' adversary complaint asserted that there was no appeal from the superior court judgment and that Chlarson's right to appeal expired on May 20, 2012. Thus, it appears that the April 20, 2012, superior court judgment is final.
All such references are to Title 11 of the United States Code unless otherwise indicated.
Chlarson did not file an answer or motion in response to Flores' adversary complaint. Attorney Thomas Allison, Chlarson's bankruptcy attorney, entered an appearance for Chlarson in connection with the first adversary status conference hearing on January 3, 2013, by signing a joint Status Conference Report on Chlarson's behalf and appearing for Chlarson at a status conference hearing on January 3, 2013. Chlarson's attorney later signed a Pretrial Stipulation filed on July 18, 2013, in the adversary. The parties' Pretrial Stipulation acknowledged that no issues of fact remained to be litigated. On September 4, 2013, Flores filed her Motion for Summary Judgment. Chlarson and his attorney were both properly served with Flores' Motion for Summary Judgment. Chlarson did not oppose Flores' Motion. Chlarson's attorney did not appear at the October 17, 2013 hearing on the motion. Based on the record and evidence before the court, the court grants the Motion and renders this court's findings of fact and conclusions of law, as follows:
Under the court's local rule 9013–1(h) Chlarson's failure to oppose the Motion is deemed to be his consent to the court granting the relief requested therein.
The court takes judicial notice of the arbitrator's written decision and the judgment from the superior court. Judicial notice is appropriate for records and “reports of administrative bodies.” See United States ex rel. Robinson v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992).
Summary judgment is appropriate here because “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. The arbitrator's findings and conclusions are entitled to preclusive effect in this adversary; they establish the elements necessary to support a judgment pursuant to § 523(a)(6) and no issues of material fact remain to be litigated. Grogan v. Garner, 498 U.S. 279, 284, 111 S.Ct. 654, 661, 112 L.Ed.2d 755 (1991) (finding that collateral estoppel principles apply in exception to discharge proceedings). Section 523(a)(6) states in relevant part, “(a) A discharge under section 727 ... of this title does not discharge an individual debtor from any debt ... (6) for willful and malicious injury by the debtor to another entity or to the property of another entity.”
Pursuant to 28 U.S.C. § 1738, as a matter of full faith and credit, federal courts are required to apply the pertinent state's collateral estoppel principles. Gayden v. Nourbakhsh (In re Nourbakhsh), 67 F.3d 798, 800 (9th Cir.1995).
The uncontroverted and undisputed facts of the arbitration decision establish both a willful and malicious injury. The arbitrator's detailed findings of fact were meticulous. Testimony was provided by Dr. Trish Roisum, DVM, which established blunt force trauma as the cat's cause of death resulting from broken ribs and severe injury to the diaphragm and thoracic wall. Dr. Roisum opined that the cause of these injuries was likely a kick; the injuries were consistent with a fast firm object that came into contact with the cat's lateral chest causing the ribs to fracture in two places and the diaphragm to tear. Dr. Roisum did not believe the injuries were caused by the cat falling off a bed or from a dog attack. In fact, Dr. Roisum's testimony refuted Chlarson's testimony that the latter two scenarios, or others asserted by Chlarson, could have been the cause of the cat's injuries.
Chlarson pled guilty to misdemeanor charges against him based on his involvement with the death of Flores's cat, but the arbitrator gave only minimal weight to this fact based on his assessment of the mitigating effects of a plea agreement entered into by Chlarson.
The arbitrator also noted that Chlarson was the only individual alone with the cat during the time the cat suffered its fatal injuries, the cat was an indoor cat, and the injuries occurred while the cat was inside the house with Chlarson. The arbitrator rejected Chlarson's argument that Flores may have caused the cat's injuries because Chlarson was the only person present with the cat when its injuries occurred.
Chlarson also admitted to sending Flores a text message threatening injury to the cat just before the cat was fatally injured. The arbitrator noted that the timing of Chlarson's message, Chlarson's admission that he shooed the cat off the bed and couch, and the testimony of the parties' marital difficulties, provided the requisite motive and explanation as to why it was more probable than not that Chlarson caused the cat's injuries.
Animal control officers Quinn and Berg provided testimony about their investigation into the cat's death. The arbitrator carefully analyzed their reports with respect to what occurred with the cat. Chlarson admitted to the officers that he was very angry with the cat and had shooed the cat off the bed. Chlarson admitted that he and Flores were the only individuals present at any time with the cat. The investigating officers rejected Chlarson's explanations of what could have caused the cat's injuries because those explanations were not consistent with the injuries the cat sustained.
The arbitrator rejected Chlarson's testimony that he merely shooed the cat off the bed. Weighing the evidence presented, the arbitrator determined that Chlarson likely scooped the cat off the bed with such strength and velocity that the cat struck a hard-edged object that caused the fatal injury. The arbitrator concluded that “based upon all the admissible evidence as a whole, there is a finding that the injury and death of the cat was directly due to an act by the defendant, Mr. Chlarson.”
After considering the possible inferences from the evidence before him, the arbitrator added:
... The amount of force applied to generate this severe injury to the cat and the volitional nature of the act itself of scooping or tossing the cat leads to the conclusion that such was a[n] intentional act by defendant as defined in legal terms. I conclude that such an act by defendant was intentional as opposed to pure negligence.
Based upon the preponderance of the evidence, I find for the plaintiff with regard to the causes of action for conversion, for outrage, and for malicious injury to an animal. Conversion was due to the willful deprivation of the chattel by the act of defendant. Outrage [was] due to the intentional and reckless act of the defendant. I also find that plaintiff has met her burden to show that such intentional act amounted to malicious injury to an animal due to the legally intentional act and evidence that the defendant was aware of plaintiff's long standing ownership and relationship to the cat, his threat in the text message, and his frustration with regard to plaintiff's reluctance to end [their] marriage [to each other].
The arbitrator carefully explained and then awarded damages for the intrinsic value of the cat in the amount of $15,000 and $10,000 for emotional damages. Attorney's fees and statutory costs also were awarded. The judgment includes accruing interest.
The arbitrator's recitation of the evidence, the legal issues and his award are thorough, clear, logical and appear to bring the superior court judgment within the requirements for nondischargeability in bankruptcy pursuant to § 523(a)(6). These findings of fact and conclusions of law are sufficient under the Ninth Circuit standards for nondischargeability pursuant to § 523(a)(6). Under § 523(a)(6), this means that for nondischargeability debtor's actions equated with “willful and malicious” injury.
The first question under § 523(a)(6) is whether there is “willful” injury, which must entail a deliberate or intentional injury. Kawaauhau v. Geiger, 523 U.S. 57, 61–62, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). In the Ninth Circuit, the intent required to be considered “willful” is either the subjective intent of the actor to cause harm or the subjective knowledge of the actor that harm is substantially certain to occur. Carrillo v. Su (In re Su), 290 F.3d 1140, 1144–45 (9th Cir.2002).
Chlarson's intentional and deliberate act as established in the arbitration decision was an intentional act as defined by Geiger and Su. The decision concluded that Chlarson did not engage in a negligent act. Rather, the arbitrator concluded, “The amount of force applied to generate this severe injury to the cat and the volitional nature of the act itself of scooping or tossing the cat leads to the conclusion that such was an intentional act....” This constitutes a willful injury as defined by § 523(a)(6); it is fair to infer from the arbitrator's decision that Chlarson had the subjective intent to cause harm to the cat and Flores and/or the subjective knowledge that harm was substantially certain to occur based on his intentional actions in shooing or tossing the cat with a significant amount of force.
The second step in the 523(a)(6) inquiry is whether Debtor's conduct was “malicious.” The relevant test for finding “malicious” conduct is whether the evidence establishes: “(1) a wrongful act; (2) done intentionally; (3) which necessarily causes injury; and (4) is done without just cause and excuse.” Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1106 (9th Cir.2005). The Supreme Court has stated that when a wrongful act is voluntarily committed, with knowledge that the act is wrongful and will necessarily cause injury, it constitutes a willful and malicious injury within the meaning of § 523(a)(6). See Petralia v. Jercich (In re Jercich), 238 F.3d 1202, 1208 (9th Cir.2001).
The elements for malicious injury under § 523(a)(6) also were established in the arbitration decision. The evidence persuaded the arbitrator that Chlarson committed wrongful acts of conversion, outrage and malicious injury to an animal. In committing these wrongful acts, the arbitrator found that Chlarson committed “intentional act[s],” which “amounted to malicious injury” to the cat. The arbitrator's decision supports a conclusion here that this malicious injury was done without justification or excuse. The arbitrator rejected Chlarson's exculpatory testimony with respect to his actions. The arbitrator's decision also carefully establishes the maliciousness of the injuries and damages suffered by Flores. Thus, the Ninth Circuit standards for a malicious injury are satisfied.
Based on the foregoing analysis, this court concludes that summary judgment is warranted because the arbitration decision, as confirmed in the superior court judgment, obviates the need for any further litigation of the matter. As discussed, (1) the issues of willful and malicious injury in this adversary proceeding are identical to those litigated in the superior court, (2) they were actually litigated and necessarily decided there, (3) the parties are the same, and (4) the superior court judgment is final. Moreover, giving preclusive effect to the superior court judgment is fair and furthers the public policies underlying the doctrine, including judicial economy and conservation of the court's time and resources.
Under Washington law, for collateral estoppel to apply, the party seeking application of the doctrine must establish that (1) the issue decided in the earlier proceeding was identical to the issue presented in the later proceeding, (2) the earlier proceeding ended in a judgment on the merits, (3) the party against whom collateral estoppel is asserted was a party to, or in privity with a party to, the earlier proceeding, and (4) application of collateral estoppel does not work an injustice on the party against whom it is applied. Christensen v. Grant Cnty. Hosp. Dist. No. 1, 152 Wash.2d 299, 307, 96 P.3d 957 (2004)
Chlarson's debt is nondischargeable pursuant to § 523(a)(6).
IT IS SO ORDERED.
APPENDIX A
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APPENDIX B
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