Opinion
Case No. 12-11079 Adversary No. 12-1079
10-03-2014
In Re JOHN YEAGER Debtor NICHOLAS WILMERS Plaintiff v. JOHN YEAGER Defendant
Chapter 7
DECISION FINDING DEBT NONDISCHARGEABLE PURSUANT TO 11 U.S.C. § 523(a)(6)
The plaintiff and the debtor were involved in a physical altercation on New Year's Eve in 2003 resulting in severe and permanent injury to the plaintiff's leg. Following a trial in state court, the debtor was held to be liable to the plaintiff for battery and the plaintiff was awarded a judgment in the amount of $420,000 for compensatory damages. The state court declined to award punitive damages.
The plaintiff commenced this adversary proceeding seeking a determination that the state court judgment is nondischargeable pursuant to 11 U.S.C. § 523(a)(6) for willful and malicious injuries caused by the debtor. Previously, the plaintiff moved for summary judgment asserting that the state court judgment preclusively established that the judgment debt arose from willful and malicious injuries caused by the debtor and is therefore excepted from discharge. Relying on the same judgment, the debtor filed a cross-motion for summary judgment asserting that the state court judgment preclusively established that his actions were not willful and malicious because the state court denied the plaintiff's request for punitive damages.
Unless otherwise indicated, the terms "Bankruptcy Code," "Section" and "§" refer to Title 11 of the United States Code, 11 U.S.C. § 101 et seq.
In the Memorandum Opinion Denying Motions for Summary Judgment entered on October 15, 2013 [Docket Number 22], this Court recognized that the state court judgment was binding on this Court with respect to the debtor's liability to the plaintiff for battery and the amount of damages awarded. This Court, however, concluded that the state court judgment was not entitled to preclusive effect on the elements of nondischargeability at issue in this case.
Specifically, this Court held that the state court judgment did not definitively establish that the debtor's actions were willful and malicious within the meaning of § 523(a)(6) because it was unclear whether the state court found that the debtor intended to cause injury to the plaintiff or rather that he merely intended the acts that led to the injury. This Court further held that the state court judgment did not conclusively establish that the debtor's actions were not willful and malicious simply because the state court declined to award punitive damages because the state court applied a higher degree of proof in making that determination than is required in this adversary proceeding.
A trial was held on July 24, 2014 to determine whether the amount of the judgment awarded by the state court is excepted from discharge pursuant to § 523(a)(6). For the reasons set forth below, this Court finds the debt to be nondischargeable.
I. Background
The debt at issue in this adversary proceeding comes by way of a judgment entered by the Hamilton County Court of Common Pleas (the "State Court") against John Yeager (the "Debtor") for injuries sustained by Nicholas Wilmers (the "Plaintiff") during an altercation between the two men at the East End Café on New Year's Eve in 2003. The State Court found by a preponderance of the evidence that the Plaintiff was the "sole victim of a battery" inflicted by the Debtor and awarded the Plaintiff $420,000 in compensatory damages, consisting of $280,000 for past medical expenses and pain and suffering and $140,000 for future medical expenses and pain and suffering.
The State Court's findings of fact, as they relate to liability, are as follows:
1. Plaintiff, Nick Wilmers, at the time of the incident which led to this litigation, December 31, 2003, was a patron at an establishment, known as the East End Café.
2. Defendant, John Yeager, was, at the time, the proprietor and owner of the East End Café.
3. Plaintiff, his girlfriend, Ashley Larnard, and several male and female friends met on the evening in question at Ms. Larnard's apartment and began drinking and otherwise socializing.
4. The group then commissioned a taxi cab to transport them to the East End Café, where they continued drinking and socializing in preparation for the new year.
5. As closing time approached, sometime after the new year commenced, the group decided to leave the East End Café, which was crowded with patrons.
6. The café has a covered foyer as one enters from the sidewalk; the foyer, which has two outward-swinging gates, separates the building proper from the sidewalk. The building itself has two entry/exit doors, which also swing in an outward direction.
7. What happened at the entrance to the café is the subject of this lawsuit and is much in dispute. Plaintiff and his witnesses, Sam Mudd and Bo Gerth, testified that Plaintiff was struck from behind by the outward swinging gate, as he stood facing the street, by Defendant Yeager. Plaintiff was, according to them, then pushed twice, the second push resulting in a fall backwards and the Defendant grabbing Plaintiff as they both fell to the ground. The injury to Plaintiff's left knee occurred as the two hit the ground. The Defendant's version is that he became angry when Plaintiff's girlfriend, Ashley, attempted to steal two bottles of "Apple Pucker." While yelling at Ashley, according to Defendant, Plaintiff came to her rescue, punched Defendant in the eye and pulled him to the ground such that Defendant was on the ground with Plaintiff on top of Defendant.
8. The Court finds the more likely scenario to be as described by Plaintiff, although the Court finds it unlikely that Plaintiff said nothing to Defendant prior to Defendant's initial push. A preponderance of the evidence on the liability issue was established by the testimony of Plaintiff and his two witnesses, none of which has any character blemishes. On the other hand, Defendant admitted to two offenses involving dishonesty and his sole witness, Katie McGrady, who really didn't observe the altercation at its inception, was accused of theft by the Defendant himself. Thus, on balance, the credibility issue belongs to the Plaintiff.
9. Plaintiff sustained a severe injury to his left knee and was transported via ambulance to the hospital, where his dislocated leg was set under general anesthesia.
The State Court's conclusions of law, as they relate to liability, are as follows:
13. Plaintiff was the sole victim of a battery, inflicted by Defendant, John Yeager.
14. The sole cause of the injury to Plaintiff's left leg was the battery inflicted by Defendant
II. Jurisdiction
This Court has subject matter jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 157 and 1334 and the general order of reference entered in this district. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I).
III. Section 523(a)(6) Standard For Determining Exception To Dischargeability For Debts Caused By Willful And Malicious Injury
The issue in this adversary proceeding is whether the Debtor owes a nondischargeable debt to the Plaintiff pursuant to § 523(a)(6) for inflicting a "willful and malicious injury" to the Plaintiff. "Although the 'willful' and 'malicious' requirements will be found concurrently in most cases, the terms are distinct, and both requirements must be met under § 523(a)(6)." S. Atl. Neurology and Pain Clinic, P.C. v. Lupo (In re Lupo), 353 B.R. 534, 550 (Bankr. N.D. Ohio 2006) (citations omitted). The plaintiff has the burden to establish by a preponderance of the evidence both the "willful" and "malicious" elements to prevail on a claim of nondischargeability pursuant to § 523(a)(6). Grogan v. Garner, 498 U.S. 279, 291 (1991).
As interpreted by the United States Supreme Court, a "willful" injury requires "a deliberate or intentional injury, not merely a deliberate or intentional act that leads to injury." Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998). Accordingly, a court must find that "the debtor intended his actions, and the debtor either intended his actions to cause injury to the creditor or the debtor believed that injury to the creditor was substantially certain to follow." Tomlin v. Crownover (In re Crownover), 417 B.R. 45, 57 (Bankr. E.D. Tenn. 2009) (citing Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 464-65 (6th Cir. 1999)). Because a debtor will rarely admit to a subjective intent to cause injury, "in addition to what a debtor may admit to knowing, a bankruptcy court may consider circumstantial evidence that tends to establish what the debtor may have actually known when taking the injury-producing action." In re Lupo, 353 B.R. at 550 (citing Jett v. Sicroff (In re Sicroff), 401 F.3d 1101, 1106 (9th Cir. 2005)).
The term "malicious" is construed in the context of § 523(a)(6) to mean actions taken "in conscious disregard of one's duties or without just cause or excuse; it does not require ill-will or specific intent." Monsanto Co. v. Trantham (In re Trantham), 304 B.R. 298, 308 (B.A.P. 6th Cir. 2004) (quoting Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986) (internal quotation marks omitted)). While "in [the] great majority of cases, the same factual events that give rise to a finding of 'willful' conduct, will likewise be indicative as to whether the debtor acted with malice, . . . the definition of malice requires a heightened level of culpability transcending mere willfulness." Superior Metal Prods. v. Martin (In re Martin), 321 B.R. 437, 442 (Bankr. N.D. Ohio 2004). In the context of a physical altercation, such is at issue in this adversary proceeding, courts consider whether claims of self-defense, mutual combat or provocation affect whether a debtor had just cause or excuse for inflicting an injury. See generally James Lockhart, Annotation, Claim or Judgment Based on Assault and Battery Other Than Aggravated or Felonious Assault and Battery or Assault or Battery Using Deadly Weapon as Liability for Willful and Malicious Injury Within § 523(a)(6) of Bankruptcy Act (11 U.S.C.A. § 523(a)(6)) and Predecessor Statute, Barring Discharge of Such Liability, 28 A.L.R. Fed.2d 179 (2014).
IV. Findings Of Fact And Conclusions Of Law
As did the State Court, this Court heard conflicting testimony from the Plaintiff and the Debtor as to the events of that night. The Plaintiff testified that while he was standing in the vestibule outside the café, the Debtor, without warning, struck him in the back with an iron-gated door, causing the Plaintiff to stumble from the step he was standing on inside the vestibule to the sidewalk outside the vestibule. The Plaintiff described the Debtor as having a "crazy look" in his eyes. The Debtor then pushed the Plaintiff with both arms. The Debtor then rushed the Plaintiff, tackling him on the sidewalk. The Plaintiff got up, was "backpedaling" in an "attempt to get away from this guy," when the Debtor tackled the Plaintiff again, causing both of them to fall to the sidewalk, whereupon the injury to the Plaintiff's knee occurred. The Plaintiff further testified that he was screaming in pain and was unable to get up. One or more persons, including the Plaintiff's friend, one Bo Gerth, had to pull the Debtor off of the Plaintiff to stop the attack. The Plaintiff acknowledged that there was a "commotion" going on outside the café involving others. However, when pressed for details about the surrounding commotion, the Plaintiff testified that he had tunnel vision due to the pain of his knee injury and could not remember any specifics.
The iron-gated doors are constructed of scrolled ironwork. They are double doors and are the full height of the vestibule opening. The doors open inward toward the main entrance to the café and close outward toward the sidewalk and street. The Plaintiff was struck with one of the two double doors. If both of the double doors were closed, it would not be possible to enter or exit the vestibule.
For impeachment purposes, the Debtor referenced an earlier state court lawsuit filed by the Plaintiff arising out the same events wherein the Plaintiff alleged that the Debtor and three other persons caused his injury. This Court is bound by the State Court's conclusions of law that the Plaintiff was the "sole" victim of a battery inflicted by the Debtor and that the "sole" cause of the injury to the Plaintiff was inflicted by the Debtor.
The Debtor's testimony was consistent with the Plaintiff's testimony in that (1) the Debtor admitted to closing the iron-gated door "to get the people out," as it was closing time; (2) the Debtor admitted to shoving the Plaintiff; and (3) the Debtor admitted to "going to the ground" with the Plaintiff one time. Contrary to the Plaintiff's description of events, the Debtor testified that the Plaintiff "got in my face" as the Debtor was closing the iron-gated door and that "I got hit." The Debtor then described a melee that broke out with fifty people fighting, many of them locals from across the street. The Debtor testified that a "tall guy"—not the Plaintiff—punched him in the back of the head and that he did "go after that guy." The Debtor testified that three people were on top of him at some point—none of whom was the Plaintiff—and that one Mike Smith "pulled me off."
The Debtor's choice of words strikes this Court as peculiar. One would expect the Debtor to say "He hit me," especially when the alleged assailant is several feet away in the courtroom. Also, when asked if the Plaintiff hit the Debtor a second time, the Debtor testified that he "thought" the Plaintiff hit him a second time.
Critical to this Court's determination is the fact that both the Debtor's and the Plaintiff's testimony indicate that the Debtor had at least three contacts with the Plaintiff: one push with the iron-gated door, one shove, and a third contact that was sufficiently forceful to knock the Plaintiff to the ground. Also critical to this Court's determination is that all three of these contacts took place outside the café proper and, importantly, the last two contacts took place beyond the iron-gated doors and on the sidewalk. A. Willful
Considering together the number of contacts, the forcefulness of the contacts and the fact that the last two contacts took place completely outside the café's vestibule and on the sidewalk, this Court finds, by a preponderance of the evidence, that the Debtor intended all three contacts with the Plaintiff and that the Debtor intended his contact with the Plaintiff to cause injury to the Plaintiff or was substantially certain that injury would follow. The Debtor's own testimony supports the finding that he intended: first, to contact the Plaintiff by shutting the iron-gated door; second, to shove the Plaintiff; and third, to go "to the ground" with the Plaintiff.
If the Debtor's intention, as he testified, was simply to close the iron-gated doors "to get the people out" in anticipation of closing, then the Debtor accomplished that purpose when he closed the first of the two iron-gated doors which caused the Plaintiff to stumble from within the vestibule down onto the sidewalk. At this point, the Plaintiff was on the other side of the iron-gated doors and the Debtor could have simply closed the other iron-gated door to prevent further access to the vestibule and café. Instead, the Debtor pursued the Plaintiff from behind the iron-gated doors out onto the sidewalk, where he first shoved the Plaintiff, and then caused the Plaintiff to fall to the ground. This Court considers these actions to be sufficient evidence to establish that the Debtor intended his actions to cause injury to the Plaintiff or believed that injury to the Plaintiff was substantially certain to follow. In fact, the Plaintiff's injury occurred only after the third contact, following no less than two opportunities for the Debtor to end the altercation. B. Malicious
This Court's findings regarding willfulness similarly support the determination that the Debtor acted with malice. Although "a debtor's actions are not automatically labeled malicious simply because they are wrongful," ABF, Inc. v. Russell (In re Russell), 262 B.R. 449, 455 (Bankr. N.D. Ind. 2001) (citations omitted), the Debtor's continued pursuit of the Plaintiff after accomplishing the Debtor's professed objective of ushering patrons off of the premises and preventing their re-entry so he could close the café is without just cause or excuse. To the contrary, the Debtor's actions reveal aggression and actual ill-will towards the Plaintiff. See Davis v. Music (In re Music), 2014 Bankr. LEXIS 1067, at *14, 2014 WL 1089849, at *5 (Bankr. N.D. Ohio Mar. 19, 2014)("Although [a finding of malice within the context of § 523(a)(6)] does not require a showing of hatred, ill-will, or a spirit of revenge, such a showing would also satisfy the malicious injury element of § 523(a)(6).")(internal citations omitted).
While claims of self-defense, mutual combat or provocation may negate a finding of malice, there was no credible evidence that such mitigating factors were present in this case. At best, the Debtor offered questionable testimony that he was hit by the Plaintiff but at no point in the Debtor's testimony did he suggest that he was acting in self-defense. In contrast, the Plaintiff testified numerous times that he was trying to "get away" from the Debtor and that he was trying to "protect myself." Regardless, a person is only privileged to use reasonable force to protect oneself. See Kleman v. Taylor (In re Taylor), 322 B.R. 306, 309 (Bankr. N.D. Ohio 2004)(citing 6 AM. JUR. 2D Assault and Battery § 110). The evidence before this Court simply would not support a finding that the Debtor's actions were reasonable given his multiple opportunities to end the altercation. For this same reason, any claim of mutual combat is equally unavailing.
Finally, while the State Court thought it "unlikely" that the Plaintiff said nothing to the Debtor prior to the Debtor's contact with the Plaintiff, there was no testimony at the trial before this Court implying that the Plaintiff provoked the Debtor. To the contrary, when questioned about the events leading up to the altercation, the Debtor testified that he was "not angry" at the Plaintiff. The Debtor further testified that he never knew the Plaintiff before that evening and that nothing happened earlier in the evening to cause him to be angry with the Plaintiff. Accordingly, by the Debtor's own testimony, he was not provoked such that it would negate this Court's finding of malice.
Moreover, words alone seldom excuse a resort to violence. In re Trudeau, 35 B.R. 185, 187-88 (Bankr. D. Mass. 1983)("Even assuming that the plaintiff ridiculed the defendant just preceding the battery, that does not constitute an automatic defense. Anger, seldom if ever justifies violence.").
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V. Conclusion
For the reasons stated above, this Court finds that the Debtor's actions were both willful and malicious within the meaning of 11 U.S.C. § 523(a)(6). Accordingly, this Court finds that the $420,000 debt owed to the Plaintiff is nondischargeable.
IT IS SO ORDERED. Distribution list:
Brian A. Ewald, Esq.
Ronald G. Smith, Esq.
Eric J. Gunderson, Esq.
This document has been electronically entered in the records of the United States Bankruptcy Court for the Southern District of Ohio.
IT IS SO ORDERED.
Dated: October 3, 2014
/s/_________
Beth A. Buchanan
United States Bankruptcy Judge