Perry v. Judge (In re Judge)

621 B.R. 34

IN RE: Stephen Charles JUDGE, Debtor.

James W. Perry and Thomas Baca, Plaintiffs.

v.Stephen Charles Judge, Defendant.

Case No. 19-11653 MER

Adv. Case No. 19-01140 MER

United States Bankruptcy Court, D. Colorado.

Dated September 29, 2020

Order Denying Reconsideration November 3, 2020.

Daniel G. Spitzer, Durango, CO, for Debtor.

ORDER

Michael E. Romero, Chief Judge

Heavyweight champion Joe Louis famously said "Everyone has a plan until they get hit."¹ Plaintiffs James Perry ("Perry ") and Thomas Baca ("Baca ," and together with Perry, "Plaintiffs ") and Defendant Stephen Charles Judge ("Judge ") surely did not go to the Derailed Pour House on January 31, 2015, expecting to be involved in a bar fight resulting in lasting injuries, and yet this is exactly what happened. The matter presented to the Court is whether Plaintiffs' claims against Judge, arising from injuries incurred in their brouhaha, are nondischargeable.

BACKGROUND

The incident at the Derailed Pour House was captured on video,² and shows the following: Perry and Judge were standing at a crowded bar top with their backs to one another when suddenly Judge elbowed Perry in the back. Perry turned around and appeared to say something to Judge, and then Judge took his glass mug off the bar top and hit Perry over the head, breaking the mug. Perry then struck Judge with his own drink, breaking the glass container in his face. A scuffle ensued and onlookers, including Baca, escorted Perry out of the bar and held Judge back at the bar top. Less than twenty seconds passed from the time Judge initially elbowed Perry to the time Perry was taken out of the bar area.

Following the altercation, Perry was taken to the hospital where he received medical attention for injuries to his face, neck, and hand,³ and Judge was likewise treated for his own injuries. Neither Perry nor Baca were criminally charged for their involvement in the altercation, but Judge eventually pled guilty to third degree assault. Perry and Baca later sued Judge in La Plata County District Court and obtained a default judgment against him,⁴ with Perry awarded $150,000 and Baca awarded $75,000.⁵

Judge filed his voluntary petition for relief under Chapter 7 of the Bankruptcy Code⁶ on March 8, 2019. Plaintiffs initiated this adversary proceeding shortly thereafter seeking a determination their claims against Judge are nondischargeable pursuant to § 523(a)(6).

ANALYSIS

A. Standard for Nondischargeability Under § 523(a)(6)

Section 523(a)(6) of the Bankruptcy Code provides "(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."⁷ A finding of nondischargeability under § 523(a)(6) requires proof of: "1) an intentional action by the defendant; 2) done with the intent to harm; 3) which causes damage (economic or physical) to the plaintiff; and 4) the injury is the proximate result of the action by the defendant."⁸ The standard of proof for claims under § 523(a)(6) is the ordinary preponderance of the evidence standard.⁹

Section 523(a)(6) refers only to acts taken with an actual intent to cause injury.¹⁰ As the Supreme Court instructed in Geiger ,

The word "willful" in (a)(6) modifies the word "injury," indicating that nondischargeability takes a deliberate or intentional injury not merely a deliberate or intentional act that leads to injury. Had Congress meant to exempt debts resulting from unintentionally inflicted injuries, it might have described instead "willful acts that cause injury." Or, Congress might have selected an additional word or words, i.e, "reckless" or "negligent," to modify "injury." Moreover, as the Eighth Circuit observed, the (a)(6) formulation triggers in the lawyer's mind the category "intentional torts," as distinguished from negligent or reckless torts. Intentional torts generally require that the actor intend "the consequences of an act," not simply "the act itself."¹¹

Nondischargeability under § 523(a)(6) requires proof of both a willful act and a malicious injury,¹² and without proof of both, an objection to discharge under § 523(a)(6) must fail.¹³ "A ‘willful act’ is one in which the debtor must desire to cause the consequences of his act or believe that the consequences are substantially certain to result from it."¹⁴ "A ‘malicious injury’ occurs when there is proof that the debtor either intended the resulting injury or intentionally took action that was substantially certain to cause the injury." ¹⁵

The requirement of maliciousness "is satisfied upon a showing the injury was inflicted without just cause or excuse."¹⁶

Whether a debtor acted with the requisite intent to harm the creditor is evaluated under a subjective standard focusing on the debtor's state of mind.¹⁷ The Bankruptcy Appellate Panel for the Tenth Circuit stated: "Intent may be established by either direct or indirect evidence. Willful injury may be established by direct evidence of specific intent to harm a creditor or the creditor's property. Willful injury may also be established indirectly by evidence of both the debtor's knowledge of the creditor's ... rights and the debtor's knowledge that the conduct will cause particularized injury."¹⁸ Here, the Court sits as the sole trier of fact, and therefore it is the Court's determination of Judge's subjective intent which will decide the case.

B. Whether Perry's Claim is Nondischargeable

There is no question Perry suffered serious injuries to his hand, face, and neck during the altercation¹⁹ As such, the Court must consider whether the injury was the proximate result of Judge's actions and whether Judge's actions were done intentionally and with the intent to harm Perry.²⁰

The video clearly shows Judge striking Perry with a glass mug.²¹ From the Court's subjective determination of intent based on the video and testimonial evidence, the Court can only find Judge acted intentionally, and at the very least his actions were "substantially certain to cause ... injury."²² The Court further finds Perry's injuries upon which his claim against Judge is based were the proximate result of Judge's actions. Even though a portion of Perry's injuries were sustained when he struck Judge with his own glass, the video demonstrates the cause of the initial aggression was Judge, and Perry's claim is based on the injuries he sustained in the course of the altercation as a whole. As such, the Court finds Perry's entire claim against Judge is nondischargeable under § 523(a)(6).

At trial, Judge testified that prior to the start of the events depicted in the video evidence, Perry had "bulled his way into the bar," stepped on Judge's ankle, and threatened Judge. As such, Judge asserted the altercation shown on the video was a result of him defending himself after Perry threatened his life. While injuries inflicted by actions taken in self-defense may not reach the level of willful and malicious,²³ the Court does not find Judge's testimony in this respect to be credible. Judge admitted there was no documentation of him telling anyone of this happening – not the police at the time of the incident, nor in his criminal proceedings or the civil proceedings in La Plata County District Court. Given self-defense could have potentially shielded him from both criminal and civil liability, his failure to alert anyone to this additional information is striking to the Court. Accordingly, the Court concludes Judge did intend to cause Perry's injuries and was not acting in self-defense when he struck Perry with his mug.

C. Whether Baca's Claim is Nondischargeable

At the outset, the Court notes Baca did not appear at the trial due to technical difficulties, despite the Court's order requiring parties to test all equipment ahead of time and to take part in the Court's Zoom training sessions.²⁴ As such, no testimony was received from Baca and the Court's consideration of his claim is limited to the evidence and testimony received from Perry and Judge.

As with Perry, the evidence provided at trial clearly demonstrated Baca was also injured in the altercation.²⁵ Unlike Perry's injuries, however, the evidence and testimony did not demonstrate Baca's injuries were intentionally caused by Judge. Specifically, Judge testified when he was struck by Perry in the face, he sustained substantial injuries to his eye. Judge testified he could not see and was swinging wildly simply because he was unstable on his feet. Judge further testified he did not have any interaction with Baca at the bar and was not aware of who Baca was until the proceedings in La Plata County District Court.

The Court finds Judge's testimony on this point to be credible, and the video of the altercation supports this.²⁶ In the video Judge can be seen struggling to stand while Perry is led away from the bar immediately after the altercation. Several people, including a man in a hat, are holding Judge or otherwise attempting to help him stand away from Perry, and Judge eventually stumbles back to the bar top. Perry identified the man in the hat as Baca, and after Judge regains his footing Baca is looking at his elbow, which is where he was injured. The doctor's report confirms this, stating "[Baca] reports he was in an altercation at a bar downtown, when somebody broke a coffee mug and was swinging around, resulting in a laceration to his right elbow ...."²⁷

As stated in Geiger , "debts arising from recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6)."²⁸ There is no additional testimony for the Court to consider due to Baca's technical difficulties. Accordingly, the Court concludes Baca failed to meet his burden of establishing his injury was intentionally caused by Judge, and his claim against Judge is therefore dischargeable.

CONCLUSION

Although all three parties involved in this altercation suffered injuries, only Perry has successfully...