Van Peteghem v. Kohler (In re Kohler)

IN RE: STEVEN FORREST KOHLER and ELIZABETH ANN KOHLER, Debtors.

DIRK VAN PETEGHEM and MIA-FRANCESCA VAN PETEGHEM, Plaintiffs, v. STEVEN FORREST KOHLER and ELIZABETH ANN KOHLER, Defendants.

CASE NO. 12-24328-JRS

ADVERSARY PROCEEDING CASE NO. 13-02026-JRS

UNITED STATES BANKRUPTCY COURT NORTHERN DISTRICT OF GEORGIA GAINESVILLE DIVISION

Filed: March 15, 2017

March 14, 2017

IT IS ORDERED as set forth below:

CHAPTER 7

ORDER

I. Introduction

The issue before the Court is whether the Plaintiffs, the Van Peteghems, are entitled to a judgment as a matter of law that a $250,500 jury verdict and resulting judgment in the Superior Court of Forsyth County, Georgia,¹ in their favor against the Debtors, the Kohlers, for trespass, nuisance, defamation, destruction of timber and vegetation, assault and battery, vandalism and destruction of personal property, invasion of privacy (intrusion upon seclusion), and intentional infliction of emotional distress is non-dischargeable under 11 U.S.C. § 523(a)(6) based on the principles of res judicata and collateral estoppel because the injuries inflicted upon them were willful and malicious.

Currently before the Court is the Van Peteghems' Motion for Summary Judgment [Doc. 34]. They argue the jury verdict and resulting judgment are preclusive in this proceeding, entitling them to a judgment of non-dischargeability as a matter of law. The Kohlers oppose summary judgment on the grounds that the verdict is too ambiguous to be given preclusive effect and that willful and malicious states of mind were not necessary to a finding of liability for any of the Van Peteghems' claims.

The record from the proceeding in the Superior Court includes the trial transcript (including copies of the exhibits submitted into evidence),² the jury verdict,³ the final judgment,⁴ the Kohlers' complaint,⁵ and the Van Peteghems' answer and counterclaims.⁶

Additionally, in opposition to summary judgment, the Kohlers have filed with the Court 24 exhibits (labeled Exhibits A through X) [Doc. 55] and four affidavits [Docs. 57-60]. The Court did not consider the exhibits and affidavits in ruling on this Motion for Summary Judgment. As explained more in depth later, the ultimate issue on this Motion for Summary Judgment is whetherand to what extent the Verdict and Final Judgment establish liability for a willful and malicious injury. The Court must determine that issue by looking only at the Verdict, the Final Judgment, and the record on which they were based. To the extent the Verdict and Final Judgment establish liability for a willful and malicious injury, the Kohlers are precluded from relitigating—i.e., submitting additional evidence on—the willful and malicious nature of the injury.

For the reasons given below, the Court will grant in part and deny in part the Van Peteghems' Motion for Summary Judgment.

II. Background of Dispute⁷

A. Events Leading up to the Superior Court Action

In or around April 2007, the Van Peteghems moved next door to the Kohlers in the Grand Cascades subdivision in Suwanee, Georgia. They shared a property line that extended from the street in front of their houses back to the Chattahoochee River.⁸ The parties were more or less friendly, without any major disputes, until the Van Peteghems began refurbishing their backyard in early March 2009.⁹ The Van Peteghems intended for this yardwork to beautify their yard and make it safer for their children to play in.¹⁰

Before beginning the yardwork, Mrs. Van Peteghem discussed the planned work with the Forsyth County Department of Engineering. She spoke to the Department of Engineering's senior inspector, Simon Wilkes, who confirmed that no permits were needed for the project and that thework would be outside of the Chattahoochee River's protected buffer zone.¹¹ Mrs. Van Peteghem then requested that the Department of Engineering physically inspect the property. The department sent field engineer Tim Allen to inspect the property. He determined that the intended work complied with all county ordinances.¹² The work began on March 4, 2009, and lasted until March 10, 2009.¹³

At trial, the parties gave conflicting testimony regarding their discussions about the yardwork while the work was ongoing. Mr. Van Peteghem testified to the following. On March 9, Mrs. Kohler approached Mr. Van Peteghem and a yard worker and stated she had concerns about the Van Peteghems' yard project. Mr. Van Peteghem responded he did not think the yardwork would create problems for the Kohlers and invited Mrs. Kohler to inspect the work. Mrs. Kohler turned around and went into her house. Mr. Van Peteghem, surprised by Mrs. Kohler's reaction, told Mrs. Van Peteghem about the exchange. The Van Peteghems then made a phone call to the Kohlers. The Kohlers did not answer the phone. Mrs. Van Peteghem left a voice mail. The Kohlers did not return the phone call.¹⁴

Mrs. Kohler testified she did not remember that exchange with Mr. Van Peteghem or receiving a phone call or voice mail from the Kohlers.¹⁵ Rather, she testified, the only conversation about the work took place before the work began. In this conversation, the Van Peteghems indicated "they were going to move some shrubbery around," and the Kohlers indicated they had no problem with the work as long as the Van Peteghems did not affect a drainage swale in the easement between the properties.¹⁶

It is undisputed that aside from the above, the Kohlers did not otherwise attempt to discuss their concerns about the yardwork with the Van Peteghems.¹⁷

On March 10, Mr. Kohler complained to William Patrick "Bill" Bridges—the Grand Cascades Community Association [hereinafter, "HOA"] president—that the Van Peteghems' yardwork violated various HOA covenants, such as clear cutting. Mr. Bridges met with the Kohlers that day to discuss the allegations. The Kohlers stated that the Van Peteghems' yard work would increase water runoff into the Kohlers' property. The Kohlers also alleged that the Van Peteghems were installing solar water heating, filling a ditch with top soil, and having work done to a septic system. Mr. Bridges met with the Van Peteghems on March 12 to discuss the Kohlers' claims and to take pictures of the yardwork. Upon inspection, Mr. Bridges saw no problems with the yardwork and did not agree that the yardwork would redirect the natural flow of water.¹⁸ He thereafter emailed Mr. Kohler to advise him that no HOA covenants had been violated and that he did not see or anticipate any damage to the Kohlers' property resulting from the yardwork.¹⁹

At or around the same time, Mr. Kohler also complained to Forsyth County about potential county ordinance violations, causing the county to send Mark Robert Zimmerman—a county soil erosion inspector—to the Van Peteghems' property. Mr. Zimmerman inspected the property on March 11 and found nothing wrong, other than that the Van Peteghems needed to either put down mulch or install a silt fence. Mrs. Van Peteghem told Mr. Zimmerman she would comply. Mr.Zimmerman then talked to Mr. Kohler about his findings. Mr. Kohler was disappointed that Mr. Zimmerman had not found more.²⁰

Mr. Zimmerman inspected the Van Peteghems' property again on March 12 in response to Mr. Kohler's concern that the Van Peteghems had violated a county ordinance regarding removal of tree stumps. Mr. Zimmerman left Mr. Kohler a voicemail stating he found no violation. During the March 12 inspection, Mrs. Van Peteghem told Mr. Zimmerman that the Kohlers had existing major erosion issues and that she wanted the issues noted in case Mr. Kohler tried to blame the erosion on the Van Peteghems.²¹ In response, Mr. Zimmerman took several photographs of the Kohlers' property, including photographs of damp areas. Mr. Zimmerman's field report noted the areas were damp despite no recent rain, due to the areas being in a low spot with a lot of tree cover.²²

By the time Mr. Zimmerman made this March 12 visit, the Van Peteghems had already installed a silt fence to address the issues raised the previous day.²³

The next day, on March 13, Mr. Zimmerman went back to the Van Peteghems' property with his supervisor Simon Wilkes. The supervisor inspected the property and determined that no permit was required for the yard work. Mr. Zimmerman concluded that the yard work should not adversely affect the Kohlers' property.²⁴

March 13, 2009 was a key date in this dispute. Mr. Zimmerman, Mr. Wilkes, and Mr. Bridges were at the Van Peteghems' residence inspecting the yard work. Mrs. Van Peteghem was at the house; Mr. Van Peteghem was not. Mr. Kohler angrily discussed the yardwork with Messrs. Zimmerman, Wilkes, Bridges, and Mrs. Van Peteghem. Mr. Kohler berated everyone present,including laborers in the yard. Mr. Kohler disputed the conclusions of Mr. Bridges, Mr. Zimmerman, and Mr. Wilkes that the Van Peteghems had done nothing wrong. Mr. Kohler yelled at Mr. Wilkes, insisting that Mr. Wilkes' conclusions were wrong. Mr. Kohler was adamant that the Van Peteghems had violated the law and HOA covenants. He continued accusing the Van Peteghems of various things, such as cutting down 60 trees the previous weekend and covering all the tree stumps, ruining the Kohlers' yard and septic system, and dumping silt into the Chattahoochee River. Mrs. Van Peteghem invited Mr. Kohler to inspect her yard to look for tree stumps. Mr. Kohler refused, stating he would not give Mrs. Van Peteghem the satisfaction. Mr. Kohler at one point said he would sue the Van Peteghems, the county, and the HOA for a million dollars a day. Mrs. Van Peteghem pleaded with Mr. Kohler, saying she wanted to try to work out Mr. Kohler's concerns, and stating she did not understand why he was making the numerous allegations. During the exchange, Mr. Kohler got close in proximity with Mrs. Van Peteghem, shouting and shaking his finger at her, his face red with anger. Some of Mr. Kohler's saliva ejected from his mouth and landed on Mrs. Van Peteghem. Mrs. Van Peteghem was six-and-a-half-months...