Abraham v. Palmer (In re Palmer)

• Decision Date: 31 August 2016
• Docket Number: Case No. 14-30027,Adv. Pro. No. 14-3032
• Citation: 555 B.R. 611
• Parties: In re: Charles K. Palmer and Tina M. Palmer, Debtors. Joseph Abraham and Sue Abraham, Plaintiffs, v. Charles K. Palmer, Defendant.
• Court: U.S. Bankruptcy Court — Northern District of Ohio

555 B.R. 611

In re: Charles K. Palmer and Tina M. Palmer, Debtors.Joseph Abraham and Sue Abraham, Plaintiffs

v.Charles K. Palmer, Defendant.

Case No. 14-30027

Adv. Pro. No. 14-3032

United States Bankruptcy Court, N.D. Ohio, Western Division.

Signed August 31, 2016

Robert J. Anderson, Gillespie & Murphy, P.A., Wilmington, NC, for Debtors.

MEMORANDUM OF DECISION

John P. Gustafson

, United States Bankruptcy Judge

This adversary proceeding is before the court for decision after trial on Plaintiffs Joseph Abraham (“Mr. Abraham”) and Sue Abraham (“Mrs. Abraham”)' s (collectively, “Plaintiffs” or “the Abrahams”) “Complaint to Determine Dischargeability of Debt, Liability and Damages.” Defendant Charles K. Palmer (“Defendant”, “Debtor”, or “Mr. Palmer”), along with his wife Tina M. Palmer (“Mrs. Palmer”), are the debtors in the underlying Chapter 7 case. [Case No. 14-30027, Doc. # 1]. In their Complaint, Plaintiffs assert that Defendant is liable for alleged defamatory statements made by the Defendant while answering questions at an Allen Township Zoning Board Public Hearing [Doc. # 1, Main Document] and that the debt is nondischargeable under 11 U.S.C. § 523(a)(6)

.

Count I of the Complaint claims defamation, Count II claims false light invasion of privacy, Count III claims intentional infliction of emotional distress, and Count IV is a request for attorney fees. [Id. ].

The district court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. § 1334(b)

as a civil proceeding arising under a case under Title 11. This proceeding has been referred to this court by the district court under its general order of reference. 28 U.S.C. § 157(a) ; General Order 2012-7 of the United States District Court for the Northern District of Ohio. Proceedings to determine dischargeability of a debt are core proceedings that the court may hear and decide. 28 U.S.C. § 157(b)(1) and (b)(2)(F).

This memorandum of decision constitutes the court's findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52

, made applicable to this adversary proceeding by Fed. R. Bankr. P. 7052. Regardless of whether specifically referred to in this Memorandum of Decision, the court has examined the submitted materials, weighed the credibility of the witnesses, considered all of the evidence, and reviewed the entire record of the case.

Based upon that review, and for the reasons discussed below, the court finds that Defendant is entitled to damages on the Complaint, but the debt is dischargeable in the underlying Chapter 7 case, and not excepted from the debtors' discharge pursuant to 11 U.S.C. § 523(a)(6)

.

FINDINGS OF FACT

The pertinent facts in this case stem from three events: 1) an incident outside of Defendant's neighbors' home; 2) an incident alongside Trowbridge Road, the road on which Plaintiffs and Defendant's reside; and 3) the statements made by the Defendant at the Zoning Board hearing.

In addition to the three pertinent events in this case, Plaintiffs and Defendant have a history of contentious dealings with each other. According to Sheriff Robert L. Bratton in a letter addressed to the Ottawa County Common Pleas Court on April 20, 2011, calls for service to the Ottawa County Sheriff's Office, made by each family regarding the other, “number well over 100”. [Doc. # 19, p. 29]. The number of phone calls made to the Sheriff's Office was enough to make Sheriff Bratton question whether an “abuse of law enforcement services” was occurring. [Id. ].

The Incident At The Neighbors' Home.

Brittany Teet, Defendant's neighbor, lived in a house across the street from the Defendant. At the trial, she testified that she was friends with Defendant and his family, during the three years that she lived in the house on Trowbridge Road. When questioned by Defendant's attorney, her testimony recounted an incident that occurred on March 17, 2010. Because she worked second shift at the time, she did not get off work until “around 10 p.m.”, and her husband and children were asleep when she arrived home.

After entering her home, Ms. Teet “started hearing yelling” and testified that what sounded like rocks were hitting her bedroom window. When she opened her bedroom window and looked out, she stated that she could see Plaintiff Joseph Abraham yelling “I know it was you” and hitting her mailbox. When questioned about how she could have identified Mr. Abraham that night, she replied that she heard his voice, saw his face, and recognized his familiar “walk”.

After claiming to have witnessed Mr. Abraham walk back to his driveway down Trowbridge Road, Ms. Teet called Cody Palmer, Defendant's son. Ms. Teet believed that Cody Palmer might have had some knowledge as to why Mr. Abraham had walked down to her property. Cody was not at home with his parents, but he told Ms. Teet that he would tell his father, Defendant in this adversary case, what had occurred. When she called the police, Ms. Teet was informed that Mr. Abraham had already called the police. Ms. Teet made a police report. Cody Palmer called his father, and Defendant went to Ms. Teet's home, where she told Defendant what had occurred.

Mr. Abraham denied that any of the events Ms. Teet described as happening on the night of March 17, 2010 occurred: the small rocks thrown at the window, attempting to open the Teets' front door, striking the mailbox, and yelling profanities.

The Incident Alongside Trowbridge Road.

On July 13, 2010, there was an incident alongside Trowbridge Road. At the trial, it became evident that Plaintiffs and Defendant (together with their respective witnesses) each had their own version of what transpired on that evening.

According to Mrs. Abraham's testimony, the incident occurred around 9 p.m. It was still light out on a summer evening, and Mrs. Abraham and her daughter were sitting out on their front porch. Mrs. Abraham stated that Mr. Abraham was arriving home in his van, and he turned his van out into the road at an angle that would allow him to back into his driveway. According to Mrs. Abraham, Mr. Abraham “pretty much always backed in” to the driveway.

As Mr. Abraham was backing in, Mrs. Abraham heard what she thought was a motorcycle approaching. In reality, it was a dirt bike driven by Collin Palmer, Defendant's youngest son. She stated that Mr. Abraham's van had stopped backing in and was an estimated two feet out into the road when the dirt bike passed by. Mrs. Abraham believed that her husband's van never moved during the time that Collin Palmer drove by. “[Collin Palmer] never stopped, never decreased in speed, never went off the road.”

According to Mrs. Abraham, “seconds” after the dirt bike passed the Abraham residence, Collin's mother drove past the house. Mr. Abraham's van still had not moved and was jutting approximately two feet out into the road. Mrs. Palmer drove around Mr. Abraham's van and continued on down Trowbridge Road towards her house. Mrs. Abraham recounted that Mrs. Palmer “never stopped”, and that “about a minute later” a white truck driven by Joshua Brier passed.

Amber Abraham, Plaintiffs' daughter, was with her mother on their front porch on the evening of July 13, 2010. She testified that her father approached the driveway and made a curve with the front of his vehicle out into the road, in an attempt to back in. In addition to Mrs. Abraham's testimony, Amber Abraham also said that her father always backed into their driveway. As her father's van was “sticking about a quarter onto the road,” Collin Palmer drove by on the dirt bike and never stopped. When Mrs. Palmer drove by, Amber testified that she “honked a lot” and kept driving, and that Mrs. Palmer's green van continued to honk its horn until Mrs. Palmer turned into her driveway down the road.

Amber Abraham reiterated her mother's testimony regarding her father's van, when she testified that her father's van did not move as Collin Palmer, Mrs. Palmer, and Josh Brier drove past on Trowbridge Rd. After Amber's father backed into the driveway, she and her parents talked about the incident before the police came to their house. In her official statement given to the Ottawa County Sheriff's Office, Amber stated that all three vehicles (driven by Collin Palmer, Mrs. Palmer, and Josh Brier) turned into the Palmer's driveway just down Trowbridge Rd. [Pl. Ex. 25].

Mr. Abraham stated that he noticed a dirt bike approaching as he had turned to the left into the street at a forty-five degree angle in preparation of backing into his driveway. He testified that the dirt bike was in the middle of the road. As he was still at a “strange angle”, Mr. Abraham testified that he pulled out a little further onto the road and stopped. While stopped, Collin Palmer passed by on his dirt bike, and Mrs. Palmer began honking from her van, which Mr. Abraham believed was still roughly fifty yards from his house. At the time, Mr. Abraham was unaware that it was Collin Palmer driving the dirt bike, but he stated that the dirt bike got so close to his vehicle that he thought the driver may have been drunk.

Collin Palmer was twelve when the incident occurred, and he had owned the dirt bike for roughly three years at the time of the incident. He testified that on July 13, 2010, he was returning home from a friend's house who lived nearby. His mother, Mrs. Palmer, was following him home from his friend's house in her vehicle. In her handwritten statement to police regarding the July 13, 2010 incident, she wrote that she had traveled to the nearby friend's residence to let Collin know that dinner was ready. [Pl. Exs. 18, 19].

As Collin was traveling on Trowbridge Road towards his home, his route took him past Plaintiffs' residence. As he was approaching Plaintiffs' residence, Collin stated that he was driving the dirt bike on the left berm of the road, on the opposite side of the road from the Plaintiffs' driveway. Collin observed that Mr. Abraham's vehicle was pulled into the driveway with the front of the vehicle aiming towards his house,...