Bertone v. Wormington (In re Wormington)

• Citation: 555 B.R. 794
• Decision Date: 12 August 2016
• Docket Number: ADV. 16–1047–JDL,Case No. 16–10248–JDL
• Parties: In re: Kyle David Wormington, Debtor. Frank Bertone, Plaintiff, v. Kyle David Wormington, Defendant.
• Court: United States Bankruptcy Courts. Tenth Circuit. U.S. Bankruptcy Court — Western District of Oklahoma

555 B.R. 794

In re: Kyle David Wormington, Debtor.

Frank Bertone, Plaintiff

v.Kyle David Wormington, Defendant.

Case No. 16–10248–JDL

ADV. 16–1047–JDL

United States Bankruptcy Court, W.D. Oklahoma.

Signed August 12, 2016

John D. Mashburn, U.S. Bankruptcy Trustee of the bankruptcy estate of Southwest Nanotechnologies, Inc., Edmond, OK, for Plaintiff.

Paul J. Choate, The Choate Law Firm, Shawnee, OK, for Defendant.

MEMORANDUM OPINION AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

Janice D. Loyd

, U.S. Bankruptcy Judge

Before the Court is the Plaintiff's Motion for Summary Judgment (the “Motion ”) [Doc.13], the Objection to Plaintiff's Motion for Summary Judgment (the “Objection ”) [Doc.17] and the Plaintiffs' Reply to Defendant's Objection to Plaintiff's Motion for Summary Judgment [Doc.18]. Plaintiff, Frank Bertone (“Bertone”), seeks a determination that his claim for damages against Kyle David Wormington (“Debtor”) arising from Debtor's battery upon him is non-dischargeable pursuant to Bankruptcy Code § 523(a)(6)

.¹ Bertone asserts that Debtor's criminal conviction for battery in the Illinois state court is entitled to preclusive effect in this adversary proceeding such that any damages arising out of the battery are determined non-dischargeable. Debtor responds that his culpability established by the state court criminal conviction is not entitled to preclusive effect because the conviction does not rise to the “willful and malicious” level required for non-dischargeability under § 523(a)(6).

Pursuant to Fed. R. Bankr.P. 7052

, the Court makes the following findings of fact and conclusions of law in support of its finding that Bertone's Motion for Summary Judgment be granted, and a judgment will be entered determining that any debt to be liquidated in the Illinois state court action between the parties is non-dischargeable.²

I. Jurisdiction

This Court has subject matter jurisdiction over this adversary proceeding to determine the dischargeability of a debt pursuant to 28 U.S.C. §§ 157

and 1334 and the general order of reference in this district, Rule 81.4 of the Local Rules for the United States District Court for the Western District of Oklahoma. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(l).

II. Background

The potential liability at issue in this adversary proceeding arises out of Debtor's criminal conviction/judgment entered by the Circuit Court of Cook County, Illinois, finding Debtor guilty of criminal battery for injuries sustained by Bertone during an altercation between the two men in Chicago early in the morning of New Year's Day, 2014. As a result of the altercation and the Misdemeanor Complaint filed by Bertone, on February 12, 2014, the State commenced a criminal proceeding against Debtor in the Circuit Court of Cook County, Illinois, styled “The People of the State of Illinois, Plaintiff v. Kyle Wormington, Defendant, Case No. 14119732201 ” for the offense of “Battery—Cause Bodily Harm ” under the provisions of Chapter 720 Illinois Compiled Statutes, Act 5, Subsection 12–3–A–1 (hereinafter referred to as “720 –5/12 –3”) which provides as follows:

§ 12–3. Battery.

(a) A person commits battery if he or she knowingly without legal justification by any means

(1) causes bodily harm to an individual or ...

(2) makes physical contact of an insulting or provoking nature with an individual.

After originally requesting a jury trial, Debtor subsequently waived a jury trial. The trial was conducted before the Court on July 30, 2014, whereupon the Debtor was found guilty of Battery—Cause Bodily Harm with the imposition of a one year suspended sentence, court costs assessed in an amount of $265.00 and Debtor ordered to have no further contact with the complaining witness, Bertone.

In his Motion before the court, Bertone argues that the Illinois state court's determination/conviction of criminal battery preclusively establishes that the State Court Judgment is a debt for willful and malicious injury caused by Debtor that is excepted from discharge pursuant to § 523(a)(6)

. Debtor counters that the State Court's criminal conviction for battery is not entitled to preclusive effect since the conviction did not carry with it the requisite elements under § 523(a)(6) that Debtor caused an injury or that he acted with malicious intent.

III. Summary Judgment Standard

It is appropriate to grant a motion for summary judgment when the pleadings and other materials in the record, together with supporting affidavits, if any, demonstrate that there is no genuine dispute with respect to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c)

, made applicable to this adversary proceeding by Fed. R. Bankr.P. 7056. “[A] party seeking summary judgment always bears the initial responsibility of informing the ... court of the basis for its motion, and ... [must] demonstrate the absence of a genuine issue of material fact”. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Courts must review the evidentiary material submitted in support of the motion for summary judgment to ensure that the motion is supported by evidence. If the evidence submitted in support of the summary judgment motion does not meet the movant's burden, then summary judgment must be denied. Hearsay evidence cannot be considered on a motion for summary judgment. Wiley v. United States, 20 F.3d 222, 226 (6th Cir.1994).

When considering a motion for summary judgment, the court views the record in the light most favorable to the party opposing summary judgment. See, Deepwater Investments, Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir.1991)

(the court “must view the record in a light most favorable to the parties opposing the motion for summary judgment”.); Harris v. Beneficial Oklahoma, Inc. (In re Harris), 209 B.R. 990, 995 (10th Cir. BAP 1997). Denial of summary judgment requires existence of genuine material issues that “can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party”. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuine issue of fact exists if a rational fact finder, when viewing the record as a whole, could not find for the party opposing the summary judgment. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (“where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”).

“[T]he non-moving party may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial as to those dispositive matters for which it carries the burden of proof”. Vitkus v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir.1993)

. The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir.1998). When issue preclusion bars the parties from relitigating material issues, summary judgment may be granted. Ross v. Alaska, 189 F.3d 1107, 1113 (9th Cir.1999).

Local Bankruptcy Rule 7056–1, which tracks Tenth Circuit and Supreme Court law on the issue, governs summary judgment practice in this Court. That Rule provides, in part:

C. Response Brief. * * * The response brief shall begin with a section stating, by paragraph number, each of the movant's facts as to which the non- movant contends a genuine issue exists, and shall refer with particularity to those portions of affidavits, discovery materials, Documents, and other relevant parts of the record before the Court upon which the non-movant relies to dispute the movant's fact. All properly supported material facts set forth in the movant's statement shall be deemed admitted for the purpose of summary judgment unless specifically controverted by a statement of the non-movant that is supported by evidentiary material. If the non-movant contends that other material facts exist which preclude summary judgment, the non-movant shall set forth each such material fact in a separately numbered paragraph and shall refer with particularity to those portions of affidavits, discovery materials, Documents, and other relevant parts of the record before the Court upon which the non-movant relies. * * *

Bertone's Motion contains 14 material facts which he claims are undisputed. Debtor's Objection does not refer with particularity to any portion of the record upon which he relies to show each of Bertone's facts are disputed. As stated above, a party opposing a properly supported motion for summary judgment “may not rest on its pleadings but must set forth specific facts showing that there is a genuine issue for trial.... Muck v. United States, 3 F.3d 1378, 1380 (10th Cir.1993)

. Here, Debtor asserts such unsupported “facts” as “defendant denies he battered Bertone, debtor did not plead guilty and debtor maintains his innocence to any alleged crime to the present time”. [Doc. 17, ¶ 1]. These assertions, however, ignore the undisputed fact that after a trial on the merits Debtor was convicted of battery. Similarly, despite the fact that he was convicted of battery “causing bodily injury”, Debtor asserts that Bertone did not “suffer any serious injury” since Bertone's own exhibit shows he was treated and released from the hospital without any extended stay ”. [Doc. 17, ¶ 2]. (Emphasis the Court). Debtor does not cite to any specific portions of the record which would controvert Bertone's facts. In short, a debtor must “do more than simply show that there is some metaphysical doubt as to the material facts”. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

Debtor's failure to appropriately respond to the summary judgment motion does not mean it must be granted. Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir.2002)

(“A party's...