Bowe v. Kilmartin (In re Kilmartin)

Decision Date27 March 2014
Docket NumberAdversary No. 13–05005.,Bankruptcy No. 13–50070.
Citation508 B.R. 35
PartiesIn re Joseph J. KILMARTIN, Debtor. Kyle Bowe, Plaintiff v. Joseph J. Kilmartin, Defendant.
CourtU.S. Bankruptcy Court — Western District of Kentucky


Mark C. Whitlow, Whitlow, Roberts, Houston & Straub, PLLC, Paducah, KY, for Plaintiff.

Steve Vidmer, Murray, KY, for Defendant.


THOMAS H. FULTON, Bankruptcy Judge.

THIS ADVERSARY PROCEEDING comes before the court on Plaintiff Kyle Bowe's motion seeking summary judgment against Defendant Joseph J. Kilmartin. For the reasons expressed below, the Court DENIES the Plaintiff's Motion.


On or about January 23, 2009,1 Plaintiff and the Defendant found themselves in a home located in Pemberton Township, Burlington County, New Jersey. There, the two men became involved in a violent altercation.

Accounts of the incident differ. The Plaintiff claims he was struck first without provocation, while the Defendant insists that he “reflexively struck back” to defend himself against an attack from the Plaintiff. (Def.'s Objection Pl.'s Mot. Summ. J. at 1). The Plaintiff seems to have emerged from the fray significantly the worse for wear. He alleges, and the Defendant does not dispute, that he “suffered severe physical and emotional trauma necessitating medical intervention.” (Pl.'s Mem. Supp. Mot. Summ. J. at 1). In an affidavit submitted to this Court, the Plaintiff lists a number of specific injuries including, but not limited to, fractured nasal bones, head contusions, and a lost tooth.

The Plaintiff pursued a criminal complaint against the Defendant. On November 30, 2010, a New Jersey grand jury indicted the Defendant on a charge of Aggravated Assault. N.J. Stat. Ann.. § 2C:12–1 b(1). Instead of risking an Aggravated Assault conviction, the Defendant pled guilty to the lesser crime of Simple Assault. N.J. STAT. ANN. § 2C:12–1 a.2On February 18, 2011, the Defendant was sentenced to 270 days in Burlington County Jail and ordered to pay restitution to the Plaintiff in the sum of $11,580.60.

The Plaintiff also pursued a civil complaint against the Defendant in the Superior Court of New Jersey, Civil Division (the “New Jersey Court). According to his affidavit, the Plaintiff initiated the New Jersey lawsuit on January 19, 2011, the Defendant was served with summons on February 18, 2011, the Defendant answered the complaint on April 18, 2011, and the parties then engaged in discovery.3 On September 19, 2012, the case was arbitrated in front of arbitrator Chris Curtis. The Defendant appeared pro se.4 An arbitration award was filed the same day, in favor of the Plaintiff, for $60,000.5

But there was a problem with the arbitration award. The award stated that the Defendant was 100 percent liable, Plaintiff was zero percent liable, and that the Plaintiff was entitled to $60,000. The award, however, also stated that one of the reasons that the arbitrator made the award was that the Defendant had “pleaded guilty to N.J.S. 2C:12–1 b(1), aggravated assault.” (Pl's Ex. 4, at 1). This was untrue: the Defendant had pled guilty to a different crime, Simple Assault.

In response to this error, the Plaintiff and Defendant—now represented by counsel—entered into a Consent Order that the parties then filed in the chambers of Judge M. Patricia Richmond on October 23, 2012. The Consent Order has been submitted in this case as Exhibit 4 to the Plaintiff's Motion for Summary Judgment.

The Consent Order states, first, that Plaintiff Kyle Bowe filed this action to recover damages for personal injuries he sustained as a result of a January 24, 2009 incident involving Defendant Joseph Kilmartin.” (Pl.'s Ex. 4, at 1). The Consent Order then recounts how the case was arbitrated to the favor of the Plaintiff and states that the arbitrator made several findings in support of his award, including: (1) that the Defendant pled guilty to aggravated assault; (2) that the Plaintiff sustained various injuries; (3) that the award was inclusive of any outstanding medical bills; (4) that the award was in addition to the restitution imposed by the criminal proceedings; and that a defense was presented. Next, the Consent Order explains as follows:

WHEREAS, the arbitration award inaccurately reports that Defendant pleaded guilty to aggravated assault when in fact Defendant plead guilty only to a misdemeanor charge of simple assault, the parties have mutually agreed to settle based on the conclusions and findings contained in the arbitration award, with the exception that the final judgment order shall reflect an accurate recitation of Defendant's guilty plea to simple assault.

(Pl.'s Ex. 4, at 2). The Consent Order goes on to state that [u]pon entry of judgment, all other conclusions and findings included in the original arbitration award (excluding the aforementioned reference to Defendant's guilty plea) shall remain the same.” ( Id.). Then, the Consent Order sets forth an enumerated list, apparently containing the findings and conclusions from the original arbitration award. These include a tally of the Plaintiff's injuries, statements as to the Defendant's liability, and recitations of the $60,000 owed in damages and the $11,580 owed in criminal restitution. Finally, the Consent Order states that the Defendant “guarantees payment of the final judgment award ... and consents to the jurisdiction of this Court for the purposes of enforcing this judgment.” ( Id.). The Consent Order does not state the causes of action or allegations listed in the Plaintiff's complaint, does not refer to the Defendant's mental state, and does not describe what actions the Defendant took that injured the Plaintiff.

In January of 2013, the Plaintiff moved the New Jersey Court for an order confirming the September 19, 2012 arbitration award. On February 8, 2013, via an “Order Confirming Arbitration Award and Entering Judgment,” the New Jersey Court granted the motion and entered judgment in favor of the Plaintiff in the amount of $60,000. (Pl.'s Ex. 3). The order entering judgment does not contain any other information about the lawsuit; it contains no description of the contents of the pleadings or any other substantive information about the arbitration proceedings, the award, or the Consent Order.

The Defendant filed a chapter 7 bankruptcy petition on February 4, 2013. On April 1, 2013, the Plaintiff initiated this adversary proceeding, asking the Court to declare the New Jersey restitution award and arbitration award nondischargeable under 11 U.S.C. § 523(a)(6), which excepts from discharge any debt “for willful and malicious injury by the debtor.” 11 U.S.C. § 523(a)(6).

The Defendant filed his answer on May 7, 2013. He admitted that the criminal restitution award was nondischargeable, but disputed the nondischargeability of the arbitration award, contending that none of his actions were willful or malicious.

On September 19, 2013, the Plaintiff filed his Motion for Summary Judgment. The Plaintiff argues that he is entitled to a § 523(a)(6) nondischargeability determination under a theory of collateral estoppel. According to the Plaintiff, the arbitration award against the Defendant was a conclusive determination that the Defendant willfully and maliciously injured him, thus foreclosing any relitigation of the issue of the Defendant's mental state. The Defendant contends that no determination of his mental state was ever made at the arbitration hearing, and that therefore a trial must be held to determine the dischargeability of the arbitration award.


The Bankruptcy Court for the Western District of Kentucky has previously described the standard to be employed in evaluating a motion for summary judgment:

In considering a motion for summary judgment, the question presented to this Court is whether there is “no genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). This Court cannot try issues of fact on a Rule 56 motion, but is authorized to determine whether there are issues to be tried. In re Atlas Concrete Pipe, Inc., 668 F.2d 905, 908 (6th Cir.1982). In Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), the Supreme Court held that “in filing a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden; i.e., whether a jury could reasonably find either the plaintiff proved his case by the quality or quantity of evidence required by the law or that he did not.” Id., 477 U.S. at 254, 106 S.Ct. at 2513.

When ruling on a motion for summary judgment, the inference to be drawn from the underlying facts contained in the record must be viewed in a light most favorable to the party opposing the motion, in this case the Defendant/Debtor. Anderson, 477 U.S. at 242, 106 S.Ct. at 2506–07. By granting summary judgment, the Court is concluding that based on the evidence upon which the nonmoving party intends to rely at trial, no reasonable fact finder could return a verdict for the nonmoving party. Munson v. Friske, 754 F.2d 683, 690 (7th Cir.1985).

The moving party carries the initial burden of proof by informing the Court of the basis of its motion, and by identifying portions of the record which highlight the absence of genuine factual issues. Once the moving party has produced such evidence, the nonmoving party must then direct the Court's attention to evidence in the record sufficient to establish that there is a genuine issue of material fact for trial. In other words, the nonmoving party, in this case the Defendant/Debtor, must come forward with evidence establishing that he has a viable defense to the stated cause of action. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); First National Bank v. Cities Service Co., 391 U.S. 253, 289–90, 88 S.Ct. 1575,...

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4 cases
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    ...a willful and malicious injury. Ordinarily, the issue of intent is not suitable for disposition on summary judgment. In re Kilmartin, 508 B.R. 35, 42 (Bankr.W.D.Ky.2014). Generally, intent is a question of fact. But, "[w]hen the evidence is so one sided that reasonable minds could not diffe......
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    ...defect: the issue of intent under § 523(a)(6) has not been adequately established by the prior decisions. See also In re Kilmartin , 508 B.R. 35, 42 (Bankr. W.D. Ky. 2014) (holding that issue preclusion did not apply and denying relief on summary judgment because the relied-upon prior decis......
  • Scroggins v. Jones (In re Jones)
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    • January 20, 2022
    ... ... question of fact. See In re Kilmartin , 508 B.R. 35, ... 42 (Bankr. W.D. Ky. 2014). But, when the evidence is so one ... ...

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