Cloutier v. Borg (In re Borg)

• Decision Date: 18 January 2023
• Docket Number: 18-51538 (JAM),Adv. Pro. 19-05007 (JAM)
• Parties: IN RE: ALISON L. BORG, Debtor. v. ALISON L. BORG, Defendant. LYNNE CLOUTIER, Plaintiff, ECF No. 7
• Court: U.S. Bankruptcy Court — District of Connecticut

IN RE: ALISON L. BORG, Debtor.

LYNNE CLOUTIER, Plaintiff, v. ALISON L. BORG, Defendant.

ECF No. 7

No. 18-51538 (JAM)

Adv. Pro. No. 19-05007 (JAM)

United States Bankruptcy Court, D. Connecticut

January 18, 2023

CHAPTER 7

William J. O'Sullivan O'Sullivan McCormack Jensen & Bliss PC Attorney for the Plaintiff

Christopher G. Winans Attorney for the Defendant

MEMORANDUM OF DECISION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT

JULIE A. MANNING, UNITED STATES BANKRUPTCY JUDGE

I. INTRODUCTION

Before the Court is the Plaintiff's Motion for Summary Judgment on her claim that the debt owed her by the Defendant should be deemed non-dischargeable pursuant to 11 U.S.C. § 523(a)(6). (ECF No. 7, the "Motion.") For the reasons stated below, the Court grants the Motion as to the injury and malicious injury elements of the cause of action, but denies the Motion as to the willful injury element of the cause of action.

II. BACKGROUND

On February 6, 2019, the Plaintiff, Lynne Cloutier, filed the instant adversary proceeding against Alison Borg, the above-captioned Defendant and Debtor, alleging that the debt owed to the Plaintiff should be deemed non-dischargeable under 11 U.S.C. § 523(a)(6). (ECF No. 1, the "Complaint.") On March 15, 2019, the Plaintiff moved for summary judgment arguing collateral estoppel based on litigation in the Connecticut Superior Court - Borg v. Cloutier, FST-CV-16-6028856-S (Conn. Super. Ct. Nov. 30, 2020) (the "Superior Court Action"). (ECF No. 7.) That same date, the Plaintiff filed her Memorandum of Law in Support of Summary Judgment (ECF No. 8, the "Memorandum of Law"), her Local Rule 56(a)(1) Statement of Undisputed Material Facts (ECF No. 9, the "56(a)(1) Statement"), and the Affidavit of Brian M. Paice, Esquire (ECF No. 10, the "Affidavit"), attached to which were exhibits supporting the 56(a)(1) Statement.

On April 12, 2019, the Defendant filed an Objection to Plaintiff's Motion for Summary Judgment. (ECF No. 24, the "Objection.") The Defendant did not file a statement of facts in opposition to summary judgment under D. Conn. L. R. 56(a)(2). In her Objection, the Defendant argued that the adversary proceeding should be stayed pending the resolution of her appeal of the Superior Court Action. (ECF No. 24.) On April 17, 2019, the Plaintiff filed a Reply Memorandum in Support of Motion for Summary Judgment, arguing a determination of the Motion should not be stayed pending appeal. (ECF No. 27, the "Response.") On May 15, 2019, the Court entered an order staying the adversary proceeding pending appeal. (ECF No. 31.)

On October 23, 2020, the Plaintiff filed a Notice That State-Court Proceedings Have Concluded and Stay of this Adversary Proceeding Should Be Lifted, informing the court of the Appellate Court decision in Borg v. Cloutier, 239 A.3d 1249 (Conn. App. Ct. 2020) (the "Appellate Court Ruling"). (ECF No. 32, the "First Notice.") On October 30, 2020, the Defendant filed her Objection to Plaintiff's "Notice" Regarding State Court Proceedings arguing that because certain questions were remanded to the Superior Court, the stay should of the adversary proceeding should continue. (ECF No. 33.) On November 2, 2020, the Plaintiff filed Plaintiff's Reply to Objection to Notice. (ECF No. 34.) On November 5, 2020, the Court continued the stay of the adversary proceeding. (ECF No. 35.)

On February 4, 2022, the Plaintiff filed another Notice That State-Court Proceedings Have Concluded and Stay of this Adversary Proceeding Should Be Lifted, informing the Court of the November 30, 2020, post-remand order in the Superior Court Action and the December 28, 2021, per curium order of the Connecticut Appellate Court affirming said order, Borg v. Cloutier, 264 A.3d 1136 (Conn. App. Ct. 2021) (the "Per Curium Ruling," and together with the Appellate Court Ruling, the "Appellate Court Rulings"). (ECF No. 38, the "Second Notice.") On February 7, 2022, the Court ordered a status conference and set a briefing schedule for the Second Notice. (ECF No. 39.) On March 23, 2022, the Defendant filed her Response to Plaintiff's Notice Re: Stay, stating that the appellate stay was no longer in effect and proposing a briefing schedule. (ECF No. 42.) That same date, the Plaintiff filed her Reply to Defendant's Response opposing Defendant's proposed briefing schedule. (ECF No. 43.) On April 19, 2022, a status conference was held. (ECF No. 49.) The next day, the Court issued a Scheduling Order Regarding Motion for Summary Judgment. (ECF. 50.) By that order, the Court vacated the stay on this proceeding and set the briefing schedule. (Id.)

The Defendant did not file any further opposition to the motion for summary judgment within the time allowed. On May 27, 2022, the Plaintiff filed a Request for Adjudication of Her Motion for Summary Judgment. (ECF No. 53.) On October 28, 2022, the Court entered an order requiring that the Plaintiff file an amended statement of undisputed material facts pursuant to D. Conn. L.R. 56(a)(1) and providing the Defendant time to file a responsive statement of facts pursuant to D. Conn. L.R. 56(a)(2). (ECF No. 54.) On November 1, 2022, the Plaintiff filed her Amended Local Rule 56(a)(1) Statement of Undisputed Material Facts (ECF No. 55, the "Amended 56(a)(1) Statement") as well as her Updated and Amended Memorandum of Law in Support of Motion for Summary Judgment (ECF No. 56, the "Amended Memorandum of Law"). The Defendant did not file an amended 56(a)(2) statement. This matter is now fully briefed and ripe for decision.

III. JURISDICTION

The United States District Court for the District of Connecticut has jurisdiction over the instant proceeding pursuant to 28 U.S.C. § 1334(b). The Bankruptcy Court derives its authority to hear and determine this matter pursuant to 28 U.S.C. §§ 157(a) and (b)(1) and the District Court's General Order of Reference dated September 21, 1984. This is a core proceeding. 28 U.S.C. § 157(b)(2)(I).

IV. STATEMENT OF UNDISPUTED FACTS

Because the Defendant has not filed her opposition to the Plaintiff's Amended 56(a)(1) Statement, the facts contained therein are deemed admitted, insofar as they are supported by the evidence. See D. Conn. L. R. 56(a)(1); see also Parris v. Delaney (In re Delaney), 504 B.R. 738, 746-747 (Bankr. D. Conn. 2014). The Plaintiff's Amended 56(a)(1) Statement is incorporated below:

1. By a writ and complaint returned to the Connecticut Superior Court on April 22, 2016, the Defendant-Debtor and her husband, John Borg, for himself and on behalf of their minor daughter, commenced an action against the Plaintiff herein, Lynne Cloutier, in the Connecticut Superior Court, captioned Borg v. Cloutier, Connecticut Superior Court, Judicial District of Stamford/Norwalk at Stamford, FST-CV-16-6028856-S. The Complaint sounded in nuisance, invasion of privacy, and trespass. ECF No. 10 Ex. 1.

2. In the Superior Court Action, Ms. Cloutier filed a Counterclaim against the Debtor-Defendant and her husband. The final version of Ms. Cloutier's Counterclaim was set forth in her "Answer to Amended Complaint dated December 12, 2017, Special Defenses and Counterclaim," which was filed on December 12, 2017, and docketed in the State Court Action as entry #239.00. Id. Ex. 2.

3. Ms. Cloutier's "Counterclaim Directed Against John Borg and/or Alison Borg" began with a statement of "facts common to all counts." That part of the Counterclaim included, in relevant part, the following allegations against both the Debtor-Defendant and her husband: "The plaintiffs John Borg and/or Alison Borg erected two large flood lights on their property, that are turned on at all times of the day and evening, that shine into [Ms. Cloutier's] entire home, including her bedroom. The plaintiffs John Borg and/or Alison Borg use of said lights violates the Town of Westport Zoning Regulations § 32-7.1. [Ms. Cloutier] has repeatedly requested that the plaintiffs John Borg and/or Alison Borg remove said lights and they have repeatedly failed to do so." Id. Ex. 2.

4. In the First Count of her Counterclaim, Ms. Cloutier repeated these allegations by reference, and alleged that the Borgs' conduct constituted a private nuisance. In the Second Count of her Counterclaim, "Invasion of Privacy: Intrusion Upon Seclusion," Ms. Cloutier again repeated the allegations of paragraphs 10 through 12, and added in paragraph 26 that the conduct of both Mr. and Mrs. Borg was "an intentional intrusion upon [Ms. Cloutier's] solitude, seclusion, private affairs or concerns" and was "highly offensive to a reasonable person." Id. Ex. 2.

5. The Superior Court Action proceeded to trial before a jury in January 2018. Affidavit.

6. On January 23, 2018, the trial court's jury charge in the Superior Court Action included the following language, as set forth in the transcript of that proceeding:

[O]ne who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his or her private affairs or concerns, is subject to liability to the other person for invasion of his or her privacy, if the intrusion would be highly offensive to a reasonable person. … For liability to exist, the interference with the plaintiff's seclusion must be a substantial one, of a kind that would be highly offensive to the ordinary reasonable man or woman, as the result of conduct to which the reasonable man or woman would strongly object. Each party asserting a claim of invasion of privacy must establish all the elements I have described. This includes the plaintiffs with respect to their claims against the defendant and-it applies to the defendant's claims against the adult plaintiffs.

ECF No. 10 Ex. 3.

7. On January 24, 2018, the jury in the Superior Court Action rendered...