Cobb v. Clampitt (In re Clampitt)

• Decision Date: 15 October 2013
• Docket Number: Adversary No. 11–2010–659.,Bankruptcy No. 11–20011–659.
• Citation: 499 B.R. 640
• Parties: In re James Arthur CLAMPITT, Debtor. Ashley Cobb, et al., Plaintiffs, v. James Arthur Clampitt, Defendant.
• Court: U.S. Bankruptcy Court — Eastern District of Missouri

499 B.R. 640

In re James Arthur CLAMPITT, Debtor.
Ashley Cobb, et al., Plaintiffs,
v.
James Arthur Clampitt, Defendant.

Bankruptcy No. 11–20011–659.
Adversary No. 11–2010–659.

United States Bankruptcy Court,
E.D. Missouri,
Northern Division.

Oct. 15, 2013.

[499 B.R. 642]

Howard S. Smotkin, Stone, Leyton & Gershman, Scott L. Kolker, St. Louis, MO, for Plaintiffs.

Fredrich J. Cruse, The Cruse Law Firm, Hannibal, MO, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW
KATHY A. SURRATT–STATES, Chief Judge.

The matter before the Court is the Complaint to Determine the Dischargeability of

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a Particular Debt Pursuant to 11 U.S.C. § 523 filed by Plaintiffs Ashley Cobb, by and through her next friend Jan Cobb, Marci Cobb and Gemma Carroll and Answer to Complaint to Determine the Dischargeability of a Particular Debt Pursuant to 11 U.S.C. § 523 filed by Defendant James Arthur Clampitt. On November 13, 2012, this Court denied Defendant James Arthur Clampitt's Motion for Summary Judgment. On December 3, 2012, this Court held a telephonic conference and granted Plaintiffs' Oral Motion to Permit Deposition Testimony to be Offered into Evidence at Trial. ¹ A trial was held on December 4, 2012, at which Plaintiffs appeared by counsel and Defendant appeared in person and by counsel. Argument was presented, exhibits were admitted,² testimony was presented ³ and the matter was taken under submission. Upon consideration of the record as a whole, the Court issues the following FINDINGS OF FACT:

Defendant James Arthur Clampitt (hereinafter “Defendant”) filed a Voluntary Petition under Chapter 7 of the Bankruptcy Code on January 18, 2011. Defendant is a 41 year old attorney licensed to practice law in the State of Missouri. He is approximately 5'10? and 235 lbs. On June 13, 2010, Defendant weighed over 260 lbs. Defendant has represented clients in several Driving While Intoxicated (hereinafter “DWI”) matters in the past and testified that he has received DWI training that he has used in defense of his clients. Defendant testified that in his career, he has handled between 50 and 100 DWI cases.

On July 8, 2011, Plaintiffs Ashley Cobb, by and through her Next Friend, Jan Cobb, Marci Cobb and Gemma Carrol (hereinafter “Plaintiffs”) filed the Complaint seeking to except any debt owed by Defendant for the wrongful death of Richard Cobb (hereinafter “Decedent”) pursuant to Section 523(a)(6) or (a)(9). Plaintiff Ashley Cobb is Decedent's 14 year old daughter, Jan Cobb is a relative of Decedent, Marci Cobb is the Decedent's wife of only five (5) weeks and Gemma Carrol is Decedent's mother. Decedent is also survived by his 15 year old son Matthew Cobb.

At approximately 4:30 p.m. on June 13, 2010, Defendant and Ms. Angela Bagley

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(hereinafter “Ms. Bagley”), Defendant's fiancé at the time of trial, went to see a movie which lasted approximately two (2) hours. After the movie, Defendant and Ms. Bagley went to Dos Arcos, a Mexican Restaurant in Mexico, Missouri. Both Defendant and Ms. Bagley ordered some food ⁴ and two alcoholic drinks each. Defendant consumed a large, 32 ounce double rum and coke and approximately half of his second drink, a small, single rum and coke. There is no dispute that the bartenders at Dos Arcos do not measure the amount of alcohol put in each drink, rather, the alcohol is free-poured until the drinks are “strong enough.” ⁵ There is no evidence as to the brand or proof of the rum used to make Defendant's rum and coke drinks at Dos Arcos, nor is there evidence of whether the rum used was dark, gold, or light (white or clear) rum.

While at Dos Arcos, Defendant sent numerous text messages. A few of those text messages were sent to and received by Ms. Sarah Gleeson (hereinafter “Ms. Gleeson”). Ms. Gleeson was at Dos Arcos during a portion of the time that Defendant was there with Ms. Bagley but Ms. Gleeson did not dine with Defendant and Ms. Bagley. Defendant and Ms. Gleeson got into an altercation-of-sorts via text message.⁶ At approximately 8:34 p.m., Defendant sent Ms. Gleeson a text saying “Not sure ... Drunk & sad.” ⁷ Based on the tone of the text messages between Defendant and Ms. Gleeson, it appears that Defendant's “Not sure ... Drunk & sad” text was in response to Ms. Gleeson's inquiry to Defendant as to the reason for some of the comments made in Defendant's previous text messages that evening. However, Defendant testified that he sent the “Not sure ... Drunk & sad” text because he was not feeling good about his choices and was trying to distance himself from Ms. Gleeson despite her aggressive pursuit of him. As such, Defendant testified that his “Not sure ... Drunk & sad” text was sent in effort to get Ms. Gleeson to “back-off” and to let her know he was not in the mood to talk.

Defendant received the bill for his and Ms. Bagley's meal at approximately 9:09 p.m. Defendant and Ms. Bagley departed Dos Arcos after Defendant paid the bill by credit card and then proceeded to Ms. Bagley's home in Defendant's 2007 Chevrolet Suburban, a full-size Sports Utility Vehicle (hereinafter “SUV”). At approximately 9:15 p.m., Defendant received a text message from Ms. Gleeson asking Defendant to return to Dos Arcos to talk to

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her.⁸ Defendant dropped Ms. Bagley off at her home and then sought to return to Dos Arcos to meet Ms. Gleeson.

On route to Dos Arcos, Defendant drove on North Jefferson Street in Mexico, Missouri. At approximately 9:30 p.m., Decedent was operating a riding lawnmower in the 800 block of North Jefferson Street in Mexico, Missouri. ⁹ That portion of North Jefferson Street is in a residential area and is a straight and flat strip of road. The sun had just set, the roads were dry and visibility was clear. Decedent and Defendant were both driving in the same direction, south-bound, on North Jefferson. Decedent noticed Defendant and waived his hands as if to try to get Defendant to notice him.¹⁰ Decedent was wearing dark colored clothing. The riding lawnmower did not have reflectors or taillights.¹¹

Defendant struck the riding lawnmower while Decedent was operating it. There is no evidence that Defendant applied his brakes before the crash occurred. The impact of the SUV and the riding lawnmower caused the riding lawnmower to be pushed back at least 31 feet and 10 inches.¹² Defendant momentarily slowed down after the impact, then Defendant continued driving.

Decedent was responsive on the scene and became considerably combative with the Emergency Medical Technicians (EMTs).¹³ Decedent was ultimately restrained, sedated by intravenous medication, possibly intubated,¹⁴ transported to Audrain Medical Center and air lifted to University Hospital. ¹⁵

The airbags in the SUV did not activate at any time due to the impact with the riding lawnmower.¹⁶ The SUV did sustain considerable damage in that the metal radiator support was bent and there was damage to the front bumper and headlight assembly.

The loud crash caused numerous residents to exit from their homes. One witness testified that he heard a riding lawnmower, then he heard a crash that was quite loud—loud enough to overpower the fans and tv in his home—then he no longer heard the riding lawnmower.¹⁷ One witness thought the loud noise was someone crashing into her garage.¹⁸ Detective Carl Fuenfhausen (hereinafter “Detective Fuenfhausen”) arrived on the scene and

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conducted an investigation of the crash, which included collecting witness statements and amassing evidence found at the scene of the crash to the inclusion of debris and broken pieces from the SUV.

Defendant arrived at Dos Arcos and Ms. Gleeson was sitting on the tailgate of her friend Christine Mahler's truck. Christine Mahler and Mike Finch were also sitting on the tailgate of the truck. Defendant pulled up such that the passenger side of the SUV was closest to the tailgate of Christine Mahler's truck, however, Defendant stopped the SUV such that the front was past where Ms. Gleeson, Christie Mahler and Mike Finch were seated. Defendant remained in the SUV. Ms. Gleeson spoke to Defendant first through the passenger-side window and then through the driver-side window.¹⁹ Ms. Gleeson did not notice any damage to the SUV.²⁰ Christine Mahler and Mike Finch also denied noticing any damage to the SUV, though they further stated that they were not paying much attention because they were talking.²¹

In an interview held on July 7, 2010, Ms. Gleeson informed Detective Fuenfhausen that the amount of alcohol in the drinks at Dos Arcos “differs” from time to time.²² Ms. Gleeson further stated that when she was talking to Defendant outside of Dos Arcos through the SUV windows, Defendant appeared to be “normal” and that she did not believe he was intoxicated. When Defendant Fuenfhausen reminded Ms. Gleeson of the aforementioned “Not sure ... Drunk & sad” text message that was sent by Defendant to her, Ms. Gleeson then stated that Defendant was not “drunk drunk.” ²³ When deposed, Ms. Gleeson stated that she did not “remember using those words.” ²⁴

Defendant left Dos Arcos and returned home to retrieve his daughter Abigail Clampitt's (hereinafter “Abigail”) laptop. Abigail resides with her mother, Defendant's ex-wife. Abigail asked Defendant to bring her the laptop via text message sent at approximately 9:23 p.m. that evening.²⁵ Though Defendant initially indicated that he would bring Abigail the laptop the following day,²⁶ Defendant arrived at Abigail's home with the laptop at approximately 10:12 p.m.²⁷ Abigail testified that when she saw Defendant that night, he did not appear intoxicated nor did she smell an odor of alcohol while he was in her presence. Neither Abigail nor her mother observed the SUV at any point during Defendant's visit.²⁸

Defendant then proceeded to Rebecca Lottinville's (hereinafter “Ms. Lottinville”) house and arrived at approximately 10:25 p.m.²⁹ Defendant stayed at Ms. Lottinville's house for approximately 45 minutes ³⁰ then he...