Cowart v. Elias (In re Elias)

• Decision Date: 03 July 2013
• Docket Number: Adversary No. 12–1083.,Bankruptcy No. 12–10215–JNF.
• Citation: 494 B.R. 595
• Parties: In re Mario ELIAS, Debtor. Delores Cowart, Plaintiff v. Mario Elias, Defendant.
• Court: U.S. Bankruptcy Court — District of Massachusetts

494 B.R. 595

In re Mario ELIAS, Debtor.Delores Cowart, Plaintiff

v.Mario Elias, Defendant.

Bankruptcy No. 12–10215–JNF.

Adversary No. 12–1083.

United States Bankruptcy Court, D. Massachusetts.

July 3, 2013.

William H. Gagas, Law Office of William H. Gagas, Brookline, MA, Keith L. Miller, Law Offices of Keith L. Miller, Boston, MA, for Plaintiff.

Mario Elias, Milton, MA, pro se.

MEMORANDUM

JOAN N. FEENEY, Bankruptcy Judge.

I. INTRODUCTION

The matter before the Court is the “Complaint Objecting to Discharge of Debtor” filed against Mario Elias (“Elias”) by Delores Cowart (the “Plaintiff”) through which she alleges that Elias committed an assault and battery against her which was “willful and malicious” and caused her injury (the “Complaint”). Although the Complaint is denominated as an objection to discharge, the Plaintiff seeks to except a particular debt from discharge pursuant to 11 U.S.C. § 523(a)(6), as well as a jury trial. The Court conducted a trial on May 21, 2013 at which Elias was the sole witness and four exhibits were introduced into evidence. Following the trial, both parties filed post-trial briefs.

At the outset of the trial, the Court ruled that there were no allegations in the Complaint stating a claim for denial of discharge pursuant to 11 U.S.C. § 727, and the Court dismissed any claim for denial of discharge.¹ The Court also ruled that there was no right to a jury trial in an exception to discharge proceeding and struck the Plaintiff's jury demand.² In response, counsel to the Plaintiff stated that “[w]e'll accede to the Court's ruling....”

The issues presented are whether Elias's admission in a state court criminal proceeding to sufficient facts to support a conviction for an assault and battery on the Plaintiff has preclusive effect in this exception to discharge proceeding, and whether the elements of the crime of assault and battery under Massachusetts law are sufficient to establish the elements of willful and malicious injury under 11 U.S.C. § 523(a)(6).

This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334(a) and (b) and the order of reference from the United States District Court for the District of Massachusetts. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). The Court now makes the following findings of fact and conclusions of law pursuant to Fed. R. Bankr.P. 7052.

II. FACTS AND PROCEDURAL HISTORY

Elias filed a voluntary petition under Chapter 7 of the Bankruptcy Code on January 11, 2012. On his Schedule A–Real Property, Elias listed real property located at 21 Oak Street, Milton, Massachusetts (the “property”) as his “former residence ... believed [sic] in foreclosure proceedings.” On his Schedule D–Creditors Holding Secured Claims, Elias listed the Plaintiff as the holder of an attachment on the property based on a “Claim for Negligence and Negligent Infliction of Emotional Distress, 2008, contained in Suffolk County Civil Action No. 11–1396.” Elias received a discharge of dischargeable debts on April 10, 2012. He was represented by counsel in his bankruptcy case.

On April 6, 2012, the Plaintiff timely filed the Complaint. Elias filed an Answer, pro se, on May 11, 2012. Through the Complaint, which consisted of two pages, the Plaintiff alleges that on or about May 12, 2009, a criminal complaint was issued against Elias from the Trial Court of the Commonwealth of Massachusetts, Boston Municipal Court Department (the “Criminal Complaint”) containing two counts for assault and battery and two counts for indecent assault and battery arising from an incident which occurred on April 14, 2008 at Bunker Hill Community College in Charlestown, Massachusetts (the “College”) where the Plaintiff was a student and Elias was an employee. The Plaintiff further alleges that Elias admitted to sufficient facts for a finding of guilty on Count 1 of the Criminal Complaint, namely assault and battery pursuant to Mass. Gen. Laws ch. 265, § 13A.

The Plaintiff further alleges in the Complaint that on April 8, 2011 she commenced a civil action against Elias in the Suffolk County Superior Court seeking monetary damages against Elias for personal injuries “arising from the incident” without any details or an explication of the nature of the incident. On July 20, 2011, that court (Holtz, J.) issued a Writ of Attachment in the sum of $500,000 in favor of the Plaintiff with respect to the property. Notably, the Plaintiff pleaded virtually no facts in the Complaint about the underlying assault and battery or the specific conduct involved. She merely attached copies of the “Tender of Plea or Admission to Sufficient Facts Waiver of Rights” (the “Admission”) signed by Elias on January 11, 2011, the Criminal Complaint, which contains virtually no factual allegations concerning the assault and battery, and a copy of the Writ of Attachment. The Complaint contains a reference to 11 U.S.C. § 523(a)(6), and the prayer for relief is a request to “deny discharge of the debtor as to the Suffolk Superior Court complaint.” ³

This Court issued a Pretrial Order on May 17, 2012 which required the parties to file a Joint Pretrial Memorandum setting forth, inter alia, a list of witnesses they expected to testify at trial as well as facts about which the parties agreed and which would require no proof. The parties filed their Joint Pretrial Memorandum on December 17, 2012. The Plaintiff listed eight witnesses, including herself, to be called as witnesses at trial. Elias listed four potential witnesses, including himself, and three individuals connected with the College.⁴ The parties also reported in the Joint Pretrial Memorandum that they were unable to stipulate to any facts and that all facts alleged in the Complaint were in dispute.

III. THE EVIDENCE ADDUCED AT TRIAL

At trial, the Plaintiff called only Elias as a witness and introduced only two exhibits, namely certified copies of the Criminal Complaint, dated May 12, 2009, and the Admission, dated January 11, 2011. The Plaintiff established no factual background concerning the Plaintiff's injury caused by Elias other than that an incident occurred between them at the College on April 14, 2008 which gave rise to criminal charges against Elias as set forth in the Criminal Complaint.

The Criminal Complaint contains two counts against Elias for assault and battery pursuant to Mass. Gen. Laws ch. 265, § 13A (Counts 1 and 2), and two counts for indecent assault and battery on a person over the age of 14 pursuant to Mass. Gen. Laws ch. 265, § 13H (Counts 3 and 4). It references an offense date of April 14, 2008 and the location of the offense as the College but contains no reference to the Plaintiff by name. Count 1 of the Criminal Complaint, entitled “A & B C265 S13A” provides as follows:

Did assault and beat [sic] known to the Commonwealth, in Violation of G.L. C. 265, S. 13A (Penalty: House of Correction Not More Than 2 1/2 Years; Or Not More than $1,000.)The Criminal Complaint contains separate handwritten dispositions with respect to all of the counts. Counts 2, 3 and 4 are noted as “dismissed.” With respect to Count 1, the notation indicates “CFFS–CWOF for 11 months to 12/14/11.” There are also handwritten notations providing “Stay away from XY” and references to $65 and $90 fees or charges. Counsel to the Plaintiff explained at trial that the disposition of Count 1 was “continued without a finding,” better known as a “CWOF.”

The Plaintiff also introduced the Admission, dated January 11, 2011, bearing Elias's name as the defendant and the same docket number referenced on the Criminal Complaint. Section 1 of the document, entitled “Tender of Plea,” provides, in part, the following:

Defendant in this case hereby tenders the following ... [check mark] ADMISSION TO FACTS SUFFICIENT FOR A FINDING OF GUILTY conditioned on the dispositional terms indicated below....

After the above, the document contains the following handwritten notations under the heading “Defendant's Dispositional Terms:”

Count A: [count 1] Assault and Battery 11 Month CWOF + stay away from Delores Cowart [the Plaintiff] + her family.... Count B: Ct. 2–4 Dismiss on successful colloquy.

Section IV of the Admission, entitled “Defendants's Waiver of Rights ...” provides for the defendant's waiver of the rights to a jury trial, to confront accusers and to assert the privilege against self-incrimination. Additionally, that section contains an acknowledgment that the admission was made voluntarily, with “aware[ness] of the nature and elements of the charge ... to which I am entering my ... admission.” Section VI, entitled “Judge's Certification,” provides, in part, the following:

... I [the judge] find, after a colloquy with the defendant, that the defendant has knowingly, intelligently and voluntarily waived all of these rights as explained during these proceedings and set forth in this form. After a hearing, I have found a factual basis for the charge(s) to which the defendant is ... admitting to sufficient facts and I have found that these facts ... admitted to by the defendant would support a conviction on the charges to which the plea or admission is made....

Elias testified that both the presiding judge and his criminal defense attorney, Tony Fugate, explained the Admission form to him and that he understood their explanations. The trial court accepted the Admission, and it was signed by Elias, Attorney Fugate and the presiding judge on January 11, 2011, more than eighteen months after the date of the Criminal Complaint. Elias read the pertinent provisions of the document into the record at trial during direct examination by the Plaintiff, following which the Plaintiff rested her case without submitting further evidence regarding the details of the incident which took place between Elias and the Plaintiff on April 14, 2008 or the full procedural history of the criminal case which culminated in the Admission. When the Court asked Plaintiff's counsel why he did...