Hoewischer v. White (In re White)

• Decision Date: 23 June 2016
• Docket Number: Adv. Pro. No. 15–02115,Case No. 15–50031
• Citation: 551 B.R. 814
• Parties: In re: Steven Rolyn White, Afton Dawn White, Debtor(s). Jennifer Hoewischer, Plaintiff(s), v. Steven Rolyn White, Defendant(s).
• Court: U.S. Bankruptcy Court — Southern District of Ohio

551 B.R. 814

In re: Steven Rolyn White, Afton Dawn White, Debtor(s).

Jennifer Hoewischer, Plaintiff(s)

v.Steven Rolyn White, Defendant(s).

Case No. 15–50031

Adv. Pro. No. 15–02115

United States Bankruptcy Court, S.D. Ohio, Eastern Division.

Signed June 23, 2016

Michael Thomas Gunner, Attorney for Plaintiff

Derek Michael Shaw, Attorney for Defendant

MEMORANDUM OPINION ON CROSS MOTIONS FOR SUMMARY JUDGMENT

C. Kathryn Preston

, United States Bankruptcy Judge

This cause came on for consideration of the Defendant's Motion for Summary Judgment (Doc. 's 10) (“Defendant's MSJ”) filed by Steven White, and the Plaintiff's Response to Defendant's Motion for Summary Judgment and Plaintiffs Motion for Summary Judgment (Doc. # 13) (“Plaintiff's MSJ”) filed by Jennifer Hoewischer in the above captioned adversary proceeding.

Jennifer Hoewischer (“Ms.Hoewischer”), the plaintiff in this adversary proceeding, seeks summary judgment on the issue of whether the debt arising from a state court judgment against the debtor, Steven Rolyn White (“Mr.White”), for invasion of privacy is excepted from discharge under 11 U.S.C. § 523(a)(6)

. The Court having considered the record and the arguments of the parties, makes the following findings and conclusions.

I. Jurisdiction

The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334

and General Order 05–02 entered by the United States District Court for the Southern District of Ohio, referring all bankruptcy matters to this Court. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). Venue is properly before this Court pursuant to 28 U.S.C. §§ 1408 and 1409.

II. Findings of Fact

Upon the pleadings, depositions, answers to interrogatories, admissions on file, affidavits, and other materials submitted with the motions for summary judgment, the Court makes the following findings of fact:

On October 4, 2013, Ms. Hoewischer filed a complaint against Mr. White in the Common Pleas Court of Shelby County, Ohio (the “State Court”) alleging claims for intentional infliction of emotional distress and invasion of privacy. On January 14, 2014, the State Court entered a default judgment against Mr. White, reserving the issue of the amount of damages for hearing. After a hearing on damages held on March 18, 2014, the State Court entered a Decision/Judgment Entry on Damages (the “Judgment”) and made the following factual findings:

Hoewischer met White at the end of 2012 while White was living in Jackson Center. Hoewischer and White began dating in early 2013. After a time, White started pressuring Hoewischer to send him nude pictures. He pressured her for some time including sending “thousands” of text messages. White offered her money and a car although he never delivered on any of those promises. After months of pressure, Hoewischer finally gave in to his requests, “so he would leave her alone.” White assured Hoewischer that the pictures were for his use only and at one point agreed to delete the photographs.

White then started requesting that Hoewischer engage in sexual acts with him. Hoewischer refused. Upon her refusals, White became angry and made implied threats. Hoewischer then terminated the relationship.

Sometime later Hoewischer was messaged by an individual in California on Facebook. She then started receiving other messages from other individuals unknown to her about her body and her pictures. Some of the contacts were solicitations for sex. Hoewischer then discovered that White had posted her nude photographs on a “revenge porn” website. Not only have individuals from outside the area contacted her, multiple persons in her small community of Jackson Center have approached her about the photos. The defendant also posted her home address online. Hoewischer has attempted without success to have her photographs and information removed from that website.

At the damage hearing, Hoewischer testified as to the emotional toll that this has been upon her. Her daily mood has changed, she is now depressed and shy, she is fearful for her safety. She testified that she sought help from a local mental health provider although the evidence was unclear as to the number of times. Apparently no expenses were incurred. She is also concerned that the posting of the photographs may preclude her from her chosen field of medical message therapy.

Corroborating Hoewischer's testimony was that of her mother. The mother confirmed the emotional distress and anxiety. Her mother, who is also a medical massage therapist, testified about the distinct possibility that Hoewischer would not be licensed because of the posting of the photographs.

...The elements of intentional infliction of emotional distress are: 1) the defendant intended to cause emotional distress or knew or should have known that his conduct would result in serious emotional distress to the plaintiff; 2) defendant's conduct was outrageous and extreme beyond all possible bounds of decency and was such that it can be considered as utterly intolerable in a civilized community; 3) defendant's conduct was the proximate cause of plaintiff's psychic injury; and 4) plaintiff's emotional distress was serious and of such a nature that no reasonable person could be expected to endure it.

The evidence is clear that White's conduct meets the first three of the elements for intentional infliction of emotional distress.

....

[T]here is no question that the conduct of White caused Hoewischer embarrassment, annoyance, and even distress....

....

...This court finds the conduct of White outrageous, intentional and highly offensive. Further, this court finds that Hoewischer was injured by the shame, humiliation and embarrassment caused by the conduct of White such that she is entitled to damages.

Pl.' Mot. for Summ. J. Ex. 1, at 2–4. The State Court entered judgment in favor of Ms. Hoewischer for damages in the amount of $151,123.00, consisting of compensatory damages ($50,000), punitive damages ($100,000) and attorney fees ($1,123).

On January 6, 2015, Mr. White and his wife, Afton Dawn White, filed a voluntary petition for relief under Chapter 7 of the Bankruptcy Code. In due course, the Court entered the Discharge of Debtor (Doc. # 28) whereby Mr. White and his wife were granted a discharge under 11 U.S.C. § 727

of the Bankruptcy Code. On April 10, 2015, Ms. Hoewischer timely filed a Complaint to Determine Dischargeability of Debt (Doc. # 1) (the “Complaint”), seeking a determination that the debt represented by the Judgment is nondischargeable pursuant to 11 U.S.C. § 523(a)(6).

In Plaintiff's MSJ, Ms. Hoewischer argues that the judgment entered by the State Court is entitled to preclusive effect. In contrast, Mr. White argues that the default judgment entered by the State Court is not entitled to preclusive effect because: (1) there is no evidence that the State Court rendered the Judgment based on evidence submitted beyond the pleadings; (2) the Judgment lacks any express findings of fact and conclusions of law; and (3) the matter was not actually litigated.

III. Discussion

A. Standard of Review for Motions for Summary Judgment

Rule 56 of the Federal Rules of Civil Procedure

, made applicable to adversary proceedings by Federal Rule of Bankruptcy Procedure 7056, provides that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party seeking summary judgment bears the initial burden of “informing the ... court of the basis for its motion, and identifying those portions of the [record] which it believes 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)

.

If the movant satisfies this burden, the nonmoving party must then assert that a fact is genuinely disputed and must support the assertion by citing to particular parts of the record. See Fed.R.Civ.P. 56(c)(1)

. The mere allegation of a factual dispute is not sufficient to defeat a motion for summary judgment; to prevail, the non-moving party must show that there exists some genuine issue of material fact. See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). When deciding a motion for summary judgment, all justifiable inferences must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

The Sixth Circuit Court of Appeals has articulated the following standard to apply when evaluating a motion for summary judgment:

[T]he moving [party] may discharge its burden by “pointing out to the ... court ... that there is an absence of evidence to support the nonmoving party's case.” The nonmoving party cannot rest on its pleadings, but must identify specific facts supported by affidavits, or by depositions, answers to interrogatories, and admissions on file that show there is a genuine issue for trial. Although we must draw all inferences in favor of the nonmoving party, it must present significant and probative evidence in support of its [position]. “The mere existence of a scintilla of evidence in support of the [nonmoving party's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party].”

Hall v. Tollett, 128 F.3d 418, 422 (6th Cir.1997)

(citations omitted). A material fact is one whose resolution will affect the determination of the underlying action. See

Tenn. Dep't of Mental Health & Mental Retardation v. Paul B., 88 F.3d 1466, 1472 (6th Cir.1996). An issue is genuine if a rational trier of fact could find in favor of either party on the issue. See

Schaffer v. A.O. Smith Harvestore Prods., Inc., 74 F.3d 722, 727 (6th Cir.1996). “The substantive law determines which facts are ‘material’ for summary judgment purposes.” Hanover Ins....