IN RE HERMOSILLA, Bankruptcy No. 05-11048-WCH.

• Decision Date: 26 May 2010
• Docket Number: Adversary No. 05-1360.,Bankruptcy No. 05-11048-WCH.
• Citation: 430 B.R. 13
• Parties: In re Alex HERMOSILLA, Debtor. Hilda Cristina Hermosilla, Plaintiff, v. Alex Hermosilla, Defendant.
• Court: U.S. Bankruptcy Court — District of Massachusetts

430 B.R. 13

In re Alex HERMOSILLA, Debtor Hilda Cristina Hermosilla, Plaintiff, v. Alex Hermosilla, Defendant.

Bankruptcy No. 05-11048-WCH. Adversary No. 05-1360.

United States Bankruptcy Court, D. Massachusetts, Eastern Division.

May 26, 2010.

COPYRIGHT MATERIAL OMITTED

David G. Baker, Boston, MA, for Debtor.

Gary L. Donahue, U.S. Dept. of Justice, Boston, MA, for Assistant U.S. Trustee.

Hanify & King P.C., Kathleen R. Cruickshank, Natalie B. Sawyer, Hanify & King, P.C., Boston, MA, for Trustee.

MEMORANDUM OF DECISION

WILLIAM C. HILLMAN, Bankruptcy Judge.

I. INTRODUCTION

The matter before the Court is Count III of the Amended Complaint filed by the Plaintiff Hilda Cristina Hermosilla ("Cristina") through which she seeks to except from discharge pursuant to 11 U.S.C. § 523(a)(6) an unliquidated personal injury claim owed to her by Alex Hermosilla (the "Debtor" or "Alex"), her former spouse, arising from an incident of domestic violence.¹ On March 17, 2010, just prior to the commencement of trial, both parties asserted that they were entitled to judgment as a matter of law based upon the undisputed material facts of record. After an extended colloquy with the parties, I took the matter under advisement on stipulated facts, construing their arguments as cross-motions for summary judgment. For the reasons set forth below, I will enter judgment in favor of Cristina against the Debtor and order Debtor's counsel, Attorney David G. Baker ("Attorney Baker"), to show cause as to why he should not be sanctioned for advancing defenses not warranted by fact or law in violation of Fed. R. Bankr.P. 9011.

II. BACKGROUND²

In the Amended Joint Pre-Trial Statement filed March 11, 2010, the parties listed, inter alia, the following facts as admitted and requiring no proof:

Cristina and the Debtor were married on Marcy sic 15, 2001. The parties had no children during their marriage.

The parties lived together until July 20, 2003, when Alex assaulted and battered Cristina (the "Assault").

During the above-referenced assault and battery, Alex purposefully struck Cristina with great force, grabbed Cristina by the throat and struck her head repeatedly against the interior wall of the premises at which Alex and Cristina then resided and threw Cristina with such force onto a table that the table was caused to be broken.

At the time Alex committed the physical acts referenced above, he intended to cause and did cause Cristina physical harm and pain and emotional fright and did cause Cristina such physical harm that she was caused to seek and obtain medical care for her injuries and did cause her such emotional harm that she was cased sic to seek and obtain care for her emotion condition.

Cristina became indebted for services rendered to her for her physical and emotional injuries and for which Alex is liable to Cristina together with the physical and emotional damages Alex caused Cristina.

On July 21, 2003 a Criminal Complaint issued out of the Lynn District Court against Alex for assault and battery with a dangerous weapon and assault and battery as a result of Alex's beating of Cristina on July 20, 2003.

On August 5, 2004, Alex responded to the charges and admitted sufficient facts to support a finding of guilt on the charges of assault and battery with a dangerous weapon and assault and battery as a result of the his sic beating of Cristina, and a guilty finding entered on those findings on August 5, 2004 and Alex received, inter alia, a suspended sentence of nine (9) months in the Essex County House of Correction. . . .

* * *

On or about August 18, 2003, Cristina filed a Divorce Complaint against Alex in the Probate and Family Court Department of Essex Court Superior (the "Probate Court"). . . .³

The Probate Court entered a judgment of divorce nisi on September 15, 2005, which in the absence of an appeal, became final on December 14, 2005.⁴ On February 22, 2007, however, the Probate Court entered a Modification Judgment incorporating a stipulation of the parties (the "Stipulation") which amended the September 15, 2005 judgment. The Stipulation provided, inter alia, that Cristina waived all future claims to alimony and spousal support and that both she and the Debtor waived "any and all claims which could have been or were presented in these divorce proceedings and post divorce proceedings in this Court (including attorney's fees) and all contempt proceedings. . . ."⁵

Prior to entry of any judgment in the Probate Court, the Debtor filed a voluntary Chapter 7 petition on February 16, 2005. Although originally represented by other counsel, since May, 2005, Attorney Baker has appeared on behalf of the Debtor in both the main case and this adversary proceeding. On May 20, 2005, Cristina commenced the present adversary proceeding seeking to except from discharge certain unliquidated debts owed to her by the Debtor arising from the divorce proceedings pursuant to 11 U.S.C. §§ 523(a)(5) and (a)(15) and the Assault pursuant to 11 U.S.C. § 523(a)(6). As she had not yet received any judgments on account of these unliquidated claims, and indeed, had been barred from commencing her personal injury action by the automatic stay, her complaint was vague and did not describe the nature of the injury she sustained.

On January 13, 2010, I entered a final pre-trial order (the "Pre-Trial Order") scheduling the matter for trial.⁶ The Pre-Trial Order directed the parties to file a Joint Pre-Trial Statement which included a statement of admitted facts that required no proof and expressly stated that the Joint Pre-Trial Statement "shall supercede the pleadings and govern the course of trial. . . ."⁷ On March 11, 2010, the parties filed the Amended Joint Pre-Trial Statement signed by counsel to each and containing the facts listed above. In section 11, titled "The Effect of this Pre-Trial Stipulation," the parties, in accordance with the Pre-Trial Order, attested to the admissions made and acknowledged that the Amended Joint Pre-Trial Statement would supercede the pleadings.⁸

On the eve of trial, Cristina withdrew Counts I and II of her Complaint in light of the waiver contained within the Stipulation, leaving the dischargeability of her unliquidated personal injury claim under 11 U.S.C. § 523(a)(6) as the only remaining issue. Additionally, she filed a Request for Findings of Fact and Rulings of Law (the "Request for Findings") and a Motion to Establish Facts and Genuiness sic of Documents Set Forth in Plaintiff's Separate Requests for Admissions Served on September 11, 2009 and January 19, 2010 (the "Motion to Establish Facts").⁹ On March 17, 2010, prior to opening statements, Cristina asserted, consistent with the pleadings filed the night before, that she was entitled to judgment as a matter of law based upon the undisputed facts set forth in the Amended Joint Pre-Trial Statement, or alternatively, those in her Motion to Establish Facts.

Despite the admissions contained within the Amended Joint Pre-Trial Statement, the Debtor contended that at least one material issue of fact remained in dispute, namely, whether the Debtor intended to cause the injury that resulted.¹⁰ Alternatively, he asserted that the waiver contained within the Stipulation also applied to the personal injury claim because the issue was inextricably bound with the divorce proceeding. Cristina opposed, arguing that the Probate Court lacked jurisdiction to enter a money judgment for a personal injury claim.

It appearing that the matter could be decided on stipulated facts, I took it under advisement and gave the parties an opportunity to file briefs, which they did on April 28, 2010.

III. POSITIONS OF THE PARTIES Cristina

Cristina argues that the Debtor has stipulated to all the elements of 11 U.S.C. § 523(a)(6) by admitting that he purposefully committed the Assault with the intention of causing physical harm and emotional fright, which he did, resulting in Cristina requiring medical care. Although the Debtor contends that she never alleged any debt from her injuries, Cristina asserts that her complaint was amended to add an allegation that she "became indebted for services rendered for her physical and emotional injuries . . ."¹¹ Moreover, Cristina contends that under the particular facts of this case, she easily states a claim for assault, battery, and intentional infliction of emotion distress under Massachusetts law.

With respect to the waiver issue, Cristina asserts that the Stipulation was only meant to apply to questions of alimony, spousal support, and property division, and not matters pertaining to her tort claims. She argues that the Probate Court is without jurisdiction to decide such matters, and as such, her personal injury claims were not, nor could they have been, presented to the Probate Court. Relying on In re Colokathis,¹² she stresses that I must look behind the settlement to determine the true character of the debt.

Finally, in response to the statute of limitations defense raised by the Debtor in his brief, Cristina contends that such an argument was waived by his failure to assert it earlier. In any event, she argues, the defense is patently erroneous as a matter of law because the statute of limitations for her personal injury action was tolled by 11 U.S.C. § 108(c).

The Debtor

In his brief, the Debtor argues that Count III of the Complaint fails to state a cause of action because it does not allege that Cristina was intentionally injured by the Debtor, that she incurred a monetary loss as a result, that a debt exists resulting from the intentional injury, or that she has been awarded a monetary judgment. He further notes that the Complaint is devoid of any allegations describing the nature of her injury, rendering her claim unsubstantiated. Accordingly, the Debtor asserts, Count III should be dismissed.

As previously stated, the Debtor's primary argument at the hearing was that he did not intend the injury that resulted. Relying...