In re Hermosilla, Bankruptcy No. 05–11048–WCH.

CourtUnited States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
Writing for the CourtMEMORANDUM OF DECISION
Citation450 B.R. 276
Decision Date01 June 2011
Docket NumberAdversary No. 05–1360.,Bankruptcy No. 05–11048–WCH.
PartiesIn re Alex HERMOSILLA, Debtor.Hilda Cristina Hermosilla, Plaintiff,v.Alex Hermosilla, Defendant.

450 B.R. 276

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.

June 1, 2011.


[450 B.R. 280]

Dennis R. Brown, Dennis R. Brown, P.C., Framingham, MA, Donald Lassman, Donald R. Lassman, Law Offices of Donald R. Lassman, Needham, MA, for Plaintiff.David G. Baker, Boston, MA, for Defendant.

MEMORANDUM OF DECISION
WILLIAM C. HILLMAN, Bankruptcy Judge.I. INTRODUCTION

The matter before the Court is the determination of appropriate sanctions to impose against Attorney David G. Baker (“Attorney Baker”), counsel of record to the debtor-defendant Alex Hermosilla (the “Debtor”), for the advancement of arguments not warranted by fact or law both here and before the United States District Court for the District of Massachusetts (the “District Court”). On May 26, 2010, in connection with the entry of judgment of nondischargeability (the “Judgment”) in favor of the Plaintiff, Hilda Cristina Hermosilla (“Cristina”), in this adversary proceeding, I ordered Attorney Baker to show cause “why he should not be sanctioned for advancing defenses not warranted by fact or law in violation of Fed. R. Bankr.P. 9011.” 1 Before I suspended consideration of the order to show cause in light of the Debtor's timely appeal of the Judgment to the District Court, Attorney Baker filed the Response to Order to Show Cause (the

[450 B.R. 281]

“Response”), arguing that sanctions are inappropriate because I misunderstood his arguments, which he asserts were adequately based in law or fact or were otherwise made in good faith for the extension or modification of existing law. On March 21, 2011, the District Court entered an Order of Remand, dismissing the Debtor's appeal, granting Cristina's “Plaintiff/Appellee's Motion for Damages and Costs for Frivolous Appeal” (the “Motion for Sanctions”), and remanding the matter for determination of the amount. On remand, I ordered Cristina's counsel, Attorney Dennis R. Brown (“Attorney Brown”), to file a fee application (the “Fee Application”), which he did, and to which Attorney Baker filed a response, asserting that the fees requested are grossly excessive. The appeal having been resolved, I resumed consideration of the order to show cause in conjunction with the Fee Application. For the reasons set forth below, I find that Cristina is entitled to attorney's fees in the amount of $15,306.25 as damages under Fed. R. Bankr.P. 8020 for the Appeal and, with respect to the order to show cause, impose sanctions in the amount of $9,000 against Attorney Baker, payable to the Clerk of Court, for violations of Fed. R. Bankr.P. 9011.

II. BACKGROUND 2

Because the issues comprising the order to show cause stem from the events leading to my entry of judgment in favor Cristina in this adversary proceeding, my Memorandum of Decision dated May 26, 2010 (the “Decision”) is incorporated herein by reference.3 By way of brief background, on May 20, 2005, Cristina filed a complaint against the Debtor seeking, inter alia, to except from discharge pursuant to 11 U.S.C. § 523(a)(6) an unliquidated claim stemming from a personal injury to her caused by the Debtor, her former spouse, arising from an incident of domestic violence.4

On January 13, 2010, I entered a final pre-trial order (the “Pre–Trial Order”) scheduling the matter for trial.5 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 provided that the Joint Pre–Trial Statement “shall supercede the pleadings and govern the course of trial....” 6 On March 11, 2010, the parties filed the Amended Joint Pre–Trial Statement listing, 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 [the Debtor] assaulted and battered Cristina [ (the “Assault”) ].

During the above-referenced assault and battery, [the Debtor] purposefully struck Cristina with great force, grabbed Cristina by the throat and

[450 B.R. 282]

struck her head repeatedly against the interior wall of the premises at which [the Debtor] and Cristina then resided and threw Cristina with such force onto a table that the table was caused to be broken.

At the time [the Debtor] 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 emotional condition.

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

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

On August 5, 2004, [the Debtor] 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 [the Debtor] 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 [the Debtor] in the Probate and Family Court Department of Essex Court Superior....

* * *

The parties have subsequently been divorced, an unchallenged and unappealed judgment of divorce nisi having entered on September 15, 2005 and a final judgment of divorce becoming effective as of December 14, 2005 according to Massachusetts Law.... 7

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 I further note that on the final page, Attorney Baker signed the Amended Joint Pre–Trial Statement on behalf of the Debtor.

Although not stated in the admitted facts, the Probate Court entered a Modification Judgment on February 22, 2007, incorporating a stipulation of the parties (the “Stipulation”) which amended the September 15, 2005 divorce judgment. The Stipulation, which was listed as one of the Debtor's proposed exhibits in the Joint Pre–Trial Statement, 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....” 9

[450 B.R. 283]

A trial on the matter was scheduled for March 17, 2010, but prior to opening statements, Cristina asserted 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. Despite the admissions contained within the Amended Joint Pre–Trial Statement, Attorney Baker 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.

On April 28, 2010, Attorney Baker filed a Memorandum of Law Relating to Count III (the “Memorandum”) on behalf of the Debtor.11 Despite the language in my Pre–Trial Order providing that the Amended Joint Pre–Trial Statement would supercede the pleadings filed in this case, Attorney Baker nonetheless argued that the complaint should be dismissed for failure 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, that she has been awarded a monetary judgment, or describe the nature of her injury.12 Notably, the Memorandum makes no reference to the Amended Joint Pre–Trial Statement at all, instead referencing only the complaint.

With respect to the “willful and malicious” requirement of 11 U.S.C. § 523(a)(6), Attorney Baker, on behalf of the Debtor, repeated the argument made at the March 17, 2010 hearing, stating that “[t]he specific injury that resulted must have been intended13 with a citation to Kawaauhau v. Geiger.14 Indeed, he reiterated this position at the end of the Memorandum: “the resulting injury must be what was intended.” 15 Attorney Baker went on to state that “the complaint do[es] not allege any injury, physical or otherwise ... [and] there is no allegation that any injury was intended,16 and that “[h]ere, [the Debtor] absolutely is denying any intent to injure the plaintiff at all,” contending that any injuries that Cristina may have suffered were accidental or inadvertent.17 He further asserted that because the Cristina has not described any injury, assuming there is one, it is impossible to conclude the Debtor had the intent to cause that injury.18

In the Memorandum, Attorney Baker also argued that Cristina's personal injury...

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22 practice notes
  • Butler v. Anderson (In re C.R. Stone Concrete Contractors Inc.), Case No. 05-11119-WCH
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • December 19, 2011
    ...argument with respect to Counts XII, XIV, XVII, XVIII, XIX, and XX as explained above. 80. Hermosilla v. Hermosilla (In re Hermosilla), 450 B.R. 276, 299 (Bankr. D. Mass. 2011). 81. See Maine Audubon Soc'y v. Purslow, 907 F.2d 265, 268 (1st Cir. 1990) (holding counsel are to be held to stan......
  • Cowart v. Elias (In re Elias), Bankruptcy No. 12–10215–JNF.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • July 3, 2013
    ...She relies primarily on Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944), and Hermosilla v. Hermosilla (In re Hermosilla), 450 B.R. 276 (Bankr.D.Mass.2011), aff'd, [494 B.R. 601]In re Hermosilla, MB 11–045, 2011 WL 6034487 (1st Cir. BAP Nov. 14, 2011).6 Additionally, she relies......
  • Butler v. Anderson (In re C.R. Stone Concrete Contractors, Inc.)
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • December 19, 2011
    ...argument with respect to Counts XII, XIV, XVII, XVIII, XIX, and XX as explained above. FN80. Hermosilla v. Hermosilla (In re Hermosilla), 450 B.R. 276, 299 (Bankr.D.Mass.2011). FN81. See Maine Audubon Soc'y v. Purslow, 907 F.2d 265, 268 (1st Cir.1990) (holding counsel are to be held to stan......
  • Butko v. Ciccozzi (In re Butko), Case No. 20-21255-GLT
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Western District of Pennsylvania
    • January 8, 2021
    ...(In re C.R. Stone Concrete Contractors, Inc.), 462 B.R. 6, 20 (Bankr. D. Mass. 2011) (quoting Hermosilla v. Hermosilla (In re Hermosilla), 450 B.R. 276, 299 (Bankr. D. Mass. 2011) ).232 Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985).233 Max's Seafood Cafe v. Quinteros, 176 F.3d ......
  • Request a trial to view additional results
22 cases
  • Butler v. Anderson (In re C.R. Stone Concrete Contractors Inc.), Case No. 05-11119-WCH
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • December 19, 2011
    ...argument with respect to Counts XII, XIV, XVII, XVIII, XIX, and XX as explained above. 80. Hermosilla v. Hermosilla (In re Hermosilla), 450 B.R. 276, 299 (Bankr. D. Mass. 2011). 81. See Maine Audubon Soc'y v. Purslow, 907 F.2d 265, 268 (1st Cir. 1990) (holding counsel are to be held to stan......
  • Cowart v. Elias (In re Elias), Bankruptcy No. 12–10215–JNF.
    • United States
    • United States Bankruptcy Courts. First Circuit. U.S. Bankruptcy Court — District of Massachusetts
    • July 3, 2013
    ...She relies primarily on Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944), and Hermosilla v. Hermosilla (In re Hermosilla), 450 B.R. 276 (Bankr.D.Mass.2011), aff'd, [494 B.R. 601]In re Hermosilla, MB 11–045, 2011 WL 6034487 (1st Cir. BAP Nov. 14, 2011).6 Additionally, she relies......
  • Butler v. Anderson (In re C.R. Stone Concrete Contractors, Inc.)
    • United States
    • U.S. Bankruptcy Court — District of Massachusetts
    • December 19, 2011
    ...argument with respect to Counts XII, XIV, XVII, XVIII, XIX, and XX as explained above. FN80. Hermosilla v. Hermosilla (In re Hermosilla), 450 B.R. 276, 299 (Bankr.D.Mass.2011). FN81. See Maine Audubon Soc'y v. Purslow, 907 F.2d 265, 268 (1st Cir.1990) (holding counsel are to be held to stan......
  • Butko v. Ciccozzi (In re Butko), Case No. 20-21255-GLT
    • United States
    • United States Bankruptcy Courts. Third Circuit. U.S. Bankruptcy Court — Western District of Pennsylvania
    • January 8, 2021
    ...(In re C.R. Stone Concrete Contractors, Inc.), 462 B.R. 6, 20 (Bankr. D. Mass. 2011) (quoting Hermosilla v. Hermosilla (In re Hermosilla), 450 B.R. 276, 299 (Bankr. D. Mass. 2011) ).232 Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir.1985).233 Max's Seafood Cafe v. Quinteros, 176 F.3d ......
  • Request a trial to view additional results

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