In re Owens

• Citation: 449 B.R. 239
• Decision Date: 17 March 2011
• Docket Number: Bankruptcy No. 09–73997–FJS.,Adversary No. 09–7142–FJS.
• Court: United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — Eastern District of Virginia
• Parties: In re Stephen Ray OWENS, Debtor.David C. Reed, Plaintiff,v.Stephen Ray Owens, Defendant.

449 B.R. 239

In re Stephen Ray OWENS, Debtor.David C. Reed, Plaintiff,
v.
Stephen Ray Owens, Defendant.

Bankruptcy No. 09–73997–FJS.

Adversary No. 09–7142–FJS.

United States Bankruptcy Court, E.D. Virginia,Norfolk Division.

March 17, 2011.

[449 B.R. 241]

Thomas B. Dickenson, Norfolk, VA, for Plaintiff.Robert V. Roussos, Roussos, Lassiter, Glanzer & Marcus, PLC, Norfolk, VA, for Defendant.

MEMORANDUM OPINION FRANK J. SANTORO, Bankruptcy Judge.

This matter comes before the Court upon trial of the above-mentioned Adversary

[449 B.R. 242]

Proceeding. The Court has subject-matter jurisdiction over this proceeding pursuant to 28 U.S.C. §§ 1334(b) and 157(a) and the general order of reference from the United States District Court for the Eastern District of Virginia dated August 15, 1984. This matter is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(I). Venue is proper pursuant to 28 U.S.C. § 1409(a). Upon consideration of the pleadings, the evidence presented at trial, and the arguments of the parties, the Court makes the following findings of fact and conclusions of law pursuant to Federal Rule of Bankruptcy Procedure 7052.

The damages suffered by Plaintiff were the direct and proximate result of Defendant's conduct—Defendant interjected himself voluntarily and willfully into a quarrel between persons with whom he had no relationship and to whom he owed no obligation whatsoever to protect. The resulting injuries suffered by Plaintiff were inflicted willfully and maliciously, as more fully discussed below. Accordingly, the Court concludes that Plaintiff has proved by a preponderance of the evidence that Defendant acted willfully and maliciously by injuring Plaintiff, such that the debt owed to Plaintiff by Defendant shall not be discharged in the Defendant's Chapter 13 bankruptcy case pursuant to 11 U.S.C. § 523(a)(6) and to 11 U.S.C. § 1328(a)(4).¹

I. BACKGROUND A. The Debtors' Chapter 13 Case

On September 28, 2009, Stephen R. Owens (the “Debtor”, “Defendant”, or “Owens”) filed a voluntary petition for relief under Chapter 13 of Title 11 of the United States Code (the “Code”). (Case No. 09–73997–FJS; Doc. No. 1.) The Debtor filed his Summary of Schedules and corresponding Schedules on October 13, 2009. (Case No. 09–73997–FJS; Doc. No. 10.) Schedule F—Creditors Holding Unsecured Nonpriority Claims—lists a claim filed by William C. Bischoff, Esq., on behalf of David C. Reed (the “Plaintiff” or “Reed”), with a value of $100,000.00 for a judgment rendered on March 12, 2007. (Case No. 09–73997–FJS; Doc. No. 10 at 13.) Defendant filed his first Chapter 13 Plan on October 13, 2009. (Case No. 09–73997–FJS; Doc. No. 11.) Defendant filed an Amended Chapter 13 Plan on November 30, 2009, which was confirmed by Order of the Court on January 11, 2010. (Case No. 09–73997–FJS; Doc. Nos. 14, 24.) The Chapter 13 Plan proposes to pay a 1% dividend to allowed nonpriority unsecured claims, encompassing Plaintiff's judgment. (Case No. 09–73997–FJS; Doc. No. 14 at 3.)

B. The State Court Action

On May 20, 2005, Plaintiff filed a Motion for Judgment (the “Motion for Judgment”)

[449 B.R. 243]

in the Circuit Court for the City of Newport News, Virginia against Defendant, Jeff R. Honard, Joannie J. Bell, Tim Giles, Leonard Harris, Taylor's Family Restaurant & Lounge, t/a T.G.'s Steakhouse & Saloon, Ivy Farms Shopping Center, and Ivy Holdings LLC (collectively, the “defendants”). ² (State Court Case No. CL04–38832.) The Motion for Judgment alleged that the defendants were liable, jointly and severally, for damages in the amount of $150,000.00, resulting from an altercation on October 5, 2002. (Motion for Judgment at 1–2.) The Motion for Judgment alleged that the defendant's negligence and intentional torts caused Plaintiff's injuries.

A brief summary of the Motion for Judgment follows. After a dispute with a waitress, Joannie J. Bell (“Bell”), inside T.G.'s Steakhouse and Saloon (“T.G.'s”), Plaintiff left T.G.'s. Then, Defendant, and Jeff Honard (“Honard”) and Bell—who were boyfriend and girlfriend at the time—allegedly assaulted Plaintiff and his companion, Betty F. Fluet (“Fluet”). Defendant, Honard, and Bell, allegedly struck Plaintiff in the parking lot of T.G.'s. Plaintiff suffered injuries to his eyes, head, face, back, and neck, as well as internal injuries. (Motion for Judgment ¶¶ 5–13.)

On March 12, 2007, the Circuit Court for the City of Newport News, Virginia issued a final Order (the “Judgment Order”) in the case of David C. Reed v. Jeff R. Honard, Joannie J. Bell, and Steve R. Owens. (Pl.'s Ex. 3.) The Judgment Order awarded Plaintiff $100,000.00, plus interest and costs. The Judgment Order states that the defendants offered no defense and did not respond to the Motion for Judgment, and the Circuit Court for the City of Newport News decided the matter without a jury. (Pl.'s Ex. 3.) The Judgment Order is final.

II. PROCEDURAL HISTORY

On December 15, 2009, Plaintiff filed the instant action against Defendant (the “Complaint”), seeking a determination of nondischargeability of the debt that arose out of the Judgment Order and its underlying circumstances. (APN 09–07142–FJS, Doc. No. 1.) The Complaint avers that pursuant to §§ 523(a)(6) and 1328(a)(4) of the Code, the debt owed to Plaintiff is nondischargeable in Defendant's Chapter 13 case. (Compl. ¶¶ 8–9.)

On January 12, 2010, Defendant filed an Answer to the Complaint (the “Answer”). (APN 09–07142–FJS, Doc. No. 5.) In the Answer, Defendant (1) asserted that the Judgment Order “has not been appropriately litigated”; (2) asserted that “the judgment obtained by the Plaintiff was by default”; and (3) denied that §§ 523(a)(6) and 1328(a)(4) applied to the instant matter. (Answer ¶¶ 2–4.)

A. Deposition Testimony

On May 13, 2010, counsel for Defendant deposed Plaintiff. (Def.'s Ex. A.) Also on May 13, 2010 counsel for Plaintiff deposed Defendant. (Pl.'s Ex. 4.) Prior to trial, the parties stipulated that a portion of Defendant's deposition transcript not be admitted into evidence. The Court accepted this stipulation at trial. (APN 09–07142–FJS, Doc. No. 17, Stip. of Facts at 1; APN 09–07142–FJS, Doc. No. 19, hereinafter

[449 B.R. 244]

“Trial Tr.”, at 7:20–8:6.) ³ At Trial, the Court admitted the deposition transcripts into evidence, except the portion of Defendant's deposition testimony excluded by stipulation.

1. Plaintiff's Deposition Testimony

The following recitation of facts and events is as Plaintiff recalled them during his deposition testimony. Plaintiff and Fluet arrived at T.G.'s between 9:00 and 9:30 PM on the night of October 5, 2002. (Def.'s Ex. A at 9:24–10:1.) Plaintiff drank four Canadian Mists and ginger ale over the course of three and one-half hours at T.G.'s, while Fluet drank two beers. (Def.'s Ex. A at 10:16–11:4.) Plaintiff was unhappy with the service that Bell provided on October 5, 2002, as well as past occasions. (Def.'s Ex. A at 13:5–17.) When Plaintiff, Fluet, and a friend left their table at about 1:30 AM on October 6, 2002, they approached and began to enter Plaintiff's car. Fluet was planning to drive Plaintiff's car. (Def.'s Ex. A at 16:8–25.)

Next, while Plaintiff and Fluet were not yet inside his car, Bell and Honard exited T.G.'s and walked into the parking lot. Bell was upset and screamed “____ this place.” (Def.'s Ex. A at 17:16–19.) Bell approached Plaintiff's car and threw her purse on the rear exterior of Plaintiff scar. Plaintiff asked that Bell remove her purse. (Def.'s Ex. A at 18:13–24.) Next, Honard approached Plaintiff and punched Plaintiff without warning. (Def.'s Ex. A at 19:16–25.)

While Honard struck Plaintiff near or in the passenger doorway to Plaintiff's car, Plaintiff reached inside his car to retrieve his cell phone. (Def.'s Ex. A at 20:1–4.) Plaintiff struck Honard with a fist—Plaintiff could not recall whether it was the fist in which he held his cell phone or an empty fist. (Def.'s Ex. A at 20:21–23.) Soon, Honard had backed off about ten to fifteen yards, but Fluet and Bell were engaged with each other at this point. (Def.'s Ex. A at 22:3–5.) Plaintiff then pushed apart Bell and Fluet. (Def.'s Ex. A at 22:15–17.)

Plaintiff pushed apart Bell and Fluet by placing his hands on their chest and neck area. Immediately after Plaintiff separated the two women, Defendant tackled Plaintiff. (Def.'s Ex. A at 35:20–36:6.) Counsel for Defendant asked Plaintiff if, next, Plaintiff heard a bystander “shout[ ] anything to the effect that you had a weapon or a gun or anything like that?” Plaintiff responded that, no, he did not hear any shouts to that effect. (Def.'s Ex. A at 36:7–10.)

Defendant tackled Plaintiff from behind and pushed Plaintiff to the ground without warning. Defendant kicked Plaintiff in the face, back, and stomach. (Def.'s Ex. A at 23:21–25.) For several minutes, Defendant held him to the ground, and Defendant struck Plaintiff in the face and kicked Plaintiff. Then, Plaintiff bit Defendant in the lower extremities. (Def.'s Ex. A at 24:13–24.) Plaintiff rose from the ground and then Defendant hit Plaintiff in the face and pushed Plaintiff back down near a fence. (Def.'s Ex. A at 26:11–25.) Ultimately, a friend of Plaintiff's and Fluet's pulled Defendant away from Plaintiff and a T.G.'s security guard arrived and the altercation ended. (Def.'s Ex. A at 28:1–3.) On October 7, 2002, Plaintiff noticed blood in his urine. Plaintiff recalled that he was diagnosed with bruised kidneys, broken blood vessels in the eye, lacerated

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face, and lacerated elbows and knees. (Def.'s Ex. A at 29:21–30:1.)

2. Defendant's Deposition Testimony

The following recitation of facts and events is as Defendant recalled them during his deposition testimony. Defendant and his then-live-in-girlfriend, Julie Ann Boyd (“Boyd”), arrived at T.G.'s at about 9:00 PM on October 5, 2002. (Pl.'s Ex. 4 at 15:3.) Defendant and Boyd sat at a table with Boyd's sister and Boyd's brother-in-law. (Pl.'s Ex. 4 at 16:9.) Defendant had no contact or...