Hermosilla v. Hermosilla

UNITED STATES BANKRUPTCY COURT
DISTRICT OF MASSACHUSETTS
EASTERN DIVISION
_____________________________________
IN RE:
ALEX HERMOSILLA, 	Chapter 7
DEBTOR. 	Case No. 05-11048-WCH
_____________________________________
HILDA CRISTINA HERMOSILLA,
PLAINTIFF,
Adversary Proceeding
v. 	No. 05-1360
ALEX HERMOSILLA,
DEFENDANT.
_____________________________________
MEMORANDUM OF DECISION
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. 	On March1
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
Although I lack jurisdiction to liquidate Cristina’s unliquidated personal injury claim,1
see 28 U.S.C. § 157(b)(5), I may nonetheless determine whether it would survive the Debtor’s
discharge in bankruptcy if Cristina successfully proved that her claim was for a willful and
malicious injury. See Grogan v. Garner, 498 U.S. 279, 290 (1991) (“[N]ondischargeability [is] a
question of federal law independent of the issue of the validity of the underlying claim.”).
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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
I take judicial notice of the docket in the adversary proceeding, as well as that of the2
main case pending before this Court. See Rodi v. Southern New England School of Law, 389 F.3d
5, 17-19 (1st Cir. 2004) (citations omitted).
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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. 	On February 22, 2007, however, the4
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
Amended Joint Pre-Trial Statement, Docket No. 89 (JPTS), at ¶¶ 2:1-7, 10 (citations3
omitted).
Id. at ¶ 2:17.4
Defendant’s Ex. 1.5
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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. 	The Pre-Trial Order directed the parties to file a Joint Pre-Trial Statement which6
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. . . .” 	On March 11,7
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
I previously entered two prior pre-trial orders, but continued the deadlines contained6
therein on the request of the parties.
Docket No. 76 at ¶¶ 5.2, 5.11.7
JPTS at ¶ 11.8
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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”). 	On March 17,9
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. 	Alternatively, he asserted that the waiver contained10
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
Through the Motion to Establish Facts, Cristina sought a ruling that facts set forth in her9
requests for admissions were established for trial in light of the Debtor’s untimely and
contradictory responses. This motion, however, is ultimately moot because the same facts were
already admitted in the Amended Joint Pre-Trial Statement.
Trans. March 17, 2010 at 8:10-23; 10:5-9; 12:1-24; 13:1-15; 17:5-9; 18:1-7.10
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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 . . .” 	Moreover, Cristina contends that under the particular facts of this case, she11
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, 	she stresses that I must look behind the settlement to determine the12
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
Docket No. 15, at ¶ 30.11
Bauer v. Colokathis (In re Colokathis), 417 B.R. 150, 159 (Bankr. D. Mass. 2009).12
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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 on Kawaauhau v. Geiger, 	the Debtor asserts that the specific13
injury that resulted must be intended under 11 U.S.C. § 523(a)(6), and that reckless and negligent
injuries are insufficient to give rise to a nondischargeable debt. In support, he argues that a plea of
“sufficient facts” to criminal assault and battery is not a conviction, and therefore does not
necessarily rise to the level of 11 U.S.C. § 523(a)(6). Based on the record before me, including the
memorandum that accompanied the judgment of divorce nisi, the Debtor contends that there is no
evidence that Cristina’s injuries were not accidental or inadvertent. Moreover, because the Cristina
has not described any injury, assuming there is one, he asserts that it is impossible to conclude the
Debtor had the specific intent to cause that injury.
Alternatively, the Debtor argues that Cristina’s personal injury claim is time-barred by the
three-year statute of limitations under Massachusetts law. Although the automatic stay prevented
her from filing such an action in the state courts, the Debtor contends that Cristina could have
obtained relief from stay as she did to continue the divorce proceeding in the Probate Court.
Moreover, relying on Buker v. Nat’l Mgmt. Corp., 	he asserts that the statute of limitations was not14
tolled because of his bankruptcy filing.15
Kawaauhau v. Geiger, 523 U.S. 57 (1998).13
Buker v. Nat’l Mgmt. Corp., 16 Mass.App.Ct. 36, 448 N.E.2d 1299 (1983).14
The Debtor also cites Hemric v. Reed and Prince Mfg. Co., 739 F.2d 1 (1st Cir. 1984),15
and Martinez v. DuBois, No. 00-CV-10270-MEL, 2000 WL 1478543 (D. Mass. Sept. 28, 2000),
as cases citing Buker, but neither appear to have anything to do with bankruptcy.
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Lastly, the Debtor returns to his waiver argument, asserting that Cristina “waive[d] any and
all claims which could have been or were presented” to the Probate Court. 	Conceding that the
Probate Court generally lacks jurisdiction over torts, the Debtor cites Apostolicas Properties Corp.
v. Richman 	for the proposition that an exception exists where the Probate Court takes into16
consideration tort based issues when deciding alimony and support. Medical costs, for example, are
routinely considered in divorce proceedings. He argues that because tort based issues were presented
to the Probate Court, as evidenced by the reference to Cristina’s “alleged” injuries in the Probate
Court’s memorandum, Cristina has already been compensated. 	Therefore, pursuant to the
Stipulation, Cristina has waived any further recovery.
IV. DISCUSSION
A. The Summary Judgment Standard
Pursuant to Fed. R. Civ. P. 56, summary judgment “shall be rendered if the pleadings, the
discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.” 	“A ‘genuine’17
issue is one supported by such evidence that ‘a reasonable jury, drawing favorable inferences,’ could
resolve it in favor of the nonmoving party.” 	Material facts are those having the potential to affect18
Apostolicas Properties Corp. v. Richman, 28 Mass.App.Ct. 671, 555 N.E.2d 23816
(1990).
Fed. R. Civ. P. 56(c) made applicable in adversary proceedings by Fed. R. Bankr. P.17
7056.
Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d. 1, 2 (1st Cir. 1999)(quoting18
Smith v. F.W. Morse & Co., Inc., 76 F.3d 413, 427 (1st Cir. 1996)).
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the outcome of the suit under the applicable law. 19
The party seeking summary judgment “always bears the initial responsibility . . . of
identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions
on filed, together with the affidavits, if any,’ which demonstrate the absence of a genuine issue of
material fact.” 	The nonmoving party must then “produce ‘specific facts, in suitable evidentiary20
form, to . . . establish the presence of a trialworthy issue.’” 	A trialworthy issue cannot be21
established by “conclusory allegations, improbable inferences, and unsupported speculation.” 	The22
Court must view the record in the light most favorable to the nonmoving party and draw all
reasonable inferences in its favor. 	Nonetheless, the absence of a material factual dispute is merely23
a “condition necessary,” but not a “condition sufficient” to summary judgment. 	The moving party24
must still demonstrate an entitlement to judgment as a matter of law.25
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); McCarthy v. Northwest19
Airlines, Inc., 56 F.3d 313, 314-315 (1st Cir. 1995); Nereida-Gonzalez v. Tirado-Delgado, 990
F.2d at 703.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Anderson v. Liberty Lobby, Inc.,20
477 U.S. at 248.
Triangle Trading Co., 200 F.3d at 2 (quoting Morris v. Gov’t Dev't Bank of Puerto21
Rico, 27 F.3d 746, 748 (1st Cir. 1994)).
Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)(quoting Medina-Munoz v. R.J.22
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
Nicolo v. Philip Morris, Inc., 201 F.3d 29, 33 (1st Cir. 2000).23
Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 764 (1st Cir.1994).24
Id.25
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B. The Debtor’s Statute of Limitations and Waiver Defenses
Before considering the nondiscahrgeability of Cristina’s unliquidated personal injury claim,
I must consider two threshold defenses raised by the Debtor. First, the Debtor contends that she
failed to commence an action to determine the Debtor’s liability within the three-year statute of
limitations for tort claims under Massachusetts law and is now barred from doing so. 	Despite his26
assertions to the contrary, the Bankruptcy Code expressly provides for the tolling of a statute of
limitations during the pendency of a debtor’s bankruptcy. 	Section 108(c) states in relevant part:27
Except as provided in section 524 of this title, if applicable nonbankruptcy law . . .
fixes a period for commencing or continuing a civil action in a court other than a
bankruptcy court on a claim against the debtor . . . and such period has not expired
before the date of the filing of the petition, then such period does not expire until the
later of–
(1) the end of such period, including any suspension of such period
occurring on or after the commencement of the case; or
(2) 30 days after notice of the termination or expiration of the stay
under section 362, 922, 1201, or 1301 of this title, as the case may be,
with respect to such claim.28
Section 362(c)(2) provides that the automatic stay continues until the case is closed, dismissed, or
in Chapter 7 case, the time when a discharge is granted or denied, whichever is earliest. 29
Here, the statute of limitations had not yet expired as the Debtor filed his petition less than
two years after the Assault, and as a result 11 U.S.C. § 108(c) extended the time for Cristina to
Mass. Gen. Laws ch. 260, § 2A.26
See 11 U.S.C. § 108. The case cited by the Debtor in support of his argument, Buker v.27
Nat’l Mgmt. Corp., 16 Mass.App.Ct. at 40, was a pre-Bankruptcy Code case but nonetheless
contains an express reference to 11 U.S.C. § 108 in a footnote to the very sentence upon which
the Debtor relies.
11 U.S.C. § 108(c)(1), (2).28
11 U.S.C. § 362(c)(2)(A), (B), (C).29
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commence suit against him until thirty days after the earliest of the three events listed in 11 U.S.C.
§ 362(c)(2). 	Because the Debtor has not received a discharge and the case remains open and
pending, the statute of limitations has not yet expired. Moreover, it is irrelevant that Cristina could
have obtained relief from stay to bring her action earlier as 11 U.S.C. § 108(c) does not mandate that
creditors seek a termination of the automatic stay. Accordingly, Cristina’s unliquidated personal
injury claim is not time-barred.
Second, the Debtor asserts that Cristina’s tort claims were presented to the Probate Court and
were waived pursuant to the Stipulation. The Probate Court, however, lacks jurisdiction to hear
personal injury claims and he concedes as much. 	Nonetheless, the Debtor contends that the Probate30
Court could have made findings on tort based issues while considering alimony and support. 	I
disagree as the Supreme Judicial Court of Massachusetts rejected this argument under circumstances
similar to those presented in this case. In Heacock v. Heacock, 	the defendant asserted a res judicata31
defense to his former spouse’s tort action for injuries stemming from domestic abuse, arguing that
the abuse was presented in the divorce proceedings and the plaintiff failed to disclose the pending
tort claim to the Probate Court. The Supreme Judicial Court held res judicata did not apply, stating:
A tort action is not based on the same underlying claim as an action for divorce.
Accord, Goldman v. Wexler, 122 Mich.App. 744, 748, 333 N.W.2d 121 (1983);
Aubert v. Aubert, 129 N.H. 422, 529 A.2d 909, 911-912 (1987); Lord v. Shaw, 665
P.2d 1288, 1291 (Utah 1983). The purpose of a tort action is to redress a legal wrong
in damages; that of a divorce action is to sever the marital relationship between the
parties, and, where appropriate, to fix the parties' respective rights and obligations
with regard to alimony and support, and to divide the marital estate. Although a judge
in awarding alimony and dividing marital property must consider, among other
things, the conduct of the parties during the marriage, G.L. c. 208, § 34 (1986 ed.),
See Mass. Gen. Laws ch.215, §§ 3, 6.30
Heacock v. Heacock, 402 Mass. 21, 520 N.E.2d 151 (1988).31
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the purposes for which these awards are made do not include compensating a party
in damages for injuries suffered. . . . The plaintiff could not have recovered damages
for the tort in the divorce action, as the Probate Court does not have jurisdiction to
hear tort actions and award damages. G.L. c. 215, §§ 3, 6 (1986 ed.). See, e.g., Prahl
v. Prahl, 335 Mass. 483, 140 N.E.2d 480 (1957). 32
Although Heacock is directly on point, the Debtor instead relies on the Apostolicas
Properties Corp. case, asserting that it stands as an exception to the general rule. This reasoning is
flawed as that case involved an equity suit arising from property rights determined by the Probate
Court. 	Moreover, in distinguishing Heacock, the Court of Appeals expressly recognized that no33
property issues were implicated by the tort claims in Heacock such as to compel Mrs. Heacock to
assert them in the divorce proceeding. 	As such, neither case supports the Debtor’s position.34
Therefore, I find that Cristina did not waive her personal injury claim by virtue of the Stipulation
because the Probate Court lacked jurisdiction over the claim.
C. Dischargeability under 11 U.S.C. § 523(a)(6)
Section 523(a)(6) of the Bankruptcy Code excepts from discharge debts “for willful and
malicious injury by the debtor to another entity or to the property of another entity.” 	In Kawaauhau35
v. Geiger, the Supreme Court of the United States unanimously held “that debts arising from
recklessly or negligently inflicted injuries do not fall within the compass of § 523(a)(6).” 	The36
Supreme Court reasoned:
Id. at 24 (emphasis added).32
Apostolicas Properties Corp. v. Richman, 28 Mass.App.Ct. at 672.33
Id. at 678.34
11 U.S.C. § 523(a)(6).35
Kawaauhau v. Geiger, 523 U.S. at 64.36
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The 	word 	“willful” 	in 	(a)(6) 	modifies 	the 	word 	“injury,” 	indicating 	that
nondischargeability takes a deliberate or intentional injury, not merely a deliberate
or intentional act that leads to injury. Had Congress meant to exempt debts resulting
from unintentionally inflicted injuries, it might have described instead “willful acts
that cause injury.” Or, Congress might have selected an additional word or words,
i.e., “reckless” or “negligent,” to modify “injury.” Moreover, . . . the (a)(6)
formulation triggers in the lawyer's mind the category “intentional torts,” as
distinguished from negligent or reckless torts. Intentional torts generally require that
the actor intend “the consequences of an act,” not simply “the act itself.” Restatement
(Second) of Torts § 8A, Comment a, p. 15 (1964) (emphasis added).37
In light of the Supreme Court’s citation to the Restatement (Second) of Torts (the “Restatement”),38
courts have concluded that the Supreme Court meant the willfulness element to include actions
intentionally done and known by the debtor to be “substantially certain to cause injury.”39
The Geiger decision, however, did not address the element of malice required under 11
U.S.C. § 523(a)(6). As such, courts within this circuit have concluded that Geiger did not upset the
United States Court of Appeals for the First Circuit’s prior determination in Printy v. Dean Witter
Reynolds, Inc. 	that 11 U.S.C. § 523(a)(6)’s element of malice requires that the creditor show the40
injury was caused “without just cause or excuse.” 	Therefore, construing Geiger and Printy41
Id. at 61-62.37
Restatement (Second) of Torts § 8A (“The word ‘intent’ is used throughout the38
Restatement of this Subject to denote that the actor desires to cause consequences of his act, or
that he believes that the consequences are substantially certain to result from it.”).
See, e.g., McAlister v. Slosberg (In re Slosberg), 225 B.R. 9, 18-19 (Bankr. D. Me.39
1998).
Printy v. Dean Witter Reynolds, Inc., 110 F.3d 853, 859 (1st Cir. 1997).40
See, e.g., Jones v. Svreck (In re Jones), 300 B.R. 133, 140 (B.A.P. 1st Cir. 2003); In re41
Colokathis, 417 B.R. at 158; Greene v. Mullarkey (In re Mullarkey), 410 B.R. 338, 355 (Bankr.
D. Mass. 2009); Casella Waste Mgmt. v. Romano (In re Romano), 385 B.R. 12, 31 (Bankr. D.
Mass. 2008); Burke v. Neronha (In re Neronha), 344 B.R. 229, 231 (Bankr. D. Mass. 2006);
Caci v. Brink (In re Brink), 333 B.R. 560, 567 (Bankr. D. Mass. 2005); Gomes v. Limieux (In re
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together, I find that for a debt to be excepted from discharge pursuant to 11 U.S.C. § 523(a)(6), the
creditor must show that: (1) the creditor suffered an injury; (2) the injury was the result the debtor’s
actions; (3) the debtor intended to cause the injury or that there was a substantial certainty that the
injury would occur; and (4) the debtor had no just cause or excuse for the action resulting in injury.42
As always, exceptions to discharge must be proven by a preponderance of the evidence.43
In the present case, the act in question is the Assault. 	In the Amended Joint Pre-Trial
Statement, the Debtor admitted that “[a]t the time [he] committed the [Assault], he intended to cause
and did cause Cristina physical harm and pain and emotional fright.” 	Moreover, he further44
admitted that he “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 ca[u]sed [sic] to
seek and obtain care for her emotion[al] [sic] condition” and that “Cristina became indebted for
services rendered to her for her physical and emotional injuries and for which Alex is liable . . . .”45
Finally, as the Assault gave rise to a criminal complaint to which the Debtor admitted sufficient facts
for a guilty finding to be entered against him, I find that it was committed without just cause or
excuse.46
Limieux), 306 B.R. 433, 440 (Bankr. D. Mass. 2004); McDonough v. Smith (In re Smith), 270
B.R. 544, 549 (Bankr. D. Mass. 2001); In re Slosberg, 225 B.R. at 21.
See In re Colokathis, 417 B.R. at 158.42
See Grogan v. Garner, 498 U.S. 279 (1991).43
JPTS at ¶ 2:4.44
Id. at ¶¶ 2:4-5.45
In re Limieux, 306 B.R. at 441.46
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Although the Debtor stipulated to all the facts necessary to find a “willful and malicious
injury” under 11 U.S.C. § 523(a)(6), he attempts, in vain, to avoid judgment by attacking the
sufficiency of Cristina’s pleadings. First, his reliance on perceived deficiencies in the Amended
Complaint at this stage is misguided because the Pre-Trial Order expressly states that “th[e] [Joint
Pre-Trial Statement] shall supercede the pleadings and govern the course of trial. . . .” 	Second,47
even though the exact nature and extent of her injuries are not described, the Debtor admitted that
he injured her and that such injuries required her to seek medical attention, the costs for which he
agrees he is now liable. In light of the parties agreement as to the existence of the injury resulting
from the Assault, Cristina’s burden with respect to the first element is satisfied.
The Debtor’s assertion that he did not intend the injury that resulted is similarly unavailing.
Not surprisingly, this argument has been advanced before other courts and uniformly rejected.48
Docket No. 76 at ¶¶ 5.2, 5.11.47
In re Granoff, 250 Fed.Appx. at 496, 2007 WL 2980190 *2 (3d Cir. 2007) (“Moreover,48
the fact that Granoff might not have been substantially certain that Bibus’s left tympanic
membrane would be perforated does not alter the determination that Bibus established by a
preponderance of the evidence that Granoff was substantially certain that his striking her would
produce some significant injury.”); Elbing v. Blair (In re Blair), 359 B.R. 233, 239 (Bankr. E.D.
Wis. 2007) (“The fact that the defendant only meant for the punch to “send a message,” not to
break anything, is irrelevant. The only way to send a message by a punch in the face is to hurt
someone, which the defendant admittedly meant to do, and this injury is enough to fall within the
statute.”); Brokaw v. McSorley (In re McSorley), No. 05-31213, 2006 WL 3000109 (Bankr. S.D.
Iowa Oct. 18, 2006) (debtor had subjective intent to injure when executing dangerous fouling
technique in highschool basketball game); Green v. Olson (In re Olson), 333 B.R. 835, 839
(Bankr. D. Minn. 2005) (assertion that debtor who was criminally guilty of intentionally
inflicting bodily harm acted with only “general intent” was meritless and verging on
unconscionable); Kleman v. Taylor (In re Taylor), 322 B.R. 306, 309 (Bankr. N.D. Ohio 2004)
(“the Defendant's actions were, in fact, ‘willful’ based upon the common sense notion that when
one physically hits another with enough force to break another's jaw, an alternative, but plausible
explanation is all but impossible to discern”); Grant v. Wible (In re Grant), No. 93-2238, 1993
WL 390171 * 2 (Bankr. W.D. Pa. Sept. 27, 1993) (“The degree of bodily injury is not
dispositive.”).
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Contrary to the Debtor’s assertion, Geiger does not require a debtor intend the specific injury, only
“the consequences of an act.” 	Moreover, a vast majority of courts, citing Geiger’s reliance on the49
Restatement, hold that injuries resulting from intentional acts known by the debtor to be
“substantially certain to cause injury” are nondischargeable, regardless of whether the debtor had a
subjective intent to cause any injury at all. 	No court has read “injury” as narrowly as the Debtor50
suggests, which is likely why he cites no supporting authority. Indeed, in the context of assaults and
batteries, courts have applied a broader definition, recognizing that a debtor knows that physical
violence is substantially certain to produce some significant physical harm even if the exact nature
of the resulting bodily damage is not known.51
Kawaauhau v. Geiger, 523 U.S. at 62.49
See, e.g., In re Colokathis, 417 B.R. at 158; In re Mullarkey, 410 B.R. at 355 n.16; In re50
Romano, 385 B.R. at 30; Massod v. Fayad (In re Fayad), No. 01-1062, 2008 WL 160647 *2
(Bankr. D. Mass. Jan. 5, 2008); McGarry v. Chew (In re Chew), No. 06-1039, 2007 WL 1876457
*2 (Bankr. D. Mass. Jun. 27, 2007); Beland v. Cunningham (In re Cunningham), 365 B.R. 352,
363 (Bankr. D. Mass. 2007); Alliguie v. Power Innovators, Inc. (In re Boward), No. 03-1520,
2007 WL 3010538 *4 (Bankr. D. Mass. Oct. 9, 2007); DCFS Trust v. Goldstein (In re
Goldstein), 345 B.R. 412, 423 (Bankr. D. Mass. 2006); In re Neronha, 344 B.R. at 231; In re
Brink, 333 B.R. at 567; In re Limieux, 306 B.R. at 440; Read & Lundy, Inc. v. Brier (In re Brier),
274 B.R. 37, 44 (Bankr. D. Mass. 2002); In re Smith, 270 B.R. at 549; see also Berry v.
Vollbracht (In re Vollbracht), 276 Fed.Appx. 360, 361, 2007 WL 3144848 (5th Cir. 2007); In re
Granoff, 250 Fed.Appx. 494, 2007 WL 2980190 (3d Cir. 2007); Markowitz v. Campbell (In re
Markowitz), 190 F.3d 455, 461 (6th Cir.1999); Thornton v. City of Philadelphia, No. 04-2536,
2005 WL 2716484 *4 (E.D. Pa. Oct. 20, 2005); Matson v. Hawkins (In re Hawkins), 231 B.R.
222, 228 (D.N.J. 1999); Schweitzer v. Kartman (In re Kartman), 391 B.R. 281, 284 (Bankr. W.D.
Pa. 2008); McCann v. Jacques, No. 06-1069, 2007 WL 1420590 *2 (Bankr. D.N.J. 2007);
Doherty v. Coccia (In re Coccia), 351 B.R. 17, 20 (Bankr. D.R.I. 2006); Ready Productions, Inc.
v. Jarvis (In re Jarvis), No. , 2005 WL 1941639 * 3 (Bankr. D.N.H. Aug. 12, 2005); In re
Slosberg, 225 B.R. at 21; Worster v. Howcroft (In re Howcroft), 223 B.R. 845, 847 (Bankr.
D.N.H. 1998).
In re Granoff, 250 Fed.Appx. at 496, 2007 WL 2980190 *2 (Section 523(a)(6) is51
satisfied by showing that strike was substantially certain to produce some significant injury);
Steier v. Best (In re Best), 109 Fed.Appx.1, 6, 2004 WL 1544066 (6th Cir. 2004) (injury is the
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Ultimately, the Debtor’s argument relies completely on the absence of any description of
Cristina’s injuries to mask its absurdity. Nevertheless, the illusion of merit immediately disappears
once it becomes clear that, in light of his admissions, he is arguing that the physical and emotional
injuries that Cristina suffered as a result of the Assault were not the ones he intended to cause and
were not substantially certain to occur. Based on the Debtor’s actions, specifically that he “struck
Cristina with great force, grabbed [her] by the throat and struck her head repeatedly against the
interior wall of the premises . . . and threw [her] with such force onto a table that the table was
caused to be broken,” it is mind-boggling to contemplate a physical injury that she could have
suffered that was not substantially certain to occur. 	This reveals his assertion for what it is: a thinly52
veiled attempt to create a disputed material fact and retract an admission made in the Amended Joint
Pre-Trial Statement.
intentional invasion of the rights of another, not simply harm to a person); In re Blair, 359 B.R.
at 239 (Bankr. E.D. Wis. 2007) (“The only way to send a message by a punch in the face is to
hurt someone . . . and this injury is enough to fall within the statute.”); In re McSorley, 2006 WL
3000109 *3 (dangerous fouling technique in high school basketball game was certain to cause
physical injury); In re Olson, 333 B.R. at 839; In re Taylor, 322 B.R. at 309 (“[T]he Defendant's
actions were, in fact, ‘willful’ based upon the common sense notion that when one physically hits
another with enough force to break another's jaw, an alternative, but plausible explanation is all
but impossible to discern”); ABF, Inc. v. Russell (In re Russell), 262 B.R. 449, 454 (Bankr. N.D.
Ind. 2001) (the focus is on the true injury and not the creditor’s damages; “[I]n a case involving
assault and battery, the true injury is not the creditor's broken jaw, but rather, the unconsented to
touching that produced the broken jaw.”); Montgomery v. Herring (In re Herring), 193 B.R. 344,
354 (Bankr. N.D. Ala. 1995) (the only conceivable purpose in intentionally shooting someone is
to inflict harm); Homan v. Perretti, 172 B.R. 214, 217 (Bankr. N.D.Ohio 1994) (one person does
not strike a blow at another person's face without intending to injure the other person); In re
Grant, 1993 WL 390171 * 2 (“The act of striking another person is calculated to cause harm,
and, therefore, is done with the knowledge that harm will result.”); Zuern v. Chapman (In re
Chapman), 46 B.R. 90, 93 (Bankr. N.D. Ohio 1985) (“One person does not kick another person
in the head without intending to harm him.”).
JPTS at ¶ 2:3.52
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In sum, I find that Cristina has demonstrated a debt for a willful and malicious injury and will
enter judgment in her favor.
D. Sanctions under Fed. R. Bankr. P. 9011
Fed. R. Bankr. P. 9011 “emphasizes responsible behavior on the part of [attorneys]” and
requires them “to conduct [themselves] in a manner bespeaking reasonable professionalism and
consistent with the orderly functioning of the judicial system.” 	It provides in relevant part:53
(b) Representations to the court. By presenting to the court (whether by signing,
filing, submitting, or later advocating) a petition, pleading, written motion, or other
paper, an attorney or unrepresented party is certifying that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances,--
* * *
(2) the claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, 	modification, 	or 	reversal 	of 	existing 	law 	or 	the
establishment of new law;
(3) the allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have evidentiary
support after a reasonable opportunity for further investigation or
discovery . . . 54
Under Fed. R. Bankr. P. 9011, the focus is not whether the claim asserted was frivolous, but whether
the attorney conducted an adequate inquiry into the facts and law before filing the claim. 	“In55
examining the actions of counsel, the First Circuit has stated that ‘[s]ubjective good faith is not the
issue; generally, Rule 9011 demands that counsel's actions comport with an objective standard of
Featherston v. Goldman (In re D.C. Sullivan Co., Inc.), 843 F.2d 596, 598 (1st Cir.53
1988), aff'd in part on rehearing en banc, 878 F.2d 1478 (1989).
Fed. R. Bankr. P. 9011(b)(2).54
See Matter of Excello Press, Inc., 967 F.2d 1109, 1111-1112 (7th Cir. 1992).55
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lawyerly performance.’” 	Accordingly, “[a] violation of Rule 11 . . . might be caused by56
inexperience, incompetence, willfulness, or deliberate choice.”57
As discussed above, Attorney Baker filed a brief on behalf of the Debtor setting forth four
defenses which had no basis in fact or law. First, the Debtor’s assertion that Cristina’s personal
injury claim was time-barred was blatantly erroneous as the Bankruptcy Code unequivocally
provides for the tolling. Moreover, the case cited in support of that argument, Buker v. Nat’l Mgmt
Corp., is inapplicable to this case as it involved pre-Bankruptcy Code law. In any event, Attorney
Baker was on notice as to the existence of 11 U.S.C. § 108(c) because that case expressly references
11 U.S.C. § 108. 	Second, Attorney Baker cited Heacock, which directly addresses the issue of58
whether the personal injury claim could have been decided by the Probate Court, but nonetheless
advanced an argument contrary to both that case and the Apostolicas Properties Corp. case. Third,
by arguing that Cristina’s Amended Complaint was deficient after filing the Amended Joint Pre-Trial
Statement, Attorney Baker ignored the express provisions of my Pre-Trial Order as well his own
acknowledgment in the Amended Joint Pre-Trial Statement. Finally, the assertion that 11 U.S.C.
§ 523(a)(6) requires intent to cause the specific injury that resulted was not supported by Gieger, the
only case he cited for the proposition, was inconsistent with the substantial certainty standard
adopted by all courts in First Circuit, and was rejected by all courts that have addressed the issue.
Although the issue of sanctions under Fed. R. Bankr. P. 9011(b) may be raised by the Court
Parker v. Boston Univ. (In re Parker), 334 B.R. 529, 538 (Bankr. D. Mass. 2005)56
(quoting In re D.C. Sullivan Co., Inc., 843 F.2d at 599).
Sylver v. Sec. Pac. Servs. (In re Sylver), 214 B.R. 422, 428 (B.A.P. 1st Cir. 1997)57
(quoting Cruz v. Savage, 896 F.2d 626, 631 (1st Cir. 1990)).
Buker v. Nat'l Mgmt. Corp., 16 Mass.App.Ct. 40 n.6.58
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sua sponte, Fed. R. Bankr. P. 9011(c)(2) requires that the I afford Attorney Baker notice and a
reasonable opportunity to respond before I may impose sanctions. 	Therefore, I will order Attorney59
Baker to show cause why I should not impose sanctions against him for advancing defenses and legal
contentions not warranted by fact or existing law.
V. CONCLUSION
In light of the foregoing, I will enter judgment in favor of Cristina on Count III of the
Amended Complaint and hold her claim nondischargeable under 11 U.S.C. § 523(a)(6).
Additionally, I will order Attorney Baker to show cause why he should not be sanctioned for the
above described violations of Fed. R. Bankr. P. 9011(b).
______________________________
William C. Hillman
United States Bankruptcy Judge
Dated: May 26, 2010 	.
Fed. R. Bankr. P. 9011(c)(2).59
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