Judges: Wood
Filed: Dec. 20, 2013
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-1026 FIRST WEBER GROUP, INC., Plaintiff-Appellant, v. JONATHAN HORSFALL, Defendant-Appellee. _ Appeal from the United States District Court for the Western District of Wisconsin. No. 11-cv-506-wmc — William M. Conley, Chief Judge. _ ARGUED SEPTEMBER 12, 2013 — DECIDED DECEMBER 20, 2013 _ Before WOOD, Chief Judge, and MANION and TINDER, Cir- cuit Judges. WOOD, Chief Judge. When Jonathan Horsfall collected a commission on a rea
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 13-1026 FIRST WEBER GROUP, INC., Plaintiff-Appellant, v. JONATHAN HORSFALL, Defendant-Appellee. _ Appeal from the United States District Court for the Western District of Wisconsin. No. 11-cv-506-wmc — William M. Conley, Chief Judge. _ ARGUED SEPTEMBER 12, 2013 — DECIDED DECEMBER 20, 2013 _ Before WOOD, Chief Judge, and MANION and TINDER, Cir- cuit Judges. WOOD, Chief Judge. When Jonathan Horsfall collected a commission on a real..
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐1026
FIRST WEBER GROUP, INC.,
Plaintiff‐Appellant,
v.
JONATHAN HORSFALL,
Defendant‐Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 11‐cv‐506‐wmc — William M. Conley, Chief Judge.
____________________
ARGUED SEPTEMBER 12, 2013 — DECIDED DECEMBER 20, 2013
____________________
Before WOOD, Chief Judge, and MANION and TINDER, Cir‐
cuit Judges.
WOOD, Chief Judge. When Jonathan Horsfall collected a
commission on a real estate transaction, he opened up a can
of worms. His former brokerage firm, First Weber Group,
Inc., contends, with the support of a state‐court judgment in
its favor, that in so doing Horsfall breached legal, contractu‐
al, and ethical obligations recognized by Wisconsin law.
Horsfall filed for bankruptcy two months after the state
2 No. 13‐1026
court’s decision. In the bankruptcy court, First Weber filed an
adversary proceeding in which it contended that Horsfall’s
judgment debt was excepted from discharge as a debt aris‐
ing from a “willful and malicious injury.” See 11 U.S.C.
§ 523(a)(6). The bankruptcy and district courts rejected this
argument and ruled in Horsfall’s favor. We affirm.
I
From May 2001 to August 31, 2002, Horsfall worked as a
real estate agent for First Weber. During Horsfall’s tenure,
First Weber executed a form Exclusive Right to Sell contract
with one Robert Call, who was trying to sell property at 118
Overlook Terrace in Marshall, Wisconsin (the Call property).
The contract gave First Weber exclusive rights to list and col‐
lect commissions for sale of the Call property during the list‐
ing period, as well as the exclusive right to collect commis‐
sions from sales to a defined set of “protected buyers” for
one year after the listing period expired. Horsfall was the
listing agent for the Call property.
In early August 2002, the Acosta family made an offer on
the Call property. Although the deal was not completed, the
offer established the Acostas as “protected buyers” accord‐
ing to the terms of the listing contract. Call’s contract with
First Weber ended on August 28, 2002, but under the pro‐
tected‐buyer clause, First Weber continued to have the exclu‐
sive right to collect a commission if the Call property was
sold to the Acostas. This right expired one year after the end
of the listing period.
Horsfall left First Weber at the end of August 2002 to es‐
tablish his own brokerage, Picket Fence Realty. In October of
that year, the Acostas contacted Horsfall about finding a new
No. 13‐1026 3
home. Without involving First Weber, Horsfall resuscitated
the transaction with Call. On October 8, 2002, the Acostas
and Call executed a sales contract for the Call property, us‐
ing a form furnished by Picket Fence. The transaction closed
on October 28, 2002, well within the period protected by
First Weber’s exclusivity rights. Picket Fence received a
$6,000 commission at the closing. This was inconsistent with
Horsfall’s status as First Weber’s agent under the Exclusive
Right to Sell contract; it also violated various rules governing
Wisconsin real estate practice. The closing documents were
conspicuously silent about any interest of First Weber.
Six years later, First Weber sued both Horsfall and Call in
Wisconsin state court. Call assigned his interest in the suit to
First Weber, which dismissed him from the action (undoubt‐
edly because Call’s debts had been discharged in bankruptcy
during the intervening years). Against Horsfall, First Weber
asserted claims for breach of contract, tortious interference,
and unjust enrichment. The state court granted summary
judgment in favor of First Weber on all claims. In delivering
its opinion, the court stated that Horsfall had “converted”
funds owed to First Weber, but it did not elaborate on that
comment. On January 28, 2010, the court entered a judgment
against Horsfall in the amount of $10,978.91.
Horsfall filed for Chapter 7 bankruptcy on April 5, 2010,
listing First Weber as a creditor. First Weber responded with
a claim that its judgment debt was non‐dischargeable under
11 U.S.C. § 523(a)(6), which excepts from discharge debts
stemming from “willful and malicious injury” caused by the
debtor. First Weber urged that the state court judgment con‐
clusively established, by way of issue preclusion, all of the
4 No. 13‐1026
elements necessary to satisfy § 523(a)(6). The bankruptcy
court denied summary judgment and set the case for trial.
After hearing the evidence at trial, the bankruptcy court
concluded that Horsfall never harbored animosity toward
First Weber and that he believed that his obligations to First
Weber had ended as of August 28, 2002, when the agency
agreement and Call’s listing contract expired. The court was
less charitable to Call: it did not credit his story that he
thought his obligations to First Weber ended with the expira‐
tion of the listing agreement. The court excluded some evi‐
dence offered by First Weber, including proffered expert tes‐
timony by an attorney (Rick Staff), information about Hors‐
fall’s membership in a realtors’ association and multiple list‐
ing service, and impeachment evidence indicating that Hors‐
fall had made misstatements in court submissions. Ultimate‐
ly, the bankruptcy court held that First Weber “did not
demonstrate that the cause of [its] claim was an injury …
much less that it was willful or malicious.” The district court
affirmed, and this appeal followed.
II
First Weber makes three arguments on appeal: first, it as‐
serts that the bankruptcy and district courts erred in refusing
to find issue preclusion based on the state court judgment;
second, it contends that it was entitled to summary judg‐
ment on its claim that the debt arose from a willful and mali‐
cious injury; and third, it urges that the bankruptcy court
abused its discretion in excluding some of First Weber’s evi‐
dence. Horsfall views this entire appeal as frivolous and
worthy of sanctions. First Weber retorts that Horsfall’s frivo‐
lousness argument is itself frivolous. We begin with issue
No. 13‐1026 5
preclusion, because that is the centerpiece of First Weber’s
position.
A. Issue Preclusion
A state court judgment is entitled to the same preclusive
effect in federal court as that judgment would have in state
court. Allen v. McCurry, 449 U.S. 90, 96 (1980); see 28 U.S.C.
§ 1738. This rule applies with equal force to bankruptcy cas‐
es. Klingman v. Levinson, 831 F.2d 1292, 1295 (7th Cir. 1987).
We review determinations of the preclusive effect of state
law de novo. In re Davis, 638 F.3d 549, 553 (7th Cir. 2011)
(bankruptcy appeal); Donald v. Polk Cnty., 836 F.2d 376, 382–
83 (7th Cir. 1988) (applying Wisconsin law).
Under Wisconsin law, “[c]ollateral estoppel, or issue pre‐
clusion, is a doctrine designed to limit the relitigation of is‐
sues that have been contested in a previous action between
the same or different parties.” Michelle T. by Sumpter v. Cro‐
zier, 495 N.W.2d 327, 329 (Wis. 1993). Wisconsin courts apply
the following general rule: “When an issue of fact or law is
actually litigated and determined by a valid and final judg‐
ment, and the determination is essential to the judgment, the
determination is conclusive in a subsequent action between
the parties, whether on the same or a different claim.”
Hlavinka v. Blunt, Ellis & Loewi, Inc., 497 N.W.2d 756, 762
(Wis. Ct. App. 1993) (quoting RESTATEMENT (SECOND) OF
JUDGMENTS § 27 (1980)).
In Wisconsin (as in most states), the question whether is‐
sue preclusion applies depends on two criteria. The first (the
“actually litigated step”) requires that “the question of fact
or law that is sought to be precluded actually must have
been litigated in a previous action and [have been] necessary
6 No. 13‐1026
to the judgment.” Mrozek v. Intra Fin. Corp., 699 N.W.2d 54,
61 (Wis. 2005). The second (the “fundamental fairness step”)
requires the court to “determine whether it is fundamentally
fair to employ issue preclusion given the circumstances of
the particular case at hand.” Id. Relevant factors for the latter
inquiry include the availability of review of the first judg‐
ment, differences in the quality or extensiveness of the pro‐
ceedings, shifts in the burden of persuasion, and the adequa‐
cy of the loser’s incentive to obtain a full and fair adjudica‐
tion of the issue. Id. at 61–62. The fundamental fairness step
eschews formalistic requirements in favor of “a looser, equi‐
ties‐based interpretation of the doctrine.” Michelle T., 495
N.W.2d at 330.
In order to know what was “actually litigated,” we must
take a closer look at what the state court decided. The parties
agree that First Weber’s complaint in state court put forth
only three theories of recovery: breach of contract, tortious
interference, and unjust enrichment. Notably, the pleadings
did not raise a claim for conversion, but First Weber’s motion
for summary judgment included that theory as a fourth basis
for recovery. There are hints that the state court was aware
that conversion was at issue: it did not undertake a detailed
analysis of a conversion claim, but the transcript reflects that
the court twice said that Horsfall “converted” money be‐
longing to First Weber. Although this is a thin reed, we will
assume for present purposes that the state court did make a
finding of liability on a conversion claim.
This is important for First Weber’s position in the bank‐
ruptcy case because, of the four theories it raised in the state
court, only the intentional torts of interference and conver‐
sion could plausibly constitute willful and malicious injury.
No. 13‐1026 7
In order to find liability on the tortious interference claim,
the state court had to find: (1) First Weber had a contract
with a third party; (2) Horsfall interfered with that contract;
(3) Horsfall’s interference was intentional; (4) the interference
caused First Weber damages; and (5) Horsfall was not justi‐
fied or privileged to interfere. See Briesemeister v. Lehner, 720
N.W.2d 531, 542 (Wis. Ct. App. 2006). For the conversion
claim, the court had to find: (1) intentional control or taking
of property belonging to First Weber; (2) without First We‐
ber’s consent; which (3) resulted in serious interference with
First Weber’s right to possess the property. See H.A. Friend &
Co. v. Prof. Stationery, Inc., 720 N.W.2d 96, 100 (Wis. Ct. App.
2006); Methodist Manor of Waukesha, Inc. v. Martin, 647
N.W.2d 409, 412 (Wis. Ct. App. 2002) (“[M]oney may also be
converted.”).
The question for us is what effect these findings have on
the bankruptcy issue of non‐dischargeability for willful and
malicious injury under 11 U.S.C. § 523(a)(6). See Bukowski v.
Patel, 266 B.R. 838 (E.D. Wis. 2001) (applying Wisconsin issue
preclusion in inquiry regarding willful and malicious inju‐
ry). The bankruptcy and district courts concluded that the
state judgment had no effect on the bankruptcy inquiry be‐
cause the state court did not find—and was not required to
find—willful and malicious injury as that term is used in the
Bankruptcy Code. If that were all we had, we would find
that analysis to be insufficient, because issue preclusion
could apply to the elements of the willful and malicious in‐
quiry even if the state court was addressing a different ulti‐
mate question. See Klingman, 831 F.2d at 1295 (“Where a
state court determines factual questions using the same
standards as the bankruptcy court would use, collateral es‐
toppel should be applied[.]”).
8 No. 13‐1026
In order to compare the essential state‐court findings
with the requirements for willful and malicious injury, we
need a better understanding of the latter term. Unfortunate‐
ly, the case law is “all over the lot” when it comes to defining
it. See Jendusa‐Nicolai v. Larsen, 677 F.3d 320, 322 (7th Cir.
2012) (recounting similar but different tests from the Second,
Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits).
Bankruptcy courts in this circuit have focused on three
points: (1) an injury caused by the debtor (2) willfully and (3)
maliciously. In re Carlson, 224 B.R. 659, 662 (Bankr. N.D. Ill.
1998), aff’d 2000 WL 226706 (N.D. Ill. 2000), aff’d 2001 WL
1313652 (7th Cir. 2001). As with all exceptions to discharge,
the burden is on the creditor to establish these facts by a
preponderance of the evidence. Grogan v. Garner, 498 U.S.
279, 287 (1991).
Looking more closely at these three elements—injury,
willfulness, and malice—a few points are worth making. The
term “injury,” while not defined in the Code, is understood
to mean a “violation of another’s legal right, for which the
law provides a remedy.” In re Lymberopoulos, 453 B.R. 340,
343 (Bankr. N.D. Ill. 2011) (citation omitted). The injury need
not have been suffered directly by the creditor asserting the
claim. Larsen v. Jendusa‐Nicolai, 442 B.R. 905, 917 (E.D. Wis.
2010), aff’d 677 F.3d 320 (7th Cir. 2012). The creditor’s claim
must, however, derive from the other’s injury.
Willfulness requires “a deliberate or intentional injury,
not merely a deliberate or intentional act that leads to inju‐
ry.” Kawaauhau v. Geiger, 523 U.S. 57, 61 (1998) (emphasis in
original). Although Geiger refers to intentional torts to help
explain the federal standard, it does not hold that all state‐
law intentional torts are “willful” for purposes of section
No. 13‐1026 9
523(a)(6). See Jendusa‐Nicolai, 677 F.3d at 322 (“[A]n inten‐
tional tort needn’t involve an intent to cause injury.”). “Will‐
fulness” can be found either if the “debtor’s motive was to
inflict the injury, or the debtor’s act was substantially certain
to result in injury.” See Bukowski, 266 B.R. at 844 (noting sub‐
stantially similar standards for willfulness in the Fifth, Sixth,
Eighth, and Ninth Circuits).
Lastly there is maliciousness, which requires that the
debtor acted “in conscious disregard of [his] duties or with‐
out just cause or excuse; it does not require ill‐will or specific
intent to do harm.” Matter of Thirtyacre, 36 F.3d 697, 700 (7th
Cir. 1994) (citation omitted). We recently commented that we
had not had the occasion to revisit the Thirtyacre definition
since the Supreme Court’s decision in Geiger. See Jendusa‐
Nicolai, 677 F.3d at 323. Understanding that the definition of
willfulness must incorporate Geiger’s admonition that the
requisite intent for purposes of § 523(a)(6) is the intent to in‐
jure rather than the intent to act, we reaffirm today that our
definition of maliciousness from Thirtyacre remains good
law. See id. at 323 (noting substantially similar definitions of
maliciousness in the Second, Sixth, Ninth, and Eleventh Cir‐
cuits).
Returning to the present case, we conclude that the bank‐
ruptcy and district courts erred in failing to apply issue pre‐
clusion to the first and third elements of the § 523(a)(6) in‐
quiry (injury and maliciousness). The state court necessarily
and actually found injury on each intentional tort claim. The
tortious interference claim rested on the finding that Hors‐
fall’s interference caused First Weber damages. See
Briesemeister, 720 N.W.2d at 542. Similarly, the conversion
claim required the finding that Horsfall’s taking of property
10 No. 13‐1026
resulted in serious interference with First Weber’s rights. See
H.A. Friend & Co., 720 N.W.2d at 100. Because injury was a
required element of the claims, the state court’s injury find‐
ings were actually litigated and necessary to the judgment.
Mrozek, 699 N.W.2d at 61. We also find nothing fundamental‐
ly unfair in holding Horsfall to the state court’s decision on
injury.
The state court judgment also precluded relitigation of
the issue of maliciousness. For purposes of section 523(a)(6),
maliciousness exists when one acts in “conscious disregard
of one’s duties or without just cause or excuse.” Thirtyacre, 36
F.3d at 700. First Weber’s state‐law tortious interference
claim required a finding that Horsfall was “not justified or
privileged to interfere” with its contractual rights.
Briesemeister, 720 N.W.2d at 542. The state court thus
determined that Horsfall’s interference was intentional and
that he was neither justified nor privileged to interfere with
First Weber’s rights. In order to reach this conclusion, the
state court had to find that Horsfall’s actions were not
reasonable or taken in good faith. This inquiry substantially
mirrored the federal test for maliciousness. As before, there
is nothing fundamentally unfair about holding Horsfall to
this finding.
Only one element of the § 523(a)(6) inquiry remains be‐
tween First Weber and the result it wants: willfulness, mean‐
ing either a motive to inflict injury or an act substantially
certain to result in injury. The first element of conversion re‐
quires “intentional control or taking of property belonging
to another;” the third element of tortious interference re‐
quires that the interference was intentional. Both of these
necessarily require only intent to act, not intent to injure. Cf.
No. 13‐1026 11
Geiger, 523 U.S. at 61 (requiring for § 523(a)(6) purposes a
“deliberate or intentional injury, not merely a deliberate or
intentional act that leads to injury”) (emphasis removed).
Neither of the state‐law claims requires showing intent to
injure, and thus that finding was not necessary to the state
court’s judgment.
If accepted, First Weber’s position would risk transform‐
ing every state‐law intentional tort into a non‐dischargeable
debt, contrary to the Supreme Court’s opinion in Geiger. That
problem, added to “the strong policy of the Bankruptcy
Code of providing a debtor with a ‘fresh start,’” see Meyer v.
Rigdon, 36 F.3d 1375, 1385 (7th Cir. 1994), leads us to con‐
clude that the state court’s decision did not preclude Horsfall
from litigating the issue of willfulness in the bankruptcy
case.
B. Summary Judgment
We now turn to First Weber’s contention that it was enti‐
tled to summary judgment, in light of issue preclusion, the
undisputed facts, or some combination of the two. This ar‐
gument runs into a procedural roadblock: it overlooks the
fact that after the bankruptcy court denied summary judg‐
ment under Bankruptcy Rule 7056, it went on and held a full
trial. We have held, when speaking of the district courts, that
the refusal to grant summary judgment is not normally re‐
viewable by this court if a full trial on the merits then takes
place. See, e.g., Eastern Natural Gas Corp. v. Aluminum Co. of
Amer., 126 F.3d 996, 1002 (7th Cir. 1997). The legal sufficiency
of the evidence presented at a jury trial must be tested by a
timely motion under Federal Rule of Civil Procedure 50, or
in the case of a bankruptcy trial, Federal Rule of Bankruptcy
Procedure 9015(c). (Rule 9015(c) provides that “Rule 50 F.R.
12 No. 13‐1026
Civ. P. applies in cases and proceedings [in bankruptcy
court], except that any renewed motion for judgment or re‐
quest for a new trial shall be filed no later than 14 days after
the entry of judgment.”) This trial was to the court, and thus
the procedures of Bankruptcy Rule 7052 (the analogue to
Federal Rule of Civil Procedure 52) applied. But the basic
point of the Eastern Gas line of cases is that the function of a
summary judgment motion is exhausted once the trial starts.
Whether it is a trial to a jury or a trial to the court, there are
alternative and more appropriate ways to assert that the evi‐
dence is legally insufficient once a full trial record has been
compiled.
We are satisfied here, however, that First Weber has pre‐
served its ability to argue for judgment as a matter of law.
Very few facts were disputed, and the bankruptcy judge
made it clear that First Weber’s counsel should not keep
harping on its right to judgment, given the court’s adverse
rulings. We therefore move to the merits of First Weber’s ar‐
gument: that it should have been granted judgment as a mat‐
ter of law based on some combination of issue preclusion
and the undisputed facts.
C. Judgment at Trial
We apply the same standards of review as the district
court in reviewing the bankruptcy court’s decision. In re
Smith, 582 F.3d 767, 777 (7th Cir. 2009). We apply de novo re‐
view for the bankruptcy court’s conclusions of law and clear
error review for its findings of fact. FED. R. BANKR. P. 7052;
see Freeland v. Enodis Corp., 540 F.3d 721, 729 (7th Cir. 2008).
The question whether an actor behaved willfully and ma‐
liciously is one of fact. Thirtyacre, 36 F.3d at 700. “When there
No. 13‐1026 13
are two permissible views of the evidence, the [court]’s
choice between them cannot be clearly erroneous.” Dexia
Credit Local v. Rogan, 629 F.3d 612, 628 (7th Cir. 2010). We
must be especially deferential toward a trial court’s assess‐
ment of witness credibility. Anderson v. City of Bessemer City,
N.C., 470 U.S. 564, 575 (1985).
At trial, Horsfall and Call each testified. The bankruptcy
court found that Horsfall “credibly testified that he has nev‐
er had any ill‐will or animosity towards First Weber … [and
that he] believed his duties and obligations to First Weber
under both the agent agreement and under Call’s listing con‐
tracts were terminated when the contracts themselves were
cancelled or expired.” In contrast, the bankruptcy court
“doubt[ed] the veracity” of Call’s testimony that Horsfall
“induced him [Call] to expire his listings [sic] with First We‐
ber and list his properties to Picket Fence.” The court found
Call’s “claimed ignorance of the one‐year exclusion period
and the nature of protected buyers incredible in light of
Call’s business and real estate experience.”
The facts that the court credited support its conclusions
that Horsfall did not intend to injure First Weber and that
injury to First Weber was not substantially certain to occur.
Horsfall could not have intended to injure First Weber if
Horsfall did not even realize that the prior agreements re‐
mained in force. Furthermore, even if he had known the
agreements remained in force, Horsfall’s collection of a
commission from Call did nothing formally to change Call’s
liability to First Weber. Whether he knew it or not, Call re‐
mained liable to First Weber on the Exclusive Right to Sell
contract. That is undoubtedly why First Weber originally
sued both Horsfall and Call in state court. As it happened,
14 No. 13‐1026
Call’s debt to First Weber was discharged in Call’s own bank‐
ruptcy, but that is not Horsfall’s fault. First Weber acknowl‐
edges as much in its brief before this court.
Because Horsfall’s actions did not have the effect of ex‐
tinguishing Call’s debt to First Weber, injury flowing from
those actions was not substantially certain to occur. Hors‐
fall’s unethical collection of an additional commission, while
not to be commended, did not affect First Weber’s legal
rights against Call. If First Weber had collected from Call,
then perhaps Call would have had a claim for willful and
malicious injury against Horsfall. But Call did not assert any
claims in Horsfall’s bankruptcy, and First Weber’s injury was
not derivative of any loss to Call. Moreover, the bankruptcy
court found that Call knew he remained liable to First We‐
ber. First Weber could have collected from Call despite Hors‐
fall’s actions, and so its injury was not certain.
We find no clear error in the bankruptcy court’s findings.
First Weber has pointed to no evidence that would justify
our setting aside the court’s credibility determinations. Alt‐
hough First Weber spends a great deal of time arguing that
the court erred in finding that Horsfall was entitled to a
commission on the Call sale, that Horsfall listed the Call
property after leaving First Weber, and that Horsfall could
have acted as a dual agent for both Call and the Acostas,
none of these points is relevant to the question whether
Horsfall intentionally injured First Weber or whether First
Weber’s injury was substantially certain to occur.
Ultimately, First Weber, supported by the Wisconsin
Realtors Association as amicus curiae, contends that the bro‐
kerage was certain to suffer injury simply because Horsfall
breached numerous legal and ethical obligations under Wis‐
No. 13‐1026 15
consin real estate law and ignored First Weber’s exclusive
right to collect a commission from sale of the Call property
to the Acostas. The hole in that argument is that Call re‐
mained fully liable for all commission debts owing to First
Weber. Although First Weber was entitled to schedule its
contractual claims against Horsfall in the bankruptcy court,
it failed to show that those claims should be excepted from
the normal power of the court to discharge debts.
D. Evidentiary Rulings
In this part of its appeal, First Weber argues that various
evidentiary rulings so prejudiced it that a new trial is neces‐
sary. In particular, it takes issue with the bankruptcy court’s
exclusion of three pieces of evidence: (1) attorney Staff’s ex‐
pert testimony regarding Wisconsin real estate law and ethi‐
cal rules; (2) evidence of Horsfall’s memberships in the Na‐
tional Realtors Association and the multiple listing service;
and (3) impeachment evidence suggesting that Horsfall
made misstatements in filings with the court. To challenge
the bankruptcy court’s exclusion of this evidence, First We‐
ber must show that the court abused its discretion. Thompson
v. Boggs, 33 F.3d 847, 854 (7th Cir. 1994).
First Weber tells us that Staff’s testimony was offered to
“articulat[e] and expl[ain] brokerage practices, including
both education and application to the contracts and transac‐
tional issues raised.” The bankruptcy court did not question
Staff’s credentials, but it excluded his testimony as unhelpful
and irrelevant. See FED. R. EVID. 702. We see no abuse of dis‐
cretion in that judgment. A court does not need an expert to
explain an area of law. In addition, Staff’s proposed testimo‐
ny was irrelevant because it showed only that Horsfall inten‐
tionally broke Wisconsin real estate rules (“intent to act”); it
16 No. 13‐1026
had no bearing on whether he intended to inflict injury on
First Weber.
The court similarly acted within bounds when it decided
to exclude the proposed evidence of Horsfall’s membership
in the National Realtors Association and the multiple listing
service. First Weber offered this to show that Horsfall was
subject to various legal and ethical obligations. But as we al‐
ready have noted, that was beside the point. Indeed, that
Horsfall breached an array of obligations was not in dispute,
nor could it have been, in light of the state court’s decision.
The matter in dispute was whether Horsfall intended to in‐
jure First Weber or if injury was substantially certain to oc‐
cur. Horsfall’s association memberships say little or nothing
about that. It was not an abuse of discretion to exclude this
evidence.
Finally, First Weber offered evidence of misstatements in
court filings in order to show that Horsfall’s testimony was
unreliable. The bankruptcy court ruled that such “general
impeachment” was not relevant to the central issue in the
case. Federal Rule of Evidence 608(b) provides that “the
court may, on cross‐examination, allow [specific instances of
a witness’s conduct] to be inquired into if they are probative
of the character for truthfulness or untruthfulness of … the
witness.” The rule is permissive, not mandatory, leaving the
court with great discretion. The bankruptcy court deter‐
mined that Horsfall’s alleged misstatements on ancillary is‐
sues were not sufficiently probative of his truthfulness re‐
garding material issues to warrant their admission. This
strikes us as a closer call, but standards of review matter.
First Weber has not carried its burden to show that the court
abused its discretion, or even that this error was prejudicial.
No. 13‐1026 17
In short, we find no abuse of discretion in the challenged
evidentiary rulings, and so we reject First Weber’s request
for a new trial on this basis.
E. Cross‐Motions for Sanctions
Finally, we turn to the parties’ cross‐motions for sanc‐
tions. We regard an appeal as frivolous “when the result is
foreordained by the lack of substance to the appellant’s ar‐
gument.” Matter of Generes, 69 F.3d 821, 828 (7th Cir. 1995)
(internal quotation omitted). It is important to keep the bar
high, so that parties will not be dissuaded from bringing ar‐
guments that ultimately may fail, but that are fair grounds
for application or extension of the law. With that in mind, we
see no ground for sanctions against either party here.
This case involves the interplay of some knotty areas of
law, including issue preclusion and bankruptcy. Our own
analysis of the preclusion question differs from that of both
courts below. Furthermore, as we noted, decisions have been
“all over the lot” with respect to the definition of willful and
malicious injury for purposes of § 523(a)(6). The result here
was not foreordained, and so there is no reason to sanction
First Weber for filing the appeal. Nor do we think Horsfall
should be sanctioned, since he was entitled to rely on the
bankruptcy court’s findings of fact and the distinctions be‐
tween the earlier state proceeding and the present case.
We take this opportunity to caution the parties and the
bar that they should not lightly label their opponents’ argu‐
ments as frivolous. As our sister circuit said recently:
There are good reasons not to call an oppo‐
nent’s arguments “ridiculous” … . The reasons
include civility; the near‐certainty that over‐
18 No. 13‐1026
statement will only push the reader away …;
and that, even where the record supports an
extreme modifier, the better practice is usually
to lay out the facts and let the court reach its
own conclusions.
Bennett v. State Farm Mut. Auto. Ins. Co., 731 F.3d 584, 584–85
(6th Cir. 2013) (internal quotation omitted). We think the par‐
ties in this case would have done well to follow this advice.
*************
The judgment of the district court is
AFFIRMED.