JEFF BOHM, Bankruptcy Judge.
This suit concerns developing case law about the collateral source rule under Texas law and the "justified under the circumstances" exception to Section 523(a)(6) of the Bankruptcy Code.
Scott Cameron Wise (the Plaintiff) seeks a judgment against the debtor, James Timothy Peterson (the Debtor). Specifically, the Plaintiff requests this Court to enter a judgment declaring that: (a) the Debtor owes a debt to the Plaintiff for damages suffered when the Debtor assaulted him; and (b) the damages flowing from the assault are nondischargeable pursuant to 11 U.S.C. § 523(a)(6). According to the Plaintiff, the Debtor punched him in the mouth, thereby causing damages in the form of medical expenses, among other things. Stated differently, the Plaintiff asserts that the Debtor's actions toward him constitute willful and malicious injury under § 523(a)(6).
For his part, the Debtor admits that he struck the Plaintiff, but vigorously denies that his conduct amounts to willful and malicious injury under § 523(a)(6). Therefore, the Debtor contends that any obligation he may have to the Plaintiff is dischargeable.
The trial in this adversary proceeding took place on March 18, 2011, April 5, 2011, April 20, 2011, and May 17, 2011. There were twelve exhibits admitted into evidence: Plaintiffs Exhibits 1-10 and Defendant's Exhibits 1 and 2. Ten witnesses
The Court now makes the following findings of fact and conclusions of law pursuant to Federal Rules of Bankruptcy Procedure 9014 and 7052. To the extent that any finding of fact is construed as a conclusion of law, it is adopted as such. Moreover, to the extent that any conclusion of law is construed as a finding of fact, it is adopted as such. The Court reserves its right to make additional findings of fact and conclusions of law as it deems appropriate or as may be requested by any of the parties.
On December 18, 2009, the Debtor filed his Chapter 7 bankruptcy petition (the Petition Date). The Debtor, in Schedule F, represented that the Plaintiff is an undisputed, unsecured creditor in the amount of $100.00. [Schedule F, Main Case Doc. No. 1]. On January 27, 2010, the first meeting of creditors was held. Pursuant to Bankruptcy Rule 4007(c), the deadline for filing any complaints to determine dischargeability was March 29, 2010. The Plaintiff met this deadline when he filed his complaint against the Debtor on March 29, 2010. [Adv. Docket No. 1]. No other creditor filed any complaints against the Debtor, and therefore, on May 12, 2010, the Debtor received a discharge of his debts with one exception: he did not receive a discharge of the claim now brought by the Plaintiff in this adversary proceeding. [Main Case, Doc. No. 43]. Whether the Debtor receives a discharge of this particular claim is determined through the resolution of this adversary proceeding. This Court now issues this Memorandum Opinion to explain its ruling on this matter.
The Court heard testimony from ten witnesses. Of these ten persons, six gave testimony about the circumstances that occurred at a holiday party on December 5-6, 2009, leading up to the Debtor punching and knocking out the Plaintiff. These six witnesses are: (1) the Plaintiff; (2) the Debtor; (3) Noel Pilegge, who is dating the Plaintiff; (4) Julia Wise, the Plaintiffs ex-wife who had an adulterous relationship with the Debtor prior to her divorce from the Plaintiff and has continued that relationship with the Debtor; (5) Vicky Rocher, a friend of Julia Wise who occasionally socialized with Ms. Wise and the Debtor; and (6) Shaun Logsdon, who was dating Ms. Rocher and also occasionally socialized with Ms. Wise and the Debtor.
These six witnesses gave either conflicting or inconsistent testimony on certain important events that occurred at the party. For example, the Plaintiff and Ms. Pilegge both testified that the Debtor suddenly jumped in front of them after they departed the party and were walking down the driveway of the Rapier residence; the Debtor started verbally abusing the Plaintiff; and then the Debtor punched him in the mouth, knocking him out [March 18, 2011 Tr. 56:25-62:21, 72:15-75:22]. The Debtor, Ms. Wise, Ms. Rocher, and Logsdon, however, swore that it was the Plaintiff who began verbally abusing the Debtor and initiating physical contact, and that the Debtor punched the Plaintiff only as a last resort. [March 18, 2011 Tr. 32:5-39:23, 40:16-41:6, 44:16-47:21, 105:15-18, 111:2-117:2]; [April 5, 2011 Tr. 15:2-18:9, 73:13-78:2].
Unfortunately, the other four witnesses who testified at trial did not see the altercation, and therefore could not provide this Court with an unbiased, third-party, eye-witness account of the events that transpired. The Court therefore must carefully weigh the credibility of the six witnesses who testified about what happened during the evening of December 5, and the early
With respect to the other four witnesses who testified, as noted already, none of them were physically present to observe the altercation between the Plaintiff and the Debtor. Dr. Irv Wishnow was called to testify as a character witness for the Plaintiff, but it was, for the most part, fairly generic testimony that does not greatly assist this Court in rendering this decision. Mark Stephenson did attend the holiday party where the altercation occurred, but he did not witness the hostilities at all, and therefore his testimony did not aid the Court in making its decision.
Officer Trung Le, the responding officer from the Houston Police Department, gave testimony that assisted this Court in issuing this ruling. Officer Le, although not present during the incident, did appear on the scene within a few minutes thereafter. At that time, he met and observed the Plaintiff, and met and took statements from the Debtor, Ms. Wise, Ms. Rocher, Logsdon, and the Plaintiff. His very credible testimony about the Plaintiffs behavior and condition at that time—particularly the Plaintiffs high state of intoxication— has assisted this Court in rendering its ruling.
The Court has jurisdiction over this adversary proceeding pursuant to 28 U.S.C. §§ 1334(b) and 157(a). This particular dispute is a core proceeding pursuant to 28 U.S.C. § 157(b)(2)(A), (B), (I), (O), and the general "catch-all" language of 28 U.S.C. § 157(b)(2). See Southmark Corp. v. Coopers & Lybrand (In re Southmark Corp.), 163 F.3d 925, 930 (5th Cir.1999) ("[A] proceeding is core under section 157 if it invokes a substantive right provided by title 11 or if it is a proceeding that, by its nature, could arise only in the context of a bankruptcy case."); De Montaigu v. Ginther (In re Ginther Trusts) Adv. No. 06-3556, 2006 WL 3805670, at *19 (Bankr. S.D.Tex. Dec. 22, 2006) (holding that an "[a]dversary [proceeding is a core proceeding under 28 U.S.C. § 157(b)(2) even though the laundry list of core proceedings under § 157(b)(2) does not specifically name this particular circumstance"). Venue is proper pursuant to 28 U.S.C. § 1409.
The Debtor has stipulated that he owes a debt to the Plaintiff;
Pursuant to the Texas Penal Code, the common law actions of assault and battery are addressed collectively as assault. TEX. PENAL CODE ANN. § 22.01(a) (Vernon 2010). Because the elements for assault are the same in both civil and criminal cases, assault occurs when a person "intentionally, knowingly, or recklessly causes bodily injury to another...." TEX. PENAL CODE § 22.01(a)(1) (Vernon 2010); Baribeau v. Gustafson, 107 S.W.3d 52, 60-61 (Tex.App.-San Antonio 2003, pet. denied) (citing Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 523 (Tex.App.-San Antonio 1996, writ denied)). In this suit, it is undisputed that the Debtor both intentionally and knowingly punched the Plaintiff [Finding of Fact No. 24], and that the Plaintiff suffered injury to his body due to the punch. [Finding of Fact Nos. 25, 34-41]. Accordingly, the Court concludes that the Debtor assaulted the Plaintiff, and that the Debtor is liable to the Plaintiff for any damages suffered by the Plaintiff, unless the Debtor has a meritorious affirmative defense. The Debtor has pleaded two affirmative defenses: (1) self defense; and (2) defense of third parties. The Court now discusses both of these affirmative defenses.
Because it is undisputed that the Debtor both intentionally and knowingly
This Court finds Fegans v. State instructive. No. 05-99-01423-CR, 2001 WL 549177, at *2-3, 2001 Tex.App. LEXIS 3413, at *6 (Tex.App.-Dallas May 24, 2001 no pet.). In that case, the evidence was sufficient to defeat a defendant's self-defense claim because that particular defendant made no attempt to escape from the complainant and made no other attempt to protect himself aside from swinging a razor blade at the complainant. Id. at *2-3, *5, 2001 Tex.App. LEXIS 3413, at *6, 12. The facts here are similar. The Debtor had ample opportunity to avoid the hostile situation, but instead chose to further escalate it by walking toward the Plaintiff. [Finding of Fact No. 23]. The Debtor and Ms. Wise were at the end of the driveway when the Plaintiff was just outside the front door. [Finding of Fact Nos. 18, 20 & 21]. The Plaintiff first pushed Ms. Rocher, and then he shoved Logsdon. [Finding of Fact No. 22]. But, that was all the Plaintiff did. He was not brandishing a gun or other weapon, [Finding of Fact No. 23], so the Plaintiff was not on the verge of using deadly force. At this point, the Plaintiff was not in close physical proximity to the Debtor—he was approximately fifty feet away. [Finding of Fact Nos. 20 & 23]. The Debtor could therefore have continued walking with Ms. Wise to his truck instead of leaving Ms. Wise at the end of the driveway, turning around, and proceeding back up the driveway to confront the Plaintiff. [Finding of Fact No. 23]. Stated differently, the Debtor could have easily escaped the Plaintiff by simply walking briskly down the block with Ms. Wise and getting into his truck. The existence of this escape route bars the affirmative defense of self-defense.
To the extent that the Debtor was fearful about Ms. Rocher's safety, Logsdon had already taken off his jacket and prepared himself to protect her from the Plaintiff. [Finding of Fact No. 22]. Given that the Plaintiff was extremely intoxicated to the point of slurring his speech, [Finding of Fact No. 21], his ability to do anything more than shove someone was greatly impaired.
Even assuming that the Debtor was justified in approaching the Plaintiff, it would have been a relatively simple matter for the Debtor and his friends to escape the Plaintiff. As already noted, the Plaintiff was so inebriated that he was staggering and slurring his speech. [Finding of Fact No. 21]. The Debtor could have requested Ms. Rocher and Logsdon to quickly walk away from the Plaintiff and join Ms. Wise, who was at the end of the driveway, while the Debtor walked back up the driveway to converse with the Plaintiff. The Debtor could have kept the Plaintiffs attention while Ms. Rocher and Logsdon quickly walked down the driveway—and then the Debtor himself could have quickly walked away from the Plaintiff, joined his companions at the end of the driveway, and then quickly walked toward the Debtor's truck, which was at least a block away—a distance that the Plaintiff would have had great difficulty negotiating given his extremely drunken state. [Finding of Fact Nos. 13 & 21]. In sum, given the Plaintiffs intoxicated state, he would have had much difficulty catching up with the Debtor, Ms. Wise, Logsdon, and Ms. Rocher if they had quickly walked to the Debtor's truck. Of course, he would have had even greater difficulty inflicting any bodily harm on them even if he had caught up with them. This opportunity to escape leads this Court to conclude that the Debtor could not have reasonably believed that force was immediately necessary to protect himself against the Plaintiff. The Debtor's actions were not justified under the circumstances.
Even if the Debtor could not have escaped from the Plaintiff, this Court concludes that a reasonable person would not have used the degree of force that the Debtor used. See Curry, 222 S.W.3d at 749. The degree of force with which a person responds to an actual or apparent threat must be proportional to the degree of force that he faces. Evans v. State, 2010 WL 376940, at *2 (Tex.App.-Waco Feb. 3, 2010, pet. ref d) (citing Tidmore v. State, 976 S.W.2d 724, 728-29 (Tex.App.-Tyler 1998, pet. ref'd)). A response that exceeds the scope of the original attack may be a factor that precludes a party from relying on self-defense. See Kleman v. Taylor (In re Taylor), 322 B.R. 306, 309 (Bankr.N.D.Ohio 2004). Moreover, conduct that is retaliatory rather than defensive is considered to be disproportionate. See Zuliani v. State, 2003 WL 21023105, at *4 (Tex.App.-Austin 2003, no pet.).
Here, the Plaintiff had only shoved the Debtor. [Finding of Fact No. 23]. The Plaintiff had thrown no punches, was brandishing no weapon, was very intoxicated, was staggering, and was slurring his speech. [Finding of Fact Nos. 21-23]. Meanwhile, the Debtor was sober. [Finding of Fact No. 15]. This Court concludes that punching the Plaintiff squarely in the mouth with such force that he lost consciousness was not proportional to the degree
Additionally, the Debtor also argues that he punched the Plaintiff because he feared for the safety of third parties— namely, Ms. Wise, Ms. Rocher, and Logsdon. The affirmative defense "Defense of Third Person" applies if:
TEX. PENAL CODE § 9.33 (Vernon 2010). Under this provision, the actor "steps into the shoes of the third person" and exercises force on behalf of that person. Hughes v. State, 719 S.W.2d 560, 564 (Tex.Crim. App.1986). Once the immediacy of an attack or alleged danger to the third party has lapsed, the actor is no longer justified in using force or deadly force to protect a third party. Morgan v. State, 545 S.W.2d 811, 814 (Tex.Crim.App.1977).
The Court rejects the Debtor's argument that he punched the Plaintiff in order to protect Ms. Wise, Ms. Rocher, and Logsdon because this Court does not view the Debtor as having a reasonable belief that his intervention was immediately necessary to protect his companions. First, Ms. Wise was not in close proximity to the Plaintiff; she was at the end of the driveway—approximately fifty feet away the Plaintiff. [Finding of Fact No. 20]. Unlike the Plaintiff, she was sober and could have easily walked away toward the Debtor's truck. [Finding of Fact No. 15]. Therefore, as the Plaintiff failed to make any attack on or threat toward Ms. Wise, and because she was not in close proximity to the Plaintiff, the Debtor could not have reasonably believed an attack on her by the Plaintiff was imminent.
Second, although the Plaintiff had pushed Ms. Rocher, Logsdon had jumped in front of him to prevent the Plaintiff from taking any further action toward her. [Finding of Fact No. 22]. And, when the Plaintiff thereafter shoved Logsdon, Logsdon then took off his jacket and prepared
In sum, the Debtor assaulted the Plaintiff, and the Debtor's affirmative defenses will not stand. Therefore, the Debtor is liable for damages to the Plaintiff. The Court now addresses the extent of these damages.
The total charges for the ambulance transport and all of the Plaintiffs medical visits and tests ordered by his doctors resulting from the Debtor's punch are $20,587.75. [Finding of Fact No. 42]. The Debtor has paid a portion of this total amount; his insurance carrier has paid a portion, and the remainder has been written off. [Finding of Fact No. 42]. Pursuant to the one satisfaction rule, a plaintiff may only have one recovery for a loss. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 303-04 (Tex.2006). However, the collateral source rule acts as an exception to the one satisfaction rule. Bejjani v. TRC Servs., No. 14-08-00750-CV, 2009 WL 3856924, at *5, 2009 Tex.App. LEXIS 8901, at *15 (Tex.App.-Houston [14th Dist.], Nov. 19, 2009, no pet.) (citing Brown v. Am. Transfer and Storage Co., 601 S.W.2d 931, 936 (Tex.1980)). The collateral source rule sets forth that a tortfeasor may not benefit from insurance payments independently obtained by the injured party when the wrongdoer is not in privity to that insurance contract. Id. Moreover, the right to an offset because of insurance proceeds is an affirmative defense. Brown, 601 S.W.2d at 936. As such, a party asserting this affirmative defense has the burden of pleading offset and factually supporting it. Id., Bejjani, 2009 WL 3856924, at *5-6, 2009 Tex.App. LEXIS 8901, at *15-16.
Here, the Debtor neither pled offset nor introduced any evidence that he was in privity of contract with the Plaintiffs insurance provider. As such, the one satisfaction rule does not apply and no compensatory damages are offset for amounts paid by the Plaintiffs insurance carrier.
While the Plaintiffs total medical charges amount to $20,587.75, the Plaintiff and the Plaintiffs insurance company paid significantly less than this amount, thus affecting the total amount of the Debtor's liability. [Finding of Fact No. 42]. This fact is explained by the adjustments (i.e., write-offs) that the Plaintiffs insurance company made when paying the Plaintiffs claims. For example, Plaintiffs Exhibit 3 reflects that the total charges for the services rendered by Dr. Robert Szema in the early morning of December 6, 2009 at Memorial Herman Hospital were $8,064.75. This figure reflects the charges for, among
Recent Texas case law reflects that amounts written off are not to be included in a compensatory damage award. Indeed, the watershed case of Mills v. Fletcher held that "section 41.0105 [of the Texas Civil Practice and Remedies Code] limits a plaintiff from recovering medical care expenses that have been adjusted or `written off.'" 229 S.W.3d at 769.
Indeed, this decision was adopted in a 2007 memorandum opinion by the Honorable John D. Rainey, United States District Judge for the Southern District of Texas. In Goryews v. Murphy Exploration & Prod. Co., Judge Rainey concluded that the holding in Mills "is a reasonable interpretation of the statute and will follow the intermediate court's decision in this regard." No. V-06-01, 2007 WL 2274400, at *4, 2007 U.S. Dist. LEXIS 57719, at *11 (S.D.Tex. Aug. 8, 2007). Judge Rainey then goes on to explain his holding by noting "the equally important tort policy that tort damages are designed to make the victim whole" and because the insurance carrier "was only obligated to pay the reduced amount, it would undermine the `make-whole' tort principle to allow the Plaintiff to receive medical expenses above and beyond those which he or his carrier were actually obligated to pay." Id. at *4-5, 2007 U.S. Dist. LEXIS 57719, at *12 (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 16 (Tex.1994)).
This ruling stands in contrast to the holding in Self v. Wal-Mart Stores, Inc., No. 2:05-CV-301, 2007 U.S. Dist. LEXIS 49662. Decided before Mills, Magistrate Judge John D. Love concluded that the definition of "actually incurred" (from section 41.0105) is the amount charged for the services, not the amount actually paid by the plaintiff and the insurance carrier. Id. at *4-5. In reaching his conclusion, Judge Love cited the Texas Supreme Court case which held that the term "actually incurred" includes all hospital expenses, whether they are paid by a third party or not. Black v. Am. Bankers Ins. Co., 478 S.W.2d 434, 437-38 (Tex.1972). Importantly, however, this Texas Supreme Court case does not address Section 41.0105, nor does it discuss insurance adjustments or write-offs.
This Court cannot award as compensatory damages any amounts not actually paid by the Plaintiffs insurance carrier due to a downward adjustment in the total charge. Because the undersigned bankruptcy judge believes that he is bound by a decision of the United States District Court for the Southern District of Texas, this Court will abide by Judge Rainey's holding. In re DePugh, 409 B.R. 125, 141 n. 5 (Bankr. S.D.Tex.2009) (noting that "decisions by the district court are binding on the bankruptcy courts of that district") (citing Rand Energy Co. v. Strata Directional Tech., Inc. (In re Rand Energy Co.), 259 B.R. 274, 276 (Bankr.N.D.Tex.2001)). Contra Villarreal v. Showalter (In re Villarreal), 413 B.R. 633, 641 (Bankr.S.D.Tex. 2009) (the Honorable Marvin Isgur, United
The Debtor adduced no testimony about any other actual damages. Accordingly, actual damages total $7,477.10. [Finding of Fact No. 42].
In his complaint, the Plaintiff did not specifically plead for punitive damages. Both this Court and the Fifth Circuit have held, however, that a plaintiff is not required to specifically plead punitive damages. Schexnayder v. Bonfiglio, 167 Fed. Appx. 364, 367 (5th Cir.2006); Smith v. Lounsbury (In re Amberjack Interests, Inc.), 326 B.R. 379, 392 (Bankr.S.D.Tex. 2005) (holding that a plaintiff is required neither to specifically plead punitive damages nor to specifically cite grounds for the recovery of such damages in the complaint). Moreover, although the Plaintiffs complaint did not expressly plead for punitive damages, the Plaintiffs Proposed Findings of Fact and Conclusions of Law expressly request punitive damages of $50,000.00. [Adv. Doc. No. 79, p. 7, ¶ 8]. Thus, prior to the beginning of trial, the Debtor was in fact on notice that the Plaintiff was seeking punitive damages of $50,000.00.
This Court has previously held that a bankruptcy court may rely on state law to award exemplary damages even "where the Code does not specifically allow such measures." In re Amberjack, 326 B.R. at 391. Accordingly, because the Code is silent as to whether punitive damages may be awarded in a § 523(a)(6) action, section 41 of the Texas Civil Practice and Remedies Code provides the basis for any punitive damages award.
This Court expressly finds that there is clear and convincing evidence that the Debtor acted with malice. The extreme disdain that the Debtor had toward the Plaintiff leaves little doubt that the Debtor had a specific intent to cause substantial injury to the Plaintiff. The Debtor's intense dislike for the Plaintiff arose for two reasons. First, the Debtor views himself as the ultimate macho man, and he came to view the Plaintiff as a pissant wimp. Why else would the Debtor send text-messages to the Plaintiff taunting him that he (i.e., the Debtor) was more capable than the Plaintiff of sexually satisfying Ms. Wise? [Finding of Fact No. 7]. It takes a huge dose of disdain, plus a sizeable dose of narcissism, for the Debtor—presumably a mature adult—to stoop so low. Second, the Debtor's utter contempt for the Plaintiff arose from the FAA's investigation of the Debtor as a result of the Plaintiffs contacting the FAA to report that the Debtor was using drugs.
In making an award of punitive damages, this Court must consider the purpose of punitive damages, which is to punish a defendant and deter future bad acts, not to compensate the Plaintiff. TEX. CIV. PRAC. & REM.CODE ANN. § 41.001 & 41.010 (Vernon 2010). This Court has considered the purpose of punitive damages and concludes that such an award would both punish the Debtor and deter others from acting similarly.
Texas law limits the amount of punitive damages that a court may award, capping them at the greater of: "(1)(A) two times the amount of economic damages; plus (B) an amount equal to any noneconomic damages found by the jury, not to exceed $750,000; or (2) $200,000."
To determine the amount of the punitive damages award, this Court should consider evidence relating to: "(1) the nature of the wrong; (2) the character of the conduct involved; (3) the degree of culpability of the wrongdoer; (4) the situation and sensibilities of the parties concerned; (5) the extent to which such conduct offends a public sense of justice and propriety; and (6) the net worth of the defendant." TEX. CIV. PRAC. & REM.CODE § 41.011 (Vernon 1995).
"The nature of the wrong refers to the injury or harm caused by the defendant's actions." Baribeau, 107 S.W.3d at 62. Here, the Plaintiffs injuries include: (1) a concussion; (2) laceration of the lip; and (3) bruised ribs. [Finding of Fact Nos. 34 & 37]. Moreover, as a result of these injuries, the Plaintiff has experienced difficulty in sleeping, loss of memory, headaches, and fatigue. [Finding of Fact Nos. 39-41]. He has also undergone—and continues to undergo—lip injections to reduce the scar tissue in his mouth. [Finding of Fact No. 39]. Given these circumstances, the Court concludes that this first factor favors imposition of punitive damages.
Resorting to fisticuffs at a private holiday party in the civilized American society of the 21st century is unacceptable conduct—particularly when the punch-thrower is an American Airlines pilot whose very profession puts him in charge of protecting people's physical safety and necessarily requires him to keep his cool at all times. Apparently, the Debtor believes that he still lives in the bygone era of the Wild West; he is woefully wrong. The Court concludes that the character of the conduct in this instance favors the imposition of punitive damages.
The Debtor—and
The situation and sensibilities of the parties concerned in this suit are stark in various respects. First, on a purely physical basis, the Plaintiff is 6'5", whereas the Debtor is 5'8" tall. [Finding of Fact No. 28]. Thus, at first blush, this situation would not favor imposition of punitive damages. However, while the Plaintiff is taller than the Debtor, the latter is a stocky and athletic individual who is unquestionably capable of throwing a powerful punch. Additionally, when the Debtor threw his punch at the Plaintiff, the latter was terribly inebriated, slurring his speech, and stumbling around—and the Debtor was aware of the Plaintiffs woeful
Further, what would lead a grown man with no apparent history of alcohol problems to attend a private party with his girlfriend of several months, become rip-roaring drunk, and start yelling unsavory comments at a particular individual (i.e., the Debtor)? [Finding of Fact No. 23]. There is no question that the Debtor was attending the party with the Plaintiffs ex-wife, but by this time, the divorce had been final for several months, and, as was already noted, it was not as if the Plaintiff was alone at the party: Ms. Pilegge, whom he had been dating for many months, was attending the party with him. [Finding of Fact No. 10]. The Court finds that for the Plaintiff to conduct himself in the manner that he did, he must have accumulated a huge reservoir of resentment toward the Debtor.
The Court also finds that the situation and sensibilities as of the night of the Rapier party reflect why the Plaintiff greatly resented the Debtor. The Debtor not only had begun an intense and furtive sexual relationship with Ms. Wise—which she deliberately hid from her husband— but the Debtor had also gone out of his way to humiliate the Plaintiff about his (i.e., the Plaintiffs) sexual inadequacies once the Plaintiff discovered the illicit relationship. [Finding of Fact Nos. 3-5 & 7]. Long before throwing the punch that knocked out the Plaintiff while he was in a drunken state, the Debtor had been taunting the Plaintiff unmercifully in text messages about how he (i.e., the Debtor) was sexually satisfying Ms. Wise more than the Plaintiff ever had. [Finding of Fact No. 7].
It is one thing for the Debtor to have begun an illicit relationship with the Plaintiffs wife; indeed, it takes two to tango, and Ms. Wise was more than willing to intimately dance with the Debtor. [Finding of Fact Nos. 3 & 4]. But, it is beyond the pale for the Debtor to send text messages to the Plaintiff taunting him about how the Debtor was sexually satisfying Ms. Wise more than the Plaintiff ever could. [Finding of Fact No. 7]. There can be no denying that such messages were malicious: their very content was aimed at psychologically harming the Plaintiffs self-esteem.
Aside from psychologically attacking the Plaintiffs ability to fulfill his marital duties in the bedroom, the Debtor's actions have also had a long-term physical impact on the Debtor. First, the Plaintiff is still seeing Dr. Fortes, who is doing lip injections to attempt to reduce the scar tissue in the Plaintiffs mouth. [Finding of Fact Nos. 39 & 41]. Second, although the Plaintiff has recovered significantly from the effects of the concussion that he sustained, the Plaintiff continues to experience fatigue, memory loss, lack of concentration, and headaches. [Finding of Fact No. 41].
This Court concludes that all of the circumstances described above favor imposition of punitive damages. However, it is important to recall that the individual whose conduct led to the altercation was the Plaintiff. It was the Plaintiff who became intoxicated at the party [Finding of Fact No. 15]; who started verbally abusing the Debtor and Ms. Wise as they departed the party [Finding of Fact No. 18]; who continued his verbal assault as the Debtor and Ms. Wise walked down the driveway of the Rapier residence to proceed to the Debtor's truck [Finding of Fact No. 18]; and who first resorted to physical contact by shoving, first, Ms.
Moreover, the only reason that the Debtor departs this suit with liability to the Plaintiff is because of the unreasonable manner in which the Debtor "finished it." Fulfilling his macho persona, the Debtor hauled off and slugged the Plaintiff as hard as he possibly could, with the full knowledge that the Plaintiff, who was in a drunken stupor, could not possibly have defended himself. [Finding of Fact Nos. 24-26].
Overall, on balance, this fourth factor favors imposition of punitive damages, but the argument in favor of such a result is not as compelling as the argument with respect to any of the first three factors.
The Debtor had a choice as the Plaintiff shouted at Ms. Wise and him while they were at the end of the driveway. He could have quickened his pace and encouraged Ms. Wise to do the same in order to arrive at his truck (parked at least one block away), and to avoid any confrontation with the Plaintiff. Instead, the Debtor chose to walk back up the driveway and meet the intoxicated Plaintiff face-to-face. [Finding of Fact No. 23]. By so doing, the Debtor escalated the chance for a physical confrontation with the Plaintiff. Of course, with the Debtor in close proximity to the Plaintiff, the latter shoved the Debtor while jousting with him verbally. [Finding of Fact No. 23]. Rather than retreat, or attempt to run around the Plaintiff to gain access to the Rapier house and request assistance from the hosts and other guests, the Debtor clenched his fist and threw as hard a punch as he could possibly throw squarely on the Plaintiffs lip. This punch completely knocked out the Plaintiff and caused damage to his head, mouth, teeth, and ribs. [Finding of Fact Nos. 24-26, 34, 37-41].
The Court finds that the Debtor's conduct is offensive to a public sense of justice and propriety. Although it may not be on the same level as, say, a toxic tort or a large-scale ponzi scheme that eviscerates a family's life savings, sucker-punching an inebriated individual in the face is offensive, regardless of any verbal abuse from the drunken individual. Moreover, even though the Plaintiff shoved the Debtor while exchanging verbal insults with him, there was no need for the Debtor to wind up and throw a hard punch into the Plaintiffs mouth. In sum, the Debtor's retaliation to the Plaintiffs shove was so excessive that it offends a public sense of justice and propriety. Therefore, the Court concludes that this fifth factor favors imposition of punitive damages, although by no means a substantial amount.
The Debtor's schedules reflect that he owes $5,020,000.00 in debt securing real property, and $2,025,006.00 in unsecured, non-priority debt (including a $60,000.00 gambling debt). [Main Case, Doc. No. 1, pp. 6, 28]. However, the Debtor's debts have been discharged as of today (except the debt related to this adversary proceeding).
He also will generate relatively significant income in the future in his position as an American Airlines pilot. However, because the Debtor is divorced, with his wages garnished $2,000.00 per month for spousal and child support, the Debtor will have less disposable income for the near future than would otherwise be the case. [Main Case, Doc. No. 1, Schedule I, p. 33-34]. Indeed, according to the Debtor's Schedule I, his current net disposable income per month is $90.00. [Main Case, Doc. No. 1, Schedule I, p. 34]. Of course, the Debtor may—indeed, should—have to sacrifice some of the luxuries that are reflected in his Schedule J in order to have more disposable cash with which to reduce the debt that he now owes to the Plaintiff.
For example, the Debtor's Schedule J reflects a monthly cable television expense of $100 and a monthly cell phone expense of $350. [Main Case, Doc No. 1, Schedule J, p. 35]. As another example, the Debtor's Schedule J reflects a monthly mortgage or rental payment of $3,000.00. [Main Case, Doc. No. 1, Schedule J, p. 34]. It is curious that the Debtor's Schedule G reflects that he has a lease agreement with Ms. Wise (for her house in Houston) and a separate lease agreement with Ventura Lofts (which is also in Houston). [Main Case, Doc. No. 1, Schedule G, p. 30]. Therefore, it appears that the Debtor has two places of residence in Houston. At trial, he testified that he has moved in with Ms. Wise. [March 18, 2011 Tr. 15:5-10]. Accordingly, there is no reason for the Debtor to be leasing a loft from Ventura Lofts—a very toney residential complex in West Houston.
A review of the six factors on which the Court is required to focus in making a determination of the amount of punitive damages indicates that the first, second, third, and fifth factors favor imposition of a goodly sum of punitive damages, while the fourth and sixth factors favor either a
The Plaintiff has requested $50,000.00 in punitive damages. Given that the statutory ceiling is $200,000.00, and the Plaintiffs actual damages are $7,477.10, the Court concludes that the request for $50,000.00 is within the realm of reasonableness. See, e.g., Durban v. Guajardo, 79 S.W.3d 198 (Tex.App.-Dallas 2002, no pet.) (affirming award of punitive damages of $25,000.00 where the maximum amount of punitive damages could have been $200,000.00, and where the actual damages totaled $7,000.00). Indeed, the amount of $50,000.00 is only a quarter of the maximum that the Plaintiff could receive. However, merely because $50,000.00 is within the realm of reasonableness does not automatically mean that the Court should award this amount.
Because only four out of the six factors weigh in favor of awarding a significant sum of punitive damages, it is logical in determining the appropriate amount to award to multiply the amount requested by the Plaintiff (i.e., $50,000.00) times 4/6. This mathematical calculation produces the following result: $50,000.00 x 4/6 = $33,333.33. Therefore, this Court concludes that the Plaintiff is entitled to punitive damages of $33,333.33.
For the reasons set forth above, the actual damages awarded to the Plaintiff total $7,477.10, and the punitive damages assessed against the Debtor are $33,333.33. Therefore, the total amount of damages is $40,810.43, and it is this amount for which the Debtor is liable to the Plaintiff (in addition to pre and post judgment interest, as discussed infra). This Court must now determine whether this debt of $40,810.43 is nondischargeable under § 523(a)(6).
11 U.S.C. § 523(a)(6) states, in pertinent part, that "a discharge under section 727... of this title does not discharge an individual debtor from any debt ... [that is the result of] willful and malicious injury by the debtor to another entity." 11 U.S.C. § 523(a)(6). In explaining the meaning of § 523(a)(6), the Supreme Court has held that "[t]he 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." Kawaauhau v. Geiger, 523 U.S. 57, 61, 118 S.Ct. 974, 140 L.Ed.2d 90 (1998). The Supreme Court has further held that "debts arising from recklessly or negligently inflicted injuries do not fall within the compass of section 523(a)(6)." Id. at 64, 118 S.Ct. 974.
The Fifth Circuit expanded on the Geiger interpretation of § 523(a)(6) by holding that "`willful and malicious injury' is a unitary concept entailing a single two-pronged test." Miller v. J.D. Abrams Inc. (In re Miller), 156 F.3d 598, 603 (5th Cir.1998). There must either be an "objective substantial certainty of harm or a subjective motive to cause harm." Id. at 606. When applying this two-pronged test, courts should look at the record as a whole, not simply focus on specific pieces of evidence. See Suggs v. Stanley (In re Stanley), 224 Fed.Appx. 343, 348 (5th Cir. 2007) (holding that the bankruptcy court's finding of willful and malicious intent was not in clear error, based on a reading of the entire record)
The Fifth Circuit provides clear guidance on whether punches to the face are substantially certain to cause an injury. "[H]aymakers, like most garden-variety punches to the face, are objectively very likely to cause harm." Berry v. Vollbracht (In re Vollbracht), 276 Fed.Appx. 360, 362 (5th Cir.2007). In this suit, the Debtor's intentional punch to the Plaintiffs face was very much a haymaker. [Finding of Fact Nos. 24-26]. Indeed, it was a punch so hard that not only did the Plaintiff fall to the ground in an unconscious state, but the Debtor also fell to the ground and his own hand required bandaging. [Finding of Fact Nos. 26 & 27]. Accordingly, this Court concludes that the Debtor's punch objectively was substantially certain to cause injury to the Plaintiff.
In addition to an objective substantial certainty of harm, this Court also concludes that the Debtor had a subjective motive to cause harm. In analyzing the subjective motive to harm, Bankruptcy Judge Marvin Isgur has noted, "the Fifth Circuit equated having a subjective motive to harm to acting with the desire to cause injury." Guerra & Moore, Ltd. LLP v. Cantu (In re Cantu), 400 B.R. 104, 108 (Bankr.S.D.Tex.2008) (citing In re Miller, 156 F.3d at 604). However, debtors rarely admit to having a subjective motive to cause harm. In re Vollbracht, 276 Fed. Appx. at 361. Of course, most cases turn on whether a debtor's actions were "substantially certain to result in injury." Id. (quoting In re Miller, 156 F.3d at 606). 11 U.S.C. § 523(a)(6) should "trigger[ ] in the lawyer's mind the category `intentional torts,' which generally require that the actor intend the consequences of an act, not simply the act itself." Geiger, 523 U.S. at 58, 118 S.Ct. 974.
Hence, the evidence demonstrates that the Debtor and the Plaintiff held mutual hatred for one another. After the Debtor took up with the Plaintiffs wife and thereafter sent text messages to the Plaintiff taunting him about his inability to sexually satisfy his wife, the cuckolded Plaintiff contacted the FAA and reported to that governmental agency that the Debtor was illegally using drugs—an allegation that prompted the FAA to investigate the Debtor. [Finding of Fact Nos. 3, 4, 7 & 8]. Although the FAA did not decertify the Debtor's pilot license, [Finding of Fact No. 8], there is no doubt that the Plaintiff intended to deprive the Debtor of his license by communicating this information to the FAA. This would have deprived the
Thus, when these two individuals found themselves in the front yard of the Rapier home in the early morning of December 6, 2009, it is a vast understatement to say that there was no love lost between the two. They had an exceedingly contemptuous view of one another. And, when the Debtor closed his fist, swung back his arm, and punched the Plaintiff with such ferocity that he not only knocked out the Plaintiff, but also fell to the ground himself with a damaged hand, the Debtor intended to harm the Plaintiff. This Court can reach no other conclusion, given the high level of personal animosity between these two individuals, the force of the punch leveled by the Debtor, the location of the punch, the Plaintiffs losing consciousness, the severity of the damage to the Plaintiffs body, and the damage to the Debtor's own hand.
The Court is well aware that, at trial, the Debtor testified that he did not intend to harm the Plaintiff. [March 18, 2011 Tr. 104:5-7]. The Court finds that this testimony is not credible. If the Debtor had slapped the Plaintiff with an open hand on the Plaintiffs cheek, or had simply shoved the Plaintiff, this Court might have found the Debtor's statement credible. Given what actually happened, however, the Debtor's protestation is simply not believable.
Thus, under the two-prong test articulated by the Fifth Circuit in Miller, the Plaintiff has met his burden with respect to both tests. Under either test, the Debtor's conduct was willful and malicious under § 523(a)(6).
While this Court concludes the Debtor had a subjective motive to cause harm and that his actions had an objective substantial certainty of causing harm, this is not the end of the analysis. The Fifth Circuit has held that for a debtor's actions to be considered willful and malicious under § 523(a)(6), the plaintiff must satisfy the two-prong test
The United States Bankruptcy Court for the Northern District of Ohio reached a conclusion similar to this Court's in a case that likewise involved the intersection of assault and alcohol consumption. Kleman v. Taylor (In re Taylor), 322 B.R. 306 (Bankr.N.D.Ohio 2004). As in this suit, both parties in Taylor attended a social gathering where a large amount of alcohol was served; the plaintiff took part in the alcohol consumption, while the defendant refrained. Id. at 307. During an altercation between the parties, the plaintiff pushed the defendant, and the defendant responded by striking the plaintiff in the face, breaking his jaw. Id. at 307-08.
In concluding that the defendant's action was not necessary to prevent a further assault, the bankruptcy court noted that even when someone is struck first, they may not retaliate in a manner that exceeds the force necessary to defend oneself. Id. at 309. The fact that the defendant did not sustain an injury from the plaintiffs push was highly probative that the push was not severe. Id. at 310. In light of Ohio's general duty to retreat, the defendant
In this suit, the Plaintiff only shoved the Debtor. [Finding of Fact No. 23]. The Plaintiff never attempted to hit the Debtor, and brandished no weapon. [Finding of Fact No. 23]. Moreover, the Plaintiff was very inebriated, whereas the Debtor was sober. [Finding of Fact Nos. 17 & 21]. The Court concludes that the Debtor, just like the debtor in Taylor, used excessive force by punching the Plaintiff in the mouth as hard as he could. Accordingly, Taylor weighs against a conclusion that the Debtor has acted justifiably under the circumstances.
In re Trudeau is a bankruptcy case from the United States Bankruptcy Court for the District of Massachusetts. 35 B.R. 185 (Bankr.D.Mass.1983). The suit there dealt with a plaintiff's request for a debt arising from a state court judgment to be declared nondischargeable pursuant to 11 U.S.C. § 523(a)(6). Id. at 187. Like this suit, there was bad blood between the plaintiff and the defendant in Trudeau. Id. at 186. The plaintiff had a history of ridiculing the defendant for his alcoholism from November 30, 1979, to January 23, 1980. Id. On that latter date, the defendant claimed that the plaintiff made another derogatory comment, while the plaintiff alleged that the provocation was the defendant's refusal to turn off the lights (which apparently acted as a provocation for the fight). Id. Subsequently, a scuffle broke out between the two and the defendant landed two punches, knocking down the plaintiff and giving him two cuts near his eye. Id.
The bankruptcy court concluded that the evidence adduced at trial proved that the injury was willful and malicious. Id. at 187. In reaching this conclusion, the bankruptcy court noted the following: "Even assuming that the plaintiff ridiculed the defendant just preceding the battery, that does not constitute an automatic defense. Anger, seldom if ever justifies violence." Id. at 187-88.
The facts in Trudeau are similar to the facts here. In Trudeau, as in this suit, there was a history of bad blood. In Trudeau, as in this suit, words were exchanged before fisticuffs broke out. [Finding of Fact No. 23]. This Court agrees that bad blood and bad words do not justify grown men resorting to physical violence to solve their differences. Trudeau weighs against the conclusion that the Debtor in this suit acted justifiably under the circumstances.
In In re Rowland (which involved an appeal to the district court from a New Jersey bankruptcy court's ruling), the defendant and the plaintiff were involved in a fight when both were sixteen years old. In re Rowland, No. 88-1099, 1988 WL 73431, at *3, 1988 U.S. Dist. LEXIS 5487, at *1 (Dist.N.J.1988). The debtor indisputably admitted to punching the plaintiff and "causing him to, at least, fall to his knees, and ... there was blood emitting from the mouth of the plaintiff." Id. at *1, 1988 U.S. Dist. LEXIS 5487 at *3. The district court concluded that it had no basis for disturbing the bankruptcy court's finding that the defendant punched the plaintiff in the mouth. Id. at *3, 1988 U.S. Dist. LEXIS 5487 at *8. Nor did the district court disagree that "it is readily apparent that when someone swings a fist at someone damages are going to flow." Id. For those reasons, the district court affirmed the bankruptcy court's conclusion that the damages flowing from the debtor's
While Rowland provides few details about the fight in question, this Court focuses on the district court's statement that "it is readily apparent that when someone swings a fist at someone damages are going to flow." Id. Of course, in Rowland, as in the suit at bar, the debtor punched the plaintiff in the mouth, causing blood to flow. Id. at *1, 1988 U.S. Dist. LEXIS 5487 at *3. [Finding of Fact Nos. 24 & 25, 34]. Moreover, as in this suit, the debtor in Rowland admitted to punching the plaintiff. [Finding of Fact No. 24]. Accordingly, Rowland's conclusion that "when someone swings a fist at someone damages are going to flow" weighs against a conclusion that the Debtor acted justifiably under the circumstances.
Another punch-related § 523(a)(6) action is from the United States Bankruptcy Court for the Western District of New York. Fisher v. Wright (In re Wright), No. 08-1075, 2008 WL 2858715, 2008 Bankr.LEXIS 4558 (Bankr.W.D.N.Y. July 21, 2008). The facts in Wright can be summed up in the defendant/debtor's own words:
Id. at *1, 2008 Bankr.LEXIS 4558 at *1-2.
The bankruptcy judge concluded that the defendant's punch was intentional. Id. at *3, 2008 Bankr.LEXIS 4558 at *7. That there was an alleged excuse (i.e., reprisal) for the defendant's actions was insufficient to prevent a finding of nondischargeability. Id. at *3, 2008 Bankr.LEXIS 4558 at *7-8. "When talking about the intentional infliction of serious physical injury, however, reprisal is never a cause or excuse that is a `just' cause or excuse." Id. at *3, 2008 Bankr.LEXIS 4558 at *7 (citing Printy v. Dean Witter Reynolds, Inc., 110 F.3d 853, 859 (1st Cir.1997)).
Again, the facts in Wright are similar to the facts here. In Wright, the bankruptcy court concluded that the debt was nondischargeable, even when there was an alleged excuse for the defendant's actions. The defendant in Wright knew that he had been hit, and therefore decided to punch the plaintiff, even though the defendant was no longer in danger. It was an act of pure reprisal. Here, the Plaintiff pushed the Debtor and the Debtor decided to respond by punching the Plaintiff, even though: (a) the Plaintiff was very inebriated, staggering, and slurring his words (a condition hardly conducive to the Plaintiff being able to inflict serious physical injury or to instill fear of imminent danger); and (b) neither the Debtor nor his friends were drunk. This means that they were capable of quickly walking away from the Plaintiff, for in his drunken state of stupor, he would not have been able to catch up with them. [Finding of Fact Nos. 17, 19 & 21]. Accordingly, Wright weighs against a conclusion that the Debtor acted justifiably under the circumstances.
An example of when a defendant's act was "sufficiently justified"—and thereby
This sad story began while the defendant was at work, when he began receiving harassing telephone calls from an unknown number. Id. at 734. The person on the phone called the defendant names, threatened him, and challenged him to a fight. Id. The caller, a boy, gave the defendant the address to a party and the defendant arrived at the party with five or six of his friends. Id. Unfortunately, however, forty to fifty high school students gathered outside the house where the party was held, including the boy who had been making the telephone calls (and who would later die). Id. The crowd formed a circle around the two and began yelling for a fight, egging the two on. Id. The defendant testified that he was afraid he would be harmed if he tried to escape the confrontation. Id. Then, the boy pushed the defendant, and the defendant responded by punching the boy in the face.
The bankruptcy court concluded that the defendant's conduct, while willful, was not malicious. Id. at 739. Indeed, the Court found that "judging the [defendant's] beliefs and conduct in comparison to what a reasonable 16-year old would believe," the defendant reasonably believed that "his life was in danger or that he was likely to suffer great bodily harm." Id. The bankruptcy court concluded that striking the boy with one punch was sufficient force necessary to save his life and protect himself from severe injury. Id.
The facts present in Mathews showing sufficient justification are not present in this suit. In Mathews, the punch was thrown by a scared teenager, whereas in this suit, the punch was thrown by a grown man whose very profession requires him to keep his cool. Moreover, in Mathews, approximately fifty students surrounded the defendant, egging him on to fight. The defendant therefore legitimately feared imminent harm if he refused to fight. Here, however, the Debtor was surrounded by no one and he could have easily walked away from the drunken Plaintiff. [Finding of Fact No. 13]. The Plaintiff, in his drunken stupor, would have had great difficulty pursuing the Debtor and his three companions had they quickly walked toward the Debtor's truck. This truck was at least one block away from the Rapier residence and possibly more than one block if Ms Wise, Ms. Rocher, and the Debtor are to be believed. [March 18, 2011 Tr. 124:5-7]; [April 5, 2011 Tr. 12:12-16, 42:7]. Under these circumstances, the Court concludes that the Debtor, unlike the defendant in Mathews, could not reasonably have feared imminent harm.
Finally, In re Owens provides an example in which a defendant's unreasonable response to a situation resulted in a finding of nondischargeability under § 523(a)(6). Reed v. Owens (In re Owens), 449 B.R. 239 (Bankr.E.D.Va.2011). Late at night, a fight had broken out among numerous people in a parking lot. The plaintiff was engaged in the fight, and as the fight was winding down, the defendant barreled toward the plaintiff and tackled him into a fence. Id. at 249. The two scuffled, and eventually, the plaintiff was lying on the ground while the defendant was standing up. Id. At this point, the defendant could have retreated with the situation neutralized. Id. Instead, the defendant kicked the plaintiff at least twice while the plaintiff attempted to get up. Id.
The bankruptcy court concluded that the defendant's actions were willful and malicious. It explained its reasoning as follows:
Id. at 257, 258. As such, the bankruptcy court in Owens concluded that the defendant's actions were both willful and malicious. Id. at 258.
Like the aggressor in Owens, the Debtor here was the
In sum, all six cases above weigh against the Debtor. For all of the reasons set forth above, this Court concludes that the Debtor's actions were not sufficiently justifiable
Under Texas law, prejudgment interest may be awarded if either an "enabling statute" or the "general principles of equity" allow such an award. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 528 (Tex.1998) (citing Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549, 552 (Tex.1985)). Texas Finance Code § 304.102 specifies that damages relating to personal injury earn prejudgment interest. TEX. FIN.CODE ANN. § 304.102 (Vernon 2010). Here, the Debtor assaulted the Plaintiff, which clearly fits within the category of "personal injury." Accordingly, the Court concludes that it is mandatory that the Plaintiff receive prejudgment interest. Prejudgment interest may not be assessed or recovered, however, on an award of punitive damages. TEX. CIV. PRAC. & REM.CODE ANN. § 41.007 (Vernon 2010).
Under Texas law, "[t]he prejudgment interest rate is equal to the post judgment interest rate applicable at the time of the judgment." TEX. FIN.CODE § 304.103; Int'l Turbine Servs., Inc. v. VASP Brazilian Airlines, 278 F.3d 494, 500 (5th Cir.2002) (holding that under Texas law, the rate of prejudgment interest "accrue[s] at the same rate as post judgment interest."); see also Bob Anderson v. Mega Lift Sys., L.L.C. (In re Mega Sys., L.L.C.), No. 04-6085, 2007 WL 1643182, at *10-11 (Bankr. E.D.Tex.2007). The post judgment rate is statutorily set at the "prime rate as published by the Board of Governors of the Federal Reserve System on the date of computation" unless this rate is less than five percent or more than fifteen percent. TEX. FIN.CODE § 304.003(c). Specifically, Section 304.003(c)(2) provides that the judgment rate shall be set at 5% if the current rate is less than 5%. The current prime rate is 3.25%.
Because this Court has concluded that the Texas Finance Code requires that prejudgment
Federal law authorizes this Court to award post judgment interest on any money judgment. 28 U.S.C. § 1961(a) specifically provides that interest is allowed on "any money judgment in a civil case recovered in a district court" at the rate of the "weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding the date of the judgment." This provision has been interpreted to mean that "once a judgment is obtained, interest thereon is mandatory without regard to the elements of which that judgment is composed." Laffey v. Nw. Airlines, Inc., 740 F.2d 1071, 1103 (D.C.Cir. 1984); La. & Ark. Ry. v. Pratt, 142 F.2d 847, 849 (5th Cir.1944). Federal courts have routinely held that a bankruptcy proceeding is a "civil case" under 28 U.S.C. § 1961(a) and, thus, judgments in bankruptcy proceedings are subject to post judgment interest as provided by this section. In re Pester Refining Co., 964 F.2d 842, 849 (8th Cir.1992) ("Because a bankruptcy court is part of the district court, the statute applies to bankruptcy proceedings."); Ocasek v. Manville Corp. Asbestos Disease Compensation Fund, 956 F.2d 152, 154 (7th Cir.1992); In re A.S.M., Inc., 110 B.R. 802, 806 (Bankr.W.D.Tex.1990). Accordingly, the Court concludes that the Plaintiff is entitled to recover post judgment interest on all of his damages in this suit calculated according to the Treasury yield under 28 U.S.C. § 1961(a). This interest will begin accruing on the amount of the Plaintiffs damages from the date the judgment is entered until the date the judgment is satisfied in full. The Court makes this conclusion despite the fact that the Plaintiff, in neither his complaint nor in his Proposed Findings of Fact and Conclusions of Law, nor in the Pre-Trial Statement, expressly requested post judgment interest. Unlike prejudgment interest, which accrues only on the Plaintiffs actual damages, the post judgment interest will accrue on both actual damages and punitive damages.
"[T]o be entitled to recover attorneys' fees in an adversary action, a party must request attorneys' fees in its pleadings or otherwise place its counterparty on notice that attorneys' fees are being sought." Suarez v. Smith (In re IFS Fin. Corp.), No. 02-39553-H1-7, 2010 WL 1992579, at *5 (S.D.Tex. May 18, 2010). Here, the Plaintiff failed to do either. Accordingly, the Court concludes that the Plaintiff is not entitled to recover the attorneys' fees that he has incurred for the prosecution of this adversary proceeding.
"The price one pays for participation in a civilized society is the abandonment of the reaction of the jungle." In re Trudeau, 35 B.R. at 188. Here, the Debtor's savage blow on the extremely inebriated Plaintiff takes a page out of Sir William Golding's Lord of the Flies—for that one night, "[t]he world, that understandable and lawful world, was slipping away." William Golding, Lord of the Flies 91 (First Perigree premium ed., 2006) (1954).
The Debtor could have quickly walked away from the Plaintiff, particularly because the Debtor and the Plaintiff were outside and not surrounded by anyone or anything that could have prevented the Debtor from distancing himself from the Plaintiff. Indeed, by the Debtor's own account, as well as the testimony of Ms. Rocher, Ms. Wise, and Logsdon, the Plaintiff was highly intoxicated and slurring his speech—a physical condition that would have prevented him from being able to catch up with the Debtor if the latter had simply turned and quickly walked in the opposite direction of the Plaintiff. "[N]o matter how provocative an essentially verbal confrontation may be in psychological fact and even if it is compounded by some physical contact not amounting to a significant battery, society cannot permit the passions to be unbridled." Wilson v. State, 195 Md.App. 647, 7 A.3d 197, 223 (2010). These are the circumstances surrounding this dispute. Accordingly, the Court concludes that the Debtor's punch to the Plaintiffs mouth constitutes a willful and malicious injury by the Debtor to the Plaintiff. Accordingly, the Court concludes that the medical costs of $7,477.10 incurred by the Plaintiff in treating the damage resulting from the punch, plus the punitive damages of $33,333.33, plus prejudgment and post judgment interest, constitute a debt owed by the Debtor to the Plaintiff that is not dischargeable.
In closing, this Court notes that the Debtor has filed for Chapter 7 to obtain a discharge of debts that reflect a lifestyle based upon high risk. The Debtor's schedules reflect that he has made woeful investments in real estate ventures in Florida and, as a result, owed several million dollars as of the date of the filing of his bankruptcy petition. [Main Case, Doc. No. 1, Schedules A & D]. The Debtor's schedules also reflect that he has gambling debts in excess of $60,000.00. [Main Case, Doc. No. 1, Schedule F, p. 28]. In punching the Plaintiff as hard as he could, the Debtor took yet another risk: namely, that he could maul the Plaintiff and walk away from the consequences. The trial of this adversary proceeding shows that the Debtor has been woefully incorrect in this assessment. The Debtor now owes the Plaintiff the amount of $40,810.43, plus interest, and this amount is nondischargeable—which means the Debtor is going to have a very difficult time walking away from the Plaintiff. The Debtor might want to reassess his risky lifestyle in the future, and perhaps abide by the old English adage that "the best throw of the dice is to throw them away."
A judgment consistent with this Memorandum Opinion will be entered on the docket simultaneously with the entry on the docket of this Opinion.
It is worth noting that approximately thirty minutes later, when Houston Police Officer Trung Le arrived at the Rapier house, he found the Plaintiff to be very intoxicated. [April 20, 2011 Tr. 14:14-17]. According to Officer Le, the Plaintiff was slurring his speech, smelled heavily of alcohol, and was stumbling while walking, so much to the point that Officer Le had to assist him in walking. [April 20, 2011 Tr. 19:20-20:7, 43:11-22, 49:1-9]. Officer Le observed the Plaintiff
Q: Do you have an explanation, Miss Rocher, how [the Debtor] was able to get a man much taller than he is standing that close to him without [the Plaintiff] putting up any defensive moves at all, trying to block the blow, or duck the blow, or turn away from—
A: He [the Plaintiff] was extremely intoxicated, sir. He could barely stand. He was staggering.
[April 5, 2011 Tr. 46:9-15].
The Court notes that counsel for both parties had in fact exchanged proposed findings of fact and conclusions of law prior to trial, and they had also given the Court a signed copy of this pleading. Counsel had also given the Court a signed Joint Pre-Trial Statement. However, after trial, the Court discovered that none of these pleadings had been entered on the docket. Accordingly, the Court held a hearing on May 17, 2011, and a record was made to confirm that the parties had attempted to file the pleadings prior to trial but without success. These same pleadings have since been filed and are shown the adversary docket sheet as document number 79.
Indeed, his lack of credibility on this point was apparent when, in response to the Plaintiff's counsel posing certain straightforward questions about the Debtor punching the Plaintiff, the Debtor attempted to avoid answering these questions. For example, the Plaintiff's counsel asked him the following question: "You turned and struck Scott Wise in the face with your fist, didn't you." The Debtor's response was to turn to the undersigned judge and say: "I'm not sure of the question, Your Honor." [March 18, 2011 Tr. 38:19-22]. Such a tactic is disingenuous. English is the Debtor's first language, and there was nothing ambiguous or confusing about the question. Indeed, in the Joint Pre-Trial Statement filed and signed by counsel for both parties, in the section entitled "Admissions of Fact," it is expressly set forth that "Defendant [i.e., the Debtor] admits that he struck Plaintiff and that Plaintiff was injured." [Adv. Doc. No. 79, p. 2, ¶ V]. The Court finds that the Debtor knew full well the meaning of the question posed to him, and his feigned confusion undermines his credibility.
