Chainy v. SmithChainy v. Smith
- Reporters:
- ,
- Before:
- Joshua P. Searcy
This is a tragic case in which Plaintiffs are the bereaved family of Mr. Dil Chainy, an innocent man killed in a horrible drunk driving hit and run accident. Defendant is the elderly mother of the drunk driver, her son who is now serving a long prison sentence. Plaintiffs, Paru Chainy, Individually and as Representative of the Estate of Dil Chainy, Deceased, and Sharu Bhau, Individually (the “Plaintiffs”) allege Defendant, Deborah Ann Smith (the “Debtor” or “Defendant”) should be responsible under
I. Jurisdiction
The Court has jurisdiction of this matter pursuant to
II. Facts and Procedure
Defendant, Mrs. Smith, lives in Marshall, Texas and is the mother of Matthew Bradley Smith. Mr. Smith lived, during the relevant time, in Dallas, Texas.1 He has not lived with his mother since high school, and is
After leaving home, Mr. Smith had several brushes with law enforcement, several of which resulted in convictions for driving while intoxicated.3 First on December 7, 2000, Mr. Smith was convicted of driving while intoxicated in Dallas County, Texas in case #MB0051694.4 Then, on July 12, 2005, Mr. Smith was convicted a second time of driving while intoxicated in Dallas County, Texas in case #MB0547961.5 Later, on August 16, 2007, Mr. Smith was convicted a third time of driving while intoxicated in Dallаs County, Texas in case #FO520714W.6 Two years later on December 1, 2009, Mr. Smith was convicted of “Driving While Under the Influence of Intoxicating Liquor” in Sweetwater County, Wyoming, in case #CR-2009-0480-001.7 Last, on August 27, 2010, Mr. Smith was convicted of “Driving While Under the Influence of Intoxicating Liquor” in Sweetwater County, Wyoming, in case #CR-10-95-R.8
Defendant signed a declaration in support of the Motion.15 In it, Defendant states that she co-signed the Note while at work when “a courier
Four months after purchase of the Truck, Mr. Smith was arrested February 29, 2020 for a fourth in Texas, and sixth overall, charge of driving
On August 22, 2022, Defendant filed a voluntary petition for Chapter 7 bankruptcy, together with original schedules and statements.29 On Schedule A/B, Defendant listed the Truck as a vehicle she owned and added the following comment:
“Debtor’s son’s truck. Was involved in an accident and is currently impounded. Debtor’s son made payments. Debtor’s only connection to vehicle is that she co-signed the note and is on the title.”30
Schedule E/F listed the vehicle Note as a nonpriority, unsecured debt.31 Defendant also listed Plaintiffs’ damаges claims against her as nonpriority, unsecured debts on Schedule E/F.32
On November 21, 2022, Plaintiffs filed this adversary proceeding seeking to except their claims from discharge under
III. Summary Judgment Standard
A court may grant summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting
The moving party always bears the initial responsibility of informing the court of the basis for its motion and producing evidence which it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. How the necessary summary judgment showing can be made depends upon which party will bear the burden of proof at trial. See Little v. Liquid Air Corp., 37 F.3d 1069, 1077 n.16 (5th Cir. 1994). “A fact is material
Courts may accept the moving party’s version of the facts as undisputed. Alvarez v. United Parcel Serv. Co., 398 F. Supp. 2d 543, 548-49 (N.D. Tex. 2005) (overruled on other grounds); cf. F.D.I.C. v. Foxwood Mgmt. Co., No. 92-2434, 1994 WL 24911, at *6 (5th Cir. Jan. 14, 1994) (citing cases for the proposition that courts can accept the contents of a conclusory affidavit as true if they are unchallenged). This comports with the notion that courts need not hunt through the record searching for a genuine issue of material fact. See Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998); Savers Fed. Savs. & Loan Ass’n v. Reetz, 888 F.2d 1497, 1501 (5th Cir. 1989). Once the movant has met its burden, the nonmovant may not rest
IV. Discussion
Defendant, Mrs. Smith, asks for summary judgment and argues no genuine dispute exists as to any material fact that she did not have either the objective or subjective intent to cause the death of Mr. Chainy by co-signing the Note. Plaintiffs disagree and ask for denial of summary judgment arguing Defendant possessed objective intent to cause the death of Mr. Chainy when she co-signed the Note.37 To succeed in raising a genuine issue, Plaintiffs need to produce some evidence either that Defendant actually intended to cause Mr. Chainy’s death, or that co-signing the Note created a substantial certainty of harm to Mr. Chainy.
When a plaintiff seeks to except a debt from a discharge granted to a debtor, the plaintiff must prove its claims by a preponderance of evidence. Grogan v. Garner, 498 U.S. 279, 286 (1991). All exceptions to discharge
The
Plaintiffs do not appear to argue Defendant had subjective intent to harm Mr. Chainy when co-signing the Note, and there is no evidence
Other courts have also carefully weighed evidence when determining the existence of objective intent, and some of their decisions are instructive. For example, in Braziel, debts arising from a debtor’s act of illegally selling a firearm to an individual who used it three years later to perpetrate a mass shooting did not constitute a willful and malicious injury. Leyva v. Braziel (In re Braziel), 653 B.R. 537, 558 (Bankr. N.D. Tex. 2023). The debtor in Braziel was an unlicensed dealer engaged in the business of selling firearms when he sold a firearm to a buyer. Id. at 543. The debtor did not perform a background check as required. Id. Had he done so, he would have discovered
The Fifth Circuit in Red, despite no finding of subjective intent, found a substantial certainty of harm under
In Delaney, a debtor’s accidental discharge of a firearm that caused unintended bodily injuries to another did not constitute a willful and malicious injury under
Finally, in D’Amico, two casinos alleged debts incurred by a debtor who gambled on credit were nondischargeable under
So then, is there a genuine issue of material fact in the admissible summary judgment evidence that when Mrs. Smith co-signed the Note, the resulting probability of Mr. Chainy’s death was so great as to make his death substantially certain to occur? Mrs. Smith’s son had a history of convictions for driving while intoxicated. However, Mr. Smith’s last conviction for driving while intoxicated happened nine years prior to her co-signing the
The Court finds the summary judgment evidence submitted by Plaintiffs, even in the most favorable light, does not raise a genuine issue that Mrs. Smith knew of her son’s driving history when she co-signed the Note. Nor does it raise a genuine issue that the probability of Mr. Chainy’s death was sо great as to make it substantially certain to occur because of Mrs. Smith’s signature. Mrs. Smith could not foresee or anticipate with a substantial degree of certainty that co-signing the Note would mean her son would cause Mr. Chainy’s death. This evidence in this case has much more in common with Braziel, Delaney, and D’Amico than with Red. Thus, the Court finds that the tragic and sad injuries Plaintiffs have suffered were not willful
V. Evidence
In granting Defendant’s Motion, the Court must consider Plaintiffs’ evidentiary objections. A summary judgment must be supported by evidence as required by
A. Defendant’s Declaration
Plaintiffs first object to Defendant’s declaration filed in support of the Motion.43 “An affidavit that sets forth facts that would be admissible as evidence and that is made by a witness with firsthand knowledge of, and who is competent to testify regarding, the matters asserted may be used to support or oppose a motion for summary judgment.” Lester v. Wells Fargo Bank, N.A., 805 Fed. Appx. 288, 290 (5th Cir. 2020); see also
Plaintiffs “object generally to the declaration as conclusory, derived from hearsay, lacking personal knowledge, lacking relevance, lacking authenticity as to attached documents; and not conforming to required precedent.”44 Plaintiffs specifically contend Defendant’s declaration should be ignored because “conclusory and self-serving declarations bring the credibility of the witness into question, a matter that must be decided by trial and not by
Plaintiffs rely on In re Reagor-Dykes Motors for the correct proposition that a self-serving affidavit may raise an issue of credibility. In re Reagor-Dykes Motors, LP, No. 18-50214-RLJ-11, 2022 WL 468065, at *4 (Bankr. N.D. Tex. Feb. 15, 2022). Fifth Circuit precedent clearly states that credibility is not a matter for summary judgment. The Fifth Circuit says:
First, “self-serving” affidavits and depositions may create fact issues even if not supported by the rest of the record. Where self-interested affidavits are otherwise competent evidence, they may not be discounted just because they happen to be self-interested. Indeed, “[e]vidence proffered by one side to ... defeat a motion for summary judgment will inevitably appear ‘self-serving.’” Dall./Fort Worth Int‘l Airport Bd. v. INet Airport Sys., Inc., 819 F.3d 245, 253 n.14 (5th Cir. 2016). But self-serving evidence may not be discounted on that basis alone. How much weight to credit self-interested evidence is a question of credibility, which judges may not evaluate at the summary judgment stage. E.g., Int‘l Shortstop, Inc., 939 F.2d at 1263.
Rather, self-serving evidence must only comport with the standard requirements of Federal Rule of Civil Procedure 56. Self-serving аffidavits and declarations, like all summary judgment evidence, must “be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”
Fed. R. Civ. P. 56(c)(4) . And these facts must be particularized, not vague or conclusory. Kariuki v. Tarango, 709 F.3d 495, 505 (5th Cir. 2013).
Guzman v. Allstate Assurance Co., 18 F.4th 157, 160–61 (5th Cir. 2021).
Defendant’s declaration meets the requirements of
B. The Fifth Amendment
Plaintiff implicitly asks the Court to draw an adverse inference against Defendant because of Mr. Smith’s exercise of his Fifth Amendment privilege during a deposition taken by Plaintiffs. Recently, the Court considered the Fifth Amendment in a different context. See SMGB, LLC v. Cross (In re Cross), 653 B.R. 362, 375 (Bankr. E.D. Tex. 2023). There the Court explained the Fifth Amendment’s role in a civil case as follows:
It is well settled that an adverse inference may be drawn in a сivil case when a party asserts his Fifth Amendment privilege. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 47 L. Ed. 2d 810 (1976) (“[T]he Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probative evidence offered against them“); In re Enron Corp. Sec., Derivative & Erisa Litig., 762 F. Supp. 2d 942, 1017 (S.D. Tex. 2010); United States ex rel. Gonzalez v. Fresenius Med. Care N.A., 571 F. Supp. 2d 758, 764 (W.D. Tex. 2008) (“[I]t is not unconstitutional to force civil defendants to choose between the negative inference drawn from their silence in a civil case and their Fifth Amendment privilege. “) (quoting [**13] United States ex rel. Shank v. Lewis Enters., Inc., No. 04-CV-4105-JPG, 2006 U.S. Dist. LEXIS 22065, 2006 WL 1064072, at *4 (S.D. Ill. Apr. 21, 2006)).
The Fifth Circuit has “limited the value of the negative inference by recognizing that a party seeking summary judgment cannot rely solely on the other party‘s exercise of his fifth amendment rights.” State Farm Life Ins. Co. v. Gutterman, 896 F.2d 116, 119 n. 3 (5th Cir. 1990), citing United States v. White, 589 F.2d 1283, 1287 (5th Cir. 1979) (“[A] grant of summary judgment merely because of the invocation of the fifth amendment would unduly penalize the employment of the privilege.“). The Court finds Defendant may not withdraw his privilege, it remains intact, and the Court will draw an adverse inference against Defendant where and when appropriate. Any adverse inference drawn, however, may not be the sole evidentiary basis for granting Plaintiff‘s Motion.
Id. It is most common for an adverse inference be drawn against a party because of that party’s exercise of the Fifth Amendment privilege. Baxter v. Palmigiano, 425 U.S. at 308. Here, the Court is presented not with this common scenario, but instead Plaintiffs impliedly ask for an adverse inference to be drawn against a party because of a non-party’s exercise of the Fifth Amendment privilege.
The Fifth Circuit has in the past permitted such an adverse inference to be drawn in a civil proceeding. Specifically, the Fifth Circuit has said:
F & D argues that inferences from the invocation of the Fifth Amendment are not allowed when a non-party asserts the privilege. We find no support for such a proposition. The Fifth Amendment “does not forbid adverse inferences against parties to civil actions when they refuse to testify in response to probativе evidence offered against them.” Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S. Ct. 1551, 1558, 47 L. Ed. 2d 810 (1976). We acknowledge that no party has refused to testify in this civil action, but “[a] non-party‘s silence in a civil proceeding implicates Fifth Amendment concerns to an even lesser degree.” RAD Servs.,Inc. v. Aetna Casualty & Sur. Co., 808 F.2d 271, 275 (3d Cir.1986) (citing Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 521 (8th Cir.), cert. denied, 469 U.S. 1072, 105 S. Ct. 565, 83 L. Ed. 2d 506 (1984)).
FDIC v. Fid. & Deposit Co., 45 F.3d 969, 977 (5th Cir. 1995). To understand when and whether an adverse inference should be drawn against a party because of a non-party’s exercise of the Fifth Amendment privilege, the Court finds RAD Servs., Inc. cited by the Fifth Circuit instructive. Rad Servs., Inc. v. Aetna Cas. & Sur. Co., 808 F.2d 271, 274 (3d Cir. 1986). Because the “privilege against compelled self-incrimination operates differently in civil and criminal proceedings” the Third Circuit wrote:
The aims supporting the privilege simply apply less forcеfully in civil than in criminal cases. A non-party‘s silence in a civil proceeding implicates Fifth Amendment concerns to an even lesser degree. See Rosebud Sioux Tribe v. A & P Steel, Inc., 733 F.2d 509, 521 (8th Cir.), cert. denied, 469 U.S. 1072, 83 L. Ed. 2d 506, 105 S. Ct. 565 (1984). At least, then, to the extent that the policies underlying the privilege permit the trier of fact to know when a party has invoked it, we find that they likewise allow evidence of a non-party‘s refusal to testify under the facts here present.
Id. at 275. In RAD Servs., Inc., two employees of the plaintiff asserted their Fifth Amendment privilege in a deposition taken by the defendant, an insurer, in a dispute concerning insurance coverage for liability caused by the plaintiff’s improper disposal of hazardous waste. Id. at 271. The Third Circuit, finding it appropriate under these circumstances to permit a jury to
Considering these same policies under the facts of this case, the Court finds under the reasoning of RAD Servs., Inc. and FDIC, that it may but is not required to draw an adverse inference against Defendant.49 Mr. Smith asserted the Fifth Amendment privilege, but he has already been convicted and sentenced for the crimes to which this civil proceeding relates. There seems little risk then that drawing an adverse inference would result in inhumane treatment and abuses by the government, disturb the appropriate state-individual balance of advantages, subject him or Mrs. Smith to self-accusation, perjury, or contempt, or disturb their private enclave. And yet, the Court declines to draw an adverse inference against Defendant for the simple reason that Mr. Smith’s testimony does not support drawing such an inference. Mr. Smith answered the most relevant question in the
Q. Okay. So with respect to any question about your mother‘s knowledge in the past, about your history for DWI, for losing your license, things like that, how much your mother knew or didn‘t know, you‘re concerned that any testimony about those subjects might expose you to criminal liability; is that true?
A. Yes, sir.
Q. Okay. So if we were to be talking in front of the fact finder in the bankruptcy court about whether your mother and you colluded or intentionally sought to defeat rules regarding оwnership of the vehicle or operation of the vehicle or your ability to operate the vehicle, you‘re concerned that any answer you give about those subjects might expose you to criminal liability; is that true?
A. So in keeping with my Fifth Amendment plea, then I would say I -- I believe -- I -- I‘m starting to feel a little bit, Counsel, like I‘m being led or directed. There -- there was no -- there was no collusion, and Mom is an angel. Mom knows nothing about anything. I‘m a private individual.50
Plaintiffs would have the Court draw an adverse inference from these and similar questions that Defendant knew about Mr. Smith’s history of alcohol related driving infractions, and that she somehow colluded with him to elude unspecified rules to which he was subject. The Court cannot do this where Mr. Smith affirmatively answered that Defendant “knows nothing about anything” in a video deposition taken while he was incarcerated.51
VI. Conclusion
In granting Defendant’s Motion, the Court in no way means to ignore or minimize the heartbreak and suffering Plaintiffs have endured because of Defendant’s son. The Court is nevertheless bound to make decisions based on precedent and evidence in applying
Based upon the Court’s consideration of the pleadings, the summary judgment evidence submitted therewith, the relevant legal authorities, and for the reasons set forth herein, the Defendant’s Motion is hereby GRANTED. Plaintiffs failed to demonstrate there exist genuine issues of material fact that Defendant had either the objective or subjective intent to cause willful and malicious injury through the wrongful death of Mr. Chainy by co-signing a car loan for her son. An аppropriate order consistent with this opinion shall be entered by the Court.
THE HONORABLE JOSHUA P. SEARCY
UNITED STATES BANKRUPTCY JUDGE
Notes
Wheeler v. Jones (In re Jones), 655 B.R. 884, 895 (Bankr. S.D. Tex. 2023).For example, debts related to a debtor‘s act of intentionally driving a car into a crowded bar and killing a creditor‘s relatives were found to be based on willful and malicious injuries. See Mahadevan, 617 F. Supp. 3d at 660 (citing Red v. Baum (In re Red), 96 F. App‘x 229, 230 (5th Cir. 2004)). But debts related to a debtor‘s act of illegally selling a rifle to an individual, who years later shot people, were not based on a willful and malicious injury. See Leyva et al. v. Braziel (In re Braziel), 653 B.R. 537, 558 (Bankr. N.D. Tex. 2023). The debtor intended to sell the rifle to the third party. Id. at 557. And while the sale itself was an intentional illegal act, it was not an act intended to harm the victims under either an objective or subjective standard. Id.
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. A party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence.
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made оn personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.