Dorris v. Chacon (In Re Chacon)Dorris v. Chacon (In Re Chacon)
MEMORANDUM OPINION RELATING TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Plaintiffs Motion for Summary Judgment (“Motion”) and Memorandum in Support (docs 26, 27) on Plaintiffs First Amended Complaint (doc 23) and Defendant’s Partial Objection thereto with Memorandum in Support (docs 31, 32) and Plaintiffs Reply Memorandum (doc 38). Plaintiff appears through her attorney F. Shaun Burns. Defendant appears through his attorney Wesley O. Pool. This is a core proceeding to determine the dischargeability of a debt. 28 U.S.C. § 157(b)(2)(I). The Court will grant the Motion in part.
HISTORY
A brief history derived from the undisputed facts will provide context for the following discussion. Plaintiff is a 61-year-old female; she was 60 in June 2008 when Defendant sexually assaulted her. Fact 2. Plaintiff has been mentally disabled since birth and has the intelligence level of an 8-year old. Fact 3. This disability makes her extremely vulnerable to force and coercion.
Id.
In addition, Plaintiff has been physically handicapped since birth and is unable to bathe herself. Fact 4. Therefore she needs physical support and assistance in bathing and personal hygiene.
Id.
In June 2008, when the sexual assaults occurred, Defendant was employed by Interim Healthcare, Inc. (“Interim”) to provide healthcare services to Plaintiff. Fact 6. On August 29, 2008, the Curry County Deputy District Attorney filed a two count criminal information against Defendant charging two different instances of criminal sexual penetration in the third degree contrary to Section 30-9-11(F)
1
, NMSA 1978. Fact 7; Doc 37-1. These actions cоnstitute third degree felonies.
Id.
On January 6, 2009, the State of New Mexico and Defendant entered into a
This is an egregious act. It is a violation of a person’s bodily sanctity. It is a betrayal. We have a person who has special needs who has been placed in the responsibility of someone who is giving her care and he has betrayed that trust. That makes it particularly] egregious.
Id., p. 11; Fact 18.
Defendant filed for Chapter 13 relief on February 9, 2009. On March 10, 2009, Plaintiff, who had not yet received notice of the bankruptcy, filed an eight count complaint in the Ninth Judicial District Court, Curry County, New Mexico as case D-0905-CV-02009-00152 (the “State Case.”) The State Case names Defendant, Interim, and John Does and Jane Does 1-50 (doc 37-5).
THE ADVERSARY PROCEEDING
Plaintiffs First Amended Complaint filed in this adversary proceeding (hereafter “Complаint”) contains four counts seeking to declare nondischargeable under 11 U.S.C. § 1328(a)(4) 3 claims for 1) Battery, 2) Assault, 3) Intentional Infliction of Emotional Distress, and 4) [Willful and Malicious] Personal Injury. It also seeks relief from the automatic stay to allow Plaintiff to prove and liquidate her claims in state court. Alternatively, it asks the Bankruptcy Court 4 to determine her damages, including punitive and exemplary damages, costs of suit, and attorney fees 5 .
Defendant denied substantially every allegation in his Answer. He admitted only: Plaintiffs name, address and age, and the address of her Guardian; his name and address, his former employment with Interim, and the filing of a criminal case against him. He also admitted filing his Chapter 13 case. In his answer he also sought attorney fees, claiming that Plaintiffs case was not substantially justified 6 .
Plaintiffs Memorandum in Support contains a Statement of Undisputed Facts, as required by NM LBR 7056-1 (1996) 7 . Defendant’s Partial Objection does not specifically contest any proposed fact. Therefore, all material facts set forth in Plaintiffs statement are “deemed admitted.” NM LBR 7056-1 (1996).
Rather, Defendant’s partial objections go to the legal theories behind Plaintiffs complaint. On March 25, 2010 the Court entered an Order resulting from pretrial conference (“Order”) that established deadlines for filing Motions for Summary Judgment (doc 25). It also ruled: “If the Bankruptcy Court finds that any of Plaintiffs claims against Defendant are nondis-chargeable, the detеrmination and liquidation of damages shall be referred to the District Court for the Ninth Judicial District, Curry County, New Mexico.”
Plaintiffs Motion, (doc 26, p. 2) refers to the Order:
Pursuant to that Order, Plaintiff requests that this Court find that all of Plaintiffs claims against CHACON are nondischargeable, and that the District Court for the Ninth Judicial District shall have full authority to liquidate, adjudicate, enforce and otherwise deal with Plaintiffs claims against CHACON asserted in that court.
(Emphasis added.)
Defendant claims that Plaintiffs Motion is overbroad in that it seeks to hold all of Plaintiffs claims against Defendant non-dischargeable (doc 31, ¶ 1). Specifically, he argues that the State Case complaint refers four times to an alleged fiduciary relationship between Plaintiff and Defendant and that it also refers four times to Defendants allegedly “grossly nеgligent” conduct. See Doc 31, ¶ 4. Defendant does not dispute that any claims proven against him based on theories of battery, assault, intentional infliction of emotional distress or willful or malicious personal injury would be nondischargeable 8 . Id., ¶ 3. But he argues that any claims based on a breach of fiduciary duty or negligence cannot be held nondischargeable under 11 U.S.C. § 1328(a)(4). As an initial note, the Court finds that Plaintiff has four and only four counts against Defendant in the State Case; she did not raise breach of fiduciary duty or negligence as separate counts.
1. Breach of Fiduciary Duties
Defendant is correct that 11 U.S.C. § 1328(a)(4) does not apply to the same situation as does § 523(a)(4)
9
either
Punitive damages may be awarded only when the wrongdoer’s conduct may be said to be “maliciously intentional, fraudulent, oppressive, or committed recklessly or with a wanton disregard of the plaintiffs’ rights.” Hood v. Fulkerson,102 N.M. 677 ,699 P.2d 608 (1985) (quoting Loucks v. Albuquerque Nat’l Bank,76 N.M. 735 , 747,418 P.2d 191 , 199 (1966)). These words are to be taken as used in the disjunctive. See Bank of New Mexico v. Rice,78 N.M. 170 , 180,429 P.2d 368 , 378 (1967), appeal after remand,79 N.M. 115 ,440 P.2d 790 (1968); see also Curtiss v. Aetna Life Ins. Co.,90 N.M. 105 , 108,560 P.2d 169 , 172 (Ct.App.), cert. denied,90 N.M. 7 ,558 P.2d 619 (1976). Punitive damages are to be awarded when actual or nominal damages are inadequate to satisfy the wrong committed. Montoya v. Moore,77 N.M. 326 , 330-31,422 P.2d 363 , 366 (1967). Punitive damages do not have to be in reasonable proportion to the actual damages, but they must not be so unrelated to the injury as to plainly manifest passion and prejudice rather than reason and justice. Faubion v. Tucker,58 N.M. 303 , 307,270 P.2d 713 , 716 (1954). Factors to be weighed in assessing punitive damages are the enormity and nature of the wrong and any aggravating circumstances. See Sweitzer v. Sanchez,80 N.M. 408 , 412,456 P.2d 882 , 886 (Ct.App.1969).
Finally,
Where a party prays for an award of punitive damages and the evidence is sufficient to permit the issue of punitive damages to be considered by the jury, the amount of such damages is left to the sound discretion of the jury based on the nature of the wrong, the circumstances of each case, and any aggravating or mitigating circumstances as may be shown.
Chavez-Rey v. Miller,99 N.M. 377 , 379,658 P.2d 452 , 454 (Ct.App.1982), cert. denied,99 N.M. 358 ,658 P.2d 433 (1983).
Id.
at 174,
In 2001, the New Mexico Court of Appeals revisited the issue of punitive damages in
Walta v. Gallegos Law Firm, P.C.,
New Mexico law is in accord with that in other jurisdictions.
See, Owens v. Watson,
The established law in North Carolina regarding the recovery of punitive damages in tort actions is that “the tortious conduct must be accompanied by or partake of some element of aggravation before punitive damages will be allowed.” Newton v. Insurance Co.,291 N.C. 105 , 112,229 S.E.2d 297 , 301 (1976).... When the tort necessarily involves intentional wrongdoing, as in fraud, punitive damages are appropriate when the actionable conduct is accompanied by “some element of aggravation.” Newton, supra291 N.C. at 112 ,229 S.E.2d at 301 . Aggravated conduct has been variously defined but in the context of an intentiоnal tort usually consists of insult, indignity, malice, oppression, or bad motive in addition to the tort. Oestreicher v. Stores,290 N.C. 118 ,225 S.E.2d 797 (1976); Swinton v. Realty Co.,236 N.C. 723 ,73 S.E.2d 785 (1953); Baker v. Winslow,184 N.C. 1 ,113 S.E. 570 (1922).
and
Fowler v. Mantooth,
It is a rule of long standing in this Commonwealth that exemplary or punitive damages may be recovered in an assault and battery case in addition to punitive damages where the assault is willful, malicious and without justification. Shields’ Adm’rs v. Rowland,151 Ky. 136 ,151 S.W. 408 (1912)....
The threshold for the award of punitive damages is misconduct involving something more than merely commission of the tort. The “something more” necessary in the present case was defined in the instructions as a finding “that the assault was willful, malicious, and without justification.” Malice may be implied from outrageous conduct, and need not be express so long as the conduct is sufficient to evidence conscious wrongdoing. Hensley v. Paul Miller Ford, Inc., Ky.,508 S.W.2d 759 (1974). Hensley cites Prosser, Law of Torts § 2 (4th Ed. 1971), stating that punitive damages are “permitted” “[wjhere the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage.” Id. at 762.
Section 908 of the Restatement sets out the elements to be “properly” considered by “the trier of fact” in assessing punitive damages as including “the character of the defendant’s act, [as well as] the nature and the extent of the harm to the plaintiff that the defendant caused or intended to cause.”
Thus we recognize two elements involved in assessing punitive damages: (1) the nature and extent of the harm to the plaintiff, and (2) the character of the defendant’s act.... [T]he character of the act is a consideration of equal or greater importance [to the nature and extent of plaintiffs harm], depending on the case, in assessing punitive damages. The factors bearing on the character of the act include the degree of outrageousness, the extent of culpability, the motives of the wrongdoer, the relationship between the parties and the existence or absence of provocation. Restatement (Second) of Torts § 908 comment e (1977).
(Supreme Court holds that plaintiffs humiliation in being assaulted is a proper consideration in determining the character of the defendant’s act.);
Alyeska Pipeline Service Co. v. O’Kelley,
The mere fact that Alyeska may have committed an intentional tort did not, standing alone, obligate the trial court to give a punitive damages instruction. By their very nature, such damages turn onthe wrongdoer’s motive, state of mind, and degree of culpability, rather than the particular tort committed. K. Redden, Punitive Damages s 4.2 (1980). In Bridges v. Alaska Housing Authority, 375 P.2d 696 (Alaska 1962), we noted that punitive or “exemplary damages are those awarded in excess of actual loss where the wrongdoer’s conduct can be characterized as outrageous, such as acts done with malice or bad motives or reckless indifference to the interests of another.” Id. at 702. Malice need not be express, but may be inferred from acts evidencing a callous disregard for the rights of others. Sturm, Ruger & Co., Inc. v. Day,594 P.2d 38 , 46 (Alaska 1979).
(Footnote omitted.);
Shugar v. Guill,
Punitive damages, on the other hand, are not awarded as compensation, but they are awarded above and beyond actual damages in proper instances as punishment when it appears that the wrongful act was done maliciously, willfully, wantonly, or in reckless disregard of the plaintiffs rights. Hardy v. Toler,288 N.C. 303 ,218 S.E.2d 342 (1975); Cavin’s Inc. v. Insurance Co.,27 N.C.App. 698 ,220 S.E.2d 403 (1975). Punitive damages arise out of the acts or intentions of the tort-feasor which contain any of the elements of aggravation. Punitive damages do not arise automatically from the commission of the tort, but rather they arise from one of the aggravating factors extraneous to the tort. If facts merely necessary to apprisе the defendant of the wrongdoing with which the plaintiffs complaint charges him are all that are pleaded, this will not provide the defendant with the notice to which he is entitled to prepare a responsive pleading or prepare for trial on the issue of punitive damages. Defendant is entitled to some notice from plaintiffs complaint of the extraneous facts from which plaintiffs claim for punitive damages arise. Therefore, we think that under the present system of “notice pleading” plaintiff must do more than make the conclusory allegation that, “defendant, without just cause, did intentionally, willfully and maliciously assault and batter the plaintiff.” Plaintiff must allege some facts in his complaint tending to establish one or more of the aggravating factors in order to recover punitive damages,
and
DiGiovanni v. Pessel,
Finally, the Restatement (Second) of Torts § 908 (1979) discusses the issue of punitive damages:
(1) Punitive damages are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.
And see, id. cmt. b:
Character of defendant’s conduct. Since the purpose of punitive damages is notcompensation of the plaintiff but punishment of the defendant and deterrence, these damages can be awarded only for conduct for which this remedy is appropriate' — -which is to say, conduct involving some element of outrage similar to that usually found in crime. The conduct must be outrageous, either because the defendant’s acts are done with an evil motive or because they are done with reckless indifference to the rights of others.... Reckless indifference to the rights of others and conscious action in deliberate disregard of them (see § 500) may provide the necessary state of mind to justify punitive damages.
The discussion above regarding punitive damages warrants a few observations. To succeed in a punitive damage claim, a plaintiff must prove more than just the tort; plaintiff must also prove “something more” thаt demonstrates that the defendant acted with an evil intent, malice, or a total disregard of the expected impact of their actions. In other words, plaintiff must prove aggravated circumstances. Under New Mexico law, one factor in determining aggravating circumstances is the defendant’s duties toward the plaintiff.
Walta,
Therefore, for a jury to be able to make an informed decision on punitive damage availability, it will need to know the facts and circumstances surrounding Plaintiffs relationship with Defendant. The Court does not know if the New Mexico courts would find a higher standard or even fiduciary duty running from a home-healthcare worker to his patient, but Plaintiff should at least be allowеd to argue this issue in the State Case. 12
2. Gross Negligence
The Defendant pled guilty to a crime that has intent as one of its elements. “Criminal sexual contact is the unlawful and intentional touching of or application of force, without consent, to the unclothed intimate parts of another who has reached his eighteenth birthday ...” Section 30-9-12(A), NMSA 1978. A conviction or plea to a crime of intent is preclusive of intent in bankruptcy dis-chargeability proceedings.
See T.K., a minor, by D.M., as next friend v. Love (In re Love),
Therefore, Defendant is precluded from arguing that his actions were other than intentional. Defendant was not grossly negligent. Therefore, it would not really be relevant if Plaintiff mentioned gross negligence in the State Case. (Her causes of action against co-defendant Interim are all based on negligence.) The parties should just ensure that any jury instructions in the State Case do not suggest the possibility of a punitive damage award based on negligence.
See
NMRA, Civ. UJI 13-1827, Committee Commentary (“Following the deсision in
Paiz [v. State Farm, Fire & Casualty Co.,
3. Stay Relief
Plaintiff requests that the automatic stay be modified to allow her to proceed in the State Case. This was the result anticipated at the initial pretrial conference in this case, and the Court will so order.
Two reasons dictate that decision. First, the State Court is prepared to complete the litigation, and to do so at least as quickly аs it can be completed in this Court. Second, if a federal court is to determine liability and damages on these sexual assault claims (as opposed to the sóle issue of dischargeability), the adjudication must be by the United States District Court rather than this Court.
The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending. ...
28 U.S.C. § 157(b)(5).
See, for example, Leathem v. Von Volkmar (In re Von Volkmar),
In fact, the request for stay relief in some ways is the core of the matter in this Court. It is most often the case that a dischargeability action is either brought to this Court after the civil litigation has taken place in order for the Court to adjudicate the dischargeability aspect of any judgment already entered in another forum
13
, or is brought originally in this Court for a determination of nondischargeable liability and damages. In this instance a personal injury tort action had been initiated in State Court, was interrupted by the chapter 13 filing and is now followed by this nondischargeability adversary proceeding. A number of courts have addressed this circumstance and come up with the same solution: permit the liability and damages issues to be determined either in the state court or the U.S. district court, and then have the parties return to the bankruptcy court as needed for an adjudication of the dischargeability issue.
E.g., Doe v. Martinez (In re Martinez),
Because of the parties’ disputes about aspects of the State Court case (detailed abоve), it is easily conceivable if not likely that following the conclusion of the State Court case, at least one of the parties will ask this Court to clarify further what is dischargeable in the judgment and what is not. In order to minimize that possibility, the Court suggests that the parties attempt to ensure that any verdict is clear with respect to the standards of nondischargeability. For example, they might consider (subject of course to the discretion of the State Court judge) special interrogatories to the jury, carefully crafted jury instructions on subjects such as “fiduciary”, and the precise basis for the award of any punitive damages. 14
CONCLUSION
The Court finds that any damages (plus any related punitive damages аrising from
Notes
. Section 30-9-11 Criminal sexual penetration states, in relevant part:
A. Criminal sexual penetration is the unlawful and intentional causing of a person to engage in sexual intercourse, cunnilingus, fellatio or anal intercourse or the causing of penetration, to any extent and with any object, of the genital or anal openings of another, whether or not there is any emission.
F. Criminal sexual penetration in the third degree consists of all criminal sexual penetration perpetrated through the use of force or coerciоn not otherwise specified in this section.
Whoever commits criminal sexual penetration in the third degree is guilty of a third degree felony.
''Unlawful” is defined in New Mexico’s Uniform Jury Instruction as:
For the act to have been unlawful it must have been done [without consent and]
[with the intent to arouse or gratify sexual desire]
[or]
[to intrude upon the bodily integrity or personal safety of (name of victim) ]
[or]
[other unlawful purpose].
NMRA, Crim. UJI 14-132. The "Use Notes” state that if the "without consent” instruction is given, one of the three alternatives that follows must be given. Or, one or more of the three alternatives can be given without the "without consent” instruction.
. Criminal sexual contact is addressed in Section 30-9-12, NMSA 1978. That section provides:
A. Criminal sexual contact is the unlawful and intentional touching of or applicаtion of force, without consent, to the unclothed intimate parts of another who has reached his eighteenth birthday, or intentionally causing another who has reached his eighteenth birthday to touch one's intimate parts.
The statute defines "Criminal sexual contact in the fourth degree”, Section 30-9-12(C), but otherwise only states that "Criminal sexual contact is a misdemeanor when perpetrated with the use of force or coercion,” Section 30-9-12(D). It does not define or even use the words "Criminal sexual contact in the third degree.” Compare Section 30-9-13(C), NMSA 1978 ("Criminal sexual contact of a minor in the third degree consists of all criminal sexual contact of a minor perpetrated: ... ”) The only reported New Mexico cases that discuss criminal sexual contact in the third degree involve minors.
. 11 U.S.C. § 1328(a) provides, in part:
[A]s soon as practicable after completion by the debtor of all payments under the plan, ... unless the court approves a written waiver of discharge executed by the debtor after the order for relief under this chapter, the court shall grant the debtor a discharge of all debts provided for by the plan or disallowed under section 502 of this title, except any debt—
(4) for restitution, or damages, awarded in a civil action against the debtor as a result of willful or malicious injury by the debtor that caused personal injury to an individual or the death of an individual.
. 28 U.S.C. § 157(b)(5) states:
The district court shall order that personal injury tort and wrongful death claims shall be tried in the district court in which the bankruptcy case is pending, or in the district court in the district in which the claim arose, as determined by the district court in which the bankruptcy case is pending.
“Most courts interpret this provision to mean that all personal injury tort claims are not within the subject matter jurisdiction of a bankruptcy court and must be tried in the district court.”
Elkes Development, LLC v. Arnold (In re Arnold),
. "The generally applicable ‘American Rule’ is that absent a contractual or statutory provision to the contrary, a prevailing party is not entitled to recover attorney fees from the losing party.
[Sanner v. Poli (In re] Poli[) ],
298 [B.R. 557,] at 563 [ (Bankr.E.D.Va.2003) ].
See generally Buckhannon Bd. and Care Home, Inc. v. West Virginia,
.Defendant is obviously relying on 11 U.S.C. § 523(d) which states:
If a creditor requests a determination of dischargeability of a consumer debt under subsection (a)(2) of this section, and such debt is discharged, the court shall grant judgment in favor of the debtor for the costs of, and a reasonable attorney’s fee for, the proceeding if the court finds that the position of the creditor was not substantially justified, except that the court shall not award such costs and feеs if special circumstances would make the award unjust. Section 523(d)'s text limits relief to 523(a)(2) cases, however. Chapter 13 contains no parallel provision that awards a debtor costs and fees for a creditor's unsuccessful challenge to dischargeability of restitution or damages for personal injury under 11 U.S.C. § 1328(a)(4). "[W]here Congress includes particular language inone section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Russello v. United States, 464 U.S. 16 , 23,104 S.Ct. 296 ,78 L.Ed.2d 17 (1983) (Citing United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972).) The Court therefore presumes that Congress intended that Section 1328(a)(4) would not contain a fee-shifting remedy. Defendant’s claim for fees and costs must be denied.
.This motion for summary judgment was filed before the August 2, 2010 effective date for the new local rules. The Court will apply the rule in force when the motion was filed. But, NM LBR 7056-1 (2010) is substantively identical to the 1996 rule.
. Because Defendant admits that any claims based on battery, assault, intentional infliction of emotional distress, or personal injury would be nondischargeable, the Court will not address those further.
. 11 U.S.C. § 523(a)(4) provides: "A discharge under section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does not discharge an individual debtor from any debt— .. . for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny!.]” It does not apply in the instant case
. Compare 11 U.S.C. § 523(a)(6)(declaring debts for willful and malicious injury by the debtor to an entity of an entity's property). This section does not apply in Chapter 13 cases.
One-on-One Fitness Personal Training Service, Inc. v. Reyes (In re Reyes),
. Which Plaintiff, without more, currently cannot do.
See Fowler Bros. v. Young (In re Young),
The existence of a fiduciary relationship under § 523(a)(4) is determined under federal law. However, state law is relevant to this inquiry. Under this circuit’s federal bankruptcy case law, to find that a fiduciary relationship existed under § 523(a)(4), the court must find that the money or property on which the debt at issue was based was entrusted to the debtor. Thus, an express or technical trust must be present 'for a fiduciary relationship to exist under § 523(a)(4). Neither a general fiduciary duty of confidence, trust, loyalty, and good faith, nor an inequality between the parties’ knowledge or bargaining power, is sufficient to establish a fiduciary relationship for purposes of dischargeability. Further, the fiduciary relationship must be shown to exist prior to the creation of the debt in controversy.
(Citations omitted; emphasis added.)
Accord McDowell v. Stein (In re McDowell),
. The ''instructions” contained in this memorandum opinion are directed to the parties, and certainly not to the State Court judge who will preside over the trial. That judge of course is in charge of her or his own courtroom and the proceedings therein.
.
See Grogan v. Garner,
. If a creditor’s claim for compensatory and punitive damages both arise from a debtor’s willful and malicious conduct, both are excepted from discharge.
The Plaintiffs State court judgment against the Defendant can be divided into three parts: compensatory damages, punitive damages, and attorneys' fees and costs. The fact that the Plaintiffs compensatory damages are nondischargeable is straightforward, since they arise directly from a willful and malicious injury caused the Debtor to another entity. See § 523(a)(6). Punitive damages, theoretically, go beyond the injury caused by the Debtor for his willful and malicious act. See Ramsey v. Bernstein (In re Bernstein),197 B.R. 475 (Bankr.D.Md.1996). However, "when punitive damages spring from the same conduct giving rise to nondischargeable compensatory damages, such punitive damages are also not dischargeable in bankruptcy.” Id.; see also In re Miera,926 F.2d 741 , 745 (8th Cir.1991); In re Adams,761 F.2d 1422 , 1427-28 (9th Cir.1985). This is because "the punitive damages still arise from the 'willful and malicious injury by the debtor to another entity.’ ” Ramsey v. Bernstein (In re Bernstein),197 B.R. 475 (Bankr. D.Md.1996) (citing 11 U.S.C. § 523(a)(6).)
Merriex v. Beale (In re Beale),