Parker v. Grant (In Re Grant)Parker v. Grant (In Re Grant)
This matter came on for trial on May 4, 1999 on the Amended Complaint of Jeffrey H. Parker, et al., 1 against John Lee Grant, M.D. (“Dr. Grant”). After consideration of the evidence at trial and the arguments of counsel, the court makes the following finds of fact and conclusions of law.
FINDINGS OF FACT
This dispute involves a determination by this court as to whether Dr. Grant’s responsibility for certain damages which allegedly occurred in the course of his lease of a condominium known as 116 Sandyport Development in New Providence, Bahamas (“Condo”) is nondischargeable pursuant to 11 U.S.C. § 523(a)(2). Dr. Grant filed a petition under Chapter 11 of the United States Bankruptcy Code in this Court on September 4, 1998. Scheduled as contingent and disputed debt was an unsecured indebtedness to Jeff Parker, et al., in the amount of $21,004.31.
Among the few matters to which the parties agree is that a certain lease dated August 8, 1997 was entered into by and between Gwen Lynch and John L. Grant and Stephanie Hannis-Grant for the rental
It is the circumstances of the entry into the Lease which forms the basis of the controversy here. The saga began on August 8, 1997 when Christy Winner (“Winner”), 4 who went by the surname of Cal-lender at the time, received a telephone message from Dr. Grant staying in the Bahamas at a Radisson Hotel. Winner is employed by Damianos, who had been instructed by the Condo Owners to seek rentals for the premises. Winner returned the call to Dr. Grant at the hotel, where it was answered by a woman who introduced herself as Mrs. Grant. The woman advised Winner that she was there to view some properties and wanted to look at houses or apartments to rent right away. Winner went to the hotel to meet them, where Dr. Grant and Hannis met her outside the hotel. Dr. Grant came first, shook Winner’s hand and introduced himself as Dr. Grant and his companion as his wife, Mrs. Grant. They proceeded with Winner to inspect the. Condo. While there, the woman identified as Mrs. Grant advised that Dr. Grant would be flying back and forth from the United States while she would be staying at the Condo with her mother and children. The dispatch with which Dr. Grant sought to rent the Condo was explained to Winner as necessary because Hannis and her mother both had health problems. After inspecting the Condo, Dr. Grant and Hannis decided to accept the premises.
Winner brought Dr. Grant and Hannis to meet Kay Duckworth (“Duckworth”), an agent from the Sandyport Development where the condo is located. Dr. Grant did not introduce himself to Duckworth, but instead Winner introduced Dr. Grant and Hannis to her as Dr. and Mrs. Grant. Hannis again stated in the presence of Duсkworth that she wished to move in right away. Duckworth had concerns about Dr. Grant and Hannis, feeling that “[Hannis] didn’t seem like the type of person who would be married to a brain surgeon or any doctor” 5 and thought they might have been there “having a fling.” Pis.’ Ex. 2, p. 24.
After Dr. Grant and Hannis decided to let the Condo, Winner prepared the Lease for execution. Winner prepared the Lease to be executed by “Dr. and Mrs. John Grant,” but, upon Dr. Grant’s request, the tenants under the Lease were changed to “John Grant and Stephanie Hannis Grant.” Thereafter, Dr. Grant and Hannis executed the Lease and made the required deposits and first month’s rent. The Lease was forwarded to the owners of the Condo for their acceptance. Duckworth apparently had immediate misgivings about the
Jeff Parker (“Parker”), the son-in-law of Gwen Lynch, 6 recalls being contacted by Duckworth on August 8, 1997 concerning the suitability of the Lease with Dr. Grant and Hannis and was advised the proposed tenants were a “brain surgeon” and his wife from Virginia who had a sick mother-in-law. Tr. Transcript, p. 178. Duckworth stated while a tenant was willing to rent the condo, “It wasn’t what we were looking for.” 7 Id. The Condo Owners prior to the Leasе had enlisted Parker as their agent to represent their interests in the construction and renting of the Condo. After construction was completed, Parker had asked Duckworth to look for prospective tenants for the Condo. Parker’s preferences for prospective tenants as expressed to Duckworth were for a two to three year lease with an oil company or a bank. Parker never expressed any preference to Duckworth that the tenants for the condo be a married couple; rather, his primary expressed goal appeared to be to lease to a credit-worthy corporate tenant for a multi-year term. Winner, Duckworth and Parker apparently never made any inquiries into the circumstances of Dr. Grant or Hannis; Parker does not recall making any inquiries about the prospective tenants nor what questions the rental agents may have asked of them. Parker testified that his wife expressed concerns about the Lease because the tenant was not a bank. However, by this time Parker had executed the Lease on behalf of Gwen Lynch, having in hand the substantial deposit made by Dr. Grant and Hannis, and believing he had a neurosurgeon obligated thereon. Parker also testified he was swayed to execute the Lease by the fact it was allegedly to provide a place for the sick mother-in-law of Dr. Grant, thinking that Dr. Grant “was a caring man that cared about his family.” Id. at 199. Parker’s belief he had rented to a neurosurgeon and his wife was reinforced later when Dr. Grant called him in Chattanooga, Tennessee to demand installation of a security alarm system for the Condo and stated “[my] wife ... [is] driving ... [me] nuts, calling at all hours of the day asking for this alarm system ....” Id. at 145.
After occupation of the Condo by Dr. Grant and Hannis, the September 1997 rent was paid by a cashier’s check received from Dr. Grant. However, an attempt to pay for the October 1997 rent failed when a check drawn by Dr. Grant on an account at BB & T Bank was returned unpaid. Parker sought to contact Dr. Grant concerning this default and was advised that Dr. Grant was in bankruptcy and Mrs. Grant had enough money to pay the rent. 8 Parker attempted to contact Hannis, but never received a return call. Parker then instructed the owners of the Sandyport Development to evict Dr. Grant and Han-nis from the condo. 9
Upon eviction, Gwen Lynch traveled to the Bahamas to inspect the condominium and discovered a substantial amount of
A proper calculation of the damages claimed by the plaintiffs here is as follows:
Unpaid Rent
October 1997 $ 5,500.00
November 1997 $ 5,500.00
December 1997 $ 5,500.00
January 8-31,1998 $ 4,070.00
$20,570.00
Less last month’s rent deposit $ 5,500.00
Total Rent Claim $15,070.00
Physical Damages to Condo
Repainting $ 786.25
Kitchen Cabinets $ 475.00
Carpet Cleaning $ 121.00
Missing Inventory $ 500.00
Maid Cleaning $ 130.00
$ 1,912.25
Unpaid Utilities/Miscellaneous
Water $ 487.06
Electricity -0- 13
Returned Check Pee $ 10.00
$ 497.06
Less Damage Deposit 14 $ 5,500.00
$ 5,002.94
Less Damage to Condo $ 2,012.25
$ 2,990.69
Less Total Rent Claim $15,070.00
$12,079.31 15 Total Claim
Dr. Grant offered no enlightenment as to the circumstances of the Lease at trial. With the exception of a handful of general questions about his background as a neurosurgeon, Dr. Grant declined to answer virtually all the questions posed to him at trial by counsel for the condo owners and, in each instance, asserted as his basis his right against self-incrimination under the
The Complaint filed by the Condo Owners alleges that Dr. Grant knowingly and falsely represented that Hannis was his wife and that the plaintiffs relied upon this false representation. Specifically, the plaintiffs allege that they limited rental of this property to families to prevent this type of damage and they relied upon Dr. Grant’s marital status as security for the Lease. As a proximate result of this false representation, the plaintiffs believe Dr. Grant obtained a leasehold interest in their property and the debts owed to them by reason of the Lease are, therefore, nondis-chargeable pursuant to 11 U.S.C. § 523(a)(2).
Dr. Grant defends on a number of bases. First, he denies that he made representations or that the plaintiffs relied on any alleged representations relating to whether Hannis was his wife. Secondly, Dr. Grant asserts the damage or loss of rent complained of by the Condo Owners was not proximately caused by any alleged misrepresentation by Dr. Grant as to his marital status with Hannis. In addition, Dr. Grant has objected to the consideration by the court of the de bene esse testimony of Winner and Duckworth who are crucial to the case of the plaintiffs as all direct contact with Dr. Grant and Hannis in the procurement of the Lease occurred with them. Dr. Grant’s objection is founded upon the fact as of the time of trial the transcripts of the depositions of Winner and Duckworth had not been signed by the witnesses, nor had the reading and signing of the depositions been waived. Upon this basis, Dr. Grant urges the court not to admit these transcripts in evidence, thus depriving the plaintiffs of a critical link in their evidence. 18
An additional legal issue was also raised at trial by the plaintiffs being, the extent to which the court, as the trier of fact, may make negative inferences from the frequent exercise by Dr. Grant of his Fifth Amendment privilege against incrimination as a basis to refuse to answer many of the questions posed by plaintiffs counsel in his examination.
The court will first consider whether the deposition transcripts of Winner and Duckworth should be properly admitted into evidence here, notwithstanding the failure of either Winner or Duckworth to sign them prior to their proffer at trial. Secondly, the court will consider whether it should make negative inferences in its
I
Should the Depositions of Winner and Duckworth be Admitted?
The de bene esse depositions of Duck-worth and Winner were taken on March 31, 1999 by telephone. 19 At the conclusion of each deposition, plaintiffs counsel requested that each deponent review, sign and return the deposition. 20 Winner signed her deposition without evidencing any changes on May 7, 1999; Duckworth signed her deposition on May 13, 1999 while detailing two minor alterations on her errata sheet. Defendant first knew of plaintiffs use of the Duckworth and Winner depositions at trial on April 23, 1999 when plaintiff served defendant with a copy of the proposed trial exhibit list. On April 27, 1999, defendant filed objections to the use of the deposition transcripts at trial on the sole ground that they were not signed as required by Federal Rule of Civil Procedure 30(e) (“Rule 30(e)”). No other suggestion has been made that any irregularities or errors occurred in the taking, transcription or preparation of the depositions. 21
Defendant argues that since the deposition transcriрts were completed on April 8, 1999, both deponents had ample opportunity to review, read and sign, and then return the depositions with any corrections before the trial date. Plaintiff contends that.the date of trial, May 4, 1999, is not the proper deadline for the deponents’ reading and signing their depositions; plaintiff proposes that Rule 30(e) states the deadline for reading and signing as 30 days after the reporter makes the deposition available. Therefore, plaintiff argues that Winner’s deposition is admissible, as she read and signed her deposition on May 7, 1999, within the 30 day period proscribed by Rule 30(e). While admitting that Duckworth’s deposition was not timely signed, plaintiff contends that Duck-worth has waived only her privilege to read, review and make corrections to her deposition. Consequently, her deposition should be admitted as taken as “[t]he consequence of waiver, of course, being that the original deposition is admitted into evidence with no changes.” Pis.’ Br., p. 6 n. 4.
Federal Rule of Civil Procedure 30(e), made applicable here by Federal Rules of Bankruptcy Procedure 7030, states as follows:
If requested by the deponent or a party before completion of the deposition, the deponent shall have 30 days after being notified by the officer that the transcript or recording is available in which to review the transcript or recording and, if there are changes in form or substance, to sign a statement reciting such changes and reasons given by the deponent for making them.
F.R.C.P. 30(e). 22
Plaintiff contends that the court reporter made the deposition transcripts avail
Plaintiff argues Rule 30(e) provides deponent with a 30 day period to read, correct and sign a deposition, notwithstanding a trial date. Defendant contends that plaintiff had sufficient time from defendant’s objection on April 23, 1999, to secure deponents’ signature before trial and, therefore, plaintiff should be prohibited from using either deposition at trial. Rule 30(e) clearly states a 30 day time limitation for modification of transcripts and fails to formulate any exception to the rule. Therefore, this Court rejects defendant’s argument and agrees with plaintiff that the 30 day period proscribed by Rule 30(e) is applicable here.
Debtor cites
Smith v. Insurance Co. of North America,
The Court in
Blackthorne v. Posner,
The Second Circuit ruled similarly in
Podell v. Citicorp Diners Club,
In Duckworth’s case, the issue rests on the fact that she failed to timely sign and make corrections to her deposition testimony. After reviewing Rule 30(e), the accompanying Advisory Committee Notes, and the applicable case law, this Court concludes that in a situation where a deponent is requested to read and review his deposition and deponent makes no changes to the deposition transcript, that deponent has effectively waived any right he had to modify his transcript. Rule 30(e) and the Advisory Committee Notes require signature by the deponent only if requested and if changes are made before the 30 day limitation expires. Here, Duck-worth failed to evidence any changes within the 30 day period after presentment of the deposition transcript. In light of Blackthome, by Duckworth’s failing to make changes to her deposition testimony, she effectively waived her privilege to do so. However, it does not logically follow that deponent’s failure to read, sign and modify precludes the use of her original unaltered deposition at trial. Podell and Lugtig clearly state that a failure to read, review and sign within the 30 day constraint constitutes only a waiver of deponent’s right to correct mistakes in his deposition testimony and does not affect the original deposition’s admissibility. Consequently, this Court finds that Duckworth waived her privilege to amend her deposition testimony by not reading and signing despite plaintiffs counsel’s request. She did not, however, waive any privilege to use her original deposition testimony at trial. Therefore, this Court deems Duck-worth’s original deposition testimony admissible at trial.
II
May the Plaintiffs Utilize Dr. Grant’s Invocation of his Fifth Amendment Privilege Against Self-Incrimination As Affirmative Evidence At Trial?
Dr. Grant utilized his Fifth Amendment privilege against self-incrimination and declined to answer the queries relating to the circumstances of the making of the Lease or the occupation of the Condo posed to him by counsel for the plaintiffs. This assertion by Dr. Grant of his Fifth Amendment privilege forms the basis of the plaintiffs argument that the court should draw a negative inference from this invocation and, in essence, assume Dr. Grant would have answered each of these questions in the manner most adverse to his interests in this matter.
Dr. Grant was the first witness called by the plaintiffs. After answering some general questions concerning his residential address, practice history and business address, and current marital status, Dr. Grant was asked if he had a child named Stephanie, which evolved his assertion of this Fifth Amendment privilege and his declination to answer the question. Counsel for the plaintiffs immediately moved for the entry of summary judgment against Dr. Grant on the basis of his assertion of his privilege against self-incrimination. Plaintiffs motion was denied by the court. 24
Thus, the vast majority of the inquiries to which Dr. Grant asserted his Fifth Amendment privilege closely relate to the circumstances of the meetings with Winner and Duckworth which ultimately lead to the making of the Lease. A number of the other lines of inquiry appear to pertain to matters not highly relevant or at issue here, such as whether and when Dr. Grant traveled to the Bahamas, activity in his bank account during the tenancy and conversations and correspondence of Dr. Grant with Parker, all of which allegedly occurred after the making of the Lease.
The application of the Fifth Amendment to prohibit the compulsion of disclosures which would incriminate a witness obviously is bedrock among the principles of American constitutional law. Where the Fifth Amendment privilege is asserted by a party in a civil action rather than a criminal prosecution, the full implications to the party of the assertion of the privilege is less certain. While courts have often observed that “attempts ... to make the assertion of the Fifth Amendment privilege ‘costly’, as the result of the invocation alone ...” are inappropriate,
In re Caucus Distributors, Inc.,
The Supreme Court in
Baxter
delineated the limits of both the sword and shield of the Fifth Amendment when asserted by a civil party. There a prisoner invoked his Fifth Amendment privilege in the course of a prison disciplinary hearing. In stating its belief the disciplinary hearing was civil in nature, the Court stated that while the prisoner may use his privilege to decline to testify, “silence in the face of accusation is a relevant fact not barred by the Due Process Clause.”
Baxter,
This theme is mirrored in subsequent cases considering the issue in different contexts. In
Bathalter,
Plaintiffs do not appear to disagree in their post-trial reply memorandum with the teachings of these cases, variously stating, “given the introduction of other probative evidence against the party claiming the privilege, these adverse inferences can support a judgment against the silent party” and “[c]oupled with probative evidence against the party who refuses to testify ... this negative inference is enough to support an adverse decision against the silent party.” Pis.’ Reply to Defs.’ Post Tr. Mem., p. 2, 7. The recognition of the necessity to introduce probative evidence conversely dooms the efforts of the plaintiffs to use the invocation of the Fifth Amendment by Dr. Grant to establish proof of facts where no evidence was introduced or admitted.
25
In evaluating whether plaintiffs have succeeded in carrying their burden of proof as to each element which must be shown to prevail in their Complaint, the Court will assess whether Dr. Grant’s refusal to answer pre-
Ill
A. Is the Indebtedness Under the Lease Nondischargeable As To Dr. Grant?
Introduction
“To farther the policy of providing a debtor with a fresh start in bankruptcy, exceptions to discharge are construed strictly against the creditor and liberally in favor of the debtor.”
In re Barr,
The plaintiffs ground their nondis-chargeability action on 11 U.S.C. § 523(a)(2)(A), alleging false pretenses, false representations, and actual fraud. Jurisdiction over this matter lies under 28 U.S.C. § 1334(b) as a matter arising under 11 U.S.C. § 523(a) and 11 U.S.C. § 1141. This Adversary Proceeding is a core proceeding under 28 U.S.C. § 157(b)(2)(I) because it relates to the dischargeability of debts. Venue is appropriate under 28 U.S.C. § 1409 and Local Rules 102 and 107(a)(2).
§ 1141 and § 523(a)(2)(A)
Section 1141(d)(2) provides “[t]he confirmation of a plan does not discharge an individual debtor from any debt excepted from discharge under Section 523 of this title.” 11 U.S.C. § 1141(d)(2) (1999). 26 Accordingly, even though Dr. Grant is proceeding under Chapter 11 of the Bankruptcy Code, Section 1141 permits the plaintiffs to utilize Section 523 to prohibit the discharge of this indebtedness.
Section 523(a)(2)(A) excepts from discharge any debt “for money, property, services ... to the extent obtained by ... false pretenses, a false representation, or actual fraud.... ” 11 U.S.C. § 523(a)(2)(A)(1999). Most courts agree that the traditional elements of an action for fraud must be established to prevail on a claim of nondischargeability under § 523(a)(2)(A).
In re Simos,
(1) That the debtor made a representation;
(2) That at the time the representation was made, the debtor knew the representation was false;
(3) That the debtor made the false representation with the intention of deceiving the creditor;
(4) That the creditor relied on such representation; and
(5) That the creditor sustained the alleged loss and damage as the proximate result of the false representation.
Id.
E.g.,
In re Valdes,
A. Did Dr. Grant Make a Misrepresentation?
The Condo Owners allege the misrepresentation of Dr. Grant’s marital status with Hannis as the sole ground for their § 523(a)(2)(A) nondischargeability claim. As a starting point, this Court nоtes that a breach of contract does not, by itself, establish misrepresentation for purposes of § 523(a)(2)(A).
In re Barr,
Courts generally categorize representations as either express or implied. “A false representation is an express misrepresentation, while a false pretense refers to an implied misrepresentation of ‘conduct intended to create and foster a false impression.’ ”
In re Newmark,
There is sufficient evidence here, that by signing the Lease contemporaneously with Hannis who signed as “Stephanie Hannis-Grant,” Dr. Grant created a false impression he and Hannis were married. This, coupled with the circumstances of the representations to Winner of Dr. Grant and Hannis as to their married status at the time of the entry into the Lease, provides ample basis to conclude Dr. Grant made one or more misrepresentations as to his marital status.
At the time of execution of the Lease, Dr. Grant requested the signatories to be changed from “Dr. And Mrs. John Grant” to “John Grant and Stephanie Hannis-Grant.” Dr. Grant and Hannis each contemporaneously executed the Lease in this form as tenants, which would logically convey the notion that Dr. Grant and Hannis were husband and wife. Dr. Grant knew or should have known that this Lease as so executed would be forwarded for review and execution by the Condo Owners 27 and would lead a reasonable person to believe Dr. Grant and Hannis were married.
The circumstances of the negotiation of the Lease similarly confirms the deception engaged in by Dr. Grant as to his marital status with Hannis. When Winner first met Dr. Grant and Hannis outside their hotel, Dr. Grant introduced Hannis as his wife. Previously, Hannis made references to herself as Mrs. Grant when first telephoned by Winner. Hannis and Dr. Grant were introduced to Duck-worth by Winner as Dr. and Mrs. Grant while they both were present. While the introduction to Winner obviously constitutes an overt misrepresentation, Dr. Grant’s silence in the face of the representations by Hannis as Dr. Grant’s spouse and by Winner to Duckworth as “Dr. And Mrs. Grant” is equally culpable. As this Court has previously stated:
Misrepresentation may be implied by silence. No overt misrepresentation is required under § 523(a)(2)(A). Instead, omissions or a failure to disclose by the debtor can constitute misrepresentation for the purposes of nondischargeability where the circumstances of the cases are such that the omissions or failure to disclose creates a false impression which is known by the debtor.
In re Kahler,
However, the inquiry need not end there because of the unusual factual circumstances. Typically where instances of an alleged misrepresentation are asserted as a basis for nondischargeability, the misrepresentations are made directly to the creditor or, at the least, in the presence of the creditor. Here nearly all the misrepresentations alleged by the plaintiffs which occurred in the course of the negotiation, execution and acceptance of the Lease were transmitted by third parties. Complicating this aberration is the fact the transmission of information by these third party real estate agents was made not to the creditor Condo Owners, but rather to the agent of the Condo Owners, Parker. 28 This atypical methodology of the conveyance of the misrepresentations which occurred here as to the marital status of Dr. Grant and Hannis requires the Court to further examine the unusual facts in the case at bar.
Certain cases have made clear that the indebtedness of a principal may be found to be nondischargeable where the agent of the principal makes misrepresentations to a crеditor within the scope of Ms authority or at the direction of the principal.
See, e.g., In re Cohn,
The second element requires the Plaintiffs prove that the Debtor knew or should have known that the representations were false at the time the representation was made. The plaintiffs allege that Dr. Grant knew he was not married to Hannis at the time he contracted to lease the Condo.
This Court is convinced that both the express and implied representations were made by Dr. Grant concerning his marital status with Hannis. No evidence here suggests any circumstances existed where Dr. Grant could have believed he was actually married to Hannis.
C. Did Dr. Grant Possess the Intent to Deceive?
Since a debtor rarely admits to possessing the requisite intent to deceive, intent may be inferred from an examination of the surrounding circumstances.
30
In re Van Horne,
Dr. Grant argues the evidence here fails to reveal a fraudulent intent on his part, arguing that he would have needed to know that being married to Hannis was a necessary condition to rent the Condo. His inаbility to know this is found, according to Dr. Grant, in the testimony of Parker as to the absence of any instructions to the leasing agents that only married couples occupy the Condo. Dr. Grant thus suggests to this Court that, for the purposes of establishing his intent here, we examine the minds of Parker, Duck-worth and Winner rather than his own. While such an examination is highly relevant to explore whether there was any reliance on the misrepresentations of Dr. Grant, it sheds little light on our determination of Dr. Grant’s motives. 31 The circumstances of the entry into the Lease provide ample support for the inference that, for whatever ultimate design, Dr. Grant desired to create the illusion of this marriage for the benefit of the leasing agents who negotiated the Lease with him. Dr. Grant has elected, by the invocation of his Fifth Amendment privilege, not to supplement the circumstantial evidence here and, therefore, has not rebutted the intent to defraud displayed by the plaintiffs. Whether or not Dr. Grant specifically comprehended that occupation of the Condo by a married couple was a condition precedent to the lease, Dr. Grant and Hannis elected to hold themselves out as married to each other for whatever benefit they believed might result therefrom; as such, this Court concludes Dr. Grant possessed the requisite intent of deceiving the Condo Owners as to his marital status with Hannis.
The fourth element of fraud requires the plaintiffs to prove that they relied on the Debtor’s statements. In 1995, the Supreme Court adopted the common-law standard of justifiable reliance, rather than the more stringent standard of reasonable reliance.
32
Field v. Mans,
Justifiable reliance is not without its limits; however, one “cannot recover if he blindly relies upon a misrepresentation the falsity of which would be patent to him if he had utilized his opportunity to make a cursory examination or investigation....”
Id.
In the case sub judice, the Condo Owners allege justifiable reliance on Dr. Grant’s misrepresentations of his marriage to Hannis and suggest they would not have entered into the Lease but for this misrepresentation. The evidence here strongly suggests there was no reliance on Dr. Grant’s misrepresentation by the Condo Owners. Parker, who acted as agent for the Condo Owners in the construction and leasing of the Condo, was candid in his testimony as to the importance of having a married couple lease or occupy the premises. After completion of construction of the Condo, Parker communicated to Duck-worth that the Condo Owners were looking for a corporate rental such as a bank or oil cоmpany who rent a residence for their employees and families to stay. In addition, Parker advised of a preference for a long term rental of two to three years. Parker openly admitted that had a bank rented the Condo, it was of no moment to him who was occupying the premises, and Parker specifically stated that with a bank ultimately obligated as the tenant, it would not have mattered if the bank had placed an unmarried couple into the property. Tr. Transcript, p. 173-76. Parker never mentioned to Duckworth that it was important that the tenants of the Condo be married. Rather, the creditworthiness of the prospective tenant appeared to be the only salient consideration to Parker. Parker conceded in making the decision to rent the Condo, the criteria was the “[ajbility to pay and the stability of the person or corporation that ... would be there.” Id. at 173. As Parker succinctly testified, a decision to rent would be founded upon proposed renters’ ability “to pay $5,500.00 a month plus the deposits.” Id.
The specific decision to rent the Condo to Dr. Grant and Hannis was also apparently dictated by Parker’s conclusion Dr. Grant was a creditworthy prospective tenant. Notwithstanding his previously stated preference for a bank tenant, Parker decided to execute the Lease based upon the fact Dr. Grant and Hannis had made a substantial deposit and upon Dr. Grant’s represented status as a neurosurgeon. As again succinctly stated by Parker, “I
E. Were the Condo Owners’ Damages Proximately Caused by the Representations?
Finally, to prevail under § 523(a)(2)(A), plaintiff must prove that the claim to be discharged “arose from an injury proximately resulting from the plaintiffs reliance on an intentionally made false representation.”
In re Russell,
The Restatement (Second) of Torts defines proximate cause as encompassing “(1) causation in fact, which requires a defendant’s misrepresentations to be a ‘substantial factor in determining the course of conduct that results in [the plaintiffs] loss’ ... and (2) legаl causation, which requires the plaintiffs loss to have been ‘reasonably expected to result from the reliance.’ ”
In re Russell,
The Condo Owners allege a causal connection between the misrepresentation by Dr. Grant of his marital status with Han-nis in the Amended Complaint when they state: “[plaintiffs specifically limited rental of this property to families to prevent the type of damage that resulted from this lease agreement.” Am. Compl. ¶ 7. When asked to amplify the type of damage that resulted from the Lease, plaintiffs identified ten items of physical damage which they alleged occurred at the Condo during the tenancy of Dr. Grant and Hannis.
35
While not mentioned in their response to Dr. Grant’s discovery, the Condo Owners also presumptively believe their loss of rent unpaid by the tenants is a proximate result of Dr. Grant’s misrepresentation as to his marital status with Hannis. Thus, assuming plaintiffs proved the other elements, the court must assess whether Dr. Grant’s misrepresentation constituted a “substantial factor in determining the course of conduct which resulted in the claimed loss of plaintiffs” or whether the loss of rents and the physical damage to the Condo were reasonably expected to
The decision of
In re Vamvakaris,
The real issue of fraud here goes to the loss of jewelry and not to the lack of insurance. Thus, the loss was caused by thefts of jewelry. There is no evidence that the debtor fraudulently intended to deprive plaintiff of the jewelry or that he was in any way responsible for the loss. Debtor’s misrepresentations about insurance coverage were not the proximate cause of the plaintiffs loss....
[Tjhere is simply no evidence here of a correlation between debtor’s misrepresenting his theft insurance coverage and the subsequent loss of plaintiffs jewelry. The debtor did not intend to cause inquiry. And even though debtor’s misrepresentation may be considered a deliberate and intentional act, it did not directly or necessarily lead to the loss of plaintiffs jewelry.
Id. at 231.
The absence of a causal connection between Dr. Grant’s misrepresentation as to his marital status with Hannis and the damage alleged here is evident. There is simply no basis to аttribute the inability of Dr. Grant to ultimately pay the rent accruing upon the Condo or the physical damage thereto to the representation of marital status by Dr. Grant. 36 There is no evidence here that a failure to pay rent or the occurrence of physical damage to the rental premises would logically follow the rental to a couple who were not married. The damages complained of rather appear to be the result of causes wholly unrelated to the misrepresentation of marital status. The failure to pay rent or to damage the premises cannot have been reasonably expected from any reliance here.
The plaintiffs, however, argue that in essence the misrepresentation was the
sine qua non
here, as but for the belief by Parker that Dr. Grant was married to Hannis, the Condo Owners would not have entered into the Lease. Therefore, the plaintiffs assert, any loss which ultimately occurred during the tenancy must be the proximate result of the misrepresentation
Plaintiffs аlso rely on a series of professional licensing cases typified by the decision of
In re Pleasants,
IV
Should Judgment Be Awarded Against the Plaintiffs for the Costs and Attorney’s Fee Incurred for the Defense of the Complaint?
Having found the Complaint of the Condo Owners to be insufficient for the reasons aforesaid, the Court must finally consider the prayer for recovery of his costs and attorney’s fee in the defense here by Dr. Grant. Reliance for such a recovery is placed upon 11 U.S.C. § 523(d) (1999), which provides:
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 fees if special circumstances would make the award unjust.
Dr. Grant argues the provisions of § 523(d) have been satisfied here, as the debt involved was a consumer debt, for which discharge was denied. Further, Dr. Grant asserts the actions of the plaintiffs here were not substantially justified and
However, before conducting an application of the provisions of § 523(d) to the facts and circumstances here, the Court must answer a threshold question: do the provisions of § 523(d) necessarily govern these proceedings? Here, unlike the overwhelming majority of adversary proceedings brought to determine non-dischargeability, the instant Complaint must be founded on 11 U.S.C. § 1141 as the petition filed by Dr. Grant rests under Chapter 11. While § 1141(d)(2) obviously makes reference to § 523 in its statement that confirmation of a plan of reorganization does not operate to discharge an indebtedness provided for in § 523, the issue becomes clear: is this reference sufficient to incorporate other provisions appearing there, including the award of costs and attorney’s fees contemplated by § 523(d)?
37
As always, the plain language of the statute is the starting point for any such analysis.
United States v. Ron Pair Enterprises,
The obligation represented by the Lease is an indebtedness incurred by an individual primarily for a personal, family or household purpose and thus is a consumer debt, for which a declaration of nondischargeability pursuant to § 523(a)(2) of the Bankruptcy Code was sought by the Condo Owners. Thus, the burden then shifts to the plaintiffs to show either that their position in this proceeding was substantially justified or special circumstances here would make an award unjust in this matter.
See FCC Nat’l. Bank v. Dobbins,
The affirmative defense of substantial justification found in § 523(d) was patterned after the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A)
We are of the view ... that as between the two commonly used connotations of the word “substantially,” the one most naturally conveyed by the phrase before us here is not “justified to a high degree,” but rather “justified in substance or in the main” — that is, justified to a degree that could satisfy a reasonable person. That is no different from the “reasonable basis both in law and fact” formulation adopted by the Ninth Circuit and the vast majority of the other Courts of Appeals that have addressed this issue. To be “substantially justified” means, of course, more than merely undeserving of sanctiоns for frivolousness; that is assuredly not the standard for Government litigation of which a reasonable person would approve.
Pierce v. Underwood,
The case law construing the term “special circumstances” has been sparse. In the context of the EAJA, courts have suggested this exception should be interpreted in accordance with equitable principles.
In re Hingson,
It does not appear any special circumstances exist here to block an award of attorney’s fees pursuant to § 523(d). The plaintiffs assert that the invocation of the Fifth Amendment privilege by Dr. Grant constitutes a special circumstance under
While some cases have found that the “unclean hands” of the defendant may bar an award оf attorney’s fees under the EAJA, the factual circumstances are greatly at variance with the instant matter. In
Oguachuba,
a habeas corpus petitioner who was seeking the fee award had repeatedly violated federal immigration law in many ways hoping to cause a technical error by the INS which would allow him to remain in this country. While the petitioner prevailed on his writ, the court found “he would not have been incarcerated in the first place but for his notorious and repeated violations of the United States immigration law” which caused a finding the petitioner was without unclean hands in “classic equity terms.”
Oguachuba,
It remains, then, to establish whether the Complaint of the plaintiffs was substantially justified under the provisions of § 523(d). Dr. Grant focuses his argument as to a lack of substantial justification by the plaintiffs on an alleged absence of a reasonable connection between the “law and the pleaded and proved facts.” Defs.’ Post Tr. Mem., p. 26. He believes the Complaint was founded upon a “tortured” reading of the portion of the Lease which restricted use of the Condo to the tenant and his family and that the misrepresentations of marital status were entirely unrelated to the lease agreement. Id. Dr. Grant also suggests an improper motive on the part of the plaintiffs in their attempts to introduce certain evidence concerning Hannis, believing such tactics were an effort to “smear” or “embarrass” Dr. Grant. Id. at 27. The plaintiffs in reply reassert their belief they provided sufficient evidence to prevail on the merits of this adversary proceeding, and state the substantial justification, of which they bear the burden to show is found in the fact Dr. Grant did maké a misrepresentation of his marital status and their evidence of the alleged reliance by Parker upon this fraud.
Many of the cases which have addressed whether a plaintiff has shown a substantial justification under § 523(d) have occurred where nondischargeability of a credit card debt was undertaken and focus on the degree of pretrial investigation undertaken by the creditor. There appears to be no criticism of the extent to which the plaintiffs investigated the circumstances of this matter. Dr. Grant instead appears to suggest the lack of reliance and proximate cause which this Court relied upon in denying the claim of nondischargeability was so apparent that maintenance of the Complaint by the plaintiffs exhibits a lack of substantial justification so as to trigger an award of attorney’s fees here. It is doubtless that these items of proof — reliance and proximate cause — are perhaps uniquely within the knowledge of the plaintiff. No investigation needed to be done for the plaintiffs to form a belief as to the adequacy of their evidence in this regard.
The assertion by Dr. Grant that the premise of the Amended Complaint is Section 2.10 of the Lease is misplaced; the Court has given no weight to that provision in reaching its decision to dismiss the Complaint. While obviously the Court does not agree with the plaintiffs that their evidence shows the existence of justifiable reliance by Parker and the Condo Owners on the misrepresentation of Dr. Grant’s marital status, and found there was no proximate cause linking the damage alleged and the misrepresentation here, the Complaint nonetheless raised legitimate issues for consideration by the court in this regard and the positions taken by the plaintiffs cannot be labeled as substantially unjustified. The fact that Dr. Grant did make a misrepresentation with the intent to deceive as to his marital status is clear from the record here. As Judge Mitchell of this court has written in the matter of
Mester v. Brevard,
[I]t is undisputed that the listing of monthly payments on the rental application was incomplete. Given the magnitude of the omissions ... [the creditor] had substantial justification for seeking a determination of nondischargeability.Nothing in the record even remotely suggests that [the creditor] pursued his action knowing he had no case or a weak case but hoping that the debtors would settle rather than incur the expense of defending the action.
Id.
at 847- n. 11.
See also Citizens Nat’l. Bank v. Burns,
CONCLUSION
Therefore, while the court finds that Dr. Grant made a misrepresentation of his marital status with Hannis which he knew was false with the intent to deceive, the plaintiffs have failed to prove by a preponderance of the evidence that they justifiably relied upon the misrepresentation and that the damages they claim were proximately caused by the misrepresentation of Dr. Grant. Accordingly, the Complaint is DISMISSED. The prayer of Dr. Grant for an award of costs and attorneys fees pursuant to 11 U.S.C. § 362(d) is DENIED.
The Clerk shall forward copies of this Memorandum Opinion and Order to Kevin Muhlendorf, Esquire, counsel for the plaintiffs and to Lawrence H. Glanzer, Esquire, counsel for the defendant.
Notes
. The Complaint and the Amended Complaint pled as plaintiffs Jeffrey H. Parker, Susan L. Parker, Gwennie L. Lynch and Rebecca Edens, who were alleged to be creditors of Dr. Grant. On April 19, 1999, the plaintiffs moved to substitute or join as a party plaintiff the Executors of the Estate of Gwen Lynch. An order was entered on April 20, 1999 substituting the Executors of the Estate of Gwen Lynch as a party plaintiff in the place of Gwen Lynch. On April 15, 1999, Dr. Grant moved for summary judgment in part alleging that Gwen Lynch was deceased, and, inasmuch as the lease upon which the plaintiffs based their claim was between Dr. Grant and Gwen Lynch, only she among the plaintiffs was entitled to maintain the complaint. At a hearing on the motion for summary judgment conducted immediately prior to the trial here, counsel for the plaintiffs advised the court that Susan L. Parker and Rebecca Edens are the daughters of Gwen Lynch and the sole executors of her estate. Susan L. Parker was advised to be the spouse of Jeff Parker, who in large part managed the condominium which was the subject of the lease but has no ownership interest therein. It is undisputed the subject lease is solely between Dr. Grant, Stephanie Hannis-Grant and Gwen Lynch. Therefore the court partially granted the motion for summary judgment dismissing Rebecca Edens, Susan L. Parker and Jeffrey H. Parker as individual plaintiffs and retaining as plaintiffs in their capacity as Executors of the Estate of Gwen Lynch.
. The Condo was titled, at the time of the entry into the Lease, in the names of Gwen Lynch, Rebecca Edens and Susan Parker, who are collectively referred to as the "Condo Owners.”
. While the Lease was executed by "Stephanie Hannis-Grant,” for consistency the Court will refer to her as Stephanie Hannis or "Hannis.”
. Winner testified by de benne esse deposition.
. Dr. Grant has been a board certified neurosurgeon since 1983.
. Gwen Lynch became deceased after the events which surround the controversies of the Complaint.
. Duckworth was not asked to testify concerning any conversation she may have had with Parker.
. Dr. Grant did not file his petition in bankruptcy under Chapter 11 until September 4, 1998.
. It is not clear from the evidence at trial who actually occupied the Condo during the tenancy and what, if any, family relationship they shared with Dr. Grant or Hannis.
. The amounts claimed for damages by the plaintiffs are as follows:
Microwave $850.00
Repainting $786.25
Kitchen Cabinets $475.00
Carpet Cleaning $121.00
Missing Inventory $500.00
Maid Cleaning $130.00
At trial, the plaintiffs failed to establish that Gwen Lynch had expended monies to replace the microwave, as the only evidence produced was a check made payable to cash in the amount of $900.00 dated December 9, 1997. No witness or document could establish Lynch utilized the proceeds of this check to buy a new microwave for the condo.
. The deposit demand from the electric company introduced by the plaintiffs states on its face, "Security Deposit Non Transferable, Refundable Only Upon Finalization of Account.” Pis.’ Ex. 26. Despite this language, Parker maintains this deposit is fully non-refundable.
. The Condo Owners claim unpaid rent for the months of October, November and December 1997 and for the period January 8-31, 1998, totaling $20,570.00. Applied against this amount is the last month's rental deposit of $5,500.00 made by Dr. Grant/Hannis, for a total rent claim of $15,070.
.Despite the testimony of Parker, the deposit demand for electricity explicitly states on its face that it is refundable upon the finalization of the account. A proper measure of the damage incurred by the reason of the necessity for the Condo Owners to post the $1,626.00 deposit would appear to be better measured by a reasonable return on the loss of use of the monies for the period the deposit would be retained, which period could be estimated. As no such evidence was introduced, the court declines to consider the deposit as part of the damage claim.
. The Lease states the deposit of $ 5,500.00 is "as a deposit against breakage damage or non-payment of utility bills....” Pis.’ Ex. 1, p. 1. While an offset against unpaid rents is not contractually provided for in the Lease, the condo owners would be entitled to offset these monies based upon general principles of set-off.
. The condo owners also claim as damage their costs and attorney fees. No proof of either was offered at the trial.
. Dr. Grant asserted his Fifth Amendment privilege 83 times during his examination by counsel for the Condo Owners.
. Plaintiffs have requested that the court, as the finder of fact in this matter, make appropriate negative inferences from Dr. Grant's use of his Fifth Amendment privilege to decline to answer these questions. See Section II, infra.
.The court at trial took under advisement the objection of Dr. Grant to the deposition transcripts of Winner and Duckworth. See Section I, infra.
. The plaintiffs and defendant agreed to have the depositions taken by telephone and that the court reporter would be present in Norfolk, Virginia, not in the Bahamas.
. Plaintiff’s counsel said to Duckworth: "I'm going to have you sign this deposition, unless you want to waive signing. We would rather have you sign it. We’ll probably mail it and have you notarize it down there.” Pis.’ Ex. 2, p. 26. At the conclusion of Winner’s deposition, plaintiff's counsel stated: "We’ll send you down a copy [of the transcript] and have you read it and sign it and send it back.” Pis’. Ex. 3, p. 21.
. The pretrial order entered in this Adversary proceeding established April 5, 1999 as the cutoff date for all discovery. The trial of the matter was conducted on May 4, 1999.
. The Advisory Committee Notes to Rule 30(e) state as follows:
Various changes are made in this subdivision to reduce problems sometimes encountered when depositions are taken stenographically. Reporters frequently have difficulties obtaining signatures — and the return of the depositions — from deponents. Under the revision pre-filing review by the deponent is required only if requested before the deposition is completed. If review is requested, the deponent will be allowed 30 days to review the transcript or recording and to indicate any changes in form or substance. Signature of the deponent will be required only if review is requested and changes are made.
F.R.C.P. 30(e) Advisory Committee Notes.
. Furthermore, the court stated that "the transcript ... [is] an accurate representation of the deposition testimony.”
Barlow,
. At the time of denial of the oral motion for summary judgment by the plaintiffs, the Court stated from the bench that it was inappropriate that summary judgment be entered solely on the basis of Dr. Grant’s assertion of his Fifth Amendment privilege.
See National Ac
. The plaintiffs at trial appeared to advocate that they had established Hannis was fleeing arrest from federal charges when Dr. Grant rented the Condo and argued that once proven it provides an additional misrepresentation relied upon by Parker. Specifically, the Condo Owners believe that by refusing to answer the question as to whether he knew Hannis was renting the Condo to flee prosecution for serious federal charges, Dr. Grant admitted the same. The plaintiffs then postulate that Dr. Grant, having knowledge of this flight by Hannis, should have disclosed this fact to Parker who would not have rented the Condo to Dr. Grant and Hannis if armed with this knowledge. In their post-trial reply memorandum, the plaintiffs suggest they were improperly foreclosed by the Court’s evidentiary rulings from proving that Dr. Grant by "housing a prostitute who was fleeing federal prosecution” was "truly blameworthy,” apparently attempting to refute Dr. Grant’s reliance in his post-trial memorandum on
In re Baietti,
. At the time of trial, Dr. Grant had not filed a proposed plan of reorganization.
. The Lease in fact was executed on behalf of the Condo Owners by Parker as their agent.
. While Parker, under cross examination by counsel for Dr. Grant, maintained he was an owner of the Condo, the plaintiffs have stipulated the owners of the Condo at all times relevant hereto were Gwen Lynch, Rebecca Edens and Susan Parker.
. Parker in his testimony also recites two instances after execution of the Lease where Dr. Grant made allusions to his "wife” in the context of inducing Parker to put an alarm system in the Condo and as an alternative source for collection of the rent. As these possible misrepresentations occurred after execution of the Lease there can have no effect on the discharge of the debt here.
In re Taylor,
. Once a creditor has provided circumstantial evidence giving rise to this intent, a debt- or cannot overcome the inference by making unsupported assertions of honest intent.
In re Yamada,
. See Section D, supra.
. The inquiry under the standard set forth in Field v. Mans focused on whether the falsity of the representation should have been "readily apparent” to the person to whom it was made. The reasonable reliance standard would focus on whether reliance was reasonable under the "hypothetical average person” standard. 4 Collier on Bankruptcy ¶ 523.08[l][d](15th ed.)
. The reason for Dr. Grant's financial problems which led to his inability to pay the October rent for the Condo is not revealed by the evidence at trial.
. Parker also suggested in his testimony he was influenced by what he described as the alleged purpose of the rental to provide a residence for Dr. Grant and Hannis' "sick mother-in-law;” and stated: "we thought that this was a caring man that cared about his family.” Tr. Transcript, p. 199. This sentiment, however sincere, again appears to be overwhelmed by the candid testimony of Parker of the influence of the substantial deposit and the presumed earning capacity of Dr. Grant.
.The answer tо this interrogatory by plaintiffs was admitted at trial as defendant’s Exhibit F.
. An additional flaw of causation exists for the portion of the damages claimed by plaintiffs consisting of the physical damages to the Condo caused by the occupants during the tenancy of Dr. Grant and Hannis. The plaintiffs claim physical damages in the amount of $2,862.25, representing repainting, kitchen cabinet repair, replacement of a microwave, carpet cleaning, maid cleaning and missing inventory. Pis.' Ex. 32. However, Dr. Grant and Hannis made a deposit upon the execution of the Lease in the amount of $5,500.00 to pay for any “breakage, damage or nonpayment of utility bills” which occurred. Pis.’ Ex. 1, p. 1. The physical damages and amounts unpaid for utility bills totaled less than $5,500.00 and were deducted by the plaintiffs from the breakage deposit. Tr. Transcript, p. 194. Accordingly, the only actual unpaid damages claimed by the plaintiffs is for rent. See supra, p. 105 and accompanying notes.
. The only reported decision where an award of attorney's fees pursuant to § 523(d) was sought after an unsuccessful attempt to declare a debt nondischargeable under § 523(a)(2)(A) and § 523(a)(2)(A) in a chapter 11 proceeding is
In re Sheridan,
. The relevant language of the Equal Access to Justice Act is as follows:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds the position of the United States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 24.12(d)(1)(A) (1999)
. Other cases considering whether there had been a showing of special circumstances to prevent an award of attorney's fees are also deviant from the instant matter. In
In re Shaw,