the court mark and are appearing on behalf of plaintiff appellant nathan jewett prince polish who presented in this case is whether a punch in the face constitutes a willful and malicious injury for purposes of discharge ability under the bankruptcy code of the trial court found that the punch in this case was not willful and malicious and my initial reaction was that was so counter intuitive where could it have come from  then as i looked through the judge's opinion i believe it rises much quotation to the kohout who or whatever it is i apologize for the pronunciation and page consequences of an act and i think the court read that to believe that he had to intend the specific injury and there are about three quotations from page fourteen i believe it is of the opinion where he talks about mr cassiano not intending injury of this gravity that quotation it seems to me first of all if you're talking about intentional torts assault and battery is an intentional tork and if you want to equate the two certainly we fall under willful and malicious to the extent that that's synonymous with an intentional toward i think what that quotation is getting at is something like this you're on a dance for  gyrating and everything else that's your intentional act you accidentally hit somebody who's dancing next to you you don't intend the consequence and therefore it's not an intentional tort it doesn't say however that you have to intend the specific injury that results and we've cited in our brief numerous cases that hold than an assault and battery is in and tensional toward and it's both willful and malicious fact of a couple of cases which brief from the ohio bankruptcy courts come right out and say it's virtually impossible to believe that you don't intend an injury and in fact the trial judge found that he intended to punch my client mr jewett so now we get to the question of whether or not the best will from malicious virtually by definition it is it's willful and the fact that you don't intend or know what the specific injury might be doesn't change the willful nature of the act which is to intentionally punch somebody with respect to the question of malicious we have similar now says that in fact the judge will to the same factors and made the same findings and the same rationale on both of the two different prongs we have in our brief cited what we believe to be many errors in the trial court's construction of the facts some of them simply not borne out by the record  others against them the overwhelming weight of the evidence the most significant factual error that i think contributed to this is the judge said in substance let's look at the uninvolved people and see what they have to say and i think that's a very rational analysis you've got two sides that have different accounts significantly he says mr skier of the bootleg person who was observing it all support of the defendant view and if you look at mr secures testimony what he says is mr jewett was standing up which is itself an ambiguous statement particular in the context of right of other witnesses who indicate that he was in the process of starting to disengage from mr patterson having specifically announced in substance that it's over with you know let's call it a provides to a trial judge necessarily assumes that his findings of fact are adequately and fairly based on the record and in this case we have come up with a lot of reasons why he was wrong that the least of which is the testimony regarding standing employee even if there is some weight some evidence the standard of review is clearly erroneous which by definition says there is some evidence but the court is convinced on an overall reading of the record that it was wrong so the fact that the judge says something is the case may be entitled to deference if it's based on the record but it isn't prohibitive of an independent analysis by this court to see whether or not the record really does support those findings and to determine whether even if there is some such evidence it's clearly erroneous and i'll give you one example the judge puts considerable weight in mr kesey on his testimony that he had heard that miss that heard that five other witnesses say no such thing including two from his own side including mr ski area and when he gives his report to the police after having a week or so to think it out because he's left the scene he says no such thing so yes does is that set yes but he never says when it was said whether it was inside the bar twenty minutes before or anything of that nature so that i think is where the judge says he repeatedly threatened to and implies that it just precipitated the punch that the record frankly just does not support that is that it was said it some time before and we've cited a couple of cases in our reply brief which hold that you know words do not justify a physical attack of this nature then get into the question of maliciousness which i think completely overlaps were largely does and the definition which is provided is that it is either duty or are without could cause a paraphrasing but but the important thing is there is a disc jump to or in the middle of that definition the judge specifically found that he had a duty to assault plaintiff which again seems rather self evident it and so that would satisfy the first part of it so even if there was a good cause that wouldn't be a of all issue i think that assault committing an assault and self defense are logically inconsistent because if it's self defense it's not an assault significant though the tr judge never comes out and says self defense but if he had let's let's look at what are the elements of self defense under michigan law first of all you have a chance to retreat unquestionably did the judge found that to be the case and sad but the players probably would have chased him there is not a six single bit of evidence to support that in fact what mr jewett had don was always in defense of his girlfriend in terms of coming in between them at the bar and turning around when she confronted the group then in full cassiano had done nothing with her give him cause for you know if he had meant to do any harm to paterson on top of him with the size advantage he certainly would have done so when he's he's disengaged he's leaving and the weight of the testimony is he is in the process of getting up hasn't even stood up yet schiro the bootleggers person says that he didn't see it coming he wasn't looking at me didn't seem  his somewhat alcoholic deuced situation like all of them were mr cassiano had come to an unreasonable view that he was in some sort of jeopardy that's not a basis for self defense because it has to be both reasonable and honest under michigan law in addition there is an op to an obligation to retreat to mention that you have somebody that you don't get injuries like this if someone is in a position to defend themselves and you get additional force by punching downward which is exactly the position mr jewett would be n when he's attempting to nothing to objective leap indicate that my client was about to hit and certainly match the legal justification for punching a man and creating the sort of damage when my client was not the aggressor he was not the aggressor visa v mr test guy now at all in this incident other than if you want to call it that interceding between him and the box that's it isn't that an issue of state of mind though in which the bankruptcy judge concluded otherwise it's a stick if it's a reasonable state of mind that's true but you can't you rationally conclude that you are in imminent danger that's that's the term danger and use that flick disproportionate injury to somebody who hasn't touched you yet   six clearly they didn't prove their case their brief brings up kind of nit picking certain findings by the court whether or not mr jude played hockey in high we spent two and a half days in trial he allowed us to do closing briefs based on the transcripts that we order from the trial court he did and then he did a lengthy opinion going through the transcripts there was a motion hearing we did briefs on that we had an hour long oral argument and the judgment to the transcripts the second time we came up with the same conclusion so he carefully and thoughtfully and through all the testimony in this case and he weighed the credibility and they want to second guess how the judge basically interpreted the credibility of the witnesses and how the facts came in and the other thing they emphasize in their brief is that they just want to focus on the punch itself but they're really want to focus on the rest of the facts and in this case i think it's important to set the scene and just freeze the moment i laid there for the panel the freeze the moment where my client collin cassiano saw his friend on the ground after mr jewett grabbed him by the lapels threw his friend down on the floor punched him once twice with the form that's mister cassy honest testimony and after he did that he pops off mister peterson and turns towards my client ok that's when the punch was thrown and what did my client do next cassiano at that point didn't punch or hit mr do it again he went to the aid of his friend helped him off the ground so that happened in a split second ok that was the testimony at trial i was at trial it was that's the test when it happened like that they want to say somehow there is a time out because there's no evidence to support there is some kind of time out there some self serving tussle money from the plaintiff that  hostilities are over but the judge didn't buy that my client felt threatened he has a right to protect himself in fact some of the witnesses that they testify their experts the boxing guy he's six foot one two hundred thirty five pounds he's a stocky guy he's arrested high school mean i played hockey but he's a wrestler and callan's slim his hundred seventy five pounds and the judge felt that was significant and i believe it was as well mr jewett admitted he had sixty eight beers that night and shot we know alcohol fuels violence the only thing i would criticize the judge is they said that they were all intoxicated there is no evidence the record at all that my client was intoxicated but mr jewett admits he was a toxic kid he would have driven that night you know on a rewind jovial conversation that happened really quickly my client has five bases high and four he knows it he gets basically slammed in the back feels a blunt force in his back and he  of his hands are up i want to start anything so but that's the first encounter he has with mr jewett is getting hit in the back some stranger out of nowhere comes out of the bathroom mr jewett admits he's upset and that he was trying to protect his girlfriend but snow on a normal state of mind does that and in he try to say well i slipped in between them too but when i the cross examination of mr jewett he admitted he put two hundred thirty five pounds into my client so that's the first encounter with this person he's my client is physically assaulted in the alley they go out in the alley there's some trash talking and the testimony is from miss lindgren that my boyfriend's a hockey player he's going to be both your asses my client testimony from someone other than collin cassiano that that was said in fact mr jewett doesn't deny it he says i don't remember i might have said that he does not deny he said that so that's a verbal threat so the group's going down the two groups are going down the alley and they go their separate ways so there's like a t so one group the jewish group the plants group goes to the right they have a car waiting because they've been drinking and are going to ride home my clients group goes to the left sorry things done so no problem for some reason mr jewett and mr lynn grant or miss linger and come back jonathan crispin low so happens to be with our group says he looked angry when he's coming back so what happens next we'll go back to why do they come back with only one reason they're coming back and that's to start a fight so miss lingering proceeds to kick gear patterson in the shins mr patterson puts his arm out and there's a dispute over this puts are much she falls down whether she sl he was jealous when they were just talking to his girl now he thinks his girlfriend's been thrown on the ground so imagine how upset he was he tries to say well gee i'm just the peacemaker but that's just not rational in this case he's upset in the trying to pretend this is some kind of dancing on the ice between patterson and mr jewett in took him down softly well again my client testified that there were basically three punches a right punch left punch in a form and his head hit the mr person's head hit the concrete mr passion testify that he was hit so mr chu would clearly wasn't peacemaker here he's a neutral observer isn't seen my client since bloody nose bloody lip my client sees a bloody nose and a bloody lip mr patterson says he was hit he's got a bloody nose and how did that get there a police observed mr patterson lip so what we have is basically the jewish group there's three assaults before my client did anything three assaults the inside the bar assault and the judge also i think makes a good point in his opinion is callous been the peaceful bystander this whole time this is not a dispute there's no dispute here he didn't do anything until he felt threatened he didn't retaliate in the bar he didn't make any verbal trash talking nothing so your position that he was acting in self defense he was acting in self defense he had just cause he had the bankruptcy judge make that mining yes the finding is reasonable belief of imminent the six circuit law as if there's two views of the evidence the case or if two views of the evidence in a case are permissible the choice between those views made by a fact finder is not purely erroneous so there's two views judge the cases they say are distinguishable the talk about extreme facts were someone's not provoked there's no self defense they said a lot of cases the geiger were insurance cases they had to do with intentional acts split second decision reaction to throw upon she didn't always atlanta punch as judge opperman correctly said he had no fight experience and the testimony he is he didn't know what he was doing there is no testimony they intended that just one punch the need his friend judge oper been said to slow him down but it's it's an infrequent injury and this is not you have to look at the facts of each case i don't think there's an in law that says if you just throw a punch that you're automatically willful that's not the geiger standard so again as one of finish with because i have about fifteen seconds mr jewett in his testimony i don't think was very credible and the judge saw it that way he doesn't deny the physical contact and he doesn't deny it threatening mr patterson quick factual observations counsel indicates there is testimony that at the time he struck mr petterson east i'm going to kick your butts i defy you to find anything like that the record we cited where he says is it some undisclosed time before that was spent counsel says there was no dispute that jewett was the aggressor in the bar the two independent bootlegger employees who statements were admitted as part of the police peppermint were trying to antagonize the man and woman and trying to start a fight that's the testimony from the from the impartial witnesses so i think counsel stretching it we said there's no testimony or no evidence to the contrary in terms of the legal issue of self defense our position is that that is an affirmative defense i believe that to be the case in civil litigation criminal litigation may be different if the plaintiff provides a primer facia showing of assault it's our view that the burden is imposed upon the defendant to prove self defense and i would stress the judge never came right out and said that counsel indicates that there's nothing that says just punching somebody is necessarily will fall he said on page fourteen of our brief case that says when one physically hits another enough force to break another straw an alternative the plausible alternative is all but impossible to discern in either case put it one person does not strike a blow to another person's face without intending to injure the other person and that is the cor legal herb we suggest of the trial judge committed he says on page fourteen there's no evidence the defendant knew that punching playing from this location would cause resulting injury that's not necessary if he intends to do some injury whether it's to stop the anything else that is wolf likewise the judge goes on to say that there is no evidence the defendant knew his act would cause injury much less the type of injury so that i think is the legal error over apart from the factual misconceptions that is the legal error in the judge's analysis which  and that is to say when you intentionally punch someone in the face can you now say i didn't you know i broke his bones and committed traumatic brain injury and everything else but she i didn't think anyone could be hurt just by punching him in the face that that is what the judge bought into and that was the argument that defendant off the trial and that is playing legally on