By order of the Bank ruptcy Appe llate Panel, the prec edential effec t of this decision is l imited to the case and parties pursuant to 6th Cir. BAP LBR 8024-1(

b) . See also 6th Cir. BAP LBR 8014-1( c)

. File Na me: 16b0001n.06
BANK RUP TCY AP P ELL ATE PA NEL OF THE SIXT H CIRCUIT

I n re: COL L I

N D. CASCI ANO ) ) Debtor. )

) ) NATHA N J . J UETT ) ) Plaintiff-Appellant, )

)
v. ) No. 15-8013 ) COL L I N D. CASCI ANO ) ) Def endant- Appellee

. )

) )

Appea l from the United States B ankruptc y Court for the Wester

n District of Michig an. Ba nkruptcy Case No. 12- 09912; Adversa ry Procee ding N o. 13-80005. Arg ued: Novembe r 9, 2015
Dec ided and F iled: J anuar y 11, 2016
Be fore : DEL K, HUMPHREY and L L OYD, B ankruptc y Appellate Pane l J udg es.

COUNSEL
ARG UED: Mark R. Be ndure, BEN D URE & THOMAS, Detroit, Michig an, for Appellant. Michae l I

. Conlon, RUNNI

NG, WI SE & FORD, PL C, Trave rse City , Michig an, for Appellee

. ON BRIEF: Mark R. Be ndure, BEN DURE & THOMAS, Detroit, Michig an, for Appellant. Michae l I

. Conlon, RUNNI NG, WI SE & F ORD, PL C, Trave rse City , Michig an, for Appellee

.No. 15-8013, In re Casciano

OP INION

JOAN A. LLOYD , Ba

nkruptcy Appellate Panel J udg e. Thi s i s an appea l from the bankruptc y court’s order afte r trial finding that Nathan J uett (“Plaintiff” ) failed to prove all nece ssary elements of his claim th at an y obliga tion owed to him by Colli n Casciano (“D ebtor” ) is 1 nondischarg eable under 11 U.S.C. § 523(a) (6). For the rea sons stated in this opinion, the Panel conclude s that the Debtor’ s action in punching Plaintiff in the fac e was “willful” within the meaning of 11 U.S.C. § 5 2 3 (a) (6) and that the bankruptc y court failed to analy ze Debtor’ s claim of selfdefe nse under applicable law. There fore , the bankruptc y court’s ruling on whether Debtor’ s action

was “willful” is reve rs ed and the case is rema nded for further proce eding s consistent with this opinion.

I. ISS UES ON APP EAL 1. Whether the bankruptc y court err ed in finding that Plaintiff failed to prove a “willful and malicious injury ” under

11 U.S.C. § 523(a)(6)

. 2. Whether the ba

nkruptcy court e rre d in its analy sis of Debtor’ s self-de fense claim to the Plaintiff’s claim under

11 U.S.C. § 523(a)(6)

. 3. Whether the Panel should g rant Debto r’ s M o tion to Strike Portions of the Appellant’s Br ief (“Motion to Strike”) which ref er to Debtor’ s criminal conviction in state court based on a plea of nolo contendere as inadmissible pursuant to Fe d. R. Evid. 410.

A civil action ini tiated by Plaintiff in the C ircuit Court for the County of Gra nd Trave rse, 1 State of Michig an, File No.: 11-28873, was stay ed subsequent to the filing of Debtor’ s Petition and the claim wa s not liqui dated pr ior to the trial in the adve rsar y proce eding

. -2-No. 15-8013, In re Casciano
II. JURISDICTION AND STANDARD OF REVIEW The Ba nkruptcy Appellate Panel of the Six th Circuit (“B AP”) has jurisdiction to decide this appea l. The United States District Court for the Western District of Michig an has authorized appea ls
to the BA P and no party has timely elec ted to have this appea l hear d by the district court. 28 U.S.C. § 158(b)( 6) an d (c )( 1 ). A “fina l” order of a bankruptc y court may be appea led by rig ht under 28 U.S.C. § 158(a)(1)

. For purposes of appea l, a n order is f

inal if it “ends the litiga tion on the merits and leave s nothing for the court to do but execute the judgme nt.” Midland Asphalt Corp. v. United States , 489 U.S. 794, 798, 109 S. Ct. 1494, 1497 (1989) (interna l quotations and citations omitted). Deter minations of discharg eability are final order s for purposes of appea l. Cash Am. Fin. Servs., Inc.

v. Fox ( In re Fox ), 370 B.R. 104, 109 (B .A.P. 6th Cir. 2007) (quoting Hertzel v. Educ. Credit Mgmt. Corp. ( In re He rtzel) , 329 B.R. 221, 224-25 ( B.A .P. 6th C ir. 2005)).
Dischar g eability deter

minations prese nt mix ed questions of law and fac t. Hogan v. George ( In re George

) , 485 B.R. 478 (table) , 2013 WL 135274 at *1, No. 12-8013 (B .A.P. 6th Cir. J an. 11, 2013) ( citing V

an Ake n v. Van Ak

en ( In re Van Ak

en ), 320 B .R. 620, 622 (B.A .P. 6th Cir. 2005) ). When a mix ed question of law and fac t arises in the bankruptc y context, the revie wing court “must brea k it down into its constituent parts and apply the appropr iate standard of revie w for eac h part.” Bank of Montreal v. Official Comm. Of Unsec ured Creditors ( In re Am. Homepatient, Inc.) , 420 F.3d 559, 563 (6th Cir. 2005), reh’g denied (citations omitted). The appellate court revie ws conclusions of l aw d e n o vo an d fac tual deter minations are revie wed under a clea rly err oneous st andar d. In re Van Ake n , 320 B.R. at 622. “Unde r a de novo standard of revie w, the appellate court must ‘re view questions of law independe nt of the bankruptc y court’s deter mination.’ ” Phillips v. W eissert ( In re Phillips) , 434 B.R. 475, 482 (B .A.P. 6th Cir. 2010) (citing Bailey v. Bailey ( In re Bailey) , 254 B.R. 901, 903 (B .A.P. 6th C i r. 2000)). “A finding of fac t is clea rly err oneous ‘when, although t here is evidenc e to support it, the reviewing court on the entire evidenc e is left with the def inite and firm conviction that a mistake h as been committed.’ ” Riverv iew Trenton R.R. Co. v. DSC, Ltd. ( In re DSC, Ltd.) , 486 F.3d 940, 944 ( 6th Cir. 2007) (citations omitted).

-3-No. 15-8013, In re Casciano
III. FA CTS

On J anuar

y 29, 2011, Plaintiff, a member of the Michig an b ar, and his g irlfriend, J ody L indgr en (“L indgr en”) decide d to take her newly divorce d cousin, Mere dith McNa bb (“Mc Nabb” ) for an ev en i n g out. After visiti ng sever al are a bars and consuming sever al alcoholic drinks, the g roup arr ived at a bar in Trave rse City , Michig an called “B ootleg g ers.” The g roup arr ived some time betwee n midnight and 2 a .m.
On the same evening , the Debtor, along with his friend, Gar rett Petterson (“Petter son”), and

an acqua intance, J onathan Crispin (“Crispin”) , arr ived at Bootleg g ers betwee n 9 p.m. and 10 p.m. The g roup was drinking alcohol and interac ting with other bar patrons. Plaintiff left the two women seate d at a table for a few moments to visit the restroom. During his absenc e, Petterson and Debtor approa ched the two women and eng ag ed them in conver sation. Plaintiff returne d shortly there afte r and was not happy with the g entlemen’ s prese nce. He place d himself betwee n Petterson and Debtor and the two women. Debtor and Petterson claim that Plaintiff bumped Debtor in the lower back or shoulder are a (Cascia

no, Tr. 203, Petterson, Tr. 398) , with Debtor testify ing that Plaintiff “knocke d 2

me fo rw ar d.” (Cascia

no, Tr. 203). Debtor who is 5' 11", 170 to 175 pounds turned around and observe d Plaintiff, who is approximately 6' 0" tall weig hing 230 to 235 pounds and noting that he was much larg er than himself, decide d to walk awa y from the encounte r. Petterson, howeve r, continued
to verba lly eng ag e with Plaintiff with L indgr en joining in the exchang e. The exchang e soon rea ched

a point wher e the employ ees of Bootleg g ers reque sted that Petterson, Debtor and Crispin leave the premises. Although the g roup protested, they wer e unsucce ssful and Debtor, Crispin and Petterson moved towar d the bac k exit of the ba r whe re the ir coa ts were located.

All ref ere nces to docket entries (“D oc. No. ____”) are ref ere nces to the bankruptc y court’s 2 elec tronic case docket for Adver sary Procee ding No. 13-80005. All transcr ipt ref ere nces (“Tr

. ”) are to the trial conducte d on Marc h 12 and 13, 2014. Doc. Nos. 42 and 43 are the transcr ipts of the trial. Refe renc es to exhibi ts are the exhibi ts admitted at trial.
-4-No. 15-8013, In re Casciano

Shortly there afte r, Plaintiff, L indgr en and McNa bb decide d it was also time to leave the bar. They paid their bill and prepa red to exit out of the back door, wher e Debtor, Petterson and Crispin

wer e pre paring

to depar t. Bootleg g ers is a long, narr ow bar, with a front and rea r entra nce. The bankruptc y court found that patrons may acc ess the bar by either the front or back entra nce. The front entra

nce is on Union Street and the rea

r exit fac es an alley that runs north and south para llel with Union Street. The alley intersec ts with another alley running east and west. The west end of the second alley intersec ts with Union. At the easte rn end of the second alley is a b u s i n es s ca l led Mode’s Bum Steer, wher e Plaintiff, L indgr en and McNa bb had planned to meet a ride. Debtor, Petters o n an d Crispin wer e heade d to Petterson’s apar tment on Fr ont Street. I n order for the g roups to g et to their respe ctive destinations, Plaintiff and the women had to g o east and Debtor and his g roup had to g o west when they rea ched the second a lley

. Plaintiff, L indgr en and McNa bb left the rea

r exit of Bootlegge rs first and beg an walking north on the alley

. The Debtor’ s g roup left afte r P l ai n t i ff ’s g roup and was 20 to 30 fee t behind Plaintiff’s g roup. At some point, the parties beg an exchang ing word s an d i n s u l ts. During the exchang e, L indgr en called Debtor and P etterson “douche bag s,” after which someone in Debtor’ s g roup told Plaintiff that he neede d to control his g irlfriend. By this time, Debtor’ s g roup had turned
west on the alley and Plaintiff and h i s g roup wer e proce eding east toward their ride. During this exchang e, L indgr en reversed her direc tion and continued talking to Petterson and moving toward Debtor and his g roup. Plaintiff followed her. T h e b an kruptcy court found that during this time, neither D ebtor nor Mc Nabb we re involved in the ve rbal spar ring

. The ey e witness acc ounts diverg e as to what happene d next. Debtor testified that L indgr en char g ed at Petterson stating that Plaintiff was g oing t o “b eat his ass.” An independe nt witness, Edwin Skiera, an employ ee of t h e b ar , testified that L indgr en walked back toward Debtor and Petterson, a verba l confr ontation ensued and L indgr en kicked Petterson in the shin. Petterson then pushed L indgr en back and she either s l i p p ed on ice or fell down. Plaintiff came to her aid and

wre stled Petterson to the g round. The bankruptc y court found that Plaintiff soon g ot Petterson to be

-5-No. 15-8013, In re Casciano

less bellige rent. Debtor testified that he saw Plaintiff take Petterson to the ground and the side of Petterson’s head hi t the pavement. He thought P etterson w as knocked out. He then saw P laintiff hit Petterson in the fac e while on top of him (Cascia no, Tr. 233-35). Both Debtor an d C ri s p i n testified that Petterson had blood on his fa ce ( Crispin, Tr. 359, Casciano, Tr . 233-34).
As Plaintiff was in the course of standing up, Debtor hit him with his rig ht fist on the left side of hi s fac e. Plaintiff claimed he was in the process of st anding up and getting o ff Petterson when he was blindsided by Debtor’ s punch. Debtor contends that afte r Plaintiff had g otten off Petterson, “he turned in my direc tion and that’s when it happene d. Be cause I was standing may be five, seven fee t awa y from this whole thing so like – – he popped up, leane d into my direc tion, turned all of the way towards me. I hit him with my rig ht f ist on his le ft side of his fac e. So we wer e fac e-to-f ace
. There is no other way

I could hit him.” (Casciano, Tr . 228).
Plaintiff knew immediately that the punch he rec eived was sever e and asked someone to call the police. Debtor, Petterson and Crispin immediately left the sce ne. Plaintiff r efuse d to be taken
to the hos pital at t hat t ime, but later had his father take him to the hospital. His injuries consisted of a f rac ture of the left orbital floor, a bilatera l nasal bone f

rac ture a nd nerve damag e. Debtor, Petterson and Crispin we re eventua lly identified throug h social media. The police interviewe d Petterson a few day s afte r the incident. The office r noted that Petterson had a swollen nose and dried blood around his lip. (Doc

. No. 65, Def endant’ s Ex

. 1.) De btor was c harg ed with assault and ba ttery , a cha

rg e that re sulted in a conviction base d on his plea of nolo contendere

. On November 1, 2011, Plaintiff filed a civil action in the Circuit Court fo r t h e C o u nty of Gra nd Trave rse, State of Michig an, File No. 11-28873, ag ainst Def endants, Debtor and Petterson. The case was schedule d for trial on October 24-26, 2012, but was p o s t poned due to Debtor’ s counsel’s r epre sentation that Debtor w as g oing to f ile a bankr

uptcy petition.
On November 13 , 2 0 1 2 , Debtor filed a Chapter 7 Ba nkruptcy Petition in which he listed Plaintiff as a c reditor on Sche dule F w ith a claim in an unknown amount.

-6-No. 15-8013, In re Casciano

On J anuar

y 7, 2013, Plaintiff instit uted an adver sary proce eding ag ainst Debtor objecting to the di schar g eability of any obliga tion owe d b y Debtor to Plaintiff based on 11 U.S.C. § 523(a) (6) for willful and ma licious injury

. A trial was held in the adver sary proceed i n g o n M arc h 12 and 13, 2014. The bankruptc y court hear d the testimony of L indgr en, McNa bb, S k i er a, P laintiff, Debtor, Wil liam Bustanc e, a box ing instructor who testified on the ty pe of punch nece ssary to cause the ty pe of injuries suffe red by Plaintiff, Crispin and Petterson. The Court also admitted into evidenc e the deposition of Matthew Smit h, M.D., Plaintiff’s Ex hibits 1-5 and Def endant’ s Ex hibits A-C. Both parties filed post-trial closing briefs. ( Doc. Nos. 45, 47.) I n addition to closing brie fs, the court also reque sted ea ch side
to answe r ten specific questions to assist the Court as the trier fac t. Eac h side filed a brief i n response to the bankruptc y court’s que stions. (Doc. Nos. 46, 47.)
On September 5, 2014, the bankruptc y court issued its Opinion and Orde r After Trial holding that the Debtor did not act in “such a m anner as to war rant the exception to discharg e of any obliga tion he may owe the Plaintiff” u n d er 11 U.S.C. § 523(a) (6). (Doc

. No. 50.) On S eptember 18, 2014, Plaintiff filed a Motion for Rehea ring and Debtor filed a Response on October 16, 2014. (Doc

. Nos. 5 1 , 55.) After a hear ing, the bankruptc y court issued its Opinion and Orde r Deny ing Plaintiff’s Motion for Rehea ring on Marc h 13, 2015. (Doc . No. 57.)

IV. DISCUSSIO N A. The Bank ruptcy Court’ s F ind ings of F act ar e not Clear ly Erroneous
Under 11 U.S.C. § 523(a) (6), an individual d ebtor is not entitled to discharg e any debt for willful and malicious injury

. Plaintiff contends that by intentionally p u n ch i n g h i m in the fac e, Debtor acte d willfully and maliciously causing injury

. (Doc

. No. 1.) A willful and malicious injury

o cc u rs “if the debtor (1) intends to cause the conseque nces of his act or (2) believes the conseque nces are substantially cer tain to occur .” In re Taylor , No. 10-50039, 2011 WL 841511, at *4 (B ankr. E.D. Ky

. Mar. 4, 2011) (citing Kennedy v. Mustaine ( In re Kennedy

) , 249 F.3d 576, 580 (6th Cir. 2001)).

-7-No. 15-8013, In re Casciano

I n revie wing a bankruptc y court’s deter mination whether a debtor’s conduct was willful and malicious for purposes of 11 U.S.C. § 523(a) (6), the appellate court applies the cle ar l y err oneous standard. Phillips v. W

eissert ( In re Phillips) , 434 B.R. 475, 483 (B .A.P. 6th Cir. 2010). “Unde r the clea rly err oneous st andar d, the P anel must g i v e d ef er en ce to the bankruptcy court as the finder of fac t.” Id. (citing Sicherman v. Diamoncut, Inc. ( In re Sol Bergman Estate Jewe lers, Inc.) , 225 B.R. 896, 904 (B .A. P

. 6 t h C ir. 1998)). “The bankruptc y court is in the best position to assess the testimony and cre dibilit y of witnesses.” In re Phillips , 434 B.R. at 483 (citing Kaye v. Agripool, SRL ( In re M urray, Inc

. ), 392 B .R. 288, 297 (B.A .P. 6th C ir. 2008)).

[A] lternative interpre tations or differ ing views o f th e e v id e n c e , d o n ot constitute clea r err or. Thurman v. Y

ellow Freight Sys., Inc. , 90 F.3d at 1166 (“Where there are two permissible views of the evidence, the fac tfinder’ s choic e betwee n them cannot be clea rly err o n eo u s
. ”) ; Lyon v. Eiseman ( In re Forbes) , 372 B.R. 321, 334 (6th Cir. BA P 2007) (“When differ ing views of the evidenc e are possible, the bankruptc y court’s finding s cannot be clea rly err oneous.”)

. “The clea rly err oneous standard does not permit this Panel to substitut e its assessments of cre dibilit y in place of the expli cit finding s made by the bankruptc y court.” In re Forbes , 372 B.R. at 334. As l o n g as the bankruptc y court’s finding s are “re asonable and supported by the evidenc e,” the Panel may not overturn them. Id. (quoting DuVoisin v. Foster ( In re S. Indus. Banking Corp.) , 809 F.2d 329, 331 ( 6th Cir. 1987)).
In re Phillips , 434 B.R. at 484.
Plaintiff contends the bankruptc y court made sever al factual findings u p o n wh i ch it based its decision which wer e clearly err oneous. (Appe llant’s Br ., pp. 18-22.) A review of t he findings relied upon by Plaintiff are either not clea rly err oneous in that the court chose to believe testimony of other witnesses that contra dicted the fac ts ref ere nced by Plaintiff in his brief, or the fac ts wer e not signific ant enoug h to support Plainti ff’ s leg al claims.
The Panel must examine these fac ts in deter mining if they are “re asonable and supported by the evidenc e.” In re S. Indus. Banking Corp. , 809 F.2d at 331. I f the Panel is left with a definite and firm conviction that a mistake has been made then the bankruptc y court’s fac tual finding s must be
overturne d.
-8-No. 15-8013, In re Casciano

The bankruptc y court’s fac tual finding s reg arding the parties’ actions that led to Plaintiff’s injury are not clea

rly err oneous. There is ample support in the rec ord for the bank ru p t cy court’s finding s reg arding the events that led up to the punch by Debtor that injured Plaintiff. I n its initial Opinion afte r t ri al , t he bankruptc y court made an err oneous fac tual finding when it stated that Plaintiff play ed high school hockey

. This finding howeve r, was corr ecte d in the Opinion on Rehea ring and as the court noted, did not wa rra nt reve rsal of the ultimate findings by the cour t.
The bankruptc y court’s fac tual finding s wer e based on its deter mination of the cre dibilit y of the witnesses. Fur

thermore , the Court noted, based on “the testimony of the Plaintiff, the Def endant, Mr. Petterson and Ms. L indgr en, that they all wer e intox icated a nd their judg ment was c louded by al co h o l consumption that night.” (Opinion, p. 5). Howeve r, the finding s of the court wer e n o t

unrea sonable, wer e supported by the trial testimony and will not be overturne d as clea rly err oneous.

B. Debtor’ s Actions Wer e Willf ul
Plaintiff contends that the bankruptc y court leg ally err ed in finding that 11 U.S.C. § 523(a) (6) allows dis ch ar g e of civil liability for criminal assault on the g round that the Debtor, in punching Plaintiff, did not know t hat hi s punch “would cause injury .” I n order to prove that any o b liga tion owed by Debtor to Plaintiff should be excepted from discharg e, t h e cr edit or must prove by a preponde ranc e of th e ev i d en ce that a debtor committed an injury that is both “willful” and “malicious.” The absenc e of either one cre ates a discharg eable debt. Markowitz v. Campbell ( In re Markowitz) , 190 F.3d 455, 463 (6th Cir. 1999). Only acts done with intent to cause injury – –and not

mere ly acts done intentionally – –can cause willful and malicious injury

. Kawaauhau v. Geiger , 523 U.S. 57, 61-62, 118 S. Ct. 974, 977 (1998).
Whil e the bankruptc y court’s rec itation of the leg al standard in deter mining whether a claim for “willful and malicious” injury is excepted from di s ch ar ge under 11 U.S.C. § 523(a) (6) was

corr ect, its analy sis of Debtor’s state of mind as be ing de void of the requisite intent or knowledge under § 523( a)( 6) wa s not. On this point the bankr uptcy court stated:

-9-No. 15-8013, In re Casciano

First, the Def

endant testified that he had no fig ht experience and essentially did not know what h e was doing that night. Second, while it is clea r that the Def

endant intended to punch the Plaintiff, ther e is not the necessar y nexus between the punc h and the conseque nces of the act. There is no evidenc e that the Def endant knew that punching the Plaintiff in this location on his fac e would cause the resulting injury to ensue, if any
. Fur

ther, the evidenc e is that the Def endant threw only one punch and did not inflict any other blows upon the Plaintiff. Whil e the Def endant undoubtedly thought that this one punch would slow the Plaintiff down, there is no evidenc e that he believed that the eff

ect of the one punch would be any more than that, and cer

tainly not the ty pe of injury

that it caused.
(Opinion, p. 14.) The bankruptc y court then conclude d that Debtor’ s actions wer e not “willful.” I n other wor ds, that in throwing the punch De btor did not “will or desire ha rm, or believe injury

was substantially

cer tain to occur ” as a

result of his behavior.
Plaintiff contends on appea l that this statement by the bankruptc y court impermissibly added the require ment that he prove that Debtor intended to cause the specific harm that resulted from his punch. Plaintiff is corr ect th at t h is is an incorre ct statement of the law on what constitutes a “willful” injury under § 523(a) (6). The bankruptc y court err ed in its analy sis by requiring Plaintiff to prove that De btor desire d to cause the spec ific injury or har m that resulted fr om the punch.
The bankruptc y court found that Debtor, at a minimum , intended to punch Plaintiff to “slow the Plaintiff down.” (Opinion, p. 14.) I n a case with simil ar fac ts, wher e the debtor threw one punch brea king the cre ditor’s jaw and claimed self- defe nse to an a ction under 11 U .S.C. § 523(a)(6) , the bankruptc y

court g ave little consider ation to the “willful” e lement of the c laim stating: [T] he Def

endant’ s action s wer e, in fac t, “willful” based upon the common sense n o t ion that when one phy sically hits another with enoug h forc e to brea k another ’s jaw, an alterna tive, but plausible explanation is all but impossibl e to discern. See Homan v. Perretti , 172 B.R. 214, 217 (B ankr. N.D. Ohio 1994) (one person does not strike a blow at another ’s fac e without intending to injure the other person.) I nstead, as a defe nse ag ainst the Plaintiff’s cause of action under § 523(a) (6), the Def endant’ s po s ition cente red on a justifiable excuse, there by neg ating the exis tence of any malice on his part.

-10-No. 15-8013, In re Casciano

Kleman v. Taylor (

In re Taylor) , 322 B.R. 306, 309 (B ankr. N.D. Ohio 2004). Simi larly , Debtor intended to throw the punch to slow Plaintiff down. Such action evidenc es an intent to harm and is “willful” under the statute. There fore , the bankruptc y court’s leg al conclusion that Debtor’ s action in throwing the punch wa s not “willful” under the statute wa s in error

and must be re verse d.
C. Self-Defense May Negat e a F ind ing of Malice
The Panel next must consider whether the Debtor’ s actions in claiming self-de fense neg ates the exis tence of malice. T h e t er m “malicious” in the statute has been interpre ted to mean “in conscious disreg ard of one’s d u t i es or without just cause or excuse; it does not require ill-will or speci fic intent to do harm.” W heele r v. Laudani , 783 F.2d 610, 615 (6th Cir. 1986) (citations omitted). The bankruptc y court corr ectly noted that a debtor will rar ely admit to acting in a willful and malicious manner
. Howeve r, both can be inferr ed from the circ umstances surrounding the injury

. (Opinion, p. 11.) (citing O’Brien v. Sintobin ( In re Sintobin ), 253 B.R. 826, 831 (B ankr. N.D. Ohio 2000)).
The bankruptc y court deter mined that while ever

y one owes another individual the duty not to assault th at i n d ividual, the Debtor was “plac ed in a position of having to defe nd himself, thus fo rm ing just cause .” (Opinion, p. 14.) Ba sed on the fac ts, the bankruptc y court mad e t h e l ega l conclusion that Debtor’ s actions wer e not without just cause or excuse. I f corr ect, this finding neg ates any finding of malicious injury and there fore , any obliga tion arising from the injury would be discharg eable

. The court’s finding that the Debtor’ s actions wer e with just cause wer e based on the finding s that Debtor was not the initial ag g ressor inside the bar, that h e wa l k ed awa y when Plaintiff shoved him, that he did not re- eng ag e in the ver bal alter cation outside the ba r in the alley and threw only one punch when Plaintiff stood up looking in his direc tion and was in a position to attack him next. The Court, there fore , inferr ed from these circ umstances that Debtor’ s actions wer e justified and did not meet the leve l of “maliciousness” require d by the statute.
Self-def ense can constitute a justifiable excuse for a defe ndant’s actions and neg ate a claim of malice under § 523( a)( 6). In re Taylor , 322 B.R. at 309. Since it is an aff irmative def

ense, the

-11-No. 15-8013, In re Casciano

debtor bear s the burden of proving the elements of self-de fense

. Id. The bankruptc y court, howeve r, did not discuss the leg al require ments rela ted to the Debtor’ s claim of self-de fense and whether Debtor me t his burden of proof on this iss ue. Dischar g eability actions, as well as the defe nses there to, are g overne d by federa l law. Graffice v. Grim (

In re Grim) , 293 B.R. 156 - 166 (B ankr. N.D. Ohio 2003). Howeve r, the law on self-de fense is an are a wher e bankruptc y courts have looked to both fede ral common law and state law for g uidance

. See , e.g. Vyshedsk y v. Soliman (

In re Soliman ), 53 9 B. R

. 6 9 2 , 701-03 (B ankr. S.D.N.Y. 2015); Hernande z v. Gree ne (

In re Gree ne) , 397 B.R. 688, 694-95 (B ankr. S.D.N.Y. 2008) (ana ly zing self-de fense under both fede ral common law and state law wher e debtors enter ed g uilty pleas in underlying criminal actions) and In re Taylor , 322 B.R. at 3 1 0 ; Estate of Sustache v. Mathews (

In re Mathews) , 433 B.R. 732, 735 (B ankr. E.D. Wis

. 2010) (ana ly zing self-de fense under
state law noting authority on fede ral common law self-de fense is sparse and require s g uidance from state law on the issue).
I n most case s, self-de fense is broug ht as a defe nse to murder, not simple battery

. As a result, Michig an’s common law on self-de fense using non-dea dly force i s s o m ewha t sparse
. Howeve r, Michig an’s legislature codified the common law rule s of self- defe nse i n 2006 in the S elf-D efe nse Act. People v. Dupree , 788 N.W.2d 399, 407 (Mich. 2010); Mich. Comp. L aws Ann. § 780.971 et seq. (West 2006). To the extent t h at t h e codification altere d the common law rule, it did not diminis h an indi vidual’s common law right to use for ce in se lf-def ense. Mich. Comp. L aws Ann. § 780.974 (West 2006). The Self- Def ense A ct states in per

tinent part that: [a] n individual who has not or is not eng ag ed i n t h e co m mission of a crime at the time he or she uses forc e other than deadly forc e may use fo rc e o t h er than deadly forc e ag ainst another individual any wher e he or she has the leg al rig ht to be with no duty to retre at if he or she honestly and rea sonably believes that the use of that forc e is nece s s ar y t o d efe nd himself or herse lf or another individual from the imminent unlawful use of

forc e by another individual. Mich. Comp. L aws Ann. § 780.972( 2) (West 2006).

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Fe dera l courts have cited to the Restatement (Second) of Torts to assist and construe fede ral self-de fense claims under Title VI I and the Fe dera l Tort C l aims Act. See Vanhorn v. Specialized Support Servs., Inc. , 241 F.Supp.2d 994, 1013 (S.D. I owa 2003), Garcia v. United States , No. CI V. 08-0295 J B/WDS, 2010 WL 2977611, at *21 (D.N

. M

. J une 15, 2010). The Second Restatement deals with the use of non-lethal forc e in § 63 stating that an actor is privilege d to use such for ce to preve nt “unprivileg ed harmful or offe nsive contac t or other bodily harm which he rea sonably believes that another is about to inflict intentio n al l y u p on him,” even if the nece ssity to use forc e could be a

voided by retre ating . Restatement (Sec ond) of Tor ts § 63 (1965).
The Michig an statute closely mirrors the standards set forth in the Restatement (Second) of Torts. Thoug h the two standards are slightly differ ent, for the matter befor e the Court, they are not in conflict. Both allow the use of non-lethal forc e i f h o n est ly and rea sonably believed to be

nece ssary to repe l an imminent attack, eve n if retr eat is possible.
The bankruptc y court made numerous fac tual finding s reg arding the parties’ conduct on the evening in question that rela te to the Debtor’ s claim of self-de fense

. Howeve r, the bankruptc y court did not analy

ze these actions under applicable law on self-de fense or deter mine if the Debtor met his burden of proof on that issue. For this rea son, the Panel must rema nd the matter to the bankruptc y court for further proce eding s reg arding the element of “malicious injury ” under § 523(a) (6) and Debtor’ s claim of self- defe nse.

D. Inad m issib ility of Crim inal Co n v i ction s Based on P lea of Nolo Cont endere Under F ed. R. Evid. 410 Debtor r equests that the Pane l strike four r efe renc es in the Plaintiff’s brief that either refe r to matters not in evidenc e befor e the bankruptc y court or are otherwise inadmissible pursuant to Fe dera l Rule of Evidence 410. The four ref ere nces in the Plaintiff’s brief are to Debtor’ s conviction by a nolo contendere plea to assa ult and battery

char g es in criminal cour

t.
There was no mention of the criminal char g es ag ainst Debtor or his plea of nolo contende re and subsequent conviction at the trial or in the bankruptc y court’s Opinion. The only mention of the

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char g e and Debtor’ s plea wer e in the complaint in the adve rsar y proce eding

. Debtor responde d to the alleg ation in his answe r stating that no answe r was require d beca use any such alleg ations wer e inadmissible in the adversa ry proce eding

. The rules of pleading require that an y denial of an alleg ation “must fairly respond to the substance of

the alleg ation.” F ed. R. Civ. P. 8(b)(2), made applicable to adver sary proce eding s in Fe d. R. Ba

nkr. P. 7008. The Debtor’ s answe rs to the alleg ations of the complaint did not fairly meet the substance of t he allega tions and therefor e constit ute an admission under Fede ral Rul e of Civil Procedur e 8(b)( 6). Since the pleading s are part of the rec ord, the matter was in evidenc e befor e the bankruptc y

court.
Under Rule 410, which is made applicable to bankruptc y proce eding s in Fe dera l R u l e o f Ba nkruptcy Procedur e 1101(e) , a plea of nolo contende re is inadmissible in a subsequent civil proce eding broug ht ag ainst th e p ar t y wh o m ade the plea. Fe d. R. Evid. 410(a) (2). The plea constitutes an admission only for the purposes of the criminal case
. Nolo contende re pleas are used
to avoid the eff

ect of a plea of g uilty on an impending civil c ase. “Thus, in a ny subsequent action, whether arising out of the same fact s or not, neither the nolo contende re plea nor the conviction based on t h e plea may be admitted as either an admission, as a judgme nt of conviction or to impeach.” 2 Hon. Ba

rry Russell, Bankruptcy Evidenc e Manual §410:1 (2014-2015)

. The plea
cannot be used as an admission in any civil suit for the same act. Doherty v. Am. Motors Corp. , 728 F.2d 334, 337 ( 6th Cir. 1984).
I n the case of Johnson v. Johns ( In re Johns) , 158 B.R. 687, 690 (B ankr. N.D. Ohio 1993), the bankruptc y court held that a plea of nolo c ontendere by the defe ndant char g ed with unla wfully causing phy sical harm to the plaintiff could not be admitted into e vidence in a nondischarg eability action broug ht under 11 U.S.C. § 523(a) (6). The plea i t s el f i s n ot an admission of g uilt, but an admission of the truth of the fa cts alleg ed in the indictment, information or c omplaint and it is not admissible ag ainst the d ef en d an t who made the plea in any subsequent proce eding ag ainst the defe ndant. In re Johns , 158 B.R. at 689-690. See also Vogel v. Kalit a ( In re Kalit a) , 202 B.R. 889, 896-98 (B ankr. W.D. Mich. 1996) (holding under Michig an law a p l ea of nolo contende re and

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conviction based on the plea has no prec lusive eff ect in subsequent nondischarg eability action broug ht under § 523(a )(6) ).
The Debtor’ s conviction of assault and battery by a plea of nolo contende re is inadmissible in the nondischarg eability proce eding

. I t cannot be used in deter mining the discharg eability of any obliga tion Debtor may

owe the Plaintiff. The ref ore, the Plaintiff’s Motion to S trike is g rante d.

V. CONCLUSION The Panel conclude s that the bankruptc y court err ed when it held the Debtor’ s actions wer e not “willful” under 11 U.S.C. § 523(a) (6). Concerning the malice element, further proce eding s are

nece ssary to deter

mine the leg al eff

ect of the bankruptc y judge ’s finding s of fac t on Debtor’ s claim of self-de fense under applicable law. The bankruptc y court’s order finding Debtor’ s actions in punching Plaintiff wer e not “willful” is reve rsed, and the matter is rema nded to the bankruptc y court for further proce eding s consistent with this Opinion. Any ref ere nces to the Debtor’ s conviction by

a plea of nolo c ontendere to a ssault a nd battery are inadmissible. By

separ ate or der the Panel will g rant De btor’s Motion to St rike.

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