PUBLISH
UNITED STATES BANKRUPTCY APPELLATE PANEL

OF THE TENTH CIRCUIT

________________________________ IN RE STEPHEN CHARLES JUDGE, Debtor.

__________________________________ JAMES W . PERRY, Plaintif

f - Appellee,

v. STEPHEN CHARLES JUDGE, Def

endant - Appellant. BAP No. CO-20-050

Bankr. No. 19-11653 Adv. No. 19-01140 Chapter 7

OPINION

_________________________________ Appeal from the United States Bankruptcy Court

for the District of Colorado

_________________________________ Phillip Jones of

W illiam s, Turner & Holm es, P.C., Grand Junction, Colorado f or Stephen Charles Judge - Appellant. J. Michael Considine, Jr. of J. Michael Considine, Jr., P.C., Philadelphia, Pennsy lvania f or Jam es W . Perry

- Appellee.

_________________________________ Bef ore CORNISH , MICHAEL , and HALL , Bankruptcy Judges.

_________________________________ HALL , Bankruptcy

Judge.

_________________________________ In a scene straight out of a western m ovie, a bar f ight o n t h e W estern Slope of Colorado provides t he backdrop f or this appeal. Appellant Stephen Jud g e ( “Judge”) BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 1 of 13appeals the Order and Judgm e nt o f the United States Bankruptcy Court f or the D istrict of Colorado (the “Bankru p t c y C ourt”) excepting f rom his discharge a state court personal injury judgm ent aris i n g f rom a bar f

ight under 11 U.S.C. § 5 23(a)(6). Finding no error in the Bankruptcy

Court’s f act f inding or legal analy s is, we AFFIRM.
I. Factual and Procedural History
Jam es P erry (“Perry ”) and Judge were bo t h a t t he crowded Derailed Pour House bar in G rand Junction, Colorado (the “Derailed Pour House”) on the evening of January 31, 2015. 1 T he two m e n w ere sitting at bar stools, back to back a nd turned away f rom each other seem ingly absorbed in their own c onversations. 2 Suddenly , Judge a g g r e s s ively elbowed Perry in t h e b a c k. P erry turned and appeared to say som ething to Judge and turned back away f

rom Judge. 3 In response, and o nly a f t e r P e r r y had his back to Judge again, J u dge struck Perry on the head with a glass cof f ee m ug. 4 Perry reacted by hitting Judge with hi s d rink, breaking the glass in J u dge’s f ace. 5 The broken glass injured Perry ’s han d i n the process. 6 By standers, including Thom as Baca (“Baca”), 7 i ntervened in the
f ray and stopped the f

ight f rom escalating f

urther. 8

1 T he brief f

ight was captured on a video cam era at the Derailed Pour House and is consistent with Perry ’s account of the f ight. Appellee’s App. at 1. No video f ootage supports Judge’s account of the f ight or the events leading up to it. Appellee’s App. at 1. 2 I d. 3 I d. 4 I d. Perry suggests a glass cof

f ee m ug is “m uch lighter than a beer m

u g.” Tr. at 43, in Appellant’s App. at 52.

5 A ppellee’s App. at 1. 6 T r . at 20-21, in Appellant’s App. at 29-30. 7 B aca also sustained injuries in the bar f ight. 8 A ppellee’s App. at 1; T

r . at 16-18, in Appellant’s App. at 25-27.

2 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 2 of 13Perry received treatm ent at a h o s p i tal f or t he injuries to his f

ace, neck, a nd hand. 9 Judge also received m edical treatm ent f o r h i s injuries. Judge l ater pled guilty to thirddegree assault. 1 0 P erry , however, was n ot crim inally charged f o r his i nvolvem ent in the
bar f ight. 1 1 Perry and Baca sued Judge in the L a Plata County , Colorado D i s t r ict Court (t h e “ State Court”). Judge def aulted, and the State Court awarded Perry a $150,000 judgm ent and Baca a $75,000 judgm ent on June 2 2, 2018 (th e “ S t a t e Court Judgm ent”),
af ter a dam ages hearing. 1 2
Jud ge subsequently f

iled a chapter 7 petition on M arch 8, 2019. P erry and Baca then f iled an adversary pr o c eeding to have the State Court Judgm ent declared nondischargeable p u r s u a n t t o 11 U.S.C. § 523(a)(6). 1 3 The Bankruptcy C ourt conducted a trial in the adversary proceeding on July 9 , 2 020. Perry , Jud ge, and their c ounsel appeared via video conf

e rence. B aca d i d not appear f or r e a s o n s n o t relevant to this appeal. In addition to the S tate Court J u d g m e n t and the t estim ony of both Perry a nd Judge, the key piece of evidence at trial was the vide o r e c o r d i n g of the bar f ight f rom the Derailed Pour House’s security

cam era. 1 4
F o l l o w i n g trial, the Bankruptcy Court entered the Order and J udgm ent in f avor o f Perry excepting the State C ourt Judgm ent f r o m J u d g e ’ s d i s charge pursuant t o

9 T r. at 19-20, in Appellant’s App. at 28-29. 1 0 Tr. at 25, in Appellant’s App. at 34. 1 1 Tr . at 35, in Appellant’s App. at 44. 1 2 State Court Judgment , in Appellant’s App. at 86. 1 3 Complaint , in Appellant’s App. at 4-6. All f uture ref e rences to “Bankruptcy Code,” “Code,” or “§,” ref er to Title 11 of the United States Code. 1 4 Appellee’s App. at 1. 3 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 3 of 13§ 523(a)(6). 1 5 T he B ankruptcy Court f ound Judge’s self

- s e rving, uncorroborated
testim o ny lacking in credibility

. 1 6 The B ankruptcy Court c o ncluded Perry ’s injuries proxim ately resulted f

r om Judge’s action s , which were intended, or at least were

su b s t a n t i a l l y certain, t o cause injury to Perry

. Judge tim ely f iled a n otice of appeal on Novem ber 16, 2020. 1 7
II. Jurisdiction This Court has j urisdiction to h e a r tim ely -f i led a ppeals f rom ‘f inal judgm ents, orders, and d ecrees’ o f b ankruptcy courts within t he Tenth Circuit with t he parties’
consent. 1 8 An order resolving all claim s asserted i n an adversary proceedin g i s a f inal order f or purposes of 28 U.S.C. § 158(a). 1 9 A nd, neither Perry nor Judge e l e cted f or this appeal to be h e a r d b y t he United States District Court f or Colorado under 28 U.S.C. § 158(c). 2 0 Thus, this Court has jurisdiction over this appeal.

1 5 Order at 5, in Appellant’s App. at 92; Judgment , in Appellant’s App. at 94. The Bankruptcy

Court concluded Baca’s judgm ent against Judge was dischargeable because the recording showed Judge could not see Baca when he struck him . Theref ore, per the Bankruptcy

Court, Judge could not intentionally cause injury to Baca. The Bankruptcy Court denied Baca’s m otion to reconsider. Order at 3, in Appellant’s App. at 103. Baca did not appeal.

1 6 Tr. at 44 and 51, in Appellant’s App. at 53 and 60. Judge provided no evidence f rom witnesses, additional excerpts f rom the video recording, or any statem ents m ade to the police in connection with the bar f ight which, in any

f orm or f ashion, supported his claim s that Perry

“bulled” his way

into the Derailed Pour House and stepped on Judge’s f oot and that Judge acted m erely in self -def ense to actions taken by P erry
. 1 7 Notice of Appeal and Statement of Election , in Appellant’s App. at 104. 1 8 28 U.S.C. § 158(a)(1), (b)(1), and (c)(1). 1 9 Adelman v. Fourth Nat’l Bank & Tr. Co, N.A., of Tulsa ( I n re Durability, Inc.) , 893 F.2d 264, 266 (10th Cir. 1990) (“the appropriate ‘judicial unit’ f or application of [ f inality ] requirem ents in bankruptcy is not the overall case, but rather the particular adversary proceeding” (citing m

ultiple cases)). 2 0 Notice of Appeal at 2, in Appellant’s App. at 105. 4 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 4 of 13III. Issues & Standard of Review

Judge asserts two issues on appeal:
1. W hether the Bankruptcy Court erred in f inding a l l of the injuries
suf f ered by Perry were a result o f a w illf u l and m alicious act by Judge; and
2. W hether, if all of Perry ’s i n j u r i e s were not the result of a willf u l and

m a licious act, the Bankruptcy Court erred in f in d i ng the total judgm ent am o unt nondischargeable.
A bankruptcy court ’ s determ i nation of whether a debt is nondischargeable under § 5 23 is a legal q u e s t i on reviewed de novo . 2 1 W hether a party a cted “willf ully and

m aliciously necessarily i nvolves inquiry into and f inding of i n tent, which i s a question of
f act” reviewed f

or clear error. 2 2 “The am o unt of dam ages is a f

inding of f

act and is clearly

erroneous on l y ‘ i f i t is without f actual support in the record or if , a f ter reviewing all the evidence, we are lef

t with the def

inite and f

i rm c o nvicti o n t h a t a mistake has been

m ade.’” 2 3

2 1 United States v. Victor , 121 F.3d 1383, 1386 (10th Cir. 1997) (citing In re Grynberg , 986 F.2d 367, 369 (10th Cir. 1993)).

2 2 First Am. Title Ins. Co. v. Smith ( In re Smith ), 618 B.R. 901, 910-11 (10th Cir. BAP 2020) (quoting Suotsos v. Johns ( In re Johns) , 397 B.R. 544, 2008 W L 3200096, at *3 (10th Cir. BAP Aug. 8, 2008) (unpublished)).

2 3 Niemi v. Lasshofer , 770 F.3d 1331, 1354 (10th Cir. 2014) (quoting SW Stainless, LP v. Sappington , 582 F.3d 1176, 1183 (10th Cir. 2009)). 5 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 5 of 13IV. Discussion

a. Liability for all injuries under § 523(a)(6) By d esign, the Bankruptcy Code “lim its the opportunity f or a com

pletely

unencum b ered new beginning to the ‘ h o nest but u nf ortunate debtor.’” 2 4 Section 523(a)
ref lects C o n g r ess’ decision to protect honest debtors by excluding certain categories of debts f r om a debtor’s discharge base d o n a d ebtor’s u nacceptable conduct, such as dishonesty , f

raud, or intentional inj u r y . 25 S e ction 523(a)(6), thus, prevents the dam ages arising f ro m a d ebtor’s brutal attack on a creditor f rom being discharged. 2 6 To do otherwise would allow a debtor to escape liability by discharging his judgme n t debt and underm ine t he deterrent ef f icacy o f tort law without serving a n y policy o f t h e B a nkruptcy Code. 2 7 Consequently , § 523(a)(6) excepts f r om di s c h arge debts f

or willf ul and m alicious injury

. To prevail under § 5 23(a)(6), a creditor m ust prove both a w illf

ul act and a

m alicious injury

. 2 8

2 4 Bank One, a Nat’l Banking Ass’n v. Kallstrom ( In re Kallstrom ), 298 B.R. 753, 758 (10th Cir. BAP 2003) (citing Grogan v. Garner , 498 U.S. 279, 287 (1991)).

2 5 Cohen v. de la Cruz , 523 U.S. 213, 217 (1998) (citing G rogan v. Garner , 498 U.S. at 287).

2 6 Jendusa-Nicolai v. Larsen , 677 F.3d 320, 324 (7th Cir. 2012). 2 7 Jendusa-Nicolai , 677 F.3d at 324. 2 8 Panalis v. Moore (

In re Moore ), 357 F .3d 1125, 1129 (10th Cir. 2004); First Am. Title Ins. Co. v. Smith (

In re Smith ) , 618 B.R. 901, 912 (10th Cir. BAP 2020). 6 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 6 of 13b. Willful Injury under § 523(a)(6)

“For an injury to be ‘ w i l l f u l,’ there m

ust be a deliberate or intentional injury , not

m erely ‘a deliberate o r intentional act that leads to injury .’” 2 9 This is a subj ective

st a n dard 3 0 and g enerally encom passes intentional torts: debts resulting f rom recklessness or negligence are not within the scope of § 523(a)(6). 3 1

c. Malicious Injury under § 523(a)(6) Malicious intent is established b y evidence that t he debtor h a d k n owledge of another’s rights and, notwithstanding such k nowl e d g e , p r oceeded t o take action in violation of t hose rights. 3 2 I n determi n i n g i f an injury w as m alicious, “evidence of the debtor’s m otive s , i n c luding any claim ed justif ication or excuse, m

ust be exam ined to determ ine whether the requisite ‘m alice’ in addition to ‘willf ulness’ is present.” 3 3
All the surrounding circum stances, including any justif ication or e xcuse of f ered by t h e d ebtor, a re relevant t o d eterm ine whether t he debtor acted with a culpable state of m i nd vis-a-vis the actual injury c a used t h e c r editor. A willf ul and m alicious injury requires m ore than ne g l i g e n ce or recklessness.

. . . F or an injury to b e “m a licious, ” theref ore, the debtor’s actions m ust be wrongf

ul.

. . . In s u mmary , the totality o f the circum s t ances m ust be e xam ined to determ ine if a wrongf ul stat e o f m ind w as present in [ Debtor] when he caused injury to [ Plaintif

f ]. 3 4

2 9 Smith , 618 B.R. at 912 (quoting Kawaauhau v. Geiger , 523 U.S. 57, 61-62 (1998)).

3 0 Id. (citing Mitsubishi Motors Credit of Am., Inc. v. Longley ( In re Longley) , 235 B.R. 651, 657 (10th Cir BAP 1999)).

3 1 Barenberg v. Burton (

In re Burton ), 463 B.R. 142, 2010 W L 3422584, at *6 (10th Cir. BAP Aug. 31, 2010) (citing Geiger , 523 U.S. at 64).

3 2 Dorr, Bentley & Pech v. Pasek ( In re Pasek) , 983 F.2d 1524, 1526 (10th Cir. 1993) (citing C.I.T. Financial Servs. Inc. v. Posta ( In re Posta) , 866 F.2d 364, 367 (10th Cir. 1989)).

3 3 Smith , 618 B.R. at 919 (quoting Pasek , 983 F.2d at 1527). 3 4 Smith , 618 B.R. at 919-20 (citations om itted). 7 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 7 of 13In short, to be m alicious, “the debtor’s actions m ust be wrongf

ul.” 3 5
d. Judge w i llfully and m aliciously injured Perry
On appeal, Judge does not argue Perry ’s i njury stem m ing f rom breaking the m

ug

over Perry ’s h ead f

ails to satisf

y the willf

ul a n d ma l i cious standard under § 5 23(a)(6). In
f act, a t oral argum e nt, Judge’s coun s e l conceded J u dge’s actions in striking Perry were willf ul and m alicious. Howe v e r , J u d ge argues Perry ’s injuries t o his hand arose when Perry hit Judge in the f

ace with his own glass and not as a result of any of Judge’s actions. Consequently , per Judge, Perry ’ s hand injuries could not b e i n tentionally caused by Judge. Judge f

urther asserts the m ajor i t y o f P e r ry ’s dam ages r esulted f rom the injury to Perry ’s hand rather than to his f ace, having been caused by Per r y ’ s d e f e nsive strike on Judge. Accordingly , Judge argues the a m ount excepted f rom h is disc h a r g e should be apportion e d between the dam a ges f rom the i njury to Perry ’s head versus the injury to Perry ’s hand.
1. Willful Injury Section 523(a)(6) applies to act s d one w ith “the actual intent to cause injury

. ” 3 6
“A willf ul injury m a y be established by direct e v i d e n c e that the debtor acted with the specif ic i n t e n t t o h arm a creditor or the creditor’s property , or by indirect evidence that the d ebtor d esired to cause the injury or bel i e v e d the injury was s ubstantially certain to occur.” 3 7 T he Bankrupt c y Court satisf ied the willf

ulness standard by explaining “Judge

3 5 Id. at 919 (citing Doe v. Boland ( In re Boland) , 596 B.R. 532, 546 (6th Cir. BAP 2019)).

3 6 Panalis v. Moore (

In re Moore ), 357 F.3d 1125, 1128 (10th Cir. 2004) (citing Geiger , 523 U.S. at 57).

3 7 Smith , 618 B.R. at 912. 8 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 8 of 13acted intentionally , and a t the very least his actions were ‘substa n t i a l ly certain to cause
. .

. i njury .’” 3 8 The video clearly establishes Judge’s actions were neither negligent nor reckless - Judge was the initial aggressor provoking, and then attacking, Perry

. Judge struck a n unsuspecting Perry on t he head with a glass m ug with such f

orce it broke. Given the sheer brutality with which J udge struck Perry suddenly and without w arning, “no other conclusion could p o ssibly be reached other than [ Judge] intended to hit [ Perry ], theref ore the act was willf

ul.” 3 9 “[ H]ay

m akers, like m ost g arden-variety punches to the
f ace, are objectively

very likely to cause harm .” 4 0 Contrary to Ju dge’s argum ent, the crucial question is not w hether Judge intended
to s pecif i cally c a u s e h a r m t o Perry ’s hand but whether J udge intended to cause harm to Perry

. 4 1 “[ T ] o constitute a willf ul act under § 523(a)(6), the debtor m u st desire to cause the consequences of his act or belie v e t h a t the c o nsequences are substantially certain to result f rom i t

. ” 4 2 It is clear Judge intended to start a bar f ight, and Judge “intended, or
exp e c t e d , to cause [ ] dam a ge” to Perry

. 4 3 And, the dam age resulting to Perry was proxim ately

caused 4 4 by

Judge’s actions. 4 5

3 8 Perry v. Judge (

In re Judge) , 621 B.R. 34, 38 (Bankr. D. Colo. 2020) (quoting Diamond v. Vickery (

In re Vickery) , 526 B.R. 872, 880 (Bankr. D. Colo. 2015)). 3 9 Green v. Olson (

In re Olson ), 333 B.R. 835, 838 (Bankr. D. Minn. 2003) (quoting Siemer v. Nangle ( In re Nangle ), 274 F.3d 481, 484 (8th Cir. 2001)). 4 0 Berry v. Vollbracht (

I n re Vollbracht ), 276 Fed. App’x 360, 362 (5th Cir. 2007) (unpublished).

4 1 State Farm Fire & Casualty Co. v. Edie ( In re Edie ) 314 B.R. 6, 17 (Bankr. D. Utah 2004).

4 2 Cocoma v. Nigam (

In re Nigam ), 780 F. App' x 559, 563 (10th Cir. 2019) (unpublished) (citing Moore , 357 F.3d at 1129).

4 3 Edie , 314 B.R. at 17. 4 4 The Tenth Circuit Court of Appeals provides “[ u]nder Colorado law, an event is regarded as the proxim ate cause of an injury ‘if

in the natural and probable sequence of 9 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 9 of 13Courts h a v e long allowed an e xception to discharge under § 523(a)(6) t o c over not

only t he dam ages arising f rom a specif

ically intended i n

j u r y b u t also dam ages derivative
of the intended injury

. 4 6 Based on the s e r ies of events depicted in the video of the bar
f ight, it was not error f

or the Bankruptcy

Court to conclude P erry would not have suf f ered the injury to his hand had Judge not f irst struck Perry on the head, s om ething which Judge inescapably intended to do. By hitting Perry on the hea d w ith a glass m ug, Judge intended
to start a bar f

i ght and either intended to harm P erry 4 7 or at least b e l i eved injury was

things, it produced the claim ed injury . It is an event without which the injury would not have occurred.’” Renaud v. Martin Marietta Corp. , 972 F.2d 304, 306 (10th Cir. 1992) (quoting In re Swing Flu Immunization Prod. Liab. , 495 F. Supp. 1188, 1206 (D. Colo. 1980) (unpublished)).

4 5 Perry v. Judge (

In re Judge) , 621 B.R. 34, 38 (Bankr. D. Colo. 2020) (“The Court f urther f inds [ the Plaintif

f ’s] injuries upon which his claim against [ the Def

endant] is based were the proxim ate result of [ the Def endant’s] actions. Even though a portion of [ the Plaintif

f ’s] injuries were sustained when he struck [ the Def endant] with his own glass, the video dem onstrates the cause of the initial aggression was [ the Def endant], and [ the Plaintif

f ’s] claim is based on the injuries he sustained in the course of the altercation as a whole.”).

4 6 Jendusa-Nicolai v. Larsen , 677 F .3d 320, 322 (7th Cir. 2012) (court excepted f rom discharge not only

dam ages arising f

rom beating and sealing plaintif f in a trash can with snow in an unheated garage but also dam ages associated with the am putation of

her toes and m iscarriage resulting f rom such actions as well as the dam ages of her husband and children f or loss of consortium ); G lencoe Holdings, LLC v. Bloom ( In re Bloom ), 622 B.R. 366, 438-40 (Bankr. D. Colo. 2020) (purpose of § 523(a)(6) is to m ake the creditor whole if willf ul and m alicious injury

is proved; thus, the debt excepted extends to all liability f or harm , including direct and consequential dam ages, exem plary dam ages costs and attorney

f ees arising theref

rom ); Sergejev v. Alderman ( I n re Alderman ), No. 19-12626-J7, 2021 W L 866691, at *9 (Bankr. D. N.M. March 8, 2021) (unpublished) (all dam ages arising f

rom the non-dischargeable conduct are non-dischargeable). See, e.g. , Cohen v. de la Cruz , 523 U.S. 213, 218 (1998) (“Once it is established that specif ic m oney or property

has been obtained by f

raud . . . ‘any debt’ arising theref rom is excepted f

rom discharge.”) 4 7 Greutben v. Olson (

In re Olson ), 333 B.R. 835, 838 (Bankr. D. Minn. 2003) (quoting S

iemer v. Nangle (

In re Nangle ), 274 F.3d 481, 484 (8th Cir. 2001).

10 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 10 of 13substantially certain to res u l t f r om his actions. 4 8 I t w as f oreseeable a nd e ven predictable Perry , as the victim

of an aggressive, unexpected assault, would f ight back. 4 9
2. Malicious Injury Malice, on the other h and, requires conduct that i s wrong f u l a n d w ithout just cause

or excuse. 5 0 W hile Judge testif ied he acted in self

-def e nse 5 1 to a g g r e s s i v e actions initiated by Perry , Judge f

ailed to p r esent any evidence corroborating h is claim , s uch as additional excerpts f rom the video recording f rom the D e r ailed Pour House, statem ents m ade to the police at t he tim e o f the f ight, or testim ony o f ey ewitnesses, of which the v ideo ref lects there were m an y . Given the totality of the evidence bef ore the Bankruptcy Court, including the v i deo of the bar f i ght c l early establishing Ju d g e as the aggressor, unexpectedly and aggressively striking P erry o n the head with his g l a ss m ug while Perry ’s b ack was turned to him , and t h e a b s e nce of any credible evidence to the contrary ,

4 8 Cocoma v. Nigam (

In re Nigam ), 780 F. App' x 559, 563 (10th Cir. 2019). 4 9 Colo. Rev. Stat. § 18-1-704(a). 5 0 First Am. Title Ins. Co. v. Smith ( In re Smith ), 618 B.R. 901, 919 (10th Cir. BAP 2020) (citing D orr, Bentley & Pech v. Pasek ( In re Pasek) , 983 F.2d 1524, 1527 (10th Cir. 1993)); AVB Bank v. Costigan ( In re Costigan) , No. 16-80272-TRC, 2017 W L 6759068, at *5 (Bankr. E.D. Okla. Decem ber 29, 2017) (unpublished) (citing Maxfield v. Jennings (

In re Jennings ) , 670 F.3d 1329, 1334 (11th Cir. 2012)); Bertone v. W ormington ( In re W ormington ) , 555 B.R. 794, 800 (Bankr. W .D. Okla. 2016) (f irst citing Fletcher v. Deerman , 482 B.R. 344, 370 (Bankr. D. N.M. 2012); and then citing Tso v. Nevarez ( In re Nevarez ), 415 B.R. 540, 544 (Bankr. D. N.M. 2009)).

5 1 Most courts hold the assertion of self -def e n se acts as an adm i ssion that the underly ing act was intentional, and, in the event that justif ication is not established, an adm ission that the act was m alicious. Owens v. Powell ( In re Powell ), 567 B.R. 429, 437 (Bankr. N.D. N.Y. 2017) (citing Vyshedsky v. Soliman ( In re Soliman ), 539 B.R. 692, 699–700 (Bankr. S.D. N.Y. 2015) (citing Kleman v. Taylor ( In re Taylor ), 322 B.R. 306, 309 (Bankr. N.D. Ohio 2004)). As Judge f ailed to present evidence establishing he acted in self -def ense, it is unnecessary

f or this Court to determ ine if this view should be adopted.

11 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 11 of 13the Bankrupt c y C o u r t did not err i n f inding Judge acted not in self -def ense but rather without justif

ication o r e xcuse, i.e., with m alice, in s triking P e r r y head and initiating the bar f ight. Quite sim

ply , n o evidence exists that Judge’s actions were justif ied or with just cause, and the Bankruptcy Court did not err in so concluding.
As s e t f o r th above, P erry ’s injuries proxim a tely resulted f rom Judge’s i ntentional and u n j u s t i f ied a ggressive strike on Perry , and the dam ages arising theref rom were properly excepted f

rom Judge’s discharge under § 523(a)(6).

e. Total nondischargeable am o unt Judge argues the dam a ges awarded in th e State Court Judgm ent were based on both negligence and assault and battery , with n o apportionm e n t b e t w e en the two. 5 2
Accordin g t o J u d g e , the Bankruptcy Court erred in e x cepting t he f ull am o unt of the State
Court Judgm ent f

rom Judge’s d i scharge. The problem with s u c h a rgum ent is t he record does not contain the c om pl a i n t i n t h e State Court Action. The State Court Judgm ent

m erely states that judgm ent is granted in f avor of Perry and Baca and against Judge on the
f irs t a n d f if t h claim s. The State Court Judgm ent contains no recitation as to what the f irst and f if t h c laim s a re. W ithout t he com plaint i n t he State Court Action b eing included in

5 2 Judge also suggests, without authority , that the State Court Judgm e nt was a def ault judgm e nt requiring Perry to establish dam ages in the Bankruptcy Court. However, while a judgm ent im p osing liability

on Judge was entered in the State Court Action based on his def

ault, the State Court Judgm ent im posing dam ages is clear that Judge was present f

or the hearing to determ ine dam ages. S tate Court Judgment , in Appellant’s App. at 86. Moreover, a def ault judgm ent in Colorado can have preclusive ef f ect in a bankruptcy

court. Ries v. Sukut (

In re Sukut ), 357 B.R. 834, 838 (Bankr. D. Colo. 2006) (citing Evans v. Dunston ( In re Dunston ), 146 B.R. 269, 277 (D. Colo. 1992)) (Generally , Colorado courts give preclusive ef f e c t to def ault judgm ents provided the def e ndant had a f

u ll and f a ir opportunity

to present his case). 12 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 12 of 13the a

ppellate record, there is no evidence the B ankruptcy C ourt abused i t s d i s c retion in excepting the entire S tate Court Judgm ent f rom Judge’s di s c harge

. 5 3 “The f ailure of [ Judge]

. . . to inc l ude i n the appendix the docum ent that controls the resolution of the issues on appeal

. . . deprives [ him ] of the right t o challenge the jud g me n t ” 54 o f t he Bankruptcy

Court. The Bankruptcy Court e xcepted t h e entire S tate Court Judgm e nt f rom Judge’s discharge because “the video dem onstrates the cause of the initial a g g r ession was Judge, and P erry ’s claim i s based on injuries h e sustained in the course o f the altercation as a whole.” 5 5 One who starts a bar f ight is neither honest nor unf ortunate and is not entitled to discharge liability associated wi t h s u c h bar f ight pursuant t o § 523(a)(6). 5 6 As set f orth above, such conclusion is am ply supported by the rec o r d and applicable law a nd is not clearly erroneous. V. Conclusion Judge’s act of s t r i k i n g P e r r y on the head w ith a glass m u g began t he series of
events leading not o n l y t o injury to Perry ’s f ace and neck but also to h is hand. T he Court
f inds no error in the Bankruptcy Court’s f actual f indings or l egal c onclusions. Accordingly , the Bankruptcy Court’s decision is AFFIRMED.

5 3 Tilton v. Capital Cities/ABC, Inc. , 115 F.3d 1471, 1474 (10th Cir. 1997). 5 4 Travelers Indemnity Co. v. Accurate Autobody, Inc. , 340 F.3d 1118, 1121 (10th Cir. 2003).

5 5 In re Judge , 621 B.R. 34, 38 (Bankr. D. Colo. 2020). 5 6 Judge argued, without authority , the exception f rom discharge under § 523(a)(6) should apply

only to Judge’s initial strike to Perry ’s head and not to the natural and f orseeable consequences evolving f rom his actions. The Court, likewise, could f ind not support f or such argum ent and f

inds it runs counter to the goal of protecting the honest but unf ortunate debtor. 13 BAP Appeal No. 20-50 Docket No. 37 Filed: 07/20/2021 Page: 13 of 13