In re: Brian George v. ( 2013 )

By order of the Bankruptcy Appellate Panel, the precedential effect
of this decision is limited to the case and parties pursuant to 6th
Cir. BAP LBR 8013-1(b). See also 6th Cir. BAP LBR 8010-1(c).
File Name: 13b0002n.06
BANKRUPTCY APPELLATE PANEL OF THE SIXTH CIRCUIT
In re: Brian Keith George )
and Olga George, )
)
Debtors. )
_____________________________________ )
)
)
Michael Hogan and Anette Hogan, ) No. 12-8013
)
Appellants, )
)
v. )
)
Brian Keith George and Olga George, )
)
Appellees. )
)
Appeal from the United States Bankruptcy Court
for the Eastern District of Kentucky
Case No. 09-50847, Adv. Case No. 09-05065
Argued: November 13, 2012
Decided and Filed: January 11, 2013
Before: EMERSON, McIVOR, and PRESTON Bankruptcy Appellate Panel Judges.
____________________
COUNSEL
ARGUED: Thomas L. Canary, Jr., MAPOTHER & MAPOTHER, P.S.C., Lexington, Kentucky,
for Appellants. John E. Davis, DAVIS LAW OFFICE, Lexington, Kentucky, for Appellees.
BRIEFED: Thomas L. Canary, Jr., MAPOTHER & MAPOTHER, P.S.C., Lexington, Kentucky,
for Appellants. John E. Davis, DAVIS LAW OFFICE, Lexington, Kentucky, for Appellees.
____________________
OPINION
____________________
MARCI B. McIVOR, Chief Bankruptcy Appellate Panel Judge.
Michael Hogan and Anette Hogan (“Appellants”) filed an adversary complaint seeking to
have a $513,000 debt owed to them by Brian Keith George and Olga George (“Debtors”), declared
nondischargeable pursuant to 11 U.S.C. § 523(a)(2) and (a)(6). The Appellants’ appeal the
bankruptcy court’s order court granting partial summary judgment and excepting from discharge for
fraud under 11 U.S.C. § 523(a)(2)(A), damages in the amount $171,000. For the reasons that follow,
the Panel affirms the bankruptcy court’s order.
STATEMENT OF ISSUE
The issue presented in this appeal is whether the bankruptcy court erred in determining that
$171,000, a portion of the $513,000 in total damages awarded in a Colorado state court judgment,
was nondischargeable.
JURISDICTION AND STANDARD OF REVIEW
The Bankruptcy Appellate Panel of the Sixth Circuit has jurisdiction to decide this appeal.
The United States District Court for the Eastern District of Kentucky has authorized appeals to the
Panel, and a final order of the bankruptcy court may be appealed as of right pursuant to 28 U.S.C.
§ 158(a)(1). For purposes of appeal, a final order “ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States,
489 U.S. 794, 798, 109 S. Ct. 1494, 1497 (1989) (citations omitted). An order granting summary
judgment is a final order. Buckeye Ret. Co., LLC v. Swegan (In re Swegan), 383 B.R. 646, 649
(B.A.P. 6th Cir. 2008). “A bankruptcy court’s judgment determining dischargeability is a final and
appealable order.” Cash Am. Fin. Servs., Inc. v. Fox (In re Fox), 370 B.R. 104, 109 (B.A.P. 6th Cir.
2
2007) (quoting Hertzel v. Educ. Credit Mgmt. Corp. (In re Hertzel), 329 B.R. 221, 224-25 (B.A.P.
6th Cir. 2005)).
The bankruptcy court’s final order granting the Appellants’ motion for summary judgment
is reviewed de novo. See Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 635 (6th Cir. 2010). De
novo review requires the “appellate court [to determine] the law independently of the trial court’s
determination.” O’Brien v. Ravenswood Apartments, Ltd. (In re Ravenswood Apartments, Ltd.), 338
B.R. 307, 310 (B.A.P. 6th Cir. 2006).
Determinations of dischargeability under 11 U.S.C. § 523 are conclusions of law reviewed
de novo. Ewers v. Cottingham (In re Cottingham), 473 B.R. 703, 705 (B.A.P. 6th Cir. 2012)
(citation omitted). “Under a de novo standard of review, the reviewing court decides an issue
independently of, and without deference to, the trial court’s determination.” Gen. Elec. Credit
Equities v. Brice Rd. Develops., LLC (In re Brice Rd. Develops., LLC), 392 B.R. 274, 278 (B.A.P.
6th Cir. 2008). However, the factual findings underlying the ruling on dischargeability are upheld
on appeal unless they are clearly erroneous. In re Cottingham, 473 B.R. at 705 (citations omitted);
see also Van Aken v. Van Aken (In re Van Aken), 320 B.R. 620, 622 (B.A.P. 6th Cir. 2005)
(dischargeability determinations present mixed questions of law and fact; bankruptcy court’s
conclusions of law are reviewed de novo, findings of fact are reviewed for clear error). “A finding
of fact is clearly erroneous ‘when although there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction that a mistake has been committed.’”
In re Brice Rd. Develops., LLC, 392 B.R. at 278 (quoting Riverview Trenton R.R. Co. v. DSC, Ltd.
(In re DSC, Ltd.), 486 F.3d 940, 944 (6th Cir. 2007)).
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FACTS
The Appellants commenced a suit against the Debtors and other defendants1 in the first
District Court of Jefferson County, Colorado (Case No. 07 CV 6520) (“Colorado litigation”). The
State Court complaint was later amended and included the following claims:
(1) Misrepresentation/Fraud in the Inducement; (2) Breach of Contract; (3) Negligent
Misrepresentation; and (4) Breach of Statutory Duty; (5) Civil Conspiracy; (6) Bad Faith Violation
of the Colorado Consumer Protection Act; and (7) Exemplary Damages (Adv. Case Dkt. #1, Exhibit
A, Complaint). Subsequent to the filing of the amended State Court complaint, the Debtors’ filed
a case under chapter 13. The chapter 13 case was voluntarily dismissed by an order entered on
September 12, 2008. After the chapter 13 case was dismissed, the Appellants resumed the Colorado
litigation. As summarized by the bankruptcy court, the facts leading to the commencement of the
Colorado litigation include:
[T]he Defendants were the owners of property in Colorado. . . . In
December 2005, they listed the property for sale, completing a
Seller’s Property Disclosure Form (“the Disclosure Form”) as part of
the process. The Defendants had been involved in prior litigation
concerning numerous defects in the construction of the Property, and
received a settlement in that regard. None of those proceeds were
used to effect repairs on the Property.
In February 2006, the Plaintiffs began negotiating for the purchase of
the Property. In the course of the negotiations, the Plaintiffs asked
the Defendants about structural defects or issues in regard to the
Property and were told there were none. In July 2006, the Plaintiffs
entered into a real estate contract to purchase the Property from the
Defendants. Prior to the execution of the contract, the Defendants
tendered the Disclosure Form to the Plaintiffs; the Disclosure Form
was incorporated into and made part of the contract. The Defendants
became aware of additional defects in the Property after their
execution of the Disclosure Form. In the summer of 2006, they
1
The other defendants include: (1) Woodside Realty Company (Evergreen) d/b/a Remax
Alliance Evergreen; (2) Tupper Briggs, a licensed real estate broker affiliated with Woodside Realty
Company; and (3) Alice Carmody, a licensed real estate broker affiliated with Woodside Realty
Company.
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contracted for repairs to the Property’s sewer/septic system, but did
not reveal this to the Plaintiffs.
The Plaintiffs and Defendants closed on the sale of the Property on
August 31, 2006, and the Plaintiffs took possession of it. Thereafter,
the Plaintiffs discovered multiple additional defects involving the
sewer/septic system, a retaining wall, flashing under logs and around
the deck, the deck foundation, foundation walls, and French drains.
(Adv. Case Dkt. # 34, Memorandum Opinion, pp. 1-2).
These allegations were tried before a jury and a verdict and judgment were entered in the
Appellants’ favor on the First (Misrepresentation/Fraud in the Inducement), Second (Breach of
Contract), Third (Negligent Misrepresentation), and Seventh (Exemplary Damages) claims. As
required under Colorado law in civil liability cases with multiple parties, the jury completed a
separate special verdict form for each claim included in the complaint. On the claim of fraud, the
special verdict form (“Special Verdict form”) asks the jury, the following questions:
1. Do you find that the plaintiffs, Michael Hogan and Anette
Hogan, are entitled to recover damages from the defendant,
Brian George and Olga George, on the plaintiffs’ claim of
fraud . . . .
ANSWER: YES
...
4. Taking as 100 percent the combined negligence or fault that
caused the Plaintiffs’ damages, what percentage of the
Plaintiffs’ damages was caused by the negligence or fault, if
any, of each of the Defendants from whom you have found
the Plaintiffs is entitled to recover.
...
Percentage, if any charged to Defendant,
Brian George: 50%
Percentage, if any charged to Defendant,
Olga George: 50%
5
...
State the total amount of Plaintiff’s damages . . . caused by the
combined negligence or fault of all the parties and the designated
nonparties.
ANSWER: $171,000.00
(Adv. Case Dkt. #11, Exhibit 3).
The jury also completed a Jury Inquiry and Response form (“Jury Inquiry form”), which
states as follows:
You have awarded actual damages against the Georges and in favor
of the Hogans on more than one claim. Your actual damage awards
were $171,000 on the breach of contract claim, $171,000 on the
negligent misrepresentation or concealment claim, and $171,000 on
the deceit based on fraud claim.
...
What is the total amount of actual damages suffered by Hogans
because of the conduct of the Georges? $513,000.00.
(Adv. Case Dkt. #5, Answer to Complaint, Exhibit 1).
Finally, an Order for Entry of Judgment (“Colorado Judgment”) was entered by the Jefferson
District Court Judge, Christopher J. Munch, sustaining the jury verdict. The Colorado Judgment
avers:
THIS MATTER having come before the Court for Trial to a Jury of
Six, the Jury having rendered its verdicts on Feb. 12. 2009 and the
Court having reviewed the verdicts rendered by the Jury does hereby
enter Judgment pursuant to C.R.C.P. 58(a) in favor of the Plaintiffs
Michael Hogan and Anette Hogan and against the Defendants Brian
George and Olga George as follows:
1. On Plaintiffs’ First Claim for Relief -
Misrepresentation in the Inducement, on Plaintiffs’
Second Claim for Relief - Breach of Contract and on
Plaintiffs’ Third Claim for Relief - Negligent
Misrepresentation judgments in favor of the Plaintiffs
Michael Hogan and Anette Hogan and against the
Defendants Brian George and Olga George jointly and
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severally for actual damages of $513,000 hereby
enter. The judgments entered on each claim for relief
herein are in the alternative. Pursuant to the verdict of
the Jury total actual damages awarded to the Plaintiffs
are $513,000.00. The judgments entered hereby shall
bear interest at the statutory rate from and after
August 31, 2006.
2. On Plaintiffs’ Seventh Claim for Relief -
Exemplary Damages judgment in favor of the
Plaintiffs Michael and Anette Hogan and against
Defendant Brian George for exemplary/punitive
damages of $93,500.00 hereby enters. The judgment
entered hereby shall bear interest at the statutory rate
from and after Feb. 12, 2009.
3. On Plaintiffs’ Seventh Claim for Relief -
Exemplary Damages judgment in favor of the
Plaintiffs Michael and Anette Hogan and against the
Defendant Olga George for exemplary/punitive
damages of $93,500.00 hereby enters. The judgment
entered hereby shall bear interest at the statutory rate
from and after Feb. 12, 2009.
(Adv. Case Dkt. #1, Exhibit B, Order for Entry of Judgment). The Colorado Judgment was not
appealed.
On March 23, 2009, Brian Keith George and Olga George filed a petition for relief under
chapter 11 of the Bankruptcy Code, which was subsequently converted to a case under chapter 7 on
October 21, 2009. The bankruptcy case was assigned to Judge William S. Howard.
On April 28, 2009, the Appellants filed an adversary complaint seeking to have the $513,000
debt owed to them by the Debtors based upon a Colorado State Court Judgment, declared
nondischargeable pursuant to 11 U.S.C. § 523(a)(2) and (a)(6) (Adv. Case No. 09-05065).
On August 26, 2009, the Appellants moved for summary judgment on their complaint. The
Appellants argued that all the elements necessary to prove their claims for fraud and negligent
7
misrepresentation under 11 U.S.C. § 523(a)(2)(A), and for willful and malicious injury to property
under § 523(a)(6), were actually litigated and determined by the jury in the Colorado litigation. The
Appellants argued, therefore, that the Amended Complaint, the jury instructions, verdicts and State
Court Judgment provide a basis for finding the Colorado Judgment nondischargeable under
11 U.S.C. § 523(a)(2)(A) and (a)(6).
On November 12, 2009, the bankruptcy court issued a memorandum opinion and order
granting summary judgment on the Appellants’ claim under § 523(a)(2)(A), but denying summary
judgment on the Appellants’ claim under § 523(a)(6). Although the Colorado litigation resulted in
a judgment totaling $513,000, the bankruptcy court only awarded summary judgment on the
Appellants claim for damages of $171,000 and for punitive damages in the amount of $187,000,
based on their claim for fraud under § 523(a)(2)(A). The bankruptcy court considered all the
elements of fraud under Colorado law and found that these elements satisfied the requirements for
determining nondischargeability under § 523(a)(2)(A).
The bankruptcy court, however, concluded that there were genuine issues of fact that
precluded a finding of summary judgment on Appellants’ claim for willful and malicious injury to
property under § 523(a)(6). The bankruptcy court reasoned that summary judgment could not be
granted because the Appellants had failed to show that the debt set forth in the Colorado Judgment
was based on an injury that was both willful and malicious. The bankruptcy court examined the jury
instructions and pointed out that the jury in the Colorado litigation had been asked to determine
whether the injury to the Appellants was either willful or malicious, but not both, as required under
§ 523(a)(6). See Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 464 (6th Cir. 1999).
Therefore, the bankruptcy court held that the Colorado Judgment does not have preclusive effect on
the issue of willful and malicious conduct.
The bankruptcy court also denied summary judgment on the Appellants’ claim for negligent
misrepresentation under § 523(a)(2)(A) because this section of the Bankruptcy Code does not include
a cause of action for negligent misrepresentation. “In order to demonstrate that a debt is
8
nondischargeable under that section, it must have been incurred by means of ‘false pretenses, a false
representation, or actual fraud.’” (Adv. Case Dkt. #40). Therefore, the bankruptcy court held that
the Colorado Judgment does not have preclusive effect on the issue of negligent misrepresentation.
The Appellants filed a motion to reconsider the bankruptcy court’s order, and the Debtors
filed a response. The bankruptcy court issued a memorandum opinion denying Appellants’ motion
to reconsider.
After the bankruptcy court’s denial of the Appellants’ motion to reconsider, the Appellants
filed an appeal from the bankruptcy court’s order granting partial summary judgment (BAP Case
No. 10-8002). On May 18, 2011, the Bankruptcy Appellate Panel held that it lacked jurisdiction to
hear the appeal under 28 U.S.C. § 158(1), because the order granting partial summary judgment was
not a final, appealable order. Specifically, the Bankruptcy Appellate Panel held that summary
judgment had only been granted on one theory of Appellants’ complaint and “the remaining claims
against the Debtors were neither dismissed nor otherwise resolved. Thus, the decision the
Appellants seek to appeal is not final.” Id. As a result, the Bankruptcy Appellate Panel dismissed
the appeal and remanded the case back to the bankruptcy court.
Upon remand of the case to the bankruptcy court, a new bankruptcy judge, Judge Tracey N.
Wise, was assigned to hear the remaining issues in the Debtors’ case. On July 12, 2011, the
Appellants filed a “Motion for Summary Judgment to Fix Damages” associated with the bankruptcy
court’s prior finding on the fraud claim. The motion sought a judgment declaring nondischargeable
the entire amount owed to them by the Colorado Judgment. On September 7, 2011, the court held
a hearing on the Appellants’ motion for summary judgment. At the hearing, the parties agreed to
brief the issues of whether attorneys fees and costs awarded to Appellants in the Colorado litigation
and/or attorneys fees incurred by the Appellants in pursuit of the adversary proceeding are excepted
from discharge under § 523(a)(2)(A). The Appellants also waived their right to a trial on the
remaining issues regarding the dischargeability of the negligent misrepresentation claim under
§ 523(a)(2)(A) and the willful and malicious injury claim under § 523(a)(6).
9
On September 14, 2011, the Appellants filed a formal waiver as requested by the bankruptcy
court. The Appellants also filed a Statement of Attorney Fees and Costs, Joint Stipulations of Fact,
and briefs on the issue regarding attorney fees and costs.
On February 1, 2011, the bankruptcy court entered a memorandum opinion denying the
Appellants’ motion for summary judgment. The opinion also held that the debt due the Appellants
for attorneys fees and costs was excepted from discharge. The bankruptcy court held that the
Appellants’ motion for summary judgment “is merely an untimely Motion to Reconsider,” and
declined to revisit or alter the issues previously decided by Judge Howard. The bankruptcy court
noted that the Appellants had waived their remaining causes of action rather than proceed to trial,
leaving only the issues regarding attorneys fees and costs. The bankruptcy court determined that the
attorneys fees and costs awarded to the Appellants in the Colorado litigation in the amounts of
$96,083.50 and $56,287.90, and attorneys fees and costs incurred in prosecuting the adversary
proceeding in the amount of $10,458 and $250, were excepted from discharge under § 523(a)(2)(A).
On March 21, 2012, the bankruptcy court issued an order altering and amending the judgment
making the same a final adjudication. The bankruptcy court further ordered that the claims in
Appellants’ original complaint that had been waived be dismissed with prejudice.
The Appellants filed a notice of appeal in which they challenge the bankruptcy court’s
holding in the original judgment that the “debt to the Plaintiffs for damages in the amount of
$171,000.00 awarded on their claim for fraud is nondischargeable.” (Adv. Case Dkt. #92). No
appeal was taken from the bankruptcy court’s award of attorneys fees and costs.
DISCUSSION
Pursuant to 11 U.S.C. § 523(a)(2)(A),
(a) A discharge under section 727, 1141, or 1328(b) of this title does
not discharge an individual debtor from any debt -
10
(2) for obtaining money, property, services, or an
extension, renewal, or refinance of credit, by-
(A) false pretenses, a false representation, or actual
fraud, other than a statement respecting the debtor’s or
an insider’s financial condition . . .
A creditor seeking an exception to discharge under § 523(a)(2)(A) must sustain its burden by a
preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654 (1991).
The doctrine of collateral estoppel applies in dischargeability proceedings. Grogan v.
Garner, 498 U.S. 279, n.11, 111 S. Ct. 654, 658, n.11 (1991); Bay Area Factors v. Calvert (In re
Calvert), 105 F.3d 315 (6th Cir. 1997). The doctrine of collateral estoppel prevents an issue from
being relitigated where the issue of fact or law was actually litigated and necessarily decided in a
prior action between the same parties. In re Markowitz, 190 F.3d at 461. The bankruptcy court must
make its own determination regarding the dischargeability of the debt, but that determination may
be governed by factual issues which were actually and necessarily decided by the state court. Vogel
v. Kalita (In re Kalita), 202 B.R. 889, 894 (Bankr. W.D. Mich. 1996). The bankruptcy court must
give a state court judgment the same preclusive effect that judgment would have in state court unless
the Full Faith and Credit Statute, 28 U.S.C. § 1738, provides an exception. In re Calvert, 105 F.3d
at 317.
The bankruptcy court in the instant appeal found that the state court judgment is entitled to
full faith and credit on the Appellants’ claim for fraud under § 523(a)(2)(A) and damages resulting
from Debtors’ fraud. The bankruptcy court analyzed the factors used by Colorado courts2 when
2
Colorado courts apply the following factors to determine whether the doctrine of collateral
estoppel applies:
(1) the issue sought to be precluded is identical to an issue actually
and necessarily determined in a prior proceeding; (2) the party against
whom estoppel is asserted was a party to or is in privity with, a party
to the prior proceeding; (3) there was a final judgment on the merits
in the prior proceeding; and (4) the party against whom the doctrine
is asserted had a full and fair opportunity to litigate the issue in the
prior proceeding.
11
applying the doctrine of collateral estoppel and held that all the factors were present, namely: (1) the
issues of actual fraud and damages considered by the bankruptcy court are identical to the issues of
fraud and damages determined in the Colorado litigation; (2) the parties in the bankruptcy court
proceeding are the same parties in the Colorado litigation; (3) there was a valid and final judgment
on the merits of the fraud claim and damages; and (4) the Debtors had a full and fair opportunity to
litigate the issues of fraud and damages in the proceeding in Colorado. The bankruptcy court,
therefore, found that the Appellants were entitled to judgment as a matter of law on the allegations
of their complaint regarding fraud and resulting damages.
The Appellants do not challenge the bankruptcy court’s determination that the elements of
fraud established in the Colorado litigation are sufficient to establish fraud under § 523(a)(2)(A).
Instead, the Appellants challenge the bankruptcy court’s holding that $171,000, rather than the entire
judgment amount of $513,000 awarded in the Colorado litigation, was nondischargeable due to
fraud. In reviewing the bankruptcy court’s determination that only a portion of the damages
awarded in the Colorado litigation, are nondischargeable under § 523(a)(2)(A), the appellate court
applies the clearly erroneous standard. Pursuant to the clearly erroneous standard, the Panel must
give deference to the bankruptcy court as the finder of fact. Sicherman v. Diamoncut, Inc. (In re Sol
Bergman Estate Jewelers, Inc.), 225 B.R. 896, 904 (B.A.P. 6th Cir. 1998). The bankruptcy court
is in the best position to assess the evidence presented. Kaye v. Agripool, SRL (In re Murray, Inc.),
392 B.R. 288, 297 (B.A.P. 6th Cir. 2008). The Supreme Court has explained the clearly erroneous
standard:
If the district court’s account of the evidence is plausible in light of the record viewed
in its entirety, the court of appeals may not reverse it even though convinced that had
it been sitting as the trier of fact, it would have weighed the evidence differently.
Where there are two permissible views of the evidence, the factfinder’s choice
between them cannot be clearly erroneous.
Such deference to the trial court is necessary because the trial judge is in the best
position to determine the credibility of witnesses.
Huffman v. Westmoreland Coal Co., 205 P.3d 501, 506 (Colo. App. 2009) (quoting Tonko v. Mallow
(In re Tonko), 154 P.3d 397, 405 (Colo. 2007)).
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Thurman v. Yellow Freight Systems, Inc., 90 F.3d 1160, 1165-66 (6th Cir. 1996) (quoting Anderson
v. City of Bessemer, 470 U.S. 564, 573-75, 105 S. Ct. 1504, 1511-12 (1985)).
The record in the bankruptcy court supports the court’s conclusion that the Appellants are
entitled to damages of $171,000 for fraud under § 523(a)(2)(A), and not the entire $513,000 awarded
under the Colorado Judgment. When determining the collateral estoppel effect of a state court
judgment in dischargeability proceedings, the bankruptcy court must consider the entire state court
record, not just the judgment. Spilman v. Harley, 656 F.2d 224, 228 (6th Cir. 1981). The language
of the Special Verdict form, the Jury Inquiry form, and the Colorado Judgment establish that the jury
awarded the Appellants damages against both Debtors, in the amount of $171,000 for fraud,
$171,000 for breach of contract, and $171,000 for negligent misrepresentation, for a total of
$513,000 in damages. Specifically, the Special Verdict form states that the damages on the fraud
claim are “$171,000.00."
The Jury Inquiry form also affirms that separate damages awarded were awarded by the jury
on each of the Appellants’ causes of action. The Jury Inquiry form reads: “[your] actual awards
were $171,000 on the breach of contract claim, $171,000 on the negligent misrepresentation or
concealment claim, and $171,000 on the deceit based on fraud claim.” (Emphasis added.) The Jury
Inquiry form then asks the jury what total amount of actual damages were suffered by the Appellants.
The amount provided by the jury in the special verdict form is “$513,000.00.”
Finally, the language of the Colorado Judgment corroborates the total amount of damages
awarded by the jury stating that “[p]ursuant to the verdict of the Jury total actual damages awarded
to the Plaintiffs are $513,000.00.” While the Colorado Judgment does not break down the amount
awarded under each claim, this fact alone does not support the conclusion that the court was
awarding $513,000 on each claim, as argued by the Appellants.
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The Appellants’ extensive discussion of Colorado law and cases are not applicable to the
issue before the Panel. The question is not one of Colorado law, but of whether the facts presented
by the parties before the bankruptcy court support the bankruptcy court’s holding limiting the amount
of damages that are nondischargeable to $171,000. Upon a review of all the evidence presented
including the Colorado Judgment, the Special Verdict form, and the Jury Inquiry form, the Panel
affirms the decision of the bankruptcy court regarding the amount of damages that are
nondischargeable.
CONCLUSION
For the foregoing reasons, the Panel affirms the decision of the bankruptcy court.
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