In Re: Seymour Markowitz,
________________________ No. 97-2075
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 97-73042--Anna Diggs Taylor, District Judge.
Argued: October 29, 1998
Decided and Filed: September 23, 1999
Before: BOGGS, SUHRHEINRICH, and SILER, Circuit Judges.
ARGUED: John C. Lange, GOLD, LANGE & MAJOROS, P.C., Southfield,
Michigan, for Appellant. Lawrence J. Acker, Bloomfield Hills,
Michigan, for Appellee. ON BRIEF: John C. Lange, GOLD, LANGE &
MAJOROS, P.C., Southfield, Michigan, for Appellant. Clay E.
Ottoni, CLAY E. OTTONI, P.C., Farmington Hills, Michigan, for
SUHRHEINRICH, J., delivered the opinion of the court, in
which SILER, J., joined. BOGGS, J. (pp. 19-22), delivered a
separate dissenting opinion.
SUHRHEINRICH, Circuit Judge. Section 523(a)(6) of the
Bankruptcy Code provides that a debt "for willful and malicious
injury by the debtor to another" is non-dischargeable. 11 U.S.C.
§ 523(a)(6). The principal question before us is whether a debt
arising from the legal malpractice judgment against Appellant,
Seymour Markowitz, falls within this statutory exception. Finding
jurisdiction proper in the district court and in this appeal, we
AFFIRM the judgment below on the issue of collateral estoppel.
However, we VACATE the judgment of the district court on the
issue of dischargeability and REMAND the case for further
proceedings consistent with this opinion and the recent decision
of the Supreme Court in Kawaauhau v. Geiger, 523 U.S. 57, 118
S.Ct. 974 (1998).
Seymour Markowitz is a licensed attorney practicing in
Michigan. On May 17, 1991, Markowitz filed a divorce action in
Wayne County Circuit Court on Carolyn Campbell's behalf. On May
20, 1991, Campbell's husband filed an annulment action in the
Oakland County Circuit Court. Also on May 20, Carolyn Campbell
personally delivered papers served upon her for the Oakland
County action to Markowitz. Markowitz did not file a response to
the Oakland County action and a default judgment was entered
against Carolyn Campbell on August 23, 1991. On September 20,
1991, Markowitz prevailed on a motion to dismiss the Oakland
County action. Afterward, Campbell's husband gave Markowitz a
proposed order dismissing the action along with notice that the
dismissal order would be entered within seven days. Markowitz did
not file objections and neither approved nor contested it. As a
result, the dismissal of the action failed to vacate the default
judgment and the dismissal order did not correct the record,
i.e., it was not entered nunc pro tunc, and the default judgment
remained despite the dismissal. Carolyn Campbell continued to be
garnished and her husband began attempting to collect on the
default judgment. (J.A. at 99-100). Markowitz testified that he
believed the dismissal order effectively vacated the default
judgment and that no specific language other than that granting
the dismissal of the cause was required in the order. (J.A. at 98-
101). Therefore, he felt that no further action was necessary and
that the default judgment could not be enforced, despite the fact
that the dismissal order did not expressly vacate the default
judgment or enter the dismissal nunc pro tunc. (J.A. at 98-101).
Thereafter, Markowitz withdrew as Campbell's counsel on November
27, 1991, at which time the dismissal of the Oakland County
action remained in effect.
Upon appeal by Campbell's husband, the Michigan Court of
Appeals reversed the Oakland County dismissal -- reinstating the
case in Oakland County and reinstating the default judgment of
annulment. Markowitz was no longer Carolyn Campbell's attorney.
Subsequent efforts by Carolyn Campbell to have the default
judgment set aside were denied by the Oakland County Circuit
Court. And, ultimately, the Wayne County Circuit Court dismissed
the action pending in that court because jurisdiction had been
obtained in the matter by the Oakland County Circuit Court.
Although Campbell had often requested that Markowitz take
action and file responses and pleadings in the two courts,
Markowitz failed to do so. Markowitz admitted that he knew
Campbell could suffer a default from his actions. (J.A. at 93-
94). He admitted that he filed no papers on her behalf in Oakland
County prior to the default, and he admitted that this was a
conscious decision. (J.A. at 96). Markowitz believed that the
Wayne County action was pending and had precedence, (J.A. at 95),
and that the dismissal of the Oakland County judgment effectively
vacated the default. When Carolyn Campbell was issued a show
cause order for failure to pay child support, Markowitz informed
someone from the friend of the court, while in Oakland County
Circuit Court on another matter, that there was a prior action in
Wayne County and that the show cause order should therefore not
proceed. While he was apparently instructed to bring in some
proof of the same, he failed to do so. (J.A. at 77, 112).
Markowitz's testimony also indicates that some of his actions or
inactions were motivated by legal strategy. He claimed he never
spoke with Mr. Campbell because it was his policy never to speak
to defendants, despite the fact that Mr. Campbell was
representing himself. (J.A. at 77, 111). He also believed that
antagonizing Mr. Campbell would be antithetical to Carolyn
Campbell's bargaining in pursuit of the law practice as an asset
in the divorce. (J.A. at 77, 114). Finally, Markowitz testified
that his actions were motivated by the best interests of his
client. (J.A. at 77, 95, 96, 118).
On June 11, 1993, Campbell filed a civil action against
Markowitz in the Wayne County Michigan Circuit Court alleging
legal malpractice. On May 23, 1995, a jury found Markowitz liable
for legal malpractice -- finding Markowitz was negligent and that
his negligence was the proximate cause of Carolyn Campbell's
injuries or damages. The jury awarded Campbell $300,000 in
damages as a result of the entry of the default judgment.(1) On
June 12, 1995, Markowitz filed for relief under Chapter 7 of the
Bankruptcy Code. On October 10, 1995, Campbell commenced an
adversarial proceeding against Markowitz alleging in Count I that
her claim to the $300,000 judgment should be declared non-
dischargeable under 11 U.S.C. § 523(a)(6) because it was a
judgment resulting from willful and malicious injury.
Markowitz and Campbell filed cross-motions for summary
judgment in the Bankruptcy Court as to Count I. On June 12, 1997,
the Bankruptcy Court ruled in favor of Campbell, holding that the
debt was non-dischargeable. (J.A. at 285-300). Judgment was
entered on July 3, 1997. (J.A. at 26-27). The court relied on the
record from the malpractice case and stipulations by the parties
as to specific facts, including the stipulation that there were
no genuine issues as to any material fact. (J.A. at 282) The
district court affirmed the bankruptcy court's order -- granting
Campbell's motion for partial summary judgment and denying
Markowitz's cross-motion for summary judgment. (J.A. at 29).
Markowitz then appealed to this court. (J.A. at 54).
Markowitz presents three issues on appeal. First, he argues
that the malpractice suit decided the issue of willful and
malicious injury and that litigation on that issue in the
bankruptcy court was barred by collateral estoppel. Second, he
contends that his conduct did not cause "willful and malicious
injury." Finally, he argues that even if the debt was non-
dischargeable, the damages attributable to the willful and
malicious injury were unsupported by the record or excessive
under the circumstances.
Initially, we must consider Campbell's challenge to our
jurisdiction. See Steel Co. v. Citizens for a Better Environment,
523 U.S. 83, ___, 118 S.Ct. 1003, 1012-13 (1998). Campbell
contends that we lack jurisdiction because the notice of appeal
from the bankruptcy court to the district court was invalid.
On June 12, 1997, the bankruptcy court entered an order
granting Campbell's motion for summary judgment and denying
Markowitz's motion for summary judgment. Markowitz filed a notice
of appeal to the district court on June 23, 1997. The same day he
also filed a motion for rehearing (the "F.R.B.P. 9023 motion") in
the bankruptcy court. On July 3, 1997, the bankruptcy court
entered final judgment, without ruling on the motion for
reconsideration. On July 15, 1997, the parties filed a
stipulation of appellate rights with the district court. This
stipulation was entered on August 11, 1997. On August 8, 1997,
the bankruptcy court denied the motion for reconsideration.
The first issue is whether Federal Rule of Bankruptcy
Procedure 9023 -- governing motions to amend or appeal a
judgment, reconsideration, and rehearing -- divested the district
court of jurisdiction pursuant to F.R.B.P. 8002(b). Bankruptcy
Rule 8002(b) states, in part:
A notice of appeal filed after announcement or entry of the
judgment, order, or decree but before disposition of any of
the above motions is ineffective to appeal from the
judgment, order, or decree, or part thereof, specified in
the notice of appeal, until the entry of the order disposing
of the last such motion outstanding.
F.R.B.P. 8002(b). According to F.R.B.P. 8002(b), the notice of
appeal -- filed after the order but before disposition of the
F.R.B.P. 9023 motion -- was ineffective to perfect an appeal from
the judgment until the entry of the order of the motion for
reconsideration. As a result, the notice of appeal was not
effective until entry of the August 8 order denying the motion to
reconsider. Contrary to Campbell's contention, F.R.B.P. 8002 does
not nullify the original notice and require refiling.(2) F.R.B.P.
8002 requires a new notice of appeal to be filed only if the
motion to reconsider is itself appealed or if the disposition of
that motion alters or amends the previous judgment. Thus, the
notice of appeal was suspended until the bankruptcy court decided
the F.R.B.P. 9023 motion but ripened upon disposition of that
motion.(3) No new notice was required. The district court did not
have jurisdiction over the appeal between June 23 and August 8.
During that period, the district court set dates for oral
arguments, a hearing, and briefing, and it took entry of several
litigation materials. However, by the time the district court
disposed of any issues in the case, it was vested with
The second issue is whether the notice of appeal filed after
the order but before final judgment is invalid because the June
12 order was not a final judgment. Even assuming the June 12
order lacked the requisite characteristics of finality, F.R.B.P.
8002(a) provides that "A notice of appeal filed after the
announcement of a decision or order but before entry of the
judgment, order, or decree shall be treated as filed after such
entry and on the day thereof." Thus, the non-final nature of the
June 12 order did not nullify the notice of appeal. Bankruptcy
Rule 8002(a) would have made the notice effective upon entry of
the judgment on July 3. However, the F.R.B.P. 9023 motion had not
been considered at that time; and the notice could not become
effective because the judgment was not final. As explained
earlier, F.R.B.P. 8002(a) mandates that the notice is suspended
until disposition of the F.R.B.P. 9023 motion. Thus, the notice
remained suspended, ripening and becoming effective on August 8
when the court denied the F.R.B.P. 9023 motion. No new notice was
required because the ruling on the F.R.B.P. 9023 motion was not
appealed and the August 8 disposition of that motion did not
alter or amend the previous judgment.
For the forgoing reasons, the district court had
jurisdiction when judgment was rendered on September 10, 1997.
Consequently, we have jurisdiction to reach the merits of
During the state court trial, Campbell requested a special
interrogatory to the jury "regarding whether or not Mr.
Markowitz's decision making was intentional or willful." (J.A. at
125 (emphasis added)). The state court refused to give this
instruction. On appeal, Markowitz argues that the trial court's
refusal was tantamount to a finding that Markowitz's conduct was
not willful. He further argues that this "finding" collaterally
estops any claim in bankruptcy court that his actions were
willful. As such, he contends that issue preclusion required the
district court to dismiss the case. We disagree.
We review de novo the applicability of collateral estoppel.
See, e.g., United States v. Sandoz Pharmaceuticals Corp., 894
F.2d 825, 826 (6th Cir.1990). The doctrine of collateral estoppel
"precludes relitigation of issues of fact or law actually
litigated and decided in a prior action between the same parties
and necessary to the judgment, even if decided as part of a
different claim or cause of action." Sanders Confectionery
Products, Inc. v. Heller Financial, Inc., 973 F.2d 474, 480 (6th
Cir.1992); accord Parklane Hosiery Co. v. Shore, 439 U.S. 322,
336 n.23 (1979) ("[T]he whole premise of collateral estoppel is
that once an issue has been resolved in a prior proceeding, there
is no further factfinding function to be performed."); Montana v.
United States, 440 U.S. 147, 153 (1979).
Collateral estoppel will apply where (1) the law of
collateral estoppel in the state in which the issue was litigated
would preclude relitigation of such issue, and (2) the issue was
fully and fairly litigated in state court.(4) 28 U.S.C.A §1738
(West 1994); see also Marrese v. American Academy of Orthopaedic
Surgeons, 470 U.S. 373, 380 (1985) (noting that §1738 "directs a
federal court to refer to the preclusion law of the State in
which the judgment was rendered"); Haring v. Prosise, 462 U.S.
306, 312-14 (1983).
Under Michigan law, collateral estoppel precludes the
relitigation of an issue in a subsequent, different cause of
action between the same parties where the prior proceeding
culminated in a valid, final judgment and the issue was actually
litigated and necessarily determined. See People v. Gates, 452
N.W.2d 627, 630 (Mich. 1990); see also United States v. Three
Tracts of Property Located on Beaver Creek, 994 F.2d 287, 290
(6th Cir. 1993). An issue is actually litigated if it is put into
issue by the pleadings, submitted to the trier of fact, and
determined by the trier of fact. See Latimer v. Mueller & Son,
Inc., 386 N.W.2d 618, 627 (Mich. Ct. App. 1986). An issue is
necessarily determined if it is essential to the judgment. Gates,
452 N.W.2d at 631.
The jury verdict itself did not actually decide the issue of
willfulness. In Michigan, a legal malpractice judgment requires
no greater a finding than that the conduct was negligent. See
Basic Foods Indust. v. Grant, 310 N.W.2d 26, 28 (Mich. Ct. App.
1981). Thus, the jury's finding of legal malpractice did not
decide the issue of willful and malicious injury; it was not
actually litigated. "[T]he jury's finding that [the attorney]
acted with knowledge of a high probability of harm to his clients
does not collaterally estop him from claiming that his actions
did not constitute a willful and malicious injury." In re Conte,
33 F.3d 303, 307 (3d Cir. 1994); accord In re Kelly, 182 B.R. 255
(9th Cir. BAP, 1995), aff'd by In re Kelly, 100 F.3d 110 (9th
Cir. 1996)(state court judgment finding debtor liable for legal
malpractice only amounted to a finding of negligence, therefore
it was not properly used to find malicious and willful injury
based on the doctrine of collateral estoppel); Matter of Miller,
156 F.3d 598 (5th Cir. 1998)(collateral estoppel did not apply in
§523(a)(6) proceeding where state court found that
misappropriation or misuse of employer's proprietary information
proximately caused harm), cert. denied, 119 S.Ct. 1249 (1999),
and cert. denied, 119 S.Ct. 1250 (1999).
Moreover, Campbell's request for a special interrogatory
also failed to actually decide the issue of willful and malicious
injury. First, the state court's refusal to give the instruction
is not the equivalent of a summary judgment that Markowitz's
actions were not willful. Campbell was not asking the judge to
instruct the jury regarding any cause of action. Instead, her
attorney asked for the question precisely because it had "to do
with a concern about discharge in bankruptcy." (J.A. at 125).
Therefore, the judge's ruling against presenting the special
question was neither the equivalent of a summary judgment ruling
nor a ruling that there were no facts to support an intentional
tort claim. It was not a ruling on the merits. Instead, the
ruling extends no farther than a ruling on the relevancy of the
question to those particular proceedings. The state court
recognized that a finding on the question was neither necessary
nor essential to judgment in that case.
Second, the proposed question itself simply asked "whether
or not Mr. Markowitz's decision making was intentional or
willful." (J.A. at 125 (emphasis added)). This is not the same as
asking whether Markowitz intended to cause injury. Even an
affirmative answer by the jury to that or a similar question
would not collaterally estop either side in subsequent litigation
on the §523(a)(6) issue.(5) An answer to the question posed would
not resolve the §523(a)(6) issue precisely because non-
dischargeability requires more than an intentional decision but
also an intent to do harm. See Geiger, 118 S.Ct. at 977. Thus, a
separate review of the facts in the bankruptcy discharge
litigation was proper. There is no collateral estoppel.
Next we consider Markowitz's claim that the bankruptcy court
erred in denying his motion for summary judgment and granting
Campbell's motion for summary judgment based on its finding that
his conduct was "willful and malicious." We review a district
court's order granting summary judgment de novo, and its findings
of fact for clear error. See Grand Traverse Band of Ottawa and
Chippewa Indians v. Director, Mich. Dep't of Natural Resources,
141 F.3d 635, 639 (6th Cir. 1998); Terry Barr Sales Agency, Inc.
v. All-Lock Co., 96 F.3d 174, 178 (6th Cir. 1996); Hartsel v.
Keys, 87 F.3d 795, 799 (6th Cir. 1996); Holiday Inns, Inc. v. 800
Reservation, Inc., 86 F.3d 619, 622 (6th Cir. 1996).
Summary judgment is proper "if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law."(6) Fed. R. Civ. P. 56(c); accord
Terry Barr Sales Agency, Inc., 96 F.3d at 178; Hartsel, 87 F.3d
at 799; Holiday Inns, Inc., 86 F.3d at 622; Atlantic Richfield
Co. v. Monarch Leasing Co., 84 F.3d 204, 206 (6th Cir. 1996).
When reviewing a summary judgment decision, an appellate court
must confine its review to the evidence as submitted to the
district court. Landefeld v. Marion Gen. Hosp., 994 F.2d 1178,
1181 (6th Cir. 1993); Guarino v. Brookfield TP Trustees, 980 F.2d
399, 405-06 (6th Cir. 1992).
Section 523(a)(6) of the Bankruptcy Code contains an
exception to the dischargeability of debts. It provides:
(a) A discharge under Section 727, 1141, 1228(a), 1228(b),
or 1328(b) of this title does not discharge an individual
debtor from any debt --
. . .
(6) for willful and malicious injury by the debtor to
another entity or to the property of another entity.
11 U.S.C. § 523(a)(6). From the plain language of the statute,
the judgment must be for an injury that is both willful and
malicious. The absence of one creates a dischargeable debt.
The recent decision by the Supreme Court in Kawaauhau v.
Geiger, 523 U.S. 57, 118 S.Ct. 974 (1998), addressed the "pivotal
question concerning the scope of the 'willful and malicious
injury' exception" presented here: whether "§ 523(a)(6)'s compass
cover[s] acts, done intentionally, that cause injury . . . or
only acts done with the actual intent to cause injury." Id. at
976. At issue in Geiger was the dischargeability of a debt
arising from a damages award for medical malpractice. Margaret
Kawaauhau sought treatment from Dr. Geiger for a foot injury.
Geiger admitted Kawaauhau to a hospital to attend to the risk of
infection. Geiger knew that intravenous penicillin was more
effective than oral penicillin, but prescribed oral penicillin
because he understood that the patient wanted to minimize costs.
Geiger left on a business trip and left Kawaauhau with other
physicians. Although the other physicians had decided she should
be transferred to an infectious disease specialist, Geiger
canceled the order upon his return. He also discontinued all
antibiotics, believing that the infection had subsided. Over the
next few days, Kawaauhau's condition deteriorated and her right
leg was amputated below the knee. Geiger intentionally rendered
inadequate medical care by deliberately choosing less effective
treatment in order to cut costs. Id. at 976-77. The bankruptcy
court determined that Geiger's treatment fell far below the
appropriate standard of care and held the debt non-dischargeable.
In re Geiger, 172 B.R. 916, 922-23 (Bankr. E.D. Mo. 1994). Yet
the Supreme Court held that even when actions fall so far below
professional standards, they will not necessarily be "willful and
malicious" and will not necessarily, therefore, be non-
dischargeable under § 523(a)(6). Geiger, 118 S.Ct. at 977.
The Court held that "willful" means "voluntary,"
"intentional," or "deliberate."(7) Id. at 977 n.3. As such, only
acts done with the intent to cause injury -- and not merely acts
done intentionally -- can cause willful and malicious injury. The
Court explained its holding by discussing the importance of
The word "willful" in (a)(6) modifies the word "injury,"
indicating that nondischargeability takes a deliberate or
intentional injury, not merely a deliberate or intentional
act that leads to injury. Had Congress meant to exempt debts
resulting from unintentionally inflicted injuries, it might
have described instead "willful acts that cause injury." Or,
Congress might have selected an additional word or words,
i.e., "reckless" or "negligent," to modify "injury."
Moreover, as the Eighth Circuit observed, the (a)(6)
formulation triggers in the lawyer's mind the category
"intentional torts," as distinguished from negligent or
reckless torts. Intentional torts generally require that the
actor intend "the consequences of an act," not simply "the
act itself." Restatement (Second) of Torts § 8A, comment a,
p. 15 (1964) (emphasis added).
Id. at 977. The Court's citation to the Restatement's definition
of "intentional torts" underscores the close relationship between
the Restatement's definition of those torts and the definition of
"willful and malicious injury." The Restatement defines
intentional torts as those motivated by a desire to inflict
injury or those substantially certain to result in injury.
Although the Supreme Court identified a logical association
between intentional torts and the requirements of §523(a)(6), it
neither expressly adopted nor quoted that portion of the
Restatement discussing "substantially certain" consequences.(8)
Nonetheless, from the Court's language and analysis in Geiger, we
now hold that unless "the actor desires to cause consequences of
his act, or . . . believes that the consequences are
substantially certain to result from it," Restatement (Second) of
Torts § 8A, at 15 (1964), he has not committed a "willful and
malicious injury" as defined under §523(a)(6).
Although the Sixth Circuit recognized a much broader
definition of "willful and malicious" in Perkins v. Scharffe, 817
F.2d 392 (6th Cir. 1987)(holding that willful and malicious
injury will occur when one intends the act regardless of whether
he intends the consequence), "the formulation in Perkins . . . of
the intent necessary to find a debt non-dischargeable under
§523(a)(6) has been overruled by the Supreme Court in Geiger."(9)
See In re Bullock-Williams, 220 B.R. 345, 347 (6th Cir. BAP
1998)(condominium owner's failure to pay fees to the association
did not demonstrate the necessary intent to cause harm to the
association when record indicated that the debtor thought the
fees were being paid by either the Chapter 13 trustee or her
children); accord In re Evans, Nos. 98-60037, 98-6078, 1998 WL
404178 (Bankr. N.D. Ohio, 1998)("[Geiger] effectively overruled
the Sixth Circuit's decision in Perkins . . . ."). We agree. See
In re Abbo, 168 F.3d 930 (6th Cir. 1999)(adopting Geiger in
affirming finding that a malicious prosecution judgment was non-
dischargeable). In light of Geiger, the bankruptcy court's
reliance on the Perkins standard (J.A. at 294) was incorrect. We
hold that the Perkins standard for "willful and malicious injury"
was effectively overruled by the Supreme Court in Geiger and we
now expressly overrule that standard.
It is clear throughout the bankruptcy court's opinion that
its conclusion of non-dischargeability is based entirely on the
now rejected Perkins standard. For example, the court states the
following: "While [Markowitz] may not have 'intended' to harm
Plaintiff, lack of such intent does not, under the case law,
preclude a finding of willful and malicious. What is necessary,
and what the Court finds to be present in very basic terms, is an
intentional act which necessarily led to injury." The only
factual findings actually made by the bankruptcy court were that
Markowitz intended to do the acts, and those acts were causally
related to Campbell's injury.
On the basis of the stipulated record and those limited
findings, we do not believe that there is a sufficient basis to
show that Markowitz intended injury.(10) If we were to apply
Geiger to the record before us, without more, Markowitz would be
entitled to summary judgment. However, the intervening Supreme
Court decision between the fact-finding stage and appeal requires
a reevaluation of the case, an action properly conducted in the
court below. As the record is currently constituted, the
stipulation of facts by counsel reflects their reliance on proof
as required by this Circuit under Perkins rather than the
different standard now controlling under Geiger. In addition, had
the bankruptcy court operated under the Geiger standard, it may
have made additional credibility findings beyond those needed to
evaluate the case under the Perkins standard. Therefore, because
neither the parties nor the bankruptcy or district court were
aware of the proper standard or proofs required under Geiger, we
deem it appropriate to remand the case to reconsider this matter
and apply the Geiger standard.
Because we find further proceedings are necessary to
determine whether discharge is appropriate, we do not address the
issue regarding the proper calculation of damages.
The judgment is AFFIRMED IN PART, to the extent we hold that
jurisdiction was proper in the district court and remains so on
appeal to this court, and the state malpractice action has no
collateral estoppel effect. The judgment is VACATED IN PART,
regarding the determination of the existence of willful and
malicious injury; and the case is REMANDED for further
proceedings to resolve the issue of dischargeability for willful
and malicious injury in accordance with this opinion and
Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974 (1998).
BOGGS, Circuit Judge, dissenting. I would affirm the
judgment of the district court based on the bankruptcy court's
The court holds that the courts below applied the wrong
legal standard, yet remands the case for additional factfinding.
I believe that facts in the record, sufficient to affirm the
judgment of the district court, support the judgments below, and
we are not at liberty to disregard them in our deliberations.
We review the bankruptcy court's findings of fact for clear
error, its understanding of the legal standard for "willful and
malicious" injury de novo, and its application of the standard to
the facts de novo. If we determine that the factfinding below was
not clearly erroneous, and that the proper legal standard applied
to those facts indicates that Markowitz acted willfully and
maliciously under § 523(a)(6) of the Bankruptcy Code, we must
affirm the decision regardless of whether the courts below
applied the correct legal standard.
The court finds an error of law below: improper reliance on
our decision in Perkins in light of the Supreme Court's later
decision in Geiger. Regardless of the standard applied by the
courts below, I believe that the facts supporting the bankruptcy
court's holding require affirmance under Geiger.
In Geiger, the Court explicitly adopted the intentional tort
standard, which requires "that the actor intend 'the consequences
of the act,' not simply 'the act itself.'" Id. at 977 (quoting
Restatement (Second) of Torts § 8A, cmt. a, p. 15 (1964)).
The Restatement (Second) of Torts, quoted with approval in
Geiger, explicitly states that actual desire to cause the harmful
consequences is not required. "The word 'intent' is used
throughout the Restatement . . . to denote that the actor desires
to cause consequences of his act, or that he believes that the
consequences are substantially certain to result from it."
Restatement (Second) of Torts § 8A (emphasis added). "If the
actor knows that the consequences are certain, or substantially
certain, to result from his act, . . . he is treated by the law
as if he had in fact desired to produce the result." Restatement
(Second) of Torts § 8A, comment b.
Markowitz committed an intentional tort if he believed that
harm to Campbell was substantially certain to result from his
action or failure to act. The parties stipulated to the accuracy
of the state trial record, and that there were no disputed issues
of material fact. After assessing these facts, the bankruptcy
court held that Markowitz's actions were willful and malicious
under § 523(a)(6), which I think is correct.
The record clearly shows that Markowitz changed his story
about advising Campbell to respond to the Oakland County action.
When he was sued, Markowitz denied that he advised Campbell not
to respond to the Oakland action and declined responsibility for
the results of the failure to defend the action. By the time of
trial, Markowitz testified that he had recommended that course of
action. Certainly, given Markowitz's about-face, the bankruptcy
court's conclusion that Campbell's harm was not caused by a
negligent strategic failure is "plausible in light of the record
viewed in its entirety." Therefore, we cannot say on the record
before us that it is clearly erroneous.
The parties stipulated that Markowitz knew that a default
and default judgment would be entered if he failed to respond to
the Oakland complaint; that he had read the Oakland County
complaint and knew the relief sought by Mr. Campbell, and
therefore the details of the default judgment that would be
entered; that he made the decision not to respond in that action;
that Campbell's husband was seeking to enforce a support order
against Campbell; and that her wages were being garnished.
No inference to constructive knowledge is necessary.
Markowitz actually knew that Campbell was being harmed by the
Oakland County judgment. He knew that Campbell's husband was
seeking to enforce a support order against Campbell. J.A. at 95.
He also knew that her wages were being garnished. J.A. at 101-02,
104.(1) And while Markowitz acknowledges that he did respond to
Campbell's concerns by asking the friend of the court not to
enforce the Oakland County judgment and by moving, after the
judgment, to dismiss the Oakland County action, he did not follow
through on either of these efforts.(2)
Markowitz knew that harm would come to Campbell as a result
of his actions, and he did them anyway. Therefore, he must have
believed that harm to Campbell was substantially certain to
follow. His conduct satisfies the Geiger test and was properly
held to be willful and malicious. In order to conclude that
Markowitz's actions do not meet the requirements of the Geiger
test, one must set aside the bankruptcy court's assessment of the
We are not at liberty to hold that facts concerning whether
Markowitz believed that his failure to act would have no effect,
and consequently whether Markowitz did not believe that his
actions were substantially certain to harm Campbell, have not
been found. The bankruptcy court's judgment rests on its
assessment of the facts based on the parties' stipulation that
there were no disputed facts. Viewed in its entirety, the record
supports the plausibility of the bankruptcy court's assessment.
Applying the Geiger standard to these facts, Campbell is entitled
to summary judgment. Markowitz's actions were not merely severely
poor strategy, they constituted an intentional tort.
I therefore respectfully dissent, and would affirm the
judgment of the district court.
1 Pursuant to the terms of the default judgment, Carolyn
Campbell did not get custody of her daughter, she was required to
pay child support, she was ordered to pay the costs of her
daughter's college education, she was ordered to pay $115,000 to
Mr. Campbell, and Mr. Campbell was awarded the marital home and
his law practice. (J.A. at 77, 84, 97). Shortly thereafter,
Carolyn Campbell's wages were garnished, her bank account was
levied upon, and her automobiles taken to partially satisfy the
judgment. (J.A. at 256, 262-63, 77, 102-104, 109).
2 Appellee relies on Griggs v. Provident Consumer Discount
Co., 459 U.S. 56 (1982), a case interpreting the language of
Fed.R.App.P. 4(a)(4) prior to the 1991 amendment. The language at
that time held that a premature notice of appeal was nullified
upon the filing of a F.R.B.P. 9023 motion. Now, however:
This rule as amended provides that a notice of appeal filed
before the disposition of a specified postjudgment motion
will become effective upon disposition of the motion. A
notice filed before the filing of one of the specified
motions or after the filing of a motion but before
disposition of the motion is, in effect, suspended until the
motion is disposed of, whereupon, the previously filed
notice effectively places jurisdiction in the district court
or bankruptcy appellate panel.
F.R.B.P. 8002, Committee Note to 1994 Amendments.
3 For cases so holding based on identical language in
Fed.R.App.P. 4(a)(4) and Fed.R.Civ.P. 59, see United States v.
Duke, 50 F.3d 571, 575 (8th Cir. 1995); Barber v. Whirlpool
Corp., 34 F.3d 1268, 1273-74 (4th Cir. 1994); Narey v. Dean, 32
F.3d 1521, 1523-24 (11th Cir. 1994); Leader Nat'l Ins. Co. v.
Industrial Indem. Ins. Co., 19 F.3d 444, 445 (9th Cir. 1994).
4 For an application of Michigan rules of issue preclusion
(collateral estoppel) and claim preclusion (res judicata) by the
Sixth Circuit, see Perez v. Aetna Life Ins. Co., 96 F.3d 813, 820-
21 (6th Cir. 1996); Warda v. Commissioner, 15 F.3d 533, 537 (6th
Cir. 1994); Smith, Hinchman and Grylls, Assocs. v. Tassic, 990
F.2d 256, 257-58 (6th Cir. 1993); Kaufman v. BDO Seidman, 984
F.2d 182, 184 (6th Cir. 1993); Katt v. Dykhouse, 983 F.2d 690,
693-94 (6th Cir. 1992); Fellowship of Christ Church v. Thorburn,
758 F.2d 1140, 1144-45 (6th Cir. 1985) (per curiam).
5 In Conte, the jury answered the following interrogatory in
It has been admitted by Mr. Conte that as of June 1980 he
was aware that his client's case against Dr. Gerry Brown had
been dismissed by the court. Do you find that he
deliberately omitted informing his clients of the fact that
their case was dismissed with knowledge of a high degree of
probability of harm to Mr. and Mrs. Gautam and reckless
indifference to the consequences of his omission?
In re Conte, 33 F.3d 303, 305 (3d Cir. 1994). The Third Circuit
ruled that the affirmative finding of the jury did not
collaterally estop the attorney from claiming in the subsequent
bankruptcy proceeding that his actions were not willful and
6 These same rules of review also apply where the parties
have filed cross-motions for summary judgment. Atlantic Richfield
Co., 84 F.3d at 206. The court must evaluate each motion on its
own merit and draw inferences against the party whose motion is
being considered. Lansing Dairy, Inc. v. Espy, 39 F.3d 1339, 1347
(6th Cir. 1994); Taft Broadcasting Co. v. United States, 929 F.2d
240, 248 (6th Cir. 1991).
7 Citing Black's Law Dictionary 1434 (5th ed.1979); S.Rep.
No. 95-989, p. 79 (1978), U.S. Code Cong. & Admin. News pp. 5787,
5864; H.R.Rep. No. 95- 595, p. 365 (1977), U.S. Code Cong. &
Admin. News pp. 5963, 6320.
8 The Eighth Circuit, on the other hand, gave the
Restatement greater attention in its opinion, equating §523(a)(6)
with intentional torts, defined as actions where the actor
desires to cause injury or believes that injury is substantially
certain to result from his acts. Geiger v. Kawaauhau, 113 F.3d
848, 852 (8th Cir. 1997), aff'd, 118 S.Ct. 974 (1998).
9 "Perkins is cited by the Supreme Court in a list of cases
that are contrary to the interpretation of §523(a)(6) adopted in
Geiger. Accordingly, we are constrained to apply the new standard
enunciated by the Supreme Court in Geiger." In re Bullock-
Williams, 220 B.R. at 347.
10 We note that under Geiger, the lack of an excuse or
justification for his actions will not alone make Markowitz's
debt non-dischargeable under §523(a)(6). See, e.g., In re Popa,
140 F.3d 317 (1st Cir. 1998)(gas station owner's failure to
obtain worker's compensation insurance in violation of law,
location of station in known, high crime area, and knowledge of
recent robberies at station did not make him responsible for
willful and malicious injury under §523(a)(6) after night shift
employee was severely beaten), cert. denied, 119 S.Ct. 163
(1998). Moreover, like Dr. Geiger who should have known under
reasonable professional standards that his treatment methods
risked injury to his patient, Geiger, 118 S.Ct. at 977-78, the
mere fact that Markowitz should have known his decisions and
actions put Carolyn Campbell at risk is also insufficient to
establish a "willful and malicious injury." He must will or
desire harm, or believe injury is substantially certain to occur
as a result of his behavior.
1 Markowitz denied that he knew Campbell's wages were being
garnished at the time that he was representing her. J.A. at 100-
01. However, when asked about the contents of a letter that
Campbell wrote to him during his representation, which criticized
Markowitz for failing to get the Oakland County default judgment
properly set aside and to "put an end to Fletcher's ability to
continuously garnishee [Campbell's] wages," J.A. at 102,
Markowitz testified that "[w]e had already discussed all of it,"
J.A. at 104.
2 The friend of the court asked Markowitz to bring proof of
the Wayne County action, which he never did. The Oakland County
court granted Markowitz's motion to dismiss, but instead of
writing a proposed order himself or objecting to Mr. Campbell's
proposed order, Markowitz simply accepted Mr. Campbell's proposed
order. As it turned out, the dismissal was vacated on appeal
because, after judgment had been entered, Markowitz should have
moved to set aside the judgment rather than to dismiss.
Egregious as they sound, these blunders are not, by
themselves, evidence that Markowitz constructively intended harm
to Campbell. However, Markowitz's erratic representation and his
posturing about his actions refute his claim that he had the
strategy he now claims to have had for the Campbell divorce (or,
indeed, any strategy at all).