In re: Jason Claude Adkins

FILED
MAR 5 2019
NOT FOR PUBLICATION
SUSAN M. SPRAUL, CLERK
U.S. BKCY. APP. PANEL
OF THE NINTH CIRCUIT
UNITED STATES BANKRUPTCY APPELLATE PANEL
OF THE NINTH CIRCUIT
In re: BAP No. NV-18-1204-KuTaB
JASON CLAUDE ADKINS, Bk. No. 2:17-bk-11974-BTB
Debtor. Adv. No. 2:17-ap-01223-BTB
MICHAEL WENTZ; BRIAN WENTZ;
BMW SPORTSCARDS INC., DBA BMW
SPORTSCARDS,
Appellants,
v. MEMORANDUM*
JASON CLAUDE ADKINS,
Appellee.
Argued and Submitted on February 21, 2019
at Las Vegas, Nevada
Filed – March 5, 2019
Appeal from the United States Bankruptcy Court
for the District of Nevada
*
This disposition is not appropriate for publication. Although it may be cited for
whatever persuasive value it may have, see Fed. R. App. P. 32.1, it has no precedential
value, see 9th Cir. BAP Rule 8024-1.
Honorable Bruce T. Beesley, Chief Bankruptcy Judge, Presiding
Appearances: Andrea M. Gandara of Holley Driggs Walch Fine Wray
Puzey & Thompson argued for appellants Michael
Wentz, Brian Wentz, and BMW Sportscard Inc.; Michael J.
Harker argued for appellee, Jason Claude Adkins.
Before: KURTZ, TAYLOR, and BRAND, Bankruptcy Judges.
Appellants, Michael Wentz (Michael), Brian Wentz (Brian), and BMW
Sportscard Inc. dba BMW Sportscards (BMW) (collectively, Appellants),
obtained a state court judgment for over $1 million against chapter 71
debtor, Jason Claude Adkins, based on causes of action for defamation and
business disparagement. After Mr. Adkins filed his bankruptcy petition,
Appellants filed an adversary complaint seeking to except the state court
judgment debt from discharge under § 523(a)(6). They then filed a motion
for summary judgment (MSJ) based on issue preclusion, arguing that the
state court findings satisfied the willful and malicious elements of
§ 523(a)(6). The bankruptcy court granted partial summary judgment and
the matter went to trial on the issue of Mr. Adkins' subjective intent under
the willful element. After hearing testimony from Mr. Adkins, the
bankruptcy court found that Mr. Adkins acted "stupidly," but lacked the
1
Unless specified otherwise, all chapter and section references are to the
Bankruptcy Code, 11 U.S.C. §§ 101-1532, and “Rule” references are to the Federal Rules
of Bankruptcy Procedure.
2
subjective intent to harm the Appellants. This appeal followed. For the
reasons set forth below, we AFFIRM.
FACTS
A. Prepetition Events
Brian and Michael Wentz each own 50% of BMW, a Wisconsin
corporation, which buys and sells vintage sports cards and sports
memorabilia. Mr. Adkins was familiar with the Appellants since he
frequented internet blogs about sportscards, but he had never met Michael
or Brian personally nor had he done business with them or their store.
On September 17, 2011, Mr. Adkins posted the following statement
on the internet forum known as Blowout Cards2 regarding Appellants:
I know the Wentz brothers of BMW Sportscards were caught
redhanded with altering certain graded cards a few years back
on the Area 51 boards or whatever. . . . There was a guy that
flat-out offered card restoration advertising in the Beckett
Vintage magazine and was the foremost expert in card
restoration. When the Wentz's [sic] and others started working
with him and getting cards slabbed 2 to 3 grades higher than
they should have been, it created quite a raucous.3
2
Blowout Cards is a sports card distributor that hosts an online forum where
sports card collectors from all over the world can access the forum for free and talk to
each other about sports cards through post published comments that others can read
and respond to in a dialogue.
3
Grading of sports cards is done on a rating scale from 1 through 10, with cards
in the worst grading condition receiving a 1 and cards in the most immaculate condition
receiving a 10, and accordingly the highest value. The primary sports card grading
(continued...)
3
On September 12, 2012, Mr. Adkins posted a second statement on the
Blowout Cards forum regarding Brian and BMW:
If you think a guy is incapable of shilling his best card at
auction because he's been on this board for a while and has a
few thousand posts, I don't see what your logic is. A few years
back Brian Wentz of BMW Sportscards claimed he was not
arrested at the 2003 National for beating up another guy, yet
someone else posted his arrest citation (which is public record).
Wentz had 1000's of posts and was one of the biggest dealers in
the nation, but he lied on the message boards about it. . . .
1. The State Court Complaint
About a year later, Appellants filed a state court complaint against
Mr. Adkins and his business, A Stripside Comics and Sportcards.
Appellants alleged three causes of action based on Mr. Adkins' posts: (1)
defamation4 with respect to the Wentz brothers and fitness for their
business; (2) defamation based on Mr. Adkins' post regarding Brian's
3
(...continued)
company is Professional Sports Authenticator (PSA).
4
Under Nevada law, an action for defamation requires the plaintiff to prove four
elements: "(1) a false and defamatory statement ...; (2) an unprivileged publication to a
third person; (3) fault, amounting to at least negligence; and (4) actual or presumed
damages." Clark Cty. School Dist. v. Vitual Educ. Software, Inc., 213 P.3d 496, 504 (Nev.
2009). If the defamatory communication imputes a "person's lack of fitness for trade,
business, or profession," or tends to injure the plaintiff in his or her business, it is
deemed defamation per se and damages are presumed. Id.
4
arrest; and (3) business disparagement.5 According to Appellants,
Mr. Adkins' post stating that they were "caught redhanded with altering
graded cards" was false and disparaging and Brian was never arrested.
With respect to all three causes of action, Appellants alleged that the
statements were false, defamatory, and were made negligently,
intentionally, and/or maliciously toward Appellants with the goal of
damaging and injuring their business and pecuniary interests.
After the filing, Appellants deposed Mr. Adkins. Mr. Adkins testified
that in the 2011 post about an altered card, he was referring to an 1887 Old
Judge Mike King Kelly card that was transferred from a PSA 6 holder to a
PSA 9 holder, which significantly increased the value of the card.
Mr. Adkins testified that the card was restored by Dick Towle so that it
could be graded three levels higher. Mr. Adkins also admitted that Brian
was not arrested, but he explained that he meant Michael, not Brian.
Finally, Mr. Adkins testified that he had spoken to Greg Schwartz
5
Under Nevada law, the elements required to prove a cause of action for
business disparagement differ from the elements required to prove classic defamation
and defamation per se. Clark Cty. School Dist., 213 P.3d 504-05. To succeed in a claim for
business disparagement, the plaintiff must prove: (1) a false and disparaging statement,
(2) the unprivileged publication by the defendant, (3) malice, and (4) special damages.
Id. The principal differences between defamation per se and business disparagement
concern the elements of intent and damages. Business disparagement requires malice.
Malice is proven when the plaintiff can show either that the defendant published the
disparaging statement with the intent to cause harm to the plaintiff’s pecuniary
interests, or the defendant published a disparaging remark knowing its falsity or with
reckless disregard for its truth. Id.
5
regarding Michael Wentz to verify the information on his posts.6
Appellants filed a MSJ, which was unopposed. Appellants submitted
the deposition testimony of Mr. Adkins, testimony from Mr. Towel who
declared that he never altered or handled the Old Judge Mike King Kelly
baseball card once owned by BMW, and testimony from Mr. Schwartz who
declared that he spoke to Mr. Adkins once and told him he had no
evidence to support the assertions against BMW or Michael Wentz.
In August 2015, the state court entered an order granting Appellants'
MSJ. The court found that Mr. Adkins had admitted to making the posts
and that Appellants established with undisputed evidence that both posts
were false. The court further found that all the elements for defamation
were met. "The undisputed evidence showed that Mr. Adkins made the
posts and each was completely false and defamatory, not privileged,
intentionally made and at minimum negligent, and thus the damages were
presumed as the communication imputed that the Wentz brothers and
BMW lacked fitness for their trade, business or profession." Under Nevada
law, proof of defamation under these circumstances was per se proof of
damages. The court granted summary judgment on all causes of action and
6
Initially Mr. Adkins was represented by counsel in the state court lawsuit but
could not afford to pay him. Accordingly, he appeared pro se.
6
scheduled a prove up hearing regarding the damages.7
In September 2015, the state court entered judgment in favor of
Appellants and against Mr. Adkins for over $1 million, including attorneys
fees and costs. Appellants began to execute on their judgment, which
included an execution writ pertaining to property at Mr. Adkins' business.
Mr. Adkins tried to prevent execution by breaking into his store and taking
the most valuable property from it. Mr. Adkins was held in contempt for
his actions and jailed for 25 days.
During this same time period, Mr. Adkins filed a chapter 7
bankruptcy petition in 2015. That case was dismissed. Six months later, he
filed a second bankruptcy petition. That case was also dismissed.
B. Bankruptcy Events
About four months later, he filed the instant case in April 2017.
1. The Adversary Complaint
Appellants filed a complaint objecting to Mr. Adkins' discharge
under § 523(a)(6), alleging in cursory fashion that the debt owed to them
was non-dischargeable as it was for a debt for willful and malicious injury
caused by Mr. Adkins. They also alleged Mr. Adkins' conduct in removing
comic books from his store which were subject to their execution writ fell
within the scope of § 523(a)(6).
7
Mr. Adkins had filed a counterclaim for abuse of process. The state court also
granted Appellants' MSJ on the counterclaim.
7
2. The Motion For Summary Judgment
Appellants filed a MSJ, arguing that issue preclusion applied to their
state court judgment. Appellants asserted that the elements for business
disparagement were equivalent to the requirements for a willful and
malicious injury under the Bankruptcy Code as a showing of malice was a
required element under Nevada law. Because the state court granted
summary judgment on all three causes of action, Appellants opined that
the court must have necessarily found malice with respect to their
defamation and business disparagement claims. Appellants further
maintained that the state court found that Mr. Adkins had intentionally
made the false statements and therefore damages were presumed.
With respect to Mr. Adkins' subjective intent, Appellants pointed out
that Mr. Adkins knew he was posting the two defamatory statements to the
largest industry-specific forum for other people on the forum and all
Internet users to see. According to Appellants, the state court found that,
by publishing the false and extremely negative statements about
Appellants' business practices and associating them with a violent crime on
such a widely used and industry-specific internet platform, Mr. Adkins
was aware that he would cause injuries to Appellants and should be
charged with the natural consequences of his action.
Finally, Appellants alleged that the malicious element was satisfied
because under Nevada law, defamation is a wrongful tortious action, done
8
intentionally, which necessarily causes injury, and is done without just
cause or excuse.
In the end, Appellants argued that was no genuine issue of material
fact because the issues determined by the state court relating to
Mr. Adkins' wrongful conduct were equivalent to those necessary to
establish a willful and malicious injury under 523(a)(6). They also
maintained the judgment was on the merits and a final order, the parties
were the same, and the issues regarding Mr. Adkins' defamation and
business disparagement of Appellants were actually and necessarily
litigated.
In opposition, Mr. Adkins argued that the state court's findings did
not show his subjective intent to harm Appellants or that he subjectively
knew that injury was substantially certain to occur as a result of his
conduct. He further maintained that the state court's findings did not set
forth the elements for maliciousness and, therefore, summary judgment
should be denied.
The bankruptcy court heard the motion on February 13, 2018, and
placed its findings on the record:
...So, Counsel, here's what we're doing to do. I'm going to grant
in part the summary judgment with – on both issues with
respect to portions of § 523(a)(6) with the exception of the
malice requirement. Because I think they were properly tried
on summary judgment in the state court. They are not opposed
by opposing counsel. The only issue that remains to be tried is
9
were [sic] this individual's – or were the defendant's acts
malicious, which I think we have – I do understand that I can
look into circumstantial evidence about it. But the only
information I have is that he admits he published these and
admitted the acts that were undertaken. I think he gets a chance
to say why he did that or why that wasn't malicious. I have - I
can't think off the top of my head why he might find – he might
be able to convince me of that, but I think he has to have a
chance to do that.
Although the bankruptcy court granted Appellants' partial summary
judgment, no order to that effect was ever entered.
3. The Motion In Limine
Appellants filed a motion in limine to exclude Mr. Adkins from
presenting evidence or argument outside the scope of subjective intent for
"willful injury" under § 523(a)(6). According to Appellants, the narrow
issue for trial was whether Mr. Adkins had the requisite "willful" mental
state for purposes of § 523(a)(6) at the time he made defamatory and
disparaging statements regarding Appellants. The motion was unopposed
and the bankruptcy court granted the motion.
4. The Trial
At the beginning of the trial, the court announced:
THE COURT: Only thing we're hearing – only thing I'm
determining today is whether there was malice with respect to
certain postings that were made. And I'm relying – and I –
please correct me if I'm wrong, but I'm relying on 238 F.3d . . .
Jerich v. Jerich. And what the Ninth Circuit said is malicious
10
injury within the meaning of dischargeability exception is one
which involves a wrongful act done intentionally which
necessarily causes injury and is done without just cause or
excuse. Is everybody on board with that being the standard?
MS. GANDARA (counsel for Appellants): Your Honor, yes.
Our position is that that's correct for malice. My understanding
was that willfulness was the element at issue, which is an act
done intentionally with the subjective intent to injury the
creditor or with substantial certainty as to the result – the
injurying result to the plaintiffs.
THE COURT: And that is also the – that's the definition of
willfulness – also in the Jerich case.
MS. GANDARA: Right.
THE COURT: So if I'm hearing both of those, that's fine. They're
very similar. They overlap certainly.
Ms. Gandara went on in her opening argument to say the sole issue
for the trial was the willful injury requirement. Mr. Harker agreed that this
was the only issue for trial - the subjective intent to cause the injury and
whether Mr. Adkins subjectively believed that the injury was substantially
certain to occur as a result of his actions.8
At the trial, Mr. Adkins testified about blogs for sportscards.
Mr. Adkins explained how he obtained information from these blogs and
8
Indeed, this was the only issue addressed by the parties in the trial.
11
passed on that information in his posts. The bankruptcy court likened this
to "gossip" since the information posted was not verifiable. Mr. Adkins
admitted he never saw anything first hand regarding the information he
posted about Appellants; i.e., he had not seen the alleged altered card but
had heard about it through the blogs. He had also seen altered cards posted
by others and felt he could post about it. He further testified that he did not
intend to cause injury to Appellants, had never met them, and never did
business in their store. Mr. Adkins testified that he did not intend to
destroy their business. According to Mr. Adkins, there were hundreds, if
not thousands of posts out there about altering sportscards.
After hearing closing arguments, the bankruptcy court issued its
ruling:
So as counsel has indicated, 523(a)(6) is – it's disjunctive. It's if
the debtor has a substantive or substantive motion [sic] to
inflict injury or if the debtor believes that the injury is
substantially certain to occur as a result of his or her conduct.
And I – the conduct that has occurred in this case kind of from
the beginning to the most recent efforts indicates to me at a
minimum that the debtor behaved foolishly at least and
perhaps stupidly. I think it was a very foolish thing to publish
slanderous material against the plaintiffs in this matter. I think
it was an incredibly stupid move to take property out of the
store once there was a judgment against him and in order that
he not take the property out of the store. I think it was a stupid
12
move that got him jailed for 25 days.9
And I think his attitude towards is [sic] currently is not very
good. It's everybody else's fault but his, which I think is an
inappropriate position to be in if you're in this case. No one
made him post the defamatory posts. No one made him decide
it was a good idea to try and hide the assets that he did have.
Those were all his choices.
And he's mad about this. He's still very angry and . . . thinks he
has been wronged in this case. And he is dead flat wrong that
he is been wronged in this case. He has not been wronged. He
has behaved poorly. He has not taken responsibility for what
he did. He's not acknowledged that what he has done was
improper.
On the other hand, I don't think I can find that he had a
subjective motive to inflict injury. Nor do I believe I can find
that the injury was substantially certain to occur in this case.
With respect to the second, not likely to substantially – it's –
that it's – I don't believe that the debtor believed that the injury
was substantially certain to occur in the case.
The reason I say that is his testimony was that there were many
blogs similar to this, that he was unaware that anybody had
been caused issues by this. That I think he looked at this in a
rather immature manner, but I don't think that means that he
believed that the injury was substantially likely to occur. And I
don't think his motive was to cause injury to the Wentzes in this
case.
9
There was little, if any, emphasis on whether Mr. Adkins' contemptuous
conduct satisfied the willful and malicious requirements for § 523(a)(6).
13
And, counsel, you've been [sic] on a good argument. I think
you've tried very hard in this case. But I think that what we
have here is a matter of stupidity as opposed to a real effort to
injure your clients. I just don't think he intended to injure your
clients and I don't think that if he had thought this through,
which I don't think he did, he would have thought he was
going to injure your clients.
So that's my ruling. It's kinda rough, but that's my ruling. I'm
going to allow this debt to be discharged.
The bankruptcy court entered an order on July 18, 2018, finding that
the debt was discharged. The order provided:
. . . the Court previously having granted Summary Judgment in
favor of the Plaintiffs and the sole issue as it relates to this
evidentiary hearing was whether the Debtor had subjective
intent to injure the Plaintiff with the acts alleged by the Plaintiff
herein such that Debtor acted with malice, as described in
Petralia v. Jercich (In re Jerich), 238 F.3d 1202, 1209 (9th Cir. 2001).
That the Court finds that Debtor did not have a subjective
motive to inflict injury on the Plaintiffs.
The Court futher finds that the Debtor did not believe that
injury was substantially certain to occur to the Plaintiffs.
IT IS THEREFORE ORDERED ADJUDGED AND DECREED
that the debt owed by the Debtor to the plaintiffs is hereby
found to be dischargeable and the Clerk of the Court shall enter
a discharge in this case. . . .
14
Appellants filed a timely appeal from this ruling.
JURISDICTION
The bankruptcy court had jurisdiction pursuant to 28 U.S.C. §§ 1334
and 157(b)(2)(I). We have jurisdiction under 28 U.S.C. § 158.
ISSUE
Did the bankruptcy court err in finding that Appellants failed to
prove that the willful injury element under § 523(a)(6) was met?
STANDARDS OF REVIEW
"Because the bankruptcy court entered its judgment after trial, we
review the bankruptcy court's findings of fact for clear error, and its
conclusions of law de novo." Thiara v. Spycher Brothers (In re Thiara), 285
B.R. 420, 426 (9th Cir. BAP 2002) (citing Carrillo v. Su (In re Su), 290 F.3d
1140, 1142 (9th Cir. 2002)).
Determination of parties' intent for purposes of § 523(a)(6) is a
question of fact. Factual findings are clearly erroneous if illogical,
implausible or without support in the record. Retz v. Samson (In re Retz), 606
F.3d 1189, 1196 (9th Cir. 2010).
The clearly erroneous "standard plainly does not entitle a reviewing
court to reverse the finding of the trier of fact simply because it is
convinced that it would have decided the case differently.” Anderson v. City
of Bessemer City, N.C., 470 U.S. 564, 573 (1985). "If the [bankruptcy court's]
account of the evidence is plausible in light of the record viewed in its
15
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." Id. at 573–74. That is, “[w]here there are two
permissible views of the evidence, the factfinder's choice between them
cannot be clearly erroneous.” Id. at 574.
DISCUSSION
A. Legal Standards: Section 523(a)(6)
Section 523(a)(6) excepts from discharge any debt "for willful and
malicious injury by the debtor to another entity or to the property of
another entity." The willful and malicious requirements are analyzed
separately, and both elements must be met. In re Su, 290 F.3d at 1146–47;
Ormsby v. First Am. Title Co. of Nev. (In re Ormsby), 591 F.3d 1199, 1206 (9th
Cir. 2010). Appellants had to prove that the injury to them was both willful
and malicious, not just one or the other.
The only issue at trial and on appeal is whether the willful element
was met.10 Appellants bore the burden of proof by a preponderance of the
evidence in order to render Mr. Adkins' debt nondischargeable. Grogan v.
Garner, 498 U.S. 279, 291(1991). “The burden of showing something by a
‘preponderance of the evidence,’ ... ‘simply requires the trier of fact to
believe that the existence of a fact is more probable than its nonexistence
10
Since no issues have been raised with respect to the malicious requirement,
those arguments are waived. Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
16
before [he] may find in favor of the party who has the burden to persuade
the [judge] of the fact's existence.’“ Concrete Pipe & Prods. of Cal., Inc. v.
Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 622 (1993).
Whether a debtor acted willfully is a subjective inquiry: the "willful
injury requirement is met only when the debtor has a subjective motive to
inflict injury or when the debtor believes that injury is substantially certain
to result from his own conduct." In re Ormsby, 591 F.3d at 1206. Further,
when determining the debtor's intent under § 523(a)(6), there is a
presumption that the debtor knows the natural consequences of his actions.
Id.
Subjective intent may be gleaned from objective factors and
circumstantial evidence which tends to establish what the debtor must
have actually known when taking the injury-producing action. Su, 290 F.3d
at 1146 n. 6. Reckless disregard is insufficient to establish willfulness under
§ 523(a)(6). Geiger, 523 U.S. at 61, 118 S. Ct. 974, 140 L. Ed. 2d 90; Su, 290 F.3d
at 1145–46. The Ninth Circuit wrote in Su:
That the Bankruptcy Code's legislative history makes it clear
that Congress did not intend § 523(a)(6)'s willful injury
requirement to be applied so as to render nondischargeable any
debt incurred by reckless behavior, reinforces application of the
subjective standard. The subjective standard correctly focuses
on the debtor's state of mind and precludes application of
§ 523(a)(6)'s nondischargeability provision short of the debtor's
actual knowledge that harm to the creditor was substantially
certain. 290 F.3d at 1145–46.
17
B. Analysis
Appellants argue that the bankruptcy court erred in its findings that
Mr. Adkins did not have subjective motive to inflict injury or believe that
injury to Appellants was substantially certain to occur. Appellants point to
Mr. Adkins' testimony during trial which, in Appellants' view, amounted
to admissions about his subjective knowledge of injury to the Appellants:
Q Do you see where it says that– discusses card alteration as a
dirty little secret
A Oh, yes, I see it.
Q Okay. When you're using that language you are implying
that there is a negative connotation to card alteration?
A Yes.
Q Okay. And so by associating the plaintiffs being caught red-
handed altering cards, your imputing on them this bad
conduct. Is that right?
A Yes.
Q Okay. I'm going to have you look at the second to last and
last sentence of that post where it says.
"There was a guy that flat-out offered card restoration
advertising in the Beckett vintage magazine and was the
foremost expert in card restoration. When the Wentzes and
others started working with him getting card slabbed 2 to 3
grades higher than they should have been, it created quite a
18
ruckus."
Is this content, are you suggesting that the Wentzes were
improperly improving the grades of their card by alteration?
A Yes.
Q Okay. And your last part of that sentence says, "And my
name is my ID and I live in Vegas. Feel free to check my arrest
record. They never caught me breaking the law, except for that
speeding ticket in 2010." Do you see that?
A Yes.
Q In that sentence, are you trying to disassociate yourself or
make yourself appear like a good guy in relation to these
people who have committed crimes?
A Yes.
Q Okay. So you knew that the statement would harm the
plaintiff's business and public reputation, correct?
A Yes.
Q You didn't think that it would help their business, right?
A Yes.
Q It would hurt them?
A Yes.
19
However, later in the trial, in response to his attorney's questions,
Mr. Adkins testified:
A I wasn't trying to do any harm to them. I just– I guess if you
want to call it passing gossip because it's not verified, then
again, you know, what news is these days. But, yeah, if you
want to call it gossip boards. Most of the time people say, hey,
I– look at this card, I found it a garage sale. And they post a
picture of it. You generally believe them if they're a longtime
member, so –
Q Right.
A I guess that's still gossip that they have it. I don't –
Q All right. But –
THE COURT: So if you weren't trying to harm them or – I
mean, how could you send out something that says these
people are misbehaving and not think that would cause harm?
THE WITNESS: I'd just seen it so many – from so many other
people. I didn't – like I said, I wasn't trying to harm them. I
guess I was just passing along information that was out there.
Later, Mr. Adkins' attorney, Mr. Harker, resumed his questioning:
Q Well, let me ask this then. You didn't believe this would
harm their business. Is that a fair statement?
A That's fair.
Q Why did you not believe it would not – it would harm would
20
not harm their business?
A It's just people talking sports cards and there's plenty of
statements like this about them. So I certainly would never start
rumors or lie, trying to hurt anybody ever.
Q How many statements would be posted today in general like
this on this website?
A Probably 10,000 posts a day.
Q Okay. And when you put–posted this, although you've
admitted to the court that you've never seen it [the altered card]
in person but you had seen stuff on the internet, it was just a
post that you are passing on. Is that a fair statement?
A Yeah. It was just, oh, by the way. And like I said, I was under
the impression it was common knowledge throughout the
industry.
Q You didn't know these individuals. Is that correct?
A That's correct.
Q All right. You didn't have a vendetta against them, did you?
A No.
The bankruptcy court was entitled to consider both direct evidence of
Mr. Adkins' subjective state of mind and evidence of the surrounding
circumstances, and then to make appropriate inferences as to whether he
21
harbored the requisite intent for purposes of deciding whether his acts
were willful under § 523(a)(6). Appellants understandably emphasize
Mr. Adkins' testimony on cross-examination during which he conceded
that the statements he made in his posts would harm the Appellants.
Appellants characterize Mr. Adkins' testimony as an admission and thus
conclusive evidence that he knew damage to Appellants was substantially
certain to occur due to his posts.
However, Mr. Adkins' later testimony was conflicting. He stated
many times that he did not intend to harm the Wentzes or their business.
Mr. Adkins also futher explained the surrounding circumstances; i.e., what
he was doing on the blog, how he obtained information about the Wentzes
and BMW, and how he used the blog to pass on information that he had
"heard" about the Wentzes and BMW. He also did not know the Wentzes,
had never done business with them, and testified that he had no vendetta
against them.
It was up to the bankruptcy court to determine the weight and
credibility to give to Mr. Adkins' conflicting testimony. Once the court
understood the surrounding circumstances, other inferences could be
drawn about whether Mr. Adkins had the subjective intent to inflict the
injury or whether he believed that injury was substantially certain to occur
as a result of his conduct.
Viewing the record in its entirety, Mr. Adkins' later testimony
22
supports the bankruptcy court's conclusion – he acted stupidly and
foolishly. He never thought about how inaccurate the information was on
the blog that he "passed on" to others. He had no vendetta against the
Wentz brothers or BMW and had never met them or done business with
them. This testimony coupled with Mr. Adkins' testimony about posting on
sportscards blogs in general supports the inference that Mr. Adkins had no
subjective motive to inflict injury on the Appellants nor did he believe that
injury was substantially certain to result from his own conduct.
In sum, although Mr. Adkins' testimony was contradictory at times,
"[i]f the [bankruptcy 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." Anderson, 470 U.S. at 573–74. That
is, the bankruptcy court's choice among multiple plausible views of the
evidence cannot be clearly erroneous. Id. Based on the facts and evidence in
the record, and all reasonable inferences from those facts, the bankruptcy
court could properly conclude that Mr. Adkins did not act willfully within
the meaning of § 523(a)(6). Accordingly, we discern no clear error.
CONCLUSION
For the reasons stated, we AFFIRM.
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