Memorandum Decision Kronk V Anthony PDF

Case 8:13-ap-00629-RCT Doc 173 Filed 02/28/19 Page 1 of 24
ORDERED.
Dated: February 28, 2019
UNITED STATES BANKRUPTCY COURT

MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
www.flmb.uscourts.gov
In re:
Casey Marie Anthony, Case No. 8:13-bk-00922-RCT

Chapter 7
Debtor.
__________________________________/
Roy Kronk,
Adv. No. 8:13-ap-00629-RCT
Plaintiff,
v.
Casey Marie Anthony,
Defendant.
__________________________________/
MEMORANDUM DECISION GRANTING

DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND
DETERMINING PLAINTIFF’S DEFAMATION CLAIM TO BE DISCHARGEABLE
Defendant Casey Marie Anthony was indicted, tried, and acquitted of the capital crime of
murdering her daughter Caylee Marie Anthony. Her trial in 2011 was a media frenzy, fostered in
part by her attorneys Jose Baez, Andrea Lyons, and Linda Kenney-Baden.
Plaintiff Roy Kronk was the meter reader who led investigators to Caylee Marie’s body.
He was a witness at trial. He was also the subject of television and print stories covering the trial.
During the criminal proceedings, Casey Anthony’s attorneys filed a motion in limine that
implicated Mr. Kronk in the crime. The attorneys then went on television to advance their defense
of Ms. Anthony on this basis. Mr. Kronk’s ex-wives and son, whose statements were in part the
factual basis of the motion in limine, apparently joined in the barrage against him by either
testifying at trial or appearing in the media.
From the time of her indictment in October 2008 until her acquittal, Casey Anthony sat in
the Orange County jail. There is no dispute that she never personally said anything to implicate
Mr. Kronk in the crime—either inside or outside the courtroom.
Once the criminal case concluded, Mr. Kronk sued Casey Anthony for defamation. Ms.
Anthony thereafter filed the underlying chapter 7 bankruptcy and received her general discharge.
Mr. Kronk now seeks to except his defamation claim from that discharge.
The issue presented is whether Casey Anthony willfully and maliciously injured Mr.
Kronk, within the meaning of § 523(a)(6) of the Bankruptcy Code, 1 through the acts of her
attorneys. Ms. Anthony moves for summary judgment.
Summary Judgment Standard
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.” 2 In this
context, “[a] genuine factual dispute exists only if a reasonable fact-finder ‘could find by a
preponderance of the evidence that the [non-movant] is entitled to a verdict [in its favor].’” 3
1
Statutory references are to 11 U.S.C. §§ 101–1532 (“Code” or “Bankruptcy Code”), unless stated otherwise.
2
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c) (1963) (later amended and
relocated, in part, to Fed. R. Civ. P. 56(a)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249–50 (1986); see
generally Fed. R. Civ. P. 56(a) (made applicable to this proceeding by Fed. R. Bankr. P. 7056).
3
Kernel Records Oy v. Mosley, 694 F.3d 1294, 1300 (11th Cir. 2012) (quoting Anderson, 447 U.S. at 252).
2
Though all reasonable inferences to be drawn from the underlying facts must be viewed in the light
most favorable to the non-movant, “inferences based upon speculation are not reasonable.” 4
The moving party bears the initial burden of articulating the basis for its motion and
identifying evidence which shows that there is no genuine issue of material fact. 5 Thereafter, the
burden shifts and the non-moving party must set forth specific facts showing that there is a genuine
issue for trial. 6 In so doing, the non-moving party may not rely on the “mere allegations or denials
of [its] pleadings.” 7 And “[a] mere scintilla of evidence in the form of conclusory allegations,
legal conclusions, or evidence that is merely colorable or not significantly probative of a disputed
fact cannot satisfy [the non-moving] party’s burden.” 8
Undisputed Facts
Caylee Marie was reported missing in July 2008. Her mother, Casey Anthony, was arrested
shortly thereafter and charged with, among others, child neglect and obstruction. Casey Anthony
was released from police custody for a brief period after her initial arrest, but then was formally
indicted for her daughter’s murder and incarcerated again on October 14, 2008. She remained in
custody until a jury acquitted her of the capital murder charges in July 2011. 9
While out of jail in the late summer and early fall of 2008, Casey Anthony met and
interacted with an unpaid private investigator named Dominic Casey. The circumstances and
events surrounding Mr. Casey’s involvement in the criminal case are ambiguous and confusing to
4
Id. at 1301 (quoting Marshall v. City of Cape Coral, 797 F.2d 1555, 1559 (11th Cir. 1986)).
5
See, e.g., Celotex, 477 U.S. at 323; Kernel Records Oy, 694 F.3d at 1300.
6
Kernel Records Oy, 694 F.3d at 1300.
7
Marshall v. City of Cape Coral, 797 F.2d 1555, 1559 (11th Cir. 1896) (quoting Fed. R. Civ. P. 56(e) (1963) (later
amended and relocated, in part, to Fed. R. Civ. P. 56(c)); see generally Fed. R. Civ. P. 56(c) (made applicable to this
proceeding by Fed. R. Bankr. P. 7056).
8
Wiand v. Wells Fargo Bank, N.A., 86 F. Supp. 3d 1316, 1320 (M.D. Fla. 2015), aff’d, 677 F. App’x 573 (11th Cir.
2017); see also Anderson, 477 U.S. at 249–50; Kernel Records Oy, 694 F.3d at 1301.
9
Anthony Dep. 18:18–21, Doc. 129 (hereafter, the “Anthony Dep.”).
3
say the least. 10 But it is clear that he had no contact with Casey Anthony after October 14, 2008.11
During the criminal proceedings, Casey Anthony was represented by many attorneys
including, but not limited to, Jose Baez, Andrea Lyons, and Linda Kenney-Baden (collectively,
the “Attorneys”). Ms. Anthony signed a retainer agreement with Jose Baez on July 17, 2008, and
a second retainer agreement with Mr. Baez on September 3, 2008. 12 Ms. Kenny-Baden and Ms.
Lyons joined the defense team at Mr. Baez’s invitation sometime after October 14, 2008. 13
In December 2008, Roy Kronk, a meter reader for Orange County, led investigators to
Caylee Marie’s body in a wooded area not far from Ms. Anthony’s home.
As the criminal proceedings progressed, the case drew national attention. The media
attention was unrelenting and, fair to say, was not favorable to Casey Anthony.
In November 2009, Mr. Baez and Ms. Lyons filed a motion in limine in the criminal
proceedings that implicated Mr. Kronk in the crime. 14 The motion in limine states that the evidence
to be presented at trial of bad acts by Mr. Kronk related to statements from his son, his ex-wives,
and the daughter of his ex-girlfriend. 15
After filing the motion in limine, the Attorneys began a media blitz of their own to discuss
the allegations in the motion in limine and to try to counter the bad publicity that Casey Anthony
was receiving in the press. They appeared on television and made comments picked up by the
print media that raised suspicions about Mr. Kronk’s discovery of Caylee Marie’s remains. The
media blitz also gave voice to the statements referenced in the motion in limine made by Mr.
10
Mr. Casey claims Mr. Baez hired him in July 2008. Casey Dep. 22:21–23:3, Sept. 22, 2016, Doc. 132 (hereafter,
“Casey Sept. Dep.”); Casey Dep. 118:4–9, Nov. 2, 2016, Doc. 131 (hereafter, “Casey Nov. Dep.”). He also claims to
have fired Mr. Baez by early October 2008. Casey Nov. Dep. 127:14–128:11; Casey Sept. Dep. 41:3– 20.
11
Casey Nov. Dep. 161:13–15; Casey Sept. Dep. 159:10–20.
12
Anthony Aff. Exs. 1 and 2, Doc. 133 (hereafter, “Anthony Aff.”).
13
Anthony Dep. 10:2–3, 10:10–25, 11:8–11, 12:9–14.
14
Anthony Dep. Ex. 1.
15
Id.
4
Kronk’s ex-wives and others, who did not have good things to say about Mr. Kronk. According
to the National Enquirer, Jill Kerley, one of Mr. Kronk’s ex-wives, was “the most vicious in her
accusations against her husband.” 16
Casey Anthony was acquitted of the capital murder charges on July 5, 2011. 17 However,
she was convicted of giving false information to the police about the circumstances of Caylee
Marie’s disappearance. 18
A few months after the trial concluded, Mr. Kronk filed a defamation action against Casey
Anthony in the Ninth Judicial Circuit Court for Orange County. But the lawsuit was not served
on Ms. Anthony until January 2013. Ms. Anthony responded by filing the underlying chapter 7
bankruptcy petition within days of being served with the state court complaint. She received her
bankruptcy discharge on December 17, 2013. 19
Summary Judgment Record
This adversary proceeding was filed timely by Mr. Kronk on July 22, 2013. 20 In the single
count complaint, 21 he seeks a declaration that his defamation claim is excepted from Ms.
Anthony’s bankruptcy discharge because his claim resulted from willful and malicious injury
within the meaning of § 523(a)(6) of the Bankruptcy Code.
The Complaint alleges that defamatory statements were made against Mr. Kronk on
November 18 and 20, 2009, December 7, 2009, December 23 or 24, 2010, and June 11, 2011, by
16
Anthony Dep. Ex. 4. The court is not unmindful of the irony of citing to the National Enquirer to establish a fact,
but it is one of the articles that Mr. Kronk points to as the source of his defamation. No suggestion is made that
anything Ms. Kerley said is true, only that she joined in the attack and fueled the media fire.
17
Anthony Aff. ¶ 10.
18
Answer ¶ 11, Doc. 27 (admitting Compl. ¶ 11 (Doc. 21)).
19
Case No. 8:13-bk-00922-RCT, Doc. 140.
20
Doc. 1.
21
An amended complaint was filed on November 26, 2013 (the “Complaint”) (Doc. 21).
5
Ms. Anthony “through her attorneys, who acted as her agents . . . .” 22 Ms. Anthony answered the
Complaint, denying the material allegations and asserting numerous affirmative defenses. 23
On January 7, 2016, Ms. Anthony moved for judgment on the pleadings on grounds that
she did not make the statements in question. 24 Mr. Kronk responded to the motion with discovery
responses from Ms. Anthony and the Affidavit of Dominic Casey (the “Casey Affidavit”). 25 The
Casey Affidavit states, in relevant part:
In October 2008, just prior to the remains being found, Casey Anthony told
me that when Caylee came up missing, the back gate was left ajar. Since Roy
Kronk was a meter reader for the house, maybe “we could say Roy Kronk
kidnapped Caylee.”
I told her then I would not do that because we both know he had nothing to
do with Caylee’s disappearance, but she was insistent that he (Roy Kronk) be
implicated or blamed in some way.
On December 11, 2008, it was confirmed that Roy Kronk had discovered
Caylee’s remains.
During a meeting at the hotel that evening, Jose Baez came to meet with
George and Cindy Anthony. She asked him what was found. Attorney Baez said,
“let’s go to the room to talk, Roy Kronk is very, very suspicious.”
...
Based on my personal knowledge of the events and statements I personally
heard from Casey Anthony she authorized and permitted her attorneys including,
Jose Baez, to make false statements about Roy Kronk to portray him as a murderer
and or kidnapper of Caylee Anthony. 26
Because Mr. Kronk introduced evidence beyond the pleadings, the court instructed the parties to
frame the issues on motions for summary judgment. 27
22
Compl. ¶ 12.
23
Doc. 27
24
Doc. 68.
25
Doc. 70 Ex. A (Casey Aff., Dec. 28, 2015).
26
Casey Aff. ¶¶ 5–8, 10.
27
Doc. 73. See Fed. R. Civ. P. 12(d) (incorporated herein by Fed. R. Bankr. P. 7012).
6
In December 2017, Ms. Anthony moved for summary judgment. 28 In support of her
motion, Ms. Anthony submitted an affidavit and her own deposition. 29
In her affidavit, Ms. Anthony avers:
I never authorized or directed my defense attorney, Jose Baez, Esq., or other

members on the defense team representing me in the murder charges, including
Linda Kenney Baden, Esq. and Andrea Lyons, Esq. to say anything about the
Plaintiff, Roy Kronk.
Prior to making this affidavit, I did not know and had never communicated
with the Plaintiff, Roy Kronk.
...
What Jose Baez, Esq., Linda Kenney Baden, Esq. and/or Andrea Lyons,
Esq. said to the public and the media while I was incarcerated was unknown to me
until I was served with this lawsuit in 2013. 30
In her deposition, Ms. Anthony conceded that she knew Mr. Baez was talking to the press,
but she usually found out after the fact, if at all. She claimed to have no knowledge regarding any
statements to the press about Mr. Kronk. 31
Ms. Anthony also filed the deposition of Dominic Casey. 32 In his deposition, Mr. Casey
explained his statements in the Casey Affidavit:
Q Do you remember specifically what Ms. Anthony said about Mr. Kronk,
what permission she gave Jose Baez about—regarding Mr. Kronk?
A Permission is by not saying something to say we’re not going to blame him,
right? She is going along with what Baez is saying. 33
On questioning by Mr. Kronk’s attorney, Mr. Casey stated:
Q Did you, personally, hear from Casey Anthony that she permitted her
attorneys, including Jose Baez, to portray people, including Roy Kronk,
make false statements about them as being responsible for the murder of
28
Doc. 141.
29
Docs. 133 (Anthony Aff., with exhibits) and 129 (Anthony Dep., with exhibits).
30
Anthony Aff. ¶¶ 8, 9, and 11.
31
Anthony Dep. 17:18–18:13, 20:24–21:10, 21:17–21, 23:15–25:8, 28:23–30:1.
32
Docs. 131 (Casey Nov. Dep.) and 132 (Casey Sept. Dep.). The deposition began on September 22, 2016 and was
concluded on November 2, 2016.
33
Casey Nov. Dep. 45:15–20.
7
Caylee Anthony?
…
[A] She was complicit in what was going on. This is what [Baez is] feeding her
and she’s going along with it. Right?
[Q] Okay.
[A] So, I mean, she’s like listening to somebody that she thinks is providing
good advice, but he is not. 34
...
Q But you witnessed her going along with it, right?
A Of course she went along with it.
Q Okay.
A She was going along with whatever Jose Baez said.
Q Okay.
A That was the bottom line . . . . But she didn’t know any better. That’s why
I was saying she was bloody naïve. 35
On redirect, Mr. Casey testified:
Q Did you ever see her— did you ever see a document where she wrote down,
you are authorized on my behalf to make remarks about Roy Kronk or a
meter reader?
A There is no such document[].
Q Did you ever hear [Ms. Anthony] tell Mr. Baez, you are authorized to blame
Mr. Kronk for any incident here?
Did you ever hear her say that?
A No, she did not.
Q Okay. If I understand correctly, the problem—would it be fair to say the
problem was she didn’t fire him, that she didn’t direct her own case, that
she allowed Jose [Baez] to direct the case? Is that correct?
A She had nothing to do with her own case. That was the thing.
Q That was the problem?
A She didn’t do nothing . . . . 36
And finally, in the wrap up by Mr. Kronk’s counsel, Mr. Casey further explains:
Q You testified earlier that Ms. Anthony didn’t have anything to do with her
own case.
A She had nothing to do with nothing.
34
35
36
Casey Nov. Dep. 125:17–126:9.
8
...
Q Was she making decisions, I mean, for her own case?
A No, no.
Q Was she authorizing Jose Baez to say things?
A Nothing. . . . 37
...
[A] She had no idea what the bloody hell was going on. She’s too naïve. She
was then.
Q Okay. And then what about later?
...
[A] Up until—up until October 14th—and that would be a Tuesday—2008—
up until then, what I knew about Casey Anthony was she was naïve as a bloody
fool and whatever that—whatever that scoundrel would tell her is what she would
do. . . . 38
After October 14, 2008, Mr. Casey did not see or talk to Casey Anthony again. 39
Applicable Law
Exceptions to a bankruptcy discharge are construed narrowly to encourage the debtor’s
fresh start anticipated by the Bankruptcy Code. 40 Although certain debts are excepted from a
general discharge, it is presumed that all debts owed by a debtor are dischargeable unless an
objecting party proves otherwise. “The burden is on the [objecting party] to prove an exception to
discharge by a preponderance of the evidence.” 41
Mr. Kronk seeks to have his defamation claim declared non-dischargeable under
§ 523(a)(6), which excepts from discharge debts “for willful and malicious injury by the debtor to
another entity or to the property of another entity.” Mr. Kronk thus must show, by a preponderance
37
38
Casey Nov. Dep. 158:20–159:7.
39
40
See, e.g., United States v. Fretz (In re Fretz), 244 F.3d 1323, 1326–27 (11th Cir. 2001); Kane v. Stewart Tilghman
Fox & Bianchi, P.A., 485 B.R. 460, 468 (S.D. Fla. 2013), aff’d, 755 F.3d 1285 (11th Cir. 2014); General Ret. Sys. of
Detroit v. Farr (In re Farr), No. 14-73606-WLH, Adv. No. 16-5325-WLH, 2018 WL 1577934, at *4 (Bankr. N.D.
Ga. Mar. 27, 2018).
41
In re Farr, 2018 WL 1577934, at *4 (citing Grogan v. Garner, 498 U.S. 279, 287–88 (1991), among others).
9
of the evidence, that his defamation claim arose from a “willful and malicious injury by the
debtor.” 42 Proof of both elements is required. 43
In this context, the term “willful” does not include reckless or negligent conduct by a
debtor. As explained by the Supreme Court in Kawaauhau v. Geiger: 44
The word “willful” in [§ 523](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 [§523](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). 45
Thus, a debtor must intend the injury, not just the act that leads to the injury. Injuries that arise
from accident, inadvertence, negligence, or recklessness are not considered “willful” for purposes
of § 523(a)(6). 46
In the Eleventh Circuit, a debtor commits a “willful” injury “when he or she commits an
intentional act the purpose of which is to cause injury or which is substantially certain to cause
injury.” 47 In discussing the scope of “willful” injury, the Eleventh Circuit has thus far avoided
answering the question of whether a subjective or objective standard applies when considering
whether the intentional act is “substantially certain to cause injury.” 48 Other circuit courts are split
42
§ 523(a)(6) (emphasis added).
43
See, e.g., Monson v. Galaz (In re Monson), 661 F. App’x 675, 682–85 (11th Cir. 2016).
44
523 U.S. 57 (1998).
45
Id. at 61–62 (emphasis in original).
46
Id.
47
Kane v. Stewart Tilghman Fox & Bianchi, P.A. (In re Kane), 755 F.3d 1285, 1293 (11th Cir. 2014) (quoting
Maxfield v. Jennings (In re Jennings), 670 F.3d 1329, 1334 (11th Cir. 2012)).
48
See Monson, 679 F. App’x at 684 n.9.
10
on this issue. 49 Courts within this circuit tend to apply a subjective test when dealing with financial
injury and an objective test when dealing with physical injury. 50 But the application of either test
must be consistent with the Supreme Court’s holding that reckless or negligent conduct is not
“willful” under § 523(a)(6). 51
The term “malicious” in § 523(a)(6) means “wrongful and without just cause or excessive
even in the absence of personal hatred, spite or ill-will.” 52 Malice may be implied “if the nature
of the act itself implies a sufficient degree of malice.” 53 Specific intent to harm the creditor need
not be shown. 54 “[T]his inquiry must be guided by the totality of the circumstances” 55 and the
court must determine if the alleged wrongful act was an act, committed deliberately, that the debtor
“knew would necessarily injure a cognizable right of the [objecting party].” 56 Said differently,
there must be some “consciousness of wrongdoing.” 57
49
Id.; see also Kane, 755 F.3d at 1293 (citing cases); Armstrong v. Oslin (In re Oslin), 584 B.R. 363, 374–75 (Bankr.
N.D. Okla. 2018) (noting split as between the Fifth and Tenth Circuits).
50
See Kane, 485 B.R. at 469 n.11 (“This Court also finds that the Bankruptcy Court correctly utilized a subjective
analysis to determine substantial certainty dealing with injuries resulting from financial harm.”); see also George v.
George (In re George), No. 8:09-bk-07653-CED, Adv. No. 8:09-ap-00445-CED, 2012 WL 1229840, at *4 (Bankr.
M.D. Fla. Apr. 11, 2012) (applying a subjective test to financial injury); Drewes v. Levin (In re Levin), 434 B.R. 910,
919–20 (Bankr. S.D. Fla. 2010) (applying an objective test to a shooting).
51
See Maxfield v. Jennings (In re Jennings), 670 F.3d 1329, 1334 (11th Cir. 2012) (reiterating that under § 523(a)(6),
injuries that are recklessly or negligently inflicted are not excepted from discharge); see also In re Levin, 434 B.R. at
920 (noting that as a result of the “somewhat attenuated relationship” between an claimed willful act and resulting
harm in a financial injury case, applying “a purely objective substantial certainty analysis would bring the court
dangerously close to the recklessness standard[,]” which would run afoul of the rule).
52
Kane, 755 F.3d at 1294 (quoting Jennings, 670 F.3d at 1334).
53
Monson, 661 F. App’x at 683 (quoting Lee v. Ikner (In re Ikner), 883 F.2d 986, 991 (11th Cir. 1989)).
54
Id. at 682–83; see Kane, 755 F.3d at 1294.
55
United States v. Shelmidine (In re Shelmidine), 519 B.R. 385, 393 (Bankr. N.D. N.Y. 2014); see Gonzalez v.
Anthony (In re Anthony), 538 B.R. 145, 155–56 (Bankr. M.D. Fla. 2015).
56
Cladakis v. Triggiano (In re Triggiano), 132 B.R. 486, 490 (Bankr. M.D. Fla. 1991); see In re Shelmidine, 519
B.R. at 393–94; see also Barclays Am./Bus. Credit, Inc. v. Long (In re Long), 774 F.2d 875, 881 (8th Cir. 1985):
[I]f malice, as it is used in § 523(a)(6), is to have any meaning independent of willful it must apply
only to conduct more culpable than that which is in reckless disregard of creditors’ economic
interests and expectancies, as distinguished from mere legal rights. Moreover, knowledge that legal
rights are being violated is insufficient to establish malice, absent some additional “aggravated
circumstances[.]”
57
In re Anthony, 538 B.R. at 155–56; see Kane, 755 F.3d at 1294–95 (affirming finding of malice where debtor’s
testimony suggested he knew at the time that his actions “did not ‘feel right’” and even considered alerting the
objecting creditor but ultimately decided to proceed with a transaction that significantly enriched himself at the
11
i. Whether vicarious liability can support a non-dischargeable debt under

§ 523(a)(6) for willful and malicious injury.
The first issue raised by Ms. Anthony is whether a claim based on vicarious liability can
ever be “willful” under § 523(a)(6). She argues that the statute means what it says when it says
that the willful conduct must be “by the debtor.”
Indeed, Ms. Anthony is correct that courts uniformly do not recognize vicarious liability to
satisfy the “willful” requirement for a § 523(a)(6) claim because it is one party’s liability for the
conduct of another. 58 As explained in one of the seminal cases on this point:
There is nothing in the language or the legislative history of § 523(a)(6) to suggest

that common law notions of vicarious or imputed liability are appended to the
statutory exceptions to a discharge in bankruptcy. Quite the contrary, application
of vicarious liability would effectively vitiate the § 523(a)(6) requirement that only
debts resulting from the willful acts committed by the debtor be nondischargeable.
Vicarious liability as a social policy or legal fiction ignores the master’s knowledge
and imposes fault and financial responsibility without regard to culpability or
intent. Section 523 is founded on the contrary notion that only a debt resulting from
the deliberate acts of the debtor can be excepted from discharge in bankruptcy. In
the absence of clear statutory exception for “vicarious acts,” the legislative intent
to permit a broad discharge in bankruptcy should not be emasculated by common
law tort principles. 59
expense of the objecting creditor); American Honda Fin. Corp. v. Grier (In re Grier), 124 B.R. 229, 232–33 (Bankr.
W.D. Tex. 1991) (concluding there must be “‘something extra’ that demonstrates that the debtor acted without just
cause or excuse” otherwise “nearly any intentional conduct would fall within this exception to discharge”).
58
See, e.g., Richards v. Smith (In re Smith), No. 10-27260 HRT, Adv. No. 10-1749 HRT, 2012 WL 425196, at *7
(Bankr. D. Colo. Feb. 9, 2012) (“Merely proving that the [d]efendant could be held liable . . . under a state law
vicarious liability theory such as aiding and abetting, without also proving [d]efendant’s intent to injure the [p]laintiff,
is insufficient to hold her liable under § 523(a)(6).”); First New Mexico Bank v. Bruton (In re Bruton), No. 7-09-13458
JA, Adv. No. 09–1187 J, 2010 WL 2737201, at *8 (Bankr. D.N.M. July 12, 2010) (noting that upon the enactment of
the Bankruptcy Code, the phrase “by the debtor” was added to § 523(a)(6)’s precursor in the Bankruptcy Act,
indicating a specific rejection of vicarious liability theory); Contini v. Cook (In re Cook), No. 07-31763-mcr, Adv.
No. 07–50072–mcr, 2009 WL 2872864, at *5 (Bankr. N.D. N.Y. Apr. 7, 2009) (“Nondischargeability of a debt under
Code section 523(a)(6) cannot be grounded on the imputation to the debtor of the acts of another.” (internal quotation
omitted)); see also American First Credit Union v. Gagle (In re Gagle), 230 B.R. 174, 182–83 (Bankr. D. Utah 1999)
(finding wife’s “mere acquiescence” in husband’s conduct insufficient to satisfy the “willful” prong); Hamilton v.
Nolan (In re Nolan), 220 B.R. 727, 731–32 (Bankr. D.D.C. 1998) (declining to impute to debtor actions of an equal
co-owner of her business); Giuliano v. Albano (In re Albano), 143 B.R. 323, 324–25 (Bankr. D. Conn. 1992) (declining
to impute to debtor actions of employee who physically assaulted and injured plaintiff).
59
Thatcher v. Austin (In re Austin), 36 B.R. 306, 311–12 (Bankr. M.D. Tenn. 1984).
12
For example, in In re Eggers, 60 plaintiff sought to declare an unliquidated, wrongful death
claim non-dischargeable under § 523(a)(6) as against two debtors, a mother and her minor son.
The plaintiff’s daughter was killed in a two-car collision when the automobile driven by the debtor-
son crossed the centerline. By signing her son’s application for his driver’s license, the debtor-
mother had accepted vicarious liability for his wrongful conduct in any auto accident under state
law. 61 But in bankruptcy, her debt to the plaintiff was discharged. The court noted that the
mother’s “only participation” in the events leading up to the accident was the signing of her son’s
driver’s license application. The court determined that Congress negated imputed liability under
§ 523(a)(6) upon the enactment of the Bankruptcy Code when it added the requirement that to be
discharged the “willful” conduct be “by the debtor.” 62
Recently, in In re Smith, 63 plaintiffs sought to declare non-dischargeable under § 523(a)(6)
a judgment in their favor and as against their employer arising from a sexual harassment suit. The
suit was based upon conduct suffered by the plaintiffs from certain mid-level employees. 64 The
debtor-employer, like the mother in Eggers, was vicariously liable for his employees’ improper
conduct under non-bankruptcy law. But in bankruptcy, the employer’s liability was discharged
because the debtor-employer did not commit the injury and no facts were offered demonstrating
that the employer had intended to injure plaintiffs. Again, the court held that vicarious liability
does not establish “willful” injury “by the debtor” within the meaning of § 523(a)(6). 65
Mr. Kronk suggests, however, there are exceptions to this uniform rule, relying primarily
60
Yelton v. Eggers (In re Eggers), 51 B.R. 452 (Bankr. E.D. Tenn. 1985)
61
Id. at 452–53.
62
Id. at 453–54; accord In re Bruton, 2010 WL 2737201, at *8; DeRoche v. Miller (In re Miller), 196 B.R. 334, 336–
37 (Bankr. E.D. La. 1996).
63
Loukes v. Smith (In re Smith), 537 B.R. 1 (Bankr. M.D. Ala. 2015).
64
Id. at 6–8.
65
Id. at 14–16; accord In re Cook, 2009 WL 2872864, at *5 (“The acts of another, even an employee of the [d]ebtor,
cannot provide the basis for a Code section 523(a)(6) claim against the [d]ebtor.”).
13
on In re Sullivan. 66 However, neither In re Sullivan nor the other cases identified by Mr. Kronk
support that contention. 67
In In re Sullivan, 68 a debtor was held vicariously liable for actions taken by a work crew
he hired to perform construction work on his property. After a jury trial, a state court judgment
was entered against the debtor for trespass and destruction of his neighbors’ property. The jury,
in answer to a special question, found that debtor did not have “good reason to believe” that the
neighbors’ land was his own or that he was “lawfully authorized” to commit the acts which led to
the destruction of his neighbors’ property. 69
Once in bankruptcy, the debtor attempted to discharge the judgment on grounds that he did
not actually trespass and cause the damage. The bankruptcy court refused to discharge the debt,
determining that the debtor’s willfulness was conclusively established in the state court
proceeding. Based upon the jury’s answer to the special question, the court found that even though
the debtor did not himself trespass or destroy property, the evidence demonstrated that debtor knew
the land was not his and still directed the work crew to proceed. This, the court concluded, was
“deliberate and intentional conduct within the scope of section 523(a)(6).” 70
Contrary to Mr. Kronk’s suggestion, the Sullivan court subscribed to the uniform rule, but
rejected the debtor’s argument because it determined that his liability was not “based solely on the
conduct of others.” The court stated:
66
Bairstow v. Sullivan (In re Sullivan), 198 B.R. 417 (Bankr. D. Mass. 1996).
67
As examples, Impulsora Del Territorio Sur, S.A. v. Cecchini (In re Cecchini), 780 F.2d 1440 (9th Cir. 1986), was
decided before Kawaauhau and applied the standard for “willful” injury expressly rejected by the Supreme Court. It
is therefore of limited relevance. Oetker v. Bullington (In re Bullington), 167 B.R. 157 (Bankr. W.D. Mo. 1994), was
also decided before Kawaauhau, and relied in relevant part on Cecchini. Further, in Bullington, the debtor-wife
admitted that she signed a financing statement knowing that certain pledged collateral was no longer in the debtors’
possession, and although she may not have participated directly in converting the collateral with the debtor-husband,
the court found that she “participated in the benefits of the conversion.” 167 B.R. at 163.
68
In re Sullivan, 198 B.R. 417.
69
Id. at 418–19.
70
Id. at 424.
14
I have previously held . . . that a judgment against a debtor based on acts of an agent
is not within the meaning of the exception to discharge of a debt for willful and
malicious conduct. Section 523 of the Code, as a whole, is aimed at individual
conduct of the debtor deemed so socially reprehensible and as to be unworthy of a
discharge in bankruptcy. This is made clear by the wording of the statute itself,
which requires that the action at issue be “by the debtor.” Therefore, a judgment
based on actions for which the debtor may be legally responsible but which were
not performed by the debtor is outside the scope of both the language and intent of
the statute. . . .
[I]f the Debtor’s judgment liability was based solely on the conduct of others, the
debt would be excepted from discharge. . . . [I]n its answer to special question 2(B)
the jury found the Debtor had no good reason to believe the Plaintiffs’ land was his
or that he was authorized to do the complained of acts. It is clear from this answer
that the evidence convinced the jury the Debtor knew his workcrew was on land
which was not his and that he had no authority for the crew’s removal of the trees
and other items from the land. Debts based on vicarious liability are not excepted
from discharge because they are not based on deliberate and or intentional conduct
by the liable party. In contrast, the jury here found the Debtor knew this continuing
trespass was being committed but did nothing about it. That is deliberate and
intentional conduct within the scope of section 523(a)(6). Therefore, the
established law regarding vicarious liability does not aid the Debtor. 71
The court did not rely on vicarious liability to establish the “willful” injury required by § 523(a)(6),
rather it determined that the debtor desired and brought about, albeit indirectly, the injury suffered
by the state court plaintiffs. 72 In this regard, the debtor’s role was something more than mere
passivity or mere acquiescence. 73
In contrast to the uniform rule regarding “willful” injury, principals of vicarious liability
may support a finding of malice for purposes of § 523(a)(6). 74 At least one court, after
acknowledging the uniform rule, indicated that “the doctrine of vicarious liability cannot shield a
71
Id. at 423–24.
72
The same may be said for Caci v. Brink (In re Brink), 333 B.R. 560 (Bankr. D. Mass. 2005), which Mr. Kronk also
cites. The Brink court, which relied heavily on In re Sullivan, concluded that although one of the debtors did not
himself carry out the actions that led to the injury, he nevertheless had the requisite intent to injure plaintiff’s property
as he both “knew about and supported” the actions of the party who did. Id. at 570–71.
73
In re Sullivan was decided before Kawaauhau; however, its analysis is consistent with the rule later articulated by
the Supreme Court. Interestingly, the court noted that “[t]here appears to be no dispute that the conduct at issue was
willful.” In re Sullivan, 198 B.R. at 419. Rather, the discussion focused on malice.
74
See Sanger v. Busch (In re Busch), 311 B.R. 657, 668 (Bankr. N.D. N.Y. 2004).
15
debtor from a finding of malice for purposes of Section 523(a)(6) if the debtor had notice of an
injury being inflicted by its agents or employees and could have, but did not, prevent it.” 75 And
the court in In re Smith, discussed above, found that plaintiffs had sufficiently alleged that the
debtor-employer maliciously injured them based upon the sexual harassment inflicted upon them
by middle management. 76 But a finding of malice alone is not enough for purposes of § 523(a)(6),
the injury must still be “willful”. 77
It is clear that a debtor’s mere passive vicarious liability will not support a non-
dischargeable judgment under § 523(a)(6). Something more, some deliberate conduct indicating
a desire to cause injury, is required “by the debtor” to satisfy the “willful” requirement of the
statute. 78 Still, this “something more” must be constrained by the Supreme Court’s ruling that
negligence or recklessness is not enough.
ii. Whether a criminal defendant is ever vicariously liable for potentially defamatory
statements made to the media by counsel.
The next issue raised by Ms. Anthony is whether the agency between a criminal defendant
and her attorneys is sufficient to give rise to a non-dischargeable defamation claim based on
statements made by the attorneys to the media. And here, it is somewhat curious that Mr. Kronk
has not sued the Attorneys or even his ex-wives or son for defamation.
Mr. Kronk largely assumes that an attorney-client relationship operates the same as an
employer-employee relationship. But that assumption must be tested by the complications of an
attorney-client relationship. First, certain privileges must be considered. Second, the attorney’s
75
Yash Raj Films (USA), Inc. v. Akhtar (In re Akhtar), 368 B.R. 120, 133 (Bankr. E.D. N.Y. 2007); accord In re
Smith, 537 B.R. at 15; In re Busch, 311 B.R. at 668.
76
In re Smith, 537 B.R. at 15.
77
See, e.g., Monson, 661 F. App’x at 682–85; In re Smith, 537 B.R. at 14; In re Akhtar, 368 B.R. at 127.
78
See, e.g., In re Smith, 537 B.R. at 13–15; Diamond v. Vickery (In re Vickery), No. 10-41118 ABC, Adv. No. 11-
01164 ABC, 2011 WL 4963136, at *10 n.10 (Bankr. D. Colo. Oct. 17, 2011); In re Busch, 311 B.R. at 669–71.
16
added role as an officer of the court must be factored into the analysis. And finally, the balance of
power between a client and an attorney must be compared to the balance of power between an
employer and an employee in a typical manufacturing or business setting.
To begin, Florida recognizes an “absolute privilege” for defamatory statements made
during a judicial proceeding. “[N]o cause of action for damages will lie, regardless of how false
or malicious the statements may be, so long as the statements are relevant to the subject of
inquiry.” 79 This absolute privilege may tamp down to a “qualified privilege” when an attorney
makes out of court statements in connection to a pending proceeding. 80 If an out of court statement
by an attorney does not relate to the subject matter of the judicial proceeding, no qualified privilege
arises. But if the out of court statement bears some relation to the judicial proceeding, then the
qualified privilege arises and may only be overcome with a showing of express malice. 81
Here, the motion in limine implicating Mr. Kronk was absolutely privileged under Florida
law and, accordingly, it offers no basis for a defamation claim. This is not seriously disputed.
Moving on, if the out of court statements by the Attorneys related to the criminal proceedings in
general or more specifically to the motion in limine, then the Attorneys’ comments are protected
by a qualified privilege absent proof of express malice on their part. And if the Attorneys’
comments are privileged, then there is no underlying liability to be imputed to Ms. Anthony and,
in turn, no debt arises for which a nondischargeable determination may be made.
Next, attorneys do not serve as agents to their clients in the same way that an employee is
an agent for an employer. An attorney also serves as an officer of the court with legal and ethical
79
Fridovich v. Fridovich, 598 So. 2d 65, 66 (Fla. 1992); see DelMonico v. Traynor, 116 So. 3d 1205, 1211–19 (Fla.
2013) (discussing the history and scope of Florida’s absolute privilege).
80
DelMonico, 116 So. 3d at 1218–19 (dealing with defamatory statements in the context of witness interviews).
81
Id. at 1219; see Fridovich, 598 So. 2d at 69 (“In overcoming a qualified privilege, a plaintiff would have to establish
by a preponderance of the evidence that the defamatory statements were false and uttered with common law express
malice—i.e., that the defendant’s primary motive in making the statements was the intent to injure the reputation of
the plaintiff.”).
17
constraints. Unlike an employee whose actions are determined and directed by his employer, an
attorney cannot always take direction from the client. Further, an employer may always fire an
employee, sometimes without cause. But while a client may fire an attorney, financial
considerations and circumstance may restrict the exercise of that option. Not to mention, the court
may prohibit an attorney’s withdrawal.
Last, as a practical matter, an attorney may have more influence and power than a typical
employee. Whereas the debtor in Sullivan could easily have directed his work crew to stop
trespassing upon and destroying his neighbors’ property, it is less clear that a criminal defendant
sitting in jail could compel her attorneys to go on television and defame someone under threat that
failing to do so would result in the attorneys being fired. And it cannot pass without note, a client,
particularly an unsophisticated criminal defendant, often selects an attorney to provide skilled
guidance during the course of a legal matter and then relies heavily on that advice. This is not
usually the case in the typical manufacturing or business setting. The dynamics of the relationship
may result in the employee-attorney having more influence over the employer-client.
These are factors to be considered in assessing vicarious liability based on agency arising
from an attorney-client relationship.
iii. Whether the Casey Affidavit Should be Stricken as a “Sham.”
The next issue raised by Ms. Anthony is whether the Casey Affidavit should be stricken as
a “sham” because it is directly contradicted by Mr. Casey’s deposition testimony. The court does
not agree. Mr. Casey’s deposition can be reasonably construed as an explanation and clarification
of what he meant in his earlier affidavit. And because for purposes of summary judgment
inferences must be made in favor of the non-moving party, the court accepts Mr. Casey’s
explanations as supplementing rather than contradicting his affidavit.
18
For example, Mr. Casey states in his affidavit that Ms. Anthony “authorized and permitted”
her attorneys to implicate Mr. Kronk. His deposition testimony clarifies that by “authorized and
permitted” he meant that, at best, she was complicit in the act because she did not fire Mr. Baez,
not because she was directing the formulation of her defense. Mr. Casey emphatically and
repeatedly explains that Ms. Anthony went along with everything Mr. Baez suggested because she
was “bloody naïve” and did not fully appreciate what was happening to her. And he unequivocally
states that, during his brief involvement in the case, Ms. Anthony never affirmatively told Mr.
Baez or anyone else to implicate Mr. Kronk and that she played no role in the formulation of her
defense.
Considering the Casey Affidavit, as explained by Mr. Casey in his deposition, the
following facts remain undisputed: (1) Mr. Casey never heard Ms. Anthony direct Mr. Baez to
implicate Mr. Kronk nor saw any document directing Mr. Baez to do so; (2) Mr. Casey had no
contact with Ms. Anthony after October 14, 2008; and (3) Mr. Casey never spoke to Ms. Anthony
about Ms. Lyons or Ms. Kenney-Baden, who were retained well after October 2008.
iv. Whether Ms. Anthony’s assertion of the Fifth Amendment in connection with the
death of Caylee Marie requires the court draw an adverse inference that precludes
summary judgment.
In opposition to Ms. Anthony’s motion, Mr. Kronk argues that summary judgment is not
proper because adverse inferences should be drawn against Ms. Anthony based on her continued
assertion of the Fifth Amendment in response to his requests for admissions. 82 Mr. Kronk is
correct that in a civil action, adverse inferences may be drawn against a party asserting the privilege
against self-incrimination. 83 But Mr. Kronk does not accurately characterize Ms. Anthony’s
82
Doc. 70 Ex B.
83
See, e.g., Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300, 1310 (11th Cir. 2014); In re McGinnis, 18 B.R. 525, 527
(Bankr. N.D. Ga. 1982).
19
objections to the requests for admission.
Ms. Anthony’s discovery responses raise three objections to the cited admission requests:
(i) a general scope and form objection, (ii) an objection based on privileged attorney-client
communications, and (iii) an objection based on the Fifth Amendment. 84 Ms. Anthony’s responses
were served on Mr. Kronk in April 2014, and in the four years since, Mr. Kronk has not filed any
motion to compel.
Because there are three objections for each of the relevant requests for admission, the court
is unable to conclude that the Fifth Amendment is the dispositive objection to each admission. In
fact, it appears to be asserted as an alternative. 85 If the admission is protected by the attorney-
client privilege—as most seem to be 86—an adverse inference is not appropriate. Mr. Kronk points
to no legal basis for an adverse inference against a party asserting attorney-client privilege.
Moreover, Ms. Anthony’s assertion of the Fifth Amendment goes to the crime itself and
not to the operative issue in this adversary proceeding, i.e. whether she engaged in conduct that
caused willful and malicious injury to Mr. Kronk within the meaning of § 523(a)(6).
The problem of proof facing Mr. Kronk is not the Fifth Amendment. Rather, it is the
assertion of attorney-client privilege. His case for vicarious liability necessarily invades
confidential communications between Ms. Anthony and her attorneys. This may explain why,
after five years in this court, the only evidence Mr. Kronk offers against Ms. Anthony, other than
proposed adverse inferences, is the Casey Affidavit and Mr. Casey’s deposition testimony.
Applying the Law to the Facts
The court is sensitive that there are those who feel that Ms. Anthony escaped justice when
84
The Fifth Amendment is asserted by Ms. Anthony based on potential federal charges or additional state charges
that might be asserted against her. Answer to Interrog. No. 14 (Doc. 70 Ex. C).
85
Doc. 70 Ex. B.
86
The attorney-client privilege objection also predominated the discussion during Ms. Anthony’s deposition.
20
she was acquitted of the murder charges. But the bankruptcy court is not the forum for those
concerns.
The sole issue here is whether there is a triable issue of fact that Ms. Anthony willfully and
maliciously injured Mr. Kronk as those terms are used in § 523(a)(6) of the Bankruptcy Code. As
conceded by Mr. Kronk’s counsel at oral argument, any claim that Casey Anthony recklessly or
negligently implicated Mr. Kronk in the death of Caylee Marie was discharged years ago. All that
remains is examining the requirements for exception to discharge under § 523(a)(6).
i. Injury to Mr. Kronk
The court has thus far not discussed a third requirement for an exception to discharge under
§ 523(a)(6), namely that the complaining party must have suffered an injury to person or
property. 87 Mr. Kronk asserts the former, claiming that in speaking to the media in defense of Ms.
Anthony, the Attorneys defamed him. It is debt arising from this injury that Mr. Kronk seeks to
impute to Ms. Anthony by virtue of vicarious liability.
It is not disputed that defamation, if proved, may serve as the underlying injury for purposes
of § 523(a)(6). There is great dispute regarding the viability of Mr. Kronk’s defamation claim.
However, the court need not decide the issue as the court assumes, for purposes of summary
judgment, that the statements are defamatory. 88 Were it to reach the issue, the court would
entertain significant doubts in light of the factors discussed above, particularly the qualified
privilege likely accorded to the Attorneys’ statements.
ii. Willful Injury
On the issue of willfulness, Ms. Anthony’s affidavit and deposition testimony establish that
87
See, e.g., In re Smith, 537 B.R. at 15; In re Gagle, 230 B.R. at 181–83.
88
Given this court’s inability to conduct a trial of the defamation claim, see 28 U.S.C. § 157(b)(5), the topic of
whether the court can nonetheless decide the issues on summary judgment has also been a topic of much discussion.
21
she did nothing “willful” to injure Mr. Kronk. At most, she had a general knowledge that her
attorneys were making statements to the press on her behalf, and then usually only after the fact.
Further, she had no knowledge as to the content of those statements. Her testimony during the
relevant time frame of the alleged defamation (November 2009–June 2011) 89 is unrebutted.
Even if the court assumes that the Attorneys’ out of court statements were not subject to a
qualified privilege, there is still no evidence of the “something more” by Ms. Anthony. The best
evidence Mr. Kronk has is the Casey Affidavit. But Mr. Casey cannot speak to the relevant time
period, and he clarified during his deposition that during the short time he was involved, Ms.
Anthony did not have control over the formulation and implementation of her defense: “She had
nothing to do with her own case. That was the thing.” 90
On reflection, the Casey Affidavit and Mr. Casey’s deposition testimony are not even all
that inconsistent with Ms. Anthony’s testimony. She does not dispute that she acquiesced in her
defense to the extent that that she did not fire the Attorneys. She does not dispute that she was
young and naïve when these events unfolded. And she does not dispute that she accused other
people of kidnapping Caylee Marie. 91
But mere acquiescence and deference to attorneys by a young, unsophisticated person
facing capital murder charges, or her failing to fire those lawyers under circumstances where she
had little reason to suspect the attorneys were doing anything untoward, does not satisfy the
“willful” injury prong of § 523(a)(6).
iii. Malicious Injury
The Attorneys for Ms. Anthony certainly questioned Mr. Kronk’s role in finding Caylee
89
The relevant time is framed by Mr. Kronk’s amended complaint, namely the publications and television appearances
where he is allegedly defamed. Compl. ¶ 12.
90
91
E.g., In re Anthony, 538 B.R. 145.
22
Marie’s remains and attempted to raise reasonable doubt about the guilt of their client on this basis,
both inside and outside the courtroom. But the Attorneys’ comments in the press clippings offered
by Mr. Kronk relate to the pending motion in limine and issues in the criminal case, and do not
directly accuse him of a crime. 92 Rather, the most hurtful and disparaging comments against Mr.
Kronk came from his ex-wives and the daughter of his ex-girlfriend, or are sensationalized
headlines crafted by the news outlets themselves. Nevertheless, for purposes of this motion, the
court assumes the Attorneys commented in the media as characterized by Mr. Kronk.
It is undisputed that part of the Attorneys’ defense of Casey Anthony was to address the
overwhelming negative publicity that their client faced. 93 Mr. Kronk offers nothing to rebut this
stated purpose for the Attorneys’ comments to the press. Given the totality of the circumstances,
the court finds this purpose is not wrongful or without cause. 94
This court neither condones nor condemns the conduct of Ms. Anthony’s attorneys. But
such conduct and purpose does not satisfy the “malicious” requirement of § 523(a)(6), even if it
could be imputed to Ms. Anthony.
For her part, Ms. Anthony did not know Mr. Kronk. She never spoke to Mr. Kronk. 95 She
was on trial for her life. Ms. Anthony claimed she was not responsible for Caylee Marie’s
92
As noted by Debtor’s counsel, in each alleged defamatory statement, the respective attorney is simply pointing out
that the prosecution appeared to have focused its investigation narrowly on Ms. Anthony and argues that the
prosecution should have followed all available leads, including Mr. Kronk. (Doc. 141 p. 16).
93
In response to interrogatories propounded by Mr. Kronk, Ms. Anthony stated:
[A]ny and all statements made by Defendant’s criminal defense team were made to prepare for the
criminal trial, including to obtain the public’s assistance in determining the truth, as well as to offset
the negative and prejudicial remarks and purported evidence that was suspected to have been leaked
to the press by law enforcement and other members of the State’s prosecution team and/or their
witnesses.
Answer to Interrog. No. 8 (Doc. 70 Ex. C).
94
Cf. In re Anthony, 538 B.R. at 155–56; see generally United States v. McAnalley, 535 F. App’x 809, 811–12 (11th
Cir. 2013) (discussing the constitutional right of a criminal defendant to present a defense which may include evidence
of third-party guilt).
95
Anthony Dep. 73:21–74:2.
23
disappearance and murder. By logical inference, the perpetrator had to be someone else. It would
not be unexpected for her to look for a culprit elsewhere and admittedly, Mr. Kronk was not the
only individual upon whom she cast suspicion. And Mr. Kronk was not wholly unrelated to the
case. His discovery of Caylee Marie’s body was not without its own controversy. 96
Construing all inferences in favor of Mr. Kronk, all that this record can prove is that Ms.
Anthony acquiesced, perhaps blindly, to the defense crafted by her attorneys and to the extent she
even knew what was going on, she did not fire them. There is no evidence of an intent to cause
Mr. Kronk injury necessary to render the alleged debt nondischargeable, and that assumes liability
might be imputed to her in the event the statements by her attorneys were proven to be defamatory.
For these reasons, the court will grant the motion for summary judgment.
The court separately will enter judgment in favor of Debtor declaring that Plaintiff’s
unliquidated defamation claim will not be excepted from Debtor’s discharge.
Service of this Decision other than by CM/ECF is not required. Local Rule 9013-1(b).
96
See Anthony Dep. 48:19–49:16.
24

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Case 8:13-ap-00629-RCT Doc 173 Filed 02/28/19 Page 1 of 24

Dated: February 28, 2019

UNITED STATES BANKRUPTCY COURT

Casey Marie Anthony, Case No. 8:13-bk-00922-RCT

Casey Marie Anthony,

MEMORANDUM DECISION GRANTING

testifying at trial or appearing in the media.

Mr. Kronk in the crime—either inside or outside the courtroom.

attorneys. Ms. Anthony moves for summary judgment.

Summary Judgment Standard

fact cannot satisfy [the non-moving] party’s burden.” 8

and the daughter of his ex-girlfriend. 15

accusations against her husband.” 16

bankruptcy discharge on December 17, 2013. 19

Summary Judgment Record

within the meaning of § 523(a)(6) of the Bankruptcy Code.

Casey Affidavit states, in relevant part:

frame the issues on motions for summary judgment. 27

motion, Ms. Anthony submitted an affidavit and her own deposition. 29

In her affidavit, Ms. Anthony avers:

I never authorized or directed my defense attorney, Jose Baez, Esq., or other

statements to the press about Mr. Kronk. 31

explained his statements in the Casey Affidavit:

On questioning by Mr. Kronk’s attorney, Mr. Casey stated:

On redirect, Mr. Casey testified:

Exceptions to a bankruptcy discharge are construed narrowly to encourage the debtor’s

discharge by a preponderance of the evidence.” 41

debtor.” 42 Proof of both elements is required. 43

debtor. As explained by the Supreme Court in Kawaauhau v. Geiger: 44

“willful” under § 523(a)(6). 51

there must be some “consciousness of wrongdoing.” 57

i. Whether vicarious liability can support a non-dischargeable debt under

that the willful conduct must be “by the debtor.”

conduct of another. 58 As explained in one of the seminal cases on this point:

There is nothing in the language or the legislative history of § 523(a)(6) to suggest

For example, in In re Eggers, 60 plaintiff sought to declare an unliquidated, wrongful death

discharged the “willful” conduct be “by the debtor.” 62

Recently, in In re Smith, 63 plaintiffs sought to declare non-dischargeable under § 523(a)(6)

support that contention. 67

the destruction of his neighbors’ property. 69

“deliberate and intentional conduct within the scope of section 523(a)(6).” 70

conduct of others.” The court stated:

passivity or mere acquiescence. 73

the injury must still be “willful”. 77

negligence or recklessness is not enough.

employer-employee relationship. But that assumption must be tested by the complications of an

employer and an employee in a typical manufacturing or business setting.

To begin, Florida recognizes an “absolute privilege” for defamatory statements made

in turn, no debt arises for which a nondischargeable determination may be made.

may prohibit an attorney’s withdrawal.

particularly an unsophisticated criminal defendant, often selects an attorney to provide skilled

from an attorney-client relationship.

iii. Whether the Casey Affidavit Should be Stricken as a “Sham.”

explanations as supplementing rather than contradicting his affidavit.

objections to the requests for admission.

fact, it appears to be asserted as an alternative. 85 If the admission is protected by the attorney-

Applying the Law to the Facts

remains is examining the requirements for exception to discharge under § 523(a)(6).

i. Injury to Mr. Kronk

impute to Ms. Anthony by virtue of vicarious liability.

privilege likely accorded to the Attorneys’ statements.

ii. Willful Injury

nothing to do with her own case. That was the thing.” 90