Opinion
Case No. 07-32939. No. 07-3271.
5-11-2009
In re: RANDY C. HALE, Chapter 7, Debtor. ROBERT J. BACH, Plaintiff, v. RANDY C. HALE, Defendant.
The court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157(a) and 1334, and the standing General Order of Reference in this District. This is a core proceeding pursuant to 28 U.S.C. §157(b)(2)(I).
This matter is before the court on the Complaint Objecting to Dischargeability of a Debt filed by Plaintiff Robert J. Bach ("Bach") [Adv. Doc. 1] and the Answer filed by Defendant Randy C. Hale ("Hale") [Adv. Doc. 18]. Having abandoned his count under 11 U.S.C. § 523(a)(4), Bach proceeded on two other nondischargeability counts pursuant to 11 U.S.C. § 523(a)(2)(A) and (6) seeking to deny discharge of the debt owed to him by Hale. Bach essentially alleges that Hale willfully and maliciously or fraudulently obtained and refused to return certain personal property belonging to Bach.
The matter proceeded to trial on January 27, 2009. The court has carefully considered and weighed the testimony of the witnesses, the exhibits admitted into evidence, and the post-trial briefs submitted by the parties. The following decision constitutes the court's findings of fact and conclusions of law in accordance with Fed. R. Bankr. P. 7052.
This case largely turns on the credibility of the parties and their witnesses, each side espousing a different and contradictory version of the facts. Because the testimony of Bach and his witnesses was far more credible than that of Hale, and because the facts found by the court comport with the required elements of 11 U.S.C. § 523(a)(6), the court determines the debt owed to Bach to be nondischargeable.
FACTS
To a point, the parties are in agreement as to the facts giving rise to this litigation. The critical point of disagreement coincides with the time period during which the two close friends, Plaintiff Robert Bach and Defendant/Debtor Randy Hale, became estranged, and Bach's personal property which he had entrusted to Hale disappeared.
The two men met as co-employees of a company called Ahresty located in Wilmington, Ohio. Bach suffered from rheumatoid arthritis and Hale assisted him with remedial injections. Both resided in Hillsboro, Ohio. Hale was married at the time and Bach lived alone in his own house. Eventually, Bach came to fully trust and depend on Hale and, at least ostensibly, Hale reciprocated.
In January of 2005, Bach decided to move to Florida both for health reasons and to work for his brother's construction company. Because the job would require him to be itinerate, it was not feasible for Bach to move his furnishings and other personal property, so he asked Hale to look after his house and its contents and to pay some of his personal bills while he was out of the state. They opened a joint checking account funded solely by Bach to allow Hale to make necessary payments. There was no formal agreement for Bach to provide consideration to Hale for these services, but he did occasionally allow Hale to pay some of his own expenses out of the joint checking account.
Not long after departing Ohio, Bach decided to sell his house. To facilitate the marketing and sale of the real estate, Bach executed a very broad power of attorney on May 19, 2005 thereby entrusting Hale with full authority over Bach's real estate and personal property. The house was sold in August of that year and Bach requested that Hale move the contents of the house into storage, which Hale did, with two exceptions. First, because Bach was worried that his valuable art prints and antiques, some of which were heirlooms, might be damaged in storage, he asked Hale to keep them in his house. Second, Hale was in the midst of a divorce from his wife who had moved out and taken all of the furniture with her, so Hale wished to temporarily move some of Bach's furniture into his own house, an arrangement to which Bach consented.
In the fall of 2005, while Bach was still in Florida, Hale became friends with Jesse Templeton and decided to share an apartment with him in Dayton, Ohio. He made the move to Dayton in early February of 2006. It is at this point that the parties disagree on some of the facts. According to Hale, Bach told him that he could permanently keep certain furniture and take it with him to Dayton, but that the balance of the personal property, including the prints, had to be moved into storage. Hale claims that at the time of his move to Dayton he and Mr. Templeton followed Bach's instructions, moved all of Bach's personal property into storage, and then transported the gifted furniture to Dayton. Significant items, including the art prints, subsequently disappeared, but Hale simply professed ignorance as to what happened to them or where they might be. On the other hand, Bach insisted at trial that Hale's use of the furniture was only intended to be a temporary accommodation for Hale; that Hale repeatedly thwarted Bach's attempts to access his property; and that Hale either retained or disposed of the property.
This case turns on which version of the facts is accepted as true and that choice rests on a determination of which party's testimony is most credible. As discussed in more detail below, Bach's demeanor, the corroboration of his witnesses, and the circumstances surrounding the disappearance of the personalty, all persuade the court that Bach's version of the facts is the correct one.
CREDIBILITY OF THE WITNESSES
The parties do not dispute that most of Bach's personal property left in the custody of Hale was not returned to Bach. However, there are two disputes as to the disposition of that property. First, with respect to certain furnishings that Hale still admittedly retains, there is a dispute as to whether Bach permanently transferred them to Hale or just loaned the items to Hale for a period of time until Bach returned to reclaim them. Second, there is a dispute as to what happened to the remaining personalty, including some expensive art prints. Hale claimed that he placed the items into storage units in accordance with Bach's instructions and offered no theory as to how or why they disappeared. Bach asserted that only Hale had possession of the items and/or access to the storage units and that circumstantial evidence suggests Hale should be held accountable for their conversion.
Hale's credibility on both of these issues was undercut by the vagueness of his testimony. In many instances, his testimony lacked specificity or was limited by faulty recollection. For instance, he could not recall which of Bach's art prints he had hung on the walls of his house and subsequently moved to storage, could not remember that Bach's sister Claudette Greene had delivered a print to him, and denied that she had actually entered his house. The following excerpt from his testimony is illustrative:
Q And so the items that Mr. Bach — you — or — that you moved for Mr. Bach, you set up in your house, some of them?
A Some of them, yes.
Q Cabinets and things of that nature?
A Yes.
Q Hung pictures?
A Yes.
Q One of those pictures was the McCoppin, McCoppin Mill print?
A I do not recall.
Q You're not familiar with that?
A No.
Q Do you recall that you had a print of his in, in your living room?
A I, I do not recall.
Q Do you know Claudette Greene?
A Yes, I do.
Q And who's she?
A She is Robert's sister.
Q Has she ever been in your home?
A She's been to my door.
Q Never been inside —A No.
Q — is that your testimony?
Would that have been after Mr. Bach moved?
A Yes.
Q And what was the reason she was in your home?
A I do not recall. It was one time.
Q Now in your home in Hillsboro, if you entered through the front door and went to the left you would go to the dining room, is that correct?
A Correct.
Q Do you ever recall Mr., Ms. Greene bringing you the McCoppin Mill print?
A No.
Q Don't recall her bringing you a painting at all, a picture at all?
A No.
* * *
Q Now I just want to make sure we're clear on a couple of things.
Now one of the things on the list that Mr. Bach claims that you have and is missing is a picture that's titled Lord's Commandment, Ten Commandment. Do you see that on the, the list there? It's about — as a matter of fact, I can — you see that right there (indicating)?
A Yes.
Q Okay. You've got that marked as unknown?
A Correct.
Q And it — so your — it'd be your testimony that you, from the time that he moved, you never saw that picture?
A Correct.
Q Never had it in your home?
A No.
Q Never had it in your office?
A No.
* * *
Q And there is also on there right below the, the grill, very large, old, Christmas cactus plant?
A Correct.
* * *
Q And you've got that marked as unknown, correct?
A Yeah. I, I don't know what happened to it.
Q You never had it in your home?
A No.
Q In Hillsboro?
A No.
In comparison, the comparable testimony of Bach and his witnesses was more precise, detailed, and mutually corroborative. For example, Claudette Greene's testimony covering the same subject not only contradicts Hale's testimony, but is much more certain and credible given the level of detail:
Q And did you ever have occasion to go to Mr. Hale's home?
A Yes.
Q Do you — was that after Mr. Bach had moved to Florida?
A Correct, yes.
Q Did you go inside his home?
A Yes.
Q And was Mr. Hale there?
A Yes.
Q And he let you in?
A Yes.
Q Once inside, did you have occasion to observe property that you knew to belong to Mr. Bach?
A I did.
Q And can you tell the Court what type — well, start with — what was the reason that you went to the home?
A To return an item that was Robert's.
Q And what item was that?
A It was a picture.
Q And do you know what specific picture it was?
A McCoppin Mill.
Q And it was a print?
A Yes.
* * *
Q Once inside — I just asked you — you saw property that you knew that belonged to Mr. Bach.
Can you tell the Court — well, let's strike that.
Did you see the Ten Commandments print?
A Yes.
Q And tell the Court how you would go, once you got inside, to where it was located?
A You walk in his front door. You turn to your left. You would walk into the dining room. Right as you walk into the dining room, if you look to your left, it was on the wall there.
Q And any doubt in your mind that it was the Ten Commandment print?
A No. It was no doubt in my mind. I was actually surprised to see it there.
Q Why?
A Because I — it was my grandfather's and I was not aware that it was going to be at Chris'. I was under the impression it was still in Robert's home.
Q Have you — and was that the only time that you'd ever been in Mr. Hale's home?
A Yes.
Q It's been identified one of the items that is missing is a Christmas, old Christmas cactus.
Are you familiar with that item?
A Yes, very familiar.
Q And how is that?
A It was also my grandfather's and I would estimate it at, to be at least a hundred years old.
Q So as far as — is it fair to say it's more valuable as far as being in your family as opposed to just actual value?
A Yes.
Q Did you see that in Mr. Hale's home?
A Yes.
Q Where was that located?
A It was to your right as you first enter, right before you go into the kitchen part of the house.
Q Any chance that you can mistake that for another type of cactus?
A None.
Q And why's that?
A Because it's so large. It was a very huge Christmas cactus and also, the pot that it was in was my mother's.
Q Did you see any other items that belonged to Mr. Bach that you recognized in Mr. Hale's home?
A Yes.
Q What were those?
A There was a leather couch, a big-screen TV, a surround sound system, computer; it looked like Robert's house.
The testimony of Bach and his sister-in-law was similarly detailed and exact as well as consistent with that given by Ms. Greene.
Hale's credibility was also undermined due to his pattern of conduct in thwarting Bach's attempts to recover his property. Generally, the scenario is one in which Bach desperately wanted to obtain his property and made repeated efforts to do so, but was met by Hale's lack of cooperation and active resistance. Despite requests for access to his property beginning sometime in April of 2006, Bach was unable to obtain the storage unit keys from Hale until late June at which time he found the contents of the units in serious disarray and significant items missing, including his art prints. As noted earlier, Hale claimed to own other property which he continued to retain in his Dayton apartment. He also refused to relinquish those items, but did agree to meet Bach there and turnover a computer that Bach particularly needed before returning to Florida. However, when Bach arrived at the apartment, no one was there and he waited in vain for four hours. Bach also testified that Hale threatened to take legal action against him if he continued his attempts to obtain his property, an allegation that Hale denied. Yet, at one point during cross-examination, Hale admitted that the carbon copy ("cc") to a law firm on an email he sent to Bach was a fabrication intended to intimidate and deter Bach from making further efforts to recover the property.
In addition to Hale's diminished credibility, his version of the facts has very little corroboration and seems unreasonable when viewed in context. Several facts and circumstances suggest that Bach did not intend to irrevocably give his furnishings to Hale. It is not disputed that all of the personal items were originally owned by Bach and that he wanted Hale to secure the items in a locked storage unit or, in some instances, in Hale's house. Bach was taking a job in Florida but would not have a permanent house or apartment where he could move his belongings. Had he intended to permanently remain in this itinerate condition, he could have sold his furnishings or even given them to his friend, Hale. However, nothing in the record suggests that Bach had such an intent or that he did not want to eventually recover his goods once his situation became more settled. If he were to acquire another house or even an apartment in Florida or elsewhere, he would need furnishings. It is also quite clear that Bach cared a great deal about his personal possessions and even had strong sentimental attachment to many of them. Among the furnishings were items inherited from his mother and some costly art prints that he had collected.
Also, both parties agreed that while Bach asked Hale to store specific valuable items in Hale's house, it was Hale who requested permission to move all of the other furnishings into his house. Hale needed them because most of his furnishings had been taken away by his wife. In addition, although Hale disputes this point, Bach testified that he was reluctant to allow Hale to move his furnishings to Dayton and relented only when Hale explained that his lack of furniture might negatively effect his custody rights with his young daughter. These circumstances do not suggest that Bach wanted to permanently divest himself of his personal belongings, but they do suggest that Hale desperately needed the furnishings and perhaps could not afford to buy his own.
Furthermore, there is no document memorializing the parties' intent to permanently transfer anything—no sales contract, bill of sale, receipt, or email message. That void is especially noteworthy given the frequency of email correspondence between the two men during this time. The only written agreement between them was the power of attorney that gave Hale control, but not ownership, of Bach's property and affairs. That document was formally terminated by Bach in July of 2006. It is also illogical that Hale, who was willing to loan his furnishings to Hale at a time when the two men were very close would then convert the loan into a gift at a later time when they apparently had a falling out. A more logical inference in those circumstances is that Hale, who clearly needed the furnishings, decided to retain them once his close friendship with Bach had deteriorated. Furthermore, Bach's subsequent efforts to reacquire his property from Hale, efforts described in some detail at trial, belie any intent on his part to permanently relinquish his right to his possessions.
The balance of Bach's property, that which Hale did not claim as his own, simply disappeared. Bach entrusted Hale with sole custody of the property that Hale placed in the storage units. Only Hale had the keys. There was no evidence or suggestion that the locks to the storage units were tampered with or that there was any other sort of illegal entry. Hale offered no explanation for the apparent ransack of the units and the disappearance of the contents and there is no other evidence in the record that supports any explanation other than that he was responsible for the removal and disposition of Bach's property. On the other hand, suspicion of malfeasance by Hale is raised by his refusal to allow Bach access to his Dayton apartment and Bach's testimony that he peered through the windows of that apartment and identified some of the missing items inside.
As discussed above, the facts and circumstances described by most of the witnesses strongly suggest that Hale actively resisted Bach's efforts to obtain his property. That obstructionism is consistent with Hale's desire to retain the property for his own use or to simply frustrate or punish Bach for personal reasons, perhaps related to the demise of their relationship. It might also be consistent with the desperation of a man sinking into debt and soon to file for personal bankruptcy.
LEGAL ANALYSIS
A. Existence of the Debt
Before analyzing the dischargeability of a debt owed by Hale to Bach, the court must first determine whether a debt exists. In the Bankruptcy Code, a "debt" is defined as a "liability on a claim." 11 U.S.C. § 101(12). Further, the term "claim" is defined as:
a right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured [.]
Bach asserts a claim against Hale based on the Ohio tort of conversion. Conversion is the wrongful control or exercise of dominion over property belonging to another which is inconsistent with or in denial of the rights of the owner. CMEA Title Agency, Inc. v. Little (In re Little), 335 B.R. 376, 386 (Bankr. N.D. Ohio 2005). In order to prove the tort of conversion, Bach must demonstrate: 1) that he had a property interest in the subject property at the time of the conversion; 2) the conversion was a result of a wrongful act or disposition of his property rights; and 3) damage occurred as a result of the conversion. Id.; Dice v. White Family Companies, Inc., 878 N.E.2d 1105, 1108-09 (Ohio Ct. App. 2007). Further, because the conversion is premised on the unlawful retention of property, Bach must establish that: 1) he demanded the return of the property from Hale after the possessor exerted dominion or control over the property; and 2) Hale refused to deliver the property to its rightful owner. Dice, 878 N.E.2d at 1109 (further citation omitted).
In this case, the testimony of the parties establishes that Hale was initially in rightful possession of Bach's property as a bailee. A bailment arises when one person holds personal property in trust for another person. Mule-Hide Products Co. v. Neumann (In re Neumann), 182 B.R. 502, 505 (Bankr. N.D. Ohio 1995). When the purpose of the bailment has been achieved, the property must be returned. Id. at 505-06. Although a bailee may be rightfully in possession of the property at the beginning of the relationship, he can still effectuate a conversion of the property if he makes illegal use of it or fails to return the property to the bailor under the terms of the bailment. Id. at 506.
Hale's possession of Bach's personal property was initially by mutual consent and subject to a power of attorney. Hale was to hold the property or place it in secure storage at a time when Bach was out of the state and his house had been sold. That was to be the arrangement until Bach was in a position to retrieve his belongings. Eventually, Bach made several demands for return of his property, including a formal demand through his attorney in July of 2006. Hale's refusal to return the property to Bach was without justification and clearly constituted conversion.
B. Nondischargeability of the Debt
Next, the court turns to whether the debt should be determined to be nondischargeable in Hale's bankruptcy case pursuant to one of the exceptions to discharge in 11 U.S.C. § 523. Bach argues two grounds for nondischargeability. First is the allegation that Hale's conversion of his property constitutes a willful and malicious injury pursuant to § 523(a)(6). Alternatively, Bach contends that Hale committed fraud in connection with the conversion of his property making the debt nondischargeable pursuant to § 523(a)(2).
1. Willful and Malicious Injury
Pursuant to § 523(a)(6), a debt is to be excepted from discharge when the debt is for a "willful and malicious injury by the debtor to another entity or property of another entity." 11 U.S.C. § 523(a)(6). In the case of Kawaauhau v. Geiger, 523 U.S. 57, 118 S.Ct. 974 (1998), the Supreme Court defined what actions rise to the level of those causing a "willful" injury. The Supreme Court determined that a debtor's acts must not only be intentional, but must be committed with the intent or desire to cause injury. Geiger, 523 U.S. at 61-63. The Sixth Circuit further defined the standard by holding that the debtor must be found to have subjectively desired to inflict the harm or have had knowledge that the harm was substantially certain to result from the debtor's actions. Markowitz v. Campbell (In re Markowitz), 190 F.3d 455, 464 (6th Cir. 1999). The standard as set forth in these cases is intended to limit nondischargeable debts to those arising from intentional torts as opposed to debts arising from mere negligence or recklessness. Monsanto Co. v. Trantham (In re Trantham), 304 B.R. 298, 306-07 (B.A.P. 6th Cir. 2004).
Subsequent to Geiger and its clarification of the stringent standard for proving a willful and malicious injury, it is clear that not every act of conversion results in a nondischargeable debt under § 523(a)(6). Kimco Leasing Co. v. Wilson (In re Wilson), 383 B.R. 678, 681 (Bankr. N.D. Ohio 2007); Little, 335 B.R. at 386. Bach must prove that the act of conversion was committed with intent to cause harm to him or the property, or with substantial certainty that harm would result. In addition, he must demonstrate that the injury was malicious, meaning that it arose out of a "conscious disregard of one's duties or without just cause or excuse." Wilson, 383 B.R. at 681-82. See also In re Rapp, 375 B.R. 421, 436 (Bankr. S.D. Ohio 2007) (citing Gonzalez v. Moffit (In re Moffitt), 252 B.R. 916, 923 (B.A.P. 6th Cir. 2000)). There is no requirement that the person act with ill will, spite or animosity. Rapp, 375 B.R. at 436.
Even with the heightened standard of Geiger and Markowitz, the court concludes that Bach has met his burden of proof for nondischargeability of the debt pursuant to § 523(a)(6). It is unclear whether Hale actually intended to do harm to Bach or his property, although such an intent is possible to infer from the facts of this case. However, it cannot be doubted that Hale was substantially certain that depriving Bach of his property would harm Bach. Hale knew the property belonged to Bach and was aware that Bach cared considerably about his possessions because Bach had entrusted them to Hale for safekeeping, particularly the valuable art prints and antiques which Hale was instructed to keep in his own house to protect them from possible damage in the storage units. Despite that knowledge and the obvious trusting relationship that was the fundamental justification for Hale's possession of the items, Hale betrayed that trust and inexcusably refused to relinquish the property to its rightful owner. Hale's conversion was clearly willful and malicious and therefore nondischargeable pursuant to § 523(a)(6) as applied in the Sixth Circuit.
2. Fraud
Because Bach meets the nondischargeability requirements of § 523(a)(6), the court need not address his alternative assertion that the debt is nondischargeable pursuant to § 523(a)(2)(A). Nonetheless, the court has analyzed the issue and concludes that this is the weaker of Bach's two arguments.
Pursuant to § 523(a)(2)(A), Bach must prove that Hale obtained property from him through actual fraud, false pretenses or an express misrepresentation known to be false and made with an intent to deceive. 11 U.S.C. § 523(a)(2)(A). In other words, at the time Hale took control of Bach's property and represented that the property would be returned, Hale had to have the present intent to keep the property for himself. Clyde-Findlay Area Credit Union v. Burwell (In re Burwell), 276 B.R. 851, 854 (Bankr. N.D. Ohio 2002) (noting that a plaintiff must prove that at the time the debt was incurred, the debtor had no intention of repaying the obligation).
Although it is clear that at some point in the parties' relationship Hale made the decision to keep or dispose of Bach's property, the facts elicited at trial do not support the conclusion that the intent existed at the time Hale first took possession of the property. Nor do the facts substantiate that Hale committed actual fraud by tricking or deceiving Bach into giving him the property. Instead, it appears that Hale took possession of the property, not through trickery or deception, but at the request of Bach and with the intent of helping Bach. Furthermore, at the time that Hale took control of the property, he handled the property in good faith and in the manner requested by Bach. Hale helped market and sell Bach's house, he moved Bach's personal items into either a storage unit or Hale's home as agreed to by Bach, and he paid bills out of Bach's bank account as expressly authorized by Bach.
It appears from the facts that Bach made the decision to convert the property only after his relationship with Hale deteriorated and Hale decided to move to the Dayton area, a decision made long after he first took possession and control of the property. Consequently, Hale did not obtain Bach's property through fraud, false pretenses or misrepresentations and the facts do not support a finding of nondischargeability pursuant to § 523(a)(2).
C. Valuation of the Nondischargeable Debt
Because Bach met his burden under § 523(a)(6), the court must determine the proper valuation of the nondischargeable debt owed to him by Hale. Generally, the measure of damages for conversion of property is the fair market value of the converted property at the time of the conversion. Neumann, 182 B.R. at 506; Fisher v. Barker, 825 N.E.2d 244, 247 (Ohio Ct. App. 2005).
During the trial, Bach testified with specific detail as to the value of the items converted by Hale based on historical information, like receipts and cancelled checks he kept for items purchased, his own knowledge of the items, and his experience in collecting antiques for 25 years. Several of the items, including the china, china cabinet, and washstand, were either antiques/family heirlooms or were no longer being made making them unique and not easily replaced. Bach listed the items along with their values in Plaintiff's Exhibit 7. Although Hale questioned Bach's ability to value the goods based on recollection and historical information, it is well established that the owner of personal property, because of such ownership, has sufficient knowledge to be qualified to give an opinion as to its value. Neumann, 182 B.R. at 506. See also Hamilton v. Hamilton (In re Hamilton), 400 B.R. 696, 699 (E.D. Ark. Jan. 27, 2009). Bach's testimony in conjunction with Plaintiff's Exhibit 7 supports that the value of the personal items taken, except the pieces of artwork discussed below, is $21,895.00.
Bach also had several valuable pieces of artwork, three framed prints, which were taken by Hale. Prior to the conversion, Bach brought the three prints to Steven Holland, the owner of an art studio, to have the prints framed and appraised. The written appraisal, prepared by Holland in November of 2002, was admitted as Plaintiff's Exhibit 8. At trial, Holland testified to the research he conducted in order to estimate the value of each print. He researched the history of the paintings as well as the two artists. Based on his research, he valued the first print, a 30- or 40-year-old painting of the Ten Commandments, at $10,000,00. The second print was a painting of McCoppin Mill by a local artist, Skip Werline. Because of the low print number, the popularity of the painter, and the fact that the mill had burned down, Holland valued the print at approximately $8,000.00. Another print by Skip Werline, Fond Memories, was valued by Holland at $1,500 because it included an original "re-mark" by the artist. Adding in the value of the museum quality matting and framing, Holland appraised the three pieces of artwork together at $23,540.00. Although the artwork is no longer available for reappraisal, Holland claimed that each print would likely have appreciated in value over the years.
Hale did not provide contrary evidence as to the value of the items taken. Instead, Hale argued that Bach's valuation, based mainly on his recollection of the purchase price, did not adequately account for depreciation of the items. Hale made essentially the same argument as to Holland's 2002 appraisals of the artwork. Hale asserted that Holland had not seen the prints in seven years so could only speculate as to their present condition and value. What Hale's argument fails to take into account, however, is that the reason it is impossible to provide a more current valuation of the personal property and artwork at issue is his own misconduct in converting the items. Indeed, "a defendant whose wrongful conduct has rendered difficult the ascertainment of the precise damages suffered by the plaintiff, is not entitled to complain that they cannot be measured with the same exactness and precision as would otherwise be possible." Cline v. Rountree, 236 F.2d 412, 413 (6th Cir. 1956). See also Giwosky v. Schemberger (In re Schemberger), 49 B.R. 522, 527 (Bankr. E.D. Wis. 1985); FinanceAmerica Corp. v. Ricker (In re Ricker), 26 B.R. 862, 864-65 (Bankr. E.D. Tenn. 1983). In such circumstances, the court is to determine damages based on the best evidence available. Cline, 236 F.2d at 413; Ricker, 26 B.R. at 864.
In this case, Bach testified to a detailed list of the missing items as well as their value based on his receipts, cancelled checks, recollection and his experience in collecting antiques. Furthermore, the artwork had been appraised prior to the conversion and the appraiser testified that the items were unlikely to have depreciated in the years since the appraisal. Bach's testimony along with Holland's testimony and 2002 appraisal of the artwork are the best, and only, evidence of the value of the converted property. Hale has provided no contrary evidence upon which to calculate a different value. The court concludes that the appropriate measure of nondischargeable damages for conversion of Bach's personal property including the artwork is $45,435.00.
CONCLUSION
In conclusion, and for the reasons recounted above, the court determines that the debt owed by Debtor Randy C. Hale to Robert J. Bach arose from a willful and malicious injury and is nondischargeable to the extent of $45,435.00 pursuant to 11 U.S.C. § 523(a)(6).
SO ORDERED. --------------- Notes: On the stand, Steven Holland recounted his education and experience prior to giving his opinion as to the value of the prints. He attended art classes at Wilmington College and obtained an associates degree as a commercial artist at the Cincinnati Art Institute. After various jobs working for Lion Apparel, a print company and five years as a national wildlife artist, he started his own business — a sign company and art studio called Steven's Art Designs and Signs in Wilmington, Ohio. Holland has owned his own business for seventeen years. He frames artwork and also sells his own prints. In addition, Holland testified that a portion of his business is conducting appraisals, especially of antique paintings. The court concludes that Mr. Holland was qualified as an expert to provide appraisals of Bach's prints.