Nelson v. Bolles (In re Bolles)

Decision Date27 November 2018
Docket NumberAdv. No. 17-01077-t,Case No. 17-11788-t7
Citation593 B.R. 832
Parties IN RE: Joshua Daven BOLLES, Debtor. Emily Nelson, Plaintiff, v. Joshua Daven Bolles, Defendant.
CourtU.S. Bankruptcy Court — District of New Mexico

Jennifer A. Delnick, Will Ferguson & Associates, Albuquerque, NM, for Plaintiff.

Joshua Daven Bolles, pro se.

OPINION

Hon. David T. Thuma, United States Bankruptcy Judge

Before the Court is Plaintiff's claim for damages because Defendant gave her herpes, and for a declaration that the debt is nondischargeable under § 523(a)(2)(A) and (a)(6). Defendant counters that he lacked the requisite state of mind for any debt to be nondischargeable. After conducting a trial on the merits and hearing argument, the Court finds that Defendant is liable to Plaintiff for fraud and civil battery and that the debt is nondischargeable under § 523(a)(6).

I. FACTS

The Court finds:1

Plaintiff is a 40-year old registered nurse. Originally from South Dakota, she moved to New Mexico in 2009 and lived here until 2016. Plaintiff had a job as a surgical nurse at Presbyterian Hospital in Albuquerque. She is well educated, intelligent, and of good moral character. Physical health and well-being have always been very important to her. She has never been married. The Court finds that Plaintiff was a credible and truthful witness.

Defendant is a 44-year old software analyst, employed by Northrop Grumman. He is educated, intelligent, and articulate. He has been married twice and has children from both marriages. For the most part, his trial testimony was credible. In certain areas, however, the Court finds that his testimony was not credible. In addition, as set forth below, the Court finds that Defendant lied to Plaintiff at crucial times.

Plaintiff met Defendant online using a phone application called "Tinder" in October or November 2015. They began communicating by Tinder and Facebook. At some point Plaintiff decided to trust Defendant enough to give him her cell number.

Plaintiff and Defendant had their first date in December 2015, when Defendant invited Plaintiff to dinner at a local restaurant. Over the holidays, the parties kept in frequent contact. While Plaintiff was out of town, Defendant expressed that he "[couldn't] wait to have [Plaintiff] home."

Plaintiff was very cautious dating people she met through dating applications. Defendant was the only person who "passed every test." On December 31, 2015, Plaintiff went to Defendant's house for dinner. That evening, Defendant, in a seeming act of openness, told her that his ex-wife had obtained two restraining orders against him, prompted by threatening text messages he had recently sent. Plaintiff took this disclosure as a measure of Defendant's honesty. After spending a few hours together drinking wine and talking, the parties had their first sexual encounter. Beforehand, Plaintiff asked the Defendant, "Do you have anything I need to worry about?" Defendant understood this question (correctly) as asking whether he had any sexually transmittable diseases. He said he did not, and reassured Plaintiff by reminding her that he had been married for ten years. Plaintiff recalls that Defendant said, "oh gosh no," or something similar, in response to her question.

In fact, Defendant had genital herpes,2 an incurable, sexually transmitted disease. Defendant contracted herpes in about March 2004, while he was single. At that time, Defendant suspected that he contracted the disease. He suffered an outbreak in 2014, went to the doctor, and received a positive diagnosis on January 8, 2014. The written lab report confirming the diagnosis is part of the trial evidence.

Thus, Defendant lied when he answered, "oh gosh no." Defendant knew herpes was easily transmitted by unprotected sexual intercourse. Defendant lied because he knew if he told the truth, Plaintiff would not have sex with him.

Plaintiff believed Defendant's "oh gosh no" answer. Her belief was reasonable, given Defendant's candor about the restraining orders and all their prior communications and activities. Based on her reasonable assessment that Defendant told her the truth, Plaintiff agreed to have unprotected sex.

Over the next several weeks, the parties spent more time together. Defendant watched football games at Plaintiff's house, and during the week they saw each other. Defendant introduced Plaintiff to his daughter, who lived with him part of the time. They went on several hikes together. When they were alone, Plaintiff and Defendant had unprotected sex several more times.

Defendant testified that during the times he was with Plaintiff, he was almost always intoxicated, allegedly because he was so upset about his recent divorce and other matters. Defendant also testified that Plaintiff was often intoxicated when they were together. Plaintiff disputed Defendant's version of their time together. She admitted to some beer and wine drinking but described it as moderate. She also testified that they spent a substantial amount of time together without any alcohol consumption. The Court finds that Plaintiff's version of event is credible, and that Defendant's testimony of constant inebriation is not credible.

In February 2016, while Plaintiff was in Denver for a concert, she began to feel very ill. She experienced flu-like symptoms and developed bloody genital lesions. Urination was painful. She went to the doctor in Albuquerque as soon as she got back to town and tested positive for herpes.3 Plaintiff was distraught. She told Defendant about her diagnosis. Defendant responded with shock, concern, and apparent disbelief. Then, instead of confessing, Defendant told Plaintiff that he must have contracted herpes from his ex-wife. Again, this statement was false and Defendant knew it.

Plaintiff continued seeing Defendant, thinking they had a common bond of a medical affliction that was not of their doing. However, after a dinner at a local restaurant a month or two after her diagnosis, Plaintiff reproached Defendant's ex-wife for giving them both herpes. In response, Defendant admitted that he, not his ex-wife, was to blame. He also admitted that he knew about his condition before they slept together for the first time. Plaintiff immediately terminated the relationship.

Defendant was Plaintiff's only sex partner from October 2015 until the time of her diagnosis. The Court finds that there is no doubt that Plaintiff contracted herpes from Defendant.

After her diagnosis, Plaintiff suffered serious pain and distress from herpes outbreaks. Outbreaks can be lessened with treatment by Valacyclovir, an oral medication. The treatment cost is $150 per month. Plaintiff will have to take the medication for the rest of her life.

Herpes outbreaks can be triggered by stress. After her diagnosis, Plaintiff was offered a higher paying but more stressful job as an operating room manager. She ultimately decided not to take the job, and in fact to relocate to California, in part because of her fear that the stress attendant to being an operating room manager would trigger herpes outbreaks.4

Plaintiff was and continues to be distraught about contracting herpes. In addition to the physical pain and suffering, she sees herself as a pariah, permanently unable to date, marry, or have children. Plaintiff has paid for psychological counsel to help her deal with the situation. To date, the counseling costs have totaled $9,672 ($1,000 for on-line counseling and $8,672 for eight months of in-person counseling). She currently is paying $135 a week for counseling and estimated that it will need to continue for a year.

Plaintiff filed a state court action against Defendant in July 2016. On July 12, 2017, before the action could be tried, Defendant filed this bankruptcy case. Plaintiff brought this adversary proceeding on October 6, 2017.

II. DISCUSSION
A. Plaintiff's Claims.

Plaintiff alleges that Defendant committed six torts: negligence; fraud; negligent misrepresentation; negligent infliction of emotional distress; intentional infliction of emotional distress; and civil battery. The Court will address each claim.

1. Negligence. Under New Mexico law, a negligence claim "requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiff's damages." In re Otero County Hospital Assoc., Inc. , 2016 WL 7985365 at *12 (Bkrtcy.D.N.M.) (citing Herrera v. Quality Pontiac , 134 N.M. 43, 47-48, 73 P.3d 181 (S. Ct. 2003) ). See also Zamora v. St. Vincent Hosp. , 335 P.3d 1243, 1249 (S. Ct. 2014) (same). An intentional act may not be the basis for a negligence claim:

"The term ‘negligence’ is ordinarily used to express ... civil liability for an injury to a person...that is not the result of premeditation or formed intention. Intent and negligence are mutually exclusive; one cannot intend to injure someone by negligent conduct....The distinguishing factor between intentional tortious conduct and negligent conduct is that the intentional actor has the desire to bring about the consequences that follow or the substantial certainty that they will occur[.]

57A Am. Jur. 2d Negligence § 30. See also Waters v. Blackshear , 412 Mass. 589, 591, 591 N.E.2d 184 (1992) ("We start with the established principle that intentional conduct cannot be negligent conduct and that negligent conduct cannot be intentional conduct."); State v. Asfoor , 75 Wis.2d 411, 429, 249 N.W.2d 529 (1977) ("intent and negligence are mutually exclusive and one cannot intend to injure someone by negligent conduct."); 57A Am. Jur. 2d Negligence § 218 ("Negligence and intentional misconduct are contradictory terms – they differ in kind rather than degree.").

As explained below, Defendant's conduct was intentional. Thus, Plaintiff's negligence claim fails.

2. Fraud.5 In New Mexico, a common law fraud claim has five elements:

An actionable fraud is a misrepresentation of a fact,
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3 cases
  • Hendricks v. Griffin (In re Griffin)
    • United States
    • U.S. Bankruptcy Court — District of New Mexico
    • February 28, 2020
    ...by the debtor; (3) the debtor's actions were ‘willful;’ and (4) the debtor's actions were ‘malicious.’ " Nelson v. Bolles (In re Bolles) , 593 B.R. 832, 843 (Bankr. D.N.M. 2018) (Citing In re Deerman , 482 B.R. 344, 369 (Bankr. D.N.M. 2012) )."To be willful, a debtor must have intended both......
  • Welch v. Giron (In re Giron)
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    • U.S. Bankruptcy Court — District of New Mexico
    • November 6, 2020
    ...did not defraud Welch , nor did they result in Giron obtaining any of her money or property. See § 523(a)(2); cf. In re Bolles , 593 B.R. 832, 843 (Bankr. D.N.M. 2018) (claims for money, property, services, or extension of credit obtained by fraud are governed by § 523(a)(2)(A), while claim......
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    • United States
    • U.S. Bankruptcy Court — District of New Mexico
    • June 11, 2020
    ...was caused by the debtor;(3) the debtor's actions were "willful;" and(4) the debtor's actions were "malicious." Nelson v. Bolles , 593 B.R. 832, 843 (Bankr. D.N.M. 2018) ; In re Deerman , 482 B.R. 344, 369 (Bankr. D.N.M. 2012).It is an open question whether intentional breaches of contract ......

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