Opinion
MEMORANDUM DECISION
LAURA S. TAYLOR, Bankruptcy Judge
Dr. Mark Rutley requests that the Court determine that his claim against debtor Bill Stevenson Lewis ("Debtor") is non-dischargeable under 11 U.S.C. § 523(a)(2)(A) . Dr. Rutley alleges that Debtor obtained services through false representations and pretenses in that he fraudulently induced Dr. Rutley to provide a root canal by agreeing to make payment when he had no intention of performing on his promise. The Debtor in response claims that Dr. Rutley provided poor quality dental services and that this justified his nonpayment. He also argues generally that he had every intention to pay at the time he procured the services and formed his intention not to pay only after Dr. Rutley rendered dental services.
Hereinafter, references to code sections refer to Title 11 of the United States Code, also referred to as the "Bankruptcy Code", unless otherwise specified. References to the transcript of the trial in this matter, docket # ____, are abbreviated "Tr. ___. __-__".
The Court has carefully considered the facts as provided to the Court during trial, the evidence submitted in connection therewith, and the argument of counsel and the Debtor, who represented himself pro se during the course of this case. The Court concludes that the Debtor's claim that Dr. Rutley provided a poor quality of care is meritless, but also determines that Dr. Rutley has not met his heavy burden in this case and that findings of fraud and non-dischargeability are not appropriate.
BACKGROUND
The Court, after consideration of the evidence, concludes that the facts relevant to this case are as follows:
1. On or about February 16, 2008, a Saturday, Debtor began experiencing excruciating dental pain.
2. Debtor provides credible testimony that he consulted several dentists by telephone to request assistance.
3. Eventually, Debtor spoke with Dr. Rutley who identified his problem as likely requiring an emergency root canal, prescribed anti-inflammatories and antibiotics, and agreed to see Debtor on an emergency basis on Monday, February 18th. Debtor claims that Dr. Rutley also agreed to a reduced price in connection with this emergency procedure. The Court, however, finds more credible the testimony of Dr. Rutley and his office manager that the fee charged to Debtor was the standard fee.
4. The Court also, however, finds credible the Debtor's assertion that he conducted some research and selected Dr. Rutley because his services were the least expensive.
5. The Debtor arrived at Dr. Rutley's office on the 18th. Dr. Rutley saw him with reasonable promptness. After a preliminary examination, Dr. Rutley confirmed that Debtor required a root canal. Debtor received information regarding the procedures that Dr. Rutley suggested and the cost related to these procedures. The Debtor then signed consent documents agreeing to the treatment and to payment in connection therewith. Dr. Rutley's office manager, Paula King, met with Debtor to discuss treatment and payment. At trial, she testified that she believed that the Debtor intended to pay for the root canal when he signed these documents. See, Tr. 126:20-23.
6. The Debtor complains bitterly that Dr. Rutley did not provide services with sufficient speed. The Court concludes, however, that Dr. Rutley provided a tremendous service to the Debtor by seeing him on such short notice and fitting him into an already crowded schedule. In short, Debtor's complaints regarding the promptness of treatment are entirely unreasonable. The initial examination revealed that Debtor suffered from a massive abscess that seriously threatened his health and, if untreated, his life. Dr. Rutley deserves praise not abuse for rendering aid to Debtor in his distress. Similarly, the fact that Dr. Rutley apparently did not charge extra for the "emergency" nature of this treatment reflects well on Dr. Rutley.
7. Debtor also complains bitterly about the quality of the treatment he received from Dr. Rutley, but after hearing testimony from the Debtor, Dr. Rutley, and his assistant, the Court concludes that the Debtor received an appropriate quality of care.
8. Debtor complains, for example, that Dr. Rutley burned him. However, in his testimony at trial he indicated that the burn was not serious and, indeed, that it left no mark. The Court finds Debtor's suggestion that he was burned to be an exaggeration.
9. Debtor also complains that Dr. Rutley improperly administered multiple injections of numbing agent. Dr. Rutley explained on direct examination, however, that the nature and extent of the Debtor's infection necessitated more than one injection to completely numb the area surrounding the infected tooth. The Court concludes that the Debtor did not receive any unnecessary shots.
10. The Debtor further complains that a dental assistant "poked" his injured tooth. The Court concludes that a dental assistant may have touched his tooth, but that there is no evidence that this was an extraordinary event justifying either non-payment of fees or Debtor's apparent level of animosity.
11. Finally, the Debtor complains that Dr. Rutley was "not gentle." He provides no specifics, however. In summary, the Court concludes that the Debtor was a difficult patient in extreme pain likely as a direct result of prior dental work that was poorly done. There is no evidence other than Debtor's unsupported complaints that supports Debtor's claim that he did not receive appropriate care from Dr. Rutley. Indeed, the Debtor acknowledged in testimony at trial that he eventually received a crown from a low-cost dentist in Mexico and that his tooth remains intact and pain free to this day.
12. After his root canal, the Debtor was tired and thinking with less than complete clarity. He paid for the root canal with a check, but dated the check as of February 20, 2008, a date two days in the future. The Debtor asserts that he misdated the check by mistake. Ms. King also testified as to her belief that the Debtor improperly dated the check through error. See, Tr. 126: 8-10. The Court finds the Debtor's explanation believable.
13. Debtor left Dr. Rutley's office and later decided that he would not return for a follow-up appointment. He also determined that he would not pay Dr. Rutley the total price agreed to for the root canal. As a result, he contacted his bank and stopped payment on the check he previously wrote to Dr. Rutley. Debtor acknowledged at trial that he had an obligation to make at least partial payment to Dr. Rutley. Notwithstanding, as a result of the stop payment notice, he made no payment to Dr. Rutley for his root canal. The evidence establishes that the Debtor had sufficient funds to cover the check when written and prior to the stop payment notice. Shortly thereafter, however, the Debtor's bank account balance dwindled. Debtor, ultimately, filed this chapter 7 case as a result of his adverse financial situation.
14. The Court concludes that the Debtor based his decision to stop payment on the check in large part on a misunderstanding of the treatment plan. It is clear from Dr. Rutley's testimony that he completed the root canal on February 18th and that this is consistent with the current standard of care that requires completion of a root canal in a single procedure. Thus, the second appointment was a mere follow-up appointment to allow for adjustment of the temporary crown, if necessary, planning for a permanent crown, and a general evaluation of the Debtor's recovery. The permanent crown would require an additional appointment and an additional payment. Debtor understood that the payment he made on the 18th did not cover the permanent crown. He always intended to have this work done in Mexico. Debtor, however, misunderstood the nature of the second appointment with Dr. Rutley. Debtor previously received root canals that were not completed at the first appointment. As noted above, this is not the current standard of care, apparently due to the risk of infection. Indeed, it is possible that the serious infection eliminated by Dr. Rutley originated from such a two step root canal. As a result of this misunderstanding, Debtor believed that the second visit would involve significant additional dental work. As he had decided not to utilize Dr. Rutley's services further, he erroneously believed that he would need to make additional payment to another dentist to complete the root canal and that he had overpaid Dr. Rutley. The Court ultimately concludes that the Debtor was sincere in his erroneous belief, but that the misunderstanding arose from his lengthy past dental history and his extreme dental distress on the 18th and not from any misstatement by Dr. Rutley or his staff.
15. After Debtor stopped payment on the check and prior to initiation of the chapter 7 case, Dr. Rutley brought a small claims action against the Debtor and prevailed thereon.
16. It is clear that there is substantial animosity in this case. In particular, Dr. Rutley was victimized by a series of email complaints that he alleges Debtor posted. The Debtor does not directly deny that the email postings were his and, indeed, they are eerily similar to the complaints he lodges in this action. Dr. Rutley generally alleges damages as a result of these emails, but provides no specific evidence of the same. The Court can easily conclude that these email postings were more than annoying to Dr. Rutley.
STANDARDS
Section 523(a)(2)(A) provides that:
(a) A discharge under section 727, 1141, or 1328(b) of this title does not discharge an individual debtor from any debt
(2) for money, property, services, or an extension, renewal, or refinancing of credit, to the extent obtained, by
(A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition.
In the Ninth Circuit, to prove actual fraud, a creditor must establish each of the following elements:
(1) that the debtor made the representations;
(2) that at the time he knew they were false;
(3) that he made them with the intention and purpose of deceiving the creditor;
(4) that the creditor relied on such representations; [and]
(5) that the creditor sustained the alleged loss and damage as the proximate result of the representations having been made.
Britton v. Price (In re Britton), 950 F.2d 602, 604 (9th Cir. 1991); Eugene Parks Law Corp. Defined Benefit Pension Plan v. Kirsh (In re Kirsh), 973 F.2d 1454, 1457 (9th Cir. 1992). The creditor must prove each element of fraud by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 290 (1991).
DISCUSSION
There is no question that the Debtor's conduct in relation to Dr. Rutley was not appropriate. The Debtor was the lucky recipient of emergency dental care of appropriate quality. The Debtor was not Dr. Rutley's prior patient. Thus, Dr. Rutley had no particularized obligation to speak with Debtor on a Saturday, to see the Debtor on an emergency basis, or otherwise to aid him in his extreme distress. Dr. Rutley, however, obviously takes his obligations as a member of a healing profession seriously. As a result, it is deeply regrettable that he has been treated by Debtor in the manner evident in this case.
Here, however, the question is whether Dr. Rutley's claims against the Debtor are non-dischargeable as a result of Debtor's fraud in obtaining services from Dr. Rutley. In particular, Dr. Rutley argues that the Debtor obtained his services and contracted to make payment for these services knowing that he did not intend to pay for the services once provided. Dr. Rutley bears the burden of proof of fraud and that burden is a heavy one.
In order to establish fraud, it is not enough that the Debtor determined that he would not honor his check after receipt of dental services. Instead, Dr. Rutley must establish that the Debtor intended non-payment when he signed various documents agreeing to pay for services and when he obtained the services themselves. As one Court noted:
The making of a promise normally implies at the very least that the promisor does not have a fixed intention not to honor it; so, if he does have that intention, he is guilty of misrepresentation.... But courts naturally are concerned lest every breach of contract be levered into fraud by the too-facile expedient of asking the jury to infer from the fact that the defendant did not perform his promise that he never intended to perform it. So the rule has grown up that nonperformance is not enough to ground such an inference; there must be additional evidence of the defendant's intentions at the time he made the promise.
Milwaukee Auction Galleries, Ltd. v. Chalk, 13 F.3d 1107, 1109 (7th Cir. 1994) (internal citations omitted).
In determining the Debtor's intent, the Court carefully considered a variety of factors. First, as discussed above, the Court does not find the Debtor's story uniformly credible. In particular, the Court does not find that the quality of the services provided by Dr. Rutley in any way justifies nonpayment. The Court finds that Dr. Rutley was in the unenviable position of rendering services to someone who was incapable of being pleased.
Further, the Court concludes that the Debtor justified nonpayment by the erroneous belief that additional root canal work was required, his determination that he would not return to Dr. Rutley, and the resultant erroneous conclusion that he had overpaid Dr. Rutley. The Court does not find these conclusions reasonable, but does conclude that Debtor's belief was sincere and that Debtor reached these conclusions after treatment.
Dr. Rutley argued in closing that the most compelling evidence of fraud is Debtor's payment through a check dated two days after services were rendered. In particular, he asserts that by so dating the check the Debtor obtained an opportunity to stop payment. The Court, however, finds the Debtor's explanation for the erroneous date on the check to be credible. The Debtor persuasively testified that he was tired and not thinking straight after the multiple hour root canal and that the dating of the check was an innocent error. The Court also notes that there is no evidence that a bank refused or would have refused to accept the check if tendered on the date of the delivery. Further, the evidence is clear that the Debtor did not immediately stop payment on the check. This factor, while not dispositive, supports Debtor's version of the facts.
Finally, the Debtor also supports his position that he intended payment prior to receipt of services by the fact that he actively searched for a dentist providing services at the lowest cost and by the fact that he had enough money in his bank account to cover the check when it was written. The Court agrees that these facts support the Debtor's case.
Having made these determinations, the Court concludes that the Debtor did not obtain services from Dr. Rutley with the intention of avoiding payment for the same. As a result, Dr. Rutley's claim does not arise from an act of fraud by the Debtor and the claim may be discharged in Debtor's bankruptcy. A judgment in favor of the Debtor will follow.