United States District Court, N.D. New York
A.J. BOSMAN, Appellant,
MATTHEW J. GLOD, Appellee.
THE APPELLANT A.J. Bosman Pro Se
THE APPELLEE Office of David J. Gruenewald
COUNSEL DAVID J. GRUENEWALD, ESQ.
MEMORANDUM-DECISION AND ORDER
L. Sharpe Senior District Judge
pro se A.J. Bosman appeals from a Memorandum-
Decision and Order of the Bankruptcy Court (Davis, J.), filed
April 1, 2015, which: (1) found in favor of appellee Matthew
Glod; and (2) dismissed Bosman's adversary complaint in
its entirety. For the reasons that follow, Bankruptcy
Court's order is affirmed.
October 2005, Glod voluntarily filed for Chapter 13
bankruptcy protection, which was dismissed for his failure to
make plan payments. (05-72431 Bankr. Dkt. Nos. 1, 33, 35.) In
August 2013, Glod again voluntarily filed for Chapter 13
bankruptcy and listed Bosman as a creditor with a disputed
debt of $5, 000.00. (13-61372 Bankr. Dkt. No. 1.) Thereafter,
Bosman commenced an adversary proceeding to determine whether
a debt in the amount of $53, 334.00 allegedly owed to her by
Glod was except from discharge. (Dkt. No. 7, Attach. 1.)
Bosman claimed the debt was nondischargeable on the grounds
of Glod's false representations, related to construction
work performed on her home, failure to list Bosman as a
creditor in the 2005 bankruptcy petition, and larceny and
embezzlement under 11 U.S.C. § 523(a)(2), (3), (4).
(Id.) Glod answered, denied the allegations, and
requested that the complaint be dismissed. (Dkt. No. 7,
Attach. 2.) Bankruptcy Court issued a scheduling order, (Dkt.
No. 7, Attach. 7), and a bench trial was held over two days
on December 2 and 16, 2014, (Dkt. No. 8, Attachs. 11, 15). At
trial, five witnesses testified. (Id.) Bosman
elicited her own testimony and that of Timothy Taciak, a
contractor who performed work on Bosman's home between
2006 and 2007, and Michael Bellinger, a heating and plumbing
technician who serviced Bosman's boiler in 2014. (Dkt.
No. 8, Attach. 11.) Glod and Brian Skinner, the general
contractor for Bosman's home construction between 2005
and 2006, testified for the defense. (Dkt. No. 8, Attach.
15.) Following trial, the parties submitted closing
memoranda, (Dkt. No. 8, Attachs. 17-21; Dkt. No. 9, Attachs.
1-2), and Bankruptcy Court issued its Memorandum-Decision and
Order, which denied all of Bosman's claims and dismissed
her complaint, (Dkt. No. 6 at 8-29). In addition, Bankruptcy
Court noted that because of its ruling, Bosman could not
continue a state court action against Glob individually and
doing business as Matt Glod Electric seeking damages for
claims alleging breach of contract, negligence, and unjust
enrichment. (Id. at 17, 29.)
adversary proceeding arises from an alleged debt owed for
construction work performed by Glod, a licensed master
electrician, on Bosman's home between 2002 and 2005. In
2002, Bosman's late fiancé, Richard McClimans,
served as the general contractor for the project and hired
Glod to perform plumbing and heating services. (Dkt. No. 8,
Attach. 11 at 3-4; Dkt. No. 8, Attach. 15 at 5-6, 9-10.) The
home construction was financed by a construction loan and
required the general contractor to authorize each draw
provided by the lending institution. (Dkt. No. 8, Attach. 15
at 8, 16.) The cost of Glod's work was quoted in a
contract, however, Glod presented Bosman with project
proposals that she could accept or decline which would impact
the ultimate project price. (Id. at 59.)
to an agreed upon proposal, Glod purchased a 200, 000 BTU
Weil McClain boiler to be installed in Bosman's home.
(Dkt. No. 8, Attach. 11 at 12.) Before installation, Glod
agreed to store the boiler in his unheated workshop at no
extra charge. (Id. at 25; Dkt. No. 8, Attach. 15 at
40.) In 2003, McClimans suddenly passed away and Bosman
stopped construction on her home for approximately three
years. (Dkt. No. 8, Attach. 11 at 25; Dkt. No. 8, Attach. 15
at 40.) Glod continued to store Bosman's boiler without
charge. (Dkt. No. 8, Attach. 11 at 25.)
over two years of storage, Glod sold the boiler without
Bosman's consent. (Dkt. No. 8, Attach. 15 at 41.) He
noted that the boiler started to develop rust and he wanted
to sell it before it further deteriorated, assuming Bosman
would want to purchase and install a new boiler.
in 2005, Bosman resumed construction on her home and entered
into a new contract with Glod. (Dkt. No. 8, Attach. 11 at
25-26; Dkt. No. 8, Attach. 15 at 8; Dkt. No. 8, Attach. 19 at
3-6.) The contract stated that “[t]he boiler ha[d] been
previously purchased by owner and [would] be installed at no
charge.” (Dkt. No. 8, Attach. 19 at 6.) The parties
dispute when Bosman was informed that Glod had sold the
boiler. Glod contends that he had discussed this with her
before they entered into the 2005 contract while Bosman
asserts it was months after. (Dkt. No. 8, Attach. 11 at 8,
26; Dkt. No. 8, Attach. 15 at 41, 73.) Skinner, who was the
new general contractor, corroborated Glod's testimony.
(Dkt. No. 8, Attach. 15 at 15.) Glod testified that he
credited Bosman for the price of the original boiler and
presented her with the option to repurchase the same boiler
model or to upgrade to a more efficient model; she would be
responsible for any difference in the cost. (Id. at
41, 73.) Bosman selected the more efficient model, a 230, 000
BTU Weil McClain, which is currently installed in her home.
(Dkt. No. 8, Attach. 11 at 9, 28-29; Dkt. No. 8, Attach. 19
a heating and plumbing service technician, testified that he
repaired Bosman's boiler system in 2014. (Dkt. No. 8,
Attach. 11 at 64-65, 69, 71.) In his opinion, the 230, 000
BTU Weil McClain boiler was too large for Bosman's home.
(Dkt. No. 8, Attach. 11 at 74.)
parties dispute whether Glod completed the contracted work,
however, agree that Glod stopped working on Bosman's home
in April 2006 after a dispute over light
fixtures. (Dkt. No. 8, Attach. 11 at 17, 36-37; Dkt.
No. 8, Attach. 15 at 17-18.) Bosman also complained that Glod
installed inadequate materials; specifically, she observed a
light switch with rusted screws. (Dkt. No. 8, Attach. 11 at
17, 39.) Taciak, who performed repair work for Bosman in 2006