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Bosman v. Glod

United States District Court, N.D. New York

March 2, 2017

A.J. BOSMAN, Appellant,
v.
MATTHEW J. GLOD, Appellee.

          FOR THE APPELLANT A.J. Bosman Pro Se

          FOR THE APPELLEE Office of David J. Gruenewald

          OF COUNSEL DAVID J. GRUENEWALD, ESQ.

          MEMORANDUM-DECISION AND ORDER

          Gary L. Sharpe Senior District Judge

         I. Introduction

         Appellant pro se A.J. Bosman[1] 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.[2] For the reasons that follow, Bankruptcy Court's order is affirmed.

         II. Background

         In 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.)

         This 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.)

         Pursuant 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.)

         After 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. (Id.)

         Sometime 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 at 30.)

         Bellinger, 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.)

         The 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.[3] (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 ...


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