Opinion

Lincicome v. Anthony Roofing, LLC

Court
United States Bankruptcy Court, N.D. Ohio
Filed
Jul 16, 2019
Cited by
0 cases
Authority
More cited than 30.2%

The opinion

The court incorporates by reference in this paragraph and adopts as the findings and orders

of this court the document set forth below. This document was signed electronically at the

time and date indicated, which may be materially different from its entry on the record.

Russ Kendig

Sarees United States Bankruptcy Judge

Dated: 02:59 PM July 16, 2019

UNITED STATES BANKRUPTCY COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

IN RE: ) CHAPTER 13

)

ANTHONY JAMES GARMAN, ) CASE NO. 17-62055

)

Debtor. ) ADV. NO. 17-6024

—)

RENE LINCICOME, ) JUDGE RUSS KENDIG

)

Plaintiff, )

Vv. )

) MEMORANDUM OF OPINION

ANTHONY ROOFING, LLC, et al, ) (NOT FOR PUBLICATION)

)

Defendants. )

This proceeding is an action to determine the nondischargeability of a debt under 11

U.S.C. § 523(a)(2)(A) and (6). The debt at issue arises from a roofing contract between Plaintiff

and Defendant. The court conducted a trial on May 28, 2019.

The court has jurisdiction of this proceeding under 28 U.S.C. § 1334(b) and the general

order of reference entered by the United States District Court on April 4, 2012. This is a

statutorily core proceeding under 28 U.S.C. § 157(b)(2)CK) and the court has authority to issue

final entries. Pursuant to 11 U.S.C. § 1409, venue in this court is proper.

This memorandum constitutes the court’s findings of fact and conclusions of law under

Fed. R. Civ. P. 52, made applicable to this adversary proceeding by Fed. R. Bankr. P. 7052.

Regardless of whether specifically referred to in this memorandum, the court examined the

submitted materials, weighed the credibility of witnesses, considered all of the evidence, and

reviewed the entire record of the case. Based upon that review, the court finds the debt is

dischargeable.

This opinion is not intended for publication or citation. The availability of this opinion,

in electronic or printed form, is not the result of a direct submission by the court.

FACTS

Anthony James Garman (“Defendant”) was the sole owner and operator of Anthony

Roofing, LLC. In December 2013, Rene Lincicome (“Plaintiff”) contacted Defendant about the

leaking flat roof at her residence. He provided an estimate. The parties exchanged several

emails. In a December 30, 2013 email, Defendant represented “[w]e will also provide you with

a 10 year 100% labor and material guarantee. Water tight guarantee as well for 10 years.”

On or about January 29, 2014, Plaintiff contracted Defendant to install a new Firestone

roof system with a twenty year watertight guarantee at her residence for $12,995. The invoice

delineated the job as follows:

Tear off of the entire roof system in place now. Then install new

wood where we find any bad or rotted wood. After we are comfort-

table with the wood in place, we will install a 3” build up, which will

allow all the water the roof gets, (sic) to drain towards your gutters.

This will prevent standing water. Then install roof system which is

a .045 EPDM made by Firestone. Will flash all chimneys and install

all new pipe boots. We will seal all the roof openings, then clean-up

& haul away the debris. We will provide a 20 year water tight guarantee.

Plaintiff paid a $9,000 deposit and later paid the balance in full.

Installation followed shortly after the contract was signed. Although Defendant did

appear at the job site, he did not install the roof. Defendant subcontracted Jeff Jarens (“Jarens”)

to handle the installation of the flat roof. After the install was complete, Defendant sent a letter

on February 2, 2013, stating “I now have a long term interest in your roof for the next 10 years

with a 20 year, 100 percent labor and material guarantee.”

At trial, Defendant testified that two warranties combine to provide the 20 year guaranty,

a 10 year labor warranty provided by Defendant and a 10 year water tight guarantee provided by

Firestone. Firestone will stand by the watertight guarantee when its product is installed by a

certified installer. Defendant himself did not have the necessary certification. Defendant did

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not tell Plaintiff that he lacked the necessary certification, nor did Plaintiff ask. Defendant

testified that he believed Jarens had the proper certification and/or education. He worked with

Jarens on previous jobs.

The newly installed roof began to leak very soon after installation, damaging the interior

of Plaintiff’s home. Defendant does not deny the roof leaked. Plaintiff called Defendant

regarding the problem at least three times. Although he did not come in person, he responded

and sent someone out each time. The problems were not remediated and Plaintiff stopped

calling Defendant for continued leakage. Eventually, she contacted Home Improvements

Specialists, LLC, owned by Adam Casebolt. He determined the roof was “irreparable and

required complete reinstallation.” (Pl.’s Exh. 11, ¶ 13) He replaced the roof at a cost of

$17,500.

Plaintiff sued Defendant in state court on April 26, 2017. Defendant filed a chapter 7

bankruptcy case on September 15, 2017. Plaintiff commenced this action on October 3, 2017.

DISCUSSION

I. 11 U.S.C. § 523(a)(2)(A)

To succeed on her nondischargeability claim under 11 U.S.C. § 523(a)(2)(A), Plaintiff

must prove four elements:

1) The debtor obtained money through a material misrepresentation

that, at the time, the debtor knew was false or made with gross

recklessness as to its truth;

2) The debtor intended to deceive the creditor;

3) The creditor justifiably relied on the false representation; and

4) Its reliance was the proximate cause of loss.

Brentar v. Nishnic (In re Nishnic), 2006 Bankr. LEXIS 4183 (Bankr. N.D. Ohio 2006), at 10-11,

quoting In re Rembert, 141 F.3d 277, 280-81 (6th Cir. 1998) (citation omitted). She bears the

burden of proof by a preponderance of the evidence. Atassi v. McLaren (In re McLaren), 990

F.2d 850, 853 (6th Cir. 1992) (citing Grogan v. Garner, 498 U.S. 279 (1991)). Plaintiff advances

more than one misrepresentation in support of her § 523(a)(2)(A) claim.

A. Defendant expressly warranted the roof would remain watertight for at

least 20 years

In the contract, Defendant represented that “we will provide a 20 year water tight

guarantee.” There is no dispute that the roof proved not to be watertight. The fact the

statement turned out to be untrue is relevant to liability, but is not sufficient, standing alone, to

prove nondischargeability. To be actionable, the statement had to be false, or be made with

gross recklessness, when it was made. To be grossly reckless, Defendant must “have made the

representation with reckless disregard for, or conscious indifference to, the truth.” In re Crowe,

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2014 WL 4723084, *8 (Bankr. N.D. Ohio 2014) (citations omitted). There is no evidence that

Defendant lied when he made the statement, or made it with gross recklessness. The court is

persuaded that when Defendant made the statement, he fully intended that the roof would be

watertight and intended to provide Plaintiff with a 20 year guarantee on his work and the

materials he used in the installation.

Plaintiff elicited testimony from Defendant that more fully explains his differing

representations regarding the 10 year and 20 year guarantees. After listening to the testimony,

the 20 year guarantee derives from a 10 year labor guarantee provided by Defendant and 10 year

product guarantee provided by Firestone. There was also testimony concerning the status of a

certificate to install the Firestone roof. All this circles a cul-de-sac because Defendant never

represented Plaintiff would have a guarantee from Firestone. He personally warranted the work

and materials. Consequently, whether anyone had a certificate is meaningless. Plaintiff failed

to establish the falsity of Defendant’s statement concerning a 20 year watertight guarantee.

Even if the statement did satisfy the first element, the court finds that Defendant had no

intent to deceive Plaintiff when he made the statement. There is nothing in the record that

supports a finding that Defendant entered into the contract promising a 20 year watertight

guarantee which he did not intend to deliver. His efforts to remediate the post-installation

leakage evidence an intent to deliver a leak-free roof.

Plaintiff’s § 523(a)(2)(A) action on the representation concerning the 20 year watertight

guarantee fails.

B. Garman held himself out as certified to install flat roofs and did not

possess any such certifications

Plaintiff asserts that Garman represented to Plaintiff that he was certified to install flat

roofs. None of the testimony supports any such representation. Plaintiff herself testified that

she did not ask if Garman had certification for the roof. Garman testified that he told Plaintiff

that he was licensed, bonded and insured. There is no evidence that the parties ever discussed

certifications. As outlined above, to the extent that a certification underlies the Firestone

warranty, Defendant never mentioned that any part of the warranty was provided by Firestone.

While a certificate may be necessary to invoke protection under a Firestone warranty, this was

not a specific part of the parties’ contract. Plaintiff’s claim on this alleged misrepresentation

fails.

C. Garman represented that all the materials used on her roof would be new

Plaintiff also contends Garman represented that all the materials used on her roof would

be new. This is not supported. The parties’ contract does not specify that all materials would

be new. It says that new wood would be used to replace rotted or bad wood and new pipe boots

installed. The statement that only rotted or bad wood would be replaced soundly renounces

Plaintiff’s statement that “all” materials would be new. Clearly, Defendant anticipated reuse of

wood where possible.

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Adam Casebolt testified that the metal seen in certain photos was older than it should

have been, based on rust and other unidentified indicators. Plaintiff failed to establish that the

metal referenced by Mr. Casebolt was either installed by Defendant or any of the product

specified to be new in the parties’ contract. There is nothing in the record demonstrating

Defendant installed used product when he promised new.

Moreover, while Plaintiff intimated that the damage viewed by Mr. Casebolt was so

severe that the product could not have been new, the court found such testimony to be

speculative. Mr. Casebolt was on the roof approximately two years after Defendant installed it.

His testimony did not conclusively establish the wear was the result of used product, nor did he

establish the wear was to product that the parties’ contract required to be new. Further, he did

not convince the court of Defendant’s responsibility for the damage. The intervening two year

period between Defendant’s install and Mr. Casebolt’s re-installation must be considered.

Weighing all testimony, the court is not persuaded Defendant represented he would use new

materials and then installed used materials.

Having failed to establish a material misrepresentation, Plaintiff’s claim for

nondischargeability under 11 U.S.C. § 523(a)(2)(A) is not well-taken.

II. 11 U.S.C. § 523(a)(6)

Plaintiff’s complaint also contains a count for nondischargeability under 11 U.S.C.

§ 523(a)(6), which prevents discharge of debts “for willful and malicious injury.” As the

Supreme Court opined, “the word ‘willful’ in (a)(6) modifies the word ‘injury,’ indicating that

nondischargeability takes a deliberate or intentional injury, not merely a deliberate or intentional

act that leads to injury.” Kawaauhau v. Geiger, 523 U.S. 57, 62 (1998). To qualify as

malicious, the injury must “occur[] in ‘conscious disregard of one’s duties or without just cause

or excuse.’” Trost v. Trost (In re Trost), 735 Fed.App’x 875, 878 (6th Cir. 2018) (quoting

Wheeler v. Laudani, 783 F.2d 610, 615 (6th Cir. 1986)). Thus, Plaintiff must prove that

Defendant intended to injure her and cause the property damage that resulted from his

installation of the leaky roof.

Neither the testimony or record evidence Defendant’s intent to injure Plaintiff. As

previously stated, an intent to cause injury is negated by his attempts to fix the leaks in the roof.

Defendant ceased going to Plaintiff’s residence only when she stopped calling him. Plaintiff

failed to convince the court that Defendant intended to injure her.

CONCLUSION

Defendant clearly was the wrong contractor for replacement of Plaintiff’s flat roof.

Even Defendant acknowledges problems with the end product. Unfortunately, bankruptcy law

requires more than incompetence or poor workmanship to except a debt from discharge. To be

excepted from discharge under § 523(a)(2)(A), Plaintiff had to demonstrate that Defendant

obtained his payment for the roof on the basis of a false or reckless statement and she did not.

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Additionally, the court concludes that Defendant intended to deliver on the statements he made

about replacing Plaintiff’s flat roof. Plaintiff therefore cannot succeed on her claim for

nondischargeability based on fraud.

In order for the debt to be nondischargeable under § 523(a)(6), Plaintiff had to show that

Defendant willfully and maliciously intended the damage that resulted to her property. The

record does not support such a finding. Defendant may have been responsible for the damage

but the court cannot find that Defendant purposefully intended to cause the damage and harm

Plaintiff.

An order finding the debt dischargeable and dismissing Plaintiff’s complaint will be

entered contemporaneously with this opinion.

# # #

Service List:

Laura L. Mills

Pierce Walker

Mills, Mills, Fiely & Lucas, LLC

101 Central Plaza S., Suite 1200

Canton, OH 44702

Edwin H. Breyfogle

108 Third Street NE

Massillon, OH 44646

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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