SG Homes Associates, LP v. Michael Marinucci

718 F.3d 327, 2013 WL 2418932, 2013 U.S. App. LEXIS 11176, 58 Bankr. Ct. Dec. (CRR) 1
CourtCourt of Appeals for the Fourth Circuit
DecidedJune 4, 2013
Docket12-1621
StatusPublished
Cited by27 cases

This text of 718 F.3d 327 (SG Homes Associates, LP v. Michael Marinucci) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
SG Homes Associates, LP v. Michael Marinucci, 718 F.3d 327, 2013 WL 2418932, 2013 U.S. App. LEXIS 11176, 58 Bankr. Ct. Dec. (CRR) 1 (4th Cir. 2013).

Opinion

Affirmed by published opinion. Judge AGEE wrote the opinion, in which Judge GREGORY and Senior Judge FABER joined.

AGEE, Circuit Judge:

Defendant-Appellant Michael J. Mari-nucci (“Marinucci”) appeals from the district court’s order affirming the bankruptcy court’s finding of fraud and entry of a nondischargeable judgment for Plaintiff-Appellee SG Homes Associates, LP (“SG Homes”). For the reasons that follow, we affirm the judgment of the district court.

I.

A.

Marinucci was the president and a 50% shareholder of Chesapeake Site Contracting, Inc. (“Chesapeake”). On December 20, 2007, Chesapeake responded to SG Homes’ bid request for site work on a building project at Crabbs Branch Way in Montgomery County, Maryland (“Crabbs Branch Way project” or “the project”).

Some time before December 28, 2007, Marinucci and Chesapeake’s senior project manager, Jay Munnikhuysen (“Munnikhu-ysen”), met and discussed Chesapeake’s bid with two SG Homes officials, procurement manager Paul DeVerger (“DeVer-ger”) and procurement vice president Lo-rin Randall (“Randall”). Marinucci asked whether SG Homes would require a bond or accept a higher retainer instead. Although Randall agreed to consider a retainer, SG Homes ultimately required a bond.

On January 28, 2008, SG Homes awarded Chesapeake the work and requested a certificate of insurance, a performance bond, and a completed W-9 tax form. Although the parties had not signed a written contract, Chesapeake hired subcontractors and suppliers and began work on the Crabbs Branch Way project almost immediately.

On or before February 1, 2008, Marinuc-ci completed a bond request form from the Atlantic Risk Management Corporation requesting performance and payment bonds. On February 1, 2008, Marinucci told *330 Randall in an email that Chesapeake was “pursuing the performance and payment bonds as we agreed.” (J.A. 167.) By mid-March 2008, however, Marinueci had decided not to obtain a bond because his wife would not sign a personal guaranty which the bonding companies required. Nonetheless, on March 26, 2008, Munnikhuysen copied Marinueci on an email to DeVerger that said, “Our office advises me that you should see the P & P bond by the end of next week.” (J.A. 169.)

Work continued without a written contract, and Chesapeake submitted monthly payment applications to SG Homes. Each application contained a certification from Chesapeake that, “to the best of [Chesapeake’s] knowledge, the work covered by [the] Application for Payment ha[d] been completed in accordance with the Contract Documents” and “all amounts previously paid to [Chesapeake] under the Contract ha[d] been used to pay [Chesapeake’s] costs for labor, materials, and other obligations.” (See, e.g., J.A. 195.) Marinueci reviewed each application and directed an employee to sign the certification. Chesapeake deposited the payments received from SG Homes into a common fund from which it paid some of its subcontractors and suppliers on the project, but also paid other creditors who did not provide services or supplies for the Crabbs Branch Way project.

B.

On May 12, 2008, Chesapeake and SG Homes executed a written agreement (“the Contract”) governing the project. The Contract was ambiguous about whether Chesapeake was required to obtain a bond. Subsection G, under “Payment Conditions,” noted that all subcontractors were “subject to a 5[%] retainer and/or must post a bond guaranteeing satisfactory completion of the work.” (J.A. 141; J.S.A. 29-30.) An “X” was placed next to both options indicating the Contract required a 5% retainer and a “warranty/completion” bond. (J.A. 141.)

Subsection M, Part (a) of the Contract (“Performance and Payment Bonds”), under “General Conditions,” stated that Chesapeake would pay for and provide performance and payment bonds to SG Homes, unless a “box [was] checked and no bond [was] indicated above.” (J.A. 145.) There was neither a box nor a check next to this provision. However, Part (b) of Subsection M stated that, if Chesapeake was not then required to post a bond or bonds, SG Homes could require a bond “at any time,” at SG Homes’ expense for the Crabbs Branch Way project. (J.A. 145.)

Subsection L of the Contract, under “Payment Conditions,” required Chesapeake to “insure that all subcontractors, employees, and suppliers, at all times [were] paid all amounts due in connection with the performance of [the] Contract,” and submit evidence of payments. (J.A. 141 (emphasis added).) SG Homes was authorized to withhold any payments due Chesapeake should the subcontractors not be paid and was also authorized to pay such subcontractors directly. Subsection H, under “General Conditions,” required Chesapeake to keep the project free of liens. (J.A. 144.)

Marinueci testified that he understood the Contract required Chesapeake to use the money from SG Homes to pay the subcontractors and suppliers working on the project. (J.S.A. 121.) Further, Mari-nucci affirmed that Chesapeake’s contracts with the project’s subcontractors and suppliers provided that Chesapeake would pay them when it was paid by SG Homes. Marinueci also testified that he knew about the Maryland Construction Trust Statute, which requires money disbursed to a contractor by a project’s developer to be used *331 only to pay that project’s subcontractors. (J.S.A. 100-01); see Md.Code Ann., Real Prop., § 9-201. 1

C.

On May 14, 2008, Munnikhuysen sent an email to DeVerger to say that Chesapeake’s bond had been “cancelled because [Chesapeake] assumed that [SG Homes] no longer wanted it.” (J.A. 171.) DeVer-ger responded the same day, noting that “there may have been a communication breakdown” because SG Homes still needed a bond. (J.A. 170.) DeVerger asked how soon Chesapeake could obtain a bond, and at what cost, so that the Contract could be revised. Munnikhuysen replied that he had “talked to [Marinucci] via telephone and [Chesapeake] [would] get on the bond right away.” (J.A. 170.) On June 3, 2008, DeVerger emailed Munnikhuysen and asked when the bond would be issued. Munnikhuysen responded that he would “check again” and “let [DeVerger] know.” (J.A. 172-73.) Marinucci was copied on every email in the exchange.

On June 17, 2008, Munnikhuysen sent DeVerger — and copied Marinucci — on an email with the subject line “Guardrail/bond — Crabbs Branch Way.” (J.A. 174-75.) Munnikhuysen said that he had received DeVerger’s telephone message and forwarded it to Marinucci, who was out of the office but “handling the issues [DeVerger] [had] called about.” (J.A. 174-75.)

In September 2008, Randall emailed Marinucci to say that a subcontractor had told SG Homes that it had performed work for Chesapeake on the project in July 2008 but would not be paid until October 2008. Randall told Marinucci that he would “pay them directly and back the amount out of [Chesapeake’s] next payment.” (J.A. 178.) On October 9, 2008, Randall emailed Mari-nucci about another subcontractor that was owed money from Chesapeake on the project, and that a joint check would be issued to the subcontractor.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rable v. Childers
N.D. Ohio, 2023
Vandevender, Sr. v. Vandevender
S.D. West Virginia, 2023
Apollo Medflight, LLC v. Lowry
E.D. North Carolina, 2021
Verkon v. Ollis
D. South Carolina, 2021
Arguedas v. Ollis
D. South Carolina, 2021
Thompson v. Ollis
D. South Carolina, 2021
Chapman v. Ollis
D. South Carolina, 2021
Halstead v. MUCKLOW
S.D. West Virginia, 2021
Adkins v. MUCKLOW
S.D. West Virginia, 2021
Elliot v. MUCKLOW
S.D. West Virginia, 2021
Tribune Media Company
D. Delaware, 2020
Capital Fin., LLC v. Rosenberg
364 F. Supp. 3d 529 (D. Maryland, 2019)
Thomas Rusnack v. Cardinal Bank, N.A.
695 F. App'x 704 (Fourth Circuit, 2017)
In re Tribune Media Co.
552 B.R. 282 (D. Delaware, 2016)
Brannon v. Reynolds (In re Reynolds)
543 B.R. 236 (S.D. West Virginia, 2015)
Vice v. Vieira (In re Legacy Development SC Group, LLC)
551 B.R. 209 (D. South Carolina, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
718 F.3d 327, 2013 WL 2418932, 2013 U.S. App. LEXIS 11176, 58 Bankr. Ct. Dec. (CRR) 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sg-homes-associates-lp-v-michael-marinucci-ca4-2013.