Stamm-Lingo v. Secrest (In re Secrest)

255 B.R. 16, 2000 Bankr. LEXIS 1327
CourtUnited States Bankruptcy Court, S.D. Ohio
DecidedOctober 27, 2000
DocketBankruptcy No. 99-56423; Adversary No. 99-357
StatusPublished

This text of 255 B.R. 16 (Stamm-Lingo v. Secrest (In re Secrest)) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, S.D. Ohio primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stamm-Lingo v. Secrest (In re Secrest), 255 B.R. 16, 2000 Bankr. LEXIS 1327 (Ohio 2000).

Opinion

MEMORANDUM OPINION AND ORDER

CHARLES M. CALDWELL, Bankruptcy Judge.

This adversary proceeding came before the Court on July 6, 2000, for a trial on a complaint filed by the Plaintiff, Pauline Stamm-Lingo (“Plaintiff’). The Plaintiff seeks an order declaring nondischargeable a judgment entered in her favor by the Franklin County Common Pleas Court, pursuant to sections 523(a)(2)(A) and/or (a)(6).1 The Court finds the Plaintiff has failed to sustain her burden of proving that: a) the Debtor, Robert L. Secrest (“Defendant”), made false statements regarding his credentials or ability to complete the work he was hired to perform; b) he intended to deceive the Plaintiff; c) she justifiably relied on Defendant’s representations; d) the Defendant’s actions were the proximate cause of any loss; and e) the debt owed by the Defendant was incurred as a result of the Defendant’s intent to cause injury. What follows is a brief statement of the facts and analysis which led the Court to this conclusion.

The Plaintiff and the Defendant became acquainted in September 1995, when the Defendant was an eighteen-year-old senior at Fairfield Career Center and Vocational School for Gahanna Lincoln High School. The parties were introduced by the Plaintiffs granddaughter, Nicole Burdette. At the time she met the Defendant, the Plaintiff was interested in purchasing 478^480 East Gates Street in Columbus, Ohio. The property had been badly damaged by fire, and the Plaintiff knew it needed substantial repairs. She intended to rehabilitate the property for rental. No evidence was presented as to whether the Plaintiff had any experience in hiring contractors, rehabilitating property, or serving as a landlord.

The Defendant informed the Plaintiff that he was interested in being hired to rehabilitate the property and gave her his business card, which displayed the name of his construction company, “Secrest Contracting.” The Defendant’s business card also stated that he was licensed and bonded, although it did not state that these credentials were valid only in the city of Gahanna. The Defendant credibly testified, however, that he orally informed the Plaintiff he was not licensed or bonded in the city of Columbus.

[19]*19The Defendant had only a modest amount of experience in the construction business, limited to being a student in his vocational school’s carpentry program, and assisting family and friends with small carpentry and painting jobs. He had never undertaken or assisted in the rehabilitation of houses as badly damaged as 478-480 East Gates, and he admitted having no experience in the operation of a business, including managing and training employees, or preparing and maintaining business records.

Notwithstanding his limited experience, the Defendant informed the Plaintiff he would be able to do the work necessary to render the property habitable. This, apparently, was all the assurance the Plaintiff needed. She hired the Defendant, and gave him sole responsibility for rehabilitating 478 — 480 East Gates, as well as 488-488/6 East Gates, which the Plaintiff subsequently purchased and which had been severely vandalized. The Defendant commenced work on the houses in late November 1995.2

The parties had no written contract, and the Plaintiff and Defendant offered conflicting testimony on the terms of compensation. According to the Plaintiff, she agreed to pay the Defendant $25.00 per hour. The Defendant testified more credibly that they originally agreed he would be paid at the end of the project in an amount equal to fifty percent of the cost of the rehabilitation. Soon after he began working, however, the Plaintiff offered to pay him as the work progressed, subject to the fifty percent ceiling. The Defendant testified that after the Plaintiff terminated his employment, their oral contract was modified a third time, to value his work at $25.00 per hour for the purpose of liquidating the obligations under the arrangement. The parties agree that the Plaintiff was to pay for all additional labor, materials and necessary equipment as the work progressed, and that the Defendant was to provide the Plaintiff with receipts for materials or equipment purchased for the project.

At the outset of the project, whenever the Defendant required funds to pay laborers or purchase materials, he requested a check or cash from the Plaintiff. This arrangement proved cumbersome; however, and at the Defendant’s request, the Plaintiff opened a checking account that bore her name as well as the Defendant’s. The Defendant was given authority to write checks on the account and to make cash withdrawals. The Defendant routinely wrote checks to pay for materials, and to himself and others as compensation for labor performed on the properties.

After receiving two bank statements which noted many cash withdrawals, the Plaintiff began questioning the Defendant to obtain receipts. The Defendant was able to provide some receipts, but could not account for all of the cash withdrawn. The Defendant testified the funds were used to purchase materials from vendors reluctant to accept personal checks and for laborers who preferred to be paid in cash. The Plaintiff admitted she knew that as many as nine people in addition to the Defendant worked on the houses, and that these individuals were being paid in cash. The dispute over expenses, as well as the Plaintiffs unhappiness with the rate at which the project was progressing, caused the Plaintiff to terminate the Defendant’s employment in early February 1996.

On February 29 and March 1, 1996, the Plaintiff and Defendant met to determine where the money had been spent and any sums the Defendant was owed. These meetings were unsuccessful, and the Plaintiff requested additional documentation. [20]*20At the Plaintiffs request, the Defendant attempted to compile an accounting of the time he had devoted to working on the houses, including time spent not only at the properties, but time taken to negotiate with vendors, obtain permits, and other tasks not related to physical labor on the premises. The Defendant credibly testified this accounting was difficult to prepare, because the Plaintiff had not required him to record his hours at the outset of their arrangement. The Defendant logically explained this was due to their agreement that he would be paid a flat rate, based on a percentage of the cost of the rehabilitation. Nonetheless, he prepared an invoice for each of the two properties, and presented them to the Plaintiff. The invoices reflected that the Defendant worked in excess of four hundred hours over the time he was employed by the Plaintiff. The Plaintiff testified that she did not believe the Defendant worked as many hours as he declared on the invoices. The meetings and invoices failed to result in a resolution of the parties’ differences.

On July 8, 1998, the Plaintiff sued the Defendant in Franklin County Common Pleas Court, alleging violations of Columbus Municipal Code section 4114.01, et seq., and of Ohio’s Consumer Sales Practices Act, O.R.C. section 1345.01, et seq. After the Defendant failed to answer or otherwise respond to the Plaintiffs complaint, the common pleas court entered a judgment against him by default on February 22, 1999. On February 25, 1999, Franklin County Common Pleas Court Magistrate Rita Bash Eaton issued a decision awarding the Plaintiff compensatory damages in the amount of $33,676.00 and punitive damages in the amount of $25,000.00. Magistrate Eaton’s decision was reduced to judgment on April 1, 1999.

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Bluebook (online)
255 B.R. 16, 2000 Bankr. LEXIS 1327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stamm-lingo-v-secrest-in-re-secrest-ohsb-2000.