Boccella v. Purington (In re Purington)

In the Matter of Tracy L. Purington DebtorFilomena Boccella Plaintiff

v.Tracy L. Purington Defendant

Case No. 11-11617/JHW

Adv. No. 11-1757

UNITED STATES BANKRUPTCY COURT DISTRICT OF NEW JERSEY

Dated: May 29, 2012

OPINION

APPEARANCES¹ : Filomena Boccella

5018 Moss Mill Road

Egg Harbor Township, New Jersey 08215

Plaintiff Pro Se

Tracy L. Purington

1043 Old Zion Road

Egg Harbor Township, New Jersey 08234

Defendant/Debtor Pro Se

The plaintiff, Filomena Boccella, brings this action against the debtor, Tracy Purington, alleging that the debtor committed fraud and theft by deception with respect to a contract to perform renovations on the plaintiff's home. Although the original adversary cover sheet captioned the matter as an objection to the debtor's overall discharge under 11 U.S.C. § 727, the plaintiff's allegations and objections to the debtor's ability to discharge her claim aremore in line with a quest for nondischargeability of the debt alleged to be due to the plaintiff under 11 U.S.C. § 523. Because the element of intent to deceive the plaintiff by the debtor has not been established on this record, the relief sought by the plaintiff in this adversary complaint is denied.

FACTS AND PROCEDURAL HISTORY

This action stems from a dispute over construction and renovation work that the plaintiff, Filomena Boccella, hired the debtor, Tracy L. Purington, and her company, Green Mountain Construction, to perform in 2009. Ms. Boccella sought to have her roof replaced, certain interior work performed, and a large addition, approximately 22' x 21.5', added to her home. She noticed the debtor's advertisement in a local newspaper under the heading of "Additions, Repairs & Remodeling." The advertisement suggested that the name of the debtor's construction company was "A-1 Jacking & Leveling",² and that the company performed various types of construction work, including "sill plate, sheet rock, renovs, painting, kits & baths, roofs, windows & siding." Exh. P-13. The plaintiff responded to the ad and met with the debtor several times. She was shown several albums of pictures of previous work done by the debtor, as well as some references, but she did not contact any of the references. She believed that the debtor was a licensed, insured, and fully functionalcontractor. At first, the plaintiff testified that the debtor assured her that "she was registered and she was licensed and insured,"³ but she later testified that she did not recall asking the debtor whether she was registered or licensed prior to starting the job.⁴

The debtor extended a proposal to the plaintiff in the name of Green Mountain Construction d/b/a Tracy Purington to replace the roof, renovate the plaintiff's kitchen and bathroom, sheetrock two existing bedrooms, and build a new addition onto the home, for a total price of $45,000, which the plaintiff accepted on May 21, 2009. Work was to commence on the day after Memorial Day and was to be completed by July 16, 2009.

The plaintiff tendered the initial down payment of $8,000, and the debtor began work on the property. The debtor applied for and obtained a permit from the township to re-shingle the plaintiff's roof, listing the contractor as "4 Leaf Clover", a company owned by the debtor's brother-in-law, Robert Hibbert. The company was not known to the plaintiff and had no other connection to the job. The application was signed by Hibbert, and contained his Contractor's License Number and Federal Employee ID Number. The debtor acknowledged that her company, Green Mountain Construction, was not licensed in NewJersey.⁵ She testified that she believed she could "pull" the roofing permit as a subcontractor using her brother-in-law's name and license. A second permit for the addition to the home was applied for in the name of the owner, Filomena Boccella.

Work on the project began on or about May 26, 2009. The debtor brought four workers to the project, two of whom were friends of her brother-in-law and one was her "girlfriend's boyfriend", who she testified had been doing construction work for twenty-five years. The debtor relied on "word of mouth" to bring these workers to the job. The workers removed the old roof and replaced damaged portions of the wood sheathing. The roof was reshingled but the workers did not complete all of the associated work for the reroofing.

In addition to the replacement of the roof, the workers took down the sheet rock and insulation from the kitchen and two bedrooms, cleaned out and removed the mold from these rooms, removed the tile from the kitchen and bathroom, and began the excavation work necessary for the addition. According to the plaintiff, many problems arose as the work progressed,including poor workmanship and lack of professionalism by the workers. The problems described by the plaintiff included the following:

1. The new roof was defective and incomplete. During the job, it rained heavily, and the roof leaked in several places. At one point, the foot of one of the workers working on the roof broke through to the bathroom ceiling. As well, the wrong roof shingles were initially delivered to the plaintiff's home. The parties agree that the shingles delivered were the wrong color, but the plaintiff also alleged that the shingles were the wrong style and manufacturer. She testified that the debtor had "verbally" agreed to provide a higher quality textured shingle, but "then she pulled the bait-and-switch" and delivered a product by a different manufacturer.⁶ The shingles were sent back and replaced with shingles of the correct color, but still made by the same manufacturer. It appears that the parties ultimately agreed to install the replacement shingles, with an adjustment in the contract price from $45,000 to $43,000.

2. The excavation work for the addition was undertaken by a subcontractor, Totoro, Inc., hired by the debtor, whose principalwas the debtor's husband's childhood friend.⁷ The work began before a permit for the addition was issued by the Township. The plaintiff complains that the excavation work was extremely shallow and substandard. When the Township reviewed the proposed plan, seventeen violations were found, including that the footings needed to be deeper, the new foundation required a drain and the crawl space required vents and a minimum depth. According to the debtor, the work was preliminary, and was intended only to rip out the roots of plants and prepare the ground for more extensive excavation.

3. As part of the preparation for the addition, a hole was made into the crawl space of the home to serve as the connector for the addition. The hole exposed a portion of the crawl space to the elements, and mud invaded the interior of the space while the interior was exposed.

4. Different workers seemed to show up each day to work on the job, and the workers rarely seemed to have the proper tools. The workers left the interior premises in a shambles, necessitating theplaintiff and her house-mate to engage in additional demolition and clean-up activities.

Notwithstanding these problems, on June 1, 2009, pursuant to their agreement, the plaintiff tendered to the debtor the next installment payment of $9,000. Thereafter, the relationship between the parties rapidly deteriorated. A few days after the work commenced, the plaintiff left a message on the debtor's answering machine, complaining to the debtor that the debtor and her workers were "in over their heads, the workmanship is horrible, the roof still leaks," and questioning when the project would be finished.⁸ The plaintiff asked for some ($10,000) of her money back, but the debtor declined to cancel the contract. According to the debtor, when she returned to the plaintiff's home on June 8 and again on June 11, 2009 to continue working on the property, Kristen Distler, the plaintiff's house-mate, threatened her and her employees with physical harm,⁹ at which point the debtor left the job site.

Approximately a week later, on June 18, 2009, the debtor filed two complaints against Kristen Distler with the Mullica Township Police Department. Counter-charges were later filed by Ms. Boccella, alleging that the debtor had committed theft by deception by creating a false impression thatcertain work could and would be performed. The parties went to mediation. Ultimately, both sides agreed to drop their respective charges and the matter was dismissed.

On August 27, 2009, Ms. Boccella filed a civil complaint and order to show cause against Tracy Purington, Dave Appleby, Robert A. Hibbert, Doe Insurance Companies, Tom Doe of Totoro, Inc. and Tru Pro Industry in the New Jersey Superior Court, Law Division, Atlantic County, case number L-3364-09. With the consent of the parties, the state court referred the matter to arbitration. Both parties testified that they met with the two assigned arbitrators separately, they were not sworn in, and they were not afforded an opportunity to cross-examine witnesses. Around the same time, on September 22, 2009, the debtor recorded a construction lien claim against the plaintiff's residence in the amount of $26,000.

On November 3, 2010, the arbitrators reported in favor of Ms. Boccella, granting her an award in the amount of $24,200, representing a full refund of monies paid, plus $6,300 for the cost of repairing the roof and $900 for half the cost of a dumpster used by the parties. The debtor was directed to remove the construction lien against Ms. Boccella's property. On January 21, 2011, the plaintiff moved for confirmation of the arbitration award. On February 17, 2011, Judge Kane in the New Jersey Superior Court granted Ms. Boccella's motion as to David Appleby and Green Mountain Construction, but denied hermotion to confirm the arbitration award as to Ms. Purington because of her bankruptcy filing, which occurred on January 20, 2011. On April 21, 2011, the Superior Court ordered that the lien on Ms. Boccella's property be released.

In the debtor's bankruptcy filing, she...