Georges v . Exceptional Properties 05-CV-322-SM 02/28/07 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Dana S . Georges, Defendant/Appellant

v. Civil N o . 05-cv-322-SM Opinion N o .

Exceptional Properties, Inc., Plaintiff/Appellee

O R D E R

Dana S . Georges appeals the decision of the United States

Bankruptcy Court for the District of New Hampshire (Vaughn, C.J.)

holding that: (1) he owes $361,087.50 to Exceptional Properties,

Inc. (“EPI”); (2) his debt to EPI is excepted from discharge

pursuant to

(a)(4); and (3) he is not entitled to

discharge, pursuant to

(a)(3). After careful

consideration, the decision of the bankruptcy court is affirmed

in part and reversed in part.

Standard of Review

When appealed to a district court, a bankruptcy court’s

legal determinations are reviewed de novo. In re Gonic Realty

Trust,

2 4 , 626-27 (1st Cir. 1990); In re G.S.F. Corp.,

(1st Cir. 1991). And, as observed by the

court of appeals for this circuit, “[e]xceptions to discharge are narrowly construed in furtherance of the Bankruptcy Code’s ‘fresh

start’ policy and the claimant must show that its claim comes

squarely within an exception enumerated in Bankruptcy Code §

523(a).” Century 21 Balfour Real Estate v . Menna (In re Menna),

, 9 (1st Cir. 1994).

The bankruptcy court’s findings of fact, however, must be

accorded much greater deference. Factual findings made in the

bankruptcy court remain undisturbed unless clearly erroneous.

See Briden v . Foley,

(1st Cir. 1985). A

factual finding is clearly erroneous when, although there may be

evidence to support i t , the reviewing court, after consideration

of all evidence before i t , is left with the definite and firm

conviction that a mistake has been made. See In re McIntyre,

7 , 28 (D.N.H. 1986).

Background

The parties have stipulated t o , or do not dispute, most of

the relevant facts. EPI is the owner of approximately 23 acres

of land located on South Depot Road, in Hollis and Nashua, New

Hampshire. In 1995, it obtained a permit from the Hollis

Planning Board allowing it to excavate up to 275,000 cubic yards

of sand and gravel from the property (the town of Nashua

2 apparently did not require an excavation permit). In 1997, the

Town of Hollis authorized EPI to remove an addition 84,700 cubic

yards of sand and gravel based upon EPI’s revised excavation

plans.

Prior to beginning any work at the property, EPI solicited

bids for excavation of the site. It accepted Georges’ bid and,

on March 2 2 , 1996, the parties entered into a written contract

entitled “Memo of Understanding.” Pursuant to that contract,

Georges could purchase excavated material from EPI at a set

price. Initially, that price was set at $2.25 per cubic yard.

Subsequently, the price escalated to $2.50 and, eventually, to

$2.75 per cubic yard. The parties also agreed that, because EPI

did not have any significant excavating equipment on the site,

Georges would load excavated materials into vehicles provided by

EPI and its customers, for which EPI would compensate Georges at

the rate of $0.50 per cubic yard.

Georges began excavation operations at the site in early

1996. Under the terms of the parties’ agreement, Georges was to

use an “in truck” method of accounting to determine how much

material he was excavating from the site. A principal of EPI

instructed Georges to use estimates based upon the size of the

3 truck that was loaded. S o , for example, if he loaded a 28 foot

trailer with material, Georges was told to record that as 22

cubic yards of material. Similarly, if he loaded a 10-wheeled

dump truck, Georges would record that as representing 14 cubic

yards of excavated material. And, if he loaded a 14-wheeled,

tri-axle truck, Georges would record that as representing 18

cubic yards of material. Importantly, Georges was told to record

those estimated figures (which, again, were provided to him by

one of EPI’s principals) regardless of the actual volume of

material loaded onto each individual truck. EPI was aware o f ,

and approved o f , that method of accounting for the quantity of

material removed from the site, and all of Georges’ records were

based on that estimated accounting method. Naturally, the

estimated quantities were just that — estimates. All parties

acknowledge that more material was removed from the site,

legitimately, than was accounted for under the agreed-upon

method.

Under the terms of the contract, Georges was required to

submit weekly reports disclosing the reportable volume of

material he removed from the site (using the parties’ agreed-upon

accounting method), as well as the reportable volume of material

he loaded for EPI’s customers. As to the material Georges loaded

4 for EPI’s customers, he provided EPI with slips that showed the

customer’s name, the driver’s name, the type of truck, and the

estimated volume of material loaded. Those details allowed EPI

to know which clients had obtained material from the site, how

much they obtained, and how much EPI should bill them. As to

material Georges excavated and loaded for his own customers, he

simply provided EPI with a total reportable volume (in cubic

yards) of material that he sold. It does not appear that EPI

ever asked Georges to provide additional details (e.g., specific

trucks loaded, driver, owner, etc.) with regard to material

Georges sold to his own customers. Each week, the parties would

use Georges’ reports to determine how much each owed the other

and Georges would pay the balance he owed to EPI by check.

On April 2 0 , 2000, EPI terminated the contract and, shortly

thereafter, Georges removed his excavation equipment from the

site. Based upon his records, Georges claimed that he had

removed a reportable total of 247,062 cubic yards of material

from the site during his excavating operations. But, after EPI

surveyed the property as part of a plan to develop it as an age-

restricted housing project, it became convinced that Georges had

removed much more material from the site than he had reported.

5 Accordingly, EPI commissioned Cuoco & Cormier, Inc. (“C&C”) to

estimate how much material had been removed.

C&C had previously done engineering work for EPI and was

familiar with the site. It gathered information from various

sources and constructed a topographical map of what it claimed

the site looked like in 1995, shortly before Georges began

excavating. Then, by comparing that map to an on-the-ground

survey completed in 2000, C&C concluded that 431,097 cubic yards

of material had been removed from the site over that period of

time. Subsequently, based at least in part on an additional

survey completed in 2003, and to account for what it called

“fluff” and “swell”, C&C revised its initial estimate upward,

concluding that a total of 562,295 cubic yards of material had

been removed from the site.1

1 The calculations relating to so-called “fluff” and “swell” were done in an effort to account for the fact that the topographical maps showed how many cubic yards of material had been removed from the ground. When it is in the ground, material is compacted. When it is removed, it expands and becomes looser as air is introduced. Consequently, removed material occupies a greater volume of space. Accordingly, ten cubic yards of compacted fill in the ground (as shown on the topographical maps) may expand into, say, eleven or twelve cubic yards once it is excavated.

6 Needless to say, C&C’s estimate of how much material was

excavated from the site between 1995 and 2000 says nothing about

who was responsible for removing the “missing” material. E P I ,

however, was convinced that Georges had, in essence, stolen the

missing material and falsely reported that he had removed only

247,062 cubic yards.

In response to EPI’s claims, Georges testified that after

the 1995 topographical map utilized by C&C was prepared, but

before he began any excavating operations at the site in 1996,

other parties had been running excavating operations there. He

also testified that he was not the only party who was excavating

and removing material from the property during the time that he

was actually on the site; according to Georges, he informed EPI

that other parties were encroaching on the site and removing fill

from it - material that would be reflected in C&C’s estimates as

“missing,” but which would not have been included in Georges’

estimated accounting to EPI.

Finally, at trial, Georges testified that, when EPI

terminated the contract and instructed him to remove his

equipment from the site, he left approximately 2,500 cubic yards

of his own loam on the site, valued at $10.00 per cubic yard.

7 Accordingly, Georges claims he is owed $25,000 by EPI. He also

asserted that, pursuant to EPI’s request, he performed some site

reclamation work, for which he was never compensated.

In addition to his own testimony about how the missing

material might be accounted for, Georges also submitted a report

prepared by an expert. That expert opined that: (1) because EPI

and Georges agreed that he would estimate the volume of material

loaded into each truck (rather than actually measuring that

material) and because the trucks generally would carry more than

the estimated amount when full, as many as 72,900 cubic yards of

material could have been removed and loaded, but not accounted

for; (2) inaccuracies in the maps utilized by C&C accounted for

another 58,000 cubic yards of material that EPI claimed Georges

had wrongfully removed and not accounted for; and (3) based on

other errors in C&C’s calculations, its estimates were off by an

additional 70,000 to 186,736 cubic yards of material. Thus,

according to Georges’ expert, C&C’s estimate for the total volume

of material removed from the site between 1995 and 2000 could be

off by as many as 316,900 cubic yards.

That margin of error, combined with the total volume of

material Georges reported that he removed (247,062 cubic yards)

8 could roughly account for the total volume of material that C&C

thought had been removed from the site. In other words, if the

reports prepared by both Georges’ expert and EPI’s expert were

fully credited, it could not be said that it was more likely than

not that Georges removed any material from the site that was not

properly accounted for in his weekly estimated reports to EPI.

Following a four-day bench trial, the bankruptcy court

issued its written decision. The court identified the two

factual issues presented to it a s : (1) whether the evidence

supported a finding that Georges removed material from the site

that was not accounted for in the reports he submitted to EPI;

and (2) if there was such “missing” material, its quantity and

value. Next, the court noted that, if Georges failed to account

for excavated material in the reports he provided to EPI and,

therefore, owed EPI additional money, a series of legal questions

arose: (1) whether that debt should be excepted from discharge

pursuant to section 523(a)(2) and/or (a)(4); and (2) whether

Georges’ failure to account for the material should bar his

discharge under section 727(a)(3).

In the end, the bankruptcy court determined that, with some

minor adjustments which the court made, C&C’s initial estimation

9 of the volume of material removed from the site was credible,

well-supported, and reliable. Of the two estimates provided by

C&C, the court adopted the more conservative one as its starting

point in determining whether Georges excavated material from the

site without accounting for it (the court rejected C&C’s enhanced

estimate, reasoning that it had not adequately supported its view

that “fluff” and “swell” could account for an additional 132,000

cubic yards of material that C&C concluded were missing from the

site).

Next, the court adjusted that conservative estimate by

taking into account the parties’ imprecise method (i.e., the “in

truck” method) of calculating the volume of material excavated by

Georges. As to that issue, the court acknowledged Georges’

expert’s view (that as many as 72,900 cubic yards had been “lost”

due to the rough accounting method), as well as the evidence

submitted by EPI and its expert challenging those calculations.

Ultimately, the court determined that 36,000 cubic yards

represented a reasonably accurate approximation of the total

volume of missing material attributable to the parties’ imprecise

method of accounting. Accordingly, it subtracted that amount

from the lower of C&C’s calculations. Finally, it subtracted the

amount of material Georges had accounted for, concluding that

10 Georges had removed a total of 148,035 cubic yards of material

that he failed to report. After some additional calculations,

the court determined that the total value of the missing material

was $361,087.50.

Turning to the legal questions presented to i t , the

bankruptcy court first concluded that “the unaccounted-for

property was not obtained by a misrepresentation or actual

fraud.” Bankruptcy order at 6. Accordingly, the court found in

favor of Georges on EPI’s claim under section 523(a)(2)(A). As

to EPI’s next claim, however, the court found that the facts of

the case warranted a finding of embezzlement under section

523(a)(4) - a conclusion that required, among other things, a

finding that the unaccounted-for property had been

“appropriat[ed] by [Georges] for a use other than intended,”

under “circumstances indicat[ing] fraud.” Bankruptcy order at 7 .

Next, the court concluded Georges failed to maintain

adequate records of both materials removed from the site and

sales made to individual customers. Accordingly, pursuant to

(a)(3), the court denied Georges’ discharge. And,

finally, as to Georges’ counterclaim, the court concluded that

there was “insufficient evidence to support a finding that loam

11 belonging to the Defendant remained on the premises.” Bankruptcy

order at 9.

Discussion

I. Factual Findings of the Bankruptcy Court.

A. Georges’ Counterclaim.

The bankruptcy court concluded that there was “insufficient

evidence to support a finding that loam belonging to the

Defendant remained on the premises.” Bankruptcy order at 9.

But, on the first day of the bench trial, Edward LeHoullier, one

of the principals of E P I , testified as follows:

Q. The loam pile, do you know how many cubic yards of loam we’re talking about, approximately, that he’s [Georges] claiming ownership of?

A. I believe he claimed 2,500 yards.

Q. Okay. Do you know, is that your loam or his loam?

A. . . . . The loam was his.

Q. Is that loam pile still there?

A. . . . . We did screen that pile and keep it separate.

Q. So it’s still there as we speak today?

A. Yes. Well, it’s in a different location.

Q. Okay.

A. But it’s separate.

12 Trial transcript, day one, pages 88:15 - 89:11. Given M r .

LeHoullier’s concession, and the absence of any contradictory

evidence, the bankruptcy court’s factual finding to the contrary

is plainly erroneous. It i s , therefore, reversed.

B. Material Georges Failed to Account For.

The bankruptcy court explained why it credited (for the most

part) C&C’s calculations as being generally more reliable and

credible than those offered by Georges’ expert. But, it did

adjust C&C’s calculations downward by 32,000 cubic yards,

crediting (in part) Georges’ expert’s view that the “in truck”

method of accounting could itself account for a substantial

volume of legitimately missing material. And, in concluding that

Georges was responsible for the balance of the missing material,

the court rejected his suggestions that: (1) third parties had

excavated material from the site after the 1995 topographical map

used by C&C had been prepared, but before he began excavation

operations; (2) third parties had access t o , and removed material

from the site while he was occupying the site; and (3) adjoining

land owners, who were themselves running excavating operations,

encroached over the property line and removed some material from

the site. In response to each such allegation by Georges, EPI

produced witnesses who flatly contradicted Georges’ claim.

13 Nothing in the record suggests that the bankruptcy court

committed error in crediting EPI’s witnesses and resolving those

credibility issues against Georges.

It i s , perhaps, also worth noting that Georges’ own

credibility with the court was probably not enhanced when it was

revealed that he had refused to produce his customer list during

discovery, on grounds that it was “confidential.” Plainly, had

that list been provided, EPI could have contacted Georges’

customers, determined how much fill they purchased during the

relevant period, and compared those figures to the figures

Georges provided to EPI in his weekly reports. See Bankruptcy

order at 9 (“The Defendant argued that he did not produce those

documents because he did not want the Plaintiff to know who his

customers were for purposes of competition. While this may have

been a valid reason while the pit was operating, it was not valid

at the time of trial since the pit was not operating and there

was no competition.”).

In light of the foregoing, and with the exception of the

factual finding regarding loam left on the site by Georges, the

court cannot say that the factual findings of the bankruptcy

court are clearly erroneous.

14 I I . Legal Conclusions of the Bankruptcy Court.

A. EPI’s Claims Under

(a)

Section 523(a)(2)(A) of Title 11 excepts from discharge any

debt:

For money, property, services, or an extension renewal, or refinancing of credit, to the extent obtained by (A) false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s or an insider’s financial condition.

To sustain its burden of proof at trial as to is 523(a)(2)(A)

claim, EPI was required to prove the following: (1) Georges made

a false representation; (2) he did so with a fraudulent intent;

(3) he intended to induce EPI to rely on that false

representation; (4) EPI did, in fact, rely on that false

representation; (5) such reliance was justifiable; and (6) it

resulted in pecuniary loss to EPI. See Palmacci v . Umpierrez,

8 1 , 786 (1st Cir. 1997) (citations omitted).

In its post-trial memorandum submitted to the bankruptcy

court, EPI summarized its 523(a)(2)(A) claim as follows:

Defendant [Georges] represented to Plaintiff that he would “report weekly to [EPI] the amount taken and pay for the same . . . per cubic yard.” Moreover, Defendant knew his weekly cubic yardage reporting was a material representation to Plaintiff as there was no other mechanism or methodology to account for the material, and Plaintiff was to “invoice to its customers on said yardage.” Because this reporting of

15 cubic yards loaded was peculiarly within Defendant’s own knowledge, Plaintiff was justifiably relying on Defendant [to] accurately report[] the cubic yards of material sold. . . . Defendant’s representations were clearly false as to the actual quantity removed from Plaintiff’s pit or he had complete conscious indifference to the truth.

EPI’s post-trial memorandum, at 28-29. In other words, EPI

claimed that Georges obtained the unaccounted-for fill from the

site by intentionally failing to accurately account for the true

volume of material he excavated and sold to his customers. As to

that claim, however, the bankruptcy court concluded that “the

unaccounted-for property [i.e., the fill] was not obtained by a

misrepresentation or actual fraud,” and it found in favor of

Georges. Bankruptcy order at 6.

Next, EPI claimed that Georges’ debt to it should be

excepted from discharge under

(a)(4). In support

of that claim, EPI asserted that “Defendant did not accurately

account [for material removed from the site,] based on his own

admissions and on the enormous quantity of unaccounted for

material. . . . This Court can clearly infer fraudulent intent

given the facts of this case.” EPI’s post-trial memorandum at

32. In addressing EPI’s claim, the court set forth the elements

of a section 523(a)(4) claim as follows:

16 1. the relevant property was rightfully in the possession of the non-owner;

2. the non-owner appropriated the property for a use other than [that] for which it was intended; and

3. the circumstances indicate fraud.

Bankruptcy order at 6 (citations omitted). Applying that

standard, the bankruptcy court found in favor of EPI:

The Court has already found that a significant amount of product was not accounted for. The use of the property that was granted to the Defendant was to mine the property and to account for the product that was mined. The amount of missing material clearly supports a finding that product that was not accounted for was appropriated by the Defendant. Failure to account for this product was an appropriation by the Defendant for a use other than intended. The Plaintiff has met its burden on the second element. Finally, the Court finds that the circumstances indicate fraud. . . . Fraudulent intent may be determined by the surrounding facts and circumstances of the case. In the instant case, the Court has found that the Defendant was in possession of the property and that a significant amount of material was not accounted for. Under these circumstances, the Court finds that an inference of fraud is warranted.

Bankruptcy order at 7-8 (citations omitted) (emphasis supplied).

Georges challenges those two legal conclusions as being

inconsistent, saying the bankruptcy court’s finding that the

circumstances of the case warrant an inference of fraud is

directly at odds with its earlier finding that “the unaccounted-

17 for property was not obtained by a misrepresentation or actual

fraud.” Id. at 6. The court disagrees.

As to EPI’s 523(a)(2)(A) claim, the bankruptcy court

concluded that Georges did not acquire the fill by fraud. That

is to say, Georges was, under the parties’ agreement, permitted

to excavate material from the site in accordance with the terms

of their agreement. Thus, the court concluded that he did not

initially obtain the excavated material by fraudulent means. As

to EPI’s 523(a)(4) claim, however, the bankruptcy court plainly

concluded that, once he excavated that material, Georges

“appropriated” it (by failing to account for, and pay for, i t ) .

In other words, the court held that while Georges did not obtain

the missing material by fraud (e.g., fraud in the inducement with

respect to the parties’ agreement), he diverted and retained i t ,

converting it to his own use through fraudulent means (i.e.,

embezzlement — fraudulent conversion of the property of another

by one who has lawful possession of the property).

The bankruptcy court’s legal conclusions with respect to

EPI’s claims under sections 523(a)(2)(A) and 523 (a)(4) are not

inconsistent or otherwise contradictory. Rather, the court

applied the appropriate legal standards and, based upon its

earlier findings of fact, reached reasonable legal conclusions.

U.S.C. § 727(a)(3)

EPI claimed that Georges’ business records were inadequate

under

(a)(3), which provides, in pertinent part,

that:

The court shall grant the debtor a discharge, unless the debtor has . . . failed to keep or preserve any recorded information, including books, records, and papers, from which the debtor’s financial condition or business transactions might be ascertained, unless such act or failure to act was justified under all of the circumstances of the case.

(a)(3). In a prior opinion, the bankruptcy court

described the parties’ respective burdens under that section as

follows:

When a debtor’s right to discharge is challenged under section 727(a)(3), the objecting party has the initial burden to establish that the debtor’s records are inadequate for determining the financial affairs or business transactions of the debtor. Once the objecting party has met its initial burden, the burden shifts to the debtor to establish either that the debtor maintained adequate books and records from which his financial condition can be ascertained or that the failure to keep adequate books and records can be justified under the circumstances.

In re Fagnant,

, *3 (Bkrtcy. D.N.H. 2005)

(citations and internal punctuation omitted), aff’d

(1st Cir. B.A.P. 2006).

19 The bankruptcy court agreed with EPI and concluded that

Georges failed to maintain adequate business records. First, it

noted that there was no reasonable or logical explanation given

to account for Georges’ failure to produce “source documents

concerning materials he sold from the pit.” Bankruptcy order at

9. It also noted that the “bank statements produced [by Georges]

are of little help as individual transactions of receipts or

payments cannot be identified.”

And, neither Georges nor

his counsel made any effort to link specific bank deposits with

income he would have received from the sale of fill excavated

from the site.

To be sure, the bankruptcy court failed to specifically

address whether Georges’ failure to maintain legally sufficient

records was “justified under all of the circumstances of the

case.”

(a)(3). As the court noted in Fagnant:

Whether a failure to keep records, total or partial, will be justified is a question of fact to be determined in each instance under the particular circumstances of the case . . . In short, what is required is records that are reasonable under the circumstances. Furthermore, because the standard for a claim of failure to maintain records is based on reasonableness under all circumstances, the education and sophistication of the Debtor is relevant. It is sufficient if the books and records are kept, if required at all, so as to reflect with a fair degree of accuracy, the debtor’s financial condition and in a manner appropriate to his business.

20 In re Fagnant,

at * 3 .

In this case, having concluded that Georges’ knowingly and

intentionally submitted weekly reports to EPI that understated

the volume of material that he had removed from the site and sold

to his customers, the court necessarily (albeit implicitly)

concluded that those false records were not justified under the

circumstances of the case. In light of the bankruptcy court’s

factual findings in this case, this court cannot conclude that it

erred as a matter of law in concluding that, pursuant to

(a)(3), Georges is not entitled to discharge.

Conclusion

In an effort to determine whether the debtor, Georges,

knowingly under-reported the volume of material he actually

excavated from the site owned by E P I , the bankruptcy court sought

to determine precisely how much material was removed from the

site during the period of time that Georges ran his excavating

operations. Importantly, however, the parties never agreed to

maintain particular records designed to determine precisely how

much material Georges excavated. Instead, the record suggests

that they agreed to employ a means by which to approximate such

sums, understanding that the approximation would necessarily

understate, to a degree, actual volume removed. Accordingly, the

21 bankruptcy court, crediting at least a portion of Georges’

expert’s report, “converted” the total volume of material

actually removed from the site into a figure that more accurately

represented the total volume of material that the parties’

agreed-upon accounting method would have yielded. Based upon the

record that was presented to the bankruptcy court, this court

cannot conclude that its factual findings as to the volume of

material that Georges removed from the site and failed to account

for were clearly erroneous.

As noted above, however, the bankruptcy court’s finding that

Georges did not leave approximately 2,500 cubic yards of loam on

the site is contrary to the uncontradicted admission of one of

EPI’s principals and, therefore, plainly in error. Georges’

testimony, as well as that of one of EPI’s principals, establish

that Georges did leave approximately 2,500 cubic yards of his own

loam on the site after he removed his excavation equipment. That

portion of the bankruptcy court’s order i s , then, reversed.

Georges failed to demonstrate that the bankruptcy court’s

legal conclusions as to EPI’s claims under

(a)

were incorrect, inconsistent, or unsupported by the factual

record. Nor did Georges show that the bankruptcy court erred as

a matter of law when it held that, pursuant to

727(a)(3), he is not entitled to discharge. Those legal

conclusions are, therefore, affirmed.

For the foregoing reasons, the bankruptcy court’s order of

July 1 , 2005, is affirmed in part, reversed in part, and remanded

for further proceedings consistent with this order. The Clerk of

Court shall close the case.

SO ORDERED.

Steven J. McAuliffe Chief Judge

February 28, 2007

cc: Nancy H. Michels, Esq. Jack S. White, Esq. US Bankruptcy Court, Clerk Victor W. Dahar, Esq. Geraldine L. Karonis, Esq.

23