Bellas Pavers, LLC v. Stewart (In re Stewart)

BAP No. MB 12-017 (unpublished)
The BAP affirmed the bankruptcy court's decisions granting judgment to the defendant on partial findings and denying a motion for a new trial.
Procedural context:
Plaintiff Bellas Pavers, LLC, sought a finding that a debt owed to it by debtor Scot Stewart was non-dischargeable under §523(a)(2)(A) for fraud. The bankruptcy court granted a motion for judgment on partial findings and denied a motion for a new trial. Bellas appeals from a denial of the motion for a new trial. On appeal, the BAP found that although the Notice of Appeal only referenced the motion for a new trial, the underlying judgment was properly before it, also.
Stewart was the sole manager of a Massachusetts LLC. The LLC was hired by a third party to construct a stone patio and retaining wall. To perform masonry services as part of the construction, the LLC hired Bellas. The third party was unhappy with the work done by Bellas, and complained to Stewart. Although the third party ultimately paid Stewart's bill in full, Stewart (or the LLC) never paid Bellas despite several demands for payment and other collection efforts. At trial, Stewart moved for judgment on partial findings at the close of Bellas' case. The bankruptcy court granted the motion, finding that Bellas had failed to adduce any evidence that Stewart falsely represented his intention to pay Bellas and that 10 days between the promise to pay and the refusal to pay, standing alone, was insufficient to infer a false or fraudulent representation at the time of the promise. A motion for a new trial was denied. The BAP affirmed, but denied a motion by Stewart for damages and costs on appeal.
Bankruptcy judge Hillman; BAP judges Lamoutte, Cabán, and Kornreich.

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