612 B.R. 726
Bankr. M.D. La.2020Background
- Stephen and Kristen Binning contracted with general contractor Jerry Boudinot in 2003; Boudinot subcontracted stucco work to All State Plastering, Inc., owned by Robert Webb Digirolamo.
- The Binnings sued Boudinot, All State, and insurers in 2010 alleging moisture damage beneath stucco; more than four years later they amended to add Digirolamo personally.
- Digirolamo filed Chapter 13, staying the pending state-court action before trial.
- Binning filed Proof of Claim No. 5-1 for $315,949.72 asserting defective stucco and personal liability of Digirolamo; Digirolamo objected for lack of documentation and prescription.
- At the claim hearing only Binning and Digirolamo testified; claimant’s expert report was excluded for lack of availability and much of Binning’s lay testimony was excluded for lack of personal knowledge.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency and prima facie effect of the proof of claim | Binning: claim (later amended with docs) establishes validity and amount | Digirolamo: claim lacks supporting documentation and is prescribed | Court: properly filed claim is prima facie; Digirolamo produced evidence rebutting it, shifting burden to Binning to prove the claim |
| Personal liability from corporate lapse/reinstatement | Binning: All State lapsed, leaving Digirolamo personally liable | Digirolamo: All State was later reinstated; no law shown making reinstatement prospective-only to preserve personal liability | Court: Binning failed to prove reinstatement left Digirolamo personally liable |
| Fraud / piercing the corporate veil based on lack of contractor license | Binning: Digirolamo (via All State) performed without a required license, amounting to fraud and warranting piercing | Digirolamo: no intent to deceive, unclear licensing requirement for All State’s subcontract, invoices show modest subcontract value | Court: No fraud proved (intent absent) and Binning failed to show All State had duty to be licensed; cannot pierce veil |
| Alter ego, tort liability, causation and damages | Binning: Digirolamo is alter ego and personally liable; All State’s work caused damage | Digirolamo: no evidence of alter ego, work done in corporate capacity, no admissible expert proof of causation or damages | Court: Binning presented no evidence of alter ego and failed to prove fault, causation, or damages; claim disallowed |
Key Cases Cited
- In re New Century TRS Holdings, Inc., 495 B.R. 625 (Bankr. D. Del. 2013) (proof of claim prima facie effect)
- In re Woodhaven Townhouse Assoc., Inc., 570 B.R. 546 (Bankr. N.D. Tex. 2017) (burden shift after rebuttal of proof of claim)
- Gines v. D.R. Horton, Inc., 867 F. Supp. 2d 824 (M.D. La. 2012) (where no privity exists homeowner’s claim against subcontractor is in tort)
- Ogea v. Merritt, 130 So.3d 888 (La. 2013) (four-factor framework for personal liability of an LLC member; poor workmanship alone insufficient)
- Zimmerman v. Progressive Sec. Ins. Co., 174 So.3d 1230 (La. App. 2d Cir. 2015) (tort requires proof of fault, causation, and damages)
- Bass v. Coupel, 671 So.2d 344 (La. App. 1st Cir. 1995) (intent to deceive is essential element of fraud)