A. Salvati Masonry Inc. v. Michael Andreozzi

Supreme Court
No. 2016-39-Appeal.
(KM 13-1278)
No. 2016-131-Appeal.
(KC 14-773)
A. Salvati Masonry Inc. :
v. :
Michael Andreozzi et al. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island,
250 Benefit Street, Providence, Rhode Island 02903, at Telephone
222-3258 of any typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2016-39-Appeal.
(KM 13-1278)
No. 2016-131-Appeal.
(KC 14-773)
A. Salvati Masonry Inc. :
v. :
Michael Andreozzi et al. :
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
OPINION
Justice Indeglia, for the Court. In these consolidated cases, 1 the plaintiff, A. Salvati
Masonry Inc. (Salvati or plaintiff), appeals a nonjury-trial judgment for the defendants, Michael
and Amy Andreozzi (the Andreozzis or defendants). This case came before the Supreme Court
on November 3, 2016, pursuant to an order directing the parties to appear and show cause why
the issues raised should not be summarily decided. After considering the arguments set forth in
the parties’ memoranda and at oral argument, we are convinced that cause has not been shown.
Thus, further argument or briefing is not required to decide this matter. For the reasons outlined
below, the Superior Court’s judgment is affirmed.
I
Facts and Travel
This appeal emanates from a payment dispute over the construction of a backyard patio at
defendants’ property on Old Farm Road in East Greenwich, Rhode Island. To develop their
1
In the first case, Salvati appeals the denial of his complaint to enforce a mechanic’s lien. In the
second case, Salvati appeals the denial of his complaint to recover for goods and services
rendered and on book account. The appeals were consolidated because the trial justice issued
one decision pertaining to both cases and entered one judgment.
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property, the property owners, the Andreozzis, hired Pariseault Builders (Pariseault) as a general
contractor. In turn, Pariseault, a nonparty, subcontracted with Salvati for masonry work. From
this involvement, Salvati claims money owed by the Andreozzis beyond that paid to it by
Pariseault.
Mr. Michael Andreozzi testified first. He stated that he contracted in writing with
Pariseault to build his home for $1.8 million. He and his wife paid Pariseault $180,000 for their
general contracting services, and Pariseault subcontracted out various project parts. Mr.
Andreozzi stated that Salvati submitted two bids on the project. The first, which involved the
house structure, was completed. For this bid, Salvati received full payment of approximately
$135,000. Pertinent to this appeal, the second bid, for $88,845, related to exterior landscaping.
Mr. Andreozzi testified that the second bid with Pariseault “included all of the back patio
work, the pool patio, the walls around the back of the house, stone pillars, limestone caps, steps,
et cetera * * * .” As such, he believed that Pariseault should have paid Salvati for the
aforementioned work. Mr. Andreozzi responded affirmatively when asked whether he paid for
the patio as part of Salvati’s $88,845 bid for the second phase of masonry work. 2
Additionally, Mr. Andreozzi testified about a conversation with Keith Salvati, 3 owner of
Salvati, on July 10, 2013. He stated that Mr. Salvati told him that he made a significant error in
his bid, worth between $12,000 and $15,000, because the bid erroneously omitted the patio
masonry work. He also stated that Mr. Salvati told him to withhold payment for not-yet-
2
This bid, introduced into evidence as plaintiff’s exhibit 21, indicates that Salvati would perform
the work for $88,845 and lists eleven items included in that bid price; it also lists several items
that were not included. This document, along with other introduced documents, generally forms
the basis for the parties’ dispute, in that each side disagrees about whether patio construction was
contemplated within the bid.
3
Hereinafter, we refer to Keith Salvati as Mr. Salvati to avoid any confusion with A. Salvati
Masonry Inc.
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completed work. He further acknowledged that Salvati performed extra work outside of the
original Pariseault subcontract, which he paid for on the basis of “time and materials.”
Mr. Salvati testified next. He confirmed that Pariseault contacted Salvati to submit a
masonry bid for the Andreozzis’ project. Mr. Salvati denied making any bid-preparation error
and asking Mr. Andreozzi to hold back payments.
Mr. Salvati testified that his prepared bid for Pariseault as the masonry project subcontractor
excluded the back patio. He stated that he therefore did not bill Pariseault for the patio work he
performed. He testified that the item Mr. Andreozzi referenced on the bid involved “the
landscape part of the project,” which encompassed “[c]ultured stone on walls, steps, and
columns.” Mr. Salvati also testified that he neither discussed a specific price for the patio work
with the Andreozzis nor billed them on the basis of labor and materials. He suggested that the
second masonry bid excluded the patio because the patio specifications, including the stone
material and color, were not yet specified at the time of the masonry bid. Instead, he testified
that he did not bill the Andreozzis for the patio until he did so with an invoice dated July 7, 2013.
Mr. Salvati confirmed that the Andreozzis requested that he complete extra work beyond that
outlined in the original Pariseault subcontract. Mr. Salvati testified that, for work prior to the
spring of 2013, Salvati billed Pariseault directly, and Pariseault either paid or declined to pay.
After that time period, Salvati billed the Andreozzis directly. He testified that some original bid
items shifted to the Andreozzis because the project was not yet complete. Mr. Salvati testified
that, in February 2013, Pariseault paid him in full for everything billed through November 2012.
However, because Mr. Salvati claimed that the original subcontract omitted the patio work, he
stated that he never received payment for that work.
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Mr. Salvati testified that the aggregate amount that the Andreozzis owed him was
$45,377.08, which included the balance owed for work and material under the original Pariseault
subcontract and work he performed directly for the Andreozzis. The witness indicated that he
never billed the Andreozzis for anything for which Pariseault paid him.
Mr. Salvati confirmed that, as was Pariseault’s practice for the Andreozzis’ project, Salvati
signed lien releases for the amount of payments he would receive. He testified that, as payments
were received, Pariseault provided him with a corresponding lien waiver, and he executed all of
them. When Salvati received notice of Pariseault’s withdrawal from the project, he had signed
lien waivers for all payments received up to that point.
Thomas Rezendes, Pariseault’s general manager, testified next. He stated that the original
Andreozzi project, for their home, was completed. He described it as a “cost-plus project,”
which meant that the Andreozzis were to complete outstanding work independently.
When asked whether “Pariseault Builders ever pa[id] A Salvati Masonry for the patio in the
rear of the building?” Rezendes responded, “[a]ll we paid Salvati Masonry for what would have
been * * * the cultured stone on the walls, steps and columns which surround the patio, but not
the patio pavers itself.” He confirmed that he understood that Salvati never submitted a bid for
the home’s rear patio; and, when asked whether Pariseault paid Salvati for the patio or the blocks
themselves, he stated that he did not think so. Rezendes also testified that he was aware that Mr.
Andreozzi was responsible for paying Salvati for all work after March 2013, regardless of
whether or not the work was a part of the original Pariseault subcontract.
A bench trial was held on June 1 through June 3, 2015. The trial justice rejected both of
plaintiff’s claims in a written decision dated July 24, 2015, and judgment was entered for the
Andreozzis on September 11, 2015. The plaintiff appealed on September 28, 2015.
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II
Standard of Review
“When a trial justice presides over a nonjury trial, Rule 52(a) of the Superior Court Rules
of Civil Procedure requires that he or she ‘find the facts specially and state separately [his or her]
conclusions of law thereon.’” South County Post & Beam, Inc. v. McMahon, 116 A.3d 204, 210
(R.I. 2015) (quoting JPL Livery Services, Inc. v. Rhode Island Department of Administration, 88
A.3d 1134, 1141 (R.I. 2014)). Yet, this requirement does not mandate an expansive analysis by
the trial justice. Id. “[I]f the decision reasonably indicates that [the trial justice] exercised [his or
her] independent judgment in passing on the weight of the testimony and the credibility of the
witnesses it will not be disturbed on appeal unless it is clearly wrong or otherwise incorrect as a
matter of law.” Id. (quoting JPL Livery Services, Inc., 88 A.3d at 1141).
We will not disturb the trial justice’s findings “unless * * * clearly erroneous or unless
the trial justice misconceived or overlooked material evidence * * * .” McMahon, 116 A.3d at
210 (quoting JPL Livery Services, Inc., 88 A.3d at 1141). “When ‘the record indicates that
competent evidence supports the trial justice's findings, we shall not substitute our view of the
evidence for his [or hers] even though a contrary conclusion could have been reached.’” Id.
(quoting JPL Livery Services, Inc., 88 A.3d at 1142). This Court reviews questions of law de
novo. Id.
III
Discussion
At bottom, this appeal is about whether plaintiff was paid to construct the Andreozzis’
backyard patio. Throughout trial, inconsistent testimony emerged regarding whether Salvati
received payment for this work. Although not clearly articulated, at its core, plaintiff argues that
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the trial justice erred in his factual determinations and credibility assessments. In its
memorandum filed with us, plaintiff asserts that the only issue before this Court is “whether or
not Salvati is [owed] money from [the Andreozzis] * * * for work performed on [the]
Andreozzis’ property in the Spring/Summer of 2013.” Thereafter, plaintiff cites trial testimony
that counters the trial justice’s finding that Salvati failed to prove that it was not paid for its patio
construction work through the original Pariseault subcontract with the Andreozzis.
Implicitly, plaintiff argues that the trial justice misconceived and overlooked material
evidence in reaching his decision. Salvati cites testimony to assert that “Salvati never bid on the
patio, * * * never was paid by Pariseault, nor did Pariseault ever bill Andreozzi.” Further,
Salvati states, “It seems that the [c]ourt felt that Salvati bid on the total project, including the
patio, and was paid in full when in fact those facts are incorrect.” Yet, the trial justice found,
“there was no testimony or exhibit which set forth with specificity any new items, outside the
bid/subcontract for which Mr. Andreozzi was responsible, nor any price or scope of work for
such items.” The trial justice determined that “Salvati failed to establish by a preponderance of
the evidence what masonry work was completed outside the original project scope, and the
amount that remained unpaid as to that work.” Further, he found “insufficient credible evidence
from which the Court could distinguish which items involved completion of the original
subcontract, and which items were completed by Salvati at the direct request of Mr. Andreozzi.”
Based on the evidence at trial, or lack thereof, the trial justice was not convinced that the
Andreozzis owed Salvati money for the patio outside of the original Pariseault subcontract.
“It is well-established that we ‘accord a great deal of respect to the factual determinations
and credibility assessments made by the judicial officer * * * who has had an opportunity to
appraise witness demeanor and to take into account other realities that cannot be grasped from a
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reading of a cold record.’” State v. Van Dongen, 132 A.3d 1070, 1076 (R.I. 2016) (quoting State
v. Erminelli, 991 A.2d 1064, 1069 (R.I. 2010)). A careful review of the record reveals that the
trial justice neither overlooked nor misconceived material evidence. Salvati’s challenges on
appeal “are mainly centered on issues of credibility—that the trial justice chose to believe
[defendants’] versions of events over [plaintiff’s]. It is precisely these types of credibility
findings with which this Court is [loath] to interfere.” Gregoire v. Baird Properties, LLC, 138
A.3d 182, 193 (R.I. 2016).
Although the plaintiff broadly labels its arguments otherwise in its papers before us, each
assertion challenges the trial justice’s factual findings. For example, the plaintiff’s prebriefing
memorandum includes an argument labeled “Book Account/Goods and Services
Rendered/Quantum Mer[u]it.” In support of its quantum meruit argument, however, the plaintiff
solely asserts that “Andreozzi received the benefit of the work performed and the materials
produced by Salvati and never paid for the same.” Similarly, the plaintiff seems to contest the
trial justice’s decision on its mechanic’s lien claim yet neither cites any specific error nor raises
any specific argument in this respect. Beyond mere conclusory trial testimony citations, the
plaintiff does little to develop or articulate a discussion of its arguments for its book account,
quantum meruit, unjust enrichment, or mechanic’s lien claims. Generally, we deem an issue
waived “when a party [s]imply stat[es] an issue for appellate review, without a meaningful
discussion thereof * * * .” In re Jake G., 126 A.3d 450, 458 (R.I. 2015) (quoting Bucci v. Hurd
Buick Pontiac GMC Truck, LLC, 85 A.3d 1160, 1170 (R.I. 2014)). Thus, based on the lack of
development, these arguments are waived under this Court’s raise-or-waive rule.
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IV
Conclusion
For the aforementioned reasons, the Superior Court’s judgment is affirmed. The record
may be returned to that tribunal.
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RHODE ISLAND SUPREME COURT CLERK’S
OFFICE
Clerk’s Office Order/Opinion Cover Sheet
TITLE OF CASE: A. Salvati Masonry Inc. v. Michael Andreozzi et al.
CASE NO: No. 2016-39-Appeal.
(KM 13-1278)
No. 2016-131-Appeal.
(KC 14-773)
COURT: Supreme Court
DATE OPINION FILED: January 6, 2017
JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.
WRITTEN BY: Associate Justice Gilbert V. Indeglia
SOURCE OF APPEAL: Kent County Superior Court
JUDGE FROM LOWER COURT:
Associate Justice Allen P. Rubine
ATTORNEYS ON APPEAL:
For Plaintiff: Raymond R. Pezza, Esq.
For Defendants: Joseph R. Daigle, Esq.