Opinion
C.A. PC-2012-0341 PM-2012-1218
04-30-2020
PREMIER LAND DEVELOPMENT, INC. v. JOSEPH KISHFY and PAULA KISHFY BEL-AIR TILE CO., INC.; CONTINENTAL ENGINEERING & SERVICE CO., INC.; DESIMONE ELECTRIC, INC.; MORAN HOME IMPROVEMENT; VALLEY PLUMBING & HEATING, LLC v. JOSEPH KISHFY
For Plaintiff: John O. Mancini, Esq.; Thomas P. Carter, Esq. For Defendant: Barry J. Kusinitz, Esq.; Joseph Raheb, Esq.
For Plaintiff: John O. Mancini, Esq.; Thomas P. Carter, Esq.
For Defendant: Barry J. Kusinitz, Esq.; Joseph Raheb, Esq.
DECISION
TAFT-CARTER, J.
This matter is before the Court for decision following a jury-waived trial on consolidated complaints brought against Joseph Kishfy (Mr. Kishfy) and Paula Kishfy (Mrs. Kishfy) (collectively, Defendants) by Premier Land Development, Inc. (Premier or Plaintiff) (PC-2012-0341); and, against Mr. Kishfy (Defendant) by Bel-Air Tile Co., Inc. (Bel-Air); Continental Engineering & Service Co., Inc. (Continental); DeSimone Electric, Inc. (DeSimone); Moran Home Improvement (Moran); and Valley Plumbing & Heating, LLC (Valley) (collectively, Plaintiffs) (PM-2012-1218). The action was tried in October 2018. Jurisdiction is pursuant to G.L. 1956 § 8-2-14 and Super. R. Civ. P. 52(a).
I
Findings of Fact
This Court has reviewed all of the evidence presented during the trial. The Court now makes the following findings of fact.
Mr. Kishfy is the owner of 15 Paddock Drive, Lincoln, Rhode Island (the property). He has lived at the property since December 2011 with his wife, Mrs. Kishfy. When he purchased the property in August 2011 it was being renovated by David Corsetti (Mr. Corsetti) of Premier.
Prior to his purchase, Mr. Kishfy entered into a Purchase and Sales Agreement with the owner Robert Lanni (Mr. Lanni), to buy the property "as is" for $630,000. (Purchase and Sales Agreement Ex. 1.) All contingencies and inspections were waived except for the radon test. See id.
A real estate closing was held on August 17, 2011, at which time the property was conveyed to Mr. Kishfy. Pursuant to the HUD Settlement Sheet, the amount of $454,847.33 was tendered to Mr. Lanni. (HUD Ex. 3.) The HUD indicated that the remaining balance of the sale price, $158,002.40, was to be paid at a later time. Id.
Mr. Kishfy also entered into an "Amendment to Purchase and Sales/Construction Agreement" (Construction Contract) on August 17, 2011 with Mr. Lanni and Mr. Corsetti on behalf of Premier. (Construction Contract Ex. 2.) Mrs. Kishfy was not a party to the Construction Contract. Id. Under the Construction Contract, Mr. Kishfy agreed to pay the sum of $150,000 in monthly installments for the labor and materials to complete the renovations at the property. Id. The work was to be completed on or before October 28, 2011. Id.
The Construction Contract contained two (2) exhibits. Id. The "Proposal for 15 Paddock Drive Lincoln RI," as well as the scope of work were contained in Exhibit A of the Construction Contract. Id. Specifically, Premier was to install the following: one kitchen that included crown moldings, countertops, faucets, and a copper hood; installation of floor tile in the kitchen, mudroom, half bath, and all second floor bathrooms; installation of metal deck outside cabana ready to receive finish flooring; support basement bearing wall per engineering specs; paint as needed; and make sure that mechanical and electrical issues were corrected. Id.
Also attached to the Construction Contract was Exhibit B. Id. This exhibit set forth the amounts allocated for particular items to cover the cost for labor and materials to complete the work at the property. Id. Mr. Kishfy testified to his understanding of the allowances. Furthermore, he understood that he would receive a credit for any unused amount or be responsible to pay the difference in the event that he spent a greater amount for the renovation work. Exhibit B listed the items included for each item and specifically indicated that:
"The allowances listed below are in fact allowances; in the event the amount spent is lower than the allowance the Buyer shall receive a credit for the unused amount. In the event the amount spent is greater, the Buyer shall pay the difference."
"Labor to install all (kitchen, vanities, plumbing and hardware) is included in the selling price of the property ($630,000.00)." Id.
Mr. Kishfy testified that he understood at the time he executed the Construction Contract that Mr. Corsetti and his entity Premier would perform the renovations. Mr. Kishfy tendered a check to Premier in the amount of $40,000 as a partial installment payment in August 2011. (Pl.'s Ex. 4.) A handwritten notation on the check indicated it was issued as "1st draw to David Corsetti." Id. In November 2011, a second check in the amount of $11,000 was disbursed to Mr. Corsetti. (Pl.'s Ex. 5.) There were no other checks issued to either Premier or Mr. Corsetti by Mr. Kishfy. Mr. Kishfy did however make a direct payment in the amount of $21,356 to Uxbridge Cabinets.
In addition to his duty to pay Premier under the contract, Mr. Kishfy undertook the responsibility to select or provide the materials to be used to complete the project in a timely manner. From the inception of the project, Mr. Kishfy's modification in the scope of work was substantial. These upgrades and changes in the materials were implemented at Mr. Kishfy's request through October 2011. For instance, he redesigned the kitchen, relocated the cabinetry, and requested the installation of an inlaid mahogany floor, as well as a custom wood stove hood. These modifications were substantial and amounted to material changes to the scope of work contemplated pursuant to the terms of the Construction Contract.
Mr. Kishfy acknowledged the breadth of the additional work and testified that the project upgrades were excessive. There was no dispute that his modifications resulted in exceeding the electrical, tile, and plumbing allowances, creating more work and expense for the contractor.
The credible evidence establishes that Mr. Kishfy's alterations resulted not only in additional cost, but also in delay. Contractor after contractor credibly testified at trial with respect to the increased scope of work, cost, delay, and lack of payment. This substantial increase in the scope of work had a ripple effect resulting in the delay in work and non-payment of subcontractors. For instance, Moran was hired to perform carpentry and exterior work. The work performed included the changes to the originally designed kitchen at the property. This work was performed on a time and materials basis, and all work performed was necessary to accommodate the changes that Mr. Kishfy requested to complete the kitchen. This expanded endeavor was valid and justified because the clear evidence established indicated that the kitchen was substantially completed in August 2017.
Another example concerned excavation work for the two patio foundations. The purpose of the foundation was to install an exterior deck and metal deck near the cabana by the pool. Mr. Kishfy requested that the metal deck not be installed as his preference was to use pavers. The additional work performed by Moran totaled $24,516. (Pl.'s Ex. 6.)
Continental performed the HVAC work at the property. Mr. Richard DiRocco (Mr. DiRocco), its principal, testified credibly that he performed the work required to implement a hydro-air system on the second floor and other work necessary for the system, as well as replaced registers and grills throughout the house. Mr. DiRocco further testified that he provided three invoices to Premier and that Continental was owed the sum of $7,154.67. (Continental Invoice Ex. 8.)
Bel-Air also performed tile work at the property and it, too, was the victim of nonpayment for the materials and services rendered. The work performed by Bel-Air was beyond the initial scope of work. Some of the work included the installation of specialty tiles requiring custom installation. The scope of the tile work increased substantially with Mr. Kishfy's request to tile the shower in both bathrooms and install wall tiles in the Jack and Jill bathroom. On more than one occasion the tiles were not on site, which required him to return to the job site. In fact, he did not return to complete the project because the materials were not on site. Vincent Diamante credibly testified on behalf of Bel-Air that the original outstanding balance due totaled $18,150.52. (Pl.'s Ex. 10.) This amount was reduced, however, to $11,589.52.
Christopher LaValley testified on behalf of Valley. LaValley performed plumbing work at the project pursuant to Exhibit A of the Construction Contract. This work included the installation of a whirlpool, toilets, vanities, and plumbing for the master bathroom. He credibly testified that Valley was owed $11,825. (Pl.'s Ex. 7.)
DeSimone also worked on the project and was owed $13,942. (Pl.'s Ex. 9.) DeSimone purchased and installed recessed lights, dimmers, relays for a chandelier, plugs and switches throughout the house, and performed general electric work. Id.
As of November 2011, the entire amount paid by Mr. Kishfy to Premier totaled $51,000 for the work performed at the property. Furthermore, no payments were made to any subcontractor despite the fact that the work was performed at the direction of Mr. Kishfy. Mr. Kishfy never questioned the work performed at the project.
On December 5, 2011, Mr. Kishfy emailed Mr. Corsetti regarding the delay in completion as well as the progress of the work. (Pl.'s Ex. 12.) Mr. Corsetti responded to Mr. Kishfy and reminded him that he was the cause of the delay because he retrofitted and customized the house, acted as his own contractor, and failed to get the tile necessary for installation. Id. Furthermore, Mr. Kishfy was reminded that the balance due to Premier was substantial. Id. Mr. Kishfy never responded to the email or questioned the quality of the work performed as it progressed in 2011. Mr. Corsetti emailed Mr. Kishfy an itemized invoice as of November 29, 2011 to which there was no response. (Pl.'s Ex. 12.)
As a result, Premier ceased work at the property and removed the subcontractors because it was apparent that Mr. Kishfy was not going to remit payment. Mr. Kishfy finished the project and seeks damages from Premier for the cost of completion.
II
Standard of Review
Rule 52(a) of the Superior Court Rules of Civil Procedure states that "[i]n all actions tried upon the facts without a jury . . . the court shall find the facts specially and state separately its conclusions of law thereon." Super. R. Civ. P. 52(a). Therefore, in a non-jury trial, the trial justice sits as the trier of fact as well as of law. Hood v. Hawkins, 478 A.2d 181, 184 (R.I. 1984). Thus, the trial justice "weighs and considers the evidence, passes upon the credibility of the witnesses, and draws proper inferences." Id. A trial justice's findings of fact will not be disturbed '"unless such findings are clearly erroneous or unless the trial justice misconceived or overlooked material evidence or unless the decision fails to do substantial justice between the parties."' Opella v. Opella, 896 A.2d 714, 718 (R.I. 2006) (quoting Bogosian v. Bederman, 823 A.2d 1117, 1120 (R.I. 2003)). Furthermore, an extensive analysis and discussion of the evidence and testimony is not required to comply with the mandates of Rule 52. Donnelly v. Cowsill, 716 A.2d 742, 747 (R.I. 1998); see also Anderson v. Town of East Greenwich, 460 A.2d 420, 423 (R.I. 1983). "Even brief findings and conclusions are sufficient if they address and resolve the controlling and essential factual issues in the case." Donnelly, 716 A.2d at 747. Although the trial justice need not "categorically accept or reject each piece of evidence," the trial justice's decision must "reasonably indicate [ ] that [the justice] exercised . . . independent judgment in passing on the weight of the testimony and the credibility of the witnesses." Notarantonio v. Notarantonio, 941 A.2d 138, 144, 147 (R.I. 2008).
III
Analysis
A
Breach of Contract
It is axiomatic that in a claim for breach of contract, a plaintiff must prove both the existence and breach of a contract, and that the defendant's breach caused it damages. Fogarty v. Palumbo, 163 A.3d 526, 541 (R.I. 2017) (citing Petrarca v. Fidelity and Casualty Insurance Co., 884 A.2d 406, 410 (R.I. 2005)). Furthermore, "[a] party's material breach of a contract justifies the nonbreaching party's subsequent nonperformance of its contractual obligations." Women's Development Corp. v. City of Central Falls, 764 A.2d 151, 158 (R.I. 2001) (citing Iannuccillo v. Material Sand & Stone Corp., 713 A.2d 1234, 1239-40 (R.I. 1998)). Material breach has been defined as "'a failure to perform a substantial part of the contract or one or more of its essential terms or conditions, or if there is such a breach as substantially defeats its purpose;'" in other words, such a breach is one that, '"upon a reasonable construction of the contract, it is shown that the parties considered the breach as vital to the existence of the contract.'" Id. (quoting UHS- Qualicare, Inc. v. Gulf Coast Community Hospital, Inc., 525 So.2d 746, 756 (Miss. 1987)). In the arena of construction contracts, the Rhode Island Supreme Court has held that failure to remit payments is a material breach and excuses non-performance by the nonbreaching party. Iannuccillo, 713 A.2d at 1239-40; Aiello Construction, Inc. v. Nationwide Tractor Trailer Training and Placement Corp., 122 R.I. 861, 864, 413 A.2d 85, 87 (1980).
There is no dispute that Mr. Kishfy and Premier entered into a valid and binding Construction Contract on August 17, 2011, governing scope of the labor, material, and payment for the renovations to the property. Pursuant to the Construction Contract, Mr. Kishfy undertook the obligation to pay Premier the amount of $150,000 for the labor and materials provided at the project. This included the responsibility to make timely payments for additional labor and materials and ensure that custom materials were delivered and ready for installation.
While it is also true that Premier undertook the obligation to complete the renovations no later than October 28, 2011, Premier has demonstrated through credible and competent evidence that it was unable to timely perform this obligation because Mr. Kishfy increased the scope of work and failed to deliver necessary materials. For instance, Mr. Kishfy ordered custom tiles for the kitchen and foyer. These tiles were not delivered until November 28, 2011. Premier was responsible to complete the custom work incurring additional material and labor costs.
The uncontradicted evidence is that as of November 11, 2011, Premier had been paid a mere $51,000. Under the terms of the Construction Contract, it was to have received $150,000 in installments. Mr. Kishfy's nonpayment, coupled with his failure to provide the necessary materials in a timely manner, constituted a material breach of the Construction Contract justifying the non-performance by Premier. See Iannuccillo, 713 A.2d at 1239-40; Aiello Construction, Inc., 122 R.I. at 864-65, 413 A.2d at 87.
While Mr. Kishfy argues that his nonpayment was justified because the project was taking too long to complete, however, the credible evidence on this record establishes that it was Mr. Kishfy's actions in increasing the scope of work, failing to deliver materials, and ordering custom items from boutique vendors that was the proximate and substantial cause for any delay in completing the project. Payment and performance are the lifeblood of the contract; therefore, Premier's work stoppage was justified. See id.
Our Supreme Court had addressed a situation similar to the present matter in Aiello Construction, Inc. There, the parties entered into a construction contract, which called for defendant to make payments in installments in exchange for construction work. 122 R.I. at 863, 413 A.2d at 86-87. Akin to our present matter, the defendant made a number of payments, then ceased, even though plaintiff was carrying out the construction work. Id. Eventually, due to the lack of payment, the plaintiff ceased working. Id. The Supreme Court held that the defendant's failure to pay for the work performed was a breach that went to the "essence of the contract," which relieved the plaintiff from continued performance. 122 R.I. at 865, 413 A.2d at 88.
As in Aiello, the owner, Mr. Kishfy, materially breached the Construction Contract by his failure to pay Premier and otherwise perform pursuant to its terms, amounting to an abandonment of the contract, constituting a breach that goes to the essence of the contract. See Salo Landscape & Construction Co., Inc. v. Liberty Electric Co., 119 R.I. 269, 274, 376 A.2d 1379, 1382 n.2 (1977) (upholding the trial justice's finding that party who failed to pay a contractor had abandoned the contract, which is "the unilateral act of one party in refusing to perform his part of the agreement.") (citing Jakober v. E. M. Loew's Capitol Theatre, Inc., 107 R.I. 104, 112, 265 A.2d 429, 434 (1970)). Premier was therefore justified in ceasing all work in response. See id; See also Women's Development Corp., 764 A.2d at 158 (holding that a party's material breach of a contract justifies the nonbreaching party's subsequent nonperformance of its contractual obligations) (citing Iannuccillo, 713 A.2d at 1239-40).
This Court therefore finds that Mr. Kishfy materially breached the Construction Contract through its nonpayment for the original work as well as the increase in the scope of work. See La Gondola, Inc. v. City of Providence, by and through Lombardi, 210 A.3d 1205, 1227 (R.I. 2019) (holding that neither party to a contact '"shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract."') (quoting McNulty v. Chip, 116 A.3d 173, 185 (R.I. 2015)); see also Normandin v. Gauthier, No. C.A. 03-6211, 2006 WL 1073422, at *8 (R.I. Super. Apr. 20, 2006) (finding that the defendant's refusal to allow the plaintiff to excavate on the property at issue, causing the agreed upon real estate transaction to fail, was a violation of the covenant of good faith and fair dealing).
Finally, this record is void of evidence with respect to Mrs. Kishfy's contractual obligations. She is not a signatory to the Construction Contract; therefore, liability for breach of contract will not attach. See Andoscia v. Town of North Smithfield, 159 A.3d 79, 82 (R.I. 2017) (holding that "to form a valid contract, each [party] must have the intent to be bound by the terms of the agreement.") (citing Smith v. Boyd, 553 A.2d 131, 133 (R.I. 1989)); McNulty, 116 A.3d at 185 (holding that the implied covenant of good faith and fair dealing is not a stand-alone cause of action but is implied in every contract).
It should also be noted that Mrs. Kishfy has no interest in the 15 Paddock Drive property because she is not listed on the deed. See Saltzman v. Atlantic Realty Co., Inc., 434 A.2d 1343, 1345 (R.I. 1981) (affirming summary judgment for realtor and holding that realtor could not be liable for any breach of warranty, or breach of contract, because there was no evidence contradicting the realtor's assertion that he did not have any interest in the property at issue). As such, there is no factual basis for the claims brought against her. See id.
B
Unjust Enrichment
The Rhode Island Supreme Court has held that '"actions brought upon theories of unjust enrichment and quasi-contract are essentially the same."' See Multi-State Restoration, Inc. v. DWS Properties, LLC., 61 A.3d 414, 418 (R.I. 2013) (quoting Bouchard v. Price, 694 A.2d 670, 673 (R.I. 1997)). To recover for such, a plaintiff must show: '"(1) a benefit must be conferred upon the defendant by the plaintiff, (2) there must be appreciation of such benefit by the defendant, and (3) there must be an acceptance of such benefit in such circumstances that it would be inequitable for a defendant to retain the benefit without paying the value thereof."' Id. at 418-19 (quoting Anthony Corrado, Inc. v. Menard & Co. Building Contractors, 589 A.2d 1201, 1201-02 (R.I. 1991)).
In construction cases, '"[s]imply conferring a benefit upon a landowner by a subcontractor is not sufficient to establish a claim for unjust enrichment."' South County Post & Beam, Inc. v. McMahon, 116 A.3d 204, 212 (R.I. 2015) (quoting Emond Plumbing & Heating, Inc. v. BankNewport, 105 A.3d 85, 90 (R.I. 2014)). However, failure to make payments on an existing contract is a fact that courts can consider; in South County Post & Beam, Inc., the Supreme Court held that failure to make payments on a construction contract entitled the plaintiff to damages under quasi-contract and unjust enrichment. 116 A.3d at 212.
In South County Post & Beam, Inc., a subcontractor was retained by a general contractor to build a roof. Id. at 208. The defendant did not make full payment on the outstanding bill for the construction of the roof. Id. The plaintiff sought, among other things, damages based on unjust enrichment. Id. The trial justice found for the plaintiff and awarded damages. Id. at 209. On appeal, the Supreme Court affirmed the unjust enrichment award. Id. at 214. The Court explained that the third prong is the most important part of the inquiry--the Court then held that the defendant's failure to make substantial payments would render the retaining of the benefit unjust. Id. at 213.
Here, the elements of unjust enrichment are clearly met. (1) Premier clearly conferred a benefit on Mr. Kishfy by providing customized materials and extra labor at 15 Paddock Drive. (Pl.'s Exs. 6-11, 13); (2) Mr. Kishfy appreciated the benefit because he ordered the work to be done and now enjoys a (partially) upgraded and customized home; (Pl.'s Ex. 12); (3) It would be inequitable to allow Mr. Kishfy to retain his upgraded house without paying for it, as Premier performed work at the direction of Mr. Kishfy. See R & B Electric Co., Inc. v. Amco Construction Co., Inc., 471 A.2d 1351, 1356 (R.I. 1984) (explaining that a "court must look at the equities of each case and decide whether it would be unjust for a party to retain the benefit conferred upon it without paying the value of such benefit").
Accordingly, Mrs. Kishfy cannot be liable under unjust enrichment because the record is devoid of any evidence that would establish her liability-she never had any dealings with Premier.
Finally, Premier has no other recourse. The Court in South County Post & Beam, Inc. faulted the plaintiff for not seeking payment through its contract with the general contractor. 116 A.3d at 212. However, the same remedy is not available to Premier because Premier is in fact the general contractor. The Court therefore finds that it would be inequitable for Mr. Kishfy to retain the benefit Premier conferred on him without compensation. See id.
IV
Counterclaims
A
Breach of Contract
Mr. Kishfy seeks damages from Premier through a number of counterclaims. Mr. Kishfy alleges that Premier breached the Construction Contract by failing to complete the work at 15 Paddock Drive. Mr. Kishfy argues that Premier did not finish the project at 15 Paddock Drive, leaving Mr. Kishfy to finish it himself. Mr. Kishfy points to specific provisions in the Construction Contract, such as repairing the sagging floor, which were not completed.
Mr. Kishfy also pled a number of affirmative defenses in response to Premier's allegations. Specifically, Mr. Kishfy raised lack of standing, accord and satisfaction, fraud, and estoppel. However, Mr. Kishfy has provided no evidence to substantiate his defenses; as such, this Court deems them waived and will not consider them. See Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n.1 (R.I. 2002) (explaining that simply stating an issue without argument constitutes a waiver of that issue).
Mr. Kishfy requests a judgment and damages against Premier in the amount equal to what Mr. Kishfy alleges to have spent in overpaying Premier, and for completing the work that Premier failed to complete. However, this Court has found that Premier's failure to complete the project was justified and excused because Mr. Kishfy breached the Construction Contract by (1) failing to make payments pursuant to the Construction Contract and (2) by failing to pay the costs of what he requested outside of the Construction Contract. See Women's Development Corp, 764 A.2d at 158 (R.I. 2001) (citing Iannuccillo, 713 A.2d at 1239-40) (holding that a party's material breach of a contract justifies the nonbreaching party's subsequent nonperformance of its contractual obligations).
Furthermore, Mr. Kishfy cannot complain about the defects that existed when he purchased the property, such as the sagging floor and bearing wall, because he purchased it "as is" and accepted the warranty deed. Our Supreme Court has held that once a warranty deed is accepted, under the doctrine of merger by deed, it '"becomes the final statement of the agreement between the parties and nullifies all provisions of the purchase-and-sale agreement."' Lizotte v. Mitchell, 771 A.2d 884, 887 (R.I. 2001) (quoting Haronian v. Quattrocchi, 653 A.2d 729, 730 (R.I. 1995)); see also LaFazia v. Howe, 575 A.2d 182, 186 (R.I. 1990) (upholding an "as is" clause after purchaser had inspected the premises). By accepting the deed, Mr. Kishfy waived all contract claims based upon the sales agreement. See id. at 888.
The Construction Contract was executed to remedy defects on the property--Mr. Kishfy proceeded to violate it, excusing Premier's performance. Mr. Kishfy cannot now take issue with any clause under the purchase and sales agreement, or Premier's failure to finish work.
B
Breach of Warranties
Mr. Kishfy next argues that the Construction Contract contains an express warranty that guaranteed the work for one year after the date of the completion of the project. Mr. Kishfy also argues that an implied warranty of reasonable workmanship and habitability survives the delivery of the deed when a sale is made by a builder. It is argued that Premier violated the implied warranties of good workmanship and habitability by failing to correct the defects that existed at 15 Paddock Drive when he purchased it, such as the sagging floor and the bearing wall.
The party "who claims breach of express warranty has the burden of proving that the statements of representations made by the seller induced her to purchase that product and that she relied upon such statements or representations." Thomas v. Amway Corp., 488 A.2d 716, 720 (R.I. 1985) (citing Rogers v. Zielinski, 99 R.I. 599, 602, 209 A.2d 706, 708 (1965)). The necessary requisites of proof for a claim for breach of express warranty are set out in G.L. 1956 § 6A-2-313. Specifically, § 6A-2-313 states the following: "(a) Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise; (b) [a]ny description of the goods which is made part of the basis of the bargain creates an express warranty that the goods shall conform to the description; (c) [a]ny sample or model which is made part of the basis of the bargain creates an express warranty that the whole of the goods shall conform to the sample or model." § 6A-2-313(1)(a) to 6A-2-313(1)(c).
Here, an express warranty exists pursuant to the Construction Contract--"All work is guaranteed for 1 year from date of completion. 1-year warranty on pool filter, boiler and outside irrigation." (Pl.'s Ex. 2.) There is no credible evidence on this record establishing that the warranty was breached. First, Mr. Kishfy accepted the work as the progress progressed. The credible evidence is that Mr. Kishfy never complained about the work. The sole reason that the project was not completed to Mr. Kishfy's satisfaction resulted from his actions, which this Court has concluded was a material breach of the Construction Contract. See Women's Development Corp., 764 A.2d at 158; see Iannuccillo, 713 A.2d at 1239; Aiello Construction, Inc., 122 R.I. at 864, 413 A.2d at 87. Mr. Kishfy cannot now object to the quality of any work that he previously accepted. See id. Further, there is no evidence in this case that Mr. Kishfy entered into the contract in reliance on Premier's "statements or representations." Thomas, 488 A.2d at 720. Mr. Kishfy has failed to demonstrate that Premier's actions induced him to enter into the construction contract and that he relied upon its representations. See id.
Premier has credibly demonstrated that it completed all work as contracted and that Mr. Kishfy accepted the work. Iannuccillo, 713 A.2d at 1239-40. Therefore, there is no factual basis for reconciliation of his warranty claim against Premier. See generally, Kelleher v. Lozzi, 80 A.2d 196, 199 (N.J. 1951) (noting that it is factually impossible to reconcile a valid claim by a builder for the amount due under a contract with a valid claim by the owner for nonperformance of the warranties).
Mr. Kishfy also argues that Premier was under a duty to complete the work to correct the defects at 15 Paddock Drive under the implied warranty of reasonable workmanship and habitability. Mr. Kishfy argues that this warranty survives delivery of the deed under Padula v. J. J. Deb-Cin Homes, Inc., 111 R.I. 29, 33, 298 A.2d 529, 532 (1973). While this is a correct statement of law, this Court finds the implied warranty of reasonable workmanship and habitability does not apply to the facts of this matter because 15 Paddock Drive was not a new construction and Premier is a not "builder vendor." See Nichols v. R.R. Beaufort & Associates, Inc., 727 A.2d 174, 177 (R.I. 1999) (holding that the implied warranty of habitability applies to the sale of a new house by a vendor who is the builder thereof and to subsequent purchasers within one year of construction). Premier merely provided renovations and additions to the interior of 15 Paddock Drive-Premier did not build the structure.
The implied warranty of reasonable workmanship and habitability is of no aid to Mr. Kishfy. He accepted the deed for 15 Paddock Drive will full knowledge that he was purchasing the property in its "as is" condition, and as such, the deed became the "final statement of the agreement between the parties, and any purported contract claims were barred by the doctrine of merger by deed." Lizotte, 771 A.2d at 887-88.
Mr. Kishfy cannot fault anyone except himself for the state of the project at the time the performance was ended. Nor can Mr. Kishfy rely on any provisions in the Purchase and Sales Agreement. See id. Therefore, Mr. Kishfy's counterclaims against Premier are denied and dismissed.
V
Damages
Premier argues that it is entitled to $58,618 in damages. Specifically, Premier alleges that Mr. Kishfy owes $17,500 from the Construction Contract and owes $41,118 for the extra work he ordered. Mr. Kishfy argues that he is entitled to damages in the range of $34,366.42 and $37,266.42, plus interest and fees. He asserts this is the figure(s) he spent in completing the work at 15 Paddock Drive.
Our Supreme Court has held that a plaintiff has the burden to prove, by competent evidence, the amount of damages suffered due to a defendant's failure to perform. National Chain Co. v. Campbell, 487 A.2d 132, 135 (R.I. 1985). Concurrently, a plaintiff must establish "reasonably precise figures" and cannot rely on mere speculation. Id. at 134.
In Salo Landscape & Construction Co., Inc., the Supreme Court considered what type of damages that a nonbreaching party in an installment contract should be entitled to. 119 R.I. at 274, 376 A.2d at 1382. In Salo Landscape & Construction Co., Inc., the defendant failed to make payments on a construction contract for the installation of highway lights. See id. at 271, 376 A.2d at 1381. The trial court, at the plaintiff's bequest, granted the plaintiff damages for the "reasonable value of the work performed," rather than damages based on the contract price. Id. at 274, 376 A.2d at 1382. The defendant had argued that the damages should be measured by multiplying the units of work completed by the prices stipulated in the contract. Id. The Supreme Court rejected defendant's theory and affirmed the trial court. Id. The Court held that a nonbreaching party is entitled to quantum meruit damages, which is the amount for the fair and reasonable value of the work. Id. As such, Premier is entitled to the fair and reasonable value of the work it completed at 15 Paddock Drive. See id.
To that point, Premier has provided extensive credible testimony of the work completed, the invoices of such, and copies of checks provided by Mr. Kishfy. See DeChristofaro v. Machala, 685 A.2d 258, 268 (R.I. 1996) (upholding the admission of copies of checks into evidence after authentication through expert testimony); see also O'Connor v. Newport Hospital, 111 A.3d 317, 323 (R.I. 2015) (explaining the requirements of authentication). The checks tendered by Mr. Kishfy clearly do not equal the amounts set forth on the invoices. This Court also heard credible testimony of the work done by Premier at the bequest of Mr. Kishfy. This Court finds the testimony it heard at trial, coupled with the invoices of the work performed, creates reasonably concise figures, are not mere speculation, and are indicative of the reasonable value of the work performed. Further, as this Court finds that Mr. Kishfy breached the contract, he is not entitled to damages for Premier's subsequent nonperformance because Premier had the right to cease working under law. Women's Development Corp, 764 A.2d at 158 (R.I. 2001) (citing Iannuccillo, 713 A.2d at 1239-40).
Premier has established concise figures of its damages, and this Court finds them to be the reasonable value of the work performed. Salo Landscape & Construction Co., Inc., 119 R.I. at 274, 376 A.2d at 1382. Premier has established that Mr. Kishfy owes $17,500 on the construction contract. Premier has also established that Mr. Kishfy owes $17,500 on the expanded scope of the contract. Therefore, the Court awards Premier damages in the amount of $58,618.
This number would have been $99,000 were it not for $81,500 in credits allocated to Mr. Kishfy.
VI
The Mechanic's Liens
A mechanic's lien affords a liberal remedy to all who have contributed labor or material to the value of the property to which a lien attaches. See Gem Plumbing & Heating Co., Inc. v. Rossi, 867 A.2d 796, 803 (R.I. 2005) (citing Field & Slocomb v. Consolidated Mineral Water Co., 25 R.I. 319, 55 A. 757, 758 (1903)). Our mechanic's lien statute, G.L. 1956 § 34-28-1(a) creates a lien in favor of the claimant '"when the work begins or the materials are furnished . . . it accrues as the debt accrues, being incident to the improvement."' Id. (quoting Art Metal Construction Co. v. Knight, 56 R.I. 228, 185 A. 136, 140 (1936)). To perfect the lien, the claimant must mail a "notice of intention" to the property owner before or within 120 days after doing work or furnishing materials. Gem Plumbing & Heating Co., Inc., 867 A.2d at 803. The claimant must then record the lien in the land records within 120 days after doing work or furnishing materials. Id.
The Rhode Island Supreme Court has held that mechanic's liens are assignable unless statute states otherwise. McDonald v. Kelly, 14 R.I. 335, 337-38 (1884). Our mechanic's lien statute, Title 34, Chapters 34-28, is silent as to assignability; therefore, applying McDonald, this Court finds the subcontractors were legally permitted to assign their liens to Mr. Corsetti. As such, Premier may enforce the liens under law. See McDonald, 14 R.I. at 337-38.
Premier's subcontractors assert that they validly assigned their mechanic's liens to Mr. Corsetti. The subcontractors executed and perfected their liens under law by sending notice to Mr. Kishfy and by filing in the land records. Respective copies of the notices were sent to Mr. Kishfy and were full exhibits at trial. (Pl.'s Exs. 17, 19, 20). Concurrently, a search of the Lincoln land records reveals that Bel-Air, Continental, Valley Desimone, and Moran have all perfected their liens. See Lincoln Land Evidence Records. Therefore, all mechanic's liens are enforceable by Mr. Corsetti. See McDonald, 14 R.I. at 337-38.
VII
Conclusion
Based upon a review of the evidence presented at trial, judgment shall enter for Premier and against Mr. Kishfy in the amount of $58,618 plus interest and costs. Judgment shall also enter for Mrs. Kishfy. Mr. Kishfy's counterclaims are dismissed. Counsel shall submit the appropriate judgment for entry.