Opinion
C. A. PC-2015-2526
06-15-2023
ROSINE PICHI v. VATCHE AVEDISSIAN
For Plaintiff: Richard B. Feinstein, Esq. Mark L. Smith, Esq. For Defendant: Gary G. Pelletier, Esq. David A. Levy, Esq.
Providence County Superior Court
ATTORNEYS:
For Plaintiff: Richard B. Feinstein, Esq.
Mark L. Smith, Esq.
For Defendant: Gary G. Pelletier, Esq.
David A. Levy, Esq.
DECISION
LANPHEAR, J.
This matter is before the Court on a jury waived trial.
I
Findings of Facts
The Court finds the following facts have been established by a preponderance of the evidence.
Rosine Pichi and Vatche Avedissian are first cousins. Each came to this country as teenagers, went to school with one another, and lived together with their families in Bristol, Rhode Island. By 1999, Ms. Pichi was divorced from her first husband and met Rory Pichi. They went to California for several years. She returned and moved to a rental home in Barrington. In 2001, Rory and Rosine moved into a separate unit in Mr. Avedissian's home for about six months. As their families remained friendly, they met almost weekly and on holidays. The Pichis were not charged rent. Mr. Avedissian operated a pizza shop, Mr. Pichi worked elsewhere as an auditor, and Ms. Avedissian was a registered nurse.
Mr. Pichi and Mr. Avedissian were good friends. They verbally agreed that Mr. Avedissian would assist Mr. Pichi in constructing a home. While the Pichis would pay, Mr. Avedissian would serve as a general contractor - dealing with subcontractors and getting contractor's discounts for materials and services where he could. They went together to buy certain supplies.
Mr. Avedissian had previously served as a general contractor for about three other homes and has a building contractor license. The new home was built on Dolly Drive in Bristol, down the street from the Avedissian home. The new home was completed in late 2001.
The two men had an odd arrangement for paying construction obligations. Mr. Avedissian would ask Mr. Pichi for money as the subcontractors presented their bills. Money was given in checks payable in cash or to Mr. Avedissian or to subcontractors and suppliers directly. Mr. Avedissian distributed the checks specifically made out to the subcontractors and suppliers and cashed checks made out to cash. Mr. Avedissian used the cash to pay some subcontractors directly (presumably obtaining a reduced bill with a contractor discount). He also testified that he did not keep track of the bills, the monies paid to him, or the monies he paid out. He produced no ledger or any account at all. The Court concludes that he maintained no such financial records. Mr. Pichi was a friend of Mr. Avedissian and dealt with him directly.
Starting in 2005, the Pichis advanced loans to Mr. Avedissian without written promissory notes. Specifically:
• In August of 2005, $22,000 was loaned and $21,200 was loaned in spring of 2006. Ms. Pichi testified convincingly that she delivered the proceeds for these two loans in cash, and in the Response to Request for Admissions number 15 Mr. Pichi admitted that he was loaned $43,200, but he questioned whether the loans to him were delivered in cash or checks. Mr. Avedissian acknowledged at trial that the $43,200 were debts he owed.
• In November 2006, Mr. Avedissian asked Ms. Pichi for assistance in paying construction costs for his business, and the Pichis paid him $18,000. Ms. Pichi testified that she was not concerned about getting her money back but never
referenced it as a loan, nor did she testify concerning a payment schedule or any such discussion with Mr. Avedissian. In 2015, Ms. Pichi attempted to obtain repayment in a discussion with Mr. Avedissian, and the meeting ended in a dispute.
• In January 2007, Mr. Avedissian asked Mr. and Ms. Pichi for $7,000 for Mr. Avedissian's children's tuition or for his arrearage on his credit cards. Mr. Avedissian received the funds. In Ms. Pichi's testimony there was no discussion of this being a loan.
• In July 2007, Mr. Avedissian asked Mr. and Ms. Pichi for $9,000 for the tuition of Mr. Avedissian's children or for a credit card arrearage. The $9,000 was paid and Mr. Avedissian received the funds. Ms. Pichi did not inquire when she would get paid back. In her testimony, there was no discussion of this being a loan.
• The Pichis paid and Mr. Avedissian received $20,000 for a credit card debt in September 2007. To finance this $20,000 loan to Mr. Avedissian, the Pichis took a line of credit on their home from Columbus Credit Union. Mr. Avedissian was given the payment slips to pay this loan, and did so, paying through December 2012. The Pichis refinanced the home equity loan in April 2012 by acquiring a new loan from Navigant Credit Union (Navigant) for $6,852.42. Mr. Avedissian then made some payments to Navigant toward the Navigant/Pichi loan, and then stopped making payments. Ms. Pichi paid off the balance of the Navigant home equity loan herself, paying $4,065.70 in April 2013.
Mr. Pichi passed away suddenly on July 19, 2012, leaving his widow in the position of handling the finances alone.
Starting in October 2011, Mr. Avedissian commenced making payments directly to Ms. Pichi, paying $36,000 in full through February 2015. In March 2015, Mr. Avedissian asked to meet Ms. Pichi. They disagreed on the amount of his outstanding debt and the meeting became a hostile shouting match. Mr. Avedissian stopped making payments thereafter.
Ms. Pichi alleges a remaining debt due from Mr. Avedissian of $44,126.80, but did not establish that each of the payments were loans.
II
Presentation of Witnesses
Ms. Pichi was well prepared for direct examination, followed the questions, seemed to know what the attorney would be covering, and spelled out her responses clearly. Oddly, she alleged loaning her cousin $97,000 without paperwork, in several separate payments, some in significant cash payments. On cross-examination, she became very uncooperative, almost hostile. She talked over the cross-examining counsel, correcting him before he even completed the query. She refused to be led at all, which began to impair her credibility. Although she was intelligent and well-spoken, she insisted that, in her family, paperwork is not usual, she was not completely aware of her husband's transactions during the construction of their home, and she waited eight years before seeking to recover. While this began to sound implausible and defied common sense that so much would not be in writing, she insisted that Mr. Avedissian agreed to make payments and also agreed that most of the advances were loans. Her total attitude change during examination was surprising and caused the Court to reflect carefully upon her truthfulness. Surprisingly, Mr. Avedissian's similar attitude and admissions of certain unwritten loans shored up her credibility.
Mr. Avedissian's lack of cooperation and credibility were even more questionable. He seemed to have been prepared, but less responsive on direct. He claimed he did not recall getting the significant cash payments, but elsewhere agreed that they were loans. He was not cooperative on cross-examination, often going to tangential comments. He was unable to recall certain payments, even those he paid back. He acknowledged asking for money for his daughter's college tuition payments. Quite oddly, he acknowledged a variety of payments received, but even when his attorney asked if he received the $20,000 payment, he did not answer the question directly but replied, "I'd have to see the check." His answers were vague and flowed off point, and his credibility was left very much in question. Overall, the Court cannot find that he accurately recalled how much he paid the Pichis toward his debt, and the Court finds Ms. Pichi's testimony and exhibits more credible and reliable on this issue.
Susan Avedissian, Mr. Avedissian's wife, testified that she knew nothing of the $22,000, $21,200, $18,000, $7,000, $9,000 or $20,000 payments or loans to Mr. Avedissian. The couple had been divorced for a time, but Ms. Avedissian asserted that her husband involved her in financial decisions. However, as she knew little about the financial transactions which Mr. Avedissian and Ms. Pichi agreed to, her testimony had little value to the Court.
III
Analysis
1
The Prior Financial Obligations
Mr. Avedissian testified that Mr. and Ms. Pichi continued to owe him monies for the contracting work on their 2001 home. As he did not indicate the amount due, how it was incurred, what the arrangements were for the construction of the home, or produce any itemization, the Court cannot conclude that any debt continues from the Pichis to Mr. Avedissian. An ongoing financial obligation from the Pichis to Mr. Avedissian was not established by a preponderance of the evidence.
Ms. Pichi claims that monies are due her for loans to Mr. Avedissian. In the same manner, there were no promissory notes for the many alleged loans to Mr. Avedissian. However, there were some substantial differences in Ms. Pichi's evidence. The Court finds:
• Starting in 2005, the Pichis had begun to advance significant payments to Mr. Avedissian. These advances continued for over twenty-five months; hence, the Pichis recognized Mr. Avedissian's inability to make payments during that time. Starting in October 2011, Mr. Avedissian commenced making payments to pay off his debts, paying back $36,000 through February 2015. Regarding the $20,000 advance of September 2007, Mr. Avedissian made payments directly to the financial institutions which advanced the funds to the Pichis, leaving a debt of only $4,065.70 and any late fees. Ms. Pichi eventually recognized the arrearage to the bank and paid the balance off. Mr. Avedissian remains indebted to Ms. Pichi forthe $4,065.70. Accordingly, each of the parties recognized that most advances were continuing debts of Mr. Avedissian.
• Ms. Pichi testified persuasively that she withdrew the two substantial cash payments of $22,000 in August 2005 and $21,200 in April 2006. For the first transaction, she testified that she said "I'll loan you" the money, she took the money from their certificate of deposit, took it from the bank in cash, and delivered the money to Mr. Avedissian who she quoted as saying "thank you . . . I'll pay you back." This testimony was credible and never contradicted. This constitutes substantial evidence that some, if not all, of the advances were loans, not gifts.
• Ms. Pichi acknowledged that there was no specific payment date arranged and that she trusted Mr. Avedissian. In his response to the request for admissions, Mr. Avedissian admitted he received the $43,200 and that the payments were loans: "Request No. 15: Between 2005 and Nov. 21, 2006, Rory and Rosine Pichi loaned you $43,200.
Per the court file, on May 14, 2017 Ms. Pichi issued sixty-seven requests for admissions to Mr. Avedissian. On September 23, 2017, Mr. Avedissian responded, admitting request 15 and some other requests. On September 25, 2017, Mr. Avedissian moved to withdraw the defaulted admissions. Pursuant to Rule 36 of the Superior Court Rules of Civil Procedure, the requests were deemed admitted if not responded to within thirty days. The Court granted the motion to withdraw the admissions which were admitted by default, but Mr. Avedissian specifically admitted request 15. New responses were not submitted to the Court.
• Mr. Avedissian also admitted receiving all of the payments which Ms. Pichi alleged to be loans, totaling $97,200, during his cross-examination. He admitted that he had started to repay some of the debts.
2 Setoff
Mr. Avedissian never counterclaimed. He never claimed an affirmative defense of setoff in his answer but at trial claimed that the Pichis continued to be indebted to him for his work on the construction of their new home. For the home construction, there is no evidence to demonstrate that an outstanding loan exists, that any money was due to Mr. Avedissian (apart from Mr. Avedissian's vague allegation), that any demand was made for money due, that construction costs were not paid in full, or the amounts of any of the particular debts. No writing memorializing the monetary arrangements between the families for the home construction was introduced into evidence. The Court has no reason to believe that such writings exist. The Court is left with various copies of twenty-year-old invoices, which appear to be scant.
During his testimony, Mr. Avedissian reverted to the commitments he made to completing the Pichi construction, but only when he was questioned about the arrearages on his loans from the Pichis. Mr. Avedissian offered no proof that this debt existed, such as a demand letter or a contract. Mr. Pichi was alive at that point and handled those finances directly. There was no credible evidence submitted to establish, or even infer, that Mr. Avedissian attempted to collect these monies, even after Mr. Pichi passed. Neither party has produced sufficient evidence to substantiate those transactions as an unsatisfied obligation between the parties and, frankly, the Court seriously doubts whether any obligations remained from their odd arrangement for financing the construction costs. That so-called obligation was never raised until Ms. Pichi sought the monies claimed here, and Mr. Avedissian never raised the defense of setoff until the time of trial. Mr. Avedissian failed to sufficiently demonstrate that monies were owed to him, or any amount that was owed. There was no credible or persuasive evidence that an ongoing debt was discussed or understood between them, or that Mr. Avedissian attempted to collect any monies due. If Mr. Avedissian was claiming a setoff, he had an obligation to demonstrate its validity. He was obligated to demonstrate the debt that Ms. Pichi owed for his contracting work on her home construction. Mr. Avedissian proved neither the amount of the debt nor the obligation. There is no evidence of any loan for his construction work as discussed above.
Oddly, in Exhibit F, Mr. Avedissian appears to acknowledge owing $7,600, but it is difficult to interpret and is undated.
"[T]o allow a setoff in the instant case would reward a party which is guilty of a breach of contract and which has failed to establish at trial the extent to which it has a legitimate contractual right to a setoff." Insurance Co. of North America v. Kayser-Roth Corp., 770 A.2d 403, 413 (R.I. 2001) (internal quotation omitted).
The Court concludes that their monetary arrangements for the home construction, to the extent there were any, were satisfied.
3
Application of Case Law
Several brief comments on the applicable law are helpful here.
As indicated, the parties were related and friendly with one another for many years. When the Pichis provided money to Mr. Avedissian years after the house was built, no promissory notes were written. Debts of this kind, which could be paid within a year, need not be in writing to be enforceable. G.L. 1956 § 9-1-4(5).
a
Breach of Contract
"The long-recognized essential elements of a contract are 'competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.'" Rhode Island Five v. Medical Associates of Bristol County, Inc., 668 A.2d 1250, 1253 (R.I. 1996) (quoting Black's Law Dictionary 322 (6th ed.1990) (citing Lamoureux v. Burrillville Racing Association, 91 R.I. 94, 98, 161 A.2d 213, 215 (1960)). Mr. Avedissian requested money, Ms. Pichi offered loans, Mr. Avedissian accepted. There were six payments from Ms. Pichi supplying consideration. Each of the parties understood the payments of $22,000, $21,200, and $20,000 to be loans. No agreement on interest due was established (but for the interest on the Pichi home loan which Mr. Avedissian paid directly, in part, to the credit unions). Ms. Pichi is not suggesting interest was agreed to. Clearly, Mr. Avedissian breached the contract. He has not fulfilled his payment obligations, and he has paid nothing in eight years.
If Mr. Avedissian was attempting to show that these six payments were gifts to him, he did not show present or future donative intent at all.
There are two elements which are required for a valid inter vivos gift. See Notarantonio v. Notarantonio, 941 A.2d 138, 150 (R.I. 2008). Those elements are: "'a present true donative intent' and 'some manifestation such as an actual or symbolic delivery of the subject of the gift so as to completely divest the donor of dominion and control of it.'" Vocolla v. Forte, 139 A.3d 404,417 (R.I. 2016) (internal quotations omitted). See also Silva v. Fitzpatrick, 913 A.2d 1060, 1063 (R.I. 2007). Quite to the contrary, Mr. Avedissian agreed that some of the payments were loans. It is not Mr. Avedissian's burden to show gifts - it is Ms. Pichi's burden to prove the contracts and the breaches. By a preponderance of the evidence, she did so.
Mr. Avedissian has breached his contracts concerning loans owed to Ms. Pichi and for this she continues to be due $11,265.70.
This is for the $22,000 advance, the $21,200 advance, and the $20,000 advance. The balance of the $20,000 advance, after payments to the credit unions, is $4,065.70. Mr. Avedissian also paid $36,000 on the loans, leaving the balance of $11,265.70.
b Unjust Enrichment
Ms. Pichi alleged that she should be paid for three other advances. The payments of $7,000 and $9,000 were for tuition payments to Mr. Avedissian's children. Mr. Avedissian acknowledged that he received the money, but neither party testified that they considered it to be a loan to him or that it had to be paid back.
The remaining payment was the November 2006 payment of $18,000 for the construction costs of Mr. Avedissian's business. Ms. Pichi established that she thought it was a loan, but she did not speak to Mr. Avedissian about it being repaid. She reasonably expected this to be paid back as Mr. Pichi and Mr. Avedissian were close friends at the time, two other agreed upon loans had just been advanced, and the monies were all for Mr. Avedissian's business.
In South County Post &Beam, Inc. v. McMahon, 116 A.3d 204, 210-11 (R.I. 2015), our high court said unjust enrichment is
'"[t]he retention of a benefit conferred by another, who offered no compensation, in circumstances where compensation is reasonably expected.' Black's Law Dictionary 1771 (10th ed. 2014). 'Instances of unjust enrichment typically arise . . . when a benefit is conferred deliberately but without a contract ....' Id. 'The resulting claim of unjust enrichment seeks to recover the defendant's gains.' Id. It is well settled in our state that, '[t]o recover for unjust enrichment, a claimant must prove: (1) that he or she conferred a benefit upon the party from whom relief is sought; (2) that the recipient appreciated the benefit; and (3) that the recipient accepted the benefit under such circumstances that it would be inequitable for [the recipient] to retain the benefit without paying the value thereof.' Id. (Edmond Plumbing & Heating, Inc. v. Bank Newport, 105 A.3d 85, 90 (R.I. 2014)) (quoting Dellagrotta v. Dellagrotta, 873 A.2d 101, 113 (R.I. 2005)).
"Quantum meruit is a slightly different, but closely related, cause of action that warrants some discussion and consideration in this case. A Latin term for 'as much as he has deserved,' quantum meruit is defined as '[a] claim or right of action for the reasonable value of services rendered.' Process Engineers &Constructors, Inc. v. DiGregorio, Inc., 93 A.3d 1047, 1052 (R.I. 2014) (quoting Black's Law
Dictionary 1361, 1362 (9th ed. 2009)). 'Such an action permits recovery of damages 'in an amount considered reasonable to compensate a person who has rendered services in a quasi-contractual relationship.' Id. (quoting Black's Law Dictionary at 1361-62). We have recently stated that a plaintiff may recover in an action in quantum meruit if the plaintiff can show that a defendant 'derived some benefit from the services and would be unjustly enriched without making compensation therefor.' Id. (quoting National Chain Co. v. Campbell, 487 A.2d 132, 135 (R.I. 1985)).'"
Ms. Pichi advanced $18,000, a benefit, which Mr. Avedissian used for his business. It would be inequitable for him to retain the benefit without paying the value back to Ms. Pichi. Accordingly, she is due $18,000 from Mr. Avedissian for unjust enrichment.
To the extent the monies found to be due in breach of contract were not in contract, this Court would find those monies due in unjust enrichment. As the monies are due in contract, this Court need not reach the issue.
IV
Conclusion
On the first two counts for money lent and breach of contract, judgment is rendered in favor of Ms. Pichi and against Mr. Avedissian for $11,265.70 plus interest and costs.
On the third count of quasi contract, judgment is entered in favor of Ms. Pichi and against
Mr. Avedissian for the sum of $18,000 plus interest and costs. This is in addition to the amount awarded in the first count.
The motion to dismiss is moot. Counsel for Ms. Pichi may prepare an appropriate judgment.