Opinion
C. A. PC-2016-0247
09-11-2024
MICHAEL CAPARCO d/b/a RHODE ISLAND REMODELING v. JOHN CELONA
For Plaintiff: Peter J. Comerford, Esq. For Defendant: John O. Mancini, Esq.
For Plaintiff: Peter J. Comerford, Esq.
For Defendant: John O. Mancini, Esq.
DECISION
M. DARIGAN, J.
Following a two-day bench trial, this Court now issues its decision on Plaintiff Michael Caparco d/b/a Rhode Island Remodeling's (Caparco or Plaintiff) Complaint and Defendant John Celona's (Celona or Defendant) Counterclaim. Jurisdiction is pursuant to Rule 52 of the Superior Court Rules of Civil Procedure.
I Introduction
This dispute arises from a roofing project undertaken by Caparco at Celona's Lincoln, Rhode Island home in September 2015. The parties entered into a written contract for Caparco to remove and replace the roof. Celona paid a $5,000 deposit to Caparco toward the $19,300 contract price, and the roof work was performed over three days. Celona was unhappy with the quality of Caparco's work and refused to pay the contract balance of $14,300. The parties made unsuccessful efforts to resolve the impasse. Caparco then filed suit asserting: Count I - Breach of Contract, alleging that Caparco fulfilled the terms and conditions of the contract, yet Celona wrongfully refused to pay the contract balance; and Count II - Unjust Enrichment, alleging that Caparco completed the work called for by the contract, providing Celona with the benefit of a new roof without Celona providing complete compensation to Caparco. Celona denied the Complaint's allegations and asserted numerous affirmative defenses including unclean hands, breach of warranty, fraud and misrepresentation, failure to mitigate, and that Caparco's work was defective and not up to industry standards.
Celona further asserted a Counterclaim: Count I - Breach of Contract, alleging that Caparco's work was defective in a number of ways, requiring Celona to repair and replace the roof; Count II - Misrepresentation, alleging that Caparco made misrepresentations to Celona as to the quality of the workmanship and the personnel who would carry out the work; Count III - Fraud in the Inducement, making similar allegations to those in Count II; and Count IV - Unjust Enrichment, alleging that Caparco received the benefit of Celona's $5,000 contract deposit without having properly performed the work. Caparco denied these allegations.
The Court heard testimony from three witnesses at trial: Caparco, Celona, and Celona's expert witness, Manuel Barboza (Barboza). Seventeen trial exhibits were admitted into evidence, including the parties' contract, numerous photographs taken by Celona, Barboza's expert report, and related documents. Both parties supplied post-trial memoranda.
For the reasons set forth herein, this Court finds that Celona has not met his burden of proving by a preponderance of the evidence that Caparco's workmanship was so deficient as to amount to a breach of contract; nor that Caparco made material misrepresentations of fact that were reasonably relied upon by Celona; nor that Caparco was unjustly enriched by retaining the contract deposit. Accordingly, all relief requested in Celona's Counterclaim is denied. This Court finds, conversely, that Caparco has met his burden by a preponderance of the evidence on his breach of contract and unjust enrichment claims and will enter judgment for Caparco on Counts I and II of the Complaint.
II Standard of Review
Rule 52(a) of the Superior Court Rules of Civil Procedure provides 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). This means that the trial justice '"weighs and considers the evidence, passes upon the credibility of the witnesses, and draws proper inferences."' Parella v. Montalbano, 899 A.2d 1226, 1239 (R.I. 2006) (quoting Hood v. Hawkins, 478 A.2d 181, 184 (R.I. 1984)).
A jury trial was demanded by Celona in his Counterclaim. The jury demand was withdrawn by Celona without objection by Caparco.
'"The task of determining the credibility of witnesses is peculiarly the function of the trial justice when sitting without a jury."' McEntee v. Davis, 861 A.2d 459, 464 (R.I. 2004) (quoting Bogosian v. Bederman, 823 A.2d 1117, 1120 (R.I. 2003)). The factual determinations and credibility assessments of a trial justice traditionally are accorded great deference because it is "the judicial officer who [actually observes] the human drama that is part and parcel of every trial and who has had an opportunity to appraise witness demeanor and to take into account other realities that cannot be grasped from a reading of a cold record." In re Dissolution of Anderson, Zangari & Bossian, 888 A.2d 973, 975 (R.I. 2006). Drawing inferences from the testimony of witnesses is also within the "province of the trial justice;" and, if reasonable, such inferences are entitled to equal weight upon review as other factual determinations made by the trial justice. Walton v. Baird, 433 A.2d 963, 964 (R.I. 1981).
Although the trial justice is required to make specific findings of fact and conclusions of law, "brief findings will suffice as long as they address and resolve the controlling factual and legal issues." White v. LeClerc, 468 A.2d 289, 290 (R.I. 1983) (citing J.W.A. Realty, Inc. v. City of Cranston, 121 R.I. 374, 384, 399 A.2d 479, 484-85 (1979)). Accordingly, a trial justice is not required to provide an extensive analysis and discussion of all evidence presented in a bench trial. Donnelly v. Cowsill, 716 A.2d 742, 747 (R.I. 1998) (citing Anderson v. Town of East Greenwich, 460 A.2d 420, 423 (R.I. 1983)). The trial justice should address the issues raised by the pleadings and testified to during the trial. See Nardone v. Ritacco, 936 A.2d 200, 206 (R.I. 2007). However, "[a] trial justice need not 'categorically accept or reject each piece of evidence in his [or her] decision . . . because implicit in the trial justice['s] decision are sufficient findings of fact to support his [or her] rulings.'" Notarantonio v. Notarantonio, 941 A.2d 138, 147 (R.I. 2008) (quoting Narragansett Electric Co. v. Carbone, 898 A.2d 87, 102 (R.I. 2006)). '"[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. at 144-45 (quoting McBurney v. Roszkowski, 875 A.2d 428, 436 (R.I. 2005)).
In accordance with Rule 52, this Court makes the following findings of fact and conclusions of law. Super. R. Civ. P. 52(a).
III Facts
As noted, the Court heard testimony from three witnesses at trial and admitted and considered numerous trial exhibits. All findings of fact and credibility determinations derive from this evidence.
A Testimony of Plaintiff Michael Caparco
The first person to testify was Caparco. He has been engaged in the construction industry, including roofing, for many years. Presently, he is a remodeling contractor operating his business under the trade name Rhode Island Remodeling. This business does roof and vinyl siding work. In 2015, Caparco had one crew performing roofing work and a separate crew that did vinyl siding. Caparco has been a licensed contractor in the State of Rhode Island since 1993. The license is renewed every two years, which requires a ten-hour course of instruction at each renewal. In addition, Caparco has received limited additional instruction or training by attending seminars hosted by materials manufacturing plants. Caparco estimates that prior to 2015 he did approximately one hundred roof jobs each year, roughly two to three jobs per week. This work was all residential and typically concerned shingled roofs. Caparco is familiar with the products offered by CertainTeed, which manufactures shingles and other roofing materials. He consistently uses CertainTeed products on his roof jobs.
Caparco met Celona at the Metacomet Country Club where both were members. They would see each other frequently, up to three or four times a week. The fact that Caparco and Celona were members of the same private club was an important consideration for Caparco. He was focused on doing a good job, going the extra mile, dotting all the I's and crossing all the T's to make a good impression and avoid his reputation being sullied at the club.
Caparco went to Celona's house in Lincoln, measured the roof, and discussed a price. Ultimately the parties entered into a written contract in August 2015. See Exhibit A (the Contract). The Contract was signed by both Caparco and Celona and called for payment of a $5,000 deposit, which was paid, and a total price of $19,300. The Contract lists the scope of work for the removal and replacement of Celona's roof and identifies the shingle materials to be used. The shingles - the "Lifetime Architectural Class A Landmark Pro" model - were to be of the CertainTeed brand and color Heather Blend, as chosen and designated by Celona. The Contract does not contain any other specifications as to the type of materials to be used.
After the Contract was signed, Caparco ordered the shingles and when they came in several weeks later, he started the work. Caparco used his roofing crew for this work, and the crew worked for him under his direction. One worker, Joe Brunelle (Brunelle), is a licensed registered contractor in the State of Rhode Island and has had similar training with respect to the CertainTeed products as Caparco. He served as the foreman of the crew when Caparco was not present. Brunelle's company also subcontracted the rest of the crew - at least an additional four or five workers - and paid the crew as 1099 workers. Caparco would pay Brunelle every Friday, and Brunelle would pay the members of the crew. Caparco had a written contract with Brunelle, and the workers who were paid by 1099 were paid "[b]y the square." (Trial Transcript (Tr.) 38-39.) In addition, Caparco paid for all materials and equipment used by the crew for the roofing project. Caparco made payments to the crew and for materials regardless of whether or not he had been paid by the homeowner for the project.
The members of the roofing crew had been working with Caparco on roofing jobs for ten to twelve years. All were insured at the time of this project. Other than Brunelle, Caparco does not know if the crew members are licensed registered contractors in the State of Rhode Island. All the equipment used by the crew belonged to Caparco. He personally was on the job site every day of the project, usually in the morning and/or afternoon. He made sure to be at the job site every day because he wanted to ensure that Celona was happy with the work. Caparco secured the building permit, managed the job, ordered materials, and oversaw the work to ensure everything was done properly.
On the first day, Caparco was present on site for about two hours in the morning. He did not have any other roofing job at that time, but did have a vinyl siding job going, for which he used a separate crew of workers. He recalls returning a second time on the first day of work as well. Caparco was present for periods of time on the second day of work, as well as the third day. At all times, he was the supervisor or manager of the workers and in his absence it was Brunelle.
During the initial stages of the project, an issue arose with respect to the "drip edge" to be installed pursuant to the Contract. Caparco quoted replacement of a regular drip edge costing approximately $5 per unit, but it was discovered that Celona's house utilized a "vented" drip edge which costs about $35 per unit. Ultimately, although the Contract called for installing a new drip edge, Celona and Caparco determined that the vented drip edge then existing on the house was in good condition; accordingly it was agreed that the drip edge would not be replaced.
The Contract called for installing ridge vents "along roof peaks where needed." See Exhibit A. Caparco's crew installed the ridge vents, except on the portico to the house, per Celona's direction. The Contract also required ice and water barrier to be installed; this is an underlay which goes under the shingles and is designed to prevent ice dams from forming. Caparco described the process of installing the ice and water barrier as peel-and-stick to the wood of the roof and reviewed Exhibit L, which includes photographs of Caparco's crew installing the ice and water barrier. The ice and water barrier was installed throughout the roof wherever there could be a penetration, as well as on the portico and the nook, as requested by Celona. Caparco did not use the CertainTeed ice and water barrier product, rather he used a product under the brand name Polyglass because that was what the supplier had available.
Caparco described the next steps in a roofing project, which is to install tar paper on top of the ice and water barrier, then the shingles. To be able to "walk" on the roof, due to its pitch, Caparco's crew utilized "roof jacks" to create platforms on which to stand. The shingles used by Caparco's crew were those named in the Contract and made by CertainTeed. They were specified by Celona. This type of shingle is known as an architectural shingle, which is thicker and less flexible. To address the parts of the roof that meet in "the valley," where sections of the roof join together, Caparco's crew used the "cut valley" technique over a "woven valley" technique. In a cut valley, any overlapping pieces of shingle are cut and eliminated, leaving a smooth surface for water runoff down the valley. The manufacturer recommendation for the shingle used specified the cut valley technique. They are too thick and not sufficiently pliable for a woven valley. The Contract does not specify the technique to be utilized on Celona's roof valleys.
After the roof replacement was completed, Caparco brought in his vinyl siding crew to pick up nails, clean gutters, and otherwise remove debris from Celona's yard. He made a particular effort in the cleanup because of his relationship with Celona and concerns about his reputation at the golf club.
Caparco stated that Celona made only one critical comment about the work performed by Caparco and/or his crew throughout the job. He repeatedly denied receiving any complaints from Celona throughout the duration of the job. He consistently testified that as far as he could tell, the job was running smoothly. Caparco testified that he and Celona spoke every day and that it was his impression that Celona was happy with the work. The one issue raised by Celona had to do with shingles in a tree branch. Celona called Caparco's cell phone to advise that there was debris in the tree, and he wanted that addressed. Otherwise, per Caparco, there were no complaints.
Celona did not immediately pay the balance of the contract price after completion of the work. He did not return Caparco's phone calls or texts. Caparco went to Celona's house in the evening to request payment and that effort was unsuccessful. Several days after that interaction, the parties agreed to meet at Taco Bell. Celona had numerous photographs and explained a number of aspects of the work that Celona was not happy with. This meeting did not resolve the dispute and Caparco was not paid the remaining contract balance. Caparco did not file a mechanics' lien for the unpaid balance.
Plaintiff rested at the conclusion of Caparco's testimony.
Caparco made a very credible witness. He was quiet and unassuming, yet presented himself as knowledgeable and experienced in matters of roofing. He testified in a very straightforward manner. He was calm, cool, and collected, never rattled, even on cross-examination. He clearly described various technical aspects to a roofing project. Caparco was complimentary to Celona and the attention that Celona paid to the work occurring at his property. Caparco candidly imparted that it was his goal to meet or exceed Celona's expectations due to their relationship having been formed at the Metacomet Country Club. This strikes the Court as particularly sincere. There were details about the project that Caparco could not recall, such as dates and times, which the Court finds to be understandable given that the roof work at issue took place eight years prior to trial. Overall, Caparco conveyed a strong sense of competence and credibility.
B Testimony of Defendant John Celona
Defendant's first witness was Celona. He designed and built his home in Lincoln and has lived there since 1992. Celona is currently retired, but has been in the construction industry since he was fourteen years old. As a teenager, he did roofing, siding, storm windows, and related work. At about nineteen years old, he joined the carpenter's union as a journeyman and worked in the union for about seven years. Celona has extensive experience working with roofs. During his time as a carpenter, he did all of his roof work himself, meaning he physically did the work as a laborer, without hiring workers for the roof work. In 1968, he formed a company called Lakewood Builders and built houses and commercial buildings until about 1974. Celona also did work for Community Development in Providence. For about four years, he worked on siding and roofing. At some point, Celona owned a company called Celbro with his brother, which provided bridge building services to the Rhode Island Department of Transportation and also worked on commercial buildings.
Over the course of his career, Celona estimates that he has physically worked on 300 roofs and has been involved with approximately 500 roof projects total, all residential. The last time Celona physically worked on a residential roof was the early 1980s, either 1981 or 1983. Although he constructed his own home, he did not install the roof; instead, he subcontracted it to another builder who put on the roof in 1991. Although retired, Celona continues to provide advice on construction to friends and family.
Celona considers himself to be an expert in the field of roofing. He testified that he has knowledge as to everything that goes with replacing a shingle roof. However, Celona was not identified by the defense as an expert witness in response to interrogatories under Rule 33 of the Superior Court Rules of Civil Procedure seeking expert disclosure, and this Court did not admit Celona as an expert witness. The Court did allow Celona to testify as to his views about the workmanship on the part of Caparco, indicating that the Court would take such opinion evidence from Celona as a layman, albeit with specific expertise, for whatever the Court deemed such opinion to be worth.
Celona began thinking about replacing his roof after the winter of 2015. At that time, the roof installed when he built the home was starting to fail, specifically the underlayer of the roof which was fifteen-pound felt and not a true ice and water barrier. Celona described in detail the construction of the roof on his home, which is called an "A roof." He spoke to various components of the roof, including the ridge vent, drip edge, and other aspects. When Celona decided to replace the roof, he intended to replace the entire roof and all of the components of the roof. Celona obtained quotes from two different vendors, one of them being Manuel Barboza, the expert witness presented by Defendant at trial. Barboza's company was not able to do the roof work in the timeframe desired by Celona.
Celona met Caparco at the Metacomet Country Club in August 2015. He did not previously know Caparco or his company. Caparco told Celona that he had "eight of [his] own men" and came out to the property to provide a quote. (Tr. 132.) It was of particular importance to Celona that the workers doing the roof work not be "subcontractors." Celona's feeling was that subcontractors "need so much supervision." Id. at 135. "They're qualified to do the work, but without supervision, there's nobody to answer for them." Id. at 136. Celona confirmed that whether or not the workers were on Caparco's "payroll" versus paid by 1099 was not the important factor; what was important was that Caparco told him that "he had his own men." Id. at 260. He testified that his belief that Caparco had his own men was a key factor in hiring Caparco. Celona acknowledged that he had no knowledge of how many years and how many projects the members of Caparco's crew had worked on with Caparco.
Celona selected the shingles outlined in the Contract to be used for the roof work. The shingles that are specified are Landmark Pro architectural shingles manufactured by CertainTeed, color Heather Blend. Celona did not specify to Caparco that he wanted Caparco to use the ice and water barrier made by CertainTeed called Winterguard. He did not ask or direct Caparco as to the type of ice and water barrier to use.
Celona paid the $5,000 deposit to Caparco, the shingles were delivered, and the work began on September 15, 2015. Celona met with Caparco on the first day of the project. When reviewing the supplies for the project, Celona noticed that Caparco did not have a vented drip edge and only had a regular drip edge. Celona ultimately agreed to keep the original vented drip edge in place because it was still serviceable.
Celona did not approve of the staging set up by Caparco's crew. The staging in Celona's view should be from one end of the house to the other for safety reasons as well as performance. He also was surprised that the crew did not have a ladder lift for the shingles so that shingles could be electronically lifted up to the roof.
Celona confirmed that there were about ten crew members working on the roof. He was not introduced to the crew or the foreman by Caparco, which Celona thought was odd. Celona also felt that "most of [the workers] did not look like roofers." (Tr. 139.) "You can tell [by] the way he's dressed and the way he conducts himself." Id. He believed Caparco had "more laborers" on site and "less roofers and less apprentices there." Id. at 139-40. One of the reasons for this observation is that some roofers were wearing shorts and wearing shorts is "one of the things" that sets them apart. Id. at 259. Celona also referred to the workers as "laborers," implying a different, lower level of expertise. Id. at 258. He recognized, however, that some workers were journeymen and some apprentices. He knew who was a journeyman and who was an apprentice because "[y]ou can judge by just looking at them working." Id.
Other than discussing the issue with the vented drip edge, Celona did not raise any concerns with Caparco. He was basically satisfied with the work that had been done on the first day of the project.
On the second day, Celona and Caparco discussed the ridge vent and type of valley cut Celona wanted. Celona agreed that a weave would not work for architectural shingles. Celona wanted a valley cut, but he wanted the valley cut to be a little off center. Instead, according to Celona, Caparco's crew installed a "California cut," which is a technique previously unknown to Celona. Celona could not speak specifically about what a California cut is other than "it's problematic in the northeast. The California cut, the name speaks for itself. It came from California. Obviously, I'm not sure about that." (Tr. 175.)
Celona also spoke with Caparco on the second day about the type of work being done by Brunelle, the foreman, indicating that he just "sat in his truck most of the time." (Tr. 144.) Celona realized that Caparco's workers were subcontractors late in the day on the second day of work. At that time, Celona had words with one of the workers with respect to how he was installing the underlay paper. Celona redirected the worker to use the Winterguard underlay product and instructed him to remove what had previously been laid down so that the Winterguard adhered directly to the plywood. Neither Caparco nor Brunelle were on site at the time and Celona did not call Caparco to address this concern. In apparent frustration with Celona's instruction, the worker ripped off shingles and tossed them into a spruce tree nearby the house. Celona was particularly disturbed that materials were being thrown off the roof "in a fashion that you wouldn't." (Tr. 263.) "If you had to remove something and drop it, you would drop it. You wouldn't throw it." Id. At that time, Celona called Caparco but could not get him on the line. However, another worker was on the phone with someone, presumably Caparco, and immediately after ending the call, that worker climbed the spruce tree and retrieved the tossed shingles. Caparco and Celona did speak that afternoon by phone and Celona "almost begged him to come" to the site, but Caparco didn't come. (Tr. 148.) Ultimately, the underlay/Winterguard was installed throughout the roof, and Brunelle returned to the work site that afternoon. Celona remained concerned that Caparco did not return to the property on the second day.
Overall, Celona expressed dissatisfaction as to the amount of time that Caparco was present at the property. He acknowledged that he did not raise many of the concerns being testified to at the trial, but indicated the reason he did not address these issues at the time was that Caparco was not on site. Celona did have Caparco's phone number, however. Celona appeared critical about the amount of golf he believed Caparco to be playing. He also had concerns that there was insufficient supervision of the crew. At times, workers were laying on the lawn, which Celona could understand because it was very hot out; others were in a car smoking what he perceived to be marijuana. He also felt that the workers took an overly long lunch break of at least an hour and a half. Celona acknowledged that he did not report to Caparco that his workers were doing anything wrong and did not ask him to come back and fix anything.
Celona was not satisfied with the placement of the shingles. The "joint" of the shingles is where shingles abut, and that joint should not be closer than five or six inches. Additionally, Celona was not satisfied with the placement of the shingles because they were crooked. Caparco's workers did not "snap line," meaning to make a chalk straight line to keep the shingles running in a straight course. Celona feels that snapping a line is the "best way to shingle." (Tr. 165.) Celona did not mention his concern that the shingles were irregularly placed and not aesthetically pleasing to the workers, nor to Caparco, until after the project was complete and the parties met to discuss the matter at Taco Bell.
Celona was not satisfied with how Caparco's workers handled the lead flashing, saying that there are rips or tears to the flashing that were covered in sealant. Celona sought an estimate from another contractor to repair and replace the lead flashing in December 2016. While receiving a quote for the work, as of the time of trial he had not engaged a contractor for that project.
Celona reviewed a number of photos that he had taken at different times during the years 2016 to 2023 showing leaks in the roof. See generally, Exhibit H, at 45-68. At least one of the leaks, on the portico, existed prior to Caparco's team replacing the roof; that leak continued after the roof replacement in 2015. Celona began to observe leaks in 2016 in some spots; he began noticing leaks in the main roof in mid-2022. He attributes the leaks to the use of roof jacks that held the staging. He surmises that the holes in the roof left by the jacks were not filled. He concedes he did not address this issue with Caparco's workers or Caparco at the time.
In 2019, Celona experienced an infiltration of bats in the attic and hired New England Pest Control/Big Blue Bug company to address this. Celona attributes the bats to there being gaps in the roof stemming from the fact that the original shingles on the roof when it was constructed were much thicker than the Landmark Pro shingles called for in the Contract and used by Caparco. Celona did not address with Caparco the issue about the thickness of the shingles that he had selected versus the thickness of the original shingles.
Caparco's crew was at the property for a total of three days. There were different people comprising the crew on the second and third day, and Celona felt the crew was not properly supervised. Yet Celona did not direct the roofers as to what needed to be done and where it needed to be done. He stated that the workers "did what they were supposed to do, which was remove the shingles on the returns and re-shingle them. [He] didn't realize it was a problem until the bats" in approximately 2019. (Tr. 207.)
Celona has concerns about the gutters on the nook being bent. He noticed this several weeks after the roof was replaced by Caparco. The leaks create icicles at the joints that did not previously form before the roof replacement. Celona had the gutters cleaned and the seams sealed in October 2016.
Celona believes that Caparco improperly installed the ridge vents because in 2019 his attic was overheating and did not have proper ventilation. According to Celona, the ridge vents installed by Caparco were too short and of a different material than the original. Celona did not complain to Caparco about how he was replacing the ridge vents at the time the work was being done.
Caparco was not at the job site on the third day of work, September 17, 2015, until the end of the day when he appeared around 5 p.m. and sought payment. At that point, the job had been finished. According to Celona, the parties had a confrontational argument over payment, which Celona describes as quite ugly with yelling and swearing.
The parties agreed to meet at Taco Bell several days later. At that meeting, Celona presented Caparco with numerous photographs that he had taken throughout the project. Caparco disputed or rejected all complaints. Celona did not ask Caparco to return to the job site or to fix any aspect of the project. Celona stated he did not want Caparco or his workers to be anywhere near his roof.
In 2023, Celona engaged Barboza to inspect the roof. Barboza prepared a report with his observations as to the roof constructed by Caparco and his crew. See Exhibit S, at 154-55. Celona decided to replace a portion of the roof, hiring Barboza in 2023 for this work. The front main part of the roof, the portico, and the garage were replaced by Barboza. Barboza later replaced the roof over the nook. Celona still has a list of items that he wants to address with respect to the roof, including replacing the returns that have temporary repairs on them and replacing the back, the garage, and the main roof. Celona has not yet solicited quotes for this work.
Celona was pleased with Barboza's work because "it was a real professional job[.]" (Tr. 238.) Barboza also used a technique that eliminated the roof jacks which avoided holes in the roof. Barboza used all Winterguard/CertainTeed underlay paper, whereas Caparco used two different types of underlay paper. Overall, Barboza's work was satisfactory because "the complete installation was done how [Celona] would have done a roof, and how anybody should do a roof . . . ." Id. at 240.
Throughout his testimony, Celona's consternation as to the techniques used by Caparco's crew and his dim view of Caparco and the workers' "professionalism" was palpable. It was clear that Celona had extensive roofing experience, albeit decades old; though he appeared to have an understanding of the products and techniques used by roofers in current times. Celona presented himself as an earnest and exacting person with strong opinions as to what should be done and how it should be done. The Court would describe Celona vernacularly as "old school." This makes Celona's passivity - and reluctance to address his many issues of concern with Caparco and/or his crew members in real time - puzzling to this Court. It is clear Celona had concerns about many aspects of the project, but did not raise them while the work was ongoing, only days after the fact, at the Taco Bell meeting. Celona testified convincingly as to his observations concerning the work occurring on his property and took all of the photographs admitted into evidence. However, at times, he meandered in his answers or failed to respond to the question posed. His testimony was also sometimes confusing and contradictory. Overall, Celona appeared genuinely distressed about the quality of the workers making up Caparco's crew and their supervision. It appears to this Court that early in the project Celona formed negative impressions about the workers that appear to carry forward to his assessment about their workmanship. His disdain for Caparco was also evident. While many of the alleged defects in the roof arose years after Caparco's project, Celona appears to pin these defects on Caparco, at least, in part, because he believes the worst of Caparco. In contrast, he appreciates and respects Barboza's workmanship because Barboza did the work the same way Celona would.
While the Court allowed both parties to provide layman opinion testimony, because the testimony of the Plaintiff and Defendant is oppositional - with Caparco testifying that the roof project was done properly pursuant to the Contract and Celona testifying as to many deficiencies in the work - and because both parties have an obvious incentive to present their respective positions in the light most favorable to themselves, the need for independent analysis and opinion from an expert in the field of roofing is critical to the Court's decision in this case.
C Testimony of Expert Witness Manuel Barboza
Barboza was Defendant's second witness. Barboza is employed by M. Barboza & Sons Roofing and Sheet Metal Company which provides roofing and sheet metal services. Barboza estimates the company does approximately $2 million a year in residential roofing work. Barboza has been working on residential roofs for forty-two years and is familiar with the different types of residential roofs. He personally has supervised and managed roofing jobs, and he personally inspected Celona's roof. Barboza was presented as an expert witness and admitted as such by the Court without objection by Plaintiff. Barboza confirmed that he prepared the report marked as Exhibit S, at 154-55. He prepared the report at Celona's request in May 2023.
Barboza testified that at the time he inspected Celona's roof it was leaking. Roofs are not supposed to leak so a leaking roof is evidence of a problem; however, every leak does not require a new roof. Barboza observed wet wood in spots, but Barboza did not want to undertake a repair of the roof unless he redid the entire part of the roof with leaks. Barboza was not going to patch and silicone, but would do the whole side of the roof. He would not do patches because then he would become "liable for the roof;" in other words, if the roof leaked after the fact, the leak would be his responsibility regardless of whether it came from his patch or the prior work. (Tr. 286.) Additionally, patching would not be aesthetically pleasing because the shingle colors would be off. For that reason, he opined that a complete replacement of the whole side of the roof would be appropriate.
Barboza did repairs to Celona's roof, including replacing Celona's existing vented drip edge with a new vented drip edge and installing a new ridge vent on the peak of the roof and on the portico. Additionally, he replaced the front roof, the portico, and the front side of the garage. For this work, Barboza charged Celona $14,400 and it was paid.
Barboza is familiar with how to shingle a roof's valleys, using either a weave or a cut. He indicated with architectural shingles you can either weave or cut, and he has done both. Barboza testified that Celona did not want a "California cut" for the valleys, but was hard pressed to describe what a California cut is. He testified "[t]hey don't do it here in Rhode Island" and that he has never used a California cut. (Tr. 290.) The method he uses is to weave the shingles underneath and when coming across another shingle to cut the shingle. He calls it the "Rhode Island cut." Id. Barboza testified that he does not know what type of "cut" is shown in Exhibit H, at 44, which is the cut made by Caparco's workers. He stated, however, that the cut used by Caparco is the same that Barboza used: "we shingled it the same way." (Tr. 300.) When asked whether the water can run smoothly down the valley made by Caparco's cut, Barboza "[did not] have an answer for that[.]" Id. Barboza did opine that he did not believe that the type of valley cut was the problem causing any leaks. He stated, "I don't think it's the cut. It could be a nail. It could be a nail right there at the valley, if the shingles aren't properly staggered. It's the nailing that stops the leak." Id. at 301. Barboza's workers do not use roof jacks, instead they have a harness method. To Barboza, the harness method is better because there are no nail holes.
Barboza testified that it is required to put an ice and water barrier under the valleys; not only do most roofers do that, but it is state law. When Barboza stripped the portions of the roof he repaired on Celona's house, the ice and water barrier put on by Caparco was in place. He noted that the pattern of the shingle placement was "[s]omewhat" irregular. (Tr. 292.) Irregular patterns can be avoided by employing "snap lines." Id. at 293. This is essentially a chalk line that creates a straight line to follow.
Barboza testified that there were gaps on Celona's roof when he inspected the roof and made repairs. Barboza indicated he was aware that Celona had bats and that the bat infestation "[c]ould have been" caused by a gap somewhere in the roof. (Tr. 297.) Barboza testified to observing the lead flashing work performed by Caparco, but does not offer an opinion as to whether or not the workmanship was appropriate.
Barboza stated that he has a specific shingle crew for commercial work and a specific crew for residential work. Half of his workers on the shingle crew are on his payroll. Like Caparco's business model, some of the crew are subcontractors who get paid by 1099. He indicated there is no difference in the direction given to workers who are paid as W-2 employees or by 1099. Barboza confirmed that his workers "follow[] the roofing directions, just install the roof. [He doesn't] have to stand there with them and dictate to them. They know what they're doing." (Tr. 304.) Caparco made similar observations with regard to his crew. Barboza believes that his crew is well trained, as they have been working with him for ten years. Barboza has one foreman for every job. He indicated that when he worked on Celona's house, he was on the job pretty much all day every day, with a foreman.
Barboza told Celona that he did not wish to testify, and he was not paid for his time testifying at trial. He gathered the information that his report was based on from "[h]aving conversations with John [Celona], being in the business my whole life, and just common sense" including "first-hand observations." (Tr. 305.) In terms of such observations, Barboza went into the attic and observed black stains on the front portion of the roof indicating leaks, but could not say how old the black stains were. He also had a conversation with Celona and reviewed the shingled roof. Barboza confirmed that he did go physically on the roof. With regard to the vented drip edge issue, Barboza was not aware that Celona's pre-existing vented drip edge stayed in place and was not replaced or repaired by Caparco with Celona's consent. He may have written his report differently with respect to the drip edge had he known that it was never removed and replaced.
Barboza's report of May 29, 2023 was written before he repaired and replaced portions of Celona's roof. When he began that work, he found that the water and ice barrier, in fact, was in place on the plywood. With respect to the joints, Barboza's report was made based on photographs and personal observations, and he concluded that the joints were "maybe one inch off." (Tr. 309.)
The Court's impression is that Barboza is knowledgeable and competent in the area of roofing. However, and significantly, it appears to this Court that Barboza did not wish to be an "expert witness" and that he avoided providing complete, direct, and reliable expert opinion as to industry standards for roof work, the workmanship performed by Caparco, and any deviations between the two. This is discussed further, infra.
Defendant did not call any further witnesses. Plaintiff did not call any rebuttal witnesses and the parties rested.
IV
Analysis
A
Expert Witness Report and Testimony
The purpose of expert testimony is to aid in the search for the truth. Indeed, helpfulness to the trier of fact is the most critical consideration for the trial justice in determining whether to admit proposed expert testimony. Expert testimony is required to establish any matter that is not obvious to a lay person and thus lies beyond common knowledge. By contrast, expert testimony is not necessary if all the facts and circumstances can be accurately described to the fact finder and if the fact finder is as capable of comprehending and understanding such facts and drawing correct conclusions from them as is an expert. The point of expert testimony is to have a person with relevant specialized knowledge provide an objective opinion as to the claims and defenses.
An expert witness should present testimony that is logical, reliable, detailed, and supported. Further, an expert must testify with some degree of definiteness so as to guard against speculation by the fact finder. It is well settled that when expert testimony is offered to establish a causal relationship between a defendant's act or omission and a plaintiff's injury, such testimony must speak in terms of probabilities rather than possibilities. A fact finder is free to accept or to reject expert testimony in whole or in part or to accord it whatever probative value the fact finder deems appropriate.
Here, the heart of this dispute is the quality of the work performed by Caparco and his crew in the September 2015 roof repair and replacement at Celona's home. This subject matter is beyond the ken of the ordinary lay person and is outside the scope of knowledge of this Court, making expert testimony appropriate and necessary for a determination of the parties' competing claims concerning the workmanship at issue. Celona presented Barboza as his expert witness as to the roof work. Barboza was admitted as an expert by this Court without objection from Caparco.
Barboza submitted a report dated May 29, 2023 in which he makes a number of observations about the roof and several of its components. See Exhibit S, at 154-55. While seemingly critical of various aspects of Caparco's work, Barboza at no time offers an opinion as to the appropriate standard of care or industry standards for roof repair and replacement. Nor does Barboza offer an opinion that Caparco's work failed to meet any particular standard of care or industry standards, except in cursory and conclusionary fashion.
Although absolute certainty is not required, an expert must show that the claimed harm - leaks in the roof due to faulty work - most probably came from the cause alleged - Caparco's faulty work. In this respect, Barboza's report is not an expert report at all because it fails to establish the appropriate standard of care, the deviation from that standard, and the causal link between Caparco's alleged deviation and Celona's alleged injury.
Barboza's trial testimony was even less specific than his report. Although he described how he and his crew would perform roofing tasks, he was not asked, and did not offer, an opinion that Caparco's work breached any particular standard of care. He was not asked, and did not offer, an opinion as to the necessity of performing repair work on the roof nor the reasonableness of charges for the repair work. He did, however, state that he "stand[s] by" his report. (Tr. 303.)
The factual bases for Barboza's opinion, such as it is, must also be examined, and this Court finds the disclosed bases to be inadequate. Barboza's report identifies that it "is based on CertainTeed Products, application and installation manuals, photos and information provided for the above named address [Celona's Lincoln home]." See Exhibit S, at 154. These materials and resources are not otherwise explained or described in the report, nor did Barboza explain or describe these sources in his testimony. He testified, without amplification, that his report is based on "conversations with John [Celona], being in the business my whole life, and just common sense" including "first-hand observations." (Tr. 305.)
Further, during his testimony, Barboza walked back several of his statements in the report. For example, the report is critical of the roof ventilation and replacement of the vented drip edge; but at trial Barboza admitted he was not aware that Caparco did not replace the vented drip edge and that such decision was made with Celona's approval. "Perhaps" he would have written the report differently if he had known the original drip edge remained in place. (Tr. 308.) Also, Barboza commented in the report that the removal and replacement of shingles by Caparco created gaps which allowed an infiltration of bats. He did not identify the gaps that provided the opportunity for infiltration nor that the bat problem occurred nearly four years after Caparco's work. At trial, he refused to opine that "the bat infestation would be as a result of a gap somewhere in the roof;" his only commitment was that it "[c]ould have been." (Tr. 297.)
Additionally, the report notes that Caparco installed the new roof valleys with "a California cut [which is] problematic for the Northeast and [is] not recommended." See Exhibit S, at 154. In his testimony at trial, however, Barboza admits that he had never seen or heard of and did not know what a "California cut" is. (Tr. 290.) Moreover, contrary to the report's statement that it is the "California cut" that is causing leaks in the roof valleys, Barboza testified that he did not believe the type of cut was causing leaks. Instead, he clearly stated: "I don't think it's the cut. It could be a nail. It could be a nail right there at the valley…" (Tr. 301.) If there were nails that Barboza felt were the cause of leaks to the roof, he did not note them in his report, nor did he testify to them at trial.
Further, the report speaks to the use of a water and ice shield. From Barboza's review of photos taken by Celona, he wrote that the shield was not applied in accordance with manufacturer specifications. These specifications are not identified. Moreover, several months after authoring the report, Barboza undertook repair work on the roof. He testified at trial that when he removed the shingles and exposed the water and ice shield, he determined that the shield was properly installed. (Tr. 308.)
It is this Court's strong impression that Barboza was a reluctant witness who did not want to be in the position of expert witness. Indeed, he testified that he told Celona, "I don't want to testify" and that he was not being paid for his time at trial. Id. at 305. Barboza appeared at trial on Celona's behalf nonetheless, but it was apparent to this Court that he was not prepared to offer, and did not offer, a detailed, supportable and, especially, reliable expert opinion as contemplated by the Rhode Island Rules of Evidence. Rather, it seems to this Court that Barboza was complying, unenthusiastically, with a request for assistance from Celona, his customer. Additionally, while some of his observations were made with personal knowledge, it is readily apparent that much of Barboza's report and testimony is based upon information relayed to him only by Celona. Reading between the lines (which should not be required when evaluating an expert's opinion), the Court discerns that Barboza was critical of aspects of Caparco's work, but finds that Barboza fell far short of providing the Court with a reliable and detailed opinion clearly establishing that Caparco failed to meet an established standard of care. He further failed to establish the probability of a causal relationship between Caparco's alleged acts or omissions and Celona's alleged injury.
While this Court can comprehend the simple notion that "roofs are not supposed to leak," Barboza failed to establish to a reasonable degree of certainty that Caparco's workmanship was deficient or failed to meet the specifications of the Contract or fell short of industry standards and practices. Barboza's report and testimony are of limited value to this Court as the fact finder.
B Complaint Count I: Breach of Contract and Counterclaim Count I: Breach of Contract
Both Caparco's Complaint and Celona's Counterclaim allege that the opposing party breached the Contract. Caparco seeks judgment for the outstanding balance owed on the Contract. Celona seeks to be relieved of that payment obligation and asks for judgment for the expense of repairing and/or replacing Caparco's allegedly deficient work.
To succeed on a breach of contract claim under Rhode Island law, a plaintiff must prove that (1) an agreement existed between the parties; (2) the defendant breached the agreement; and (3) the breach caused the plaintiff to suffer damages. See Petrarca v. Fidelity & Casualty Insurance Co., 884 A.2d 406, 410 (R.I. 2005). The question of whether a contract exists is a question of law. See Fogarty v. Palumbo, 163 A.3d 526, 539 (R.I. 2017). In this case, there is no contention regarding the existence of a contract. Both parties acknowledge that they willingly entered into the Contract. See Exhibit A. Whether either Caparco or Celona materially breached the Contract, causing damages, is for the Court sitting as the trier of fact in this case to decide.
The Rhode Island Supreme Court "adhere[s] to the rule of interpretation that when considering 'whether a contract is clear and unambiguous, the document must be viewed in its entirety and its language be given its plain, ordinary and usual meaning.'" Garden City Treatment Center, Inc. v. Coordinated Health Partners, Inc., 852 A.2d 535, 542 (R.I. 2004) (internal quotation omitted). Here, there is no dispute as to the terms of the Contract entered on August 17, 2015. See Exhibit A. Caparco agreed to repair and replace the roof at Celona's home in accordance with the specifications set out in the Contract and using the brand and type of shingle specified in the Contract. See id. Celona agreed to pay Caparco $19,300 for this work and tendered a $5,000 deposit. Id. Caparco agreed that "[a]ll work [is] to be completed in a workmanlike manner according to [the] specifications submitted, per standard practices." Id.
There is no dispute that Caparco completed the work called for by the Contract and that Celona has refused to pay the contract balance of $14,300. As justification, Celona's central contention is that deficiencies in Caparco's work constitute a material breach by Caparco and excuse Celona's obligation to pay this balance. He asserts a Counterclaim alleging that Caparco is the party in breach of the Contract, along with various affirmative defenses concerning the alleged defective work. Celona also raises affirmative defenses and makes claims of fraud and misrepresentation, which the Court will address infra.
In Rhode Island, a breach of a contract may occur by nonperformance. Further, a promisor commits a breach of contract when he fails, without justification, to perform when promised performance is due. See Restatement (Second) Contracts § 236. A material breach is defined as a failure to perform a substantial part of a contract or one or more of its essential terms or conditions. See Women's Development Corporation v. City of Central Falls, 764 A.2d 151 (R.I. 2001). Rhode Island law provides that '"as a general rule there is implied in every contract for work or services a duty to perform it skillfully, carefully, and diligently and in a workmanlike manner, and a negligent failure to observe any of those conditions is a tort as well as a breach of contract."' See Nichols v. R.R. Beaufort & Associates, Inc., 727 A.2d 174, 179 (R.I. 1999) (quoting Davis v. New England Pest Control Co., 576 A.2d 1240, 1242 (R.I. 1990)). Further, it is the contractor's duty to follow manufacturer's instructions "skillfully, carefully, and diligently and in a workmanlike manner" when performing the agreed upon work. Nichols, 727 A.2d at 179.
A party's duty to perform under a contract is excused if the purpose underlying the contract is totally and unforeseeably destroyed. See City of Warwick v. Boeng Corp., 472 A.2d 1214, 1219 (R.I. 1984). A '"party's material breach of contract justifies the nonbreaching party's subsequent nonperformance of its contractual obligations."' See Premier Land Development v. Kishfy, 287 A.3d 19, 23-24 (R.I. 2023) (quoting Machado v. Narragansett Bay Insurance Company, 252 A.3d 1206, 1210 (R.I. 2021)).
Celona asserts that the shortcomings in Caparco's performance under the Contract can be summarized as follows:
"(1) Shingle pattern irregularities and misalignment;
"(2) Caparco's workers smoking marijuana at the Property;
"(3) Failure to replace the vented drip edge;
"(4) Improper installation of underlayment paper;
"(5) Caparco's inadequate use of the California cut method;
"(6) Improper return installation causing pest infestation;
"(7) Extreme rips and gaps in lead flashing;
"(8) Numerous leaks in the roof; . . .
"(9) Damage to the gutters; [and]
"(10) Improper and inadequate ridge installation vent[.]" See Celona's Post-Trial Mem. 17.
Celona insists that the trial testimony and evidence overwhelmingly show that Caparco failed to perform and work in a workmanlike fashion and that such poor performance is a material breach of the Contract. Celona argues that as a result of Caparco's breach, he is excused from paying the balance of $14,300; further, he claims that Caparco is liable to him for damages resulting from the breach. This Court disagrees.
It is apparent that Celona is extremely disappointed with the work performed by Caparco on his roof. In some ways, this Court understands this as it appears that there were aspects to Caparco's work that could have been better. This is not the standard, however. Celona bears the burden of proving by a preponderance of the evidence that Caparco breached the Contract by performing work in an unworkmanlike manner, that Caparco failed to follow the specifications of the Contract, and that Caparco's work did not conform to standard practices. See Exhibit A. This Court does not subscribe to the view that "there were leaks" after Caparco's work was completed, ergo, Caparco's work was materially deficient and in breach of the Contract. Despite Celona's presentation of a supposed expert witness, Barboza, this Court finds that Celona simply did not meet his burden of showing that Caparco's workmanship amounts to a breach of contract nor that Celona is excused from his payment obligation under the Contract.
For example, reviewing Celona's list of alleged shortcomings noted above, the Court finds: (1) shingle pattern irregularities and misalignment were not proved to be so deficient as to require replacement or repair, though perhaps they could have been more aesthetically pleasing; (2) workers smoking marijuana was neither proven nor shown to have any effect on the quality of the workmanship - what was demonstrated, rather, was Celona's dissatisfaction with the appearance, work habits, and professionalism of the workers; (3) the failure to replace the vented drip edge was shown not to be a deficiency but a decision made jointly by Celona and Caparco; (4) while one worker may have begun to improperly install the underlayment paper, that was corrected with Celona's intervention, and Barboza confirmed that the underlayment was fully installed; (5) it has not been demonstrated that the valley cut utilized by Caparco is improper or unworkmanlike - though denominated a "California cut" no witness, including Barboza, was able to define or describe what a "California cut" is; in fact, Barboza testified that his crew used the same cut format and technique as Caparco's and opined that the cut of the valleys is not the cause of leaks; (6) the alleged improper return installation "could have" created gaps to allow bat infiltration, as could the thickness of the shingles that Celona selected, but there was insufficient evidence to prove that either was the case; (7) rips and gaps in the lead flashing were noted, but no clear and direct opinion was provided that such caused leaks, much less which leaks (where and when); (8) while the roof experienced leaks after Caparco's work (in some cases many years after), insufficient evidence as to the causes of the leaks was offered; (9) damage to the gutters was noted but insufficiently addressed; and (10) improper and inadequate installation of ridge vents was alleged but not proven.
As discussed above, the claimed deficiencies in Caparco's work require the independent expert opinion of someone with specialized knowledge about roofs and roof repair. While Celona presented a witness with the necessary qualifications, Barboza, he failed to provide the Court with reliable, detailed, supported, and clear expert opinion that Caparco breached an appropriate standard of care and that the work caused material defects to the roof. Accordingly, the Court finds that Celona failed to prove a breach of the Contract by Celona.
As an aside, the Court is baffled as to why Celona did not immediately, repeatedly, and forcefully confront Caparco's crew and Caparco himself as to the many inadequacies that he alleges in this litigation. Intervention by Celona, in real time, caused Caparco's workers to course-correct when it came to installing the underlayment/Winterguard paper, and prompted a quick response to clean up the shingles in the spruce tree. Yet Celona admitted to failing to raise other issues of concern at the time those concerns arose, or at the end or beginning of each workday, or at any time prior to the meeting at Taco Bell which was held the week after Caparco's crew finished the work. Caparco testified that he was under the impression, at least until Celona refused to pay the balance owed, that Celona was satisfied with the work.
On the other hand, it is undisputed that Celona agreed to pay Caparco a total of $19,300 for a new roof, that Caparco put on a new roof, and that Celona has failed to pay the Contract balance of $14,300. Accordingly, judgment shall enter for Caparco as Plaintiff on Count I of the Complaint and shall also enter for Caparco as defendant-in-counterclaim on Count I of the Counterclaim.
C Complaint Count II: Unjust Enrichment and Counterclaim Count IV: Unjust Enrichment
Both parties assert the claim of Unjust Enrichment against the other. Caparco alleges that Celona is unjustly enriched because he received the benefit of $19,300 in roofing materials and roof work without having provided complete compensation to Caparco. For his part, Celona asserts that Caparco has benefited from receiving the $5,000 deposit paid by Celona without having performed his obligations under the Contract. Both parties assert that the retention by the other of the materials/labor (Celona) and the deposit (Caparco) is inequitable.
To recover on an unjust enrichment claim, 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. See Bouchard v. Price, 694 A.2d 670, 673 (R.I. 1997)). As a result, '"unjust enrichment focuses on the propriety of a payee or beneficiary retaining funds or a benefit . . . ."' Process Engineers & Constructors, Inc. v. DiGregorio, Inc., 93 A.3d 1047, 1052 (R.I. 2014) (quoting Parnoff v. Yuille, 57 A.3d 349, 355 n.7 (Conn. 2012)).
For the reasons set forth above, this Court concludes that Caparco conferred a benefit upon Celona by providing roof repair and replacement materials and services - which have not been proven to be materially deficient and/or in contravention of the Contract's specifications and/or industry standards and practices. Payment of the balance is therefore not excused, and it would be inequitable for Celona to retain the benefit of Caparco's work without payment of the agreed-upon price. Thus, judgment shall enter for Caparco as Plaintiff on Count II of the Complaint and shall also enter for Caparco as defendant-in-counterclaim on Count IV of the Counterclaim.
D Celona's Affirmative Defenses
Caparco filed a Reply to Celona's Counterclaim denying all allegations, but did not assert any affirmative defenses.
Celona's affirmative defenses to Caparco's contract claims in the Complaint do not alter these conclusions.
"The doctrine of unclean hands constitutes an affirmative defense." Kingston Hill Academy v. Chariho Regional School Dist., 21 A.3d 264, 270 (R.I. 2011). "However, 'it is only when the plaintiff's improper conduct is the source, or part of the source, of his equitable claim, that he is to be barred because of this bad conduct."' Id. (internal quotation omitted). "'What is material is not that the plaintiff's hands are dirty, but that he dirties them in acquiring the right he now asserts.'" Id. (quoting Rodriques v. Santos, 466 A.2d 306, 311 (R.I. 1983)).
Here, Caparco asserts a claim in equity for Unjust Enrichment so the Court considers this affirmative defense in relation to Caparco's Count II. Celona emphasizes that it is Caparco's failure to be on the job site full-time as the "major problem," along with his defective work, neglect, and lack of care. Celona's Post-Trial Mem. 21.
As noted previously, this Court finds that Celona failed to establish any particular standard of care relative to roofing, including any standards with respect to supervision on a roof job site. Accordingly, the Court does not find that Caparco deviated from any particular standard of care in relation to his supervision of his roofing crew working at Celona's house. Trial testimony established that Caparco has a dedicated roofing crew, who had worked with him on roofing projects for years, at least a decade, and that Caparco visited the property at various times throughout the three-day project, in addition to conferring with Celona by phone. Moreover, Barboza testified that while he typically is on the job site for the duration of a project, little oversight is needed for his crew because, like Caparco's crew, the workers have been with him for many years and know what to do. Celona did not demonstrate to this Court's satisfaction that Caparco engaged in bad conduct justifying application of the unclean hands doctrine.
Celona additionally asserts the affirmative defense of failure to mitigate. "The affirmative defense of mitigation of damages is often referred to as the 'doctrine of avoidable consequences.'" McFarland v. Brier, 769 A.2d 605, 610 (R.I. 2001) (internal quotation omitted). "The law in Rhode Island is well settled that a party claiming injury 'has a duty to exercise reasonable diligence and ordinary care in attempting to minimize its damages.'" Id. (internal quotation omitted). In his Post-Trial Memorandum, Celona argues that "Caparco wanted no part of the Contract work when Celona called him asking him to address the issue; Caparco's phone call response was no more than five minutes, as he seemingly wanted no part in honoring the agreement." Celona's Post-Trial Mem. 22.
This argument ignores the testimony of both Celona and Caparco that approximately a week after the roof was completed, both men met at Taco Bell where they reviewed photographs taken by Celona throughout the three-day project and discussed the work. This meeting took place months before Caparco initiated this lawsuit. While discussions toward resolving Caparco's claim for payment were unsuccessful, it cannot be said that Caparco failed to exercise reasonable diligence to mitigate his claim for damages for the Contract balance. Further, Celona specifically testified that he did not want Caparco to return to the property to do any additional work, even if Caparco acceded to any of the defects claimed by Celona. The defense of failure to mitigate was not demonstrated.
Celona further asserts affirmative defenses relative to the quality of the work performed by Caparco on the roof, including breach of warranty, defective workmanship, and failure to perform in accordance with industry practices. These defenses are not discussed in Celona's Post-Trial Memorandum. For the reasons set forth, supra, this Court finds that Celona failed to prove that Caparco's work breached any warranty or was defective or failed to conform to industry standards; therefore these defenses fail.
Finally, Celona pleads the affirmative defense of "offset." This defense is not mentioned in Celona's Post-Trial Memorandum. In light of this Court's rulings, this defense has no impact on Caparco's contract claims.
E
Counterclaim Count II: Misrepresentation and Counterclaim Count III: Fraud in the Inducement
Celona alleges that Caparco is liable to him for misrepresentation and/or fraud in the inducement. These claims largely concern Celona's position that Caparco misrepresented the status of his crew, i.e., whether they were direct employees of Caparco's company (W-2 employees) or subcontractors (1099 employees) and, relatedly, that "he" (meaning Caparco) would physically perform the work, not subcontractors.
To succeed on his claim for misrepresentation, Celona must prove four elements:
'"(1) a misrepresentation of a material fact; (2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity or must make the representation under circumstances in which he [or she] ought to have known of its falsity; (3) the representor must intend the representation to induce another to act on it; and (4) injury must
result to the party acting in justifiable reliance on the misrepresentation."' See Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446, 453 (R.I. 2013) (quoting Manchester v. Pereira, 926 A.2d 1005, 1012 (R.I. 2007) (and also quoting Mallette v. Children's Friend & Service, 661 A.2d 67, 69 (R.I. 1995)).
Similarly, to prevail on fraud in the inducement, Celona must show: (1) a false representation; (2) the representor's knowledge of its falsity; (3) an intent to induce reliance; and (4) reliance upon such representation. See Women's Development Corp., 764 A.2d at 161.
The central thesis of Celona's claims is that Caparco lied about having "his own men." As demonstrated by Caparco's testimony, the workers in question - whether given a W-2 or 1099 at the end of the year - were not random roofers, but were an established crew with whom Caparco had worked for at least ten years. Indeed, it was revealed that Barboza uses essentially the same business model as Caparco concerning the use of W-2 and 1099 workers. Also, Barboza's roofing crew had worked with Barboza for roughly the same amount of time as Caparco's workers had been with him. It is further clear from the testimony that the legal niceties around W-2 employees and 1099 contractors were not material to Celona. Rather, his concern was that the crew be experienced, known to Caparco, and subject to his supervision. Caparco's testimony showed that to be the case. For sure, Celona disapproved of the dress, work habits, and techniques used by Caparco's crew, but regardless of Celona's subjective interpretation or understanding of the employment status of Caparco's workers, statement by Caparco concerning the status of his workers do not give rise to cognizable claims for fraud or misrepresentation. In short, Caparco represented to Celona to the effect that he had "his own men." That Caparco had a dedicated crew of workers who were known to him for many years and subject to his supervision was established by the evidence to, in fact, be the case.
Likewise, there was no evidence presented that Caparco promised to do the roof work himself nor was there evidence that industry standards call for Caparco to be present on site for the entirety of the project. The evidence instead demonstrated that Caparco was on site at various times throughout the project and was reachable by phone; further, that Brunelle, Caparco's foreman, was present for much, but perhaps not all, of the project.
For these reasons, this Court finds that Celona failed to prove by a preponderance of the evidence that Caparco made a misrepresentation or a fraudulent statement as to a material fact in order to induce Celona to enter into the Contract. For the same reasons, Celona's affirmative defenses to the Complaint asserting misrepresentation and fraud are unavailing. The Court will enter judgment for Caparco as defendant-in-counterclaim as to Counts II and III of the Counterclaim.
V Conclusion
In closing, this Court recognizes that Celona is disappointed with Caparco's roofing crew and the level of personal attention Caparco gave to the project. Disappointment with the perceived professionalism or lack thereof on the part of Caparco or his men, however, is not the standard. For the reasons set forth herein, the Court concludes that Celona failed to meet his burden of proof as to the claims made in his Counterclaim and the affirmative defenses asserted in response to Caparco's Complaint. The absence of expert opinion supporting Celona's claims that Caparco's work failed the specifications of the Contract, failed to comport with industry standards, and proximately caused the leakage in the roof is a substantial factor in the Court reaching this conclusion. Conversely, the Court finds that Caparco met his burden of proof with respect to the claims made in his Complaint.
Judgment will therefore enter for Caparco on Counts I and II of the Complaint and for Caparco on Counts I - IV of the Counterclaim.
Plaintiff's counsel will prepare an appropriate judgment consistent with this Decision and submit it to this Court after conferring with Defendant's counsel as to the judgment form.