Supreme Court
No. 2023-311-Appeal. (PC 20-3773)
Americo Mallozzi aka Americo : Mallozzi & Associates
v. :
Warwick Wings, LLC. :
NOTICE: This opinion is subject to formal revision before publication in the Rhode Island Reporter. Readers are requested to notify the Opinion Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence, Rhode Island 02903, at Telephone (401) 222-3258 or Email opinionanalyst@courts.ri.gov, of any typographical or other formal errors in order that corrections may be made before the opinion is published. Supreme Court
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Chief Justice Suttell, for the Court. The defendant, Warwick Wings, LLC,
appeals from a Superior Court judgment in favor of the plaintiff, Americo Mallozzi
aka Americo Mallozzi & Associates. This case came before the Supreme Court
pursuant to an order directing the parties to appear and show cause why the issues
raised in this appeal should not be summarily decided. After considering the parties’
written and oral submissions and reviewing the record, we conclude that cause has
not been shown and that this case may be decided without further briefing or
argument. For the reasons set forth herein, we affirm the judgment of the Superior
Court.
-1- I
Facts and Travel
Warwick Wings, LLC (Warwick Wings or defendant), is a Rhode Island
limited liability company with the fictitious name of Hooters of Warwick. Hooters
of Warwick is a restaurant belonging to the Hooters of America franchise. In 2015,
Hooters of Warwick closed due to snow and ice damage that extended to the roof
and the underlying trusses. Odeh Engineers, Inc. (Odeh), a structural engineering
firm, was hired by defendant to evaluate the damage. Odeh met with the City of
Warwick building inspector, Alfred DeCorte (the building inspector), and with
Americo Mallozzi (plaintiff). Soon thereafter, Odeh issued a report to defendant,
concluding that the roof trusses could not be repaired in place and would need to be
fully rebuilt, which would require a full removal of the old roof and the installation
of a new roof.
In June 2015, defendant’s landlord engaged Nadeau Corporation (Nadeau), a
construction management firm, to provide an estimate of the costs to repair the
building and review the work to be completed. Nadeau estimated the repair costs to
be around $1,250,000. The defendant sent a letter to the building inspector noting
the findings of the structural engineers. The building inspector replied that, based
on his own knowledge and experience, he agreed with Odeh that the trusses could
not be repaired in place and would require a full removal and rebuild. Based on the
-2- reports of Odeh and Nadeau as well as the agreement of the building inspector,
defendant sent notice to its insurance provider, Liberty Mutual Insurance Company
(Liberty). In this notice, defendant indicated that it would like to begin demolition
work “as quickly as possible.” Liberty, however, conducted its own inspection of
the building. Liberty deemed that the trusses could be repaired in place and that the
project would not require the full removal of the roof and the full rebuild of the
trusses.
Meanwhile, defendant entered into a contract in October 2015 with plaintiff
to provide architectural plans for the repairs based on Odeh’s and Nadeau’s reports.
This contract provided that plaintiff’s fees for his architectural services would be 11
percent of the final construction cost, or $137,500 based on Nadeau’s estimated
repair cost of $1,250,000. This fee was referred to in the contract as a “fix[ed] lump
sum fee” which would be “11% of the final construction cost.” According to the
contract, the fee was to be paid in “progress payments” payable during various stages
of the design and construction of the project: 15 percent for the schematic design
phase, 20 percent for the design development phase, 40 percent for the contract
documents phase, 5 percent for the bidding phase, and the remaining 20 percent for
the construction phase. Significantly, the contract provided that the fee was “based
upon the agreed to scope of work of the project” and acknowledged that the fee “may
increase or decrease depending on the final cost.”
-3- Between January 2016 and April 2016, plaintiff completed and delivered
several sets of architectural plans to defendant. In April 2016, plaintiff completed
the final plans for the bidding phase and delivered them to defendant. The following
month, plaintiff sought payment for the first four phases, stating that the total amount
due at that time was $110,000. By November 2016, defendant had rendered two
payments to plaintiff, totaling only $46,848.55. The defendant thereafter remitted
no further payments to plaintiff. The plaintiff continued to send invoices and
payment reminders to defendant. The defendant contends that it terminated the
contract with plaintiff in a phone call in December 2018, although there is no record
of this alleged termination.
Meanwhile, in February 2017, defendant filed an action against Liberty
concerning the scope of the work necessary to repair the building. The case was
filed in Kent County Superior Court but removed to the United States District Court
for the District of Rhode Island. The defendant used the architectural plans prepared
by plaintiff in the litigation against Liberty. Liberty used engineering reports and
estimates generated by its own engineers in rebuttal. According to Phillip Moran,
the CEO of Attila Wings, LLC, a consulting company that Warwick Wings had hired
to facilitate operations, defendant and Liberty engaged in an appraisal process as
part of the federal litigation. Mr. Moran testified that the judge accepted the result
-4- of the appraisal and ruled that the cost to rehabilitate the building was $450,000.1
The parties ultimately agreed to settle for $785,000, which figure, according to Mr.
Moran, included lost business income.
The parties disagree as to whether this settlement agreement included the fees
to be paid to plaintiff. The plaintiff’s full contract fees for 80 percent completion,
or $110,000, were, however, included in the proof-of-loss statement that defendant
submitted to Liberty prior to reaching a settlement. According to Mr. Moran, the
difference between the $785,000 settlement and the $453,000 cost to repair the
building is attributable to lost business income during the four years that the
restaurant was closed. What is clear, however, is that Liberty issued the full
settlement payment to defendant in May 2019, but defendant made no further
payments to plaintiff beyond the $46,848.55 it had paid three years earlier, in
November 2016.
Based on the appraisal and settlement in the case against Liberty, defendant
moved forward with construction plans on the revised assumption that the roof could
now be repaired in place. The building inspector also approved the new plans.
Daniel Wooden, vice president of operations for Attila Wings and an owner of
Warwick Wings, testified that plaintiff was notified in a telephone call that his
1 In his testimony, Mr. Moran referred to the appraisal figure alternately as $450,000 and $453,000. It would appear that the actual figure was $453,258.45.
-5- services were being terminated. Thereupon, defendant hired another architect who
drew up a completely new set of plans.
Finally, in May 2020, after receiving no additional payments or updates from
defendant, plaintiff filed suit against defendant in Providence County Superior
Court, seeking $63,149.63 in damages, or the remaining amount allegedly due under
the contract through the bidding phase. In the meantime, defendant moved forward
with the construction plans prepared by the new architect and rehabilitated the
building for the total price of “$453,000.”
In his complaint, plaintiff alleged one count of breach of contract and one
count of unjust enrichment. In its answer, defendant denied both counts, asserted
five affirmative defenses, and counterclaimed for unjust enrichment. The parties
waived a jury trial, and a justice of the Superior Court presided over a one-day bench
trial. Three witnesses testified at the trial: Daniel Wooden; Phillip Moran; and
plaintiff.
Mr. Wooden testified that Attila Wings was a consulting company that was
hired by defendant to oversee the management of Warwick Wings and that he was
familiar with the contract with plaintiff. He acknowledged that the contract referred
to a lump-sum fee. However, Mr. Wooden believed the lump sum was to be based
on the actual construction cost of the building as it was completed and not the budget
for the original scope of work on which the contract with plaintiff was predicated.
-6- He conceded on direct examination that he never terminated plaintiff in writing but
said that he had nonetheless terminated plaintiff in a December 2018 phone call. He
further testified that defendant never used the plans prepared by plaintiff because the
scope of work for the project changed.
Mr. Moran testified that he was aware that Mr. Wooden had terminated
plaintiff. Mr. Moran testified that, as a result of the suit with Liberty, he had “lost
faith” in plaintiff’s abilities to complete the plans and that they decided to terminate
plaintiff. Additionally, he testified that he believed plaintiff had never completed
the bidding phase or even the contract documents phase. He was also adamant that
the difference between the final settlement amount and the final project cost was
only for “lost business income.”
After the conclusion of the testimony, the trial justice issued a written
decision, finding for plaintiff on his breach-of-contract claim and dismissing both
parties’ claims for unjust enrichment. In his decision, the trial justice determined
that Odeh had prepared an engineering report concluding that the trusses could not
be repaired in place and that the building inspector had agreed with that conclusion.
Furthermore, the trial justice reasoned that plaintiff premised his architectural bids
on the engineering plans of Nadeau Corporation, which appeared to be consistent
with the plans of Odeh Engineering, both of which called for the full replacement of
the trusses. He further found that plaintiff relied on the “engineers’ directives * * *
-7- which required the installation of new roof trusses.” The trial justice concluded that
defendant was aware plaintiff was following the engineers’ specifications and never
told him to do otherwise. Nor did defendant ever ask plaintiff to retrofit the plans
after the suit with Liberty. The trial justice additionally noted that he could not find
that plaintiff’s contract had ever been terminated.
The trial justice further found that the testimony of Mr. Wooden and Mr.
Moran lacked credibility. He noted that it appeared that Mr. Wooden and Mr. Moran
blamed plaintiff for the “engineering differences” and that their “grudge * * *
skewed not only the weight of their testimony, but their perception of who * * * was
to blame.” Additionally, despite defendant’s contentions, the trial justice reasoned
that the settlement with Liberty “presumably” did include the bill for plaintiff.
Based on the copies of the architectural plans in the record that plaintiff had
submitted to defendant in April 2016, the trial justice determined that plaintiff had
completed 80 percent of the phases outlined in the contract: the schematic design
phase, the design development phase, the contract documents phase, and the bidding
phase. Even though, as the trial justice noted, the plans had not actually been used
in the bidding process by defendant, the plans had nonetheless been completed
through that phase. As such, the trial justice found that defendant had breached the
contract with plaintiff and that there had been no cure.
-8- The trial justice determined that the contract was indeed for a lump sum of
$137,500 and that plaintiff should be entitled to damages in light of his completion
of 80 percent of the contract. Therefore, the trial justice concluded that plaintiff was
entitled to 80 percent of his total contract fee, or $110,000, minus the payments of
$46,848.55 already rendered to him. Thus, he awarded plaintiff damages in the
amount of $63,151.45.
On the issue of plaintiff’s claim for unjust enrichment, the trial justice found
that, because there was a binding and enforceable contract, unjust enrichment did
not apply. The trial justice also denied defendant’s counterclaim for unjust
enrichment, finding that defendant materially breached the contract while plaintiff
had proceeded in good faith. Finally, the trial justice ruled that attorneys’ fees could
not be determined until the end of litigation, and he gave the parties thirty days to
file their motions and supporting documentation.
After the decision was issued, defendant filed a premature, but valid, notice
of appeal. See Article I, Rule 4 of the Supreme Court Rules of Appellate Procedure.
The plaintiff thereafter filed a motion for attorneys’ fees with supporting
documentation. After a hearing on the matter of attorneys’ fees, the trial justice
granted the motion and issued a judgment awarding plaintiff contract damages in the
amount of $63,151.45 and attorneys’ fees in the amount of $74,777.74.
-9- II
Standard of Review
This Court has held “that the findings of fact of a trial justice, sitting without
a jury, will be given great weight and will not be disturbed absent a showing that the
trial justice overlooked or misconceived material evidence or was otherwise clearly
wrong.” Luis v. Gaugler, 185 A.3d 497, 502 (R.I. 2018) (quoting Fravala v. City of
Cranston ex rel. Baron, 996 A.2d 696, 704 (R.I. 2010)). Specifically,
“[t]he existence of damages, including their certainty, is a question for the factfinder
to decide.” Management Capital, L.L.C. v. F.A.F., Inc., 209 A.3d 1162, 1179 (R.I.
2019) (quoting Fogarty v. Palumbo, 163 A.3d 526, 537 (R.I. 2017)).
Additionally, “[t]he 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)). “A trial justice’s findings on questions of law, however,
are reviewed de novo.” Estrella v. Janney Montgomery Scott LLC, 296 A.3d 97, 106
(R.I. 2023) (quoting Town Houses at Bonnet Shores Condominium Association v.
Langlois, 45 A.3d 577, 581 (R.I. 2012)).
- 10 - III
Discussion
Contract Interpretation and Performance
On appeal, defendant raises six issues. Two of defendant’s claims of error
turn on the trial justice’s interpretation of the contract and the parties’ performance
under the contract. First, defendant asserts that the trial justice erred in finding that
the contract calls for a lump-sum fee rather than “a contingent fee.” Specifically,
defendant contends that the contract is ambiguous and should be interpreted to call
for a fee that is “contingent upon the final construction cost.” That contingency
payment, defendant argues, should be based on the actual cost of repairing the roof
as completed under the revised project design rather than on the estimated cost of
construction as contemplated in its contract with plaintiff.
Because this argument relies on a determination that the contract is
ambiguous, we address that threshold matter first. “The determination of whether a
contract’s terms are ambiguous is a question of law to be decided by the court.” JPL
Livery Services, Inc. v. Rhode Island Department of Administration, 88 A.3d 1134,
1142 (R.I. 2014). We review questions of law de novo. Id. A contractual term is
ambiguous when it is “reasonably and clearly susceptible to more than one rational
interpretation.” Miller v. Saunders, 80 A.3d 44, 49 (R.I. 2013) (quoting DiPaola v.
- 11 - DiPaola, 16 A.3d 571, 576 (R.I. 2011)). Conversely, “[w]hen there is only one
reasonable interpretation of a contract, the contract is deemed
unambiguous.” Roadepot, LLC v. Home Depot, U.S.A., Inc., 163 A.3d 513, 519 (R.I.
2017).
When determining whether a contract is ambiguous, we read the contract in
its entirety and “give words their plain, ordinary, and usual meaning.” JPL Livery
Services, Inc., 88 A.3d at 1142 (quoting Furtado v. Goncalves, 63 A.3d 533, 537
(R.I. 2013)). The contract between plaintiff and defendant states that the
construction budget is “[b]ased on the preliminary budget of Nadeau Corporation in
the amount of $1,250,000.00. This budget may be increased or decreased once the
architectural and engineering plans and specifications are finalized. This is a starting
point and good step to get this job going.”
The contract then provides for plaintiff’s fees:
“Based on our present understanding[] of the project[,] [plaintiff] will charge the following fees to complete the scope of work described in this proposal. The Architectural and Engineering total fee will be 11% of the final construction cost. 11% of $1,250,000 equals $137,500 which may increase or decrease depending on the final cost.”
It is clear from the contract language that plaintiff’s fee as set forth in the contract,
$137,500, was not a firm figure. Rather it was a percentage of the final construction
cost of what was expected to be a $1,250,000 project. It is also clear, however, that
- 12 - the scope of work contemplated in the contract documents called for the removal of
the trusses and the installation of a new roof.
Notably, “a reviewing court should not seek out ambiguity where there is
none.” Roadepot, 163 A.3d at 519. Instead, a court should consider “whether the
language has only one reasonable meaning when construed in an ordinary, common
sense manner.” Sturbridge Home Builders, Inc. v. Downing Seaport, Inc., 890 A.2d
58, 63 (R.I. 2005) (deletion and emphasis omitted) (quoting Textron, Inc. v. Aetna
Casualty and Surety Co., 638 A.2d 537, 541 (R.I. 1994)).
We think the contract terms here are quite clear. Although the final payment
may fluctuate somewhat depending on the “final construction cost,” the periodic
“progress payments” are calculated as a percentage of the basic fee of $137,500.
Additionally, the contract explicitly states that the contract fee is to be a “lump sum”
payment. As the trial justice observed:
“[T]he contract was for a fixed sum of $137,500, with payments to be made periodically, according to what work was completed. [The plaintiff] was to be paid a fixed sum for the entire project, a set lump sum, which will be paid in pre-established increments. * * * Hence, the value of the contract was $137,500, to be paid periodically.”
Additionally, the contract refers to that fee as being based on the estimate by Nadeau
and the specific architectural design plans drafted for the project for which that
estimate was prepared. The “common sense” interpretation is that the payment was
intended to be a sum equal to 11 percent of the construction cost for the project for
- 13 - which plaintiff designed his architectural plans and for which this contract was
drafted. It is illogical to suggest that the fee should be based on an entirely different
scope of work completed with a different architect that was not contemplated by any
of the parties at the time this contract was formed.
Having determined that the contract is not ambiguous, we turn to defendant’s
claim that the trial justice erred in determining that the fee was based on the
estimated final construction cost in the contract. As we have previously explained,
“[i]n situations in which the language of a contractual agreement is plain and
unambiguous, its meaning should be determined without reference to extrinsic facts
or aids.” Botelho v. City of Pawtucket School Department, 130 A.3d 172, 176-
77 (R.I. 2016) (quoting JPL Livery Services, Inc., 88 A.3d at 1142). The terms of
the contract are not ambiguous, and, as such, this contract should be interpreted
independent of facts arising from defendant’s suit with Liberty and the changes to
the scope of work that resulted from that suit. This is especially true given that the
scope of work for the second project was not in the contemplation of the parties at
the time the contract was formed. We are satisfied that the trial justice did not err in
finding that the contract called for a lump-sum payment of 11 percent of $1,250,000,
or $137,500.
Next, defendant claims that the trial justice erred in finding that defendant had
not terminated plaintiff and that defendant had breached the contract. The defendant
- 14 - implies that, if it had terminated plaintiff for cause, there would have been no breach.
The defendant points to the fact that, at trial, both Mr. Wooden and Mr. Moran
testified that plaintiff had in fact been terminated and that there was no testimony
presented to the contrary. “[W]e accord great weight to a trial justice’s
determinations of credibility, which, inherently, are the functions of the trial court
and not the functions of the appellate court.” JPL Livery Services, Inc., 88 A.3d at
1142 (quoting Cullen v. Tarini, 15 A.3d 968, 976 (R.I. 2011)).
The trial justice found that Mr. Wooden’s and Mr. Moran’s testimony lacked
credibility, especially on the point of their alleged termination of plaintiff. He found
that Mr. Wooden was uncooperative when asked about plaintiff’s termination and
that Mr. Wooden purposefully derailed or distracted counsel in his questioning. The
trial justice also noted that Mr. Moran appeared to be “clearly upset” with the
plaintiff and “blamed [plaintiff] for the lower appraisal award” in the suit with
Liberty. The trial justice reasoned that this grudge that the witnesses held against
plaintiff impaired their credibility even further. Additionally, the trial justice noted
that “it was odd for these businesspersons not to have any documentation and limited
recollection of their key conversations” about terminating plaintiff. As a result, the
trial justice found that defendant “fail[ed] to establish that the contract was
unilaterally ‘cancelled’ but it also failed to show any cause” for the alleged
termination. We cannot say that the trial justice was clearly erroneous in his
- 15 - interpretation of the testimony presented or the weight he accredited to that
testimony when he found there was no valid termination.
Additionally, and as the trial justice noted, even if plaintiff had been
terminated, this does not mean that plaintiff’s termination was justified. The only
rationale Mr. Wooden and Mr. Moran gave for allegedly firing plaintiff was that
they no longer trusted him after the suit with Liberty. But the trial justice found,
based on the evidence presented to him, that it was “reasonable for the architect to
follow the engineers’ directives and [it] may have been negligent if [he] failed to do
so.” The plaintiff prepared the plans as he was directed according to the contract
and delivered them to defendant in April 2016. The defendant then ceased making
payments. As such, the trial justice found that defendant “simply ignored its contract
and the bill.”
Accordingly, we perceive no error in the trial justice’s ruling that defendant
breached the contract, thereby entitling plaintiff to an award of contract damages.
Damages
The defendant’s next three claims of error turn on disputes that affect the
determination of the amount of damages. First, defendant claims that the trial justice
erred in finding that plaintiff had proven damages with any reasonable certainty.
The defendant argues that there was no testimony demonstrating that plaintiff was
entitled to further payments under the contract and no way to determine the amount
- 16 - of damages without evidence of the final construction cost. Additionally, defendant
claims that the trial justice erred in finding that the appropriate measure of damages
was a percentage of the estimated value of plaintiff’s performance under the
contract.
“It is well settled that a court may award damages for breach of contract to
place the injured party in as good a position as if the parties fully performed the
contract.” Management Capital, L.L.C., 209 A.3d at 1179 (quoting Sophie F.
Bronowiski Mulligan Irrevocable Trust v. Bridges, 44 A.3d 116, 120 (R.I.
2012)). “The amount of damages sustained from a breach of contract must be proven
with a reasonable degree of certainty.” Id. (deletion omitted) (quoting Marketing
Design Source, Inc. v. Pranda North America, Inc., 799 A.2d 267, 273 (R.I. 2002)).
However, “[t]he existence of damages, including their certainty, is a question for the
factfinder to decide.” Id. (quoting Fogarty, 163 A.3d at 537).
Here, the trial justice determined that, to place plaintiff in as good a position
as if he had fully performed, the measure of damages should be based on the
contract’s value to plaintiff as contemplated under the contract. The trial justice
found that plaintiff had completed all the phases denoted in the contract except for
the last phase and that in doing so, plaintiff had completed work equal to 80 percent
of the contract value. The payment schedule within the contract assigned
percentages of the total fee to be paid at certain intervals that corresponded with
- 17 - phases of work completed by plaintiff. Finding that the measure of damages should
be based on the work completed under this schedule and the corresponding
percentages is logical and is based on the explicit and unambiguous payment
schedule within the contract itself. Thus, finding that this was the appropriate
measure of damages under the contract was within the sound fact-finding duty of the
trial justice, and we cannot say there is any indication that he erred.
Next, defendant attacks the trial justice’s determination of which phases under
the contract were completed by plaintiff. Specifically, it claims the trial justice erred
in finding plaintiff had completed the bidding phase. In support, defendant argues
that both Mr. Wooden and Mr. Moran testified that only the first two phases in the
contract were completed. Based on that testimony, defendant implies, plaintiff is
entitled to only 35 percent of his total fee under the contract, which it had already
paid.
“[W]e give deference to the inferences and conclusions drawn by the trial
justice from the testimony and evidence presented.” Red Gate Motel, Inc. v.
Albanese, 317 A.3d 1123, 1126 (R.I. 2024). “When ‘the record indicates that
competent evidence supports the trial justice’s findings, we shall not substitute our
view of the evidence for his or hers * * *.’” South County Post & Beam, Inc. v.
McMahon, 116 A.3d 204, 210 (R.I. 2015) (bracket omitted) (quoting Reagan v. City
of Newport, 43 A.3d 33, 37 (R.I. 2012)).
- 18 - The trial justice based his decision on the evidence presented to him, which
included not only the testimony at trial but also the architectural plans completed by
plaintiff. The plans to be used for bidding were completed and given to defendant
in April 2016. Those plans are marked with both the date of completion and the
wording “for bidding only.” The defendant contends that, because defendant never
used the plans for bidding purposes, plaintiff should not be paid for having
completed them. At trial, Mr. Wooden agreed that he reviewed the April 2016 plans,
but that defendant never proceeded with actually sending the plans out for bid. The
fact that the plans were never actually used for bidding is of no consequence to
determining that the plans for bidding were in fact completed. The trial justice did
not err on this point.
In its final attack on the damages awarded, defendant claims that the trial
justice erred in not taking judicial notice of the rulings in the case with Liberty and
thus erred in not basing the measure of damages on the final construction cost of the
project as completed rather than on the final construction cost noted in the contract.
The defendant claims that doing so conflicts with the United States District Court’s
decision on the matter and implicates the doctrine of res judicata. Because
defendant conflates two separate arguments on this point, we address them
individually.
- 19 - First, we address the issue of judicial notice of the appraisal award. “In Rhode
Island, a court may take judicial notice of court records and, while not every
document that may have been placed in a court file may properly be regarded as part
of the record, we have demarcated examples of those that would be considered as
such.” Doe v. Brown University, 253 A.3d 389, 395 (R.I. 2021) (quoting Goodrow
v. Bank of America, N.A., 184 A.3d 1121, 1126 (R.I. 2018)). Although we have held
that a trial justice may correctly consider filings in the federal courts as “official
public records,” see Doe, 253 A.3d at 395, they are merely evidence to be
considered. Here, the trial justice explicitly stated at trial that he was taking judicial
notice “of the document listed in Exhibit A,” but that it would be “marked for
identification only. They are not a full exhibit.” “Exhibit A” purports to be Liberty’s
“motion to confirm the appraisal award,” including an “Appraisal of Insurance
Claim – Award Form” and an order of the United States District Court granting said
motion to confirm. Although defendant initially requested to admit the exhibit in
full, defendant voiced no objection after the trial justice’s ruling to mark the exhibit
“for identification only.”
On appeal and in conclusory fashion, defendant argues that “[t]he trial court’s
failure to take judicial notice of specific factual findings within the [United States]
District Court case was an abuse of discretion.” Significantly, however, defendant
does not identify what purported findings or documents the trial justice failed to
- 20 - consider. To the extent that this issue has been appropriately preserved, we discern
no abuse of discretion by the trial justice.
Next, we address defendant’s contention that the trial justice was bound to use
the appraisal award when determining damages under the doctrine of res judicata.
“We review res judicata claims de novo.” Glassie v. Doucette, 159 A.3d 88, 95 (R.I.
2017). “Res judicata ‘makes a prior judgment in a civil action between the same
parties conclusive with regard to any issues that were litigated in the prior action, or,
that could have been presented and litigated therein.’” Ritter v. Mantissa Investment
Corporation, 864 A.2d 601, 605 (R.I. 2005) (quoting ElGabri v. Lekas, 681 A.2d
271, 275 (R.I. 1996)). “It is our well-settled principle that ‘res judicata serves as a
bar to a second cause of action where there exists: (1) identity of parties; (2) identity
of issues; and (3) finality of judgment in an earlier action.’” JHRW, LLC v. Seaport
Studios, Inc., 212 A.3d 168, 177 (R.I. 2019) (brackets omitted) (quoting Goodrow,
184 A.3d at 1126).
The defendant’s argument as to res judicata fails. “In order to establish
identity of the parties, the parties to the earlier action must be in privity with the
parties to the later action.” Huntley v. State, 63 A.3d 526, 531 (R.I. 2013). “Privity
exists where there is ‘a commonality of interests’ such that one party adequately
represents the other’s interests.” Id. (brackets omitted) (quoting Lennon v. Dacomed
Corp., 901 A.2d 582, 590 (R.I. 2006)). There is no privity of parties here. The
- 21 - instant suit is between Americo Mallozzi and Warwick Wings. The federal court
suit was between Warwick Wings and Liberty Mutual. There are no facts nor any
logic to support the notion that plaintiff here is in privity with Liberty. Additionally,
the two cases involve very distinct causes of action. The instant case concerns claims
of breach of contract and unjust enrichment, whereas the federal case involved a
dispute between an insurance carrier and policyholder over the scope of coverage.
We are satisfied that the doctrine of res judicata is inapplicable in this case.
Attorneys’ Fees
The defendant’s final claim of error turns on whether the trial justice’s award
of attorneys’ fees to plaintiff was proper. The defendant contends that, because
attorneys’ fees were not contemplated in the contract, they should not have been
awarded here. Additionally, and more convincingly, defendant argues that there was
a justiciable issue of either law or fact that prevented the application of G.L. 1956
§ 9-1-45. In relevant part, the statute states that, in a case involving a breach of
contract, the court may award “attorney’s fees to the prevailing party” if the court
“[f]inds that there was a complete absence of a justiciable issue of either law or fact
raised by the losing party * * *.” Section 9-1-45. Neither party disputes that this
case involved a breach-of-contract claim. The parties do, however, disagree as to
whether there was a justiciable issue of fact or law.
- 22 - “[T]he issue of whether there exists a basis for awarding attorneys’ fees
generally is legal in nature, and therefore our review of such a ruling is de
novo.” Danforth v. More, 129 A.3d 63, 72 (R.I. 2016) (quoting Shine v. Moreau, 119
A.3d 1, 8 (R.I. 2015)). “If it is determined that there is an adequate legal basis for
such an award, then we review a trial justice’s decision awarding or denying
attorneys’ fees for an abuse of discretion.” Id. When considering the legal basis
under § 9-1-45, we have said that, when “defendants did prevail in a civil action
arising from a breach of contract, the trial justice thus ha[s] statutory authority to
award attorneys’ fees to defendants if, within [his] considerable discretion, [he]
determined that they were warranted.” Arnold v. Arnold, 187 A.3d 299, 316 (R.I.
2018).
In its papers to this Court, defendant’s sole argument is that the trial justice
failed “to make any finding of ‘a complete absence of a justiciable issue of either
law or fact raised by the losing party.’” Without identifying any “justiciable issue,”
its only elaboration was that the trial justice’s decision “specifically details questions
of law and fact raised by the parties during trial.”
In exercising our de novo review to determine whether a basis exists for
awarding attorneys’ fees under § 9-1-45, we conclude that there was indeed a
complete absence of a justiciable issue. This was a breach-of-contract action in
which defendant failed to pay monies that were due and owing to plaintiff under the
- 23 - terms of the contract. The trial justice correctly found that plaintiff based his
architectural plans on the engineering plans of Nadeau and Odeh. We agree with
the trial justice that “[c]learly, Warwick Wings understood that Mallozzi was
proceeding with the plans based on the specifications of the engineers (replacement
of roof trusses), and Warwick Wings recognized that Mallozzi was doing so. Indeed,
there is no allegation that Mallozzi was told to follow other plans.”
The trial justice held that defendant failed to establish that the contract was
unilaterally cancelled or otherwise terminated, or that plaintiff’s work was in any
manner deficient. He further found as fact that “the contract was not impossible to
perform.” The trial justice concluded that “the only thing which frustrated the
performance was defendant’s failure to communicate with Mallozzi” and that,
“[i]nstead of communicating with Mallozzi[,] the defendant simply ignored its
contract and the bill.” Under these circumstances, we are satisfied that there was a
complete absence of justiciable issues.
Having determined that there is a legal basis for an award of attorneys’ fees,
our analysis shifts to the question of whether the trial justice abused his discretion.
See In re Estate of Cantore, 814 A.2d 331, 334 (R.I. 2003). Importantly, here,
however, defendant did not order the transcript from the hearing on attorneys’ fees.
The defendant filed its appeal and ordered the transcript after the trial but before the
hearing on attorneys’ fees took place, and no subsequent transcript was ever ordered.
- 24 - Article I, Rule 11(a) of the Supreme Court Rules of Appellate Procedure requires
that, “[p]romptly after filing the notice of appeal[,] the appellant shall comply with
the provisions of Rule 10(b) or (c) and shall take any other action necessary to enable
the clerk to assemble and transmit the record.” Here, defendant alone was
responsible for “ensur[ing] that the record is complete and ready for transmission.”
Boulais v. DiPaola, 305 A.3d 1270, 1271 (R.I. 2024) (mem.) (quoting Small
Business Loan Fund Corporation v. Gallant, 795 A.2d 531, 532 (R.I. 2002)).
Without the transcript of the hearing on attorneys’ fees, “this Court cannot
determine how the trial justice came to a decision or, in turn, whether the trial justice
erred in coming to that decision.” Boulais, 305 A.3d at 1271. As such, without any
record on the matter to review, we cannot say that the trial justice abused his
discretion in awarding attorneys’ fees to the plaintiff.
IV
Conclusion
For the foregoing reasons, we affirm the judgment of the Superior Court. The
record may be returned to the Superior Court.
- 25 - STATE OF RHODE ISLAND SUPREME COURT – CLERK’S OFFICE Licht Judicial Complex 250 Benefit Street Providence, RI 02903
OPINION COVER SHEET
Americo Mallozzi aka Americo Mallozzi & Title of Case Associates v. Warwick Wings, LLC. No. 2023-311-Appeal. Case Number (PC 20-3773)
Date Opinion Filed February 25, 2025
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Justices Long, JJ.
Written By Chief Justice Paul A. Suttell
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Jeffrey A. Lanphear
For Plaintiff:
Girard R. Visconti, Esq. Attorney(s) on Appeal For Defendant:
Daniel Calabro, Jr., Esq.