James P. Tavares Constr., Inc. v. R.I. Contractors' Registration Bd.

• Decision Date: 21 January 2014
• Docket Number: C.A. No. PC 08-6101
• Court: Rhode Island Superior Court
• Parties: JAMES P. TAVARES CONSTRUCTION, INC. v. STATE OF RHODE ISLAND CONTRACTORS' REGISTRATION BOARD

JAMES P. TAVARES CONSTRUCTION, INC. v. STATE OF RHODE ISLAND CONTRACTORS' REGISTRATION BOARD

C.A. No. PC 08-6101

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS PROVIDENCE, SC. SUPERIOR COURT

DATE: January 21, 2014

DECISION

VAN COUYGHEN, J. The matter before this Court is an appeal from a final order of the Rhode Island Contractors' Registration and Licensing Board (CRLB) directing James P. Tavares Construction, Inc. (Appellant) to pay monetary restitution to Mario F. Cirillo (Claimant). Appellant seeks reversal of the CRLB's decision. Jurisdiction is pursuant to G.L. 1956 § 42-35-15. For the reasons set forth below, this Court affirms the CRLB's final order.

IFacts and Travel

On January 16, 2006, James P. Tavares (Mr. Tavares) drafted and entered into a contract with Claimant stating that Appellant would perform renovation work at Claimant's home. The parties agreed that Claimant would pay Appellant the actual cost plus twenty percent for materials and subcontractor work. The contract also contained an arbitration clause stating that "[a]ny and all claims or disputes between [Claimant] and [Appellant] arising out of or related to the interpretation or performance of the work as described in [the] contract . . . shall be resolved and decided by arbitration in accordance with the Construction Industry Rules of the American Arbitration Association." Any award rendered by an arbitrator, according to the terms of thecontract, would be final and binding on the parties. The contract did not specify a time for commencing arbitration should the parties decide to arbitrate a dispute.

Initially, the contract work was estimated at $140,000 but was subsequently revised to $180,000. On April 11, 2007, Claimant filed a complaint with the CRLB alleging breach of contract by Appellant. Claimant contended that he had been overbilled for work performed by Appellant, and that he had ultimately paid a total of $230,000 for the renovation. At some point prior to the first hearing, the CRLB mailed the parties a Waiver of Arbitration form. Claimant signed the form on April 30, 2007, but Appellant did not sign or return the form to the CRLB. (Hr'g Ex. 9.)

Based on the complexity of the matter and the voluminous evidence, the CRLB hearing officer held four administrative hearings occurring on September 7, 2007; October 1, 2007; December 20, 2007; and February 19, 2008. The evidence was conflicting. Claimant alleged that he was overbilled for plumbing, painting, and labor. As for plumbing, he presented invoices that Appellant overbilled him in the amount of $5947.21. (Hr'g Ex. 2.) Mr. Tavares, speaking on behalf of Appellant, admitted that Claimant had been overbilled for plumbing work, but presented evidence that he had credited Claimant $4094.42. (Hr'g Exs. A, L.)

During the course of the proceedings, Claimant also argued that he had paid $24,244.27 for painting, which he described as "exorbitant," given that the contractor allegedly painted three rooms and glazed windows. (Hr'g Tr. 27:12-28:25, Sept. 7, 2007.) Specifically, he claimed that he had been overbilled in the amount of $4202.52 and submitted invoices for painting charges and a handwritten summary in support of this claim. Id. at 32:3-20; Hr'g Ex. 3. Claimant also submitted a summary of interest charges that included a bill for $617.40 for work that allegedly occurred after the claim had been filed with the CRLB. (Hr'g Ex. 13.)

In addition, Claimant contested expenses pertaining to supervision alleged to have been done by Paul Tavares, Mr. Tavares' brother. Claimant testified that he overpaid for Paul Tavares' work and submitted a handwritten statement summarizing alleged overbilling charges totaling $1527.50. (Hr'g Tr. 54:23-55:22, Sept. 7, 2007; Hr'g Ex. 5.) The statement included specific dates, hours worked, type of job, and amounts paid for Paul Tavares' work. He also asserted that Mr. Tavares and his brother billed him for supervising the job at the same time. (Hr'g Tr. 48:4-23, Sept. 7, 2007.) In response, Mr. Tavares claimed that if he or his brother "was going on vacation and somebody needed to be caught up to speed, [he thought that charging for two supervisors] was worth the price." (Hr'g Tr. 63:16-64:20, Sept. 7, 2007.) With regard to Mr. Tavares' supervision work, Claimant submitted a handwritten summary of overbilling charges for meetings, research, ordering, and communications summarizing invoice numbers, hours worked, type of work, and amount paid, totaling approximately $3200. (Hr'g Ex. 14.) In response, Appellant entered into evidence spreadsheets and invoices showing dates, hours worked, and type of work performed by Appellant and his brother. (Hr'g Ex. I.) Finally, Claimant presented evidence that he paid $16,250 for work performed on the kitchen and dining room floors, including tile work. (Hr'g Ex. 12.) The Appellant did not present any evidence to contest these allegations other than to testify that he felt that the billing was reasonable. (Hr'g Tr. 279:8-289:18, Feb. 19, 2008.)

Based on the testimony and evidence presented, the hearing officer concluded that Appellant breached the contract and issued a proposed order directing Appellant to pay Claimant $12,219.95¹ pursuant to G.L 1956 § 5-65-12(a).² This amount included $4094.42 double billingfor plumbing expenses; $3478.80 double billing for painting expenses; $617.40 for invalid interest charges; and $5416.12 for overcharges pertaining to work performed on the kitchen and dining room floors, including tile work. Cirillo, CRLB No. 6177 (Apr. 1, 2008) (proposed order). This amount also included $1527.50 for supervision overcharges pertaining to Paul Tavares' time at the site, $1600.00 for overcharges pertaining to Mr. Tavares' time at the site, $1916.00 in attorney's fees pursuant to § 5-65-12(e), and a $25.00 claim filing fee. The hearing officer then deducted $6455.42 for the mechanic's lien that Appellant placed on Claimant's property. Finally, in addition to the $12,219.95, the hearing officer assessed fines against Appellant in the amount of $2000.00 for violation of §§ 5-65-18, 5-65-22, 5-65-3(p), and 5-65-10(a)(11).

In support of his conclusions, the hearing officer made the following findings of fact:

"(A) The [parties] were properly notified of the hearing on 2/19/2008. Notice was sent to Contractors at last known address on the Board's record, in accordance to RIGL Section 5-65-6.

"(B) The [Appellant] is a Contractor who is registered or required to be registered with the CRLB pursuant to RIGL Section 5-65-3.

"(C) The [Claimant] is the owner of property at : 895 Hope Street, Bristol.

"(D) The [parties] had entered into an agreement dated 02/03/2006 whereby the [Appellant] had agreed to perform certain work on the above property, namely: Interior renovations of the existing house with limited exterior renovations.

"(E) Agreement was a written contract.

"(F) Pursuant to the terms of the Agreement, the [Claimant] agreed to pay the [Appellant] the sum of $180,000, exclusive of any extras, if any.

"(G) [Claimant] paid [Appellant] the sum of $220,000 as of 09/07/07." Cirillo, CRLB No. 6177 (Apr. 1, 2008) (proposed order).

Following the hearing officer's proposed order, Appellant filed an appeal to CRLB's full Board (Board) claiming that the evidence in the record did not support the findings in the proposed order; the evidence at the hearing was misconstrued; and the hearing officer precluded Appellant from providing explanations or clarifications. The Board held hearings on June 11 and August 13, 2008. For the first time, at the June 11, 2008 hearing, Appellant raised the issue that the claim should have gone to arbitration rather than to the CRLB. (Hr'g Tr. 3:9-18, June 11, 2008.) The Board decided that it could properly hear the claim despite the arbitration clause, and that the hearing officer's proposed order should be upheld.

The Board issued a final order on August 25, 2008, upholding the hearing officer's findings and conclusions. Specifically, the final order stated:

"The Proposed Order issued by the Board's Hearing Officer was reviewed and the information provided reviewed, exceptions were heard and all parties were present with their legal representatives. At the initial appeal heard in June, the Board listened to exceptions filed and concerns of double billing as well as the allegation that the hearing officer failed to have the claimant sign the arbitration waiver as required by the Boards [sic] rules and regulations. After further discussion and review the [B]oard voted to have staff and legal counsel review the file regarding the arbitration waiver and continued the claim until next meeting; however the cost issues and financial concerns would not be modified. The Board unanimously agreed to this action. Upon reviewing the file, staff found that the record reflected that the arbitration waiver was signed by the Claimant and at the 8/13/2008 meeting a motion was made to uphold the decision of the hearing office[r], which passed 7 to 1. Therefore; based on testimony and evidence presented byboth parties at the Administrative hearing, the [Appellant] . . . is [ordered], to pay the [Claimant], Mario F. Cirillo, the amount of $12,219.95 . . . ." Cirillo, CRLB No. 6177 (Aug. 25, 2008) (final order).

Following the Board's decision, Appellant filed a complaint asking this Court to reverse the final order of the CRLB.

IIStandard of Review

The Superior Court's review of an administrative agency decision is governed by § 42-35-15(g). This section states:

"The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings, or it may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

"(1) In violation of constitutional or statutory provisions;

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