LESLIE PARRILLO and LESPAR, INC. d/b/a THE WHOLE SCOOP
Providence County Superior Court.
For Plaintiff: Bryan P. Owens, Esq.
For Defendant: Kevin M. Daley, Esq.
Kristin E. Rodgers, J.
This case arises out of a commercial tenancy between Plaintiffs Leslie Parrillo (Parrillo or Plaintiff) and Lespar, Inc., d/b/a The Whole Scoop (Lespar), as tenants, and Defendant Charles Lombardi (Lombardi or Defendant), as landlord. Plaintiff's Complaint seeks monetary damages from what they contend was an unlawful eviction from Lombardi's property by way of self help. Defendant filed a Counterclaim seeking the unpaid rent that was due prior to Plaintiff's alleged abandonment of the property.
Jurisdiction is pursuant to G.L. 1956 § 8-2-13.
I Findings of Fact
Having reviewed the evidence presented by both parties, the Court makes the following findings of fact.
Since at least 1999, Defendant has owned commercial property located at 604 Smithfield Avenue in Pawtucket, Rhode Island (the Premises). Defendant owns another commercial building in the same plaza, identified as 610-612 Smithfield Avenue in Lincoln, Rhode Island, in which he operates a cleaning business known as Luxury Cleaners and from which he operates most of his personal and commercial business.
Parrillo is the sole shareholder of Lespar. In 1999, Lespar purchased the assets of Aaron's Ice Cream, a business that had been operating in the Premises as an ice cream shop, for $9000. The purchase included all of the furniture, fixtures, and equipment owned by Aaron's Ice Cream. Parrillo intended to reopen as a new ice cream shop known as The Whole Scoop in the same location.
Parrillo and Lombardi had enjoyed a relationship as lifelong family friends. At or about the time Plaintiff purchased the assets from Aaron's Ice Cream, Parrillo and Lombardi entered into an oral agreement whereby Plaintiff would lease the Premises for $600 per month, the same monthly rent that had been paid by the previous ice cream shop owners. The monthly rent was due at the beginning of each month. The oral agreement was a "month-to-month" tenancy, terminable by either party at will.
The Whole Scoop was a seasonal business, operating at the Premises generally from May to October of each year. During the so-called "off season, " Parrillo would frequently visit the Premises to retrieve mail and inspect the property. From 1999 to 2007, Plaintiff did not pay Defendant all rent when due. When rent was paid, Parrillo would deliver cash or a check either to Lombardi directly or to Barbara Imondi (Imondi), manager of Luxury Cleaners, who would in turn deliver the payment to Lombardi's office. Lombardi recorded rental payments in a handwritten ledger that he kept in a manila envelope in his office at Luxury Cleaners. In the ledger, Lombardi recorded the date the rent was due, the date payments were made, and the balance. While some discrepancies appeared in the ledger, the ledger did evidence Parrillo's sporadic rental payments, which Parrillo did not credibly dispute. The ledger demonstrated that, as of March 2002, Parrillo's delinquent balance was in excess of $3000, and from that date through August 2007, the delinquent balance increased to $6100.
In August 2007, Lombardi requested a meeting with Parrillo to address the delinquent balance. That meeting took place on August 21, 2007 in Lombardi's office at Luxury Cleaners and was attended by Parrillo, Lombardi and Imondi. At the meeting, Parrillo acknowledged that she owed the delinquent balance in the amount of $6100. The parties agreed that she would pay an additional $500 per week until the balance was paid in full. The parties also agreed that they would execute a written document acknowledging the agreement.
An agreement was prepared as contemplated and reflected the $6100 arrearage, but a blank space was left for the amount of the delinquent balance that Parrillo had agreed she would pay weekly until the balance was paid in full. The day after the meeting, on August 22, 2007, Imondi hand wrote "$500" as the amount that Parrillo had agreed to pay per week and sent the agreement by certified mail to "The Whole Scoop, 604 Smithfield Avenue, Pawtucket, RI 02861." The United States Post Office attempted to deliver the certified parcel as addressed on three occasions: August 23, August 30, and September 7, 2007. Parrillo was notified of the presence of the certified mail but failed to respond to the Post Office to retrieve it. The parcel was returned to Imondi after the final notice was provided on September 7, 2007.
From late September 2007 until early 2008, Lombardi attempted to contact Parrillo, again for the purpose of addressing the delinquent balance and to discuss whether she intended to continue operating her business at the Premises. Lombardi called her several times at the cell phone number he had on file, leaving messages when she did not answer. He also appeared at her home, located at 340 Woodward Road, North Providence, Rhode Island, where he found Parrillo's mother, and requested that Parrillo contact him. Lombardi also contacted Parrillo's brother and requested that he ask Parrillo to contact him. Despite all of these attempts, Parrillo never contacted Lombardi and no rent payments were made by Parrillo following the August 21, 2007 meeting.
During 2007-08 off season, Imondi observed mail in front of the Premises that had overflowed from the designated mailbox for the Premises.
In February 2008, Lombardi concluded that Parrillo had abandoned the Premises and thereafter reentered the Premises to put a "For Lease" sign in the window. In April 2008, Lombardi entered into an agreement with a new tenant for the Premises in which the new tenant would pay the same amount of rent that Parrillo was to pay, $600 per month. At or about that same time, while vacationing in Mexico, Parrillo was notified by another individual that a For Lease sign had been placed in the window at the Premises.
Upon learning that the Premises were being advertised for lease, Parrillo contacted Lombardi's son, Chuck, by telephone. Chuck informed Parrillo that his father had concluded that she had abandoned the Premises and decided to release the Premises. Chuck also advised her that she would have to speak to his father about the matter. Thereafter, Parrillo and Lombardi spoke on the phone, during which Lombardi reiterated his conclusion that she had abandoned the Premises, informed her that he had leased it to someone else, and told her that she was welcome to go to the Premises and retrieve her personal property therein. On at least two occasions thereafter, Parrillo went to the Premises and retrieved her personal belongings, some of which were placed in a box truck on one such visit.
On October 29, 2008, Plaintiff filed suit to recover unspecified damages resulting from what Parrillo contends was an unlawful eviction by Lombardi. Parrillo alleges that Lombardi's eviction was accomplished by self help, in violation of G.L. 1956 § 34-18.1-15. Parrillo further alleges that in releasing the Premises, Lombardi allowed the new tenant to operate an ice cream store in which they used Plaintiff's personal property resulting in monetary damages. Lombardi filed a Counterclaim asserting that he is entitled to judgment for back rent.
This matter came on for a jury-waived trial conducted in Kent County ...