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C & G Realty, LLC v. Salvatore

Superior Court of Rhode Island

June 19, 2015


Providence County Superior Court

For Plaintiff: Alfred G. Thibodeau, Esq.

For Defendant: Raymond R. Pezza, Esq.



This matter arises out of mistaken assumptions regarding the location of a cesspool sewage disposal system (cesspool) in relation to the sale of real property (the Property). C & G Realty, LLC (C & G Realty) brought suit against Anthony Salvatore (Mr. Salvatore) and Marguerite Salvatore (Mrs. Salvatore) (collectively, the Salvatores) upon discovering that land sold by the Salvatores did not include a cesspool. Rather the cesspool was located beneath a shed on land that the Salvatores retained (the Adjacent Parcel) when they sold C & G Realty three other contiguous lots. C & G Realty claims there was misrepresentation on the part of the Salvatores, a mutual mistake of fact, and that C & G Realty has adversely possessed the shed and the cesspool. In October of 2014, the case proceeded to a non-jury trial. Jurisdiction is pursuant to Super. R. Civ. P. 52(a).


Facts & Travel

C & G Realty commenced the instant suit in July of 2005. The trial was held in October of 2014, and Mr. Salvatore testified along with George German (George) and Charles German (Charles), who own C & G Realty. Having reviewed the evidence presented by both parties at trial, the Court makes the following findings of fact.

At trial, C & G Realty argued that Mr. Salvatore misrepresented the location of the cesspool, as well as whether the shed located upon the Adjacent Parcel was part of what C & G Realty was purchasing. Alternatively, C & G Realty proposed that there had been a mutual mistake as to the disputed area, in particular the location of the cesspool. Finally, C & G Realty argued that it had successfully adversely possessed the Adjacent Parcel.

Mr. Salvatore testified that he did not know about the cesspool's location at the time of the sale of the Property, and that he had never had a survey of the Property performed. He testified that he has been going onto the Adjacent Parcel consistently since C & G Realty purchased the Property. He attested that he has been using the shed for storage and still has property in it, and also that he put a fence up around the Adjacent Parcel. He was clear, however, that the fence was not meant to keep C & G Realty's employees from accessing the shed or Adjacent Parcel. Furthermore, Mr. Salvatore testified that he never physically removed C & G Realty or told them to stop using the shed and some of the land around it, and he did testify that he knew C & G Realty was using the land. Mr. Salvatore also testified about walking the Property with George; he stated that all five lots he owned were for sale, but C & G Realty initialed the three lots it chose to purchase on a map of the Property. Mr. Salvatore did not recall having any specific conversations about the shed, nor does he recall discussing the removal of any of his belongings from the shed after the closing. He attested that he visited the shed two or three times a year, and that he would occasionally see one of the German brothers. He testified that when he discovered the location of the cesspool under the shed, he went to see George to inform him of the problem, and that this meeting, which occurred in late 2004, resulted in C & G Realty making an offer to purchase the contested area with the cesspool. According to Mr. Salvatore, George offered $20, 000, which Mr. Salvatore refused. He did make a counteroffer of $60, 000, which C & G Realty rejected. Mr. Salvatore attested that one of his lawyers sent a letter to C & G Realty in January of 2005 disputing title to the shed on the Adjacent Parcel.

George is part-owner of C & G Realty, and he testified that he assumed the shed was part of the land that C & G Realty purchased from the Salvatores. George testified that he recalled seeing Mr. Salvatore visiting the shed only once or twice, and that Mr. Salvatore did put a fence up, but that C & G Realty employees moved the fence and continued to access the shed. He attested that C & G Realty performed maintenance on and around the shed, and that the business used it continuously for ten years. George did not recall ever having a specific discussion with Mr. Salvatore when they walked the premises about whether the shed was included, and he testified that C & G Realty made an offer to purchase the disputed area sometime after Mr. Salvatore informed him of the problem with the cesspool in January of 2005.

Charles, also part-owner of C & G Realty, testified that he assumed the shed was included in what C & G Realty purchased back in 1995. He testified that he also walked the Property with Mr. Salvatore, and that there was a representation by Mr. Salvatore about the shed being included. Charles recalled receiving a letter notifying C & G Realty of the cesspool's location in January of 2005, and that an offer to purchase was made in order to resolve the problem. He, too, testified that C & G Realty has been using the shed and some of the land around it since they purchased the Property in 1995.


Standard of Review

Rule 52(a) of the Rhode Island Rules of Civil Procedure, which governs non-jury trials, 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[.]" Super. R. Civ. P. 52(a). When sitting without a jury, therefore, "[t]he trial justice sits as a trier of fact as well as of law." Hood v. Hawkins, 478 A.2d 181, 184 (R.I. 1984). It is also the trial justice's role at such a proceeding to determine the credibility of witnesses. See McEntee v. Davis, 861 A.2d 459, 464 (R.I. 2004). "[A]s a front-row spectator[, ] the trial justice has the chance to observe the witnesses as they testify and is therefore in a 'better position to weigh the evidence and to pass upon the credibility of the witnesses[.]'" Perry v. Garey, 799 A.2d 1018, 1022 (R.I. 2002) (quoting Nisenzon v. Sadowski, 689 A.2d 1037, 1042 (R.I. 1997)).

In making the required 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); see Super. R. Civ. P. 52(a). The findings, however, must be supported by competent evidence. See Nisenzon, 689 A.2d at 1042. While the trial justice need not categorically accept or reject every piece of evidence, the trial justice should address the issues raised by the pleadings and testified to during the trial. See Notarantonio v. Notarantonio, 941 A.2d 138, 147 (R.I. 2008); Nardone v. Ritacco, 936 A.2d 200, 206 (R.I. 2007).


Findings of Fact

C & G Realty purchased the Property at 231 Putnam Pike located in Johnston, Rhode Island from Mr. Salvatore and Mrs. Salvatore in February of 1995. Behind the Property is the Adjacent Parcel, a piece of land that includes a shed, [1] and the Salvatores own the Adjacent Parcel. In late 2004, Mr. Salvatore discovered that the cesspool for the Property that C & G Realty purchased is situated directly underneath the shed located on the Adjacent Parcel. C & G Realty's building has a toilet and washbasin, which uses the cesspool, and C & G Realty require ownership of the cesspool. Mr. Salvatore or his attorneys notified C & G Realty of this problem in late 2004 or early 2005. C & G Realty responded with an offer to purchase the Adjacent Parcel in ...

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