Providence County Superior Court (PC 14-2370). William E.
Carnes, Jr. judge.
Plaintiff: Kenneth Kando, Esq.
Defendants: Gregory J. Acciardo, Esq.
Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and
FRANCIS X. FLAHERTY ASSOCIATE JUSTICE.
defendants, Kenneth Lantini and 1200 Hartford LLC, appeal
from an order of the Superior Court denying their motion for
a new trial after a jury found in favor of the plaintiff,
Daryl Heneault. The defendants argue that the economic loss
doctrine bars the plaintiff from recovering damages for the
tort of conversion and that the trial justice erred in
awarding attorneys' fees to the plaintiff. This case came
before this Court for oral argument pursuant to an order
directing the parties to appear and show cause why the issues
raised in this appeal should not summarily be decided. After
hearing the arguments of counsel and examining the memoranda
filed on behalf of the parties, we are of the opinion that
cause has not been shown, and we proceed to decide the appeal
at this time without further briefing or argument. For the
reasons set forth in this opinion, we affirm in part and
vacate in part the judgment of the Superior Court.
Facts and Travel
case was born of a lease agreement gone bad. The plaintiff
entered into a lease with defendants to rent commercial
property owned by defendants in the Town of Johnston. On or
about October 31, 2013, plaintiff paid defendants the sum of
$18, 600, which represented $9, 300 for a security deposit
and $9, 300 for the first month's rent. A document,
referred to by the parties as a "receipt
agreement," and dated that same day, was signed by the
parties; it contained the following language: "IF FOR
ANY REASON, MR KENNETH LANTINI IS UNABLE TO PROVIDE
OCCUPANCY, ON OR BEFORE, NOVEMBER 14, 2013, ALL DEPOSITS ARE
FULLY REFUNDABLE." Thereafter, on November 5, 2013, the
parties entered into the lease agreement. The term of the
lease was scheduled to begin on November 14, 2013. Before the
lease period could begin, however, and for reasons further
discussed infra, plaintiff was unable to occupy the
commercial premises. As a result, plaintiff requested the
return of the $18, 600 payment he made to defendants.
Although a sum of $9, 300, representing the first month's
rent, was eventually returned to plaintiff, defendants
refused to return the $9, 300 security deposit. Consequently,
plaintiff filed an action in the Superior Court against
defendants, alleging that the refusal to return the security
deposit constituted a conversion of plaintiff's property
as well as a breach of contract.
November 2017, one day before trial was to commence, the
Superior Court heard motions in limine. However,
defendants also filed a motion to dismiss and/or strike,
scheduled to be heard that day, arguing that plaintiff's
claim for conversion was barred by the economic loss
doctrine. In response, plaintiff contended that the
motion was not timely filed; indeed, plaintiff's counsel
stressed that he did not receive a copy of defendants'
motion until the previous afternoon, while he was preparing
for trial. The trial justice denied the motion, ruling that
it was not timely.
the following two days, a jury trial was conducted, and both
plaintiff and Mr. Lantini testified. The plaintiff testified
that he and his associates intended to grow medical marijuana
in the building and that they were certified by the state to
do so. The plaintiff said that, prior to the
November 14, 2013 start date on the lease, Mr. Lantini
permitted plaintiff and his associates to move some equipment
into the building. However, plaintiff testified, on November
2 or November 3, an official from the Town of Johnston posted
a condemnation notice on the door of the building. According
to plaintiff, he and his associates were then allowed to
remove their equipment and belongings from the building.
plaintiff testified that, according to Mr. Lantini, a meeting
was later held with the mayor of Johnston, and, although Mr.
Lantini attended that meeting, plaintiff did not. According
to plaintiff, Mr. Lantini told him that the mayor was adamant
that the marijuana operation was illegal, that he did not
want such an operation in the proximity of town hall, and
that plaintiff and his associates should leave the building.
The plaintiff further testified that Mr. Lantini told him to
"just forget about it." The plaintiff recounted
that he then asked Mr. Lantini for the return of the $18, 600
payment he had made, but Mr. Lantini informed him that
plaintiff should contact the real estate broker involved with
the lease agreement to retrieve the $9, 300 for the first
month's rent. As for the $9, 300 security deposit,
however, plaintiff testified that Mr. Lantini told him that
he was keeping it "for his aggravation." The
plaintiff testified that he never received notice from Mr.
Lantini that there was any damage to the property, or any
assertion that he was in default under the lease.
Lantini testified that, before October 31, 2013, he agreed to
lease the commercial premises to plaintiff for the purpose of
growing medical marijuana. Mr. Lantini further testified that
he gave the first month's rent of $9, 300 to a real
estate broker involved in the transaction as a means of
paying the broker's commission, but that he retained the
$9, 300 security deposit. Mr. Lantini also agreed that it was
the town's actions that prevented plaintiff from
occupying the premises, and that, according to Mr. Lantini,
the mayor was dead set against a marijuana operation in town.
Mr. Lantini conceded that plaintiff had indeed made a demand
for the return of his $18, 600 payment. According to Mr.
Lantini, he informed plaintiff that he should contact the
broker for the $9, 300 payment for the first month's
rent, and he added that the broker did in fact return the $9,
300 payment for the first month's rent to plaintiff.
However, Mr. Lantini testified that he refused to return the
$9, 300 security deposit because plaintiff walked away from
the lease "without even trying to do anything."
Lantini also testified that he did not interfere with
plaintiff's right to possess the property in any way,
that it was plaintiff's responsibility, and not his, to
obtain the necessary permits for his operation, and that he
believed that plaintiff was in default of the lease agreement
because he had not paid any rent. However, Mr. Lantini was
impeached with his deposition testimony, in which he said
that he and the real estate broker gave back the $9, 300
payment to plaintiff for the first month's rent. Mr.
Lantini also testified at trial that he never executed a
termination of the lease agreement and he acknowledged that
there was no damage to the building.
the parties rested,  the trial justice instructed the jury.
Although the trial justice's instructions included the
elements that were necessary to prove plaintiff's claim
for conversion and defendants' counterclaim for breach of
contract, they did not contain the elements with regard to