Filed March 12, 2004
STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
LUCILLE B. HEMOND
: C. A. NO. 02-2965
GIBNEY, J. Following a non-jury trial, this Court is asked to resolve two claims
asserted by Plaintiff Lucille Hemond (“Hemond”) against Defendant Lucrecia Gaudette
(“Gaudette”), the first being breach of contract and the second being misrepresentation.
The foundation of these claims concerns the sale of a property located at No. 3 Friendship
Lane (the “Property”) on September 7, 2001.
After the sale, a problem with the
Property’s septic system was discovered. This discovery led Hemond and Gaudette to
form an agreement, entitled Release and Agreement (the “Agreement”). The Agreement
provides the following:
“both sellers, based on information provided to them by
various ‘experts’, have informed me that the septic system
… has ‘failed’. That, I engaged my own ‘expert’ who
confirmed that fact. That, the sellers have paid to me the
sum of Fourteen Thousand ($14,000) and 0/100 Dollars,
the receipt whereof hereby is acknowledged for the repair
or replacement of the existing septic system in question ….
Further, I hereby agree that I will within a reasonable date
of the execution hereof, provide sellers with copies of three
estimates of the cost of repair or replacement of said septic
system. Should, the lowest of said estimates be lower than
the $14,000.00 paid to me, I hereby agree to refund the
difference to sellers forthwith.” (Plaintiff’s Exhibit 1).
Breach of Contract
Hemond asserts that Gaudette failed to comply with the terms as outlined in the
Agreement. Specifically, Hemond contends that Gaudette did not submit copies of three
estimates within a reasonable time to Hemond, thereby violating the Agreement.
Plaintiff’s attorney, William Clifton (“Clifton”) attests that he never received copies of
Gaudette, who this Court found to be, among other things, compelling, wellintentioned, and credible, testified at trial. She stated that she sent three proposals to
Clifton pursuant to the Agreement in May of 2002. Specifically, Gaudette testified that
she used the Address Verification Form (Plaintiff’s Exhibit 3) to address the envelope
and mail the documents. She testified that she found this form confusing. This Court,
having reviewed this document, finds that this document is confusing. Accordingly, this
Court finds that Gaudette attempted in good faith to comply with the terms of the
The Agreement requires that Gaudette compile the estimates and submit those
estimates to Hemond within a reasonable period of time after the execution of the
Agreement. In contract law, “[a] reasonable time has been well defined to be ‘so much
time as is necessary under the circumstances, to do conveniently what the contract or
duty require in the particular case should be done.’” Perkins v. Kirby, 35 R.I. 84, 92, 85
A. 648, 652 (1913) (citing, Bowen v. Detroit C. R. Co., 54 Mich. 496, 501, 20 N.W. 559,
562 (1884)). “In determining therefore what constitutes a reasonable time it is necessary
to take into consideration all circumstances which may surround that portion of the
transaction.” Perkins, 35 R.I. at 92; see also U.C.C. § 2-309, n.1 (stating in the context of
the sale of goods, reasonable time is determined based on good faith and commercial
In the instant case, Gaudette obtained three estimates for replacement of the septic
system to accommodate the building on the Property. These estimates are dated April 20,
2002, April 26, 2002, and May 16, 2002 respectively. They were obtained approximately
eight months after the purchase of the Property and submitted by mail sometime in May
of 2002. The copies, without question, were received by Hemond after the institution of
the present action in July of 2002, when Gaudette submitted her Answer to the operative
This initial delay in obtaining the estimates was attributed to the fact that septic
system installation is seasonal in nature. Therefore, estimates cannot be obtained until
the spring, after the winter thaw. In recognition thereof, this Court finds that this initial
delay was reasonable. Furthermore, Gaudette attempted to mail copies of these estimates
immediately after she compiled them.
However, due to the confusing Address
Verification Form, the copies were never received. As a result, Hemond filed the instant
action, and once Gaudette was made aware of the miscommunication, she resubmitted
copies to Plaintiff.
Clearly, these delays were also reasonable given the attendant
circumstances. Accordingly, this Court finds that Gaudette did not breach the terms of
the Agreement, as she has complied within a reasonable period of time in accordance
with the express terms of the Agreement.
As to the claim of misrepresentation, this Court finds in favor of Gaudette. “A
misrepresentation of the terms, quality or other aspects of a contractual agreement that
‘leads another to enter into a transaction with a false impression of the risks, duties, or
obligations involved’ is fraud in the inducement.” Zaino v. Zaino, 818 A.2d 630, 636
(R.I. 2003) (citing, Black’s Law Dictionary 671 (7th ed. 1999)). In the instant case,
Plaintiff relies on the fact that Gaudette lived on the Property, all the while using the
allegedly failed septic system.
On that basis, Plaintiff asserts that Gaudette
misrepresented that the septic system was not working properly and thereby gained a
pecuniary advantage over Plaintiff in the negotiation of the Agreement. However, the
evidence suggests otherwise.
Specifically the Agreement states “sellers, based on
information provided to them by various ‘experts’, have informed me that the septic
system located at the subject property has ‘failed’.”
Therefore, Hemond initially
informed Gaudette of the septic system’s problems.
Thereafter, as is expressly stated in the Agreement, Gaudette engaged her own
expert, who concurred with the findings of Hemond’s expert. Clearly, Hemond did not
rely on information provided by Gaudette; rather she relied on the opinions of two
experts. Furthermore, there has been no testimony which indicates that the alleged
misrepresentation was inaccurate in any way. Accordingly, this Court finds in favor of
Gaudette on the claim for Misrepresentation.