USCA1 Opinion

July 27, 1993

UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2281
COMMERCIAL ASSOCIATES, ET AL.,
Plaintiffs, Appellees,
v.
TILCON GAMMINO, INC.,
Defendant, Appellant.
____________________
ERRATA SHEET
ERRATA SHEET
The opinion of the
follows:

Court issued on July 22, 1993, is corrected

On page 16, paragraph 3, line 2:

substitute "or" for "and."

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 92-2281
COMMERCIAL ASSOCIATES, ET AL.,
Plaintiffs, Appellees,
v.
TILCON GAMMINO, INC.,
Defendant, Appellant.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Ernest C. Torres, U.S. District Judge]
___________________
____________________
Before
Boudin, Circuit Judge,
_____________
Campbell, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________
____________________

John R. Fornaciari with whom Louis V. Jackvony, Jr., Jackvon

___________________
_______________________
_______
Jackvony, Robert M. Disch and Ross & Hardies were on brief
________
________________
_______________
appellant.
William R. Landry with whom Michael DiBiase, Karen A. Pelczar
_________________
_______________ _________________
and Blish & Cavanagh were on brief for appellee, Lechmere, Inc.
________________
____________________
July 22, 1993
____________________

BOUDIN,

Circuit

Judge.

This action

arises

out

of

______________
efforts
Plaza
of

to develop

a shopping

complex

in Warwick, Rhode Island.

real

estate

developer

known as

Bald Hill

The plan was the brainchild

Anthony DelVicario,

who

was

general partner in a Massachusetts limited partnership called

Commercial Associates

("Commercial").

Tilcon

Gammino, Inc.

("Tilcon"), a construction company, learned about the project

and expressed interest to
to

do

certain

construction

project, primarily
with

DelVicario in obtaining a contract

Tilcon's

work in

site clearing and

assistance,

connection
grading.

approached

("Lechmere"), a Minnesota corporation

with

the

DelVicario,

Lechmere,

Inc.

that operates a

chain

of retail stores, and persuaded Lechmere to join the

project

as one of the shopping center's "anchor stores."

Lechmere purchased

the real

was

to be located, and

Commercial acquired the remainder of

the

property

Commercial

needed

for

the development.

responsible

construction

for

of

the

the

store would be

built.

the

site-clearing

work

underlying

and
the

the "pad" upon which

In consideration,

pay Commercial $1.3 million.

serve as

Lechmere

alia that Commercial

____

"footprint"

shopping complex, including

to

its store

and

entered into a written agreement--called the CORE

agreement-- which provided inter

_____
be

estate on which

would
the
entire

Lechmere's

Lechmere agreed to

Commercial then retained Tilcon

general contractor

-2-

for the

site-clearing

-2-

work.

Commercial and Tilcon entered

dated February
of

the work

into a written contract

8, 1985, which generally

to

estimated total

be performed

by

described the scope

Tilcon and

cost of "about $2,800,000."

the site-clearing work around that same time.

the

supervisor

of

the

project

and

contained

Tilcon started
DelVicario was

directed

activities at the work site on a daily basis.

wanted

the pad

could open

completed by

that September in

March 15,

Tilcon's

Lechmere

1985, so

time for the

an

had

its store

holiday shopping

season.

At least in part to meet that timetable, DelVicario

insisted

that Tilcon accelerate its work schedule, requiring

Tilcon's

staff to

work

equipment and supplies.

overtime

and

necessitating

extra

And, according to Tilcon, DelVicario

insisted that Tilcon perform substantial work at the shopping

center

site that

contained in the

went

beyond the

description

of the

job

February 8 contract; Tilcon refers to these

additional tasks as "extras."

Work was completed on schedule, but a dispute soon arose
as

to

Tilcon's compensation.

Tilcon

claimed that

it was

entitled

to

additional

compensation for

performed at DelVicario's
it believed
price"

mechanic's

been paid

bills

by

lien on the property

it

a "guaranteed maximum

in full--and

submitted

"extras"

Commercial disagreed--

that Tilcon had agreed to

and had

final three

direction.

the

refused to

Tilcon.

Tilcon

pay the
filed

under Rhode Island law, and

-3-3-

on February 7, 1986, brought an action against Commercial and

Lechmere in Rhode Island Superior Court to enforce that lien.
Pursuant

to the

Rhode Island

statute, Commercial

posted a

$1.2 million bond to release the lien, and the action proceed
in rem against the bond.1
__ ___
Following

a seven-day

found in favor of
found

that

contained
found

Tilcon
in the

Tilcon.
was

bench trial
In

the superior

court

a 28-page opinion, the

court

not bound

original February

by

the

estimated price

8 contract.

The court

that Tilcon was bound by a maximum price of $3,095,000

contained in a May 8 letter

to Commercial, but that a number

of tasks were excluded

found that Tilcon
plus"

basis for

from this price.

was entitled to
numerous

Finally,

the court

compensation on a

"extras" performed

"cost-

at the

site,

pursuant to the oral assurances of DelVicario.

Under Rhode Island
enforcement
120-day

law Tilcon could recover in the lien

proceeding only

period prior

"lien period").

for

to notice

work performed
of the lien

The court expressly

within the

(the so-called

found that Tilcon

was

entitled to compensation for work performed prior to the lien

____________________
1The mechanic's lien statute provides that respondents
can secure the release of a lien by depositing with the
registry of the court "cash equal to the total amount of the
accounts and demands of all persons claiming liens" or a
surety bond in that amount in lieu of cash. R.I. Gen. Laws
34-28-17. In this case, Commercial deposited a $1.2 million
bond with the registry and, apparently without any objection
from Tilcon as to the amount, the lien was discharged.
-4-4-

period,

but held

amounts in

that

its judgment.

it had
The

no

power to

court left it

include

these

to Tilcon

"pursue this claim in another appropriate proceeding."

to

The

Rhode

Island

court

entered

judgment

Commercial and Lechmere for $1,329,207.03,

the court's

against

which represented

painstaking calculation of the

compensation due

Tilcon for work at the Bald Hill site during the 120-day lien
period.

Tilcon,

million,

the

release the
judgment

however, was

amount of

able

the bond

to collect

that

lien, leaving a $129,207

and

decision was

Tilcon's

Supreme Court.

had been

$1.2

posted to

deficiency between the

recovery.

affirmed in

only

The

all respects

superior

by the

court's

Rhode Island

Tilcon Gammino, Inc. v. Commercial Assocs.,

___________________________________________

570 A.2d 1102 (R.I. 1990).

During the pendency
Lechmere
Tilcon
their

of the mechanic's lien

and Commercial filed

in Rhode

own

removed
diversity

Island

arising out

the
of

action

this separate

Superior Court
of the

to

Bald

federal

citizenship.

It

action against

seeking damages

Hill project.

district
also

proceeding,

court

filed a

of

Tilcon
based

on

counterclaim

against Lechmere and Commercial seeking payment for work that

was

not

recoverable

in

the

between the judgment and the

done prior to the

lien

action--the

deficiency

bond, and compensation for work

lien period--on various theories including

breach of contract, unjust enrichment and fraud.

-5-5-

After the final decision in the

for

summary judgment

on

lien case, Tilcon moved

its counterclaim

in this

action.

Tilcon argued that the Rhode

Island Superior Court had found

as

DelVicario bound

a matter

of

Commercial to
that

Lechmere

that

a series

Tilcon was

under those

fact

owed

of oral

contracts with

specific amounts

contracts.

Lechmere

were collaterally estopped

Tilcon, and

for work

Tilcon claimed that

and

performed

Commercial and

from relitigating these

issues, and that Tilcon was therefore entitled to judgment as

a

matter

superior

of law

for the

court's judgment

$129,207 discrepancy
and

the $1.2

between the

million bond,2

as

well as approximately $600,000 for work at the Bald Hill site

prior to the lien period.
The district
are bound
only
court

by the Rhode

court

Island court's factual

those that were necessary

held

that

established that
work

court agreed that Commercial

performed
concluded

the

Rhode

that

resolve the issue of

the

findings but

to its judgment.
Island

Tilcon was owed an

during the

and Lechmere

decision

Thus, the
conclusively

additional $129,207 for

lien period.
Rhode Island

But

the district

decision

who was liable for the

___

did

not

deficiency, nor

____________________
2Tilcon claims that it is entitled to recover in this
case the entire $1,329,207 amount of the Rhode Island
judgment. But it is undisputed that Tilcon recovered $1.2
million by executing on the bond, and Tilcon does not explain
why it is entitled to more than the $129,207 discrepancy for
the lien period.
-6-6-

did

it

establish Tilcon's

entitlement to

work prior to the lien period.

The original
dismissed,

claims of
the

to

the lien

period.

stipulations.
court

Pursuant

instructed

Tilcon's

120-day period, had been

should not

now

limited

The dispute
to its

was further

certain

$129,207 for

and

by Tilcon prior

prior ruling,

that

having been

to Commercial's

any, for work done

the jury

entitlement to

proceeded to trial.

Lechmere and Commercial

case was

Lechmere's liability, if

The case

compensation for

narrowed by
the district

facts, primarily,

work done

during the

established in prior litigation and

be reconsidered.

The court

therefore precluded

the parties from introducing any evidence regarding work done

during the lien period.
the $129,207

It was determined that liability for

deficiency would

be imposed upon

whichever of

the

defendants was

held

liable at

trial for

the pre-lien

work.
At

trial, Tilcon

that Commercial

and

introduced
Lechmere

were

evidence seeking
liable

for

payments for work done outside the lien period.

of

Tilcon's case the court

law

for Lechmere

leaving only
the court's

to all

ruling are more conveniently

Tilcon against

The jury

At the close
a matter of

of Tilcon's

the claims against Commercial;

this opinion.

additional

granted judgment as

with respect

to show

claims,

the reasons for

discussed later in

then returned a verdict in

Commercial for $307,500.

favor of

The district court

-7-7-

added

to this

amount

the $129,207

judgment in the mechanic's

deficiency between

lien action and the bond,

the

made a

number of other adjustments to reflect the stipulations among

the

parties, and

then entered judgment

in favor

of Tilcon

against Commercial for the resulting amount of $268,903, plus

prejudgment interest on a certain portion of the debt.

Tilcon now

appeals.

It argues

court's factual findings, if given

that the Rhode

Island

proper preclusive effect,

required that judgment for the $129,207 deficiency be entered

against Lechmere
has

as well as against

not made any appearance

partnership

is a

defunct

in this appeal;
or insolvent

explain

why it is important

against

Lechmere.

estoppel made

also

done prior to the

from Commercial.

Tilcon argues that the

if the limited
might

obtain a judgment

argues

that

collateral

Commercial both liable

was error to submit this issue to

$307,500 due

Commercial

entity, that

to Tilcon to

Tilcon

Lechmere and

$600,000 in work

Commercial.

lien period and

for some
that it

the jury, which found only

Finally, preclusion

court erred by granting

aside,

judgment for

Lechmere as a matter of law on each of Tilcon's claims.

We start

by considering

the collateral

estoppel issue

before turning to Tilcon's individual claims against Lechmere

and

Commercial.

"Federal courts

are bound by

the preclusive effect of state judgments."

807 F.2d

1094, 1101 (1st

Cir. 1986);

-8-8-

state law on

Carillo v. Brown,
________________

see also 28
___ ____

U.S.C.

1738;

Gonsalves v. Alpine Country Club, 727 F.2d 27, 29 (1st

________________________________

Cir. 1984).

Thus, the district court was obliged to give the

Rhode Island
effect

Superior Court's decision

that the

Rhode Island

the same

preclusive

courts themselves

would give

that decision.
In

order for

the

doctrine of

collateral estoppel

apply under

Rhode Island law, "several

satisfied:

there must be

proceeding must
merits;

and the

sought must

party against

be the same as

the prior proceeding."

(R.I. 1991).
issues

Like

decided."

whom collateral

estoppel is
the party in

A.2d 120,

122

this case, has

"[F]irst, the issue

to the issue

second, the issue must

the

the identity-of-

crucial one in

own:

third, the

sought to

decided in the

actually have been

issue must necessarily

have been

Id. at 123.
__

In addition,
prevailing
latitude

judgment on

State v. Chase, 588

_______________

precluded must be identical

litigated; and

final

or in privity with

element, which is the

prior proceeding;

in a

issues; the prior

a set of Chinese boxes,

three components of its

be

requirements must be

an identity of

have resulted

to

Rhode Island

approach,
in

applying

"allow
the

courts, consistent
themselves

rule [of

good

collateral

observing the spirit of it rather than the letter."

with the
deal

of

estoppel],
Hill v.
_______

Bain,
____

15

R.I.

Commissioner,
____________

75,

23 A.

880 F.2d

44

260,

(1885);

see
___

264 (10th

also Klein v.
____ _________

Cir. 1989)

("Trial

-9-9-

courts

are granted

broad discretion

collateral estoppel.").

We

in

below, as

the district

court

in the

application of

think this "latitude" was vested

it

was sitting

in

this

diversity case as a surrogate for a Rhode Island tribunal.

Tilcon's principal argument is
failed

to give proper preclusive effect

Superior
agent

Court's finding

of Lechmere

contracts

in the

court stated

payment
authority

to Tilcon,
for

and

such bound

Lechmere to
is

behalf

in making

within the
of

as an

the oral

based on

superior court's decision

was "acting
on

was acting

Tilcon's argument

that DelVicario,

court

to the Rhode Island

that DelVicario

and as

with Tilcon.

single paragraph
the

that the district

in which

assurances of
scope of
Commercial

[his]
and

Lechmere," and therefore bound his principals to the contract

modifications.

We agree with

the district

court that

issue of Lechmere's contractual relationship with

the

Tilcon was

not one that "must necessarily have been decided" in the lien
proceeding, and

therefore

is

effect under Rhode Island law.

not

entitled

to

preclusive

Chase, 588 A.2d at 123.

_____

The "necessarily decided" element of collateral estoppel

means in this

context that

an issue was

not only

decided but also necessary to the judgment.

(Second) of Judgments

See
___

actually

Restatement

27 (determination must be "essential

to the judgment").

The reasons for this condition are that a

collateral

although it

issue,

may

be

the

subject

of

-10-10-

finding, is
and the
___
litigate
Wright,

less likely to receive

parties

may well

have

close judicial attention

only limited

incentive

the issue fully since it is not determinative.

Miller &

to
See
___

Cooper, Federal Practice and Procedure

________________________________

4421 at 193 (1981 ed.).

Under these circumstances, extending

the force of the unnecessary finding into a different case is

deemed too risky and possibly unfair.
Liability under the Rhode Island mechanic's lien statute
is not dependent on contract.

The statute creates a right of

action against a parcel of property whenever improvements are

made "by

oral or

written contract

written request of" the

__________________

landowner.

1(a) (emphasis

added).3

superior court

suit (or

with or at the oral or

___________________
R.I. Gen. Laws

34-28-

Thus, Lechmere's liability

more technically, the

liability of

Lechmere's property) flowed from its status as owner

fact

that

Tilcon's

Lechmere's request.

work

on

the

A "request,"

property

in the

was

of course, is

and the
done

a far

at
cry

____________________
3Deleting
irrelevant
language,
the
mechanic's lien statute provides as follows:

Rhode

Island

Whenever any building . . . or other improvement

shall be constructed . . . by oral or written
contract with or at the oral or written request of
the owner thereof, . . . such building . . . or
other improvement, together with the land, is
hereby made liable and shall stand subject to liens
for all the work done by any person in the
construction . . . of such building . . . or other
improvement, and for the material used in the
construction . . .
thereof, which have been
furnished by any person.
-11-11-

from

contract.

existence

and

To

terms

be

of

sure,

the

findings

contract

regarding

governing

the

Tilcon's

assignment at the work site were necessary to a determination

of

the amount of Tilcon's lien, since under Rhode Island law

______

the

amount of

contract.
185

the

lien is

dependent

upon the

underlying

See Art Metal Constr. Co. v. Knight, 56 R.I. 228,

___ ________________________________

A. 136

Commercial

(1936).
alone,

irrelevant.

But

whether

or Commercial

that contract
and Lechmere

was

with

jointly, was

All that mattered was that Tilcon was acting "at

[Lechmere's] request," a fact that was undisputed.4

But we do
lien statute.
in

not rest

entirely upon this

If a factual issue

prior proceeding

and were

decision,

preclusion might

hindsight

it

could be

sense, not strictly essential

factual

determination is

because the result could

single

focus of

the court's

appropriate even
the

not inherently

issue was,
After

"if an inquiry

if in
in some
all, a

untrustworthy just

have been achieved by a

sentence in question seems

principle that

the

to the outcome.

shorter and more efficient route.

the

were vigorously litigated

well be

shown that

parsing of

different,

In this case, however, the

to us to

fall within the

reveals that the

matters had

`come under consideration only collaterally or incidentally,'

____________________
4The Rhode Island Supreme Court's opinion refers to
Lechmere only twice.
It does not say that DelVicario was
Lechmere's agent, nor does it suggest that privity of
contract between Lechmere and Tilcon is relevant to the
outcome.
-12-12-

preclusion
supra,
_____

is

denied."

Federal Practice and Procedure,

________________________________

4421 at 194 (quoting Norton v. Larney, 266 U.S. 511,

________________

517 (1925)).
The Rhode Island
was an

agent of

Superior Court states

Lechmere only at

that DelVicario

one point in

its 28-page

decision, and there only in passing, somewhat cryptically and

without

any explanation or analysis.

A few pages earlier in

the decision, the court states that DelVicario was "acting as

Commercial's agent and representative
no mention of Lechmere.
that,

We

at the job site," with

do not think it is at

all clear

in the later, single sentence relied on by Tilcon, the

superior

court

meant

to

determine

that

DelVicario

was

Lechmere's agent for purposes

Lechmere and

Tilcon.5

We

of creating a contract between

conclude that this

"finding" was

collateral and not preclusive; and we rest this conclusion on

the joint force
legal

need

clarity in

of three

for a

considerations:

finding of

the supposed

such an

the

lack of

agency, the

finding, and the

any

lack of

earlier, explicit

statement that DelVicario was Commercial's agent.

____________________
5The later sentence relied upon by Tilcon occurs in the
context of a discussion rejecting Commercial's claim that
"extras"
authorized by DelVicario did not enlarge the
liability of Commercial under the written contract; and it is
__________
at least possible that the court meant no more than that
DelVicario spoke for Commercial and that Lechmere, having
contracted
with
Commercial,
was stuck
with
limited
responsibility for DelVicario's extras that flows from the
mechanic's lien statute.
-13-13-

Tilcon also

argues that the district

court should have

given preclusive effect to

the Rhode Island superior court's

findings as

owed Tilcon

Bald

Hill

to the amount
site

prior to

the

start

for its work

of

the lien

at the
period.

Although

the Rhode Island court did make some findings as to

amounts owed for certain items of pre-lien work,

to do so for other items, stating that it had

it declined

no power under

the mechanics lien statute to award compensation for the prelien work.

Accordingly,

the pre-lien findings are on

their

face matters that it was not necessary to decide.

Tilcon seeks

to rescue

these findings by

arguing that

they were necessary in order to determine the validity of the

"guaranteed maximum price" defense
and Lechmere.
contractor
amount

put forward by Commercial

Under Rhode Island law, to the

has promised

that

can

mechanic's lien

be

to do a
collected

statute is

job for
for

extent that a

a fixed

that

limited to the

job

Lechmere
price

146-47.

the

See Art Metal

___ _________

Therefore, Commercial

and

argued in the lien case that the guaranteed maximum

agreed

recovery.
done

A. at

under

contract maximum

less whatever payments have already been made.

Constr. Co., 185
__________

sum, the

prior

to by

To
to

Tilcon

represents

reject the defense,

the

lien

period

analyzed.

-14-14-

an outer

says Tilcon,
had

to

be

limit

of

the extras
individually

This argument
Rhode

is imaginative

Island trial judge

but not persuasive.

ultimately rejected the guaranteed

maximum price defense on multiple grounds:

original

contract

The

price

relied

upon

he found that the

was

preliminary

estimate and that the later binding price was higher, covered
only work done after
in

the contract

May 8, and covered only

and not

work specified

numerous extras.

maximum price defense then faded

The guaranteed

from view in his

decision,

and there was no careful summing up of the pre-lien extras in

order to reject the
judge

defense.

Indeed, as already

noted, the

declined to quantify a number of pre-lien items on the

ground that they were not compensable.

In

the

Superior

end,

it is

not

He

did not explain why he did

was not discussed on appeal.

trial

why

the Rhode

Island

Court made specific findings as to some of the pre____

lien items.

the

clear

judge

in the

reasoning urged by
the requisites

case

It is up

followed

the line

of

to Tilcon to establish

for collateral estoppel, see Federal Practice

___ ________________

and Procedure, supra,

______________ _____
effort fails as

But there is no indication that

lien

Tilcon.

so and the issue

to the

4420 at 185,

and in

our view this

pre-lien period findings.

This

is

enough

for our

liability

purposes

would not

be

although we

note that

affected since--as

Lechmere's

we shall

see--

Lechmere is not liable in any event.

-15-15-

The district court's

issues did
trial

not prevent

in

this case

ruling on the collateral

Tilcon from attempting

that Lechmere

in

estoppel

to prove

fact entered

at

into a

contract with Tilcon, or that Lechmere is liable to Tilcon on

one of the other theories set forth in Tilcon's counterclaim.
Tilcon

did attempt to prove such liability, but at the close

of Tilcon's
matter
claims.

case the

of law

in

Tilcon

district court

favor of
says this

Lechmere
was error

entered judgment as
on each
as to

breach of contract, quantum meruit, and unjust

_______ ______

of

Tilcon's

three claims-enrichment6--

but we agree with the district court's entry of judgment.

At trial, Tilcon attempted
acting as an agent

to prove that DelVicario was

of Lechmere when he made

oral assurances

to

Tilcon that

performed
series

it

at the

would
site,

be

for

and therefore

of oral agreements.

the

"extra"

work

bound Lechmere

to a

The question posed, on review of

a directed verdict, is whether

have

paid

a reasonable jury could

only

reached the same conclusion as the trial court, and our

review

is

Rich. Co.,
_________

plenary.
961

convinced that

See NewHarbor Partners, Inc. v. F.D.

___ __________________________________

F.2d 294,
there was

298

(1st

Cir. 1992).

insufficient evidence to

We

are

permit a

____________________
6Tilcon's remaining claims were fraud, constructive
trust, and violation of the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C.
1961 et seq. The
__ ___
RICO count was dismissed prior to trial, and judgment as a
matter of law was entered on the fraud and constructive trust
counts. Tilcon does not pursue these claims on appeal.
-16-16-

reasonable

jury

to find

that

DelVicario was

an

agent of

Lechmere capable of binding Lechmere to a contract.

Under Rhode Island law, agency

may be based upon either

actual authority and

apparent authority.

See Menard & Co.

___ _____________

Masonry Building Contractors v. Marshall Bldg. Sys., Inc.,

____________________________________________________________
539

A.2d

523,

527

(R.I. 1988)

(adopting

Restatement (Second)

of Agency).

The

formulation

of

first theory requires

evidence of an actual understanding between the principal and

agent

that the latter

There

was

is to

no suggestion

act on

at trial

between Lechmere and DelVicario

act

as

Lechmere's

project.

agent

Accordingly,

behalf of
of any

the former.

actual agreement

under which the latter would

with respect
Tilcon

to

the

presses only

Bald
theory

Hill
of

apparent authority.
Apparent

authority

manifestation of such

"arises

from

authority to the

the

principal's

party with whom

the

agent contracts."

Menard & Co. Masonry Building Contractors,

_________________________________________

539 A.2d at 526.

In other words, the focus is on the conduct

of the principal, not the putative agent.

act

in a way

that leads a

agent is authorized
authorized

to

enter

Lechmere with Tilcon.

in

third party to

to act on the
into

The principal must

believe that the

principal's behalf, here,

contractual

arrangements

for

And, finally, the third party's belief

the agent's authority to

act on behalf

-17-17-

of the principal

must be a reasonable one.

See Rodrigues v. Miriam Hosp., 623

___ _________________________

A.2d 456 (R.I. 1993); Restatement (Second) of Agency

267.

Here, the only evidence of any representations and other

conduct

by Lechmere regarding DelVicario's authority was the

testimony of Thomas Gammino, Tilcon's chief engineer and vice

president, that Lechmere's people instructed Tilcon to follow
DelVicario's

instructions

statement would
that

not permit

the

job

consistent with the

leaving

the

Commercial's man

site.

But

a reasonable person

DelVicario's promises regarding

the promises of Lechmere.

was

on

that

to conclude

payment for

work were

Indeed, the statement is perfectly

opposite interpretation:
site-clearing

work

DelVicario, and

to

that Lechmere
Commercial

was keeping its

and

own hands

out of it.

This is also true of the fact that DelVicario may

have

motivated

been

timetable

and

Commercial.
actions

other
Tilcon

by Lechmere

in

directing Tilcon's

requirements
points

to no

affirming

imposed
other

actions

by

by Lechmere
evidence

a
on

of any

DelVicario's authority,

and

this gap in proof is fatal to Tilcon's contract claim against

Lechmere.
In

addition,

even

if

Tilcon in

fact

believed

that

DelVicario

represented Lechmere,7

no reasonable

jury could

____________________
7In fact, the trial testimony was quite equivocal as to
whether Tilcon actually believed that DelVicario represented
Lechmere. Only two witnesses testified for Tilcon: its vice
president, Thomas Gammino; and its foreman at the Bald Hill
site, Robert Pion.
Both witnesses described DelVicario as a
-18-18-

have found that

project

belief justifiable.

At the

outset of

the

Tilcon joined forces with DelVicario to make a sales

pitch to Lechmere; there is no suggestion that DelVicario had

any prior affiliation with

Lechmere.

Gammino testified that

it was Tilcon's practice to enter into written contracts with

all parties with whom Tilcon dealt, yet Tilcon
into

or

sought

Lechmere.
check

to

enter

into

Before beginning

on Commercial,

written

never entered
contract

work Tilcon performed

but made

no such

with

a credit

inquiries regarding

Lechmere.
Nor
began.
was

did Lechmere take

The May

submitted

a more prominent

8 letter containing a binding

by Tilcon

to

Commercial,

role once work

maximum price

not to

Lechmere.

Tilcon

submitted all

Lechmere

was never

its bills

to Commercial

involved in

the billing

for payment.
process, never

asked to examine any of Tilcon's invoices, and never made any

direct payments to Tilcon.
went

unpaid,

compensation.
in

a larger

until

Tilcon

Even when the final

did

Lechmere was

not

to

Lechmere

simply one of the

project developed

litigation, and

look

the need

three bills

anchor stores

by Commercial.
for a

for

It

was not

deeper pocket,

that

Lechmere was brought into the fray.

____________________
representative of Commercial. But Gammino did testify at one
point (after considerable hedging) that he "believed . . .
that Tony Delvicario was in charge for both people," i.e.
____
Commercial and Lechmere, and so we will assume that Tilcon
introduced enough evidence, if barely, to show actual belief.
-19-19-

We

also

agree

with

the

district

judgment for

Lechmere on

recover on a

theory of unjust enrichment

law, the plaintiff must

court's

the unjust enrichment

entry
claim.

of
To

under Rhode Island

show that it conferred a

benefit on

the

defendant

"in

inequitable for
payment to

such

circumstances

that

the defendant to retain

be

the benefit without

Anthony
_______

Corrado, Inc. v. Menard & Co. Bldg. Contractors,

__________________________________________________

589 A.2d

1202

equitable

(R.I. 1991).

for the

would

value thereof."

1201,

the plaintiff

it

This

under state

and was tried to the district judge.

district court's

view that Tilcon offered

would suggest that the enrichment

any

claim

was unjust,"

and therefore

law was

We share the

"no evidence that

[to Lechmere] if there was

need not

concern ourselves

with the standard of appellate review on this issue.8

As

the district court noted, virtually

done by Tilcon

at the Bald Hill

participants in
other stores

the

site benefitted all

project--including Commercial

in the shopping complex--and

principled way of isolating

alone.

The district

all of the work

of the
and

the

Tilcon offered no

the economic benefit to Lechmere

court also found

that Lechmere's CORE

____________________
8Courts
have
disagreed whether
unjust enrichment
presents a question of fact that is reviewed under a clearly
erroneous standard, or a question of law reviewed de novo.
__ ____
Compare Commodity Futures Trading Comm'n v. Heritage Capital
_______ _____________________________________________________
Advisory Servs., Ltd., 823 F.2d 171, 172 (7th Cir. 1987),
_____________________
with In re Estate of Zent, 459 N.W.2d 795, 798 (N.D. 1990).
____ _____________________
Needless to say, such an all-or-nothing choice is not
compelled.
-20-20-

agreement with Commercial included a payment to Commercial to

arrange

for

the

site-clearing

work.

Tilcon

offered

no

evidence that the benefit to Lechmere resulting from Tilcon's

work at the site
traced

the

exceeded that payment.

relationship

throughout the

between

Finally,

Tilcon

project and concluded,

the court

and

Lechmere

based on the

many of

the same factors recited above, that Tilcon had no reasonable

expectation of

compensation from

Lechmere for work

done at

the site.
Tilcon
ruling
done

suggests

that the

precluded the
during

opportunity

introduction of

the lien
to

court's

period

show

that

and

work

work

done

during

any evidence

during

the lien

period

also do not

was

that the

erroneously believed that

was

order

the

period

But there is no indication

We

fraud

of

that

beneficial to Lechmere.
district court

of work

deprived Tilcon
done

specifically benefitted Lechmere.

that the

collateral estoppel

to

uniquely

agree with

in

enrichment

theory.

Rather,

consistent

with Rhode Island case law, that the existence of

court

on

proof of

necessary

the

recover

Tilcon

merely

an

unjust

observed,

fraud or other wrongdoing is

the retention of

a benefit

a factor in determining whether

would be inequitable.

See
___

R&B
___

Elec. Co., 471 A.2d at 1354.

_________
Turning

finally to the quantum meruit

______________

claim, this is a

quasi-contract claim which, as the district court noted, is a

-21-21-

close cousin

to the

Historically,

equitable remedy of

the claim allowed

value of services or supplies

an implied (at
requisites

district

a party to

law) promise to

Contracts,
_________

court

directed against

made clear

collect for the

furnished to another, based on

pay, even though all

of a formal contract

Farnsworth,

unjust enrichment.

might not be

present.

2.20 at

103 (2d

ed. 1990).

that,

even if

this

Lechmere, the court would

on it for essentially the same reasons given

ruling on the unjust enrichment claim.9

of the
See
___
The

claim were

direct a verdict
by the court in

In

its brief in

assimilate its
stressing

as

this court, Tilcon

quantum meruit
______________
to

both

chooses instead to

claim to its

claims

the

same

contract claim,
facts

concerning

DelVicario's actions in directing the work to meet Lechmere's

deadlines.
is

The chameleon character

such that

contract.

Tilcon can

of quasi-contract claims

fairly stress

this

affinity with

But this in turn means that Tilcon must have had a

reasonable basis for looking to Lechmere for payment, and for

reasons already given we do not think that there was any such
relationship
reasonably

between Lechmere
imagined by

and

Tilcon.

Tilcon,

either real

See generally
___ _________

or

Farnsworth,

____________________
9The district court believed with considerable basis
that in Tilcon's complaint the quantum meruit claim, as well
______________
as the contract claim, had been directed solely against
Commercial; but in each case the district court ruled in the
alternative that the claim lacked merit so we do not discuss
the pleading issue further.
-22-22-

supra, at 107 ("Nor can a party that has made a contract with

_____
another

generally

restitution
under the

from a

disregard
third

the

person for

contract, even if the third

contract

and

performance

claim

rendered

person has benefitted

from that performance.").

In sum, we think that the district court ably sorted its
way through a complex commercial dispute, further complicated
by

the prior determinations in the mechanic's lien case.

It

may well be that Tilcon has not recovered all that it is due,
possibly because of default by the
contracted

partnership with which it

and partly because of its failure to insist on an

adequate bond in the lien proceeding.

the work
was

without a contract with or

Tilcon's

own

decision.

There

district court's rulings.

Affirmed.
________

-23-

But the decision to do

guarantee from Lechmere
was

no

error in

the

-23-