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Tri-Town Construction Company, Inc. v. Commerce Park Associates 12, LLC

Supreme Court of Rhode Island

June 7, 2017

Tri-Town Construction Company, Inc.
v.
Commerce Park Associates 12, LLC et al.

         Kent County Superior Court (KC 15-972) Associate Justice Allen P. Rubine

          For Plaintiff: Vincent A. Indeglia, Esq. Ryan J. Lutrario, Esq.

          For Defendants: Richard G. Riendeau, Esq.

          Present: Suttell, C.J., Goldberg, Flaherty, and Robinson, JJ.

          OPINION

          WILLIAM P. ROBINSON, III ASSOCIATE JUSTICE

         At the outset, we note that the parties in the instant case were previously before this Court in Tri-Town Construction Company, Inc. v. Commerce Park Associates 12, LLC, 139 A.3d 467 (R.I. 2016) (Tri-Town I). In our first chapter of Tri-Town, we affirmed a judgment of the Superior Court in favor of the plaintiff, Tri-Town Construction Company, Inc. (Tri-Town or the Judgment Creditor), against the defendants, Commerce Park Associates 12, LLC and Nicholas E. Cambio (the Judgment Debtors), in the amount of $3, 911, 894.95 (plus post-judgment interest) on claims for breach of a promissory note and breach of a guaranty of that note.[1] Id. at 473.

         Before us today, in the second chapter of Tri-Town, solely Mr. Cambio appeals from a particular order of the Superior Court, which reads in pertinent part as follows:

"Tri-Town Construction Company, Inc. shall be the effective assignee and step in the shoes of the Judgment Debtor[, ] [Mr. Cambio, ] and litigate any and all claims of the Judgment Debtor arising out of the Choses in Action, up to the amounts necessary to satisfy Judgment in this action in the amount of $3, 911, 894.95, plus attorney's fees totaling $43, 227.25 through October 16, 2014, and post-judgment interest to accrue pursuant to the contractual rate of 7% per annum."[2]

         In his appellate papers, Mr. Cambio contends the following: (1) "[t]he order substituting Tri-Town for Cambio as the party to litigate Cambio's claims is immediately appealable;" (2) "[t]he Superior Court exceeded its authority [under G.L. 1956 § 9-28-1[3] when it ordered that Tri-Town * * * step in the shoes of the Judgment Debtor and litigate any and all claims, " "in light of Tri-Town's pleadings which failed to put Cambio on notice that it would be substituted as the claimant in the receivership proceedings;" and (3) "[t]he substitution of an adversary to litigate the interests of its opponent violates the fundamental principles behind the Rules of Professional Conduct." As might be expected, Tri-Town argues that "[i]t is clear from the language" of § 9-28-1 that "[t]he Superior Court * * * properly exercised its authority in issuing the attachment order."

         This case came before the Supreme 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 be summarily decided. After a close review of the record and careful consideration of the parties' arguments (both written and oral), we are satisfied that cause has not been shown and that this appeal may be decided at this time. And, relying solely on the ground that the issue raised on appeal is not properly before us due to our raise-or-waive rule, we affirm the order of the Superior Court.

         I Facts and Travel

         On October 9, 2015, Tri-Town filed a "Creditor's Equitable Action" pursuant to § 9-28-1, seeking a judgment that authorized attachment of the Judgment Debtors' "Estate, including but not limited to all bank accounts, automobiles, fixed assets and tangible assets, real estate holdings * * *, choses in action, and all other assets of the Judgment Debtor forthwith" as well as "any other further just relief as this [c]ourt deems proper." Then, approximately five days later, Tri-Town filed a motion entitled, "Motion to Attach the Chose in Action of the Judgment Debtors." In that motion, Tri-Town requested the following relief:

"1. Granting the Judgment Creditor's Motion to Attach the Chose in Action of the Judgment Debtors; 2. Authorize the Judgment Creditor to reach and apply and subject to the payment as satisfaction of its Judgment any choses in action of the Judgment Debtors; 3. Declare that the Judgment Creditor shall reach and apply and subject to the payment as satisfaction of its Judgment the chose in action of the Judgment Debtors entitled Nicholas E. Cambio, Trustee, and Nicholas E. Cambio, Roonie A. Malafronte and Vincent A. Cambio Trust v. Commerce Park Realty, LLC, et al., C.A. No.: PM-13-0350, consolidated with Matthew J. McGowan, as and only as Receiver for Commerce Park Realty, LLC, et al. v. Commerce Park Management, LLC, C.A. No.: PB-2013-5001 [(hereinafter referred to as "the receivership cases")], whereby any and all disbursements to the Judgment Debtors arising out of such chose in action shall be attached by and distributed to the Judgment Creditor; and 4. Any and all other just relief that this [c]ourt deems is appropriate." (Emphasis omitted.)

         The record reflects that, on October 14, 2015, Mr. Cambio was served with both of the above-referenced documents, in addition to a summons, at his dwelling house or usual place of abode, said service being made upon a person of suitable age and discretion then residing therein-viz., the wife of Mr. Cambio, Regina Cambio. On that same date, Commerce Park Associates 12, LLC (CPA 12) was served with ...


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