Bove v. Kates Properties, Inc., 80-31-A

• Decision Date: 14 April 1982
• Docket Number: No. 80-31-A,80-31-A
• Citation: 444 A.2d 193
• Parties: Anthony J. BOVE, d/b/a Mirabar Lounge v. KATES PROPERTIES, INC. ppeal.
• Court: Rhode Island Supreme Court

Page 193

444 A.2d 193

Anthony J. BOVE, d/b/a Mirabar Lounge v. KATES PROPERTIES, INC.

No. 80-31-Appeal.

Supreme Court of Rhode Island.

April 14, 1982.

Gunning, LaFazia & Gnys, Inc., Netti C. Vogel, Providence, for plaintiff.

Hinckley, Allen, Salisbury & Parsons, Howard E. Walker, Providence, for defendant.

OPINION

WEISBERGER, Justice.

This case comes before us on appeal from a judgment entered in the Superior Court denying and dismissing a complaint by Kates Properties, Inc. (landlord), against Anthony J. Bove, d/b/a Mirabar Lounge (tenant), for possession and reasonable value of use and occupancy of the premises from and after the time of the notice to quit. This action had begun in the District Court wherein a judgment was entered in favor of the defendant by stipulation of the parties. The landlord appealed to the Superior Court. In the Superior Court an action had already been filed by the tenant charging that the landlord had attempted a self-help eviction and seeking injunctive relief therefrom. The trespass and ejectment action and the complaint for injunctive relief were consolidated. The Superior Court justice, after a nonjury trial, filed a rescript awarding judgment for the tenant in the trespass and ejectment action on the ground that the tenancy had been reinstituted by acceptance of rent during pendency of the action in the District Court. The Superior Court denied the tenant's claim for damages in the companion case. The landlord's counterclaim for damages had been previously dismissed without prejudice in the course of trial. From these judgments the landlord appeals. We affirm.

Although not mentioned in the landlord's brief, it is set forth without contradiction in the tenant's brief that on November 16, 1979, the landlord conveyed the property that was the subject matter of this action to Belvoir Associates. We are further informed that Belvoir Associates subsequently brought another action for possession in the Sixth Division of the District Court. As a consequence, the tenant contends that the appeal should be dismissed on the ground of mootness.

Rule 25(c) of the Superior Court Rules of Civil Procedure provides as follows:

"(c) Transfer of Interest. In case of any transfer of interest, the action may be continued by or against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this rule."

The foregoing rule unambiguously provides that in the event of a transfer of interest the action may be continued by the original party. In this instance the tenant might have moved for substitution or joinder but did not do so. Therefore, under the plain terms of the rule the original landlord could continue the action for the benefit of its successor in interest. See 7A Wright & Miller, Federal Practice and Procedure: Civil § 1958 (1972).

Addressing the merits of the appeal, we find it undisputed that the landlord sent to the tenant an invoice that read in part:

A portion of the "rent" demanded in the invoice applied to a period during the pendency of the landlord's action for possession in the District Court. The acceptance of this rent...