Cambio v. Commerce Park Realty, LLC, 122120 RISUP, PM-2013-0350

Docket NºC.A. PM-2013-0350, PM-2013-5001
Opinion JudgeTAFT-CARTER, J.
Party NameNICHOLAS E. CAMBIO, Trustee, The Nichola E. Cambio, Roney A. Malafronte, and Vincent Cambio Trust, Petitioners v. COMMERCE PARK REALTY, LLC; COMMERCE PARK PROPERTIES, LLC; COMMERCE PARK COMMONS, LLC; COMMERCE PARK ASSOCIATES 4, LLC; and CATAPULT REALTY, LLC, Respondents MATTHEW J. MCGOWAN, as and only as Receiver for Commerce Park Realty, LLC, ...
AttorneyPetitioners Brian LaPlante, Esq. Richard G. Riendeau, Esq. Michael J. Jacobs, Esq. RFP Defendants: HR2-A Corp. as General Partner of HR2-A Limited Partnership; HR4-A Corp., as General Partner of HR4-A Limited Partnership; MR4A-JV Corp., as General Partner of MR4A-JV Limited Partnership; Realty Fi...
Case DateDecember 21, 2020
CourtSuperior Court of Rhode Island

NICHOLAS E. CAMBIO, Trustee, The Nichola E. Cambio, Roney A. Malafronte, and Vincent Cambio Trust, Petitioners

v.

COMMERCE PARK REALTY, LLC; COMMERCE PARK PROPERTIES, LLC; COMMERCE PARK COMMONS, LLC; COMMERCE PARK ASSOCIATES 4, LLC; and CATAPULT REALTY, LLC, Respondents

MATTHEW J. MCGOWAN, as and only as Receiver for Commerce Park Realty, LLC, Commerce Park Properties, LLC, Commerce Park Commons, LLC, Commerce Park Associates 4, LLC, and Catapult Realty, LLC, Petitioners

v.

COMMERCE PARK MANAGEMENT, LLC, Respondent

C.A. Nos. PM-2013-0350, PM-2013-5001

Superior Court of Rhode Island, Providence

December 21, 2020

Petitioners Brian LaPlante, Esq. Richard G. Riendeau, Esq. Michael J. Jacobs, Esq.

RFP Defendants: HR2-A Corp. as General Partner of HR2-A Limited Partnership; HR4-A Corp., as General Partner of HR4-A Limited Partnership; MR4A-JV Corp., as General Partner of MR4A-JV Limited Partnership; Realty Financial Partners • Robert D. Wieck, Esq. D'Ambra Construction Company Inc. • William M. Russo, Esq. • David M. D'Agostino, Esq. • Nicholas Gorham, Esq. Vellano Bros. Inc. • Joseph J. Reale, Jr., Esq.

670 & 720 Coventry LLC • Burns & Levinson LLP • Richard Lumley, Esq. Benderson 85-1 Trust • Michael J. Lepizzera, Jr., Esq. • John A. Pagliarini, Jr., Esq. Ferguson Enterprises Inc. • Martin K. DeMagistris, Esq. Holland and Knight LLP • Brian J. Lamoureaux, Esq. • Matthew C. Reeber, Esq. Home Depot U.S.A., Inc. • Jeffrey S. Brenner, Esq.

LR2-A Limited Partnership; LR4-A Limited Partnership; Realty Financial Partners • Preston W. Halperin, Esq. Linda Malafronte; Robin Pelleccione • Scott F. Bielecki, Esq. Potomac Realty Capital LLC • William J. Delaney, Esq. Daniel Palmier • Joseph V. Cavanagh III, Esq.

RI Heritage Inn of West Greenwich LLC • Ronald K. Markoff, Esq. Roadepot, LLC • Zachary Berk, Esq. W. Mark Russo • John A. Dorsey, Jr., Esq.

The Highlands at Hopkins Hill Condominium Association, Inc.; • Frank A. Lombardi, Esq. • Frederick C. Casavant, Esq. • Mary Joy A. Spencer, Esq.

Village Green Condominium Association, Inc. • Frank A. Lombardi, Esq. • Dennis J. Roberts II, Esq.

WIP Grandeville Apartments, LLC • Frank A. Lombardi, Esq. • Mary Joy A. Spencer, Esq. • Christine A. Murphy, Esq.

The Washington Trust Company • Gardner H. Palmer, Esq.

Wal-Mart Real Estate Business Trust; Wal-Mart Stores East, LP • Richard J. Land, Esq.

RECEIVER • Matthew J. McGowan, Esq. • Elizabeth Lonardo, Esq., • R. Thomas Dunn, Esq.

Commerce Park Management, LLC • William J. Delaney, Esq.

INTERESTED PARTY: 670 & 720 Coventry LLC • Burns & Levinson LLP • Richard Lumley, Esq.

Nicholas E. Cambio; CKLP, Inc.; Commercial Park Associates 2, LLC; Universal Truck & Equipment Leasing, Inc. • Richard G. Riendeau, Esq. Home Depot U.S.A., Inc. • Jeffrey S. Brenner, Esq., Realty Financial Partners • Robert D. Wieck, Esq. W. Mark Russo • John A. Dorsey, Jr., Esq.

DECISION

TAFT-CARTER, J.

Before this Court for decision are three motions: (1) HR2-A Corp. as General Partner of HR2-A Limited Partnership; HR4-A Corp., as General Partner of HR4-A Limited Partnership; MR4A-JV Corp., as General Partner of MR4A-JV Limited Partnership; and Realty Financial Partners' (RFP Defendants) Motion to Stay Pending Appeal; (2) Petitioner Nicholas E. Cambio's (Cambio), Trustee of the Nicholas E. Cambio, Roney A. Malafronte, and Vincent A. Cambio Trust, Cross-Motion for Stay Pending Cross-Appeal; and (3) the Receiver, Matthew J. McGowan's (Receiver), as Receiver for Commerce Park Realty, LLC, Commerce Park Properties, LLC, Commerce Park Commons, LLC, Commerce Park Associates 4, LLC, and Catapult Realty, LLC, Motion to Dismiss Cambio Parties' Appeal. The Receiver objected to both motions to stay and Cambio objected to the Receiver's motion to dismiss. The two motions to stay were heard remotely via WebEx on October 28, 2020.1 The motion to dismiss Cambio's appeal was heard remotely via WebEx on December 1, 2020. As common facts surround these three motions, the Court issues one decision for the purposes of judicial economy. This Court exercises jurisdiction pursuant to Article I, Rules 8(a) and 11(f) of the Supreme Court Rules of Appellate Procedure.

I. Facts and Travel

The RFP Defendants move pursuant to Article I, Rule 8(a) of the Supreme Court Rules of Appellate Procedure and ask this Court to issue a stay pending appeal of the "Order Granting Receiver's Motion to Sell Property Free and Clear of Liens and Encumbrances (Approximately Two-Acre Parcel To Be Subdivided Out of West Greenwich Plat 1, Lot 4-3)" (West Greenwich Order) entered in this action on August 31, 2020 granting the Receiver's April 29, 2020 Motion to Sell Property Free and Clear of Liens and Encumbrances (April Motion). (RFP Defs.' Mot. to Stay Pending Appeal (RFP Defs.' Mot. to Stay) at 1-2.) The Order follows a Decision issued by this Court on July 27, 2020. Id. at 2. The West Greenwich Order authorized the sale of a two-acre parcel to be carved out of a 6.93-acre parcel of land.

Cambio has requested a stay of two orders, both issued on August 31, 2020. (Cambio's Cross-Mot. to Stay Pending Cross-Appeal (Cambio's Cross-Mot. to Stay) at 2.) The first order is the West Greenwich Order and the second order is the "Consent Order Regarding Water Project And Sale Of 29 Lots Within The Highlands" (29 Units Order) which finalized the 2018 provisional approval of the sale of 29 "land only units" in the Highlands at Hopkins Hill Condominium. The Receiver moved to dismiss only Cambio's appeal of the 29 Units Order.

A. The West Greenwich Order

The Centre of New England (CNE) is a development complex that contains various developed and undeveloped properties owned by the Receivership Entities. See Cambio v. Commerce Park Realty, LLC, Nos. PM-2013-0350, PM-2013-5001, 2020 WL 4456543, at *2 (R.I. Super. July 27, 2020) [the July 27 Decision]. The Receiver initially filed a Motion to Sell Property Free and Clear of Liens on November 26, 2019. Id. at *3. Then, on April 29, 2020, the Receiver filed an amended Motion along with a Notice of Hearing and Invitation for Competing Bids. Id. This Court held hearings on June 3 and June 24, 2020 for the April Motion. (West Greenwich Order at 2.) In between these hearings, on June 17, 2020, the Receiver filed a supplemental Motion addressing specific inquiries of the Court from the first hearing. July 27 Decision, 2020 WL 4456543, at *3.

In the July 27 Decision, this Court granted the Receiver's April Motion allowing the Receiver to sell the two acres "free and clear of all interests, claims, liens and encumbrances." Id. at *4. Additionally, this Court found that "[t]he terms of the Receiver's proposed sale to the Buyer, including the price, proposed subdivision, and Liquor Store Covenant, are reasonable and in the best interests of the estate." Id. Specifically, this Court was "satisfied that the Receiver exercised his business judgment in concluding that he could not sell the Primary Parcel." Id. at *3. The Primary Parcel encompassed 6.93 acres. The two-acre parcel was carved out of the Primary Parcel for the sale. This Court reasoned that the Receiver was "reasonable in concluding that sale of the larger parcel [was] not feasible" because "the Receiver 'engaged in substantial marketing efforts' to advertise and sell the entire Primary Parcel to no avail" and "engaged the experienced commercial brokerage firm" to try and market and sell undeveloped property at the CNE, including having the Primary Parcel listed on the brokerage firm's website for eight months. Id. at *3.

This Court then entered the West Greenwich Order on August 31, 2020. The Order stated that "[f]or the reasons expressed in the [July 27 Decision], the Court finds that the Receiver's proposed sale of the Property is commercially reasonable and in the best interests of the receivership estate[.]" (West Greenwich Order ¶ 5.)

B. The 29 Lots Order

On August 2, 2018, this Court entered an order entitled "Order Provisionally Granting Receiver's Motion to Sell Property Free and Clear of Liens, Claims and Encumbrances (29 Vacant Lots in Highlands)" (Provisional Granting Order). The Provisional Granting Order's approval of the sale of 29 lots was "subject to the Receiver reaching an agreement with the Highlands at Hopkins Hill Condominium Association (the "Association") as to the claims and interests of the Association or, failing that, the Court ordering an appropriate amount from the proceeds paid at the closing on the sale of this court-approved sale being set aside in respect to the claims of the Association." (Provisional Granting Order ¶ 1.)

The Provisional Granting Order further required that "a second order from the Court, referencing this Order," be entered "ordering and directing that such condition has and shall be deemed to have been fully satisfied." Id.

On August 31, 2020, this Court entered the 29 Units Order, in which the Court stated that "the Association and the Receiver" agreed to "work towards finalizing a further resolution that will settle and resolve all of their remaining respective claims and issues related to the Highlands." (29 Units Order ¶ L.) The 29 Units Order set out various items that the parties further agreed to, such as directing a certain amount of money be given to the Association upon "the closing on the Receiver's sale of the 29 Lots." Id. ¶ 7.

The RFP Defendants filed a Notice of Appeal on September 18, 2020 followed by a Motion to Stay on September 23, 2020. In that Notice of Appeal, the RFP Defendants stated that they were appealing the "8/31/2020 (Order re Approx. Two-Acre to be Subdivided)." On October 8, 2020, Cambio filed his Notice of Appeal, in which it was stated that the appeal was from the "8/31/2020...

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