Commerce Park Realty, LLC v. HR2-A Corp. as General Partner of HR2-A Limited Partnership ( 2021 )

June 30, 2021
Supreme Court
No. 2020-33-Appeal.
(PB 11-1922)
Commerce Park Realty, LLC, et al. :
v. :
HR2-A Corp. as General Partner of :
HR2-A Limited Partnership et al.
NOTICE: This opinion is subject to formal revision
before publication in the Rhode Island Reporter. Readers
are requested to notify the Opinion Analyst, Supreme
Court of Rhode Island, 250 Benefit Street, Providence,
Rhode Island 02903, at Telephone (401) 222-3258 or
Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that
corrections may be made before the opinion is published.
Supreme Court
No. 2020-33-Appeal.
(PB 11-1922)
Commerce Park Realty, LLC, et al. :
v. :
HR2-A Corp. as General Partner of :
HR2-A Limited Partnership et al.
Present: Suttell, C.J., Goldberg, Robinson, and Long, JJ.
OPINION
Justice Goldberg, for the Court. The case before us involves complex
and protracted litigation surrounding usurious loans between commercial
borrowers and lenders. This opinion is one of two companion cases issued today.
In the first appeal (No. 19-468-A.) (the RFP defendants’ appeal), defendants
HR2-A Corp., HR4-A Corp., MR4A-JV Corp., and Realty Financial Partners
(collectively, RFP defendants) appealed from the grant of partial summary
judgment in favor of plaintiffs Commerce Park Realty, LLC; Commerce Park
Properties, LLC; Commerce Park Commons, LLC; Commerce Park Associates 4,
LLC; and Receiver Matthew McGowan—appointed Permanent Receiver on
February 20, 2013, for the four above-referenced limited liability companies
(collectively, receivership plaintiffs), and also in favor of plaintiffs Commerce
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Park Associates 11, LLC; Dartmouth Commons, LLC; Warwick Village, LLC;
Universal Properties Group, Inc.; Nicholas E. Cambio, individually and as Trustee
of the Nicholas E. Cambio, Roney A. Malafronte, and Vincent A. Cambio Trust;
and Vincent A. Cambio (collectively, Cambio plaintiffs). That grant of partial
summary judgment declared that a series of loans made by the RFP defendants
carrying interest rates ranging from 26 percent to 36 percent per annum were
usurious and null and void. This Court affirmed the decision of the trial justice and
denied and dismissed the RFP defendants’ appeal. See Commerce Park Realty,
LLC v. HR2-A Corp., No. 19-468-A., 2021 WL ____, ___A.3d___ (R.I., filed
June 30, 2021).
The second appeal (No. 20-33-A.), addressed herein, flows from the trial
justice’s grant of summary judgment and is a cross-appeal by the Cambio
plaintiffs, seeking review of secondary determinations made by the Superior Court
that coincided with the finding that the loans were usurious. For the reasons set
forth in this opinion, we affirm the judgment of the Superior Court.
Facts and Travel1
The genesis of this complex commercial-loan saga is a series of loans issued
by RFP defendants HR2-A Corp. and HR4-A Corp. to receivership plaintiffs and
1
A detailed discussion of the underlying case is recited in the companion case,
Commerce Park Realty, LLC v. HR2-A Corp., No. 19-468-A., 2021 WL ____,
___A.3d___ (R.I., filed June 30, 2021), and need not be repeated herein.
-2-
Cambio plaintiffs beginning in 1997.2 The loans were secured by mortgages over
hundreds of acres of property owned by receivership plaintiffs located in West
Greenwich, East Greenwich, and Coventry, Rhode Island.3 The loans were not
repaid.
On April 11, 2011, RFP defendants exercised their right to demand payment
on the loans. Three days before the demand, however, receivership plaintiffs and
Cambio plaintiffs filed a Superior Court verified complaint against RFP
defendants, seeking, inter alia, judgment against RFP defendants for violation of
G.L. 1956 § 6-26-2, Rhode Island’s usury statute.4 This litigation has been
pending ever since.
In October through December 2014, cross-motions for partial summary
judgment on a number of issues were filed by all parties. Primarily, the parties
sought a declaration as to whether certain loans at issue were usurious. In
conjunction with those motions, RFP defendants sought a declaratory ruling on
2
The receivership plaintiffs did not enter into receivership until 2013. We
nonetheless refer to them as “receivership plaintiffs” throughout this opinion for
ease of reference.
3
The loans were for the development of the so-called “Centre of New England
project,” which comprises retail, restaurant, hotel, multifamily residential, light
industrial, and mixed-use developments.
4
On April 20, 2011, this case was removed to the United States District Court for
the District of Rhode Island. On September 18, 2013, the case was remanded back
to the Superior Court.
-3-
usury claim entitlement, that, if certain loans were deemed usurious, Cambio
plaintiffs were not entitled to disgorgement payments under § 6-26-4(c)—the
statute penalizing usurious contracts (the RFP entitlement motion).5 Following
hearings on the cross-motions for summary judgment and the RFP entitlement
motion, the trial justice issued a written decision on June 19, 2019. Judgment
entered on September 19, 2019, and Cambio plaintiffs timely appealed.
Additional facts are set forth infra as necessary to the issues relevant to this
appeal.
Standard of Review
“[T]his Court reviews a grant of summary judgment de novo.” Ballard v.
SVF Foundation, 181 A.3d 27, 34 (R.I. 2018) (quoting Sullo v. Greenberg, 68
A.3d 404, 406 (R.I. 2013)). “Examining the case from the vantage point of the
trial justice who passed on the motion for summary judgment, we view the
evidence in the light most favorable to the nonmoving party[.]” Id. (brackets
omitted) (quoting Sullo, 68 A.3d at 406). If we determine that “there are no
genuine issues of material fact and that the moving party is entitled to judgment as
a matter of law, we will affirm the judgment.” Id. (brackets omitted) (quoting
Sullo, 68 A.3d at 407). “Although summary judgment is recognized as an extreme
remedy, to avoid summary judgment the burden is on the nonmoving party to
5
The RFP entitlement motion was structured as a summary-judgment motion and
sought dismissal of Cambio plaintiffs’ claims for compensatory damages.
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produce competent evidence that proves the existence of a disputed issue of
material fact.” Id. (brackets and deletion omitted) (quoting Sullo, 68 A.3d at 407).
“In the absence of a credible showing of the existence of material facts, summary
judgment is warranted.” Id.
Analysis
On appeal, Cambio plaintiffs submit four assignments of error: (1) the trial
justice erred in concluding that Cambio plaintiffs were not entitled to disgorgement
payments on certain usurious loans; (2) the trial justice erred in dismissing Cambio
plaintiffs’ claims for punitive damages concerning certain usurious loans; (3) the
trial justice erred in allowing RFP defendants to seek and obtain summary
judgment on counts that were previously stayed; and (4) the trial justice misapplied
the statute of limitations to Cambio plaintiffs’ claims for criminal usury under G.L.
1956 § 9-1-2. We address each contention in turn.
The Loans
On December 11, 2000, RFP defendants, receivership plaintiffs, and Cambio
plaintiffs executed loan documents, two of which were backdated to August 1,
2000, for the amounts of $14,320,000 ($14 million loan) and $7,599,333
($7 million loan), respectively. The Cambio plaintiffs were named borrowers
along with receivership plaintiffs on the $14 million loan and were guarantors of
the $7 million loan. As of August 1, 2000, RFP defendants began charging a 36-
-5-
percent effective annual interest rate on the $14 million loan and a 26-percent
effective annual interest rate on the $7 million loan. On December 11, 2000, and
March 28, 2003, RFP defendants issued additional loans in the principal amounts
of $4,300,000 ($4.3 million loan) and $350,000 ($350K loan) and charged interest
rates of approximately 23 percent.
The $14 million loan and $7 million loan were declared usurious by the trial
justice, and we affirmed that decision today. See Commerce Park Realty, LLC,
No. 19-468-A., 2021 WL ____, ___A.3d at___. For purposes of Cambio
plaintiffs’ appeal of the dismissal of the disgorgement claims, we are concerned
only with the $14 million loan.
Disgorgement Under G.L. 1956 § 6-26-4(c)
In November 2014, three years after the commencement of this action, RFP
defendants filed the RFP entitlement motion for summary judgment on Cambio
plaintiffs’ claims seeking money damages related to the $14 million loan and $7
million loan (the disgorgement claims).6
In her June 19, 2019 decision, the trial justice correctly determined that,
under the plain and unambiguous language of § 6-26-4(c), only a named borrower
6
At oral argument on May 7, 2021, Cambio plaintiffs explicitly waived their
disgorgement claim under the $7 million loan, conceding that they are not named
borrowers on that loan. Accordingly, we confine our review of this issue to
whether Cambio plaintiffs are entitled to disgorgement payments under the $14
million loan.
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who made payments on a usurious loan is entitled to disgorgement payments—i.e.,
compensatory damages under the usury statute. The trial justice granted the RFP
entitlement motion, in part,7 concluding that because Cambio plaintiffs did not
make any payments under the $14 million loan and were not listed as borrowers on
the $7 million loan, they were not entitled to disgorgement payments.
On appeal, Cambio plaintiffs contend that the trial justice incorrectly
interpreted § 6-26-4(c) and, as a result, erroneously dismissed Cambio plaintiffs’
disgorgement claims. We are therefore confronted with a question of statutory
interpretation.
Section 6-26-4(c) reads:
“Nothing contained in this section shall affect the rights,
duties or liabilities of any persons acting under the
provisions of title 19, and if the borrower shall, either
before or after suit, make any payment on the contract,
either of principal or interest, or of any part of either, and
whether to the lender or to any assignee, endorsee, or
transferee of the contract, the borrower shall be entitled
to recover from the lender the amount so paid in an
action of the case. Receipts shall be given whenever
payments are made of either principal or interest.”
(Emphasis added.)
This provision of the usury statute allows for recovery of damages in the event that
a contract is found to violate the usury statute.
7
In the RFP entitlement motion, RFP defendants also sought summary judgment
on Cambio plaintiffs’ claim seeking damages relating to the $4.3 million loan. The
trial justice denied summary judgment on that claim because no party had yet
moved to find the $4.3 million loan usurious.
-7-
The Cambio plaintiffs assert that the word “borrower” in § 6-26-4(c) should
be read to include all borrowers on a usurious loan and that, upon any payment on
a usurious loan, reimbursement is due to “borrowers” generally, not just the
borrowers who actually made payment. In other words, Cambio plaintiffs submit
that, under § 6-26-4(c), so long as one named borrower makes a payment on a
usurious loan, all named borrowers may share in the disgorgement payments. We
reject this contention.
This Court conducts de novo review of questions of statutory interpretation.
Iselin v. Retirement Board of Employees’ Retirement System of Rhode Island, 943
A.2d 1045, 1049 (R.I. 2008). “It is well settled that when the language of a statute
is clear and unambiguous, this Court must interpret the statute literally and must
give the words of the statute their plain and ordinary meanings.” Accent Store
Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1226 (R.I. 1996).8
Moreover, “[i]n matters of statutory interpretation our ultimate goal is to give
effect to the purpose of the act as intended by the Legislature.” Webster v.
Perrotta, 774 A.2d 68, 75 (R.I. 2001). “The Legislature is presumed to have
intended each word or provision of a statute to express a significant meaning, and
8
Conversely, when confronted with an ambiguous statute, this Court employs
principles of statutory construction and examines the statute in its entirety in order
to discern “the intent and purpose of the Legislature.” State v. Peterson, 722 A.2d
259, 264 (R.I. 1998) (quoting In re Advisory to the Governor (Judicial Nominating
Commission), 668 A.2d 1246, 1248 (R.I. 1996)).
-8-
the Court will give effect to every word, clause, or sentence, whenever possible.”
State v. Clark, 974 A.2d 558, 571 (R.I. 2009) (brackets omitted) (quoting State v.
Bryant, 670 A.2d 776, 779 (R.I. 1996)).
After applying this well-settled statutory framework, we are of the opinion
that § 6-26-4(c) contains no ambiguity and, therefore, we apply the language of the
statute in accordance with its plain and ordinary meaning. Section 6-26-4(c)
dictates that “if the borrower shall * * * make any payment on the contract, either
of principal or interest, * * * the borrower shall be entitled to recover from the
lender the amount so paid in an action of the case.” Upon review of this
phraseology, we conclude that this provision postulates two threshold requirements
for a party to be entitled to disgorgement payments: (1) the party must be a named
“borrower” on the usurious loan, and (2) that named borrower must “make any
payment” to the lender—irrespective of whether value is rendered directly or
indirectly. See id. If both of these conditions are met, the borrower is “entitled to
recover from the lender the amount so paid[.]” See id.
Thus, our analysis is straightforward. It is undisputed that Cambio plaintiffs
were co-borrowers with receivership plaintiffs only on the $14 million loan, but
they were not co-payors. The Cambio plaintiffs did not make any payment—
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directly or indirectly—on the $14 million loan.9 Nor do they contend otherwise
before this Court. Simply put, Cambio plaintiffs may not receive reimbursement
for payments that were never made; nor should Cambio plaintiffs and receivership
plaintiffs be accorded equal treatment when the evidence clearly demonstrates that
only receivership plaintiffs made usurious payments to RFP defendants. See
discussion supra at footnote 9. We therefore conclude that because there is no
evidence in the record of a payment made by Cambio plaintiffs in accordance with
§ 6-26-4(c)—a factual predicate in this instance—there is no “amount so paid” for
them to recover. See § 6-26-4(c).
Adopting Cambio plaintiffs’ proposed interpretation of the statute would
require us to “broaden statutory provisions by judicial interpretation[,]” which this
9
In the Superior Court, RFP defendants produced detailed records identifying each
transaction pertaining to the $14 million loan, including a schedule of payments,
summary of payments, and schedule of escrow payments. The Cambio plaintiffs
did not contest that this production of documents outlined each payment made on
the $14 million loan. The trial justice found that these documents show that
receivership plaintiffs made payments to RFP defendants on the $14 million loan
mostly through sale and financing transactions with third parties. Specifically,
third parties would make payments to RFP defendants in exchange for the
conveyance of land owned by one or more receivership plaintiff. In consideration
of the payments made by third parties to RFP defendants for the various parcels of
land, RFP defendants released their mortgage on those parcels and credited the
payment towards receivership plaintiffs’ total indebtedness. As such, receivership
plaintiffs rendered value to RFP defendants through transactions involving real
estate conveyances. The Cambio plaintiffs do not contend that the trial justice
erred in determining that these transactions constituted payments under § 6-26-
4(c). Significantly, Cambio plaintiffs were not credited with any of these
payments because they did not own any of the real estate that was being conveyed.
- 10 -
Court steadfastly declines to do “unless such interpretation is necessary and
appropriate in carrying out the clear intent or defining the terms of the statute.”
Iselin, 943 A.2d at 1049, 1050 (quoting State v. Santos, 870 A.2d 1029, 1032 (R.I.
2005)). The language of § 6-26-4(c) plainly shows that the Legislature assigned
the right to recover disgorgement payments to those borrower(s) who made
payments. The Cambio plaintiffs, who paid nothing toward the $14 million loan,
simply do not meet the requirements set forth in § 6-26-4(c) to recover
disgorgement payments.
This conclusion is harmonious with the public policy behind Rhode Island’s
usury statute, which is to protect the borrower. See NV One, LLC v. Potomac
Realty Capital, LLC, 84 A.3d 800, 809 (R.I. 2014) (declaring the public policy
behind Rhode Island’s usury statute: “For protection of the borrower, it is
incumbent upon the lender to ensure full compliance with the provisions for
maximum rate of interest, and * * * anything short of full compliance renders the
transaction usurious and void.”).
We therefore affirm the trial justice’s grant of summary judgment in favor of
RFP defendants on Cambio plaintiffs’ disgorgement claims.
Punitive Damages
After ruling that Cambio plaintiffs are not entitled to disgorgement payments
(i.e., compensatory damages) under the usury statute, the trial justice necessarily
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concluded that they could not maintain a claim for punitive damages, which must
be supported by an award of compensatory damages. On appeal, Cambio plaintiffs
assert that, because the trial justice erroneously ruled that they were not entitled to
disgorgement payments, she likewise erroneously ruled that they were not entitled
to seek punitive damages against RFP defendants under the usury statute.
“This Court has repeatedly declared that punitive damages are severely
restricted under Rhode Island law.” Mark v. Congregation Mishkon Tefiloh, 745
A.2d 777, 779 (R.I. 2000). “The standard in Rhode Island for imposing punitive
damages is rigorous and will be satisfied only in instances wherein a defendant’s
conduct requires deterrence and punishment over and above that provided in an
award of compensatory damages.” Id. (quoting Palmisano v. Toth, 624 A.2d 314,
318 (R.I. 1993)).
An award of punitive damages is in addition to an award of compensatory
damages; thus, the trial justice properly determined that punitive damages must be
supported by an award of compensatory damages. Because we affirm the trial
justice’s determination that Cambio plaintiffs do not meet the requirements set
forth in § 6-26-4(c) to recover disgorgement payments, we also affirm her
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dismissal of Cambio plaintiffs’ claims for punitive damages, as those claims fail as
a matter of law.10
The Stayed Counts
In June 2014, more than three years after the filing of the original complaint,
Cambio plaintiffs and receivership plaintiffs jointly filed a motion to amend their
respective claims. The proposed amended complaint contained fifty-three causes
of action—forty-one counts brought by Cambio plaintiffs and twelve brought by
receivership plaintiffs.11
In September 2014, the trial justice entered a scheduling order, which
permitted certain counts of the amended complaint to proceed to resolution and
stayed the remaining counts pending final adjudication of the permitted counts. On
December 15, 2017, the trial justice entered another scheduling order, which
further modified the bifurcated counts of the amended complaint: That order
identified the active counts under which litigation was allowed to proceed, the
stayed counts, and those counts that were subject to expedited discovery. Notably,
10
We note, however, that Counts XXXII, XXXIII, and XXXIV, brought under the
Racketeer Influenced and Corrupt Organizations Act, G.L. 1956 chapter 15 of title
7 (the RICO counts), remain active in this litigation; to the extent punitive damages
are allowed, Cambio plaintiffs’ claims for punitive damages on the RICO counts
remain viable.
11
This constituted the fifth amended complaint.
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this later scheduling order permitted some of the stayed counts set forth in the
previous scheduling order to proceed to litigation.
On appeal, Cambio plaintiffs assert that, in her June 19, 2019 decision, the
trial justice erroneously ruled on certain counts of the amended complaint that had
been stayed. The Cambio plaintiffs assign error to the trial justice’s ruling on four
counts that were stayed pursuant to the December 15, 2017 scheduling order—
three counts seeking a constructive trust on the usurious loans (Counts XLIII,
XLIV, and XLV) and one count alleging unlawful foreclosure on the Centre of
New England property (Count LIII).12
At oral argument, and to their credit, Cambio plaintiffs conceded that these
stayed counts would not be viable were this Court to uphold the trial justice’s
ruling on the disgorgement claims—as we have done herein—because they are
inextricably linked to the disgorgement claims. We agree with Cambio plaintiffs’
concession; however, we nonetheless proceed to address the merits of this claim.
As to Cambio plaintiffs’ claims for a constructive trust, “the underlying
principle of a constructive trust is the equitable prevention of unjust enrichment of
12
The trial justice’s June 19, 2019 decision denied RFP defendants’ motion for
summary judgment on Cambio plaintiffs’ Count XXXI (punitive damages in
relation to the $4 million loan) and Counts XXXII, XXXIII, and XXXIV (the
RICO counts), which were stayed pursuant to the December 15, 2017 scheduling
order. Because the trial justice ruled in favor of Cambio plaintiffs on these claims,
they do not press the reversal of the ruling on the RICO counts; however, they
acknowledge that Count XXXI should not have been ruled upon.
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one party at the expense of another in situations in which legal title to property was
obtained by fraud or in violation of a fiduciary or confidential relationship.”
Dellagrotta v. Dellagrotta, 873 A.2d 101, 111 (R.I. 2005) (brackets omitted)
(quoting Renaud v. Ewart, 712 A.2d 884, 885 (R.I. 1998) (mem.)). Here, there can
be no unjust enrichment on the part of RFP defendants at the expense of Cambio
plaintiffs because Cambio plaintiffs made no payments, nor did they transfer legal
title to any property, to RFP defendants. If a constructive-trust remedy were to
exist in this case, it would exist only for those who rendered payment to RFP
defendants and were entitled to damages. Therefore, the conclusion that Cambio
plaintiffs are not entitled to damages under § 6-26-4(c) is dispositive of their
claims for a constructive trust.
The same holds true for Cambio plaintiffs’ claim for unlawful foreclosure.
The Cambio plaintiffs were not the owners of the property within the Centre of
New England that was subject to foreclosure; at all relevant times, receivership
plaintiffs were the record title owners of the property that was encumbered by
mortgages subject to RFP defendants’ loans. The Cambio plaintiffs therefore may
not assert an unlawful-foreclosure claim because they do not own any of the real
estate involved. See Bucci v. Lehman Brothers Bank, FSB, 68 A.3d 1069, 1088
(R.I. 2013) (noting the differences between legal title and equitable title and
holding that those with legal title have the right to foreclose on property).
- 15 -
Although the trial justice’s ruling on the stayed counts may not have been
the best practice, we are of the opinion that any potential procedural error was
harmless in consideration of practicality and judicial economy.13 Because Cambio
plaintiffs’ claims for a constructive trust and unlawful foreclosure are necessarily
connected to their disgorgement claims—which we hold were properly
dismissed—they fail as a matter of law. A reversal of the trial justice’s decision
on these counts would only result in undue delay and expense in litigating legally
unsustainable claims. We therefore affirm the trial justice’s grant of summary
judgment on these counts14
Causes of Action under § 9-1-2 and § 6-26-3
In Counts XXXVII through XL of the amended complaint, Cambio
plaintiffs alleged that RFP defendants knowingly and willfully violated the usury
statute, such that they are entitled to recover damages pursuant to § 9-1-2 for RFP
13
We pause to note that the fifty-three counts in the fifth amended complaint were
designated by Roman numerals—a singular challenge made further complicated by
the kitchen-sink variety of the claims.
14
We likewise affirm the trial justice’s denial of summary judgment on Count
XXXI (punitive damages in relation to the $4 million loan) and Counts XXXII,
XXXIII, and XXXIV (the RICO counts), discussed supra at footnote 12, as Cambio
plaintiffs should be afforded an opportunity to address those counts on the merits.
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defendants’ violation of the criminal usury statute.15 The RFP defendants moved
for summary judgment on these claims based on the ten-year statute of limitations
for claims brought under § 9-1-2, and the trial justice granted their motion on those
counts.
The trial justice concluded that Cambio plaintiffs’ § 9-1-2 causes of action
accrued when the parties executed the $14 million loan and $7 million loan in
December 2000. Because the complaint was filed in the Superior Court on April 8,
2011, the trial justice determined that the statute of limitations for Cambio
plaintiffs’ § 9-1-2 claims had expired.
On appeal, Cambio plaintiffs assert that the trial justice erred in applying the
ten-year statute of limitations and by failing to address the continuing tort
doctrine.16 They assert that the crime of usury existed beyond the day that the
15
General Laws 1956 § 9-1-2, entitled “Civil liability for crimes and offenses[,]”
provides, in pertinent part:
“Whenever any person shall suffer any injury to his or
her person, reputation, or estate by reason of the
commission of any crime or offense, he or she may
recover his or her damages for the injury in a civil action
against the offender, and it shall not be any defense to
such action that no criminal complaint for the crime or
offense has been made[.]”
16
“The ‘continuing tort doctrine’ provides that, in certain tort cases involving
continuous or repeated injuries, the statute of limitations accrues upon the date of
the last injury and that the plaintiff may recover for the entire period of the
defendant’s negligence * * *.” 54 C.J.S. Limitations of Actions § 222 at 270.
- 17 -
usurious documents were executed because RFP defendants engaged in multiple
acts of charging usurious interest rates under the $14 million loan and $7 million
loan, including RFP defendants’ April 2011 demand for usurious interest
payments.
Fatal to Cambio plaintiffs’ challenge is the fact that they did not raise this
argument to the trial justice. The RFP defendants moved for summary judgment
on Cambio plaintiffs’ § 9-1-2 claims in a supplemental memorandum in support of
the RFP entitlement motion filed on January 9, 2015. The record reveals that
Cambio plaintiffs filed two separate responses to RFP defendants’ supplemental
memorandum, neither of which addressed the statute of limitations argument
concerning those claims; nor do we discern anything in the record from Cambio
plaintiffs concerning the continuing tort doctrine.17 We have consistently declared
that “[t]his Court * * * staunchly adhere[s] to the ‘raise-or-waive’ rule.” Rohena v.
City of Providence, 154 A.3d 935, 938 (R.I. 2017). Thus, “[i]t is well settled that a
litigant cannot raise an objection or advance a new theory on appeal if it was not
17
At oral argument, this Court inquired as to whether Cambio plaintiffs properly
preserved this argument for appeal. Unable to provide an answer, counsel for
Cambio plaintiffs agreed to submit to this Court evidence that the issue was
preserved; to no avail—counsel failed to produce any evidence that this argument
was raised to the trial justice. Because Article I, Rule 17(a)(4) of the Supreme
Court Rules of Appellate Procedure places the burden on the appellant to prepare
an appendix containing “[a]ny other part of the record * * * to which the party
wishes to direct the particular attention of the Supreme Court[,]” “[w]e will not
search the record to substantiate that which a party alleges.” Riley v. Stone, 900
A.2d 1087, 1098 n.14 (R.I. 2006).
- 18 -
raised before the trial court.” Id. (quoting State v. Bido, 941 A.2d 822, 828-29 (R.I.
2008)). Consequently, this argument is not properly before us.
Nonetheless, our review of the complaint leads us to the same conclusion as
the trial justice. The Cambio plaintiffs allege that RFP defendants knowingly and
willfully violated the criminal usury statute when they “charged retroactive interest
at usurious rates[.]” However, they argued in the Superior Court that the conduct
supporting these allegations occurred in December 2000. Specifically, Cambio
plaintiffs asserted that they were seeking relief for “the violation of * * * § 6-26-3
that occurred when the RFP [d]efendants knowingly and willfully charged usurious
interest retroactively from the December 11, 2000 closing(s) on the [$14 million
loan and $7 million loan] and their knowing and willful backdating of the loan
documents for these loans.” We are satisfied that the predicate conduct upon
which Cambio plaintiffs relied in asserting their § 9-1-2 claims occurred in
December 2000, when RFP defendants executed the loan documents at issue that
backdated and charged the retroactive usurious interest rates.
The provision setting forth the statute of limitations for civil actions,
including those brought pursuant to § 9-1-2, plainly states, “[e]xcept as otherwise
specially provided, all civil actions shall be commenced within ten (10) years next
after the cause of action shall accrue, and not after.” Section 9-1-13(a). Because
the cause of action accrued in December 2000, and the complaint was not filed
- 19 -
until April 2011, Cambio plaintiffs’ claims under § 9-1-2 are barred by the ten-year
statute of limitations set forth in § 9-1-13(a).
Conclusion
For the reasons set forth in this opinion, we affirm the judgment of the
Superior Court. The papers in this case shall be returned to the Superior Court.
Justice Lynch Prata did not participate.
- 20 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Commerce Park Realty, LLC, et al. v. HR2-A Corp.
Title of Case as General Partner of HR2-A Limited Partnership et
al.
No. 2020-33-Appeal.
Case Number
(PB 11-1922)
Date Opinion Filed June 30, 2021
Justices Suttell, C.J., Goldberg, Robinson, and Long, JJ.
Written By Associate Justice Maureen McKenna Goldberg
Source of Appeal Providence County Superior Court
Judicial Officer from Lower Court Associate Justice Sarah Taft-Carter
For Plaintiffs:
Brian LaPlante, Esq.
R. Thomas Dunn, Esq.
Richard G. Riendeau, Esq.
Michael J. Jacobs, Esq.
Thomas M. Dickinson, Esq.
Attorney(s) on Appeal
John O. Mancini, Esq.
Nicole M. Matteo, Esq.
Matthew J. McGowan, Esq.
For Defendants:
Robert D. Wieck, Esq.
William J. Delaney, Esq.
SU-CMS-02A (revised June 2020)