Tilcon Capaldi, Inc. v. Feldman

United States Court of Appeals
For the First Circuit
No. 00-1350
No. 00-1351

TILCON CAPALDI, INC., f/k/a TILCON GAMMINO, INC.,

Plaintiff, Appellant/Cross-Appellee,

v.

GERALD FELDMAN,

Defendant, Appellee/Cross-Appellant.
__________

OLD MASHPEE ASSOCIATES LIMITED PARTNERSHIP,
NEWTON CENTRE RESTAURANT CORP., R&J, INCORPORATED,
LEONARD J. SAMIA and
NEW BOSTON FINANCIAL PARTNERSHIP,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Boudin, Circuit Judge,

Bownes, Senior Circuit Judge,

and Lynch, Circuit Judge.

Joseph J. Brodigan, P.C. with whom Langan, Dempsey &
Brodigan was on brief for plaintiff.
Peter B. McGlynn with whom Jason A. Manekas and Bernkopf,
Goodman & Baseman LLP were on brief for defendant Gerald
Feldman.
 May 16, 2001

BOUDIN, Circuit Judge. In 1986, Tilcon Capaldi, Inc.

("Tilcon"), a Rhode Island general contractor, sued to enforce

a mechanics' lien against Commercial Associates ("CA"), a

Massachusetts partnership for whom Tilcon had done site work

required for construction of a shopping center. After extended

and ramifying litigation in both state and federal court, Tilcon

obtained a judgment in 1992 in the federal district court in

Rhode Island for over $1 million in contract damages and ever

mounting interest.1 The judgment identified both CA and its

general partners as liable, without specifying whether the

parties were jointly or severally liable or whether they were

liable in their individual or partnership capacity.

Eventually, Tilcon registered the judgment with the

federal district court in Massachusetts. 28 U.S.C. § 1963 (1994

& Supp. II 1996). In April 1997, that court issued a writ of

execution, mounting interest bringing the sum due to almost $1.8

million. Unlike the Rhode Island district court judgment, this

1
Reported decisions in this saga include Commercial
Associates v. Tilcon Gammino, Inc., 998 F.2d 1092 (1st Cir.
1993), Commercial Associates v. Tilcon Gammino, Inc., 801 F.
Supp. 939 (D.R.I. 1992), and Tilcon Gammino, Inc. v. Commercial
Associates, 570 A.2d 1102 (R.I. 1990).

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initial Massachusetts judgment specified that CA and the general

partners were jointly and severally liable for the judgment.

Once again, the judgment did not state the capacity in which the

partners were liable. Jerald Feldman was one of CA's general

partners named in the judgment.

In May 1997, Tilcon brought the present action in

federal district court in Massachusetts to reach and apply

assets of Jerald Feldman to satisfy the judgment. Mass. Gen.

Laws ch. 214, § 3(6)-(7) (1998). Of importance for this appeal,

Tilcon sought to reach and apply--among other Feldman assets--

Feldman's interests in three nominee trusts apparently created

by Feldman and co-beneficiaries: his 16.88% beneficial interest

in Kelstock Realty Trust ("Kelstock"), his 18.75% beneficial

interest in Marlborough Realty Trust ("Marlborough"), and his

25% interest in Commercial Properties Trust ("Comprops").

A bench trial was held in this reach and apply action.

Feldman did not dispute that he held interests in the three

trusts, but he claimed that his interests could not be reached

because joint venture agreements, entered into after the trusts

were formed, made the interests unassignable.2 In addition,

2Initially a joint venture, Comprops was restructured during
this case as a limited partnership on the understanding that the
restructuring would not prejudice Tilcon's right of recovery.
Thus, for present purposes, it is convenient to treat it as if
the joint venture were still in force.

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Feldman argued that under principles of partnership law, he was

not liable for the judgment or, in the alternative, that he was

only liable for his aliquot share of the judgment.

In a decision rendered on January 5, 2000, the district

judge agreed with Feldman that his interests could not be

reached by Tilcon because the joint venture agreements made

Feldman's interests unassignable. The court also found that

because Tilcon's judgment against Feldman rested on a contract

claim, he was only jointly liable and was therefore liable only

for his aliquot share. Finally, the court concluded that

Tilcon's earlier settlements with two of CA's other general

partners had not released Feldman from any liability, and that

Tilcon could recover from Feldman's assets (apart from the trust

interests) despite Feldman's claim that Tilcon had not exhausted

all efforts to satisfy the judgment from CA's partnership

assets.

Both parties now appeal from the district court's

judgment. Tilcon seeks to reach Feldman's trust interests and

to hold him liable for the full judgment; Feldman disclaims any

liability because of Tilcon's releases to other partners and

alleged failure to exhaust partnership assets. We address these

contentions in turn, applying de novo review to rulings of law.

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United States v. Howard (In re Howard), 996 F.2d 1320, 1327

(1st Cir. 1993).

1. The most difficult issue is whether Feldman's

interests in the trusts, now themselves embedded in joint

ventures, can be reached and applied to satisfy the judgment

against him. The basic tenets of Massachusetts law are clear.3

A creditor may "reach and apply" a debtor's interest in

intangible property that cannot otherwise be executed against in

an action at law, Mass. Gen. Laws ch. 214, § 3(6), including a

debtor's beneficial interest in trusts, New Eng. Merchs. Nat'l

Bank of Boston v. Hoss, 249 N.E.2d 635, 638 (Mass. 1969).

However, self-settled trusts aside, a creditor may not reach and

apply a debtor's interest if the trust includes a spendthrift

clause by which the creator of the trust (the settlor) forbids

creditor attachments. Hale v. Bowler, 102 N.E. 415, 416 (Mass.

1913).

However, special rules apply when a settlor creates a

trust for his own benefit and also attempts to immunize the

3
Also not in dispute is that Massachusetts law applies to
this aspect of the case. Fed. R. Civ. P. 69(a) ("The procedure
on execution . . . shall be in accordance with the practice and
procedure of the state in which the district court is held . .
. ."); see also Aetna Cas. & Sur. Co. v. Markarian, 114 F.3d
346, 349-50 (1st Cir. 1997).

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trust from creditor claims. In such cases, Massachusetts has

adopted the Restatement rule:

Where a person creates for his own benefit a
trust for support or a discretionary trust, his .
. . creditors can reach the maximum amount which
the trustee under the terms of the trust could
pay to him or apply for his benefit.

Ware v. Gulda, 117 N.E.2d 137, 138 (Mass. 1954) (internal

quotation marks omitted); accord Restatement (Second) of Trusts

§ 156(2) (1959) [hereinafter Restatement]. Thus, even if the

trustee chooses not to make any payments to the beneficiary, a

creditor may still reach the maximum amount the trustee could

pay. 2A Scott & Fratcher, The Law of Trusts § 156.2, at 178

(1987) (summarizing the holding in Ware).

This rule keeps a debtor from protecting his "property

in such a way that he can still enjoy it but can prevent his

creditors from reaching it." 2A Scott & Fratcher, supra, § 156,

at 167. It is not necessary to the rule adopted by Ware that

the transferor intend to defraud his creditors. Restatement §

156(2) cmt. a. The Ware rule also applies even if the trust

includes an explicit spendthrift provision. State St. Bank &

Trust Co. v. Reiser, 389 N.E.2d 768, 770 (Mass. App. Ct. 1979)

(citing cases); accord Restatement § 156(1). It has special

force in the case of nominee trusts, where the beneficiary can

control the trustee's actions, cf. Sylvia v. Johnson, 691 N.E.2d

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608, 610 (Mass. App. Ct. 1998), but it applies even where the

trustee has sole discretion, Ware, 117 N.E.2d at 138.

If we were only looking at Feldman's interests in the

three trusts before they became subject to the joint venture

agreements, Tilcon would have a straightforward claim to reach

and apply Feldman's interest in the self-settled trusts. In

each case, Feldman had a beneficial interest and, as Ware

teaches, a spendthrift limitation would not be effective to

block Tilcon's claim. However, the Comprops beneficiaries

entered into a joint venture agreement in January 1989, and the

Kelstock and Marlborough trust beneficiaries did so in August

1994. Hence, by the time Tilcon attempted to reach and apply

Feldman's interests in the trusts in 1997, they were subject to

a new set of restrictions on transfers.

The Kelstock, Marlborough, and relevant Comprops joint

venture agreements provide that the joint venturers "may not

sell, transfer, convey, mortgage, encumber or otherwise dispose

of all or any part of . . . their Interest or rights in the

Venture," except by transfer to other original venturers or

their family members, and except in response to a bona fide

written offer to which the other venturers agree after

exercising rights of first refusal. In addition, each agreement

contains a spendthrift provision which purports to protect all

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the income and corpus of the venture from attachment by

creditors. Both sides have assumed that Feldman's joint venture

interest subsumes his trust interest.

In the decision now before us, the district judge

relied on the anti-assignment clauses in the joint venture

agreements to debar Tilcon from reaching Feldman's trust

interests. Of course, Feldman was not seeking to assign either

his trust or joint venture interests. But based on his reading

of Massachusetts case law, the district judge held--as a general

rule--that the reach and apply statute in Massachusetts applies

only to interests that are capable of being assigned. The

district court ruled that the anti-assignment clauses took away

this capability and therefore blocked Tilcon.4

We disagree. The reach and apply statute in

Massachusetts is very broadly written and contains no express

reservation for cases in which an anti-assignment clause exists.

Indeed, the statute extends explicitly to a defendant's interest

in partnership property where one would expect that there would

commonly be contractual limits on assignment. Mass. Gen. Laws

4
Strictly speaking, the joint venture agreements purported
to prevent Feldman from assigning his interest in the joint
venture--not his trust interest. However, the district judge
and the parties have not distinguished the two but have instead
treated the anti-assignment clause as if it applied to the trust
interest as well as the joint venture interest.

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ch. 214, § 3(6). It is hard to see why the Massachusetts

Supreme Judicial Court, which decided Ware, would not read the

statute to override self-imposed anti-assignment clauses as

readily as self-imposed clauses barring creditor attachment.

Indeed, Ware itself involved a trust in which both clauses were

present. 117 N.E.2d at 138.

The district court's contrary view rests primarily on

one Massachusetts decision stating that certain personal tort

causes of action were unassignable and could not be reached

under the reach and apply statute. Bethlehem Fabricators, Inc.

v. H.D. Watts Co., 190 N.E. 828, 833 (Mass. 1934). But such

claims are unassignable for policy reasons that do not apply

here. See id. at 568. We do not read Bethlehem, or another

case where state law barred a transfer of an interest without

legislative consent, Hurley v. Boston R.R. Holding Co., 54

N.E.2d 183, 198-99 (Mass. 1944), as making a self-imposed anti-

assignment clause a bar to the reach and apply statute. To us,

Ware is presumptively the proper analogy unless the joint

venture situation can be meaningfully distinguished from Ware's

treatment of trusts.

The best argument for a distinction is that the

spendthrift clause in a self-settled trust is often just a self-

indulgence at the expense of creditors. By contrast, in a joint

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business, it is solvent partners (not just the scapegrace

debtor) who will be affected if a new and unwelcome "partner"

supplants the debtor. It would be possible for this reason to

treat Ware as limited to trusts and to treat anti-assignment

clauses in joint ventures as blocking the reach and apply

statute--albeit not because of any general rule in Bethlehem.

However, the reach and apply statute itself provides

that a partner's interest in partnership property may be reached

and applied to satisfy a business debt, and the reach and apply

statute is subject to equitable limitations.5 Perhaps on

specific facts allowing a joint venture interest to be seized

outright by the creditor would seriously disrupt the business;

if so, conceivably limitations might be imposed on the remedy

(e.g., by providing that the creditor could receive profits but

not participate in management). But the mere potential for such

problems in some cases, for which tailored solutions are usually

possible, is no reason to bar the reach and apply statute from

the start.

5The statute explicitly provides limitations to avoid
disrupting partnership business, Mass. Gen. Laws ch. 214, §
3(6), and a court's broader equitable powers apply, allowing
additional limitations on applications of the statute, see
Bressler v. Averbuck, 76 N.E.2d 146, 148 (Mass. 1947); Shapiro,
Perlin & Connors, Massachusetts Collection Law § 11:23 (2d ed.
1992).

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 In the present case, Feldman has apparently made no

effort to show any specific disruption from the seizure of his

interests nor, perhaps more pertinently, have his co-venturers

sought to do so. We think that this failure even to allege such

facts forfeits any such argument; but we leave it open to the

district judge on remand (if he wishes) to consider limitations,

assuming that he is persuaded that serious problems are

presented for the other joint venturers. Otherwise, the reach

and apply statute applies with full force to Feldman's trust and

joint venture interests.

2. Tilcon's second claim on appeal is that the

district court erred in determining that Feldman was only

"jointly" liable for the judgment and not "jointly and

severally" liable. The district judge's determination, says

Tilcon, improperly makes Feldman only responsible for his

"aliquot share of the judgment" instead of the entire amount.

The district judge did indeed say that Feldman was only liable

for his "aliquot share." Apparently the parties and the

district judge use the term "aliquot," often used to denote a

fractional interest, to indicate that Feldman is currently held

responsible only for a share of the judgment proportional to his

share in the CA partnership.

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 In attacking the district judge's ruling, Tilcon argues

that the Rhode Island federal court judgment, before being

registered in Massachusetts, did not say that Feldman or any

other defendant was liable for less than the full amount (some

courts presume that an unadorned judgment is joint and several,

Angona v. County of Nassau, 129 A.D.2d 543, 543-44 (N.Y. App.

Div. 1987)); that the district judge should not have looked

beyond the bare language of the original judgment; that, in any

case, Feldman failed to offer evidence that the underlying

liability was only for a breach of contract (which is ordinarily

joint only); and that it was up to Feldman to get the judgment

clarified in Rhode Island but he failed to do so.

Probably Feldman's liability under the Rhode Island

federal judgment is only joint, 6 but Tilcon is mistaken in

thinking that this makes Feldman responsible only for a portion

of the judgment, aliquot or otherwise. This is so even if we

agree, as we would be likely to do if it mattered, that the

6What matters is the Rhode Island federal judgment. The
clerk in the Massachusetts district court added, at Tilcon's
behest, the words "jointly and severally" when the judgment was
registered, but the district judge in this case deemed this
irrelevant and Tilcon properly does not dispute in principle the
"reformation" of the initial Massachusetts judgment. The
pertinent language from the Rhode Island federal judgment, that
judgment as registered by Tilcon in the Massachusetts district
court, and the final Massachusetts federal judgment are included
as an appendix to this opinion.

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judgment should be read or reformed to make it explicit that

liability of the CA partners is joint only. But why this is so

takes a bit of explaining, the point being rarely discussed in

any detail in either recent case law or modern treatise.

At common law, the phrase "joint and several" refers

to the liability of multiple wrongdoers (typically, for torts).

It means that damages are a single sum specified in the

judgment, that each wrongdoer is liable for the full amount, but

the wronged party cannot collect under the judgment more than

the single sum. Restatement (Third) of Torts § 20 & cmt. b

(Proposed Final Draft (Revised) 1999). Joint liability

(typically, for breach of contract) does not differ in these

respects, contrary to Tilcon's assumption; each party jointly

liable for a judgment for breach of contract is liable for the

full amount. 2 Bromberg & Ribstein, Bromberg & Ribstein on

Partnership § 5.10(b), at 5:91-92 (2000); 12 Richard A. Lord,

Williston on Contracts § 36:1, at 610 (4th ed. 1999)

[hereinafter Williston].

The difference in the two types of liability is in

certain other details, largely vestiges of common law procedure,

which still bite where they have not been abolished.

Importantly, the common law rule was that all those jointly

liable had to be sued together or the suit would be dismissed,

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and that a settlement with one of those liable discharged all of

the others. 2 Bromberg & Ribstein, supra, §§ 5.08(b), 5.10(b)-

(c). Further, in the case of partners jointly (but not

severally) liable for a wrong done by the partnership, there is

a requirement that partnership assets be sought first. Id. §

5.08(d).7

Finally, there is sometimes an interplay between these

two categories of liability and issues of contribution,

Restatement (Third) of Torts § 23 reporters' note, cmt. a.

However, the relationship is complicated, the cases are not

uniform, and contribution rules have increasingly been affected

by statute, e.g., Mass. Gen. Laws ch. 231B, § 1 (1998). In any

case, issues of contribution are distinct from questions of what

a plaintiff may collect from any individual defendant.

In short, even if the judgment is joint only, Tilcon

can --subject to defenses yet to be discussed--collect the full

amount of the judgment from Feldman (to the extent it has not

already been paid by others). So far as the district court's

7
Just to round out the trilogy of types of liability,
liability is termed "several" when different individuals are
separately liable for what may be different amounts ( e.g., where
a tortfeasor is liable for the amount of damages in direct
proportion to his percentage of fault, Restatement (Third) of
Torts § 21, or where parties to a contract are each "bound
separately for the performance which he or she promises,"
Williston, supra, § 36:1, at 611).

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reference to aliquot liability in this case indicates otherwise,

the district court judgment must be modified. On the issue of

full versus partial liability, the question whether the judgment

is joint only turns out to be irrelevant. As will shortly be

apparent, it also turns out to be irrelevant to two defenses

offered by Feldman (discharge by settlement with another partner

and failure to exhaust partnership assets) even though

ordinarily at common law jointness is important in passing upon

such defenses.

Because the outcome of this case is unaffected by

whether liability is joint or joint and several, we need not

pursue the multi-faceted problems--including interesting choice

of law issues not addressed by the parties--involved in deciding

whether the underlying Rhode Island federal judgment was for

joint liability only. However, it is worth noting that the

original Rhode Island federal judgment grounds liability

specifically on breach of contract; both in Massachusetts and

Rhode Island, the derivative liability of partners for breach of

contract by the partnership is joint only. See Mass. Gen. Laws

ch. 108A, § 15(1) (1998); R.I. Gen. Laws § 7-12-26(a) (1999);

see also 2 Bromberg & Ribstein, supra, § 5.08(b).

3. By cross appeal, Feldman urges two defenses to

preclude all personal liability, at least at this time. He says

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that when Tilcon signed settlement agreements with two other CA

partners, this discharged his liability entirely. Separately,

he claims that if he is liable at all, Tilcon is not entitled to

collect against him until it shows that it has exhausted the

partnership assets. Both arguments assume that Feldman's

liability is joint only--otherwise the objections would not

apply--and we will assume jointness arguendo.

Starting with the discharge defense, Tilcon admits that

it made partial settlements with two other CA partners, but

points out that each settlement agreement purported to reserve

its rights against other partners like Feldman. At common law,

the discharge of one person jointly liable, by settlement or

otherwise, discharged the others. 12 Williston, supra, § 36:18,

at 684-85. As to partnership obligations, Rhode Island has

rejected this so- called "unity of discharge" rule by statute.

R.I. Gen. Laws § 7-12-9. Nevertheless, the district court

thought that Massachusetts law governed--CA is a Massachusetts

partnership--and Tilcon makes no effort to show that this choice

of law decision was mistaken.

Feldman says that Massachusetts has never explicitly

abrogated the unity of discharge rule for partnerships.

However, as the district court noted, Massachusetts has

abrogated the rule for joint tortfeasors, Mass. Gen. Laws ch.

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231B, § 4(a) (1998); Selby v. Kuhns, 188 N.E.2d 861, 865-66

(Mass. 1963), and also for co-obligors when, as here, there is

an express reservation of rights or other sufficient evidence of

intent not to release co-obligors, Hale v. Spaulding, 14 N.E.

534, 534-35 (Mass. 1888). The district judge held that

Massachusetts courts would take the same view as to

partnerships.

Although the Massachusetts Supreme Judicial Court has

been silent on this issue, indications are that it would treat

partnerships like other co-obligors in this respect. Cf. Selby,

188 N.E.2d at 865-66 (unity of discharge doctrine generally

discredited). At least one Massachusetts appellate court has

specifically suggested as much. E. Elec. Co. v. Taylor Woodrow

Blitman Constr. Corp., 414 N.E.2d 1023, 1028-30 (Mass. App.

Ct.), rev. denied, 441 N.E.2d 1042 (Mass. 1981). Moreover, a

First Circuit panel has previously concluded that Massachusetts'

rejection of the unity of discharge rule is not narrowly

confined. Hermes Automation Tech., Inc. v. Hyundai Elecs.

Indus. Co., 915 F.2d 739, 745-46 (1st Cir. 1990). Against all

this authority, Feldman's vague argument that partners should be

treated differently (and that Massachusetts would diverge from

the modern trend) is insufficient to carry the day.

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 Feldman's exhaustion defense is also unpersuasive.

Here, choice of law does not appear to matter. Rhode Island

follows the general rule that where a partner's liability is

joint only and also derivative (i.e., imposed only because the

defendant is a partner), the partnership assets must be sought

and exhausted, or shown to be unavailable, before the private

assets of an innocent partner can be seized. See Nat'l Exch.

Bank v. Galvin, 37 A. 811, 811 (R.I. 1897). Massachusetts does

not appear to have a case in point but we are told that

exhaustion in such a case is the "virtually unanimous rule," 2

Bromberg & Ribstein, supra, § 5.08(e), at 5:68, and Tilcon cites

no authority to show an exception applies.

Instead, Tilcon mainly argues that it has an

"individual judgment" against Feldman and there is nothing in

the judgment to show that Feldman's liability is derivative.

Although the district court relied tersely on this argument, we

would be surprised if the opaque language of the judgment were

conclusive, cf. E.I. Du Pont de Nemours & Co. v. Cullen, 791

F.2d 5, 7 (1st Cir. 1986) (Breyer, J.) (looking beyond a state

court judgment to the underlying complaint). And Tilcon offers

no serious argument that Feldman was held liable except

derivatively or that he waived the exhaustion defense (as

partners sometimes do in loan documents).

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 On the other hand, we agree with the district court

that Feldman is playing games with this issue. The district

court pointed out that there is no "hint anywhere in the record

that [CA] is a viable entity" and that the witness who Tilcon

has said could have nailed down CA's insolvency "was excused at

[Feldman's] request." We are thus faced with a situation in

which Tilcon has long held an unsatisfied judgment against CA

and Tilcon has not only alleged but also said how it could prove

CA's insolvency.

In response, even on this appeal, Feldman has merely

said that Tilcon failed to prove lack of partnership assets;

there is no representation that such assets exist. In this

situation, in which insolvency is suggested by circumstance and

apparently uncontested, Feldman's objection based on failure to

exhaust is not well taken. Cf. Eversley v. MBank Dallas, 843

F.2d 172, 174 (5th Cir. 1988) (district court entitled to rely

on the undisputed factual allegations of a party moving for

summary judgment).

To conclude, we hold that Feldman is liable for the

entire amount of the judgment as executed by the district court

of Massachusetts and that his interests in the Kelstock Realty

Trust, Marlborough Realty Trust, and Commercial Properties Trust

are able to be reached and applied, subject to such equitable

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limitations as the district court may think necessary. To this

extent, the district court's judgment is vacated and remanded

for further proceedings consistent with this opinion; in all

other respects, the judgment is affirmed. Costs on both appeals

are awarded to Tilcon.

It is so ordered.

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Appendix

Judgment of the U.S. District Court for the District of Rhode
Island, Oct. 7, 1992 (excerpt)

3) Judgment for Tilcon Gammino on Count I of its
counterclaim against Commercial Associates,
Anthony J. DelVicario, Stephen J. Watchmaker,
Neil Zais, Gerald Feldman and Thomas Prendergast
for breach of contract in the amount of
$268,903.23 plus interest from October 31, 1985,
plus additional interest on the $1,200,000.00
recovered in the mechanics' lien proceeding from
October 31, 1985 to January 24, 1991, plus costs.

Execution of Judgment in the U.S. District Court of the District
of Massachusetts, Apr. 4, 1997 (excerpt)

Plaintiff Tilcon Gammino, Inc. has
recovered judgment, jointly and severally,
against defendants' Commercial Associates,
Anthony J. DelVicario, Stephen J. Watchmaker,
Neil Zais, Gerald Feldman and Thomas Prendergast
in the United States District Court for
Massachusetts in the following amounts:
1. $268,903.23, together with pre-judgment
and post-judgment interest of $366,725.25 as of
March 14, 1997, for a total of $635,628.48.
2. $756,000, together with pre-judgment and
post-judgment interest of $401,943.60 as of March
14, 1997, for a total of $1,157,943.60.
Total combined judgment with interest as of
March 14, 1997, $1,793,572.

Final Judgment of the U.S. District Court for the District of
Massachusetts, Jan. 28, 2000 (excerpt)

1. The execution issued by this Court on
April 4, 1997, in the case entitled Commercial
Associates, et al. v. Tilcon Gammino, Inc., Civil
Action No. 96-10864 MBD, shall be reformed by
striking the words "and severally" as they appear
after the word "jointly" in the third paragraph
of page one;
2. Jerald R. Feldman is jointly (but not
severally) liable for the judgment issued in the

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United States District Court for the District of
Rhode Island in favor of Tilcon Gammino, Inc. on
or about October 7, 1992, in the case entitled
Commercial Associates, et al. v. Tilcon Gammino,
Inc., Civil Action No. 86-748T . . . .

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