a   #191, Drano Series
 
 

Appellate Brief

Barbara C. Johnson
v.
Marc I. Johnson and H. Yvonne van Bodengraven

STATEMENT OF ISSUES

1. By denying two of Mother’s motions before Mother filed them – “Those motions, should they be filed, they will be denied” – a lower-court judge in a written order unlawfully threatened and frightened Mother, as well as effected a prior restraint of her First Amendment rights.  The lower court’s bizarre act constituted the intentional deprivation of Mother’s well-established fundamental constitutional rights, including but not limited to equal protection, e.g., the deprivation of the benefits of the procedural rules for discovery.

2. The court intentionally failed at all times to act on Mother’s motions to compel diverse interrogatories, another step in the semitransparent judicial plan to deprive Mother of her constitutional right to equal protection and the rights enunciated in Articles XI, XII, XV, and XXIX of the Massachusetts Declaration of Rights.

3. Where, on 12 March 2009, the court allowed Marc and Yvonne's Motion for Partial Summary Judgment  on the erroneous grounds that Mother had no evidence and that Mother’s claim of specific or partial performance was barred as a defense to the Statute of Frauds, the court deprived Mother of fundamental fairness, the cornerstone of both due process and justice as well as her right to a jury trial, pursuant to Article XV of the Massachusetts Declaration of Rights and the Seventh Amendment to the United States Constitution.

4. When on 5 August 2009, after Mother, complying with the order of eviction, had vacated her residence and had moved to Costa Rica, the court’s belated order, curious and convoluted, to stay the eviction was an admission that there was no law supporting the court’s eviction of Mother.

5. On 11 September 2009, the lower court deviated from the Mass. Rules of Civil Procedure in a manner that prejudicially discriminated against Mother by allowing her son and daughter-in-law’s Request for Leave to File Reply Brief after the court had already both decided the their Motion for Partial Summary Judgment and had evicted Mother, circumstantially and convolutedly evidencing a retaliatory motive for depriving Mother of her constitutional rights.

6. The court, on 14 October 2009, (a) erroneously denied Mother’s 8-month-old Emergency Motion to Vacate Partial Summary Judgment, (b) re-instated the grant of the defendants’ Motion for Partial Summary Judgment,(c) re-instated the Order of Eviction, and by so doing, denied Mother her right to a jury trial, guaranteed by Article XV of the Massachusetts Declaration of Rights and arguably the Seventh Amendment to the United States Constitution, and (d) allowed Defendants’ Motion to Strike/Withdraw Their Counterclaims.  In so acting, the court denied Mother her constitutional due process right to have a jury trial to make a record by requiring the defendants to prove their disputed counterclaims in front of a jury.

7. Invidious elder and political discrimination  formed the basis of certain opinions, rulings, directions, and judgments of the Superior Court Department of the Trial Court and resulted in reversible error.

STATEMENT OF THE CASE\1/

The nature of the case.  The action arose out of a dispute between a mother (Plaintiff/Appellant) and her son Marc and his wife, Yvonne, over a residence at 6 Appletree Lane in Andover, Massachusetts.  Marc and Yvonne claim they were the landlords and Mother was a tenant.  They wanted to evict Mother and sell the property [APP:passim]. Mother claims she has a life estate interest in the home.  She wanted specific performance or the return of the $360,000 (minus the value of a monthly rent for each month she was in residence) she (a) deposited into the Pentaj Intervivos Trust (of which she had named Marc trustee) [APP: passim], (b) gave Marc in hand, and (c) expended for maintenance, repair, and updating the real property while she was residing in it.

This appeal is from bizarre rulings, decisions, orders arising out of invidious political discrimination and resulting in reversible error:

• Declaration of “an evidentiary hearing if not a full-blown trial” is necessary [ADD:14, Docket 2006-01263, P#5]

• Then the summary judgment twice granted to the defendants on Mother’s case-in-chief [ADD:25-26, P#73; ADD:31-32]

• the-first-eviction/the-stay-after-Mother-had vacated-the-property/the-second-
order-of-eviction of Mother from her residence [ADD:24, 25-26, 9, 10, 31-32, 33]

• the allowance of defendants’ motion to withdraw their counterclaims after the partial summary judgment issued — depriving Mother of an opportunity to make a record in front of a jury — and from all the issues identified and argued in this brief and below [ADD:14, 31-32, Docket 2006-01263, P#13]

• the denial of two of her motions before Mother had filed them: “Those motions, should they be filed, will be denied” [ADD:16, 17-19]

• the failure of the court to act on motions to compel diverse interrogatories [ADD:5-7, P##34-35, 64]

The course of proceedings. Mother filed her action in Superior Court [ADD:1, P#1]. Marc and Yvonne filed their summary process action in District Court [APP:16].  Stating that the case did not seem to be an eviction case, the district court removed the case to Superior Court, where, subsequently, the cases were consolidated.

Marc and Yvonne filed their Amended Answer on 7 April 2006 [ADD:3, P#12].

During the discovery process, Marc and Yvonne produced no evidence, either documentary or testimonial, to support their position.\2/  Mother produced approximately 301 sets of documents supporting every facet of her case [APP:50A, 71, 138-139, 170-171]\3/.

Subsequently a brevis disposition issued, first the eviction of Mother and then the grant of partial summary judgment (twice) in favor of her son Marc and his wife [ADD:25-26, 31-32].

Disposition. As grounds for granting summary judgment, the court asserted in its first decision and memorandum [ADD:25-26] that Mother had no evidence, and in its second [ADD:31-32] that the Statute of Frauds bars Mother’s claim of specific performance, to wit, that her part performance\4/ in reliance on Marc‘s promise (with the silent consent of Yvonne) to convey a life estate does not preclude Marc and Yvonne from relying on the Statute of Frauds.  M.G.L. c. 259, § 1.

No reason or authority was given for evicting Mother.

In this brief, Mother demonstrates again (1) that the Statute of Frauds does not apply, (2) that, contrary to the lower court’s conclusion, Mother had more than sufficient evidence both to support her claims and to present to a jury to decide, (3) that Mother was unlawfully denied her rights to constitutional due process and equal protection by the lower court’s failure to enforce the civil-procedure rules and statutes regarding discovery, (4) that many of the lower court’s rulings were, literally, sufficiently bizarre to be deemed an abuse of discretion and/or egregious,  harmful, and reversible error, e.g.:

1. (a) Pursuant to Superior Court Rule 9C, Mother made  “a good faith effort to narrow areas of disagreement to the fullest extent,” by sending to opposing counsel, Kenneth Rossetti, a draft of her proposed Motion to Determine Sufficiency of Marc I. Johnson’s Objections to Mother’s First Set of Requests for Admissions\5/ [the final motion, APP:99].

(b) Rather than replying to Mother, Rossetti attached the draft motion to a motion of his own [Defendants’ Emergency Motion, P#55, APP:182A] and filed it with the court,

(c) whereupon Judge Thomas Billings wrote that the defendants had no further obligation as to both Mother’s Requests for Admissions and her Motions to Determine Sufficiency of the defendants’ responses, and that if Mother should file them, they will be denied [ADD:7 and 16, P#57].

2. (a) On 27 June 2007, in footnote 2 of his memorandum of that date, Judge Billings wrote “The plaintiff, a recently disbarred attorney, is representing herself.  The defendants are represented by counsel.”  [ADD:18].

(b)  Given that the action below is a family dispute over property, Mother’s professional status had nothing to do with the superior court case.  A similar statement was, subsequently, footnoted also in a federal case [No. 2001-10890-RBC], implying again with no subtlety that there was an intentional judicial “buzz” about the very political disciplinary action,\6/ for which there were no witnesses against Mother, no evidence of any wrongdoing (although alleged by the Office of Bar Counsel), and no public audience allowed at the alleged trial (the audience having been ordered out of the hearing room), resulting in the Special Hearing Officer, the Office of Bar Counsel prosecutor, an assistant BBO general counsel, and the stenographer being the only persons in attendance at the so-called trial).

3. (a) On 9 January 2007, Judge John Lu wrote [Docket 2006-01263, P#5]: “The court has undertaken a detailed review of this case.  Given the claims and defenses, the requested relief is inappropriate absent, at a minimum, an evidentiary hearing if not a full-blown trial!”

(b) On 1 February 2008, the parties' pleadings regarding the defendants’ motion for partial summary judgment were filed.  The summary-judgment motion was heard in March 2008.  At the end of the hearing, mediation in front of the motion judge (Judge John T. Lu) was attempted.  Judge Lu suggested Mother settle for $250,000, an amount to which Mother agreed, but the defendants came up with no more than $45,000 – at which point Judge Lu walked off the bench.

(c) A little over a year later, on 12 March 2009, Judge Lu ordered the eviction of Mother and granted partial summary judgment for the defendants\7/ [ADD:25-26].  Something had clearly happened during the year to change Judge Lu’s thinking!

4. (a) On 23 March 2009, Mother moved to vacate both the award to Defendants of Partial Summary Judgment and the Order of Eviction [APP:450]

(b) On 28 March 2009, Mother filed an Emergency Supplement to Motion to Vacate Both the Award to Defendants of Partial Summary Judgment and the Order of Eviction [APP:453].

(c) On 7 April 2009, Mother filed a Motion to Stay Eviction for 12 Months, Pursuant to M.G.L. C. 239, §9, or Pending Appeal of Order of 12 March 2009 [APP:463].  The Appeals Court denied the relief (Cypher, J.) (No. 2009-J-0166) [ADD:27-28].

(d) Instead, of extending the eviction date a year, the lower court extended the eviction by only one month, from mid-June to mid-July 2009,  thereby (i) depriving Mother of both her statutory right and her constitutional right to equal protection and (ii) discriminating against her on implicit grounds and (iii) committing what constitutes elder abuse.\8/

5.  (a) On 5 and 7 August 2009, after Mother had complied with the mid-July 2009 order and had moved out of the country, Judge Lu stayed the eviction until after he decided “pending motions” and the brief he was ordering the defendants to write about “whether the part performance doctrine takes the alleged contract out of the Statute of Frauds” [ADD:9-10; docket sheet #06-0332; P##98-99]. (Defense counsel Rossetti served the brief on 2 September 2009.)

(b) On 14 October 2009, the court made a reversible error by allowing summary judgment for Marc and Yvonne although they produced no documentary evidence to support their motion for partial summary judgment.  That act provides significant circumstantial evidence that there was a discriminatory motive, specifically retaliation arising out of Mother’s political advocacy for court reform and the abolition of judicial immunity before, during, and after her 2002 gubernatorial campaign and, particularly, her participation in statewide televised debates during the campaign calling for judicial accountability\9/ [ADD:18-19].

6. (a) On 9 November 2009, Mother filed a Notice of Appeal.

(b) On 3 December 2009, knowing that Mother had moved out of the country a little over five months earlier because her monthly Social Security stipend was insufficient to sustain her living in Massachusetts, Judge Lu sua sponte issued his third order of summary judgment, which added the allowance of costs to the defendants [Docket 2006-01263, ADD:18-19, P#14; Docket 2006-00332-C, ADD:11, P#113].

(c) Mother refiled her Notice of Appeal on 31 December 2009.

PRIOR PROCEEDINGS

This action was entered into the Essex County Superior Court docket as ESCV2006-00332-C on 1 March 2006 [ADD:1, P#1].  The summary process action entered into Lawrence District Court as No. 0618SU-0067 on 4 April 2006.  On 10 July 2006, the district court case was removed to superior court (ESCV2006-01263) to be consolidated with Essex Superior Court #2006-00332-C [Docket 2006-01263, ADD:13].

On 30 November 2006, Mother moved to consolidate both cases – because the superior court was not treating the cases as consolidated – and to be designated as Plaintiff [ADD:4, P#23 (entered 12/1/06] and to treat discovery served while the defendants' case was in district court as if served while in superior court and to act on motions not acted upon in district court [ADD:4, P#24].

Mother also moved for a mock trial, which would have been a time- and cost-effective manner in which to resolve the dispute between the parties [ADD:4, P#25].

The defendants filed a limited opposition to the first two motions (re consolidation and discovery) [ADD:4, P##23-24] and an unlimited opposition to Mother’s mock trial motion [ADD:4, P#25].  By cross-motion, Marc and Yvonne sought, instead, mediation and sanctions against Mother for moving for a mock trial [ADD:5, P#33, filed 11/30/06].

On 9 January 2007, there was a hearing.  Judge John Lu allowed the consolidation, but denied Mother’s requested designation, adding “because it is frivolous,” but did not sanction Mother for doing so.\10/

On that same date, Judge Lu also allowed Mother’s motion to act on motions not acted upon in district court) [P#24], but denied the mock trial with the declaration that a mock trial is “inappropriate for this case,” but denied sanctions against Mother.  Judge Lu also denied the sanctions Marc and Yvonne sought in their cross-motion for mediation [P#33].

Ironically on that same date, Judge Lu, denying defendants' motion seeking an order requiring Mother to escrow funds for use and occupancy of the premises, wrote “Order after oral argument: The court has undertaken a detailed review of this case.  Given the claims and defenses, the requested relief is inappropriate absent, at a minimum, an evidentiary hearing if not a full-blown trial!” [Docket 2006-01263, P#5, ADD:14]  The exclamation point is Judge Lu's.  By two years later, in March 2009, Judge Lu had been turned.  See Issue 7, infra, for argument.

On 10 January 2007, Marc filed a motion to dismiss Mother’s Complaint [ADD:5, P#38, entered 1/10/07]. “Given the consolidation of the cases, this Motion appears moot,” Judge Lu denied it without prejudice.\11/

The discovery process continued vigorously and adversarially until 27 June 2007, when Judge Thomas Billings wrote (1) that should Mother file her Requests for Admission or her motions to determine the sufficiency of the requests, they will be denied,\12/ and (2) that “the Defendants have no further obligation with respect to any of the plaintiffs Requests for Admission (original or second set), or with respect to her motions to determine the sufficiency of their responses to the original Requests” [P#57, ADD:16, 19].

On 23 July 2007, Judge Billings denied Mother’s emergency motion for the court to set out the bases of his conclusions in June 27th order [P#62, APP:7].

The discovery deadline of 30 August 2007 had not yet been reached.

On 1 February 2008, the Superior Court Rule 9A summary judgment package was filed [P##73-79, APP:266-446].

On 27 March 2008, Judge Lu heard arguments on the summary judgment.\13/

Approximately a year later, on 13 March 2009, Judge Lu allowed Defendants’ partial summary judgment and evicted Mother from her home [ADD11, 12-13, P#85].  He later extended the eviction date one month to mid-July 2009.

In March and April 2009, Mother’s two motions for leave to file as an indigent an appeal on the collateral issue of eviction were denied. [ADD:20-23].

On 23 March 2009, Mother filed a Motion to Stay Eviction for 12 Months, Pursuant to M.G.L. C. 239, §9, or Pending Appeal of Order of 12 March 2009 [APP:447, P#87].

Also on 23 March 2009, Mother filed a Motion to Vacate Both the Award to Defendants of Partial Summary Judgment and the Order of Eviction [APP:450, P#88], and supplemented that motion on 28 March 2009 [APP:453, P#91].

On 5 and 7 August 2009, Judge Lu stayed the eviction until he redetermined the summary judgment and ordered Marc and Yvonne to write a memorandum on whether partial performance is a defense to the Statute of Frauds [ADD:9-10, P#98 and #99, respectively].

On 14 October 2009, Judge Lu re-allowed summary judgment and re-ordered the eviction [ADD:37-38, P#85].

On 9 November 2009, Mother filed a Notice of Appeal.  On 3 December 2009, Judge Lu sua sponte amended his summary judgment order for the third time.  Mother refiled her Notice of Appeal on 31 December 2009 [P##112-114].

STATEMENT OF FACTS

In 1987, prior to the defendants’ marriage, Mother gave Marc $30,000 for the downpayment on the purchase of the subject property for $220,000; she also paid Marc’s real-estate attorney fees.

Six weeks after Marc purchased the subject property, the market crashed, and by 1993, the economy was similar to that of today: the value of homes, including the Appletree Lane property, a 4-room cottage of a mongrel design, was significantly below the money owed on the mortgages given to the mortgagees.

In 1993, to avoid having to sell at a $40,000-$50,000 loss, Marc, who by then had moved to California with his burgeoning family and had in the meantime rented the property, asked Mother, who had just sold the family home, to buy the property.  Mother refused to do so.

Because his tenant was leaving, Marc then asked Mother to rent the property.  Hoping to extricate her son from a troubling financial situation, she agreed to rent the property.
Because the relationship between Mother and her daughter-in law, Yvonne, was adversarial at best,\14/  Mother established, on 3 September 1993, the Pentaj Intervivos Trust (an irrevocable trust) [APP:passim].  And because she still trusted her son Marc, she appointed or designated him as Trustee and named her grandchildren as secondary beneficiaries after she, the primary beneficiary, passed.\15/

The Trust, which required a separate bank account and Federal Identification Number, would, as anticipated, act as an independent depository for the con-sideration she would deposit (and did deposit) in the Trust account for investment purposes, as well as for “rent” at the beginning, pursuant to their 1993 oral agreement, and the possible purchase of the subject property in the future.\16/  A table showing Mother’s annual deposits into the Trust is on APP:263, 296.  Her initial deposit of the res in September 1993 is shown as being approximately $90,000 on a Wells Fargo statement at APP:316.\17/

In 1997, Marc and Yvonne decided to return to the Greater Boston area.  He once again asked Mother to purchase the property.  Mother refused again, but after she and Marc discussed the issue, they entered into an agreement that Mother would have a life-estate interest in the property if she continued maintaining, repairing, updating, and managing the property as she had been doing since 1993. (Mother had upgraded the electrical, plumbing, and environmental systems (e.g., added electrical outlets, outdoor safety lamps, circuit breakers, new water pipes, air-conditioning; doubled the size of the sump-pump system; replaced her washer and dryer ruined by a flood in the basement; installed – within days of occupying the property – both a new garage door and new garage door opener; installed professional landscaping and a sprinkling system; and made badly needed repairs of badly depreciated improvements, many of which violated the State Sanitary Code.)

Within 22 months during 1998 and 1999, in reliance on the oral agreement with Marc that she had a life estate, Mother deposited another $115,000 into the Trust and told Marc to pay down the mortgage.  Her intention, which was known to Marc, was to reduce her law practice, to continue writing a legal-genre novel, and to live off her monthly Social Security benefits while living out her life in the subject property.

Relying on the above agreement, Mother continued to improve the property’s mechanical and structural components as they lost functionality; e.g., she rebuilt the back porch (for the second time) because the moisture from the high water table was continuously bubbling the paint off the exterior, repainted the exterior of the property (preparation and three coats of paint), replaced the roof and bathroom fixtures, and installed a new oil burner and boiler. [Pictures of checks, invoices, mechanicals, etc.:  APP:99-140 (photos: 116, 123, 125, 127, 130-131); APP:141-173 (photos: 152, 155, 160, 164)].

Fast forward to September 2005:  Yvonne informally evicted Mother by letter several times in September and October 2005, which was ratified in February 2006, when Marc left a summary process complaint on Mother’s dish drainer.  In response, Mother filed the instant action now under appeal.

By the time the parties’ disputes were joined, Mother had given Marc one dollar and change short of $300,000.00 and incurred another $60,000.00 expenses for maintenance, repairs, and updating.\18/  The defendants have refused to reimburse Mother any money, including her expenses in maintaining, repairing, and updating the house – all of which are duties of the landlord both to be in compliance with the Code and to maintain the value of the real asset.

The money Mother gave to Marc as Trustee and as an individual was far in excess of what the rent would have been if Mother had been merely a tenant and were to have stayed in residence for another decade or more (see Table 2 at APP:461).

 Given Marc’s role as fiduciary and his failure to account, plus his and Yvonne's unwarranted attempt to evict Mother to unjustly enrich themselves, Mother’s facts and claims should have been and still must be given to a jury.

ARGUMENTS

1. By denying two of Mother’s motions before Mother filed them – “Those motions, should they be filed, they will be denied” – a lower-court judge in a written order unlawfully threatened and frightened Mother, as well as effected a prior restraint of her First Amendment rights.  The lower court’s bizarre act constituted the intentional deprivation of Mother’s well-established fundamental constitutional rights, including but not limited to equal protection, e.g., the deprivation of the benefits of the procedural rules for discovery.

The motions were to determine the sufficiency of the responses and/or objections by the Defendants, Marc I. Johnson and H. Yvonne van Bodengraven, to Mother’s original Requests for Admissions.  [APP:99-140, APP:140-173, APP:194-205].

. . . if there is any question whether the re-sponse is defective, the requesting party should file a motion to test the sufficiency of the response. Advisory Committee Note to Rule 36(a), 48 F.R.D. 531, 533 (1970). The note suggests that the reason for this requirement is the elimination of a party's undue surprise at trial when confronted with the contention that he has made a binding admission when that party had purported to deny or had been unable to admit or deny. Id. at 534.
Massachusetts Highway Dept. v. Smith, 51 Mass.App.Ct. 614, 618 (2001), 747 N.E.2d 1235, 1238, cert. den. 434 Mass. 1109, 757 N.E.2d 730 (2001) (emphasis supplied).

In order to use the objected-to Requested Admissions at time of trial, Mother had the burden of filing the motions to test the sufficiency of the responses:

. . .  [Mass.R.Civ.P.] rule 36 places the burden of moving to determine the sufficiency of an objection on the requesting party, not on the objecting party.  See ibid. See also United States v. Taylor, 100 F.Supp. 1016, 1019 (1951).FN6  Since Caron failed to **474 pursue a motion to determine the sufficiency of the defendants' objections, the facts asserted in his requests were never deemed admitted, and the answers filed by the defendants at trial were timely. FN7
Caron v. General Motors Corp., 37 Mass.App.Ct. 744, 643 N.E.2d 471, 473-474 (1994).  Mass.R.Civ.P. 36(a), 43A M.G.L.A.

By relieving Marc and Yvonne of their Rule 36 obligations, Judge Billings intentionally circumvented existing law and thereby prejudiced Mother.

Precluding Mother’s motions to determine sufficiency was a major step of what seemed to be a transparent judicial plan to interfere with any opportunity for Mother to receive a fair trial.  Kurker v. Hill, 63 Mass.App.Ct. 1109, 825 N.E.2d 114 (Table) (2005).\19/  See also S. Kemble Fischer Realty Trust v. Board of Appeals of Concord, 402 N.E.2d 100, 9 Mass.App. Ct. 477 (1980), cert. denied 101 S.Ct. 566, 449 U.S. 1011, reh'g denied 101 S.Ct. 957, 449 U.S. 1134.  “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases.” Aetna Life Ins. Co. v. Lavoie,  475 U.S. (Ala.) 813, 829, 106 S.Ct. 1580, 1589 (1986).

In addition to threatening and frightening Mother in order to restrain her unlawfully from filing her two motions to determine the sufficiency of the defendants' responses to her original Requests for Admissions, the lower court unlawfully ruled that defendants had no further obligation with respect to any of Mother’s Requests for Admission, which bizarre act further deprived her of her well-established fundamental constitutional rights, including but not limited to her liberty, her First Amendment rights, equal protection and the rights enunciated in Articles XI, XII, XV, and XXIX of the Mass. Declaration of Rights.

2. The court intentionally failed at all times to act on Mother’s motions to compel diverse interrogatories, another step in the semitransparent judicial plan to deprive Mother of her constitutional right to equal protection and the rights enunciated in Articles XI, XII, XV, and XXIX of the Massachusetts Declaration of Rights.

The defendants supplied answers which Mother claims were evasive, nonresponsive, or incomplete. Her motions to compel were appropriate under the circumstances.  No legitimate reasons were given by the lower-court judge to deny Mother’s motions.  To argue each request here would take more space than is allowed by the rules of appellate procedure.  This appellate panel must simply read Mother’s interrogatories and requests for documents and the defendants' responses, as well as Mother's motions to compel [APP:28-38, 39-50, 51-52, 53-54, 55-70, 71-72, 73-83, 84-94, 95-98, 174-182, 194-205, 214-225.  APP:99-140 and 141-173 (which contain requests for admissions to Marc and Yvonne, their responses, and Mother’s rebuttal].  Spoon-feeding is impossible and impractical.

Mother’s Emergency Motion for Court to Set Out the Bases of Its Conclusions in Its Memorandum of Decision and Order of 6/27/2007 is detailed at APP:194-205.

3.  Where, on 12 March 2009, the court allowed Marc and Yvonne's Motion for Partial Summary Judgment on the erroneous grounds that Mother had no evidence and that Mother’s claim of specific or partial performance was barred as a defense to the Statute of Frauds, the court deprived Mother of fundamental fairness, the cornerstone of both due process and justice as well as her right to a jury trial, pursuant to Article XV of the Massachusetts Declaration of Rights and the Seventh Amendment to the United States Constitution.

Summary judgment should be granted only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983).  In the case below, there were many genuine issues of material fact.  The court had to interpret all inferences in the light most favorable to Mother, the nonmoving party. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 438 (1995).   Thus, had the court considered the material facts, it would have been impossible to grant summary judgment as a matter of law.

The first time Judge Lu allowed Marc and Yvonne’s Motion for Partial Summary Judgment, the judge wrote that Mother had no evidence.  That was an outrageous falsity. Compare Judge Lu's decision of 12 March 2009 with that of 9 January 2007.  In the January 2007 order, the judge declared,

The court has undertaken a detailed review of this case.  Given the claims and defenses, the requested relief is inappropriate absent, at a minimum, an evidentiary hearing if not a full-blown trial!

Clearly, Judge Lu's declaration in March 2009 that Mother had no evidence to support her claims comports with the judiciary's semi-opaque predetermined agenda . . . for Mother had filed a list of 300+ files containing more than 600 exhibits [APP:50A, 71, 138-139, 170-171].  The court either ignored the list or looked neither at the list filed nor at the attachments accompanying her package in opposition to the defendants' summary judgment motion.

Notwithstanding the issue of Judge Lu's inexplicable, unreasonable, and irrational “about face,” the existing factual disputes must be decided by a jury, not by a judge who has invaded the province of the jury and has usurped the jury’s powers\20/  See Com. v. Smith, 357 Mass. 168, 180, 258 N.E.2d 13, 21 (1970) (discussing judicial usurpation of jury’s power); Com. v. Keita, 429 Mass. 843, 847 n. 1, 712 N.E.2d 65, 68 n. 1, 69 (1999) (same); Treanor v. Donahoe, 63 Mass. 228, 1852 WL 4511 (Mass.), 9 Cush. 228 (1852).

[See] Baker v. Briggs, 8 Pick. 122; in which it is said that, “our law and constitution having given the ultimate decision upon the facts to the jury, to set aside their verdict, unless in extraordinary cases, when it is manifest that they have mistaken or abused their trust, will be to usurp a power which has been lawfully and properly withheld from us.”
Treanor, 1852 WL 4511 at *2 (emphasis supplied).
. . . if the Judges in this case have decided what the Jury ought to have assessed; it is an error in point of law, which this court is competent to correct.
Brown v. Van Braam, 3 U.S. (R.I.) 344, 351, 3 Dall. 344, 351, 1797 WL 819 at *5 (February term, 1797).
*385 Some delay, of course, is inherent in any fair-minded system of justice.  A landlord-tenant dispute, like any other lawsuit, cannot be resolved with due process of law unless both parties have had a fair opportunity to present their cases. Our courts were never intended to serve as rubber stamps for landlords seeking to evict their tenants, but rather to see that justice be done before a man is evicted from his home.
Pernell v. Southall Realty, 416 U.S. 363, 385, 94 S.Ct. 1723 (1976).  Under the Seventh Amendment, both parties to a disputed landlord-tenant action are entitled to a jury trial.  “[W]here the action involves rights and remedies recognized at common law, it must preserve to parties their right to a jury trial.” Id., at 383, citing Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 1007 (1974).  “[T]he Seventh Amendment preserves to either party the right to trial by jury.” Pernell, 416 U.S. at 376, 94 S.Ct. at 1730.
[T]hat Amendment requires trial by jury in actions unheard of at common law, provided that the action involves rights and remedies of the sort traditionally enforced in an action at law, rather than in an action in equity or admiralty. See Curtis v. Loether, supra, at 195, 94 S.Ct., at 1009.
Pernell, 416 U.S. at 375, 94 S.Ct. At 1729.
 [W]hile ‘the thrust of the Amendment was to preserve the right to jury trial as it existed in 1791, it has long been settled that the right extends beyond the common-law forms of action recognized at that time.’ Curtis v. Loether, 415 U.S. 189, 193, 94 S.Ct. 1005, 1007 (1974). The phrase ‘suits at common law’ includes not only suits ‘which the common law recognized among its old *375 and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contra-distinction to those where equitable rights alone were recognized, and equitable remedies were administered. . . . In a just sense, the amendment then may well be construed to embrace all suits which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.’ Parsons v. Bedford, 3 Pet. 433, 447, 7 L.Ed. 732 (1830) (emphasis in original).
Pernell, 416 U.S. at 374-375, 94 S.Ct. at 1729.

According, however, to Kargman v. Dustin, 5 Mass.App.Ct. 101, 109 n. 8, 359 N.E.2d 971, 976 n. 8 (1977), “Pernell does not govern here because the Seventh Amendment has not yet been held applicable to the States.” Kargman citing Curtis, 415 U.S. at 192, n. 6.

Yet, notwithstanding that statement, the court in Kargman cited Pernell for the same statement Mother heretofore cited: “On the one hand, tenants are entitled to their day in court before they can be evicted since courts were not intended to function simply as rubber stamps for **975 landlords seeking to remove their tenants.” Kargman, 5 Mass.App.Ct. at 106, 359 N.E.2d at 974-975. And throughout the case, the Kargman court held steadfastly to Article XV of the Commonwealth’s Declaration of Rights, which, like Pernell, gives tenants the right to a jury trial:

As a starting point, it is to be recognized that Massachusetts has long accorded tenants both a constitutional and a statutory right to a jury trial in eviction cases. Davis v. Alden, 2 Gray 309, 312 (1854).[FN8] . . . ‘It is familiar law that the right of trial by jury secured by art. 15 of the Declaration of Rights is sacred and must be sedulously guarded against every encroachment, yet it may be regulated as to the mode in which the right shall be exercised so long as such regulation does not impair the substance of the right.’ H. K. Webster Co. v. Mann, 269 Mass. 381, 385, 169 N.E. 151, 153 (1929). Fratantonio v. Atlantic Refining Co., 297 Mass. 21, 24, 8 N.E.2d 168 (1937).
Kargman, 5 Mass.App.Ct. at 108-109, 359 N.E.2d at 975-976 (emphasis supplied).
Both the first and second time Judge Lu allowed Marc and Yvonne’s Motion for Partial Summary Judgment, the judge held, for all intents and purposes, that Mother’s claim of specific or partial performance was barred as a defense to the Statute of Frauds.

The court’s application of the Statute of Frauds is an egregious error.  “A plaintiff's detrimental reliance on, or part performance of, an oral agreement to convey property may estop the defendant from pleading the Statute of Frauds as a defense.” Carter v. Estate of Barrows, 2007 WL 3119745 *8 (Mass.Land Ct., 2007), quoting Nessralla v. Peck, 403 Mass. 757, 761 (1989).  M.G.L. c. 259, §1, the Statute of Frauds, is inapplicable to this action.
Marc’s oral promise to Mother that she would have a life estate falls within the leading object exception to the statute of frauds.  Central Ceilings, Inc. v. National Amusements, Inc., 70 Mass.App.Ct. 172 (2007), citing Ames v. Foster, 106 Mass. 400, 403 (1871).  “[A] case is not within the statute, where … the leading object or purpose and the effect of the transaction was the … benefit which [Marc and Yvonne] did not before possess, but which enured to [them] by reason of [Marc’s] promise.”  Central Ceilings, 70 Mass.App.Ct. at 177-178, quoting Ames, 106 Mass. at 403.  “[I]f there was a consideration for said promise [and Mother gave considerable consideration], the contract need not be in writing.” Nelson v. Boynton, 44 Mass. 396, 3 Met. 396, 400 (1841).

An oral promise of a life estate to a grandmother could be deemed to fall within partial performance exception to statute of frauds.  Mulvanity v. Pelletier, 40 Mass.App.Ct. 106, 108-109 (1996), citing Orlando v. Ottaviani, 337 Mass. 157, 161 (1958) (“partial performance on the part of the plaintiffs in this action … estops the defendants from setting up the statute of frauds as a defence to this action”).  Id. (conduct of defendant in refusing to perform his promissory obligation amounted to fraud).  Barber v. Fox, 36 Mass.App. Ct. 525, 530, 530 n. 4 (1994) (statute of frauds does not bar contract or fiduciary duty or restitution claims).  See also Mother’s Statement of Legal Elements [APP:384-426].  “The statute of frauds is no bar to a contract performed by one party but not the other.”  Violette v. Narduzzo, 1992 WL 12151094 *3 (Mass.Land Ct., 1992).  In view of the law, Judge Lu abused his discretion and committed egregiously harmful and reversible error.

In his second confirmatory summary judgment on 14 October 2009, Judge Lu again claimed that Mother “provided no evidence, other than her bare assertion, that an oral agreement was reached where the defendants would convey a life estate to her in the property” [ADD:31].  Judge Lu then failed to acknowledge that after the oral agreement, Mother gave Marc as Trustee another $115,000 and told him to reduce the mortgage\21/ [APP: 318-321]. Would a tenant give a landlord that amount of money for future rent?  Judge Lu’s mistaken judgment was an act of burlesque, a mistake of judgment, an abuse of discretion.  “They that are serious in ridiculous things will be ridiculous in serious affairs,” attributed to Cato the Elder.

[W]hen, as here, a tenant files an answer, appears for trial, and opposes the eviction, a trial must be held.  “Tenants are entitled to their day in court before they can be evicted. This implies a trial with the right to offer evidence and to cross-examine.”  Priluck v. Rodrigues, 2000 Mass.App.Div. 215, 216, 2000 WL 1056332. . . .
Roque v. Kahyaoglu, 2008 Mass.App.Div. 129, 2008 WL 2550740 at *2 (2008).
Tenants are entitled to their day in court before they can be evicted. This implies a trial with the right to offer evidence and to cross examine.  Courts were not intended to function simply as rubber stamps for landlords seeking to evict tenants and those lawfully claiming under them.  Kargman v. Dustin, 5 Mass.App.Ct. 101, 106 (1977) citing Pernell v. Southall Realty, 416 U.S. 363, 365 (1976).  The right to a trial implies the right to all protections, including the right to call witnesses and to cross examine opposing witnesses, compliance with the rules of evidence and action upon requests for rulings, if any.  [Internal cite omitted]. . . .
Priluck v. Rodrigues, 2000 Mass.App.Div. 215, 2000 WL 1056332 at *2 (2000).

4. When on 5 August 2009, after Mother, complying with the order of eviction, had vacated her residence and had moved to Costa Rica, the court’s belated order, curious and convoluted, to stay the eviction was an admission that there was no law supporting the court’s eviction of Mother.

Mother has not found any case on point in any database for a State (including Massachusetts) or the United State Supreme Court about any similar series of events.  The dispute as to whether Mother was a tenant or the holder of a life estate in the subject property had to go to a jury.  A baseless, extrajudicial summary eviction — twice from the same property — was egregious, reversible error.  Mother incorporates herein
by reference the authorities cited in Issue 3, supra.

5. On 11 September 2009, the lower court deviated from the Mass. Rules of Civil Procedure in a manner that prejudicially discriminated against Mother by allowing her son and daughter-in-law’s Request for Leave to File Reply Brief after the court had already decided their Motion for Partial Summary Judgment and had evicted Mother, circumstantially and convolutedly evidencing a retaliatory motive for depriving Mother of her constitutional rights.

Given that after Mother complied with the order of eviction by vacating her home and moving out of the country, and thereby suffered further damage caused by the unlawful order of eviction, Judge Lu’s sua sponte post-summary-judgment order commanding Marc and Yvonne on 7 August 2009 to write a brief on the issue of whether the Statute of Frauds precluded the defense of a life estate is an admission that the partial summary judgment five months earlier was egregious, harmful, and reversible error – an act demonstrating an abuse of discretion when he granted judgment to Marc and Yvonne, unlawful discrimination against Mother, and intentionally unlawful extrajudicial conduct, i.e., conduct without legal authority.  Thus the March 2009 judgment must be deemed void, given that it has no proper or lawful basis.

Again, Mother has not found any case on point in any database for a State (including Massachusetts) or for the United State Supreme Court about any similar series of events.

6. The court, on 14 October 2009, (a) erroneously denied Mother’s 8-month-old Emergency Motion to Vacate Partial Summary Judgment, (b) re-instated the grant of the defendants’ Motion for Partial Summary Judgment,(c) re-instated the Order of Eviction, and by so doing, denied Mother her right to a jury trial, guaranteed by Article XV of the Massachusetts Declaration of Rights and arguably the Seventh Amendment to the United States Constitution, and (d) allowed Defendants’ Motion to Strike/Withdraw Their Counterclaims.  In so acting, the court denied Mother her constitutional due process right to have a jury trial to make a record by requiring the defendants to prove their disputed counterclaims in front of a jury.

After Judge Lu issued his March 12th order, he was  allowing Defendants to take their counterclaims to the jury to hear the disputed facts — e.g., their claim for the intentional infliction of emotional distress —  but not allowing Mother to take her causes of action for negligent and intentional infliction of emotional distress to the jury.  He was again committing reversible error, fundamentally unfair, selective discrimination on a class-of-one theory, and violative of due process and equal protection. Olech v. Village of Willowbrook, 160 F.3d 386, 388 (7th Cir. 1998) (recognizing a “class of one” for constitutional equal protection claims); Jennings v. City of Stillwater, 383 F.3d 1199, 1214 (10th Cir. 2004) (“class of one” claim required “campaign of official harassment directed against him out of sheer malice”).

Notwithstanding the judgment against her, Mother still wanted to make a record by bringing the facts to a jury.  By allowing the defendants' belated motion to withdraw their counterclaims, the judge once again prejudiced Mother.

The bottom line: Mother had a right to a jury trial so that she could confront the defendants.

7. Invidious elder and political discrimination formed the basis of certain opinions, rulings, directions, and judgments of the Superior Court Department of the Trial Court and resulted in  reversible error.

In Caperton v. A.T. Massey Coal Co., 129 S.Ct. 2252, 2264-65 (2009), the Court concluded that due process was denied to a litigant because of judicial bias in the civil tort case.  Also, in Aetna, 475 U.S. at 823-825, the Court found that judicial bias in the civil insurance case violated due process.\22/

The multiple instances of discrimination by judi-cial prejudice and/or bias against Mother and in favor of Marc and Yvonne were accumulative and obvious — and like Aetna, “[t]he record in this case presents more than mere allegations of bias and prejudice” [id., 475 U.S. at 821]: e.g., Judge Lu’s insulting comment that Mother’s motion was “frivolous.”

Given that it was Mother who filed the Complaint initiating the case, was she not entitled to be the Plaintiff of the case?  So, because opposing counsel repeatedly called his clients “Plaintiffs,” it was rational for Mother to try to resolve the resulting confusion of the captions . . . and that was, logically, to move to be designated Plaintiff.  What was “frivolous” about that?  The party who files the Complaint is the “Plaintiff.”  Law school 101.

 Given that Marc had been setting forth preposterous stories in his affidavits and pleadings and that Mother had considerable documentation to support both her position and the impeachment of Marc,\23/ a mock trial could have been the impetus to settle this case quickly.  Instead, Judge Lu chided Mother for filing an “inappropriate” motion and suggested arbitration [ADD:4 and 15C, P#25].

In contrast, when Marc and Yvonne filed their motion to dismiss Mother’s case-in-chief, Judge Lu merely wrote, “Given the consolidation of the cases, this Motion appears moot,” and denied the motion without prejudice [ADD:15D, P#38, entry at 1/10/07].

That Judge Lu did not award economic sanctions to Marc and Yvonne is less significant, because Judge Lu knew of Mother’s well-publicized pending disbarment\24/ and subsequent destitution . . . although his last act, inexplicably, in the case was to award the defendants costs in both 06-00332 and 06-01263 [APP:11, 14, P##113-114]. See the context of his “last act,” infra.

Judge Lu also continued the elder and political discrimination until almost the very end of the case:  Defendants’ counsel, Rossetti, sent on 7 August 2009 a letter addressed to both Assistant Clerk Carlotta Patten and Judge Lu [P#100].  Mother responded on the same date to the same addressees by email — rather than by Costa Rican and U.S. mail or by in-hand delivery — given the amount of time it takes for correspondence to go from Costa Rica to Massachusetts.  Yet, on 11 August 2009, Judge Lu ordered Mother, under the threat of “penalty of contempt,” not to send him an email [ADD:20, P#101].  In contrast, the judge did not threaten Rossetti with contempt for having written him.

And Judge Lu did not stop there.  A few weeks after Mother filed her Notice of Appeal on 9 November 2009, Judge Lu, knowing that Mother had moved out of the country a little over five months earlier because her monthly Social Security stipend was insufficient to sustain her living in Massachusetts, supplemented sua sponte his order of summary judgment by adding an allowance of costs to the defendants.  His rationale could only have been retaliation against Mother for beginning the appeal process.

The most provable aspect of Judge Lu's bias arises out of three facts.  In January 2007, Judge Lu was exclamatory about the need for a full-blown trial [ADD:15A].  In March 2008, after hearing arguments on the partial summary judgment motion, he recommended that Mother settle for $250,000, to which she agreed, and when the defendants offered only $45,000, Judge Lu walked off the bench in disgust. Then in March 2009, he made a 180 degree turnabout [ADD:25-26].

What happened?  Other than the discriminatory prejudice and/or bias ostensibly in retaliation for Mother's political activities and campaign for court reform and the abolishment of judicial immunity, there is no reasonable or rational excuse for Judge Lu’s improper or unlawful conduct.  Did anyone bend his “modern ear”?  Circumstantially, the inference is that someone of political and/or judicial influence did.

Judge Lu's most bizarre conduct occurred during  August 2009, when he (1) stayed Mother's eviction after Mother had complied with his eviction order by vacating the subject property, her home, and had moved out of the country to Costa Rica, and (2) commanded the defendants to brief an issue that should have been decided prior to the original grant of summary judgment in March 2009, to wit, the issue being whether Mother's performance precluded the application of the Statute of Frauds.  Clearly Judge Lu's incentive was to find against Mother, in order to support his earlier baseless judgment.  His second judgment was just as weak and baseless factually and legally as the first judgment was.  In fact, so was his supplemental judgment (for convenience referred to as the “third judgment”) [APP:11, P#113].

Now add Judge Billings' decisions and his footnote about Mother’s disbarment to the conundrum.

First, this appellate court must put itself in the place of Judge Billings and ask itself whether without bias or prejudice he would have made decisions that so clearly reflected his discrimination against Mother.\25/  Then, the panel must closely examine the following interpretation of bias, as proposed recently in the Boston College Law Review.

In Caperton, the Court “held that an objective ‘potential’ or ‘probability of bias’ by a judge or decisionmaker can reach unconstitutional proportions and deny a litigant due process.”  Tarkington, A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, 51 B.C. L. Rev. 363, 374 (2009) (internal citations omitted).

Although the Caperton Court repeatedly noted that the criteria for finding a violation of due process “cannot be defined with precision,” it held that the inquiry is “objective” and does “not require proof of actual bias.”. . . Instead, it requires, “under a realistic appraisal of psychological tendencies and human weakness,” a determination of “whether there is an unconstitutional “potential for bias.”
51 B.C. L. Rev. at 374-75 (2009) (internal citations omitted).

Judge Billings’ footnote in the Spring of 2007 -- “The plaintiff, a recently disbarred attorney, is representing herself.  The defendants are represented by counsel” [ADD:18] — gives meaning to the Caperton court’s words.  Given that Mother’s professional status had nothing to do with the case, that footnote reflects, at the very least, the psychological tendencies of Judge Billings, if not reflecting his “human weakness” to succumb to the “judicial buzz.”  The source of that judicial buzz can only be speculated.\26/  That speculation will have to be saved for a novel.  It has no place in this brief,\27/ but “[s]urely there must be some meaning beneath all this terrible irony.”  George Bernard Shaw.  Notwithstanding the so-called unknown source of the buzz, all this appellate panel can now do is recognize that the buzz existed or still exists, that Billings was weak in succumbing to it, and that his footnote clearly demonstrates an unconstitutional “potential for bias,” and thus a violation of Mother’s rights to due process.

Given the totality of the court’s biased performance in this case as contrasted with the existing law, the overwhelming evidence supporting Mother’s claims, and the lack of any legal rational to support the judges' positions, it can be reasonably concluded that certain opinions, rulings, directions, and judgments of the lower court resulted in reversible error.

CONCLUSION

This appellate panel must conclude that the lower court’s judiciary abused their discretion and violated existing constitutional, statutory, and common law, that their orders accumulatively were reversible errors, and that their orders caused the egregious harm of evicting Mother.

This court will cause further egregious, permanent harm if this appellate panel does not remand the case for trial to determine how much money (1) should be restituted to Mother from the approximate $360,000 she provided to the defendants – plus the interest that should have been paid her – and (2) should be awarded her for emotional distress damages.  And, of course, for the clerk to compute the statutory interest.

Due to the appearance of possible predisposition by the judge of the factual issues in this case, we determine that the cause be remanded for hearing on the merits before another judge.”
Priluck v. Rodrigues, 2000 Mass.App. Div. 215, 2000 WL 1056332 at *2.

Similarly, in another judicial bias case, the Court wrote that that “the ‘appearance of justice’ would be best served by vacating the decision and remanding for further proceedings.”   Aetna,  475 U.S. at 828, 106 S.Ct. at 1589.

RELIEF REQUESTED

For the foregoing reasons, Mother seeks the following relief: (1) that the summary judgment be vacated, (2) that the case be remanded for further proceedings and trial before another judge, (3) that Mother be awarded double appellate fees and costs.

Respectfully submitted,

                            ___________________________
23 April 2010     Barbara C. Johnson, Pro se
                           Apdo #404-4013
                           Alajuela, Atenas, Atenas
                           20501-Costa Rica
                           barbjohnson74@gmail.com
                           SKYPE ID: barbaracjohnson74
                           Phone 506-2446-6724

CERTIFICATE OF SERVICE

I hereby certify that on 24 April 2010 I served a true and accurate copy of the above pleading by email on opposing counsel of record, Kenneth J. Rossetti, Esq., Barton & Rossetti, P.C. 2 Haven Street, Suite 204. Reading, MA 01867.

    /s/ barbjohnson74@gmail.com
    Barbara C. Johnson
24 April 2010
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
NOTES

1.  Mother incorporates by reference in entirety the pleadings and other documents contained in her Appendix to this brief.  Pages in the Addendum appear as ADD:00.  Pages in the two-volume Appendix appear as APP:000.

2.  Marc, as trustee, produced statements from Wells Fargo and Fidelity, which showed irregular or random withdrawals from the Pentaj Trust, but he refused at all times to state the purpose of the withdrawals and the lower court refused to compel him to provide that information.  He had an explicit fiduciary duty to provide Mother with an annual accounting.  He never provided an annual or a comprehensive accounting.

     Coupling the known facts with the absence of both annual trust accountings and the identification of the purpose of the irregular or random withdrawals heightened the appearance of fiduciary embezzlement.   That is, it appears that Trustee Marc appropriated Mother's assets to his own whims, needs, and desires, which provided the reasons for refusing or failing to account to Mother for the ebb, flow, and appreciation of money in the Trust accounts in Wells Fargo and Fidelity.

3.   By the frequency of Mother’s inclusion in pleadings filed of the lists of produced documents, the court had to know that Mother had significant evidence, so granting summary judgment on the grounds of Mother having no evidence was egregious reversible error.  See Arguments, infra.

4.   Money: $298,999.98 into the Trust and approximately $60,000.00 for substantial improvements to the locus.

5.   A motion to determine the sufficiency of admissions is a mandatory motion if a party wants to use objected-to-requested-admissions at time of trial.  See Caron v. General Motors Corp., 37 Mass.App.Ct. 744, 643 N.E.2d 471 (1994).  Massachusetts Highway Dept. v. Smith, 51 Mass.App.Ct. 614, 618-619 (2001), cert. den. 434 Mass. 1109, 757 N.E.2d 730 (2001).

6.   See Issue 7, infra.

7.   Mother attempted to file as an indigent an appeal on the collateral issue of eviction.  To do so, she filed a motion for a stay in the Superior Court and two motions (the second, with a more detailed financial affidavit) in the Appeals Court.  Judge William Cowin denied her two motions to be deemed indigent and did not enter the appeal in court [ADD:20-21, 22-23].  Judge Cowin also made it quite clear that Mother would lose even were she to pay the filing fee.  Note: Both the United State Supreme Court and the Massachusetts Supreme Judicial Court had previously had deemed Mother indigent and waived their filings fees.

8.   The rapidity of the eviction made it impossible to sort and sell her personal belongings, to sell her household belongings (including her car), and to pack her belongings.  As a result, Mother lost between $20,000 and $30,000 by having to abandon or to give away her belongings, which she would not have had to do if she had had a reasonable length of time to manage the move properly.

9.

By denying [attorneys’] right to speak and the public’s corresponding right to receive such speech, the central purpose of the Free Speech Clause are defeated, including self-governance, robust debate on public issues, the unique sovereignty of the American people over government, and the ability of the public to employ democratic correctives to check and define the abuse of judicial power.  This clogs the wheels of political change, allowing for judicial self-entrenchment and further abuse of judicial power.
Tarkington, A Free Speech Right to Impugn Judicial Integrity in Court Proceedings, 51 B.C.L. Rev. 363, 364, quoting Margaret Tarkington, The Truth Be Damned: The First Amendment, Attorney Speech, and Judicial Reputation. 97 Geo. L.J. 1567, note 2 at 1587-1591 (2009).

10.   Marc and Yvonne were designating themselves as “Plaintiffs,” ostensibly for two reasons: (1) because that was what they had been in district court and (2) because the two cases had not yet been consolidated in superior court.  Eventually Mother was deemed “Plaintiff” because she had filed first in superior court.

11.   See Issue 7 on discrimination.

12. “Those motions, should they be filed, will be denied” [ADD:16].

13.  The docket sheet conflicts with the paper.  It identifies Judge Murtagh as the judge presiding over the hearing.  That fact is either erroneous or Judge Murtagh heard argument and Judge Billings wrote the decision.  Mother does not recall either the hearing or the judge.

14.   Mother had been against the marriage and was upset that without her knowledge, Marc had put Yvonne's name on the deed.

15.   The Trust required that Marc account to Mother at least on an annual basis, a duty he ignored.  In fact, Mother still has no idea of how her assets were used even though she repeatedly asked for an accounting.  Cf. Com. v. Garrity, 43 Mass.App.Ct. 349, 682 N.E.2d 937 (1997)(fiduciary embezzlement), rev. denied  426 Mass. 1101, 686 N.E.2d 200 (1997) (Table), cert. denied 524 U.S.(Mass.) 954, 118 S.Ct. 2373 (1998)(No. 97-1885).

16.   Because Marc graduated magna cum laude from University of Pennsylvania's Wharton School of Finance, Mother had reasonable expectations about the money in the Trust being handled properly re investment, return, and risk, etc.  Given that the corpus was prematurely depleted, there was need for an accounting, which was both refused by Marc and denied by the court – yet another example of the deprivation of Mother's property rights.  The purchase of the subject property was made impossible because the property was under water and the mortgage far exceeded the property's market value.

17.   Between 10 February and 13 March 2009, Judge Lu wrote, “The Security Deposit Law claim fails because there is no evidence that the plaintiff ever paid a security deposit” [APP:25].  Was $89,748.82 Swiss cheese? [APP:316].  That Marc failed to comply with the statute was another fact ignored by Judge Lu.

18.   Mother at no time charged the defendants for managing the property, though she should have.

19.   The Kurker court held that Kurker's opposition to the defendants' motion to determine the sufficiency of his responses were not, for the most part, justified and awarded attorney’s fees to the movant.  See Mass.R.Civ.P. 36(a) and Mass.R.Civ.P. 37(a)(4). The conclusion was warranted in light of Kurker's many, obviously unjustified objections on the grounds of relevancy.

         Despite Mother being pro se, her motions should have been acted upon and she should have been awarded fees.  To do otherwise is discriminatory against nonlawyers.  Their time, like that of attorneys, also has value.

20.   Mother had presented to the court to prove her performance much of her considerable documentary evidence: e.g., receipts, estimates, cancelled checks, brochures describing the products of services purchased.

        Because of the abundance of photos, Mother filed thumbnail photos rather than full-size photos in all instances.  Asked if the court wanted copies of the original photos and the other documents, a package which would be about a foot high, the court said, No, it was not necessary. Mother apologizes for not having the transcript of that hearing.  She never anticipated it would be necessary.

21.   Amongst other things she did after the oral life-estate agreement, Mother also installed a new roof, a new oil burner, a new oil boiler. And Judge Lu ignored these facts and declared Mother had no evidence.

22.   Both Caperton and Aetna were recusal cases addressing judicial bias and when a judge should be disqualified or should disqualify himself.  Notwithstanding that Mother did not seek the recusal of the judges in the lower court, Mother asserts that judicial bias was present in the case below and that the accumulation of judicial acts evidencing judicial bias reached the level of unconstitutionality discussed in those two cases.  As the court in Aetna wrote, “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases.” Id., 475 U.S. at 829, 106 S.Ct. at 1589 (concurring, Brennan, J.).

23.   Mother believed that her documentation would expose Marc’s lies and that Marc and Yvonne would learn that a jury would not be persuaded in their favor by their preposterous stories.

24.   Because of the well-publicized disciplinary action, which contained innumerable falsities, Mother sued the Bar Counsel Daniel Crane, Susan Strauss-Weisberg, the OBC, and the BBO [No. 05-1907, entered 20 November 2006].  Judge Billings was the judge on Mother’s case and dismissed it on 4 August 2006 on the grounds of three types of immunity.  Mother appealed it [2006-P-1809], of course, and attempted unsuccessfully to get a grant of certiorari by the U.S. Supreme Court.

25.

One of the justices on the Illinois Supreme Court had written a draft dissenting opinion in the case in which his colleagues were paid off but at the last minute had decided to remain silent.  (Dissents were rare in Illinois.)  “If there is disagreement within an appellate court about how a case should be resolved, I firmly believe that the law will be best served by an open disclosure of that fact, not only to the litigants and their lawyers, but to the public as well,” Stevens wrote in the introduction to “Illinois Justice,” a 2001 book about the scandal.
Jeffrey Toobin, "After Stevens: What will the Supreme Court be like without its liberal leader?,"  The New Yorker (online), 17 April 2010, at http://www.newyorker.com/reporting/
2010/03/22/100322fa_fact_toobin?currentPage=all#ixzz0lN6an0Bk

26.   A similar statement was also footnoted in a federal case [No. 2001-10890-RBC, a malicious prosecution case for a client], implying again with no subtlety that there was an intentional judicial “buzz” about the very political disciplinary action, for which there were no witnesses against Mother, no evidence of any wrongdoing (although alleged by the Office of Bar Counsel), and no public audience allowed at the alleged trial (at which only the Special Hearing Officer, the Office of Bar Counsel prosecutor, and an assistant BBO general counsel were in attendance).

27.   Billings was the motion judge on another of Mother’s cases: Johnson v. Board of Bar Overseers of Mass., Office of Bar Counsel, Daniel Crane, Susan Strauss-Weisberg, and the Com. of Mass. 21 Mass.L. Rptr. 320, 2006 WL 2423300 (Mass.Super.) (No. 05-1907), reported August 04, 2006.  In that case, Billings wrote, “[Mother’s] argument finds support in the statute itself, and the caselaw under it. See c. 258, § 1” (id., at n. 6) and

One has the sense that equating “accountable” with “liable in damages, without qualification” would have grated on the eighteenth century ear at least as much as on the modern one. In any event, the argument reads far more into Article V than any reported case brought to my attention...
Johnson v. BBO, 21 Mass.L.Rptr. at 5 (boldface added for emphasis).

        Mother speculates that, in the vernacular, Judge Billings caught hell when certain judicial colleagues learned that he agreed with Mother: “Her argument finds support in the statute itself, and the caselaw under it” and then could not come up with something more legally substantial than Article V “grated” his modern ear.  Such a conclusion makes Billings appear to believe that our State constitution is dead.

        Bolstering Mother’s speculation about Judge Bill-ings sloughing off Article V is supported by the Appeals Court’s unpublished decision of her appeal, Johnson v. BBO, 70 Mass.App.Ct. 1113, 877 N.E.2d 279 (Table), (December 03, 2007), wherein the court did not mention Article V of our constitution at all.  Clearly the omission was intentional.  Discussion of the orphaned Article V is not only an unmentionable, it is an untouchable.

        The SJC summarily denied review of the Appeals Court decision.  Johnson v. BBO, 450 Mass. 1111, 881 N.E.2d 1142 (Table) (February 28, 2008).  And the United States Supreme Court denied Mother’s petition for a writ of certiorari.

        Billings got the message after Johnson filed her appeal on 29 December 2006 . . . and before he wrote his first offensive opinion on 27 June 2007.