Petition and Record Appendix
Nature of the Action of the trial court
Statement of Issues of Law Raised by the
Statement as to Whether a Party Has Filed,
Statement of Relief Requested . . . . . . .
Docket, Johnson v Johnson et al,
Summary Judgment M.R.C.P. 56, (27 October 2011) . APP-33
Rulings and Order for Entry of
Motion to Reconsider and Vacate the
Exhibit A, Proposed Order . . . . . . . . . APP-43
Reply to Defendants’ Combined Opposi-
Plaintiff’s Motion to Recuse Judge
Plaintiff’s Motion to Continue Trial
Plaintiff’s Motion to Allow Atten-
Plaintiff’s Motion for Court to Pro-
Motion to Reconsider Plaintiff’s Mo-
(slightly abridged) from Mother’s pend-
1, an excerpt from multiple pleadings
2 and Figure 1, excerpts from multiple
A.C. No. 20l2-J-_____
I. Johnson, individually and
FOR INTERLOCUTORY REVIEW
Nature of the Order and Action of the trial court
Petitioner Barbara Johnson [“Mother”] requests interlocutory review of an order entered into the docket on 7 March 2012 by Judge Robert A. Cornetta, sitting by appointment by CJAM Robert Mulligan, without approval of the Governor’s Council and possibly without being sworn in under the judicial oath.
On 27 November 2011 and 9 December 2011, Mother moved this court to provide to her free of charge transcripts of two hearings before Judge Cornetta, specifically, of 12 August 2011 and 20 October 2011.
7 February 2012, Judge Cornetta disposed of Mother’s motion by writing:
Motion (P#157) No action is taken on the re-
Between 1987 and 2006, when this action arose, Mother provided $298,999.89 to Marc and expended approximately $60,000 in cash and kind to maintain, repair, and update the property. The sum of $258,999.89 constituted Mother’s equitable basis for remaining in the property (purchased for $220,000 in 1987).
Mother paid both rent and the mortgage [see Tables 1 and 2, and Figure 1, showing the rents paid by her (the rent varied unbeknownst to her) [APP:68-69].
Yet, despite Mother’s advance payments for her occupancy—–whether deemed rent or payment for a life estate—–on 10 March 2009, Judge John Lu both granted Defendants’ motion for partial summary judgment, thus precluding Mother from bringing her case to trial, and evicted Mother, who was 74 years old. She is now 77.
Mother’s entitlement to trial if quantum meruit should be appropriate was the basis upon which the Appeals Court panel (Lenk, Brown, Mickey, JJ.) remanded the case in May 2011.
Because the unfavorable decision in the underlying action was, in Mother’s opinion, a result of political retaliation (explicitly unaddressed by the appellate panel), the offending retaliation continued in Lawrence after remand. Judges Lu and Billings were replaced by Judge Cornetta, who has done everything to assure that Mother would not be treated with fundamental fairness and get the trial granted by the Appeals Court.
The facts explaining the extraordinary lengths to which Cornetta’s court went in order to deny Mother her constitutional rights to due process and equal protection are included in considerable detail in Mother’s pending PETITION FOR CERTIORARI PURSUANT TO M.G.L. c. 249, § 4, docketed as SJ-2011-0412. An abridgment of those facts are included in the Appendix [APP:60-67] for the convenience of this court.
II. Statement of Issues of Law Raised in the Petition
1. Where there is no court record of the two hear-
2. Where the grant of summary judgment was void
Mother has neither filed nor served nor intends to file a Motion for Reconsideration in the Trial Court. The law does not require the doing of a useless or hollow or futile act.\1/ Judge Cornetta both filed and caused notices to be sent on 19 March 2012 of his “Findings and Ruling” for the order of 7 March 2012 [APP:31-32]. It was by happenstance that Mother randomly checked AOTC’s online docket sheet on 28 March 2012 to learn if anything had been filed by Defendants and learned of Cornetta’s latest Findings.
In his belated Findings, Cornetta stated Mother had not included in her affidavit of indigency “publishing income” from the books she had published.\2/ That information was not required by the form. Mother had no obligation to file the Supplement.
Her income has been below the state and federal poverty levels for years, even when including royalties from Amazon and CreateSpace(formerly BookSurge).\3/
9 January 2012, the new book was published as an ebook not as a paperback.
If and when the new book sells, mother will receive royalties 60 days following
the month in which the sales occur. Both books are self-published.\4/
Statement of Relief Requested
a. to vacate the order of 28 October 2011 granting Defendants’
3. She received no royalties in August and September 2011 and none in January through March 2012.
4. Because Mother has had no money to advertise her books, they are known essentially only by friends. She asked her son Marc, a defendant in the underlying case, to give her seed money. He refused.
The publishing industry has changed in recent years. Unless one is a nationally recognized figure, authors, whether self-published or not, must do their own marketing. That is an arduous, time-consuming task. One must write articles and expand one’s image on social networks, in an effort to make one’s name known in the general public. In 2009 and 2010, Mother was frequently a guest on diverse Internet radio talk shows, and was thus able to supplement her social security income by enough to allow her to buy food. As the book aged, sales decreased. Not residing in the States prevented Mother from scheduling book-signing appearances and speaking tours.
5. Pro se litigants may be entitled to Attorney fees and costs under the Civil Rights Attorney's Fee Award Act of 1976, 90 Stat. 2641, as amended 42 USC 1988.
CERTIFICATE OF SERVICE
I hereby certify that on this day I emailed a true and accurate copy of the above pleading and attachments and served by “first-class” mail on opposing counsel of record, Kenneth J. Rossetti, Esq., Barton & Rossetti, P.C. 2 Haven Street, Suite 204. Reading, MA 01867.
Barbara C. Johnson
Essex, ss. A.C. No. 20l2-J-
Marc I. Johnson, individually
MEMORANDUM IN SUPPORT OF
Plaintiff/Petitioner Barbara C. Johnson [“Mother”] submits this memorandum in support of her Petition for Interlocutory Review of an order that makes assembly of the record impossible. Mother filed a timely notice of appeal after receiving decision of summary judgment in favor of Defendants/Respondents.
Mother also filed (1) an affidavit of indigency (several times, several forms) and (2) two motions (original and one to reconsider) seeking the Commonwealth to pay for the tapes and transcripts of two hearings referenced in Judge Cornetta’s Findings, Rulings and Order for Entry of Judgment, dated 27 October 2011.
The two hearings were on 12 August 2011 and 20 October 2011. The August
12th hearing was a teleconference. The October 20th was not. Cornetta denied
Mother leave to make a telephonic appearance on October 20th. In effect,
the October 20th hearing was an ex
Cornetta denied Mother’s motion for tapes and transcripts of both hearings on the grounds that there was no record of the “telephonic hearing,” which was the August 12th hearing. If that was true, why did he not allow Mother’s motion and produce the tape of the ex parte summary judgment hearing?
On 19 March 2012, twelve days after the decision and order of 7 March 2012 issued on Mother’s motion, Judge Cornetta entered “Findings and Ruling,” allegedly in support the March 7th order. But his findings are fallacious––as described infra.
Despite Cornetta’s efforts in mid-March to disguise speciously his admission that his order denying Mother’s motion is meritless, it remains that there appears to be no record of either of those hearings. That deficiency caused his court to lose jurisdiction as of August 12th over Johnson v. Johnson et al. Given the lack of jurisdiction over that case, the summary-judgment decision and order of October 27th is void ab initio.
Further, Cornetta might not be appropriately called a “judge.” He evidently was appointed by CJAM Mulligan and thereby bypassed approval of the Governor’s Council (which is the public’s only opportunity to participate in a judicial appointment). Although a statute appears to give the CJAM the right to appoint a judge from one department into another, that statute is vague, and itself may be deemed unconstitutional. It is vague in that it neither provides for the transferred judge to be sworn in under oath nor be evaluated by the Council for suitability in experience, education, training, and knowledge to sit as a superior court judge. Mother’s petition pursuant to M.G.L. c. 249, § 4, details documentary facts proving that Cornetta is either not intellectually capable of serving in that capacity or, alternatively, a coconspirator with the unnamed co-conspirators identified in Mother’s petition docketed as SJ-2011-00412 (page 37) and her appellate brief, 2010-P-0471—the conspiracy being to retaliate and politically discriminate by wrongfully using judicial powers against Mother.
1. Where there is no court record of the two hearings relied upon
by Judge Cornetta in
A court of record is a court, or tribunal, which must meet the following criteria:
1. generally has a seal (in England and some states)
3 Blackst. Comm. 24; 3 Steph. Comm. 383; The Thomas Fletcher, C.C.Ga., 24 F. 481 (1884)(“The importance of the final record in our courts in all cases a few years old, where loose papers are constantly being misplaced, is too well known to be argued.”); Ex parteCOURTS OF RECORD are those whose acts and judicial
Thistleton, 52 Cal. 220 (or 225), 1877 WL 1763 (1877); Erwin v. U.S., 37 F. 470 (or 488), 2 L.R.A. 229 (D.C.Ga., 1889) (“A court not of record is the court of a private man whom the law will not intrust with any discretionary power over the fortune or liberty of his fellow subjects.‘ 3 Bl.Comm. 24.”); Heininger v. Davis, 96 Ohio St. 205, 208-209, 117 N.E. 229, 231 (1917) (“‘A justice's court, in Pennsylvania, is not a court of record; a docket and short minutes of his proceedings are all that is kept by the justice, such as is kept by our justices of their proceedings.’”)
“A court of record is a judicial tribunal having attributes and exercising functions independent of the person of the magistrate designated generally to hold it.” Jones v. Jones, 188 Mo.App. 220, 175 S.W. 227, 229 (1915), citing Ex parte Thistleton, 52 Cal. 220, and Bucher v. Thompson, 7 N.M. 115, 32 Pac. 498 (1893). A court of record is also a proceeding according to the course of common law, its acts and proceedings being enrolled for a perpetual memorial. Ex parte Gladhill, 8 Metc. Mass. 171, per Shaw, C.J. See also Ledwith v. Rosalsky, 244 N.Y. 406, 155 N.E. 688, 689.
Logically, therefore, when Cornetta intentionally failed\1/ to comply with the Massachusetts Rules of Civil Procedure and common law, he was but a private man without discretionary power over the parties in the underlying action. That is, Cornetta’s private court was a court not of record.
The “judicial power,” which article 3, §§ 1, 2, of the constitution confines to courts created by congress, extends only to “cases” in courts of record. Robertson v. Baldwin, 165 U.S. 275, 279, 17 S.Ct. 326, 329 (1897).\1/ Cornetta’s failure re Superior Court Rule 9A was called to his attention in Mother’s pleadings. His failure to allow Mother to appear telephonically at the summary judgment hearing was a violation of fundamental fairness and common law. See page 12, infra, for discussion of “the denial of fundamental fairness [is] shocking to the universal sense of justice.” Betts v. Brady, 1942, 316 U.S. 455, 462, 62 S.Ct. 1252, 1256, 86 L.Ed. 1595. His intentional scheduling of the first day of trial on the same day as the summary judgment hearing both precluded giving Mother an opportunity to prepare for trial if the summary judgment was denied, and was malicious if allowed, given that he knew Mother would have to fly a few thousand miles at considerable expense from Costa Rica for a short hearing in Lawrence, Mass. See Vaks v. Ryan, infra, where it defines Mass.R.Civ.P. Rule 6(c).
A party to a proceeding in a court not of record has in most cases a right to demand a new trial, to wit, a trial de novo, in a court of record. This is not an appeal, as such, but a new proceeding which completely supersedes the result of the prior trial.
“Where there is no jurisdiction over the subject matter, there is, as
well, no discretion to ignore that lack of jurisdiction.” Joyce v. U.S.,
474 F.2D 215, 219 (3rd Cir. 1973), citing F.R.Civ.P. 12(h)(3). Joyce
was cited by Magistrate Judge Robert C. Collings in Lowry v. U.S.,
958 F.Supp. 704, 714 (D.Mass. Feb. 12, 1997) (NO. CIV.A. 91-11233-MLW)
for other reasons. “A departure [by a court] from those recognized and
established requirements of law, however close apparent adherence to mere
form in method of procedure, which has the effect [of] depriv[ing] one
of a constitutional right, is an excess of jurisdiction.” Wuest
Even if a court has or appears to have subject matter jurisdiction, subject matter jurisdiction can be lost. A few of the many major reasons which apply to this case and why subject matter jurisdiction is lost follow:
• a judge does not follow statutory procedure, Armstrong v Obucino, 300
Cornetta has arguably committed almost all of the above transgressions. For instance, at minimum, due process requires notice and an opportunity to be heard. Ouellet v. Cummins, infra. In this case, Mother was given notice but was intentionally precluded, given the circumstances, from having an opportunity to be heard. The right to be heard guaranteed by due process entails an opportunity to address the critical and determinative allegations which are at the core of a party's claim or defense and to present evidence on the contested facts. U.S.C.A. Const. Amend. 14. Ouellet v. Cummins, 1998 Mass.App.Div. 256, 1998 WL• unlawful activity of a judge or undisclosed conflict of interest. Code
832618 *3 (1998), citing Highland Tap v. Commissioner of Consumer Affairs, 33 Mass.App.Ct. 559, 571, 602 N.E.2d 1095 (1992), and overturning Judge Cornetta’s
decision in Ouellet, No. 9713-RM-1477 (Lynn Div., Cornetta, J.), for denying a party due process and violating the Fourteenth Amendment.
Where the court lacked personal or subject matter jurisdiction or acted in a manner inconsistent with due process of law, and the entry of the summary judgment order violated due process, the judgment is void. U.S.C.A. Const. Amends. 5, 14. Triad Energy Corp. v. McNell, 110 F.R.D. 382 (S.D.N.Y. 1986). F.R.Civ.P. Rule 60(b)(4); Klugh v. U.S., 620 F.Supp. 892 (D.S.C. 1985); Eckel v. MacNeal, 628 N.E.2d 741 (Ill. App. Dist. 1993); Matter of Marriage of Hampshire, 869 P.2d 58 (Kan. 1997); Jaffe and Asher v. Van Brunt, S.D.N.Y.1994, 158 F.R.D. 278.
The void judgment has no legal force or effect whatever; it is an absolute
nullity. Given that Mother’s rights were affected, she may attack its invalidity
directly or collaterally whenever and wherever it is interposed. In
re Estate of Steinfield, 630 N.E.2d 801, certiorari denied. See also
Steinfeld v. Hoddick, 513 U.S. 809 (Ill. 1994). City of Lufkin
v. McVicker, 510 S.W. 2d 141 (Tex.Civ.App., Beaumont, 1973). In
re Marriage of Parks, 630 N.E.2d 509
Other courts offer a fuller definition of a void judgment:
A void judgment which includes a judgment entered by a court which lacks jurisdiction over the parties or the subject matter, or lacks inherent power to enter the particular judgment, or an order procured by fraud, may be attacked at any time, in any court, either directly or collaterally, provided that the party is properly before the court.Long v. Shorebank Development Corp., 182 F.3d 548 (C.A. 7 Ill. 1999). People v. Wade, 506 N.W.2d 954 (Ill. 1987). People v. Sales, 551 N.E.2d 1359 (Ill.App. 2 Dist. 1990). People v. Rolland, 581 N.E.2d 907, (Ill.App. 4 Dist. 1991).
The void judgment is devoid of any potency because of jurisdictional defects. Ward v. Terriere, 386 P.2d 352 (Colo. 1963).
A "final" but void order can have no preclusive effect. "‘A void judgment
[or order] is, in legal effect, no judgment. By it no rights are divested.
From it no rights can be obtained. Being worthless in itself, all
proceedings founded upon it are equally worthless. It neither binds nor
bars any one.' [Citation.]" Bennett v. Wilson, 122 Cal. 509,
513-514, 55 P. 390
A void judgment is one which, from its inception, was a complete nullity and without legal effect. Lubben v. Selective Service System Local Bd. No. 27, 453 F.2d 645, 14 A.L.R. Fed. 298 (1st Cir. (Mass.) 1972).
A void judgment may also be vacated at any time. Matter of Marriage
of Welliver, 869 P.2d 653 (Kan. 1994). Hobbs v. U.S. Office of Personnel
Management, 485 F.Supp. 456 (M.D. Fla. 1980). Holstein v. City of
Chicago, 803 F.Supp. 205, reconsideration denied 149
Loyd v. Director, Dept. of Public Safety, 480 So.2d 577 (Ala. Civ. App. 1985).A void judgment is one which, from its inception, is and forever continues to be absolutely null, without legal efficacy, ineffectual to bind the parties or to support a right, of no legal force and effect whatever, and incapable of enforcement in any manner or to any degree.
A judgment shown by evidence\3/ to be invalid for want of jurisdiction is a void judgment or at all events has all attributes of a void judgment, City of Los Angeles v. Morgan, 234 P.2d 319 (Cal.App. 2 Dist. 1951).
A void judgment has no effect whatsoever and is incapable of confirmation or ratification. Lucas v. Estate of Stavos, 609 N.E.2d 1114, rehearing denied, and transfer denied (Ind. App. 1 Dist. 1993).\3/ Evidence real or fabricated.
A void judgment is a judgment, decree, or order entered by a court which
lacks jurisdiction of
While voidable orders are readily appealable and must be attacked directly, a void order may be circumvented by collateral attack or remedied by mandamus. Sanchez v. Hester, 911 S.W.2d 173, (Tex.App., Corpus Christi, 1995).
When the sense of fairplay is shocking, due process is violated.
Kinsella v. United States, 361 U.S. 234, 246, 80 S.Ct. 297, 303-304
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903 (Va. 1976).[The] identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest
In the instant case, (1) Mother’s private interest has been affected by the lower court’s action, (2) Mother has been erroneously deprived of her financial interests, (3) the Commonwealth’s interest in retaliating and politically discriminating against Mother is against public policy. Because of the Ouellet case, in which Cornetta’s decision was overturned, he had to have learned the proper procedure. Therefore it can be circumstantially proven that Cornetta was acting with forethought of retaliation and discrimination, which were, in Mother’s opinion and as voiced in both her appeal, 2010-P-0471, and petition, SJ-2011-00412, the acts of Judges Lu and Billings, making Cornetta’s acts continuances of the judicial conspiracy “proved” – albeit not addressed – in the original appeal.
2. Where the grant of summary judgment was void ab initio,
the case must be
Relief from void judgment is available when the trial court lacked either
personal or subject matter jurisdiction. Dusenberry v. Dusenberry,
625 N.E. 2d 458 (Ind.App. 1 Dist. 1993).
A party to a proceeding in a court not of record has in most cases a
right to demand a new trial, to wit, a "trial de novo," in a court of record.
This is not an appeal, as such, but a new proceeding which completely
supersedes the result of the prior trial. See Box v. Talley,
1 Va.App. 289, 338 S.E.2d 349, Va.App., January 07, 1986 (NO. 0282-85)
4 April 2012Respectfully submitted,
CERTIFICATE OF SERVICE
I hereby certify that on this day I emailed a true and accurate copy
of the above pleading and attachments and served by “first-class” mail
on opposing counsel of record, Kenneth J. Rossetti, Esq., Barton
& Rossetti, P.C. 2 Haven Street, Suite 204. Reading, MA 01867.
4 April 2012 Barbara C. JohnsonBarbara C. Johnson