Supplement to  John Smith's Surreply to  Pocahontas's Reply to John Smith's Opposition to  Pocahontas's Motion to Dismiss Complaint for Rescission* (1) The Complaint is Drano #40. (2) John Smith's Opposition to Pocahontas's Motion to Dismiss is Drano #50. (3) John Smith's Surreply to Pocahontas's Reply to  John Smith's Opposition to  Pocahontas's Motion to Dismiss Complaint for Rescission is Drano #63.

COMMONWEALTH OF MASSACHUSETTS HAMPSHIRE, SS.                                             SUPERIOR COURT AT xxxxxxxxxx                                                                              DOCKET NO. 01-000 ------------------------------------- King Harry Smith and  John Smith,                              Plaintiffs  v.  Pocahontas Smith                              Defendant  ------------------------------------- PLAINTIFFS' SUPPLEMENT TO THEIR SURREPLY TO POCAHONTAS SMITH'S REPLY TO PLAINTIFFS' OPPOSITION and MEMORANDUM IN SUPPORT OF  OPPOSITION TO DEFENDANT'S MOTION TO DISMISS Now come King Harry Smith and John Smith to supplement their Surreply to the Reply by Defendant Pocahontas Smith ["Pocahontas"] to Plaintiffs' opposition and memorandum in support of their opposition to Pocahontas's Motion to Dismiss.  As grounds therefor, Plaintiffs state that said Supplement is necessary to correct those factual and legal inaccuracies, which form the basis of Pocahontas's Reply to their Opposition to her Motion to Dismiss. SUPPLEMENTARY ARGUMENT In error, Pocahontas Smith asserts that this action is properly in Probate & Family Court and not in Superior Court. The caselaw holds otherwise:  In Stephen and Gregory Realty Co. v. Pytko, 1998 WL 1184164 (Mass.Super. June 26, 1998) (Fremont-Smith, J.), the Pytko's divorce was pending in Probate & Family Court when Father sought in Superior Court both the transfer of his interest back to him based upon Husband's default, and damages for Wife's alleged deceptive behavior, misappropriation of corporate records, and interference with the plaintiffs' contractual relations).  Mrs. Pytko, like Pocahontas Smith, contended that the case presented issues already pending in probate court.  The court disagreed: "Although probate courts have plenary equity jurisdiction in controversies over property between husband and wife in divorce proceedings or between divorced persons ..., such a narrow issue is not presently before this court, as the parties to this lawsuit are not limited to the divorced persons." Stephen and Gregory Realty Co. at *3 (cite omitted).  In Conant v. Sherwin L. Kantrovitz, P.C., 29 Mass.App.Ct. 998 (1990), the action did not involve the same parties as the pending divorce action.  "The principal of that corporation appears in his individual capacity in the divorce proceeding in the Probate Court."  Id. at 999.  "Second, the claim presented in [Conant] is essentially one of a contract right to repayment of a loan from the defendant corporation.  The Probate Court does not have jurisdiction over such a claim." Id. Like the instant case, "the claims involved in the divorce action were for alimony and division of property under G.L. c. 208, sec. 34." Id., citing Heacock v. Heacock, 402 Mass. 21 (1988). In Heacock, the court was "astonished" that the wife had not told the probate court that she intended to bring the tort after the parties were divorced.  Heacock, at 307.  Here, in the instant case, Smith did as implied by the court in Heacock, at 308, he informed the probate court of the superior court case: he filed JOHN SMITH'S MOTION TO STAY PROPERTY DISPOSITION UNTIL SUPERIOR COURT RESCISSION CASE IS RESOLVED. In Nile v. Nile, 432 Mass. 390 (2000), in which a son brought suit against foreign successor trustees to enforce terms of a postdivorce settlement agreement between his deceased father and his former wife, the plaintiff's claim was described as "a straightforward action for breach of contract which does not require the Massachusetts courts to determine any issue involving the administration of a New Hampshire probate estate.  Any damages recovered [in Nile] will become an asset of Nile's probate estate, the administration of which will be overseen by the New Hampshire Probate Court.  This action merely seeks to marshal assets for inclusion in that probate estate.  There has been no showing that this action will interfere with the administration of Nile's estate". Nile, 432 Mass. at 397, stating the rationale behind concluding that suct did not lack subject-matter jurisdiction. * * * * * WHEREFORE, Plaintiffs pray that Pocahontas Smith's motion to dismiss be DENIED and that Plaintiffs be granted attorney's fees and costs, pursuant to G.L. 231, sec. 6F, for having to oppose Pocahontas's frivolous motion.        Respectfully submitted,.       KING HARRY SMITH       JOHN SMITH       By their attorney,       Barbara C. Johnson 3 October 2001                        Barbara C. Johnson, Esq.                                                6 Appletree Lane                                                Andover, MA 01810-4102                                                978-474-0833