#87, Drano Series
   

 
    Where Did Justice Go? 
    (Case #1)
     

    A Massachusetts District Court, then the Board of Bar Overseers, next a Superior Court, and ultimately the  Massachusetts Appeals Court
    found NOTHING wrong with an attorney putting an attorney's lien for attorney's fees on the case of a senior citizen, an old lady, Sarah "Sally" Cholfin, who did not even know him


    4/4/03 Update: The highest court in Massachusetts denied Cholfin's application for further appellate review.  No reason given.  Just denied.  

    This page consists of four pleadings filed in the two appellate courts -- the intermediate appellate court and the highest one in Massachusetts -- and, of course, the Appeals court decision.  We shall have to wait for the decisions on the Rule 27 and 27.1 pleadings.

    1.    The plaintiff's appellate brief . . . which tells her story and mine.

    2.    The plaintiff's appellate reply brief . . . which responds to the defendant's appellate brief (which I have not scanned in because of its length).  From plaintiff's reply, you'll be able to understand what the defendant's malpractice-insurance lawyer wrote.

    3.    The Appeals Court decision ("unpublished," a type of decision that is not supposed to be cited as legal authority in other cases), which denied both the plaintinff's and my claims.

    4.    Plaintiff's letter to the Massachusetts Appeals Court pursuant to Rule 27 of the Massachusetts Rules of Appellate Procedure.  (Highly unusual.  Do not use this unless you are willing to be a  sacrificial lamb.)   If you want a rehearing, follow the instructions in Rule 27.

    5.    Plaintiff's pleading filed with the Massachusetts Supreme Judicial Court pursuant to Rule 27.1 of the Massachusetts Rules of Appellate Procedure.  (Highly unusual.  Not at all in the form to be used for this rule.  Do not use this one unless you are willing to be a sacrificial lamb.)  If you want further appellate review, follow the instructions in Rule 27.1.

    .

    Selected Massachusetts Court Rules may be found at http://www.lawlib.state.ma.us/rules.html (list)
    http://www.lawlib.state.ma.us/civrules.html (civil procedure)
    http://www.lawlib.state.ma.us/sjc.html (Supreme Judicial Court)

    Massachusetts Rules of Domestic Relations Procedure 
    http://www.dvi.neu.edu/flr/rules/rules_contents.htm (all of them)

    Massachusetts Rules of Appellate Procedure
    http://www.lawlib.state.ma.us/appellate.html (all of them)

     

     
    COMMONWEALTH OF MASSACHUSETTS

    APPEALS COURT 

    ______________________________________________

    MIDDLESEX, SS.
    CASE NO. 2001-P-0582 
    ______________________________________________
     
     

    SARAH CHOLFIN, Indiv. & Admin.
    Plaintiff/Appellant

    v.

    STEPHEN J. GORDON 
    Defendant/Appellee
    Third-Party Plaintiff/Appellee

    v.

    BARBARA C. JOHNSON 
    Third-Party Defendant/Appellant 

    __________________________________________________

    On Appeal from Judgments and Orders of 
    Middlesex Superior Court 
    Docket No. 94-3623
    __________________________________________________
     
     

    BRIEF OF SARAH CHOLFIN, Indiv. & Admin.
    Plaintiff/Appellant
    and
    BARBARA C. JOHNSON 
    Third-Party Defendant/Appellant 
    __________________________________________________






     

    STATEMENT OF THE ISSUES

    1. Where Gordon claims to have represented Cholfin for a "portion" of the prosecution of the case but never withdrew his so-called appearance--with or without leave of court--his liability is not limited to only that period during which he claims he represented Cholfin, making the denial of a declaratory judgment in Cholfin's favor reversible error.

    a. Where there is an actual controversy and plaintiff has legal standing, Cholfin is entitled to a judgment declaring her rights arising out of the alleged legal relationship and declaring that Gordon was her attorney from 1988 through posttrial matters in Wrentham District Court, and not merely during 1988 and 1989.  2. Where Gordon represented to two courts that he was attorney for Cholfin and whether or not she relied upon him, he assumed a professional duty to her, and by his failure to perform any duties for his alleged client, he was negligent. (Count 2)  a. Where Gordon's performance not only fell below the standard of care required by the fallible attorney, but his performance was also non-existent, no expert was necessary. 3. Where Gordon falsely claimed he was Cholfin's attorney, and was thereby obliged to safeguard her money judgment, his putting an attorney's lien on Cholfin's judgment for services not rendered was a breach of fiduciary duty. 

    4. Where Gordon performed not one iota work for Cholfin, he breached the contract or quasi-contract he alleged he had with Cholfin. 

    5. Where Gordon misrepresented to two courts that he was Cholfin's attorney on the underlying case, but was not, in order to permanently deprive Cholfin of up to $11,500, his conduct constitutes fraud. 

    a. Gordon's misrepresentations to the District Court were not fully adjudicated there, for Gordon was not a party to the underlying case. 6. The negligent infliction of emotional distress claim presents questions of fact for the jury.

    7. Where the doctrine of absolute privilege is unavailable to Gordon as a defense to committing fraud upon a court, Cholfin is entitled to having her claim of intentional infliction of emotional distress be presented to a jury. 

    8. Where Gordon's unfair and deceptive acts arose in his practice of law, Plaintiff is entitled to bring a claim pursuant to G.L. c. 93A. 

    9. Where Gordon made material misrepresentations to District Court regarding his legal representation of Cholfin and thereby was awarded attorney's fees from her, her claims against him were not wholly insubstantial, frivolous, or brought in bad faith, thereby ruling that G.L. c. 231, sec. 6F, was applicable and awarding Gordon fees was unjustifiable and reversible error.

    10. Where Gordon's claims for contribution and indemnification against Johnson were wholly insubstantial, frivolous, or brought in bad faith, making the failure to award Johnson fees pursuant to G.L. c. 231, sec. 6F, was reversible error.

    11. Where Gordon's attorneys did not have good ground to support the Third-Party Complaint, in that they did not diligently investigate the facts alleged in that complaint, Rule 11 sanctions against Gordon's attorneys were appropriate.
     

    STATEMENT OF THE CASE

    This is an appeal from the summary judgment awarded Stephen J. Gordon ["Gordon"] against Sarah Cholfin ["Cholfin"], from the award to Gordon of attorney's fees and costs from Cholfin, from the denial of the motions of Barbara C. Johnson ["Johnson"] for attorney's fees and costs pursuant to G.L. c. 231, sec. 6F, from Gordon and for Rule 11 sanctions against Gordon's attorneys.

    This case arises out of an underlying collection action brought in Norfolk Superior Court in 1984 by Cholfin's late husband against Millis Used Auto Parts, Inc., and Robert Valchuis ["the Millis case"]. The action was transferred to Wrentham District Court ["WDC"] on 26 September 1986 [A-213, A-263] and tried before a Master in 1992 and 1993. In May 1993, the Master found for Cholfin in the amount of $1,714.37 [A-583A].

    Three prior counsel represented the Cholfins in the Millis case. Gordon was not one of the three prior counsel. According to the third attorney, Gordon had agreed to attend one hearing in order to cover for him until he was sworn in to the Bar, but Gordon did not attend that hearing. Present counsel made her appearance after Gordon sought in WDC attorney's fees from Cholfin. Subsequently Gordon was awarded fees by WDC, which unlawfully did not allow Cholfin to appeal that decision. 

    Cholfin sought a declaratory judgment estopping Gordon from denying that he ever acted as Cholfin's attorney (Count I) and alleged negligence (Count II), breach of fiduciary duty (Count III), breach of contract (Count IV), fraud (Count V), negligent and intentional infliction of emotional distress (Counts VI and VII), and violation of G.L. c. 93A (Count VIII). 
     

    PRIOR PROCEEDINGS

    This legal-malpractice action entered into the Norfolk Superior Court docket as MICV-94-3623 [A-213]. In his third-party action, Gordon sought indemnification and contribution from Johnson, who at the relevant time in this action was not an attorney. Johnson brought a successful motion for partial summary judgment against Gordon, but was not awarded attorney's fees (McHugh, J.) [ADD-61]FN1. Gordon then brought a successful motion for summary judgment against Cholfin [ADD-62] and was awarded attorney's fees (Gershengorn, J.) [ADD-83].

    1 The documents in the Appendix and Addendum are 
    identified by their page number: A-page and ADD-page]. 
    Both Cholfin and Johnson brought appeals in the Appeals Court single-justice session [No. 1997-J-0125] under G.L. c. 231, sec. 6G. No decision was reached by that court.FN2
    2 The cases appear to have been "consolidated," although no formal notice has issued.
    Cholfin is appealing to the panel the award to Gordon of both summary judgment and attorney's fees. Johnson is appealing the failure of the court to award her fees pursuant to G.L. c. 231, sec. 6F, and sanctions pursuant to Mass.R.Civ.P. 11.
     

    STATEMENT OF THE FACTS

    In 1984, Isadore Cholfin ["Isadore"] brought a collection action against Millis Used Auto Parts, Inc. Mr. Cholfin sought $42,657.87 in damages from Millis [A-213]. The Millis case was tried to a Master and resulted in a finding of $1714.34 for the plaintiff [A-583A] -- despite the fact that Millis produced only $2522.84 worth of checks explicitly offsetting the unpaid invoices produced by Cholfin, i.e., the number of the invoices being paid appeared on the checks. Gordon's evaluation of the Millis case at "less than $20,000.00" but at no less than its settlement value of "15 or $18,000" was more than the result achieved in Wrentham [A-793 at transcript pages 94-95].FN3

    3 Before the discovery period was over in Middlesex Superior Court, CPA Mark Preziosi, an expert in business evaluation, reviewed all the evidence in the case and prepared for testimony at trial. From that evidence, Plaintiff contends, she would have obtained a better result had Gordon exercised the degree of skill and care of the average qualified practitioner.


    EARLY LEGAL REPRESENTATION

    Several attorneys represented the Plaintiff in Millis prior to judgment. The first, Edward J. Collins, Esq., was retained by Isadore in 1982 to file the action [A-213]. Collins did so until 1984 [A-255, para. 8]. After Isadore's death, his widow, Sarah Cholfin, retained Attorney John Pierce to represent the Estate [A-214, A-1127B]. On or around 10 November 1986, she was substituted as Plaintiff in her capacity as Administratrix of the Estate [A-218, A-667A at page 6]. 

    Frustrated by no progress in the case, two years later, Cholfin met with John Garrity ["Garrity"] during the summer of 1988 for the purpose of engaging him as successor counsel [A-252]. Garrity agreed to accept the Millis case, and would file an appearance as soon as he was sworn into the Massachusetts Bar, which would be no sooner than December 1988 [id]. Sometime during October 1988, Garrity began working in Worcester out of Gordon's office [A-1127A, A-1127B]. 

    GARRITY'S RELATIONSHIP TO GORDON: EMPLOYEE OR
    INDEPENDENT CONTRACTOR ???

    Gordon and Garrity had an oral contract which governed their business relationship [A-809, para. 3]. There is a genuine dispute as to whether Garrity was working out of Gordon's office as an independent contractor or as an employee: Garrity and Cholfin contend that Garrity was, in fact, an independent contractor and not an employee as evidenced by his 1099 Form [A-231; A-811, A-812, A-813; A-231 and A-252]. Gordon has been inconsistent: he has admitted that he gave Garrity a 1099 [A-588, Admission #15], but refused to acknowledge a copy of the IRS Form 1099 at his deposition [A-788-789, depo pages 24-25] and continued to insist that Garrity was an employee [A-788-789 at pages 23, 25-27]. Gordon also neither withheld state and federal taxes from any monies he gave Garrity, nor complied with the social security laws [A-1127B, paras. 15-16].FN4

    4 Gordon's credibility and the facts are issues for the jury. 
    Despite these undisputable, definitive facts, the motion judge (Gershengorn) found that Garrity was an employee of Gordon.FN5
    5If the judge is correct, then the IRS should be notified of Gordon's noncompliance with the tax and social security laws. If the judge is incorrect, then, at the very least, Cholfin's counts for common-law fraud and emotional distress and chapter 93A violations must be reversed . . . and, of course, the section 6F award.
    Cholfin not only was never made aware of the terms of the business agreement between Gordon and Garrity, she never met nor even knew of Gordon [A-667A at page 6; A-300, Admission #6]. Cholfin communicated with Garrity over the telephone and thereafter only had need to meet with him in Court or in a restaurant for lunch or dinner, and never at Garrity's office in Gordon's suite. [A-253 and A-812, para. 14]. Cholfin's daughter, Johnson, knew that Garrity began working in Worcester out of Gordon's office, but she did not know in what capacity [A-253, para. 9; A-811, para. 7]. 

    REPRESENTATION BY JOHN GARRITY

    At the end of October 1988, Garrity was unexpectedly faced with having to oppose and attend a hearing on a motion to enforce an alleged settlement agreement [A-824]. Not yet having been sworn into the Bar, Garrity told Johnson that Gordon had agreed to cover for him at the motion hearing scheduled for October 31 [A-812, para. 12]. Garrity requested Johnson to write the affidavit noting that Gordon had agreed to accept the case [A-812, para. 12; A-459, para. 16].

    Note that while Johnson's affidavit states that Gordon agreed to accept the case, Gordon had a conflict in his schedule with the scheduled dates for the pretrial conference and the trial [A-459, para. 17]. Thus it is reasonable to conclude that Gordon had no intention of representing Cholfin, but to merely continue the proceedings on that case until Garrity was sworn into the Bar. 

    Ultimately what happened was the WDC allowed Garrity to appear prior to his being sworn in [A-812, para. 11]. Garrity thereafter performed all the services. Gordon himself never filed any pleadings [A-299-300; A-585, Admission #4], never argued a motion, never conducted negotiations for Cholfin, and never tried the Millis case. He only sought $8500.00 for his name being used--if indeed it was--in October 1988. And Gordon sought that money only after Garrity and he had a falling out and Garrity stopped working out of Gordon's office. 

    On or around the time of being sworn in, during December 1988, Garrity filed his appearance as Cholfin's successor counsel [A-253, para. 9]. Pierce's motion to withdraw, which had been on file since October, was allowed on 13 January 1989 [A-213-214]. Had Gordon made an appearance in WDC, Pierce's motion would have been allowed sooner than January 1989.

    GORDON'S APPEARANCE ???

    Gordon contends that during 1989 he filed an appearance in the underlying WDC action.FN6 [A-587, Admission 5]. That notice of appearance is not entered into the docket of the Millis case, the alleged filing was unbeknownst to Cholfin and Johnson, and the allegedly filed document has not surfaced. The only notice of appearance by Gordon was found unsigned in the casefile delivered to Garrity and dated 30 October 1989 [A-794]. 

    6 To date, Cholfin has never met Gordon [A-667 at page 6]. In fact, the only time Gordon claims to have met Sarah Cholfin was at the December 1988 Christmas party at his office. [788-789, at 7]. John had invited his mother (also an attorney), Johnson, and Attorney Nancy Becker to the party [A-252, para. 6;, A-262, para. 8; A-814]. However, as the affidavits of the aforementioned persons make clear, Cholfin was not present at this party. [Id]. 

    Cholfin has never entered into either an oral or written contract with Gordon for professional services, and in fact never knew he existed [A-221, para. 9]. Until 14 December 1993, when Gordon argued his motion in WDC, Cholfin never knew that Gordon filed an appearance allegedly on her behalf [ ]. Since then, Cholfin has seen Gordon only once, at her deposition in his attorney's office [A-221, para. 11]. . 
     

    The significance of Gordon's appearance being dated October 30th, 1989, is not only a year later than the date Gordon alleges he had entered the case, it was also the date when Garrity severed his professional relationship with Gordon and moved to another location [A-253 para. 9]. Given that Gordon had removed the file from Garrity's office prior to Garrity's move [id.], Gordon had opportunity to retrofit his actions, or non-actions. 

    GORDON'S RETENTION OF THE CASEFILE

    Around the end of March 1990, Johnson received a letter from Garrity both informing her that Gordon had taken the casefile from him and refused to return it, and asking for Johnson's help to get it back [A-271]. At that time, Cholfin, then in her 78th year, was taking care of her terminally-ill son on a daily basis, and Garrity chose to write and ask Johnson, instead of Cholfin, to contact Gordon [A-257, para. 18]. 

    Responding to Garrity's request, Johnson wrote Gordon on 2 May 1990 [A-273]. Because neither he nor Johnson received the file, Garrity wrote a letter on 14 May 1990 to Gordon to request the file again and "cc-d" it to Johnson [A-274]. Johnson again contacted Gordon -- by phone on 17 May 1990 [A-257, para. 22] -- to release the file [A-275]. Garrity's letter makes clear that the roles of supervisory lawyer had reversed. Having heard nothing from Gordon and because trial was scheduled for June, Johnson called the BBO on 18 May 1990 for assistance in retrieving the file [A-257, para. 22]. Sometime thereafter Gordon left a message on Garrity's answering machine: "You can come pick up the file, but you can tell Barbara that I will be suing her, her mother, and you for the 8500, the 6300 dollars on this matter. . ." IdFN7 Of significance is that Gordon produced no corroboration (e.g., phonebill or timeslip) that he placed even one phonecall to Cholfin (or Johnson) during the entire period from October 1989 through May 1990 when only he had the file and was eating up the time for discovery.

    7 The tape-recording of Gordon's voice was saved. It was sometime in October 1993 that Johnson learned generally of the contents of this taped message: Around 2 August 1994, after being served with Gordon's Motion for Assessment of Fees, Johnson received the tape from Garrity and had it transcribed on 4 August 1994. 
    THE TRIAL BEFORE THE MASTER

    During 1992 and 1993, the trial took place in a conference room in a Master's law office [A-253-254, para. 14; A-258, par. 23]. Both Cholfin and Johnson were witnesses at that trial [id.]. Both were seques-tered and therefore both were present only for their own testimony [id.]. Even after testifying, Cholfin was not allowed to be present at her own trial [id.].FN8 As a result, she has no personal knowledge as to what questions were posed and the answers to them, and what was argued to the Master, since she was not allowed entry into the room where the proceedings were occurring [id.]. In May 1993, the Master filed his Final Report. 

    8 Because a court reporter either failed to be ordered by any counsel or failed to show up on the last day of trial, there is no transcript for that day [A-254, par. 15; A-258, par. 24]. 


    POSTTRIAL MOTIONS AND FIRST REQUEST FOR RETRANSFER

    Shortly thereafter Garrity filed posttrial motions pursuant to Dist./Mun.Cts.R.Civ.P. 53 [A-216]. In July 1993, these motions were argued and denied [Id.] Cholfin and Johnson neither had knowledge of the court date nor were present in the court at the time of argument [A-258]. Ultimately, the District Court issued a notice of judgment in 1993 on behalf of Plaintiff in the amount of $1714.37.FN9 [A-254, pars. 16-19; A-277].

    9 The exact date is not known as the Order of Judgment received from the Court was unsigned and undated [A-578; A-277]. In 1994, after Attorney Johnson succeeded Garrity as the attorney of record, Johnson requested new certified copies of the docket sheet and Order of Judgment [A-277-278]. The "new" docket sheet had been altered to reflect the date judgment had entered and the order was signed and backdated. Compare A-583.
    Garrity subsequently filed a request to retransfer the case to Superior Court for a trial de novo [A-254, par. 17]. The request was denied on the grounds that it was filed late. No attempt by counsel for the prosecution (either Garrity or Gordon) or counsel for the defendants was made to appeal the case to the Appellate Division [A-791, at 55]. 

    GORDON'S QUEST FOR ATTORNEY'S FEES AND CHOLFIN'S FURTHER ATTEMPTS FOR RETRANSFER PURSUANT TO c. 231, sec. 102C

    On or around 21 October 1993, Gordon served on both Johnson and Garrity a Motion for Assessment of Attorney's Lien [for $8500.00] and Order of Payment and Affidavit, in which Gordon represented that he was counsel for Plaintiff Sarah Cholfin, Administratrix [A-281ff]. Upon receipt of the motion, Johnson contacted Garrity regarding it [A-255, par. 29]. At that time, Johnson learned that Garrity wanted to withdraw from the caseFN10 and also got the impression from Garrity that the posttrial motions were still under advisement and that his retransfer request would have to be refiled when judgment was entered into the docketFN11 [A-217]. 

    10 On 23 March 1994, Garrity's previously filed Motion to Withdraw was allowed [A-217].

    11Garrity was correct, in that the judgment was not entered into the docket by Spring 1994. See note 9 supra. Johnson filed a motion to Correct the Docket, which was denied [A-217]. Gordon was served Johnson's motion but gave no support for his alleged client.

    Faced with Cholfin's immediate need to oppose Gordon's motion for fees, and fearing for her mother's well-being at the time, Johnson, on 25 October 1993, served and filed her Notice of Appearance and pleadings in opposition to Gordon's motion for fees [A-285A]. It being nigh to impossible for Cholfin to find yet another attorney to represent her at that juncture in the case, Johnson became successor counsel for her mother [A-259, para. 30]. Thus, until the last week of October 1993, Johnson was but a nonparty witness and not the attorney of record on the WDC case [A-258, para. 23]. 

    At oral argument in December 1993, and in his pleadings to the Wrentham District Court judge, Gordon misrepresented that he represented Cholfin in the action, that Garrity had been his employee while Garrity was working at Gordon's office, and that Gordon was therefore entitled to attorney's fees [A-259, para. 32]. 

    Following argument, the District Court judge allowed the parties to file memorandum on the application of G.L. c. 93 S_s 102C [A-259, para. 33]. 

    On or around 23 March 1994, the WDC denied the retransfer to Superior Court and awarded Gordon judgment entitling him to $5000.00 fees for his alleged representation of Cholfin in the underlying action [A-76; A-217; A-283; A-582]. On 1 April 1994, WDC again denied Cholfin's subsequent request for retransfer [A-217;A-582]. During April 1994, Cholfin filed a Petition for Draft Report in accordance with Dist./Mun.Cts.R.Civ.P. Rule 64, which was also denied [A-217; A-582]. 

    Having received no assistance from Gordon -- who had just finished fighting to be named her attorney -- in the aforementioned posttrial matters, Cholfin sent Gordon a demand letter, in accordance with G.L. c. 93A, by certified mail on or around 14 May 1994 [A-43] and received on 9 June 1994 a reply from Gordon both denying liability and refusing settlement [A-300A]. At least 30 days thereafter, the Complaint for the case at bar was filed [A218-230]. 

    Gordon is still an attorney of record on the Millis case [A-213, which does not show when he appeared], and never filed a withdrawal from the action [A-213-217].

    GORDON'S ACTS AND/OR OMISSIONS

    Gordon has proffered only conflicting testimonial evidence on what legal services he performed. While on one hand he has claimed that he was entitled to be paid for "Employee Garrity's" services, on the other, Gordon has claimed that he, too, performed services but the only corroborative evidence is the list of alleged activities he attached to his supplemental memorandum for fees in WDC [A790, at pages 38-40]. Inspection of that document reveals, for example, that the first task Gordon alleges he himself performed on behalf of Cholfin was "Review of the file with John Garrity and discussion regarding the drafting of a complaint" [A-293] and that his second task was the "Review of drafted complaint and rewrite" [A-293]. But the Millis case was filed in Norfolk Superior Court in 1984, four years before Gordon even knew Garrity or even heard of the Cholfins.

    Thus there exists a discrepancy between Gordon's Answer to the Complaint in the case-in-chief [A-263-270] and his admissions in response to Cholfin's Requests 2, 3, 4 for admissions [A-300]. In his Answer, Gordon admitted that the Complaint had been filed in 1984 in Norfolk Superior Court [A-264] during the lifetime of the decedent, whom Gordon admits not knowing [A-300]. In his Response to Request 1 for Admission, Gordon asserted and knowing when the underlying case was filed [A-299]. Revealing also is that he gives the dates of these fictitious activities as "00/00/00" [A-293]. 

    Significantly, Gordon's iterations on pages 38-40 of his deposition [A-790] and in his "so-called bill" [A-790] do not controvert Cholfin's contention that Gordon never advised and/or counseled her [A-228, para. 47]. At most, Gordon may have familiarized himself to some unknown extent with the case, but never did anything proactively with any knowledge he may have gleaned or with any strategies he may have devised [A-293]. 

    In sum, Gordon failed to act at all! For example, Gordon failed to know, meet, and communicate with his alleged client, failed to learn what her interests were, failed to properly exercise the responsibilities of the supervisory lawyer he alleges to have been, failed to recommend that she seek other counsel to properly represent her interests when he himself was remiss in his duties, failed to zealously represent her, failed to act with reasonable diligence, failed to explain any matter to the extent reasonably necessary to permit her to make informed decisions, failed to file even one pleading on Cholfin's behalf, failed to conduct any discovery (e.g., depositions), failed to plead properly evidentiary matters during the trial of the underlying case, failed to expedite litigation, failed to protect her right to a trial by a judge, failed to comply properly with Rule 53 of the District/Municipal Court Rules of Civil Procedure, failed to file properly requests for reports of evidence and for rulings of law in accordance with Rule 64 of the District/Municipal Court Rules of Civil Procedure, failed to seek appellate review, generally, failed to petition for a draft report to the Appellate Division so as to effect a review by that Division, failed to file a timely request for retransfer of the remanded action to Superior Court in accordance with G.L. c. 231, s. 102C, and failed to resolve all questions in favor of his client.

    SUMMARY OF STATE OF EVIDENCE OF GORDON'S REPRESENTATION

    Subsequently, Gordon filed against Johnson the third-party complaint seeking contribution and indemnification [A-301-303]. On 16 June 1995, Judge McHugh allowed summary judgment against Gordon on those claims [ADD-61]. Only the damages had to be assessed. 

    In sum, there never was any written attorney-client fee agreement of any kind between Gordon and Cholfin or between Gordon and Johnson, as an individual or fidu-ciary of Cholfin [A-310]. Gordon can produce no concrete evidence of even one iota of work he performed for Cholfin during the period of his so-called representation [A-319, Interrog. No. 8]. In fact, the only thing supporting his allegation that he performed any work was the lien he filed in WDC [A-281]. He never even sent a bill to Cholfin [A-792, at 76] or to Johnson [A-792, at 76], whom he alleged was her agent. 

    Further, during his so-called representation of Cholfin, Gordon never filed any pleadings in Wrentham District Court [A-585, Admission No. 4], never argued a motion in Wrentham District Court, never conducted discovery, never conducted negotiations for Cholfin in the Millis case, and never tried the case in Wrentham District Court or before a Master.FN12

    12 During discovery, Cholfin requested that Gordon produce phonebills as proof of the alleged phonecalls he made to Johnson and Cholfin. Gordon, of course, could not produce them so he moved to compel Cholfin to produce the telephone numbers so that he could allegedly find them on his phonebills. The Court (McHugh, J.) denied his motion and wrote in the decision that Gordon should look Johnson's and Cholfin's telephone numbers up, respectively, in Lawyers' Diary and the phonebook [Add-58]. Gordon never produced any phonebills; nor has he yet provided a written response to the Court's April 16th Order. 


    CHOLFIN'S EMOTIONAL DISTRESS

    On Saturday, 23 April 1994, Sarah Cholfin was shopping with Johnson in Filenes in New Hampshire. At that time, Cholfin was upset -- as she had been for some time -- that Millis Used Auto Parts was "going to get away with not having to pay Dad [Isadore Cholfin]."FN13

    13 Cholfin contends that the Millis case was worth around $40,000.00. Gordon contends that he believed it was worth "less than $20,000.00" and that the defendants "were probably willing to pay around 12 and [he] could get him up to 15 or $18,000" [A-793 at 94-95]. 


    Cholfin also knew that Johnson and she would be taking another trip to Wrentham District Court that coming Tuesday in an attempt to set aside the award to Gordon of $5000.00 for fees and re-open the case.FN14 Then, without warning, Cholfin, while shopping, lost consciousness and had to be removed by ambulance to a hospital [A-795-808]. Several weeks later, while in Restaurant 99 with Johnson for dinner, Cholfin had another anxiety attack when asking Johnson about the case and began losing consciousness and vomiting, and had to be removed from the premises [id]. 

    14 A hearing on the Petition for Draft Report was scheduled for Tuesday, 26 April 1994 [A-823].

    ARGUMENTS

    1. Where Gordon claims to have represented Cholfin for a "portion" of the prosecution of the case but never withdrew his so-called appearance--with or 
    without leave of court--his liability is not limited to only that period during which he claims he represented Cholfin, making the denial of a declaratory judgment in Cholfin's favor reversible error.

    Gordon attempts to overcome his nonperformance and breach of fiduciary responsibilities by limiting his potential liability to only that period during which Garrity worked out of Gordon's law office. His argument must fail. 

    First, he makes that attempt to overcome the third of the three elements needed to prove a claim of negligence: (1) that the defendant failed to exercise reasonable care and skill in handling the matter for which he was retained; (2) that the plaintiff incurred a loss; and (3) that the defendant's negligence was the proximate cause of the loss. 

    Given that Gordon did nothing, proving the first element is easy -- contrary to Judge Gershengorn's opinion stating that Cholfin needed an expert to prove that fact. See discussion at Issue 2(a) below. Proving the second element is also doable, given that the recovery was a tiny fraction of even Gordon's low estimate of the value of the case [A-793 at pp. 94-95]. See note 13 supra. Proving the third is where Gordon needed to get off the hook: he had to disassociate himself from the case before and after the trial. He could only do that by claiming that he was not Cholfin's attorney at that time. See the following discussion. 

    The case below may be split into three periods: (1) September 1988--October 1989, when Garrity worked out of Gordon's office; (2) October 1989--May 1990, when only Gordon had the casefile and the trial date had been already set [A-274], and (3) May 1990--1994, during which time trial was held and multiple post-trial motions seeking retransfer to Superior Court as well as a petition for a draft report were filed and denied. 

    Clearly without either an oral or written contract for a fixed hourly rate or a contingency-fee agreement with Cholfin, Gordon, during the first time period, assumed a fiduciary duty to Cholfin by his relationship and agreement with Garrity -- whatever the relationship and agreement were. Cholfin contends that assumption of duty by Gordon was unilateral vis-á-vis her.

    During the second period, only Gordon was responsible for the underlying Millis case. Trial had been set and only Gordon was in possession of the casefile, albeit against Garrity's wishes (and certainly unbeknownst to Cholfin), for Garrity needed the casefile to prepare for trial. In fact, it was only after Johnson (at Garrity's behest and on Cholfin's behalf) (1) called Gordon and asked him to deliver the file to Garrity; (2) then wrote to Gordon asking him to deliver the file to Garrity; and (3) upon Gordon's refusal, called the Board of Bar Overseers, that Gordon left a message on Garrity's answering machine [A-276; A-253, para. 13] that John could pick up the file and that Gordon would be suing Cholfin (who did not know Gordon) and Johnson (who only knew of him through Garrity's mother). 

    At that point, Gordon never filed a motion to withdraw his appearance, as required by Mass.R.Civ.P. Rule 11(c), which reads in relevant part:

    An attorney may, without leave of court, withdraw from a case...provided that...(2) no motions are ...  pending before the court; and (3) no trial date has been set. Under all other circumstances, leave of court, on motion and notice, must be obtained. Gordon never obtained that leave.FN15 Cholfin, of course, contends that Gordon never filed an appearance and therefore never had to "withdraw," but Gordon has continued to assert -- to justify his request for fees -- that he did file a notice of appearance, thus necessitating the motion for leave. LoCicero v. Hartford Ins. Group, 25 Mass.App.Ct. 339, 344 (1988). 
    15 At that time, S.J.C. Rule 3:07, Canon 2, DR 2-10 (1981), was applicable: if permission to withdraw is required by the rules, the lawyer shall not withdraw from the employment without the court's permission. See now S.J.C. Rule 3:07, Mass.R.Prof.C. 1.16(d) and (e)(1-7) (1998). Gordon also did not comply with DR 2-10. Cf. Swasey v. Barron, 46 Mass.App.Ct. 127, 130 (1999).
    Thus, during the third period, Gordon's responsibility to fulfill his assumed fiduciary duty to Cholfin continued. Strauss v. Fost, 209 N.J.Super. 490 (1986) (attorney's failure to withdraw formally from representation of client results in attorney's responsibility continuing until expiration of time to appeal from final judgment or order entered in the cause). Davis v. Wakelee, 163 U.S. 683, 684 (U.S.N.Y. 1895), citing U.S. v. Curry, 6 How. 106, 111, and Tripp v. Railroad Co., 144 U.S. 126, for the proposition that no attorney or solicitor can withdraw his name, after he has once entered it, without the leave of the court. 

    Arguably, Gordon's failure to deliver the case-fileFN16 until just prior to trial contributed to Garrity's problems preparing for trial.FN17

    16 The casefile not only contained Garrity's work product but also Cholfin's original invoices.

    17 DR 2-110(A)(2) required that a lawyer avoid foreseeable prejudice to his client's rights and deliver all papers and property to which client was entitled. 


    Nevertheless, whether or not Gordon prejudiced the presentation of the case before the Master, both by impeding Garrity's access to the file and limiting his time for preparation is provable at time of trial, is irrelevant here, for "harm to an opponent is not an invariable prerequisite to judicial estoppel." Patriot Cinemas, Inc. v. General Cinema Corp., 834 F.2d 208, 214 (C.A.1 (Mass.) 1987). 

    Unlike equitable estoppel, which requires such prejudice, the function of judicial estoppel is to protect the integrity of the courts. [Cite omitted.] An effective legal system depends upon norms of candor and responsibility. Id. Thus an estoppel may be made out against Gordon because when Gordon had a duty to act, he failed to act, viz, he failed to perform any legal services whatsoever for a client whom he never met during any of the three periods but from whom he sought attorney's fees. Elfman v. Glaser, 313 Mass. 370, 377 (1943) ("An estoppel may be made out by nonaction when there is a duty to act"). 

    The purpose of the doctrine of judicial estoppel is to protect the courts "from the perversion of judicial machinery." Patriot Cinemas, 834 F.2d at 212. See also Brown v. Quinn, 406 Mass. 641, 646 (1990), and cases cited.

    Judicial estoppel should be employed when a liti-gant is "playing fast and loose with the courts," and when "intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for suitors seeking justice." Patriot Cinemas, 834 F.2d at 212 (cites omitted). This quote, of course, describes Gordon. Thus Gordon must be estopped from asserting that he was not the attorney throughout the entire Millis case, so as to "afford [Cholfin] relief from . . . uncertainty and insecurity with respect to [her] rights, . . . , status and other legal relations." City of Boston v. Keene Corp., 406 Mass. 301, 305 (1989) (describing the express purpose of a declaratory judgment).   
    a. Where there is an actual controversy and plaintiff has legal standing, Cholfin is entitled to a judgment declaring her rights arising out of the alleged legal relationship and declaring that Gordon was her attorney from 1988 through posttrial matters in Wrentham District Court, and not merely during 1988 and 1989.
    Judge Gershengorn reversibly erred when she wrote, "Gordon has not denied acting as Cholfin's attorney for the period from October 1988-Oct 1989. . . [He] did not act as Cholfin's attorney after that date" [ADD-65]. early he never acted as Cholfin's attorney, but taking his assertion that he did act as her attorney, he was in for the whole trip, until after the posttrial events were concluded . . . or until that unknown date when the final judgment was finally signed and the WDC docket sheet was retrofitted. 

    There was and is therefore an actual controversy here. Within the context of G.L. c. 231A, an actual controversy is

    . . . a real dispute caused by the assertion by one party of a legal relation, status or right in which he has a definite interest, and the denial of such assertion by another party also having a definite interest in the subject matter, where the circumstances attending the dispute plainly indicate that unless the matter is adjusted such antagonistic claims will almost immediately and inevitably lead to litigation. Bello v. South Shore Hospital, 384 Mass. 770, 778 (1981), cites omitted. 

    Cholfin was entitled to a clear and unequivocal declaration of her rights. Under Judge Gershengorn's decision, Cholfin had no rights and Gordon could be the Attorney in Casper the Ghost's clothing. And under Gershengorn's rules, Gordon could collect money for non-existent legal services, and need not suffer the burden of having any obligations to his alleged client. Her decision is unacceptable and must be reversed, even if for no other reason than in the interest of justice. 

    The declaratory-judgment statute, which provides an appropriate remedy to settle questions of property rights, is to be liberally construed and administered. Pazolt v. Director of Div. of Marine Fisheries, 417 Mass. 565, 569 (1994).

    In the instant case, a real dispute has been caused by (1) Gordon's assertion that he was Cholfin's attorney in the underlying case and that he was entitled to attorney's fees, and (2) by Cholfin's assertion that Gordon was not her attorney in the underlying case and that but for Gordon's leading the Wrentham District Court astray by misrepresenting that he was her attorney and that he had a contract with her, Gordon would not have been granted judgment for $5000 of the $11,635 he sought for attorney's fees in that case [A-583A]. 

    Judicial estoppel should be applied if a judicial body has been led astray. U.S. v. Levasseur, 846 F.2d 786, 794 (C.A.1 (Mass.) 1988). Winthrop Corp. v. Frank Lowenthal, 29 Mass.App.Ct. 180 (1990), where, ironically, the plaintiff was represented by Gordon himself.

    The remedy for such conduct is a declaration by this court that Gordon was Cholfin's attorney in the Millis case in Wrentham District Court and Gordon is estopped from arguing that Cholfin cannot prove that Gordon violated -- in any significant way -- a term of that actually non-existent contract. 

    Further, in Millis, Gordon was not a party and Cholfin was, but . . . she was a party who had not even met Gordon by the date of the hearing on his motion for attorney's fees, and who was not given any meaningful opportunity to prosecute her interests, e.g., to examine Gordon to prove there was no contract and that he was not her attorney.FN18 Thus, the doctrine of res judicata, which Defendant asserts as a defense [A-710, is inapplicable where the issues have, in fact, not been fully tried, or where the plaintiff has not had "'ample opportunity to state [her] cause of action completely and correctly so as to have the issues tried'." Elfman 313 Mass. at 374, cite omitted. 

    18 Thus Cholfin was denied due process, which, while being "a protean concept which imports different procedures in different situations" [Haverhill Manor, Inc. v. Comm'r of Public Welfare, 368 Mass. 15, 24 (1975)], is still indispensable to the foundation of our legal system . . . and cannot continue to be denied Cholfin.


    2. Where Gordon represented to two courts that he was attorney for Cholfin and whether or not she relied upon him, he assumed a professional duty to her, and by his failure to perform any duties for his alleged client, he was negligent.FN19 (Count 2)

    19 Where Gordon was not Cholfin's attorney and she did not rely upon him, his misrepresentation that he was her attorney and was entitled to attorney's fees constituted fraud upon two courts and, at the very least, attempted larceny of Cholfin, making not only the summary judgment in his favor reversible but also referral of his acts to the district attorney for prosecution appropriate.
    Cholfin must prove, as the judge declared: (1) that Gordon failed to exercise reasonable care and skill in handling the matter for which he was retained; (2) that Cholfin incurred a loss; and (3) that Gordon's negligence was the proximate cause of the loss. Colucci v. Rosen, Goldberg, Slavet, Levenson & Wekstein, P.C., 25 Mass.App.Ct. 107, 111 (1987).

    As discussed above, if allowed to go to a jury, Cholfin would be able to prove her case for negligence.

    Albeit using incorrect facts,FN20 the judge found that Gordon was Cholfin's attorney, but then awarded him summary-judgment on Count 1 for a declaratory judgment. Because Johnson wanted him declared her attorney, and the judge did not seem to realize that, Cholfin has concluded that the judge misapprehended Cholfin's action.

    20 The court wrongly identified the relevant period as being from "October 1988 to May 1990" and wrongly assumed that the case had been given to Gordon. 
    In actual fact, Cholfin was not Gordon's client. Gordon only claimed he was her attorney, put a statutory attorney's lien on her action, sought up to $11,500 in fees, and moved the trial court to convert the small judgment in Cholfin's favor to a judgment in his favor.

    Where Gordon not only violated his duty to exercise a reasonable degree of care and skill of the average qualified practitioner, but provided no services at all for Cholfin, he is liable to Cholfin for any reasonably foreseeable loss caused by his negligence. Colucci, 25 Mass.App.Ct. at 111.

    When awarding Gordon summary judgment on Cholfin's negligence claim, the court failed to acknowledge his failure to provide any services, failed to recognize that the discovery period would not have been over until October 1995, failed to acknowledge Cholfin's two expert affidavits which accompanied the summary-judgment materials, and failed even to acknowledge that Gordon's estimate of the value of the case -- albeit it considerably lower than the value Cholfin assigned to it -- was considerably lower than the result achieved in WDC.FN21

    21 See argument [A-729-850, A-861-872. Cholfin was deprived of her statutory and constitutional right to equal protection of all the laws and rules. 
    Ironically, given that Gordon (he claims) wanted to settle Cholfin's claim for an amount arguably below what a properly represented client would have accepted [see note 13, supra], he would be liable for that advice had he given it to Cholfin. Fishman v. Brooks, 396 Mass. 643, 646 (1986). Of course, he did not contact Cholfin about settlement, he did not even know her phone number. 

    Where Gordon has contended that he was Garrity's supervising attorney, it can be inferred that Gordon's breach of duty was the proximate cause of the damages or losses Cholfin sustained, the judge erred in awarding Gordon on Cholfin's claim for negligence [Meyer v. Wagner, 429 Mass. 410, 424 (1999)] which claim should have gone to a jury. J. Edmond & Co. v. Rosen, 412 Mass. 572, 576 (1992) (the question of malpractice is an issue of fact for the jury to decide).

     
    a. Where Gordon's performance not only fell below the standard of care required by the fallible attorney, but his performance was also non-existent, no expert was necessary.
    As argued below, "expert testimony is not essential where the claimed malpractice is so gross or obvious that laymen can rely on their common knowledge to recognize or infer negligence." Pongonis v. Saab, 396 Mass. 1005, 1005 (1985), citing Varnum v. Martin, 15 Pick. (32 Mass.) 440, 442 (1834), for the proposition that where evidence is sufficient to uphold a verdict against an attorney for negligence, expert testimony is not essential. Leahy, v. Local 1526. American Federation of State, County, and Mun. Employees, 399 Mass. 341, 355 (1987) (same); Colucci, 25 Mass.App.Ct. at 111 (same); Atlas Tack Corporation. v. Donabend, 47 Mass.App.Ct. 221, 226 (1999) (same).

    Motion Judge Gershengorn overlooked this well-settled law. Her reliance on Pongonis was, like that of the union in Leahy, misplaced. "In [Pongonis], "expert testimony was required to establish the standards of care for legal malpractice, not to assess the plain-tiff's damage." Leahy, 399 Mass. at 355.

    Here the care taken by Gordon registered "zero" on any scale: assuming arguendo he was Cholfin's lawyer, his negligence was gross and obvious. He did nothing. He had never met or communicated with her in any conceivable manner. He even filed a motion in Superior Court seeking Cholfin's phone number. Judge McHugh told him to look it up in the phone book [ADD-58].

    The court's basis for dismissing Cholfin's negli-gence claim was reversible error. The judge concluded,

    Because Cholfin cannot identify in what way Gordon's alleged failure to act from October 1988 to May 1990 constitutes negligence causing harm to Cholfin, proof of the limits of her claim are unlikely to be forthcoming at trial. Given that Gordon never met, wrote, or spoke to Cholfin, never filed a pleading, never appeared in court, and that Cholfin never heard of the man, how could she identify what he did. The truth is he was never her attorney. Gordon has simply held himself out to WDC and Superior Court that he was.

    She sued for malpractice because he unlawfully alleged he was her counsel and unlawfully sought and got an unlawful award of attorney's feesFN22 by a district court judge. Cholfin's rationale: If he was going to say he was her attorney, then his deficient or non-existent performance was the cause responsible for the bad result. Cholfin did not need an expert to testify to that gross and obvious negligence.

    22 WDC refused to remand the case to Norfolk Superior Court and denied Cholfin the ability to appeal it to the appellate division on the grounds that her remand request and notice of appeal were late. They were not. The first set of certified docket sheets shows there was no entry of judgment. The second was retrofitted later to cover up what the court did not do earlier. 
    The lower court committed still another fatal error in describing the basis for dismissing Cholfin's negligence claim: the judge overlooked Cholfin's two experts: (1) an accountant to address the value of the underlying case and (2) an attorney to testify as to what the ordinary fallible attorney would have done in the underlying case. Their affidavits supported Cholfin's opposition to Gordon's summary-judgment motion [A-815, A-725].FN23
    23See argument at A-829-850, which is incorporated herein by reference. 


    3. Where Gordon falsely claimed he was Cholfin's attorney, and was thereby obliged to safeguard her money judgment, his putting an attorney's lien on Cholfin's judgment for services not rendered was a breach of fiduciary duty.

    Cholfin contends that her claim for a breach of fiduciary duty is not duplicative of her negligence claim. See Clark v. Rowe, 428 Mass. 339, 345 (1998) (an aspect of claim was founded on a non-negligent breach of fiduciary duty). Proving a breach of fiduciary duty is easier to meet than that for negligence: i.e., "mere oversight or forgetfulness" is insufficient to constitute negligence, but it is sufficient to prove a breach of fiduciary duty: A breach of fiduciary duty is 

    any violation or omission of a legal or moral duty . . . the neglect or failure to fulfill in a just and proper manner the duties of an office or fiduciary employment, whether wilful and fraudulent or done through negligence or arising through mere oversight or forgetfulness.  Black's Law Dictionary

    The relationship of attorney and client is also "highly fiduciary" in nature. Hendrickson v. Sears, 365 Mass. 83, 90 (1974). citing Dunne v. Cunningham. 234 Mass. 332, 335 (1920). Opert v. Mellios, 415 Mass. 634 (1993) (same). 

    Putting aside the facts that he did not even know his own alleged client or that he had no contract with Cholfin, he had an obligation to tell her his fees and on what basis he allegedly took the case. "The attorney owes a client the obligations of full and fair disclosure of facts material to client's interests." Hendrickson, 365 Mass at 90. Certainly, his fees were a fact material to Cholfin's interests. 

    "An attorney [not only] owes a client the obligations of full and fair disclosure, [but also] competent, diligent, and zealous representation." Opert. at 638-639, cite omitted. 

    Gordon did not come near meeting his fiduciary obligations to Cholfin.

    4. Where Gordon performed not one iota work for Cholfin, he breached the contract or quasi-contract he alleged he had with Cholfin.
    Contrary to Judge Gershengorn's decision, Cholfin did show when or in what way Gordon breached the alleged contract: he did nothing. 

    Given (1) that the court wrote that the breach of contract claim had to fail because the professional malpractice and 93A claims had failed, (2) that the dismissal was based on a non-precedent-setting Superior Court case,FN24 which bore no similarity to the case at bar, and (3) that Cholfin was entitled to plead alternative theories, the judge's decision must be reversed.

    24Necco Realty Corp. v. Dunn Engineering Co., No. 88-116 (Bristol Super.Ct. April 29. 1993). Cholfin's argument re Necco is at A-841]; the case, at A-691.


    For Count 4, there were only two sustainable choices: either render, pursuant to Mass.R.Civ.P. 56(c), summary judgment against the moving party Gordon on the quasi-contract or let the jury determine from all the believable evidence in the case whether there was a contract and whether Gordon breached it. LeBlanc v. Great American Ins. Co., 6 F.3d 838, 841 (1st Cir. 1993); Flesner v. Technical Comm. Corp., 410 Mass. 805 (1991).
     

    5. Where Gordon misrepresented to two courts that he was Cholfin's attorney on the underlying case, but was not, in order to permanently deprive Cholfin of up to $11,500, his conduct constitutes fraud.

    Not only do Gordon's material misrepresentations constitute a fraud upon the court, but they rise to the level of criminal fraud. To countenance his misrepresentations as true would be unconscionable. Cholfin incorporates herein by reference her argument with authorities in her Opposition to Gordon's Motion for Summary Judgment [A-842-846]. Winthrop, 29 Mass.App.Ct. at 184; Pina v. McGill Dev. Corp., 388 Mass. 159, 165 (1983); Lockwood v. Bowles, 46 F.R.D. 625, 631 (DDC 1969); and MacDonald v. MacDonald, 407 Mass. 196, 202 (1990).

    While "not all fraud is fraud on the court," to withhold from the trier of fact knowledge of the existence of a material and significant fact is a fraud upon the court [Winthrop, at 185], "[d]eclarations and conduct calculated to mislead and which in fact do mislead one who is acting reasonably are enough to constitute fraud." Boston Five Cents Sav. Bank v. Brooks, 309 Mass. 52, 55 (1941). 

    In the Millis case, Gordon should have informed the court that Garrity was not his employee. It can be presumed he did not do that because in case that WDC was not satisfied with his misrepresentation, he could say that the attorney's lien covered the services of Garrity because Garrity was a lawyer in his firm who worked on the case. See Phelps Steel, Inc. v. Andrew Von Deak et al, 24 Mass.App.Ct. 592, 595 (1987) and Boswell v. Zephyr Lines, Inc., 414 Mass. 241, 249-251 (1993). 

    Therefore, had Gordon not led the Wrentham District Court judge astray, Gordon would not have been awarded attorney's fees. That was critical, a material and significant fact. As a lawyer, he knew that the Garrity-Cholfin oral contingency-fee agreement would not cover Gordon himself, and that he himself had neither an agreement with Cholfin nor her consent to work the case.

    Out of control, Gordon left a taped message on Garrity's answering machine [A-276]. In that message, Gordon changed his fabricated hourly fee from $6300 to $8500 in literally a second. It is some evidence of the fraud Gordon was committing not only upon the court but also upon Cholfin. 

    Given that Gordon has played "fast and loose" with the court and he should be judicially estopped from defending against Cholfin's fraud claim. Patriot supra at 212 (applying judicial estoppel).

    a. Gordon's misrepresentations to the District Court were not fully adjudicated there, for Gordon was not a party to the underlying case. The court wrongly dismissed Cholfin's Count 5 for fraud on the grounds of res judicata. Her error is reversible. There is no issue of res judicata. Cited as authority was Hartford Accident and Indemnity Co. v. Commissioner of Insurance, 407 Mass. 23, 29 (1990), but Hartford stands for the proposition that the plaintiffs there were not required, before seeking relief in Superior Court, to present their claims to the commissioner because challenge constitutionality was outside of the commissioner's express or implied authority. Hartford did not address a case such as the instant one, where the parties had not been previously parties to the same action, and the action was not barred by res judicata

    Judge Gershengorn also maintained that if Gordon made misrepresentations to Wrentham District Court or committed a fraud upon that court "in his action" to recover attorney fees, Cholfin should have raised the matter before that court. She overlooked the injustice that occurred in Wrentham: that neither remand nor appeal was allowed [A-76; A-278; A-11-12]. 

    Gordon was also not a party to the action in Wrentham District Court: he had no "action" for attorney's fees; he raised the fee issue by motion. Cholfin was not allowed to conduct any discovery of Gordon, to cross-examine him, or to rebut any adverse materials.

    "The [res judicata] doctrine is a ramification of the policy considerations that underlie the rule against splitting a cause of action, and is 'based on the idea that the party to be precluded has had the incentive and opportunity to litigate the matter fully in the first lawsuit.'" Heacock v. Heacock, 402 Mass. 21, 24 (1988), quoting from Foster v. Evans, 384 Mass. 687, 696 n. 10 (1981).  Tinkham v. Jenny Craig, Inc., 45 Mass.App.Ct. 567, 571 (1998). Clearly, Cholfin did not have the "opportunity to litigate the matter fully in the first lawsuit," which was against Millis Used Auto Parts and not Gordon. And because Gordon was not a party and Cholfin did not even know Gordon, the notion of "spitting a cause of action" is inapplicable in this case. 

    Thus the judge committed reversible error when writing, the "matter [was] already fully adjudicated at the District Court." It was not. See note 26, supra

    Given that Gordon, although an attorney, was not entitled to an attorney's lien in accordance with G.L. c. 221 sec. 50, the WDC's action was reversible error. That WDC would not allow Cholfin to appeal, despite her timeliness in filing notices and requests in accordance with the relevant rules, was also a travesty of justice. E.g., the statute grants rights to file an attorney's lien to an attorney who "appears" for a client: 

    We hold that the word "appears" in G.L. c. 221, s. 50, should be construed to encompass the signing of pleadings or motions as well as the filing of a notice of appearance. See Mass R.Civ.P. 11(b). Boswell, 414 Mass. at 249 (cites omitted). Given that Gordon did not sign any pleadings or motions or a notice of appearance, Gordon did not appear and was, therefore, not entitled to invoke the attorney's lien statute. 

    And given that Gordon had no contract with Cholfin and did not provide services, he could not recover his requested fees. "[A]n attorney must establish a substantive contractual or quantum meruit basis to recover fees from the client as a predicate to filing a lien." Id

    The motion court wrote that WDC "did not find that Gordon committed a fraud upon the court." That is true. Given, however, that the WDC refused Cholfin the opportunity to cross-examine Gordon, and refused either to remand the case to Superior Court or to allow an appeal to the Appellate Division, Cholfin was deprived of equal protection and due process. With this action, Cholfin hoped to catch that evasive justice. 

    Given those facts, the motion court then erred when it wrote in footnote 4, "This court will not relitigate issues already determined by another court." The motion court did have the authority. It either overlooked that it did or chose not to exercise it. For example, our Supreme Judicial Court has written: 

    Later cases in the Second Federal Circuit tend towards what we consider the sound rule, that another judge has all the powers that the judge who originally acted would have. . . . That rule is supported by the weight of authority generally, and in our opinion is the law of this Commonwealth....  Peterson v. Hopson, 306 Mass. 597, 604 (1940) (cites omitted). King v. Globe Newspaper Co., 400 Mass. 705 (1987) (until final judgment, there is no lack of power to undo the work of another judge). In WDC, the issue of attorney's fees was a collateral posttrial issue raised by a motion by nonparty Gordon and decided by the judge before final judgment entered in the case-in-chief.FN25 Any final judgment would have been vis-á-vis Millis and the other defendants, not vis-á-vis Gordon. This issue raises a question of first impression.
    25 Cholfin contends that judgment entered when the transmittal notice of 2 August 1994 was sent [A-579], and the docket sheet was retrofitted to make it appear as if it were entered a year earlier. The docket sheet on page 583 raises the spectre that the case should have been remanded or Cholfin be allowed to appeal taught Appellate Division. This was a jury issue.


    6. The negligent infliction of emotional distress claim presents questions of fact for the jury.

    Cholfin can prove at trial the five elements of this cause of action: (1) that Gordon's conduct was negligent,FN26 (2) which caused (3) Cholfin to suffer emotional distress, (4) which manifested itself in physical symptoms,FN27 and (5) any reasonable person would have suffered emotional distress under the same circumstances. Payton v. Abbott Labs, 386 Mass. 540 (1982); Wagenmann v. Adams, 829 F.2d 196, 221-223 (C.A.1 (Mass.) 1987), citing Fishman, 396 Mass. at 646 (client may recover for any reasonably foreseeable losses -- including pain, suffering, humiliation, and mental anguish - -caused by negligence of attorney who violates his duty to exercise degree of care and skill of average qualified practitioner). Wehringer v. Powers & Hall, P.C., 874 F.Supp. 425 (D.Mass. 1995) (predicting future Massachusetts law: client may recover emotional damages in legal malpractice action only in exceptional circumstances).FN28

    26 The jury could also reasonably believe that his conduct was intentional. 

    27Plaintiff need not show that physical harm was caused by impact or trauma; emotional stress is sufficient. Payton v. Abbott Labs, 386 Mass. 540 (1982). 

    28

    This court believes that the California rule -- permitting recovery for emotional distress damages arising from legal malpractice only in exceptional circumstances -- would be followed by the courts of the Commonwealth of Massachusetts because it is based on the same considerations of foreseeability and "proximate cause" that inform Massachusetts law in the area of legal malpractice.
    Wehringer, 874 F.Supp. at 428, citing Fishman, 396 Mass. at 646.


    Where Gordon contends the circumstances -- being charged for legal services by an attorney who never performed legal services on her behalf -- are not exceptional and where Cholfin contends they are, there is a genuine issue of material fact, making summary judgment inappropriate on this count for negligent infliction of emotional distress.

    That the judge was not caused to be apoplexic by an attorney charging for services he did not perform is also extraordinary. 
     

    7. Where the doctrine of absolute privilege is unavailable to Gordon as a defense to committing fraud upon a court, Cholfin is entitled to having her claim of intentional infliction of emotional distress be presented to a jury.

    Cholfin incorporates herein by reference the argument she set forth in her opposition to Gordon's motion for summary judgment [A-846-847]. The court below did not address it [ADD-62-71]. Neither did Gordon.
     

    8. Where Gordon's unfair and deceptive acts arose in his practice of law, Plaintiff is entitled to bring a claim pursuant to G.L. c. 93A.

    Judge Gershengorn cited no precedent-setting authority for her rationale [ADD-70]. The judge also did not ask herself on what basis was Gordon contending that he was entitled to fees. There was neither an oral nor a written fee agreement. Gordon had attempted to declare that Johnson acted as Cholfin's agent and had retained him, but Judge McHugh vast that notion aside when he awarded Johnson summary judgment against Gordon. 

    Further, given that the attorney-client relationship was an imaginary one from the outset, the court had only two legitimate chances either render, pursuant to Mass.R.Civ.P. 56(c), summary judgment against the moving party Gordon on the quasi-contract or let the jury determine from all the believable evidence in the case whether there was a contract and whether Gordon breached it. LeBlanc v. Great American Ins. Co., 6 F.3d at 841; Flesner, supra. See alsoA-62-71
     

    9. Where Gordon made material misrepresentations to District Court regarding his legal representation of Cholfin and thereby was awarded attorney's fees from her, her claims against him were not wholly insubstantial, frivolous, or brought in bad faith, thereby ruling that G.L. c. 231, sec. 6F, was applicable and awarding Gordon fees was unjustifiable and reversible error.

    That Cholfin was ordered to pay an attorney whom she did not know and who had performed no services for her was bizarre. Given that he fraudulently averred in two courts that he was Cholfin's attorney, the order commanding Cholfin to pay for his defense was bizarre. The order allowing fees prior to an evidentiary hearing was the denial of due process [A-1200-1208, 11/27/96 hearing and A-1209-1214, 12/23/96 hearing]. Cholfin's claims were neither insubstantial nor frivolous nor brought in bad faith. There is no caselaw necessary to give credence or support for this proposition. The only authority is common sense.
     

    10. Where Gordon's claims for contribution and indemnification against Johnson were wholly insubstantial, frivolous, or brought in bad faith, making the failure to award Johnson fees pursuant to G.L. c. 231, sec. 6F, was reversible error.

    Johnson's motion for partial summary judgment on the Third-Party Complaint was allowed [ADD-62-71]. Gordon's claims for contribution and indemnification were insubstantial, frivolous, and brought in bad faith.

    Given that Johnson's motion for attorney's fees and costs pursuant to G.L. c. 231, sec. 6F, was denied, Johnson incorporates herein by reference the arguments set forth in her pleadings regarding the c. 231, sec. 6F issue in both the Superior and Appeals courts [A-948-950; A-1004-1006; A-1104-1112; A-1128-1133; A-1142-1155; A-988. Appeals Court: A1177-1216; A-1238-1243]. "[O]ur rule does not excuse an attorney's `wilful ignorance' of facts and law which would have been known had the attorney simply not consciously disregarded them." Van Christo Advertising, Inc., 426 Mass. 410, 416-417 (1998). Neither does the law tolerate dilatory tactics. Hunnewell v. Hunnewell 15 Mass.App.Ct. 358 1985).
     

    11. Where Gordon's attorneys did not have good ground to support the Third-Party Complaint, in that they did not diligently investigate the facts alleged in that complaint, Rule 11 sanctions against Gordon's attorneys were appropriate.

    Johnson's motion for Rule 11 sanctions for filing the Third-Party Complaint was denied [ADD-90 (the order)]. Given that Gordon's Third-Party Complaint was based neither on "reasonable inquiry" nor on an absence of bad faith, her Rule 11 motion should behave been allowed. Doe v. Nutter, McClennen & Fish, 41 Mass.App.Ct. 137, 142 (1996).

    Given that the denial of Johnson's motion for Rule 11 sanctions was denied without written reasons [ADD-90], Johnson incorporates herein by reference the arguments set forth in her motion for sanctions, attorney's fees, and costs pursuant to Mass.R.Civ.P. 11 [A-1113ff; A-1117ff]. New England Allbank for Sav. v. Rouleau, 28 Mass.App.Ct. 135, 140-141, 141 n. 5 (1989). Given that Gordon's attorneys violated the Rule 11 "good ground" requirement, it was error to deny Johnson's motion and deny her an evidentiary hearing to assess her damages. Id. "[O]ur rule does not excuse an attorney's `wilful ignorance' of facts and law which would have been known had the attorney simply not consciously disregarded them." Van Christo, 426 Mass. at 416-417.

     

    RELIEF REQUESTED

    WHEREFORE, for the reasons above, the Law Office of Barbara C. Johnson makes the following requests for relief from this Court:

    1. Reverse the allowance of Gordon's motion for summary judgment and remand said matter to the Trial Court for trial on Plaintiff Cholfin's claims,

    2. Reverse the denial of Johnson's motion for attorney's fees and costs pursuant to G.L. s. 231, sec. 6F, and remand said matter for a hearing to assess the damages of Johnson on the third-party claim, and that interest be added to amount of damages from the date of denial of that motion,

    3. Reverse the denial of Cholfin's and Johnson's Rule 11 motion,

    4. award Plaintiff double costs and attorney's fees for this appeal, and 

    5. issue any other order which this Court deems to be just, fair, and appropriate.


                Respectfully submitted,
                PLAINTIFF SARAH CHOLFIN,
                THIRD-PARTY BARBARA C. JOHNSON, 
                By their attorney, 
     Barbara C. Johnson
              Barbara C. Johnson, Esq.
                 6 Appletree Lane
                 Andover, MA 01810-4102
                 978-474-0833
    11 August 2001

    CERTIFICATE OF SERVICE

    I, Barbara C. Johnson, hereby certify that on 13 August 2001 I served two true and accurate copies of the original appellate brief and record appendix by courier on opposing counsel of record.
                                                                         _______________________________
    15 August 2001                                         Barbara C. Johnson 


     
    COMMONWEALTH OF MASSACHUSETTS

    APPEALS COURT 

    ______________________________________________

    MIDDLESEX, SS.
    CASE NO. 2001-P-0582 
    ______________________________________________
     
     

    SARAH CHOLFIN, Indiv. & Admin.
    Plaintiff/Appellant

    v.

    STEPHEN J. GORDON 
    Defendant/Appellee
    Third-Party Plaintiff/Appellee

    v.

    BARBARA C. JOHNSON 
    Third-Party Defendant/Appellant 

    __________________________________________________

    Reply Brief
    __________________________________________________









    The Plaintiffs/Appellants Sarah Cholfin ["Cholfin"] and Barbara C. Johnson ["Johnson"] hereby submit this Reply to the Brief of Defendant/Appellee Stephen Gordon ["Gordon"] pursuant to Rule 16(c) of the Massachusetts Rules of Appellate Procedure.

    I. Count 1: Summary judgment was inappropriate on Cholfin's claim for a declaratory judgment. (Error in Gordon's brief at 15-16.)

    Gordon is disingenuous by not addressing the following factual issues: (1) that he failed to file an appearance in the case, (2) that the first pleading he filed was a motion for attorney's fees, (3) that he failed to seek leave from the court to withdraw, (4) that he failed to obtain leave from the court to withdraw his alleged appearance, and (5) assuming arguendo that he was Cholfin's lawyer, that he failed to address why he, Gordon, did nothing on the case during the time he withheld the casefile from Garrity, or for that matter, at any other time during the Cholfin's prosecution of the case.FN1

    1 In fact, Gordon withheld the file from Garrity because the two had their private dispute over money [see Garrity's affidavits [A252-254, A809-810, and A811-813; see also Garrity's letters to Gordon and Johnson [A271, A274] and Gordon's taped telephone message [A276].


    Neither did Gordon summon any legal authorities to support his position that he was responsible for only one of the three time periods. [Cholfin's brief at 20.] 
     

    II. Count 2: Assuming arguendo that Gordon was Cholfin's attorney, but performed no legal services for her, summary judgment on Cholfin's negligence claim was inappropriate. (Error in Gordon's brief at 16-19.)

    Given that Gordon did nothing which the ordinary fallible attorney should or would have done, his failure to perform each and every one of the acts that an ordinary fallible attorney should have done was negligent.

    It is euphemistically quite insulting to read in SG's brief that Johnson offered "no testimony concerning Gordon's conduct while Gordon was Cholfin's attorney." Gordon never represented Cholfin. Johnson did not have a crystal ball and never anticipated that Gordon would allege he was Cholfin's attorney. She would not have had reason to speak of Gordon, whom she had never met. And she could not foresee that Gordon was going to make perjurious misrepresentations to two lower courts, and do so again in his appellate brief.

    As iterated in Cholfin's appellate brief, there was no need for an expert attorney to explain to a jury of her peers any facts beyond their ken:. Clearly it is within the ken of a jury to determine whether a lawyer who never meets or communicates with a person he alleges to be his client, never files any pleadings on her behalf, never appears in court on her behalf, et cetera, was negligent in handling a case, if, indeed, the jury was to determine that Gordon was Cholfin's attorney.

    Gordon's mere failure to perform even one act on behalf of Cholfin -- for instance, the failure to file any pleading, the failure to conduct any discovery, the failure to supervise Garrity -- is so gross and obvious that no expert is necessary to explain those deficiencies to the jury. Fall River Sav. Bank v. Callahan, 18 Mass.App. Ct. 76, 82. In any event, Cholfin did have such an expert in the wings [note 9 of opposition to summary judgment, A837 and A839]. See also argument at A-829-850, which is incorporated herein by reference. 

    None of the cases cited by Gordon on page 18 deal with a non-existent attorney or with an attorney who is but a poseur.
     

    III. Count 3: Summary judgment was inappropriate in that a claim for breach of fiduciary duty is not duplicative of one for negligence. (Error in Gordon's brief at 19-21.)

    The difference between a negligence and a fiduciary claim is described at Clark v. Rowe, 428 Mass. 339, 345-346 (1998). The two claims can co-exist. A breach of fiduciary duty, such as the misappropriation of funds, can be intentional. Id. at 345. In this case, Gordon's breach of fiduciary duty was intentional. Therefore, the lower court judge and Gordon [SG's brief at 21 are wrong in stating one claim is duplicative of the other. In Horvath v. Adelson, Golden & Loria, 2000 WL 33159239 *5 (Super.Ct. June 16, 2000) (No. 9-00266-F), too, the court gave an example of where both negligence and breach of fiduciary claims can co-exist. Id. at *5.

    Cholfin does not quarrel with the cases cited by Gordon, but all assume that the attorney performed legal services which can be examined, if not scrutinized. Gordon performed no services whatsoever for Cholfin and therefore there is nothing to scrutinize. What we have here is simple: a man lied and Cholfin is asking that he be made to live with his lie and the consequences of that lie. His lie was and still is that he performed legal services for Cholfin. He did not. If Gordon had been her attorney, as he contends, and performed as an ordinary fallible attorney, then she would have reposed faith, confidence and trust in his judgment and advice and he would not have breached his fiduciary duty. 

    For instance, one of the acts Gordon alleged he did was negotiate with opposing counsel. One must ask, How could he negotiate on Cholfin's behalf when he had not met her, never spoke to her, never wrote to her, and she did not know he existed? [SG's brief at 9-10, citing A-669A, 670-670A]. Had Gordon been Cholfin's counsel, he would have owed Cholfin "a duty of `utmost good faith and loyalty'" [Cacciola v. Nellhaus, 49 Mass.App.Ct. 746, 752 (2000)] as well as a "duty of care arising from an attorney-client relationship." Id. at 750, citing Spinner v. Nutt, 417 Mass. 549, 552 (1994). 

    Assuming arguendothat Gordon was Cholfin's counsel, where he failed also to advise her to seek independent legal advice, he breached his fiduciary duty to her. Cleary v. Cleary, 427 Mass. 286, 291 (108). Matter of Stern, 425 Mass. 708, 710-711 (1997) ("failure to insure that the client received independent advice and counsel and his failure to fully inform the client of the true state of his affairs, thereby leaving the client in ignorance and misunderstanding of her affairs while the [r]espondent continued to manage those affairs for his own benefit were fraudulent, deceitful, dishonest and constituted misrepresentation"). 

    Assuming arguendo that Gordon was Cholfin's counsel and that he benefitted from the only transaction of which she knew -- his attempt to get attorney's fees from her recovery in the underlying action -- he had a fiduciary duty to show that the transaction "was in all respects fairly and equitably conducted." Cleary, at 291]:

    that he fully and faithfully discharged all his duties to his client, not only by refraining from any misrepresentation or concealment of any material fact, but by active diligence to see that his client was fully informed of the nature and effect of the transaction proposed and of his own rights and interests in the subject matter involved, and by seeing to it that his client either has independent advice in the matter or else receives from the attorney such advice as the latter would have been expected to give had the transaction been one between his client and a stranger" (emphasis added). Webster v. Kelly, 274 Mass. 564, 571 (1931). Hill v. Hall, 191 Mass. 253, 262 (1906). In that context, the burden of proof is on the attorney to establish the validity of the transaction. 
    Cleary, at 291. Gordon did not meet that burden. 
     

    IV. Count 4: Summary judgment was inappropriate where the breach of contract claim is not duplicative of the negligence claim. (Error in Gordon's brief at 21-23.)

    Gordon erred when he wrote that the "gist" of Cholfin's contract claim is a "tort" claim. Cholfin's negligence claim arises out of Gordon's failure to perform any legal services for Cholfin. Her negligence claim arises out of his inconsistency: i.e., on one hand, Gordon stated that Cholfin has "identified no written contract or contract terms that were allegedly breached" [SG's brief at 22]; on the other, he brought a third-party action against Johnson for indemnification and contribution, which implies that he had an agreement not only between Johnson and himself but also, by alleging that Johnson was Cholfin's representative and fidu-ciary [A302], between Cholfin and himself [A442-444].
     

    V. Count 5: (a)Where Gordon's remarks re fees were not relevant to the underlying action, he has no privilege, qualified or absolute, to defend against Cholfin's claim for fraud and (b) where Gordon was not a party in the underlying case, there was no res judicata, making summary judgment inappropriate. (Error in Gordon's brief at 23-25.)

    Cholfin's fraud claim is not for defamation. Nor is it for what Gordon told the district court and superior court judges. Nor is Cholfin suing Gordon for fraud upon the court: that is for a judge to determine. Cholfin is suing Gordon for the harm and damage caused her by his committing a fraud upon her, i.e., his fraudulent intent to get fees from Cholfin whom he did not even know or with whom he never communicated. That is for a jury to determine and summary judgment was inappropriate. Cholfin contends also that his seeking attorney's fees from her when he was never Cholfin's attorney was a criminal act.

    "[I]f a lawyer who brings a suit procures an unjust judgment against his adversary [which Cholfin was] ... by [ ] corrupt and illegal practices ... he should be responsible for his illegal acts to the party injured." Hoosac Tunnel Dock and Elevator Co. v. O'Brien, 137 Mass. 424 (1884).

    Also supporting Cholfin's position is Sullivan v. Birmingham, 11 Mass.App.Ct. 359 (1981), holding that absolute privilege is available only when the challenged remarks are relevant or pertinent to judicial proceedings. It is lost if the words are unnecessary. Given that Gordon's misrepresentations, or lies, cannot be deemed necessary to Cholfin's underlying action, Gordon's falsities are not protected by the privilege. Id. at 362. The privilege is based upon lofty goals of public policy: the goal, "to secure justice." Id. at 361, quoting Restatement (Second) of Torts sec. 586, comment a. Justice was not secured by Gordon's lies.

    Further, where Gordon failed to plead absolute privilege as an affirmative defense, he waived the defense and it is excluded. 5 Wright & Miller, Federal Practice & Procedures 1278 at 477 (2d ed. 1990).

    As to Gordon's res judicata argument: Gordon was neither a party nor an agent of the parties in Wrentham District Court. There, Cholfin was deprived of due process and equal protection of the laws: she was not allowed an opportunity to examine or cross-examine Gordon or to rebut any materials adverse to her. Such adverse materials were only those of his own fabrication, such as his list of tasks he allegedly performed. Top on his list was the task of helping Garrity draft the Complaint in Cholfin v. Millis Used Auto Parts [A293], the underlying case, although the Complaint in that case had been filed four years earlier and never needed amending and never was amended.

    That Gordon could dupe the Wrentham district and superior courts so readily is beyond this counsel's comprehension. As is the failure of both of the lower courts to find Gordon to have committed a fraud upon the court. There must be some other explanation, but it has never come to light. 

    Was Gordon committing a fraud on Cholfin? Of course. Seeking legal fees when one has not represented that person is fraud, pure and simple.FN2 No legal authority is required for that proposition. Cholfin suggests that the matter be referred to the district attorney's office for investigation.

    2 As iterated in her appellate brief, Gordon never sent a bill to Cholfin [A-792, at 76] or to Johnson [A-792, at 76], whom he alleged was her agent. 
    Cholfin stands on her appellate brief and the cites gathered therein, as well as on her arguments in her opposition to summary judgment [A842-846] and incorporates them as if set forth herein by reference.
     

    VI. Count 6: Summary judgment was inappropriate on Cholfin's claim for negligent infliction of emotional distress. (Error in Gordon's brief at 26-27.)

    Cholfin reminds this court that on page 18 of her appellate brief, she described in some detail the emotional and physical symptomatologies and included the medical records at A795-808. The facts in this case satisfy the requirements in both Wagenmann v. Adams, 829 F.2d 196, 221-223 (C.A.1 (Mass.) 1987), and Wehringer v. Powers & Hall, P.C., 874 F.Supp. 425 (D.Mass. 1995), cases referenced and relied upon by both Cholfin and Gordon. See also argument at A846-847.
     

    VII. Count 7: Where(a) absolute privilege does not apply, (b) there was no res judicata, and (c)the claim is not precluded in an attorney malpractice action, summary judgment was inappropriate on Cholfin's claim for intentional infliction of emotional distress. (Error in Gordon's brief at 27-28.)

    Where Gordon is not protected by an absolute privilege, Correllas v. Viveiros, 410 Mass. 314 (1991) does not apply. See Cholfin's discussion of "absolute privilege" and of res judicata amongst the issues for Count 5, supra; see also discussions of res judicata at A25-26, A35-38, A842-848, which are incorporated as if set forth herein by reference. 
     

    VIII. Count 8. Where Gordon's unfair and deceptive acts were performed in a business context, summary judgment on Cholfin's c. 93A was inappropriate. (Error in Gordon's brief at 28-30.)

    "Whether a party is `acting in a business context' depends on particular circumstances such as `the character of the parties involved, and [their] activities ... and whether the transaction [was] motivated by business or personal reasons.'" Boston Housing Authority v. Howard, 427 Mass. 537, 538 (1998), quoting Begelfer v. Najarian, 381 Mass. 177, 190-191 (1980). 

    Gordon is in business as an attorney. "[T]he practice of law constitutes `trade or commerce' for purposes of liability under c. 93A." Brown v. Gerstein, 17 Mass.App.Ct. 558, 570 (1984). His business requires him regularly to make representations to court, and the assumption is that his representations are not misrepresentations. His efforts to collect bogus fees were motivated with the mens rea required for most criminal acts. Where two courts and the Office of the Bar Counsel saw fit to accept Gordon's larcenous conduct, and Article XI of the Massachusetts Declaration of Rights provides that Cholfin ought to be provided with a remedy, c. 93A appears to be the only remedy Cholfin has to let Gordon know that his conduct is unacceptable and will not be countenanced by the higher courts.

    Attorneys also have a special advantage that is given only to a few chosen business people (such as mechanics), to wit, the advantage of being able to place a lien (in this case, pursuant to G.L. c. 221, sec. 50) on a client's property. But that advantage presumes that an attorney will not use it to fraudulently collect fees. In this case, Gordon never even sent Cholfin a bill prior to moving to put on a lien. It appears that his failure to do so -- aside from appreciating that Cholfin would have immediately questioned the bill from someone she did not know -- was to evade chapter 93A and to enable himself to use the court as a pawn.

    Further, to use the attorneys' lien statute as a vehicle for committing larceny or fraud cannot have been contemplated by the legislature. Using the attorney lien statute to commit larceny or fraud appears to be an issue of first impression.

    Lastly, Gordon cannot raise privilege vis-á-vis Cholfin's 93A claims for the first time on appeal [A713-714; [A848-849]. Draghetti v. Chmielewski, 416 Mass. 808, 814-815 (1994) (status not before the court); Powers v. Com., 426 Mass. 534, 540 n. 12 (1998) (privilege not before the court); Com. v. Ciminera, 11 Mass.App.Ct. 101, 104 (1981) (same). Cf. Petition of Gagnon, 416 Mass. 775, 780 (1994) (discretionary "to consider important questions of public concern raised for the first time on appeal").
     

    IX. Count 9: The granting of Gordon's c. 231, sec. 6F claim was reversible error. (Error in Gordon's brief at 30-32.)

    Cholfin rests on her pleadings in the appendix as well as her argument in her appellate brief. There is nothing new in SG's brief regarding Cholfin's claims. 

    The order attached in Gordon's supplemental appendix is irrelevant to this appeal. It applies to Cholfin's counsel, Johnson. Gordon and his counsel added it only with the intent of prejudicing this court. Gordon's behavior at Cholfin's deposition and at his deposition was reprehensible. Therefore, it is important to read Johnson's opposition to Gordon's motion before Judge McHugh [A556-596]. 

    If Johnson was "intemperate" -- which she claims she was not -- it was because Gordon provoked her with his insulting and offensive behavior [Supp.App.11, 15, 16, 17, 19], which Judge McHugh acknowledged "sometimes can be just as oppressive and just as disruptive as words" [Supp.App.20]. To this day, Johnson denies having called Gordon a "son-of-a-bitch." After Gordon kept on yelling and Johnson told him he could say the same thing without yelling, she exclaimed "sonuvabitch": an exclamation denoting surprise not a derisive epithet. It was as harmless as was the course subject of the MCLEFN3 seminar, How to Deal with S.O.B. Lawyers and Witnesses [Cholfin's Supp.App.-1]. 

    3 Johnson believes MCLE is sponsored by the BBO/OBC.
    Gordon's counsel did nothing to restrain Gordon, and passively encouraged Gordon by not resisting the intertwining of the upper parts of their bodies opposite Cholfin and Johnson during Cholfin's deposition, and then opposite Johnson at Gordon's deposition.
     

    X. The award of fees to Gordon should have been vacated, not only reduced. (Error in Gordon's brief at 32-36.)

    Cholfin is in total disagreement with the award of any fees. The award should have vacated. Notwithstanding that sincere contention, Johnson states that Judge Gershengorn reduced the fees sought by Gordon's counsel because "the amount was excessive and unreasonable given the nature of the case" [A91] and Cholfin v. Gordon, 1998 WL 1182066. Although Judge Gershengorn and Cholfin's counsel were on opposite sides of the fence on this issue, even the judge, who was vaguely familiar with the case and transparently disdainful of Cholfin's counsel whenever the two met in courtroom 11A, did not find any of Cholfin's motions unnecessary.

    Not only was a considerable amount of the requested fees composed of multi-level billing by almost a half-dozen Burns & Levinson staffers for communicating amongst themselves and the insurance company whom they represented: Hatem, Hutchison, an associate, another more low-level associate, a paralegal, a secretary, and the insurance company.FN4 Some of the tasks were blatantly overinflated. SeeId. at note 2, where Judge Gershengorn wrote, "A case in point is the amount of $238.00 billed for an associate's preparation and service of a third-party summons on September 12, 1994, and the amount of $114 billed for simply mailing a motion on March 12, 1995." The remainder of the bills was equally as starch-filled. Johnson did not have a full opportunity to cross-examine [A1209ff., A1065ff., A1200ff.]. 

    4 It is conceivable that the "dirty tricks" pulled at the deposition might have been the team's strategy, for there appears on the record nothing productive from all their meetings and communications.


    Gordon's counsel also did not produce his contemporaneous timeslips, which were subpoenaed to court [A1075]. Nor did the judge compel him to produce them A1209, 1097A [Opposition to Gordon's Motion to Quash]. 

    As to the character assassination in Gordon's appellate brief, the pleadings in the appendix speak for themselves. On Supp.App.11, Johnson is seen to say that she had been waiting a long time for the document production and four months just to get an answer from Gordon's counsel to a letter she had written him.
     

    XI. The denial of Johnson's Request for Rule 11 Sanctions was reversible error. (Error in Gordon's brief at 37-45.)

    Although Gordon has oft repeated his contention that Johnson was a fiduciary and representative of Cholfin [Error in Gordon's brief at 38], he has never produced proof of same. The accusation has been but a convenient excuse to shift the blame for Gordon filing claims without any factual or legal basis against Johnson for contribution and indemnity. Johnson incorporates by reference as if set forth herein her summary-judgment package against Gordon and filed in the Superior Court and decided by Justice McHugh in favor of Johnson [Addendum 61 (McHugh, J., Order), A208-328, A426-445, A472-478, A651-655].

    Proving the negative of such a fact had been possible only by the proffered testimonial evidence by Cholfin and Johnson. See Highlands Ins. Co. v. Azerovox, Inc., 424 Mass. 226, 231 (1997)(proving the negative is a difficult burden).FN5 Bednarz v. Bednarz, 27 Mass.App.Ct. 668, 673 (1989)(same). 

    5 The rationale of the court in Highlands was that it is easier to prove that something happened than that something did not happen. This is axiomatic.
    At the time which Gordon suggests Johnson was a fiduciary and representative for Cholfin, Johnson was not an attorney. She was merely a witness like any other to certain events in the underlying invoice-collection case against Millis Used Auto Parts, brought in 1984 by the plaintiff's deceased husband during, of course, his lifetime. 

    Given that Gordon's many counselFN6 could have known that the deceased Cholfin's complaint was filed in 1984, they abetted their insured client, Gordon, in committing fraud upon Cholfin where they also knew -- from Gordon's list of the alleged tasks he performed -- that Gordon was lying. For instance, Gordon's claimed that he helped Attorney Garrity with drafting the Complaint [A293], but the Complaint had been filed by the decedent's first attorney four years earlier [A213]. 

    6 Only two are of record: Hutchison and Hatem (the latter has never been seen by either Johnson or Cholfin). The three or four others have been behind the scenes and only "visible" in the bills presented to Judge Gershengorn by Hutchison.
    A second "for instance" is Gordon's claim that he negotiated with opposing counsel on Cholfin's behalf. How could he have negotiated in good faith if he had never communicated with the plaintiff, the plaintiff administratrix in the Wrentham District Court case, and she never knew him?

    And a third, he also claimed to have an agreement with Johnson for contribution and indemnification, but could not produce any proof of communicating with Johnson regarding this alleged attempt to negotiate!

    And a fourth, in [SG's brief at 41, Gordon totally distorts Johnson's affidavit at 457-459. Without personal knowledge, Gordon's quantum leap from Johnson delivering a message from Cholfin, to Johnson being an agent of Cholfin is wild surmise.FN7

    7 Further, Johnson was not in the loop between Cholfin and Pierce. Cholfin and Pierce communicated directly with one another, which Johnson's affidavit makes clear. 

    Gordon's counsel has also taken out of context the alleged facts on 42 of his brief. Please see the FACTS section in Cholfin's appellate brief.

    Moreover, Gordon was never present with Johnson in District Court until almost six years later, when he was seeking attorneys fees, and Gordon was not present when Cholfin met with John Pierce.

    Particularly gauling is defense counsel's persistent insistence on pushing lies instead of truth. For instance, on 39 of SG's brief, Hutchison again wrote "Garrity and Johnson conducted the trial and any failure by Garrity and Johnson to file subsequent posttrial motions and appeals." 

    Johnson was but a sequestered witness to events prior to her becoming an attorney and conducted nothing at the trial.FN8 She never heard any of the trial except that part when she herself testified. And when Johnson did make an appearance -- after Gordon made fraudulent claim to attorney's fees -- she did, indeed, follow procedure to get the case remanded to superior court, and when that failed, did followed procedure to get it to the appellate division. Alas, unsuccessful attempts . . . to be followed by a court surreptitiously changing its docket sheet.FN9

    8 As a witness, she did, indeed, communicate with Cholfin's then-attorney, John Garrity. She had to explain to Garrity the essence of the decedent's business, explain the different types of invoices, describe communications she had with the defendants in the Cholfin/Millis case, review the documents, discuss the defendants' witnesses, and so on, all the things necessary to prosecute the case, . . . all the things Gordon never did!

    9See (1) FACTS section of Cholfin's appellate brief, (2) the docket sheet [A581], and its altered twin [A583], and (3) the two orders, one unsigned [A578] and one signed [A580], resulting in Cholfin being deprived of her constitutional rights to due process and equal protection. See also A752-753.

    Clearly, defense counsel were interested only in the money they would receive from their client the insurance company upon receipt of Burns & Levinson's consciously inflated bills. The defense team's invocation of Maddocks v. Ricker, 403 Mass. 592 (1988), and other cases, conjures up only a smokescreen. Judge McHugh denied the team's motion to disqualify Johnson and granted Johnson summary judgment against Gordon. Gordon did not appeal those decisions, precluding him from making those arguments now. See note 8, supra.

    "[O]ur rule [11] does not excuse an attorney's `wilful ignorance' of facts and law which would have been known had the attorney simply not consciously disregarded them." Van Christo Advertising, Inc. v. M/A-COM/LCS, 426 Mass. 410, 416-417 (1998). 

    No matter which standard this court uses to find defense counsel liable for Rule 11 violations, the Burns & Levinson (now Donovan Hatem) team cannot avoid liability. That team simply cannot claim "ignorance," wilful or otherwise, nor "subjective good faith supported by fact and law, as Hutchison suggests at 37 of SG's brief. 

    The team simply has no defense for doing what they did, and the denial of Johnson's request for Rule 11 sanctions must be vacated or reversed. Johnson incorporates by reference as if set forth herein her Rule 11 package filed in the Superior Court [Add-90 (Gershen-gorn, J., Order), A1113-1116, A1155-1156, A1157-1166]. 
     

    XII. The denial of Johnson's c. 231, sec. 6F claim was reversible error. (Error in Gordon's brief at 45-48.)

    Given that Gordon had no proof of anything to justify a Complaint against Johnson for contribution and indemnification, his Third-Party Complaint was wholly insubstantial and frivolous and brought in bad faith.

    Johnson does not quarrel with the law interpreting G.L. c. 231, sec. 6F. Johnson argues only the facts. She has argued them, supra, and in her pleadings filed in the Superior Court. She now incorporates by reference the facts and law iterated in her pleadings filed in the Superior Court as if they were set forth herein [A1104-1112, A1127a, A1128-1154]. 

    PRAYERS

    WHEREFORE the reasons above, Cholfin and Johnson make the following requests for relief from this Court:

    1. Reverse the allowance of Gordon's motion for summary judgment on all claims and remand said matter to the Trial Court for trial on Cholfin's claims,

    2. Vacate the award of costs and/or fees to Gordon from Cholfin,

    3. Reverse the denial of Johnson's motion for attorney's fees and costs pursuant to G.L. s. 231, sec. 6F, and remand said matter for a hearing to assess the damages of Johnson on the third-party claim, and that interest be added to amount of damages from the date of denial of that motion,

    4. Reverse the denial of Cholfin's and Johnson's Rule 11 motion,

    5. Award Cholfin double costs and attorney's fees for this appeal, and 

    6. Issue any other order which this Court deems to be just, fair, and appropriate.

    PLAINTIFF SARAH CHOLFIN,
    THIRD-PARTY BARBARA C. JOHNSON, 
    By their attorney, 

    Barbara CJohnson
    ________________________
    Barbara C. Johnson, Esq. 
    6 Appletree Lane 
    Andover, MA 01810-4102 
    978-474-0833 

    11 October 2001 

    CERTIFICATE OF SERVICE

    I, Barbara C. Johnson, hereby certify that on 12 October 2001 I served two true and accurate copies of the original appellate brief and record appendix by courier on opposing counsel of record.

    11 October 2001                                                 _________________________
                                                                                   Barbara C. Johnson, Esq. 
     




     
     
    Barbara C. Johnson
    Attorney at Law
    6 Appletree Lane 
    Andover, MA 01810-4102
    978-474-0833 FAX 978-474-1833
    barbaracjohnson@worldnet.att.net

    25 January 2003

    The Honorable Justices Gelinas, Mason, and Mills 
    Office of the Clerk 
    Appeals Court
    1500 New Court House 
    Pemberton Square
    Boston, MA 02108 

    Re: Petition for Rehearing Pursuant to Mass.R.A.P. Rule 27
    Cholfin v. Gordon v. Johnson
    A.C. No. 01-P-0582


    To the Honorable Justices Gelinas, Mason, and Mills:

    Sarah Cholfin contends that it is difficult to believe that any of the appellate panel members who are well-experienced in legal arenas wrote the decision for the panel in this case. [Judgment and Rule 1:28 Memorandum and Order appealed from attached hereto this Rule 27 pleading.]

    It must be not only a case of first impression but a "first" (1) that a high court allows without punishment an attorney who did not represent a party to put a lien for attorney's fees on that party's file and (2) that a high court allows without punishment the same attorney to sue the plaintiff's daughter, who was not yet an attorney at the time relevant to the action, for contribution and indemnification when neither the plaintiff nor her daughter even knew the defendant attorney.

    Further, (3) there is no reasonable excuse for the high court to allow Judge Wendy Gershengorn to dismiss the counterclaims of Johnson, who was granted by Judge James McHugh, III, a partial summary judgment on the same counterclaims under Rule 11 of the Massachusetts Rules of Civil Procedure and G.L. c. 231, sec. 6F, and then to deny Johnson both a trial and sanctions for Gordon’s violations.

    Clearly these primary facts must have been overlooked or misapprehended in order for the true issues of the case-in-chief and third-party action to have been overlooked or misapprehended . . . or, at the very least, given extraordinarily short shrift.

    Given that the appellate panel or a clerk acting on behalf of the panel cited no legal authorities, the plaintiff and the third-party counterclaimant would not even know where to begin to respond in a manner other than that in which the plaintiff's counsel has written this Rule 27 pleading.

    With all due respect, no socially responsible individual or panel could have reached such a conclusion as reflected in the appellate decision. The need for accountability by the judiciary, as contemplated by our forefathers in article V of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts has never been more needed than it is now, in the present era of social upheaval and official policies of concealment, ambiguity, or at most, pauciloquy. 

    WHEREFORE, Plaintiff prays that this Court:

      1. Vacate the divers judgments and remand the case for trial on Plaintiff Cholfin's claims, 

      2. vacate and remand for trial and/or sanctions Third-Party Counterclaimant Johnson's claim for the reasons stated and the authorities cited in her brief,
      3.  
      4. Issue any other order which this Court deems to be just, fair, and appropriate.


    Respectfully submitted,
    PLAINTIFF & THIRD-PARTY COUNTERCLAIMANT,
    By their attorney, 
    Barbara C Johnson
    Barbara C. Johnson, Esq. 
    6 Appletree Lane 
    Andover, MA 01810-4102 
    978-474-0833 
     
     

    CERTIFICATE OF SERVICE

    I, Barbara C. Johnson, hereby certify that on this day served two true and accurate copies of the above pleading on opposing counsel of record. A copy shall also be published on <http://www.falseallegations.com/drano87-gordon-rule-27-letter-to-appeals-court.htm> and emailed to a select list of recipients.

    Barbara C Johnson
    Barbara C. Johnson, Esq. 
    27 January 2003 

     
     
    Barbara C. Johnson
    Attorney at Law
    6 Appletree Lane 
    Andover, MA 01810-4102
    978-474-0833 FAX 978-474-1833
    barbaracjohnson@worldnet.att.net

    26 January 2003

    Office of the Clerk 
    Supreme Judicial Court
    1412 New Court House 
    Pemberton Square
    Boston, MA 02108 

    Re: Petition for FAR Pursuant to Mass.R.A.P. Rule 27.1
    Cholfin v. Gordon v. Johnson
    A.C. No. 01-P-0582
     
    To the Honorable Justices:

    Sarah Cholfin and her counsel request leave to obtain further appellate review because the issues presented will affect the public interest or the interest of justice if left unaddressed by the Court. 

    The interest of justice which will be affected is the right of all present and future parties and their counsel to rely on their rights to due process and equal protection under both the State and Federal constitutions and stare decisis. This is a substantial reason bound to affect the public interest or the interests of justice.

    Because (1) in the recent past, spending many hours and many dollars to comply strictly with Rule 27.1 has been a complete waste of time and money for copies and filing fees -- in that in exchange for those expenditures, plaintiffs have received only boilerplate responses from this Court – and (2) "the law does not require the doing of a useless act" [Loomer v. Dionne, 338 Mass. 348, 353 (1959), citing Mowry's Case, 112 Mass. 394, 400, and Schayer v. Common-wealth Loan Co., 163 Mass. 322, 323-324], Cholfin and Johnson have concluded that strict compliance with Rule 27.1 would be but an exercise in futility. 

    Spurred on, nevertheless, in their quest for justice, they therefore submit in lieu of a formal Rule 27.1 petition, this letter and an attached copy of the pleading filed in the Appeals Court and in accordance with M.R.A.P. 27. The same facts and same issues would be repeated in a 27.1 petition, except for the spin on them to make them satisfy the standard that the issues are those in which the public as well as justice would have an interest.

    Because Cholfin is an enneagarian and is -- at this time, at least -- in a nursing home receiving so-called long-term care on a temporary basis for her occasional dementia, she is unable to file indigency papers with the clerk. Therefore her counsel requests that the filing fee for this very succinct Rule 27.1 pleading be waived.

    In sum, Plaintiff Cholfin and Third-Party Counterclaimant pray that this Court:

      1. vacate the divers judgments and remand the case for trial on Plaintiff Cholfin's claims,
      2.  
      3. vacate and remand for trial and/or sanctions Third-Party Counterclaimant Johnson's claims for the reasons stated and the authorities cited in her brief,  and
      4.  
      5. issue any other order which this Court deems to be just, fair, and appropriate.
                                                      Respectfully submitted,
                                                      PLAINTIFF & THIRD-PARTY COUNTERCLAIMANT
                                                      By their attorney,  Barbara C Johnson
    Barbara C. Johnson, Esq. 
    6 Appletree Lane 
    Andover, MA 01810-4102 
    978-474-0833

    CERTIFICATE OF SERVICE

    I, Barbara C. Johnson, hereby certify that on this day I served a true and accurate copy of the above pleading on opposing counsel of record (without the attachment of the Rule 27 pleading, given that they have been served separately). A copy shall also be published on <http://www.falseallegations.com/drano87-gordon-app-rule-27-letter-12503.htm>
    and emailed to a select list of recipients.
    Barbara C Johnson
    Barbara C. Johnson, Esq. 
    27 January 2003