# Opposition Brief — Davis v. Lauria

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1999
- **Citation:** 528 U.S. 814

## Text

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| * Supreme court, u. s, |
O 22 2 a ie ae,
JUN 16 1999
No. 98-1867
ss
In The seis

Supreme Court of the United States

FRED DAVIS,

Petitioner,

ANTHONY LAURIA,
Respondent.

On Petition For Writ Of Certiorari
To The Massachusetts Supreme Judicial Court

+

BRIEF IN OPPOSITION

Georce R. Sustak
Counsel of Record
STANTON & LANG
P.O. Box 1080

200 Broadway
Lynnfield, MA 01940
(781) 595-1440

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831

RESPONDENT’S OBJECTIONS
TO THE QUESTIONS
PRESENTED FOR REVIEW

The Petitioner, in his writ of Certiorari, has presented
seven (7) issues for this Court to review. Respondent
maintains that none of the questions presented merits this
Court’s review. Issues II, IV, V, VI and VII do not even
mention a federal question or a constitutional issue.
Those purported issues that at least mention the Consti-
tution (i.e., Issues I and III) do so in such an unspecified,
incomprehensible manner that no “compelling reason”
for review by this Court - as stated in Rule 10 of the
United States Supreme Court Rules — is even remotely
presented.

Importantly, the Massachusetts Appeals Court held
that “principles of res judicata preclude the plaintiff from
asserting that there was no settlement of this action by
our decision in Davis v. Hanover Ins. Co., 40 Mass.App.Ct.
1127 (1996), cert. denied, 117 S.Ct. 685 (1997), and thus
retransfer to the Superior Court would be futile” [see
App. 24].

Therefore, and regardless of Petitioner’s strained and
contrived issues, there was an independent and entirely
state-based foundation for the state disposition of this
case. “If the state court decision indicates clearly and
expressly that it is alternatively based on bona fide sepa-
rate, adequate, and independent grounds, we, of course,
will not undertake to review the decision.” Michigan v.
Long, 463 U.S. 1032, 1041 (1983); quoted in Caldwell v.
Mississippi, 472 U.S. 320, 327 (1985).

More specifically, the Petition, on its face, fails to
identify any “important federal question” or “important

—— COU

il

RESPONDENT’S OBJECTIONS
TO THE QUESTIONS
PRESENTED FOR REVIEW - Continued

question of federal law”, within the meaning of said Rule
10(b) or (c):

1. In Issue I, Petitioner makes a virtually
unintelligible argument about some amorphous
“Constitutional Rights” of the “disabled, partial
disabled, pro se litigants and minorities”. Even
if these issues were properly raised and argued
in the Petition, they would not be properly
before this Court since that was not the issue
before the state courts and that issue, quite
properly, was not passed upon by those courts.

2. In Issue II, Petitioner makes an even
more unintelligible and incoherent argument
presumably concerning “stealing monies from
the petitioner”. The Petitioner has failed to iden-
tify what specific statute is to be reviewed by
this Court and by what authority this Court
could review the matter. Further, this issue was
not raised before either the Massachusetts
Appeals Court or the Massachusetts Supreme
Judicial Court. Lastly, Petitioner’s vague allega-
tions, such as they are, are directed at Hanover
Insurance Company and its counsel, neither of
whom are parties to this action. Despite Peti-
tioner’s inclusion of Hanover Insurance Com-
pany as a defendant on the cover sheet to his
Petition to this Court, Hanover is not and never
has been a party to this action, nor has its coun-
sel, George R. Suslak (“Suslak”).

3. In Issue III, Petitioner makes what
appears to be a “due process” argument con-
cerning what he suggests was “an incorrect
docket sheet entry”. Petitioner alleges that the
docket sheet inaccurately noted that his claim

iil

RESPONDENT'S OBJECTIONS
TO THE QUESTIONS
PRESENTED FOR REVIEW - Continued

had settled. Petitioner denies having ever set-
tled the underlying tort claim against Mr. Lau-
ria. Even if this were true (which Respondent
vigorously disputes below), by the time the
issue was raised, the Massachusetts Appeals
Court had confirmed that the settlement was
valid, which rendered Petitioner’s argument in
this case “futile” under state principles of res
judicata [see App. 24]. Thus, there is no federal
or constitutional question appropriate for
review by this Court.

4. In Issue IV, Petitioner makes essentially
the same argument as in Issue III — ie., that
“petitioner was not notified by the court that his
action was reported settled”. This issue is not
appropriate for review by this Court for the
same reasons noted above.

5. In Issues V and VI, Petitioner makes
vague allegations against Hanover Insurance
concerning alleged violations of M.G.L. c. 93A
(the Massachusetts Consumer Protection Act)
and M.G.L. c. 19A, § 14 (defining what is “finan-
cial exploitation” of the elderly). Even if there
were a scintilla of a basis for these allegations
(which there clearly is not), they are merely
interpretations and applications of state law
which raise no “important federal question of
law” appropriate for review by this Court.

6. In Issue VII, Petitioner makes scurrilous
and unfounded allegations concerning George
R. Suslak (hereinafter “Suslak”). Suslak is not,

iv

RESPONDENT’S OBJECTIONS
TO THE QUESTIONS
PRESENTED FOR REVIEW - Continued

and never has been, a party to this action. Nev-
ertheless, any issue of alleged attorney miscon-
duct in a state court proceeding is not an
appropriate matter for review by this Court.

LIST OF PARTIES TO THE PROCEEDINGS

Fred Davis is the plaintiff in this matter. The only
defendant is Anthony Lauria.

All orders and decisions of the Massachusetts Courts
have (properly) listed the defendant in this matter as
“Anthony Lauria” [App. 1; App. 11; App. 22; App. 24;
and App. 36], despite Petitioner’s unceasing attempts to
list Hanover Insurance as a Respondent in this matter
[see cover sheet to Petitioner’s Brief; pgs. 3, 6, 9-10 of
Petitioner’s Brief; and App. 26 attached hereto]. Also, as
noted above, Suslak never has been a defendant in this
matter, despite Petitioner’s constant references to him
[see Petition, pgs. 1, 3, 4, 6, 8, 11-12].

vi

TABLE OF CONTENTS

Page

Respondent's Objections to the Questions Presented
S00 TIVES 06 oc cuveeueassen ocenreeeseeenneeeaieet i
List of Rnlenasted POSUGie<csvcveccssvcatveueeneevas Vv
Fae OF COMME. 5 ccc cccctcesssccessvesshiniewee vi
Table of Authorities .................. re Vili
Citations to Opinions and Orders.................. 1
Concise Statement of Jurisdiction .................. 1
Constitutional and Statutory Provisions Involved... 2
Concise Statement of the Case..............seeeee- 2
Summary Of the Argument ....:ssccscssccseseseces 6
Argument for Denial of Petition ................... 7

I. Issue I — Petitioner Did Not Raise This Issue At
The State Court Level; Petitioner Has Not Com-
plied With Supreme Court Rule............... 10

II. Issues Il, V and VI - These Issues Raise No
Federal Question; The State Court Has Already
Applied Res Judicata Against Petitioner On
TRGOS TOMNGs vc ccccvesestenrucsusveunweunnaes 11

Ill. Issue III — This Issue Has Been Waived Because
Petitioner Did Not Raise It At The State Court
Level; Petitioner Had Actual Notice........... 12

Vii

TABLE OF CONTENTS - Continued
Page

IV. Issue IV - Mere Errors In State Court Decisions
Are Not Reviewable By This Court; Nor Is
Alleged Misconduct By An Attorney For A Party

V. Issue VII - The Attorney Is Not A Party To These
Proceedings; This Court Has No Jurisdiction
Relating To The Conduct Of Attorneys In State
Court Proceedings; Sanctions Should Be Entered
Against Petitioner. .......-.cccccecccceccccsces 16

Nh i a ae cea e aw ie 17

Appendix Table of Contents ...............-.00005. i

viii

TABLE OF AUTHORITIES

Page
CASES
Adams v. Robertson, 520 U.S. 83 (1997)................ 9
Caldwell v. Mississippi, 472 U.S. 320 (1985)............. i
Davis v. Hanover Ins. Co., 40 Mass.App.Ct. 1127
RRR Sie ST ae een aS pee na 11
Davis v. Hanover Ins. Co., 423 Mass. 1104 (1996)..... 11
Davis v. Lauria, 46 Mass.App.Ct. 1112 (1999).......... 1
Edmondson v. Leesville Concrete Co., 500 U.S. 614
SER HGR chesheesee Paha aneedns CasetananureeKes 13

Griffin v. Powers, 1 Mass.App.Ct. 846 (1973) ......... 15
Holmes v. Fitchburg & Leominster, Street Railway,

et Se, Se Eo Gnd ota unndes bob deuensaeseces 14
Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982) ..... 13
Michigan v. Long, 463 U.S. 1032 (1983)............+4.. 6
Reich v. City of Freeport, 388 F.Supp. 953 (N.D.IIl.

PUES 0 6 ob.ke reek eked a6 ceCKk dab ée ed Neavevctidecéwas 15
Siegel, Petitioner, 309 Mass. 553 (1941)............--. 14
Street v. New York, 394 U.S. 576 (1969) ...........-4-. 9

Whitaker v. Superior Court of California, 514 U.S. 208
Es 06000 04.0005 5 00 0kGGs soe NNNeKe dan ceedwecontees 17

ix

TABLE OF AUTHORITIES — Continued

Page
STATUTES
EE | PPro eet TT reer ere PEE eC 4,8,9
tt ee ee SG PTV PTTETTLeNT Ter OPTI TIT Terre ee 9
tk aS | | Peer Perr eTiriTe errr ee 7
ek Rs Oh Ps si v'ekeneeeesebaneseeeesvse ceeds i, 2
RULES

United States Supreme Court Rules, Rule 10(b)...11, 15
United States Supreme Court Rules, Rule 10(c)...11, 15
United States Supreme Court Rules, Rule 14......... 1
Massachusetts Rules of Civil Procedure, Rule 5(b).... 14

A rt bit

RN ea 6 Cn RS ae Se

CITATIONS TO OPINIONS AND ORDERS
ENTERED IN THIS CASE

Superior Court Order on Defendant’s Motion to
Vacate Retransfer to Superior Court; entered in
Suffolk Superior Court No. SUCV90-00408-C;

unreported; see App. 22.

Davis v. Lauria, 46 Mass.App.Ct. 1112 (1999);
unreported Memorandum of Decision at App.
24.

Davis v. Lauria, Massachusetts Supreme Judicial
Court denial of Further Appellate Review
Application; unreported; see App. 36.

+

CONCISE STATEMENT OF JURISDICTION

Petitioner states that “[t]his Court’s jurisdiction is
invoked under 28 United States Code” [Petitioner’s Br., p.
2]. This assertion of jurisdiction is overly vague and does
not comply with Rule 14(1)(e) of the United States
Supreme Court Rules. It is assumed that the Petitioner is
claiming that this Court has jurisdiction over this matter
pursuant to 28 U.S.C. § 1257(a), however, § 1257(a)
applies, at best, only to Issue III.

Regarding Petitioner’s Issue I, although he has made
some vague allegation about due process and equal pro-
tection, he has not even identified which constitutional
provisions he is referring to, nor has he indicated
whether he is referring to the United States or to the
Massachusetts constitution.

Petitioner’s Issues II, IV, V, VI and VII do not even
remotely resemble the types of questions identified in
§ 1257(a) that call for review by this Court.

Although Petitioner’s Issue III invokes United States
Constitution Amendments V and IV, he provides no indi-
cation as to how those provisions are implicated. Also,
there are other compelling reasons, set forth below, why
this Court should refuse to accept jurisdiction over this
issue.

4

CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED

There are no federal statutory provisions involved in
this matter. The only United States Constitution provi-
sions noted by Petitioner are:

Amendment Article V. “No person shall . . . be
deprived of . . . property without due process of
law”.

Amendment Article XIV. “[NJor shall any state
deprive any person of... property, without due
process of law, nor deny to any person... the
equal protection of the laws.”

®

CONCISE STATEMENT OF THE CASE

This is now the third time that this Petitioner has
sought relief from this Court in this and directly related
matters. See United States Supreme Court Docket Nos.
96-640 and 96-1074.

In its most simplified form, the instant matter merely
presents a state law related procedural question: under
Massachusetts law, is a party entitled to a retransfer of a
matter from the Boston Municipal Court to the Suffolk
Superior Court more than six (6) years after the matter
has been reported settled, and after an Appeals Court
opinion which has confirmed the settlement of the mat-
ter?

The case stems from a 1987 motor vehicle accident
between the Petitioner, Fred Davis (“Petitioner”), and
Anthony Lauria, who was insured under an automobile
insurance policy by Hanover Insurance Company
(“Hanover”). Petitioner brought his action against Lauria
in the Suffolk County Superior Court. Under Massa-
chusetts law, the case was remanded to the Boston Munic-
ipal Court (“BMC”) for trial. The case was reported
settled by the parties on October 9, 1991 [See App. 5], and
a “NISI order” entered the same day, indicating, in effect,
that the case would be dismissed as to all claims on
November 12, 1991.}

A settlement for $20,000 was arrived at between Peti-
tioner’s lawyer (Robert Adams) and Hanover. Prior to
consummation of the settlement, it was discovered that
Petitioner’s prior lawyer (Stuart Ravech) had served the
parties with a notice of attorney’s lien [see App. 5]. At
that point, appropriately so and in accordance with Mas-
sachusetts law, Hanover insisted that any settlement draft
include the name of Petitioner’s prior lawyer (Ravech).

1 The 30-day Nisi period expired on November 19, 1991
(which was a Saturday), and the following Monday (November
11) was a holiday.

Petitioner then refused to accept the settlement funds and
has since filed a series of frivolous lawsuits and appeals
in an attempt to obtain the settlement proceeds while
escaping the attorney’s lien. Hanover’s position in this
matter (essentially that, under Massachusetts law, it had
an obligation to protect the attorney’s lien) has been
vindicated at every turn.

Petitioner then brought an action in Norfolk County
Superior Court directly against Hanover alleging breach
of the settlement agreement, unspecified violations of
M.G.L. c. 93A, and unintelligible and unspecified viola-
tions of Petitioner’s rights as a senior citizen. Hanover
moved for summary judgment on the issue of its obliga-
tion to honor the attorney’s lien. The motion for summary
judgment was allowed “in its totality” by the trial court
[App. 37]. That ruling was upheld at the Appeals Court
{[App. 39], and at the Supreme Judicial Court [App. 40].
Certiorari was denied by this Court in 96-640 [App. 41],
as was Petitioner’s Motion for Rehearing [App. 42].

The Norfolk County Superior Court decision is cen-
tral here because that summary judgment held that there
was no breach of the settlement agreement by Hanover -
and it is that holding which formed the basis for the
Appeals Court’s application of res judicata principles to
the instant case [see App. 24]. Thus, the Appeals Court, in
the instant matter, was merely holding that Petitioner
cannot resurrect an already decided issue. Further, and as
noted above, the decision by the Appeals Court in the
instant case, based on principles of res judicata, provides
the “separate, adequate, and independent grounds” for
the state court disposition which effectively precludes
review by this Court.

While that matter was pending, Petitioner filed a com-
plaint in the United States District Court for the District of
Massachusetts (Civil Action No. 95-11837MLW) against
Hanover and its Chairman of the Board, alleging various
state and federal constitutional violations as a result of
Hanover’s insistence that it honor the attorney’s lien. Peti-
tioner also alleged that the Superior Court judge and Hano-
ver’s attorney would not allow the record to be assembled in
the original case, thereby depriving him of his right to
appeal. This complaint was dismissed by the District Court,
on Hanover’s Motion to Dismiss [App. 43]. This dismissal
was upheld by the First Circuit Court of Appeals [App. 47];
and this Court denied Petitioner’s Petition for a Writ of
Certiorari [App. 49] and then denied a motion for rehearing

[App. 50].

It was at this point that Petitioner sought to revive
the original lawsuit filed against Lauria (that had been
reported settled in 1991). He first sought to remove the
original dismissal of that action in the BMC [App. 9]. This
Motion was denied [App. 11]. After the matter had been
inadvertently retransferred to the Superior Court, defen-
dant filed a Motion to Vacate that Retransfer [App. 13],
and Petitioner filed an Opposition to that Motion [App.
18]. The Suffolk Superior Court allowed defendant's
motion to vacate retransfer [App. 22]. The Petitioner
appealed the Superior Court Order. The Massachusetts
Appeals Court entered a Memorandum and Order affirm-
ing the Superior Court [App. 24]. The Petitioner sought
leave to obtain further appellate review from the Massa-
chusetts Supreme Judicial Court [App. 26], and this
Application was denied [App. 36].

It is from this proceeding that Petitioner now seeks
review in this Court on a Writ of Certiorari.

¢

SUMMARY OF THE ARGUMENT

Within the meaning of Michigan v. Long, 463 U.S.
1032, 1041 (1983), there were “separate, adequate, and
independent grounds” to support the state court decision
in this matter, which precludes this Court from review of
same.

Petitioner’s Issues II, IV, V, VI, and VII do not involve
federal or constitutional questions at all. The other Issues
(I and III) raise no important federal question.

The case merely involves a narrow procedural ques-
tion of state law concerning whether a party may revive a
retransfer of a case back to the Superior Court six years
after the case was reported settled. Further, the vague
constitutional questions that Petitioner seeks to invoke
were never raised or decided at the state court level.

Regarding Issue I, Petitioner has not identified any
question appropriate for review by-this Court.

Regarding Issues II, V and VI, Petitioner raised issues
that: (1) lie, if at all, against Suslak and Hanover Insur-
ance, neither of whom are parties to this case; and (2)
have been resolved against Petitioner in at least two
other, separate actions.

Regarding Issue III, Petitioner never raised this issue
before the state courts; it does not involve any important
question of federal law; and Petitioner had full and

7

proper notice of all proceedings before the Massachusetts
courts.

Regarding Issue IV, Certiorari is not appropriate
merely for alleged errors by state courts in their deci-
sions; nor is it appropriate for resolving alleged miscon-
duct by attorneys.

Regarding Issue VII, Petitioner’s incessant personal
attacks on Suslak are blatantly untrue; they are not
appropriate for resolution by this Court; and petitioner
should be admonished not to bring any further action
against Lauria, Hanover or Suslak in the federal courts
which springs from the same series of events that under-
lie the instant matter.

ARGUMENT FOR DENIAL OF PETITION

This particular case is, in its essence, a procedural
matter. It involved the singular question whether Peti-
tioner had the right to obtain a retransfer of this matter to
the Superior Court some six (6) years after the matter was
reported settled by the parties. As noted above, the val-
idity of that settlement has been upheld by every court to
which this issue was presented, including this Court
[App. 38-42]. Whether the Superior Court properly
vacated the retransfer of this claim is the only true issue
in the instant case, yet this issue has been entirely
ignored by the Petitioner throughout this appellate pro-
cess.

ee ea © 2

Under Massachusetts law (M.G.L. c. 231, § 102C), a
request for a retransfer “shall be filed with the clerk of

the district court within ten days after notice of the
finding or decision”. The Suffolk County Superior Court
quite properly vacated the retransfer, holding that “[t]he
[Petitioner’s] right to obtain that retransfer ended on
November 22, 1991, i.e., ten days after the case was
dismissed in the Boston Municipal Court on November
12, 1991” [App. 22]. That Court Order further noted that
“plaintiff cannot revive this old case by seeking retransfer
many years after it’s [sic] life ended, and the right to
claim retransfer ran out in the Boston Municipal Court”
[ibid.]. The case, therefore, presents no federal question
appropriate for this Court’s review.

Additionally, the Petitioner’s purported constitu-
tional questions, which he now attempts to raise in his
[ssues I and III, were never even tangentially raised at the
trial court, at the Appeals Court or at the Supreme Judi-
cial Court of Massachusetts, despite the fact that the
Petitioner now acknowledges that he was aware of the
issue (i.e., the entry of the report of settlement) while the
matter was still at the Boston Municipal Court [see Peti-
tioner’s Brief, p. 8].

The following is a verbatim STATEMENT OF THE
ISSUES PRESENTED FOR REVIEW taken from Peti-
tioner’s Brief to the Massachusetts Appeals Court:

1. The court erred in vacating retransfer to
the Superior Court.

2. The acts and practices of the defendant,
Hanover Insurance Company were unfair and
deceptive within the meaning of M.G.L. c. 93A.

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RI thle bait nA aga esc Bali) Dh onl is NA hl Moe

3. The court erred in not placing punish-
ment against the defendants for violation [sic]
Massachusetts General Laws Chapter 19A § 14,
‘Financial Exploitation’ against an elderly per-
son.

4. The court erred in not placing Sanctions
Against George R. Suslak For Telling Falsehoods
to the Court.

Thus, the only issues which could even remotely
invoke this Court’s jurisdiction (Petitioner’s Issues I and
Ill) were not raised or decided in the state court. “If the
question was not so presented, then we have no power to
consider it.” Street v. New York, 394 U.S. 576, 582 (1969).
When a petitioner does not raise his constitutional issues
below, and when the state courts do not address those
issues, they will not be considered by the Supreme Court
on Certiorari. Yee v. Escondido, 503 U.S. 519, 533 (1992);
Adams v. Robertson, 520 U.S. 83 (1997). It is abundantly
obvious that Petitioner has only lately contrived his fed-
eral constitutional issues in an attempt to bestow some
federal jurisdiction upon what has always been strictly
and singularly a state court matter.

Lastly, none of Petitioner’s purported substantive
issues (concerning Chapter 93A and Chapter 19A, § 14, of
the Massachusetts General Laws) were even addressed by
the state courts in this matter at any level since they were
all immaterial to the underlying nature of the case — i.e.,
whether Petitioner had a right to revive this matter under
the procedural rules of the Commonwealth of Massa-
chusetts. The purported substantive issues were not
appropriate for determination in this matter; and they
were all raised, and decided against Petitioner, in other

10

cases in which he did raise them. Petitioner has had his
day in court on each of the collateral issues which he
inappropriately tries to inject into this case.

ISSUE I

Petitioner Did Not Raise This Issue At The
State Court Level; Petitioner Has Not Com-
plied With Supreme Court Rule 14

As noted above, neither Issue I nor Issue III was ever
raised by Petitioner at any level of the state court pro-
ceedings.

Substantively, in Issue I, Petitioner makes some
overly vague allegations concerning the constitutional
rights of “the disabled, partial disabled, pro se litigants,
and minorities” [Petitioner’s Br., p. 5]. Petitioner clearly
has not complied with the requirement of Supreme Court
Rule 14 by stating concisely the question presented for
review, nor has he identified what the Respondent has
done to violate his rights. In those circumstances, it is not
possible for Respondent to present coherent rebuttal.

Petitioner complains of how certain “individu-
als ... are being treated by the Massachusetts Courts and
judges” [Petitioner’s Brief, p. 6]. Yet the defendant in this
case is a private party. This is, therefore, not the proper
forum for raising those issues.

_e

11

ISSUES II, V and VI

These Issues Raise No Federal Question; The
State Court Has Already Applied Res Judicata
Against Petitioner On These Issues

As with Issues IV and VII, these Issues raise no
“important federal question” appropriate for resolution
by this Court, within the meaning of Rule 10(b) and (c) of
this Court. They relate to strictly state court matters.

Additionally, this is another abuse of the judicial
system by Petitioner utilizing a back-door attempt to
have this Court review, again, matters that have already
been resolved against Petitioner all the way through this
Court. This is no less than Petitioner’s third attempted
bite at this same apple.

Neither Suslak nor Hanover Insurance Company are
parties to this instant matter. Petitioner did, in fact, bring
a separate and direct action against Hanover Insurance
Company, alleging this very conduct by Hanover (and
commencing his unwarranted and scurrilous personal
attacks upon Suslak) (Norfolk Superior Court No.
93-00574). That matter was resolved in favor of Hanover
on its Motion for Summary Judgment [App. 37-38]. That
Judgment was affirmed by the Massachusetts Court of
Appeals [App. 39; and see, Davis v. Hanover Insurance
Company, 40 Mass.App.Ct. 1127 (1996)]. The Supreme
Judicial Court of Massachusetts denied a request for Fur-
ther Appellate Review [App. 40; and see, Davis v. Hanover
Insurance Company, 423 Mass. 1104 (1996)]; and this Court
denied a similar request for Certiorari [App. 41], and
Reconsideration [App. 42].

12

In September of 1997, Petitioner brought another
complaint in the Norfolk County Superior Court (No.
97-01716) alleging precisely the same issues [App. 51].
That matter was resolved in Hanover’s favor on a Motion
to Dismiss [App. 54], on the basis of res judicata [App.
56-63]. That matter is currently before the Massachusetts
Appeals Court, and there is every reason to believe that
the lower court judgment will be affirmed.

Thus, the facts which Petitioner alleges against Hano-
ver were resolved against Petitioner first in Norfolk
Superior No. 93-00574; and again in Norfolk Superior No.
97-01716. These are the same arguments that Petitioner
tries to raise again in Issues II, V, and VI of this Petition.

Petitioner has already had his day in court on these
issues, and they have been resolved against him on each
and every such occasion.

It is also to be noted that Petitioner was admonished
in that case not to bring any further complaints against
Hanover on these issues [A. 62]. Hanover asks that this
Honorable Court enter a similar admonishment to Peti-
tioner that he not be permitted to enter any complaint or
request for Certiorari in the Federal Courts against Hano-
ver, Lauria or Suslak based on the same series of facts as
alleged in the instant Petition.

ISSUE Ill

This Issue Has Been Waived Because Petitioner
Did Not Raise It At The State Court Level;
Petitioner Had Actual Notice

As noted above, neither this Issue, nor Issue I, was
ever raised at any level of the state court proceedings.

13

Petitioner’s argument on Issue III fails to identify any
“important federal question” or “important question of
federal law”, within the meaning of Rule 10(b) or (c) of
the United States Supreme Court Rules. This Court
should not review the judgment of a state court “except
where a substantial federal question is involved”. Reich v.
City of Freeport, 388 F.Supp. 953, 955 (N.D.IIl. 1974), aff'd
527 F.2d 666 (1976). In the instant matter, Petitioner has
failed to identify any such important or substantial fed-
eral question.

Petitioner’s due process argument here apparently is
that he never received notice of the thirty-day nisi order
entered in the trial court in October of 1991 [see Peti-
tioner’s Brief, p. 7).

Petitioner does not define how federal concepts of
due process and equal protection are implicated here.

Further, if the Petitioner is complaining of action or
inaction by the court or its officers, they are not defen-
dants in this matter.

If the Petitioner is complaining of action or inaction
by the Respondent, it is clear that the Respondent is a
private party. Only actions taken under the color of state
law are implicated in Fourteenth Amendment cases. Flagg
Brothers, Inc. v. Brooks, 436 U.S. 149, 156 (1978); Lugar v.
Edmondson Oil Co., 457 U.S. 922 (1982). “[CJonstitutional
guarantees of individual liberty and equal protection do
not apply to the actions of private entities.” Edmondson v.
Leesville Concrete Co., 500 U.S. 614, 619 (1991).

As to the substance of Petitioner’s argument here, he
has acknowledged that he “learned of this entry when he

14

filed his Motion For Scheduling Trial Date and Plaintiff's
Motion to Amend Complaint” [Petitioner’s Brief, p. 8].
This occurred at the BMC, and before retransfer to the
Superior Court. Yet in neither PLAINTIFF’S MOTION TO
REMOVE DISMISSAL JUDGMENT filed at the BMC
[App. 9], nor in PLAINTIFF’S MOTION IN OPPOSITION
TO VACATE RETRANSFER TO SUPERIOR COURT filed
at the Superior Court [App. 18], did Petitioner even raise
an issue of notice to him. Nor did he raise that issue
before the Appeals Court or the Supreme Judicial Court
of Massachusetts.

Petitioner also fails to note for this Court that, at the
time when settlement was reported to the court, he was
represented by counsel who participated in the report of
settlement on behalf of Petitioner and was given notice of
all proceedings. Indeed, if Petitioner had raised this issue
properly before the trial court, Respondent would have
been able to obtain the testimony of the lawyer who
represented Petitioner at the time, in order to confirm
proper notice at all stages. It is well-settled in Massa-
chusetts law that notice to a party’s counsel of record is
sufficient. Siegel, Petitioner, 309 Mass. 553 (1941); Holmes v.
Fitchburg & Leominster Street Railway, 347 Mass. 313,
318-319 (1964); Rule 5(b) of the Massachusetts Rules of
Civil Procedure.

Also on this precise issue, when the Boston Munici-
pal Court denied Petitioner’s Motion to Vacate the Dis-
missal which had occurred in 1991, the court noted that
“[nJotice of this order was sent to the parties on October
9, 1991” [App. 11]. That Order further noted that the case
was to be automatically dismissed in thirty days (as of
November 12, 1991).

15

Lastly, it is to be noted that the one case relied upon
by Petitioner in support of his position — Griffin v. Powers,
1 Mass.App.Ct. 846 (1973) — is precisely the same case
that the Superior Court relied upon to allow Respon-
dent’s Motion to Vacate the Retransfer [see App. 22].
Thus, there is no support in the law for the Petitioner's
position.

ISSUE IV

Mere Errors In State Court Decisions Are Not
Reviewable By This Court; Nor Is Alleged
Misconduct By An Attorney For A Party

Petitioner is plainly wrong when he states in his
heading to Issue IV that “Certiorari should be granted
when the inferior courts erred in its decisions” [Peti-
tioner’s Brief, p. 7]. The inferior courts in this instance
were the state courts of Massachusetts. Rule 10(b) and (c)
of this Court make it clear that Certiorari is only available
for review of state court cases that have decided “an
important federal question” or “an important question of
federal law”. See, Reich v. City of Freeport, supra. Petitioner
has identified no such issue in Issue IV of his Petition.

Petitioner’s first argument - that he was not notified
by the court that his action was reported settled — has
been dealt with above. His counsel did have notice, and
he never raised this issue at the trial court (where it could
easily have been litigated and resolved, unquestionably
to Petitioner’s dissatisfaction) or in the state appellate
courts.

16

His second argument relates to alleged falsehoods by
Suslak. Beyond the fact that these untrue, unwarranted
and scurrilous attacks on Suslak are irrelevant to the
underlying proceedings, Suslak is wearying of the Peti-
tioner’s incessant resort to these personal attacks.
Although this is not the appropriate forum to resolve
these issues, suffice it to say that none of the assertions
made by Suslak in this matter have been untrue or in the
slightest bit misleading.

In no event is it an issue that is appropriate for this
Court’s review on Certiorari.

ISSUE VII

The Attorney Is Not A Party To These Proceed-
ings; This Court Has No Jurisdiction Relating
To The Conduct Of Attorneys In State Court
Proceedings; Sanctions Should Be Entered
Against Petitioner

Suslak is not and never has been a party to these
proceedings. Even if he had been, Petitioner has pre-
sented no authority for the concept that this Court has
jurisdiction to concern itself with matters related entirely
to disciplinary rules for attorneys. Respondent is loathe
to even respond to these ludicrous assertions by Peti-
tioner lest any such response should lend credence to his
fanciful allegations.

It should, at least, be noted, however, that Suslak is
wearying of the incessant, unwarranted and scurrilous
personal attacks leveled at him by this Petitioner.

Petitioner has already been admonished in the state
court to the effect that “[s]hould the plaintiff, Fred Davis,

RCA, eRe Se mE

17

bring another duplicative complaint against this defen-
dant, Hanover Insurance Company, sanctions should be
considered at that time” [App. 62]. Hanover is currently
seeking an express affirmance of that admonition from
the Massachusetts Appeals Court but that appeal has not
as yet been decided.

Recognizing that this Court has established a practice
of admonishing petitioners in appropriate circumstances
~ Whitaker v. Superior Court of California, 514 U.S. 208
(1995) — it is respectfully requested that this Court enter
an order prohibiting this Petitioner from bringing any
further actions or petitions in the federal courts which
name Lauria, Hanover Insurance or Suslak as defendants
and which spring from the same series of events which
underlie this matter.

CONCLUSION

For all of the foregoing reasons, the Petition for Writ
of Certiorari should be denied in its totality.

Respectfully submitted,

Georce R. Sustak, Esa.

Counsel of Record for Respondent
STANTON & LANG

P.O. Box 1080

200 Broadway

Lynnfield, MA 01940

(978) 595-1440

APPENDIX TABLE OF CONTENTS
FOR BRIEF IN OPPOSITION TO CERTIORARI
(U.S. Supreme Court No. 98-1867)
Page

Suffolk Superior Court / BMC Docket Sheet ...App. 1

Plaintiff’s Motion for Scheduling Trial Date ....App. 6

Plaintiff’s Motion List Marking ................ App. 8
Plaintiff's Motion to Remove Dismissal

DE ead aN ddd de ork ancsavaedbadtncsees App. 9
BMC Order (by Bernstein, J.) .................. App. 11

Request for Retransfer Back to the Superior
WUE AAnibebnes ceekdskdneNecncneudedeceskess App. 12

Defendant’s Motion to Vacate Retransfer to Supe-
Pe ere vehcadetsitetedvessdenccesecaens App. 13

Plaintiff’s Motion in Opposition to Vacate
Retransfer to Superior Court................. App. 18

Court Order on Defendant’s Motion to Vacate
Retransfer to Superior Court................. App. 22

Appeals Court Memorandum and Order Pursuant
PEE WTA 8400 Sw enadeedounccacecessehoades App. 24

Davis’ Request for Leave to Obtain Further
PE MUNG 6 ib ecesnedeinddtxdcdedessca App. 26

Supreme Judicial Court Notice of Denial of F.A.R.
is bo necuhosasedcesencceneasaunhss App. 36

Order on Motion for Summary Judgment in Nor-
folk Superior No. 93-00574 .................. App. 37

Massachusetts Appeals Court Memorandum and
SP TP ckercccdtacednsncbisees eens App. 39

APPENDIX TABLE OF CONTENTS - Cont.

Page
Supreme Judicial Court denial of F.A.R. in 95-
PMG, .. vv ccrscudpunneenee ee aenneas ee eeenee App. 40
U.S. Supreme Court denial of Petition for Cer-
tiorari in 96-640 (relating to Norfolk Superior
INO. FD-OUG74E) ..nccccsivessvsesenevssaeesoees App. 41
U.S. Supreme Court denial of Petition for Rehear-
ing of denial of Certiorari ...........cccceees App. 42
U.S. District Court Memorandum and Order in
Civil No. 95-cv-11837-MLW......... eee e eee. App. 43
U.S. First Circuit Judgment affirming above Mem-
OTARGUM BAG COOGEE oo coc sncnecseseresucene App. 47
U.S. Supreme Court denial of Petition for Cer-
tiorari in 95-cv-11837-MLW ...........eeeeees App. 49
U.S. Supreme Court denial of Petition for Rehear-
ing of denial of Certiorari................... App. 50
Davis’ Complaint in Norfolk County Superior
Court No. GFGfi7 ERs 6éscisvecceeseasaeeserees App. 51
Defendant’s Motion to Dismiss in Dedham Supe-
rier Court No. D7GE7 Oe as vi etantcanaeeceenere App. 54

Norfolk Superior Court Memorandum of Decision
and Order in No. 97-01716 ........... 0.005. App. §

App. 1

DOCKET No. 90-0408

OCT 9 1991
FRED DAVIS vs. ANTHONY LAURIA
Plaintiffs Defendants
Tort BO3
Action
(F)
Ad damnum Jury
SUFFOLK, ss.

SUPERIOR COURT
DEPARTMENT OF THE
TRIAL COURT FOR
CIVIL BUSINESS

Plaintiffs Counsel
Ronald E. Gluck BBO#195960
Stuart Ravech
125 Summer St., Boston 02110 439-0200
195960
Fred Davis (pro se)
353 Bryant St.
Malden, Ma. 02148

7-8-91
Robert Abrams
50 Union St. #1
Newton, Mass 02159

Defendant's Counsel
Driscoll, Gillespie & Stanton
Mark F. Mahnken BBO#314400
200 Broadway
P.O. Box 850
Lynnfield, Ma. 01940 596-2200

App. 2

Trustees
1
2
3
4

Trustee’s Counsel
1
2
3
4

1990 Date No. Entered
Jan. 22
Jan. 22
Jan. 22
Apr. 10

Complaint Jury demand on complaint.
Civil Action Cover Sheet re: Complaint.
Ints. of plff. to deft. (1st set).

Jury demand of deft. (All Issues)

Apr. 27 ANSWER.

May 2 Ans. of deft. to ints. of plff.
May 17
July 18

Oct. 15 10 Motion of deft. for an order compelling
plff. to produce Federal Income tax
returns.

|
2
3
4
Apr. 20 5 Summons returned.
6
7
8 Ints. of deft. to plff.
9

Ans. of plff. to ints. of deft.

Oct. 15 11 Motion of plff. to be heard by oral argu-
ment.

Oct. 15 12 Opposition of plff. to deft’s motion to
compel production of Federal Income
tax returns.

Nov. 8 13. Motion of deft. for an order compelling
piff. to produce Federal Income Tax

Nov. 13

Nov. 16

Nov. 26

Nov. 26

*Dec. 17

*Dec. 11

Dec. 18

Dec. 21

Dec. 27

14

14A

15

16

14B

17

18

19

App. 3

returns, and allowed, Plaintiff must
produce the documents requested by
11/15/90 to deft’s atty. (Cratsley, J.)
notice sent 11/9/90.

Motion of deft. to extend discovery
deadline 90 days and assented to.
(Cratsley, J.).

Mo. of Atty. Stuart Ravech to withdraw.
Denied. (See Motion) /

App. of deft. for an order to inspect
Malden Hospital records of plff.

Order on app. of deft. to inspect Mal-
den Hospital records of plff. (Rouse, J.).
No. sent 2/12/91.

ORDER: Action ordered remanded to
B.M.C., (Cratsley, J.)/

Motion (P#14) Allowed. (Cratsley, J.).
Notice Sent 12-18-90.

Motion of plff. for reconsideration for
piff. to produce tax returns to deft.
Filed in open court & argued by Mr.
davis & defts. attorney. (Cratsley, J.).

Mo. (P#17) Denied. plff. must produce
his fed. tax returns as requested within
30 days. (Cratsley, J.). notice sent.
12-19-90.

Motion of deft. for order granting
access to criminal Offenders record
information concerning the plff.

Plff’s Notice of Appeal.

App. 4

Dec. 28 20 Motion of plff. to stay the Order
entered December 18, 1990. Denied.
(Cratsley, J.). Notice sent 1/3/91.

Jan. 7 - Mo. (P#18) Denied. (Cratsley, J.), No.
sent 1/9/91.
Jan. 7 21 ~—s*~PIff’s. Notice of Appeal.

Jan. 10 22 ~=sW@PAff’s notice of appeal.

Jan. 16 ~ Notice to Justice John C. Cratsley of the
filing of a Notice of Appeal.

Jan. 16 - Notice of Service of Notice of Appeal
to: Mark F. Mahnken, Esquire of
Messrs. Driscoll, Gillespie & Stanton.

Feb. 4 23. Opp. of deft. to plff’s notice of appeal.
Feb. 6 24 ~—sWwPIff.’s_ notice of appeal.
Feb. 12 - ACTION TRANSFERRED ACCORD-

INGLY (SEE P#14B

| HEREBY ATTEST AND CERTIFY ON FEBRUARY 12,
1991 THAT THE FOREGOING DOCUMENT IS A
FULL TRUE AND CORRECT COPY OF THE
ORIGINAL ON FILE IN MY OFFICE, AND IN MY
LEGAL CUSTODY.
MICHAEL JOSEPH DONOVAN
CLERK/MAGISTRATE
SUFFOLK SUPERIOR CIVIL COURT
DEPARTMENT OF THE TRIAL COURT

BY: James J. O'Reilly
ASST. CLERK

FEB 13 1991
3-25-91 Defts motion to compel further answer to Expert
Mts. follow

3-25-91 Defts motion to compel supplementation of plffs
response to production of documents follow

4-8-91
4-26-91

5-7-91

10-9-91

3-2-92

6/16/97

6-23-97

App. 5

Piffs atty’s motion to withdraw filed

Both parties appearing PIff appearing Atty for PIff.
motion for leave to withdraw is heard and allowed!
The Court sets down Defts motion to compel PIff. to
further answer Mts #12 and Defts motion to compel
PIff to supplement production of documents to be
heard on May 24, 1991 Gino J.

Deft Anthony Lauria’s motion under Rule 37, B, 2,
B filed.

Reported Settled, “30 day NiSi order” for the
entry of Dismissal Judgment Entered. Whitman
Atty. Stuart Ravch notice of Lien filed.

5/16/97
A TRUE COPY ATTEST

/s/ Stuart F. Durant
ASSISTANT CLERK

plf (pro-se) and atty Flanagan for def appearing plf
motion to vacate dismissal is heard & reserved
(Bernstein J)

after reservation, plff's motion to vacate dismissal is
denied. Bernstein ].*

PLAINTIFF

6-27-97 BEING AGGRIEVED BY THE FINDING OR
DECISION OF THE COURT REQUESTS THAT THE
ACTION BE TRANSFERRED FOR DETERMINATION
BY THE SUPERIOR COURT. DOCKET AND PAPERS
TRANSMITTED TO SUPERIOR COURT THIS DAY,

6-30-97

*Italic is handwritten.

App. 6

COMMONWEALTH OF MASSACHUSETTS
BOSTON MUNICIPAL COURT

. SUFFOLK, ss CIVIL BUSINESS
No. T-41026

FRED DAVIS, PLAINTIFF
vs.

ANTHONY LAURIA,
DEFENDANT

eee eee ee ee”

PLAINTIFF’S MOTION FOR SCHEDULING
TRIAL DATE

Now comes the plaintiff, Fred Davis, in the above-
cited action and requests the Court to schedule a trial by
jury as soon as possible.

By,
/s/ Fred Davis
Fred Davis, Plaintiff

353 Bryant Street
Malden, Ma 02148

HEARING NOTICE

The hearing on the foregoing motion will be heard May
16, 1997, 9:00 A.M. at the Old Courthouse Room 394
Boston, Massachusetts.

CERTIFICATE OF SERVICE

I, certify that I mailed a true copy of Plaintiff's Motion
For Scheduling Trial Date and Hearing Notice to: Frank

App. 7

Pietrasik, Hanover Insurance Company 35 Braintree Hill
Office Park Suite 301 P.O. Box 9159, Braintree, MA 02184
Certified Mail: P 576 480 152.

Date 4-24-97 /s/ Fred Davis

App. 8

COMMONWEALTH OF MASSACHUSETTS
BOSTON MUNICIPAL COURT

SUFFOLK, ss CIVIL BUSINESS
No. T-41026

MOTION LIST MARKING

Place above action on the Motion-Assignment Motion list
for 6th day of June at 9:00A.M. at the Old Courthouse
Room 394 Boston, Massachusetts for hearing on the fol-
lowing motion:

PLAINTIFF’S MOTION TO REMOVE
DISMISSAL JUDGMENT

Such motion has been filed and notice given as required
by rule of Court.

/s/ Fred Davis Plaintiff

App. 9

COMMONWEALTH OF MASSACHUSETTS
BOSTON MUNICIPAL COURT

SUFFOLK, ss CIVIL BUSINESS
No. T-41026

FRED DAVIS, PLAINTIFF
VS.

ANTHONY LAURIA,
DEFENDANT

eee eee eee se”

PLAINTIFF’S MOTION TO REMOVE
DISMISSAL JUDGMENT

Now comes the plaintiff, Fred Davis, in the above-
cited action and requests the Court to remove dismissal
judgment as this action was not settled.

MEMORANDUM IN SUPPORT OF PLAINTIFF’S
MOTION TO REMOVE DISMISSAL JUDGMENT

May 7, 1997, the plaintiff filed with the Court Plain-
tiff’s Motion For Scheduling Trial Date and Plaintiff’s
Motion To Amend Complaint.

These motions were to be placed on the Motion List
to be heard on May 16, 1997.

However, when the plaintiff appeared in Court on
May 16, 1997, his motions were not on the Motion List.

The plaintiff inquired in the Clerk’s Office as to why
his motions were not on the Motion List.

App. 10

Plaintiff was informed that the case was settled.
This case has not been settled.

Therefore, the plaintiff requests the Court to remove
the dismissal Judgment, in order that the plaintiff can
move this action for trial.

Based on the foregoing the plaintiff requests the
Court to allow his motion.

By,

/s/ Fred Davis
Fred Davis, Plaintiff
353 Bryant Street
Malden, Ma 02148

HEARING NOTICE

The hearing on the foregoing motion will be heard June 6,
1997, at 9:00 A. M. at the Old Courthouse Room 394
Boston, Massachusetts.

CERTIFICATE OF SERVICE

I, certify that I mailed a true copy of Plaintiff’s Motion To
Remove Dismissal Judgment to: Frank Pietrasik, Hanover
Insurance Company 35 Braintree Hill Office Park Suite
301 P.O. Box 9159. Braintree, Ma 02184 Certified Mail No.
P 576 480 058.

DATE 5-7-97 /s/ Fred Davis

App. 11

Commonwealth of Massachusetts

Suffolk, ss. Boston Municipal
Court
No. T-41026

2 ee ot oe a

Fred Davis .

” : Order

Anthony Lauria .

5 ee oe

Plaintiff seeks to vacate a dismissal which entered in
the Boston Municipal Court on November 12, 1991. A
hearing on the motion was held on June 6, 1996.

The matter was previously scheduled for trial on
October 9, 1991 and was reported settled on that date.
Having been reported settled, an order entered on Octo-
ber 9, 1991 that the case was to be dismissed as to all
claims on November 12, 1991, unless the parties filed an
agreement for judgment before that date. Notice of this
order was sent to the parties on October 9, 1991. No
agreement for judgment was filed and the case was sub-
sequently dismissed.

Nearly six years has passed since the dismissal
entered. The plaintiff provides no excusable reason by
way of affidavit for the delay in bringing this matter
forward.

Accordingly, the motion is denied.

/s/ Patricia Bernstein

App. 12

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, ss. BOSTON MUNICIPAL
COURT
NO. T-41026

FRED DAVIS, .

PLAINTIFF .

VS. ;

ANTHONY LAURIA, *

DEFENDANT ‘

SOS EEE EEE EEE EEE EEE EEE EE ED

REQUEST FOR RETRANSFER BACK TO
THE SUPERIOR COURT

Now comes the plaintiff Fred Davis in the above-
cited action and aggrieved by the attached Court’s Order
request that this action be retransferred back to the Supe-
rior Court.

By,

/s/ Fred Davis
Fred Davis, Plaintiff
353 Bryant Street
Malden, Ma 02148

CERTIFICATE OF SERVICE

I certify that I mailed a true copy of the foregoing to:
Christopher P. Flanagan Stanton & Lang 200 Broadway
Suite 102 Lynnfield, Ma 0-1940 postage prepaid.

DATE 6-27-97 /s/ Fred Davis

App. 13

COMMONWEALTH OF MASSACHUSETTS

SUFFOLK, SS. SUPERIOR COURT
NO: SUCV90-00408C

FRED DAVIS,
Plaintiff
VS.

ANTHONY LAURIA,
Defendants

eee ee

DEFENDANT’S MOTION TO VACATE RETRANSFER
TO SUPERIOR COURT

Now comes the defendant, Anthony Lauria, and
hereby requests this court to vacate the July 7, 1997
retransfer of the above-captioned matter as the plaintiff’s
request for retransfer was untimely and the Boston
Municipal Court lacked the power to retransfer this mat-
ter beyond the statutory time period.

FACTS

This is an action arising out of a motor vehicle acci-
dent which allegedly occurred on February 11, 1987. The
plaintiff, Fred Davis (“Davis”) filed a complaint against
the defendant, Anthony Lauria (“Lauria”) in Suffolk
County Superior Court on or about January 18, 1990
(Exhibit A). This action was subsequently remanded to
the Boston Municipal Court on February 12, 1991.

(Exhibit B). The Boston Municipal court scheduled the
_ case for trial on October 9, 1991. The case was reported
settled to the Boston Municipal Court on October 9, 1991.
(Exhibit C). An order entered on October 9, 1991 that the

App. 14

case would be dismissed as to all claims on November 12,
1991, unless the parties filed an agreement for judgment.
(Exhibit C) Notice of this order was sent to the parties on
October 9, 1991. (Exhibit C). No agreement for judgment
was filed, therefore, the case was dismissed as of Novem-
ber 12, 1991.

On or about May 19, 1997, nearly six years after the
dismissal, Davis filed a Motion To Remove Dismissal
Judgment (Exhibit D). On June 23, 1997, the Boston
Municipal Court denied Davis’ motion, noting that the
case had been dismissed in November of 1991 and the
plaintiff had provided “no excusable reason” for the
delay in filing his motion.

On or about June 27, 1997, Davis filed his Request
For Retransfer Back To The Superior Court. (Exhibit E).
On or about July 7, 1997, this Court docketed the reac-
tivation of this matter. (Exhibit F).

LAW

MGL ch. 231 s 102C governs the retransfer of cases to
the Superior Court after a finding or a decision of the
District Court. A request for a retransfer “shall be filed
with the clerk of the district court within ten days after
notice of the finding or decision.” MGL ch. 231 s. 102C. If
Davis desired to seek a retransfer of the case to the
Superior Court, then he had ten days from notice of the
decision or finding of the Court which dismissed this
action. The papers of the Boston Municipal Court clearly
indicate that the Court’s decision to dismiss the plaintiff's
claim was made on October 9, 1991. The papers also show
that the plaintiff had notice of this order. According to

App. 15

MGL ch. 233 s. 102C, Davis had until October 19, 1991
within which to file his request. No such request for
retransfer was filed.

Arguably, the plaintiff could contend that the ten day
time period did not commence until November 12, 1991,
by which date the parties could have filed an agreement
for judgment. Assuming arguendo, that the Court adopts
this position, then the plaintiff would have had until
November 22, 1991 to file his request. Again, no such
request was filed.

On June 27, 1997, almost six years after the Court's
order of dismissal, Davis finally filed his request for
retransfer. Obviously, Davis is attempting to revive the
time within which to file a request for retransfer by filing
a groundless motion to remove the earlier dismissal sim-
ply to obtain a Court order, from which he could then
attempt to retransfer this claim.

The decision which terminated the case of Davis v.
Lauria was issued on October 9, 1991. The plaintiff can
not be allowed to create a new window of opportunity to
retransfer the case merely by filing a motion to remove
the dismissal, years beyond the statutory deadline for
such requests.

Given the fact that the plaintiff's 1997 request for
retransfer was untimely, the Boston Municipal Court had
no authority to order a retransfer and the judgment of
dismissal should not be disturbed. Griffin v. Powers, 1
Mass. App. 846, 301 N.E.2d 691 (1973).

In Powers, after a trial, the Court entered a finding for
the plaintiff on June 11, 1970. Judgment for the plaintiff

App. 16

entered on June 26, 1970. The defendant apparently never
received notice of the entry of judgment, therefore, he did
not timely file a request for retransfer to the Superior
Court within the ten day time period. Upon the defen-
dant’s motion, the Court allowed the defendant's request
to vacate the June 26, 1970 judgment as long as the
defendant posted a bond by December 4, 1970. The defen-
dant timely filed the required bond, therefore, effective
December 4, 1970, a new judgment for the plaintiff
entered. The defendant had ten days from December 4,
1970 to file bis request for retransfer, which he did not
file.

On January 27, 1972, the defendant filed his request
for a retransfer, which request was allowed. The plaintiff
thereafter moved to vacate the retransfer on the grounds
that it was not timely filed. The Appeals Court agreed,
holding that the District Court “had no authority, after
the ten days had elapsed, to order retransfer.” Id.

More recently, it has been confirmed that a District
Court has no authority to permit retransfer after the
expiration of the ten day time period. Barrett v. Lynn
Ladder & Scaffolding Co., Ind., 1994 Mass. App. Div. 217.

As is the case with the claim before the Court today,
Davis failed to file his request for transfer in a timely
fashion. Therefore, the District Court had no authority to
order the retransfer. To allow a party to escape the ten
day requirement by simply filing a motion five, ten or,
perhaps, twenty years later would defeat the purpose of
MGL ch. 233 s. 102C and litigation could never be consid-
ered final and completed.

App. 17

SUMMARY

Based upon the above, the defendant respectfully
requests that this Court vacate the Boston Municipal
Court’s retransfer order to this Court.

By defendant’s attorney,

George R. Suslak, Esquire
STANTON & LANG

200 Broadway, P.O. Box 1080
Lynnfield, MA 01940-2314
(617) 595-1440

BBO#: 541921

Dated:

App. 18

COMMONWEALTH OF MASSACHUSETTS
COUNTY OF SUFFOLK
THE SUPERIOR COURT

DOCKET # SUCV90-00408C

FRED DAVIS, Plaintiff

VS.

ANTHONY LAURIA,
Defendant

eee eee eee

PLAINTIFF’S MOTION IN OPPOSITION TO VACATE
RETRANSFER TO SUPERIOR COURT

Now comes the plaintiff, Fred Davis, in the above-
cited action and opposes the defendant’s Motion to
Vacate Retransfer to Superior Court as the defendant's
motion was done in bad faith, Defendant’s Motion does
not comply with Massachusetts Rules of Civil Procedure
and Mr. Suslak violated his Attorney’s Oath Massa-
chusetts General Law 221 section 38 by committing false-
hood to the Court. There are violations of deceptive
practices, Crimes against the disabled and Massachusetts
General Laws Chapter 19A § 14 “Financial Exploitation”.

MEMORANDUM IN SUPPORT OF PLAINTIFF’S
MOTION IN OPPOSITION TO VACATE RETRANSFER
TO SUPERIOR COURT

Pursuant to Massachusetts Rules of Civil Procedure
prior to filing a Motion the moving party must confer
with the party before filing a motion, however, this was

App. 19

not the case Mr. Suslak merely sent the motion to the
plaintiff without conferring with him, which is a violation
of the Massachusetts Rules of Civil Procedure and must
be stricken.

The defendant is acting in bad faith and his attorney
is violating his Attorney’s Oath which states in pertinent
part:

ATTORNEY’S OATH

“YOU SOLEMNLY SWEAR
THAT YOU WILL DO NO FALSEHOOD,
NOR CONSENT TO THE DOING OF ANY
IN COURT.”

June 6, 1997, the plaintiff appeared in the
Boston Municpal [sic] Court on Plaintiff's
Motion To Remove Dismissal Judgment, the
| Court denied the plaintiff’s motion and the

plaintiff filed a timely Motion to Retransfer to
the Superior Court and Plaintiff was notified of
that transfer on July 7, 1997.

Therefore, when Mr. Suslak informs the
Court that plaintiff's transfer is not timely he is
committing a falsehood to the Court.

Se

There is no evidence in the Court’s record
| that the case was settled by plaintiff’s attorney
Robert Abrams nor by the plaintiff Fred Davis.

The mere fact that there is an entry on the
docket sheet has no bearing on the case, since
there is no evidence to substantiate the action
was settled.

The defendant and his attorney are using
deceptive business practices and crimes against
the disabled to cheat the plaintiff out of monies.

App. 20

In addition plaintiff is an elderly person and
the defendant and his attorney is using “Finan-
cial Exploitation” to cheat the plaintiff from
monies which is a violation of Massachusetts
General Laws Chapter 19A § 14.

The bottom line is that the defendant and
his attorney are continuing to harass and hurt
the plaintiff as the plaintiff is disabled because
of the defendant.

Mr. Suslak in his motion page 1 as (Exhibit A). how-
ever, there is no Exhibit A affixed to his motion Page 1
(Exhibit B) page 1 (Exhibit C) page 2 (Exhibit D) page 2
(Exhibit E) page 2 (F) as previous stated none of these
Exhibits were furnished to the plaintiff. There is no Cer-
tificate of Service.

Therefore, the facts clearly reveal that Mr. Suslak is
not being honest and is hiding the true facts of the case.

Wherefore, the plaintiff moves the Court to deny the
defendant's motion and schedule this action before a jury
as soon as possible.

By,

Fred Davis, Plaintiff
353 Bryant Street
Malden, Ma 02148

CERTIFICATE OF SERVICE

I certify that I mailed a true copy of Plaintiff’s Motion In
Opposition to Vacate Retransfer To Superior Court and
Memorandum in Support to Plaintiff’s Motion In Opposi-
tion to Vacate Retransfer to Superior Court to: George
Suslak Stanton & Lang P.O. Box 1080 Lynnfield Woods

App. 21

Office Park 200 Broadway US Route 1 South Lynnfield,
Ma 01940-2314 certified Mail No. P 576 480 131 postage
prepaid.

7-23-97

App. 22
NOTIFY
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION
Notice sent 8-26-97 No. SUCV90-00408-C
FD-PRO-SE
MFM
CPF
STE
LA
FRED DAVIS,
Plaintiff
v.
ANTHONY LAURIA,
Defendant

COURT ORDER ON DEFENDANT’S MOTION
TO VACATE RETRANSFER TO SUPERIOR COURT

After consideration of defendant’s motion and plain-
tiff’s opposition, the defendant’s Motion to Vacate
Retransfer to Superior Court is ALLOWED. In this
court’s view, the Boston Municipal court had no authority
after they denied plaintiff’s motion to remove the 1991
dismissal of this case to then order it retransferred to the
Superior Court. The plaintiff’s right to obtain that
retransfer ended on November 22, 1991, i.e. ten days after
the case was dismissed in the Boston Municipal Court on
November 12, 1991.

The decisions of the Appellate Courts make it clear
that plaintiff cannot revive this old case by seeking
retransfer many years after it’s life ended, and the right

App. 23

to claim retransfer ran out, in the Boston Municipal
Court. See Griffin v. Powers, 1 Mass. App. 846, 301 N.E. 2d
691 (1973) and Barrett v. Lynn Ladder and Scaffolding Co.,
1994 Mass. App. Div. 217.

/s/ John C. Cratsley
John C. Cratsley
Justice of the Superior Court

DATED: August 22, 1997

App. 24

COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
97-P-2327

FRED DAVIS
VS.

ANTHONY LAURIA.

MEMORANDUM AND ORDER PURSUANT
TO RULE 1:28

The pro se plaintiff appeals from a Superior Court
order allowing the defendant’s motion to vacate an order
retransferring this matter from the Boston Municipal
Court. In essence, the plaintiff seeks to revive the under-
lying motor vehicle tort action which was reported set-
tled in 1991. For the reason, if no other, that principles of
res judicata preclude the plaintiff from asserting that
there was no settlement of this action by our decision in
Davis v. Hanover Ins. Co., 40 Mass. App. Ct. 1127 (1996),
cert. denied, 117 S. Ct. 685 (1997),) and thus that
retransfer to the Superior Court would be futile, we
affirm.

Order allowing motion to
vacate retransfer affirmed.

! In the earlier case, we affirmed a summary judgment for
the insurer on Davis’s complaint alleging breach of the
settlement agreement. The agreement is evidenced by a written
release dated September 20, 1991, which Davis executed,
purporting to release the present defendant and the insurer of
all claims by Davis arising out of the motor vehicle accident
giving rise to the instant action.

se Baise Bhi: steteaastalsa io Dadi Wilke wiaoaas

App. 25

By the Court (Greenberg,
Gillerman & Rapoza, JJ.)

/s/ Cris G. Micchia
Asst. Clerk

Entered: February 10, 1999

,

App. 26

COMMONWEALTH OF MASSACHUSETTS
SUPREME JUDICIAL COURT
SUFFOLK, SS
SIC NO.
AC NO. 97-P-2327
FRED DAVIS, APPELLANT'S
Appellant ) APPLICATION FOR

FURTHER APPELLATE
bi REVIEW
ANTHONY LAURIA

HANOVER INSURANCE

COMPANY,
Appellees

le

I. REQUEST FOR LEAVE TO OBTAIN FURTHER
APPELLATE REVIEW

For reasons set forth in this application, Fred Davis,
Appellant requests that the full Supreme Judicial Court
review the February 10, 1999, decision of the Appeals
Court in this matter.

II. STATEMENT OF PRIOR PROCEEDINGS

The plaintiff-appellant, Fred Davis is a senior citizen
residing at 353 Bryant Street Malden, Massachusetts.

Anthony Lauria, Hanover Insurance Company’s
insured, negligently operated a motor vehicle causing a
motor vehicle accident, in which Hanover Insurance
Company admits liability.

Wesresesimnieenenenieieiinssieniaiuiiiadaeanaiiiiidiiniacaaiiiiil

PAM ae de ck os arm

App. 27

The appellant received severe bodily injuries result-
ing in partial permanent disability because of this acci-
dent.

The appellant has been unable to work, due to the
accident, and has lost approximately $46,000.00, in wages,
which resulted in the loss of his employment.

In addition, there was excessive damage to the appel-
lant’s motor vehicle and large medical bills.

Appellant is unable to work and needs constant care.

The appellees committed crimes against the disabled
and violated Massachusetts General Laws Chapter 19A
§ 14, using “Financial Exploiation [sic]” to cheat the
appellant from monies due him.

Appellees have used means of fraud and lied to the
Appeals Court as their defense.

May 7, 1997, appellant filed his Motion For Schedul-
ing Trial Date (app. p. 5) and Plaintiff's Motion To Amend
Complaint (app. p. 6). these motions were to be placed on
the motion list to be heard on May 16, 1997, the appellees
did not oppose these motions (app. p. 4).

The appellant appeared in court on May 16, 1997,
however, his motions were not on the motion list.

The appellees did not appear in court for the sched-
uled hearing of these two motions.

The appellant inquired in the Clerk’s Office as to why
his motions were not on the motion list.

Appellant was informed that the case was settled,
however, that was not the truth.

ene ot ier Cee en ee eae eee

App. 28

The case was never settled and the docket sheet
clearly shows that fact, no notices were sent, nor is there
a name of an individual who reported it settled (app. p.
2), moreover, there is no document in the case file to
substantiate, the fact that the case was settled.

Appellant filed Motion To Remove Dismissal Judg-
ment (app. p. 10). There was no opposition from the
appellees (app. p. 9). The district court denied this
motion.

Appellant filed Request For Retransfer Back to the
Superior Court (app. p. 14).

Appellees filed Motion To Vacate Retransfer to the
Superior Court. Appellant filed his Motion in Opposition
To Vacate Retransfer to the Superior Court (app. p. 15).

Appellant filed Plaintiff’s Motion For Sanctions
Against George R. Suslak For Telling Falsehoods to the
Court (app. p. 19). Appellees opposition was not timely,
therefore was returned to the appellees.

The Superior Court allowed the defendants’ Motion
To Vacate Retransfer To the Superior Court (app. p. 22).

Appellant filed his Notice of Appeal.

The Appeals Court erred in its decision since it was
based solely on falsehoods it obtained from the appellees
along with statements of fraud.

Now the case is before this Honorable Court for
Application For Further Appellate Review.

Nieeeemeneeeeneeenieieeessititinesiiaeesiieaiaieaaiiaaasaal

eal a

ENS RAPE Te a dS es wee’

ab NPs ete Pa nS. Se Deal el tat

App. 29

III. FACTS

The appellees admit liability in this action.

The action was not settled and appellant, Davis has
not received one penny in this action.

Appellant was not notified that the action was settled
by the court SEE ATTACHED DOCKET ENTRY SHEET.

Appellant was a victim of violation of M.G.L 19A
Abuse of Elderly persons: “Financial Exploitation”.

The Appeals court erred in its decision, since their
decision was based solely on fraud, falsehoods and
obstruction of justice, which the appellees, their attorney
George R. Suslak furnished them.

Attorney George R. Suslak violated the Massa-
chusetts Canon Rules, and Attorney’s Oath.

IV. ISSUES PRESENTED TO SUPREME JUDICIAL
COURT

Appellant is requesting review of the Appeals
Court’s decision of February 10, 1999, based on Appel-
lant’s assertion the Appeal Court should have reversed
the decision of the Suffolk Superior Court.

The decision of the Appeals Court was based on
errors of law, unsupported evidence, fraud, falsehoods,
obstruction of justice and failure to address all issues that
were presented for review.

App. 30

V. ARGUMENT

A. APPEALS COURT ERRED IN LAW WHEN IT
STATED THAT CASE WAS SETTLED

The case was not settled. The fact is clearly substanti-
ated by evidence that there is no document in the court
file that states the case was settled. There were no notices
that were sent to the appellant, nor to any other party in
this action SEE ATTACHED DOCKET SHEET.

In addition, there is no name of the individual who
reported that the case was settled.

SEE GRIFFIN v. POWERS 301 N.E. 2d 691 the court
allowed petition to vacate judgment because of the failure
to receive notice of the original finding. Therefore, the
appellant’s Motion to Vacate Judgment should have been
allowed, because if there was a finding he should have
been notified.

Therefore, since the District Court denied appellant’s
motion it was appropriate for the District Court to trans-
fer back the action to the Superior Court.

B. THE ACTS AND PRACTICES OF THE APPEL-
LEE, HANOVER INSURANCE COMPANY
WERE UNFAIR DECEPTIVE WITHIN THE
MEANING OF M.G.L. CHAPTER 93A

Massachusetts General Law c. 176D § 3 § (9) f inser-
ted by St. 1972, c 543 § 1, provides that it is an unfair
claim settlement practice for an insurer to fail “to effectu-
ate prompt, fair and equitable settlements of claims in
which liability has become reasonably clear”. Massa-
chusetts General Law c. 93A, § 2 (a) (inserted by St. 1967

ee

App. 31

C. 813 § (1), covers such insurance practices in its prohibi-
tion of “unfair or deceptive acts or Practices in the con-
duct of any trade or commerce”. SEE DODD jy.
COMMERCIAL UNION INSURANCE COMPANY 353
Mass at 78 “provides for recovery of up to three but not
less than two times actual damages... . ”

Hanover Insurance Company admits to liability,
however, they are using means of fraud to inform the
court that the case has been settled.

Hanover Insurance Company shows no evidence of a

cancelled check that the case was settled, no cancelled

check that medical bills were paid, no cancelled check
that damage to the appellant’s motor vehicle was paid.

The bottom line is the case was not settled.

C. THE APPEALS COURT ERRED IN STATING
THERE WAS AN AGREEMENT EXECUTED

“BLACK’S LAW’S DICTIONARY “execute: “to
do, to follow out according to the terms to fulfil]
the purpose”.

The Appeals Court erred as an agreement was not
executed, here again, the Appeals Court took the word of
the appellees and their attorney George R. Suslak.

The appellees and their attorney George R. Suslak
have lied to the Court the case was never settled because
appellant was not paid.

Hanover Insurance Company have no evidence to
Show that agreement was executed, they have no evi-
dence of a cancelled check, no evidence that medical bills

App. 32

were paid, no evidence that damage to the appellant’s
motor vehicle was paid.

There is no evidence whatsoever, that appellant
received one penny from the appellees.

D. THE COURT ERRED IN NOT PLACING PUN-
ISHMENT AGAINST THE APPELLEES FOR
VIOLATION OF MASSACHUSETTS GEN-
ERAL LAWS CHAPTER 19A § 14 “FINANCIAL
EXPLOITATION” AGAINST AN ELDERLY
PERSON

Massachusetts General Laws Chapter 19A “Financial
Explitation”: “an act or omission by another person,
which causes a substantial monetary or property loss to
an elderly person, which gain would otherwise benefit
the elderly person”.

Appellant is an elderly person and is a victim of
Financial Exploitation by the appellees they have caused
the appellant a gross monetary and property loss which
gain would have benefit the appellant.

Their acts have caused the appellant a gross amount
of medical bills leaving him with a permanent partial
disability and is now unable to care for himself needing
constant care.

The Appellees have caused the appellant lost wages
in the amount of approximately $46,000.00, leaving him
unable to work.

The appellees have used a cover-up to hide these acts
by telling falsehoods to the court that the case has been
settled.

App. 33

E. THE APPEALS COURT ERRED IN NOT PLAC-
ING SANCTIONS AGAINST GEORGE R. SUS-
LAK FOR TELLING FALSEHOODS TO THE

COURT
Canon Rules 1 - Disciplinary Rules
DRI - 102 MISCONDUCT

(A) A lawyer shall not:

(4) Engage in conduct involving
dishonesty, fraud, deceit, or
misrepresentation.

(5) Engage in conduct that is

prejudicial to the administra-
tion of justice.

GENERAL LAWS 221 section 38 ATTORNEY’S
OATH

“You (name) solemnly swear that you will do no
falsehood, nor consent to the doing of any in court” So
help you GOD.

August 14, 1997, George R. Suslak engaged in con-
duct involving dishonesty, fraud, deceit, and misrepre-
sentation of the facts.

George R. Suslak made the following statement to the
Court: “In support thereof, the defendants state that this
action was settled years ago....” This statement is false
and Mr. Suslak was fully aware that this action has not
been settled.

George R. Suslak has not shown any creditable evi-
_ dence that the case was settled. He has not shown any

App. 34

cancelled check that appellant was paid for his injuries,
he has not shown any cancelled check that appellant’s
medical bills were paid, he has not shown any cancelled
check that appellant’s motor vehicle damages were paid.

The facts clearly reveal that Mr. Suslak has engaged
in conduct involving dishonesty, fraud, deceit, and mis-
representation. He has engaged in conduct that is preju- |
dical [sic] to the administration of justice, which is in
violation of the Canon Rules.

George R. Suslak has engaged in telling falsehoods to
the court, which is in violation also of the Attorney’s
Oath.

Based on the facts and evidence the Appeals Court
erred in not placing sanctions against George R. Suslak.

F. PUBLIC INTEREST IS INVOLVED

The public interest is in complete jeopardy, if the
courts are going to accept the word of individuals, who
are not telling the truth, without showing evidence that
individuals were paid. .

CONCLUSION

Appellant, Fred Davis, requests this Honorable Court
to remand the action to the Suffolk Superior Court for
trial before a jury, legal fees, costs and any other relief the
Honorable Court deems appropriate.

App. 35

RESPECTFULLY SUBMITTED

/s/ Fred Davis
Fred Davis, Appellant
P.O. Box 721
Everett, Ma 02149

NN ee ee

/

aaa iia

App. 36

Supreme Judicial Court for the
Commonwealth of Massachusetts
1412 Courthouse, Boston, Massachusetts 02108
(617) 557-1020

Christopher P. Flanagan, Esquire
Stanton & Lang

200 Broadway, P.O. Box 1080
Lynnfield, MA 01940

RE: Docket No. FAR-10421

FRED DAVIS
vs.

ANTHONY LAURIA

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that the above-captioned Applica-
tion for Further Appellate Review has been considered by
the Court and is denied.

Jean M. Kennett, Clerk
Dated: March 26, 1999

To: Fred Davis
Christopher P. Flanagan, Esquire

App. 37

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS. SUPERIOR COURT
NO: 93-00574

FRED DAVIS,

Plaintiff

VS.
HANOVER INSURANCE COMPANY,
Defendant

ee Ne eee ee me

MOTION OF DEFENDANT, HANOVER INSURANCE
COMPANY FOR SUMMARY JUDGMENT
UNDER M.R.C.P. 56

(Filed Sep. 24, 1993)

Now comes the defendant, Hanover Insurance Com-
pany and [] moves this Honorable Court pursuant to
Mass. R. Civ. P. Rule 56 (b) to enter summary judgment in
favor of the Counts I-IV of plaintiff’s Complaint as a
matter of law.

An Affidavit, Memorandum of Law and exhibits are
attached hereto.

App. 38

Defendant
By its attorney,

/s/ Mark F. Mahnken
Mark F. Mahnken
DRISCOLL, GILLESPIE
& STANTON
200 Broadway
P.O. Box 850
Lynnfield, Mass. 01940
(617) 596-2200
Dated: 8/25/93 BBO: #314-400

1/14/94 — After hearing and upon considering all submissions,
and the entire file, motion of Defendant, Hanover Insurance
Company for Summary Judgment is ALLOWED in its totality.
See: Defendant's memorandum affixed hereto

/s/ Thomas E. Connolly,
Isc"

*Italic was handwritten.

Renee

App. 39

COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT

95-P-1818
FRED DAVIS

vs.
HANOVER INSURANCE COMPANY.

MEMORANDUM AND ORDER PURSUANT
TO RULE 1:28

The judgment is affirmed substantially for the
reasons set forth in the brief of the defendant.

So ordered.

By the Court (Dreben, Gillerman
& Laurence, JJ.),

/s/ Nancy Turck Foley
Clerk

Entered: June 14, 1996.

App. 40

Supreme Judicial Court for the
Commonwealth of Massachusetts
1412 Courthouse,

Boston, Massachusetts 02108
(617)-557-1020

George R. Suslak, Esquire
Driscoll, Gillespie & Stanton
200 Broadway

PO Box 850

Lynnfield, MA 01940

RE: Docket No. FAR-08597

FRED DAVIS
VS.
HANOVER INSURANCE COMPANY

NOTICE OF DENIAL OF F.A.R. APPLICATION

Please take note that on July 24, 1996, the above-

captioned Application for Further Appellate Review was
denied.

Jean M. Kennett, Clerk
Dated: July 24, 1996

To: Fred Davis
George R. Suslak, Esquire

App. 41

SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D. C. 20543

January 6, 1997

Mr. George R. Suslak
Stanton & Lang

P.O. Box 1080
Lynnfield, MA 01940

Re: Fred Davis
v. Hanover Insurance Company
No. 96-640

Dear Mr. Suslak:

The Court today entered the following order in the
above entitled case:

The petition for a writ of certiorari is denied.

Sincerely,

/s/ William K. Suter
William K. Suter, Clerk

App. 42

SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D. C. 20543

February 18, 1997

Mr. George R. Suslak
Stanton & Lang

P.O. Box 1080
Lynnfield, MA 01940

Re: Fred Davis
v. Hanover Insurance Company
No. 96-640

Dear Mr. Suslak:

The Court today entered the following order in the
above entitled case:

The petition for rehearing is denied.

Sincerely,

/s/ William K. Suter
William K. Suter, Clerk

App. 43

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

FRED DAVIS,
Plaintiff,

vV. C.A. No. 95-cv-11837-

HANOVER INSURANCE
COMPANY, JOHN F.
O’BRIEN, Chairman of
the Board of Hanover
Insurance,

et Nee ee ee ee ee Nee Nee Nee ee Ne

Defendants.

MEMORANDUM AND ORDER
WOLF, DJ. May 17, 1996

On August 16, 1995, plaintiff Fred Davis filed this
action seeking injunctive and monetary relief stemming
from alleged violations of his state and federal constitu-
tional rights. On September 5, 1996, the defendants filed a
motion to dismiss the complaint. For the reasons stated
herein, this motion must be ALLOWED.

I. The Complaint

According to his complaint, Mr. Davis brought claims
of breach of contract and unfair trade Practices against
the defendants in Massachusetts Superior Court in 1993.
The defendants moved for summary judgment on all
counts of the plaintiff’s state court complaint. This
motion was subsequently allowed.

On January 21, 1994, plaintiff filed a notice of appeal
with the Superior Court. Since that time, plaintiff has

|

App. 44

filed five additional notices of appeal. According to the
complaint, the Superior Court “has knowingly and will-
fully refused to assemble the record and forward it to the
Massachusetts Court of Appeals.” Plaintiff asserts further
that “both Judge Thomas Connolly and the defendant’s
attorney will not allow the record to be assembled and go
to the Appeals Court because they don’t want this case to
go to the Massachusetts Appeals Court.” As a result of
these purported activities, plaintiff claims “[v]iolations of
State and Federal Constitutional Rights: Equal protection
of the law. Obstruction of justice.”

II. Analysis

Plaintiff has not stated a viable claim against the
defendants in this case. First, the complaint does not
identify any actions taken by the defendants which could
have caused the plaintiff harm, constitutional or other-
wise. The complaint speaks only of actions taken by the
Superior Court and the defendants’ lawyer.

Second, even if the complaint can be read to impli-
cate the defendants, the constitutional claims cannot sur-
vive. It is well-established that the Fourteenth Amend-
ment and the federal civil rights statute, 42 U.S.C. § 1983,
are implicated only by action taken under color of state
law. Flagg Brothers, Inc. v. Brooks, 436 U.S. 149, 156 (1978);
Lugar v. Edmondson Oil Co., 457 U.S 922 (1982). Defen-
dants in this case are private actors. See Edmondson v.
Leesville Concrete Co., 500 U.S. 614, 619 (1991) (“[w]ith a
few exceptions, such as the provisions of the Thirteenth
Amendment, constitutional guarantees of individual lib-
erty and equal protection do not apply to the actions of

Decne cesses tensa ahi aa arananseaneonnceed

App. 45

private entities.”) It is conceivable that plaintiff could
argue that the alleged actions of the defendants’ attorney
in “not allow[ing] the record to be assembled” are suffi-
ciently intertwined with state processes so as to consti-
tute the requisite state action. See, e.g., Edmondson, 500
U.S. at 618-28. Even so, this one-sentence allegation
against the defendants’ attorney is too vague and con-
clusory to allow this action to proceed under such a
theory.

To the extent that plaintiff brings this action under
the Massachusetts Civil Rights Act, M.G.L. ch. 12 § 111,
this claim must also be dismissed with prejudice.
Although the Massachusetts Civil Rights Act covers
purely private action, it requires some form of “threats,
intimidation, or coercion.” See M.G.L. ch. 12 § 11H. No
“threats, intimidation, or coercion” by any of the defen-
dants have been alleged in this case.

Finally, as an alternative ground for dismissing this
action, it is clear that the plaintiff has suffered no consti-
tutional injury by any failure of the Superior Court to
assemble his record for appeal. Mr. Davis currently has
no right to appeal the judgment against him in state
court. Under M.G.L. c. 231 § 113, a party can appeal only
a “final judgment of the Superior court... .” In the
Superior Court action, the defendants filed a counter-
claim against Davis, seeking various forms of injunctive
and declaratory relief. This counterclaim was not acted
upon by the superior court judge at the time he granted
summary judgment for the defendants on the plaintiff's
complaint. As a result, the judge’s decision on the sum-
mary judgment motion was not a “final judgment” under
- § 113. See Litton Business Telephone systems, Inc. v. Scwartz,

a

App. 46

9 Mass.App.Ct. 847 (1980) (dismissing appeal “because
the judgment entered . . . does not dispose of the counter-
claim of the individual defendants”); E.W. Foster Co. v.
McLaughlin, 7 Mass.App.Ct. 865 (1979) (“when there is an
adjudication of the claims of fewer than all the parties, no
judgment has yet been entered from which an appeal can
be taken.”) Accordingly, in the absence of a motion for
entry of a final judgment under Mass.R.Civ.P. 54(b) or a
petition for interlocutory relief under M.G.L. ch. 231
§ 118, plaintiff must await resolution of the defendants’ |
counterclaim before appealing the judgment against him.

Accordingly, for the foregoing reasons, the defen-
dants’ motion to dismiss is hereby ALLOWED.

/s/ Mark F. Wolf
UNITED STATES DISTRICT
JUDGE

App. 47

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 96-1650

FRED DAVIS,
Plaintiff, Appellant,

V.

HANOVER INSURANCE COMPANY, JOHN F. O’BRIEN,
CHAIRMAN OF THE BOARD OF HANOVER
INSURANCE COMPANY,

Defendants, Appellees.

JUDGMENT
Entered: October 11, 1996

This cause came on to be submitted on the briefs and
Original record on appeal from the United States District
Court for the District of Massachusetts.

Upon consideration whereof, it is now here ordered,
adjudged and decreed as follows: The judgment of the
district court is affirmed.

By The Court:
Clerk

[cc: Messrs. Davis & Suslak]

Per Curiam. As the record indicates, at the time the
instant case was filed in federal district court no judg-
ment had yet entered in state court on the counterclaim of
defendants/appellees. Since all claims had not been adju-
dicated, plaintiff/appellant had no right at that time to
appeal the judgment dismissing his action. See Litton

App. 48

Business Telephone Systems, Inc. v. Schwartz, 9 Mass. App.
Ct. 865, 865, 400 N.E.2d 281, 281 (1979) (dismissing appeal
“because the judgment entered . . . does not dispose of
the counterclaim”). Consequently, he suffered no injury
from the alleged failure of the state court to assemble his
record for appeal.

Affirmed.

App. 49

SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D. C. 20543

March 3, 1997

Mr. George R. Suslak
Stanton & Lang

P.O. Box 1080
Lynnfield, MA 01940

Re: Fred Davis
v. Hanover Insurance Company, et al.
No. 96-1074

Dear Mr. Suslak:

The Court today entered the following order in the
above entitled case:

The petition for a writ of certiorari is denied.

Sincerely,
/s/ William K. Suter
William K. Suter, Clerk

App. 50

SUPREME COURT OF THE UNITED STATES
OFFICE OF THE CLERK
WASHINGTON, D. C. 20543

April 14, 1997

Mr. George R. Suslak
Stanton & Lang

P.O. Box 1080
Lynnfield, MA 01940

Re: Fred Davis
v. Hanover Insurance Company, et al.
No. 96-1074

Dear Mr. Suslak:

The Court today entered the following order in the
above entitled case:

The petition for rehearing is denied.

Sincerely,
/s/ William K. Suter
William K. Suter, Clerk

App. 51

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS DEDHAM SUPERIOR
COURT
CIVIL BUSINESS
CIVIL ACTION NO.

97 01716

)

Fred Davis, Plaintiff )
VS.
Hanover Insurance )
Company, )
Defendant )

)

COMPLAINT
Parties

Plaintiff, Fred Davis P.O. Box 721 Everett, Ma 02149,
County of Middlesex.

Defendant, Hanover Insurance Company conducting
business at 35 Braintree Hill Park Braintree, Ma 02184,
County of Norfolk.

Facts
The defendant, Hanover Insurance Company engaged in
acts of unfair and deceptive business practices.

The defendant, Hanover Insurance Company engaged in
acts of Financial Exploitation of a senior citizen.

The defendant, Hanover Insurance Company engaged in
acts against the disabled.

App. 52

Cause of Action

The plaintiff, Fred Davis, is a senior citizen and par-
tially disabled.

The defendant, Hanover Insurance Company by
means of fraud, unfair, and deceptive business practices
swindled monies from the plaintiff.

The plaintiff issued a 30 day letter to the defendant
pursuant to Massachusetts General Laws c. 93A. There
was no response from the defendant.

As a direct and proximate result of the fraud, unfair
and deceptive acts by the defendant Hanover Insurance
Company, plaintiff suffered substantial losses of money
and pain and suffering, physical and emotional distress.

Defendant engaged in acts of Financial Exploitation
which caused a substantial monetary loss to the elderly
plaintiff which gain would have benefited the elderly
plaintiff thereby violating Massachusetts General Laws
19A section 14.

The defendants acts also violated the Crimes Against
the Disabled, by knowingly and wilfully swindling
monies from the disabled.

Plaintiff was discriminated against and taken advan-
tage of because of his disability.

Relief From The Court

WHEREFORE, the plaintiff requests the sum of
$500,000.00, plus triple damages. legal fees and costs

App. 53

pursuant to the Massachusetts General Laws chapter 93A
and any other relief the court deems appropriate.

/s/ Fred Davis
Fred Davis, Plaintiff
P.O. Box 721
Everett, Ma 02149
(617) 322 8223

App. 54

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, SS DEDHAM SUPERIOR COURT
Civil No. 97-01716

AAA EH

FRED DAVIS,

)

)

Plaintiff )

:
HANOVER INSURANCE COMPANY, ?
Defendant

5 a a ES

DEFENDANT’S MOTION TO DISMISS
PURSUANT TO RULE 12(B)(6)

AND
MOTION FOR SANCTIONS

Now comes the defendant, Hanover Insurance Com-
pany (hereinafter, “Hanover”), and moves this Honorable
Court to dismiss the entirety of the complaint of Fred
Davis (hereinafter, “Davis”), pursuant to Rule 12(b)(6) of
the Massachusetts Rules of Civil Procedure.

Hanover further moves that this Court impose sanc-
tions against Davis in the nature of an award of all of
Hanover’s expenses in defending this series of frivolous
suits; and in the nature of a temporary and then perma-
nent injunction restraining Davis from filing any further
suits against Hanover, its agents or employees or attor-
neys relating to the same or similar subject matter.

AND IN SUPPORT HEREOF, Hanover states as fol-
lows:

—_——e =

App. 55

1. This complaint should be dismissed on Principles
of res judicata (including both claim preclusion and issue
preclusion), all as argued in the accompanying Memoran-
dum of Law, the contents of which are incorporated
herein by reference;

2. Any Counts in Davis’ complaint purporting to
allege violations of M.G.L. c. 93A must be dismissed for
failure of Davis to prove the presentation of a 30-day
demand letter, which is required under the statute;

3. The sanctions being sought in this Motion are
entirely appropriate, all as argued in the accompanying
Memorandum, given the frivolous and vexatious nature
of Davis’ continuing complaints, all of which spring from
the same series of events and/or transactions.

Dated: 9/29/97 /s/ George R. Suslak

Attorney for Defendant

George R. Suslak, Esquire
BBO #541921

STANTON & LANG

200 Broadway, P.O. Box 1080

Lynnfield, MA 01940

(617) 595-1440

eT

App. 56

COMMONWEALTH OF MASSACHUSETTS

NORFOLK, ss. SUPERIOR COURT
CIVIL ACTION
_ NO. 97-01716

FRED DAVIS

VS.

HANOVER INSURANCE COMPANY

MEMORANDUM OF DECISION AND ORDER
ON DEFENDANT’S MOTION TO DISMISS AND
MOTION FOR SANCTIONS

INTRODUCTION

On January 20, 1998, this case was before the court
for hearing on the motion of the defendant, Hanover
Insurance Company (“Hanover”), to dismiss pursuant to
Mass. R. Civ. P. 12(b)(6) and for sanctions pursuant to
G.L. c. 231, § 6(f). In support of its motion, Hanover
argues that the complaint must be dismissed because the
plaintiff, Fred Davis (“Davis”), can prove no set of facts
in support of his claim which would entitle him to relief;
and thus, the complaint should be dismissed for failure to
state a claim.

In his opposition, Davis argues that Hanover’s
motion should be stricken because (1) it does not comply
with rule 9A and 9C; (2) it is brought in bad faith and
with actual intent to deceive and defraud the court; (3) it
is a continuing attempt to financially exploit him; (4) it is
brought with the intention to deprive him of his rights
under the United States and Massachusetts Constitutions;
and, (5) it is brought to hurt and harm him.

i i A

App. 57

For the reasons set forth below, the defendant's
motion to dismiss will be ALLOWED.

BACKGROUND

This matter stems from an automobile accident which
allegedly occurred on February 11, 1987.1 Taking the facts
in the light most favorable to Davis, they are as follows:
Davis is a partially disabled senior citizen residing in
Malden, Massachusetts. Hanover is an Insurance Com-
pany with an office in Braintree, Massachusetts.

On or about January 18, 1990, Davis filed a complaint
in the Suffolk Superior court against Anthony Lauria
(“Lauria”), the driver of a vehicle involved in the acci-
dent referred to above. At that time, Hanover was the
insurer for Lauria. On February 12, 1991, the matter was
remanded to the Boston Municipal Court (“BMC”) and a
trial was scheduled for October 9, 1991. On October 9,
1991, however, the case was reported settled and an order
entered that the case would be dismissed as to all claims
on November 12, 1991, unless the parties filed an agree-
ment for judgment. Because no agreement for judgment
was filed, the case was dismissed, as ordered, on Novem-
ber 12, 1991.

Sometime in 1991, however, a settlement was reached
between Davis and Hanover in the amount of $20,000.00.
Before the settlement was final, Davis’ previous lawyer in
this case, Stuart Ravech, served the parties with a notice

' For a complete understanding of this decision, the court
recites the lengthy procedural history gleaned from the record
in this case.

App. 58

of an attorney’s lien. As a result, Hanover insisted that
any settlement include the name of Stuart Ravech.

In 1993, Davis filed a lawsuit in Norfolk Superior
Court against Hanover to collect the entire $20,000.00
settlement amount. In that complaint Davis alleged that
Hanover breached its contract with him, engaged in
unfair and deceptive business practices within the mean-
ing of G.L. c. 93A, tried to cheat him out of money due to
him, and acted in a manner designed to harass, hurt and
harm him. At that time, Hanover again offered to pay
Davis the settlement amount of $20,000.00 subject to an
attorney’s lien filed by Stuart Ravech; and, filed a counter
claim against Davis seeking declaratory and injunctive
relief. Subsequently, Hanover filed a motion for summary
judgment. The motion was allowed in its totality.

Davis then attempted to appeal the matter to the
Massachusetts Appeals Court. However, the Superior
Court record could not be assembled because Hanover’s
counterclaim had not been resolved. Subsequently, Hano-
ver voluntarily dismissed its counterclaim. On June 14,
1996, the Appeals Court affirmed the judgment of the
Superior Court.

At that point, Davis sought further appellate review
by the Supreme Judicial Court, which was denied on July
24, 1996.

Next Davis filed a petition for writ of certiorari with
the United States Supreme Court, which was denied on
January 6, 1997. A motion for rehearing, was denied by
the United States Supreme Court on February 18, 1997.

App. 59

On August 16, 1996, and while his original action
was pending in the Norfolk Superior Court, Davis filed a
complaint against Hanover and its Chairman of the
Board, John F. O’Brien, in the United States District Court
for the District of Massachusetts. This complaint sought
injunctive and monetary relief stemming from alleged
violations of state and federal constitutional rights as a
result of Hanover’s insistence that Davis’ settlement was
subject to the attorney’s lien. On Hanover’s motion, the
U.S. District Court for the District of Massachusetts dis-
missed the complaint on May 17, 1996.

Davis then appealed the matter to the First Circuit
Court of Appeals. On October, 11, 1996, that court
affirmed the District Court judgment.

Davis next sought certiorari of the decision to the
United States Supreme Court, which was denied on
March 3, 1997. A motion for rehearing was subsequently
denied by that court.

On May 7, 1997, Davis filed a motion for scheduling a
trial date in the BMC with regard to the matter that was
dismissed by that court on November 12, 1996. The
motion was denied.

Subsequently Davis retransferred the matter to the
Suffolk Superior Court. On Hanover’s motion, that court
vacated the retransfer.

On September 8, 1997, Davis filed the instant com-
plaint in which he alleges that Hanover engaged in acts
of unfair and deceptive business practices within the
meaning of G.L. c. 93A, engaged in acts designed to

App. 60

financially exploit him, and engaged in acts against the
disabled in violation of G.L. c. 19A, § 14.

DISCUSSION

When evaluating the sufficiency of a complaint pur-
suant to Mass. R. Civ. P. 12 (b)(6), the court must accept as
true the well pleaded factual allegations of the complaint,
as well as any inferences which can be drawn therefrom
in the plaintiff’s favor. Fairney v. Savogran Co., 422 Mass.
469, 470 (1996); Eyal v. Helen Broadcasting Corp., 411 Mass.
426, 429 (1991) and cases cited. A complaint is not subject
to dismissal if it would support relief on any theory of
law. Whitinsville Plaza Inc. v. Kotseas, 378 Mass. 85, 89
(1979). All inferences should be drawn in the plaintiff’s
favor “so as to do substantial justice.” Ourfalian v. Aro
Mfg. Co., 31 Mass. App. Ct. 294, 296 (1991). Thus, “the
complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff
can prove no set of facts in support of his or her claim
which would entitle him or her to relief.” Nader v. Citron,
372 Mass. 96, 98 (1977).

After careful examination of the present complaint,
this court finds that the instant action is substantially
identical to the complaint brought by Davis, docket
#93-00575, on March 10, 1993. Thus, based on the doc-
trine of Res Judicata, the complaint must fail as to all
counts.

The doctrine of res judicata encompasses the doc-
trines of claim and issue preclusion. See Heacock v. Hea-
cock, 402 Mass. 21, 23 n.2 (1988). The applicable doctrine
in this case, the doctrine of claim preclusion, makes a

App. 61

valid, final judgment conclusive on the parties and their
privies, and bars further litigation of all matters that were
or should have been adjudicated in the action. See Heac-
ock, 402 Mass. at 23, citing, Franklin v. North Weymouth Co-
op Bank, 283 Mass. 275, 279-80 (1933), and cases cited.
This is so even though the claimant is prepared in a
second action to present different evidence or legal theo-
ries to support his claim, or seeks different remedies. See
Mackintosh v. Chambers 285 Mass. 594, 596-97 (1934) and
cases cited. Restatement (Second) of Judgments § 25
(1980). The claim is the same for res judicata purposes if it
is derived from the same transaction or series of con-
nected transactions. Saint Louis v, Baystate Med. Center,
Inc., 30 Mass. App. Ct. 393, 399 (1991), citing, Boyd v.
Jamaica Plain Co-op Bank, 7 Mass. App. Ct. 153, 163-64
(1979). The doctrine is a ramification of the policy consid-
erations 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 liti-
gate the matter fully in the first lawsuit. Foster v. Evans
384 Mass. 687, 696 (1981). It is settled that a summary
judgment entered, as was the one in the first action, will
have preclusive effect. Fluhr v. Allstate Ins. Co., 15 Mass.
App. Ct. 983, 984 (1983).

Clearly, the doctrine of res judicata, or claim preclu-
sion, applies here where both actions are based on the
same claim, the matter was decided on summary judg-
ment against Davis and he had the incentive and the
Opportunity to fully litigate the matter at that time.

The instant complaint describes the same claims
which were at the core of the first action, namely, that

App. 62

Hanover engaged in unfair and deceptive business prac-
tices within the meaning of G.L. c. 93A, and engaged in
acts designed to financially exploit him.

The claims that Hanover “violated crimes against the
disabled by knowingly and willfully swindling monies
from the disabled,” and that Davis was “discriminated
against and taken advantage of because of his disability,”
are both derived of the same transaction, namely, the
failure of Hanover to pay to Davis the entire $20,000.00
settlement amount without accounting for the attorney’s
lien. There is nothing in the instant complaint that Davis
did not bring, or could not have brought, in the previous
action. Thus, this court finds that Davis cannot now
resuscitate, before this court, a claim that he brought, or
could have brought, in the earlier proceedings in the
Norfolk Superior Court docket #93-00574. Indeed, “pub-
lic policy dictates that there be an end of litigation; that
those who have contested an issue shall be bound by the
result of the contest; and, that matters one [sic] tried shall
be considered forever settled as between the parties.” See
Wright Mach. Corp. v. Seaman-Andwall Corp., 364 Mass.
683, 688 (1974), quoting, Baldwin v. Iowa State Traveling
Men’s Ass'n, 283 U.S. 522, 525 (1931).

With regard to the motions of the plaintiff and the
defendant for sanctions, no sanctions will be imposed at
this time. However, the plaintiff has had full consider-
ation of his complaint. Should the plaintiff, Fred Davis,

- bring another duplicative complaint against this defen-
dant, Hanover Insurance Company, sanctions should be
considered at that time.

App. 63

ORDER

For the reasons stated above, it is hereby ORDERED
that the motion of the defendant, Hanover Insurance
Company, to dismiss be ALLOWED. The defendants
motion pursuant to GL. c. 231, § 6(f) for sanctions is
DENIED. The motion of the plaintiff, Fred Davis, for
sanctions is DENIED.

/s/ Gordon L. Doerfer
Gordon L. Doerfer
Justice of the Superior Court

A TRUE COPY

Attest: /s/ May A. Packer 3/13/98
Deputy Assistant Clerk

Dated: March 10, 1998.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0851%3A2. Public record. Not legal advice.