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COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
SUFFOLK COUNTY NO. 2002-P-970
______________________________
ALPHONSE MOURAD, Pro Se,
Plaintiff/Appellant,
v.
WINTER HILL FEDERAL SAVINGS BANK,
SANDRA McGOLDRICK,
Defendants/Appellees
______________________________
ON APPEAL FROM A SUMMARY JUDGMENT
OF THE SUFFOLK SUPERIOR COURT
______________________________
BRIEF FOR ALPHONSE MOURAD
______________________________
STATEMENT OF ISSUE
I. Whether the Suffolk Superior Court (Kottmyer, J.)
properly granted summary judgment to Defendants Winter Hill
Federal Savings Bank and its President, Sandra McGoldrick, where
Mourad's unlitigated claims arising out of Winter Hill's role in
the bankruptcy reorganization of V & M Management, Inc., were
separate and independent of V & M's claims, were never decided
adversely to Mourad or essential to any adverse final judgment in
either the V & M bankruptcy proceeding or in Mourad's separate,
earlier (1997), and unsuccessful action seeking to enjoin Winter
Hill Bank's foreclosure on Mourad's private residential property,
and were not ripe or appropriate for litigation or determination
2
in Mourad's 1997 action against Winter Hill solely over his
personal residential loan and foreclosed mortgage, where the 1997
action was commenced before the bankruptcy court even confirmed
the Winter Hill backed joint reorganization plan that cost Mourad
his 15 year, $20 million investment.
STATEMENT OF CASE
On September 25, 2000, Alphonse Mourad,1 former President of
V & M Management, Inc., the owner of the Mandela Apartments in
Roxbury, sued Winter Hill Federal Savings Bank (hereinafter
Winter Hill), accusing Winter Hill of various misdeeds arising
out of Winter Hill's role in reorganizing V & M out of business,
based upon Winter Hill's earlier two mortgage loans of $2 million
and $800,000 on V & M's Roxbury property guaranteed by Mourad
(A. 403-407; 428-430) and Winter Hill's actionable efforts at
1 And V & M Management, Inc. However, only Mourad noticed his
appeal from the summary judgment (A. 615) and is the only
appellant in this appeal. Mourad understands, but questions the
judicially-created, non-constitutional Massachusetts rule that
only licensed attorneys can represent a corporation in Court,
Varney Enterprises Inc. v. WMF, Inc., 402 Mass. 79, 82 (1988);
Brattman v. Secretary of the Commonwealth, 421 Mass. 508, 511
(1995), especially a bankrupt Subchapter S corporation which
does not have all the advantages of standard corporations and
which cannot afford, or bear the financial burden of, hiring
counsel to appear in Court. The economics of litigation rather
than the "sound reasons" alluded to in Varney Enterprises, Inc.
v. WMF, Inc., supra, at 81, decide this issue of corporate
representation, and thus many small, non-well-heeled
corporations that cannot afford counsel go unrepresented, cannot
gain access to the Courts and cannot have their day in Court.
If there is no Massachusetts constitutional requirement that a
judge be a licensed member of the bar, Art. 29, why should the
rule be different for representatives of corporations? A
challenge to the questionable rule must await another day.
3
collecting on those loans in V & M's bankruptcy. Winter Hill was
the deciding vote supporting the Chapter 11 Trustee-backed joint
reorganization plan rather than the Mourad,2 Owens-backed plan
that offered Winter Hill 100% of their money ($3.7 million),
rather than the $1.65 million Winter Hill was to receive from the
Chapter 11 Trustee/Beacon Hill Residential Properties' plan
(A. 213). The reasons why Winter Hill was willing to take that
much less money forms the basis of the back room deals that cost
Mourad his fifteen year, $20 million investment and that form his
separate and unlitigated claims against Winter Hill. Winter Hill
was motivated not by money, but to deprive Mourad of any chance
to recover V & M's property.
Mourad's 15 page verified complaint (A. 4-18) raised
material questions about the validity of the corporate loans
Mourad guaranteed and how and why Winter Hill supported Trustee
Gray's joint reorganization plan, and how Winter Hill's deciding
vote harmed Mourad's personal fifteen year investment in V & M
Management, Inc., and Mourad's interests in seeing V & M
Management, Inc. escape bankruptcy protection.
Permissibly within 90 days of filing, and prior to service,
Mourad filed an Amended Verified Complaint and Jury Demand, with
2 The Mourad name attached to this alternative reorganization was
that of Elizabeth Mourad, not Alphonse Mourad; albeit Elizabeth
is Alphonse's adult daughter. Owens is a former Massachusetts
state legislator from Roxbury.
4
separately numbered paragraphs (M. R. Civ. P. 10(b))3 (A. 2, 23-
36).
Service was timely made, M. R. Civ. P. 4(j) (A. 2, 392,
394).
An Answer and Amended Answer were filed (A. 2-3, 37-51).
On September 27, 2001, a judgment of dismissal entered for
failure to prosecute (A. 3, 52-53) -- a judgment that Mourad
claimed entered without notice to him (A. 56-57).
Mourad quickly moved to set aside that dismissal (A. 3, 54-
55). The Court promptly scheduled a hearing for November 7, 2001
(A. 58). Winter Hill moved to strike Mourad's motion (A. 3, 59-
61). In its Opposition to Mourad's motion to set aside the
dismissal, Winter Hill also sought affirmative relief --
dismissal of Mourad's amended complaint if the Court were to
reinstate same. Winter Hill did not candidly disclose such
affirmative relief in the caption to the Motion (A. 68-87).
On November 7, 2001, the Court (Kottmyer, J.) conditionally
allowed Mourad's Motion for Relief from the Dismissal, on the
condition that the Court treat Winter Hill's Opposition as a
motion to dismiss, or, in the alternative, for summary judgment
(A. 3, 66). Response and reply dates and a new December 18, 2001
hearing date were set (A. 66-67).
On December 18, 2001, the Court (Kottmyer, J.) held a most
abbreviated, nonevidentiary hearing that runs but seven pages of
3 Mourad's unserved original complaint failed to number its
paragraphs (A. 4-18). The paragraphed Amended Complaint
replaced the unserved original complaint(A. 2, 23-36).
5
transcribed text (A. 576-587). No exhibits were received
(A. 579), and no testimony taken (A. 578). One question is
whether this is the type of "presumptive" hearing on summary
judgment mandated by Superior Court Rule 9A(c)(3), especially
against a pro se litigant, who, while bound by the same rules as
represented litigants, Mnoe v. Commonwealth, 393 Mass. 617, 620
(1985); International Fidelity Ins. Co. v. Wilson, 387 Mass. 841,
847 (1983); Kornatowski v. Family Mutual Savings Bank, 388 Mass.
1011 (1983), is entitled to "some leniency," Mnoe v.
Commonwealth, supra, at 620,4 and is held to a "less stringent
standard," Haines v. Kerner, 404 Mass. 519, 520 (1972).
The Court, in a March 5, 2002 dated Memorandum (A. 3, 603-
611), and a March 21, 2002 Judgment (A. 613-614), allowed summary
judgment dismissing the Complaint against Winter Hill and
McGoldrick (A. 3, 612). The Court dismissed McGoldrick because
no facts were alleged against her to support a cause of action
(A. 604, n.3). Yet, McGoldrick, President of Winter Hill, worked
for Winter Hill for thirty years, was in charge of V & M's
account, was aware of the worth of V & M's property and its
refinance value, and various commitments, and made the decision
(A. 25) to support Trustee Gray's plan and take $1.65 million
(A. 213, 399) rather than the $3.7 million offered by the Mourad,
4 Even though disapproving of the judicially adopted hearing
procedure allowing a pro se plaintiff to orally outline her
allegations in Mnoe v. Commonwealth, supra, at 619, on a motion
to dismiss, the Court has allowed a court considering summary
judgment to take and rely upon counsel's oral statements as
admissions, White v. Peabody Construction Co., Inc., 386 Mass.
121, 126 (1982).
6
Owens group to deprive Mourad of his investment and see Mourad
suffer the loss of fifteen years of his life.
Because the Court confuses the two related but distinct
doctrines of issue and claim preclusion -- a not uncommon problem5
-- the Court erred in allowing summary judgment dismissing
Mourad's separate and new claims against Winter Hill and
McGoldrick independent of the unrepresented claims of V & M
Management, Inc., on the basis of "issue preclusion" and "res
judicata" (A. 606-611). Mourad, not V & M, timely appealed
(A. 3, 615-616), M.R.A.P. 4(a), and timely docketed his appeal
with this Court, M.R.A.P. 10(a) (A. 617-618).
STATEMENT OF FACTS
In 1981, V & M Management, Inc.'s predecessor, Inge-Vasquez
Development Corp., acquired the 276 unit property then known as
Westminster-Willard, in Roxbury, MA, at a HUD foreclosure (A. 6,
25). In 1987, the property was renamed the Mandela Apartments,
after the imprisoned South African leader.
The City of Boston and HUD had determined that the Roxbury
property was taxable under G.L. c. 59, and not under G.L. c. 121A
(A. 25).
In 1983, Mourad, on behalf of V & M Management, Inc., went
to see mortgage broker Charles Andronica, of Belmont, about a $2
5 See Grella v. Salem Five Cents Savings Bank, 42 F.3d 26, 31
(1st Cir. 1994) (unclear whether lower [bankruptcy] court relied
upon claim or issue preclusion; lower court's decision refers to
claim preclusion, but its decision is based upon issue
preclusion analysis).
7
million loan to pay off V & M's HUD mortgage (A. 301, 303).
Andronica approached Winter Hill's President, Leroy Keihn
(A. 302).6 Keihn agreed to do the loan, but because the $2
million loan was $500,000 over Winter Hill's limit for an
original loan amount, Keihn arranged for Commonwealth Mortgage
Corp. to close the loan and then assign the mortgage and note to
Winter Hill (A. 301, 313-314). This arrangement guaranteed
Andronica his 4 points cash brokerage fee, and Winter Hill 2
points, plus 14.5% interest on the first loan (A. 29).
On January 30, 1984, Commonwealth Mortgage Corp. closed the
loan and immediately assigned the mortgage and note to Winter
Hill.
At this time of the loan, Winter Hill failed to:
1. investigate or determine the property's true tax
status -- G.L. c. 59 or c. 121A; or liability --
thus costing V & M $1.5 million in legal fees
fighting for proper tax classification (A. 30);
2. discharge liens or taxes due against the property
-- thus costing V & M $1.7 million in unpaid
liens;
3. follow standard lending procedures;
4. acknowledge restrictions, conditions, covenants,
terms and reservations in the deed from the Boston
Redevelopment Authority;
5. prepare an engineering, appraisal, or
environmental report or review, as required by
G.L. c. 21E;
6 Winter Hill's President, Leroy Keihn, who approved the two
loans totaling $2.8 million to V & M, was indicted and pled
guilty to fraudulently participating in a bank loans in
violation of 18 U.S.C. 1006 and was fined $25,000 (A. 372-
373).
8
6. review certified audits of HAP (Housing Assistance
Program) contracts for Sec. 8 rental subsidies;
7. exercise due diligence in approving and allowing
the loan to be consummated (A. 26-33).
On November 27, 1989, Winter Hill consolidated two other
loans and mortgages to V & M of $300,000 and $500,000
respectively into a second mortgage of $800,000, without
conducting a second title search (A. 26, 31, 325, 354), and
thereby subjecting V & M Management, Inc. to increased
Chapter 121A taxes (A. 32).
Alphonse Mourad, as President of V & M Management, Inc., was
required to and did personally guarantee these two loans totaling
$2.8 million (A. 34, 403-407, 428-430).
On January 8, 1996, V & M Management, Inc. was forced into
filing for Chapter 11 bankruptcy protection to protect itself and
its property from a scheduled foreclosure on a questionable third
mortgage held by L & N First Mortgage Realty and Mario Nicosia
(A. 33, 105). On April 2, 1996, Stephen Gray was appointed
V & M's Chapter 11 Trustee (A. 119) on the BRA's contested
motion, effectively removing Mourad from V & M's affairs.
During the course of V & M's bankruptcy, various
reorganization plans were submitted, including one by Winter Hill
(A. 459-482, 531-554). When the Bankruptcy Court rejected all
four of the submitted plans, including Winter Hill's (A. 153),
Winter Hill joined Trustee Gray and Beacon Residential Properties
and supported Trustee Gray's joint plan (A. 156), and not the
Mourad, Owens reorganization plan, which offered Winter Hill 100%
of its money ($3.7 million, versus the $1.65 million offered by
9
Trustee Gray's plan). Winter Hill was the deciding vote to shift
support to Gray's plan. Winter Hill did seek, and then waived,
relief from the bankruptcy stay (A. 154) and could have
foreclosed upon its mortgages, and received all its owed $3.7
million, as the property was worth between $7 and $12 million,7
and there were many suitors willing to bid the property,
including the original third mortgagor -- L & N First Mortgage
Realty and Nicosia. Four groups did submit substantial
reorganization plans and disclosure statements (A. 146-151).
By so joining with Trustee Gray and Beacon Residential
Properties, Winter Hill, as the only secured creditor, was the
decisive vote that caused Mourad to lose his fifteen year, $20
million investment in the Mandela Apartments (A. 156).
These are the actionable facts that support Mourad's claims
here.
During the Bankruptcy Court proceedings over V & M's
reorganization, and before any final plan was confirmed (A. 176),8
7 A February 15, 1996 appraisal valued "refurbished" Mandela
Apartments at $12 million (A. 436-437); an April 7, 1997
appraisal came in at $7.3 million (A. 441-442).
8 Even though the Bankruptcy Court initially confirmed the
Trustee's joint reorganization plan for V & M on September 26,
1997 (A. 176), that plan was attacked by a joint motion of
creditors seeking to have the confirmed reorganization plan
revoked on the basis that the Bankruptcy Court appointed Chapter
11 Trustee, Stephen Gray, was being simultaneously represented
by V & M's attorneys in the Rhode Island bankruptcy of American
Shipyard Corporation, and that V & M's attorneys, Harold Murphy
and Hanify & King, who represented V & M up to and at the
April 1, 1996 hearing on the BRA Motion to Have a Trustee
Appointed, had a conflict of interest and failed to disclose
their concurrent representation of Stephen P. Gray, in the Rhode
Island bankruptcy (A. 178) and V & M Management Inc. here.
10
on September 25, 1997, Mourad did sue Winter Hill Federal Savings
Bank in this Suffolk Superior Court, C.A. No. 97-5144A (A. 229,
94-102). This personal action sought to enjoin Winter Hill from
foreclosing a $150,000 mortgage taken on Mourad's personally
owned property located at 125-127 West Street, Hyde Park. Winter
Hill counterclaimed for its balance owed on the personal loan to
Mourad. Winter Hill did not counterclaim for the balance owed on
$2.8 million loans to V & M, guaranteed by Mourad.
State Court injunctive relief from the foreclosure having
been denied (A. 95, 230), Mourad filed a personal bankruptcy
petition, No. 97-19218-JNF, to stay the foreclosure (A. 230, 397-
401). Upon the dismissal of Mourad's personal bankruptcy
(A. 230), the question raised in the now unstayed State Superior
Court action was whether Winter Hill was required to republish
statutory notice of the foreclosure under G.L. c. 244, 14. The
Superior Court ruled otherwise (A. 94-102). In its ruling
affirming the judgment on appeal, Mourad v. Winter Hill Federal
Savings Bank, 55 Mass. App. Ct. 1109 (2002), the Appeals Court
agreed that Winter Hill followed the procedures for continuing a
foreclosure; was not required to republish after Mourad's
bankruptcy; and affirmed the deficiency judgment for Winter Hill
on its counterclaim. The Appeals Court's 1:28 affirmance is
reproduced in the Addendum to this brief.
Neither Gray nor Murphy disclosed their F. R. Bank. P.
2007(1)(b) required disclosed disinterested connections or
relationships in their verified disclosure statements (A. 485-
487).
11
Ultimately, the unsecured creditors' challenge to the
confirmed reorganization plan failed (A. 181-183), and Beacon
Residential Properties Limited took over ownership of the prime,
276 unit Roxbury property previously owned by V & M Management,
Inc. in December 1997 (A. 446-449).
ARGUMENT
I. THE SUFFOLK SUPERIOR COURT (KOTTMYER, J.) IMPROPERLY GRANTED
SUMMARY JUDGMENT TO DEFENDANTS WINTER HILL FEDERAL SAVINGS
BANK AND ITS PRESIDENT, SANDRA MCGOLDRICK, WHERE MOURAD'S
UNLITIGATED CLAIMS ARISING OUT OF WINTER HILL'S ROLE IN THE
BANKRUPTCY REORGANIZATION OF V & M MANAGEMENT, INC. WERE
SEPARATE AND INDEPENDENT OF V & M'S CLAIMS, WERE NEVER
DECIDED ADVERSELY TO MOURAD OR ESSENTIAL TO ANY ADVERSE
FINAL JUDGMENT IN EITHER THE V & M BANKRUPTCY PROCEEDING OR
IN MOURAD'S SEPARATE, EARLIER (1997), AND UNSUCCESSFUL
ACTION SEEKING TO ENJOIN WINTER HILL BANK'S FORECLOSURE ON
MOURAD'S PRIVATE RESIDENTIAL PROPERTY, AND WERE NOT RIPE OR
APPROPRIATE FOR LITIGAION OR DETERMINATION IN MOURAD'S 1997
ACTION AGAINST WINTER HILL SOLELY OVER HIS PERSONAL
RESIDENTIAL LOAN AND FORECLOSED MORTGAGE, WHERE MOURAD'S
1997 ACTION WAS COMMENCED BEFORE THE BANKRUPTCY COURT EVEN
CONFIRMED THE WINTER HILL-BACKED JOINT REORGANIZATION PLAN
THAT COST MOURAD HIS 15 YEAR, $20 MILLION INVESTMENT.
The Suffolk Superior Court (Kottmyer, J.) confused9 issue
preclusion (collateral estoppel) with claim preclusion (res
9 Our Massachusetts courts have not been models of clarity in
distinguishing the doctrines of res judicata and collateral
estoppel, or in keeping the doctrines separate. In Wright
Machine Corp. v. Seaman-Andwall Corp., 364 Mass. 683, 688 (1974),
the Court correctly defines the "doctrine of res judicata" as
barring the relitigation of the same claim in separate actions,
where a valid, final personal judgment adjudicated the matter.
But in Gidwani v. Wasserman, 373 Mass. 162, 168 (1977), the Court
identifies, at point 4 of its opinion, "Res judicata," but then
proceeds to apply an issue preclusion analysis to the issue (of
nonpayment of rent) as barring relitigation of that issue in the
subsequent action. This is collateral estoppel, or issue
preclusion, not res judicata. In Almeida v. The Travelers
12
Insurance Co., 383 Mass. 226, at n.1 (1981), the Court says that
"res judicata" has been replaced with the "more precise phrase,
"issue preclusion." Later, in the decision, the Court mistakenly
refers to the "essential elements necessary to preclude
litigation of an issue are identity of a cause of action and
issues, the same parties and a judgment on the merits by a court
of competent jurisdiction," citing Franklin v. North Weymouth
Coop Bank, 283 Mass. 275, 282 (1933). This is a res judicata.
But then, the Court, in Almeida, without transition, says that
"even if the causes of action are not identical, under the
doctrine of issue preclusion, as under the doctrine of collateral
estoppel [are they not the same?], the decision of the board is
conclusive as to previously litigated issues essential to the
decision," at 230. This is now collateral estoppel or issue
preclusion analysis. Yet, the Court concludes this paragraph by
jumping back to decide whether the Board of Appeals on Motor
Vehicle Policies and Bonds is a "court of competent jurisdiction"
-- a res judicata issue -- for purposes of having its decision be
given preclusive effect. The Court then concludes with a
collateral estoppel ruling that the Board's determination of
fifty percent or less fault is conclusive in subsequent
litigation.
In Aetna Casualty & Surety Co. v. Niziolek, 395 Mass. 737,
742 (1985), the Court correctly distinguishes "collateral
estoppel" -- more graphically known as "issue preclusion" -- with
the "related doctrine of res judicata -- "claim preclusion."
Then, in Heacock v. Heacock, 402 Mass. 21, 23, n.2 (1988), the
Court drops footnote 2 to "explain" its use of "terminology."
"'Res judicata'" is the generic term for various doctrines by
which a judgment in one action has a binding effect in another.
It comprises 'claim preclusion' and 'issue preclusion.' Claim
preclusion is the modern term for the doctrines traditionally
known as 'merger' or 'bar' and prohibits the maintenance of an
action based upon the same claim that was the subject of an
earlier action, between the same parties or their privies.
'Issue preclusion' is the modern term for the doctrine
traditionally known as 'collateral estoppel,' and prevents
relitigation of an issue determined in an earlier action where
the same issue arises in a later action based upon a different
claim..."
In Miles v. Aetna Casualty & Surety Co., 412 Mass. 425,
425, n.1 (1992), the Court observes that while the term "res
judicata" has been replaced in many cases, by the phrase "issue
preclusion," the Court uses the more traditional term. This
only adds to the confusion when the doctrine of "issue
preclusion" refers to collateral estoppel -- estopping or
13
judicata) and erroneously granted summary judgment to Winter Hill
on Mourad's separate, or new claims independent of V & M.
Under the Massachusetts rule that an unlicensed person
(Mourad) cannot represent a corporation (V & M Management, Inc.),
any issues that Mourad purportedly pressed in V & M's bankruptcy
proceedings were never adjudicated against Mourad, because
Mourad's lack of standing (A. 224) to represent V & M did not,
and could not, result in an adverse adjudication of those issues
against Mourad. That Mourad filed numerous, and unsuccessful,
motions in the Bankruptcy Court does not mean he ever obtained a
judicial determination on the merits of those issues after a full
and fair hearing or trial; the Bankruptcy Court repeatedly
thwarted Mourad's efforts under the Varney rule.
None of the documents or decisions10 appended to Winter
Hill's initial Opposition (A. 59-62), judicially converted
precluding a party from contesting an issue actually determined
in and essential to prior litigation. Then, to make matters
more confusing, in Fay v. Federal National Mortgage Association,
419 Mass. 782, 787-789 (1995), the Court discusses, but rejects,
"judicial estoppel" as barring a party's attempt to invoke
inconsistent positions in subsequent litigation, where that
party was not successful, but then goes on to apply collateral
estoppel to bar the relitigation of a forgery of a deed, at 789-
791. Lastly, and most recently, in Jarosz v. Palmer, 436 Mass.
526, 530, n.2 (2002), the Court reiterates its view that res
judicata combines both claim preclusion (also known as merger or
bar) and issue preclusion (also known as collateral estoppel).
It is time for the Courts to be consistent in its use of
terminology. Such consistency will reduce the confusion facing
lower courts in correctly applying these time-honored doctrines.
10 Exh. B November 30, 1999 Memorandum of Decision in Mourad v.
Winter Hill Federal Savings Bank, C.A. No. 97-5144A
(Sikora, J.) -- the 1997 foreclosure action, Exh. B
(A. 94-102).
14
summary judgment motion (A. 66)11 conclusively show that Mourad's,
as opposed to V & M's unappealed claims or issues -- were ever
Exh. C The V & M Bankruptcy Court 108 page docket sheet
(A. 104-211).
Exh. D The September 2, 1997 Memorandum of the Bankruptcy
Court (Kenner, C.J.) on Mourad's Motion to Compel
Winter Hill to Explain (A. 213-215).
Exh. E The September 17, 1997 Memorandum of the Bankruptcy
Court (Kenner, C.J.), on Motion of Gary Leroy, and
Mourad, Owens & Associates to Bar Winter Hill from
Voting on the Plans of Reorganization (A. 224-216).
Exh. F The September 26, 1997 Memorandum of Decision on
Motion of Gary Leroy and Mourad Owens, LLC to Estop
Claimants From Asserting Contradictory Positions
(A. 218-221).
Exh. G The September 22, 1997 Memorandum on Fees of Choate,
Hall & Stewart (A. 223-228).
Exh. H The April 7, 1999 Joint Pre-Trial Memorandum in Mourad
v. Winter Hill, C.A. No. 97-5144-A (A. 227-244).
Exh. I Mourad's Amended Notice of Appeal in C.A. No. 97-5144
(A. 246-247).
11 The Court's November 7, 2001 conversion (A. 66) of the
Defendants' opposition to the plaintiff's motion to set aside an
unnoticed dismissal into a summary judgment motion is not the
normal, regular, M. R. Civ. P. 12(b)(6) rule-provided conversion
of a motion to dismiss into a M. R. Civ. P. 56 summary judgment
motion, White v. Peabody Construction Co., Inc., 386 Mass. 121,
126 (1982) (treating defendant's motion to dismiss (on
limitations grounds) as one for summary judgment); Gamache v.
Mayor of North Adams, 17 Mass. App. Ct. 291, 294-296 (1983)
(assumed power to enter full summary judgment to a defendant,
provided the parties had sufficient notice of his intention to
do so, an opportunity to submit affidavits and a right to be
heard); Cf. Baldwin Crane & Equipment Corp. v. Riley Insurance
Agency, Inc., 44 Mass. App. Ct. 29, 32 (1997) (judge had
authority to grant full summary judgment sua sponte for the
defendants, when the only fully noticed motion was the
plaintiff's motion for summary judgment on one issue only). The
Defendants' Opposition Memorandum (A. 68-87) was not designated
a Cross-Motion to Dismiss, although the represented Defendants
did ask to treat their Opposition as a motion for judgment on
the pleadings or a motion for summary judgment. The Court sided
with the Defendants, and gave the plaintiff a month to respond
(November 7 until December 7, 2001, A. 66), only a tad longer
than the usually enlarged Rule 9A(a)(2)'s 21 day opposition
15
determined adversely to Mourad or deemed essential12 to an
adverse, final judgment against Mourad.
Because Mourad could not represent V & M in its (V & M's)
bankruptcy proceedings or in Superior Court, Winter Hill is
estopped to argue that those unrepresented, and undecided issues
period. The Court (undeservedly) gave more help to a
represented party than to the pro se plaintiff, and relieved the
Defendants of fully complying with Superior Court Rule 9A(5),
Cf. Viriyahiranpaiboon v. Dept. of State Police, 52 Mass. App.
Ct. 843, 845-846 (2001) (judge granted summary judgment against
pro se plaintiff without compliance with Rule 9A, judge may only
act on proper filings). This favorable-to-the-Defendants,
procedurally-deficient, judicial short-circuiting of Rule 9A(5)
may well have reflected the Court's pre-ordained decision to
grant summary judgment to Winter Hill before considering a
properly presented, and properly opposed, motion for summary
judgment, and may have led to the Court's error. There is a
reason for proper procedure. It promotes proper judicial
decision-making.
12 For collateral estoppel to apply, it must be established that
the finding or issue actually determined was "essential" to the
earlier judgment, Bannister v. Commonwealth, 411 Mass. 130, 131-
132 (1991) (record is silent as to the essentiality of the
finding); Cambria v. Jeffrey, 307 Mass. 49, 50 (1940) (an
unnecessary finding that had no effect on the judgment was not
res judicata); Home Owners Federal Sav. & Loan Assn. v.
Northwestern Fire & Marine Ins. Co., 354 Mass. 448, 455 (1968)
(nonparty's defensive use of collateral estoppel on a finding
essential to the earlier judgment); Rudow v. Fogel, 376 Mass.
587, 591 (1978) (determination must be litigated, and essential,
to the judgment; reason for requirement of essentiality is same
as why dictum is given less weight than holding); Fay v. Federal
National Mortgage Assn., 419 Mass. 782, 789-790 (1995)
(litigated and decided issue must be essential); Commissioner of
the Department of Employment & Training v. Dugan, 428 Mass. 138,
142 (1998) (deliberate misconduct finding identical and
essential); Jarosz v. Palmer, 436 Mass. 526, 532-533 (2002)
(requirement that issue be essential to the judgment means that
issue have a bearing on the determination of the case on the
merits, not merely essential to a determination of a narrow
issue). None of the findings here were ever deemed essential to
any Judgment.
16
or claims against Mourad could somehow be used against Mourad,
especially in Suffolk Superior Court, where Mourad is entitled to
litigated his (not V & M's) personal claims against Winter Hill.
It is only from Mourad's 1997 foreclosure action against
Winter Hill, and the Judgment that issued, do the doctrines of
issue or claim preclusion even arise. But no Judgment appears in
the Defendants' papers, as none follows Judge Sikora's
November 30, 1999 decision allowing summary judgment (A. 102).13
The 1997 action was limited to Winter Hill's effort to
foreclose on Mourad's mortgage on his personal residence, and the
bank's counterclaim for a deficiency, on the $150,000 loan, not
any unraised, unlitigated counterclaim on Mourad's personal
guarantees14 on the $2.8 million in loans given to V & M (A. 397-
401, 402-407, 428-430).
13 While it is true that a judge may take judicial notice of the
Court records in a related case, Jarosz v. Palmer, 436 Mass.
526, 530 (2002), Brookline v. Goldstein, 388 Mass. 443, 447
(1983), it is not clear that Judge Kottmyer here did so. And,
where Winter Hill had the burden of establishing, or at least
presenting, that February 15, 2000 Judgment in the 1997 action
to the attention of the Court hearing this action, and failed
to, Winter Hill should be estopped from arguing that Winter Hill
satisfied this element to show res judicata. Mourad's amended
appeal notice does identify the final February 15, 2000 dated
Judgment, as the one being appealed (A. 246).
14 Mourad's personal liability on the balance owed on the loans
to V & M -- less the $1.65 million Winter Hill received from the
confirmed joint plan -- arises from his distinct and independent
guarantee of the two notes, SKW Real Estate Ltd. Partnership v.
Gold, 428 Mass. 520, 523-524 (1998); Hurley v. Merowitz, 55
Mass. App. Ct. 920 (2002). If Winter Hill ever sued Mourad on
the guarantees, would not Mourad be able to successfully assert
a res judicata defense?
17
While Mourad's challenge to the foreclosure asserted a claim
of retaliation by Winter Hill against Mourad for Mourad's
opposition to Winter Hill's reorganization plan (A. 106, 237) --
an unessential ruling in the summary judgment decision -- the
essential issues raised in the Joint Pre-Trial Memorandum
(A. 241-242), the November 30, 1999 Memorandum of Decision
(Sikora, J.) (A. 94-102), and even this Appeals Court's
unpublished July 15, 2002 Rule 1:28 Memorandum,15 related to the
procedures for publishing, republishing (no), conducting and
continuing (by public pronouncement) a bankruptcy-stayed
foreclosure, and Mourad's claim that he was not obligated to pay
that personal note based upon Winter Hill's substantial ($2.8
million) loans to and dealings with V & M Management, Inc., and
Winter Hill's acceptance of V & M funds to pay Mourad's personal
mortgage (A. 234).
None of these personal issues or claims were, could, or have
been raised in V & M's bankruptcy proceedings.
Mourad's claim raised in this September 25, 2000 commenced
action related primarily to the harm to Mourad caused by Winter
Hill's opposition to the Mourad, Owens bankruptcy reorganization
plan and Winter Hill's joinder with Trustee Gray and Beacon
Residential Properties' confirmed plan (A. 25-26). In fact, this
action was filed -- September 25, 2000 (A. 1, 4) -- within the
three year period of the Bankruptcy Court's September 27, 1997
15 Appearing in this Appendix, 55 Mass. App. Ct. 1109 (2002).
18
(A. 176) confirmation of the Winter Hill supported, Trustee Gray
reorganization plan.
The Court's error in allowing summary judgment to Winter
Hill stems from its confusion between issue preclusion and claim
preclusion.
In its March 5, 2002 Memorandum of Decision (A. 604-611),
the Court first cites Heacock v. Heacock, 402 Mass. 21, 23 (1988)
for the doctrine of issue preclusion (A. 108). Yet, Heacock v.
Heacock, on p. 23, first discusses claim preclusion -- that "a
valid final judgment...bars further litigation on all matters
that were or should have been adjudicated in the action," at 23
(underlining added). The Court then goes on to rule that a
wife's tort action against her husband is not precluded by the
parties' divorce judgment.
The Court further concludes that the divorce judgment,
unaccompanied by any findings, did not resolve any issue relating
to the husband's alleged assault against his wife to warrant
issue preclusion, at 25. Heacock v. Heacock, supra, does not
help or support the Superior Court's ruling here. There is no
reasoned basis to conclude that Mourad's claims against Winter
Hill over Winter Hill's support of a bankruptcy reorganization
should have been joined with his action challenging Winter Hill's
foreclosure on his personal mortgage, where that action was
commenced (A. 95) before the Bankruptcy Court confirmed the
reorganization plan (A. 176).
Nor does the next cited case of Commissioner of the Dept. of
Employment & Training v. Dugan, 428 Mass. 138 (1998). A hearing
19
officer's judicially adopted factual findings finding a clerk
magistrate to have committed willful misconduct prejudicial to
the administration of justice warranting her removal precluded
that clerk from contesting her (mis)conduct to be eligible for
unemployment compensation.
Judge Sikora's November 30, 1999 Memorandum of Decision
allowed summary judgment in Mourad's 1997 action (A. 94-102). In
a summary judgment proceeding, a "judge does not properly 'make
findings,'" MacLean v. Delinsky, 407 Mass. 869, 878 (n.5) (1998).
If a judge does not properly make findings in a summary
judgment ruling, those unmade findings cannot be held against
Mourad in a subsequent action, Lawlor v. National Screen Service,
349 U.S. 322, 327 (1955) (Judgment unaccompanied by findings did
not bind parties).
It is worth repeating that the 1997 action dealt solely and
only with the $150,000 personal loan and mortgage foreclosure on
Mourad's personal residence -- not the $2.8 million corporate
loan to V & M guaranteed by Mourad, or the bankruptcy
reorganization.
Winter Hill did not counterclaim against Mourad for his
personal guarantee of that corporate loan in the 1997 action, and
Mourad, at the September 25, 1997 time he commenced the 1997
action (A. 95, 229), did not know for sure that the Bankruptcy
Court would necessarily confirm the Winter Hill supported joint
reorganization plan offered by Trustee Gray (A. 176), or reject
the as yet, October 31, 1997, unlodged, unsecured creditors'
challenge to that plan (A. 178). The Bankruptcy Court had not
20
yet ruled upon the reorganization plan, when Mourad commenced the
action to enjoin the foreclosure. The matters litigated in the
September 25, 1997 commenced action challenging the foreclosure
on a personal residence are not the matters and claims brought
forward in this September 25, 2000 commenced action over Winter
Hill's decisive role in the reorganization plan.
That Mourad may have pled certain common, undisputed,
historical facts or even made similar averments does not
establish or make out the defense of res judicata. "Pleadings
are not conclusive," Fassas v. First Bank & Trust Co., 353 Mass.
628, 630 (1968), a case cited by the Court, but not for this
principle.
"The effect of a former judgment...depends upon the essence
of the violation of legal right on which the pleadings are
founded," quoting Mackintosh v. Chambers, 285 Mass. 594, 597
(1934), in Fassas v. First Bank & Trust Co., supra, at 629.
The 1997 action grew out of Winter Hill's wrongful, tortious
and retaliatory foreclosure of the mortgage on Mourad's personal
property. This 2000 action grew out of Winter Hill's wrongful,
fraudulent and "tortuous" (sic) (A. 23) actions voting against
the Mourad, Owens reorganization plan giving Winter Hill 100% of
its money, and voting for Trustee Gray's joint plan, offering
Winter Hill only $1.65 out of $3.7 million, thus causing Mourad
to lose his fifteen year, $20 million investment in the Mandela
Apartments.
The Court's (Kottmyer, J.) March 5, 2002 ruling also
confuses the Bankruptcy Court judgments, or, more precisely,
21
rulings, with the final, appealed, February 15, 2000 Judgment in
the 1997 Suffolk Superior Court action.
First, the Court says there was a "final decision in the
bankruptcy action," (A. 608-609, Memorandum, 5-6), but does not
specify which decision is final, or which ruling is the final
judgment to which res judicata or collateral estoppel applies. In
bankruptcy, there are many court rulings on interlocutory motions
throughout the course of the proceedings, and these rulings or
orders may be deemed final unless an appeal is noticed within ten
days, F. R. Bank. P. 8002, 28 U.S.C. 158(a).16 But Mourad's
participation in V & M's bankruptcy was thwarted because he, as
an unlicensed attorney, could not represent the V & M corporation
or V & M's claims. As a debtor, V & M had corporate counsel --
first, Attorney Frank D. Kirby (A. 105, docket No. 3-1, endorsed
1/18/96), and then successor counsel, Attorney Harold Murphy and
Hanify & King (A. 108, docket No. 28, endorsed 2/9/96) -- up
16 While Bankruptcy Court rulings or orders on interlocutory
motions are appealable, F. R. Bank. P. 8002, 28 U.S.C. 158(a),
they are not necessarily final judgments, see F. R. Bank. P.
9021, for which res judicata or collateral estoppel would apply,
Tausevich v. Board of Appeals of Stoughton, 402 Mass. 146, 149
(1988) (no preclusive effect to an interlocutory order allowing
partial summary judgment; special circumstances needed to justify
issue preclusion on interlocutory orders); Cf. Jarosz v. Palmer,
436 Mass. 526, 533-534 (2002) (while issue preclusion may not
require a final judgment, an interlocutory order must be subject
to meaningful appellate review, and the likelihood of obtaining
interlocutory review is so limited so as not to allow the
invocation of issue preclusion on such interlocutory rulings).
And, where most Bankruptcy Court orders are the result of
nonevidentiary hearings based upon written submissions and oral
representations, there is little opportunity to litigate issues
or for the Court to render findings of fact to even allow
collateral estoppel to apply.
22
until the April 2, 1996 time Stephen Gray was appointed V & M's
Chapter 11 Trustee on (A. 19, docket No. 121). At that time,
V & M had no counsel, and its claims went unrepresented except by
Trustee Gray, who was certainly not in privy or agreement with
Mourad, who appealed the Bankruptcy Court's April 2, 1996
appointment of Gray as V & M's Chapter 11 Trustee (A. 121, docket
No. 142), and opposed his every move (A. 121-210). With Gray in,
Mourad was out, except as a V & M shareholder and late
administrative claimholder (A. 203, 597-601).
The Court (Kottmyer, J.) mistakenly focused upon the
Bankruptcy Court's rejection of Mourad's complaints about the
handling of Winter Hill's $2.8 million in loans to V & M,
guaranteed by Mourad, and erroneously says these issues have
already been litigated, and therefore Mourad is barred from
relitigating them, citing Miles v. Aetna Casualty & Surety Co.,
412 Mass. 424, 426-427 (1992), quoting Montana v. United States,
440 U.S. 147, 153 (1979).17
In Miles v. Aetna Casualty & Surety Co., supra, the Court
properly held that a plaintiff's action seeking to compel an
insurance company to submit to arbitration a claim of
underinsurance coverage was barred, because an earlier
arbitration matter afforded the plaintiff the opportunity to
arbitrate the plaintiff's personal injury damages.
17 The Court's (Kottmyer, J.) use of the year 1897 for the 1979
Montana decision is not a simple typo (A. 610); 1897 is the year
Southern Pacific R. Co. v. United States, 168 U.S. 1 (1897) was
decided. The Southern Pacific citation follows the Montana
citation in the Miles v. Aetna Casualty & Surety Co., opinion,
supra, at 427.
23
Here, Mourad's 1997 action sought injunctive relief against
a foreclosure of a mortgage on personal property, and, on claims
that Winter Hill accepted V & M corporate funds to pay Mourad's
personal mortgage.
Those issues or claims occurred prior to and are completely
unrelated to Mourad's claim here that Winter Hill harmed Mourad
and cost Mourad his investment in the Mandela Apartments by
Winter Hill's deciding support of the Trustee Gray's joint
reorganization plan -- a plan not confirmed (A. 176) until after
Mourad had already commenced the 1997 foreclosure-injunctive
action in Suffolk Superior Court, C.A. No. 97-5144 (A. 95).
As to the Court's adoption of Winter Hill's final argument,
the prior pendency of the 1997 action while Mourad commenced this
2000 action, Mourad notes that the February 15, 2000 Judgment
(from the 1997 action) was on appeal (A. 246), that the claims
seeking to be litigated grew out of different actions -- Winter
Hill's wrongful foreclosure v. Winter Hill's wrongful backing of
the Chapter 11 Trustee Gray's joint reorganization plan -- and
that where Winter Hill did not counterclaim for the balance due
on Mourad's guarantee of the two $2.8 million corporate loans to
V & M, Winter Hill itself recognized the different nature of the
claims such that M. R. Civ. P. 12(b)(9) is inapplicable, as the
different claims are not being split, Cf. Yentite v. Howland, 26
Mass. App. Ct. 714, 716 (1988); Keen v. Western New England
College, 23 Mass. App. Ct. 84, 86 (1986). Where the claims are
different, grew out of different transactions and seek different
relief, res judicata or prior actions have no applicability, even
24
if the judgment in the 1997 action was on appeal, Cf. O'Brien v.
Hanover Insurance Company, 427 Mass. 194, 201 (1998) (final
judgment on appeal may still have preclusive effect, if the other
requirements for preclusion are met).
CONCLUSION
The Suffolk Superior Court (Kottmyer, J.) erred in allowing
summary judgment to Winter Hill Federal Savings Bank and
McGoldrick in concluding that Mourad -- as opposed to the barred,
and unrepresented on appeal, V & M Management, Inc. -- is not
entitled to his jury day in Court on his 2000 action against
Winter Hill for its tortious and wrongful role in causing Mourad
to lose his investment in the Mandela Apartments to which he
devoted fifteen years of his life.
WHEREFORE, Alphonse Mourad respectfully requests that this
Court reverse the March 5, 2002 Memorandum of Decision and the
March 21, 2002 dated, March 22, 2002 entered on the docket,
Summary Judgment, and remand this action to be tried to a jury,
with a judge other than Judge Kottmyer presiding.
Respectfully submitted by,
ALPHONSE MOURAD
Alphonse Mourad, Pro Se
125 West Street
Hyde Park, MA 02136
October , 2002



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