Commonwealth v. Morgan RV Resorts, LLC

• Decision Date: 09 July 2013
• Docket Number: No. 13–P–119.,13–P–119.
• Citation: 84 Mass.App.Ct. 1,992 N.E.2d 369
• Court: Appeals Court of Massachusetts
• Parties: COMMONWEALTH v. MORGAN RV RESORTS, LLC, & others (and five companion cases ).

84 Mass.App.Ct. 1

992 N.E.2d 369

COMMONWEALTH

v.MORGAN RV RESORTS, LLC, & others ¹ (and five companion cases ² ).

No. 13–P–119.

Appeals Court of Massachusetts, Suffolk.

Argued May 23, 2013.

Decided July 9, 2013.

Christa A. Arcos, Boston, (Scott D. Burke with her) for Carmel Gilberti.

Jonathan B. Engel, Assistant Attorney General (Mychii Snape, Assistant Attorney General, with him) for the Commonwealth.

Present: CYPHER, KAFKER, & SULLIVAN, JJ.

KAFKER, J.

The issue presented is whether a judge who sued her former law firm for unpaid compensation and lost should have recused herself from cases involving that firm, four years after the Supreme Judicial Court decided the case. Applying the two-part test set forth in Lena v. Commonwealth, 369 Mass. 571, 575, 340 N.E.2d 884 (1976), the judge concluded that she held no actual bias, and that no reasonable person would question her impartiality. We agree that there is no basis for recusal on the grounds of actual bias. However, given the protracted litigation, the judge's personal involvement in the lawsuit, the amount at stake, and the judge's inconsistent rulings on prior recusal motions, “an objective appraisal of whether this was ‘a proceeding in which [her] impartiality might reasonably be questioned’ ” compels the conclusion that recusal was warranted. Ibid., quoting from S.J.C. Rule 3:25, Canon 3(C)(1)(a), 359 Mass. 841 [84 Mass.App.Ct. 3]1972). Accordingly, we reverse the judge's orders denying recusal and remand these consolidated cases for further proceedings.

Background facts. The following facts are primarily drawn from the judge's findings and statements on the record, and are undisputed between the parties except where noted. The judge joined the firm now known as Morrison Mahoney LLP (Morrison) as an associate attorney in 1983, and became a partner in 1987. See Pierce v. Morrison Mahoney LLP, 452 Mass. 718, 720, 897 N.E.2d 562 (2008)( Pierce ). She left Morrison in 1998 to form a new firm, although she retained financial ties to Morrison for several years thereafter. She became a judge of the Superior Court in 1999.

In 2004, the judge and other former partners in Morrison sued Morrison over disputed partnership compensation.³ See id. at 723–724, 897 N.E.2d 562. While the Pierce litigation was pending, the judge personally placed a telephone call to the managing partner of Morrison, and asked him to settle her claim.⁴ At the time, both the judge and Morrison were represented by separate counsel. Morrison did not settle.

The trial judge in Pierce ruled in favor of the judge and the other plaintiffs, relying on precedent involving an earlier version of the Morrison partnership agreement. Ibid. See Pettingell v. Morrison, Mahoney & Miller, 426 Mass. 253, 256, 687 N.E.2d 1237 (1997). The Supreme Judicial Court, having granted direct appellate review, reversed and ordered entry of judgments in Morrison's favor. Pierce, supra at 724, 732, 897 N.E.2d 562. The amount of unpaid compensation initially claimed by the judge in Pierce was $70,585. Id. at 723 n. 12, 897 N.E.2d 562. With interest, the amount claimed exceeded $100,000 at the time of the Supreme Judicial Court's decision. See G.L. c. 231, § 6C.

The judge's prior practices concerning recusal.⁵ For about ten years after joiningthe bench, the judge recused herself from any matter in which Morrison represented a party, first due to her prior association with and financial ties to Morrison, and then due to the pendency of the Pierce litigation. For the first quarter of 2009, the judge was assigned to a criminal session and heard no cases involving Morrison.

In April and June, 2009, the judge held hearings in two cases in which a party was represented by Morrison. In the first, Desouza vs. McKenna, Essex Superior Ct., No. ESCV2006–1427 (Desouza), the judge stated on the record that she had been a partner at Morrison and then had been in litigation with Morrison, but that the “litigation is now over and it's been more than 10 years since I've left. I haven't had a financial arrangement with them in—it's got to be six or seven years anyway.” She then stated that she believed she could be fair and impartial and that no reasonable person would question her impartiality, and asked if either side wanted to be heard. Neither side objected. The judge did not mention the size or nature of her claim against Morrison, how recently the litigation had concluded, or her telephone call to the Morrison managing partner. However, other than the telephone call, these facts were described in the Supreme Judicial Court's decision. See Pierce, 452 Mass. at 718, 722–724 & n. 12, 732, 897 N.E.2d 562.

Similarly, in June, 2009, in Cataldo vs. Thomson Club, Inc., Essex Superior Ct., No. ESCV2007–2030 (Cataldo), the judge recognized the defendant's counsel, Scott D. Burke, as having been her partner at Morrison and made a recusal statement on the record. The judge noted that “for years after I left Morrison and was appointed I recused myself from anything, because initially I had a financial arrangement with the firm, which was terminated multiple years ago, and then I was in litigation with the firm, which was resolved or decided last year.” She stated, “I'm satisfied I can be fair and impartial.... I don't think anyone ... reasonably looking at it would think I'd have difficulty being fair and impartial,” and asked if any party wanted to be heard. Burke responded: “Your Honor, I had made an inquiry of the firm and the reaction I got was that you were not recusing yourself from cases involving [Morrison] because of the passage of time, and I'm comfortable with Your Honor hearing this case.” The judge asked whether “the firm expressed that they were comfortable with that, too?” Burke answered: “I did not specifically ask—I just asked whether people have had experiences with whether you've been recusing yourself, and the responses I received indicated no.” An associate of Burke also indicated he had no objection. The judge did not provide further details on the manner in which the Pierce litigation had been “resolved or decided,” ⁶ or raise the issue of her telephone call with the managing partner.

After the June, 2009, hearing in the Cataldo case, Burke felt “uncomfortable about being in a position to say yes in answer to” what he perceived as a “question [that] was a little bit loaded” concerningthe judge's impartiality, and he made further inquiries within the firm. Since that time, Morrison has regularly filed motions to disqualify the judge if the firm realizes that she would be assigned to hear one of its cases. The record appendix includes three such motions in October, 2009, and one in April, 2011, that the judge allowed. Then, between June, 2011, and May, 2012, the judge, without a disqualification motion from Morrison, informally sent cases and motions to other sessions in at least three cases involving Morrison without expressly recusing herself on the record.⁷ In another case in May, 2012, Morrisonmoved to disqualify the judge, and she sent the case to another session without ruling on the motion. The judge explained in October, 2012, that this was her routine practice: “More recently, for years, I've been sending [cases involving Morrison] to the next session. If I am going to recuse myself, I don't think I should be deciding a motion to disqualify typically without a hearing.”

The final case in which the judge recused herself was Cucinotti vs. Construction Mgmt. & Builders Inc., Suffolk Superior Ct., No. SUCV2009–05322 (Cucinotti). Morrison represented a defendant in that case from the beginning, so far as can be discerned from the docket. The judge ruled on a number of apparently unopposed discovery and scheduling motions between May, 2010, and October, 2011. On May 15, 2012, the day of a scheduled pretrial conference, Morrison filed an emergency motion to disqualify the judge; she sent the matter to another session without deciding the motion. However, on October 3, 2012, the judge allowed an assented-to scheduling motion, setting a pretrial conference for October 16, 2012. On October 15, 2012, Morrison filed a renewed motion to disqualify the judge, and on October 16, 2012, she endorsed the motion “I recuse” without further explanation, and again sent the matter to another session.

The instant cases. Two days later, on October 18, 2012, the judge held a hearing on a motion to disqualify in Commonwealth vs. Morgan RV Resorts, LLC, Suffolk Superior Ct., No. SUCV2011–03071 (Morgan), that was, apparently for the first time, opposed. Morgan was an action originally brought by the Commonwealth to remediate and enjoin alleged violations of G.L. c. 93A, § 2, by certain lessors of manufactured home sites. Another judge entered a preliminary injunction against the lessors in September, 2011. In November, 2011, the judge held that the lessors were not in compliance with the preliminary injunction. In February, 2012, the Commonwealth filed a complaint for contempt against the lessors. The judge held several hearings over the course of a few months, and the parties ultimately reached an agreement; consequently, in June, 2012, the judge entered a final judgment by consent of the parties (consent judgment). The lessors' attorney, Carmel Gilberti, was, according to the Commonwealth, bound by the consent judgment. ⁸

The Commonwealth, dissatisfied with the defendants' actions subsequent to the entry of the consent judgment, brought a second contempt complaint on August 24, 2012, this time naming not only the lessors as defendants but also Gilberti personally. Gilberti notified her professional liability insurer promptly but, because a contempt action brought by the Attorney General against an attorney “was not a typical matter,” the insurer took over a month to make a coverage determination.⁹ Morrison was on the insurer's preapproved panel of counsel, and Gilberti stated that she had recently had a positive experience...