Nancy Brothers v. Lipp, 2004 Mass. App. Div. 21 (Mass. App. Div. 2/17/2004)

Decision Date17 February 2004
PartiesNancy Brothers, and another<SMALL><SUP>1</SUP></SMALL> <I>v.</I> William A. Lipp, and another<SMALL><SUP>2</SUP></SMALL>
CourtMassachusetts Appellate Division

Present: Merrick, P.J., Coven & Greco, JJ.

Tort, Dogbite; Personal injuries; Property damage.

Practice, Civil, Dist./Mun. Cts. R. A. D. A., Rule 8C; Order of judgment against defendants for misconduct during trial.

Words, "Owner"; "Keeper."

Opinion dismissing defendants' appeal. Motion heard in the Dedham Division by Wexler, J.

Robert W. Crowley for the plaintiffs.

William A. Lipp and Lisa Nocco, pro se.

Merrick, P.J.

This is a G.L.c. 140, § 155 action to recover for personal injuries and property damage (injury to a dog) caused by a dog called "Pupling," of which the defendants are the alleged owner and keeper. The dispositive issue raised on this Dist./Mun. Cts. R. A. D. A., Rule 8C, appeal by the defendants is not one common to a "dog bite" case, but is instead the question of whether the trial judge abused his discretion in ordering a judgment against the defendants and plaintiffs-in-counterclaim for deliberate misconduct at trial.

The underlying dispute is uncomplicated. Defendants William Lipp ("Lipp") and Lisa Nocco ("Nocco") have no legal relationship, but live together in a house owned by Lipp at 54 Valley Road in Tewksbury, Massachusetts. On September 10, 1998, plaintiffs Nancy Brothers ("Nancy") and Patrick Brothers ("Patrick") were walking their two leashed dogs on Valley Road on the opposite side of the street from the defendants' residence. The dog "Pupling," described by the plaintiffs as a pit bull or a pit bull "mix" and by Nocco as a "shepherd mix," emerged from Lipp's property, came across the narrow road and attacked the plaintiffs' dog "Ginger." During the attack, Ginger sustained a serious bite wound which required surgery at a nearby animal hospital, and both Nancy and Patrick were also bitten by Pupling. Patrick Brothers was finally able to pull Pupling off his dog and somehow managed, "straddling" the animal and gripping its collar, to get Pupling back across the road to the defendants' home. It is undisputed that Nocco opened the door to Patrick and took Pupling inside. The principal factual disputes in the underlying case arose from Lipp's denial that he was the owner or keeper of the dog, and from the defendants' allegation that the plaintiffs sustained nothing more than superficial scratches in the attack.

The plaintiffs' complaint was filed in the Lowell District Court on January 22, 1999 in two counts for negligence and strict liability under G.L.c. 140, § 155.3 The plaintiffs obtained a Mass. R. Civ. P., Rule 4.1(f), real estate attachment against Lipp's property.4 Defendant Lipp filed an answer pro se denying he was the dog's owner or keeper and setting forth the following three counterclaims: (1) "Conspiracy to extort money," for the plaintiffs' allegedly false claim that he was the dog's owner or keeper, (2) "Perjury," for the plaintiffs' allegedly false description of the dog as a "pit bull" and (3) "Libel," for the plaintiffs' alleged "canvassing" of the neighborhood with a petition about the dog. Defendant Nocco, also pro se, filed a late answer on February 25, 1998 which the defendants have not included in the appendix.5

What followed in the Lowell court after the defendants' answers was a delay of more than two years resulting almost entirely from the defendants' unyielding efforts at every stage of the proceedings to postpone or prevent the adjudication of the plaintiffs' claim. The defendants began on April 20, 1999 by objecting to the plaintiffs' interrogatories and requests for documents based on little more than their own peculiar and immaterial speculation that Patrick Brothers did not fully agree with his wife about the lawsuit. The defendants thus demanded that Patrick personally provide them with an individual affidavit or statement of his account of the case and with his documentary evidence of damages before they would furnish any discovery materials.6 The defendants then refused to comply with a May 6, 1999 court order compelling their production of documents. They responded to the plaintiffs' subsequent Mass. R. Civ. P., Rule 33(a), request for a default judgment with a motion for dismissal of the case on the ground that the Lowell court was biased in favor of "municipal employees."7 Despite the plaintiffs' numerous motions and the court's order, the defendants did not begin to submit their discovery responses until August 18, 1999, and did not serve their first requests for discovery until the end of February, 2000.

The defendants next endeavored, unsuccessfully, to postpone both a February 28, 2000 case management conference and a May 3, 2000 pretrial conference, and to extend the discovery deadline. Their motions were denied, and a trial date was set for July 20, 2000. The defendants responded on June 21, 2000 by filing a motion for "judicial estoppel" and dismissal, improperly accusing both the plaintiffs and their counsel of fraud and deceit because they had made factual assertions in the pleadings with which the defendants simply disagreed.8 The motion was denied. The defendants also filed the first of their motions for a "change of venue" based on both scurrilous charges of misconduct against various Lowell judges and court personnel and the outlandish claim that they could not get a fair trial in any court in Middlesex County.9 The motion was denied. The trial date was then rescheduled from July 20, 2000 to November 2, 2000.

Although two subsequent motions to continue the second trial date were denied, trial was rescheduled to April 4, 2001 after the defendants were unable to go forward on November 2, 2000. On December 15, 2000, the court entered a specific order that no further continuances would be allowed and that the trial would proceed on April 4th. Yet just two weeks before this third trial date, on March 21, 2001, the defendants moved again for a "change of venue." That motion was denied on March 22, 2001. On March 28, 2001, the defendants attempted once more to prevent the April 4th trial by filing a motion "to appeal" and for a stay of proceedings. Spewing what had become their customary invective, the defendants demanded, inter alia, disbarment of the plaintiffs' attorney; perjury, extortion and fraud charges against Nancy Brothers; and, again, a "change of venue" because the Lowell court was "being run by gangsters" who were conspiring with the plaintiffs in their "frame up." On April 4, 2001, the Presiding Justice was finally able to accede to the defendants' request by transferring the case to the Dedham District Court upon order of the Regional Administrative Justice. See G.L.c. 218, §43A and District Court Department Administrative Regulation No. 2-97.

Upon receipt of the case, the Dedham District Court promptly issued an order for a May 30, 2001 trial. Eight days before trial, on May 22, 2001, the defendants moved unsuccessfully for a continuance.10 One day later, on May 23, 2001, they filed still another motion to extend the trial date.11 Their request was denied.

Trial was finally commenced on May 30, 2001 in the Dedham District Court civil jury session. Despite the three prior trial date continuances over the preceding 2½ years, the defendants argued that they were still not prepared for trial. They also requested a second pretrial conference. The trial judge proceeded, however, to empanel a jury. Immediately prior to doing so, the judge told the parties to submit a list of potential witnesses who would be called during trial. The judge made it clear that the purpose of the witness list was to enable him to query prospective jurors about any acquaintance with a witness to insure juror impartiality, and that once an impartial jury was seated, no witness would be permitted to testify who had not been identified on a witness list. Lipp stated that he would list the names of all defense witnesses even if they were not in the courtroom and would not be called. The judge cautioned that the jury might draw an adverse inference from any party's failure to call listed witnesses and that, in any event, the defendants would be unable during trial to refer to witnesses they were not going to call. Lipp remained adamant that the defendants would list all of their witnesses. The witness lists as submitted by the parties were ultimately read by the clerk without identifying the potential witness as plaintiffs' or defendants' to prevent unfavorable inferences by the jury.

Lipp next complained that the plaintiffs had referenced §159 as well as §155 of G.L.c. 140 in their complaint. After properly determining both that the plaintiffs had restricted their claim to §155 in their pretrial memorandum and that §159 was irrelevant because of the absence of any prior order against the dog, the judge ruled that the case would proceed solely under §155. Lipp continued to question the judge's ruling, forcing the judge to explain, for the first of many times during trial, the effect of a court ruling or order.

THE COURT. Sir, let me make it clear to you how this is going to work, because I don't want to have my having to say anything to you in front of the jury in any way which will affect what the jury thinks of you. Again, if I start to speak, sir, you'll have to become quiet.

LIPP. Mmm-hmm.

THE COURT. And once I've issued a ruling that is the ruling. You can ask me to reconsider a ruling, but if I say I've heard it, that is it, move on, you'll have to follow my order. We have an appeals court, this is all being transcribed, you'll have the right to take me up if you don't like any of my decisions. The Plaintiff will have the right to take me up, that's why we have appeals courts, because judges sometimes make errors. We try not to, but sometimes we do, but the rules are what I've said they are.

During empaneling, the judge became aware that Lipp had counterclaims,...

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