Monday, June 29, 2009

"Hangin' Judge Finucane" has a nice ring to it (Part VII)

'Twas a bit past noon when we emerged from our fruitless mediation session and returned to the courtroom. Not surprisingly, Middlesex County Clerk-Magistrate Michael J. Finucane was at lunch. The mediator went off to find him, and after a few minutes, he entered the courtroom, wiping a bit of mayo from his mouth as he ascended to the bench.

This was now the third time I'd sat before the Hon. Mr. Finucane to present my case, but the first time that someone had sat at the table opposite me. Our previous sessions had been much more enjoyable (for him as well, I suspect). The first order of business was the defendant's motion to remove the judgment of default. "You can object to this," the judge told me, "but unless you can show a good reason why the case should not be heard, I will probably have to allow it anyway."

I waved my hand dismissively. "I've got no objection," I said. "I'm happy to let the case be decided on its merits." Wasn't I cute? All that naivete and no place to go! (I have no theme music, so I can't properly set up the foreshadowing here, but remember this event--it'll come up again next post.)

That out of the way, it was time for each of us to present our sides. I went first, and I believe the two practices served me well; I was able to be pretty straight and to the point. ("Moved out. Waited 30 days. Didn't get deposit back. Want deposit. Also, please disembowel landlord. Thank you.")

Fred, on the other hand, seemed to think that the judge would be on his side against this punk kid. He started with his list of damages, showing how irresponsible we punk kids were with our drunken parties and careless showers and stampeding herds of water buffalo and all the other acts that he was sure were taking place at his apartment, all leading to this final $9,000 bill for--

"How much?" interrupted the magistrate.

"Over $9,000, your Honor," Fred said, throwing a smug glance at me.

"Well, the limit for Small Claims Court is $2,000," the judge replied. "If you want to submit this as a counterclaim, you'll either have to reduce the amount of your claim to that limit, or file this as a separate suit in civil court. You can do so downstairs in the Clerk's Office after we're done here, if you like."

The smugness disappeared. "Two...claim...civil...huh?" Fred argued glibly.

The Hon. Mr. Finucane repeated himself, speaking slowly and clearly, as one would to a small child, or perhaps an aquatic mammal. For whatever reason, Fred was unwilling to give up any of his fictional damages, so he withdrew his counterclaim--"For now," he said. Whatever. If Small Claims Court was the "simpler, faster process," I was pretty certain we'd exceed his life expectancy (only 35-40 years in captivity, according to long before he pushed anything through civil court.

Fred next pointed out that he no longer owned the property in question. The property and its accompanying security deposit had been transferred to a trust. Therefore, if we wanted our deposit back, we would have to sue the trust. Oh, and pay Fred for all this wasted time in court.

"A trust?" inquired the judge.

"Yes, your Honor, the Peachtree Trust," Fred replied, the smugness back.

"And are you the trustee?" asked the judge.

"Well...yes," Fred replied, less smugly.

"And are there any other trustees?" queried the judge.

"Yes, your Honor," Fred replied, only mildly smugly.

"And who are they?" pressed the judge.

" wife..." Fred replied, totally smug-free.

"I see."

There was a moment of silence. I was beginning to think that perhaps Fred's showing up this time would actually improve the odds of a judgment in our favor.

Fred's final argument was to point to the arbitration clause in the lease that we had signed, which clearly waived our right to a trial in the event of any dispute concerning the lease. For this one, I actually had to argue my case, and I can't tell you how happy I was that I had done all that homework back before the first trial. I mean, I spent entire semesters in college without doing the kind of research I'd done for this case. (Uh...just kidding, Mom and Dad!) Notes in hand, I fired back.

"First of all, this dispute has nothing to do with the lease. The lease is over and done with. This is about the security deposit that you've stolen after the lease ended. Second of all--" I flipped to page four of my notes "--according to Massachuessets General Law Chapter 186, Section 15F, 'Any provision of a lease or other rental agreement relating to residential real property whereby the tenant agrees to waive his right to trial by jury in any subsequent litigation with the landlord...shall be deemed to be against public policy and void'." I produced a printout of the passage I had just quoted and held it out to Fred. He didn't take it. My hand was shaking a bit from the adrenaline rush--was this how Vinny Gambini got started?--so I returned the paper to my pile.

"Well, you still did $9,000 worth of damages to that apartment." Fred cleverly replied. Apparently, he'd run out of new arguments for the day.

"Fred, the only legitimate charge in there is the cans in the basement, and you know it," I shot back.

"My son spent a whole day cleaning those!" he argued.

"Well maybe if you'd done something when we called and told you the basement was flooding, they wouldn't have gotten so dirty," I responded. (And yes, I know this sounds like a lost episode of 'Jerry Springer'.)

"You'll have to talk to God about that, not me," was Fred's retort.

"I did. He said you should replace the broken sump pump. And also something about 'Thou shalt not...' help me out here...rhymes with 'veal'..." This is what I wish I'd said, now that I've had several years to think about it. What I actually said was, "I did. He was busy."

Not quite as punchy, is it? In future versions of this story, I'll probably just go with the first line. I'm swearing anyone who's still paying attention to secrecy here and now.

Anyway, Middlesex County Clerk-Magistrate Michael J. Finucane chose this moment to step in, narrowly averting an outbreak of slap-fighting. "Alright, I think I've heard enough here to make a judgment," he said. "You'll receive your decision in a few days."

Huh? A few days? Where was the instant gratification? Where was the gavel banging "Guilty!" and the burly bailiff upending Fred and comically shaking money out of his pockets into my outstretched hands? I'd had visions of seizing his car that very day! And now I have to wait? Argh!

The next few days passed torturously did the following few...and the few after that. Why was it taking so long? Was the arbitration clause really valid? Was Fred doing something behind my back? Would he be laughing at me from the shady boughs of the Peachtree Trust?

Ten days I spent wondering these things, until that happy afternoon when the mailman brought me a letter from the Waltham District Court. Eagerly, I tore it open to read the words I'd longed to see:


And then, in much smaller print:

The defendant's reliance on the arbitration clause treated as affirmative defense.

I didn't know what that meant. I really didn't care. The clock was ticking once again, and Fred had 30 days to pay or we could start getting medieval on his butt. Sure, it had taken six months, but I like my justice, like my revenge, served ice-cold. I also like my lemonade that way, but that's neither here nor there.

"But wait!" you say. "In our judicial system, doesn't any party in a legal case who feels that it has been treated unfairly have the right to appeal that decision to a jury of their peers?"


One week later, this notice came in the mail:

"Please be advised that the above defendant has appealed the judgment that was rendered in small claims court in Waltham on 4/9/02. This appeal will be heard by a jury in Cambridge Court at a future date and time to be determined by that court."

A trial by jury?

Back to the Law & Order reruns...

Next post: Justice takes a commercial break

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