Complaint Review: RE/MAX EXECUTIVE REALTY

Lawyer, clients accuse
judge of misconduct
Jury awarded $1M
verdict that was later invalidated
 
Published: 2:56 am Fri,
February 25, 2011 2:56 am Fri, February 25, 2011
By David E. Frank
Massachusetts
Lawyers Weekly
 
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Kathryn Culley thought
the nightmare was finally over.
 
Seven years ago, Culley and her husband sank their life savings into a new home in Southborough. But unscrupulous realtors, developers and builders quickly turned their dream house into an unlivable money pit, they say.
 
At the end of a month-long trial last July, a Middlesex County jury awarded the Culleys $1.093 million in damages. And there was more good news on the horizon: A Chapter 93A claim pending before the court could triple the verdict.
 
Before the ink on the jury slip had dried, however, the couple was back to square one. Apparently displeased with the award, Superior Court Judge Thomas R. Murtagh announced that he would accept defense motions for judgment notwithstanding the verdict, which would strip the Culleys of their seven-figure victory.
 
A distraught Kathryn Culley, 47, broke down in the courtroom.
 
“When the judge said that, it felt like a punch in the stomach,” she recalls. “I just fell apart.”
 
The Culleys’ lawyer, Michael C. McLaughlin, was equally shocked.
 
When the 17-count jury slip was read aloud, McLaughlin says, the judge became visibly agitated.
 
“[Murtagh’s] face was red, and he was shaking his head, saying, ‘No,’” the Boston attorney says. “I’m 62 years old, and for the first time in my career I thought to myself, ‘Oh my God. What is going on?’”
 
‘That’s not justice’
 
Last December, Murtagh took the unusual step of invalidating a key portion of the jury’s verdict, concluding it went “against the weight of the evidence and was likely due to misapprehension, confusion or passion.”
 
The ruling has left the Culleys and their two teenage sons in such financial straits that the family has been forced to spend the winter living in the unheated Southborough house despite the fact that the Department of Public Safety deemed it unsafe and uninhabitable, they say.
 
“We’re literally putting pictures of our stuff on craigslist and e-Bay just to try to find some money to get by,” Kathryn Culley says. “We threw every penny we had saved up for 20 years into that house, and now after five years of hell it’s all gone because the judge didn’t like the decision.”
 
Nicole Jordan, an engineer who served as jury foreperson, says there was no question in the deliberation room that the Culleys had been duped into purchasing a structurally defective house.
 
“The defense had no defense,” Jordan says. “For [Murtagh] to write that our decision was based on passion or confusion is really upsetting and makes me angry. Our decision was based on the evidence.”
 
In fact, the jury — which included a doctor, an MIT professor and a school teacher — decided the evidence was so overwhelming that it found for the plaintiffs on all 17 questions, she says.
 
“I spent five very stressful weeks of my life on that trial and put my heart into making sure we arrived at the right result, which we did,” she says. “I thought it was all worth it, but now I don’t. That’s not justice.”
 
Citing the ongoing nature of the case, Murtagh declined requests for comment through a court spokeswoman.
 
‘An awful situation’
 
Today, the Culleys’ best hope for recovery is a long-shot bid alleging Murtagh committed judicial misconduct by failing to disclose a prior relationship he had with Johnson & Borenstein, the Andover firm that represented one of the defendants at trial.
 
Though the firm denies any improper relationship existed, the Culleys’ lawyer thinks otherwise.
 
In hundreds of pages of motions filed with both the Supreme Judicial Court and Superior Court, McLaughlin calls for Murtagh’s removal from the case. To date, the motions have been denied.
 
Although McLaughlin says the judge’s apparent lack of objectivity gnawed away at him during the trial, not until Murtagh granted the JNOV motion did he start looking into whether there was a basis for his qualms.
 
That’s when he discovered that Johnson & Borenstein, headed by Andover residents Mark B. Johnson and Donald F. Borenstein, represents the Andover Country Club. McLaughlin claims Murtagh, also an Andover resident, is a member of the club.
 
McLaughlin says the relationship gives the appearance of a “hometown advantage” and potential social-club inside edge for clients of Johnson & Borenstein.
 
“Many of the cases they have handled directly affect the use of the golf club by its members,” he says. “Where the judge is one of those members, it doesn’t take a genius to figure out where the conflict lies.”
 
McLaughlin says he also discovered, on Johnson & Borenstein’s website, that the firm successfully defended the Greater Boston YMCA in a 2006 Land Court dispute. During the pendency of that case, Murtagh was a member of the board of directors of the Greater Boston Y, according to McLaughlin, who learned that Johnson contributes financially to the YMCA
 
Records attached to McLaughlin’s court filings show that Murtagh also sat on the Y’s executive, nominating and financial committees, as well as the capital campaign cabinet, while he was in private practice at Boston’s Mintz Levin and after he joined the judiciary in 2004.
 
In a petition submitted to Murtagh last December, McLaughlin writes that the Code of Judicial Conduct bars judges from holding such positions when an entity is likely to be a party to litigation. It strains credulity, the petition states, that Murtagh would have been unaware of the pending Land Court lawsuit and the relationship between the YMCA and Johnson & Borenstein.
 
“It’s not our job to show an actual impropriety, which we believe we have,” McLaughlin says. “We merely must demonstrate an appearance of impropriety. And when you look at the whole picture and consider that the judge took this verdict away from [the Culleys] after being so contentious throughout the trial, it’s undeniable he should recuse himself.”
 
‘Six degrees of Kevin Bacon’
 
To succeed on such a motion, the law requires the moving party to show a judge demonstrated a bias or prejudice arising from an extrajudicial source, says Joseph F. Krowski, a Brockton lawyer who handled an SJC recusal case in 2004.
 
Based on McLaughlin’s allegations, Krowski believes the judge should have stepped aside in the Culley case.
 
“The appearance of impropriety sounds terrible,” he says. “The connections between [the judge and the law firm] don’t look good, and judges never set aside verdicts. I don’t think what happened in that trial passes the sniff test.”
 
But Johnson, the Andover defense attorney, says McLaughlin’s accusations are baseless.
 
He calls the assertions by the plaintiffs’ lawyer “coincidental” and “unrelated” and says McLaughlin is complaining simply because he is unhappy with the judge’s rulings.
 
In court filings, Johnson states that the information about Murtagh and his firm is publicly available and could have been discovered by McLaughlin at any time.
 
“Before someone makes claims like he’s making, there ought to be some sort of factual investigation,” he says. “I’m disappointed the case has come down to this.”
 
Johnson acknowledges that his firm successfully defended the right of the Greater Boston YMCA to utilize an easement for a summer camp, but says he was unaware Murtagh served on the Y’s board. And Johnson says he contributes to the Merrimack Valley YMCA, but doesn’t know if there’s a relationship between the Merrimack and Greater Boston branches.
 
Johnson also confirms that he and his firm represent the Andover Country Club, but again says he doesn’t know if the judge is a member.
 
“If an attorney who represents a country club cannot appear before someone who might be a member of a country club, I think that is new law,” he says.
 
Johnson adds that neither he nor Borenstein belong to the club and that McLaughlin’s claims are “a whole lot of nothing. It almost feels like he’s playing six degrees of Kevin Bacon.”
 
Christopher P. Maffucci of Casner & Edwards in Boston, who represented a co-defendant in the case, agrees.
 
“I’ve never seen a lawyer do this,” he says of McLaughlin. “What he’s doing is lacking in common decency and civility.”
 
McLaughlin shrugs off the criticism.
 
The solo says he has no intention of giving up on the Culleys, though his initial efforts to remove Murtagh have been unsuccessful. He filed a motion in December that sought to invalidate the judge’s post-trial rulings. Last month, Murtagh responded with an order requiring McLaughlin to file the motion in compliance with Superior Court Rule 9A. He has yet to do so.
 
And on Feb. 14, SJC Justice Margot G. Botsford denied his G.L.c. 211, §3 petition on grounds that the plaintiffs had other appellate avenues available.
 
McLaughlin says he’s weighing his legal options and is undecided on his next step.
 
“There’s no happiness whatsoever for any attorney who has believed in the system for as long as I have to have to do this,” McLaughlin says. “This is an awful situation for anyone to be put in by a judge. But what am I supposed to do? Disregard what I know in my soul is an appearance of impropriety?”
 
Meanwhile, the Culleys say they have no choice but to wait for their lawyer to make his next move. The house is un-sellable, and their credit score is so low that they can’t get a loan to move.
 
“It feels like there are no rules,” Kathryn Culley says. “I’m totally broken. We’ve lost everything. Unfortunately, this all feels like a big joke at our expense.”

Sidebar: JNOVs more exception than rule
 
Barry A. Guryan, a lawyer at Boston’s Epstein, Becker & Green in Boston, says it is extremely rare for judges to grant judgment notwithstanding the verdict, or JNOV, motions, particularly ones that gut much of a plaintiff’s case.
 
Guryan, who argued a seminal JNOV case before the Appeals Court in 2005, says judges can allow them only when no factual or legal basis exists for a verdict.
 
“There is a Seventh Amendment that guarantees a trial by jury, and the general rule is that judges cannot substitute their opinions for that of the jury.” he says. “When that doesn’t happen, it’s certainly something you take note of.”