Motion to Dismiss in Hills, Geoffrey vs. Berluti, Robert et al| Trellis.Law

On March 17, 2023 a Motion-Secondary was filed involving a dispute between Hills, Geoffrey, and Berluti Mclaughlin & Kutchin, Berluti, Robert, for Torts in the District Court of Suffolk County.

Preview
'
COMMONWEALTH OF MMASSACHUSETTS

SUFFOLK, ss. SUPPERIOR COURT DEPARMENT
CIVIL ACTION NO.: 2384CV00649-D

GEOFFREY O. HILLS,

Plaintiff,
w
oo aS
v =O
Fe
ox
in
Robert Berluti and Berluti , Re
23S
McLaughlin & Kutchin, sy
oo
3)
Defendants 2 7
S

PLAINTIFF’S MOTION TO SUPPLEMENT THE OPPOSITION TO DEFENDANTS’ ROBERT
BERLUTI AND BERLUTI, MCLAUGHLIN & KUTCHIN MOTION TO DISMISS
Memorandum Incorporated)

Plaintiff Geoffrey Hills hereby requests leave of the court to supplement his

opposition to the Defendants’ MOTION TO DISMISS, due to events occurring after the

date that his opposition was filed with the Court. As Hills had stated initially in his
.
complaint against the defendants, the complaint was entered as aparallel action to 18-

0997-A which the defendants had brought against Hills in 2018. On May 19, 2023, the

court entered its ruling on that parallel action, following a hearing held on May 10, 2023

which was scheduled after the Plaintiff had filed his opposition to the defendants’

motion to dismiss the above captioned action. (Ex. 38)? Where the rulings of the

parallel action are final and may impact the above captioned case, it is on advice of the

1The Defendants’ Motion to dismiss, along with the Plaintiff's Opposition to that motion, had
been filed on April 20, 2023.
court that Plaintiff Hills now files this motion to supplement his opposition to the

defendants’ motion to dismiss, and includes a copy of the court’s decision Civil Action

No. 18-0997-A herein included as Exhibit 38, and also hereby adds to the Plaintiff's pleas

that if the court deems it appropriate, sanctions be applied against the defendants

pursuant to Mass. R. Civ. P, 11; Mass. Rules of professional conduct 3.3 and GL c. 231, s.

6F cited by Plaintiff Hills in his complaint, and supported by the ruling in parallel action

18-0997-A,

The court order of May 19, 2023 {Civil Action No. 18-0997-A) supports Plaintiff

Hills’s claims and his Opposition to the motion to dismiss as follows:

1. That the court dismissed the complaint against Hills brought by Berluti in 2018

its entirety (Ex 38, pg. 5 Par 2);

that as Hills had asserted in his complaint, Berluti had falsely asserted a claim in

the amount $10,941.83 and that the undisputed facts prove Hills’s assertions (Ex

38, Pg. 5, Par.2 and Pg. 3, Par 1 lines 3 - 7);

that because Berluti was not a party in the proceedings of the action before the

court in Civ. Action No. 18-0997-A, the above captioned recently-filed case may

be the proper vehicle for litigating Hills’s claims alleging misconduct by Berluti or

his firm (Ex 38, Pg. 5 Par. 3)

4. that the court notes Hills’s allegations that Berluti concealed the relevant

meeting transcript or other matters and that the recently-revealed minutes

show the falsity of statements by Berluti and members of his firm (Ex. 38, Pg. 5

Par.3 lines 5-7);
5. that post-judgment relief against former counsel personally in the above

captioned action may also be appropriate at this point, since Hills has now

prevailed on the merits (Ex. 38, Pg. 5, Par 3 line 8 — Pg. 6 Line 1);

that no such claim exits against the current trustees, because they declined to

pursue the lawsuit that Berluti commenced (Ex. 38, Top of page 6); and

that (in contradiction to the Defendants’ statement on this issue in their Motion

to Dismiss) Hills had no liability to the Trustees or the Trust of 33 Brimmer Street

at the time that Berluti entered Action No. 18-0997-A against Hills. (Ex. 38, Pg. 6,

conclusion 2(b))?

For all of the above information and reasons, the Motion to Supplement Hills’s

opposition to the Defendant’s Motion to Dismiss, should be granted. Plaintiff Hills asks

that this honorable court grant this Motion to supplement his opposition, and that in the

interest of providing all relative facts, the Court’s ruling herein evidenced as Exhibit 38

be attached to file in the above captioned action,

Thank you,

ve. | L — 28 7623
Geoffre , Prose
214 Wianno Circle
Osterville, MA 02655

Tel: (508) 428-6988
Email: geoffotis@aol.com

2 In their Dismiss, the defendants falsely claimed that after the ruling of action # 15CV03200-A,
Hills had refused to pay his share. (Motion to Dismiss, pg.2, line 9)

3
Exhibit 38
PERT]
Nati
|1
|
COMMONWEALTH or MASSACHUSETTS

SUFFOLK, ss. SUPERIOR COURT DEPT
1 CIVIL ACTION NO. 18CV0997-A

MEMBERS OF THE BOARD OF TRUSTEES OF
33 BRIMMER STREET CONDOMINIUM TRUST,
Notice sent (5) Plaintiff,
5/18/2023 ¥.

(se) GEOFFREY 0. HILLS and TENANT; JOHN APPLETON
Defendants.

ORDER ON DEFEN, DANT GEOFEREY O. HILLS’
MOTION FOR SUMMARY JUDGMENT
es of 33 Brimmer
On March 23, 2018, the plaintiff, Members of the Board of Truste
t this case against Geoffrey O. Hills
Street Condominium Trust (“Plaintiff” or “Trustees) brough
assessments and other
(“Defendant” or “Hills”) for alleged unpaid common expenses, special
G.L. c. 183A, §§ 6(a)-(c) and c.
amounts andto establish and enforce a lien for those expenses.
declaratory judgment and
254, §§ 5 and 5A. Hills answered and asserted counterclaims for
addressed by the court’s Findings
money had and received. Because this case involves matters
18, 2017 (“Prior
of Fact, Conclusions of Law and Order for Judgment dated September
Condominium Trust v.
Judgment”) in Members of the Board of ‘Trustees. of 33 Brimmer Street
assigned to the undersigned.'
Hills , No. 1Sev3200-D (“2015 Case”), this case ivas specially
other judges of this court,
After various motions and other filings addressed to and by
trust — without replacement
including allowance of a motion to withdraw by counsel for the
Motion for Summary
counsel — Hills filed “Defendants’ and Plaintifis' in Counterclaim

: After due consideration of the request for
1 See Docket Entry no. 12: “ORDER FOR SPECIAL ASSIGNMENT that the Honorable Douglas H. Wilkins,
ORDE RED
special assignment, said request is ALL OWED. It is hereby
Associate Justice of the Superior Court, is sp ecially assigned to
hear the above-captioned case for all purpsoes. The
Civil Clerk's office will notivy all counsel of record.”
filed an opposition or otherwise
Judgment” (“Motion”) on July 25, 2022. The Trustees have not
e a letter from former trustee, Dana
appeared to defend against the Motion. The court did receiv
ey, who is not specially assigned to
Baiocco, dated July 8, 2022, addressed to Judge Elaine Buckl
Ms. Baiocco in her personal capacity for
this case. That letter objected to any recovery against
a trustee since 2018.
lack of personal jurisdiction and because she has not been
on May 10, 2023, No one
‘The court held an in-person hearing on the Motion at 12 noon

appeared at noon or, indeed, by 1PM. At2 PM that day, Hills appeared, spoke to the clerk and
else appeared at that time.
expressed confusion about the time for the hearing. No one
2023, after oral notice to all
Accordingly, the court conducted a zoom hearing on May 11,
as noticed, Trustees have waived
parties. By failing to oppose the Motion and failure to appear
56 and Superior Court Rule 9A.
their right to a hearing on the Motion under Mass. R civ. P.

After review of the oral written submissions, the Motions is ALLOWED.

BACKGROUND

in Hills’ Rule 9A()(5)
For purposes of the Motion only, the court adopts the facts stated
nt of facts, supplemented
statement of undisputed facts, which no one has opposed. That stateme

by the docket in this case, establish the following facts for purposes of the Motion:
of Unit C) was a
At the time the complaint in this case was filed, Dana Baiocco (owner
of Unit A). The court had
Trustee along with Caroline Tall (Owner of Unit B) and Hills (Owner
in the Prior Judgment in the
previously resolved a number of disputes between these three parties

2015 Case.
on April 1, 2018, and was
After the complaint in this case was filed, Tall sold her unit
On August 24, 2018, Baio eco sold her Unit. She, too
replaced as Trustee by the new owner.

resigned.
1

Berluti represented the
Prior to the sale of Tall’s and Baiocco’s units, Attomey Robert
authorization by Tall and Baiocco.
Trustees. He filed the complaint in this case, allegedly upon
Berluti and/or members of his firm made several
misstatements
During the month of April, 2018,
mortgage company, including a false
of fact for the purpose of garnishing payments from Hills’
in the process of foreclosing,
claim that he had a priority lien against Unit A which he was
payment in that amount, failing to
claiming that the priority amount was $10,941.83, receiving
to Hills’ Mortgage.
inform Hills of that demand and causing that amount to be added
) was appointed as counsel
On May 23, 2008, Marcus Errico Emmer and Brooks (MEEB
did not enter an appearance in this case.
for the 33 Brimmer Street Condominium Trust. MEEB

It advised the Trustees against continuing the case.
was “no requirement to vote
On September 28, 2018, Berluti wrote to MEEB: that there
tion suit was authorized by the then
“to continue’ a lawsuit. There is no contention that the Collec
to determine whether [Hills] may
majority of trustees when it was filed. It is left to your firm
the vote must de to instruct the
vote on whether to dismiss the suit against him. In any event,
ever been produced ....”
Trust attomey to voluntarily dismiss the lawsuit. No such vote has
nts’ motion to dismiss
On October 23, 2018, the court (Wilkins, J.) allowed the defenda
the other counterclaims.
counterclaims as to declaratory judgment and denied it as to
uing the lawsuit filed on behalf
Because no current Trustee consented to joining or contin
l on this case. On September 28, 2018,
of Trustees Baiocco and Tall, Berluti withdrew as counse

appear in this case on behalf of the
in a letter and series of emails, Berluti requested that MEED
trustees against continuing the suit, MEEB
Trustees. After reviewing the matter and advising the
l for the plaintiffs. On October 15,
responded that it was not making an appearance as counse
was withdrawn for the Trustees, but
2018, the docket reflects that Robert Berluti’s appearance
On November 9, 2018, the court
the requisite motion was not filed until November 5, 2018.
“provided. withdrawing counsel serve a
(Tochka, J.) allowed the motion for leave to withdraw
of successor counse! | within
30 days
copy of this order upon client. Client shall file appearance
thereafter.”
of this order.” No counsel entered an appearance for the Trustzes
motion of defendant Nationstar
On January 1, 2020, the court (Wilkins, J .) allowed the
ution. The motion was not opposed.
Mortgage LLC et al.’s motion to dismiss for lack of prosec
Supplement Answer and
On January 31, 2020, Hills filed a Motion to Amend and
(Wilkins, J.), the court denied that motion:
Counterclaim. By endorsement dated May 22, 2020
ded answer and
After review, denied for lack of jurisdiction. The propose d amen Those
counterclaim challenges actions of former unit o wners who are no longer trustees.
l controversy between
unit owners have no arguable personal liability. ‘There is no actua
had and received. The
Mr. Hills and them, nor are they personally liab! le for money
y with the 33 B: rimmer Street
proposed pleading does not state an actual controvers
Condominium Trust, as currently constituted.

DISCUSSION

to demonstrate that there is no
On summary judgment, the moving party has the burden
ed to a judgment as a matter of law.
genuine issue as to any material fact and that it is entitl
643 (1990). “All reasonable inferences drawn
Foley vy. Boston Hous. Auth., 407 Mass. 640,
ent ‘must be viewed in the light
from the material accompanying a motion for summary judgm
Safety Ing. Co., 41 Mass. App. Ct.
most favorable to the party opposing the motion. ” Ellis v,
& Webster Engr. Corp., 408 Mass. 108,
630, 632 (1996) (citations omitted). See Parent v. Stone
the plaintiff has no
112-113 (1990). The movant may also meet its burden by showing that

—
for the Trustees on July 1, 2019, but that appears
2 Confusingly, the docket reflects an appeacance of Robert Berluti withdrawal Lin November, 2018, consistent with
counsel since his
to be in error. Mr. Berluti has not, in fact, acted as
l for the condo miniu m trust. See endorsement o! f 6/24/22 on P #26.0 (Buckley,
the appointment of MEEB as counse
J).
4
of his case. Kourouvacilis
reasonable expectation of producing evidence on a necessary element

v. General Motors Corp., 410 Mass. 706, 716 (1991).
cute this case — presumably
It is beyond argument that the Trustees have failed to prose
and the new trustees have no desire
pecause the Trustees who authorized this suit have resigned
9, 2018, the Trustees decided not to
to prosecute it. In response to the court’s order of November
by December 9, 2018. See Varney
file an appearance of successor counsel within 30 days, i.e.
by an attorney). Four and
Ent, v. WMF Inc., 402 Mass 79 (1987) (Entity must be represented
n, there is no genuine dispute that the
one-half years later, without an opposition to the Motio
case. The court therefore dismisses the
Trustees have abandoned and forfeited the claims in this
Mass. R. Civ. P. 41(b)(2), (3)-
complaint in its entirety on the merits for failure to prosecute.
ed a lien on behalf of the
On the counterclaim, Hills asserts that Berluti falsely assert
The undisputed facts prove this assertion.
Condominium Trust in the amount of $ 10,941.83.

recor d at the Registry of Deeds.
Hills is entitled to expungement or dissolution of any lien on
his firm. Those claims do
ills’ other claims involve alleged misconduct by Berluti or
co have not been trustees for years
not run against the Trustees, particularly since Tall and Baioc
reports that he already has a pending
and have not been sued in their individual capacity. Hills
Ct. 2384cv00649-G. Since Berluti
lawsuit against Berluti. See Hills v. Berluti, Suffolk Superior
may be the proper vehicle for litigating
is not a party to this proceeding, that recently-filed action
tions that Berluti concealed the
those claims, if timely brought — the court notes Hills’ allega
recently-revealed minutes show the
relevant meeting transcript or other matters and that the
Of course, post-judgment relief against
falsity of statements by Berluti and members of his firm.
riate at this point, since Hills has now
former counsel personally in this action may also be approp
Mass. R. Civ. P. 113 Obviously, no such
prevailed on the merits. See G.L. c. 231, § OF and
ed to pursuit the lawsuit that
claim exists against the present Trustees, because they declin

Attorney Berluti commenced.
controversy involving the only
While the court concludes that the Hills have no actual

it would, in the alternative, dismiss the
defendant-in-counterclaim ~ie. the current Trustees —
the same reasons set forth in the 2017
counterclaims for monetary relief against the Trust for
On that issue, the court agrees with the reasoning 0: f Baio
cco’s July
Order, as clarified in 2018.

se of prior rulings and the phrasing of the
8, 2022 letter, as well as with her assertion that, becau
before the c ourt against the former
operative counterclaim, there is no counterclaim presently

trustees in their personal capacity.
CONCLUSION

For these reasons,

erclaim Motion for Summary
1 The court ALLOWS Defendants’ and Plaintiffs’ in Count
ES it IN PART as to the
Judgment as to the Complaint and ALLOWS it and DENI

counterclaims.

Final Judgment shall enter as follows:
the merits for failure of
a. The Plaintiff's Complaint is dismissed in its entirety on
of the Summary Judgment
the plaintiff to prosecute the case and upon allowance

Motion.
claim that Hills had no
b. Judgment on the counterclaims for Hills solely on the
ominium Trust as of the
liability to the Trustees or the 33 Brimmer Street Cond

riate disciplinary action." See
3 Rule 11 provid "willful violation” subjects the off ‘ending attorney "to approp
that a es es a finding that an attorney
("“[RJule fit (a) ] requir
Psy-Ed Corp, v. Klein, 62 Mass. App. Ct. 110, 113 (2004)
impose: 4"), The “appropriate disciplinary action" may
engaged in a ‘willful violation’ before sanctions may be [eClennen "ish, 41 Mass. App. Ct. at 143-144.
include the imposition of attomey's fees.
ev.

6
Notice sent
5/18/2023

(se)
time the counterclaims were asserted on May 21, 2018, and otherwise dismissing

count I for lack of an actual controversy and dismissing the other counterclaims

on the merits, without prejudice to any other claim Hills may have asserted or
ng
may in the future assert against former trust counsel or former Trustees, includi
against
but not limited to any claim under G.L. c. 231, § 6F or Mass. R. Civ. P. 11

former trust counsel.

3. The clerk shall issue a certificate, upon request, in a form proposed by Hills and approved

by the court, to be recorded in the Registry of Deeds, expunging or discharging any lien
this
asserted by the 33 Brimmer Street Condominium Trust by reason of the complaint in

lawsuit.

/s/ Douglas H. Wilkins
Dated: May 18, 2023 Douglas H. Wilkins,
Associate Justice

cl ERTIFYON
-__, THAT THE
UMENT IS A FULL,
TRUE AND CORRECT COPY OF THE
ORIGINALON FILE IN MY OFFICE,
AND IN MY LEGAL CUSTODY.
John E. Powers, It
Acting Clerk Magistrate
SUFFOLK SUPERIOR CIVIL COURT
DEPARTMENT OF THE TRIAL COURT

ot lat eS pet
Certificate of Compliance with Rule 94

|, Geoffrey O. Hills, hereby certify that to the best of my knowledge, the within

Motion to Supplement the Opposition to Defendants’ Robert Berluti and Berluti

McLaughlin & Kutchin Motion to Dismiss complies with Civ. Rules of procedure Rule 9A.

Thank you,

fakes 28 2023
Geoffrey ills, rose
214 Wianno Circle
Osterville, MA 02655
Tel: (617) 304-4923
Email: geoffotis@aol.com
~
i'

CERTIFICATE OF SERVICE

|, Geoffrey O. Hills, hereby certify that on July 14, 2023, | served a true copy of the within

PLAINTIFF’S MOTION TO SUPLEMENT THE OPPOSITION TO DEFENDANTS’ ROBERT BERLUT! AND

BERLUT!, MCLAUGHLIN & KUTCHIN MOTION TO DISMISS by first class mail to the following:

Christopher J. Davidson
Berluti, Mclaughlin & Kutchin
44 School Street
Boston, MA 02108

Paste, 0.10. . iy 2B 202 >
CERTIFICATE OF NO OPPOSITION

/ |, Geoffrey O. Hills, hereby certify that | have received no opposition from the opposing

party to the within MOTION TO SUPPLEMENT THE OPPOSITION TO DEFENDANT’ MOTION TO

DISMISS, served on July 14, 2023.

Respectfully submitted,

\ Z, 223
Datel
Geoffrey O. Hills Pro se
214 Wianno Circle
Osterville, MA 02655
Tel.:(508) 428-6988
geoffotis@aol.com

toes
CERTIFICATE OF COMPLIANCE W1ITH RULE 9C

|, Geoffrey O. Hills, hereby certify that that the conference required by Rule 9C was not

held despite my efforts to initiate the conference with counsel for the defendants, including the

following:

On July 18, 2023 before | had filed the motion pursuant to Rule 9A, counsel for

the defendants sent an email stating that without viewing my motion, | was in

violation of Rule 9C.

On Friday July 21st | sent an email asking for a time that | could phone counsel

to confer on the motion.

On Sunday July 23rd, counsel for the defendants sent an email stating that he

was out of the office and would be available for a 9C conference beginning on

July 31%. That would have been the day prior to the scheduled hearing.

On July 22"¢ | phoned the counsel’s office and was told that he was

communicating via email and that if 1 wanted to reach him, I should send an

email. I then did that, suggesting that we did not need to be in our offices to

confer by phone. | received no response.

On July 24th | sent an email to counsel for the defendants suggesting him to

please give me a call; stating that | did not have his cell phone number and that

it might be easier for him to have him give me a call at his own convenience. |

received no response.
It may be worth noting that | have received no opposition to the Motion at hand,
1
so there may have been no areas of disagreement that could have been narrowed.

Counsel for the defendants’ comment that | was in violation of Rule 9C without his

having viewed my motion to consider whether we had any areas of disagreement,

seems to suggest the same.

Sincerely,

Cohn thou ebtdy Hills
chicky 2 & 2023
Geoffrey, Hills
214 Wianno Circle
Osterville, MA 02655
1

‘uly 28, 2023 RECEIVED
i
The Clerk of Courts !
JUL 2 8 2023
Suffolk Superior Court
‘SUPERIOR co UAT - Civ,
Three Pemberton Square, 12‘ Floor INE.PO}
Boston, MA 02108 ACTING CLERK WERS, iit
MAGISTRATE

Re: 2384CV00649-D, Geoffrey Hills v. Robert Berluti et al

To Whom It May Concern,

Please file the following documents for Civil Action # 2384-00649-D:

1. Plaintiff's Motion to Supplement Opposition to Defendants’ Motion to

Dismiss, along with Exhibit 38;

2. Plaintiff's Certificate of Compliance with Rule 9A;

3. Plaintiff's certificate of Service;

Plaintiff's certificate of no opposition;

Plaintiff's Certificate of compliance with Rule 9C.

Thank you,

Geoffrey Hills

Case Info

Judge

Rosemary Connolly Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

July 31, 2023

Case Filing Date

March 17, 2023

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Motion-Secondary: Hills, Geoffrey vs. Berluti, Robert et al

Preview

Related Topics

Case Info

Parties