Preview
EL
COMMONWEALTH OF MASSACHUSETTS
SUFFOLK, ss. SUPERIOR COURT
CIVIL ACTION NO. 1984CV01946
RICHARD L. WULSIN, ESQ.,
Plaintiff, SUFFOLK SUPERIOR COURT,
Vv.
CIVIL CLERK'S OFFICE
MARK F. MURPHY, ESQ., E - FILED
JOHN E. POWERS, III
Defendant. ACTING CLERK MAGISTRATE
OPPOSITION TO MOTION FOR APPEAL BOND
The defendant Mark F. Murphy, Esq. (“Murphy”) hereby opposes the Motion by Richard
L. Wulsin for an Appeal Bond. The Motion is in direct contravention of the law. See Borne v.
Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 325-326 (2003):
Under our law, taking of an appeal stays execution of a judgment
for the payment of money. Mass. R. Civ. P. 62(d), 365 Mass. 830
(1974). The Massachusetts rule differs from its Federal analog,
which provides for the posting of a supersedeas bond to obtain a
stay of judgment pending appeal. The difference in the rules has
been made the basis for holding that there is no authority, in cases
involving an appeal from a money judgment, that permits a
Massachusetts trial judge to order the posting of a bond as a
condition of pursuing the appeal.
(Emphasis added.) Borne remains good law. This is an appeal from a money judgment.
Strikingly, despite being presented with Borne prior to filing his motion, Wulsin fails to cite it.!
Instead, Wulsin relies on inapposite cases where, unlike here, there was express statutory or
other authority. See Borne, 58 Mass. App. Ct. at 325-326 (“Certain statutes provide for the
' Counsel for Murphy sent counsel for Wulsin the Borne case in an email exchange the parties had when they
scheduled the Rule 9C conference. See Exhibit A hereto.
posting of a bond to take a next step in a litigation process,” and citing those various statutes).
The Motion must be denied.”
In further support of this opposition, Murphy states as follows:
This is a dispute between former law partners. Wulsin filed suit to collect monies from
Murphy. Murphy filed various counterclaims and third-party claims. Some claims were
dismissed, some were resolved on summary judgment, and two claims proceeded to trial. Prior to
trial, Murphy’s claims for damages were bifurcated. They still have not been tried. Therefore, the
issue of Murphy’s damages will not be resolved until after appeal, if the judgment is reversed.
The judgment Wulsin holds is for money damages, and only money damages. Based on the facts
of this case, there is no statute that authorizes a bond.
The law cited by Wulsin does not support the issuance of a bond. Wulsin relies on two
cases: Porter v. Board of Appeal of Boston, 103 Mass. App. Ct. 685, 687-688 (2024); and Harris
v. Imaging Advantage LLC, 2022 Mass. Super. LEXIS 187, *11-12 (Krupp, J.).
Porter did not involve the appeal of a money judgment. For that reason alone, it is
inapposite. Further, the issue addressed by the Appeals Court in Porter was solely whether the
trial judge could require a bond as “security for the potential compensable damages and costs
[the appellee] faced in defending what the trial judge thought was a weak appeal.” Porter, 103
Mass. App. Ct. at 689. That is not the purpose for which Wulsin seeks a bond. Moreover, the
only reason the Appeals Court allowed the bond to stand in Porter is because Porter waived his
right to challenge the issuance of the bond. Jd., 103 Mass. App. Ct. at 6896-687. Therefore, there
is no support in Porter for an appeal bond in this case.
2 Neither Mass. Gen. Laws c. 231 § 117 nor Mass. R. App. P. 6(a)(2), both cited by Wulsin as authority for his
motion, requires a different outcome. First, Section 117 does not expressly authorize an appeal bond. Second, Rule
6(a)(2)’s reference to a bond requirement is not inconsistent with Borne, which allows bonds where specific
statutory authority for one exists.
Harris is equally inapposite. While the circumstances of the bond in that case are
somewhat intricate, and very case-specific, the opposition did not cite Borne and neither did the
judge who allowed the bond. See Harris Memorandum and Order attached hereto as Exhibit B.
In allowing the bond, the Harris Court cited two important factors not present in this appeal: (i)
the defendant failed to honor a prejudgment agreement, including oral and written
representations to the Court, that it would hold monies in escrow as security and that such
escrow funds would not be depleted without notice (see Exhibit B at 8); and (ii) in its opposition,
the defendant “indicated its willingness to post a bond” (id., at 9). While the Appeals Court
vacated the Judgment of the trial court, in a closing footnote it allowed the appeal bond to remain
in place “unless and until a judge of the Superior Court orders otherwise. See Harris v. Imaging
Advantage LLC, 103 Mass. App. Ct. 1119, n.20 (2024). The Appeals Court provided no analysis.
In these circumstances, there is no law to support any requirement that Murphy post a
bond to pursue his appeal.
WHEREFORE, the defendant Mark Murphy respectfully requests that the Court deny the
Motion by Richard L. Wulsin for an Appeal Bond.
MARK F. MURPHY, ESQ.,
By his Attorneys,
/s/ David C. Aisenberg
David C. Aisenberg, BBO #545895
Looney Cohen & Aisenberg LLP
33 Broad Street, 5 Floor
Boston, MA 02109
Tel: (617) 371-1050
Fax: (617) 371-1051
Email: daisenberg@I|ca-llp.com
CERTIFICATE OF SERVICE
I, David C. Aisenberg, hereby certify that on March 5, 2024, a true and correct copy of
the foregoing document was served on all parties or counsel of record via electronic mail and the
ECF system.
Christian G. Samito, Esq. (BBO#639825)
Samito Law, LLC
15 Broad Street, Suite 800
Boston, MA 02109
christian@samitolaw.com
Jeffrey D. Ugino, Esq. (BBO#660353)
Gelerman and Cabral, LLC
30 Walpole Street
Norwood, MA 02062
jugino@gelermancabral.com
/s/ David C. Aisenberg
David C. Aisenberg
EXHIBIT A
David Aisenbera
To:
David
Aisenberg;
Ainsley lovanna
Subject: RE: Wulsin/Murphy appeal
Date: Wednesday, February 21, 2024 3:23:53 PM
Attachments: Bore v Haverhill Golf And Country Club Inc.rtf
Christian,
We will get back to you on that.
Meanwhile, are you familiar with the attached case? Please let us know upon what authority
you will be relying to request an appeal bond.
Thanks, David
David C. Aisenberg, Esq.
daisenberg@Ica-llp.com Direct: 617-371-1157
Office: 617-371-1050 Fax: 617-371-1051
a
33 Broad Street, 5th Floor
Boston, MA 02109
www. !ca-lip.com
From: Christian Samito
Sent: Wednesday, February 21, 2024 3:03 PM
To: David Aisenberg ; jugino@gelermancabral.com; Richard Gelerman
Subject: RE: Wulsin/Murphy appeal
Let me know who is handling the conference re: my anticipated motion to require an appeal
bond and availability.
From: David Aisenberg
Sent: Wednesday, February 21, 2024 2:41 PM
To: Christian Samito ; jugino@gelermancabral.com; Richard Gelerman
Ce: Ainsley lovanna ; David Aisenberg
Subject: RE: Wulsin/Murphy appeal
Chrisitan,
Then it was a simple mistake and no need to feel as if someone did something intentionally
wrong. We also did not receive any bounce back.
David
David C. Aisenberg, Esq.
daisenberg@lca-lip.com Direct: 617-371-1157
Office: 617-371-1050 Fax: 617-371-1051
_
33 Broad Street, Sth Floor
Boston, MA 02109
www. |ca-lIp.com
From: Christian Samito
Sent: Wednesday, February 21, 2024 2:39 PM
To: David Aisenberg ; jugino@gelermancabral.com; Richard Gelerman
Ce: Ainsley lovanna
Subject: RE: Wulsin/Murphy appeal
No, you are mistaken. My email address was misspelled in the emails yesterday.
From: David Aisenberg
Sent: Wednesday, February 21, 2024 2:37 PM
To: Christian Samito < istian. sami >; jugino@gelermancabral.com; Richard Gelerman
< \ com>
Ce: David Aisenberg ; Ainsley lovanna
Subject: RE: Wulsin/Murphy appeal
Christian,
You are mistaken. Please re-check your email folders.
David C. Aisenberg, Esq.
daisenberg@Ica-llp.com Direct: 617-371-1157
Office: 617-371-1050 Fax: 617-371-1051
= —————— _
33 Broad Street, 5th Floor
Boston, MA 02109
www. |ca-llp.com
From: Christian Samito
Sent: Wednesday, February 21, 2024 2:32 PM
To: jugino@gelermancabral.com; David Aisenberg ; Richard Gelerman
Subject: Wulsin/Murphy appeal
First off, it is troubling that I was not served with the notice of appeal nor Attorney
Aisenberg’s notice of appearance, despite the certificates of service on them. I trust such an
event will not happen again.
I am requesting a conference prior to my filing of a motion to order an appeals bond. Please let
me know who will handle this conference as well as this attorney’s availability.
Christian G. Samito, Ph.D.
SAMITO LAW, LLC
ATTORNEY AT LAW
15 BROAD STREET, SUITE 800
BOSTON, MA 02109
617.523.0144 (DIRECT)
WWW.SAMITOLAW.COM
WWW.CHRISTIANSAMITO.COM
This email may contain confidential or privileged information. If you are not the
intended recipient, please notify the sender immediately by return e-mail and
delete this email and all copies and attachments.
Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003)
791 N.E.2d 903
Plaintiffs may bring a discrimination action
FlkeyCite Yellow Flag - Negative Treatment based on the cumulative effect of hostile acts so
Review Granted September 5, 2003 that a plaintiff who demonstrates a pattern of
58 Mass.App.Ct. 306 sexual discrimination that includes conduct
Appeals Court of Massachusetts, within the six-month statute of limitations, may
Suffolk. claim the benefit of the continuing violation
Judith BORNE & others: doctrine and seek damages for conduct that
v. occurred outside the limitations period, unless
HAVERHILL GOLF & cou NTRY CLUB, INC. the plaintiff knew or reasonably should have
(and a companion case"). known that her work situation was pervasively
hostile and unlikely to improve. M.G.L.A. c.
Nos. 00—P-1732, 01-P—1705. 1SIB,§ 5.
Argued Dec. 19, 2002.
2 Cases that cite this headnote
Decided June 13, 2003.
Synopsis
Commonwealth and individual female members of golf
22] Civil Rights*-Questions of Law or Fact
club brought action against club, alleging that club
When there is undisputed evidence of acts that
engaged in gender discrimination. The Superior Court
the jury may find manifested gender
Department, Suffolk County, John C. Cratsley, J., entered
discrimination, and those acts have
judgment on jury verdict in favor of female members and
characteristics in common with acts committed
Commonwealth. Club appealed. The Appeals Court, within the limitations period, it becomes a
Kass, J., held that: (1) members could seek damages for
question of law for the judge whether the earlier
discrimination that occurred outside of limitations period acts may be considered by the jury on the basis
based on continuing violation doctrine; (2) jury of the continuing violation doctrine. M.G.L.A. c.
instructions on discrimination were appropriate; (3) trial 151B,
§ 5.
court did not err in its evidentiary rulings regarding
testimony on an ultimate issue for jury, testimony on
members’ state of mind, and testimony regarding physical 1 Case that cites this headnote
and emotional distress; (4) evidence was sufficient to take
issue of discrimination to jury; (5) damages for emotional
distress were not excessive; (6) punitive damages were
not excessive; (7) detailed injunction was warranted; (8)
trial judge was not authorized to require club to post [3] Civil Rights: ‘Discrimination in General
appeal bond before commencing appeal; and (9) members
were not entitled to damages under unfair trade practices The ultimate question for the finder of fact in a
statute. discrimination case is whether the conduct
complained of was driven by unlawful
Affirmed; vacated. considerations of sex, age, race, color, religion,
or sexual orientation.
Procedural Posture(s): On Appeal.
1 Case that cites this headnote
West Headnotes (27)
i) Civil Rights Time for proceedings; [4] Civil Rights Instructions
limitations
© 2024 Thomson Reuters. No claim to original U.S. Government Works
Bo Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003)
791 .2d 903
Jury instructions in gender discrimination case
did not impermissibly tell jury that a finding that No reversible error occurred in allowing witness
golf club’s legitimizing reason was a pretext for to testify on redirect that she believed golf
discrimination required a finding for female club club’s practices regarding male primary
members, but rather instruction informed jury tournaments and women’s tee times were
that if the female golf club members were to discriminatory, even if the testimony went to the
prevail in gender discrimination action against ultimate question that the jury was to decide,
club, they were required to prove that the club’s where defense counsel had opened subject of
conduct was animated by discriminatory whether witness regarded particular acts as
purpose, that the ultimate issue in case was indicative of bias, before the witness was
discrimination, and that the jurors were to questioned, the trial judge gave the jury a
consider whether the legitimizing reason offered forceful instruction that the over-all issue of
by the club was a pretext for actual gender discrimination was for them to decide,
discrimination. and testimony was a minor addition to the
quantum of evidence that there was a war
between men and women at the club about
1 Case that cites this headnote access.
1 Case that cites this headnote
55] Civil Rights Questions of Law or Fact
Issue of sufficiency of jury instruction in
informing jury of the consequences of finding [3] Evidence»=Letters and Other Correspondence
that golf club’s legitimizing reasons were
pretext for gender discrimination was irrelevant, Letters from two female golf club members to
where the jury found that no legitimizing reason officers of the club regarding discrimination
had been put forth for six of the female club against women golfers at club were admissible
members, and there was direct evidence of for the purpose of describing the female
gender discrimination. members’ state of mind about gender oppression
at the club, even though the letters had a
tendentious quality, where the evidence
presented in letters was both cumulative and
obvious.
[6] Appeal and Error Instructions referring to
evidence and matters of fact
Golf club could not raise on appeal issue
regarding jury instruction in gender [9] Appeal and Error: Evidence and witnesses in
discrimination case which informed jury that general
gender discrimination needed to be only one of Appeal and Error Labor and employment
the motives of the club in making and enforcing Appeal and Errors=Opinions and conclusions
rules, where club raised issue for the first time in general
on appeal.
Admission of testimony from female golf club
member in which she stated that gender
discrimination suit against club caused her to
suffer shingles was harmless error, where
defense counsel made no motion to strike
testimony, but rather cross-examined witness
17] Appeal and ErrorsOpinions and conclusions about her lack of knowledge of causal links
in general between her experience at the club and coming
© 2024 Thomson Reuters. No claim to original U.S. Government Works 2
Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003)
791 N.E.2d 903
down with shingles, and there were no claims of club president attempted to keep women out of
compensation for physical harm put before the certain club areas. M.G.L.A. c. 151B, § 4; ¢
jury. 272, § 98.
1 Case that cites this headnote
[10] Stipulations Use and enforcement in general
[13] TrialIn general; duty of court
Trial judge acted within his discretion in
allowing female golf club member to testify in Trial judge in gender discrimination action
gender discrimination action against club about against golf club acted within his discretion in
her emotional reaction to perceived gender denying motion for mistrial based on statement
discrimination, where club was unable to turn up in female golf club members’ counsel’s closing
an alleged stipulation by member in which she argument in which counsel stated that prior to
gave up a claim for damages based on emotional 1990 women could not be primary members at
distress, and the docket contained no record of club, where counsel’s stray remark had no
such a stipulation. impact on controversy which concerned events
in 1990 and beyond.
(11) Appeal and Errors~Preverdict motions;
direction of verdict 114] Damages+~Physical illness, impact, or injury;
zone of danger
In appraising a motion for a directed verdict,
Appeals Court does not assess the evidence in a Emotional distress damages can be sustained
light favorable to a defendant; it assess evidence even in the absence of physical injury or
in the light favorable to the plaintiff, drawing all psychiatric consultation.
inferences in favor of the plaintiff that rationally
and reasonably may be drawn.
4 Cases that cite this headnote
[15] Civil Rights*Monetary Relief
(12) Civil Rights:~Questions of Law or Fact
Female golf club members’ damages award for
There was ample evidence to take to the jury the emotional distress in amount of $424,000 for
question whether, concerning access to the golf their anger, disappointment, outrage, and disgust
links, the male officers of the golf club rigged over gender discrimination of club was not
rules and applied rules in a manner that made excessive; it would be naive not to recognize the
women second class members, resulting in an degree to which golf links and the country club
uncomfortable and emotionally taxing are the locale for developing professional and
environment at the club for those women business contacts. M.G.L.A. c. 151B, § 4; c.
members who brought discrimination action, 272, § 98.
where club manipulated membership categories
in favor of men, club limited tee times for
women on golf course, club applied club
2 Cases that cite this headnote
disciplinary rules unequally toward women, and
€ © 2024 Thomson Reuters. No claim to original U.S. Government Works.
Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003)
791 N.E.2d 903
[16] New TrialsRemission or Reduction of Excess [20] Equity®-Nature and source of jurisdiction
of Recovery Injunction*Scope of Relief in General
In acting on a motion for a remittitur, a judge In an action for injunction, a court may mould
has broad discretion. each decree for equitable relief to the necessities
of the particular case; equity is the instrument
for nice adjustment and reconciliation between
1 Case that cites this headnote the public interest and private needs.
1 Case that cites this headnote
[17] Civil Rights*=Exemplary or Punitive Damages
Punitive damages of $1,430,000 were not
excessive in gender discrimination action (21) Civil Rights*=Injunction
against golf club, where there was evidence that
the club had been cavalier and callously Detailed permanent injunction against golf club
indifferent about failing to treat women golfers which committed gender discrimination was
as equals, the conduct persisted in the face of warranted, where club had a history of hardened
warning shots in the form of letters to the board position of resistance to the objectives of the
of governors regarding the discrimination, permanent injunction.
supplication had been ineffectual, and such
damages might have a deterrent effect.
M.G.L.A. c. 151B, § 9. 3 Cases that cite this headnote
2 Cases that cite this headnote
[22] Pretrial Procedures=Particular Subjects of
Disclosure
[18] Injunction Irreparable injury Trial judge did not abuse his discretion in
refusing to grant golf club’s discovery into
Attorney General, when requesting an injunction hourly rates, billing practices, and expertise of
in the public interest, is not required to make a female club members’ counsel as part of
showing of irreparable harm. members’ request for attorney fees; trial judge
had ample opportunity to size up the skill and
preparation of counsel and value of what
2 Cases that cite this headnote counsel for the members achieved over course
of the four week trial.
1 Case that cites this headnote
[19] Injunction«=Discretion as to scope of relief.
In an action for injunction, the scope of
equitable relief is left to the discretion of the
trial judge. [23] Costs, Fees, and Sanctions:~Hearing and
Determination
2 Cases that cite this headnote Generally, a judge can, from the judge’s own
experience, determine an award of legal fees;
there is no requirement for an evidentiary
© 2024 Thomson Reuters. No claim to original U.S. Government Works 4
Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003)
791 N.E.2d 903
hearing. damages under unfair trade practices statute in
action against golf club for gender
discrimination; unfair trade practices claim arose
7 Cases that cite this headnote from same facts underlying discrimination
damages, and multiple damages factor of unfair
trade practices statute was satisfied by punitive
damages awarded in connection with
discrimination claims. M.G.L.A. c. 93A, § 2.
[24] Civil Rights=Injunction
Golf club had contumaciously failed to comply 2 Cases that cite this headnote
with injunction obtained by female golf club
members’ in action against club for gender
discrimination, where club imposed unequal
restrictions on male and female primary club
members in tournament play.
Attorneys and Law Firms
**907 *308 Lawrence P. Murray (Nancy A. Newark with
him), Boston, for defendant.
Marsha V. Kazarosian (Janet E. Dutcher with her),
[25] Costs, Fees, and Sanctions®=Necessity of Haverhill, for Judith Borne & others.
Security to Perfect Appeal or Other Proceeding
Alice J. Klein, Charlestown, for Linda Letendre.
In cases involving an appeal from a money
judgment, a trial judge is not permitted to order Catherine C. Ziehl, Assistant Attorney General (Kathleen
the posting of bond as a condition of pursuing Z. Quill, Assistant Attorney General, with her) for the
the appeal. Rules Civ.Proc., Rule 62(d), 43B Commonwealth.
M.G.L.A.
Present: GREENBERG, KASS, & COHEN, JJ.
2 Cases that cite this headnote Opinion
KASS, J.
[26] Costs, Fees, and Sanctions=Necessity of
Nine women members of the Haverhill Golf and Country
Security to Perfect Appeal or Other Proceeding Club, Inc. (the “Club”), filed a complaint on August 10,
1995, with the Massachusetts Commission Against
Parties may request from a trial court judge an
Discrimination, alleging that the Club, a place of public
attachment of real property or the grant of
accommodation, discriminated unfairly against them on
security interest in personal property to protect a
the basis of their sex. *309 See G.L. c. 272, § 98, and
judgment pending appeal. Rules Civ.Proc., Rule
G.L. c. 151B, § 4.2 See also 804 Code Mass. Regs. §
62(d), 43B M.G.L.A. 1.07(1).* The Attorney General filed a complaint against
the Club on behalf of the Commonwealth and the two
4 Cases that cite this headnote complaints were consolidated for trial. Proceedings on
those complaints culminated in a judgment against the
Club, based on jury findings, that aggregated $1,967,400
in damages. The Superior Court judge who presided at the
trial also ordered permanent injunctive relief requiring
227] Antitrust and Trade Regulation’Measure cessation of the unlawful discriminatory acts that the jury
and amount had found the Club had been practicing. From the various
judgments, including injunctions and **908 judgments of
Female golf club members were not entitled to contempt of court against it, the Club appeals.’ We affirm.
€ef 024 Thomson Reuters. No claim to original U.S. Government Works. 2
Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003)
791 N.E.2d 903
advance; limited members could book tee times only
1. Facts. Trial lasted for twenty-two days and there are twenty-four hours in advance and, as a practical matter,
twenty-six volumes of transcript, but the gender-related were, therefore, often frozen out.
indignities that vexed women at the Club and goaded
them to seek legal redress are susceptible to distillation. In d. Unequal application of rules. In the summer of 1995,
summarizing the facts, we rely on what the jury could Karen Richardson organized a couples tournament. The
have found, given the state of the evidence read in a light tournament went forward with a field of sixty-eight
favorable to the plaintiffs. couples. A full field was seventy-two couples, although
tournaments for men had been played with fewer pairings.
a. Place of public accommodation. Whether the Club is a Robert Hanagan, the golf chairman of the Club, had, prior
place of public accommodation was in dispute at trial, but to the tournament, told Richardson to fill out the field
on appeal the Club does not challenge the determination with “Calloways” **909 —golfers who did not have an
by the jury that it is. The Club makes its facilities established handicap.’ For failure to comply with
available for hire by the general public for social Hanagan’s edict, Richardson was summoned to appear
functions.’ See generally G.L. c. 272, § 92A. before the Club rules committee. When the committee
met in judgment of Richardson, Scott Gleason, a member
b. Manipulation of membership categories. There were of the committee, *311 referred to Hanagan as “God
two major membership categories at the Club: primary when it came to golf at the Haverhill Country Club and
and limited. Primary members had the broadest range of we don’t defy God.” Punishment meted out to
access to the golf course and facilities. The access of Richardson, an avid golfer preparing for a tournament,
limited members was, well, limited. In 1993, there were was biblically stern: she was suspended from play for
325 primary members, of whom seven were women and twenty-one days.
318 were men. Among the ninety limited members,
eighty-four were women. As women lobbied to change On the other hand, when two male members, one of
their memberships to primary, the Club rules for *310 whom was a member of the board of governors, cavorted
making such a change, such as what payment needed to in the buff with two waitresses in the Club swimming
be made with an application, underwent frequent revision, pool—an infraction of the rules—the response was
and places on the waiting list for primary membership indulgent. Volker Wrampe, the general manager was,
fluctuated without explanation. For example, one woman upon inquiry, told by the Club president, “Not to worry
limited member seeking primary status began the process about it. We do it all the time.”
as number nine on the waiting list but after some
additional months had fallen to number eighteen. Some e. The 19th Hole and the Card Room. There was a grill
women candidates unaccountably disappeared altogether room at the Club named The 19th Hole. Informally, it was
from the waiting list for primary membership. Men called the men’s grill. When he noticed the 19th Hole was
leapfrogged over women to primary membership. Male being used by women members for a posttournament
junior members, when they turned age twenty-two, dinner, the Club president advised the Club’s general
routinely received the opportunity to become primary manager that it would be preferable if women’s dinner
members; women junior members did not. parties were booked for the main dining room. As for the
Card Room, the Club president informed the general
c. Limits on access of women to the golf course. For manager that it was a “sanctum sanitorium” for the older
limited | members, starting time on the golf gentlemen; he “must try to keep the women out of [it].”
course—teferred to in the record generally as “tee
time”—was restricted. On Wednesdays, women limited 2. Continuing offense. General Laws ISIB, § 5,
members could not tee off from 10 A.M. to 2 P.M.; on requires persons who claim that they have suffered
Saturdays and Sundays women limited members could unlawful discrimination to file a complaint, first, with the
not play until after 11:30 A.M.; if the course was closed Massachusetts Commission Against Discrimination
for a men’s guest day, women could not play at all; male (MCAD).’ That step must be taken within six months of
junior members could play during prime time, female the act or acts of discrimination that the complainant
junior members could not. Male limited members were alleges. G.L. c. 151B, § 5. Cuddyer v. Stop & Shop
allowed to play in prime time. Primary women members Supermarket Co., 434 Mass. 521, 531, 750 N.E.2d 928
could not use the course during primary men’s (2001). As the plaintiffs filed with the MCAD on August
tournaments, but men could play during women’s 10, 1995, the acts of discrimination for which they could
tournaments. Beginning in August, 1993, primary receive redress must ordinarily have occurred no earlier
members could book tee times forty-eight hours in than February 10, 1995.
=E
024 Thomson Reuters. No claim to original U.S. Government Works.
Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003)
791 N.E.2d 903
1 3. Jury instructions. The trial judge delivered his
The trial judge, however, allowed (over objection) charge to the jury on October 22, 1999, faithful to the line
evidence of discriminatory acts by the Club against its of cases that began with Wheelock College v.
women members going back to 1990, this on the ground Massachusetts Comman. Against Discrimination, 371
that the gender discrimination described had the character Mass. 130, 138-139, 355 N.E.2d 309 (1976), and ended
of a continuing violation. In the Cuddyer case, the court with Blare v. Husky Injection Molding Sys. Boston, Inc.,
explicated the “continuing violation doctrine” and 419 Mass. 437, 440-446, 646 N.E.2d 111 (1995). His
differentiated its application *312 in Massachusetts instructions, therefore, included the procrustean special
compared to the Federal courts.
at 530-540, 750 Jd. verdict questions that later decisions recommended
N.E.2d 928. Frequently, who a person
suffers against and asked of the jury a rigidity of analysis that
discriminatory conduct may hope that the situation will later decisions modified. See Abramian v. President &
improve. For example, the women who felt themselves to Fellows of Harvard College, 432 Mass. 107, 117-119,
be second-class citizens at the Club might reasonably 731 N.E.2d 1075 (2000); Lipchitz v. Raytheon Co., 434
have thought that once they had raised the consciousness Mass. 493, 508, 751 N.E.2d 360 (2001); Weber v.
of men at the Club to their grievances, the board of Community Teamwork, Inc., 434 Mass. 761, 775, 752
governors would take measures so that women at the Club N.E.2d 700 (2001); Scott v. Boston Hous. Authy., 56
were treated equally. With that in mind, and so as not to Mass.App.Ct. 287, 290, 777 N.E.2d 174 (2002).
encourage premature discrimination complaints, persons Concerning the effect of a finding of pretext, the judge
may, starting with the first observed act of discrimination, presented to the jury a written special question that began
reset the limitations clock with each new act of by following the “pretext only” formula of Blare v. Husky
discrimination. /d. at 531, 750 N.E.2d 928. Injection Molding Sys. Boston, Inc., supra at 444, 646
N.E.2d 111, but added the saving grace of defining the
{ @) Plaintiffs may bring an “action based on the word “pretext” with the words “not the real reason(s) for
cumulative effect of hostile acts.” Jd. at 533, 750 N.E.2d gender discrimination.” This made the question
928. So it is that “a plaintiff who demonstrates a pattern consistent with the Lipchitz opinion, supra at 501, 751
**910 of sexual [discrimination] ... that includes conduct N.E.2d 360, which modified the Blare formulation: the
within the six-month statute of limitations, may claim the fact finder, if persuaded that the defendant’s legitimating
benefit of the continuing violation doctrine and seek reasons were false, “may (but need not) infer that the
damages for conduct that occurred outside the limitations employer is covering up a discriminatory intent, **911
period, unless the plaintiff knew or reasonably should motive or state of mind.” /bid. The ultimate question for
have known that her work situation was pervasively the finder of fact is whether the conduct complained of
hostile and unlikely to improve.” Jd. at 539, 750 N.E.2d was driven by unlawful considerations of sex, age, race,
928. See National R.R. Passenger Corp. v. Morgan, 536 color, religion, or sexual orientation. See id. at 504-506,
U.S. 101, 116-117, 122 S.Ct. 2061, 153 L.Ed.2d 106 646 N.E.2d 111; Scott v. Boston Hous. Authy., 56
(2002); *313 Beaupre v. Cliff Smith & Assocs. 50 Mass.App.Ct. at 290, 777 N.E.2d 174.
Mass.App.Ct. 480, 490, 738 N.E.2d 753 (2000); Morrison
v. Northern Essex Community College, 56 Mass.App.Ct. Counsel for the Club anticipated the case law to come. At
784, 792-798, 780 N.E.2d 132 (2002)."° Whether there is the charge conference, he suggested that, in addition to
a history of continuing violation, the Club urges here, as it putting to *314 the jury in writing the question whether
did at trial, is a question of fact that the trial judge also the legitimizing reason offered by the Club for its conduct
should have put to the jury. Instead, the judge decided that was a pretext, the judge should also put as a final question
question himself. When there is undisputed evidence of whether discrimination was a motivating factor in the
acts that the jury may find manifested gender actions of the Club. The judge declined to so revise the
discrimination, and those acts have characteristics in written questions.
common with acts committed within the limitations
period, it becomes a question of law for the judge whether In the course of his oral instructions to the jury, the judge
the earlier acts may be considered by the jury on the basis reviewed the written questions. He described what was
of the continuing violation doctrine. See and compare, meant by a prima facie
Preview
EL COMMONWEALTH OF MASSACHUSETTS SUFFOLK, ss. SUPERIOR COURT CIVIL ACTION NO. 1984CV01946 RICHARD L. WULSIN, ESQ., Plaintiff, SUFFOLK SUPERIOR COURT, Vv. CIVIL CLERK'S OFFICE MARK F. MURPHY, ESQ., E - FILED JOHN E. POWERS, III Defendant. ACTING CLERK MAGISTRATE OPPOSITION TO MOTION FOR APPEAL BOND The defendant Mark F. Murphy, Esq. (“Murphy”) hereby opposes the Motion by Richard L. Wulsin for an Appeal Bond. The Motion is in direct contravention of the law. See Borne v. Haverhill Golf & Country Club, Inc., 58 Mass. App. Ct. 306, 325-326 (2003): Under our law, taking of an appeal stays execution of a judgment for the payment of money. Mass. R. Civ. P. 62(d), 365 Mass. 830 (1974). The Massachusetts rule differs from its Federal analog, which provides for the posting of a supersedeas bond to obtain a stay of judgment pending appeal. The difference in the rules has been made the basis for holding that there is no authority, in cases involving an appeal from a money judgment, that permits a Massachusetts trial judge to order the posting of a bond as a condition of pursuing the appeal. (Emphasis added.) Borne remains good law. This is an appeal from a money judgment. Strikingly, despite being presented with Borne prior to filing his motion, Wulsin fails to cite it.! Instead, Wulsin relies on inapposite cases where, unlike here, there was express statutory or other authority. See Borne, 58 Mass. App. Ct. at 325-326 (“Certain statutes provide for the ' Counsel for Murphy sent counsel for Wulsin the Borne case in an email exchange the parties had when they scheduled the Rule 9C conference. See Exhibit A hereto. posting of a bond to take a next step in a litigation process,” and citing those various statutes). The Motion must be denied.” In further support of this opposition, Murphy states as follows: This is a dispute between former law partners. Wulsin filed suit to collect monies from Murphy. Murphy filed various counterclaims and third-party claims. Some claims were dismissed, some were resolved on summary judgment, and two claims proceeded to trial. Prior to trial, Murphy’s claims for damages were bifurcated. They still have not been tried. Therefore, the issue of Murphy’s damages will not be resolved until after appeal, if the judgment is reversed. The judgment Wulsin holds is for money damages, and only money damages. Based on the facts of this case, there is no statute that authorizes a bond. The law cited by Wulsin does not support the issuance of a bond. Wulsin relies on two cases: Porter v. Board of Appeal of Boston, 103 Mass. App. Ct. 685, 687-688 (2024); and Harris v. Imaging Advantage LLC, 2022 Mass. Super. LEXIS 187, *11-12 (Krupp, J.). Porter did not involve the appeal of a money judgment. For that reason alone, it is inapposite. Further, the issue addressed by the Appeals Court in Porter was solely whether the trial judge could require a bond as “security for the potential compensable damages and costs [the appellee] faced in defending what the trial judge thought was a weak appeal.” Porter, 103 Mass. App. Ct. at 689. That is not the purpose for which Wulsin seeks a bond. Moreover, the only reason the Appeals Court allowed the bond to stand in Porter is because Porter waived his right to challenge the issuance of the bond. Jd., 103 Mass. App. Ct. at 6896-687. Therefore, there is no support in Porter for an appeal bond in this case. 2 Neither Mass. Gen. Laws c. 231 § 117 nor Mass. R. App. P. 6(a)(2), both cited by Wulsin as authority for his motion, requires a different outcome. First, Section 117 does not expressly authorize an appeal bond. Second, Rule 6(a)(2)’s reference to a bond requirement is not inconsistent with Borne, which allows bonds where specific statutory authority for one exists. Harris is equally inapposite. While the circumstances of the bond in that case are somewhat intricate, and very case-specific, the opposition did not cite Borne and neither did the judge who allowed the bond. See Harris Memorandum and Order attached hereto as Exhibit B. In allowing the bond, the Harris Court cited two important factors not present in this appeal: (i) the defendant failed to honor a prejudgment agreement, including oral and written representations to the Court, that it would hold monies in escrow as security and that such escrow funds would not be depleted without notice (see Exhibit B at 8); and (ii) in its opposition, the defendant “indicated its willingness to post a bond” (id., at 9). While the Appeals Court vacated the Judgment of the trial court, in a closing footnote it allowed the appeal bond to remain in place “unless and until a judge of the Superior Court orders otherwise. See Harris v. Imaging Advantage LLC, 103 Mass. App. Ct. 1119, n.20 (2024). The Appeals Court provided no analysis. In these circumstances, there is no law to support any requirement that Murphy post a bond to pursue his appeal. WHEREFORE, the defendant Mark Murphy respectfully requests that the Court deny the Motion by Richard L. Wulsin for an Appeal Bond. MARK F. MURPHY, ESQ., By his Attorneys, /s/ David C. Aisenberg David C. Aisenberg, BBO #545895 Looney Cohen & Aisenberg LLP 33 Broad Street, 5 Floor Boston, MA 02109 Tel: (617) 371-1050 Fax: (617) 371-1051 Email: daisenberg@I|ca-llp.com CERTIFICATE OF SERVICE I, David C. Aisenberg, hereby certify that on March 5, 2024, a true and correct copy of the foregoing document was served on all parties or counsel of record via electronic mail and the ECF system. Christian G. Samito, Esq. (BBO#639825) Samito Law, LLC 15 Broad Street, Suite 800 Boston, MA 02109 christian@samitolaw.com Jeffrey D. Ugino, Esq. (BBO#660353) Gelerman and Cabral, LLC 30 Walpole Street Norwood, MA 02062 jugino@gelermancabral.com /s/ David C. Aisenberg David C. Aisenberg EXHIBIT A David Aisenbera To: David Aisenberg; Ainsley lovanna Subject: RE: Wulsin/Murphy appeal Date: Wednesday, February 21, 2024 3:23:53 PM Attachments: Bore v Haverhill Golf And Country Club Inc.rtf Christian, We will get back to you on that. Meanwhile, are you familiar with the attached case? Please let us know upon what authority you will be relying to request an appeal bond. Thanks, David David C. Aisenberg, Esq. daisenberg@Ica-llp.com Direct: 617-371-1157 Office: 617-371-1050 Fax: 617-371-1051 a 33 Broad Street, 5th Floor Boston, MA 02109 www. !ca-lip.com From: Christian Samito Sent: Wednesday, February 21, 2024 3:03 PM To: David Aisenberg ; jugino@gelermancabral.com; Richard Gelerman Subject: RE: Wulsin/Murphy appeal Let me know who is handling the conference re: my anticipated motion to require an appeal bond and availability. From: David Aisenberg Sent: Wednesday, February 21, 2024 2:41 PM To: Christian Samito ; jugino@gelermancabral.com; Richard Gelerman Ce: Ainsley lovanna ; David Aisenberg Subject: RE: Wulsin/Murphy appeal Chrisitan, Then it was a simple mistake and no need to feel as if someone did something intentionally wrong. We also did not receive any bounce back. David David C. Aisenberg, Esq. daisenberg@lca-lip.com Direct: 617-371-1157 Office: 617-371-1050 Fax: 617-371-1051 _ 33 Broad Street, Sth Floor Boston, MA 02109 www. |ca-lIp.com From: Christian Samito Sent: Wednesday, February 21, 2024 2:39 PM To: David Aisenberg ; jugino@gelermancabral.com; Richard Gelerman Ce: Ainsley lovanna Subject: RE: Wulsin/Murphy appeal No, you are mistaken. My email address was misspelled in the emails yesterday. From: David Aisenberg Sent: Wednesday, February 21, 2024 2:37 PM To: Christian Samito < istian. sami >; jugino@gelermancabral.com; Richard Gelerman < \ com> Ce: David Aisenberg ; Ainsley lovanna Subject: RE: Wulsin/Murphy appeal Christian, You are mistaken. Please re-check your email folders. David C. Aisenberg, Esq. daisenberg@Ica-llp.com Direct: 617-371-1157 Office: 617-371-1050 Fax: 617-371-1051 = —————— _ 33 Broad Street, 5th Floor Boston, MA 02109 www. |ca-llp.com From: Christian Samito Sent: Wednesday, February 21, 2024 2:32 PM To: jugino@gelermancabral.com; David Aisenberg ; Richard Gelerman Subject: Wulsin/Murphy appeal First off, it is troubling that I was not served with the notice of appeal nor Attorney Aisenberg’s notice of appearance, despite the certificates of service on them. I trust such an event will not happen again. I am requesting a conference prior to my filing of a motion to order an appeals bond. Please let me know who will handle this conference as well as this attorney’s availability. Christian G. Samito, Ph.D. SAMITO LAW, LLC ATTORNEY AT LAW 15 BROAD STREET, SUITE 800 BOSTON, MA 02109 617.523.0144 (DIRECT) WWW.SAMITOLAW.COM WWW.CHRISTIANSAMITO.COM This email may contain confidential or privileged information. If you are not the intended recipient, please notify the sender immediately by return e-mail and delete this email and all copies and attachments. Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003) 791 N.E.2d 903 Plaintiffs may bring a discrimination action FlkeyCite Yellow Flag - Negative Treatment based on the cumulative effect of hostile acts so Review Granted September 5, 2003 that a plaintiff who demonstrates a pattern of 58 Mass.App.Ct. 306 sexual discrimination that includes conduct Appeals Court of Massachusetts, within the six-month statute of limitations, may Suffolk. claim the benefit of the continuing violation Judith BORNE & others: doctrine and seek damages for conduct that v. occurred outside the limitations period, unless HAVERHILL GOLF & cou NTRY CLUB, INC. the plaintiff knew or reasonably should have (and a companion case"). known that her work situation was pervasively hostile and unlikely to improve. M.G.L.A. c. Nos. 00—P-1732, 01-P—1705. 1SIB,§ 5. Argued Dec. 19, 2002. 2 Cases that cite this headnote Decided June 13, 2003. Synopsis Commonwealth and individual female members of golf 22] Civil Rights*-Questions of Law or Fact club brought action against club, alleging that club When there is undisputed evidence of acts that engaged in gender discrimination. The Superior Court the jury may find manifested gender Department, Suffolk County, John C. Cratsley, J., entered discrimination, and those acts have judgment on jury verdict in favor of female members and characteristics in common with acts committed Commonwealth. Club appealed. The Appeals Court, within the limitations period, it becomes a Kass, J., held that: (1) members could seek damages for question of law for the judge whether the earlier discrimination that occurred outside of limitations period acts may be considered by the jury on the basis based on continuing violation doctrine; (2) jury of the continuing violation doctrine. M.G.L.A. c. instructions on discrimination were appropriate; (3) trial 151B, § 5. court did not err in its evidentiary rulings regarding testimony on an ultimate issue for jury, testimony on members’ state of mind, and testimony regarding physical 1 Case that cites this headnote and emotional distress; (4) evidence was sufficient to take issue of discrimination to jury; (5) damages for emotional distress were not excessive; (6) punitive damages were not excessive; (7) detailed injunction was warranted; (8) trial judge was not authorized to require club to post [3] Civil Rights: ‘Discrimination in General appeal bond before commencing appeal; and (9) members were not entitled to damages under unfair trade practices The ultimate question for the finder of fact in a statute. discrimination case is whether the conduct complained of was driven by unlawful Affirmed; vacated. considerations of sex, age, race, color, religion, or sexual orientation. Procedural Posture(s): On Appeal. 1 Case that cites this headnote West Headnotes (27) i) Civil Rights Time for proceedings; [4] Civil Rights Instructions limitations © 2024 Thomson Reuters. No claim to original U.S. Government Works Bo Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003) 791 .2d 903 Jury instructions in gender discrimination case did not impermissibly tell jury that a finding that No reversible error occurred in allowing witness golf club’s legitimizing reason was a pretext for to testify on redirect that she believed golf discrimination required a finding for female club club’s practices regarding male primary members, but rather instruction informed jury tournaments and women’s tee times were that if the female golf club members were to discriminatory, even if the testimony went to the prevail in gender discrimination action against ultimate question that the jury was to decide, club, they were required to prove that the club’s where defense counsel had opened subject of conduct was animated by discriminatory whether witness regarded particular acts as purpose, that the ultimate issue in case was indicative of bias, before the witness was discrimination, and that the jurors were to questioned, the trial judge gave the jury a consider whether the legitimizing reason offered forceful instruction that the over-all issue of by the club was a pretext for actual gender discrimination was for them to decide, discrimination. and testimony was a minor addition to the quantum of evidence that there was a war between men and women at the club about 1 Case that cites this headnote access. 1 Case that cites this headnote 55] Civil Rights Questions of Law or Fact Issue of sufficiency of jury instruction in informing jury of the consequences of finding [3] Evidence»=Letters and Other Correspondence that golf club’s legitimizing reasons were pretext for gender discrimination was irrelevant, Letters from two female golf club members to where the jury found that no legitimizing reason officers of the club regarding discrimination had been put forth for six of the female club against women golfers at club were admissible members, and there was direct evidence of for the purpose of describing the female gender discrimination. members’ state of mind about gender oppression at the club, even though the letters had a tendentious quality, where the evidence presented in letters was both cumulative and obvious. [6] Appeal and Error Instructions referring to evidence and matters of fact Golf club could not raise on appeal issue regarding jury instruction in gender [9] Appeal and Error: Evidence and witnesses in discrimination case which informed jury that general gender discrimination needed to be only one of Appeal and Error Labor and employment the motives of the club in making and enforcing Appeal and Errors=Opinions and conclusions rules, where club raised issue for the first time in general on appeal. Admission of testimony from female golf club member in which she stated that gender discrimination suit against club caused her to suffer shingles was harmless error, where defense counsel made no motion to strike testimony, but rather cross-examined witness 17] Appeal and ErrorsOpinions and conclusions about her lack of knowledge of causal links in general between her experience at the club and coming © 2024 Thomson Reuters. No claim to original U.S. Government Works 2 Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003) 791 N.E.2d 903 down with shingles, and there were no claims of club president attempted to keep women out of compensation for physical harm put before the certain club areas. M.G.L.A. c. 151B, § 4; ¢ jury. 272, § 98. 1 Case that cites this headnote [10] Stipulations Use and enforcement in general [13] TrialIn general; duty of court Trial judge acted within his discretion in allowing female golf club member to testify in Trial judge in gender discrimination action gender discrimination action against club about against golf club acted within his discretion in her emotional reaction to perceived gender denying motion for mistrial based on statement discrimination, where club was unable to turn up in female golf club members’ counsel’s closing an alleged stipulation by member in which she argument in which counsel stated that prior to gave up a claim for damages based on emotional 1990 women could not be primary members at distress, and the docket contained no record of club, where counsel’s stray remark had no such a stipulation. impact on controversy which concerned events in 1990 and beyond. (11) Appeal and Errors~Preverdict motions; direction of verdict 114] Damages+~Physical illness, impact, or injury; zone of danger In appraising a motion for a directed verdict, Appeals Court does not assess the evidence in a Emotional distress damages can be sustained light favorable to a defendant; it assess evidence even in the absence of physical injury or in the light favorable to the plaintiff, drawing all psychiatric consultation. inferences in favor of the plaintiff that rationally and reasonably may be drawn. 4 Cases that cite this headnote [15] Civil Rights*Monetary Relief (12) Civil Rights:~Questions of Law or Fact Female golf club members’ damages award for There was ample evidence to take to the jury the emotional distress in amount of $424,000 for question whether, concerning access to the golf their anger, disappointment, outrage, and disgust links, the male officers of the golf club rigged over gender discrimination of club was not rules and applied rules in a manner that made excessive; it would be naive not to recognize the women second class members, resulting in an degree to which golf links and the country club uncomfortable and emotionally taxing are the locale for developing professional and environment at the club for those women business contacts. M.G.L.A. c. 151B, § 4; c. members who brought discrimination action, 272, § 98. where club manipulated membership categories in favor of men, club limited tee times for women on golf course, club applied club 2 Cases that cite this headnote disciplinary rules unequally toward women, and € © 2024 Thomson Reuters. No claim to original U.S. Government Works. Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003) 791 N.E.2d 903 [16] New TrialsRemission or Reduction of Excess [20] Equity®-Nature and source of jurisdiction of Recovery Injunction*Scope of Relief in General In acting on a motion for a remittitur, a judge In an action for injunction, a court may mould has broad discretion. each decree for equitable relief to the necessities of the particular case; equity is the instrument for nice adjustment and reconciliation between 1 Case that cites this headnote the public interest and private needs. 1 Case that cites this headnote [17] Civil Rights*=Exemplary or Punitive Damages Punitive damages of $1,430,000 were not excessive in gender discrimination action (21) Civil Rights*=Injunction against golf club, where there was evidence that the club had been cavalier and callously Detailed permanent injunction against golf club indifferent about failing to treat women golfers which committed gender discrimination was as equals, the conduct persisted in the face of warranted, where club had a history of hardened warning shots in the form of letters to the board position of resistance to the objectives of the of governors regarding the discrimination, permanent injunction. supplication had been ineffectual, and such damages might have a deterrent effect. M.G.L.A. c. 151B, § 9. 3 Cases that cite this headnote 2 Cases that cite this headnote [22] Pretrial Procedures=Particular Subjects of Disclosure [18] Injunction Irreparable injury Trial judge did not abuse his discretion in refusing to grant golf club’s discovery into Attorney General, when requesting an injunction hourly rates, billing practices, and expertise of in the public interest, is not required to make a female club members’ counsel as part of showing of irreparable harm. members’ request for attorney fees; trial judge had ample opportunity to size up the skill and preparation of counsel and value of what 2 Cases that cite this headnote counsel for the members achieved over course of the four week trial. 1 Case that cites this headnote [19] Injunction«=Discretion as to scope of relief. In an action for injunction, the scope of equitable relief is left to the discretion of the trial judge. [23] Costs, Fees, and Sanctions:~Hearing and Determination 2 Cases that cite this headnote Generally, a judge can, from the judge’s own experience, determine an award of legal fees; there is no requirement for an evidentiary © 2024 Thomson Reuters. No claim to original U.S. Government Works 4 Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003) 791 N.E.2d 903 hearing. damages under unfair trade practices statute in action against golf club for gender discrimination; unfair trade practices claim arose 7 Cases that cite this headnote from same facts underlying discrimination damages, and multiple damages factor of unfair trade practices statute was satisfied by punitive damages awarded in connection with discrimination claims. M.G.L.A. c. 93A, § 2. [24] Civil Rights=Injunction Golf club had contumaciously failed to comply 2 Cases that cite this headnote with injunction obtained by female golf club members’ in action against club for gender discrimination, where club imposed unequal restrictions on male and female primary club members in tournament play. Attorneys and Law Firms **907 *308 Lawrence P. Murray (Nancy A. Newark with him), Boston, for defendant. Marsha V. Kazarosian (Janet E. Dutcher with her), [25] Costs, Fees, and Sanctions®=Necessity of Haverhill, for Judith Borne & others. Security to Perfect Appeal or Other Proceeding Alice J. Klein, Charlestown, for Linda Letendre. In cases involving an appeal from a money judgment, a trial judge is not permitted to order Catherine C. Ziehl, Assistant Attorney General (Kathleen the posting of bond as a condition of pursuing Z. Quill, Assistant Attorney General, with her) for the the appeal. Rules Civ.Proc., Rule 62(d), 43B Commonwealth. M.G.L.A. Present: GREENBERG, KASS, & COHEN, JJ. 2 Cases that cite this headnote Opinion KASS, J. [26] Costs, Fees, and Sanctions=Necessity of Nine women members of the Haverhill Golf and Country Security to Perfect Appeal or Other Proceeding Club, Inc. (the “Club”), filed a complaint on August 10, 1995, with the Massachusetts Commission Against Parties may request from a trial court judge an Discrimination, alleging that the Club, a place of public attachment of real property or the grant of accommodation, discriminated unfairly against them on security interest in personal property to protect a the basis of their sex. *309 See G.L. c. 272, § 98, and judgment pending appeal. Rules Civ.Proc., Rule G.L. c. 151B, § 4.2 See also 804 Code Mass. Regs. § 62(d), 43B M.G.L.A. 1.07(1).* The Attorney General filed a complaint against the Club on behalf of the Commonwealth and the two 4 Cases that cite this headnote complaints were consolidated for trial. Proceedings on those complaints culminated in a judgment against the Club, based on jury findings, that aggregated $1,967,400 in damages. The Superior Court judge who presided at the trial also ordered permanent injunctive relief requiring 227] Antitrust and Trade Regulation’Measure cessation of the unlawful discriminatory acts that the jury and amount had found the Club had been practicing. From the various judgments, including injunctions and **908 judgments of Female golf club members were not entitled to contempt of court against it, the Club appeals.’ We affirm. €ef 024 Thomson Reuters. No claim to original U.S. Government Works. 2 Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003) 791 N.E.2d 903 advance; limited members could book tee times only 1. Facts. Trial lasted for twenty-two days and there are twenty-four hours in advance and, as a practical matter, twenty-six volumes of transcript, but the gender-related were, therefore, often frozen out. indignities that vexed women at the Club and goaded them to seek legal redress are susceptible to distillation. In d. Unequal application of rules. In the summer of 1995, summarizing the facts, we rely on what the jury could Karen Richardson organized a couples tournament. The have found, given the state of the evidence read in a light tournament went forward with a field of sixty-eight favorable to the plaintiffs. couples. A full field was seventy-two couples, although tournaments for men had been played with fewer pairings. a. Place of public accommodation. Whether the Club is a Robert Hanagan, the golf chairman of the Club, had, prior place of public accommodation was in dispute at trial, but to the tournament, told Richardson to fill out the field on appeal the Club does not challenge the determination with “Calloways” **909 —golfers who did not have an by the jury that it is. The Club makes its facilities established handicap.’ For failure to comply with available for hire by the general public for social Hanagan’s edict, Richardson was summoned to appear functions.’ See generally G.L. c. 272, § 92A. before the Club rules committee. When the committee met in judgment of Richardson, Scott Gleason, a member b. Manipulation of membership categories. There were of the committee, *311 referred to Hanagan as “God two major membership categories at the Club: primary when it came to golf at the Haverhill Country Club and and limited. Primary members had the broadest range of we don’t defy God.” Punishment meted out to access to the golf course and facilities. The access of Richardson, an avid golfer preparing for a tournament, limited members was, well, limited. In 1993, there were was biblically stern: she was suspended from play for 325 primary members, of whom seven were women and twenty-one days. 318 were men. Among the ninety limited members, eighty-four were women. As women lobbied to change On the other hand, when two male members, one of their memberships to primary, the Club rules for *310 whom was a member of the board of governors, cavorted making such a change, such as what payment needed to in the buff with two waitresses in the Club swimming be made with an application, underwent frequent revision, pool—an infraction of the rules—the response was and places on the waiting list for primary membership indulgent. Volker Wrampe, the general manager was, fluctuated without explanation. For example, one woman upon inquiry, told by the Club president, “Not to worry limited member seeking primary status began the process about it. We do it all the time.” as number nine on the waiting list but after some additional months had fallen to number eighteen. Some e. The 19th Hole and the Card Room. There was a grill women candidates unaccountably disappeared altogether room at the Club named The 19th Hole. Informally, it was from the waiting list for primary membership. Men called the men’s grill. When he noticed the 19th Hole was leapfrogged over women to primary membership. Male being used by women members for a posttournament junior members, when they turned age twenty-two, dinner, the Club president advised the Club’s general routinely received the opportunity to become primary manager that it would be preferable if women’s dinner members; women junior members did not. parties were booked for the main dining room. As for the Card Room, the Club president informed the general c. Limits on access of women to the golf course. For manager that it was a “sanctum sanitorium” for the older limited | members, starting time on the golf gentlemen; he “must try to keep the women out of [it].” course—teferred to in the record generally as “tee time”—was restricted. On Wednesdays, women limited 2. Continuing offense. General Laws ISIB, § 5, members could not tee off from 10 A.M. to 2 P.M.; on requires persons who claim that they have suffered Saturdays and Sundays women limited members could unlawful discrimination to file a complaint, first, with the not play until after 11:30 A.M.; if the course was closed Massachusetts Commission Against Discrimination for a men’s guest day, women could not play at all; male (MCAD).’ That step must be taken within six months of junior members could play during prime time, female the act or acts of discrimination that the complainant junior members could not. Male limited members were alleges. G.L. c. 151B, § 5. Cuddyer v. Stop & Shop allowed to play in prime time. Primary women members Supermarket Co., 434 Mass. 521, 531, 750 N.E.2d 928 could not use the course during primary men’s (2001). As the plaintiffs filed with the MCAD on August tournaments, but men could play during women’s 10, 1995, the acts of discrimination for which they could tournaments. Beginning in August, 1993, primary receive redress must ordinarily have occurred no earlier members could book tee times forty-eight hours in than February 10, 1995. =E 024 Thomson Reuters. No claim to original U.S. Government Works. Borne v. Haverhill Golf & Country Club, Inc., 58 Mass.App.Ct. 306 (2003) 791 N.E.2d 903 1 3. Jury instructions. The trial judge delivered his The trial judge, however, allowed (over objection) charge to the jury on October 22, 1999, faithful to the line evidence of discriminatory acts by the Club against its of cases that began with Wheelock College v. women members going back to 1990, this on the ground Massachusetts Comman. Against Discrimination, 371 that the gender discrimination described had the character Mass. 130, 138-139, 355 N.E.2d 309 (1976), and ended of a continuing violation. In the Cuddyer case, the court with Blare v. Husky Injection Molding Sys. Boston, Inc., explicated the “continuing violation doctrine” and 419 Mass. 437, 440-446, 646 N.E.2d 111 (1995). His differentiated its application *312 in Massachusetts instructions, therefore, included the procrustean special compared to the Federal courts. at 530-540, 750 Jd. verdict questions that later decisions recommended N.E.2d 928. Frequently, who a person suffers against and asked of the jury a rigidity of analysis that discriminatory conduct may hope that the situation will later decisions modified. See Abramian v. President & improve. For example, the women who felt themselves to Fellows of Harvard College, 432 Mass. 107, 117-119, be second-class citizens at the Club might reasonably 731 N.E.2d 1075 (2000); Lipchitz v. Raytheon Co., 434 have thought that once they had raised the consciousness Mass. 493, 508, 751 N.E.2d 360 (2001); Weber v. of men at the Club to their grievances, the board of Community Teamwork, Inc., 434 Mass. 761, 775, 752 governors would take measures so that women at the Club N.E.2d 700 (2001); Scott v. Boston Hous. Authy., 56 were treated equally. With that in mind, and so as not to Mass.App.Ct. 287, 290, 777 N.E.2d 174 (2002). encourage premature discrimination complaints, persons Concerning the effect of a finding of pretext, the judge may, starting with the first observed act of discrimination, presented to the jury a written special question that began reset the limitations clock with each new act of by following the “pretext only” formula of Blare v. Husky discrimination. /d. at 531, 750 N.E.2d 928. Injection Molding Sys. Boston, Inc., supra at 444, 646 N.E.2d 111, but added the saving grace of defining the { @) Plaintiffs may bring an “action based on the word “pretext” with the words “not the real reason(s) for cumulative effect of hostile acts.” Jd. at 533, 750 N.E.2d gender discrimination.” This made the question 928. So it is that “a plaintiff who demonstrates a pattern consistent with the Lipchitz opinion, supra at 501, 751 **910 of sexual [discrimination] ... that includes conduct N.E.2d 360, which modified the Blare formulation: the within the six-month statute of limitations, may claim the fact finder, if persuaded that the defendant’s legitimating benefit of the continuing violation doctrine and seek reasons were false, “may (but need not) infer that the damages for conduct that occurred outside the limitations employer is covering up a discriminatory intent, **911 period, unless the plaintiff knew or reasonably should motive or state of mind.” /bid. The ultimate question for have known that her work situation was pervasively the finder of fact is whether the conduct complained of hostile and unlikely to improve.” Jd. at 539, 750 N.E.2d was driven by unlawful considerations of sex, age, race, 928. See National R.R. Passenger Corp. v. Morgan, 536 color, religion, or sexual orientation. See id. at 504-506, U.S. 101, 116-117, 122 S.Ct. 2061, 153 L.Ed.2d 106 646 N.E.2d 111; Scott v. Boston Hous. Authy., 56 (2002); *313 Beaupre v. Cliff Smith & Assocs. 50 Mass.App.Ct. at 290, 777 N.E.2d 174. Mass.App.Ct. 480, 490, 738 N.E.2d 753 (2000); Morrison v. Northern Essex Community College, 56 Mass.App.Ct. Counsel for the Club anticipated the case law to come. At 784, 792-798, 780 N.E.2d 132 (2002)."° Whether there is the charge conference, he suggested that, in addition to a history of continuing violation, the Club urges here, as it putting to *314 the jury in writing the question whether did at trial, is a question of fact that the trial judge also the legitimizing reason offered by the Club for its conduct should have put to the jury. Instead, the judge decided that was a pretext, the judge should also put as a final question question himself. When there is undisputed evidence of whether discrimination was a motivating factor in the acts that the jury may find manifested gender actions of the Club. The judge declined to so revise the discrimination, and those acts have characteristics in written questions. common with acts committed within the limitations period, it becomes a question of law for the judge whether In the course of his oral instructions to the jury, the judge the earlier acts may be considered by the jury on the basis reviewed the written questions. He described what was of the continuing violation doctrine. See and compare, meant by a prima facie