Re: Were sanctions appropriate?
Matt Carter
claims court against a company called Worldwide Travel.
http://snurl.com/t2men .
In my suit, I alleged that Worldwide violated the Virginia Consumer
Protection Act by making false promises through its marketing agent.
At trial, the judge not only ruled against me, but sanctioned me for
$2,500 for "presenting insufficient evidence" to support my allegation
that the company that made the false promises was actually an agent of
Worldwide Travel. (I think that the Worldwide Travel contract signed
by, and presented to me by, the alleged agent was ample evidence of
the agency relationship, but the judge disagreed.)
My attorney (who did not attend the trial, but with whom I had
consulted extensively) felt that the judge was wrong and biased
against me. However, she (and other lawyers) estimated the cost of
appeal at $15,000 or more, so I decided not to appeal.
I do not intend to dwell on this case much longer, but several lawyers
with whom I discussed this case suggested that I file a complaint
against the judge (Judge Richard J. McCue) for failing to allow
admissible evidence, for making rulings contrary to admitted evidence,
for failing to follow statutory civil procedure in hearing motions,
and for generally showing bias against a pro-se litigant (me).
Therefore, I recently filed a complaint (shown below) against the
judge with the Virginia Judicial Inquiry and Review Commission.
I was disappointed by their reply, which said that my sole recourse
for what I was complaining about was to appeal my case. They said
that no amount of incorrect rulings by the judge could allow them to
investigate.
The only part of my complaint that the Commission was willing to
investigate was that the judge had yelled at me at one point during
the trial. They said that if I wanted to pursue that part of the
complaint, I should submit names of witnesses. The judge yelling at
me was of minimal importance to me compared to the rest of his
behavior that I complained about, so I'm not going to bother to
maintain the complaint over that alone. Especially since the only
other witnesses were the defendant and the defendant's attorney.
Thank you all, again, for your thoughts on my case that you expressed
several months ago. It's been a bitter pill to swallow, and has left
me with a lot less respect for the judiciary than I had before, but
it's been an important learning experience nonetheless.
Sincerely,
Matt Carter
My complaint to the VA Judicial Inquiry and Review Commission follows:
9/16/2009
Virginia Judicial Inquiry and Review Commission
P.O. Box 367
Richmond, VA 23218-0367
Dear Sir or Madam,
It is with great disappointment that I write to you today to complain
about the actions of Arlington County Virginia General District Court
Judge Richard J. McCue. I have always had a great respect for the law
and the judiciary. Complaining about a Judge is something that I
never expected to have to do, and is something that I do not take
lightly.
This complaint stems from Judge McCue's behavior in the matter of
Matthew P. Carter v. W-W Travel Centers, Inc., filed in the Arlington
County General District Court Small Claims Division with case number
GV08-3113.
I apologize that it has taken me almost six months to prepare this
complaint. Before submitting this complaint, I had to consult with
counsel to ensure that Judge McCue would not be able to further
penalize me for filing this complaint. Also, between my full-time job
as a software engineer working on a major project for the United
States Government, my part-time volunteer job as an auxiliary police
officer for Arlington County Virginia, my part-time graduate studies
in computer science at George Mason University, and spending time with
my wife and our 1-year-old child, I have had very limited time for
filing this complaint. However, given that so much of the matter is
on written record, I hope that the delay will not limit your ability
to consider my complaint.
Background
The facts of the case can be summarized as follows: Global Services,
Inc. mailed me a written solicitation postcard, prominently featuring
a Delta Airlines logo, promising me round trip airfare for two to
anywhere in the USA plus 2 nights of hotel accommodations, to be
provided by Worldwide Travel, in return for me and my wife attending a
sales presentation. (I have attached to this complaint a copy of
Global's solicitation postcard, which is entitled "Vacation
Invitation".) When I called the telephone number on the postcard for
details, I was promised that accommodations would be at a business
class hotel, that I would be able to choose the travel destination and
dates, and that I would only have to pay the taxes. My wife and I
attended the sales presentation, but I was never given the travel and
accommodations that I was promised. Instead, Global only gave me a
written contractual offer from Worldwide Travel that I could accept by
giving Worldwide $100, my and my wife's social security numbers,
copies of our credit cards, and copies of our driver's licenses, and
by agreeing to numerous new terms and conditions, such as that I
wouldn't be able to specify the travel dates, that travel could only
be on a Tuesday, and that Worldwide would not provide any travel or
accommodations if they had no availability. (I have attached to this
complaint a copy of the written offer from Worldwide Travel, which is
entitled "Vacation Extravaganza".) Through extensive web research and
contact with consumer protection agencies, I learned of hundreds of
people who had tried to use that particular offer from Worldwide
Travel, and in not one case did any of those people ever receive the
promised travel or accommodations.
Global Services, Inc. is a Kansas Corporation with a registered
address of 5320 College Blvd., Overland Park, KS 66211. Worldwide
Travel is registered in Florida under the name "W-W Travel Centers,
Inc.", and also does business under the name "Worldwide Travel
Center". Its registered address is 160 SW 12 Ave. #102, Deerfield
Beach, FL 33442.
I first sued Global for breach of contract and violation of the VA
Consumer Protection Act. In that trial, the Judge agreed that I was
owed airfare and accommodations as promised, but ruled that Global was
not liable to me for those since, according to the written
solicitation, Worldwide, not Global, was the party that was to have
provided the travel. The Judge did, however, award me $1,000 in
statutory punitive damages against Global for violation of VA Code
59.1-200(A)(1,2,3) for misrepresenting the promotion as being
sponsored by or approved by Delta Airlines, which it was not. (The
solicitation postcard, attached to this complaint, clearly portrays
the promotion as being sponsored or approved by Delta Airlines.)
I next sued Worldwide Travel for breach of contract and for making
false promises that violated the VA Consumer Protection Act, under the
legal theory that Global was acting as Worldwide's authorized agent
when it made me an offer on Worldwide's behalf and bound Worldwide in
contract.
At the trial against Worldwide, where I appeared pro se, Judge McCue
not only ruled against me, but he sanctioned me for $2,500 for
allegedly not presenting any evidence that Global was acting as
Worldwide's agent.
Complaint
In the trial and the hearings surrounding it, I believe that Judge
McCue committed judicial misconduct and many significant errors of
law, all in Worldwide's favor. I suspect that, since I was appearing
pro se against an attorney, Judge McCue considered me a nuisance and
did not give real consideration to my legal arguments.
I have itemized my complaints against Judge McCue formally as follows:
Count 1: Refusal to Admit My Testimony Regarding Oral Contract
The matter in controversy began when Global Services mailed me a
postcard promising me airfare and hotel accommodations in exchange for
me and my wife attending a sales presentation. The postcard
instructed me to call 800-413-5613 for details. When I called that
number, the representative with whom I spoke laid out the full details
of the contract: I would attend a 90-minute sales presentation with
Global Services in Columbia, MD, in exchange for which I would
receive, from Worldwide Travel, round trip airfare for two to any
major city of my choosing in the US on dates of my choosing, plus 2
nights of business class hotel accommodations.
At trial, when I attempted to testify that Global Services had made
this promise to me, Judge McCue sustained a defense objection saying
that such testimony was hearsay. It is, however, not hearsay, as even
a beginning law student would know.
Hearsay is an out-of-court statement submitted into evidence to prove
the truth of the matter stated. In this case, I was not attempting to
prove the truth of the matter stated. On the contrary, the matter
stated was known to be false. I was entering it into evidence because
it was a misrepresentation, not because it was an assertion of the
truth.
I explained this to Judge McCue, but he insisted, "You're testifying
about an out-of-court statement, so it is hearsay."
Since the fact that Global made a false promise on Worldwide's behalf
was crucial to my case, I very respectfully persisted in trying to get
the evidence admitted. I said to Judge McCue, "Your Honor, I
recognize that you are far more knowledgeable in the law than I am.
However, a contract is a verbal act with legal consequences, and as
such, cannot be hearsay. I have here the standard Mueller and
Kirkpatrick treatise on Evidence, commonly used by law students and
legal practitioners alike, and if Your Honor would permit me, I can
show the section where it explains that verbal acts, such as
contracts, are not hearsay."
To this, Judge McCue, obviously irritated, curtly replied, "I will not
allow it. Move on to your next evidence."
In an earlier Personal Jurisdiction hearing in the same case, a
different Judge, Judge Karen Henenberg, admitted that very same
testimony into evidence over the defense's objection, ruling that the
testimony was, indeed, a contractual utterance, and therefore was not
hearsay.
Judge McCue's error of fundamental law severely damaged my case, since
it prevented me from entering crucial evidence of a fraudulent promise
and of the fact that Global was purporting to act on Worldwide's
behalf.
Count 2: Refusal to Admit Witness Testimony Regarding Contract
To provide further evidence that Global worked as Worldwide's agent
and that Global made false promises of travel and accommodations to
lure prospective customers to its sales presentations, I brought a
witness to trial who had been through nearly the same experience that
I had been through with Global and Worldwide. This witness, a lawyer
from Maryland, had been solicited by Global to attend a sales
presentation on the promise that he would receive complimentary round
trip airfare to anywhere in the U.S. After the witness had accepted
the contract and had attended the Global sales presentation, Global
had given him the exact same Worldwide vacation certificate offer that
Global had given me. Again, the new offer, if accepted, required the
witness to pay Worldwide $100 and accept many new terms and conditions
such as that travel and accommodations were subject to Worldwide's
available allotments, that travel dates would be chosen by Worldwide,
and that travel (if it happened) would be on a Tuesday. This witness
received his written solicitation from Global several months after I
had complained to Global and Worldwide about Global's
misrepresentation in my case.
This witness's testimony would have demonstrated several important
facts: 1. Global and Worldwide did business together (a fact which
Worldwide denied). 2. Global was authorized to distribute Worldwide's
vacation certificate offers (a fact which Worldwide denied). 3.
Global and Worldwide had a history of cooperative, deceptive behavior,
in which Global misrepresented the terms and conditions of Worldwide's
offers in order to induce the consumer into providing some
consideration, and then Worldwide, complicit in this arrangement,
refused to stand behind the original terms and conditions provided to
the customer by Global. 4. Worldwide continued to do business with
Global even several months after I had notified Worldwide that Global
had misrepresented Worldwide's offer in my case. (Worldwide claimed
at trial that it ceases to do business with any distributor that
misrepresents its offers.)
However, Judge McCue, sustaining the defendant's attorney's
objections, blocked most of my witness's testimony. When my witness
attempted to testify about the written solicitation that Global had
sent to him, it was refused as "hearsay". As I described in Count 1
above, the solicitation could not be hearsay because it was not an
assertion of fact submitted for the truth of the matter stated. When
my witness attempted to testify about the promises that Global had
made to him over the telephone, the testimony was again wrongly barred
by Judge McCue on the legally flawed reasoning that it was "hearsay".
(A promise cannot be hearsay because it is a verbal act, referred to
by linguists as a "commissive illocution".)
Judge McCue's refusal to allow my witness's testimony was a legal
error so great as to constitute incompetence.
Count 3: Refusal to Admit Airline Ticket Price Quote
An important element of my case was to prove damages, namely the price
of airfare that I was promised but was never given. One costly and
inefficient way to present this evidence would have been to subpoena
an airline representative or travel agent to testify about the cost of
economy class tickets on a particular date to a particular location.
However, seeking to limit costs, I attempted to admit the price of
airfare into evidence by submitting a print-out of a price quote from
an airline's website. When the defense objected that the price quote
was hearsay, Judge McCue sustained the objection.
Once again, Judge McCue was mistaken about hearsay. The printed
price-
quote was non-hearsay for several reasons: First, it was a verbal act
with legal consequences, and so, by definition, cannot be hearsay. A
public price quote for a good or service, being legally actionable if
false, affects the market, whether it is true or not. The mere
uttering of the quote is what has consequences, not whether it was
true. Secondly, the price quote could reasonably be argued to fall
under the "market quotation" exception to the hearsay rule. Third,
the price quote is certainly a business record, and the Court can and
should take judicial notice of the obvious fact that the record is
generated and maintained by the airline in the course of doing its
business, without requiring an employee to testify to this fact. So,
the "business records" exception to the hearsay rule also applies.
Fourth, the quote is a computer-generated quote, produced by an
automated computer algorithm balancing constantly-changing supply and
demand. It is not an assertion of fact by a human declarant, which is
required for hearsay. Fifth, in Robinson v. Commonwealth (516 S.E.2d
475), the Virginia Supreme Court ruled that a price tag on an item
offered for sale, or alternatively, testimony about the price on such
a price tag, is not hearsay. Following the same logic, a public price
quote on an airline's website should not be considered hearsay. And
sixth, just applying common sense, an airline's price quote should not
be hearsay because not even one of the infirmities of testimonial
evidence (misperception, poor memory, insincerity, and ambiguity) is
present.
I attempted to make these arguments to Judge McCue, but he just
insisted that the price quote was inadmissible hearsay. In a denial
of due process, he cut me off and refused even to listen to my
arguments as to why the price quote should be admitted.
Count 4: Refusal to Admit Documents into Evidence as a Result of an
Invalid Motion in Limine
Among the extensive evidence that I had against Worldwide Travel were
hundreds of consumer complaints against Worldwide that had been filed
with the Florida Department of Agriculture and Consumer Services. The
complaints, filed by individual consumers across the United States
within the past year, all allege that Worldwide promised the consumer
complimentary airfare to anywhere in the U.S. and 2 nights of
accommodations, but when the consumer attempted to obtain the promised
airfare and accommodations, Worldwide refused to provide them, citing
various excuses, usually lack of availability. In several of the
complaints, the party that made the promise to the consumer on
Worldwide's behalf was Global Services, just as in my case.
These complaints were very valuable evidence in my case, as they
demonstrated that Worldwide and Global worked together (a fact denied
by Worldwide) and that Global had a history of making
misrepresentative promises of travel and accommodations on Worldwide's
behalf. They also proved that Worldwide had been given notice of
Global's misrepresentations, but that Worldwide continued to do
business with Global. (Worldwide insisted at trial that it ceases to
do business with any distributor that it has reason to believe
misrepresents the terms of its travel offers. However, these consumer
complaints show that to be false.)
Prior to trial, the defendant subpoenaed from me all documents that I
had received from any third parties pertaining to this case. In
compliance with that subpoena, I provided to the defendant all of the
consumer complaints on a data CD in the exact same format in which I
had received them from the Florida Department of Agriculture and
Consumer Services (also on a data CD). I delivered the CD to the
defendant's attorney, Jonathan Gelber, via certified U.S. mail with
return receipt. I also telephoned the defendant's attorney to ensure
that he had received the documents. Jonathan Gelber was not in the
office when I called, but his partner attorney, Colin Winkler,
answered for him and informed me that Mr. Gelber had indeed received
the CD and had been reviewing the documents on the CD.
The trial was one week later. As the trial was about to begin,
Jonathan Gelber walked from the defendant's table over to the
plaintiff's table and handed me a Motion for Sanctions for $20,000.00
and a Motion in Limine seeking to prevent me from submitting into
evidence any of the documents that were contained on the CD. In
support of these motions, Jonathan Gelber argued to Judge McCue that
1) my delivery of a data CD containing the documents did not comply
with the subpoena, since the subpoena required "documents" and a CD is
not a document, 2) he was unable to read the files on the CD, and 3)
it would have cost him $20,000.00 or more to print out the files on
the data CD.
I argued that the motions were absurd and should be denied for several
reasons. First, if Jonathan Gelber had had any problem with the
delivery format, he could have contacted me and I would have been
happy to work with him to satisfy his requirements. I had supplied my
e-mail address, telephone number, and mailing address to him on all of
my filings and communications, but he had made no effort to contact me
during the week between the delivery of the CD and the trial. (To
this, Jonathan Gelber replied mendaciously that he didn't attempt to
contact me because he didn't know whether the contact information he
had for me was any good.) Second, Jonathan Gelber's assertion that he
was unable to read the documents on the data CD is contradicted by
Colin Winkler's statement to me over the telephone a week earlier that
Jonathan Gelber had been reviewing the documents on the CD. Third, I
supplied the files to Jonathan Gelber in exactly the same digital
format in which they had been supplied to me by the Florida Department
of Agriculture and Consumer Services. If Jonathan Gelber insisted
that files on a CD that I gave to him are not documents, then the CD
that the Florida Department of Agriculture and Consumer Services sent
to me is not covered by his subpoena (which requested "documents").
Finally, I pointed out that the files on the CD were PDF files, which
is a standard, open format that is readable by nearly any computer
using free software, so there is no reason why Jonathan Gelber should
not have been able to read them.
Astoundingly, Judge McCue sided with Jonathan Gelber, ruling that my
delivery of the documents on a CD failed to comply with the subpoena.
Judge McCue declined to sanction me for the "failure" since Jonathan
Gelber had waited until the day of trial to complain. However, Judge
McCue ruled, in sustainment of Jonathan Gelber's Motion in Limine,
that I would not be able to submit the documents into evidence unless
and until Jonathan Gelber had had a chance to review them on paper.
Jonathan Gelber then indicated that he would be willing to review them
on the spot if there weren't too many. Judge McCue asked how many
documents there were, and I replied that, of the hundreds of
complaints, I only needed to put about eight of them into evidence.
Judge McCue then instructed me to show those documents to Jonathan
Gelber, which I did.
In the trial that followed immediately, I attempted to submit those
documents into evidence. Jonathan Gelber objected, claiming that the
documents were hearsay. I explained that they were not hearsay
because they fell into the "public records" hearsay exception, since
they were compiled by a public agency. Judge McCue stated that,
without a certificate of authenticity, they were inadmissible. I
then produced a certificate of authenticity from the Florida
Department of Agriculture and Consumer Services. Judge McCue then
asked me whether that certificate was among the documents that I had
given Jonathan Gelber to review just before the trial began. I
replied that the certificate was on the CD of documents that I had
supplied to him a week earlier, but that I had not showed it to him
just before the trial because I had been instructed only to show the
complaints that I had intended to submit into evidence. Judge McCue
then refused to let me submit the certificate of authenticity, or any
of the accompanying complaints, into evidence.
Judge McCue, in refusing to let me submit this crucial evidence,
clearly demonstrated a bias against me. First of all, the Motion in
Limine was an absurd contrivance of the defendant's attorney, designed
in bad faith to prevent me from submitting important evidence. Judge
McCue should have recognized this and denied the Motion. However,
even giving Jonathan Gelber the benefit of the doubt and proceeding on
the assumption that Jonathan Gelber had never seen the subpoenaed
documents before the day of trial, Judge McCue should have recognized
that I had complied with the subpoena, and should therefore have
permitted me to introduce the certificate of authenticity into
evidence when it was demanded, since to do otherwise was to
substantially deny justice and prevent a fair trial on the merits.
Count 5: Breach of Courtroom Decorum and Failure to Allow Valid
Questioning
Global Services had promised me that Worldwide Travel would provide me
with airfare and accommodations on certain terms (favorable to me) in
exchange for my attending a sales presentation with Global Services.
After I had fulfilled my end of the bargain, Global gave me only an
offer from Worldwide which, if I chose to accept it, required that I
pay Worldwide $100, agree to travel only on a Tuesday, agree to let
Worldwide select the travel dates, agree that Worldwide need not
provide any travel if they have no availability, and agree to numerous
other terms and conditions that had not been specified in advance.
I declined to accept that new offer, and instead demanded performance
from Worldwide on the terms of the original oral contract by which I
had been induced to attend Global's sales presentation.
In its written answer to my suit, Worldwide insisted that if I had
only accepted the second offer (with all the new terms and
conditions), I would have received the desired travel and
accommodations.
Based on my extensive research on the web and from contacting consumer
protection agencies, I knew that Worldwide rarely, if ever, provided
travel and accommodations to consumers who accepted and submitted its
travel offers.
I sought to prove this at trial by examining Worldwide's president,
Michael Friedburg. I asked him, "What percentage of Worldwide Travel
offers that consumers accept and submit to Worldwide actually result
in the consumers receiving travel and accommodations?" Mr. Friedburg
responded, "I don't know. We don't keep track of that information."
I then followed up with, "Would you estimate it to be more than 50%?
Or less than 50%?"
At this point, Judge McCue yelled at me, "He already said that he
doesn't know!" When I clarified to Judge McCue that I was no longer
asking for the exact percentage, but merely wanted the witness's
estimate of whether it was more than half or less than half, Judge
McCue angrily forbade me from asking any further questions on that
topic.
First of all, it was highly inappropriate for Judge McCue to yell at
me. Throughout the trial, I had treated the Judge, the defendant's
counsel, and even the hostile witness with respect and dignity, never
raising my voice. Judge McCue's emotional outburst failed to preserve
proper courtroom decorum, and was uncalled-for.
Secondly, there was no legal basis for Judge McCue to preempt my
questioning of the witness without an objection from the defendant's
attorney.
Finally, by preventing me from asking the witness this valid and
important question, Judge McCue prevented the relevant truth from
coming out. As I strongly suspect, the correct answer was 0% or very
close to 0%, and the witness knew this. Judge McCue's behavior here
demonstrated a bias against me or in favor of the defendant, the end
result of which was a substantial deprivation of due process and
justice.
Count 6: Failure to Sustain Objection to Invalid Questioning of
Witness
As I've explained above, Global Services lured me to its sales
presentation by promising, both orally and in writing, that Worldwide
Travel would give me airfare and accommodations to a place and on a
date of my choosing. However, after I attended the sales
presentation, Global only gave me a travel offer from Worldwide with
numerous, unacceptable new terms and conditions, such as that I'd have
to pay Worldwide $100, that Worldwide would not have to provide
travel, and that Worldwide could pick the travel dates, which would be
on a Tuesday.
In its defense, Worldwide claimed that if I had just accepted the
second offer, I would have received the requested travel. Worldwide
attempted to argue that, by not accepting the new offer, I had no
reason to complain that I didn't receive the promised travel.
To make this point, Jonathan Gelber, Worldwide's attorney, asked me on
cross-examination, "Did you abide by the terms of the Worldwide Travel
agreement that Global gave you after the sales presentation?" I
objected to the question, pointing out that the question cannot be
answered "yes" or "no" because either answer would imply something not
in evidence, namely that I had a duty to comply with the terms of the
new offer. (Jonathan Gelber's question is a standard technique that
less reputable lawyers use to try to trip up witnesses during
questioning. The classic example of this technique is the question,
"Have you stopped beating your wife yet?")
Judge McCue overruled my objection, and directed me to answer the
question. I replied that I could not answer because there was no
agreement, as presumed by the question. Jonathan Gelber then asked in
a different way, "This Worldwide Travel certificate compels you to pay
$100 to Worldwide, but you never did so, did you?" Again, I objected
to the question, since it assumed something not in evidence, namely
that the certificate (a contractual offer) compelled me to do
anything. Since it was merely an offer that I chose not to accept, I
was in no way compelled by it to do anything. Again, Judge McCue,
obviously irritated, refused to uphold my valid objection and directed
me to answer "yes" or "no".
Even a person of minimal legal experience could see that Jonathan
Gelber's line of questioning was invalid and that my objections to it
should have been sustained. However, Judge McCue, whether through
incompetence or bias against me, failed to sustain my valid objections
and caused the evidentiary record to contain false and misleading
information when I answered "no".
Count 7: Failure to Recognize Agency Relationship Between Global and
Worldwide
A central element of my case was that Global Services was acting as an
agent of Worldwide Travel when it promised me that Worldwide would
provide me with travel and accommodations if I attended Global's sales
presentation.
According to agency law, as described in numerous legal treatises
including the Restatement Third, Agency reference book, an agency
relationship arises when one party, the agent, acts on behalf of, or
in a representative capacity for, another party, the principal, with
the principal's consent and subject to the principal's right of
control. If the agent acts within the scope of its authority, the
principal is bound by the agent's actions. An agent may be an
employee, or may be an independent contractor. Thus, if company P
contracts with company A to market P's products to third party
consumers and to enter P into purchase contracts with those consumers,
then A is P's agent, and P is the principal. If A was authorized by P
to state the terms and conditions of P's contracts to the consumers,
and A misstates those terms and conditions, then P is liable to the
consumers for A's misstatement. This is well-established agency law,
which every law student must know before becoming a lawyer.
This is also precisely what happened in my case. Worldwide has stated
repeatedly, both in statements on various websites and in its answer
to my suit, that it does not market directly to consumers, and that it
distributes its vacation certificates (which are legal offers) to
consumers via distributing agents. Worldwide explains (truthfully)
that those distributors are authorized to represent those certificates
to end users (consumers) as inducements to attend sales presentations,
but only if the distributor states the terms and conditions of the
certificate accurately to the end users. The certificate is a legal
offer which binds Worldwide in contract if the end user chooses to
accept it. Therefore, the distributor, without question, acts as an
agent of Worldwide, since his actions affect the legal relations of
Worldwide with respect to a third party (the consumer). If the agent
makes misrepresentations about the offer, as Global did in my case,
the principal (Worldwide) is liable for those misrepresentations.
Bafflingly, Worldwide claimed that it had never done business with
Global, that it had never sold certificates to Global, and that Global
was not an authorized distributor of its vacation offer certificates.
However, this is obviously false for several reasons. First, the fact
that Global had physical possession of Worldwide's vacation offers is
strong circumstantial evidence that Worldwide had sold its offers to
Global for Global to distribute to consumers. Second, numerous other
consumers, whose complaints I attempted to submit into evidence, also
had received Worldwide's vacation offers (bearing the name "Global
Services" as the distributor) from Global, and had submitted them to
Worldwide with no objection from Worldwide about them having come from
an unauthorized distributor. Third, a witness that I examined at
trial testified that he, too, attended a Global Services sales
presentation and that he, too, received a Worldwide Travel vacation
offer from Global Services. Fourth, Worldwide itself stated that if I
had merely accepted the vacation offer given to me by Global and
submitted it to Worldwide with the requirement payment, I would have
received the promised travel and accommodations, which clearly implies
that the distributor from whom I had received the offer (Global) was
an authorized distributor.
Judge McCue, however, either through incompetence or deliberate
blindness, failed to recognize that Worldwide [was incorrect] in
testifying that there was no business relationship between Worldwide
and Global. Judge McCue insisted that I had presented no evidence of
agency between Global and Worldwide, and so my suit must be dismissed.
Count 8: Imposition of Sanctions Without Justification
On December 2, 2008, Judge McCue presided over a pre-trial hearing for
Worldwide's Demurer (Motion to Dismiss For Failure to State a Cause of
Action upon which Relief May Be Granted). In that hearing, I presented
several pieces of evidence: 1) the solicitation postcard that Global
had sent me mentioning that Worldwide would provide me travel to
anywhere in the U.S., 2) my testimony about Global's promise to me
over the telephone that Worldwide would provide me travel and
accommodations to anywhere in the U.S. in exchange for my attendance
at a sales presentation, 3) my testimony that I attended Global's
sales presentation but that I never received the promised travel and
accommodations, and 4) the Worldwide travel offer that Global gave me
after I attended the presentation. To this, Judge McCue said that he
would deny the defendant's Demurer, but that he found my evidence of
an agency relationship between Global and Worldwide weak, and that if
I didn't bring more evidence to trial, then sanctions would be
appropriate.
Despite the fact that the evidence I had shown in that pre-trial
hearing was ample evidence of an agency relationship, I heeded Judge
McCue's warning and did bring substantial new evidence to trial on
March 5, 2009.
At trial, I brought in a live witness who had been through the same
fraudulent misrepresentation that I had been through with Global and
Worldwide. That witness testified about how he had attended Global's
sales presentation and had received from Global an offer, signed by
Global, that bound Worldwide in contract if he chose to accept it.
That demonstrated clearly that Global was acting as Worldwide's agent.
Since that witness's experience had occurred several months after I
had notified Worldwide of Global's misrepresentation in my case, it
also demonstrated that Worldwide was complicit in Global's
misrepresentation of Worldwide's offers.
At trial, I also brought hundreds of complaints filed within the past
year from other individuals who had received Worldwide's travel offers
(with highly unfavorable terms and conditions) after having been
promised (by Worldwide's distributing agents) complimentary airfare
and accommodations with favorable terms and conditions. This
demonstrates a pattern of deceptive behavior on Worldwide's part, and
Worldwide's use of distributing agents to make misrepresentations. Of
these hundreds of complainants, not a single one received any travel
or accommodations from Worldwide. In several of the complaints,
Global was the distributing agent, as was the case with me. As I
explained in Count 4 above, Judge McCue wrongly barred me from
entering any of these complaints into evidence on the grounds that I
had not showed the accompanying certificate of authenticity to the
opposing counsel just before trial. Even if these complaints were not
technically admissible (a point I dispute), Judge McCue should have
considered my good faith attempt to submit them before sanctioning me
for "lack of evidence".
At trial, I also expected to call as a witness a representative of
Global, who could testify about Worldwide's marketing and distributing
agreement with Global. I had validly served a subpoena duces tecum on
Global to appear at trial, but Global never showed up at trial. Judge
McCue should have taken this into account before sanctioning me for
"lack of evidence".
Immediately after the trial in which Judge McCue (wrongly, in my
opinion) dismissed my case, Judge McCue heard a motion from the
defendant's attorney saying that I should be sanctioned on the grounds
that my suit was baseless.
In my defense against that sanctions motion, I again sought to submit
into evidence the consumer complaints against Worldwide that I had
obtained from the Florida Department of Agriculture and Consumer
Services. Worldwide's attorney objected, arguing that if the
documents were inadmissible at trial, then they were still
inadmissible now. I argued that they ought to be admissible now,
regardless of whether they were admissible before, because they
demonstrate that I had a good faith basis for my suit. Judge McCue
sustained Worldwide's objection, barring me from entering those
documents into evidence in my defense against sanctions. Judge
McCue's action was a substantial deprivation of justice.
Next, I pointed out the fact that I had consulted with several lawyers
prior to filing my case and prior to going to trial, and that most of
those lawyers had told me I had a very good case. One lawyer even
offered to represent me on contingency for a mere $1,000 up-front fee
because my case against Worldwide was so strong. (That lawyer later
became too busy with other cases, and so was unable to represent me.)
Other lawyers counseled me that I had a good grasp of the law, and
that I ought to be able to do fine on my own, and that the risk of
losing and being sanctioned was negligible because I was acting in
good faith. Judge McCue admitted these facts into evidence, but he
apparently didn't give them much weight, because he still decided to
sanction me.
In response to Judge McCue's suggestion that I had submitted no
evidence of an agency relationship between Worldwide and Global, I
pointed out that there was extensive evidence of the agency
relationship:
1.The Worldwide vacation offer itself was a legal offer, prepared by
Worldwide, signed by Global, and presented to me by Global, that would
have bound Worldwide in contract if I had accepted it. This, alone,
demonstrates an actual or apparent agency relationship between Global
and Worldwide. (The Worldwide vacation offer was admitted into
evidence at trial, and is attached for your reference. It is entitled
"Vacation Extravaganza".)
2.The fact that Global mailed me a written solicitation promising me
travel and accommodations from Worldwide in exchange for me providing
some consideration to Global is strong circumstantial evidence of the
agency relationship. (Global's written solicitation was admitted into
evidence at trial, and is attached for your reference. It is entitled
"Vacation Invitation".)
3.A witness whom I examined at trial testified that Global had
presented to him a written contractual offer from Worldwide, signed by
Global, that bound Worldwide when he accepted it. When he submitted
the accepted offer to Worldwide, Worldwide did not object to the offer
as having been distributed or signed by an unauthorized party. This
is strong evidence that Global was an agent authorized to present
Worldwide's offers to consumers.
4.Several months before trial, Worldwide had filed a Motion to Dismiss
for Lack of Personal Jurisdiction. Judge Karen Henenberg presided at
the hearing of that motion, and ruled that there was, indeed, strong
evidence of an agency relationship between Global and Worldwide.
Judge Henenberg noted that the Virginia Long Arm Statute (VA Code
8.01-328.1) says that a Court may exercise personal jurisdiction over
a person, who acts directly or by an agent, as to a cause of action
arising from the person's transacting any business in the
Commonwealth. Judge Henenberg ruled that, given the evidence of an
agency relationship between Global and Worldwide, and given the agency
clause in the Long Arm Statute, Worldwide was subject to Virginia's
jurisdiction as a result of Global's solicitation to me. So, the
existence of the agency relationship had already been determined as a
matter of law.
5.I further pointed out that I had I subpoenaed a representative of
Global Services to testify at trial about Global's relationship with
Worldwide, but no Global representative ever showed up. (When I had
pointed this out to Judge McCue at trial, he just shrugged and told me
to move on. I believe that Judge McCue, if interested in having a fair
trial on the merits, should have offered me a continuance and a demand
that Global comply with the subpoena.) In any event, I should not
have been sanctioned for the failure of a subpoenaed witness to show
up to produce evidence in my favor.
Despite all these defenses against sanctions and a clear demonstration
that I had acted in good faith and had a reasonable belief that my
case was well-grounded in fact and law, Judge McCue insisted that I
should be sanctioned "for insufficient evidence". I believe this
shows that Judge McCue was biased and had unjustly made up his mind in
advance to sanction me for some reason, perhaps because I was
appearing pro se.
Count 9: Hearing Defendant's Motion to Reconsider Without Jurisdiction
After the trial, the defendant and its attorney, Jonathan Gelber,
apparently weren't satisfied with a $2,500 sanctions judgment against
me, so they filed a Motion to Reconsider, requesting that the
sanctions be increased to $11,000. Jonathan Gelber scheduled that
hearing for March 30, 2009, 25 days after the trial. I hired an
attorney to represent me, since I had no confidence in Judge McCue to
render a fair ruling. At the Motion to Reconsider hearing, my
attorney pointed out to Judge McCue that Virginia Supreme Court Rule
1:1 states that the trial Court loses jurisdiction after 21 days, so
since 25 days had passed since the trial, the Court no longer had
jurisdiction over the matter. Judge McCue agreed that he no longer
had jurisdiction to hear the matter. Jonathan Gelber was furious, and
begged Judge McCue to be able to present his case for reconsideration
anyway. Astoundingly, Judge McCue agreed to hear Mr. Gelber's
argument anyway! This, again, demonstrates Judge McCue's bias against
me and his willingness to sidestep Court rules for improper purposes,
which had the end result of running up legal costs for both me and
Worldwide.
As Mr. Gelber argued for further sanctions, he presented no new
evidence, but just complained vehemently that I should not be able to
get away with such a "small" penalty. Judge McCue responded that
$2,500 was reasonable and "sufficient to prevent further abuse by the
plaintiff".
There is absolutely no basis for Judge McCue to believe that I
committed any kind of "abuse". The notion that I would abuse the
legal system could not be farther from the truth. I am a sworn
auxiliary police officer of the Arlington County Police Department,
where I took an oath to uphold the law-- an oath that I take very
seriously. In my 8 years of volunteer service as an auxiliary police
officer, I have been promoted to the rank of Sergeant, I have trained
numerous officers in law and ethics, and have contributed thousands of
hours of volunteer service to my community. I earned the Principles
of Government Service Award in 2004 for meritorious service to
Arlington County, a rare award for a volunteer. In April of 2009, I
was awarded Arlington's Presidential Volunteer of the Year award for
outstanding community service. I am an Eagle Scout, and still uphold
those values in all aspects of my life. I am also a dedicated husband
and father. The notion that I would commit any kind of abuse is
antithetical to all of my principles.
Count 10: Possibility of Improper Ex-Parte Communications with
Opposing Counsel
Before the trial, there were 4 preliminary hearings with 3 separate
Judges (to hear Worldwide's numerous pre-trial motions). Two of the
Judges, Judge Karen Henenberg and Judge Daniel Fiore, appeared to be
very sympathetic to my side of the case and appeared highly critical
of Worldwide Travel after hearing the evidence. The third pre-trial
Judge, Judge McCue, said during a pre-trial hearing that he thought my
case was weak. Somehow, when the trial date came, Judge McCue
happened to be the Judge. Perhaps it was just bad luck for me, but I
suspect that the defendant's attorney, Jonathan Gelber, made an
arrangement with Judge McCue to ensure that he would preside at
trial. I believe this because my case was the only civil trial that
Judge McCue heard that day, and because Judge McCue may have wanted to
try my case due to his familiarity with it. An order directing a
particular Judge to hear a particular case is rare, and (I believe) is
supposed to be on the record available to both parties and is supposed
to contain a justification for the restriction. There was no
paperwork in the case file directing the case to be heard by Judge
McCue. I don't object to Judge McCue having chosen to preside over my
case at trial, as that is his right, but I do object to any private
communication he may have had with the opposing counsel assuring him
that he would be the trial Judge.
Conclusion
Judge McCue's legal errors and failure to follow Court rules resulted
in a great financial loss to me including $2,500 in sanctions and
$2,660 in attorney's fees. It has also left me with the sense that a
lay person with a reasonable grasp of the law who is the victim of
fraud by unethical corporations cannot always expect to find justice
in Court. Instead, despite studying the laws and following all the
rules, the layman may find the legal system to be a Kafkaesque
nightmare, to be avoided at all costs.
I was not the only person to find Judge McCue's rulings and conduct in
my case to be wrong and improper. After the Motion to Reconsider
hearing, my attorney commented privately to me, "Judge McCue was
clearly biased against you. What did you do to make him so mad?
Furthermore, Judge McCue obviously has some kind of relationship with
the defendant's attorney. There's no other explanation for why Judge
McCue would let Jonathan Gelber present his motion after Judge McCue
had ruled that his Court had no jurisdiction."
The witness I had at my trial was both a victim of Worldwide Travel's
fraud and was also a lawyer from Maryland. He called the trial a
travesty of justice and said that Judge McCue was obviously just doing
a favor for the defendant's attorney, who must have been his buddy.
I posted an unbiased summary of the trial to a lawyer's newsgroup on
the Internet, and many of the lawyers and law students who responded
said that Judge McCue's sanctions against me show that he was either
incompetent or corrupt.
Before the trial, I had been consulting with several Virginia lawyers,
most of whom told me I had a good case. When I told those lawyers
about Judge McCue's ruling, they were shocked. They said that
sanctions against a litigant like me who was clearly acting in good
faith and who had a reasonable belief that the law was on his side
show that the Judge must have been a bad Judge.
I understand that when the Commission receives a complaint, it does
not disclose the identity of the complainant to the Judge who is the
subject of the complaint unless the complainant consents to such
disclosure. Therefore, I hereby consent for the Commission to share
this complaint in its entirety, including my identity, to Judge McCue.
Thank you for taking the time to consider my complaint. Again, I
regret that it was necessary to bring this matter to your attention.
I would be happy to answer any questions that you may have.
Sincerely,
Matthew Carter
slide
> Back in May, I posted on MLM a summary of a case I filed in small
> claims court against a company called Worldwide Travel.
> http://snurl.com/t2men .
> In my suit, I alleged that Worldwide violated the Virginia Consumer
> Protection Act by making false promises through its marketing agent.
> At trial, the judge not only ruled against me, but sanctioned me for
> $2,500 for "presenting insufficient evidence" to support my allegation
> that the company that made the false promises was actually an agent of
> Worldwide Travel. (I think that the Worldwide Travel contract signed
> by, and presented to me by, the alleged agent was ample evidence of
> the agency relationship, but the judge disagreed.)
>
judicial misconduct]
I may be misreading your post but my take is the question is one of
agency. I read your presentation to the court as one of breach between
you and Global. The issue is whether any representations made by Global
bind World Wide. If I have it right, then any further evidence you
present to the court of breach by Global isn't relevant to the issue of
agency. Further, and again, if I have this right, then your persistence
in pursuing World Wide by presenting additional evidence of breach by
Global would annoy any judge I know. I do often get the gist of these
things wrong, so forgive me if I have here.
As a person who works in ADR, I have one foot in the courtroom and one
out. Judges will often refer cases to me when, in pre-trial, they sense
a pro se plaintiff who they dislike or who they think will waste their
court time. Frex, there is no rule preventing paranoid psychotics from
filing cases and they do. I get many of them. I am not saying you are
unbalanced. What I'm saying is that judges do take a dislike to
litigants and / or think their cases are a waste of the court's time. I
infer here that the judge did take a dislike to you probably because he
thought your case a waste of court time and public resources.
Returning to agency, any verbal representations by Global again go to
breach by Global but do not bind World Wide so are hearsay and do not
support any evidence of agency between World Wide and Global. Your big
gun of evidence is that contract you cited above. Once the judge ruled
that as not evident of agency, you run out of ammo quickly.
Judges in civil cases are allowed great latitude in their rulings. This
is necessary for the functioning of civil cases due to the enormous
range that these cases cover and the likewise large range of
circumstances and players involved. I would suppose the commission saw
what the judge did here as within the scope of that latitude.
Bob
[snip]
You should read cases on judicial misconduct. See, e.g., In re
Judicial Misconduct, 527 F.3d 792, 794 (9th Cir. 2008) ("Complainant
was the plaintiff in a civil case assigned to the subject district
judge and referred to the subject magistrate judge. He alleges
numerous instances of misconduct: both judges' discovery rulings, both
judges' decisions to continue with the case after complainant filed a
notice of appeal, and the district judge's decision to sanction
complainant's failure to appear at a scheduled pre-trial conference.
These charges are directly related to the merits of the judges'
rulings in the underlying case, so they are dismissed.").
A litigant's disagreement with a judge's ruling is not a basis for
finding judicial misconduct. See, e.g., 28 U.S.C. � 352(b)(1)(A)(ii).
My guess is the regulations in Virginia are similar.
Other than the alleged yelling, the many bases for your disagreement
with the judge are all legal issues that should be addressed on
appeal. Your decision not to file an appeal doesn't permit you to
circumvent the normal process by accusing the judge of misconduct.
Cy Pres
<dryads...@xxxxyahoo.com> wrote:
>Judges in civil cases are allowed great latitude in their rulings. This
>is necessary for the functioning of civil cases due to the enormous
>range that these cases cover and the likewise large range of
>circumstances and players involved. I would suppose the commission saw
>what the judge did here as within the scope of that latitude.
I don't think the commission found any such thing. They sidestepped
the issue, except for the yelling issue. In my opinion, issues like
the yelling generally only result in serious sanctions when the
incivility is particularly extreme, or prolonged and previously cause
for lesser sanctions. If the commission did find incivility, though,
this is an issue where such commissions have reprimanded judges.
I think the commission decided, simply, that while the behavior
complained of was, arguably, outside the ambit of judicial discretion,
that issue is not for a judicial qualifications commission to
consider. An abuse of discretion is a justification for an appeal,
not for the discipline of the judge.
However much I sympathize with the plaintiff in this case, I do not
believe judges should generally be subject to discipline simply for
being wrong, or even necessarily for being biased, so long as the bias
does not lead to actual corruption.
In this case, we have what may be a bad ruling, which may or may not
have been appealable, followed by what I consider to be a very
improper imposition of sanctions under circumstances in which very few
judges would have imposed sanctions. Some judges go their entire
careers without ever once imposing sanctions of this nature, and to
pick out a case like this, with someone who was clearly a pro se
plaintiff acting in good faith and handling his case a lot more
competently than most pro ses, smacks of some improper motive. There
was clearly a good faith basis for the case, which furthermore had
objective merit, as the two previous judges in the case seemed to
believe, and as I believe after doing more research on just what a
blatant fraud the two corporate entities involved in the case are
pulling.
However, this is a smackdown that should have been administered by the
appeals court. The high cost of an appeal thwarted this. Sad to say,
we put a premium on the limited resources of appeals courts which
prevents cases this small from ending up there unless you have a
litigant well-heeled enough to cough up the hefty price.
There's a cost-benefit analysis here. A horrible decision over a
wrongful death which cost the plaintiffs millions and a horrible
decision that cost the plaintiff a few thousand and an injury to the
ego invoke different metrics of value.
I will note that in general, judges I have encountered are among the
most courteous of professionals. Truly excellent judges can make all
parties feel as if they have had their "day in court" and been treated
fairly, even if they don't win, for whatever reason. Doctors, and
sadly lawyers, often fall far short of this general level of civility.
It is sad that bad experiences with bad apples can erode faith in the
system.
slide
> On Tue, 10 Nov 2009 08:48:35 -0700, slide
> <dryads...@xxxxyahoo.com> wrote:
>
>> Judges in civil cases are allowed great latitude in their ruling
[snip opinion with a different slant than mine]
The problem we have is that we are only hearing about the conduct of the
judge from the aggrieved party. He very well may have left out numerous
warnings from the bench about the way he presented his case or his
conduct in court.
My suspicion is that this was left out and it was the cause of the
sanctions. If not, then this same judge would have had a history of
sanctioning plaintiffs or perhaps pro se litigants or some pattern of
similar misconduct. When reading the OP for this part of the thread, I
was mostly impressed by what wasn't in the post than what was.
Clearly the OP is a very careful researcher and approached his appeal to
the Commission carefully. That he didn't include a pattern of misconduct
implied to me that something about him or his demeanor caused this judge
to run off the rails.
Since the OP can't seem to get he message that his case does not show
evidence of agency, I'd guess that his insistence that it does, even
after being directly told by the judge to get off of it, was the cause
of the sanctions.
If I'm right, then the judge was moderate, really. Other judges would
have cited him for contempt. Here the judge determined that the OP was
wasting not only the court's time, but the dependent's. He meted out
punishment to compensate the defendant rather than himself.
Cy Pres
<dryads...@xxxxyahoo.com> wrote:
>Cy Pres wrote:
>> On Tue, 10 Nov 2009 08:48:35 -0700, slide
>> <dryads...@xxxxyahoo.com> wrote:
>>> Judges in civil cases are allowed great latitude in their ruling
>[snip opinion with a different slant than mine]
>The problem we have is that we are only hearing about the conduct of the
>judge from the aggrieved party. He very well may have left out numerous
>warnings from the bench about the way he presented his case or his
>conduct in court.
>My suspicion is that this was left out and it was the cause of the
>sanctions. If not, then this same judge would have had a history of
>sanctioning plaintiffs or perhaps pro se litigants or some pattern of
>similar misconduct. When reading the OP for this part of the thread, I
>was mostly impressed by what wasn't in the post than what was.
All this assumes facts not in evidence, and basically accuses the OP
of being a liar or delusional. I'm generally not going to go beyond
what the OP says in describing what happened in their case, unless it
is clearly absurd or clearly missing details. The OP in this thread
was particularly detailed. If they, for whatever reason, chose to
hide some important fact, or failed to realize it was important, then
I suppose I'd be basing my analysis on bad facts, but I am not simply
going to assume the OP failed to disclose facts of this nature based
on some idea that a judge couldn't possibly ever inappropriately
impose sanctions.
In the situation actually described by the OP, sanctions were
inappropriate, and contempt sanctions would be even more
inappropriate. Further, if the judge really thought OP's litigation
was purely frivolous and entirely without merit, he would probably
have sanctioned him the *entirety* of defendant's fees, not just part
of them.
The judge's sanctions were even more inappropriate, in the situation
described, because the plaintiff's lack of evidence to prove his case
was not due to there not actually being any evidence, but because of
the judge's *own* evidentiary rulings. These evidentiary rulings
could have been taken up on appeal, but only *after* the case was
over. In other words, the plaintiff had to take his case to its
conclusion before he could appeal these possibly bad decisions.
Effectively, the judge is saying, I'm going to sanction you for even
bringing your case to somewhere that you can perfect an appeal.
The judge was also incompetent, given the facts described, for even
having a trial in these circumstances, and it is really the judge's
decision to go forward that wasted everyone's time. Given his
evidentiary decisions, it should have been pretty obvious that there
was going to be no way for the plaintiff to prevail at trial. Thus,
he should have disposed of the case on summary judgment if there was a
summary judgment motion on the table, and if not, he should have made
it very clear to all the parties that the plaintiff was clearly
incapable of proving his case given the state of evidence, effectively
signaling to defense counsel that it was time for an MSJ.
Then, the plaintiff could have perfected an appeal on the evidentiary
issues, which could be resolved, and based on how it went at the
appeals level, the plaintiff could decide whether it was practical to
forge on. If the appeals court *agreed* with the defendants on the
evidentiary issue, and *then* the plaintiff continued forward with a
hopeless cause, at *that* point sanctions would be appropriate.
Another thing you seem to have forgotten is that the plaintiff didn't
even bring his suit in Superior Court. He brought a small claim, and
the defendant removed. In other words, the party responsible for the
case even being at the state level was the defendant. Plaintiff would
not have chosen this forum. As such, their attorney's fees and the
cost of a full proceeding were entirely their own doing. Sanctions
would never have been awarded at the small claims level for bringing
the same case.
The American rule is that both parties pay their own attorney's fees.
In the absence of a fee-shifting provision in the statute under which
the suit is brought, sanctions are an *extraordinary* remedy meant to
punish truly egregious misconduct and deter its repetition. Nobody
who has sided with the judge in this case has presented anything
remotely egregious, or any reason that the court should have feared
repetition, other than by making stuff up that isn't in the OP and
that there isn't even any reason to believe should have been.
slide
> On Fri, 13 Nov 2009 06:48:03 -0700, slide
> <dryads...@xxxxyahoo.com> wrote:
>
>> Cy Pres wrote:
>>> On Tue, 10 Nov 2009 08:48:35 -0700, slide
>>> <dryads...@xxxxyahoo.com> wrote:
>
>>>> Judges in civil cases are allowed great latitude in their ruling
>
>> [snip opinion with a different slant than mine]
>
>> The problem we have is that we are only hearing about the conduct of the
>> judge from the aggrieved party. He very well may have left out numerous
>> warnings from the bench about the way he presented his case or his
>> conduct in court.
>
>> My suspicion is that this was left out and it was the cause of the
>> sanctions. If not, then this same judge would have had a history of
>> sanctioning plaintiffs or perhaps pro se litigants or some pattern of
>> similar misconduct. When reading the OP for this part of the thread, I
>> was mostly impressed by what wasn't in the post than what was.
>
> All this assumes facts not in evidence, and basically accuses the OP
There is NO evidence as this isn't an evidential venue. This is just
some guy posting anonymously on the Internet. Try entering this thread
in court as 'evidence' and see how far you get.
Everyday at work I hear at least two sides of a story regarding a legal
case. These sides often vary wildly in what was said. Nobody is either
lying or delusional in the psychotic sense of delusional (although I get
those too). I use 'lying' to mean intentionally disseminating rather
than in just not fully recalling an event.
People see things differently when they occur. They remember them
differently too. Sit in a room with two disputants or litigants and hear
them tell their version of what caused them to appear in court and you
will hear two stories which can't possibly both be true. Probably
neither of them is true and more often than not, neither side is lying.
They are just remembering either from their POV or at least filtered
through their experiential sieve.
Of the hundreds of cases I've seen, I can only think of one where the
litigants agreed on the facts of the matter. The suit was put before the
court because while they agreed on the facts, they didn't know how to
apply a remedy so they essentially hired a judge to apply the law to the
stipulated facts. All the rest of the cases I've seen varied so widely
that the main issue was to try to find at least some common ground.
In this specific the actions of the judge weren't characteristic so it's
perfectly reasonable to search for something to reconcile this anomaly.
If you wish to assume the judge just went crazy or had a psychotic break
for no reason whatsoever, you are free to do so, but I doubt you'd get
very far in ADR sporting that attitude.
Cy Pres
<dryads...@xxxxyahoo.com> wrote:
>Cy Pres wrote:
>> All this assumes facts not in evidence, and basically accuses the OP
>> of being a liar or delusional. [snip]
>There is NO evidence as this isn't an evidential venue. This is just
>some guy posting anonymously on the Internet. Try entering this thread
>in court as 'evidence' and see how far you get.
If you think the casual use of a term of art in passing means I was
suggesting that we enter Usenet posts in court, you really aren't a
terribly careful reader.
I will assume you were merely being sarcastic, rather than stupid.
What I clearly meant is that you're basing your statement on your own
speculation, not anything the OP said.
>In this specific the actions of the judge weren't characteristic so it's
>perfectly reasonable to search for something to reconcile this anomaly.
Assuming the OP had no idea what he's talking about and that he
basically made up his entire story is not the first place to start
unless the story is outright silly.
>If you wish to assume the judge just went crazy or had a psychotic break
>for no reason whatsoever, you are free to do so, but I doubt you'd get
>very far in ADR sporting that attitude.
I never said anything of the sort. I said the judge made a bad
decision. Judges are not perfect. I never said it was characteristic
of that particular judge. Maybe he's a terrible judge. Maybe he just
made this one bad decision. Maybe he had some personal bias. Maybe
the plaintiff personally annoyed him somehow.
Assuming the OP has no clue whatsoever about what happened in his own
case, though, when he's provided a more detailed and meticulous
account than you generally get around here, is baseless.
Matt Carter
>
> The issue is whether any representations made by Global
> present to the court of breach by Global isn't relevant to the issue of
> in pursuing World Wide by presenting additional evidence of breach by
> Global would annoy any judge I know.
I didn't produce _any_ evidence that Global had breached any
agreement. I argued that the breached agreement was between me and
Worldwide, with Global as Worldwide's authorized spokesman.
To succeed, I had to prove both:
1. that Global misrepresented Worldwide's offer and
2. that Global was authorized to represent Worldwide's offer.
At trial, I spent some time submitting evidence about #1. It was
entirely necessary and should not have annoyed the judge.
> Any verbal representations by Global go to
> breach by Global but do not bind World Wide
That's only true if Global was not Worldwide's agent. If Global was
Worldwide's agent, a fact for which I believe I provided strong
evidence, then representations by Global DO bind Worldwide.
> Any verbal representations by Global are hearsay
That's not true at all, event without agency. Since I was trying to
show that what Global stated was FALSE, those statements, by
definition, cannot be hearsay. Hearsay is an out of court statement
submitted for the TRUTH of the matter stated.
Perhaps you mean that Global's representations are irrelevant. If so,
you're again assuming no agency.
> verbal representations by Global do not
> support any evidence of agency between World Wide and Global.
Agreed. My evidence of agency was not Global's representations.
As stated in the American Law Institute's "Restatement of the Law,
Third, Agency", agency arises when the principal manifests assent to
the agent that the agent shall act on the principal's behalf and
subject to the principal's control, and the agent manifests assent or
otherwise consents so to act.
Furthermore, apparent authority is the power held by an agent or other
actor to affect a principal's legal relations with third parties when
a third party reasonably believes the actor has authority to act on
behalf of the principal and that belief is traceable to the
principal's manifestations.
Apparent authority is created by a person's manifestation that another
has authority to act with legal consequences for the person who makes
the manifestation, when a third party reasonably believes the actor to
be authorized and the belief is traceable to the manifestation.
Worldwide sells vacation travel certificates. The certificates say:
"This offer provides two night's hotel/motel accommodations
and roundtrip airfare for you and a companion from any major
international USA airport to any major international USA, Canada or
Mexico airport."
Worldwide does not sell or market these certificates to end users.
Rather, Worldwide sells them to businesses (typically car salesmen and
timeshare sellers) to use for promotions. (These facts are not
disputed. Worldwide made these statements both on the web and in
defensive pleadings filed with the Court.)
In order to prove agency or apparent agency, I needed to prove that
Worldwide authorized the buyer (Global, in my case) to represent the
terms of the certificate to end users (like me).
Just using common sense, it's obvious that Worldwide intended Global
to represent the certificate to end users. How else would the
certificate have any value to Global?
At trial, I examined Worldwide's witness. I asked, "Does Worldwide
authorize the buyers of its certificates to accurately represent the
terms of the certificates to end users?" He answered, "Yes."
So, again, you see that Worldwide authorized Global to represent the
terms of the certificate to me.
Furthermore, Worldwide says on its own website (where they market to
companies like Global to buy the certificates):
"Worldwide Travel Center vacations [...] provide the extra edge to get
customers into your business and motivate them to buy. They increase
sales by serving as a deciding factor that helps swing hesitant
buyers. Offering a complimentary vacation package can steer customers
into product or services with your highest margins thus improving
profitability per transaction."
I submitted this into evidence at trial, too.
It clearly shows that Worldwide intended for companies like Global who
buy its certificates to represent those certificates to end users.
To support my claim that Global was acting in a representative
capacity for Worldwide, I pointed out that Worldwide's travel
certificate is a contractual offer which Global signed on behalf of
Worldwide. The offer states that it is not valid unless signed by an
authorized distributing agent. The offer is signed by Global.
I pointed all this out to the judge at trial.
To me, this seems like clear evidence of agency, or at least apparent
agency.
You may be thinking, "Ok, so you proved that Global was authorized to
represent Worldwide's certificate _accurately_ to end users. But if
Global _misrepresented_, haven't they stepped outside of the scope of
their authority?"
That's not the way agency works. If it were, principals could just
put a "do nothing wrong" clause in their agency agreements, and
principals would never be liable for their agents' torts. In reality,
as explained in sections 7.07 and 7.08 of "Restatement, Third,
Agency", if an agent is authorized to make a true representation about
X and the agent makes a false representation about X, the principle is
liable. This makes sense from the point of view of the "least cost
avoider" principle. The principal is in a much better position to
control his agent than is a third party.
At trial, Worldwide stated that it had never sold any certificates to
Global and that Global was not authorized to market or distribute the
certificates.
However, this statement is highly dubious for several reasons:
1. If Worldwide never sold the certificate to Global, how did Global
get possession of the certificate that it gave to me?
2. There are numerous complaints against Worldwide, filed by other
consumers with the Florida Department of Consumer Services, showing
Worldwide certificates distributed by Global. Those complaints show
that Global signed and distributed a Worldwide certificate to the
consumer, and when the consumer attempted to use it, Worldwide made no
objection to the validity of the certificate as signed by Global.
(Instead, Worldwide refused to provide travel pursuant to the
certificate for some flimsy reason like "no availability" or "writing
not legible" or some such.)
3. A witness I examined at trial was another person who received a
Worldwide certificate from Global after the certificate's offer was
misrepresented to him by Global. Unlike me, he actually tried to use
the certificate. When he did so, Worldwide did not object to the
validity of the certificate as signed by Global. (Instead, Worldwide
refused to provide travel pursuant to the certificate on the grounds
that the offer was not valid in his state (Maryland).)
I was unable to submit the complaints in #2 into evidence at trial.
The judge barred them on a technicality (which I consider unfair),
described in count #4 of my complaint against Judge McCue (which you
can read in my original post).
Still, the judge shouldn't have just believed Worldwide's highly
questionable statement that it had never sold to Global in light of
all my contravening evidence.
> Your big
> gun of evidence is that contract you cited above. Once the judge ruled
> that as not evident of agency, you run out of ammo quickly.
As you can now see, my evidence of agency was broader than that one
document.
And, even if my evidence was not enough to win (I thought it was), I
_certainly_ don't think the judge was right to sanction me.
Matt Carter
>
> we are only hearing about the conduct of the
> judge from the aggrieved party.
> He very well may have left out numerous
> warnings from the bench about the way he
> presented his case or his conduct in court.
I have no interest in concealing facts. To do so would only waste
your and my precious time time, delude myself, and disseminate false
or misleading information.
I posted for several reasons:
- I want to know whether I did something wrong.
- If so, I want to know what I could have done better.
- I want to know whether sanctions like this are fair or normal.
- If not, I want to publicize my experience so that:
- other potential pro-se litigants (like Hillary) can understand
their risks.
- future victims of this particular judge's wrong decisions (if
they are in fact wrong) can see the complaint history to encourage
them to make a complaint.
Realizing that the quality of the responses I get depends on the
quality and completeness of my posts, I provided all relevant
information, even the parts not in my favor.
For example, in my OP, I pointed out that several months before trial,
the defendant filed a Demurer, which Judge McCue (the trial judge)
heard. (A "Demurer" in my jurisdiction is the term they use to mean
"Motion for Summary Judgment", also known in some places as a "Motion
to Dismiss For Failure to State a Cause of Action upon which Relief
May Be Granted".)
In that hearing, I presented several pieces of evidence: 1) the
solicitation postcard that Global had sent me mentioning that
Worldwide would provide me travel to anywhere in the U.S., 2) my
testimony about Global's promise to me over the telephone that
Worldwide would provide me travel and accommodations to anywhere in
the U.S. in exchange for my attendance at a sales presentation, 3) my
testimony that I attended Global's sales presentation but that I never
received the promised travel and accommodations, and 4) the Worldwide
travel certificate offer that Global gave me after I attended the
presentation. To this, Judge McCue said that he would deny the
defendant's Demurer, but that he found my evidence of an agency
relationship between Global and Worldwide weak, and that if I didn't
bring more evidence to trial, then sanctions would be appropriate.
Heeding that warning, I brought extensive additional evidence to
trial, including:
- printouts from Worldwide's website showing that they authorized
businesses who purchased their certificates (like Global) to represent
the terms of those certificates to end users,
- numerous complaints against Worldwide filed with government
agencies in Maryland and Florida showing that Worldwide had used
Global as an authorized marketer and distributor,
- a witness from Maryland who had also received a Worldwide
certificate, and false representations about it, from Global, even
after I had notified Worldwide in writing that Global was
misrepresenting it certificates. (This showed that Worldwide was
complicit with the misrepresentation by Global.)
Furthermore, I had subpoenaed Global as a witness, but they didn't
show up despite a validly served subpoena. (I realize, now, that I
could have had the trial delayed over this. Of course, that would
have run up the defendant's costs even higher and would have likely
brought even more sanctions.)
Furthermore, I examined Worldwide's witness, whose testimony made it
clear that purchasers of its certificates were authorized marketers
and distributors of the certificates. (The witness's defense was that
Worldwide had never sold any certificates to Global.)
> My suspicion is that this was left out and it was the cause of the sanctions.
No.
I think the judge just didn't like me because the defendant's
attorney, who must have been an acquaintance of the judge, got the
first word in at a pre-trial hearing and said that I was unethical,
that my case was fabricated, and that I was committing extortion.
Two other judges who presided over pre-trial motions in my case seemed
to like me a lot. Judge Karen Henenberg kept asking me, "Are you sure
you're not a lawyer? You really know your stuff." And she gave the
defendant's attorney a hard time when he made bogus hearsay objections
and misrepresented the long-arm statute to her. Judge Daniel Fiore
was also very sympathetic to me when he heard the facts of the case.
When the defendant's attorney tried to quote an inapplicable law in
support of his argument, Judge Fiore took a recess, researched the
law, came back to the courtroom, lectured the defendant's attorney,
then ruled in my favor.
But with Judge Richard McCue, it was a different story. (How Judge
McCue ended up being the trial judge, I don't know. I don't want to
believe that the defendant's attorney pulled strings to arrange the
trial judge.) In front of Judge McCue, the defendant's attorney
requested sanctions against me on at least 4 different occasions in
amounts totaling over $35,000. (Of the 7 local attorneys I consulted
with before my trial, 3 knew the defendant's attorney personally and
said that he is known for those sorts of bellicose remarks and
filings.) The defendant's attorney acted angry all the time in court,
saying that his client shouldn't have to pay good money to defend
against baseless claims like mine. After the defendant lost nearly
all pre-trial motions against me:
- Defense: Motion to Dismiss for Lack of Personal Jurisdiction
(DENIED)
- Defense: Motion for Leave to File Counterclaim (DENIED)
- Defense: Plea in Bar (DENIED)
- Defense: Demurer (DENIED)
- Plaintiff: Motion to Increase Claim Amount Beyond Small Claims
Limit (GRANTED)
I think the judge felt socially pressured to throw a bone to the
defendant's attorney. They're both older men about the same age and
have worked together in the same courtroom for at least 10 years.
After I lost at trial, when making his case for sanctions, the
defendant's attorney said, "Your Honor, you said pre-trial that if Mr.
Carter didn't have better evidence at trial, then sanctions would be
appropriate. Well, he didn't bring ANY new evidence to trial. So,
you really have no choice but to sanction him."
It's not true that I brought no new evidence to trial, or that my
initial evidence to survive the Demurer did not indicate agency, but
again I think the Judge felt socially pressured to do something for
the defense attorney who had run up thousands in legal costs for his
client.
> If not, then this same judge would have had a history of
> sanctioning plaintiffs or perhaps pro se litigants or some pattern of
> similar misconduct.
I thought so, too. A google search didn't turn up any complaints. I
think it's just really rare for a pro-se to get as far as I did. In
most cases where this judge would rule against a pro-se, the pro-se
probably never got out of Small Claims Court or was probably dismissed
on an MSJ. So, I think that even if this judge is an unfair bully,
it's uncommon for anyone to be hurt enough to write about him online.
> Clearly the OP is a very careful researcher and approached his appeal to
> the Commission carefully. That he didn't include a pattern of misconduct
> implied to me that something about him or his demeanor caused this judge
> to run off the rails.
Apparently _something_ I said or did upset the Judge. But I don't
know what it was. In my defense against the Motion for Sanctions, I
pointed out that under the American Rule, each party pays his own
costs absent a fee-shifting provision in the law. I pointed out that
I had presented evidence in good faith and that sanctions are an
extraordinary remedy that only apply in extraordinary circumstances as
given by VA Code 8.01-271.1 .
I pointed out that a prior judge in this Court in the Personal
Jurisdiction hearing had ruled that there WAS an agency relationship
between Worldwide and Global (thereby creating PJ).
I pointed out that several lawyers with whom I consulted thought I had
a good case after hearing my evidence.
I pointed out that if my evidence was lacking (I don't think it was),
then it wasn't for lack of trying, since lots of my evidence was
barred by a (questionable) Motion In Limine and by a no-show
subpoenaed witness.
The judge just sat there unmoved as I spoke.
When I finished, he said, "The American Rule applies in ordinary
cases. This is no ordinary case. I warned you pre-trial that if you
didn't have more evidence at trial, you might be sanctioned. You
didn't bring any substantive new evidence to trial. Your claim is
based on agency, but you haven't provided enough evidence to support
it. The defendant is entitled to be reimbursed for his costs. I'm
imposing sanctions of $2,500."
A week later, the defendant filed a Motion To Reconsider, requesting
that sanctions be increased to $11,000. For that hearing, I hired an
attorney. My attorney hauled in a crate full of complaints against
Worldwide and said, "Your Honor, VA Code 8.01-271.1 wasn't designed to
punish pro-se litigants who pick the wrong cause of action. If my
client had sued under a Strict Liability theory, he could easily have
won. I have here hundreds of complaints against Worldwide by
consumers who were the victims of fraud by companies who bought
Worldwide's certificates. Worldwide certainly knows that its products
are used primarily for fraud, and is therefore liable."
To this, Judge McCue replied, "He didn't get any of those complaints
in at trial! I still think that sanctions of $2,500 are appropriate
to prevent further abuse by this plaintiff."
> Since the OP can't seem to get he message that his case does not show
> evidence of agency, I'd guess that his insistence that it does, even
> after being directly told by the judge to get off of it, was the cause
> of the sanctions.
Maybe I'm just being thick-sculled and stubborn. But I've read
Restatement, Third, Agency cover-to-cover and studied it in depth.
I've researched lots of agency cases on my public law library's
Westlaw system. I thought about agency a lot in the year or so before
trial. I've discussed it in person with seven different lawyers. I'm
pretty sure I have a good understanding of it. I also think I'm a
fairly open-minded guy. If anyone can tell me why agency (or apparent
agency) does not apply here, I'd be very happy to hear it. So far, I
have not received a good explanation of why it does not apply in my
case. Everything I've read about agency, from actual case law and
from respected law treatises, indicates that it does apply to the
facts of my case.
> If I'm right, then the judge was moderate, really. Other judges would
> have cited him for contempt. Here the judge determined that the OP was
> wasting not only the court's time, but the defendant's. He meted out
> punishment to compensate the defendant rather than himself.
If you're right, then the Judge should have sustained the defendant's
Demurer and dismissed the case.
Maybe the Judge just didn't understand the law of agency well. He's a
judge who spends a third of his time in traffic court, a third of his
time in criminal court (primarily shoplifting, DUIs, and the like),
and a third of his time hearing civil cases (primarily landlord-tenant
cases and collections cases). I'm guessing that the last time he
thought about agency was a long time ago. And, I already know that
his knowledge of the law has some fundamental deficiencies: He ruled
that my testimony about Global's misrepresentations was "hearsay",
though it obviously is not.
Maybe the Judge's lack of knowledge of the law caused him to sanction
me, or maybe he felt socially pressured by the defendant's attorney.
I'll probably never know. I think that if he had been a good Judge,
and if he still insisted in ruling against me, he would have mentioned
which element of agency I had failed to prove. All he said was,
"insufficient evidence of agency".
By the way, if you're thinking that I should have dropped the case
after being warned by the Judge about sanctions, I remind you that the
defendant's attorney stated in Court that he would still pursue
sanctions against me even if I dropped the case. (I believe that the
defendant's attorney's primary interest was in maximizing billable
hours. My attorney said so too, after seeing his lengthy filings and
ridiculous motions.) So, I decided that the best way to show that my
case was not frivolous and was made in good faith was to do a good job
proving the elements of my claim at trial. That would solve two
problems at once: avoiding sanctions, and having a chance at winning.
Unfortunately, it didn't work out.
In hindsight, I would have done these things differently:
- I would have sued Global and Worldwide at the same time. That
would eliminate the possibility of inconsistent judgments, each
pointing fingers at the absent third party, as happened in my cases
against Global and Worldwide.
- After the Judge mentioned sanctions, I would have brought in an
attorney at trial. Even if I thought I was right, having an attorney
represent me would make the Judge actually listen to my arguments.
- After sensing that the Judge didn't like me and might be the trial
Judge, I would have brought in an attorney at trial (or maneuvered to
get a different Judge).
- I would have claimed multiple causes of action, in case the Judge
didn't like one.
- In my jurisdiction, appeals are De Novo. So, I might actually
have stood a chance of having the sanctions wiped away (and winning)
if I had appealed. If I were doing it again, I would have researched
the procedures for appeal prior to trial in the lower court. As it
was, after losing at trial, I only had 10 days to appeal, and I was
too psychologically and emotionally drained to figure out from scratch
how to mount a pro-se appeal in Circuit Court. (Hiring a lawyer to
represent me on appeal was out of the question because the legal fees
alone were estimated at > $10,000 .)
An interesting tidbit for those still reading: A newspaper reporter
for South Florida Business Journal recently contacted me and notified
me that Worldwide has just declared Chaper 7 bankruptcy. According to
the article that the reporter wrote, Worldwide reported less than
$50,000 in assets, but more than $500,000 in claims. I find it very
telling that what Worldwide believes it owes consumers is the $100
deposits the consumers put down when submitting their travel
certificates. Worldwide doesn't seem to think that they owe anyone
any travel or accommodations, which is what the certificates as
_supposed_ to be good for.
The president, Michael Friedburg, is the same guy who testified at my
trial that Worldwide never did business with Global. He claims that
he lost "a few million bucks" on the company. (Right.)
Matt Carter
> Cy Pres wrote:
> > All this assumes facts not in evidence, and basically accuses the OP
> > of being a liar or delusional. [snip]
>
I am proud of everything I've done and don't feel the need to hide
behind an alias. If you look at the written solicitation Global
mailed me, a link to which I posted on MLM, you'll see that I'm
posting using my real name. I also gave you the real case number and
the real court name, in case you want to call the clerk and verify
anything I've said.
> People see things differently when they occur. They remember them
> differently too. Sit in a room with two disputants or litigants and hear
> them tell their version of what caused them to appear in court and you
> will hear two stories which can't possibly both be true. Probably
> neither of them is true and more often than not, neither side is lying.
> They are just remembering either from their POV or at least filtered
> through their experiential sieve.
I'm pretty sure Judge McCue would not deny any of the assertions I
made in my complaint (in my OP) other than my conclusions that he was
wrong. The only places he and I differed were in conclusions of law.
That's why I hoped the VA Judicial Inquiry and Review Commission would
simply ask him whether the things I alleged in my complaint were
true. He wouldn't deny them, and then the Commission could see that
his legal rulings were incorrect.
> In this specific the actions of the judge weren't characteristic so it's
> perfectly reasonable to search for something to reconcile this anomaly.
> If you wish to assume the judge just went crazy or had a psychotic break
> for no reason whatsoever, you are free to do so
I can hardly blame you for being skeptical when you first heard me, a
pro-se, suggesting that a Judge was wrong. But I've given you the
full picture as best I can. (If you think I was scarce on details in
certain areas, ask for clarification and I'll gladly answer.)
If, now that I've given you the full picture, you choose not to
believe me, that is fine, and there's probably nothing more I can say
to convince you that I've told nothing but the whole truth.
Nevertheless, whether you believe me or not, you have still stated (or
implied) that IF what I said is true, then the Judge was wrong (or
crazy or psychotic). That information is useful and reassuring to me,
since I know (though you may not) that you've based that conclusion on
the truth. Thank you.