Soon it will be crunch Time in my case against the Planning Board

Despite the fact that McCaughey was informed of his misconception through my trial brief, he misrepresented the law again in his Defendants ‘ closing Brief, which is indicative of intent. As I was representing myself during trial, McCaughey had the presumption on his side, the presumption that he was telling the truth over what I wrote in my closing argument. After all, Vincent McCaughey took an oath of office not to do the very thing he did, misrepresent the law. McCaughey deceived the judge by stating: "The Kell[e]y case is particularly enlightening in that it involves a remand of a matter involving failure to act on an ANR application by a planning board." If true, the judge had the choice to read lengthy decisions (case law) or believe McCaughey and follow the Kelley precedent.

In the real world, Judges don't take the time to read lengthy cases and McCaughey took advantage of this fact and the fact that I was not an attorney.

However, McCaughey's statement is a falsehood, in Kelley, the planning board took action on the ANR, a different issue was determining in that case. Based on this erroneous judgement my other lawsuit, the complaint I filed in the United States District Court, District of Massachusetts, was decided against me.

After waiting more than two years for the needed trial transcript, my attorney perfected the appeal and filed it with the Appeals Court of Massachusetts. As I did not want to risk loosing my appeal the same way I lost the trial in Superior Court, I hired one of the 71 Super Lawyers of Massachusetts, Wendy Sibbison. Attorney Sibbison filed a appellant"s brief, on my behalf on 10-12-2007. The town filed their appellees"s brief, on 11-14-2007.

Despite the fact that there is no money involved in this case as far as compensatory or punitive damages, the town hired besides the town counsel McCaughey, another attorney, Nancy Pelletier. Nancy Pelletier is also on the list of Super Lawyers of Massachusetts.

Pelletier's brief on behalf of the town was so frivolous that my attorney filed a reply brief in response to the town's brief. That in itself is not necessarily unusual, what is most unusual is the fact that my attorney is asking the judges of the Appeals Court to sanction the town and attorney Nancy Pelletier for her unethical conduct. My attorney, Wendy Sibbison, states on page 3,

"SANCTIONS SHOULD BE IMPOSED FOR THE TOWN'S MERITLESS BRIEF DEFENDING AN INDEFENSIBLE JUDGEMENT."and further "Because the Planning Board and the Town Clerk [Robert Ford] refused to comply with section 81P and endorse Frei's plan, he was forced to bring a mandamus action and then-- when the trial court abetted the Town--to press this appeal. In this Court, the Town has made no good faith argument [. . .] In forcing Frei to press his appeal to its inevitable end, [. . .] the Town retaliates against him for its [the town ‘s] own legal mistake, punishing him with more litigation expenses and more delay [. . .] The Town's strategy also saps this Court's resources for no legitimate purpose. This Court has the ´inherent power to punish those who obstruct or degrade the administration of justice´ [. . .] Frei requests damages for his reasonable attorney's fees and double costs incurred in prosecuting this appeal". Click here to read the entire reply brief.

Some of you may remember chairman of the Board of Selectman, James Wettlaufer, claiming that the town could not do anything against my frivolous lawsuits as long as I litigate "pro se" (representing oneself), as the law would not allow a party to a suit to collect attorneys fees one sided. While Wettlaufer is correct about the law not allowing this, he does not have to worry about the town not being able to collect fees from me; he has to worry that the town has to pay me, and not just once, instead, double fees.

The appeal is pending and arguments will be heard soon. The town will potentially be ordered to pay app. $40,000.00 to $ 50,000.00 just on this appeal in addition to the funds they already wasted over the last 6 years litigating this matter.

The town hired a Super Lawyer because if the town looses this appeal, and there is no question any longer that they will, the Appeals Court of Massachusetts will vacate the erroneous judgement of the Superior Court. This will open the door to file a motion under Fed.R.Civ.P., Rule 60(b) for a request to vacate the judgement in the case that was decided against me based on the erroneous judgment in Superior Court. It will be interesting.

The extraordinary move by Wendy Sibbison to ask the Appeals Court to issue sanctions against Nancy Pelletier will jeopardize Pelletier's ability to remain on the prestigious list of Super Lawyers. One of the criteria to qualify is the requirement to have an impeccable record in terms of integrity.

Nancy Frankel Pelletier, one of the two town lawyers, filed a motion for leave to submit a sur-reply brief, which the Appeals Court granted. In her sur-replay, Pelletier is taking a defensive position concentrating on the issue whether she can be sanctioned and not whether her argument is frivolous.

Peter Frei