Ronald Bozelko v. Alfred D'Albero et al. (2013)

MEMORANDUM OF DECISION ON DOCKET ENTRIES 371 THROUGH 396, 400, 401, 402, 403, 405, 406, 407, 418 AND 420

The plaintiff has filed scores of motions, seventy-five or more since the beginning of March 2013 concerning discovery and his failure to receive compliance from the defendants.   Between December 18, 2012 and March 25, 2013 the court held several hearings with the explicit and announced purpose of settling all discovery disputes in the two pending files before the trial of the case which all sides knew the court was intending to schedule in these six-and seven-year-old cases.

Only a limited number of items were brought up by Mr. Bozelko over the course of the hearings.   The court explicitly said it was going through each file and no request for additional discovery was to be permitted.

Notwithstanding all this, in late March and the beginning of April Mr. Bozelko served a series of interrogatories on the defendants.   In Docket Entries 371 through 396 he moves for default because of the defendants' failure to answer interrogatories or object within thirty days—these motions for default were all filed on May 7th or May 8th of 2013.   In the motions the plaintiff does not indicate whether the interrogatories merely repeat previous production requests or raise new matters which he did not know would require added discovery.   The nature of the interrogatories is nowhere disclosed.

In Docket Entry 369 he indicates he filed a request for production against the defendants;  this request was filed on April 18, 2012.

In Docket Entries 400, 401, 402, 403, 405, 406, 407 Mr. Bozelko filed a series of motions for default for failure to respond to interrogatories filed in May 2012.   Some of them bring up the tax return issue and there is no indication and/or explanation why these matters were not raised in the discovery dispute hearings which commenced on December 18, 2012.   Docket Entry 404 is confusing since it appears the interrogatories were filed on April 18, 2012 not April 18, 2013.   In any event the court dealt at length with the so-called $80,000 “official check” issue in the hearings and at those hearings the plaintiff did not raise the failure of D'Albero to respond to various informational interrogatories.

Docket Entries 418 and 420 raise the tax return issue once again, in Entry 418 it notes none of the defendants have filed the returns in court—correct, they were to bring them when trial commenced.

The court has conducted a review of the hearings held on the discovery issues which it will now set forth and concludes after that examination that the foregoing motions filed by the plaintiff are without merit.

Transcript of December 18, 2012

At pages 2–3 Attorney Burt raised a concern that he had not received certain interrogatories filed by the plaintiff in 06–5009158 (he said the 2006 case).   He said he cannot answer what he did not receive.   Mr. Bozelko answered he would give Attorney Burt the interrogatories on the next day.

At pages 4 through 6 Mr. Bozelko indicated he wished to depose the defendants.   It was mentioned the prior lawyer handling the case had done so but Mr. Bozelko said he was not satisfied with the depositions he conducted.   Mr. Bozelko offered to present transcripts of the depositions to establish his point.   Attorney Doyle said another deposition is not warranted merely because a litigant is dissatisfied with an earlier one held by prior counsel.

There was also discussion about setting up a deposition with two defendants who had not been deposed, Ms. Imperato and Mr. Pesapane.

At page 18 Mr. Bozelko emphasized “the big one here” to do another deposition on was Alfred D'Albero.   Attorney Doyle said that due to his mental condition the attempt to depose him was not pursued.   Attorney Doyle said upon meeting with Mr. D'Albero it was clear to him that he had problems preventing a deposition.   He also said if Mr. Bozelko insists on a deposition of D'Albero he would bring in any medical information necessary.

At page 16 Attorney Doyle said his clients have answered any questions or requests about the case that Mr. Bozelko is concerned with.   He mentioned, as an example, an “agreement of sale” which Mr. Bozelko had because it was attached to a deposition.

At page 18 Mr. Bozelko raised the issue of certifications apparently as to interrogatories.   Attorney Doyle admitted he “owed” them to Mr. Bozelko and said he would provide them.

At page 19 regarding Mr. D'Albero the court reviewed its suggestion that a medical record should be procured which would be placed under seal.

Attorney Doyle at page 19 stated that he had just given Mr. Bozelko “the sale documents for the transaction between Mr. Burt's clients and my clients from October ․ August of 2006.”

January 29, 2013 Transcript

At page 26, the court said:

“Well, I want you to list, in each one of these files (which would have included both pending files), specifically what discovery has not been provided, send it to them.   Okay. And what I'd like you to do in the next week or—I want you to do that by the end of the week.”

Mr. Bozelko answered:  “Fine.”

The court:  “What I'd like you people to do is respond to what he's claiming, okay.”

Attorney Doyle:  “Yes, your Honor.”

The court then set a date of 2/15/13 to address these matters and all litigants agreed, see page 27.

Page 31.   Attorney Doyle asked for pretrial memo—referring apparently to trial management order.   Bozelko was asked if he could do it by February 15th.   Bozelko said sure, then normally get it the day before.

February 15, 2013 Transcript

At pages 1 and 2 the court said that it wanted to “nail down the status of discovery.   I mean he filed requests for discovery and apparently there were no objections to a lot of them.   And I want to make sure, file by file, that all the discovery requests have been complied with.”

At page 4 Mr. Bozelko said he wanted to depose Vicky Imperato and Robert Pesapone.  (These were the only two people mentioned.)   A date for the depositions was set.

At page 9 the court said “Let's go through file by file in which you say that ․ that you know there hasn't been compliance.”

The court then took up discovery issues in 06–5009158.

On page 20 the first matter on a list apparently prepared by the plaintiff was the issue of Alfred D'Albero's tax returns.

Page 22.   Copies of all defendant's tax returns from 2005 through 2008 were referred to.

Mr. Bozelko says no objection was filed so it's a little too late to object to this.

Page 24.   Doyle's position is tax returns do not reveal anything relevant to this case.

Also he says there is a real question whether we saw any of these tax return requests in 2012.

Court said it was going to go through each file.  “These are the only discovery issues before me.   And no requests for discovery additional are going to be permitted after today.”

Page 25.   Court:  “I'm ordering that the tax returns be made available, and during the course of the trial if it becomes at all relevant, you'll have an opportunity to look at them.”

Doyle:  “Oh. I understand that now.   Okay.”

Bozelko:  “Fine, they'll be produced.”

The court:  “And then ․ and if you ․ if I say that it's relevant and you, Judge, I need an hour or two to look at them, but I'm not going to order them delivered now.”

Bozelko:  “Fine.”

The court then explained just because returns are ordered brought to the trial “does not mean Bozelko was entitled to introduce ․”

Bozelko:  “Yeah. No I mean, just that they'll be available.”

Page 28–29.   Court said let's look at the next request under this file concerning disputed discovery items.

Mr. Bozelko asked for copies of all checks received for your membership interest in Unnron.

Attorney Doyle said there was an $80,000 check but “I don't think we personally have the check.   I think its actually with the closing attorney.”   Mr. Doyle noted the closing attorney was being subpoenaed to the trial.

Page 32.   Mr. Bozelko talked about whether the $80,000 was split up between three defendants—did they get check or cash representing their one-third interest.

Page 33.   Bozelko notes no answers were given as to amounts of any check they received for membership interest as to whether receipt was reported on federal tax returns—Bozelko says “I believe the answer was no.   No answer to where payment was deposited.”

Page 34.   Bozelko says all this a crucial issue “because if ․ they didn't get $80,000.   They didn't report anything on their income tax return Implication—they got their share in currency.”

Doyle responds all the foregoing questions were answered and notes the three defendants were equal partners—Mr.   Bozelko was given a closing statement.

Page 36.   Bozelko says “you got zero.”

Doyle says “how does us getting zero help his case?”

Pages 37–38.   Mr. Bozelko's point is that all of this proves the D'Alberos are still partners in Unnron which goes to the treble damage issue.  “They said, here, take these tax liens and they're yours, you know, for nothing.”

Page 39.   Bozelko continues his position.   He notes statewide gave $100,000 check to Mr. Cote (closing attorney), of which he has a copy.   Then says they show an $80,000 check and “the three people who sold their interest don't get any check—Mr.   Bozelko says this is almost fraudulent.”

Page 40–41.   Doyle says we're not trying to trick Bozelko.   Doyle's clients were suing Cote in a separate action and Attorney Burt has cross claim against the D'Alberos.

Page 43–43.   Doyle agreed to answer unanswered questions about check but denies having the $80,000 check.

Page 44–45.   Went through other requests for production.

Tax returns for Unnron.   Burt's response they do not exist.

Tax return issue as Mr. Pesapane.   Court repeated it was not ordering returns turned over now.   Mr. Bozelko said:  “Yeah. No. I understand, your Honor.”

Page 46.   In response to request number six which was copy of agreements of Pesapane with Unnron, Attorney Burt said there was no argument.

Page 46–47.   There was a request for copies of titles for certain properties.   Attorney Burt said he would try to look for them.

Page 47.   The court said, as to 06–5009158, is there anything else in this file.   Mr. Bozelko answered “No, your Honor.”   The court responded, “Okay. So that settles that file.”

The court then took up a discussion of discovery issues in 07–5015783.

Mr. Bozelko at page 48 noted three requests for production to which he claims no response had been given.

Mr. Doyle said at page 49 responses were in fact given which Mr. Bozelko denied but he would comply again.

At page 50 it was noted that the tax return issue was already addressed as was the issue of checks received for membership in Unnron.

At that point Mr. Bozelko did not mention any other discovery issues as to this file.

The court then discussed the procedure on motions to dismiss that had been filed.

Page 55–56.   The court indicated “we've dealt with the discovery.”   It noted apart from a motion to quash, the deposition issue and the motions to dismiss were the only things outstanding.   Mr. Bozelko did not disagree but correctly added that the court had to act on subpoenas he wanted to be issued.

Transcript of February 21, 2013

In anticipation of the upcoming deposition of Imperato and Pesapone, pages 4 through 12 were consumed with a matter previously mentioned in an earlier transcript concerning checks paid to purchase membership in Unnron according to Mr. Bozelko.   He then refers to the one check previously discussed endorsed by Mr. Cote. He claimed this was “not the check that purchased it.”   The three defendants also did not answer in response to the interrogatories whether they got cash or a check.   Albero's interrogatories are signed but not under oath.   At page 6, however, Mr. Bozelko says all of this could be resolved if they provide him with the “official check.”

Attorney Doyle countered by saying the interrogatories were answered, the defendants said they got the money by check, gave the name of the bank and put it on their tax returns.   He noted Mr. Bozelko already has the sales agreement and a closing statement from Mr. Cote's office, showing disbursements and Cote has been subpoenaed and he can bring the official check.

Attorney Doyle says the confusion arises from his perspective because Mr. Bozelko sends out the same interrogatories in the then pending five files.

Mr. Bozelko did not respond directly to Doyle's statements but then pressed for the ledger of one of the defendant's, Statewide.   Mr. Bozelko at page 11 then said, in response to why all this would prevent him from conducting a deposition, “no but that will prevent him from looking, getting the ledger where that check was issued out to.   That's if they can't find the check for that official check, they had to buy it from some bank and that's what they replaced it with.”

Attorney Burt (misspelled “Burke” in transcript) in response to the court's question said he had no such ledger and added “I'm not even clear on what we're talking about” but said he would look for the ledger and for an original check.

The court then asked Mr. Bozelko what difference all of this made (page 13) and Mr. Bozelko responded ․ “because it wasn't for a hundred thousand dollars” (pp. 13–14).

Attorney Doyle at page 14 said “once we wrote the check to Attorney Cote it was “out of our hands.”   Doyle added that Mr. Bozelko had gotten the check that bought the liens.

Mr. Bozelko's second request in preparation for the depositions is for the bank statement of Wachovia to Statewide which would evidence payment of check no. 4914 (page 14).

Attorney Burt said he would look into it but noted these transactions occurred seven years in the past (page 14).

At page 14 the court said if there was any relevance to the points Mr. Bozelko was making he could ask these questions at depositions and trial and it could be held against them at trial.

Page 15.   The third request was a copy of check of Ms. Imperato evidencing her membership contribution to Unnron.

Attorney Doyle said there is no copy of the check—he did not have it.

Page 16.   Mr. Bozelko asserted that “they're not going to produce anything on this list.”   The court responded “well then, I'll see what weight should be given to it.”

Attorney Burt apparently said he gave a copy of the check in question.

Page 17.   In request five Mr. Bozelko wanted a copy of the agreement or records of the D'Albero interest in Unnron.   Attorney Burt said he did not have that since he did not represent the D'Alberos.

At page 18 Mr. Bozelko requested a copy of all pleadings.

The court noted pleadings can be procured from the clerk's office and at page 19 Attorney Burt said “my opinion is that he has all these things.”   Previous to that Attorney Burt said Bozelko had boxes of files from the attorney who previously handled the case which he never produced.   At page 20 Mr. Bozelko countered the pleadings were not provided, he had gone through the files.

At page 20 the court said it would not order the lawyers to produce pleadings but at Mr. Bozelko's convenience would have a clerk bring up the files to a conference room.   Some day in the following week to which Mr. Bozelko responded:  “That's fine your Honor.”

(The court would note that Mr. Bozelko never contacted the caseflow coordinator to arrange for the files to be brought to a conference room for Mr. Bozelko's inspection.)

At page 21 Mr. Bozelko asked for Unnron, LLC and Statewide Construction, Inc. checkbooks.   Attorney Burt responded by saying there are no checkbooks for Unnron, LLC and the request as to Statewide was not limited as to time.   The discussion then returned to the “official check” issue.   At page 22 the court pointed out that the consequences of the defendants not producing the “official check” or the previously discussed ledger would be “laid at their doorstep if you (Bozelko) prove it's relevant;  okay.”

They're saying they don't have it and now (sic, probably “not”) limited as to time.

Mr. Bozelko immediately said ․ “excuse me your Honor, the next one is receipt of tax bills for any and all taxes paid by Unnron, LLC or checks used to pay real estate taxes on real property subject to the tax liens owned by Unnron and/or Alfred D'Albero.”   At page 24 Attorney Burt said he would produce the only check regarding taxes on the particular property in question.

At page 24 another request was for the official checkbook of Statewide Construction Corp. Attorney Burt responded by saying he did not know why Mr. Bozelko wanted checkbooks of this ongoing company.   From 2005 through 2010 Attorney Burt at page 25 said Mr. Bozelko had not shown any necessity for these bank statements.   There was no direct response to this assertion by Mr. Bozelko but at page 26 there was a return to the “official check” issue.

Mr. Bozelko:  “As I told your Honor from the beginning, we could have cut to the chase and had them disclose where the official check was taken from and we wouldn't have to go through this.”

The court:  “They are looking for the original check and the ledger.”

Pages 26 and 27 seem to be Mr. Bozelko's reasoning behind these requests that none of the defendants really received anything as a result of the check transactions being discussed.

Page 29–31 discussed the copy of a deposition of Mr. Cote but it is not clear whether the former attorney on this file would have a copy of the Cote deposition.   Mr. Bozelko said he would go back to that attorney to ask him for a copy of that deposition.   Attorney Doyle said Mr. Bozelko should look in his file.

At page 31 Mr. Bozelko requested “Copy of a check of Robert Pesapane, Vicki Imperato and all entity used in paying real estate taxes on the properties of which Unnron, LLC, Alfred D'Albero were the owners of the tax liens thereon.”   Attorney Burt at page 32 said he would produce one check paid on a subsequent tax lien.

At page 32 through 34 Mr. Bozelko's request for “all documents and correspondence and other written material of Unnron, Inc., LLC from January 1st of 2005 to February 1st of 2013.”

Mr. Lanley on behalf of the defendants gave a detailed account of what exist in this regard.   He basically said Unnron, Inc. never really did any business except for engaging Mr. Cote to foreclose on the properties in question and the only papers produced by Unnron were annual reports already given to Mr. Bozelko.   All Unnron did was to purchase the business from Attorney Doyle's client and to purchase the subsequent tax liens.   The company had no correspondence.

At page 37 everything seemed to revolve around the official check and the ledger according to the court, Mr. Bozelko or the attorneys did not dispute this observation.

Transcript of February 27, 2013

Much of this transcript did not concern discovery issues.

On page 7 the court repeated that on February 21st it went over each file and dealt with the discovery disputes.

On page 8 the court reiterated what it had said and noted that the defendants' position was that Mr. Bozelko had gotten the information he now claims he was deprived of by the defendants' failure to comply with discovery.   The court went on to say:  “And I haven't been really informed how failure to answer discovery prejudices you in any way or causes any problem conducting the trial.”

From pages 8 through 13 the tax filings and the check issue were brought up by the court and Mr. Bozelko obviously took exception to the court's ruling.

Attorney Burt at page 13 noted the Imperato and Pesapane depositions had been held since the February 21 hearing and claimed the “original check” and a bank statement had been produced.   He said Mr. Bozelko saw these items and questioned his clients.

Mr. Bozelko did not directly respond to Attorney Burt's assertion at this time.

Transcript of March 25, 2013

Much of the discussion in this transcript related to the motion to dismiss.

On page 30 Mr. Bozelko contested Attorney Doyle's assertion that he had the check—”the check says it was exchanged for another check and they won't give me a copy of it.”

Attorney Burt on page 31 said his client at the deposition said she did not know anything about an “official check.”

Mr. Bozelko at pages 33–34 asserts his basic position and says some of his questions were not answered at the deposition.

At pages 36 through 37 Attorney Doyle produced answers to interrogatories which Bozelko said had not been answered.   Mr. Bozelko's only response was that it was not on the copy of the interrogatories he had.   Attorney Doyle suggested if Mr. Bozelko did not “ask the same interrogatory twenty times, then (he wouldn't) lose the answers that (he's been) given.”

At page 40 Mr. Bozelko brought up the tax return issue again and the court repeated the same response it had made in the past.   His position was that he needed this discovery to prepare for the trial.   The court reiterated that the relevancy of this information had not been shown.   The court said at page 41 that since this was a court trial if the relevance of the returns warranted an inspection by Mr. Bozelko the case could and would be continued.   Mr. Bozelko made the point that not having objected to the turnover of tax returns the defendants cannot object to their production.   At pages 42–46 counsel for the defendants argued that Mr. Bozelko had not made any showing the tax returns Mr. Bozelko were relevant to anything in the case.   Attorney Burt seemed to suggest he was not sure he had gotten requests for the returns pp. 42–48.

At pages 46–47 Mr. Bozelko again argued why tax returns and the “original check” were important objects of discovery.   He said the deponents refused to say who their accountants were.

At page 48 the court indicated to Mr. Bozelko that it would be very helpful if he could provide to the court all the reasons why he believed he should be allowed to inspect the tax returns requested.   It also indicated it did not wish that the defendants thereby be informed of what his case was either.   At page 49 Attorney Doyle conceded an earlier point made by Mr. Bozelko—the returns would be relevant if his clients were still partners.

The court at page 51 read from the February 21st transcript about the procedure it would use regarding the tax returns if their relevance was established and Mr. Bozelko's seeming approval of that procedure.   At page 52 Mr. Bozelko said he wanted to review the whole transcript not just the portion of the page that the court had read.  (No mention of inability to afford the transcript was made when the court said 180 pages were not involved but just one day of the hearings.)

At pages 53 and 54 the court made reference to motions for order Mr. Bozelko filed on March 10, 2013.   Mr. Bozelko did not have his whole file so he could not inform the court exactly what the claims he was making were.

The court noted one of the motions concerned Mr. Bozelko's request to depose Mr. D'Albero.   Attorney Doyle indicated D'Albero had already been deposed by former counsel in this file.   Mr. Bozelko also noted that a letter as to the man's competency had been promised but not produced.

Another motion for order raised the tax return issue again as did several others, page 55.

At page 56 Attorney Doyle indicated he would see if he could produce checks Mr. D'Albero received for sale of Unnron.

At page 60 Attorney Doyle raised the issue of the “pretrial memo” apparently referring to the trial management report.   Mr. Bozelko said he would “get it done this week.”

Transcript of May 23, 2013

At page 4 the court said Mr. Bozelko was entitled to receive a report on Mr. D'Albero's condition and Attorney Doyle indicated he was in the process of procuring it.   The court indicated the letter should be produced as soon as possible and before June 6th.

At page 8 Mr. Bozelko indicated he would submit a trial management report by June 6, 2013.

The following motions are denied, docket entries 371 through 396, 400, 401, 402, 403, 405, 406, 407, 418 and 420.

However, the court will review on June 6th whether there has been compliance with the previous discovery orders it had made.

Thomas J. Corradino

Judge Trial Referee

Corradino, Thomas J., J.T.R.