The Stanley Yascolt Case

Untitled

82.     I represent the Defendant in an eviction from his family homestead by his sister following their late mother’s passing. His sister (the plaintiff) was represented by an attorney and Stanley (“Stosh”) Yascolt sought my representation to defend him. I prepared and filed my appearance and a motion to clarify what the lawsuit was actually claiming before a pending court date. Since the case was assigned to Judge Kelly, I could not risk the decision made by this particular judge ,so  I needed a jury as a fact finder instead.

83.     On August 5, 2015, at the beginning of the eviction hearing against my client, the tenant, I informed Judge Kelly and opposing counsel that I filed a demand for a jury trial just minutes before the bench trial began, along with an objection to the written complaint and a motion seeking clarification of what the lawsuit was actually claiming.

84.     By law, the eviction proceeding had to be postponed so a jury trial could be scheduled instead. Judge Kelly would no longer be the fact finder because the jury would then fulfill that role. This visibly upset the judge, but yet he had to adjourn the hearing after I asserted the applicable law.

85.     At the conclusion of the hearing, Judge Kelly said something about a pre-trial hearing, but I didn’t hear exactly what he said. (Judge Kelly and the legal community is generally aware that I have a long standing hearing loss in my right ear). I wasn’t concerned, however, because a written notice of hearing is always given by the District Court, either  through an “Action in Court” given to counsel on-the-spot (sometimes mailed in follow up),  or by a written Notice of Hearing issued by the court clerk.

86.     An Action in Court is a carbon copy of a template form used in the courts to indicate what action was taken during a hearing, who was present, and any future dates that may be scheduled at the conclusion of the hearing. In this case, I received no Action in Court at the conclusion of the hearing and assumed that the notice would come through the mail instead, as sometimes happens. (See Exhibit T, attached, an example of an Action in Court from another unrelated case).

87.     And thus I never received an Action in Court at the conclusion of that brief hearing, and I never received a written notice of hearing in the mail either. It was surprising, then, when about a week later my secretary received a call from Judge Kelly’s court clerk on August 12 wanting to know where I was because the judge was going to conduct a pre-trial hearing on the Yascolt case. My secretary explained that the hearing was not on my court calendar, and that I was away out-of-town in another court and county. In turn, Judge Kelly’s court clerk informed my secretary that he was going to enter a default judgement against my client for his eviction because I was not there. (See Exhibit U, attached, a copy of the “Action in Court” dated August 12, 2015 signed by Judge Kelly wherein he awarded a default judgement in favor of the plaintiff).

88.     From experience, I knew a default judgement must be handled in a relatively short amount of time once entered or the tenant can be forcefully and physically evicted. So for the next day and for each day thereafter that week, I went to the District Court and requested a copy of the default judgement Judge Kelly was supposed to enter. But each time I was told that the file was still in Judge Kelly’s office.

89.     So the following week, I renewed my efforts only to again be told the same thing: the file was still in Judge Kelly’s office. Then on that Thursday morning, I pressed the issue with the court clerk, Evan Griffith, who informed me that Judge Kelly was on vacation and the file remained locked in his office. I found this upsetting because I believed Judge Kelly was trying to keep the file away from me so time would run out to timely appeal his default judgement that was never mailed to me or my client. So I finally and forcefully asserted myself, demanding that the file be produced that very afternoon. Surely someone has the key to Judge Kelly’s office to retrieve the file for my review, I exclaimed.

90.     Apparently the court clerk conveyed my demand for the production of the file to District Court Judge Dawn Klida who, on December 17, 2014, had been appointed Chief Judge Pro Tempore by Circuit Judge Kenneth Schmidt, who was selected as Bay County’s Chief Judge through a fairly new process that started a few years ago that provided for the appointment for a chief judge and another judge directly below him.

91.     Apparently Judge Klida took the landlord/tenant file into her office, reviewed it privately, and then entered an order setting aside Judge Kelly’s default order without request. In other words, she removed the default and reinstated the case on her own initiative and without being asked.

92.     If Judge Klida had not taken action, I would have lost my right to timely challenge Judge Kelly’s default judgement (that had been questionably entered). Based on the date Judge Kelly signed the judgement, I would have had to take action by the following Monday, when Judge Kelly was scheduled to return. With the file locked in his office while he was away on vacation, I was shut out from being able to take the appropriate action, as a lawyer. But after Judge Klida intervened and set aside Judge Kelly’s abuse of discretion in granting an inappropriate default judgement through an abuse of discretion in my opinion, an appeal was not necessary.  The actual wording of Judge Klida’s order invalidating Judge Kelly’s default judgement, in her own handwriting, read as follows: “After review of the file and ON THE COURT’S OWN MOTION the court sets aside the Default Judgement entered on August 12, 2015. This matter is to be set for jury trial as soon as the court’s docket will allow.” –  emphasis added. See Exhibit T, attached, a copy of Judge Klida’s order entered on August 12, 2015 that set aside Judge Kelly’s default judgement entered the prior week.  (See Exhibit V, attached, a copy of the Action in Court signed by Judge Klida and entered on the record August 20, 2015).

93.     Following Judge Klida’s order of August 20, 2015 setting aside Judge Kelly’s default judgement, my office never received further communication from the court regarding this file. On December 30, 2015, in preparation for the filing of this affidavit, I ordered expedited copies of the transcripts to be prepared of the two Yascolt hearings held on August 5 and August 12, 2015.  Three day later, on Saturday, January 2, 2016, I received a mailed list of witnesses and exhibits from opposing counsel on the Yascolt case. This seemed odd because a list of witnesses and exhibits are seldom employed on landlord/tenant cases, and the parties were never ordered to submit such lists, nor was any trial date scheduled.

94.     So the following Monday, on January 4, 2016, I went to the courthouse to review theYascolt file to determine if there was any activity with the file since Judge Klida’s order was entered on August 12, 2015. The file, however, was not available because it was in Judge Kelly’s office so I obtained a list of the docket entries instead.

95.     The docket entries I received on Monday, January 4, were very revealing. The listing of docket entries itemizes all activity that occurs on a court file involving court hearings, the setting of dates, and/or the entry of documents into the court file.  In this instance, the docket entries indicated there was a settlement conference scheduled for January 27, 2016, and a jury trial scheduled for January 28, 2016.  However, I never received any notice from the court or any other source about the scheduled settlement conference and jury trial. So although the docket entries indicated those two court dates were set, I was never made aware of it. Nor was there anything in the court docket entries to suggest that the court ordered the parties to file and serve lists of witnesses and exhibits.  (See Exhibit W, attached, a copy of the Yascolt docket entries that were produced and dated on January 4, 2016).

96.     On January 6, 2016, I received the two expedited transcripts I ordered on the hearings held on August 5 and August 12, 2015. In reviewing the transcript from August 5, I was able to ascertain exactly what it was in court that I was unable to clearly hear.  Because opposing counsel filed a motion on January 15, 2016 to reinstate Judge Kelly’s default judgment against my client, Stanley Yascolt, that Judge Klida set aside on August 20, 2015, nearly five months prior to the filing of the motion, and since that motion contains material misstatements of fact utilized to cast aspersions on the good character of both Judge Klida and me, a detailed summary of that hearing is needed and necessary, which follows:

(a) Once the hearing began at 9:14 a.m. on August 5, 2015, Judge Kelly solicited a response from opposing counsel, Kimberly King, that she was there with her client, the Plaintiff (the Defendant’s sister), to obtain possession of the homestead where the Defendant (my client and the Plaintiff’s brother) resided. The judge then solicited my response, and I informed him that I filed an objection to the Plaintiff’s complaint and a motion for a more definite statement.  (See transcript of August 5, 2015 at Page 5 from Pinard v. Yascolt, File #15-2745-LT-TK, hereinafter “TR”).

(b) Judge Kelly stated he hadn’t seen any motion, but confirms from Ms. King that she received a copy of my Objection to the Complaint and Motion for More Definite Statement, and then notes that the only filing in the Court’s file was the demand for a jury trial that I filed shortly before the hearing began. I offered to call my office to make sure a runner brought the Objection/Motion to the courthouse the day before and filed it, and Judge Kelly agreed that should be done, so I placed a call to my office at that very moment and on the record.

(c) Judge Kelly instructed his court reporter, Alexa Pobanz, to call down the hall to confirm whether the motion was filed. She does as instructed and reports to the judge that there was, indeed, such a filing made, and someone from the District Court was bringing a copy to him.  He then asked me to again state what it was that I filed, apologizing for not getting it clear.  (TR, Page 6).

(d) In response, I informed Judge Kelly that I filed an objection to the complaint because there was no statutory authority cited (TR, Page 6), and I further informed him that I called Ms. King about the matter, and she wanted to see a copy of the Objection/Motion, which I immediately provided by fax. (TR, Page 6).

(e) I also noted there was a legal question that had to be addressed because the Plaintiff, my client’s sister, was acting under the auspices of a trustee over a trust their late mother established, yet her brother, the Defendant and my client, never received a copy of the trust instrument. Accordingly, Ms. King faxed the trust instrument to me the prior afternoon after I spoke with her, as I related to the Judge.  I also noted that the trust instrument revealed that my client was a beneficiary of the trust, adding that “I haven’t had a chance to really review [the trust instrument] very closely.”  So I called Ms. King, I further stated, and shared my concerns with her, suggesting that the bench trial to force my client’s eviction scheduled for the following morning be adjourned.

(f) After speaking with my client’s sister, the Plaintiff, Ms. King called me back to inform me that there would be no adjournment. As I attempted to further relate to the judge what then transpired that afternoon, he interrupted me, stating “[W]hen there’s counsel on the other side, first of all, the thing to do is call counsel on the other side before you call the court.”  As I attempted to explain to the judge that I wasn’t going to call him to seek an adjournment (TR, Page 7), Judge Kelly again interrupted me, stating “Well your office called yesterday (Tuesday) wanting to adjourn this matter and we don’t do that if there’s counsel on the other side.  We want to make sure that the other side is notified before we just adjourn something.  So we did receive a call and that’s not how it works,” he concluded.  (TR, Page 8).

(g) I informed Judge Kelly that I knew what the proper procedure was [1] , advising him that I instructed my secretary to call his office (call was never placed) to see if he would agree to an adjournment, after I requested one from Ms. King and prior to her refusal to go along with it. [2] Kelly’s court recorder, Ms. Pobanz then informed the judge that I did call his office two days prior, on Monday, and request a hearing date on my Objection/Motion (not an adjournment).  Judge Kelly responded “No, it was Monday.  I’m sorry.  Not yesterday,” without acknowledging that no call was ever placed seeking an adjournment from him, as he claimed.  (See the subparagraph ‘f’ immediately above).

(h) After he conferred with Ms. Pobanz off the record (TR, Page 9), and after I confirmed what she said was in accordance with my recollection of events, I informed the judge that I then filed the jury demand because that would put on the brakes. There was no time to bring my motion before the Court prior to the bench trial scheduled for that morning.

(i) Judge Kelly then asked Ms. King if she received a copy of my paperwork, and she confirmed she received it by fax two days prior – on Monday. She also confirmed she faxed me a copy of the Trust, and claimed she previously provided it to my client via mail (TR, Page 9), along with a notice of his beneficiary interest in the trust. [3] (TR, Page 10).  I responded:  “Counsel just told the Court that she did all the right things in all the right ways (TR, Page 10) to get [the Defendant] out, leading to this.  That’s not accurate,” adding “And I really believe that if there was a coming together of the minds, a meeting of the minds through maybe counsel, this whole thing could be resolved.” [4]

(j) I also informed the judge that I just learned that morning that my client held a twenty-five percent interest in the property, and that I had not had a chance to fully access the contents of the trust instrument since I was just recently provided a copy, adding that “I think this whole thing could have been avoided. I don’t think it was done properly…[the delay caused by the jury demand will] give us some time to work this out, look at it, make sure it was done properly, and then I would want it dismissed.  But again, we have to sort it out.”  (TR, Page 11).

(k) King asserted there were efforts to get Stanley Yascolt to move out of the family homestead dating back to 2014 (TR, Page 11), and that I was hired merely to prolong the matter. (TR, Page 12).  So Judge Kelly decided to conduct a pre-trial the following week, on August 12, for the sole purpose of setting a motion date “if there are motions to be filed,” ignoring the fact that there WAS a motion filed by me on behalf of my client.

(l) He then concluded the hearing his usual way, asking the parties to step to the front bench area to pick up their copy of the standard Action in Court. However, he then changed his mind and decided not to hand out any written notice and relied on his verbal notice instead, as follows “Yes.   So we’ll just need [the] parties to step up, we’ll give you a copy – Oh, we don’t have an action, so we’ll just indicate that – on the record that we’ll have a pre-trial on the 12th at 10:15.”

(m) Hence, the standard procedure was not followed with no written notice ever given at the conclusion of the hearing or mailed to the parties regarding the administrative hearing he scheduled — to merely set a future date on any motions that may be filed.

(n) No reason was given by Judge Kelly for not setting a hearing date on the motion I had filed prior to that hearing, the motion I called his office about two days earlier to obtain a hearing date on, a phone call he falsely claimed earlier in the hearing was a call placed to adjourn the scheduled bench trial that we were then attending, after lecturing me about the proper procedure. (See Exhibit X, attached, a copy of the 12-page transcript of the Yascolt hearing of August 5, 2015, particularly sub paragraphs e-g at pages 34-35).

     97.     Since I know that a written notice is always given on court hearings or actions by the local district court (except in this case), I relied on the written notice that I never received. Frankly, the verbal notice I was given slipped my mind due in part, to being rushed by a pressing engagement in my calendar.  Besides, it was merely an administrative hearing for the setting of a future motion date, and nothing substantive was scheduled to occur at that time.  However, when neither my client or I appeared the following week because we both forgot the verbal notice or didn’t catch it, Judge Kelly took the most extreme action allowed under the court rules by entering a default judgment against my client for not appearing.

98.     Considering the lack of formal and/or written notice of the hearing that Judge Kelly verbally scheduled for the following week, and given that it was strictly an administrative hearing with no substantive action scheduled, it seems inappropriate that a judge would enter a default judgment against a party simply because neither he or his attorney were in attendance. Although the court rules do allow a judge to enter a default against a party who fails to attend a court hearing, such extreme measure is rarely taken by most courts because of scheduling difficulties, or a lack of formal notice may occur (as here), especially given that the function of the hearing was strictly and solely administrative in nature; i.e. to obtain a future date for motions to be heard with no substantive action scheduled. Many if not most judges would have simply set a date for the hearing on my motion (which was the only motion of record at that time), or simply adjourned the matter to a new date and made certain that formal, written notice of the upcoming hearing was provided to both parties.

99.     In some instances, a judge may assess costs against the party who fails to appear, rather than take the most extreme action allowed by entering a default judgment. In other words, rather than follow the course of action most judges would have taken under such circumstances, Judge Kelly took full advantage of my failure to attend his strictly administrative (and unnecessary) hearing by entering a default judgment against my client, Stanley Yascolt, even though he appeared with me the week before, on August 5, and demanded a jury trial on the matter instead of letting Judge Kelly decide it.

100.     This exemplifies the problem my clients and I face in dealing with Judge Kelly. I always have to be on guard with him.  If there’s any way he can take advantage of me or my clients, he’ll do it.  His handling of the Yascolt matter, and the way he was so quick to enter a default judgment against the man to have him thrown out of his home,[5]illustrates Judge Kelly’s manipulation of the court docket and proceedings.  It also explains why Judge Klida entered an order to set aside Judge Kelly’s insensitive, hasty and unwarranted default judgment.

101.     Why is it that an Action in Court was entered into the Yascolt file by Judge Kelly when he entered the default judgment against my client, but he specifically stated on the record that no Action in Court would be utilized at the conclusion of the August 5, 2015 court hearing? Notice how both Judge Klida and Judge Kelly entered written Actions in Court when they took official action in the handling of the Yascolt file, yet Judge Kelly didn’t follow the standard procedure at the conclusion of the August 5 hearing when he ordered the parties to return the following week to merely set a future date for the court’s review on the only motion of record  my motion that was discussed during that hearing, the same motion I attempted to obtain a hearing date on by phone a couple days earlier when my secretary called Judge Kelly’s office, the phone call that Judge Kelly misrepresented earlier during this hearing as a call seeking his adjournment (which it wasn’t).

102.     It’s unreasonable that as a practicing lawyer, I am required to repeatedly and regularly check a court file, obtain listings of docket entries, and be on alert at all times for Judge Kelly’s judicial maneuverings to abuse my clients’ rights to due process and my right to represent them.  Notice how the docket entries that I obtained on January 4 (Exhibit W) lists Judge Kelly’s Action in Court of August 12, 2015, which contained his signed order granting a default judgment against my client, and the Action in Court Judge Klida signed on August 21, 2015, which ordered Judge Kelly’s default judgment to be set aside.  So why wasn’t an Action in Court likewise utilized when the parties appeared in Judge Kelly’s court on August 5, 2015, or later provided to them by mail per the standard procedure?

103.     Then on January 14, 2016, nearly five months after Judge Klida entered her order via an Action in Court to set aside Judge Kelly’s default of August 12, 2015, opposing counsel filed a motion to reinstate Judge Kelly’s default of August 12, 2015 against my client and alleged some misstatements of fact, one of which she utilized to support a scurrilous allegation against both me and Judge Klida. (See Exhibit Y, attached, a copy of the plaintiff’s Motion to Reinstate Judge Kelly’s Default filed on or about January 14, 2016 in  Pinnard vs. Yascolt, file number 15-2745-LT-TK).

104.      At Paragraph 7 of her motion, in reference to the August 5 hearing summarized in Paragraph 96, infra, Attorney Kimberly King misstates the facts: “Mr. Czuprynski had indicated to the Court he believed with additional time, the Yascolt case could be resolved.”  But the record does not support this claim.  I never said anything of the sort.  What I did state is that I really believed that if there was a coming together of the minds, a meeting of the minds through counsel, this whole thing could be resolved, as indicated in Paragraph 96, subparagraph (i), infra.

105.     At Paragraph 8 of her motion, again in reference to the August 5 hearing, Ms. King cited Judge Kelly’s claim on the record that he did not have an Action in Court that day. But I think that was a phony excuse in an effort to set me up for the default that he took the following week. Why wasn’t an Action in Court subsequently filed and then mailed out, as with other cases?  Indeed, an Action in Court could have been generated then and there. For example, on a different civil case where the defendant is also represented by Ms. King and Jason Gower, another local lawyer through whom Ms. King is employed at Gower Reddick, PLC, I recently attended a meeting in-chambers with Judge Janer after insisting beforehand that the discussion be summarized and placed on the record afterwards.  He complied, and an Action in Court was generated then and there, even though a hearing date had not been scheduled for that date and time.  (See Exhibit Z, attached, a copy of the Action in Court dated January 25, 2016  bearing Judge Janer’s signed order handed to the parties at the conclusion of the unscheduled ad hock hearing inEMC Development and Edward Czuprysnki v. Linda Houle, File # 15-2934-LT).

106.     But of greater concern, and as further evidence of why Judge Kelly should be disqualified from handling any cases involving my representation of one of the litigants, Ms. Kimberly King claimed in her motion at Paragraphs 12 and 13 that: “It is counsel’s understanding Mr. Czuprynski had an ex-parte communication with the Court, or Judge Klida, [regarding the Yascolt case], which was the basis of the order to set aside the judgment [entered by Judge Klida on August 20, 2015].  Based upon Mr. Czuprynski’s misrepresentation to the Court, that he was not made aware of the pre-trial date [Judge Kelly scheduled for August 12, 2015], Judge Klida reviewed the file and on the Court’s own motion, set aside the default [entered by Judge Kelly].”

107.     Of course, this is totally false, and the true facts are related in my affidavit at Paragraphs 88-91, infra. There was no ex-parte communications between Judge Klida and me prior to her entry of her order via an Action in Court to set aside Judge Kelly’s default judgment entered against my client on August 12, 2015.  None!  The question begs to be asked: What is Ms. Kimberly King’s “understanding” based upon when her motion claimed I had an ex-parte communication with Judge Klida?  And why did she wait near five months before filing a motion to set it aside? Not only did Ms. King make such a scurrilous, false accusation against both me and Judge Klida, she also falsely alleged that I had misrepresented to Judge Klida that I was not made aware of the pre-trial date Judge Kelly set for August 12 when he entered the default against my client for non-attendance, causing her to set the default aside. Ms. King makes it sound as if there were some type of conspiracy between me and Judge Klida, and nothing could be further from the truth.

108.     King’s motion misrepresented another, material fact when she alleged, in Paragraph 18, that at the conclusion of the August 5, 2015 hearing, I requested an adjournment on the matter and Judge Kelly granted the adjournment and set the matter for a pre-trial hearing the following week. But the transcript from that hearing on August 5 contains no such request being made.  I never requested an adjournment prior to Judge Kelly setting the matter for a pre-trial hearing that was unnecessary and unneeded.  Why didn’t Judge Kelly simply set a hearing date for the motion I had already filed?  A motion discussed during that hearing which I tried to obtain a hearing date on two days earlier through a phone call placed to Kelly’s office? (See Paragraph 96, subparagraph g).  This was the same phone call that Judge Kelly falsely claimed during that hearing was placed to seek an adjournment of the hearing then taking place, after admonishing me for following such procedure that I never pursued.  (See Paragraph 96 subparagraph e-g infra)

109.     Attorney Kimberly King’s motion cites the court rule that permitted Judge Kelly to enter a default judgment against my client for not attending, in person or through counsel, the administrative hearing held on August 12 — to merely schedule a date for a hearing on any motions that may have been filed. King uses her scurrilous allegation against Judge Klida and me, supported by a misrepresentation of facts, to justify why Judge Kelly’s extreme action should be reinstated.

110.     Further, Ms. King presumably realized the misrepresentation of facts contained in her motion because it reveals that previous to filing it, she obtained a copy of the transcript from the August 5, 2015 hearing, and she therefore knew, or should have known, that:  1) I never indicated to Judge Kelly that I believed with additional time this case could be resolved; and 2) I never requested an adjournment of the matter, which prompted Judge Kelly to set the matter for a pre-trial hearing the following week. The second, more material misrepresentation of the facts provided Judge Kelly with a reason of why he scheduled a pretrial hearing for the following week — that was totally unneeded.

111.     Both of Attorney Kimberly King’s statements are false, and since she had obtained a copy of the transcript before preparing and filing her motion, she knew or should have known that her allegations were not true.

112.     To make false allegations in a motion is subject to sanctions because a lawyer affirms the veracity of the allegations made therein by signing the motion and filing it. See MCR 2.114 (D)(2).  But I highly doubt   King will be sanctioned by Judge Kelly, even though she filed a motion containing the statements that she knew or should of have known were not true,  and then drew upon those falsehoods in support of yet another one, a scurrilous false allegation that cast reckless aspersions upon both me and Judge Klida with absolutely no foundation in fact.

113.     This further illustrates the problem I have in proceedings in Judge Kelly’s courtroom; i.e. how he and certain lawyers will act in tandem in their efforts against me. It also reveals how Judge Kelly’s questionable and, at times, unethical judicial behavior encourages some attorneys to practice law in similar fashion. Indeed, in a recent hearing I seem to recall Judge Kelly echoed Ms. King’s misstatement of fact about my allegedly requesting an adjournment at the conclusion of the Yascolt hearing of August 5, 2015 when I never did any such thing. I do not, however, recall what hearing it was when he alleged this.

114.     Again, how can I be expected to handle matters in Judge Kelly’s court when he and my opposing counsel both make false allegations of things that never happened?  This underscores why Judge Kelly must be disqualified from all my cases.

[1] In fact, the proper procedure to follow that the judge lectured me about is exactly what I did; I called opposing counsel suggesting an adjournment, as I had just related to him.  But he kept cutting me off before I could inform him of anything else.

[2] I later learned that my secretary never placed that call to see if an adjournment would be agreeable with him if opposing counsel agreed to it because Ms. King called in her refusal before my secretary had a chance to place that call.

[3] Stanley Yascolt denies ever receiving a copy of these papers.

[4] That was before I learned that opposing counsel was not acting in good faith.

[5] Stanley Yascolt  is 74 years old.

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