Opinion
10-P-2096 10-P-2194
12-12-2011
PAUL MONTENEGRINO v. MARY C. ASCIUKIEWICZ (and a companion case ).
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Paul Montenegrino, filed two complaints, one against his former wife, Mary C. Asciukiewicz, and one against her attorney, Daniel T. Doyle, seeking a $5,000,000 judgment from each. Both defendants filed motions to dismiss pursuant to Mass.R.Civ.P. 12(b)(6), 365 Mass. 755 (1974). A Superior Court judge dismissed both complaints. The plaintiff then filed two appeals.
Although the plaintiff has filed separate appeals, Nos. 2010-P-2194 and 2010-P-2096, as both appeals arise out of a common nucleus of facts and allegations, we address them together.
The complaint against Asciukiewicz alleged that, 'for the past six years [Asciukiewicz] committed fraud, perjury, lying under oath in three different courts . . . . She committed these acts with outrageous and malicious intent towards me, being expertly advised by her attorney . . . causing me mental, physical and financial anguish. As a result, I had to be put on state and federal disability for the rest of my life.' Additional allegations include hiding marital assets, using the plaintiff's minor son to defame and humiliate the plaintiff, and causing the plaintiff to live in squalor, require counseling, and experience pain and suffering.
The complaint against Doyle refers to Doyle as 'the mastermind and ringleader of this three part lawsuit,' and generally alleges that Doyle, 'in tandem with his client,' and 'through his illegal and carefully thought out corrupt actions,' caused the plaintiff to become gravely ill, lose eleven years of work, and require state and federal disability for the rest of his life. Other general allegations include, '[c]orruption, coercion, fraud, perjury and, the most blatant, using a minor, my son . . . to gather evidence on me . . . with malice and intent to cause me and my son hardship, pain and suffering, mental, physical, financial and emotional stress.'
In both orders allowing the respective defendants' motions to dismiss, the Superior Court judge found as follows:
'The [p]laintiff attempts to file a complaint which is conclusory in nature, not in proper form, and alleges in substance the same facts alleged in Framingham District Court docket [numbers] 10C1090 and 10Cl1091 -- both of which were dismissed with prejudice. [T]he [d]octrine of [r]es [j]udicata precludes the filing of this complaint in the Worcester Superior Court.'
The plaintiff has provided nothing to suggest that the judge's application of res judicata was in error. Each of the judgments are affirmed.
The defendants have asked for fees and costs. Given the frivolous nature of the plaintiff's claims, these fee requests may be warranted. However, the defendant has been determined to be indigent (the defendant filed affidavits of indigency in these cases, which led to a waiver of filing fees and costs). In light of that indigency determination, we find that it would serve little purpose to allow appellate fees and costs here. These requests are, therefore, denied.
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So ordered.
By the Court (Berry, Cohen & Sikora, JJ.),