John S. Legasey for the defendant.
Robert D. Friedman for the plaintiff.
Following a District Court trial, the judge awarded damages for rent not paid for the lease of a copying machine. The defendant was unsuccessful on appeal to the Appellate Division and comes here arguing that it is not liable under the rental agreement because the plaintiff broke express warranties concerning the quality of performance of the machine. The judge made no finding that the plaintiff made any express warranty. The defendant did not request a ruling that the evidence warranted a finding that the plaintiff made an express warranty concerning the quality of the copies to be produced by the machine. Even if such a request had been made, the report from the trial judge does not indicate that it contains all the evidence bearing on the question whether the plaintiff made an express warranty. The issue is not before us on the record.
The defendant, a Massachusetts business corporation, claims that the court should enforce the provision in the rental agreement providing that the rights of the parties should be determined in the courts of Illinois, the plaintiff corporation's home State. The defendant first raised this issue in its request for rulings, filed after trial. Assuming that such a clause would be enforceable against an out-of-State seller or lessor who has put the provision in its standard form, we simply conclude that the issue, not presented in the defendant's answer or in any pretrial motion, was raised too late. Mass. R. Civ. P. 12 (b), (h) (1), 365 Mass. 754 (1974). See Randolph Eng'g Co. v. Fredenhagen Kommandit-Gesellschaft, 476 F. Supp. 1355, 1357-1359 (W.D. Pa. 1979).
Order dismissing report affirmed.
The applicant, pro se.
Charles J. Hely, Assistant District Attorney, for the defendants.
Daniel Klubock, Bar Counsel, Terence M. Troyer, Assistant Bar Counsel, & Helen Fremont, for the Bar Counsel, amicus curiae, submitted a brief.
With considerable tolerance for the plaintiff's failure to follow certain minimum requirements of the Massachusetts Rules of Appellate Procedure, we discern that we have before us, for review, five issues which have in common some relationship to the plaintiff's continued attempts to be admitted
as a member of the Massachusetts bar. (1) A single justice has referred to the full court, without decision, the plaintiff's "Motion for Relief of Judgment." This effort of the plaintiff is strikingly similar to an effort she made in 1982, and in denying her present motion we repeat apposite language from our 1982 rescript opinion: "There is nothing before us other than the bare assertions of the plaintiff's brief .... [I]t is apparent from the assertions of her brief that her present contentions are merely a restatement of the unsuccessful claims she offered in 1979." In the Matter of an Application for Admission to the Bar of the Commonwealth, 385 Mass. 1006 , 1007 (1982). See In the Matter of an Application for Admission to the Bar of the Commonwealth, 378 Mass. 795 (1979), cert. denied, 444 U.S. 1046 (1980). (2) The plaintiff appeals from an order of a single justice vacating a prior order of impoundment of the transcript of a certain hearing before the Board of Bar Examiners. It was shown before the single justice that the plaintiff has commenced an action for defamation against several attorneys as a consequence of their testimony at the hearing in question. Clearly there was no error in the single justice's making the transcript available on the motion of the defendant attorneys. (3) A single justice denied two motions of the plaintiff in which she sought to obtain various records, allegedly in the possession of the Board of Bar Overseers, which allegedly concern the several attorneys, referred to above, against whom she has brought an action. The plaintiff did not demonstrate the relevance of these alleged records to any valid interest of hers. There was no error in the denial of her motions. (4) The plaintiff by motion asserts that impoundment orders concerning her matters before this court are being unevenly applied. Her assertions do not bring the facts clearly before us. In the interest of expedition, we are directing the clerk of the full court to bring to the attention of the court all relevant information concerning these assertions of the plaintiff for action by the full court, if any is required, in due course.
The plaintiff's motion for relief from judgment is denied. All decisions of the single justices are affirmed.