Checkmate - September 25, 2008

Among the many ordeals I have currently pending in my life, the one with the Landlord seems to never go away. In the grand scheme of things, the hearing that took place today was another advancement of a single pawn in the game of chess that Roommate and I have been playing. The great thing about chess is that once you know how to play, the game becomes quite easy. The ease is heightened when your opponent hasn’t moved a piece in decades. In our game, every time we move a pawn, Bad Attorney thinks that we moved the king.

I recently brought in some reinforcements to help me play the game. I approached one of my most trustworthy and dedicated (and incredibly knowledgeable) friends to help me out. The case is a lesson in New York civil practice. Not only do I not know New York practice (I am well-versed in California Practice), but I want nothing to do with civil law (I am more of the uncivil type). So, when it came to NY civil practice, I only knew the basics of what I needed to do. My reinforcement, however, is quite the maverick of NY civil law. His background and interests lend him a great deal of credibility. He clerked for a NY civil judge over the summer, and did such an incredible job that the Judge refused to let him leave this semester. He has access to sample motions, pleadings, and other legal documents. His consultation with his judge gives us great insight. His ability to find out details about certain judges and their leanings and temperament is priceless. So, having a consultant to the game we are playing has proved very helpful.

While Bad Attorney wants a Check-Mate, we are attempting to keep the game going for as long as possible. I want to use up, waste and annoy Mr. Bad Attorney and his time as much as possible. It is hard to play a game to completion when your opponent simply seeks to make the game last for a highly burdensome amount of time. As it turns out, my friend (the Consultant) and I are really good at playing our game. Our phone conversations and in-person communication is usually filled with devious laughter. We are truly gaining some real world, highly practical experience. Law school cannot give you the education we are receiving. Our running joke is the starting of a pool at the law school where people try to select the day we actually begin trial. With the number of motions, complaints, interrogatories, demands and appeals we have ready to go, it looks like nothing will happen until at least the end of December. As I said, we are devious.

Our first step in wasting time was to adjourn our hearings numerous times. After we adjourned the case four times (we couldn’t keep it up for much longer), it was on to the next step. We decided on a date for a pre-trial conference. It is an off-the-record meeting between all parties and the judge. Nothing really gets done, but the judge is given an update on the case. Usually, a trial date is set during this meeting, but setting a trial date that early is amateur. During the conference, I talked the Judge into ordering us back for mediation. Mediation is step three. Mediation was today.

I set my alarm to give me more-than-enough time to move slowly in the morning. Waking up with more-than-enough time is predicated on your alarm clock not losing power and resetting. Forty-five minutes after we were scheduled to appear for mediation, I received a call from Roommate. Actually, it is better described as a wake-up call. I horridly showered, dressed, brushed and drove to the Courthouse, and arrive 30 minutes later. When I arrived, Roommate was all smiles. I quickly joined her in being jovial when she explained to me what had occurred before I arrived.

At 9:00 AM, roommate and Bad Attorney showed up at the Courthouse. They went into the courtroom to speak with the clerk. The fun, apparently, began to occur when the clerk became part of America’s Funniest Home Video (if we were recording the scene).

Surrounding Roommate and the Court Clerk were nearly one dozen attorneys and a few litigants. As the conversation between Roommate, Bad Attorney and the Clerk preceded, the attorneys and litigants who were listening in on the conversation, interjected themselves with incredulous comments aimed at how crazy Mr. Bad Attorney was acting. Mr. Bad, upon approaching the clerk, asked Roommate where I was. Roommate told Clerk and Bad that I was on my way, and was taking care of a few issues for she and I. Roommate, with a hint of jest, then said, “The real question is, where is your client.” Mr. Bad Attorney replied that his client (our landlord) is a working man and could not take of work. Roommate, unable to contain herself, responded, likely with a hint of incredulity, “What do you think I am? Every time I am here I miss either school or work. I am just as busy as your client.” Mr. Bad said that this case is taking up a lot of his time and money, and that he did not want to be there. With the onlookers waiting for the next retort, Roommates aimed to please. “You think I want to be here?” she asked. “I am not the one whofiled this case. I am not volunteering my time to adjudicate this matter. You are responbsible for bringing us here.” Obviously happy with the exchange, those watching the scene unfold responded with laughter.

When Bad Attorney started yelling at Roommate, a larger woman put her hands up, turned to Mr. Bad and said, “Shut your big mouth.” Mr. Bad responded that she should not be disrespectful and to dress well for court. He should have known to keep his mouth shut. This woman was obviously having none of his condescension. She said, “You need to be more respectful and just shut up.” This was definitely a comedic moment in time. It is a shame I missed it.

The eavesdroppers put in their thoughts, aghast that Landlord was not present for mediation. Simply put, to be ordered to mediation and have one of the litigants not show up is unheard-of. Roommate relayed our ongoing stance of refusal to talk with Mr. Bad (he lies, has no knowledge of the issues, and enjoys threats). The Clerk told Roommate and Attorney that we had no choice but to mediate because it was court-ordered. Roommate announced that it is not possible to mediate without the presence of one of the parties. Mr. Horrible Attorney (yes, he is getting worse) told the clerk that he didn’t even want to mediate any longer, and that he simply wanted to go to trial. The Clerk became angry with him, and told him again that he had no choice – as if saying it the first time was not enough.

The clerk was angry at Mr. Horrible, and announced to all attorneys present in the court, “Please, somebody help clean up this mess!” The announcement was met with laughter, and yielded an attorney who volunteered to be the mediator. Taking volunteers from attorneys to mediate is never good for the tenant. Nearly every landlord has legal counsel, but rarely does a tenant. This means that the number of landlord attorneys greatly outweighs the number of tenant attorneys. Tenants are definitely not well-served with a landlord attorney for obvious reasons. Luck was on our side today, as a tenant’s attorney was the one who volunteered. Our luck was further heightened as she was an alumna of our law school. Oh happy day.

Minutes before I arrived, the mediator asked Roommate for a brief synopsis of the case. When Mediator opened the court record, she read for a minute and then told Mr. Horrible that he had absolutely no case, and that no judge would find in his client’s favor. She told him that he was better off dismissing the case on the spot as it pertained to owed rent (the basis for us being in court). She told him that he could still seek money for alleged damage to the house, but that rent was a lost cause. Since he filed this case for rent, he would have to dismiss this case and re-file a new case for damages. I arrived just after Roommate, Mr. Horrible and Mediator wrote out a stipulation dismissing the case with prejudice. (A dismissal with prejudice means the matter cannot be refilled, recharged, or reasserted. The matter is dead; the case was given the same outcome as if Roommate and I had won and nothing was awarded to Landlord. A dismissal without prejudice can be refilled, and brought back for re-adjudication.) While they were awaiting my arrival, Horrible called Landlord. Roommate overheard Horrible ask Landlord if the carpet was damaged as bad as Landlord really said. When Horrible realized that Roommate could hear everything, he walked straight for the stairwell to get out of her earshot. When he returned, he notified her that they would not proceed in the future with damages for the carpet. They would only seek damages for the granite counter-tops and the dishwasher. Roommate and I both thought this was ironic, as we both thought the item most likely to render them recovery for damage was the carpet. Yes, we had some luck.

At one point, Roommate wanted to get things moving while we were waiting, and told Attorney that she would take the burden on behalf of the both of us. She would move the case solely into her name for the time being to get the case dismissed. Mr. Attorney told Roommate that doing so would not be fair for her. He felt that this entire ordeal and the damages being sought were a result of my actions, for the most part. He believed I was to blame for everything, and that I should be held accountable accordingly When Roommate notified me of this exchange, I told her this was a fantastic development. She wondered why I felt like that, so I informed her that if we ever get to trial, we will put Attorney on the stand to testify as an adverse witness, and we would get him to restate the fact that everything was mostly my fault. After this, we would introduce the fact that the lease was not signed by me. If we happened to lose the case, the damages would be apportioned according to percentage of fault, and since I was not a leaseholder, the damages they recovered would be decreased by the percentage of fault I was given. Win-win for us.

When I arrived, Mediator was glad to see me. I gave her my address for service of process. The address I used was my permanent address in California. Why make things easy on Mr. Horrible, right? When Horrible realized that the address was in California, he repeated a running theme of his morning: “I don’t think I will agree to this. I will just take the matter to trial.” The Mediator looked at me and inquired as to why I was not giving a New York address. I told her that the residence is semi-temporary, at best, and that in order to serve me, the process server would need to trespass to get to my front door. Mediator retorted that problematic service was not our problem, but an issue for Horrible to deal with. Our comedy fest continued, ushered on by Roommate and I continuing our ever-present laughter. Landlord’s one-liner was reintroduced. “I just think I will take this to trial,” he said.

The Mediator explained how service of process works (a cliff-notes version of those things we learned in first year civil procedure class.) When she explained a form of service of process known as nail and mail (the document is tacked to the front door and a copy is mailed by regular first-class mail and certified mail) Roommate interjected and said, “Yeah. They tried to do nail and mail last time, but forgot the mail part.” Mediator laughed, agreed, and we moved on. Horrible Attorney stated that he didn’t know where he was going to have to file the new case, and in what jurisdiction and court he would bring the new case. I gave Horrible a quick lesson in jurisdiction (again, a first year civil procedure teaching). I notified him that he could file the case in this same county, because this is where the transaction occurred. Roommate was joined by Mediator when she said, “I guess you are going to have to do some research.” After we were done teaching him how to be an Attorney, things moved forward.

When Horrible Attorney was talked out of the tree, we moved on. We amended the stipulation to dismiss the case with my New York address. Roommate then signed the stipulation. After she affixed her signature, Horrible Attorney repeated his catch-phrase. “I don’t think I want to sign this. I think we will just take this to trial.”

Mediator inquired, with great resentment and a tone of annoyance, as to why he wanted to back out this time. He said that he just didn’t feel comfortable with the stipulation. He did not want us to be able to bring an action for damages against he and his client. I incredulously retorted, trying to hide my laughter (though my smile gave away my perception of the matter), that Roommate and I could bring any action and raise any defense in court at any time. It was our right. He then made what I am ashamed to say was a good “catch” on his part. He did not want us to be able to bring an action to recover the deposit for the residence, as it was being applied to the last two months of our tenancy. Begrudgingly, (but not without confidence because of a sudden realization I had) Roommate and I agreed to amend the stipulation.

Mediator quickly got Horrible Attorney to sign the stipulation, in an effort to get this moving before he could, yet again, change his mind and back out. He signed the stipulation, and then I followed suit. As we walked towards the courtroom, Roommate and I laughing about the things that Horrible Attorney was saying and doing, the Mediator turned to Roommate and I, within close proximity of Mr. Horrible Attorney, and said, “Take my advice; do not go into Landlord/Tenant Law.”

I retorted, loud enough for Mr. Horrible Attorney to hear, but quiet enough to make it look like I did not want him to hear it, and said, “I think that is better advice for him.” Roommate, Mediator and I laughed as I nodded in Mr. Horrible’s direction. We walked into the courtroom with smiles on our faces – an unusual act in such a hostile court setting. As we sat down, I whispered to Roommate that we have an incredibly solid argument if, and when, he files a new case seeking damages.

Perplexed at how the stipulation gave rise to a great defense, she pushed me for more. I whispered, as quietly as possible so that I did not get yelled-at by the Clerk, that the stipulation states that our deposit was used for the last two months of rent. I explained that it is not the practice of Landlords to use a Tenant’s deposit to pay the last months of rent if there is any damage to the residence. To do so is monetary suicide for a landlord. Only a tenant who kept their residence in fantastic shape would be given the opportunity to use the deposit towards the rent.

Bingo!

We laughed and smiled jovially the entire time we sat in the gallery waiting for our case to be called, and the stipulation entered into the record. Our comedic attitude was made even better when we realized that Mr. Horrible Attorney was sitting across the room, staring at us with an upset and demeaned look. When our case was called, Roommate and I approached counsel table with smiles on our face; Mr. Horrible looked anything but happy. The clerk asked for us to state our appearances for the record. After I stated my name, the Clerk smiled and said, “Mr. H! You made it.” Her sincerity in being happy about my presence was confirmed as she announced in front of everybody as Roommate and I exited, “Thank you, Mr. H! Have a great day.” I have no idea why I made such a good impression on her, or why she was so happy to see me, but I will accept it as is. I turned to her, and said, “Thank you for your time. Have a great week!”

Roommate and I walked out with a triumphant feeling. We had out-practiced the Practitioner. We relished the glory of our win, and await the next time we face Mr. Horrible.

Roommate and I were ready to file a motion to dismiss the matter today. I had authored, researched and prepared the motion, and was looking forward to filing it today. Though the dismissal was a great victory, I was a little sad that the motion would have to wait until he filed a new case. What will be, will be.

For the record, I still have never met the man purported to be the landlord (Mr. Bad Attorney’s Client). What are the chances?