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Viburnum When You Can Mulch Them?
Well-known plantsman Roger Gossler was interviewed last Saturday on a local garden radio show, In the Garden with Mike Darcy. The subject was color in the garden, and Roger enthused about bark, berries and colorful leaves. Viburnum dilatatum from Japan was mentioned as a wonderful autumn plant, and Mike – who occasionally dumbs down to serve the audience – asked Roger what was the common name. Roger didn't know, but it is the “Linden Viburnum” because the leaves resemble the Tilia (lime) genus, and I had the answer in 10 seconds...coming from Roger's book The Gossler Guide to the Best Hardy Shrubs. C'mon Rog, read your own book!
I don't produce dilatatum, for no matter how "wonderful" it is, it is still considered a cheap shrub with a relatively low “shelf-life,” meaning that it gets large fast and there is no market for its large size. Besides, the genus is notorious for susceptibility to SOD (sudden oak death) and it is also a magnet for root weevils. The specific name dilatatum – given by Carl Peter Thunberg – comes from Latin dilatatus meaning to “spread out,” and in time the bush can hog a lot of lateral space. In any case it is wonderful if the neighbors grow one, and you can look at it over the fence.
I have read that Viburnums are shrubs or trees in the Caprifoliaceae (honeysuckle) family in Hillier's Manual of Trees and Shrubs (2nd edition), but by the 2014 (8th edition) the genus has been moved into the Adoxaceae family. Other members include Adoxa, Sinadoxa, Tetradoxa – which I know nothing about – and Sambucus, which I do know something about. I grow a few cultivars of the latter in the gardens, and S. racemosa is native to my woods on both properties. Evidence accepted for the botanic move would bore you stiff, as it does me. My late grandmother used to make Sambucus (elderberry) jam and my late father made elderberry wine, and both were very tasty. As for Viburnums, Englishman John Lindley called them “a miserable food for savage nations.” Though Native Americans were no more savage than the English, they used Viburnum for food, medicine and tea. Also called “arrow-wood,” the Neolithic Iceman Ötzi, found frozen in the Alps in 1991, was carrying arrows made from V. lantana. The Roman Virgil (70-19 BC) wrote of lenta viburna, with lenta meaning “pliant” or “flexible” and viburna perhaps meaning a “path,” and indeed Viburnum branches usually do bend easily.
Another Vib from Japan is the species bitchiuense which was first described by Makino, the Father of Japanese Botany in 1911. I grow one in the Flora Wonder Arboretum, and it forms a medium-size shrub with a garden-worthy narrow upright habit. Light pink flower clusters appear in April and they are pleasantly fragrant; some other V. species actually stink, especially when brought into the house. The suffix ense refers to a place of origin in botany, while Bitchiu (or Bishiu) belongs to the “mountain-front circuit,” comprising eight provinces in ancient Japan.
Commonly found in Western gardens is V. x bodnantense, the hybrid between V. farreri and V. grandiflorum. According to Hillier, “A splendid hybrid first raised at the RBG Edinburgh in 1933 and later at Bodnant, N wales in 1935.” So even with war looming in Europe, British gardeners still had time to breed bushes. 'Dawn' is vigorous and fairly hardy (USDA zone 6) and it produces fragrant flowers from October to November. When I alluded earlier to Vibs stinking up the house, I was thinking of 'Dawn' – somehow it smells ok out of doors, but not so inside and my wife tossed a bouquet into the trash after just a few hours. One 'Dawn' grew too large for its place in the garden so I cut it down. It refused to die and sent up new shoots which flowered; so every couple of years we play the chainsaw game.
V. carlesii is the Korean viburnum, a small deciduous shrub with a round form. Flowers appear in May and are sweetly scented; a blind man would assume he is smelling a Daphne. They are pinkish when in bud, but they open to snow-white in full flower, and later the fruits evolve from red to black. V. carlesii was named by botanist Hemsley for William Richard Carles (1849-1929) who collected plants in the 1880's in Korea. He was actually the British Vice Consul in China from 1867 to 1900, but he made a couple of trips into the Korean interior and sent the loot back to the Royal Botanic Garden. Carles wrote Life in Corea, the first account by a Westerner who actually set foot in the region. The wonderfully fragrant “Korean spice bush” was named carlesii unbeknownst to the plant hunter, and what a nice honor.
Viburnum davidii is a low-spreading Chinese evergreen shrub that was named for the missionary Armand David, and it was introduced into Europe by E.H. Wilson in 1904. The cultivar 'Longleaf' is more vigorous than the type, and my largest specimens are 2' tall and 6' wide at 16 years of age. V. davidii blooms in June, but the dull-white flowers are nothing special in my opinion; nevertheless it received an Award of Merit for its flowers in 1912 and again in 1971 for its turquoise-blue fruit. Since the berries are not very plentiful, one could say that it is primarily planted for its glossy green leaves and that it serves a utilitarian purpose. Sadly, in America, it is often put into parking-lot spaces without irrigation, and little brats and their tattooed moms trample on the poor things. My well-behaved children were taught at an early age to never take a shortcut through the flora, that if people did that at my nursery I would go bankrupt and they would be put into foster care or worse.
I've never grown V. furcatum, but I would if I ever saw one for sale. I think the photos above were taken at Arboretum Trompenburg in Rotterdam on a rainy October day. Hillier says that it flowers in May, which I have never seen, but that flowers resemble a lacecap hydrangea. I would grow it for the rich-purple autumnal hue even if it never flowered. Hillier deems the species to be of “elegant charm; an excellent woodland plant.” It is commonly called the “forked Viburnum,” as furcatum is derived from Latin furcatus for “forked,” and it is native to Japan, Korea and Russia.
V. lantanoides is a New England native commonly called the “Hobble bush,” and it thrives in woodland conditions. This shrub can grow to 12' tall and the pendulous branches take root where they touch the ground. They present obstacles for walkers, hence the common name. Flowers are white to pink and appear in May-June and the fruit is a red drupe* that turns to black when ripe.
*From Greek dryppa for “overripe olive.” In botany it is a fleshy fruit with thin skin and a central stone containing the seed – as in a plum, cherry, almond or olive.
What was once V. mariesii is now encumbered with the current name of V. plicatum f. tomentosum 'Mariesii'. V. plicatum is the “Japanese snowball bush,” while forma tomentosum is commonly called the “doublefile viburnum.” The specific epithet comes from the Latin plicatum meaning “pleated” or “folded,” referring to the leaf veins, while Latin tomentosum means “woolly” due to fine hairs on young stems and leaf undersides. The cultivar honors the English plant-hunter Charles Maries (1851-1902) who toiled in Japan, China and Taiwan for the Veitch Nursery. Maries was prolific and discovered over 500 new species* which he introduced to England. Back to the bush, 'Mariesii' is noted for white flowers borne on horizontal branches. Give it plenty of space as I have seen specimens about 12' tall by 15' wide.
V. plicatum 'Popcorn' is a show-off in May-June and our 5' compact specimen can be seen from a long distance away. According to Hillier it is a “particularly fine selection, producing a profusion of flowers earlier than other f. plicatum cultivars, and that its foliage remains “fresh throughout the summer.” I don't grow V.p. 'Kearns Pink' but I was impressed with it at Shadow Nursery in Tennessee a couple of springs ago. The “pink” was faint and I wonder how it compares with a Gossler favorite, V.p. 'Pink Beauty' – which remember is a lacecap variety – versus the snowball shape of the 'Kearns Pink' flower.
V. opulus is known as the “European cranberry bush” and it is native to such diverse locales like Europe, NW Africa, Asia Minor, the Caucasus and central Asia. It is a deciduous shrub, except that my V.o. 'Nanum' is perfectly green today. When I first acquired it I wasn't aware of how poorly it flowers, and the bush in the photo above has had twenty years to prove itself. 'Leonard's Dwarf' is a much faster cultivar, but it is planted behind the pond and I don't recall ever seeing it flower. Maybe its blooms are sparse also. V.o. 'Aureum' is my favorite of the cranberry bushes. I have sited it perfectly: enough sun for the foliage to be a strong yellow, and enough shade so that the leaves don't burn.
There, there you have a blog on Viburnums, something a week ago I thought I would never write. I don't think I have ever propagated or sold a Viburnum in my entire career. It is far from my favorite of all woody plants, but a few in the genus are nice additions to the landscape. I suppose the main reason for the Viburnum blog is to tease Roger about forgetting the common name when he was on the radio show.
By the way I didn't make up the joke about "Viburnum when you can mulch them?" That originated eons ago along with "There are two certainties in life: death and Taxus." I know, nurserymen should stick to their day jobs.
I was in the Boston area last month and I was very excited to finally visit the Arnold Arboretum. The layout was designed by Frederick Law Olmsted and in my opinion he did a heck of a job. The arboretum was named for James Arnold (1781-1868), a Massachusetts whaling merchant, and its mission was to increase knowledge of woody plants through research, and then to pass on the knowledge through education.
The Arnold was established in 1872 and Charles Sprague Sargent was appointed director. Sargent is honored with botanical names such as Sorbus sargentiana, Rhododendron sargentianum, Juniperus chinensis var. sargentii, Magnolia sargentiana var. robusta and others. I am particularly interested in the institution because the great plant hunter E.H. “Chinese” Wilson was lured away from the English Veitch Nursery firm to collect for the Arnold, and then to work there. Sadly, Wilson and his wife died in a car accident in 1930.
The collection contains about 4,000 taxa* on 281 acres. Buchholz Nursery – even excluding Flora Farm – has grown at least 4,000 taxa also, but on one-tenth the acreage. The difference is that I abandon many if they don't sell, and secondly, my plants are miniature compared to the humongous specimens in the Arnold. We parked our car near the Fagus entrance, then worked our way to the oaks, and the overwhelming impression for me was just how large the trees were. One Fagus displayed two lower branches that swept out at an incredible distance, and I borrow my daughter's photo of it.
*Taxa is plural of taxon, and it's a group of one or more populations of an organism or organisms believed by taxonomists to form a unit.
I took photos of the trees with giddy excitement until my camera reported that my photo card was full. Damn – I took too many pictures of the Statue of Liberty and atop the Empire State Building back in New York, but not to worry because my wife had my backup camera in her pack. The only problem was that she had previously raced ahead with daughter Harumi for the bathroom in the visitor center. At the last second Saya looked at me, took pity I think, and decided to stay back with me. So there we were, Saya and myself, in the oak section. We had worked out a tree-encounter system where I would stand back and take a photo of a huge tree, and Saya in her energetic youth would run up to the label, then back to me to report: “Queerkus owlba” or “Queerkus x exacta” or “Queerkus shumardii var. schneckii” etc. We even discovered that the renowned plant-hunter Joseph Rock was still alive and roaming through the arboretum and he graciously posed with Saya.
But again, my camera wasn't working after that and I wanted to record all of the wonderful specimens. In some respects I was happy that my camera card was full, that I could then wander freely throughout the collection without an assignment. I don't know why, anyway, that I feel compelled to document all that I see, and I confess that it is an obsession that would possibly benefit with therapeutic counseling. On the other hand, at my age, I might never return to the Arnold again, and I desperately wanted to track down my wife. We agreed to meet at a pond down the hill, so Saya and I took a cross country short-cut. In spite of the arboretum map depicting a pond, we never did find it. So: no pond,* no wife, no camera; but at least I still had Saya. Dear Saya, thanks for staying back with me.
*No pond because the East Coast was experiencing a drought, and the “pond” was indeed there, but empty.
Hmm: no camera, no wife. The wife wasn't so important I reasoned, and that eventually we would meet back at the car. And – oh well – so much for recording the Arnold, and I would continue to enjoy the park without purpose. Near the Hunnewell Visitor Center Saya and I took an obscure narrow path through the trees, and to our astonishment there was Haruko and Harumi walking towards us. What a miracle, how impossible! I scolded Haruko – “Don't ever abandon me like that again!” As to the backup camera I discovered that it had no power. I was too casual and I should have checked it before. Was I in a dream? I finally made it to the venerable Arnold Arboretum, then find that I am paralyzed. Last week I had a dream that I was searching for my car at night at my daughter's school, but it just wasn't there. I was sick with worry. Then, still in my dream, I realized that I couldn't find my car because I was in my car. Relieved, I woke up.
We arrived at the Hunnewell building which I had seen before in photos. It was designed by architect Alexander Wadsworth Longfellow Jr. – what a great name – and was constructed in 1892 with funds donated by H.H. Hunnewell. Harumi wanted to take my photo in front of the building with her cell phone. Hey, wait a minute, we have a camera after all!
I'm not a gadget guy, not at all, and I trusted Harumi with her phone camera better than myself. Actually we had fun. I would direct her into position while looking at her screen...wait for the large Indian family to pass...ok, take it. I thought we did particularly well with a beautiful Phellodendron amurense, the Amur cork tree from northeast Asia.
Overall, though, my photos don't do the Arnold justice. I subscribe to Arnoldia, the magazine of the Arnold Arboretum, and it often contains outstanding photos of their collection, especially since they can take them at all seasons. Well, we had a train to catch, and our brief stint would have to suffice. Our New York/Massachusetts trip was wonderful, and all four of us will have lifetime memories.

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JOHN E. WOLFGRAM et al., Plaintiffs and Appellants, v. WELLS FARGO BANK et al., Defendants and Respondents.
Kurt M. Simmons, in pro. per., for Plaintiffs and Appellants.
Sawamura, Nishimi & Chu and Lyle R. Nishimi for Defendants and Respondents.
The trial court declared plaintiff John E. Wolfgram a vexatious litigant. He failed to post the required security and his action was dismissed. He and a purported coplaintiff, Attorney Kurt M. Simmons, appeal. In the published portion of the opinion we reject certain novel constitutional challenges to the vexatious litigant statute. We shall affirm.
The court (Halpin, J.) granted the motion and ordered Wolfgram to post $15,000 as security, and to obtain permission before filing new lawsuits in [53 Cal. App. 4th 48] propria persona. Wolfgram did not post security and Wells Fargo moved to dismiss. In response, Wolfgram moved to substitute his present attorney, Simmons, as a plaintiff, claiming that he had transferred the property to Simmons, who wanted to pursue the quiet title cause of action. The court (Perasso, J.) denied the motion to substitute Simmons as a party and dismissed the complaint.
A. The Impetus for the Vexatious Litigant Statute.
" 'Litigation' means any civil action or proceeding ... in any state or federal court." (§ 391, subd. (a).) One type of "vexatious litigant" is a person who in a seven-year period "has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years[.]" (§ 391, subd. (b)(1).) Others are persons who repeatedly sue on the same cause of action (id., subd. (b)(2)), engage in frivolous tactics (id., subd. (b)(3)), or who have been declared vexatious (id., subd. (b)(4)).
Wolfgram urges that an unsuccessful, colorable (i.e., nonfrivolous) action against the government should not "count" as one of the underlying actions supporting a finding of vexatiousness, lest his right to petition the government be infringed. He further contends the requirement that he submit to [53 Cal. App. 4th 50] a "prefiling order" before commencing future suits is unconstitutional because it is an unlawful "prior restraint" and violates due process.
To the extent Wells Fargo even addresses Wolfgram's contentions, it relies on cases which have rejected other constitutional challenges to the statute. Such mode of argument mirrors the declaration by the Fifth District Court of Appeal that "The vexatious litigant statutes are constitutional. (In re Whitaker (1992) 6 Cal. App. 4th 54, 56 ....)" (Childs v. PaineWebber Incorporated (1994) 29 Cal. App. 4th 982, 993 [35 Cal. Rptr. 2d 93].) We are unaware of any doctrine which insulates a statute from one constitutional attack, simply because it has survived a different constitutional attack. Wells Fargo also points to the unremarkable rule that "A state may set the terms on which it will permit litigations in its courts." (Cohen v. Beneficial Loan Corp. (1949) 337 U.S. 541, 552 [69 S. Ct. 1221, 1228, 93 L. Ed. 1528, 1539]; see Taliaferro v. Hoogs (1965) 236 Cal. App. 2d 521, 525-526 [46 Cal. Rptr. 147].) The generality quoted is of little utility. No case cited has measured the constitutionality of the statutes against the claims Wolfgram asserts. We do so now.
To place Wolfgram's contentions in perspective, we first outline the right of persons to sue, to "petition" for redress of grievances. In California law, there is an unusual distinction drawn between suits between persons and suits against the government. This distinction lends support to Wolfgram's contention that his suits against the government should not "count." However, because the "right" to petition was never absolute and because sufficient safeguards are contained within the statute, it does not impermissibly "chill" litigants.
B. The Constitutional Right to Petition.
 The First Amendment to the United States Constitution provides in part: "Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the government for a redress [53 Cal. App. 4th 52] of grievances." Despite the explicit reference to "Congress," the First Amendment, including specifically the right to petition, is "incorporated" against the states by virtue of the Fourteenth Amendment. (Hague v. C.I.O. (1939) 307 U.S. 496, 512-513 [59 S. Ct. 954, 963, 83 L. Ed. 1423, 1435].) Cases construing the California analog frequently rely on federal court interpretations of the First Amendment.
With this overview of the law regarding petition rights, we now turn to Wolfgram's contentions.
C. The Right to Petition and the Vexatious Litigant Statute.
[4a] The cases extending Bozek, supra, 31 Cal. App. 3d 527 in California do not elaborate on Bozek's elevation of petitions against the government to a place of special status. As stated, we are constrained to accept that that is the law in California. (See fn. 6, ante.) Wolfgram extracts from Bozek and the "sham" line of cases the rule that any liability predicated on the proper (i.e., nonfrivolous) exercise of the right to petition against the government is forbidden. If and only if a petition against the government meets the standards of a "sham" or frivolous suit can any penalty be exacted. Wolfgram then likens the vexatious litigant declaration to such a penalty. Since the underlying lawsuits need not themselves be frivolous, even if brought against the government, there is an impermissible "chill." fn. 7 We disagree.
We agree with Wolfgram that the authorities canvassed teach that any impairment of the right to petition, including any penalty exacted after the fact, must be narrowly drawn. But here there is no direct "penalty" exacted as a result of Wolfgram's five losing suits. Instead, they inform us that the suer has repeatedly lost many meritless (albeit colorable) suits while acting in propria persona, which, when combined with the fact that he has filed another (sixth) suit which has been found to lack merit, support the reasonable inference that the suer has been using the court system inappropriately and will continue to do so.
As a matter of common experience even many meritorious suits fail, due to the vagaries of the trial process if nothing else. Many more colorable suits fail, either due to pretrial disposition or failure to persuade the trier of fact. Yet, loss of five suits in but seven years is remarkable. Most people never sue anybody. While that does not lessen any person's right to sue to correct real or perceived injustices, it does suggest that the inference to be drawn from the statute is, despite Wolfgram's contrary view, relatively narrow: Only those citizens who decline to hire lawyers, lose five suits in seven years, then undertake a sixth suit which lacks merit, will be labeled vexatious.
In sum, the vexatious litigant statute does not impermissibly "chill" the right to petition and does not "penalize" the filing of unsuccessful, colorable suits.
 Wolfgram contends the "prefiling" order constitutes an unlawful prior restraint on his right to petition and violates due process. We disagree.
The prefiling order component of the vexatious litigant statute is a necessary method of curbing those for whom litigation has become a game. Wolfgram has not established that a partial restriction on the ability to file suit has ever been held to be a "prior restraint" requiring a showing of clear and present danger and concomitant procedural safeguards. (See Tribe, American Constitutional Law (2d ed. 1988) §§ 12.34-12.36, pp. 1039-1054.) To the extent it keeps vexatious litigants from clogging courts, it is closer to "licensing or permit systems which are administered pursuant to narrowly drawn, reasonable and definite standards" which represent "government's only practical means of managing competing uses of public facilities[.]" (Id. at p. 1051.) When a vexatious litigant knocks on the courthouse door with a colorable claim, he may enter.
Sparks, Acting P. J., and Nicholson, J., concurred.
FN 1. The Reporter of Decisions is directed to publish this opinion with the exception of parts IV. and V.
FN *. Retired judge of the Shasta Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
FN . Retired judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
FN 2. Wells Fargo relied on two other pleadings. One was an application to file a petition without paying fees, which was denied, but it appears the petition was filed. The other matter appears to be a motion denied for lack of a pending case. Both of these "suits," if these filings can be so characterized, were against government officials. Wells Fargo also included a copy of a State Bar Court decision. Because Wolfgram was the respondent in that case its inclusion in the motion appears to be an ad hominem attack against him.
FN 5. Blackstone distinguished the right of redress in the courts from the right to petition king or parliament. (1 Blackstone, Commentaries, supra, 141-143.) The former invokes the judicial power of government to redress a wrong committed by another, the latter is a prayer to redress a wrong committed by the government.
FN 8. The Antiterrorism and Effective Death Penalty Act of 1996 bars a second ("successive") habeas corpus application repeating a claim made in an earlier application and bars an application raising a new claim unless the applicant seeks relief based on a retroactive change in the law, or new facts not previously discoverable which would demonstrate a claim of constitutional error of sufficient magnitude to undermine the result at trial. A person seeking to file such an application in federal district court must obtain permission from a federal court of appeals. If, as Wolfgram maintains, there can be no limitation on the exercise of the right to petition against the government, this so-called "gatekeeper" provision would violate the First Amendment. Yet, Felker upholds the statutory "gatekeeper" mechanism. (518 U.S. at p. ___ [116 S.Ct. at p. 2341, 135 L.Ed.2d at p. 838].) Although the First Amendment was not mentioned in that case, it is unlikely that, if the petition clause means what Wolfgram claims it means, the court would miss the issue.
FN 9. Language in Muller v. Tanner (1969) 2 Cal. App. 3d 445, 453 [82 Cal. Rptr. 738] that "It may be assumed that the trial court will recognize that success breeds success when it is proper to do so" does not mean a trial court has discretion to review the soundness of the underlying suits, only that the trial court does consider the merits of the suit in which the litigant is claimed to be vexatious.
FN 10. Wolfgram's suggestion that the statute thus discriminates against those who are unable to afford to hire a lawyer was not headed as an argument in the opening brief and is unaccompanied by analysis or authority.
Wolfgram also states the statutory scheme "sets up a form of 'attainder' whereby appellant is deprived of his civil rights in perpetuum," but, for lack of argument heading or analysis, the point is waived.
FN *. See footnote 1, ante, page 43.

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MICHAEL A. MULHALL, Plaintiff-Appellant, v. JOHN ASHCROFT, in his official capacity as Attorney General, and the FEDERAL BUREAU OF INVESTIGATION, Defendants-Appellees.
PRIOR HISTORY: [**1] Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 98-00171. Charles R. Simpson III, District Judge.
DISPOSITION: Judgment of the district court was vacated and remanded for further proceedings.
COUNSEL: ARGUED: James M. Bolus, Jr., BOLUS & RAGLAND, Louisville, Kentucky, for Appellant.
Daniel Bensing, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
ON BRIEF: James M. Bolus, Jr., BOLUS & RAGLAND, Louisville, Kentucky, Thomas E. Clay, Louisville, Kentucky, for Appellant.
Daniel Bensing, Marleigh D. Dover, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellees.
* The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by designation.
Mulhall is a Jefferson County, Kentucky, police officer. He was assigned to the Louisville Fugitive Task Force ("LFTF"), from March 14, 1994 to March 15, 1995. The LFTF is a joint effort of the FBI, U.S. Marshals Service, the Louisville Police Department, and the Jefferson County Police Department ("JCPD"). The JCPD's decision to remove Mulhall from the LFTF and reassign him, effective March 16, 1995, is [**3] at the heart of Mulhall's Title VII retaliation case.
Mulhall's reassignment was prompted by a seemingly innocuous letter sent by FBI Supervisory Special Agent ("SSA") Hal Metcalfe to Mulhall's JCPD superior, Chief of Police Leon E. Jones, on February 27, 1995. See Joint Appendix ("J.A.") at 13 (Compl. P 14). SSA Metcalfe was assisted in preparing this letter by Special Agent ("SA") Michael Ray. Metcalfe's letter requested that the JCPD review Mulhall's time and attendance records for the period March 24, 1994 through February 21, 1995, purportedly so that the JCPD and FBI could prepare for a financial audit of the LFTF's records by FBI headquarters. See J.A. at 139 (Metcalfe Letter). The JCPD's review of Mulhall's time sheets and attendance records led to a JCPD Internal Affairs ("IA") investigation into Mulhall's activities, see J.A. at 559 (Internal Affairs Rep.), and his removal from the LFTF. Thus, the letter from Metcalfe to Jones constitutes the challenged adverse employment action in the present case.
The parties to the present case do not dispute, on appeal, that the Metcalfe letter, which resulted in Mulhall's reassignment, constitutes an adverse action. Nor do they dispute, on appeal, that Mulhall was engaged in a protected activity prior to the adverse action. Mulhall was named as a witness in former SA Jeanne James [*546] Henderson's EEO complaint against another FBI agent. See J.A. at 219 (Henderson EEO Compl.), 297 (Henderson Aff.). This would constitute a protected activity under 42 U.S.C. § 2000e-3(a), which prohibits discrimination for "assist[ing ] or participating in any manner in an investigation, proceeding, or hearing under" Title VII.
Instead, the parties dispute whether SSA Metcalfe and SA [**5] Ray knew that Mulhall was listed as a witness by Henderson at the time that they drafted and sent the letter to Mulhall's JCPD supervisor. For their part, Metcalfe and Ray unequivocally deny any knowledge of that crucial fact on or before February 27, 1995. The facts underlying these denials are as follows. On or about February 21, 1995, SA David Beyer, chief counsel at the Louisville FBI office, received by mail a package that contained Henderson's fifty-eight-page sworn statement. Mulhall's name was the last name on the list of witnesses in the sworn statement -- it appeared on page fifty-eight, the last page. The package was addressed to Beyer but indicated, in a notation written on the envelope, that Beyer should deliver the package to SA Russ Pulley, the EEO investigator assigned to Henderson's complaint. Beyer placed the package in his office safe; he claims not to have opened the package at the time or to have read its contents. See J.A. at 133-34 (Beyer Dep.). On February 24, Pulley contacted Beyer, told him that the package contained Henderson's sworn statement, and requested that Beyer make a copy of it and send the copy to Henderson's attorney. Beyer complied with Pulley's [**6] request by opening the package, copying the statement using a photocopier with an automatic feeder, and delivering the copy, in a sealed envelope, to the mailroom of the FBI office. He claims not to have read the statement while copying it, and thus he claims that he was not aware [***5] that Mulhall's name appeared on the witness list on the last page of the statement. See J.A. at 134-35 (Beyer Dep.).
On March 2, 1995, Henderson's attorney contacted Beyer to inform him that the copy of Henderson's statement had not arrived. Beyer followed up with the mailroom employee and discovered that the statement, still in its sealed envelope, was still in the mailroom employee's mailbox. See J.A. at 135. Upon making this discovery, Beyer composed a memorandum regarding the mishandling of the package because, he claims, he was concerned that Henderson would see this as an opportunity for additional litigation against the FBI. See J.A. at 129-30 (Beyer Memo.).
Mulhall's theory of the case is that Metcalfe and Ray discovered that Mulhall was listed as a witness by Henderson sometime between the arrival of the Pulley package in the Louisville FBI office on February 21, 1995, and [**7] the mailing of the letter to Mulhall's JCPD superior on February 27, 1995. During that time, the Henderson statement was in Beyer's possession, locked in his personal safe, and, between February 24 and March 2 or 3, the copy of the statement made by Beyer was in the mailroom employee's unsecured mailbox in the mailroom. Opposing the defendants' motion for summary judgment, Mulhall argued that the facts surrounding the delivery of the Henderson statement to the Louisville FBI office and its mishandling during the key period of time give rise to the inference that Metcalfe and Ray discovered that Mulhall was listed as a witness by Henderson prior to the drafting and sending of the letter to Mulhall's JCPD superior.
Mulhall has developed three distinct theories to explain how Metcalfe and Ray learned that he was listed as a witness in Henderson's statement and thus why they [*547] drafted and sent the letter. First, Mulhall asserts that Beyer could have read the statement, either after receipt or while photocopying it, and then disseminated the relevant information to Metcalfe and Ray. See J.A. at 247. Second, Mulhall speculates that either Metcalfe or Ray could have opened the sealed envelope [**8] in the mailroom employee's mailbox, read the statement, and [***6] then resealed the envelope. See J.A. at 248. Mulhall asserts that the practice of opening mail addressed to others (called "bagging") was common in the Louisville FBI office. See J.A. at 248. He also claims that Metcalfe and Ray were trained to open mail and reseal envelopes without being detected. See J.A. at 248. n1 Third, Mulhall suggests that the mailroom at the Louisville FBI office would have opened the package, which was addressed to SA Pulley, an "unknown" agent, upon delivery, and that Metcalfe and Ray discovered its contents as a result. See J.A. at 247; Appellant's Br. at 38.
n1 In his brief, Mulhall argues that "special agents have the ability to open up and reseal envelopes without being detected. Ray was in counter intelligence during the Cold War where he spied on spies. Metcalfe has received specialized training in surveillance techniques from New Scotland Yard . . . and the Central Intelligence Agency . . . ." Appellant's Br. at 17-18 (citations omitted).
In offering these theories, Mulhall points to the unusual mailing of the package from Washington, D.C., to the Louisville FBI office -- Pulley, the EEO investigator, worked out of the Memphis office, see J.A. at 232-33 -- and attempts to undermine the credibility of Beyer, Metcalfe, and Ray. He attacks Beyer's credibility by pointing to minor inconsistencies between the March 3, 1995 memo composed by Beyer and Beyer's later deposition testimony. See J.A. at 246; see also Appellant's Br. at 39-41 (listing eight inconsistencies). He attacks the credibility of Metcalfe and Ray by pointing to Ray's history of lying and falsifying documents, see J.A. at 249, and Metcalfe's history of retaliating in Title VII cases, see J.A. at 250.
Mulhall filed this action against the FBI and then-Attorney General Reno on March 6, 1998, after having exhausted his administrative remedies. The defendants moved to dismiss the case or, in the alternative, for summary judgment, prior to discovery, claiming, inter alia, that Mulhall had failed to establish a prima facie case of Title VII retaliation. The district court, treating this motion as one for summary judgment, denied the motion, [**10] holding that "the circumstances [***7] surrounding the initiation of the investigation and Mulhall's removal from the Task Force, when viewed as a whole, raise an inference of retaliation by the FBI sufficient to establish a prima facie case of causal connection." J.A. at 65. The district court noted in a footnote that its findings in this respect were "made under the lower burden of proof required to sustain a prima facie case, rather than that which is required to win a judgment on the ultimate issue of discrimination." J.A. at 65 n.2. In its opinion, the district court discussed Mulhall's theory that Beyer had communicated the fact that Mulhall was listed as a witness by Henderson to Metcalfe and Ray, noting the FBI agents' unequivocal denials on this front, but concluded that Mulhall had presented sufficient circumstantial evidence of a causal connection between the protected activity and the adverse action to survive summary judgment.
After extensive discovery, plaintiff can point to no evidence whatsoever that SSA Metcalfe knew that plaintiff was listed as a witness on Ms. Henderson's statement at the time he sent his February 27, 1995 letter to the JCPD.
It appears that plaintiff's only "evidence" on the employer knowledge prong of his prima facie case is the closeness in time of two events: the receipt in the FBI Louisville office of . . . Henderson's Signed Sworn statement . . . on February 21 or 22, 1995, and the transmittal of a letter from [Metcalfe] to plaintiff's employer on February 27, 1995, requesting a review of his time sheets. . . .
However this is mere speculation, [**12] as plaintiff conceded in his deposition, other than the closeness in time between the two events, he has no evidence that SSA Metcalfe knew that he was listed by Ms. Henderson as a witness.
n2 The second motion for summary judgment dropped Attorney General Reno from the caption. See J.A. at 71; but see J.A. at 8 (Dist. Ct. Docket) (referring to motion as that of defendants Reno and the FBI). The district court did not detect this error and granted summary judgment to the FBI in its order without mention of Attorney General Reno. See J.A. at 35 (Order). The district court docket recorded this order as granting summary judgment "in favor of the FBI." J.A. at 8.
Mulhall responded n3 to the FBI's renewed motion for summary judgment by pointing to the district court's prior finding that he had established a prima facie case of Title VII retaliation. See J.A. at 228 (Response). Mulhall also claimed that his prima facie case had been "strengthened through discovery," J.A. [**13] at 230, because of the facts regarding the mishandling of the Pulley package and credibility issues that had come to light. In discussing the applicable law, however, Mulhall's response failed to note the distinction drawn in Fenton and other cases between (1) demonstrating that a relevant decision-maker knew of the plaintiff's protected activity and (2) establishing a causal link between the protected activity and the adverse action through circumstantial evidence. Thus, Mulhall argued that facts [***9] uncovered through discovery further supported the circumstantial evidence that he had already presented with respect to the causal connection, see J.A. at 245-50, and that the FBI had failed to rebut his prima facie case, see J.A. at 250-52.
n3 Mulhall's Response properly listed Attorney General Reno as a defendant. See J.A. at 228.
in the final analysis, Mulhall has absolutely [**14] nothing to refute the unequivocal statements of the individuals involved that neither Metcalfe nor Ray knew that Mulhall was listed as a witness for [Henderson]. Nothing was revealed in discovery to substantiate or bolster this [*549] inference of retaliation gleaned solely from the timing of the arrival of the complaint in the office and the drafting and sending of the letter.
As noted supra, the district court's order granting the FBI summary judgment failed to address the status of Mulhall's claim against the attorney general. This was merely a technical error, as the district court clearly intended to grant summary judgment to both defendants and issue a final order in the case. See J.A. at 35 (Order) ("This is a final order."). See also J.A. at 8 (Docket) ("This is a final order.").
Despite the clear intent of the district court, we must first address whether the district court in fact issued a final, appealable order in the present case. The Ninth Circuit has held that the district court's inadvertent omission of a party's name does not defeat the appellate court's [**15] jurisdiction where the district court "clearly intended" its grant of summary judgment to constitute a final, appealable order. Johnson v. [***10] Meltzer, 134 F.3d 1393, 1396 (9th Cir.), cert. denied, 525 U.S. 840, 142 L. Ed. 2d 82, 119 S. Ct. 102 (1998). We adopt this approach and treat the district court's November 27, 2000 order as a final order coming within this court's jurisdiction pursuant to 28 U.S.C. § 1291.
Certainty as to timeliness, however, is not advanced by holding that appellate jurisdiction does not exist absent a separate judgment. If, by error, a separate judgment is not filed before a party appeals, nothing but delay would flow from requiring the court of appeals to dismiss the appeal. Upon dismissal, the district court would simply file and enter the separate judgment, from which [**17] a timely appeal would then be taken. Wheels would spin for no practical purpose.
n4 The leading treatise on federal procedure advocates this pragmatic approach to such technical defects: "Pragmatic assessments of the district court actions may show that in fact finality has resulted from disposition as to all parties. . . . Parties who have been dismissed de facto will be counted as if actually dismissed. . . . None of these practices causes any difficulty." 15A Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3914.7, at 553-56 (2d ed. 1992) (footnotes omitted).
Similarly, in the present case Mulhall alleges Title VII retaliation [**19] by the FBI; the FBI is a subunit of the Justice Department. Therefore, the proper defendant is the Attorney General, the head of the Justice Department. Given the change in presidential administration, Attorney General John Ashcroft is the proper defendant in the present case. See Fed. R. App. P. 43(c)(2). Thus, we affirm the district court's dismissal of Mulhall's claim against the FBI on this alternative ground. The merit of Mulhall's Title VII retaliation claim against the attorney general is discussed in the next section.
The moving party need not support its motion with evidence disproving the nonmoving party's claim, but need only "'show' -- that is, point out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The pivotal question is whether the party bearing [**20] the burden of proof has presented a jury question as to each element of its case. Celotex, 477 U.S. at 322. The plaintiff must present more than a mere scintilla of evidence in support of his position; the plaintiff must present "evidence on which the jury could reasonably find for the plaintiff." [*551] Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). "The 'mere possibility' of a factual dispute is not enough." Mitchell v. Toledo Hosp., 964 F.2d 577, 582 (6th Cir. 1992) (quoting Gregg v. Allen-Bradley Co., 801 F.2d 859, 863 (6th Cir. 1986)).
69 F.3d at 102 (parallel citations omitted).
We have held that, to establish a prima facie case of Title VII retaliation, a plaintiff must show that "1) plaintiff engaged [***13] in activity protected by Title VII; 2) plaintiff's exercise of his civil rights was known by the defendant; 3) that, thereafter, the defendant took an employment action adverse to the plaintiff; and 4) that there was a causal connection between the protected activity and the adverse employment action." EEOC v. Avery Dennison Corp., 104 F.3d 858, 860 (6th Cir. 1997). [**21] See also Little v. BP Exploration & Oil Co., 265 F.3d 357, 363 (6th Cir. 2001) (same); Allen v. Mich. Dep't of Corr., 165 F.3d 405, 412 (6th Cir. 1999) (same). Cf. Thaddeus-X v. Blatter, 175 F.3d 378, 386-87 & n.3 (6th Cir. 1999) (en banc) (stating general test for retaliation claims and noting that the test is often stated as "a four-prong test," treating the defendant's knowledge of the protected conduct as the fourth element). Summary judgment is proper where the plaintiff fails to present evidence sufficient to create a dispute of material fact with respect to an element of his retaliation claim. See, e.g., Allen, 165 F.3d at 413.
We agree with the district court's conclusion that Mulhall has failed to present sufficient evidence from which a reasonable jury could infer that Metcalfe and/or Ray knew that Henderson had listed him as a witness in her EEO complaint. On appeal, Mulhall argues that "a wealth of compelling evidence establishes that Metcalfe and Ray had the opportunity to learn Mulhall was an EEO witness," Appellant's Br. at 3, and that "the trial court has, in effect, required Mulhall to produce direct [**22] proof of retaliation," id. at 5. But, Mulhall contends, "the cases from this and other Circuits are clear that a jury question can be created for a retaliation claim based solely upon circumstantial evidence -- i.e., temporal proximity and circumstances as a whole -- as to the 'causal connection' element of the claim." Id. at 22.
As the last statement indicates, Mulhall's argument on appeal largely ignores the knowledge prong of his Title VII case and focuses on the causal connection prong. The district court did not grant summary judgment to the defendants in the present case because it determined that a plaintiff may not meet his burden of creating an issue of material fact on the issue of a causal connection between his protected activity [***14] and the adverse employment action through circumstantial evidence. Temporal proximity, when coupled with other facts, may be sufficient in certain cases to establish the causal-connection prong in a Title VII case. See, e.g., Nguyen v. City of Cleveland, 229 F.3d 559, 567 (6th Cir. 2000) (noting that "there may be circumstances where evidence of temporal proximity alone would be sufficient to support" the [**23] inference of a causal connection but that temporal proximity, without more, was insufficient in the case before the court). In the present case, however, the district court granted summary judgment because Mulhall failed to produce any direct or circumstantial evidence from which a reasonable jury could infer that Metcalfe and Ray knew or were aware of his protected activity.
Although Fenton met with Rice and Don Turner, Rice's supervisor and the plant superintendent, she is unable to produce any evidence that the relevant management decision-makers who moved her to the "B" shift -- Rebecca Shenk and John Miller -- knew of her complaints . . . when they decided to transfer her. Shenk testified that she was not informed of plaintiff's complaints [**24] until . . . . October 7, 1996 [four days after Fenton was informed of her transfer]. According to Miller's testimony, he and Shenk decided either on September 30 or October 1, 1996, that plaintiff . . . was to be transferred to the "B" shift. . . . Therefore, . . . [plaintiff] has not met her burden of showing that her protected activity was known to those who made that decision.
The facts in the present case are similar. Metcalfe and Ray have testified that they did not know of Mulhall's protected activity when they took the adverse employment action. Beyer also testified that he did not know of Mulhall's protected activity and thus that he did not convey that information to either Metcalfe or Ray. Mulhall argues in response that none of these statements are credible, but he has failed to produce any evidence, direct or circumstantial, to rebut these denials. Mulhall offers only conspiratorial theories, not the specific facts required under the Federal Rule of Civil Procedure 56. Cf. Visser v. Packer Eng'g Assocs., Inc., 924 F.2d 655, 659 (7th Cir. 1991) (en banc) (holding that summary judgment was appropriate where the inferences [**25] plaintiff sought to draw from evidence were akin to "flights of fancy, speculations, hunches, intuitions, or rumors about matters remote from [personal] experience").
In most Title VII retaliation cases, the plaintiff will be able to produce direct evidence that the decision making officials knew of the plaintiff's protected activity. n5 In many such cases, for example, the adverse action will be taken by the same supervisor to whom the plaintiff has made complaints in the past. But direct evidence of such knowledge or awareness is not required, and, as Mulhall correctly argues, a plaintiff may survive summary judgment by producing circumstantial evidence to establish this element of her claim. For example, Allen held that the plaintiff had put forward sufficient circumstantial evidence that his supervisor was aware of his protected activity (the filing of grievances, in that case) to establish this element of his claim. See 165 F.3d at 413. In Allen, the plaintiff and every other African American [***16] corrections officer in his cell block had been transferred. The plaintiff, however, was the only transferred officer to file a grievance complaining [**26] of the transfer, and he was the only transferred officer returned to the cell block. See id. Given that the supervisor took an action with respect to the plaintiff, other than the challenged adverse action, from which it could be inferred that the supervisor [*553] was aware of the plaintiff's grievance, we held that the plaintiff had met his burden on this element of his case. In contrast, Mulhall has not produced any evidence of other actions taken by Metcalfe and Ray, other than the challenged adverse action, from which a reasonable jury could infer that they knew that Mulhall had been listed as a witness in Henderson's complaint.
n5 In an unpublished case, we have previously noted: "Although the paradigm established by McDonnell Douglas Corp. v. Green was designed to accommodate discrimination claims based on circumstantial evidence, a plaintiff relying on this paradigm to prove unlawful retaliation typically has direct evidence that the defendant was aware of the plaintiff'[s] protected activity." Peterson v. Dialysis Clinic, Inc., 1997 U.S. App. LEXIS 26254, No. 96-6093, 1997 WL 580771, at *4 (6th Cir. Sept. 18, 1997) (citations omitted).
Similarly, in Polk v. Yellow Freight System, Inc., 876 F.2d 527, 531 (6th Cir. 1989), we held that the plaintiff had presented sufficient evidence to support the inference that her employer knew of her protected activity (in that case, the plaintiff had visited the Michigan Department of Civil Rights to inquire about her rights) where plaintiff testified that her supervisor told her "I know where you've been." Id. This statement was circumstantial evidence of the supervisor's knowledge in that the testimony itself did not establish that the supervisor knew of the plaintiff's protected activity, but a reasonable jury could infer from the testimony that the supervisor knew of the protected activity at issue. In the present case, Mulhall has not presented evidence of statements by Metcalfe or Ray from which a reasonable jury could infer that they knew of his protected activity.
In a similar vein, at least one district court has concluded that knowledge of a plaintiff's protected activity can be inferred from evidence of the prior interaction of individuals with such knowledge and those taking the adverse employment action. Kralowec v. Prince George's County, Maryland, 503 F. Supp. 985 (D. Md. 1980), [**28] aff'd, 679 F.2d 883 (4th Cir.), cert. denied, 459 U.S. 872, 74 L. Ed. 2d 132, 103 S. Ct. 159 (1982), held that the plaintiff had met her burden where she produced evidence that one county official knew of the plaintiff's complaint and that the "prior interaction" of that first official with the second [***17] official, who actually fired the plaintiff, made it "highly improbable . . . that [the first official] would not have discussed plaintiff's complaint with [the second official] as soon as [the first official] obtained this information." 503 F. Supp. at 1010. Kralowec, which Mulhall cites on appeal, is distinguishable from the present case, however, in that the first official actually participated in drafting the charges against the plaintiff that resulted in her discharge. See id. at 1009. Given this level of involvement by an official with knowledge of the protected activity, the complaint in that case, the inference that the official who actually decided to fire the plaintiff was eminently reasonable. Mulhall has never argued that Beyer actually participated in the adverse employment action in the present [**29] case; nor has Mulhall alleged facts of prior interactions between Beyer, on the one hand, and Metcalfe and Ray, on the other, that make it reasonable to infer that the former would discuss Mulhall's inclusion on Henderson's witness list "as soon as [he] obtained this information."
Moreover, there was evidence in Kralowec that the first official actually knew of the plaintiff's complaint. See id. at 1009-10. Mulhall has not produced evidence that Beyer actually knew that Henderson had listed him as a witness. Even if we infer that Beyer saw Mulhall's name on the witness list when he photocopied Henderson's sworn statement, despite Beyer's deposition testimony to the contrary, in order to reverse the district court we would have to go further and infer that Beyer shared this information with Metcalfe [*554] and/or Ray. There is simply no evidence in the record, direct or circumstantial, to support such an inference, other than the adverse action itself. Mulhall, however, continues to assert that "Beyer disseminated Mulhall's name," going so far as to claim that discovery has made this "an even more realistic possibility." Appellant's Br. at 38. But this assertion is [**30] based on purported credibility issues and inconsistent statements by Beyer, not evidence of interactions between Beyer and the other FBI agents. See id. at 39-41. None of the inconsistencies pointed to by Mulhall point toward the conclusion either that Beyer knew that Mulhall [***18] was on the witness list or that Beyer informed Metcalfe and Ray of that fact.
In sum, the district court did not err in concluding that Mulhall has failed to produce evidence sufficient to establish that the officials taking the adverse employment action knew of his protected activity. Mulhall has not produced direct or circumstantial evidence that Metcalfe and Ray knew that he was listed as a witness by Henderson prior to the drafting and sending of the letter to Mulhall's JCPD superiors. Nor has he produced evidence from which one could reasonably infer that Metcalfe and/or Ray knew of his protected activities. A reasonable jury could not find retaliation on these facts, and thus summary judgment was proper.
For the foregoing reasons, we VACATE the judgment of the district [**32] court and REMAND so that the district court may amend its order to grant summary judgment to Attorney General Ashcroft and to dismiss the claims against the FBI.


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The energy dependence phase shift of proton elastic scattering by 3He and T were investigated. The Feschbach unified theory of nuclear reactions was used. The threshold phenomenon ideas were developed on the basis of Feschbach theory. The phase shifts were obtained in the form analytical energetic function with taking into consideration 2- and multiple particle thresholds of reactions as well as compound nuclear levels at A=4. Differential elastic scattering cross section of p+3He was described theoretically in interval 2-11 MeV and in interval 2-4.6 MeV for p+T reaction. The theoretical parameters were obtained. The binary (from energy and scattering angles) differential cross section tables were produced.
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Thomas A. Hensley for the plaintiff.
James M. McCreight for the defendant.
FINNERTY, J. The defendant, Enide Florestal ("Florestall , a tenant in property owned by the plaintiff, Shirley Solow, as Trustee of RHS Nominee Trust ("Solow), appeals a judgment against her in a summary process proceeding for Florestal's failure to pay rent for three consecutive months.
Florestal rents the premises under a written lease pursuant to the Section 8 Housing Choice Voucher Program of the U.S. Department of Housing and Urban Development through the Boston Housing Authority ("BHA") [Note 2] Florestal failed to make payments to Solow of her portion of the monthly rent, although the Boston Housing Authority continued to make timely payments to Solow of its subsidized portion. On December 4, 2015, Florestal was served with a notice to quit for nonpayment of rent and termination of lease with a copy to the Boston Housing Authority alleging rent arrears of $1,787.00 due from Florestal. Florestal did not cure the arrearage, and on December 21, 2015, was served with a summary process summons and complaint. Florestal filed no answer or counterclaim, and the summary process trial was held on January 7, 2016, at which time Florestal had still not cured the arrearage.
At the trial, Florestal informed the court that she was trying to obtain a rent adjustment (to increase the portion of rent covered by the Section 8 program subsidy). The trial court, after giving the parties an opportunity to enter into an agreement and patiently hearing from the defendant and explaining to her the reasons for the court's decision based on the facts of the case and the law, entered judgment for Solow for possession and for rent due in the amount of $2,717.00, plus costs.
"If the neglect or refusal to pay the rent due was caused by a failure or delay of the federal government, the commonwealth or any municipality, or any departments, agencies or authorities thereof, in the mailing or delivery of any subsistence or rental payment, check or voucher other than a salary payment to either the tenant or the landlord, the court in any such action shall continue the hearing not less than seven days in order to furnish notice of such action to the appropriate agency. ..."
Florestal urges us to read that statute to require the court to wait for the BHA's decision on whether her rent subsidy was to be adjusted. It is uncontested that Solow had received timely payments of the BHA's portion of the rent, and nothing from Florestal. The evidence at trial was that Florestal had "just called Section 8," and that she had "just faxed" "a couple of papers that I'm here today." Although Florestal has provided in her reply brief additional information regarding a subsidy adjustment made by the BHA after judgment for Solow had entered, that adjustment notice was not before the trial court in any event; came after the time during which Florestal had the right to cure under G.L.c. 186, §11; [Note 3] and came after the determination of the lease. We do not read §11 to require the landlord or the court to wait for a subsidy adjustment decision by a Section 8 program agency. It is worth noting, as well, that Florestal had failed to tender to Solow even the portion of the rent she would have paid after the BHA adjustment. [Note 4] Notwithstanding the later subsidy adjustment, the evidence before the court at trial supports the court's judgment. Florestal's reliance on Weeks v. McGhee, Boston Housing Court, No. 03-01336 (July 15, 2004), is misplaced. In that case, at least a partial cure had been offered and time remained for a full cure when the landlord refused to accept the proffered partial rent There was no error.
Florestal also urges this Division to consider addressing whether the termination of the lease was for "good cause" and is determinative of the collateral consequence of ineligibility for continued participation in the subsidized housing program. In short, that issue was not before the trial court and is irrelevant to these proceedings, which are based on the failure to pay rent. We therefore do not offer any opinion on that issue and, as determination of that question is not necessary to the issue before the trial court, we decline Florestal's request that we return the case to have that question answered.
The defendant's claim of a failure to enter a notice to quit was not raised at trial or preserved for appellate review. See Breault v. Chairman of the Bd. of Fire Comm'rs of Springfield, 401 Mass. 26 , 32 (1987), cert. denied, 485 U.S. 906 (1988). Unlike Ryan v.
Sylvester, 358 Mass. 18 (1970), the tenant here did not contest having received a notice to quit. See also Squeri v. McCarrick, 32 Mass. App. Ct. 203 (1992). The notice to quit is part of the record. [Note 5] The notice to quit reflects that it was sent via facsimile and first class mail to the BHA, thereby satisfying the lease requirement of notice of determination of the lease to that agency. In any event, notice to the BHA was not a contested issue at the trial and has not been preserved for appellate review. See Breault, supra.
[Note 2] 42 U.S.C. §1437, the United States Housing Act of 1937, establishes a program for housing subsidies for low-income individuals. Under the program, a part of the rent is paid directly to the landlord by a local housing authority, and the tenant is directly responsible to the landlord for the unsubsidized portion of the rent.
[Note 3] General Laws c. 186, § 11 provides in part, "Upon the neglect or refusal to pay the rent due under a written lease, fourteen days' notice to quit, given in writing by the landlord to the tenant, shall be sufficient to determine the lease, unless the tenant, on or before the day the answer is due, in an action by the landlord to recover possession of the premises, pays or tenders to the landlord or to his attorney all rent then due, with interest and costs of suit"
[Note 4] Florestal's rent share was $857.00 per month in November, 2015 and $930.00 per month in December, 2015. Her reply brief indicates that the adjustment made by the BRA after the summary process trial reduced her portion to $353.00 per month.
[Note 5] See Rule 2(d) (2) of the Uniform Summary Process Rules, which requires the notice of termination to be filed with the summary process complaint and summons with the return of service.


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This privacy statement is up-to-date and has been updated May 2018. The development of our website, possible legislative amendments and official regulations may make it necessary to amend this privacy statement. The current version can be found and printed at any time on our website.

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text:
Between 1948 and 1963 Staff member Jim McCreadie made a film record of the School’s activities.
The school is very fortunate in possessing an extensive film record of events and personalities in its history extending from the opening day in 1936 until the present day. There were very few years in which no film was taken and most of the important occasions as well as routine and annual events are preserved on film. Old Boys of the school benefit most from this record and use these short films at most of their gatherings. As the faces and short pants of our yesterdays flash upon the screen, failing memories are jolted and the old triumphs and failures, the tang of past emotions and, above all, the remembrance of old companions floods back and unites us again in the com¬munity of kinsmen.
These are now available for you to view.
Barracks Week: The Mortar Platoon; the new Medical Platoon.
Sports: Form lV B King’s v. Waitaki – rugby and hockey. Innovations; the new janitor, Mr Patillo; the first prefab; Queen’s High being built; drainage work. Cross-country races at Hancock Park; V. L.’s Latin Feast; Artillery Shoot at Tomahawk.
Staff v. lst XI – cricket. Visit of Sir John Sheppard.
Kings v. O.B.H.S. – hockey, soccer and rugby. Springboks: Johnstone and Kirkpatrick at Assembly; Springboks practice on the school ground.
The First Test at Carisbrook; curtain raiser; King’s v. Waitaki; glimpses of the Test.
Staff v. lst Soccer XI.
Cross-country races at Hancock Park. Fives championship finals.
The Third Term examinations in the Hall. Moving to the new library.
Cup cleaners; Cadet Competition Day.
Barracks Week: A:r.C. on maneouvres at Chisholm Park. Visit of H.M.A.S. Melbourne at Port Chalmers.
More manoeuvres at Kettle Park.
King’s v. Southland Boys’ – soccer and rugby. Old Boys v. the school; Winter Sports Day. School Certificate examinations.
Fourth Forms on biology survey at Waverley. Shooting on the school range and at Pelichet Bay. The new Rowing Club.
Sports; Maadi Cup; King’s rowers at Waihola. Camera Club picnic at Tunnel Beach and Blackhead. Presentation of the R.N.Z.A.F. Cup to the A.T.C. Lifesaving teams at the St Clair Baths.
Staff v. Ist XI – cricket; King’s v. 0.B.H.S. – hockey and rugby.
Staff v. 1st XI – soccer.
Otaki Scholar, John Edward, witli the prefects. Junior tennis final.
The Third Form classes and Form VI A.
Construction of the biology laboratory.
Winter Sports Day; school v. Old Boys – rugby, soccer and hockey.
The Lions at King’s; Scotland and Murphy at Assembly; Lions practice before the First Test.
Staff v. 1st XI – soccer (featuring the kick-off by the President of the N.Z. Football Association).
Highlights of the lunch-hour concerts.
Third Form classes and end of year activities; cricket; cop¬per trail; Festival booklets.
Sports; Gala Day; Battalion Parade only.
King’s v. O.B.H.S. – soccer and rugby – at King’s. The Mikado.
Artillery and mortar shoot at St Kilda; .303 rifle shooting. Third Form classes.
Visit of the Earl of Eglinton and Winton. Charlie’s Aunt.
Old Boys’ Silver Jubilee celebrations: Reunion Day; decade groups; Memorial Service; wreath laying and visitors; Sports Day; cricket match; field events; masters’ shotput. Battalion Parade on Competition Day (last parade in uniforms).
!st XV before match v. O.B.H.S. Memorial Gymnasium under construction. French rugby team at King’s.
The new Rector, Mr H. H. Craig, at his first Assembly. Barracks Week: B Company manoeuvres; Battalion Parade.
Memorial Gymnasium Opening Ceremony and Dedication.
Form 4C first class to use the gymnasium. The Importance of Being Earnest.
Sports: M.C.C. visitors; Bedser at Assembly; Cowdrey at the nets; first cricket match with Shirley Boys’ High; King’s v. 0.B.H.S. at Liulebourne – Winter Sports. Pygmalion.
Staff v. !st XI – soccer. Shirley Boys’ High v. King’s – first winter visit to King’s. Noyes’ Fludde at Queen’s.
Cadets A Company manoeuvres at Tomahawk.
April 24: Sir Guy Powles, Ombudsman, at King’s. Queen’s Birthday Winter Sports: Old Boys v. school – basketball; King’s v. Waitaki.
August 6:. Visit of John Duffus, Otaki Scholar. September 29: Cross-country races.
Third Form Plays: The Nightingale, The Crimson Coconut and Blue Murder.
First interschool match with 0.B.H.S. – fives. Break-up rehearsal at His Majesty’s Theatre.
Anzac Day: The Band at the Soldiers’ Cemetery; the Firing Party at the Cenotaph; presentation of Cadet Forces medals.
King’s v. O.B.H.S. – Winter Sports. Removal of the prefabs.
Springboks: W. H. Parker and C. J. Cronje talk to the seniors.
Farewell to M. Cooper and I. Reddington, Field Scholars. Cross-country winners.
February 17: The Govcrner-General, Sir Bernard Fergusson, visits King’s; His Excellency presents Duke of · Edinburgh Awards; morning coffee with staff and prefects; address to the combined schools! of Queen’s, King’s and Macandrew; the farewell.
M.C.C. visitors at Assembly – Geoff Boycott and David Brown.
Swimming Sports at Moana Pool.
July 14: Our “adopted” Lion, Sandy Hinshelwood, at school.
Plays: Everyman and The Lesson. August 5: Mr Craig’s last Assembly.
First Assembly for the new Rector, Mr J. Bremner. Cross-country winners.

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