Gallagher v. First Assistant Clerk-Magistrate of the Newburyport District Court ( 2014 )


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    SJC-11592
    ROBERT GALLAGHER vs. FIRST ASSISTANT CLERK-MAGISTRATE OF THE
    NEWBURYPORT DISTRICT COURT & others.1
    November 28, 2014
    Supreme Judicial Court, Superintendence of inferior courts.
    Practice, Civil, Attorney's fees, Small claims procedure.
    District Court, Small claims procedure.
    Robert Gallagher appeals from a judgment of a single
    justice of this court dismissing his petition for relief under
    G. L. c. 211, § 3. In his petition, he sought relief from final
    judgments entered in two cases in the District Court Department.
    In one of the cases, after Gallagher prevailed on a complaint
    brought against him under the harassment prevention statute,
    G. L. c. 258E, the judge failed to act on his request for
    attorney's fees. In the other case, judgment was entered
    against him on a G. L. c. 93A claim that he brought in the small
    claims session.
    As to the former case, Gallagher had, but did not pursue,
    adequate alternative remedies, both in the trial court and
    through the ordinary appellate process.2 "Our general
    1
    A Justice of the Lawrence District Court, the clerk-
    magistrate of the Lawrence District Court, Stephen D’Angelo,
    Mary McCauley-Manzi, and Catherine W. Wnek.
    2
    For example, Gallagher could have moved in the District
    Court to amend the judgment to include a ruling on his request
    for attorney's fees, bringing to the judge's attention what
    might have been an inadvertent failure to rule on the request.
    He also could have appealed to the Appellate Division from the
    failure of the judgment to include an award of fees as he has
    2
    superintendence power under G. L. c. 211, § 3, is extraordinary
    and to be exercised sparingly, not as a substitute for the
    normal appellate process or merely to provide an additional
    layer of appellate review after the normal process has run its
    course." Votta v. Police Dep't of Billerica, 
    444 Mass. 1001
    ,
    1001 (2005). See Foley v. Lowell Div. of the Dist. Ct. Dep't,
    
    398 Mass. 800
    , 802 (1986), and cases cited ("Where a petitioner
    can raise his claim in the normal course of trial and appeal,
    relief will be denied").
    As to the latter case, it is well established that "a
    plaintiff who chooses to proceed in the small claims session
    waives the right to appeal from any adverse judgment, and
    likewise is not entitled to invoke this court's extraordinary
    power of general superintendence in lieu of an appeal to compel
    review of the judgment." Zullo v. Culik Law P.C., 
    467 Mass. 1009
    , 1009 (2014), and cases cited. The single justice properly
    declined to grant extraordinary relief.3
    Judgment affirmed.
    The case was submitted on briefs.
    Robert J. Gallagher, pro se.
    Bryan F. Bertram, Assistant Attorney General, for the
    Commonwealth.
    requested. Gallagher asserts that he did not take an appeal in
    reliance on counsel's advice. Even if so, this does not entitle
    him to extraordinary relief. Review was available, even if
    Gallagher and his counsel failed to pursue it.
    3
    We need not address the single justice's further ruling
    that certain of the respondents are entitled to judicial
    immunity in this matter.
    

Document Info

Docket Number: SJC 11592

Filed Date: 11/28/2014

Precedential Status: Precedential

Modified Date: 11/28/2014