Bishay v. Clerk of the Superior Court in Norfolk County

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SJC-12153

BAHIG BISHAY & others1 vs. CLERK OF THE SUPERIOR COURT IN

NORFOLK COUNTY.

January 23, 2017.

Mandamus. Clerk of Court. Judgment, Implementing settlement

agreement. Practice, Civil, Action in nature of mandamus,

Entry of judgment.

Bahig Bishay commenced an action in the Superior Court,

bringing various claims against National Investigations, Inc.,

and its principals, Glenn Gillis and Garry Gillis (collectively,

National); Harvard 45 Associates, LLC, and its principals,

Harold Brown and Enrique Darer (collectively, Harvard); and

Allied Finance Adjusters Conference, Inc. (Allied), arising from

Bishay's eviction from his home. More particularly, Bishay

sought damages on various theories for the removal and storage

of his personal property in the course of the eviction.

Allied's motion to dismiss the claims against it was allowed, as

was Harvard's motion for summary judgment as to both the claims

against it and a counterclaim it asserted against Bishay.

Bishay and National thereafter reported that they settled their

dispute, and they moved for entry of final judgment. Harvard

and Allied opposed the motion, and a judge in the Superior Court

denied it. Bishay again moved for entry of final judgment.

Harvard and Allied opposed that motion, and a different judge

denied it. Bishay and National (collectively, petitioners)

jointly filed a petition in the county court seeking relief in

the nature of mandamus pursuant to G. L. c. 211, § 3, and G. L.

c. 249, § 4, specifically requesting that the clerk of the

Superior Court be ordered to enter final judgment as the

1

National Investigations, Inc.; Glenn Gillis; and Garry

Gillis.

2

petitioners proposed. Harvard moved to intervene and filed an

opposition, joined by Allied, in which it argued that the

proposed judgment was collusive and fictitious, adverse to the

interests of Harvard and Allied, and contrary to the prior

ruling on summary judgment.2 A single justice of this court

denied relief without a hearing. The petitioners appeal.

The case is before us pursuant to S.J.C. Rule 2:21, as

amended, 434 Mass. 1301 (2001), which requires the petitioners

to "set forth the reasons why review of the trial court decision

cannot adequately be obtained on appeal from any final adverse

judgment in the trial court or by other available means."3 The

petitioners have not done so. They argue that requiring them to

proceed to a jury trial would be wasteful in these

circumstances, as they have in fact resolved their dispute.4

This argument is unavailing, as it "fails to address why the

substantive error allegedly committed by the [Superior Court

judges] cannot be remedied on appeal." DiBiase v. DiBiase, 423

Mass. 1003, 1003 (1996). Moreover, the petitioners had another

remedy available to them, which their memorandum fails to

mention: they could have filed a petition for relief pursuant

to G. L. c. 231, § 118, first par. See Greco v. Plymouth Sav.

Bank, 423 Mass. 1019, 1019-1020 (1996) ("Review under G. L.

c. 211, § 3, does not lie where review under c. 231, § 118,

would suffice"). The single justice neither erred nor abused

her discretion by denying extraordinary relief.

Judgment affirmed.

2

We express no view on the merits of this claim.

3

The rule also provides that "[t]he appeal shall be

presented . . . on the papers filed in the single justice

session" and that the petitioners must file a record appendix.

S.J.C. Rule 2:21 (2). The petitioners have not complied with

this requirement. This presents a further reason not to disturb

the judgment of the single justice.

4

The petitioners also argue that the Superior Court judges

wrongly refused to enter final judgment and that Harvard and

Allied lack standing to object to it. These arguments go to the

merits of the decision and not to the availability of an

adequate alternative remedy. They are thus beyond the scope of

rule 2:21.

3

The case was submitted on papers filed, accompanied by a

memorandum of law.

Bahig F. Bishay, pro se.

Robert E. Kelley for National Investigations, Inc., &

others.