Home JEFFREY MILLER & another [Note 1] vs. DARRYL FICKETT & others [Note 2]

432 Mass. 1028

November 21, 2000

William McElligott for the plaintiffs.

Clyde K. Hanyen for Remax New Horizons & another.

A judge in the Superior Court entered summary judgment against the plaintiffs and in favor of the defendants Remax New Horizons and Suanne DeFrancesco (defendants). The Appeals Court affirmed the judgment, holding that the defendants did not breach any duty to the plaintiffs. Miller v. Fickett, 48 Mass. App. Ct. 654 (2000). We granted the plaintiffs' application for further appellate review.

For the reasons stated in the opinion of the Appeals Court, we affirm the judgment of the Superior Court.

So ordered.


[Note 1] Dorothy Miller, individually and as mother and next friend of Rachel Miller.

[Note 2] Kathleen Fickett, Remax New Horizons, Suanne DeFrancesco, and Denise Eason. Summary judgment in favor of Darryl and Kathleen Fickett was affirmed by the Appeals Court in an unpublished memorandum and order entered pursuant to its rule 1:28, Miller v. Fickett, 48 Mass. App. Ct. 1122 (2000), and the plaintiffs' application for further appellate review was denied, 431 Mass. 1105 (2000).


432 Mass. 1028

November 28, 2000

Esther M. Bixler, Assistant District Attorney, for the Commonwealth.

Alphonso Cowell purports to appeal from an order of a single justice of this court denying his application for leave to appeal from certain rulings by judges in the Superior Court concerning a motion to suppress. See Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996) [Note 1]. The Commonwealth has filed a motion to dismiss.

This case is not properly before us. Neither the Commonwealth nor a defendant may appeal to the full court from a single justice's denial of an application for leave to pursue an interlocutory appeal. The same considerations that make an appeal by the Commonwealth improper also render an appeal by a defendant improper. See Commonwealth v. Rivera, 424 Mass. 1007, 1008 (1997), and cases cited.

We express no view on the merits of the rulings by the Superior Court judges, or on Cowell's claim that he was denied an opportunity before trial to seek leave to pursue an interlocutory appeal. Cowell may pursue those points in a direct appeal from any convictions. We hold only that the limited matter before us - his purported appeal from the single justice's denial of leave to appeal - is not properly here [Note 2].

Appeal dismissed.


[Note 1] While this matter has been pending, Cowell sought from the single justice a stay of further proceedings in the Superior Court. The single justice denied the motion.

[Note 2] We also decline to grant relief from the single justice's decision pursuant to G. L. c. 211, s. 3.