439 Mass. 1004

April 22, 2003

Maria Rosenthal appeals from a judgment of a single justice of this court denying her petition under G. L. c. 211, § 3. Rosenthal had sought review of an order of a Superior Court judge allowing her attorney to withdraw from representing her in a tort action that was (and remains) pending in that court. Before filing her G. L. c. 211, § 3, petition, Rosenthal filed a petition under G. L. c. 231, § 118, first par., which an Appeals Court single justice denied. Despite Rosenthal's having sought relief in the Appeals Court, we consider her appeal to be subject to S.J.C. Rule 2:21 (1), 421 Mass. 1303 (1995), because the focus of both her G. L. c. 211, § 3, petition and her rule 2:21 memorandum concerns the action of the Superior Court judge. See Arsenault v. Franzone, 430 Mass. 1007 (1999).

The judge in the Superior Court allowed Rosenthal's attorney to withdraw based on counsel's assertion that there had been a breakdown in the attorney-client relationship. The judge, however, ordered that the attorney remain as Rosenthal's counsel for thirty days, unless a new attorney for Rosenthal filed an appearance before then. The order further provided that, if Rosenthal did not retain new counsel within thirty days, she would be deemed pro se, and regardless whether she retained new counsel, she would be required to fulfil her discovery obligations.

In her rule 2:21 memorandum, Rosenthal claims that the Superior Court judge erred in allowing her attorney to withdraw. She has not, however, offered any explanation "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," and therefore has not satisfied her burden. Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

Maria Rosenthal, pro se.

Home KATE KOL & another [Note 1] vs. BAIJ JOSHI & another. [Note 2]

439 Mass. 1004

April 22, 2003

Kate and David Kol appeal from a judgment of a single justice of this court denying their petition under G. L. c. 211, § 3. We dismiss the appeal as moot.

Page 1005

This case arises from a summary process action between the Kols and their landlords, Baij and Shubj Joshi. Among the issues in that action were whether the Kols' apartment met certain health code standards and whether the Kols had denied the Joshis access to the apartment to make the necessary repairs. On September 12, 2002, a Brookline District Court judge ordered the Kols to allow the Joshis to enter the apartment on September 19, 2002, to address the Kols' concerns. On September 17, 2002, the Kols filed their petition, asking the single justice to stay the judge's order for ten days so that the Kols could move to amend the order. They contended that the order did not obligate the Joshis to make the requested repairs. In addition, the Kols wanted the order to state that Baij Joshi would not be present on September 19, because he allegedly had threatened them in the past. Contrary to the Kols's contentions, the order, as originally issued, indeed required the Joshis to address the Kols's concerns. Moreover, the order, as amended, stated that the parties had agreed that Baij Joshi would not be present. On September 18, 2002, the single justice denied the Kols's petition without a hearing. According to the Kols, on September 24, the District Court entered a summary process judgment against them for nonpayment of rent. [Note 3]

The Kols have filed a memorandum and appendix pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Because the date ordered by the District Court judge for the Kols to make their apartment available for repairs has passed, and because of the subsequent summary process judgment, the stay requested by the Kols in their petition under G. L. c. 211, § 3, has become academic. See Rasten v. Northeastern Univ., 432 Mass. 1003 (2000), cert. denied, 531 U.S. 1168 (2001). In any event, on the record before us (which is substantially the same as that before the single justice), we can conclude that the single justice neither abused his discretion nor made other error of law. The Kols failed to ask the District Court judge to stay her order and instead proceeded directly to the single justice. Cf. id. (petitioner requested continuance in Boston Municipal Court before filing her G. L. c. 211, § 3, petition for the same relief). Moreover, the Kols failed to demonstrate that the judge's order was flawed as claimed.

Appeal dismissed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

David Kol & Kate Kol, pro se.


[Note 1] David Kol.

[Note 2] Shubj Joshi.

[Note 3] The Kols' motion for relief from contempt was filed after their notice of appeal from the single justice's judgment and, therefore, is not before us on appeal.