Home CHRISTOPHER J. LOFTFIELD vs. FRED FERREIRA & another. [Note 1]

440 Mass. 1012

September 29, 2003

Christopher J. Loftfield appeals from the denial of his G. L. c. 211, § 3, petition by a single justice of this court. We affirm.

In June of 2003, a default judgment entered against Loftfield in a summary process action in the District Court. Loftfield claims that when he attempted to file a timely notice of appeal, a clerk in the District Court refused to accept it. Although Loftfield's notice of appeal allegedly was accepted for filing two days later, he claims that the clerk subsequently informed him that his notice would not be docketed because it was untimely. In Loftfield's G. L. c. 211, § 3, petition, he sought relief mainly from the clerk's alleged refusal to docket his notice of appeal. [Note 2]

The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). Although Loftfield is not challenging a specific interlocutory order of the trial court, a prerequisite to the applicability of rule 2:21, we can nonetheless conclude on the record before us that the single justice neither erred nor abused his discretion in denying relief. Loftfield had an adequate alternative remedy, viz., a motion in the trial court to compel the clerk to accept, docket, and process the notice of appeal. Morales v. Commonwealth, 424 Mass. 1010 , 1011 (1997). See Lu v. Boston Div. of the Hous. Court Dep't, 432 Mass. 1005 , 1006 (2000). "In the absence of an order from a judge, [clerks] may not refuse to accept a notice of appeal, even if they believe that no appeal is available or that the notice is untimely or otherwise defective." Gorod v. Tabachnick, 428 Mass. 1001 , 1001, cert. denied, 525 U.S. 1003 (1998), and cases cited. If, as Loftfield alleges, a clerk of the District Court improperly refused to accept his notice of appeal, he has offered no reason why he could not file a motion in the District Court to compel acceptance nunc pro tunc to the date that he first attempted to file his notice.

Judgment affirmed.

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

Christopher J. Loftfield, pro se.


FOOTNOTES

[Note 1] Edgartown Division of the District Court Department.

[Note 2] In his petition, Loftfield briefly mentioned that he additionally desired relief from the denial of his motion to vacate the default judgment, but the overwhelming thrust of his petition concerned his alleged inability to file his notice of appeal. Moreover, the denial of the motion to vacate the default judgment is correctable on direct appeal.

Home VERA W. HUANG vs. ESSEX DIVISION OF THE PROBATE AND FAMILY COURT DEPARTMENT.

440 Mass. 1012

September 29, 2003

Vera W. Huang filed a G. L. c. 211, § 3, petition in the county court seeking a new trial in an underlying divorce action, as well as court-appointed

Page 1013

counsel to represent her. A single justice denied the petition without a hearing, and Huang appealed. We affirm. [Note 1]

Relief under G. L. c. 211, § 3, is extraordinary, and "may not be sought "merely as a substitute for normal appellate review.' " Constantine v. Commonwealth, 435 Mass. 1011 , 1012 (2002), quoting McGuinness v. Commonwealth, 420 Mass. 495 , 497 (1995). The record before the single justice indicates that Huang has or had various opportunities through the ordinary trial and appellate processes to seek the relief requested from this court. She filed a motion in the Probate Court for a new trial, multiple motions for relief from the judgment at issue, and a motion to recuse the trial judge. The Probate Court docket indicates, as well, that she sought the appointment of counsel in that court. The docket also indicates that Huang filed various notices of appeal in the Probate Court, although the record before us is insufficient to determine the status of any of those appeals.

Huang has neither argued nor demonstrated that a G. L. c. 211, § 3, petition was the only adequate means of seeking relief on the claims raised in her petition. See Greco v. Plymouth Sav. Bank, 423 Mass. 1019 , 1019 (1996), and cases cited. The single justice did not abuse his discretion or otherwise err in denying the petition. [Note 2]

Judgment affirmed.

Vera W. Huang, pro se.


FOOTNOTES

[Note 1] We acknowledge the brief and supplemental memoranda and appendix filed by Huang prior to argument before this court. These materials request relief in addition to that sought before the single justice. "We do not consider any other issues, arguments, and claims raised by [Huang] on appeal that were not raised before the single justice." Bloise v. Bloise, 437 Mass. 1010 , 1010 (2002).

[Note 2] Huang did not name as a respondent in her petition her former husband, the adverse party in the underlying divorce action. See S.J.C. Rule 2:22, 422 Mass. 1302 (1996).