Home ROMANUS ELGBE vs. PINE STREET INN, INC./PAUL SULLIVAN HOUSING. [Note 1]

441 Mass. 1009

March 23, 2004

Romanus Elgbe appeals from a judgment of a single justice of this court denying his petition pursuant to G. L. c. 211, § 3. Elgbe had sought a stay pending appeal of execution of a summary process judgment that had entered against him in the Housing Court. [Note 2] Pine Street Inn, Inc./Paul Sullivan Housing (landlord) has moved to dismiss the appeal as moot. We allow the landlord's motion.

After the summary process judgment was entered against Elgbe, he sought to appeal, but his appeal was dismissed because he failed to post an appeal bond. Claiming that he had attempted to post the bond but that the clerk in the Housing Court had refused to accept it (and instead instructed Elgbe to pay the landlord), Elgbe filed a motion in the Appeals Court seeking a stay of execution of the summary process judgment and an order declaring that any payment of the bond be made to the clerk. A single justice of the Appeals Court denied Elgbe's motion. On the same day, Elgbe filed his petition under G. L. c. 211, § 3, in which he sought the same relief that he had sought in the Appeals Court. The single justice denied the petition without a hearing.

Meanwhile, at some point during the pendency of this appeal, Elgbe has been evicted from the property. Therefore, the relief he desired -- a stay of that eviction -- has become moot. See Petrillo-Aufiero v. Petrillo, 436 Mass. 1002 (2002). See also Rasten v. Northeastern Univ., 432 Mass. 1003 (2000), cert. denied, 531 U.S. 1168 (2001); Matter of an Appeal Bond (No. 2), 428 Mass. 1022 (1999). Moreover, Elgbe was not entitled to relief under G. L. c. 211, § 3, because the Housing Court's dismissal of Elgbe's appeal on the bond issue was subject to the usual appellate process. See Matter of an Appeal Bond (No. 1), 428 Mass. 1013 (1998), citing Ford v. Braman, 30 Mass. App. Ct. 968 , 970 (1991) (questions concerning bond should be raised on appeal from judgment dismissing underlying appeal).

Appeal dismissed.

Romanus Elgbe, pro se, submitted a brief.


FOOTNOTES

[Note 1] As managing agents for Wellspring House, Inc.

[Note 2] In addition to challenging the judgment of the single justice regarding his request for a stay, Elgbe raises numerous claims regarding the propriety of the underlying summary process judgment. None of those claims was raised before the single justice.

Home JUDITH A. DRISCOLL vs. T.R. WHITE COMPANY, INC.

441 Mass. 1009

March 25, 2004

Judith A. Driscoll appeals from the decision of a single justice of this court denying her petition pursuant to G. L. c. 211, § 3.

We gather from the record that, at relevant times, Driscoll was the president and sole shareholder of Newbury Constructors Inc. (Newbury), which had a public construction subcontract with T.R. White Company, Inc. (T.R. White). T.R. White filed a complaint in the Superior Court alleging that Newbury had breached the subcontract. Although not an attorney, Driscoll attempted to ap-

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pear on behalf of Newbury throughout the proceedings, and filed an answer, with counterclaims, signed only by herself. After giving Driscoll time to obtain counsel who could file a proper responsive pleading on behalf of a corporation, the Superior Court judge entered a default judgment against Newbury. Driscoll then sought to vacate the default, claiming that she was the assignee of Newbury's counterclaims against T.R. White. [Note 1] The judge denied her motion to vacate and Driscoll filed a notice of appeal. On T.R. White's motion, the judge ordered the notice of appeal struck because Driscoll "is not an attorney capable of or allowed to represent a corporation." The judge also ordered that "[t]he Clerk of Court is instructed to reject all future filings . . . in this case . . . as Ms. Driscoll is not an attorney." When Driscoll attempted to appeal this order, the clerk's office allegedly refused to accept her notice of appeal.

This court's extraordinary powers under G. L. c. 211, § 3, are reserved for circumstances where there is no adequate, alternative remedy. Sinai v. Plymouth Div. of the Probate & Family Court Dep't, 425 Mass. 1021 , 1021 (1997) (petitioner's obligation is to "demonstrate the absence or inadequacy of other remedies"). We recognize, however, that the striking of Driscoll's notice of appeal, and the clerk's refusal to accept any further filings (pursuant to the judge's express order to the clerk), rendered any further attempts to obtain review futile and have precluded Driscoll from obtaining appellate review of her claim that her status as alleged assignee allows her to defend claims against Newbury. We, therefore, turn to the merits of her petition.

Driscoll's theory that she can, without counsel, challenge the default judgment because she is Newbury's assignee is meritless. The law in Massachusetts is clear. "[C]orporations must appear and be represented in court, if at all, by attorneys." Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79 , 82 (1988). Driscoll cannot change this well-established rule by contract. Whatever her status with relation to Newbury's counterclaims against White, she cannot defend Newbury from claims brought or challenge judgments entered against it. As such, the entry of default judgment against Newbury, when Newbury failed to file any responsive pleading signed by an attorney, was proper. The single justice properly denied the relief requested in Driscoll's petition.

Judgment affirmed.

Judith A. Driscoll, pro se.

John J. McNamara (Brendan M. O'Rourke with him) for the defendant.


FOOTNOTES

[Note 1] Newbury purported to execute an assignment to Driscoll of "any and all claims and causes of action it has, or may have, against T.R. White Co., Inc.," and consented to Driscoll's "prosecuting" the claims against T.R. White. Newbury also agreed that "it alone will be liable to T.R. White Co., Inc., for any judgments and/or claims awarded against Newbury" and sought to indemnify Driscoll for "any liability that may arise against Newbury."