481 Mass. 1042

February 25, 2019

Records And Briefs:


Supreme Judicial Court, Superintendence of inferior courts. Practice, Criminal, Record.

The petitioner, Richard Michael Barbosa, appeals from a judgment of a single justice of this court dismissing, without a hearing, his petition pursuant to G. L. c. 211, § 3. The papers that Barbosa has filed are, at best, difficult to discern. He appears to be complaining about certain actions, or inactions, of both the trial court judge and standby counsel in various criminal proceedings in the Superior Court. Neither the specifics about which he complains nor what relief he seeks are clear. His submissions, in short, do not rise to the level of adequate appellate argument and they fail to establish any coherent basis for relief. Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). Moreover, Barbosa had, but failed to meet, the burden "to provide a record sufficient to evaluate his claims." Sabree v. Commonwealth, 479 Mass. 1006, 1007 (2018), citing Gorod v. Tabachnick, 428 Mass. 1001 (1998). [Note 1]

Judgment affirmed.

Richard Michael Barbosa, pro se.

Houston Armstrong, Assistant District Attorney, for the Commonwealth.


[Note 1] It appears that some of the matters that the petitioner raises may pertain to his currently pending direct appeal. If that is so, he is free to raise those matters in that appeal if relevant. To the extent that he raises matters pertaining to earlier convictions (that are not a part of the pending direct appeal), such as complaints about ineffective assistance of counsel, those matters appear to be ones that should be raised in the first instance in the trial court via a motion for a new trial.


481 Mass. 1042

February 26, 2019

Records And Briefs:


Supreme Judicial Court, Superintendence of inferior courts. District Court, Small claims procedure. Practice, Civil, Small claims procedure, Appeal.

Jonathan Mullane appeals from a judgment of the county court denying, without a hearing, his petition for relief from a judgment entered in a small claims matter in the District Court. Mullane commenced the small claims action against Barclays Bank Delaware (Barclays), alleging that Barclays violated the

Page 1043

Federal Fair Credit Billing Act (FCBA), 15 U.S.C. §§ 1666 et seq., and other laws in its handling of a disputed transaction on a credit card it had issued to Mullane. Barclays filed a counterclaim seeking to recover the outstanding balance on the credit card. Neither party requested a transfer to the regular civil docket. After a hearing, a clerk-magistrate issued judgment in favor of Barclays as to both Mullane's claims and its counterclaims. Mullane filed a claim of appeal, seeking a trial by a jury of six. On Barclays's motion, a judge in the District Court dismissed the claim of appeal on the ground that Mullane's claim of appeal alleged essentially the same claims as he did as the plaintiff in his case-in-chief. Mullane moved for reconsideration, but the judge denied that motion as well, on the same ground. Mullane's petition in the county court sought relief from the judge's decision. We affirm.

"We review the single justice's denial of relief only to determine whether there was an abuse of discretion or an error of law." Matter of an Application for a Criminal Complaint, 477 Mass. 1010, 1010 (2017), citing Marides v. Rossi, 446 Mass. 1007, 1007 (2006). "We have repeatedly stated that a plaintiff who chooses to proceed in the small claims session waives the right to appeal from any adverse judgment, and likewise is not entitled to invoke this court's extraordinary power of general superintendence in lieu of an appeal to compel review of the judgment." Zullo v. Culik Law P.C., 467 Mass. 1009, 1009 (2014), and cases cited. See G. L. c. 218, § 23 ("A plaintiff beginning a cause under the [small claims] procedure shall be deemed to have waived a trial by jury and any right of appeal to a jury of six session in the district court department"). Mullane argues that the judge erred in dismissing his appeal from the judgment on Barclays's counterclaim and that, as a result, he was wrongly denied a jury trial on his claims under the FCBA. As a general matter, a plaintiff in a small claims matter does have a right to appeal following an adverse ruling by a clerk-magistrate on a counterclaim. See Stevenson v. Mackey, 450 Mass. 1014, 1015 (2007), citing Bischof v. Kern, 33 Mass. App. Ct. 45, 47 (1992). As the judge found, however, Mullane's claim of appeal did not address the counterclaim, but pressed his allegation that Barclays violated the FCBA. Indeed, Mullane admits as much in his brief before us. In substance, Mullane was attempting to claim a jury trial not as to Barclays's counterclaim, but as to his own principal claims under the FCBA. Having chosen to assert those claims in the small claims session, Mullane waived his right to a jury trial and was not entitled to appeal after the clerk-magistrate found against him.

Moreover, if Mullane wished to preserve the full panoply of trial and appellate rights, he had a means to do so by requesting a transfer to the regular civil docket pursuant to G. L. c. 218, § 24. See Stevenson, supra, citing Daum v. Delta Airlines, Inc., 396 Mass. 1013, 1014 (1986) (motion to transfer small claims case to regular civil docket may be filed by any party). He did not do so. "We have consistently held that a defendant who fails to take that step has no right later to obtain review under G. L. c. 211, § 3, to replace the appellate rights it voluntarily relinquished by going forward under the small claims procedure . . . ." D.R. Peck Excavating, Inc. v. Machado, 481 Mass. 1033, 1034 (2019), and cases cited. This principle applies particularly to a plaintiff who chose the small claims forum at the outset of the case. Extraordinary relief was not warranted in this case, and the single justice neither erred nor abused his discretion by denying Mullane's petition.

Judgment affirmed.

Page 1044

Jonathan Mullane, pro se.

Jennifer R. Rossi for the defendant.