Judicial Court, Superintendence of inferior courts.
Moot Question. Practice, Civil, Affidavit, Moot case.
Liviz for the petitioner.
petitioner, Shauna Anderson, appeals from an order of a
single justice of this court dismissing without prejudice her
petition pursuant to G. L. c. 211, § 3, for failure to
pay the filing fee or to file a proper affidavit of
indigency. We affirm.
was a tenant of the respondents, Nikolaos and Anastasia
Panagiotopoulos, and the defendant in a summary process
action brought by them against her in the Housing Court. On
the day scheduled for trial, she made, for the first time, a
late request for a jury trial, which was denied. She then
filed a petition with a single justice of the Appeals Court
pursuant to G. L. c. 231, § 118, first par., seeking
review of that interlocutory ruling. The single justice of
the Appeals Court denied the petition, as well as a
subsequent motion for reconsideration.
thereafter petitioned a single justice of this court for
review pursuant to G. L. c. 211, § 3. She also filed an
application to waive the entry fee in the county court, along
with an affidavit of indigency. The single justice denied the
application for a fee waiver without prejudice, on the ground
that the affidavit of indigency was signed by Anderson's
counsel rather than by Anderson, the applicant, herself. The
order of the single justice stated that unless a properly
executed affidavit, signed by Anderson, was filed within
fourteen days, or the fee was paid, her petition would be
dismissed. Anderson did neither, and so the petition was
eventually dismissed. The order of dismissal expressly stated
that the petition was being dismissed without prejudice.
summary process action went forward in the Housing Court, and
a final judgment for possession was eventually entered for
the Panagiatopouloses, against Anderson. Anderson filed a
motion in the Housing Court to stay the execution, which was
denied. It appears from our review of the Housing Court
docket that she has since been evicted.
appears from the Housing Court docket that Anderson never
appealed from the final judgment of the Housing Court.
Instead, after that judgment was entered, she filed a late
notice of appeal from the order of dismissal by the single
justice in the county court, with a motion for leave to
pursue that appeal late, arguing that the single
justice's dismissal of her G. L. c. 211, § 3,
petition violated her due process right of access to the
courts. The single justice allowed the motion to file a late
notice of appeal. The appeal from the single justice's
order, dismissing her petition without prejudice, is thus the
sole matter currently before us.
has filed a memorandum with this court pursuant to S.J.C.
Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires
a petitioner seeking relief from an interlocutory ruling of
the trial court to "set forth the reasons 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." Based on her memorandum, we
affirm the dismissal of the G. L. c. 211, § 3, petition
for at least three reasons.
the petition has become moot because the underlying case
proceeded to a final judgment in the Housing Court, and the
eviction has occurred. See Rasten v. Northeastern
Univ., 432 Mass. 1003 (2000), cert, denied, 531 U.S. 991
the single justice did not err or abuse his discretion in
dismissing the petition for failure to execute a proper
affidavit of indigency, nor did he infringe on the
petitioner's right of access to the courts in doing so.
To qualify for a fee waiver, an applicant is required to
submit an affidavit of indigency "sworn to under oath by
the affiant." G. L. c. 261, § 27B. The language of
the preprinted affidavit form (and the supplement to the
affidavit, where applicable) envisions that the affidavit
will be signed by the fee waiver applicant, under
the penalties of perjury, based on his or her first-hand
knowledge. He or she avers facts regarding his or her
personal financial circumstances. It is an affidavit to be
signed by a party, not a pleading to be signed by the
even if we were to consider the underlying merits of
Anderson's petition, i.e., her challenge to the denial of
her request for a jury trial, she would fare no better. She
is unable to demonstrate the unavailability of adequate
alternative means of obtaining appellate review. See S.J.C.
Rule 2:21. She has already sought interlocutory review of the
ruling in question under G. L. c. 231, § 118, first
par., and has been denied relief by a single justice of the
Appeals Court. She was not entitled as of right to additional
interlocutory review of that ruling pursuant to G. L. c. 211,
§ 3. See Iagatta v. Iagatta,
448 Mass. 1016 (2007); Greco v.
Plymouth Sav. Bank, 423 Mass. 1019, 1019-1020 (1996)
("Review under G. L. c. 211, § 3, does not lie
where review under c. 231, § 118, would
suffice").Moreover, there is a statutory right to
appeal from a final judgment of the Housing Court in a
summary process action, see G. L. c. 239, § 5, which she
apparently did not pursue. She could have appealed from the
Housing Court judgment, in which case the judgment of
eviction would have been automatically stayed pending appeal,
see Rule 13 of the Uniform Summary Process Rules, and could
have argued to the appellate court that she was erroneously
deprived of a jury trial.
of dismissal affirmed. The case was submitted on the papers