D.R. PECK EXCAVATING, INC.
E. Zajac for the petitioner.
Machado, pro se.
petitioner, D.R. Peck Excavating, Inc. (DRPE), appeals from a
judgment of a single justice of this court denying its
petition pursuant to G. L. c. 211, § 3. We affirm.
dispute between DRPE and the respondent, Jose Machado,
involves certain work that Machado performed on a
construction site in Middleborough. DRPE was a subcontractor
on the project. The parties agree that Machado performed the
work, but they disagree as to whether DRPE had actually ever
hired Machado to do it and, consequently, whether Machado was
entitled to be paid for it. When both DRPE and the general
contractor refused to pay him, Machado commenced a small
claims action against DRPE in the District Court. The case
proceeded from beginning to end under the small claims
procedure. See G. L. c. 218, §§ 21-25. See also
Uniform Small Claims Rules (2009) .
initial trial before a clerk-magistrate, the clerk-magistrate
found in favor of Machado. DRPE then claimed a right to a
trial by jury, as it was entitled to do. The jury found in
favor of Machado for the maximum amount permitted in small
claims actions, $7, 000, which, with costs and prejudgment
interest added, resulted in a judgment for Machado in excess
of $8, 000. DRPE thereafter filed a motion for remittitur
and, as it was entitled to do, a request for the judge to
report the case to the Appellate Division of the District
Court, both of which the judge denied. DRPE then filed a
notice of appeal, purporting to appeal to the Appellate
Division from various rulings that were made at trial, from
the denial of the posttrial motion for remittitur, and from
the denial of the request for a report of the case to the
Appellate Division. DRPE represents to us (albeit without any
support in the record) that a second District Court judge
informed DRPE's counsel that it had no right to appeal at
next filed its G. L. c. 211, § 3, petition in the county
court, in which it argued, among other things, that the first
District Court judge erred in denying its request for a
report to the Appellate Division, and that the second judge
erroneously denied its right to appeal to the Appellate
Division. DRPE alleged in its petition that it had no remedy
other than to seek relief pursuant to G. L. c. 211, § 3.
The single justice summarily denied the petition.
appeal to this court, DRPE fails to address the very limited
issue that is properly before us, namely whether the single
justice erred -- more specifically, whether the single
justice was required to employ this court's extraordinary
power of general superintendence with the case in this
posture. DRPE's brief makes no mention of the single
justice's ruling, except for one sentence in its
statement of the procedural history of the case in which it
acknowledges that the single justice denied the petition. The
brief focuses entirely on what DRPE alleges were an
assortment of errors by the District Court judges in the
proceedings below. Nowhere does DRPE assert in its brief, let
alone offer adequate appellate argument, see Mass. R. A. P.
16 (a) (4), as amended, 367 Mass. 921 (1975), that it had no
means to remedy those errors other than through a petition
under G. L. c. 211, § 3.The omission is significant
because, as we shall explain, DRPE had an adequate,
well-established alternative remedy, and the single justice
therefore correctly determined that general superintendence
relief from this court pursuant to G. L. c. 211, § 3,
was unwarranted in these circumstances. See
McMenimen v. Passatempo, 452 Mass.
178, 185 (2008) ("It is principally for this reason --
the availability of adequate alternative remedies -- that
single justices of this court routinely deny petitions under
G. L. c. 211, § 3, often without hearings, and those
decisions are routinely affirmed by this court, often in
rescript opinions, when they are appealed to the full
small claims procedure was designed by the Legislature to be
a "simple, informal and inexpensive procedure." G.
L. c. 218, § 21. It is not the exclusive process for
prosecuting or defending claims of small dollar values, but
rather it exists as an alternative to the more formalized
process that applies to regular civil cases. Id.
Parties who opt to take advantage of its benefits forgo
certain rights that they would otherwise have in a regular
civil case, including the regular rights of appellate review.
See Eresian v. Hall, 442 Mass.
1022, 1023 (2004); Daum v. Delta
Airlines, Inc., 396 Mass. 1013, 1014 (1986). So, for
example, after a small claims case is tried in the District
Court before a judge or a jury, the losing litigant has no
right to appeal to the Appellate Division. A party may ask
the judge to exercise his or her discretion to report the
matter to the Appellate Division if the judge believes that
questions of law within the case require appellate review,
but "[n]o party . . . shall be entitled to a
report." G. L. c. 218, § 23. See generally M.G.
Perlin & J.M. Connors, Civil Procedure in the
Massachusetts District Court §§ 15.87, 15.88 (5th
ed. 2018) (Perlin & Connors).
wished to preserve its regular appellate rights (and other
incidents of the regular civil process), it had an avenue by
which to do so. Before the case was tried initially to the
clerk-magistrate, it could have requested that the case be
transferred out of the small claims session and onto the
regular civil docket. G. L. c. 218, § 24. Rule 4(a) of
the Uniform Small Claims Rules (2009). See Perlin &
Connors, supra at § 15.36. 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; put another
way, the transfer option is, for G. L. c. 211, § 3,
purposes, an adequate alternative remedy. See, e.g.,
Albert v. Howard, 458 Mass. 1005,
1005 (2010); Christopher v. Porter, 450 Mass. 1007,
1008-1009 (2007); Eresian, 442 Mass. at 1023;
Trust Ins. Co. v. Bruce at Park
Chiropractic Clinic, 430 Mass. 607, 610 (2000);
Daum, 396 Mass. at 1014.
to the extent DRPE is claiming that it was entitled to appeal
to the Appellate Division from the District Court judge's
denial of its request to report the matter to the Appellate
Division, it was nevertheless not entitled to relief under G.
L. c. 211, § 3. It could have resolved that claim
through appropriate steps in the District Court and, if
necessary, by filing a second notice of appeal (on the
limited question whether it had a right to appeal) if the
judge or the District Court clerk's office failed to
accept or process its first notice of appeal. See, e.g.,
Skandha v. Clerk of the Superior Court
for Civ. Business in Suffolk County, 472 Mass. 1017,
1018-1019 (2015), and cases cited. See also Associated
Chiropractic Servs., Inc. vs. Travelers Ins. Co., Mass.App.
Div., No. 9492 (Dist. Ct. Sept. 24,
the appellate court shall determine that an appeal is
frivolous, it may award just damages and single or double
costs to the appellee, and such interest on the amount of the
judgment as may be allowed by law." Mass. R. A. P. 25,