Opinion
SJC-12832
05-26-2020
Donald PERRY v. U.S. BANK TRUST, N.A., trustee.
The case was submitted on briefs. Donald Perry, pro se. Jason MacKeen for the respondent.
The case was submitted on briefs.
Donald Perry, pro se.
Jason MacKeen for the respondent.
RESCRIPT
Donald Perry (petitioner) filed a petition in the county court pursuant to G. L. c. 211, § 3. He sought review of an order of a Housing Court judge denying his motion for waiver of an appeal bond, setting the bond, and ordering payment of use and occupancy during the pendency of the petitioner's appeal from an adverse summary process judgment. See G. L. c. 239, §§ 5, 6. A single justice of this court denied the petition. We affirm.
A single justice properly denies relief under G. L. c. 211, § 3, "where there are [other] adequate and effective routes ... by which the petitioning party may seek relief." Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019, 672 N.E.2d 535 (1996). In this case, the petitioner sought and received review of the Housing Court judge's order from a single justice of the Appeals Court, pursuant to G. L. c. 239, § 5. To the extent the petitioner wished further to challenge the order, he could have "refuse[d] to pay the bond, suffer[ed] the dismissal of [his] summary process appeal, and then appeal[ed] to the Appeals Court (on the limited bond issue) from the order of dismissal." Matter of an Appeal Bond (No. 1 ), 428 Mass. 1013, 1013, 697 N.E.2d 994 (1998) (collecting cases). The petitioner also could have –– as he did here –– pay the bond and proceed with his direct appeal from the summary process judgment in the Appeals Court. He is free to raise his claims concerning the bond and the use and occupancy payments in that proceeding. See generally Cambridge Street Realty, LLC v. Stewart, 481 Mass. 121, 126, 113 N.E.3d 303 (2018) (considering merit of both summary process judgment and appeal bond order).
The single justice neither erred nor abused her discretion in denying relief under G. L. c. 211, § 3.
Judgment affirmed.