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SJC-12402

               KYL V. MYRICK   vs.   APPEALS COURT.1


                        January 29, 2019.


Practice, Civil, Action in nature of mandamus, Rescript from
     appellate court.


     Kyl V. Myrick appeals from a judgment of the county court
denying, without a hearing, his petition for relief in the
nature of mandamus. In his petition, Myrick sought an order
directing the Appeals Court to recall the rescript that it
issued after affirming, in an unpublished decision, a final
judgment of the Superior Court.2 See Myrick v. Harvard Univ., 91
Mass. App. Ct. 1109 (2017) (affirming dismissal of complaint on
statute of limitations grounds). We affirm.

     "Relief in the nature of mandamus is extraordinary, and is
granted in the discretion of the court where no other relief is
available." Montefusco v. Commonwealth, 452 Mass. 1015, 1015
(2008), quoting Murray v. Commonwealth, 447 Mass. 1010, 1010
(2006). "When a single justice denies relief in the nature of
mandamus, '[her] determination will rarely be overturned.'"
Montefusco, supra, quoting Mack v. Clerk of the Appeals Court,
427 Mass. 1011, 1012 (1998). "A complaint in the nature of
mandamus is 'a call to a government official to perform a clear
cut duty,' and the remedy is limited to requiring action on the
part of the government official." Montefusco, supra, quoting

     1 The real party in interest, Harvard University, which was
the defendant in the Superior Court action, was not named in the
petition in the county court.

     2 This was apparently intended to enable Myrick to file a
belated application for further appellate review.
                                                                   2


Simmons v. Clerk-Magistrate of the Boston Div. of the Hous.
Court Dep't, 448 Mass. 57, 59-60 (2006). The Appeals Court had
no duty to recall the rescript, which court records show was
duly issued in accordance with the rules of appellate procedure.3
To the extent that Myrick seeks an order directing the Appeals
Court to reverse the judgment of the Superior Court, "mandamus
will not issue to direct a judicial officer to make a particular
decision or to review, or reverse, a decision made by a judicial
officer on an issue properly before him or her." Montefusco,
supra, quoting Callahan v. Superior Court, 410 Mass. 1001, 1001
(1991). Moreover, mandamus is not "to be used as a substitute
for ordinary appellate procedure." Myrick v. Superior Court
Dep't, 479 Mass. 1012, 1012 (2018), quoting Rines v. Justices of
the Superior Court, 330 Mass. 368, 371 (1953). Contrary to
Myrick's suggestion, the fact that he had a separate appeal
pending here in no way barred him from pursuing the ordinary
process by applying for further appellate review.

     In sum, Myrick has not demonstrated any entitlement to
relief in the nature of mandamus. The single justice properly
denied relief.

                                   Judgment affirmed.


     Kyl V. Myrick, pro se.




     3 Both in his brief and in his petition, Myrick suggests
repeatedly that the doctrine of present execution has been
violated in this matter. The doctrine of present execution
authorizes appellate review of interlocutory orders of the trial
court in certain narrowly limited circumstances, see, e.g.,
Patel v. Martin, 481 Mass. 29, 32 (2018), and has no
applicability to an appeal from a final judgment of the trial
court.
