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SJC-12478

     BAHIG BISHAY & others1   vs.   SUPERIOR COURT DEPARTMENT.


                        October 31, 2018.


   Supreme Judicial Court, Superintendence of inferior courts.


     The petitioners, Bahig Bishay (Bishay) and National
Investigations, Inc., Glenn Gillis, and Garry Gillis
(collectively, National), appeal from a judgment of a single
justice of this court denying, without a hearing, their petition
for extraordinary relief in the nature of mandamus, pursuant to
G. L. c. 211, § 3.2 We affirm.

     This is one of a number of cases relating to Bishay's
eviction from his home. Specifically, in the case underlying
this, which Bishay commenced in the Superior Court, Bishay
sought damages for the removal and storage of his personal
property in the course of the eviction. See Bishay v. Clerk of
the Superior Court in Norfolk County, 476 Mass. 1017, 1018
(2017) (denying petition for writ of mandamus seeking order
compelling clerk to enter final judgment as proposed by
petitioners). The National petitioners were among the
defendants in the Superior Court action. Final judgment has now
entered in that case, Bishay has appealed, and his appeal has
been entered and is currently pending in the Appeals Court.

     While that appeal has been pending, Bishay and National
filed a joint petition in the county court pursuant to G. L.

     1 National Investigations, Inc.; Glenn Gillis; and Garry
Gillis.

     2 The single justice also denied the petitioners' motion for
reconsideration.
                                                                   2


c. 211, § 3, seeking an order requiring the Superior Court judge
to incorporate their "agreement for judgment" into the final
judgment in the Superior Court; in the alternative, they sought
an order from the single justice requiring a jury trial in the
underlying case. The single justice denied their petition.

     The appeal from the single justice's judgment is now before
us on the petitioners' memorandum and appendix pursuant to
S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001). The rule
applies where a single justice has denied relief from an
interlocutory ruling in the trial court, and requires the
appellant to "set forth the reasons why review of the trial
court decision cannot adequately be obtained on appeal from any
adverse judgment in the trial court or by other available
means." Id. Regardless of whether the rule applies in this
situation, "it is clear on this record that Bishay [and National
have or] had adequate remedies in the ordinary appellate
process." Bishay v. Land Court Dep't of the Trial Court, 477
Mass. 1032, 1033 (2017). See Wallace v. PNC Bank, N.A., 478
Mass. 1020, 1020 (2018) ("whether relief is requested in the
nature of certiorari or mandamus, or by means of the court's
extraordinary power of general superintendence, relief is
available only where the petitioner demonstrates the absence of
an adequate and effective alternative remedy"). Specifically,
to the extent the petitioners challenge the form of the Superior
Court's judgment, or otherwise claim error in the underlying
proceedings, they can make those claims in the Appeals Court, in
the pending appeal from the final judgment in the underlying
action. They have not met their burden of establishing that the
normal appellate process is inadequate to provide a remedy.

     In these circumstances, the single justice neither erred
nor abused his discretion in denying the petition.

                                   Judgment affirmed.


     The case was submitted on the papers filed, accompanied by
a memorandum of law.
     Bahig Bishay, pro se.
     Robert E. Kelley for National Investigations, Inc., &
others.
