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SJC-12006

               EVELYN J. ERESIAN   vs. MERRILL LYNCH
                   CREDIT CORPORATION 1 & others. 2,3


                         September 12, 2016.


   Supreme Judicial Court, Superintendence of inferior courts.


     In the early 1990s, the petitioner, Evelyn J. Eresian, was
the defendant in a summary process action in the Housing Court.
The Appeals Court affirmed a judgment against Eresian in that
action in 1993, and this court subsequently denied Eresian's
application for further appellate review. See Merrill Lynch
Equity Mgt., Inc. v. Eresian, 34 Mass. App. Ct. 1125, S.C.,
416 Mass. 1104 (1993). In the years since, Eresian has sought
repeatedly, and unsuccessfully, to challenge the foreclosure
that led to the summary process action. This case represents
the latest iteration of those efforts. In 2015, Eresian filed a
motion in the Appeals Court seeking to vacate that court's 1993
decision. The Appeals Court's response, as noted on its docket,
was that "[t]he case is closed as the rescript has issued to the
trial court. No action will be taken by the court on this or
any future filing in this matter." 4

     1
         Formerly Merrill Lynch Equity Management, Inc.
     2
         John Paul Scheffer and Martha M. Scheffer.
     3
       The petitioner also named as a respondent the Appeals
Court. The court is a nominal party only. See S.J.C. Rule
2:22, 422 Mass. 1302 (1996).
     4
       A copy of the motion is not in the record before us.
Eresian represents that she argued in the motion that the
Appeals Court lacked subject matter jurisdiction to decide the
                                                                   2



     Eresian subsequently filed a petition pursuant to G. L.
c. 211, § 3, in the county court in which she asked the single
justice to require the Appeals Court to review the
jurisdictional issue. A single justice denied the petition, and
Eresian timely filed a notice of appeal. Her appeal was entered
in the full court on November 27, 2015. On January 22, 2016,
Eresian asked for and received leave to extend the time for
filing her brief to February 29, 2016. After Eresian failed to
file her brief on or before that date, the defendants filed a
motion to dismiss the appeal. Eresian, in turn, filed several
documents in response to the motion to dismiss, including an
opposition and a supplemental opposition. She has not yet,
however, filed a brief, and we could dismiss her appeal on this
basis alone -- that she has failed to prosecute the appeal.

     She would fare no better even if we were to reach the
merits. This case was not a proper use of G. L. c. 211, § 3.
Eresian has already obtained appellate review of the summary
process judgment, and she has not demonstrated that the remedy
of ordinary appellate review was inadequate. There is no reason
why she could not have raised her current jurisdictional claim
in the Appeals Court when her appeal from the Housing Court
judgment was pending there. "Our general superintendence power
under G. L. c. 211, § 3, is extraordinary and to be exercised
sparingly, not as a substitute for the normal appellate process
or merely to provide an additional layer of appellate review
after the normal process has run its course." Votta v. Police
Dep't of Billerica, 444 Mass. 1001, 1001 (2005). In any event,
we have carefully reviewed the entire record before us and agree
with the single justice that there is no merit at all to
Eresian's jurisdictional claim. 5

                                   Judgment affirmed.

     The case was submitted on briefs.


appeal. If Eresian did raise a subject matter jurisdiction
issue in the motion, it is questionable whether the Appeals
Court could decline to consider it on the basis that the
rescript had issued and the case was "closed."
     5
       Eresian has recently filed a "Verified Motion and
Memorandum of Petitioner/Appellant Evelyn J. Eresian for Leave
to File Motion with the Single Justice to Vacate Judgment." On
the basis of our judgment here, no action on that motion is
necessary.
                                                                  3


     Evelyn J. Eresian, pro se.
     Meredith Swisher & Robert Stetson for John Paul Scheffer &
another.
