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SJC-12567

   SHAUNA ANDERSON    vs.    NIKOLAOS PANAGIOTOPOULOS & another.1



                            October 30, 2018.


Supreme Judicial Court, Superintendence of inferior courts.
          Indigent. Moot Question. Practice, Civil, Affidavit,
          Moot case.


     The petitioner, Shauna Anderson, appeals from an order of a
single justice of this court dismissing without prejudice her
petition pursuant to G. L. c. 211, § 3, for failure to pay the
filing fee or to file a proper affidavit of indigency. We
affirm.

     Anderson was a tenant of the respondents, Nikolaos and
Anastasia Panagiotopoulos, and the defendant in a summary
process action brought by them against her in the Housing Court.
On the day scheduled for trial, she made, for the first time, a
late request for a jury trial, which was denied. She then filed
a petition with a single justice of the Appeals Court pursuant
to G. L. c. 231, § 118, first par., seeking review of that
interlocutory ruling. The single justice of the Appeals Court
denied the petition, as well as a subsequent motion for
reconsideration.

     Anderson thereafter petitioned a single justice of this
court for review pursuant to G. L. c. 211, § 3. She also filed
an application to waive the entry fee in the county court, along
with an affidavit of indigency. The single justice denied the
application for a fee waiver without prejudice, on the ground
that the affidavit of indigency was signed by Anderson's counsel


    1   Anastasia Panagiotopoulos.
                                                                   2


rather than by Anderson, the applicant, herself. The order of
the single justice stated that unless a properly executed
affidavit, signed by Anderson, was filed within fourteen days,
or the fee was paid, her petition would be dismissed. Anderson
did neither, and so the petition was eventually dismissed. The
order of dismissal expressly stated that the petition was being
dismissed without prejudice.

     The summary process action went forward in the Housing
Court, and a final judgment for possession was eventually
entered for the Panagiatopouloses, against Anderson. Anderson
filed a motion in the Housing Court to stay the execution, which
was denied. It appears from our review of the Housing Court
docket that she has since been evicted.

     It also appears from the Housing Court docket that Anderson
never appealed from the final judgment of the Housing Court.
Instead, after that judgment was entered, she filed a late
notice of appeal from the order of dismissal by the single
justice in the county court, with a motion for leave to pursue
that appeal late, arguing that the single justice's dismissal of
her G. L. c. 211, § 3, petition violated her due process right
of access to the courts. The single justice allowed the motion
to file a late notice of appeal. The appeal from the single
justice's order, dismissing her petition without prejudice, is
thus the sole matter currently before us.

     Anderson has filed a memorandum with this court pursuant to
S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which
requires a petitioner seeking relief from an interlocutory
ruling of the trial court to "set forth the reasons why review
of the trial court decision cannot adequately be obtained on
appeal from any final adverse judgment in the trial court or by
other available means." Based on her memorandum, we affirm the
dismissal of the G. L. c. 211, § 3, petition for at least three
reasons.

     First, the petition has become moot because the underlying
case proceeded to a final judgment in the Housing Court, and the
eviction has occurred. See Rasten v. Northeastern Univ., 432
Mass. 1003 (2000), cert. denied, 531 U.S. 991 (2001).

     Second, the single justice did not err or abuse his
discretion in dismissing the petition for failure to execute a
proper affidavit of indigency, nor did he infringe on the
petitioner's right of access to the courts in doing so. To
qualify for a fee waiver, an applicant is required to submit an
affidavit of indigency "sworn to under oath by the affiant."
                                                                  3


G. L. c. 261, § 27B. The language of the preprinted affidavit
form (and the supplement to the affidavit, where applicable)
envisions that the affidavit will be signed by the fee waiver
applicant, under the penalties of perjury, based on his or her
first-hand knowledge. He or she avers facts regarding his or
her personal financial circumstances. It is an affidavit to be
signed by a party, not a pleading to be signed by the party's
counsel.2

     Third, even if we were to consider the underlying merits of
Anderson's petition, i.e., her challenge to the denial of her
request for a jury trial, she would fare no better. She is
unable to demonstrate the unavailability of adequate alternative
means of obtaining appellate review. See S.J.C. Rule 2:21. She
has already sought interlocutory review of the ruling in
question under G. L. c. 231, § 118, first par., and has been
denied relief by a single justice of the Appeals Court. She was
not entitled as of right to additional interlocutory review of
that ruling pursuant to G. L. c. 211, § 3. See Iagatta v.
Iagatta, 448 Mass. 1016 (2007); Greco v. Plymouth Sav. Bank, 423
Mass. 1019, 1019-1020 (1996) ("Review under G. L. c. 211, § 3,
does not lie where review under c. 231, § 118, would suffice").3
Moreover, there is a statutory right to appeal from a final
judgment of the Housing Court in a summary process action, see

     2 To be clear, the petitioner's failure to file a properly
signed affidavit in the first instance was not fatal. The
single justice did not immediately dismiss her petition. He
indicated in his first order what needed to be done to correct
the situation and gave the petitioner and her counsel fourteen
days to make what would have been a simple correction. More
than a month later, nothing further having been filed, the
single justice then dismissed the petition without prejudice.
Because the order of dismissal was without prejudice, the
petitioner could have refiled her petition at any time,
accompanied by a properly signed affidavit. Instead, she waited
three months after the single justice's initial order, and
nearly two months after the final order of dismissal, to claim
this appeal. In short, the petitioner and her counsel could
easily have avoided the misfortune of having her petition
dismissed and the time and expense of this appeal.

     3 Anderson's petition pursuant to G. L. c. 211, § 3, after a
single justice of the Appeals Court had already denied her
petition pursuant to G. L. c. 231, § 118, first par., was in its
essence a second attempt to obtain review of the challenged
interlocutory ruling of the trial court.
                                                                   4


G. L. c. 239, § 5, which she apparently did not pursue. She
could have appealed from the Housing Court judgment, in which
case the judgment of eviction would have been automatically
stayed pending appeal, see Rule 13 of the Uniform Summary
Process Rules, and could have argued to the appellate court that
she was erroneously deprived of a jury trial.

                                   Order of dismissal affirmed.


     The case was submitted on the papers filed, accompanied by
a memorandum of law.
     Ilya Liviz for the petitioner.
