JAYNE SILVA v. SHERRY STANLEY (2023)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

In the underlying Housing Court summary process action, a Housing Court judge ordered defendant Sherry Stanley to make interim use and occupancy payments to the plaintiff while the case awaited trial. See Davis v. Comerford, 483 Mass. 164, 165 (2019). Stanley sought review of the use and occupancy order by filing a petition in the single justice session of this court under G. L. c. 231, § 118, first par. The single justice denied the petition. Stanley filed a motion for reconsideration, asserting her right to “waiver, substitution or government payment” of the use and occupancy payments under the Indigent Court Costs Law, G. L. c. 261, §§ 27A-27G. The single justice denied reconsideration, explaining that the defendant must first seek such relief in the Housing Court.

Accordingly, Stanley filed in the Housing Court a request for waiver of the use and occupancy payments. The Housing Court judge denied her request, reasoning that interim use and occupancy payments do not fall within the definition of “extra fees and costs” under G. L. c. 261, § 27A. Stanley appealed that decision to the single justice pursuant to G. L. c. 261, § 27D. In the § 27D appeal, on September 23, 2021, a second single justice affirmed the Housing Court judge's order, and, on October 15, 2021, denied Stanley's motion for reconsideration. On November 2, 2021, Stanley filed a notice of appeal from the second single justice's decision, which a third single justice struck in an order dated November 4, 2021, on the ground that “the [second] single justice's decision under G. L. c. 261, § 27D is final and not subject to direct review by a panel.” Stanley timely filed a notice of appeal from the third single justice's order striking her notice of appeal from the second single justice's order. Thus, the only question properly before us in this appeal is the propriety of the third single justice's November 4 order.

“It is well settled that this court will not reverse an order of a single justice in the absence of an abuse of discretion or clear error of law.” Greco v. Suffolk Div. of the Probate & Family Court Dep't, 418 Mass. 153, 156 (1994). It is equally well settled that “the decision of a single justice of the Appeals Court, affirming a judge's denial of a motion for funds, is final.” Gos v. Brownstein, 403 Mass. 252, 254 (1988). See G. L. c. 261, § 27D; Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 842-843 (2019). The third single justice correctly applied clearly established law.

Stanley nonetheless suggests that the general rule attaching finality to a single justice's decision under § 27D does not apply here because the second single justice did not issue a decision under § 27D, but rather dismissed her petition on the ground that the relief sought fell outside of § 27D's scope. She also suggests that we may disregard § 27D's explicit language because the present case presents unique and substantial issues of law.

Stanley correctly observes that “there may be exceptions to this rule of finality in § 27D.” Edwards, petitioner, 464 Mass. 454, 460 (2013). Edwards presented issues of first impression concerning expert witness fees in sexually dangerous person proceedings. The court considered the importance of deciding those issues to constitute “a sound 'reason' to depart from the rule of finality under § 27D.” Id., quoting Gos, 403 Mass. at 255. But the court also cautioned, “No one should confuse our reason for granting review in this case as an indorsement of a more general 'end-run' around the statutorily imposed finality of single justices' decisions in § 27D appeals.” Edwards, supra.

The purpose of the Indigent Court Costs Law, particularly with respect to extra fees and costs, is to provide litigants with funds “reasonably necessary to assure the applicant as effective a prosecution, defense or appeal as [the applicant] would have if [the applicant] were financially able to pay.” G. L. c. 261, § 27C (4). The court in Davis, 483 Mass. at 182, recognized that interim use and occupancy payments might create a monetary barrier preventing defendants in summary process actions from asserting meritorious defenses. And in Adjartey, 481 Mass. at 845, the court noted that appeal bonds are included in § 27A's definition of “extra fees and costs.”² Stanley asserts at least a colorable claim that the Indigent Court Costs Law should also cover interim use and occupancy payments. However, the only issue before us is whether Stanley should be permitted to raise that claim on appeal.

We conclude, as in Edwards, that Stanley's “claims raise substantial issues of law that we have yet to decide and are distinct from the factual question routinely raised in a § 27D appeal to a single justice of the Appeals Court regarding the reasonableness of the judge's award.” Edwards, 464 Mass. at 460. This provides a sound reason to depart from the usual rule of finality.

Accordingly, we conclude that Stanley should be permitted to pursue her appeal from the second single justice's order, or orders,³ affirming the order of the Housing Court judge. The November 4, 2021, order of the third single justice, striking Stanley's November 2, 2021, notice of appeal, is reversed. The notice of appeal dated November 2, 2021, is reinstated. The Clerk is directed to assemble the record based on Stanley's November 2 notice of appeal.

So ordered.

FOOTNOTES

2.   Although the definition in § 27D includes “appeal bonds,” which can be ordered in summary process cases pursuant to G. L. c. 239, § 5, the definition does not include “periodic payments,” which may also be imposed under G. L. c. 239, § 5. The significance, if any, of that omission from § 27D is not for us to decide in this appeal.

3.   We express no view about whether Stanley's November 2 notice of appeal was timely with respect to the second single justice's order of September 23, affirming the order of the Housing Court, or only with respect to the second single justice's order of October 15, denying reconsideration. Nor do we consider whether Stanley's appeal may have become moot in light of further proceedings in the Housing Court.