Corcoran Mgmt. Co., Inc. v. Michaelangelo

Full title: Corcoran Management Company, Inc. vs. Tanya Michaelangelo, and another

Court: Massachusetts Appellate Division, Southern District

Date published: Aug 5, 1996

1996 Mass. App. Div. 130 (Mass. Dist. Ct. App. 1996)

Opinion

August 5, 1996.

Present: Martin, P.J., Welsh Minehan, JJ.

Jurisdiction, Subject matter; Appellate Division; Appeal of summary process decisions.

Opinion dismissing defendant Margaret Drew's appeal for lack of subject matter jurisdiction. Action heard in the Quincy Division by Charles E. Black, J.

Leigh McLaughlin for the plaintiff.

Steven Downey for the defendants.

Minehan, J.

This is an appeal, by defendant Margaret Drew, of a denial of defendant's motion to dismiss plaintiff's complaint. The underlying action is a summary process complaint brought by plaintiff, Corcoran Management Co., Inc., as agent for Faxon Commons, against defendants Tanya Michaelangelo and Margaret Drew.

On June 22, 1995, plaintiff and defendant Michaelangelo entered into an agreement for judgment in Quincy District Court. Despite there being no judgment against defendant Drew, on July 5, 1995 a writ of execution issued against both defendant Michaelangelo and defendant Drew.

Defendant Drew filed a motion to dismiss plaintiff's complaint. In support of the motion, defendant Drew argued that she was not properly served with a copy of the complaint and the summons. Defendant Drew also argued that plaintiff has erroneously named Ms. Drew as a defendant in her individual rather than fiduciary capacity. Defendant Drew's motion to dismiss plaintiff's complaint was denied. Defendant Drew appeals from the denial of the motion to dismiss. Defendant argues that the judge abused his discretion by failing to dismiss plaintiff's complaint.

The Appellate Division of the District Court does not have jurisdiction to review summary process cases. Labao v. Rudnicki, 357 Mass. 772 (1970). The subject of appeals in summary process actions is strictly governed by G.L.c. 239, § 3, which provides that in the case of an appeal from the District Court on either or both issues involved or on any counterclaim, the appeal shall be to the Superior Court. It has also been held that there is no jurisdiction in the Appellate Division over an appeal from a denial of a motion for relief from judgment in a summary process case. Emerson v. Dubois, 1989 Mass. App. Div. 160; Pine Hill Estates Inc. v. Stone, 1986 Mass. App. Div. 99.

The defendant's appeal is dismissed due to lack of subject matter jurisdiction.