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SJC-12534

JONATHAN MULLANE vs. BARCLAYS BANK DELAWARE.

February 26, 2019.

Supreme Judicial Court, Superintendence of inferior courts.

District Court, Small claims procedure. Practice, Civil, 

Small claims procedure, Appeal.

Jonathan Mullane appeals from a judgment of the county 

court denying, without a hearing, his petition for relief from a 

judgment entered in a small claims matter in the District Court. 

Mullane commenced the small claims action against Barclays Bank 

Delaware (Barclays), alleging that Barclays violated the Federal

Fair Credit Billing Act (FCBA), 15 U.S.C. §§ 1666 et seq., and 

other laws in its handling of a disputed transaction on a credit 

card it had issued to Mullane. Barclays filed a counterclaim 

seeking to recover the outstanding balance on the credit card.

Neither party requested a transfer to the regular civil docket.

After a hearing, a clerk-magistrate issued judgment in favor of 

Barclays as to both Mullane's claims and its counterclaims. 

Mullane filed a claim of appeal, seeking a trial by a jury of 

six. On Barclays's motion, a judge in the District Court 

dismissed the claim of appeal on the ground that Mullane's claim 

of appeal alleged essentially the same claims as he did as the 

plaintiff in his case-in-chief. Mullane moved for 

reconsideration, but the judge denied that motion as well, on 

the same ground. Mullane's petition in the county court sought 

relief from the judge's decision. We affirm.

"We review the single justice's denial of relief only to 

determine whether there was an abuse of discretion or an error 

of law." Matter of an Application for a Criminal Complaint, 477 

Mass. 1010, 1010 (2017), citing Marides v. Rossi, 446 Mass. 
2

1007, 1007 (2006). "We have repeatedly stated that a plaintiff 

who chooses to proceed in the small claims session waives the 

right to appeal from any adverse judgment, and likewise is not 

entitled to invoke this court's extraordinary power of general 

superintendence in lieu of an appeal to compel review of the 

judgment." Zullo v. Culik Law P.C., 467 Mass. 1009, 1009 

(2014), and cases cited. See G. L. c. 218, § 23 ("A plaintiff 

beginning a cause under the [small claims] procedure shall be 

deemed to have waived a trial by jury and any right of appeal to 

a jury of six session in the district court department"). 

Mullane argues that the judge erred in dismissing his appeal 

from the judgment on Barclays's counterclaim and that, as a 

result, he was wrongly denied a jury trial on his claims under 

the FCBA. As a general matter, a plaintiff in a small claims 

matter does have a right to appeal following an adverse ruling

by a clerk-magistrate on a counterclaim. See Stevenson v. 

Mackey, 450 Mass. 1014, 1015 (2007), citing Bischof v. Kern, 33 

Mass. App. Ct. 45, 47 (1992). As the judge found, however, 

Mullane's claim of appeal did not address the counterclaim, but 

pressed his allegation that Barclays violated the FCBA. Indeed, 

Mullane admits as much in his brief before us. In substance, 

Mullane was attempting to claim a jury trial not as to 

Barclays's counterclaim, but as to his own principal claims 

under the FCBA. Having chosen to assert those claims in the 

small claims session, Mullane waived his right to a jury trial

and was not entitled to appeal after the clerk-magistrate found 

against him.

Moreover, if Mullane wished to preserve the full panoply of 

trial and appellate rights, he had a means to do so by 

requesting a transfer to the regular civil docket pursuant to 

G. L. c. 218, § 24. See Stevenson, supra, citing Daum v. Delta 

Airlines, Inc., 396 Mass. 1013, 1014 (1986) (motion to transfer 

small claims case to regular civil docket may be filed by any 

party). He did not do so. "We have consistently held that a 

defendant who fails to take that step has no right later to 

obtain review under G. L. c. 211, § 3, to replace the appellate 

rights it voluntarily relinquished by going forward under the 

small claims procedure . . . ." D.R. Peck Excavating, Inc. v. 

Machado, 481 Mass. 1033, 1034 (2019), and cases cited. This 

principle applies particularly to a plaintiff who chose the 

small claims forum at the outset of the case. Extraordinary 

relief was not warranted in this case, and the single justice 

neither erred nor abused his discretion by denying Mullane's 

petition.

Judgment affirmed.
3

Jonathan Mullane, pro se.

Jennifer R. Rossi for the defendant.