NOTICE: All slip opinions and orders are subject to formal 

revision and are superseded by the advance sheets and bound 

volumes of the Official Reports. If you find a typographical 

error or other formal error, please notify the Reporter of 

Decisions, Supreme Judicial Court, John Adams Courthouse, 1 

Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-

1030; SJCReporter@sjc.state.ma.us

SJC-11592

ROBERT GALLAGHER vs. FIRST ASSISTANT CLERK-MAGISTRATE OF THE 

NEWBURYPORT DISTRICT COURT & others.1

November 28, 2014

Supreme Judicial Court, Superintendence of inferior courts. 

Practice, Civil, Attorney's fees, Small claims procedure. 

District Court, Small claims procedure.

Robert Gallagher appeals from a judgment of a single 

justice of this court dismissing his petition for relief under 

G. L. c. 211, § 3. In his petition, he sought relief from final 

judgments entered in two cases in the District Court Department. 

In one of the cases, after Gallagher prevailed on a complaint 

brought against him under the harassment prevention statute, 

G. L. c. 258E, the judge failed to act on his request for 

attorney's fees. In the other case, judgment was entered 

against him on a G. L. c. 93A claim that he brought in the small 

claims session.

As to the former case, Gallagher had, but did not pursue, 

adequate alternative remedies, both in the trial court and 

through the ordinary appellate process.2 "Our general 

 

1 A Justice of the Lawrence District Court, the clerkmagistrate of the Lawrence District Court, Stephen D’Angelo, 

Mary McCauley-Manzi, and Catherine W. Wnek.

2 For example, Gallagher could have moved in the District 

Court to amend the judgment to include a ruling on his request 

for attorney's fees, bringing to the judge's attention what 

might have been an inadvertent failure to rule on the request. 

He also could have appealed to the Appellate Division from the 

failure of the judgment to include an award of fees as he has 
2

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). See Foley v. Lowell Div. of the Dist. Ct. Dep't, 

398 Mass. 800, 802 (1986), and cases cited ("Where a petitioner 

can raise his claim in the normal course of trial and appeal, 

relief will be denied").

As to the latter case, it is well established 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. The single justice properly 

declined to grant extraordinary relief.3

Judgment affirmed.

The case was submitted on briefs.

Robert J. Gallagher, pro se.

Bryan F. Bertram, Assistant Attorney General, for the 

Commonwealth.

 

requested. Gallagher asserts that he did not take an appeal in 

reliance on counsel's advice. Even if so, this does not entitle 

him to extraordinary relief. Review was available, even if 

Gallagher and his counsel failed to pursue it.

3 We need not address the single justice's further ruling 

that certain of the respondents are entitled to judicial 

immunity in this matter.