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SJC-12153

BAHIG BISHAY & others1 vs. CLERK OF THE SUPERIOR COURT IN 

NORFOLK COUNTY.

January 23, 2017.

Mandamus. Clerk of Court. Judgment, Implementing settlement 

agreement. Practice, Civil, Action in nature of mandamus, 

Entry of judgment.

Bahig Bishay commenced an action in the Superior Court, 

bringing various claims against National Investigations, Inc., 

and its principals, Glenn Gillis and Garry Gillis (collectively, 

National); Harvard 45 Associates, LLC, and its principals,

Harold Brown and Enrique Darer (collectively, Harvard); and 

Allied Finance Adjusters Conference, Inc. (Allied), arising from 

Bishay's eviction from his home. More particularly, Bishay 

sought damages on various theories for the removal and storage 

of his personal property in the course of the eviction. 

Allied's motion to dismiss the claims against it was allowed, as 

was Harvard's motion for summary judgment as to both the claims 

against it and a counterclaim it asserted against Bishay. 

Bishay and National thereafter reported that they settled their 

dispute, and they moved for entry of final judgment. Harvard 

and Allied opposed the motion, and a judge in the Superior Court 

denied it. Bishay again moved for entry of final judgment. 

Harvard and Allied opposed that motion, and a different judge 

denied it. Bishay and National (collectively, petitioners) 

jointly filed a petition in the county court seeking relief in 

the nature of mandamus pursuant to G. L. c. 211, § 3, and G. L. 

c. 249, § 4, specifically requesting that the clerk of the 

Superior Court be ordered to enter final judgment as the 

 

1 National Investigations, Inc.; Glenn Gillis; and Garry 

Gillis.
2

petitioners proposed. Harvard moved to intervene and filed an 

opposition, joined by Allied, in which it argued that the 

proposed judgment was collusive and fictitious, adverse to the 

interests of Harvard and Allied, and contrary to the prior 

ruling on summary judgment.

2 A single justice of this court 

denied relief without a hearing. The petitioners appeal.

The case is before us pursuant to S.J.C. Rule 2:21, as 

amended, 434 Mass. 1301 (2001), which requires the petitioners

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."3 The 

petitioners have not done so. They argue that requiring them to 

proceed to a jury trial would be wasteful in these 

circumstances, as they have in fact resolved their dispute.4 

This argument is unavailing, as it "fails to address why the 

substantive error allegedly committed by the [Superior Court 

judges] cannot be remedied on appeal." DiBiase v. DiBiase, 423 

Mass. 1003, 1003 (1996). Moreover, the petitioners had another 

remedy available to them, which their memorandum fails to 

mention: they could have filed a petition for relief pursuant 

to G. L. c. 231, § 118, first par. See 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"). The single justice neither erred nor abused 

her discretion by denying extraordinary relief.

Judgment affirmed.

 

2 We express no view on the merits of this claim.

3 The rule also provides that "[t]he appeal shall be 

presented . . . on the papers filed in the single justice 

session" and that the petitioners must file a record appendix. 

S.J.C. Rule 2:21 (2). The petitioners have not complied with 

this requirement. This presents a further reason not to disturb 

the judgment of the single justice.

4 The petitioners also argue that the Superior Court judges 

wrongly refused to enter final judgment and that Harvard and 

Allied lack standing to object to it. These arguments go to the 

merits of the decision and not to the availability of an 

adequate alternative remedy. They are thus beyond the scope of 

rule 2:21.
3

The case was submitted on papers filed, accompanied by a 

memorandum of law.

Bahig F. Bishay, pro se.

Robert E. Kelley for National Investigations, Inc., & 

others.