Kim v. Rosenthal ( 2016 )

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SJC-11752
SARAH S. KIM vs. LLOYD ROSENTHAL.1
March 2, 2016.
Supreme Judicial Court, Superintendence of inferior courts.
Sarah S. Kim appeals from a judgment of a single justice of
this court denying her petition for relief pursuant to G. L.
c. 211, § 3, and her complaint for relief in the nature of
certiorari and mandamus pursuant to G. L. c. 249, §§ 4, 5
(collectively, petition). We affirm.
In November, 2012, the respondent, Lloyd Rosenthal,
commenced a summary process action against Kim in the District
Court. Kim's condominium unit had been foreclosed upon, and
Rosenthal was the new owner.2 The court ruled in Rosenthal's
1
The Appellate Division of the District Court, Northern
District, was also named as a respondent. The court is a
nominal party only. S.J.C. Rule 2:22, 422 Mass. 1302 (1996).
Similarly, the numerous other individuals and organizations
named as respondents who were not parties to the summary process
action from which this proceeding stems are not proper
respondents.
2
The proceedings that led, eventually, to the summary
process action began in 2007, when the trustees of the
condominium trust commenced an action to establish a lien on
Sarah Kim's unit for unpaid common expenses. See Trustees of
Mill Creek Condominium Trust v. Kim, 77 Mass. App. Ct. 1114(2010). After Kim's unit was subsequently foreclosed upon, the
trustees properly secured a new certificate of title as required
by the law governing registered land. See Trustees of Mill
Creek Condominium Trust v. Kim, 85 Mass. App. Ct. 1105 (2014).
2
favor, and Kim appealed to the Appellate Division of the
District Court, which affirmed the judgment. Kim then filed her
petition in the county court, stating that she was seeking
relief from the Appellate Division decision and also that she
"prays the Honorable Court to review and correct errors made in
the Superior Court (for Suffolk County); the Land Court, and the
Appeals Court, resulting in unwarranted loss of [her] two real
properties." The single justice denied the petition without a
hearing.
The crux of Kim's argument, as best we can discern from the
record before us, appears to be that the attorney or attorneys
who represented the plaintiff in the proceedings that led to the
foreclosure of Kim's condominium committed "egregious . . .
fraud[]." In Kim's view, that purported fraud rendered void any
judgments that led to the current situation. Essentially, she
appears to be arguing that the judgment against her in the
summary process action is void because the underlying
foreclosure is void.
Relief under G. L. c. 211, § 3, is properly denied "where
there are adequate and effective routes . . . by which the
petitioning party may seek relief." Greco v. Plymouth Sav.
Bank, 423 Mass. 1019, 1019 (1996). Similarly, "[r]elief in the
nature of mandamus is extraordinary, and is granted in the
discretion of the court where no other relief is available."
Murray v. Commonwealth, 447 Mass. 1010, 1010 (2006), citing
Forte v. Commonwealth, 429 Mass. 1019, 1020 (1999). See
Picciotto v. Appeals Court (No. 2), 457 Mass. 1002, 1002, cert.
denied, 562 U.S. 1044 (2010), quoting G. L. c. 249, § 4
("certiorari relief designed to correct errors 'not otherwise
reviewable by motion or by appeal'"). The petitioner bears the
burden to allege and demonstrate the absence or inadequacy of
other remedies. See, e.g., Russell v. Nichols, 434 Mass. 1015,
1016 (2001). Kim has not met, and cannot meet, this burden
where she had another adequate and effective avenue for seeking
relief: she could have appealed from the Appellate Division
decision to the Appeals Court. Indeed, Kim appealed from some
of the judgments that preceded the summary process action, and
to the extent that the issues she raises here relate to those
proceedings, she had an opportunity to raise those issues in the
earlier appeals. See note 2, supra.
3
The single justice did not err or abuse his discretion in
denying relief.3
Judgment affirmed.
Sarah S. Kim, pro se.
3
Two days prior to oral argument, Kim filed a "verified
motion to stay the proceeding(s) or dismiss the petition without
prejudice pursuant to principle governing standing and subject
matter jurisdiction; and the court's inherent authority." That
motion is denied. The claims raised therein appear to relate to
the proceedings that led, eventually, to the summary process
action that is at the root of this current appeal. They are
not, in other words, properly before the court as a part of
Kim's G. L. c. 211, § 3, petition. Kim is free to pursue those
claims in the trial court.