BETRESADIK TESSEMA vs. CARABETTA ENTERPRISES, INC.

BETRESADIK TESSEMA vs. CARABETTA ENTERPRISES, INC.

435 Mass. 1007

November 30, 2001.

Betresadik Tessema (petitioner) appeals, pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), from the denial by a single justice of this court of both a petition for a "writ of mandamus and prohibition," and of a motion for clarification. A Superior Court judge had denied a request by the petitioner for a free transcript of a December 15, 2000, hearing. The petitioner sought the material in order to prepare an appeal.

Rule 2:21 applies when the single justice denies relief from a challenged interlocutory ruling in the trial court. S.J.C. Rule 2:21 (1), 421 Mass. 1303 (1995). Here, the petitioner challenges the Superior Court judge's denial of what appears to be a postjudgment (and, in this instance, not interlocutory) denial of a request for a free transcript.

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As a result, we do not consider rule 2:21 to apply because the petitioner has not identified an interlocutory ruling he is challenging. Although we often have authorized similar appeals to proceed in the regular course, we do not do so here. The petitioner has not indicated either that he sought to pursue the alternative provided by G. L. c. 261, § 27D, or that it is not applicable. We conclude, therefore, that he could not establish, if he were to proceed with an appeal in the regular manner, that he is entitled to relief in the nature of mandamus. See Callahan v. Superior Court, 410 Mass. 1001 (1991) (relief in nature of mandamus granted only to prevent failure of justice in instances where there is no alternative remedy). [Note 1]

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

Betresadik Tessema, pro se.

FOOTNOTES

[Note 1] If we were to treat the Superior Court's order as interlocutory, the petitioner's appeal under S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), would fail because he has not demonstrated that review could not adequately be obtained on appeal or by other available means. See S.J.C. Rule 2:21 (2).