JAYNE SILVA v. SHERRY STANLEY & Others (And a Consolidated Case).

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-922
23-P-437

JAYNE SILVA

vs.

SHERRY STANLEY & others1 (and a consolidated case).2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following her purchase of a foreclosed property located at

405 Granite Street in Worcester, the plaintiff, Jayne Silva,

filed a summary process complaint in the Housing Court against

the defendants, Sherry Stanley and adult members of Stanley's

family (hereinafter the defendants or Stanley), all of whom were

Isabella Stanley, Rosalie Stanley, Vanessa Stanley, and
1

Joanna Stanley. At various points throughout this litigation,
Stanley's children, Isabella, Rosalie, Joanne and Vanessa, have
been named as defendants. In addition, at times, some or all of
them have been included in notices of appeal. For ease of
reference, we refer to the defendants collectively, or to
Stanley singularly. We note that only Sherry Stanley has
participated in this appeal.

2 Jayne Silva vs. Sherry Stanley & others, case no. 23-P-
473.
occupants of the property. Before us are two appeals arising

from the summary process action. In case no. 23-P-437, Stanley

appeals from an order of a single justice of this court

affirming a Housing Court order made pursuant to G. L. c. 261,

§§ 27A-27D. The single justice appeal concerned the denial of a

waiver of interim monthly use and occupancy payments ordered by

a judge of the Housing Court while awaiting trial in the summary

process case. Ultimately, Silva obtained a judgment of

possession from which Stanley appealed. As we discuss in more

detail later, Stanley's appeal from the summary process judgment

was dismissed for failure to post an appeal bond and make use

and occupancy payments while her appeal was pending. In case

no. 22-P-922, Stanley seeks review of the dismissal of that

latter appeal as well as the order of another single justice

striking her notice of appeal from the affirmance of the bond

order. The cases were paired for oral argument, and we have

consolidated the two appeals for the purpose of argument and

decision. For the reasons that follow, we dismiss case no. 23-

P-437 as moot, and we affirm the orders at issue in case no. 22-

P-922.

2
Background. We summarize only those facts that are

relevant to our discussion of the issues raised on appeal.3 The

property at the center of this litigation is a five-bedroom

residence where Stanley has lived with her children for many

years. Silva acquired the property following foreclosure of a

mortgage granted by Stanley's former husband to Wells Fargo

Bank, N.A. On March 1, 2021, Silva brought a summary process

action seeking possession of the property. While the summary

process case was pending, Stanley was ordered to make monthly

payments (in the amount of $1,100) to Silva for her use and

occupancy of the property. Stanley then sought a waiver of the

payments, claiming, among other things, that she was indigent

and that her obligation to make the payments should be waived as

"extra fees and costs" under G. L. c. 261, §§ 27A-27G (the

Indigent Court Costs Law or indigency statute).4 The Housing

3 In addition, we do not include every single justice
petition, motion for reconsideration, or interim order in our
summary.

4 "Under the indigent Court Costs Law, G. L. c. 261, §§ 27A-
27G, indigent parties are able to obtain waivers or reductions
of various fees and costs (including, for example, filing fees,
fees related to the service of process, and appeal bond costs)
incurred while litigating a summary process action." Adjartey
v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 840
(2019). Recently, in Frechette v. D'Andrea, 494 Mass. 167, 169
(2024), the court ruled that use and occupancy payments required
of an indigent party under G. L. c. 239, § 5 (e) may not be
waived, substituted, or paid by the Commonwealth under the

3
Court judge rejected this argument and denied the motion on

September 9, 2021. Stanley appealed to a single justice of this

court pursuant to G. L. c. 261, § 27D. The single justice also

concluded that the indigency statute offered no basis for relief

and affirmed the order of the Housing Court on September 23,

2021. Stanley's appeal from the order of the single justice is

the subject of case no. 23-P-437.5

While the appeal in case no. 23-P-437 was pending, Silva

filed a motion for summary judgment in the Housing Court, which

was allowed on May 9, 2022, and a judgment of summary process

entered against all defendants on May 10, 2022. Stanley filed a

notice of appeal from the summary process judgment on May 20,

2022. Shortly thereafter, on May 24, 2022, Silva filed a motion

to set an appeal bond pursuant to G. L. c. 239, § 5.6 Following

a hearing held on June 2, 2022, a different judge from the

indigency statute because such payments do not constitute an
"extra fee or cost" as defined by the statute.

5 We note that ordinarily such appeals are not permitted
and, in fact, Stanley's notice of appeal from the single
justice's order was originally struck. However, on Stanley's
appeal from the order striking her notice of appeal, a different
panel of this court reinstated the appeal in an unpublished
memorandum and order. Jayne Silva v. Sherry Stanley, 102 Mass.
App. Ct. 1106 (2023).

6 G. L. c. 239, § 5 (c) requires a defendant who has lost a
summary process case to post bond (an appeal bond) as a
condition of prosecuting an appeal.

4
Housing Court determined that Stanley was indigent but had not

identified a nonfrivolous issue to raise on appeal and therefore

was not entitled to a waiver of the obligation to post a bond.

See G. L. c. 239, §§ 5 & 6. The judge set the bond at $26,400.

The judge further ordered that Stanley pay Silva $1,100 per

month for use and occupancy of the premises (collectively "the

bond order"). Stanley appealed the bond order to a single

justice of this court pursuant to G. L. c. 239, § 5 (f). The

single justice conducted a hearing on June 21, 2022, and

subsequently affirmed the bond order. Stanley filed a motion

for reconsideration, which was denied on July 1, 2022. She then

filed an appeal from the order of the single justice affirming

the bond orders on September 8, 2022. The notice of appeal was

subsequently struck by a different single justice, and Stanley

appealed from that order. That order was the original subject

of case no. 22-P-922.

When Stanley did not comply with the bond order described

above, Silva filed a motion in the Housing Court to dismiss

Stanley's appeal from the summary process judgment. Following a

hearing on the motion, a judge of the Housing Court concluded

that there was a material violation of the bond order and,

5
ultimately, dismissed Stanley's appeal.7 Stanley's appeal from

the order dismissing her appeal from the summary process

judgment is also the subject of case no. 22-P-922.8

Discussion. 1. Case no. 23-P-437. As we have discussed,

this appeal arises from an order requiring Stanley to make use

and occupancy payments pending trial in the summary process

action. Once Silva's motion for summary judgment was allowed

and a judgment of possession was entered, all remaining issues

raised by the defendants, including claims of equal protection,

due process, and application of the indigency statute as

articulated in Stanley's brief, were rendered moot because the

defendants are no longer aggrieved by the order at issue. Put

another way, the defendants no longer have a personal stake in

the outcome of this appeal. See Maroney v. Planning Bd. of

7 Though not relevant to our analysis, we note that the
order of dismissal was stayed for a period of time and any issue
regarding the timeliness of Stanley's notice of appeal was
resolved in her favor.

8 Although it does not appear that a separate assembly was
prepared by the Housing Court for the appeal from the dismissal
of the defendant's appeal, the parties and the court have
treated the appeal in case no. 22-P-922 as encompassing that
order. Given the confusion caused by the multiple appeals, both
plenary and to the single justice, and in the interest of
judicial economy, we treat the appeal from the Housing Court
order dismissing the defendant's appeal for failure to comply
with the bond order as properly before us.

6
Haverhill, 97 Mass. App. Ct. 678, 683-684 (2020). Accordingly,

the appeal in case no. 23-P-437 is dismissed as moot.

2. Case no. 22-P-922. a. Single justice order. Passing

the question of the timeliness of the notice of appeal from the

single justice's order, it is well-settled that there is no

right to review of a single justice order affirming a bond

order. See Matter of an Appeal Bond (No. 1), 428 Mass. 1013,

1013 (1998), setting forth the appropriate avenue of review.

See also 21st Mtge. Corp. v. DeMustchine, 100 Mass. App. Ct.

792, 797 (2022). Accordingly, the single justice neither abused

his discretion nor committed an error of law in striking the

defendant's notice of appeal from the single justice order

affirming the bond order.

b. Dismissal of appeal from the summary process judgment.

As an initial matter, we note that this appeal is limited to

review of the appellate bond order. See Perry v. U.S. Bank

Trust, N.A., 484 Mass. 1054, 1054 (2020). By not complying with

the terms of the bond order, Stanley lost her right to full

appellate review of the underlying judgment by a panel of this

court and is entitled only to appellate review of the bond order

to determine whether her appeal was properly dismissed. Matter

of An Appeal Bond (No.1), 428 Mass. at 1013. Furthermore,

"[w]here, as here, the defendant's appeal [from the summary

7
process judgment] is dismissed for failure to [post the appeal

bond or] make [use and occupancy] payments ordered after review

under [G. L. c. 239,] § 5 (f) [by a single justice], the

dismissal is a ministerial consequence of the order made by the

single justice, which is the effective final order" (quotation

omitted). 21st Mtge. Corp. v. DeMustchine, 100 Mass. App. Ct.

at 798. Accordingly, we do not consider the validity of the

initial order entered in the Housing Court setting the bond and

assessing the use and occupancy amount. Instead, we review the

order of the single justice for an abuse of discretion or other

error of law. Id.

We discern no abuse of discretion. Under G. L. c. 239,

§ 5 (f), the single justice reviews de novo requests for waiver

of the appeal bond or challenges to the amount of use and

occupancy ordered in a given case. Here, the single justice

conducted a hearing, at which all parties were present, and

reviewed all relevant submissions. Although her review is de

novo, it is apparent that the single justice was persuaded by

the reasoning of the Housing Court judge who concluded that

Stanley had failed to demonstrate that she had nonfrivolous

defenses. "Defenses are frivolous if there is no reasonable

expectation of proving the defenses alleged." Tamber v.

Desrochers, 45 Mass. App. Ct. 234, 237 (1998). In this case,

8
although our review is for abuse of discretion, we have

carefully reviewed all the claims raised by Stanley in her

appellate brief and conclude that she failed to meet her burden

of specifying a nonfrivolous defense. We further note that to

the extent Stanley advanced claims under the indigency statute,

those arguments have been foreclosed by the court's decision in

Frechette v. D'Andrea, 494 Mass. 167, 169 (2024). (See note 4,

supra.)

Accordingly, we affirm the order dismissing Stanley's

appeal. In doing so, we note that while the outcome appears

harsh, Stanley was notified on numerous occasions that she was

risking the dismissal of her appeal by not complying with the

bond order. Thus, in the circumstances presented, despite the

defendant's pro se status, we have no doubt that Stanley was

well-informed of the consequences of her decisions.

Conclusion. For the reasons stated above, the defendant's

appeal in case no. 23-P-437 is dismissed as moot, and the

Housing Court's order of dismissal as well as the single justice

9
order striking the defendant's notice of appeal, at issue in

case no. 22-P-922, are affirmed.

So ordered.

By the Court (Vuono, Shin &
Toone, JJ.9),

Clerk

Entered: September 20, 2024.

9 The panelists are listed in order of seniority.

10