JASBIR MANN & Another v. JONATHAN COTTRELL & Others. ( 2023 )

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-1101
JASBIR MANN & another1
vs.
JONATHAN COTTRELL & others.2
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
This appeal requires us to consider the defendants' effort
to appeal from their unsuccessful petition for single justice
relief from certain interlocutory orders made in the underlying
Superior Court litigation. See G. L. c. 231, § 118. Because
the only order properly before us -- that of a second single
justice of this court (October 4, 2022 order) -- was correct as
a matter of law, and an appeal on the defendants' remaining
challenges is premature, we affirm the October 4, 2022 order and
dismiss the remainder of the appeal.
1 Rosemary Cote. Neither appellee filed a brief or otherwise
participated in this appeal.
2 Rebecca Cottrell and Michael Bernier. Michael Bernier was
dismissed from the underlying action.
Background. To put our decision in context, we summarize
the legal skirmishing leading up to the defendants' petition to
the single justice.
The plaintiffs bought a residential property from the
defendants. When the deal soured, the plaintiffs sued the
defendants in the Superior Court for, inter alia, breach of
contract. After litigating an initial motion to dismiss for
failure to state a claim, see Mass. R. Civ. P. 12 (b) (6), 365
Mass. 754 (1974),3 the remaining defendants, Jonathan Cottrell
and Rebecca Cottrell (defendants), answered and counterclaimed
against the plaintiffs, alleging defamation and unjust
enrichment.
The plaintiffs filed a special motion to dismiss the
counterclaim for defamation under the "anti-SLAPP statute,"
G. L. c. 231, § 59H, and the defendants opposed it,
simultaneously filing their own motion for judgment on the
pleadings. The plaintiffs, in turn, opposed the motion for
judgment on the pleadings; the defendants moved to strike that
opposition as untimely.4
3 The defendants do not challenge this ruling.
4 The defendants contend that neither the plaintiffs' special
motion to dismiss nor their opposition to the defendants' motion
for judgment on the pleadings was served and filed as
contemplated in Rule 9A of the Rules of the Superior Court
(2018). Given our conclusion that the appeal of these issues
must be dismissed, we need not resolve those questions.
2
After a hearing, the motion judge allowed the plaintiffs'
special motion to dismiss the defendants' counterclaim for
defamation and awarded attorney's fees to the plaintiffs; she
denied the defendants' remaining motion to strike the
plaintiffs' opposition and motion for judgment on the pleadings.
After the judge denied the defendants' subsequent motion
for reconsideration,5 the defendants petitioned for relief from a
single justice of this court. See G. L. c. 231, § 118. The
single justice (first single justice) denied the defendants'
petition, concluding that the defendants had failed to
demonstrate that the judge erred or abused her discretion, and
citing to Jet-Line Servs., Inc. v. Selectmen of Stoughton, 25
Mass. App. Ct. 645, 646 (1988).
When the first single justice denied the defendants'
subsequent motion for reconsideration, the defendants filed a
notice of appeal. In the October 4, 2022, order, the single
justice then sitting (second single justice) dismissed the
appeal on the grounds that "[t]here is no right of appeal from a
single justice's denial of a petition under G. L. c. 231, § 118
(first par.)."
5 The judge also denied the defendants' motion for discovery but
allowed their motion to stay the award of attorney's fees
pending appeal.
3
The defendants filed a notice of appeal to a panel of this
court. While there is some disparity between the defendants'
notice of appeal and what they argue in their briefs, we
understand them to challenge the orders of the first and second
single justices and the motion judge's order allowing the
special motion to dismiss the defendants' defamation
counterclaim. Additionally, they purport to appeal from the
motion judge's orders denying their motion for judgment on the
pleadings, and their motions for reconsideration, discovery, to
strike an opposition, to reply to the plaintiffs' request for
fees, and for a stay of proceedings.6
Discussion. Even assuming that the defendants properly
preserved all of the arguments made in their brief, see Mass. R.
A. P. 3 (c), as appearing in 481 Mass. 1603 (2019), the only
challenge properly before us is to the propriety of the second
single justice's October 4, 2022, order striking the defendants'
notice of appeal from the earlier orders of the first single
justice. This decision was correct; it is well-settled that
"there is no right of appeal from the denial of a petition under
6 It appears from the defendants' briefing that as to these
motions, they press only a motion to stay, and only as to the
fee award made by the motion judge. To the extent the
defendants refer to the other rulings, they fail to support
their challenge with the necessary appellate argument. See
Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628(2019).
4
the first paragraph of [G. L. c. 231,] § 118." McMenimen v.
Passatempo, 452 Mass. 178, 189 (2008); Gibbs Ford, Inc. v.
United Truck Leasing Corp., 399 Mass. 8, 10 n.8 (1987);
Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 614
(1980).
The defendants' efforts to appeal from the rulings of the
motion judge in the Superior Court are likewise unavailing, but
on the grounds that they are premature. Each of the challenged
rulings by the motion judge was interlocutory, a fact the
defendants themselves appear to acknowledge. See Lieber v.
President & Fellows of Harvard College (No. 1), 488 Mass. 1015,
1016 n.3 (2021) (denial of cross-motions for judgment on the
pleadings an "interlocutory ruling"); Brum v. Dartmouth, 428
Mass. 684, 687 (1999) (same, ruling on motion to dismiss).
Their argument that the doctrine of present execution
applies here to entitle them to review of those rulings is not
persuasive. Even if the judge's rulings on each motion were
"collateral to the merits of the parties' dispute," as required
to bring the doctrine to bear, "the ruling[s] [do] not interfere
with [the defendants'] rights in a way that cannot be remedied
in an appeal from a final judgment." Matter of Hamm, 487 Mass.
394, 401 (2021). See CP 200 State, LLC v. CIEE, Inc., 488 Mass.
847, 850-851 (2022) (present execution applicable to, e.g.,
claims of immunity, but not, e.g., discovery order). Cf. Fabre
5
v. Walton, 436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9(2004) (doctrine of present execution applies to denial of
special motion to dismiss because loss of protection for
petitioning activity cannot be remedied on appeal from final
judgment). Where the defendants have failed to demonstrate the
doctrine of present execution applies to any of the
interlocutory rulings at issue here, appellate review of those
rulings is premature, and the appeal must be dismissed. See
Amherst Community Tel., Inc. v. Guidera, 97 Mass. App. Ct. 904,
906 (2020).
Conclusion. The October 4, 2022 order of the single
justice is affirmed. The appeal is otherwise dismissed, and the
case is remanded to the Superior Court for resolution of the
remaining claims.
So ordered.
By the Court (Wolohojian,
Singh & Hand, JJ.7),
Clerk
Entered: July 21, 2023.
7 The panelists are listed in order of seniority.
6