Suburban Electric Contracting, Inc. v. Ozdemir

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SJC-13400
SUBURBAN ELECTRIC CONTRACTING, INC. vs. SEFER OZDEMIR.1
May 26, 2023.
Supreme Judicial Court, Superintendence of inferior courts.
Interest. Practice, Civil, Interest.
The petitioner, Suburban Electric Contracting, Inc.
(Suburban), appeals from a judgment in the county court denying
its petition for relief under G. L. c. 211, § 3. We affirm.
Background. After a jury trial, Suburban was awarded
monetary damages on a breach of contract claim against the
respondent, Sefer Ozdemir. The parties cross-appealed from the
judgment. The Appellate Division of the Boston Municipal Court
Department affirmed the verdict but remanded the case for
consideration of attorney's fees and recalculation of interest,
in accordance with the terms of the underlying contract. Upon
remand, Suburban filed a motion for attorney's fees in the
amount of $31,750.99. The motion was allowed, and an amended
judgment entered in April 2021 incorporating these attorney's
fees, along with the postjudgment interest rate specified in the
contract. An execution issued on the amended judgment later the
same month totaling $65,708.26.
Over one and one-half years later, Suburban moved for the
appointment of a special process server to conduct a sale of
Ozdemir's real property in order to satisfy the amended judgment
and execution. Thereafter, counsel for Ozdemir presented a
check for the execution amount, plus the postjudgment interest
that had since accrued. Suburban refused to accept payment,
asserting that the check failed to fully satisfy the execution
1 Individually and as trustee of Golden Horn Realty Trust.
2
because it did not compensate Suburban for additional attorney's
fees and costs incurred after entry of the amended judgment.2
Suburban instead continued to litigate the motion to appoint a
special process server for the purpose of selling Ozdemir's
property. At a hearing on the motion, a judge in the trial
court declined to take action, concluding that the motion was
premature in light of Ozdemir's willingness to tender payment on
the execution amount of $65,708.26 plus postjudgment interest,
and ordered that further accrual of such interest be tolled.
The judge instructed Suburban that it would need to file a
motion if it sought to recover additional attorney's fees beyond
the $31,750.99 already incorporated into the amended judgment.
Thereafter, Suburban filed a motion to vacate the judge's
ruling tolling the accrual of postjudgment interest. Suburban
requested, in the alternative, that the tolling order be stayed
pending appeal.3 The matter came before a second judge in the
trial court, who declined to rule on the motion, observing that
Suburban was effectively seeking reconsideration of another
motion judge's ruling.4 Suburban then filed the instant petition
requesting relief from the tolling order. A single justice
denied the petition without a hearing, and this appeal followed.
Discussion. Suburban has filed a memorandum and appendix
pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001),
which requires a party challenging an interlocutory ruling of
the trial court 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." Bypassing the question whether that rule
applies in these circumstances, it is nonetheless clear from the
record that the single justice did not err or abuse his
2 At the hearing on Suburban's motion to appoint the special
process server, counsel for Suburban produced a bill itemizing
some portion of the additional fees for which it sought
compensation. However, Suburban did not file a motion for
additional attorney's fees, and the record before the single
justice does not contain an affidavit or itemization of these
fees and costs.
3 Suburban also filed a separate motion to strike the tender
of payment offered by Ozdemir. That motion was denied.
4 In response to the second motion judge's ruling, Suburban
withdrew its motion for the appointment of a special process
server.
3
discretion in denying relief. See Cook v. Carlson, 440 Mass.
1025, 1025-1026 (2003). Here, Suburban has failed to
demonstrate that the ruling it seeks to challenge "could not
adequately be addressed through the ordinary appellate process,
in an appeal . . . from the postjudgment order." Lasher v.
Leslie-Lasher, 474 Mass. 1003, 1004 (2016). See, e.g., City
Coal Co. of Springfield v. Noonan, 424 Mass. 693, 695 (1997)
(entertaining subsequent appeal concerning postjudgment interest
but declining to consider arguments as to prejudgment interest
which were apparent on face of original judgment and could have
been raised in original appeal). Indeed, in its motion to
vacate the tolling order, Suburban explicitly contemplated
pursuing an appeal. Suburban chose not to do so and, "[h]aving
failed to avail [itself] of the traditional appellate route to
obtain an effective remedy, . . . is not entitled to invoke the
extraordinary relief set forth in G. L. c. 211, § 3."
Harrington v. Deutsche Bank Nat'l Trust Co., 484 Mass. 1041,
1042 (2020), quoting Lantsman v. Lantsman, 429 Mass. 1018, 1019
(1999).
Judgment affirmed.
The case was submitted on the papers filed, accompanied by
a memorandum of law.
Alvin S. Nathanson for the petitioner.