Mooney v. Warren

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14-P-523 Appeals Court
JEANNE SWEENEY MOONEY vs. SETTI D. WARREN.
No. 14-P-523.
Middlesex. December 4, 2014. - March 5, 2015.
Present: Cohen, Fecteau, & Massing, JJ.
Practice, Civil, Interlocutory appeal.
Civil action commenced in the Superior Court Department on
September 6, 2013.
A motion to dismiss was heard by Dennis J. Curran, J.
Angela Buchanan Smagula, Assistant City Solicitor, for the
defendant.
Cary Gianoulis for the plaintiff.
FECTEAU, J. The defendant, Setti D. Warren, appeals from
an order of a judge of the Superior Court that denied his
motion, filed pursuant to Mass.R.Civ.P. 12(b)(6) and (9), 365
Mass. 754 (1974), to dismiss the plaintiff's complaint. His
motion claimed that a prior order in the Federal court that
denied the plaintiff's motion to amend her complaint to add
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claims there against the defendant in his individual capacity
barred the plaintiff's claims here as res judicata. Because we
consider his appeal premature, we dismiss it.
Background. In brief, on or about March 15, 2013, the
plaintiff, Jeanne Sweeney Mooney, brought a multiple count
complaint in the United States District Court for the District
of Massachusetts against Warren, in his official capacity as the
mayor of the city of Newton, and others, in which she alleged
conspiracy and deprivation of civil rights pursuant to 42 U.S.C.
§§ 1983 and 1985, as well as numerous pendent State law claims,
all in connection with certain events alleged while Mooney
worked with the Newton police department.
Mooney moved to amend her complaint to include counts
against Warren in his personal capacity on August 19, 2013; this
motion, opposed by the defendants in that action, was denied on
September 4, 2013.1 On September 6, 2013, Mooney filed her
complaint in Superior Court alleging the same claims she had
sought to add to the Federal complaint. On October 4, 2013,
Warren filed a motion to dismiss on res judicata grounds, which
was heard on January 9, 2014. On January 30, 2014, a judge of
the Superior Court issued a memorandum of decision and order,
denying the motion in its entirety. This appeal followed.
1
We understand that the Federal case is still pending.
3
Discussion. We need not reach the merits of the appeal
because Warren has improperly filed an appeal from an
interlocutory order. See Brum v. Dartmouth, 428 Mass. 684, 687
(1999) (denial of motion to dismiss is an interlocutory ruling
that is not immediately appealable until the final disposition
of the case because it is not a final order); Ruggiero v.
Giamarco, 73 Mass. App. Ct. 743, 746-747 (2009) (generally, a
litigant may not pursue an immediate appeal from an
interlocutory order unless authorized by rule or statute). As
noted by the defendant, there are two exceptions to this rule.
One exception allows the litigant to file for relief by
petitioning for review of the order by a single justice of the
Appeals Court, who may, after review, authorize an interlocutory
appeal of the order to a panel of the Appeals Court. Ruggiero,
supra at 747. G. L. c. 231, § 118, first par. See McMenimen v.
Passatempo, 452 Mass. 178, 187 (2008). That was not done here.
Instead, Warren claims a right of immediate appeal under the
second exception, the doctrine of present execution.
Specifically, Warren claims a right to an immediate appeal
under that doctrine because his motion was based on the ground
of res judicata, which, he contends, without authoritative
support, is similar to a claim of governmental immunity. It is
not similar. See Elles v. Zoning Bd. of Appeals of Quincy, 450
Mass. 671, 674 (2008) (interlocutory orders relating to claims
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of government immunity from suit are subject to the doctrine
because "[t]he right to immunity from suit would be 'lost
forever' if an order denying it were not appealable until the
close of litigation . . . . ," quoting from Brum v. Dartmouth,
supra at 688).2 See also Breault v. Chairman of the Bd. of Fire
Commrs. of Springfield, 401 Mass. 26, 31 (1987), cert. denied
sub nom. Forastiere v. Breault, 485 U.S. 906 (1988). The
defendant's contention fails because a claim of immunity "'is
one of freedom from suit, [wherein] the defendant's right will
be lost forever unless that right is determined now,' whereas
'if the asserted right to immunity is but a right to freedom
from liability . . . [the defendant's] right could be vindicated
fully on appeal after trial.'" Marcus v. Newton, 462 Mass. 148,
152 (2012), quoting from Breault v. Chairman of the Bd. of Fire
Commrs. of Springfield, supra. A defense based upon res
judicata, even if such could be established, is not the
equivalent of "freedom from suit" but is, instead, "freedom from
liability."
Nor is his contention sufficiently similar to other
situations determined as appropriate under the doctrine to
warrant interlocutory appeal, such as from the denial of a
2
We need not address whether the defendant's claim under
the present execution doctrine also fails under the second part
of the test, namely, whether "the matter is 'collateral' to the
merits of the controversy." Elles v. Zoning Bd. of Appeals of
Quincy, supra.
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special motion to dismiss under the "anti-SLAPP" statute, G. L.
c. 231, § 59H, see Fabre v. Walton, 436 Mass. 517, 521-522
(2002), and in appeals from disqualification of counsel, see
Maddocks v. Ricker, 403 Mass. 592, 600 (1988), and Borman v.
Borman, 378 Mass. 775, 780-782 (1979). Contrast Baker v.
Hobson, 62 Mass. App. Ct. 659, 663-664 (2004) (where other
claims remained pending so that parties would have to continue
litigation regardless of outcome of any interlocutory appeal,
doctrine of present execution not applicable). This case does
not warrant application of this limited exception but rather
falls within the general rule against full review of
interlocutory orders. "The policy underlying this rule is that
a party ought not to have the power to interrupt the progress of
the litigation by piecemeal appeals that cause delay and often
waste judicial effort in deciding questions that will turn out
to be unimportant." Fabre, supra at 521 (quotations and
citation omitted).
Contrary to the defendant's contention, a failure to allow
interlocutory appeal here does not result in the defendant's
rights to a disposition based upon res judicata being "lost
forever," nor does it mean that appeal from a final adverse
judgment, if any, would be futile. Moreover, other avenues for
dispositive action remain open to him, such as a motion for
summary judgment. As we made clear in R.J.A. v. K.A.V., 34
6
Mass. App. Ct. 369, 374-375 (1993), "merely causing a party to
be subjected to the delay and expense inherent in further
litigation does not make such an order 'effectively
unreviewable' under [Borman, supra at 780]," nor does it create
"the sort of practically incorrectable present execution
recognized by Borman and its progeny []or irremediable hardship
of the kind that has sometimes been deemed to justify immediate
appeal under the analogous 'collateral order' doctrine in
Federal courts." Thus, we see no valid reason to conclude that
the doctrine would allow for the immediate appeal of the denial
of the motion in this circumstance.
Accordingly, we dismiss Warren's appeal.
So ordered.