HADLEY v. TOWN OF WESTPORT (2022)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs appeal from an order of a single justice of this court, striking their earlier notice of appeal from orders issued by two other single justices and from various interlocutory orders of the Superior Court. We affirm.

While the case has a convoluted procedural history, only the following facts are necessary to understand the issues in this appeal. In July 2021 the plaintiffs sought interlocutory review under G. L. c. 231, § 118, first par., of an order issued by a judge of the Superior Court. A single justice of this court (first single justice) denied the petition on October 25, 2021, concluding that the plaintiffs failed to show that the Superior Court judge abused her discretion or committed a clear error of law warranting interlocutory relief. On November 1, 2021, the plaintiffs filed a notice of appeal from the first single justice's order.

On November 4, 2021, a different single justice (second single justice) struck the November 1 notice of appeal on the ground that there is no right of appeal from the denial of a petition under G. L. c. 231, § 118, first par. The plaintiffs then sought reconsideration of the denial of the petition, which the first single justice denied on November 17, 2021.

On December 15, 2021, the plaintiffs filed another notice of appeal, purporting to appeal from the October 25 and November 17, 2021, orders of the first single justice; the November 4, 2021, order of the second single justice; the underlying order of the Superior Court judge, dated July 1, 2021; and other Superior Court orders dated September 14 and October 18, 2021. On December 17, 2021, a third single justice struck the December 15 notice of appeal on the grounds that the first single justice's orders were not appealable, the notice of appeal was untimely as to the second single justice's order, and notices of appeal from Superior Court orders had to be filed in the Superior Court. The third single justice further declined to transmit the notice of appeal to the Superior Court, concluding that “the notice [was] plainly untimely and purport[ed] to appeal interlocutory rulings.”

On January 7, 2022, the plaintiffs filed a notice of appeal from the order of the third single justice. That notice of appeal also designated, again, the October 25 and November 17, 2021, orders of the first single justice; the November 4, 2021, order of the second single justice; and the Superior Court orders of July 1 and October 18, 2021. This is the appeal that is now before us.

We review the third single justice's December 17, 2021, order to determine whether he erred as a matter of law or otherwise abused his discretion by striking the December 15, 2021, notice of appeal. See Troy Indus. v. Samson Mfg. Corp., 76 Mass. App. Ct. 575, 581 (2010). We see neither error of law nor an abuse of discretion. The third single justice was correct to conclude that the orders of the first single justice were not appealable. As the Supreme Judicial Court has stated on many occasions, “there is no right of appeal from the denial of a petition under the first paragraph of [G. L. c. 231,] § 118.” McMenimen v. Passatempo, 452 Mass. 178, 189 (2008). The plaintiffs raise no discernible argument why this settled principle does not apply here.

Likewise, the third single justice was correct to conclude that the December 15, 2021, notice of appeal was untimely as to the second single justice's order and the Superior Court orders, as the notice was filed more than thirty days after the date that each of those orders issued. See Mass. R. A. P. 4 (a) (1), as appearing in 481 Mass. 1606 (2019). Moreover, aside from the untimeliness of the notice, the plaintiffs had no right to appeal the Superior Court orders because they are interlocutory. We are unpersuaded by the plaintiffs’ reliance on the doctrine of present execution, which is a “narrow exception” reserved for situations “where the interlocutory ruling ‘will interfere with rights in a way that cannot be remedied on appeal’ from the final judgment, and where the matter is ‘collateral’ to the merits of the controversy.” Elles v. Zoning Bd. of Appeals of Quincy, 450 Mass. 671, 674 (2008), quoting Maddocks v. Ricker, 403 Mass. 592, 597-600 (1988). The plaintiffs cite no authority that supports their contention that this case falls within that narrow exception.

To the extent the plaintiffs purport to appeal directly from the orders of the first and second single justices and from the Superior Court orders, the appeal is untimely and procedurally improper for the reasons we have just stated.⁴

Order of the single justice dated December 17, 2021, affirmed.

FOOTNOTES

4.   The defendants have requested that we award them appellate attorney's fees and double costs on the ground that the plaintiffs’ appeal is frivolous. There is significant force to this request. Nevertheless, with that caution, we deny the defendants’ request in the exercise of our discretion.