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Patel v. Martin

Supreme Judicial Court of Massachusetts, Norfolk

November 28, 2018

JAY PATEL & another [1]
v.
LEO MARTIN & others.[2]

          Heard: September 6, 2018.

         Civil action commenced in the Superior Court Department on December 23, 2015. A motion for a protective order was heard by Jeffrey A. Locke, J.

         The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.

          Peter S. Brooks (Gregory M. Boucher also present) for the defendants.

          David V. Lawler for the plaintiffs.

          Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

          GANTS, C.J.

         The primary issue on appeal is whether a party in a civil case has the right to an immediate appeal from a discovery order under the doctrine of present execution. The defendants here argue that, after the motion judge ordered the disclosure of communications that they contend are protected from disclosure by the attorney-client privilege, they will be irremediably harmed if they cannot immediately appeal from that order. We conclude that a party has no such right of interlocutory appeal. In so holding, we note that a party nevertheless retains two other avenues to seek immediate appellate review of an interlocutory order: by requesting the trial court judge to report the decision to the Appeals Court under Mass. R. Civ. P. 64 (a), as amended, 423 Mass. 1403 (1996); or by petitioning for redress from a single justice of the Appeals Court under G. L. c. 231, § 118, first par.

         Although the appeal is not properly before us under the doctrine of present execution, we exercise our discretion under our superintendence authority to reach the merits and conclude that we must remand the matter to the motion judge for further factual findings.

         Background.

         We summarize the facts as alleged in the complaint and that are undisputed in the record. In September 2012, Ellen Rea Marcus, as trustee of the Grossman Munroe Trust (trustee), executed a purchase and sale agreement with the Masonic Temple Association of Quincy, Inc. (Masons), for the purchase of the Masonic Temple in Quincy (property). Pursuant to a rider to the purchase and sale agreement, the agreement could not be assigned by the trustee without the prior written consent of the Masons. In a separate agreement executed in April 2013, the trustee assigned the rights to the property under the purchase and sale agreement to Jay Patel in return for $100, 000; Patel intended to develop a hotel on the property. On September 30, 2013, before the sale of the property closed, a fire caused severe damage to the property. Shortly thereafter, the Masons claimed that they had never consented to the assignment, refused to recognize it, and received over $6 million from an insurance claim arising from the fire. In December 2015, Patel and his "hotel-operating company," Dipika, Inc. (collectively, developer plaintiffs), brought a civil action in the Superior Court against the trustee, Seymour H. Marcus, and Leo Martin (collectively, trust defendants), claiming that they suffered economic damages from the trustee's failure to obtain the required consent for the assignment of the property.

         During the course of discovery, the developer plaintiffs noticed the deposition of David Levin, the attorney who represented the Masons with respect to the sale of the property and who had also routinely represented the trust defendants on real estate legal matters for over twenty years. The trust defendants moved for a protective order to bar Levin from disclosing his confidential attorney-client communications with them, claiming that Levin represented them as well as the Masons in the real estate transaction concerning the property, even though Levin took the position that he had represented only the Masons.

         After an evidentiary hearing, the motion judge found that there was an attorney-client relationship between Levin and the trust defendants after the fire regarding insurance claims and third-party claims arising from the fire, but that, with respect to the purchase and sale of the property, Levin represented the Masons, not the trust defendants. He therefore ruled that communications between Levin and the trust defendants before the fire were not protected by the attorney-client privilege.

         The trust defendants filed a notice of appeal in the Superior Court seeking review by an Appeals Court panel under the doctrine of present execution and, "in an abundance of caution," also brought a petition in the Appeals Court pursuant to G. L. c. 231, § 118, first par., seeking interlocutory relief from a single justice of the Appeals Court. The single justice stayed action on the § 118 petition until a panel of the Appeals Court decided whether it had jurisdiction of the appeal under the doctrine of present execution to resolve the discovery dispute arising from the claim of attorney-client privilege. We transferred the appeal to this court on our own motion.

         Discussion.

         1. Appellate review of interlocutory orders.

         When a final judgment enters in a civil case in the Superior Court under Mass. R. Civ. P. 54, as amended, 382 Mass. 829 (1981), a party aggrieved has the right to appeal from the judgment to a panel of the Appeals Court. See G. L. c. 231, § 113. As part of that appeal, a party may claim that a judge erred in the entry of various types of interlocutory orders that were issued during the course of the civil case. If a party wishes to seek appellate review of an interlocutory discovery order before the entry of final judgment, however, the party generally has only two alternatives. First, the party may ask the judge under Mass. R. Civ. P. 64 (a) to report the interlocutory finding or order to the Appeals Court, and the judge may do so where he or she concludes that the finding or order "so affects the merits of the controversy that the matter ought to be determined by the [A]ppeals [C]ourt before any further proceedings in the trial court." Mass. R. Civ. P. 64 (a). Second, the party has the right to petition for relief under G. L. c. 231, § 118, first par., from a single justice of the Appeals Court, who may, in his or her discretion, grant the relief. The single justice also has the authority to transfer the petition to a panel of the Appeals Court, where it will be treated as a full interlocutory appeal. See McMenimen v. Passatempo, 452 Mass. 178, 187 (2008), citing CUNA Mut. Ins. Soc'y v. Attorney Gen., 380 Mass. 539, 540 (1980). But a party has no right under § 118, first par., to bring the petition directly to a panel or to seek review of the single justice's ruling by the panel. See McMenimen, supra at 189-190; Corbett v. Kargman, 369 Mass. 971, 971-972 (1976).

         However, in narrowly limited circumstances, where "an interlocutory order will interfere with rights in a way that cannot be remedied on appeal" from a final judgment, and where the order is "collateral to the underlying dispute in the case" and therefore will not be decided at trial, a party may obtain full appellate review of an interlocutory order under our doctrine of present execution. Maddocks v. Ricker, 403 Mass. 592, 596, 598 (1988). See Marcus v. Newton, 462 Mass. 148, 151-152 (2012); Borman v. Borman, 378 Mass. 775, 779-780 (1979).[3]The doctrine is intended to be invoked narrowly to avoid piecemeal appeals from interlocutory decisions that will delay the resolution of the trial court case, increase the over-all cost of the litigation, and burden our appellate courts. See Borman, supra at 779. See also Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374 (1981).

         Our doctrine of present execution is similar to the Federal "collateral order doctrine," which permits full appellate review of a small class of collateral interlocutory decisions "that are conclusive, that resolve important questions separate from the merits, and that are effectively unreviewable on appeal from the final judgment in the underlying action." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009), quoting Swint v. Chambers County Comm'n, 514 U.S. 35, 42 (1995). But, as we note later, the application of the ...


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