NOTICE: All slip opinions and orders are subject to formal
revision and are superseded by the advance sheets and bound
volumes of the Official Reports. If you find a typographical
error or other formal error, please notify the Reporter of
Decisions, Supreme Judicial Court, John Adams Courthouse, 1
Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-
1030; SJCReporter@sjc.state.ma.us

19-P-922                                                Appeals Court

         RALPH WILBUR     vs.   MARGARET O. TUNNELL, executrix.1


                                No. 19-P-922.

         Middlesex.        February 12, 2020. - July 10, 2020.

               Present:    Massing, Neyman, & Singh, JJ.


Executor and Administrator, Claims against estate, Attorney.
     Practice, Civil, Interlocutory appeal, Party pro se.



     Civil action commenced in the Superior Court Department on
July 10, 2017.

     A motion to proceed pro se was heard by Maureen B. Hogan,
J.


     Jonas A. Jacobson for the defendant.


     MASSING, J.      This appeal concerns whether the personal

representative of an estate, who is the estate's only

beneficiary, may proceed pro se in litigation brought against

the estate by its only creditor, and whether the personal



     1   Of the estate of Arthur W. Tunnell, III.
                                                                      2


representative has the right to an immediate appeal of an order

requiring her to retain counsel.    We answer both questions in

the affirmative.

     Background.     Arthur W. Tunnell, III, died on October 11,

2016, leaving a will that named his sister, Margaret O. Tunnell,

as his sole heir.2    Margaret was appointed personal

representative of Arthur's estate on November 10, 2016.

     From March 1999 until his death, Arthur resided at a

property in Melrose, which he leased from the plaintiff, Ralph

Wilbur.    On July 10, 2017, Wilbur sued Margaret, in her capacity

as the executrix of Arthur's estate, for property damage and

loss of rental income.     Margaret, appearing without counsel,

filed a motion to dismiss the complaint.     After a hearing, in an

order entered on October 16, 2017, a Superior Court judge denied

the motion to dismiss and ordered Margaret to retain an attorney

to represent the estate.    Margaret duly retained counsel who,

months later, filed a motion styled as a motion for

reconsideration of the judge's order of October 16, 2017, and

alternatively as a motion seeking permission for Margaret to

proceed pro se.    Wilbur opposed Margaret's motion to proceed pro

se "because any judgment in [his] favor might be called into

question if the Defendant [Margaret] did not have counsel."        The


     2   For clarity, we refer to the Tunnells by their first
names.
                                                                   3


judge denied the motion on November 27, 2018.    On January 15,

2019, Margaret, through counsel, filed in the Superior Court a

motion to file a late notice of appeal, see Mass. R. A. P.

4 (c), as amended, 378 Mass. 928 (1979).3   The motion was allowed

on January 18, 2019, and Margaret thereupon filed a notice of

appeal from the order denying the motion to proceed pro se.4

     Discussion.   1.   Doctrine of present execution.   The denial

of Margaret's motion to proceed pro se was an interlocutory

order.   "As a general rule, there is no right to appeal from an

interlocutory order unless a statute or rule authorizes it."

Maddocks v. Ricker, 403 Mass. 592, 597 (1988).    "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




     3 Rule 4 (c) of the Massachusetts Rules of Appellate
Procedure was further amended, effective March 1, 2019. See 481
Mass. 1606 (2019).

     4 On January 7, 2019, prior to filing the notice of appeal,
Margaret filed in this court a petition under G. L. c. 231,
§ 118, first par., seeking relief from the denial of her motion.
A single justice dismissed the petition as untimely under the
thirty-day statutory limitations period applicable to petitions
under G. L. c. 231, § 118, which cannot be extended. See
DeLucia v. Kfoury, 93 Mass. App. Ct. 166, 169-170 (2018). The
single justice further noted, "To the extent defendant argues
that the doctrine of present execution applies to the order at
issue, without making any determination as to the propriety of
the defendant's argument, the proper avenue of review of an
order within that doctrine is by filing a notice of appeal in
the trial court."
                                                                    4


deciding questions that will turn out to be unimportant.'"

Fabre v. Walton, 436 Mass. 517, 521 (2002), quoting Borman v.

Borman, 378 Mass. 775, 779 (1979).

    The doctrine of present execution is an exception to this

well-settled rule.   See Lynch v. Crawford, 483 Mass. 631, 634

(2019); Theisz v. Massachusetts Bay Transp. Auth., 481 Mass.

1012, 1014 (2018); Fabre, 436 Mass. at 520-521.    "Pursuant to

the present execution doctrine, an order is 'immediately

appealable if it concerns an issue that is collateral to the

basic controversy . . . and the ruling will interfere with

rights in a way that cannot be remedied on appeal from the final

judgment.'"    Commonwealth v. Delnegro, 91 Mass. App. Ct. 337,

341 (2017), quoting Rodriguez v. Somerville, 472 Mass. 1008,

1009 (2015).   Collateral issues are those "that will not have to

be considered at trial."    Maddocks, 403 Mass. at 596.

    Parties have the right to an interlocutory appeal under the

doctrine of present execution only in narrowly defined

circumstances.    For example, an interlocutory appeal is

permitted from the denial of a motion to dismiss by a government

official claiming qualified immunity.    Because the purpose of

such immunity is to protect the official from litigation itself,

if the order denying immunity was wrongfully denied and the

official was forced to go forward in the litigation, the

protection of immunity would be "lost forever."    Brum v.
                                                                     5


Dartmouth, 428 Mass. 684, 688 (1999).    For similar reasons, the

doctrine applies to claims of immunity asserted by volunteers

for nonprofit organizations under the Federal Volunteer

Protection Act and the State charitable immunity statute, see

Lynch, 483 Mass. at 632-633, 638-640, and to denials of special

motions to dismiss under the anti-Strategic Litigation Against

Public Participation statute, which is designed to protect

individuals exercising their right to petition from burdensome

retaliatory litigation, Fabre, 436 Mass. at 520-522.     See

generally H.J. Alperin, Summary of Basic Law § 4.14 (5th ed.

2014) (collecting cases applying doctrine of present execution).

    Most analogous to the case before us is the application of

the doctrine of present execution to attorney disqualification

orders in civil cases.   See Smaland Beach Ass'n v. Genova, 461

Mass. 214, 219 n.10 (2012); Maddocks, 403 Mass. at 596-600;

Borman, 378 Mass. at 780-781.   An appeal from an order of

disqualification is a collateral issue appropriate for

interlocutory review because it would "not have to be considered

at trial."   Maddocks, supra at 596.    Orders of disqualification

also cannot be remedied on appeal from a final judgment because

they "are conclusive of a party's right to counsel of his

choice," Borman, supra at 780, and cannot realistically be cured

on appeal.   See Maddocks, supra at 600 ("it is unlikely that an

appellate court would reverse a judgment and require a new trial
                                                                   6


in the absence of a demonstration, often impossible to make,

that any erroneous disqualification order significantly

prejudiced the rights of the client").5

     In this case, the requirements for the application of the

doctrine of present execution are met.    The propriety of

Margaret's representation of Arthur's estate is entirely

collateral to the merits of the case, which involves claims of

property damage and loss of rental income.   Furthermore, the

denial of Margaret's motion to proceed pro se cannot be remedied

on appeal from the final judgment, as she will have incurred

attorney's fees to defend the case -- either that, or she will

have been forced to cease defense of the estate altogether and

accept the consequences.   As Margaret's ability to proceed




     5 The doctrine of present execution does not apply to orders
disqualifying counsel in criminal cases. See Delnegro, 91 Mass.
App. Ct. at 340-343. In the criminal context, departure from
the final judgment rule is assessed under the Federal
"collateral order" exception. See Flanagan v. United States,
465 U.S. 259, 265 (1984); Delnegro, supra at 341. The
collateral order exception requires that the interlocutory
appeal "conclusively determine the disputed question[,] . . .
resolve an important issue completely separate from the merits
of the action[,] and . . . be effectively unreviewable on appeal
from a final judgment" (quotation and citation omitted). Id.
"[A] motion to disqualify counsel in a criminal case does not
satisfy the third prong . . . because it is not 'effectively
unreviewable on appeal from a final judgment.'" This is so
because a criminal defendant who demonstrates improper
disqualification has the effective remedy of obtaining a new
trial without a showing of prejudice. Id., quoting Flanagan,
465 U.S. at 265.
                                                                    7


without counsel would be "lost forever" if she were required to

retain an attorney to proceed through final judgment, the narrow

circumstances warranting an immediate appeal under the doctrine

of present execution are present here.6

     2.   Propriety of estate proceeding pro se.   The ability to

represent oneself in the courts of the Commonwealth is protected

by statute.   See G. L. c. 221, § 48 ("Parties may manage,

prosecute or defend their own suits personally, or by such

attorneys as they may engage").7   A person appearing pro se,

however, may not represent another person or entity, as doing so

would constitute the unauthorized practice of law.   See G. L.

c. 221, § 46A ("No individual, other than a member, in good

standing, of the bar of this [C]ommonwealth shall practice

law").    The purpose of this limitation on self-representation is

to "enhance the effectiveness of the judicial department,"


     6 We note that the appellate avenue taken here may not be
the most expeditious route to the desired destination. In civil
cases in all trial courts except the district and municipal
court, parties may petition a single justice of this court for
discretionary review of an interlocutory order, so long as
review is sought within thirty days of entry of the order. See
G. L. c. 231, § 118, first par.; Packaging Indus. Group, Inc. v.
Cheney, 380 Mass. 609, 614 (1980). Margaret's tardiness in
pursuing discretionary review of the order, see note 4, supra,
required her to pursue a longer route.

     7 Similarly, Federal law provides the right to proceed pro
se in civil actions in Federal court. See 28 U.S.C. § 1654 ("In
all courts of the United States the parties may plead and
conduct their own cases personally or by counsel as [permitted]
by the rules of such courts, respectively").
                                                                    8


Opinion of the Justices, 289 Mass. 607, 612 (1934), and "to

protect the public."   LAS Collection Mgt. v. Pagan, 447 Mass.

847, 850 (2006).

     Legal entities such as corporations, limited liability

companies, and trusts cannot be represented by individuals who

are not licensed to practice law.    See Braxton v. Boston, 96

Mass. App. Ct. 714, 717 (2019).     Such legal entities possess

interests "separate and apart from their shareholders and

members."   Dickey v. Inspectional Servs. Dep't of Boston, 482

Mass. 1003, 1004 (2019).   Given the advantages and protections

bestowed on the corporate and trust form, their individual

members, officers, and trustees "must bear the burdens of that

form as well."   Braxton, 96 Mass. App. Ct. at 717.    Those

burdens include the burden of hiring counsel to engage in legal

action.   See Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79, 82

(1988).

     This appeal presents the question whether the statutory

right of natural persons to represent themselves in "their own

suits" extends to the personal representative of an estate who

is also the sole beneficiary and seeks to defend the estate

against its only creditor.8   "Whether [the representative of an


     8 The one-year statute   of limitations for claims by
creditors of the estate has   run. See G. L. c. 190B, § 3-803 (a)
("a personal representative   shall not be held to answer to an
action by a creditor of the   deceased unless such action is
                                                                   9


estate] can proceed pro se and, if so, under what circumstances,

are questions that we have not yet answered."   Lowery v. Resca,

75 Mass. App. Ct. 726, 726 n.3 (2009).9

     As a general rule, the Federal Courts of Appeals have held

that when representation of an estate affects any outside

interests, whether of other beneficiaries or of creditors, a

personal representative who is not an attorney may not represent

the estate pro se.   See Malone v. Nielson, 474 F.3d 934, 937

(7th Cir. 2007); Jones v. Correctional Med. Servs., Inc., 401

F.3d 950, 952 (8th Cir. 2005); Shepherd v. Wellman, 313 F.3d

963, 970-971 (6th Cir. 2002); Pridgen v. Andresen, 113 F.3d 391,

392-393 (2d Cir. 1997).   The purpose of the general rule is to

protect third-party interests and the interests of the court.

When an estate has beneficiaries other than the personal

representative, or other creditors with claims on the estate,

litigation involving an estate cannot be treated as the

representative's "own [case] because the personal interests of




commenced within [one] year after the date of the death of the
deceased"). Wilbur is the only creditor who commenced a claim
against the estate within the limitations period. (Nothing in
the record suggests the existence of other creditors or claims
brought after the limitations period.)

     9 Executors and administrators appear to have routinely
represented estates without comment. See, e.g., Clymer v. Mayo,
393 Mass. 754 (1985); Torphy v. Reder, 357 Mass. 153 (1970);
Robinson v. Nutt, 185 Mass. 345 (1904); Pritchard v. Attorney
Gen., 77 Mass. App. Ct. 494 (2010).
                                                                     10


the estate, other survivors, and possible creditors . . . will

be affected by the outcome of the proceedings.    A non-lawyer

representative therefore would be litigating claims that are not

personal to him."     Iannaccone v. Law, 142 F.3d 553, 559 (2d Cir.

1998).

    Nonetheless, the representative of an estate may proceed

pro se in Federal court where there are no other beneficiaries

or creditors other than the litigants.    See Bass v. Leatherwood,

788 F.3d 228, 230 (6th Cir. 2015); Guest v. Hansen, 603 F.3d 15,

17 (2d Cir. 2010).     See also Pridgen, 113 F.3d at 393 ("We . . .

hold that an administratrix or executrix of an estate may not

proceed pro se when the estate has beneficiaries or creditors

other than the litigant" [emphasis added]).    "Because the

[personal representative] is the only party affected by the

disposition of the suit, he is, in fact, appearing solely on his

own behalf."   Guest, 603 F.3d at 21.    See Bass, 788 F.3d at 230

(rule prohibiting personal representative from proceeding pro se

on behalf of estate "has no role to play when the only person

affected by a nonattorney's representation is the nonattorney

herself").   When the executor is the sole beneficiary and there

are no other creditors to the estate, "the dangers that

accompany lay lawyering are outweighed by the right to self-

representation."     Guest, supra.
                                                                   11


    Like the Federal courts, other State courts generally

prohibit the personal representative of an estate from

proceeding pro se when the personal representative is not the

only beneficiary.     See Ex parte Ghafary, 738 So. 2d 778, 779-781

(Ala. 1998); Davenport v. Lee, 348 Ark. 148 (2002); Ratcliffe v.

Apantaku, 318 Ill. App. 3d 621, 627 (2000); State v. Simanonok,

539 A.2d 211, 212 (Me. 1988); Kelly v. St. Francis Med. Ctr.,

295 Neb. 650, 654-656 (2017); Kasharian v. Wilentz, 93 N.J.

Super. 479, 482 (N.J. Super. Ct. App. Div. 1967); Brown v. Coe,

365 S.C. 137, 142 (2005); State ex rel. Baker v. County Court of

Rock County, 29 Wis. 2d 1, 18-19 (1965).    The State of Florida

appears to be the only State that has addressed the precise

circumstances here.    There, as in Federal court, the personal

representative of an estate may proceed pro se "so long as only

the [personal representative of the estate] remains the sole

interested party therein."    State ex rel. Falkner v. Blanton,

297 So. 2d 825, 825 (Fla. 1974).

    In the narrow circumstances presented, where no third-party

interests other than those of the litigants are at stake, we

agree with the weight of Federal and State authority that the

personal representative ought to be able to exercise the

statutory right of self-representation.    Margaret, the sole

beneficiary of the estate, was appointed by the court to act as

personal representative to facilitate the settlement of the
                                                                 12


estate.   She is required to defend the estate in litigation

brought by its only creditor.   The personal representative's

desire to proceed pro se will not compromise or affect the

rights or interests of any beneficiaries other than herself; the

outcome of this matter will affect only the personal

representative and the sole creditor, Wilbur.     Wilbur, as a

party to the case, will be present to protect his own interests.

In these limited circumstances, the statutory right to represent

oneself in one's "own suit" permits Margaret to represent her

brother's estate.10

     Conclusion.   The order requiring the defendant to retain

counsel, and the order denying the defendant's motion for

reconsideration and request for permission to proceed pro se,

are reversed.   The defendant personal representative, pro se,

may represent the estate in this matter.

                                    So ordered.




     10We recognize that the statutorily recognized right to
self-representation may place a burden on the court and on
opposing parties. Accordingly, a party wishing to assert the
right to self-representation must do so timely -- preferably at
the commencement of the case -- and unequivocally, discharging
any previously retained counsel. See Iannaccone, 142 F.3d at
558. And although the judge's function is "to provide a self-
represented party with a meaningful opportunity to present her
case by guiding the proceedings in a neutral but engaged way,"
CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 283 (2017),
and "some leniency is appropriate," the statutes and rules of
procedure "bind a pro se litigant as they bind other litigants."
Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985).
