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revision and are superseded by the advance sheets and bound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

SJC-11767

             EDGAR RODRIGUEZ1   vs.   CITY OF SOMERVILLE.


                           July 20, 2015.


Massachusetts Tort Claims Act. Moot Question. Practice, Civil,
     Moot case, Presentment of claim under Massachusetts Tort
     Claims Act, Interlocutory appeal. Governmental Immunity.
     Municipal Corporations, Governmental immunity, Liability
     for tort. Notice, Claim under Massachusetts Tort Claims
     Act.


     After the plaintiff, Edgar Rodriguez acting on behalf of
his minor son Rodrigo, commenced this negligence action against
the city of Somerville (city), the city filed a motion to
dismiss pursuant to Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754
(1974), claiming that the plaintiff failed to meet the
presentment requirements set forth in the Massachusetts Tort
Claims Act (Act). See G. L. c. 258, § 4. A judge in the
Superior Court denied the motion, concluding that the letter
satisfied the statutory requirements. The city appealed, and in
doing so argued that the appeal, which was interlocutory, was
proper pursuant to the doctrine of present execution. The
Appeals Court concluded that the doctrine of present execution
does not apply and dismissed the appeal. See Rodriguez v.
Somerville, 86 Mass. App. Ct. 1 (2014). The case is now before
this court on further appellate review.

     Background. The essential background, as set forth in the
Appeals Court's decision, is as follows:

         "On April 14, 2011, Rodrigo Rodriguez, a second grade
    student at the Argenziano School in [the city], was injured

    1
        As father and next friend of Rodrigo Rodriguez.
                                                                  2


    when a metal door frame fell off the front door of the
    school and struck him in the head. On May 11, 2011, an
    attorney representing the minor and his parent and next
    friend, Edgar Rodriguez, sent a letter to the mayor of [the
    city]."

Id. at 2. The plaintiff maintains that the letter was meant to
satisfy the presentment requirements of G. L. c. 258, § 4, and
in his complaint filed on March 29, 2013, alleged that "[t]imely
and proper presentment was made to [the city] pursuant to [G. L.
c. 258, § 4]."2

     Discussion. 1. Mootness. We address, as an initial
matter, the plaintiff's motion to dismiss the city's appeal to
this court as moot. He argues that the presentment question is
moot because the original pleadings in the case have been
superseded by subsequent pleadings, filed while this appeal has
been pending. Among other things, the plaintiff has filed an
amended complaint; the city has, in turn, filed an amended
answer; and additional parties on both sides have been joined.
None of this, however, negates the underlying issue regarding
whether the plaintiff made proper presentment to the city in the
first instance, and whether, as the city contends, the appeal is
proper pursuant to the doctrine of present execution. If the
city is correct that presentment was improper and that the
plaintiff's original complaint should have been dismissed, the
city would no longer be a party to the case, regardless of any
subsequent filings or proceedings in the trial court. The
city's appeal, therefore, is not moot.



    2
        General Laws c. 258, § 4, provides in relevant part:

         "A civil action shall not be instituted against a
    public employer on a claim for damages . . . unless the
    claimant shall have first presented his claim in writing to
    the executive officer of such public employer within two
    years after the date upon which the cause of action arose,
    and such claim shall have been finally denied by such
    executive officer in writing . . . . The failure of the
    executive officer to deny such claim in writing within six
    months after the date upon which it is presented, or the
    failure to reach final arbitration, settlement or
    compromise of such claim according to the provision of
    section five, shall be deemed a final denial of such
    claim."
                                                                   3


     2. Present execution. We next consider whether the appeal
is proper under the doctrine of present execution. Generally,
"an aggrieved litigant cannot as a matter of right pursue an
immediate appeal from an interlocutory order unless a statute or
rule authorizes it." Elles v. Zoning Bd. of Appeals of Quincy,
450 Mass. 671, 673-674 (2008). Pursuant to the doctrine of
present execution, however, "an interlocutory 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" (citations and quotations omitted).
Shapiro v. Worcester, 464 Mass 261, 264 (2013). "Orders denying
motions to dismiss based on immunity from suit fall into this
limited class of cases" because they are "collateral to the
rights asserted in the underlying action" and "the right to
immunity from suit would be lost forever if such orders were not
appealable until the close of litigation." Id. Accordingly, we
have previously held that the doctrine of present execution
applies in cases involving claims of immunity from suit pursuant
to G. L. c. 258, § 10. See Kent v. Commonwealth, 437 Mass. 312,
315-317 (2002) (denial of motion to dismiss based on immunity
from suit under to G. L. c. 258, § 10 [j], immediately
appealable pursuant to doctrine of present execution).

     Here, the question is whether a claim of defective
presentment pursuant to G. L. c. 258, § 4, is similarly
immediately appealable. We conclude that it is, as we similarly
concluded in Shapiro v. Worcester, 464 Mass at 264. In the
Shapiro case we considered whether the doctrine of present
execution authorized the city of Worcester to seek interlocutory
review of the denial of its motion to dismiss as it "relate[d]
to the retroactivity of the presentment requirement." Id. at
265. We held that it did because

    "[a]s with the exceptions to the waiver of sovereign
    immunity, the presentment requirement is collateral to the
    substantive aspects of the Act, and the city's right to
    avoid harassing litigation would be lost forever if it were
    unable to appeal immediately the judges' orders that the
    presentment requirement does not apply
    retroactively . . . ."

Id. That the Shapiro case involved a question of retroactivity,
and this case does not, is of no moment. The presentment
requirement protects government officials from having to face
unnecessary and potentially harassing litigation. Allowing an
appeal on the basis that presentment was deficient furthers that
                                                                   4


important public interest. See Daveiga v. Boston Pub. Health
Comm'n, 449 Mass. 434, 435 n.2 (2007) (noting that appeal from
denial of motion to dismiss predicated on defective presentment
pursuant to G. L. c. 258, § 4, was before court pursuant to
doctrine of present execution); Bellanti v. Boston Pub. Health
Comm'n, 70 Mass. App. Ct. 401, 405-406 (2007) (noting that in
Daveiga case, this court "accepted the view that the denial of a
motion for summary judgment brought on the basis of defective
presentment related to immunity under G. L. c. 258 and was
immediately appealable under the doctrine of present
execution"). Cf. Will v. Hallock, 546 U.S. 345, 352-353 (2006)
(considering Federal law analogous to present execution and
noting that "it is not mere avoidance of a trial, but avoidance
of a trial that would imperil a substantial public interest,
that counts when asking whether an order is 'effectively'
unreviewable if review is to be left until later").

     3. Presentment. Having determined that the doctrine of
present execution applies, and that the city's appeal is
therefore properly before us, we turn to the underlying question
whether the plaintiff met the presentment requirements of G. L.
c. 258, § 4.3

     Pursuant to the statute, a claimant must, prior to
instituting an action against a public employer on a claim for
damages, present his claim in writing to the appropriate
executive officer of the public employer. The purpose of the
presentment requirement is to "ensure[] that the responsible

    3
       The plaintiff argues that the city of Somerville (city)
waived the defense of defective presentment by failing to comply
with the requirements of Mass. R. Civ. P. 9 (c), 365 Mass. 751
(1974). Because proper presentment is a condition precedent,
the rule requires the plaintiff to plead performance of the
condition in his complaint. He did so. In response to the
complaint, the city filed its motion to dismiss, clearly stating
its claim of defective presentment -- that was the single basis
for the motion -- and the defense was properly raised in the
motion. See Mass. R. Civ. P. 12 (b) (6), 365 Mass. 754 (1974).
When the city subsequently filed its answer, it again raised
defective presentment as an affirmative defense, albeit not as
specifically or as particularly as it could have. Given the
circumstances of the case, and the fact that the plaintiff was
clearly on notice of the city's claim of defective presentment,
we reject the plaintiff's claim of waiver. We note as well the
city's assertion that the plaintiff raises the waiver argument
for the first time on appeal.
                                                                   5


public official receives notice of the claim so that that
official can investigate to determine whether or not a claim is
valid, preclude payment of inflated or nonmeritorious claims,
settle valid claims expeditiously, and take steps to ensure that
similar claims will not be brought in the future." Gilmore v.
Commonwealth, 417 Mass. 718 (1994), quoting Lodge v. District
Attorney for the Suffolk Dist., 21 Mass. App. Ct. 277, 283
(1985). Although the plaintiff here presented a written letter
to the appropriate official -- the mayor of the city -- the
contents of the letter were insufficient to meet the
requirements of the statute.

     A letter purporting to constitute presentment does not have
to be absolutely precise. See Martin v. Commonwealth, 53 Mass.
App. Ct. 526, 529-530 (2002), and cases cited. The letter does,
however, have to "'identify[] the legal basis of a plaintiff's
claim' and must 'not [be] so obscure that educated public
officials . . . find themselves baffled or misled with respect
to [whether] a claim' is being asserted 'which constitutes a
proper subject for suit' under G. L. c. 258." Id., quoting
Gilmore v. Commonwealth, supra at 723. The plaintiff's letter
does not meet these requirements.

     Sent by counsel then representing the plaintiff, the letter
in this case did nothing more than state that the minor son was
injured in an accident at a public school in the city and that
counsel was seeking a copy of the school's report of the
incident as well as reports of any other incidents at the same
school. The letter also stated that any bill for photocopying
or related fees should be sent to counsel's office. It appeared
to be, in essence, a public records request, and reasonably
could have been interpreted by the city as a precursor to a
potential claim, where plaintiff's counsel was simply gathering
information to determine whether the plaintiff might have a
claim to press. It did not identify any legal basis for a claim
against the city, much less actually "present" a claim that the
city could reasonably be expected to investigate.

     Under § 4, a public employer must respond to a claim by
denying it, or by arbitrating, compromising, or settling it,
within six months. See also G. L. c. 258, § 5 (detailing
arbitration, compromise, and settlement of claims made under
Act). The purpose of presentment is to give fair notice of a
claim, and of its nature and circumstances. If a purported
presentment does not fulfil that purpose, the public employer
cannot meaningfully consider the claim or properly respond. The
letter in this case did not serve the statutory purpose: it did
                                                                  6


not reasonably put the city on notice that the plaintiff was
presently making a claim against it. Presentment was therefore
deficient. On that basis, the city's motion to dismiss the
plaintiff's complaint should have been allowed.

     Conclusion. The plaintiff's motion to dismiss the appeal
as moot is denied. The Superior Court judge's order denying the
motion to dismiss is reversed.

                                  So ordered.


     Jason D. Grossfield, Assistant City Solicitor, for the
defendant.
     David M. Hass for the plaintiff.
