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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
                                                                     2


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
                                                                    4


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.
                                                                    5


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.
