#### 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.

This court concluded that, in a civil action, an order of a Superior Court judge denying the defendant’s motion to dismiss on grounds of res judicata was not immediately appealable under the doctrine of present execution. [138-140]

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 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 *138September 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.

*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 a 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 Warren, 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), quoting from *Brum, supra*at 688 (interlocutory orders relating to claims of governmental 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”).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). Warren’s contention fails because a claim *139of 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, 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 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 Warren’s contention, a failure to allow interlocutory appeal here does not result in his 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 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 *140immediate 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.*

1

We understand that the Federal case is still pending.

2

We need not address whether Warren’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.*