Interlocutory Review Under Massachusetts G.L. c. 231, §118, ¶1

Despite the general rule that only final judgments are appealable, Massachusetts provides a statutory avenue by which litigants may seek to have a single justice of the Appeals Court review certain interlocutory orders entered in civil cases.  Massachusetts G.L. c. 231, §118, ¶1, provides that a party aggrieved by an interlocutory order of the Superior Court, Housing Court, Land Court, Juvenile Court or Probate Court may file a petition with the “appropriate appellate court for relief from such order.”  Such interlocutory petitions are governed by the statute and by Appeals Court’s “Standing Order Governing Petitions to the Single Justice Pursuant to G. L. C. 231, sec. 118 (First Paragraph) or Rule 12(a) of the Uniform Rules on Impoundment Procedure” (“Standing Order”).  

An interlocutory petition under G.L. c. 231, §118, ¶1, should be distinguished from an interlocutory appeal under G.L. c. 231, §118, ¶2, of an order granting, denying or modifying an injunction.  An appeal under paragraph two is governed by the Massachusetts Rules of Appellate Procedure, and takes far longer than a paragraph one petition to the single justice.  Notably, a litigant may proceed under both paragraphs concurrently. 

Relief available:

The single justice “enjoys broad discretion to deny the petition, or to ‘modify, annul or suspend the execution of the [trial court’s] interlocutory order,’ … or, finally, to report the request for relief to the appropriate appellate court.” Ashford v. Massachusetts Bay Transp. Auth., 421 Mass. 563, 566 (1995).  However, the single justice may not take action which is determinative of a case, such as granting a motion to dismiss.  See also Mass. R. App. P. 15(c).  A petition for interlocutory review which seeks relief beyond the power of the single justice will be denied. 

Standards of review:

The standard of review applied by a single justice when reviewing an interlocutory order varies somewhat, depending on whether the order is an injunction or denial thereof.   Where the order does not concern an injunction,

[t]he focus of appellate review … is “whether the trial court abused its discretion—that is, whether the court applied proper legal standards and whether the record discloses reasonable support for its evaluation of factual questions.”

Clair v. Clair, 464 Mass. 205, 214 (2013), quoting Caffyn v. Caffyn, 441 Mass. 487, 490 (2004).  When the order relates to injunctive relief, however, the single justice may engage in a broader review. 

In reviewing the entry of a preliminary injunction, a single justice of an appellate court is to focus upon “whether the judge applied proper legal standards and whether there was reasonable support for [her] evaluation of the factual questions.”

Boston Firefighters Union, IAFF, Local 718 v. WHDH TV, Channel 7, 2007 WL 4259762 (Mass. App. Ct. Oct. 5, 2007), quoting Hull Mun. Lighting Plant v. Massachusetts Mun. Wholesale Elec. Co., 399 Mass. 640, 642 (1987).

A trial court’s legal conclusions, however, are subject to broad review and in those cases, the single justice may apply the de novo standard of review if the preliminary injunction order was predicated solely on documentary evidence.

Boston Firefighters Union, 2007 WL 4259762, citing Packaging Indus. Group, Inc. v. Cheney, 380 Mass. 609, 615 (1980); Manfrates v. Lawrence Plaza Ltd. Partnership, 41 Mass. App. Ct. 409, 412, n. 4 (1996).

The 30 day time limit:

The statute requires that a petition for interlocutory review of an order be filed “within thirty days of the entry of such order.” The period begins on the date the clerk actually enters the order on the trial court docket, not the date shown on the order.   Moreover, because the deadline is imposed by statute rather than by court rule, it is jurisdictional, cannot be extended by the court and is not automatically extended by court rules which allow filing on the next business day if the period ends on a Saturday, Sunday or holiday.  Accordingly, if the 30-day period ends on a weekend or holiday, the litigant should file the petition on the preceding business day.

It should also be noted that the filing of a motion for reconsideration does not extend the time for filing a petition for interlocutory review and that interlocutory review usually cannot be obtained from the denial of a motion to reconsider.  It is the date of the original order that determines the time period for filing.

The petition:

A party seeking interlocutory review under G.L. c. 231, §118, ¶1, must file a petition, a supporting memorandum and an appendix of relevant documents.  The petition is limited to five pages in length and should contain, in the following order:

(1) a request for review, which shall state briefly the nature of the order or action of the trial court from which review is sought, the entry date of such order or action, and the name of the judge who entered it; (2) a statement of the issues of law raised by the petition; (3) a statement as to whether a party has filed, served or intends to file a motion for reconsideration in the trial court; (4) a statement of the specific relief requested; and (5) an addendum containing a copy of the order or action of the trial court (a draft order for the single justice may be attached).

See Standing Order.  The petition must not exceed five pages of text in a monospaced font or 1,000 words in a proportional font compliant with Rule 20(a)(4)(A-C).  It must be accompanied by a supporting memorandum of law.    

The memorandum in support of the petition:

The petitioner must file a memorandum of law, “in support of the petitioner’s position, with citations to appropriate authorities and a statement addressing why interlocutory relief is appropriate.”  See Standing Order.  The memorandum must not exceed 15 pages of text in a monospaced font or 3,500 words in a proportional font compliant with Rule 20(a)(4)(A-C).    

The appendix:

In addition to the petition and memorandum, the petitioner must submit an appendix containing relevant portions of the record.  The memorandum should cite to the documents in the appendix.  The Appendix must begin with a table of contents listing the documents it contains, and must include, “a current copy of the trial court docket entries and all relevant papers filed in the trial court, including those filed by the other party or parties….” See Standing Order. The Standing Order cautions that, “[o]nly those pleadings, exhibits, and papers which were before the trial court when the order appealed from was entered, and which are necessary for an adjudication of the issues raised, may be submitted.”  Id. The pages of the appendix must be consecutively numbered, starting with the cover or first page as page one.

The response memorandum:

The opposing party may, but is not required to, file a response memorandum within seven days after the petition is filed (or 10 days if the petition was served by first class mail).  Id. The single justice may, and often does, shorten the time for filing a response.  A response memorandum must not exceed 15 pages of text in a monospaced font or 3,500 words in a proportional font compliant with Rule 20(a)(4)(A-C), and should state the reasons why the single justice should not grant the petition.  Id.  A supplemental appendix may be filed if the petitioner’s appendix fails to include documents which the opposing party deems relevant.  Id.

Filing:

The petition, supporting memorandum, appendix, response, any supplemental appendix, and certificates of service must be e-filed using the eFileMA system if the filing party is represented by counsel. If the petition, memorandum or response is produced using a proportional font, a certificate of compliance with the applicable length limit must also be filed, identifying the name and size of the font used, the number of non-excluded words and the name and version of the word processing software used.

Filing fee:

The filing fee in the Appeals Court was $315 as of July 2019.  G. L. c. 262, §§ 4 & 4C. 

Hearing and oral argument:

The single justice generally decides petitions for interlocutory review on the papers and without a hearing.  

Possible sanctions for interlocutory appeal of discovery orders:

Because discovery orders are uniquely within the trial court’s discretion, and appeals from such orders are therefore disfavored, the statute threatens a litigant and his or her counsel with sanctions if a petition for interlocutory review of a discovery order is not found to “substantially justified.”  It provides,

If the petition is filed with respect to a discovery order and is denied, the single justice may, after such hearing as the single justice in his discretion deems appropriate, require the petitioning party or the attorney advising the petition or both of them to pay to the party who opposed the petition the reasonable expenses incurred in opposing the petition, including attorney’s fees, unless the court finds that the filing of the petition was substantially justified or that other circumstances make an award of expenses unjust.

G.L. c. 231, §118, ¶1.

Impounded or confidential information.

The Standing Order provides that,

In any case in which the trial court entered an order impounding, sealing, or excluding from public access all or any portion of the trial court records, or there is material or information in a party’s petition, addendum, response, or any appendix that is automatically impounded or deemed confidential by statute or court rule, the parties shall comply with Rules16(d), 16(m), and 18(d). The parties shall comply with Supreme Judicial Court Rule 1:24, Protection of Personal Identifying Information in Publicly Accessible Court Documents in all filings to the Appeals Court.

Standing Order, §(e)

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