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Updated August 11, 2020.
The doctrine of present execution is one of the limited exceptions to the general rule that only final judgments are appealable. “As a general rule, an aggrieved litigant cannot as a matter of right pursue an immediate appeal from an interlocutory order unless a statute or rule authorizes it.” Shapiro v. City of Worcester, 464 Mass. 261, 264 (2013). The doctrine of present execution, however, provides that “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.” Id. (internal citations and quotation marks omitted). See also Commonwealth v. Delnegro, 91 Mass. App. Ct. 337, 341 (2017); City of Revere v. Massachusetts Gaming Comm’n, 476 Mass. 591, 599 (2017) (“The doctrine of present execution provides a narrow exception to the general rule prohibiting interlocutory appeals, provided two conditions are met: (1) the matter is collateral to the merits of the controversy, and (2) the interlocutory ruling will interfere with rights in a way that cannot be remedied on appeal from the final judgment”).
For example, “[o]rders denying motions to dismiss based on immunity from suit fall into this limited class of cases because (1) such orders are always collateral to the rights asserted in the underlying action, … and (2) the right to immunity from suit would be lost forever if such orders were not appealable until the close of litigation.” Shapiro, 464 Mass. at 264. See also City of Revere, 476 Mass. at 599. The doctrine of present execution also provides for interlocutory appeal of orders denying special motions to dismiss under the Massachusetts anti-SLAPP statute, G.L. c. 231, § 59H, Fabre v. Walton, 436 Mass. 517, 521 (2002), orders denying motions to dismiss based on claims of immunity asserted by volunteers for nonprofit organizations under the Federal Volunteer Protection Act and the Massachusetts charitable immunity statute, Lynch v. Crawford, 483 Mass. 631, 640 (2019); Wilbur v. Tunnell, 98 Mass. App. Ct. 19, 2020 WL 3886146, *2 (7/10/20), and orders disqualifying a litigant’s attorney in a civil case. Wilbur, 2020 WL 3886146, *2; Delnegro, 91 Mass. App. Ct. at 340-42 (The doctrine of present execution applies to disqualification orders in civil cases but not in criminal matters); Slade v. Ormsby, 69 Mass. App. Ct. 542 (2007).
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