Opinion
September 4, 1980.
Present: Cowdrey, P.J., Flynn Forte, JJ.
Honorable Maurice R. Flynn, Jr. participated in the hearing and post-hearing conference on this case, but passed away prior to the promulgation of this opinion.
Contract, Written Guarantee; Payment for Services Rendered. Jurisdiction, Interlocutory Order. Practice, Civil, Summary Judgment.
Report of court's rulings on defendant's motion for summary judgment. Action heard in the First Southern Middlesex Division by Tuttle, J.
Arthur I. Missan for the plaintiff.
John R. Murphy for the defendant.
This is an action in contract to enforce a written guaranty executed by the defendant which allegedly insured payment to the plaintiff for services rendered in the amount of $19,800.00
The defendant filed a motion for summary judgment pursuant to Dist./Mun. Cts. R. Civ. P., Rule 56 which was denied by the trial court. The defendant thereafter claimed a report to this Division on a charge of error in the trial court's refusal to resolve the parties' controversy under Rule 56.
It is elementary that the denial of a motion for summary judgment is an interlocutory ruling from which no appeal may ordinarily be taken before the entry of judgment in the case on the merits. Rollins Environmental Services, Inc. v. Superior Court, 368 Mass. 174, 177-179 (1975). An interlocutory order will not be reviewed by this Division unless it is indisputably clear that said order was voluntarily reported by the trial justice as an exercise of his G.L.c. 231, § 108 and Dist./Mun. Cts. R. Civ. P., Rule 64(d) prerogative. Cohn v. Cavallerano, Mass. App. Div. Adv. Sh. (1980) 184, 185; Murray v. Board of Health of Watertown, Mass. App. Div. Adv. Sh. (1979) 469, 471, 471-472; Fred C. Church Co. v. Pacy, 46 Mass. App. Dec. 13, 14 (1970); Kolodny v. Khoury, 38 Mass. App. Dec. 226, 229-230 (1966); Microsonics, Inc. v. Comrex Corp., 39 Mass. App. Dec. 229, 231 (1968); Patrick v. Mikolaitis, 22 Mass. App. Dec. 167, 168 (1961).
The report sub judice in fact derived from a request for a report and a draft report submitted by the defendant. There is no indication therein that said report resulted in any way from the trial justice's considered determination that the interlocutory ruling in question "so affects the merits of the controversy that it ought in justice to be determined by the Appellate Division before further proceedings are conducted" (emphasis supplied). Barnette v. Commercial Union Ins. Co., 55 Mass. App. Dec. 3, 5 (1974); Zimmerman v. Ferreira, 50 Mass. App. Dec. 24, 25 (1972). The defendant's contention that he will be prejudiced if compelled to engage in a trial on the merits is merely a position characteristically espoused by all Rule 56 moving parties. This contention is insufficient to defeat the well established and prudent judicial policy against piecemeal appellate review. See Pollack v. Kelly, 372 Mass. 469, 471 (1977); Rollins Environmental Services, Inc. v. Superior Court, supra at 179-180; Albano v. Jordan Marsh Co., 367 Mass. 651, 654-655 (1975); Hart v. Keoveney, Mass. App. Div. Adv. Sh. (1980) 139, 141.
The report sub judice represents an improper attempt by the defendant to secure a premature appeal. Accordingly, the report is dismissed.