Beit v. Probate and Family Court Dept.

• Court: United States State Supreme Judicial Court of Massachusetts
• Writing for the Court: Before HENNESSEY; ABRAMS
• Citation: 434 N.E.2d 642,385 Mass. 854
• Decision Date: 28 April 1982
• Parties: , 29 A.L.R.4th 151 . Supreme Judicial Court of Massachusetts, Essex

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434 N.E.2d 642 385 Mass. 854, 29 A.L.R.4th 151 Harvey BEIT
v.
PROBATE AND FAMILY COURT DEPARTMENT. Supreme Judicial Court of Massachusetts, Essex. Argued Jan. 5, 1982.
Decided April 28, 1982.

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John C. Stevens, III, Newburyport (Howard P. Blatchford, Jr., Gloucester, with him), for plaintiff.

James A. Aloisi, Jr., Asst. Atty. Gen., for defendant.

Before HENNESSEY, C. J., and ABRAMS, NOLAN, LYNCH and O'CONNOR, JJ.

ABRAMS, Justice.

At issue is whether a judge may impose sanctions on an attorney who fails to appear for trial without having secured a timely continuance. ¹ The plaintiff Mr. [385 Mass. 855] Harvey Beit is an experienced member of the bar of this Commonwealth. ² On April 23, 1981, Mr. Beit failed to appear for a scheduled trial on a 1974 divorce libel. ³ Mr. Beit had not obtained a timely continuance. The judge then assessed costs in the amount of $450 against Mr. Beit. ⁴ Mr. Beit was not present at the time these costs were imposed. On appeal, Mr. Beit contends that a judge has no authority to assess costs except

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as authorized by statute. See, e.g., G.L. c. 261, §§ 1-26. We do not agree. We hold that a judge may assess costs against an attorney who fails to appear at a scheduled trial without having obtained a timely continuance. Mr. Beit also argues that if the judge has the authority to assess costs in these circumstances, the attorney is entitled to notice and an opportunity to be heard. We agree. However, Mr. Beit's appeal is not properly before us. Hence, we do no more than express our views. Wellesley College v. Attorney Gen., 313 Mass. 722, 731, 49 N.E.2d 220 (1943). We believe that Mr. Beit was entitled to notice and an opportunity to speak in his own behalf and explain his absence. We assume that the judge therefore will vacate his order imposing costs on Mr. Beit.

[385 Mass. 856] We summarize the facts. In March, 1981, a 1974 divorce libel was set for trial in Essex County on April 23, 1981, during a special session intended to alleviate the Essex County Probate Court backlog. On April 22, 1981, one day before the trial date, Mr. Macdonald, the plaintiff's attorney, moved for a continuance. Mr. Beit assented to the plaintiff's request. The judge found that if the case were removed from the list one day before trial, the session would close. The judge concluded that such a result was unfair to the public. ⁵ The judge, therefore, denied the requested continuance.

On the morning of April 23, 1981, the judge, an assistant register, a court officer, a stenographer, the plaintiff, and Mr. Macdonald were present and ready for trial. But the defendant and Mr. Beit did not appear. After a telephone call, a law clerk from Mr. Beit's office appeared and told the court that Mr. Beit had been suffering from back trouble for two weeks and was unable to attend. The judge terminated the session. After the case was called for trial, the judge received a letter dated April 21, 1981, indicating that Mr. Beit would be unable to attend.

The judge found that Mr. Beit knew, or should have known, for two weeks prior to trial that he (Mr. Beit) was unable to go forward on the scheduled trial date. Since Mr. Beit did not seek a timely continuance, the judge ordered Mr. Beit to pay $450 in court costs. Mr. Beit appeals from the assessment of costs. ⁶

[385 Mass. 857] We are met at the outset with the question whether the order requiring Mr. Beit to pay costs is properly before us. Under G.L. c. 215, § 9, as appearing in St. 1975, c. 400, § 57, "(a) person aggrieved by an order, judgment, decree or denial of a probate court," may appeal to the full court of the Supreme Judicial Court. ⁷ Under this provision, an aggrieved person "may claim an appeal from interlocutory orders as well

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as final judgments, but absent a report from the trial judge, G.L. c. 215, § 13, an appeal from an interlocutory order will not be heard by an appellate court until a final judgment has been entered" in the underlying action. Borman v. Borman, 378 Mass. 775, 779, 393 N.E.2d 847 (1979). See LaRaia v. LaRaia, 329 Mass. 92, 93, 105 N.E.2d 537 (1952); Lynde v. Vose, 326 Mass. 621, 622, 96 N.E.2d 172 (1951); Vincent v. Plecker, 319 Mass. 560, 564, 67 N.E.2d 145 (1946). See also G.L. c. 215, § 22. Thus, unless the matter is reported by the trial judge, an attorney who has failed to appear at trial may not appeal an order requiring him to pay costs until final judgment has been entered in the underlying action scheduled for trial. An attorney "ought not to have the power to interrupt the progress of the litigation by piecemeal appeals that cause delay." Vincent v. Plecker, supra at 563 n.1, 67 N.E.2d 145. See Borman v. Borman, 378 Mass. 775, 779, 393 N.E.2d 847 (1979).

Moreover, the doctrine of present execution does not allow an attorney to appeal an order to pay costs before the entry of a final judgment in the underlying action. Under [385 Mass. 858] the doctrine of present execution, we have allowed the immediate appeal of interlocutory orders if appeal after final judgment would be futile. See Wax v. Monks, 327 Mass. 1, 2-3, 96 N.E.2d 704 (1951); Lynde v. Vose, 326 Mass. 621, 622, 96 N.E.2d 172 (1951). Cf. Ferrick v. Barry, 320 Mass. 217, 219, 68 N.E.2d 690 (1946). However, in Borman v. Borman, 378 Mass. 775, 781-782, 393 N.E.2d 847 (1979), we held that the doctrine of present execution does not apply to orders compelling discovery, and, therefore, discovery orders are not appealable prior to a final judgment. See United States v. Ryan, 402 U.S. 530, 532-533, 91 S.Ct. 1580, 1581-1582, 29 L.Ed.2d 85 (1971); Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783 (1940); 4 Moore's Federal Practice, par. 26.83 (3) (1982).

We believe that an order requiring an attorney who fails to appear for trial to pay costs is analogous to a discovery order. Both types of orders are imposed to prevent needless delays in litigation. Absent a report by the trial judge, see G.L. c. 215, § 13, we will not allow an attorney to appeal, before final judgment, an order assessing costs and thereby further delay the client's action. ⁸ However, since this case has been fully argued on the merits and raises issues that are of great importance to the bar, the judiciary, and the administration of justice, we deem it appropriate to express our views.

Before assessing costs, the judge correctly determined that it is an attorney's obligation to seek a timely continuance if he is unable to appear for a scheduled trial. ⁹ "The duty of an attorney punctually to present himself in court and diligently to continue with a trial he has undertaken and not to [385 Mass. 859] delay it for any personal matter reasonably within his control is clear." Lyons v. Superior Court, 43 Cal.2d 755, 758, 278 P.2d 681 (1955). "Counsel for litigants, no matter how 'important' their cases are, cannot themselves decide when they wish to appear, or when they will file those papers required in a law suit. Chaos would result.... There must be ... some respect shown to the convenience and rights of other counsel, litigants, and the court itself." Smith v. Stone, 308 F.2d 15, 18 (9th Cir. 1962). See Nasser v. Isthmian Lines, 331 F.2d 124, 128 (2d Cir. 1964); Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 887 n.1 (5th Cir. 1968). If judges lacked power to compel attorneys to appear, "the orderly administration of justice (would) be removed from the control of the

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trial court and placed in the hands of counsel." Link v. Wabash R.R., 291 F.2d 542, 547 (7th Cir. 1961), aff'd 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962).

Judges "have the inherent power to do whatever may be done under the general principles of jurisprudence to insure to the citizen a fair trial, whenever his life, liberty, property or character is at stake." Crocker v. Justices of the Superior Court, 208 Mass. 162, 179, 94 N.E. 369 (1911). "Simply stated, implicit in the constitutional grant of judicial power is 'authority necessary to the exercise of ... (that) power.' " O'Coins, Inc. v. Treasurer of the County of Worcester, 362 Mass. 507, 510, 287 N.E.2d 608 (1972), quoting from Opinion of the Justices, 279 Mass. 607, 609, 180 N.E. 725 (1932). Further, "every judge must exercise his inherent powers as necessary to secure the full and effective...