Foreign Auto Import, Inc. v. Renault Northeast, Inc.

Citation367 Mass. 464,326 N.E.2d 888
PartiesFOREIGN AUTO IMPORT, INC. v. RENAULT NORTHEAST, INC. et al. 1
Decision Date23 April 1975
CourtUnited States State Supreme Judicial Court of Massachusetts

Richard A. Glaser (Philip R. Tetu, Natick, with him), for plaintiff.

Jerome M. Leonard, for defendants.

Before TAURO, C.J., and REARDON, QUIRICO, BRAUCHER and HENNESSEY, JJ.

QUIRICO, Justice.

On December 13, 1973, the plaintiff entered a bill in equity alleging that it held a franchise for the sale of motor vehicles within the meaning of G.L. c. 93B (inserted by St.1970, c. 814, § 1), entitled 'Regulation of Business Practices Between Motor Vehicle Manufacturers, Distributors and Dealers,' and that the defendants had committed or were about to commit acts which were or would be in violation of the plaintiff's rights under the statute. The prayers of the bill include requests that the defendants be temporarily enjoined, pending trial and decision of the case on the merits, from committing the alleged unlawful acts or additional acts in furtherance thereof. A judge of the Superior Court heard the parties on the prayers for a temporary injunction on December 21, 1973, and at the conclusion of the hearing he entered an order (a) denying the prayers, (b) ordering completion of the pleadings by January 18, 1974, and (c) adding the case to the advanced section of the trial list.

The plaintiff seasonably appealed to the Appeals Court on January 8, 1974, from the order denying its prayers for a temporary injunction, perfected its record and appeal, and sought appellate review of the order by the Appeals Court. G.L. c. 211A, § 10, inserted by St.1972, c. 740, § 1. On September 25, 1974, we ordered the case transferred to this court. Except for the steps necessary to perfect the appeal described above and for the giving of notice of a deposition, the only proceedings in the Superior Court after the denial of the temporary injunction were the filing of a demurrer and answer by the defendants. The demurrer has not been heard.

For reasons stated below, the case was not properly before the full court of the Appeals Court, and for the same reasons it is not now properly before this court.

We start this discussion by noting that the judge's denial of the request for a temporary injunction, the plaintiff's appeal from that denial, the preparation of the record on appeal and its transmission to the Appeals Court all occurred before July 1, 1974, when the new Massachusetts Rules of Appellate Procedure took effect. Mass.R.A.P. 1A, --- Mass. --- (1974), entitled 'Transitional Rule for Litigation in Progress on July 1, 1974,' provides in part in par. 7 that 'all appeals claimed before July 1, shall follow pre-July 1 procedure,' except as to certain briefs filed thereafter.

We therefore examine this case on the basis of the applicable law as it existed before July 1, 1974. The plaintiff's appeal from the order denying a temporary injunction states that it is taken pursuant to G.L. c. 211, § 4A, and G.L. c. 214, § 26. 2 The latter statute provided: 'A party aggrieved by an interlocutory decree of a justice of either (the Supreme Judicial or Superior) court may . . . appeal to the full court; but the appeal shall not . . . transfer to the full court the entire cause or any matter therein except the question whether the interlocutory decree appealed from shall be affirmed, reversed or modified.' Although this statute gives a party aggrieved by an interlocutory decree the right to appeal therefrom, it does not follow that such appeal shall be heard forthwith regardless of the status of the case in which the decree was entered.

We have held in numerous cases that an appeal from an interlocutory decree cannot be entered for appellate review by the full court until after the disposition of the case in the Superior Court, unless, of course, the judge entering the interlocutory decree reports the matter to this court under an appropriate statute or rule. See former G.L. c. 214, § 30 (repealed by St.1973, c. 1114, § 62), and see now Mass. R.Civ.P. 64, --- Mass. --- (1974). The judge in this case did not report the matter for interlocutory appellate review. In Orth v. Paramount Pictures, Inc., 311 Mass. 580, 581, 42 N.E.2d 524, 525 (1942), we said: 'Under the present practice appeals from interlocutory decrees cannot be entered here until after final decree in the Superior Court.' In Lowell Bar Ass'n v. Loeb, 315 Mass. 176, 187--188, 52 N.E.2d 27, 35 (1943), we said of an appeal from an interlocutory decree granting a preliminary injunction: 'Such an appeal lies dormant until brought to this court with an appeal from the final decree, and cannot be brought here by itself.' In Rines v. Superior Court, 330 Mass. 368, 373, 113 N.E.2d 817, 820 (1953), we said that it is a 'principle . . . of general application in this Commonwealth, that this court cannot be required to deal with cases in interlocutory stages, except where the trial judge has exercised his discretion to that end by reporting the action taken by him under G.L. (Ter.Ed.) c. 231, § 111, or in equity under G.L. (Ter.Ed.) c. 214, § 30. Those sections are designed to furnish a means for immediate review by this court of interlocutory action where justice requires such review. In the absence of a report by the trial judge the proper course is to proceed in accordance with his orders until the case is ready for final disposition.'

Applying these principles to the facts of the present case, the judge not having reported his denial of the requested temporary injunction to the Appeals Court for interlocutory appellate review, the matter is not properly before us.

Although we have based our conclusion above on the applicable law in effect prior to July 1, 1974, the result would be the same under the law and rules in effect since that date. We note initially in this regard that while our new rules of civil and appellate procedure are based on their pree xisting counterparts in the Federal system, Giacobbe v. First Coolidge Corp., --- Mass. ---, --- a, 325 N.E.2d 922 (1975), implementation of those rules did not incorporate into our jurisprudence those parts of Federal procedure which find their source other than in the Federal rules. The Federal practice of permitting interlocutory appeals as of right from orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve injunctions, is wholly statutory in origin, being based on 28 U.S.C. § 1292(a) (1) (1970). 9 Moore's Federal Practice, par. 110.20 (2d ed. 1973). The Commonwealth has no corresponding statute.

Since July 1, 1974, the power of a trial judge to report an interlocutory civil matter for appellate review before proceeding further with a case derives from G.L. c. 231, § 111, as appearing in St.1973, c. 1114, § 199, and from Mass.R.Civ.P. 64, --- Mass. --- (1974). If the interlocutory report is by a judge of the Superior Court, it is made to the Appeals Court. If it is by a single justice of the Supreme Judicial Court, it may be made 'to either the appeals court or the full supreme judicial court.' Mass.R.Civ.P. 64, --- Mass. --- (1974). A single justice of the Appeals Court may make such a report to the full Appeals Court. Appeals Court Rule 2:01, as amended, --- Mass.App. --- (1975).

Since July 1, 1974, the subject of temporary relief by an appellate court pending appeal from a final judgment and of appellate review of an interlocutory order of a trial court has been governed in part by G.L. c. 231, §§ 117 and 118, appearing in St.1973, c. 1114, § 202. Section 117, as thus amended, provides in part: 'After an appeal has been taken from a final judgment of the superior court, the housing court of the city of Boston or . . . of the county of Hampden, the appellate court may, by an order, on terms or otherwise, suspend the execution or operation of the final judgment appealed from, pending the appeal, and may modify or annul any order made for the protection of the rights of the parties, pending the appeal.' Section 118, as thus amended, provides: 'A party aggrieved by an interlocutory order of a justice of the superior court or the judge of . . . (a housing court) may file a petition in the appropriate appellate court seeking relief from such order. The appellate court may, in its discretion, grant the same relief as an appellate court is authorized to grant pending an appeal under . . . (§ 117). The filing of a petition hereunder shall not suspend the execution of the order which is the subject of the petition, except as otherwise ordered by the appellate court.'

We intend no suggestion that G.L. c. 231, §§ 117 and 118, as amended, are the sole sources of the broad powers of the appellate courts, or of the single justices of the appellate courts; and we make no attempt to state the scope or limits of those powers. We deal here only with the limited subject of the role of a single justice of an appellate court in connection with an attempt by a litigant to obtain full appellate review of an interlocutory order of a judge of the Superior Court or a Housing Court before proceeding further with the case in the trial court. The language of the statute authorizing the filing of a petition in an appellate court for relief from such an interlocutory order does not authorize a litigant to present the interlocutory order to either the Appeals Court or the Supreme Judicial Court for appellate review without prior leave so to do. Rather the statute contemplates that the aggrieved party may file a 'petition . . . seeking relief from such order.'

If we assume that the word 'relief' includes more than a modification, vacation or stay of the interlocutory order, and that it includes full appellate review of the order before proceeding further with the case in the trial court, the aggrieved litigant must file a petition requesting such interlocutory appellate review. This preliminary...

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