McMenimen v. Passatempo

Decision Date15 August 2008
Docket NumberSJC-09986
Citation892 N.E.2d 287,452 Mass. 178
PartiesFrederick V. McMENIMEN, Third v. Ronald P. PASSATEMPO, trustee,<SMALL><SUP>1</SUP></SMALL> & others.<SMALL><SUP>2</SUP></SMALL>
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

William P. Corbett, Jr., Lynn, for Frederick V. McMenimen, III.

Charles M. Waters, Boston, for Ronald P. Passatempo & others.

Present: MARSHALL, C.J., IRELAND, SPINA, COWIN, CORDY, & BOTSFORD, JJ.

MARSHALL, C.J.

This is an appeal from a judgment of a single justice of the county court denying a petition for extraordinary relief pursuant to G.L. c. 211, § 3. Because we conclude that the case does not present the type of exceptional circumstances that require the exercise of our general superintendence power, we affirm the judgment of the single justice.

Background. The case has an unnecessarily complicated and prolonged history, which we recite in some detail because it is relevant to our disposition. The case has its roots in a civil action that was commenced in the Superior Court in July, 2004, and remains pending there. The plaintiffs at the time the action was commenced were Ronald P. Passatempo, Samuel Pietropaolo, and Patricia Pietropaolo, the trustee, settlor, and beneficiary respectively of the Samuel Pietropaolo Irrevocable Trust. Samuel Pietropaolo died during the pendency of the action and has been replaced as a plaintiff by the executor of his estate. The defendants included Frederick V. McMenimen, III, an insurance agent who, in July, 1998, sold a life insurance policy to the plaintiffs on the life of Samuel Pietropaolo. McMenimen was the nephew of Samuel Pietropaolo and his spouse, Patricia Pietropaolo. The other defendants named in the action were New England Advisory Group, LLC, for which McMenimen worked as an agent; Barry G. Armstrong, a principal of New England Advisory Group, LLC, which allegedly worked with McMenimen on the policy; the insurer, Nationwide Provident, successor to Provident Mutual Life Insurance Company3; 1717 Capital Management Company, a subsidiary of Nationwide Provident through which Nationwide Provident provides securities and advisory services; and Nationwide Provident's parent corporation, Nationwide Financial Services, Inc.

The plaintiffs alleged in their complaint, among other things, that McMenimen provided them with misleading information and advice and sold them a policy that was different from what he represented it to be, and which was, contrary to his representations, inadequate to meet their financial needs and stated investment objectives. They also alleged that, once the truth began to surface in or about April, 2003, McMenimen misrepresented to them the steps he was taking to rectify the situation. They asserted claims of negligence (count I), intentional and negligent misrepresentation (counts II and III), breach of fiduciary duty (count IV), intentional and negligent infliction of emotional distress (counts V and VI), violation of State and Federal securities laws (count VII), churning (count VIII), breach of contract (count IX), and violation of G.L. c. 93A (count X).

In January, 2005, McMenimen removed the action to the United States District Court for the District of Massachusetts because two of the counts against him (counts VII and VIII) involved allegations that he had violated Federal securities law. See 28 U.S.C. §§ 1441 & 1446 (2000). He then moved in the District Court to dismiss all claims against him. Following briefing on the motion, which included supplemental briefing requested by the District Court judge hearing the matter, the judge issued an order in August, 2005, which he subsequently amended in October, 2005, dismissing the Federal law claims against all defendants on the ground that they were time barred under Federal law then in effect. The judge declined to exercise supplemental jurisdiction over the remaining State law claims, see 28 U.S.C. § 1367(c)(3) (2000), and directed the entry of a final judgment remanding the action to the Superior Court.

McMenimen next filed an amended motion to dismiss in the Superior Court in December, 2005, contending that all of the remaining State law claims were barred by the third paragraph of G.L. c. 175, § 181, which he characterized as a statute of repose.4 The case was then transferred to the Superior Court's business litigation session. The judge who heard the motion agreed with McMenimen that the two-year period described in G.L. c. 175, § 181, is a statute of repose. The judge further concluded, however, that under its express terms the statute provided repose only for insurance companies, on claims brought against a company to recover premiums paid on a policy, and did not apply to claims brought against insurance agents. The judge, in March, 2006, therefore denied McMenimen's motion to dismiss.

McMenimen then moved for reconsideration of the order denying his motion to dismiss and requested, in the alternative, that the judge exercise his discretion to report his ruling to the Appeals Court.5 See Mass. R. Civ. P. 64(a), as amended, 423 Mass. 1403 (1996). That motion was denied (with one exception6) in January, 2007.7 With respect to the request for a report, the judge noted that, notwithstanding the significance of the issues, he was exercising his discretion to decline to report the matter. He noted several considerations that weighed against a report: the policy had been issued approximately eight and one-half years earlier; the case itself was already two and one-half years old; the insured, Samuel Pietropaolo, had died while the action was pending; and his widow and the ultimate beneficiary of the policy, Patricia Pietropaolo, was elderly. The judge concluded that, although he might have reported his ruling in other circumstances, in these circumstances the additional time consumed by a report would "only serve to still further delay Mrs. Pietropaolo, if successful, from ever enjoying the benefits of the death benefits her late husband thought he was providing for her."

In February, 2007, McMenimen filed a further motion for reconsideration, this time seeking reconsideration of the denial of his request for a report. Again McMenimen sought to prevail on the judge to exercise his discretion to report his ruling, although the motion for reconsideration appears to have added little if anything to McMenimen's original request for a report. The judge again declined to exercise his discretion to report the matter, and again cited his concern as to the delay a report would entail and its effects on the elderly plaintiff, Patricia Pietropaolo. The judge also denied McMenimen's additional request to stay the proceedings while McMenimen sought relief from a single justice of the Appeals Court.

Undeterred, McMenimen filed a petition in the Appeals Court on February 26, 2007, pursuant to G.L. c. 231, § 118, first par. He specifically indicated in his petition that the relief he was seeking was quite limited. He sought relief only from the Superior Court judge's denial of his request to report the interlocutory ruling denying his motion to dismiss.8 It was in a memorandum accompanying this petition that McMenimen mentioned for the first time in the litigation a contention that the interlocutory order denying his motion to dismiss (entered in the Superior Court nearly one year earlier) was immediately appealable under the doctrine of present execution, which, as we discuss below, is the centerpiece of the arguments that he now makes before us. Two days later, a single justice of the Appeals Court denied the petition without a hearing, ruling in relevant part that the Superior Court judge had neither abused his discretion nor otherwise erred in declining, in these circumstances, to report his interlocutory order denying the motion to dismiss.

McMenimen thereafter filed a notice of appeal from the single justice's order, apparently seeking to appeal from that order to a panel of the Appeals Court. A second single justice promptly struck the notice of appeal on the ground that no right to appeal existed in the circumstances, citing Carista v. Berkshire Mut. Ins. Co., 394 Mass. 1009, 1010, 476 N.E.2d 606 (1985). McMenimen then filed two additional motions simultaneously in the Appeals Court: a motion to reconsider the denial of his petition pursuant to G.L. c. 231, § 118, first par., and a motion to vacate the order striking his notice of appeal.9 In his motion for reconsideration he again argued that the Superior Court judge had abused his discretion in declining to report the order denying the motion to dismiss. With respect to his motion to vacate the order striking his notice of appeal, he claimed that this court's adoption in 1995 of S.J.C. Rule 2:21, 421 Mass. 1303 (1995), effectively negated the holding in Carista v. Berkshire Mut. Ins. Co., supra (and a long line of cases to the same effect), and rendered appealable all denials of petitions under the first paragraph of G.L. c. 231, § 118. The single justice who had denied the G.L. c. 231, § 118, petition summarily denied McMenimen's motion for reconsideration, and the single justice who had struck his notice of appeal summarily denied his motion to vacate that order.

This, however, was not the end of McMenimen's efforts to obtain appellate review. In April, 2007, he filed in the county court a petition pursuant to G.L. c. 211, § 3, attempting to invoke this court's extraordinary general superintendence power to obtain review of: the Superior Court judge's order dated March 6, 2006, denying his motion to dismiss the underlying complaint; the Superior Court judge's order dated January 25, 2007, denying his motion seeking a report of the order denying the motion to dismiss; the order of the first single justice of the Appeals Court denying the petition under G.L. c. 231, § 118, first par.; and the order of the second Appeals Court single justice striking the notice of appeal from the first single justice's order....

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