Wilbur v. Tunnell

• Decision Date: 10 July 2020
• Docket Number: No. 19-P-922,19-P-922
• Parties: Ralph WILBUR v. Margaret O. TUNNELL, Executrix.
• Court: Appeals Court of Massachusetts

98 Mass.App.Ct. 19

151 N.E.3d 908

Ralph WILBUR

v.Margaret O. TUNNELL, Executrix.¹

No. 19-P-922

Appeals Court of Massachusetts, Middlesex..

Argued February 12, 2020

Decided July 10, 2020

Jonas A. Jacobson, Boston, for the defendant.

Present: Massing, Neyman, & Singh, JJ.

MASSING, J.

This appeal concerns whether the personal representative of an estate, who is the estate's only beneficiary, may proceed pro se in litigation brought against the estate by its only creditor, and whether the personal representative has the right to an immediate appeal of an order requiring her to retain counsel. We answer both questions in the affirmative.

Background. Arthur W. Tunnell, III, died on October 11, 2016, leaving a will that named his sister, Margaret O. Tunnell, as his sole heir.² Margaret was appointed personal representative of Arthur's estate on November 10, 2016.

From March 1999 until his death, Arthur resided at a property in Melrose, which he leased from the plaintiff, Ralph Wilbur. On July 10, 2017, Wilbur sued Margaret, in her capacity as the executrix of Arthur's estate, for property damage and loss of rental income. Margaret, appearing without counsel, filed a motion to dismiss the complaint. After a hearing, in an order entered on October 16, 2017, a Superior Court judge denied the motion to dismiss and ordered Margaret to retain an attorney to represent the estate. Margaret duly retained counsel who, months later, filed a motion styled as a motion for reconsideration of the judge's order of October 16, 2017, and alternatively as a motion seeking permission for Margaret to proceed pro se. Wilbur opposed Margaret's motion to proceed pro se "because any judgment in [his] favor might be called into question if the Defendant [Margaret] did not have counsel." The judge denied the motion on November 27, 2018. On January 15, 2019, Margaret, through counsel, filed in the Superior Court a motion to file a late notice of appeal, see Mass. R. A. P. 4 (c), as amended, 378 Mass. 928 (1979).³ The motion was allowed on January 18, 2019, and Margaret thereupon filed a notice of appeal from the order denying the motion to proceed pro se.⁴

Discussion. 1. Doctrine of present execution. The denial of Margaret's motion to proceed pro se was an interlocutory order. "As a general rule, there is no right to appeal from an interlocutory order unless a statute or rule authorizes it." Maddocks v. Ricker, 403 Mass. 592, 597, 531 N.E.2d 583 (1988). "The policy underlying this rule is that ‘a party ought not to have the power to interrupt the progress of the litigation by piecemeal appeals that cause delay and often waste judicial effort in deciding questions that will turn out to be unimportant.’ " Fabre v. Walton, 436 Mass. 517, 521, 781 N.E.2d 780 (2002), quoting Borman v. Borman, 378 Mass. 775, 779, 393 N.E.2d 847 (1979).

The doctrine of present execution is an exception to this well-settled rule. See Lynch v. Crawford, 483 Mass. 631, 634, 135 N.E.3d 1037 (2019) ; Theisz v. Massachusetts Bay Transp. Auth., 481 Mass. 1012, 1014, 112 N.E.3d 777 (2018) ; Fabre, 436 Mass. at 520-521, 781 N.E.2d 780. "Pursuant to the present execution doctrine, an 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.’ " Commonwealth v. Delnegro, 91 Mass. App. Ct. 337, 341, 75 N.E.3d 73 (2017), quoting Rodriguez v. Somerville, 472 Mass. 1008, 1009, 33 N.E.3d 1240 (2015). Collateral issues are those "that will not have to be considered at trial." Maddocks, 403 Mass. at 596, 531 N.E.2d 583.

Parties have the right to an interlocutory appeal under the doctrine of present execution only in narrowly defined circumstances. For example, an interlocutory appeal is permitted from the denial of a motion to dismiss by a government official claiming qualified immunity. Because the purpose of such immunity is to protect the official from litigation itself, if the order denying immunity was wrongfully denied and the official was forced to go forward in the litigation, the protection of immunity would be "lost forever." Brum v. Dartmouth, 428 Mass. 684, 688, 704 N.E.2d 1147 (1999). For similar reasons, the doctrine applies to claims of immunity asserted by volunteers for nonprofit organizations under the Federal Volunteer Protection Act and the State charitable immunity statute, see Lynch, 483 Mass. at 632-633, 638-640, 135 N.E.3d 1037, and to denials of special motions to dismiss under the anti-Strategic Litigation Against Public Participation statute, which is designed to protect individuals exercising their right to petition from burdensome retaliatory litigation, Fabre, 436 Mass. at 520-522, 781 N.E.2d 780. See generally H.J. Alperin, Summary of Basic Law § 4.14 (5th ed. 2014) (collecting cases applying doctrine of present execution).

Most analogous to the case before us is the application of the doctrine of present execution to attorney disqualification orders in civil cases. See Smaland Beach Ass'n v. Genova, 461 Mass. 214, 219 n.10, 959 N.E.2d 955 (2012) ; Maddocks, 403 Mass. at 596-600, 531 N.E.2d 583 ; Borman, 378 Mass. at 780-781, 393 N.E.2d 847. An appeal from an order of disqualification is a collateral issue appropriate for interlocutory review because it would "not have to be considered at trial." Maddocks, supra at 596, 531 N.E.2d 583. Orders of disqualification also cannot be remedied on appeal from a final judgment because they "are conclusive of a party's right to counsel of his choice," Borman, supra at 780, 393 N.E.2d 847, and cannot realistically be cured on appeal. See Maddocks, supra at 600, 531 N.E.2d 583 ("it is unlikely that an appellate court would reverse a judgment and require a new trial in the absence of a demonstration, often impossible to make, that any erroneous disqualification order significantly prejudiced the rights of the client").⁵

In this case, the requirements for the application of the doctrine of present execution are met. The propriety of Margaret's representation of Arthur's estate is entirely collateral to the merits of the case, which involves claims of property damage and loss of rental income. Furthermore, the denial of Margaret's motion to proceed pro se cannot be remedied on appeal from the final judgment, as she will have incurred attorney's fees to defend the case -- either that, or she will have been forced to cease defense of the estate altogether and accept the consequences. As Margaret's ability to proceed without counsel would be "lost forever" if she were required to retain an attorney to proceed through final judgment, the narrow circumstances warranting an immediate appeal under the doctrine of present execution are present here.⁶

2. Propriety of estate proceeding pro se. The ability to represent oneself in the courts of the Commonwealth is protected by statute. See G. L. c. 221, § 48 ("Parties may manage, prosecute or defend their own suits personally, or by such attorneys as they may engage").⁷ A person appearing pro se, however, may not represent another person or entity, as doing so would constitute the unauthorized practice of law. See G. L. c. 221, § 46A ("No individual, other than a member, in good standing, of the bar of this [C]ommonwealth shall practice law"). The purpose of this limitation on self-representation is to "enhance the effectiveness of the judicial department," Opinion of the Justices, 289 Mass. 607, 612, 194 N.E. 313 (1934), and "to protect the public." LAS Collection Mgt. v. Pagan, 447 Mass. 847, 850, 858 N.E.2d 273 (2006).

Legal entities such as corporations, limited liability companies, and trusts cannot be represented by individuals who are not licensed to practice law. See Braxton v. Boston, 96 Mass. App. Ct. 714, 717, 138 N.E.3d 440 (2019). Such legal entities possess interests "separate and apart from their shareholders and members." Dickey v. Inspectional Servs. Dep't of Boston, 482 Mass. 1003, 1004, 120 N.E.3d 1179 (2019). Given the advantages and protections bestowed on the corporate and trust form, their individual members, officers, and trustees "must bear the burdens of that form as well." Braxton, 96 Mass. App. Ct. at 717, 138 N.E.3d 440. Those burdens include the burden of hiring counsel to engage in legal action. See Varney Enters., Inc. v. WMF, Inc., 402 Mass. 79, 82, 520 N.E.2d 1312 (1988).

This appeal presents the question whether the statutory right of natural persons to represent themselves in "their own suits" extends to the personal representative of an estate who is also the sole beneficiary and seeks to defend the estate against its only creditor.⁸ "Whether [the representative of an estate] can proceed pro se and, if so, under what circumstances, are questions that we have not yet answered." Lowery v. Resca, 75 Mass. App. Ct. 726, 726 n.3, 916 N.E.2d 419 (2009).⁹

As a general rule, the Federal Courts of Appeals have held that when representation of an estate affects any outside interests, whether of other beneficiaries or of creditors, a personal representative who is not an attorney may not represent the estate pro se. See Malone v. Nielson, 474 F.3d 934, 937 (7th Cir. 2007) ; Jones v. Correctional Med. Servs., Inc., 401 F.3d 950, 952 (8th Cir. 2005) ; Shepherd v. Wellman, 313 F.3d 963, 970-971 (6th Cir. 2002) ; Pridgen v. Andresen, 113 F.3d 391, 392-393 (2d Cir. 1997). The purpose of the general rule is to protect third-party interests and the interests of the court. When an estate has beneficiaries other than the personal representative, or other creditors with claims on the estate, litigation involving an estate cannot be treated as the representative's "own [case] because the personal interests of the estate, other survivors, and possible creditors ... will be affected by the outcome of the proceedings. A non-lawyer representative therefore would be litigating claims that are not personal to him."...