This year the Massachusetts Supreme Judicial Court (SJC) solicited amicus briefs in the matter of CP 200 State, LLC v. CIEE, Inc. to assist in determining whether an immediate interlocutory appeal lies under the doctrine of present execution from an order denying a motion for enforcement of a purported settlement agreement.  In CP 200 State, this question came up in the context of settlement negotiations following Plaintiff-Appellee’s complaint for summary process eviction and breach of contract claim against its commercial tenant, Defendant-Appellant.

An amicus brief submitted by the Massachusetts Defense Lawyers Association (“MassDLA”), penned by MMM&K’s Jennifer Creedon and Stephanie Gazda, acknowledged there is a general prohibition that exists against piecemeal appellate review of interlocutory trial court orders in the absence of authorization by rule or statute.  However, it argued that there are cases not covered by rule or statute in which certain trial court orders would harm parties in ways that cannot be reviewed upon the filing of a post judgment appeal.  To avoid irreparable harm in these cases and promote judicial economy, the Court has recognized and narrowly applied the doctrine of present execution, a judicially defined common-law exception to the general prohibition against interlocutory appellate review.

The brief discusses the evolution of this doctrine and the two-prong test used to determine whether it applies, arguing that an order denying a party’s motion to enforce a purported settlement agreement satisfies the doctrine’s test for applicability and is consistent with the doctrine’s dual purpose of preventing irreparable harm and promoting judicial economy.  As such, the Court should find that orders denying a motion to enforce a purported settlement agreement can be subjected to interlocutory appellate review under the doctrine of present execution.

Along with Jen and Kate, law clerks Jake Goldberg and Casey Houlton played a critical role in drafting and finalizing the amicus brief.  Reflecting on her experience and the impact of this case on future case law, Casey said, “I learned so much about the appellate process and the underlying policies like judicial economy that play such an important role in this decision. This experience exposed me to the nuances involved in drafting an amicus brief and showed me how to advocate not only on behalf of an organization like the MassDLA, but also on behalf of all the clients that will be affected by this decision.”

The oral argument for CP 200 State, LLC v. CIEE Inc. is scheduled for November 1, 2021, at 9:00 a.m.  You can tune in to the oral argument here.