Alberti v. Alberti

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23-P-357 Appeals Court

MARY ALBERTI, personal representative,1 vs. JONATHAN ALBERTI,
individually and as trustee.2

No. 23-P-357.

Norfolk. December 11, 2023. - May 28, 2024.

Present: Meade, Massing, & Sacks, JJ.

Practice, Civil, Summary judgment, Interlocutory appeal,
Dismissal of appeal, Judgment.

Civil action commenced in the Superior Court Department on
July 11, 2017.

The case was heard by Debra A. Squires-Lee, J., on a motion
for summary judgment, and entry of judgment was ordered by her.

Marc Cerone (Andrew Aloisi also present) for the plaintiff.

MASSING, J. Before us, facially appearing to be the

plaintiff's appeal from a final judgment, under closer scrutiny

is an unauthorized appeal from an interlocutory order denying

1 Of the estate of Joshua Alberti.

2 Of the 210 Bellevue Road Realty Trust.
2

the plaintiff's motion for partial summary judgment. We dismiss

the appeal as improperly brought.

Background. The plaintiff, as personal representative of

the estate of her late husband, Joshua Alberti, filed a

complaint in the Superior Court against her late husband's

brother, Jonathan Alberti.3 She claimed that mere weeks after

Joshua's death, Jonathan exercised undue influence on his and

Joshua's mother, Jean Alberti, causing her to amend the Alberti

Family Irrevocable Trust (irrevocable trust) to name Jonathan as

the sole beneficiary, thereby depriving the children of Joshua

and the plaintiff of the fifty percent beneficial interest in

the irrevocable trust that they held prior to the amendment.

The plaintiff also claimed that the amendment was invalid under

the terms of the irrevocable trust itself, as was an amendment

executed by Jonathan and Jean to the 210 Bellevue Road Realty

Trust (realty trust), a related nominee trust,4 similarly

dispossessing Joshua's heirs. The complaint concluded with

twelve prayers for relief labeled (a) through (l).

3 Because the parties all share the same last name, we refer
to them by first name.

4 Under the realty trust, Jonathan had the right to reside
in the trust property, the Alberti family home in Quincy, after
the death of the brothers' parents; thereafter, the property
would be distributed to Jonathan and Joshua as the trustees of
the irrevocable trust or to their successor trustees.
3

In 2019 the plaintiff moved for partial summary judgment on

prayers for relief (g) and (h), arguing that the amendments to

the two trusts were invalid as a matter of law, and seeking a

declaration that Joshua's estate was the fifty percent

beneficiary of the irrevocable trust and that the irrevocable

trust was the sole beneficiary of the realty trust.5 The motion

did not address the plaintiff's undue influence claim. A

Superior Court judge denied the plaintiff's motion and instead

issued partial summary judgment for Jonathan on prayers (g) and

(h), declaring that the challenged amendments validly and

effectively made Jonathan the sole beneficiary of both trusts.

The judge directed the clerk to schedule a rule 16 conference,

see Mass. R. Civ. P. 16, as amended, 466 Mass. 1401 (2013), to

address the plaintiff's remaining claims and prayers for relief.

After some confusion and delay occasioned by the parties'

attempt to mediate the case, coupled with the onset of the

COVID-19 pandemic, a rule 16 conference was held in late 2022.

Although we do not have the transcripts of the conference or the

ensuing hearings, it appears that the parties did not discuss

5 In prayer (g), the plaintiff requested "[t]hat this
Honorable Court declare that the Plaintiff has a fifty percent
(50%) beneficial interest in the Alberti Family Irrevocable
Trust." In prayer (h), she requested "[t]hat this Honorable
Court declare that the Alberti Family Irrevocable Trust is the
one hundred percent (100%) beneficiary of the . . . Realty
Trust."
4

how to address the plaintiff's undue influence claim or her

other prayers for relief. Rather, the docket entries show that

the parties discussed how to obtain appellate review of the

partial summary judgment decision while at the same time

deferring the undue influence claim for later proceedings.

After hearings before two Superior Court judges other than the

motion judge, the parties came to a solution: they stipulated

to dismissal of the plaintiff's undue influence claim, without

prejudice, and simultaneously entered into a tolling agreement

that would allow the plaintiff to revive her undue influence

claim if she were unsuccessful in the appeal of the partial

summary judgment order. With the undue influence claim thus set

aside, the original motion judge issued declaratory relief and

final judgment for Jonathan solely on prayers (g) and (h). The

plaintiff timely filed a notice of appeal.

After hearing oral argument, attuned to the possibility

that the appeal before us was not actually the appeal of a final

judgment, we directed the parties to file supplemental briefs

concerning the propriety of the appeal. Specifically, we asked

the parties to address the following question:

"whether this appeal is properly before the court -– that
is, whether this is truly an appeal of a final judgment -–
where the issue on appeal was decided in a partial summary
judgment order that did not address all the claims in the
complaint and the parties did not obtain rule 54(b)[6]

6 See Mass. R. Civ. P. 54 (b), 365 Mass. 820 (1974).
5

certification of the issues decided, but instead stipulated
to temporary dismissal of the outstanding claim, without
prejudice, and entered into a tolling agreement designed to
allow resurrection of the outstanding claim after this
appeal is decided."

Having received the plaintiff's response,7 we conclude that the

appeal, manufactured in this fashion, is not properly before us.

Discussion. "As a general rule, there is no right to

appeal from an interlocutory order unless a statute or rule

authorizes it." CP 200 State, LLC v. CIEE, Inc., 488 Mass. 847,

848 (2022), quoting Maddocks v. Ricker, 403 Mass. 592, 597

(1988). The grant of partial summary judgment, disposing of

fewer than all the issues in a case, is an interlocutory order

that cannot be appealed as of right. See Barbetti v.

Stempniewicz, 490 Mass. 98, 102 (2022); McGrath v. McGrath, 65

Mass. App. Ct. 670, 671 n.3 (2006). Unless the motion judge

enters separate and final judgment under Mass. R. Civ. P.

54 (b), 365 Mass. 820 (1974), "an order for partial summary

judgment is not a judgment, but merely an order for judgment,

interlocutory in nature, subject to revision at any time by the

trial court prior to the entry of a judgment disposing of all

claims against all parties to the action." Herbert A. Sullivan,

Inc. v. Utica Mut. Ins. Co., 439 Mass. 387, 401 (2003), quoting

7 Jonathan did not file a brief in this appeal and did not
respond to our request for supplemental briefing.
6

Acme Eng'g & Mfg. Corp. v. Airadyne Co., 9 Mass. App. Ct. 762,

764 (1980). See Mass. R. Civ. P. 54 (b) (order adjudicating

"fewer than all the claims or the rights and liabilities of

fewer than all the parties . . . is subject to revision at any

time before the entry of judgment adjudicating all the claims

and the rights and liabilities of all the parties").

After the judge granted the defendant partial summary

judgment on two of the plaintiff's prayers for declaratory

relief and scheduled a rule 16 conference to determine which of

the plaintiff's remaining claims were still viable and how to

proceed, the parties did not seek the entry of separate and

final judgment under rule 54 (b). No Superior Court judge made

"an express determination that there is no just reason [to]

delay" entry of judgment on the two claims decided in the

partial summary judgment order. Mass. R. Civ. P. 54 (b).

Because of the well-established policy disapproving

piecemeal appeals, "certifications under rule 54 (b) 'should not

be granted routinely or as a courtesy or accommodation to

counsel.'" Long v. Wickett, 50 Mass. App. Ct. 380, 389 (2000),

quoting Panichella v. Pennsylvania R.R., 252 F.2d 452, 455 (3d

Cir. 1958). A trial judge's discretion to enter a separate and

final judgment under rule 54 (b) "should be exercised sparingly"

(quotation and citation omitted). Long, supra. Except in

extraordinary circumstances, it should not be used "when the
7

dismissed and the surviving claims are factually and legally

overlapping or closely related." Id. Appellate courts expect

"strict compliance" with this rule (citation omitted).

Barbetti, 490 Mass. at 103. Long, supra. Accordingly, we

decline the plaintiff's suggestion that we treat this appeal as

if rule 54 (b) certification had been duly and properly entered.

"The preferred practice is to withhold judgment until all claims

have been disposed of . . . ." Acme Eng'g & Mfg. Corp., 9 Mass.

App. Ct. at 764.

The plaintiff might also have sought appellate review by

asking the motion judge to report her interlocutory order to

this court under Mass. R. Civ. P. 64 (a), as amended, 423 Mass.

1403 (1996), or by filing a petition in the single justice

session of this court under G. L. c. 231, § 118, first par. See

CP 200 State, LLC, 488 Mass. at 848 n.2; Patel v. Martin, 481

Mass. 29, 31-32 (2018). To report the question, the judge would

have been required to find that the interlocutory order "so

affects the merits of the controversy that the matter ought to

be determined by the appeals court before any further

proceedings in the trial court." Mass. R. Civ. P. 64 (a). The

propriety of a report would be questionable here, as the partial

summary judgement order "do[es] not present issues of such a

serious nature as to overcome the appellate courts' reluctance

to engage in piecemeal appellate review." Zaniboni v.
8

Massachusetts Trial Court, 465 Mass. 1013, 1014 (2013).

Similarly, "[i]n most cases, . . . the single justice will

decline to act on an application for relief under G. L. c. 231,

§ 118, first par., that does not disclose clear error of law or

abuse of discretion." Jet-Line Servs., Inc. v. Selectmen of

Stoughton, 25 Mass. App. Ct. 645, 646 (1988). In addition, such

petitions must be brought within "the short statutory window

(not extendable by a court)" of thirty days from the entry of

the order. Zaniboni, supra at 1013 n.1.

Instead of seeking rule 54 (b) certification; asking the

judge to report the order under rule 64 (a); filing a petition

under G. L. c. 231, § 118, first par.; or going to trial on her

undue influence claim, the plaintiff, with the defendant's

acquiescence, manufactured a final judgment by voluntarily

dismissing the undue influence claim without prejudice and

entering into a tolling agreement to permit the claim to be

raised at a later date. The United States Courts of Appeal

uniformly prohibit this and similar tactics for obtaining

appellate review.8 See, e.g., Scottsdale Ins. Co. v. McGrath, 88

8 See Scottsdale Ins. Co. v. McGrath, 88 F.4th 369, 379 (2d
Cir. 2023); West v. Louisville Gas & Elec. Co., 920 F.3d 499,
504 (7th Cir. 2019); Blue v. District of Columbia Pub. Sch., 764
F.3d 11, 17-18 (D.C. Cir. 2014); Page Plus of Atlanta, Inc. v.
Owl Wireless, LLC, 733 F.3d 658, 662 (6th Cir. 2013); Ruppert v.
Principal Life Ins. Co., 705 F.3d 839, 842-843 (8th Cir.), cert.
denied, 571 U.S. 825 (2013); Federal Home Loan Mtge. Corp. v.
Scottsdale Ins. Co., 316 F.3d 431, 438 (3d Cir. 2003); State
9

F.4th 369, 379 (2d Cir. 2023), quoting Rabbi Jacob Joseph Sch.

v. Province of Mendoza, 425 F.3d 207, 210 (2d Cir. 2005)

("immediate appeal is unavailable to a plaintiff who seeks

review of an adverse decision on some of its claims by

voluntarily dismissing the others without prejudice"; "a

plaintiff who is permitted to appeal following a voluntary

dismissal without prejudice will effectively have secured an

otherwise unavailable interlocutory appeal"). See also

Dannenberg v. Software Toolworks, Inc., 16 F.3d 1073, 1077 (9th

Cir. 1994) ("litigants should not be able to avoid the final

judgment rule without fully relinquishing the ability to further

litigate unresolved claims"). See generally Cochran, Gaming

Appellate Review by "Manufacturing" a Final Judgment Through

Voluntary Dismissal of Peripheral Claims, 48 Mercer L. Rev. 979,

1020-1021 (1997) (arguing for bright-line rule that dismissal of

unadjudicated claims with prejudice, effectively barring the

dismissed claims from future litigation, should be considered a

final judgment, whereas dismissal without prejudice, which

permits dismissed claims to be revived, should not be permitted

to "finalize" partial judgment).

Treasurer v. Barry, 168 F.3d 8, 13 (11th Cir. 1999); Dannenberg
v. Software Toolworks, Inc., 16 F.3d 1073, 1077 (9th Cir. 1994);
Cook v. Rocky Mountain Bank Note Co., 974 F.2d 147, 148 (10th
Cir. 1992); Ryan v. Occidental Petroleum Corp., 577 F.2d 298,
302 (5th Cir. 1978); Hudson v. Peerless Ins. Co., 374 F.2d 942,
944 (4th Cir. 1967).
10

We had the occasion to address circumstances similar to

those presented here in Institution for Sav. in Newburyport &

Its Vicinity v. Langis, 92 Mass. App. Ct. 815 (2018). There the

plaintiff obtained a default judgment against one of two

codefendants, who subsequently succeeded in having the default

removed through a motion for relief from the judgment. See id.

at 816-817. Because the order allowing relief from the judgment

was interlocutory in nature with no right of appeal, the

plaintiff stipulated to dismissal of its action against both

defendants, with prejudice, reserving the right to appeal the

order vacating the default judgment. See id. at 818. We

observed that "[a]ccepting such a stipulation as a means of

obtaining temporary 'finality' to permit an interlocutory appeal

would effectively undermine the judicial gatekeeper function

intended to limit such appeals." Id. Although we "put aside

our doubts" in that case to address a recurring but undecided

question of civil procedure, "[w]e caution[ed] against any

future attempts to obtain review in this fashion." Id. at 818-

819.

Similarly here, the plaintiff obtained temporary and

artificial finality by severing her undue influence claim from

the action, carefully reserving her right to reinstate it, if

she so desires, after the appeal from the interlocutory partial

summary judgment order. We join the Federal appellate courts in
11

holding that manufacturing a temporary final judgment by

dismissing open claims without prejudice runs contrary to the

long-standing policy against piecemeal appellate review and is

ineffective to create appellate jurisdiction. See Marshall v.

Kansas City S. Ry., 378 F.3d 495, 500 (5th Cir. 2004) ("a party

cannot use voluntary dismissal without prejudice as an end-run

around the final judgment rule to convert an otherwise non-

final -- and thus non-appealable -- ruling into a final

decision").

In the interests of justice and sound judicial

administration, there having been no final judgment, the appeal

is dismissed.

Appeal dismissed.