484 Mass. 1055

May 27, 2020


Supreme Judicial Court, superintendence of inferior courts.

The petitioner, Lindsey Lavoie, appeals from a judgment of a single justice of this court denying her petition for extraordinary relief pursuant to G. L. c. 211, § 3. Lavoie sought interlocutory review of an order of the District Court denying her motion for summary judgment in a civil action for damages under the Wage Act, G. L. c. 149, §§ 148, 150. As pertinent here, Lavoie argues that relief is warranted because the motion judge "violated Mass. R. Civ. P. 56[, 365 Mass. 824 (1974),] . . . in denying her meritorious [summary judgment] motion, and in failing to comply with [Mass. R. Civ. P. 56 (d)]." [Note 2] We affirm.

The case is now before us pursuant to S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), which requires a showing that "review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means." S.J.C. Rule 2:21 (2).

It is true that the denial of Lavoie's summary judgment motion will not itself be reviewable on appeal from a final judgment on the merits. See Shenker v. DeJesus, 432 Mass. 1019, 1019 (2000); Deerskin Trading Post, Inc. v. Spencer Press, Inc., 398 Mass. 118, 126 (1986). However, the merits of the underlying legal issues that formed the basis for the summary judgment motion may be reviewed on appeal. Shenker, supra. See Deerskin Trading Post, supra ("The merits of a claim are better tested on appeal on the record as it exists after an evidentiary trial than on the record . . . at the time the motion for summary judgment was denied"). Under these circumstances, Lavoie has not met the requirement of rule 2:21(2). [Note 3]

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The single justice did not err or abuse his discretion in denying relief.

Judgment affirmed.

The case was submitted on the papers filed, accompanied by a memorandum of law.

Mark D. Stern for the plaintiff.


[Note 1] Gavin Peters, and all justices of the Trial Court.

[Note 2] Rule 56(d) of the Massachusetts Rules of Civil Procedure, 365 Mass. 824 (1974), states in relevant part: "If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just."

[Note 3] Although, practically speaking, the motion judge's alleged failure to comply with Mass. R. Civ. P. 56 (d) may escape review in the normal course, it is apparent on the record before us that the single justice did not abuse his discretion in concluding that that very limited issue did not require an exercise of this court's extraordinary superintendence power. See Commonwealth v. Fontanez, 482 Mass. 22, 24-25 (2019), and cases cited.

Lavoie alleges that there are other instances where, as she claims happened here, judges of the Trial Court did not comply with rule 56 (d). It behooves judges, where practicable, to assist parties in identifying material factual issues that are undisputed, and therefore do not need to be tried, and thereby streamline trials.