CHARLES M. LIEBER vs. PRESIDENT AND FELLOWS OF HARVARD COLLEGE & another. [Note 1]
SJC-13126
Supreme Judicial Court, Superintendence of inferior courts.
The petitioner, Charles M. Lieber, a professor at Harvard University, is currently a defendant in a criminal proceeding in the Federal court. In connection with that proceeding, and pursuant to a university indemnification policy, Lieber sought the advancement of criminal legal defense fees from the university. His request was denied, and he thereafter commenced an action in the Superior Court against the university claiming, among other things, breach of contract and breach of the implied covenant of good faith and fair dealing. At the same time that he filed his complaint, he also filed a motion for a preliminary injunction seeking the advancement of his legal fees. A judge in the Superior Court denied the motion.
Lieber thereafter filed a notice of appeal, indicating his plan both to appeal to the Appeals Court pursuant to G. L. c. 231, § 118, second par., and to file a petition in the county court pursuant G. L. c. 211, § 3. His G. L. c. 211, § 3, petition was subsequently entered in the county court on March 31, 2021. While the petition was pending, a different judge in the Superior Court acted on the parties' cross motions for judgment on the pleadings, allowing in part and denying in part both motions. Lieber thereafter filed a supplement to his G. L. c. 211, § 3, petition, on May 6, 2021, seeking relief from the judgment on the pleadings ruling as well as relief from the denial of his motion for a preliminary injunction. A single justice denied the petition without a hearing, and Lieber appeals.
While Lieber's G. L. c. 211, § 3, was pending before the single justice, his appeal pursuant to G. L. c. 231, § 118, second par., was entered in the Appeals Court, on May 4, 2021. Shortly thereafter, Lieber filed an application for direct appellate review in this court, which was allowed on June 29, 2021. Lieber raises essentially the same issues in that appeal before us that he raised in the G. L. c. 211, § 3, petition before the single justice. [Note 2] In short, Lieber pursued two separate avenues of relief, perhaps as a precautionary measure, but where the issues raised in the G. L. c. 211, § 3, petition are already before the full court on direct review, there is no need for us to consider Lieber's appeal
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from the denial of that petition. [Note 3], [Note 4]
Appeal dismissed.
The case was submitted on the papers filed, accompanied by a memorandum of law.
David R. Suny & Andrea L. Davulis for the petitioner.
FOOTNOTES
[Note 1] Katherine N. Lapp.
[Note 2] Although Lieber's G. L. c. 211, § 3, petition, as supplemented, also sought relief from the trial court's ruling on the parties' cross motions for judgment on the pleadings, the essential, substantive indemnification issues in both the G. L. c. 211, § 3, petition and the G. L. c. 231, § 118, second par., appeal are the same.
[Note 3] Even if those issues were not already before us on direct review, Lieber would not have been entitled to extraordinary relief pursuant to G. L. c. 211, § 3, because, as the single justice correctly noted, he has or had adequate alternative remedies. With respect to the denial of his request for a preliminary injunction, he had the right as a matter of law to appeal to the Appeals Court pursuant to G. L. c. 231, § 118, second par., the very relief that he pursued and that has led to his pending appeal in this court. With respect to the interlocutory ruling on the cross motions for judgment on the pleadings, he could have petitioned a single justice of the Appeals Court pursuant to G. L. c. 231, § 118, first par., see Greco v. Plymouth Sav. Bank, 423 Mass. 1019, 1019-1020 (1996) ("Review under G. L. c. 211, § 3, does not lie where review under c. 231, § 118, would suffice"), and, in any event, he can appeal as a matter of right from the final judgment if it is adverse to him.
[Note 4] The G. L. c. 231, § 118, second par., appeal has been argued and is currently under advisement.