11 N.E.3d 1094
Mass. App. Ct.2014Background
- On April 14, 2011, a second-grade student, Rodrigo Rodriguez, was injured when a metal door frame detached and struck his head at a Somerville school.
- On May 11, 2011, Rodriguez’s attorney sent a letter to the mayor; the letter did not label itself a presentment, cite G. L. c. 258, identify negligent acts, or make a demand.
- Rodriguez filed suit on March 29, 2013, alleging negligence and averring that timely and proper presentment under G. L. c. 258, § 4 had been made.
- The city moved to dismiss under Mass. R. Civ. P. 12(b)(6), arguing the letter was an insufficient presentment; the Superior Court denied the motion, finding the letter met the essentials.
- The city appealed immediately, invoking the doctrine of present execution; meanwhile the city answered the complaint but did not plead defective presentment with particularity in its answer.
- The Appeals Court considered whether denial of a motion to dismiss for defective presentment is immediately appealable under the present-execution doctrine and dismissed the appeal.
Issues
| Issue | Plaintiff's Argument (Rodriguez) | Defendant's Argument (City) | Held |
|---|---|---|---|
| Whether denial of motion to dismiss for inadequate presentment is immediately appealable under the doctrine of present execution | Presentment letter sufficed; denial is not an appeal by the city of any immunity | Denial is immediately appealable because presentment challenge is equivalent to an immunity defense lost forever unless immediately reviewable | Denied: presentment is a condition precedent (affirmative defense) not an immunity; not immediately appealable |
| Whether defective presentment is waived if not pleaded with specificity in the answer | Complaint avers presentment satisfied; plaintiff relies on averment | City asserts presentment was defective and moved to dismiss instead of pleading it in the answer | Failure to plead lack of presentment with particularity can waive the defense; defendant may amend answer to plead it |
| Whether Daveiga and Bellanti require treating presentment denials as immunity issues | Rodriguez: those cases do not convert presentment disputes into immunity disputes | City: Daveiga (and Bellanti) support immediate appealability of presentment denials | Held for Rodriguez: Daveiga and Bellanti do not expand present-execution to presentment disputes; those cases are distinguishable |
| Whether the Appeals Court should decide the sufficiency of the letter on interlocutory appeal | Plaintiff: merits should be resolved in trial court; procedural and waiver questions unresolved | City: urges review of presentment sufficiency now | Court declined to reach merits, leaving sufficiency and waiver questions to trial court resolution |
Key Cases Cited
- Kent v. Commonwealth, 437 Mass. 312 (explains present-execution doctrine for immunity defenses)
- Fabre v. Walton, 436 Mass. 517 (policy against piecemeal appeals; limits on interlocutory appeals)
- Brum v. Dartmouth, 428 Mass. 684 (denial of immunity-based dismissal is immediately appealable)
- Vasys v. Metropolitan Dist. Commn., 387 Mass. 51 (presentment is a condition precedent and failure may be waived if not pleaded with particularity)
- Daveiga v. Boston Pub. Health Commn., 449 Mass. 434 (Supreme Judicial Court reviewed presentment sufficiency but did not convert presentment into immunity for present-execution purposes)
- Bellanti v. Boston Pub. Health Commn., 70 Mass. App. Ct. 401 (affirmed dismissal where presentment to proper executive officer was undisputed; appellate discretion used when merits clear)