Opinion
October 12, 1994.
Present: Dolan, P.J., Hurley Aguiar, J.
Practice, Civil, Motion to vacate judgment; Petition to establish report.
Report of court's denial of plaintiffs' petition to establish report. Motion to vacate judgment heard in the Dedham Division by Maurice H. Richardson, J.
Tracey A. Christopher and Edward J. Christopher, pro se.
Christopher F. Connolly for the defendants.
This is a petition to establish a report that alleges error in the court's allowance of defendants' joint motion to vacate the judgment against them. We decline to establish a report on this interlocutory ruling.
On August 20, 1993 plaintiffs' joint motion for summary judgment against both defendants was allowed as to liability only. On October 1, 1993 defendants filed their joint motion to vacate the summary judgment, which motion was allowed on December 21, 1993. Plaintiffs unsuccessfully filed a motion for reconsideration and their draft report followed. No action was taken by the court on the draft report, and plaintiffs now petition for the establishment of the report. No trial on the merits has occurred.
We do not reach the merits of the court's allowance of defendants' motion to vacate the judgment against them because this matter is in an interlocutory posture and is premature for consideration by this division.
It is elementary that there is no right to immediate appellate review of interlocutory orders or rulings. Quint v. Moffie, 1987 Mass. App. Div. 133. An interlocutory order may be brought to the appellate division only with the consent or upon the voluntary report of a trial judge pursuant to G.L.c. 231, § 108, and Dist./Mun. Cts. R. Civ. P., Rule 64(d). Moran v. Weiffering, 1991 Mass. App. Div. 43, 44; Goldberg v. F.W. Woolworth Company, 1991 Mass. App. Div. 55; Schwartzberg v. Freedom Leasing, Inc., 1992 Mass. App. Div. 239. The judge's failure to voluntarily report the allowance of defendants' motion is within his discretion inasmuch as no party is entitled as a matter of right to piecemeal appellate review. Hart v. Keoveney, 1980 Mass. App. Div. 59, 60.
The plaintiff's draft report challenging the allowance of the defendants' motion shall be retained in the trial court files, and preserved for inclusion in any subsequent report of this case after judgment if so requested by the defendants. Moran, supra at 44; Palumbo v. New England Tract. Train. School of Conn., 1986 Mass. App. Div. 147, 149.
Petition denied.