Civil action commenced in the Superior Court Department on June 25, 2021.

      Summary process.  Complaint filed in the Newton Division of the District Court Department on July 30, 2021.

      Summary process.  Complaint filed in the Newton Division of the District Court Department on December 11, 2023.

      After transfer of the summary process actions to the Superior Court Department and consolidation, a motion to strike a demand for a trial by jury was heard by Shannon Frison, J.

Thomas A. Rueter for UniBank for Savings.

Matthew A. Kane for the defendant.

      ENGLANDER, J.  This appeal involves a claim for unjust enrichment by a lender, UniBank for Savings (UniBank), against a landlord, Commonwealth Development LLC (Commonwealth Development).  The basis for the unjust enrichment claim is that UniBank lent money to the tenant of Commonwealth Development's property, GCP Newton Hotel, Limited Partnership (GCP Newton), that the tenant invested the loan proceeds in improvements to the property (a hotel), and that under the circumstances (i.e., where the landlord claims that the tenant has defaulted), it is "unjust" for Commonwealth Development to obtain and retain the value of the improvements that its tenant made.

      The issue raised in this appeal is whether UniBank is entitled to a jury trial on its unjust enrichment claim.  The case is currently set for trial a few weeks from this date, and the judge has refused UniBank's request for a jury.  This appeal is accordingly interlocutory, but UniBank contends it is properly before us under the doctrine of present execution.[4]

      We conclude that the doctrine of present execution does not apply here.  The wrong that UniBank alleges can be remedied after final judgment, by ordering a retrial before a jury.  UniBank cites no case holding that the doctrine of present execution applies to the denial of a jury in a civil case, and the doctrine in all events should be applied stingily.  See Patel v. Martin, 481 Mass. 29, 32 (2018) (doctrine of present execution applies only in "narrowly limited circumstances").  Although the appeal is dismissed,[5] for the reasons below we express our further view that the novel claim that UniBank seeks to present is not viable as a matter of law.[6]

      Background.  The following facts are drawn from UniBank's complaint as the intervener.  The action concerns a hotel in Newton, of which Commonwealth Development is the landlord.  In 2018, the leasehold interest in the hotel was assigned to the plaintiff, GCP Newton.  Also in 2018, GCP Newton and UniBank entered into a loan agreement, under which UniBank extended financing to GCP Newton, and in return took a security interest in the leasehold, with Commonwealth Development's consent.  GCP Newton used the financing it had received from UniBank to renovate the hotel.

      In 2020, during the COVID-19 pandemic that placed significant strains on the hospitality industry, GCP Newton defaulted on its loan to UniBank, and also did not fully satisfy its lease obligations to Commonwealth Development.  GCP Newton brought the present action against Commonwealth Development in June of 2021, seeking a declaratory judgment that it was not in default, among other claims.  Subsequently, in July of 2021, Commonwealth Development gave notice to GCP Newton that it was terminating the lease, and then brought a summary process action, which was transferred and consolidated with this action.[7]

      In September of 2021, UniBank moved to intervene.  The basic allegation in UniBank's complaint is that the value of the hotel was substantially increased by the renovations funded by UniBank, and that it would be "unreasonable for [Commonwealth Development] to expect that it can continue to enjoy interest in the improved Premises without compensating UniBank."  Commonwealth Development moved to dismiss UniBank's complaint, and its motion was denied.

      In its complaint, UniBank demanded a jury trial.  Commonwealth Development moved to strike the jury demand, and UniBank opposed, asserting that its unjust enrichment claim was "legal in nature" and analogizing its claims to the common law counts in assumpsit of "money paid" and "money had and received."  After a hearing, the judge allowed Commonwealth Development's motion to strike without issuing an opinion.  UniBank purports to appeal from that ruling.

      Discussion.  As a general rule, a litigant may appeal only from a final judgment; a litigant may not appeal from an interlocutory order.  See CP 200 State, LLC v. CIEE, Inc., 488 Mass. 847, 848 (2022).  The order at issue, denying a jury for UniBank's claim, is interlocutory.  UniBank claims, however, that its appeal falls under the "doctrine of present execution" exception to the final judgment rule.  Under that exception, orders that are "collateral to the underlying dispute in the case" and that "will interfere with rights in a way that cannot be remedied on appeal" may be immediately appealed.  Patel, 481 Mass. at 32, quoting Maddocks v. Rickers, 403 Mass. 592, 596, 598 (1988).

      UniBank claims that the order at issue meets the above standard and thus is subject to the doctrine of present execution, but we disagree.  The doctrine itself provides only a narrow exception to the final judgment rule.  See Patel, 481 Mass. at 32.  Piecemeal appeals are greatly disfavored, and allowed only where important and supervening policy commands that appellate review be provided prior to further action in the trial court.  See id. at 32-33.  One such supervening policy is "where protection from the burden of litigation and trial is precisely the right to which [a party] asserts an entitlement."  Id. at 33, quoting Estate of Moulton v. Puopolo, 467 Mass. 478, 485 (2014).  In this vein, the most prevalent use of the doctrine of present execution involves appeals from the denial of government immunity from suit.  See, e.g., Shapiro v. Worcester, 464 Mass. 261, 264-265 (2013); Kent v. Commonwealth, 437 Mass. 312, 317 (2002).  The reasoning of those cases is that the governmental immunities do not merely protect government defendants from liability, but rather protect them from being haled into court at all.  See Brum v. Dartmouth, 428 Mass. 684, 688 (1999).  Once such a lawsuit is allowed to proceed, "[t]he right to immunity from suit would be 'lost forever' if an order denying it were not appealable until the close of litigation."  Id.

      Other examples where the doctrine of present execution applies are sparse, but each of those examples falls into the same category -- the harm sought to be redressed on appeal cannot be adequately remedied by an appeal after judgment.  See Rodriguez v. Somerville, 472 Mass. 1008, 1010 (2015) (present execution applies to claim of defective presentment under Massachusetts Tort Claims Act); Fabre v. Walton, 436 Mass. 517, 521-522 (2002), S.C., 441 Mass. 9 (2004) (present execution applies to denial of special motion to dismiss pursuant to anti-SLAPP statute); Borman v. Borman, 378 Mass. 775, 780-781 (1979) (present execution applies to order disqualifying counsel). 

      UniBank contends that the denial of a jury trial in a civil case also cannot be adequately remedied through an appeal after judgment, but we do not agree.  No case from our courts so holds.  If it is determined, on appeal after final judgment, that UniBank was entitled to a jury, UniBank can be restored to the same position in law that it occupies currently, through a decision vacating the judgment and remanding for a new trial with a jury.  Moreover, in such an appeal after final judgment, we could adjudicate other claimed errors, if any, in the trial process in one appeal, rather than inefficiently spreading our review through multiple appeals.  See Linder v. Pollak, 102 Mass. App. Ct. 386, 390 (2023). 

      UniBank suggests that the right to a civil jury is so sacrosanct that incorrectly subjecting its unjust enrichment claim to a bench trial would cause irremediable harm; suffice it to say that we are not persuaded.  See Patel, 481 Mass. at 36 (present execution does not apply to orders requiring disclosure of privileged material); Marcus v. Newton, 462 Mass. 148, 152-153 (2012) (present execution does not apply to denial of motion for summary judgment founded in immunity from liability, as opposed to immunity from suit).

      Although the appeal is dismissed, we nevertheless exercise our discretion, as we have in the past, to comment on the merits of the issues before us, in the interests of judicial efficiency.  See Landry v. Massachusetts Port Auth., 89 Mass. App. Ct. 307, 310 (2016).  See also Marcus, 462 Mass. at 153.  In addressing the jury trial right issue, we necessarily had to evaluate (and the parties discussed at length) the nature of UniBank's unjust enrichment claim -- that is, is it a claim "at law" or an "equitable" claim under the standards of our case law.  See Dalis v. Buyer Advertising, Inc., 418 Mass. 220, 222-223, 226 (1994).  In this case, however, the legal theory presented is novel -- UniBank's counsel candidly conceded that he knew of no appellate case accepting such a theory.

      Indeed, to say that Unibank's unjust enrichment claim is novel is perhaps an understatement.  As presented, the theory does not have discernable limits -- UniBank appears to suggest that any time a lender's loan proceeds have (arguably) been used to add value to the property of a third party -- that is, someone other than the borrower -- the lender may sue that third party and recover back the loan proceeds in damages, regardless of whether the third party is in any way at fault.  Importantly, here UniBank does not rely on any contractual relationship with Commonwealth Development; UniBank's contract is with GCP Newton, the borrower and tenant.[8]  Nor does UniBank claim that Commonwealth Development has committed any wrong as to UniBank; the claim is simply that, in UniBank's view, Commonwealth Development has received value (in the form of property improvements) that Commonwealth Development ought to be compelled to disgorge to UniBank.

      In short, UniBank's claim is not founded in contract, in tort, or in principles of real property.  UniBank's goal is to recover its loan proceeds as a money judgment, not from its borrower but from a stranger entity that UniBank admits has breached no duty to it.  UniBank suggests that its claim is analogous to a claim for "money had and received" or "money paid," but Commonwealth Development is not alleged to have received money from UniBank's borrower, GCP Newton; rather, the allegation is simply that the loan proceeds were used to improve the tenant's property, thereby arguably improving Commonwealth Development's property as well (assuming the improvements had value to Commonwealth Development once the tenancy with GCP Newton has ended).

      It is true that the concept of "unjust enrichment" has, in some limited circumstances, been extended to encompass claims against defendants described as "innocent" recipients of money or property.  See, e.g., Sacks v. Dissinger, 488 Mass. 780, 790-791 (2021); Demoulas v. Demoulas, 428 Mass. 555, 571-572 (1998) (constructive trust could be imposed on property transferred by wrongdoer to defendants, if defendants were not bona fide purchasers); Stevens v. Nagel, 64 Mass. App. Ct. 136, 140-141 (2005) (plaintiffs pleaded adequate unjust enrichment claim by alleging that defendant received money, without giving value, from third party who had embezzled money).  None of these circumstances, however, even approach the breathtaking scope of the claim asserted here.  "Unjust enrichment" is not a concept to be cut loose from the moorings of claims recognized at common law.[9],[10],[11]

Appeal dismissed.

footnotes

[1] As general partner of GCP Newton Hotel, Limited Partnership.

[2] UniBank for Savings and Newton Corner Restaurant Concepts, LLC, interveners.

[3] Of the Gateway Realty Trust.

[4] We note that the entry of UniBank's appeal in this court vested jurisdiction of UniBank's claim for a jury trial in this court, until the appeal was decided or this court ordered otherwise.  See Commonwealth v. Cronk, 396 Mass. 194, 197 (1985).  Although the Superior Court exercised its discretion to advance this case to trial-ready status, the Superior Court lacked jurisdiction to go forward with a trial of UniBank's claim or to otherwise act inconsistently with our appellate jurisdiction.  As we have now resolved the appeal, jurisdiction over the claim will return to the Superior Court.

[5] We note that UniBank did not file a petition to a single justice under G. L. c. 231, § 118, from the order striking its jury demand.

[6] We have in the past expressed a view on the merits, even though an interlocutory appeal was improper, where supported by concerns of efficiency and court administration.  See Landry v. Massachusetts Port Auth., 89 Mass. App. Ct. 307, 310 (2016).

[7] A second summary process action involving a sublease was also transferred and consolidated with this action.

[8] UniBank, Commonwealth Development, and GCP Newton are parties to an agreement entitled "Landlord's Consent," but the agreement is not the basis for suit.

[9] In support of its theory, UniBank relies on the Supreme Judicial Court's decision in Suffolk Constr. Co. v. Benchmark Mechanical Sys., Inc., 475 Mass. 150, 154 (2016) (Suffolk).  In that case, a borrower assigned to a lender its right to payments from a third party, as collateral for a loan.  Id. at 152.  The third party mistakenly sent its payments to the borrower, and the borrower kept the payments.  Id.  The lender brought an action against the third party under G. L. c. 106, § 9-405.  Id.  UniBank points out that in dicta, the court stated that the lender could have proceeded either against the borrower or the third party.  Id. at 154.  The case is not analogous to the claim here, because in Suffolk the lender had contractual rights as assignee of the agreement between the borrower and the third party.  See id.

[10] As the appeal is dismissed, we do not act on the merits of UniBank's unjust enrichment claim.  The matter can be raised by an appropriate motion in the trial court.

[11] Commonwealth Development's request for attorney's fees is denied, without prejudice to being raised at an appropriate time in the Superior Court.