Aschaffenburg v. Maxillofacial Surgeons, Ltd.

674 A.2d 407, 1996 R.I. LEXIS 116, 1996 WL 193729

Opinion

ORDER

This matter came before the court on the plaintiffs’ motion to dismiss defendants’ appeal from that portion of a Superior Court order staying further proceedings before the Superior Court pending an evaluation of the shares of defendant Maxillofacial Surgeons, Ltd., such stay having been issued by the hearing justice pursuant to G.L.1956 (1992 Reenactment) § 7-1.1-90.1. Plaintiffs seek dismissal of the appeal on the grounds that the record was not timely transmitted to this court, and on the further grounds that the order appealed from is interlocutory.

After careful consideration of the motion, we conclude that while defendants’ brief delay in transmission of the record does not warrant dismissal, the order appealed in this matter was indeed interlocutory.

Accordingly, the motion to dismiss defendants’ appeal is granted.

Justice Flanders is of the opinion that while the Superior Court hearing justice’s ruling in this case was interlocutory, such ruling was tantamount to the granting of injunctive relief and was therefore appeal-able pursuant to G.L.1956 (1985 Reenactment) § 9-24-7. Cf. Bogosian v. Woloohojian Realty Corp., 923 F.2d 898 (1st Cir.1991) (orders requiring a party to post security pursuant to § 7-1.1-90.1 are equivalent to mandatory injunctions because such orders require a party to take action, are enforceable through contempt, and provide at least part of the relief sought by the suit). Accordingly, Justice Flanders would deny the motion to dismiss and direct that the appeal be considered on an expedited basis.