|Massachusetts Appeals Court 1|
APPEALS COURTActual Controversy Pending
Composition of Court
Denial of Further Review
Denial of further review by
Further Review by the SJC
Finances of court
Hearing List Committee
Indices of cases filed
Intermediate appellate review
Judgments and orders
Justices, Appeals Court
Justices, Appellate Division
Loss of Right to Appeal
Notice of Appeal, filing
Number of justices
Places of holding court
Present Execution Doctrine
Preservation of Issues
Reports by Trial Court
Rules of court
Rules of Court, exceptions
Sessions of Court
Single justice session
Standards of Review
Substantial Evidence Test
Transfer and Report to SJC
Transfer of proceedings
APPELLATE DIVISION, DISTRICT COURT
DOCUMENTATION Massachusetts General Laws
Mass. Rules of Civil Procedure
Mass. Rules of Appellate
Rules for Appellate Division
HOW THE PROCESS WORKS
BEFORE AN APPEAL
DURING AN APPEAL
AFTER AN APPEAL
The Massachusetts appellate system is designed to provide review of individual appeals in order to ensure both that justice is rendered and that the law is appropriately applied, developed and formulated. The former may be considered to be the primary function of an intermediate appellate court and the latter that of a court of last resort. 2 In Massachusetts neither responsibility is assigned exclusively to the Appeals Court or to the Supreme Judicial Court. In addition, neither appellate court is an isolated, passive institution. The two courts are components of an appellate system, and they have concurrent jurisdiction over most appeals. The Appeals Court and the Supreme Judicial Court are seen as active partners in the continual process of allocating to each court a portion of the appeals in the system.
Both Appellant and Appellee counsel participate in this allocation process and assist the two courts by identifying and analyzing in briefs and in applications for direct and further review any properly preserved questions whose resolution might contribute to the refinement of the State's jurisprudence. Such documents are a critical component of the decision making process through which the Supreme Judicial Court supplements its caseload with appeals transferred from the Appeals Court on its initiative, as well as on applications for direct and further review.
WHETHER TO SEEK
Most appeals fall within the concurrent appellate jurisdiction of the Appeals Court and the Supreme Judicial Court and am required to be reviewed in the first instance by the Appeals Court unless direct appellate review is ordered by two justices of the Supreme Judicial Court or, as is rarely done, the cast is reported to the Supreme Judicial Court by a majority of the justices of the Appeals Court. 3 The Supreme Judicial Court may order direct appellate review on its own initiative, or upon application by one or more of the parties. 4 Whenever an appeal is contemplated, both the appellant and the appellee need to consider whether to seek direct appellate review.
Strictly speaking, direct appellate review is reserved for cases that present questions of first impression or novel questions of law, questions concerning the Constitution of the Commonwealth or of the United States or questions "of such public interest that justice requires a final determination by the full Supreme Judicial Court" 5 Because the Supreme Judicial Court also transfers cases from the Appeals Court in order to relieve the Appeals Court of its heavier docket burden, then criteria tend to be applied liberally. It can be worthwhile to seek direct appellate review whenever a case presents significant issues.
In deciding whether to apply for direct appellate review, it should be kept in mind that successive review by the Appeals Court and the Supreme Judicial Court is disfavored. If the client will be happy with nothing less than a decision by the Commonwealth's highest court, requesting direct appellate review is more likely to achieve that goal than seeking further appellate review after decision by the Appeals Court.
POTENTIAL GAIN OR RISK
then the practitioner must then consider whether his or her client's ultimate objectives can, in fact be met by taking an appeal. This involves considering the types of appellate relief potentially available under the circumstances (e.g., outright reversal and entry of judgment for the appellant, new trial on all issues, partial new trial, remand for various types of further proceedings) and assessing whether the relief that is most likely to be obtained will be of value to the client. For example, if the most that can be obtained by appealing a civil case is a new trial (e.g., because the error being claimed is an evidentiary ruling or an incorrect jury instruction), and the prospects of achieving a significantly better result in an error-free retrial remain bleak, there may be little practical value to pursuing the appeal unless It can be resolved at an early stage through the parties' own settlement efforts or with the help of the appellate mediation services now available at both the Appeals Court and the First Circuit Court of Appeals. On the other hand, in a criminal case, where the client's liberty is at stake, there usually is much greater incentive to pursue an appeal, even if it is a long shot.
Occasionally, it may be more productive and considerably less costly to try to improve the client's position in the trial court by moving for consideration. A newly decided appellate case that sheds light on the issue decided by the lower court may prompt the trial judge to take a different view. In domestic relations cases, seeking modification at a later date sometimes may be a more practical way to achieve the client's objectives than pursuing an appeal.
LIKELIHOOD OF OBTAINING
Even if the client's objectives theoretically can be met by the type of relief potentially available on appeal, the likelihood of attaining that result must be considered objectively before going forward with an appeal. In general, the chances of success will depend upon four factors:
Adequacy of Record on Appeal
The appellate court will view the case "through the little square window of the record, so to speak and not as something viewed from the great outdoors." 6 The record on appeal consists of "the original papers and exhibits on file, the transcript of proceedings, if any, and a copy of the docket entries prepared by the clerk of the lower court." 7 It is only these items that provide the foundation for the appeal, not the myriad other facts that were discovered during pretrial preparation but not put into and not the disappointed advocate's imprecise or emotional race of what transpired at the trial. Objective evaluation of the record requires that it be reviewed with fresh eyes by the attorney who handled the case below or, as is done in some firms and many governmental agencies, by new counsel who specializes in appellate practice. If a transcript is involved, whenever possible it is helpful to obtain and read at least the key portions before a notice of appeal is filed. The entire transcript should be obtained and read with care before making a final commitment to pursuing the appeal.
Preservation of Issues
Even if the record contains a sound factual basis for the issues to be raised on appeal, an appeal nevertheless may be of little or no merit if the right to appellate review of an issue was not properly preserved in the lower court. In civil cases, appellate courts normally will decline to reach points that were not adequately raised below. 8
In criminal cases, the appellate courts are far more likely to be persuaded to reach issues not preserved in the trial court. Unpreserved claims of error will be reviewed if they create "a substantial risk of miscarriage of justice." 9 Under limited circumstances, they also may be reviewed upon a showing of ineffective assistance of trial counsel.10
Applicable Standards of Review
The likelihood of success on appeal also will depend upon the standard of review that will be applied to each of the appellate issues being raised. Obviously, the appellant has a far greater chance of obtaining relief if the appellate court will be reviewing a pure ruling of law, subject to broad review, as distinct from a factual finding that must be denied "clearly erroneous" or a ruling that is committed to the discretion of the lower court and can only be challenged for "abuse of discretion."
The error below must be shown to be "prejudicial," not "harmless," or the case will not be reversed.11 Erroneous evidence rulings, for example, often are considered to be harmless because the evidence was or would have been "cumulative" of other properly admitted evidence in the case.12 Similarly, an error in the charge will be considered harmless if a correct charge would not have altered the outcome.13
Strength of Legal Positions to be Argued
Ultimately, appeals are about the law as it applies to the appellate record. The appellant must be in a position to argue successfully that the lower court misapplied the law as it currently exists or that the law should be changed. Just as the appellate record deserves fresh scrutiny before deciding to appeal, so does the state of the law on each of the issues to be raised. Realistically assessing the strength of the legal positions to be taken involves consideration of a number of questions:
Review of Motion for New Trial
The procedure for seeking a new trial is governed exclusively by rules, and the cases which interpret the rules. In civil cases, Mass.R.Civ.P. 59 controls; in criminal cases, Mass.R.Crim.P. 25(b)(2), and 30(b)
An appeal from a conviction for first degree murder requires a broad appellate review under G.L. c. 278, §33E which allows, among other sources of relief, a new trial. However, after the Supreme Judicial Court has considered the appeal under §33E, a motion for new trial faces an uphill struggle. If the motion is filed in the Superior Court and denied, "no appeal shall be from the decision of that court upon such motion unless the appeal is allowed by a single justice of the Supreme Judicial Court on the ground that it presents a new and substantial question which ought to be determined by the full court." This so called "gatekeeper" provision has been upheld in the face of a constitutional attack.
There is no requirement that the trial judge conduct a hearing on a motion for new trial. Claims which have already been raised and rejected on appeal or which could have been raised on appeal will not ordinarily serve as basis for allowance of a motion for new trial. Issues not argued before the motion judge will not generally be considered on appeal because they are not part of the appellate record. Similarly, questions which were raised or might have been raised at trial need not be considered on a motion for new trial.
A motion for new trial is addressed to the discretion of the judge. An appellate court will not reverse a trial judge unless there appears to be an abuse of discretion. The standard of review in criminal cases under G.L. c. 278, §33 is "grave prejudice or substantial likelihood that a miscarriage of justice has occurred."
Even if it appears that an appeal would have a reasonable likelihood of success, paying clients will want to be informed of the expenses that may be incurred before deciding whether the appeal should be pursued. Although the issues may have been thoroughly briefed in the lower court, a careful attorney is likely to spend considerable time preparing the appellate briefs and reviewing the case before oral argument. In addition to attorney fees, the costs of obtaining a lengthy transcript and of reproducing the record appendix and briefs can be significant. If the appeal is won, there is a good chance that transcript and printing costs will be recovered from the appellee.14 However, if the appeal is lost, the appellant is likely to be responsible for the appellee's costs as well as his or her own.15
In some cases, the appellant may need to post a bond in order to prosecute an appeal.16 Although in the federal courts and some other state courts, a supersedeas bond must be posted to stay the execution of a money judgment, this is not the case in Massachusetts where such judgments are stayed automatically by the taking of an appeal.17 Still, other significant financial consequences can flow from taking an appeal in a money judgment case. Post-judgment interest accumulates at pre-judgment rates as long as the appeal is pending.18 Since it may take upwards of two years for an appeal to be resolved, accumulated interest can be a substantial penalty if the appeal is lost.
Filing notice of appeal
Ordinarily in a civil case the notice of appeal must be filed within 30 days of the date of entry of judgment or within 60 days if Commonwealth is a party.20 The time runs from the date of entry on the docket even if notice is never mailed to counsel.21
Within 40 days of filing a notice of appeal, the appellant is to deliver to the clerk of the lower court either:
After receiving the transcript, the appellant is to deliver it to the clerk of the lower court.
Cross Filing (Rule 4)
Notice must be filed within 10 days from filing of first notice of appeal.
A party who prevails in the lower court may argue in support of the judgment without the necessity of filing a cross appeal.22 Although the appellee's arguments need not have been articulated below, they must be based on facts in the record.23 .
Tolling of Time (Rule 4)
The time in which to file a notice of appeal starts to run when judgment is entered.24 The timely filing of a motion in the lower court for one of the following reasons will begin the time count for filing a notice of appeal:
In these instances the time for filing a notice of appeal shall run from the entry of the order denying a new trial or granting or denying any other such motion listed above.
It is important to determine the date of entry of judgment on the docket. If judgment is not entered on the docket, the case remains open and the appeal period does not begin.25 Mass. R. Civ. P. 58(a) and Fed. R. Civ. P. 58 both require that "every judgment shall be set forth on a separate document."
Correctly naming appellants
In preparing notices of appeal, counsel must specify by name the party or parties taking the appeal, The Appeals Court has adopted the federal rule that the use of the term "et al." does not satisfy the specificity requirement of Mass. R.A.P. 3(c) and that unless an appellant is actually named in the notice of appeal, jurisdiction over that party's appeal is lacking.26 In some circumstances, however, a public board's individual members need not be named.27
Completeness of notice
Where counsel is appealing a final judgment and also separate orders, such as an order denying a motion for a new trial, the notice of appeal must describe both the order and the appeal from the final judgment.28
The filing of certain post-hearing motions, such as motions for judgment notwithstanding the verdict under Mass. R. Civ. P. 50(b), a motion to alter or amend or make additional findings of fact pursuant to Mass. R. Civ. P. 52(b) or motion for a new trial under Mass. R. Civ. P. 59 tolls the running of time to file a notice of appeal. If a notice of appeal is filed prior to appeal on such a motion, or prior to a motion for separate entry of judgment, then that notice of appeal is null. Under Mass. R.A.P. 4(a) such a premature notice of appeal has no effect and a new notice of appeal must be filed.29
Note: A motion to alter or amend judgment brought pursuant to Mass. R. Civ. P. 59(e) does toll the running of the 30-day appeal period, but a motion for relief from judgment brought under Mass. R. Civ. P. 60 does not toll the appeal period.30
Filing a Frivolous Appeal
An appeal will be considered frivolous if the law is well settled and there can be no reasonable expectation of reversal.31 If objective analysis suggests that the likelihood of success on appeal is extremely remote, whether because of deficiencies in the record, rights not being saved, a difficult standard of review or strong adverse precedent, it is the better part of valor not to notice an appeal, at least in civil cases.
The appellate courts are more and more willing to impose sanctions when an appeal in a civil case is frivolous, immaterial or intended for delay. The appellate court may, upon motion of any party or upon its own motion, award double costs, damages and interest to the appellee.32 Legal fees have been considered by the Appeals Court to be an element of damages for frivolous appeals.33
Sanctions may be imposed upon either the appellant or the attorney.34 Sanctions against the attorney alone are appropriate where improper argument and unsubstantiated statements in the brief have "infected an otherwise meritorious appeal so pervasively as to make it frivolous."35
WHETHER A JUDGMENT OR
As a general proposition, only final judgments and decisions are appealable as a matter of right. G.L. c. 231, §113, authorizes appeals from "final judgment[s]" of the superior court, land court and housing court; G.L. c. 231, §109, authorizes appeals from "final decisions" of the appellate division of the district and municipal courts.
In cases subject to the Massachusetts Rules of Civil Procedure, the governing rule is Mass.R.Civ.P. 54(a), which defines "judgment" and "final judgment" as "the act of the trial court finally adjudicating the rights of the parties affected by the judgment," including judgments on directed verdicts, judgments notwithstanding the verdict, judgments on findings by the court in jury-waived matters and judgments entered under Mass.R.Civ.P. 58 upon a jury verdict. A civil judgment only becomes effective when set forth on a separate document and entered on the trial court's docket. An appeal filed before the separate entry of judgment normally will be considered premature.36 If the trial court's order does not dispose of all of the claims in the case or if it does not adjudicate the rights and liabilities of all of the parties, the order is not final and appealable unless the court "certifies" the matter pursuant to Mass.R.Civ.P. 54(b). There are limited exceptions to the finality requirement that may allow an aggrieved party to obtain appellate review of an interlocutory order.
The vast majority of trial court orders are interlocutory and are not appealable as of right. Interlocutory, nonappealable orders include, but are not limited to the following:
Effect of Post-trial Motions
Pursuant to Mass.R.App.P. 4, the filing of certain post-trial motions operates to suspend the finality of otherwise appealable judgments.
In civil cases, finality is suspended by
A notice of appeal filed before the disposition of any of the above motions has no affect.46 If and when the post-trial motions are denied an appeal then may be taken from both the underlying judgment and from the denial of the post-trial motions.47
Multiple parties or claims
In civil cases involving multiple parties or more than one claim for relief, if the trial court expressly directs the entry of a final judgment as to fewer than all of the claims or parties and makes an express determination that there is no just reason for delay, an appeal as of right may be filed to that portion of the case that has been reduced to final judgment.48 The preferred practice is for the trial court to withhold judgment until all claims have been resolved.49 If the court directs separate entry of judgment, it is desirable for the judge to state his or her reasons for doing so.50 The trial court's decision to certify is discretionary and may be reviewed by the appellate court for abuse of discretion as a threshold issue before reaching the merits of the case.51
Doctrine of Present Execution
Although normally appellate review of an interlocutory order cannot be obtained except under the authority of a statute or rule, a long-standing exception known as the "doctrine of present execution" permits an immediate appeal if the interlocutory order will interfere with rights in a way that cannot be remedied on appeal from the final judgment.52 For example, orders disqualifying a litigant's attorney have been found to be appealable as a final order because they are conclusive of the party's right to counsel of his or her choice and effectively are unreviewable on appeal after judgment.53 The doctrine of present execution applies only to orders involving issues collateral to any remaining controversy.54
Reports by the Trial Court
In both civil and criminal cases, the trial court may report otherwise nonappealable matters to an appellate court for review.55
In cases subject to the Massachusetts Rules of Civil Procedure, the governing rule is Mass.R.Civ.P. 64, which authorizes reports in three distinct situations:
Contrary to popular belief, there is no authority for the report, in civil cases, of abstract questions of law. Although a judge, may report specific questions of law in connection with reporting an interlocutory finding or order, the basic issue to be reported is the correctness of the trial court's ruling, and the appellate court need not answer the reported questions except to the extent necessary to resolve the basic issue.56
Because "appellate judges benefit from rulings of law made by trial judges," only rarely should a case be reported for decision in the first instance by an appellate court.57 In such cases, the report must be of the entire case and in a form that will enable the appellate court to enter or order the entry of a final decree disposing of the case.58 It is within the discretion of the appellate court to decline to decide an improvidently reported case.59 If, for example, the parties' statement of agreed facts does not include all material facts necessary for a complete adjudication of the case, the appellate court may discharge the report and remand the case for further proceedings below.60
Petition from Interlocutory Order
Under the first paragraph of G.L. c. 231, §118, a party aggrieved by any type of interlocutory order of the Superior, Probate, Housing and Land Courts may, within 30 days from the date of entry of the order, petition for relief from a single justice of the Appeals Court. Although the single justice has broad power to grant a variety of relief, including referring the matter to a panel for full-blown appellate review, relief is highly discretionary and usually is denied
Under the second paragraph of G.L. c. 231, §118, an immediate appeal may be taken as of right from interlocutory orders of the superior, probate, housing and land courts "granting, continuing modifying, refusing or dissolving a preliminary injunction or refusing to dissolve a preliminary injunction," or from "an interlocutory order of a single justice of the appellate court granting a petition for relief from such an order.
Litigation which includes an appeal is considered moot "when the party who claimed to be aggrieved ceases to have a personal stake in its outcome." The court will not, generally indulge in answering questions which do not decide live issues. A decision which would be purely academic is not one which an appellate court will generally render.
The appellate court is not required to dismiss an appeal because of mootness. In certain circumstances, the court will decide such a case. If the issue has been fully briefed in an adversary proceeding, and is "one of public importance, capable of repetition, yet evading review," the appellate court may decide the case.
Loss of Right to Appeal
A party who does not appeal is taken to be satisfied with the judgment and the party who appeals but does not file a brief has no right to appellate review.62 If the appellant's claim becomes moot pending appeal, he has no right to an appellate decision, as also noted under "mootness." Further, claims which are conceded in a party's brief or in oral argument are considered waived.
A party who is aggrieved by an order denying a motion for summary judgment is not entitled to a review on appeal from a judgment after trial on the merits. This prohibition applies only where the trial is on the merits of the claim which was the basis for summary judgments.
However, a party may seek appellate review by an interlocutory appeal of an order denying a motion for summary judgment. In this case, a single justice of the appellate court may grant leave to appeal pursuant to G.L. c. 231, §118, first par. The test for determining whether leave shall be granted for an interlocutory appeal appears to be whether the administration of justice would be facilitated.
A person may forfeit his right to appeal by conduct in violation of an order or judgment. This rule has been applied to parents who hid their child in violation of an order awarding custody to the plaintiff. While a person is in contempt of court for disobeying a court order, he is not entitled to seek reversal of the order on appeal.
STANDING OF PARTY
Appeals may be taken only by those who are "aggrieved" by the decision below.63 Whether or not the appellant is aggrieved and therefore has standing to appeal is determined "with reference to the context and the subject matter."64 In general, "it must appear that the party appealing has some pecuniary interest or some personal right, which is immediately or remotely affected or concluded by the decree appealed from." 65
For example, where two defendants have not cross-claimed against each other and are not trying the issue of liability between themselves, one defendant is not aggrieved by the allowance of a directed verdict in favor of the other and has no standing to pursue an appeal.66 A plaintiff in an interpleader action also typically lacks standing to appeal, since he or she is viewed as a 'mere stakeholder' who has no genuine interest in the lower court's disposition of the disputed funds.67 However, life beneficiaries of a trust have sufficient interest in the management of the "at that they have standing to appeal from the probate court's refusal to appoint as successor trustee a qualified individual to whom all parties in interest had agreed." 68
Mass.R.App.P. 16 does not merely set out what the courts require, it constitutes a short manual on how material in the brief should be presented, including order, form, citation form and record references. Contents are arranged chronologically as required by Mass.R.App.P. 18(d). Mass.R.App.P. 16(a)(1) has been amended to require that all briefs (not just those of 20 pages or more) contain an table of contents with page numbers and references, a table of cases arranged alphabetically, and other authorities cited with reference to the pages of the brief where cited.
The record (or "record on appeal") is what the lower court clerk assembles and retains until the final disposition of the appeal, unless under Mass.R.A.P. 9(a) it is ordered to be transmitted by the Appeals Court or a single justice.
The Record Appendix
The appendix is what the appellant must file under Mass.R.A.P. 18 and it enables the appellant to sort out what record documents s/he particularly wishes to call to the attention of the court. It contains only material that was placed before the trial judge and discloses that the issues to be raised on appeal were called to the attention of the trial court.
Any documents relied upon in a post-trial motion or opposition should be attached and made part of the record. Thereafter, if the case is appealed, a party must make sure that all the facts are incorporated in the record on appeal.69
Although Mass.R.A.P.18(b) states that the appendix on appeal need not contain all important matters because "the entire record is available to the court for reference and examination," this might not necessarily be the case. The appellate courts have an "established practice of not going beyond the appendix provided by the parties" and the courts "have usually adhered to a practice of declining to look at parts of records which have not been reproduced in appendices." 70
The components of the appendix, the order in which they are to be set out, the method of pagination and other requirements are prescribed in Mass.R.App.P. 19(a) and (d). For example, no single volume of the appendix should be more than 1 1/2" thick. Rule 18 also prescribes how the record is to be designated and how exhibits are to be reproduced.
ACTUAL CONTROVERSY PENDING
Closely related to the issue of standing is the requirement that there be an actual controversy pending at the time of appeal. If circumstances have changed such that the appellant is no longer aggrieved, the litigation is considered moot and the court normally will not decide the case.71 Appellate courts are particularly reluctant to answer constitutional questions that have become moot.72
Courts decline to hear moot cases for several reasons:
Nevertheless, there are situations where an appellate court will express an opinion on a moot question: if it is a matter of public interest where uncertainty and confusion exist, or if it is an issue that is likely to arise again in similar factual circumstances where appellate review could not be obtained before the recurring question again would be moot.74 In class-action litigation courts tend to be especially careful not to allow a defendant's voluntary cessation of allegedly wrongful conduct with respect to named plaintiffs to moot the case for the entire plaintiff class.75
Initial review of those appeals (including reports) within the concurrent jurisdiction of the Supreme Judicial Court and the Appeals Court is generally by the Appeals Court.76 Nevertheless, the Supreme Judicial Court may order that it provide direct review. The Court's exercise of that authority is constrained, however, not only by the Supreme Judicial Court's role within our appellate court system, but also by the appellate system's caseload, which is expanding rapidly in size and complexity.
MATTERS TRANSFERABLEONLY TO
THE APPEALS COURT
The following matters can be transferred by the Supreme Judicial Court only to the Appeals Court:77
The Appeals Court consists of a chief justice and thirteen associate justices. A 1998 statutory amendment increased the number of associate justices from nine to thirteen, presumably a legislative recognition of the appellate backlog.
In the case of a vacancy in the office of chief justice of the Appeals Court, or of his illness or absence, his duties will be performed by the senior justice.
Three justices of the Appeals Court constitute a quorum to decide all matters required to be heard by the court or, upon order of the chief justice, four or more justices may sit.
The Appeals Court may sit in panels of three or more justices. The chief justice, insofar as practicable, must assign justices to panels in such manner that each justice sits a substantially equal number of times with each other justice. The chief justice will preside over any panel on which s/he sits, or, if the chief justice is not a member of a panel, the senior justice will be the presiding justice. Under the statute, an order of the panel is an order of the Appeals Court.
A justice of either appellate court may sit as a single justice and hear cases of specific types, such as interlocutory, landlord-tenant matters and injunctions. Justices rotate for such sitting on a monthly basis.
As an Intermediate appellate court
The Appeals Court is, by statute, denominated an intermediate appellate court. As such, it is not the court's function to alter established rules of law governing principles of substantive liability.
Power to execute judgments and orders
The Appeals Court is vested with all powers and authority necessary to carry into execution its judgments, decrees, determinations and orders in matters within its jurisdiction according to the rules and principles of common law and the Constitution and laws of the commonwealth, and subject to the appellate jurisdiction, supervision and superintendence of the Supreme Judicial Court. The Appeals Court is granted original jurisdiction over the enforcement or review of final orders of the labor relations commission issued pursuant to appropriate statutory authority.
The power to carry into execution its judgments belongs to the Appeals Court and not a single justice of the court. It is the Appeals Court, as represented by a panel, which possesses the authority to reverse or affirm, in whole or in part, any judgment of the court below. The powers of amendment of the court below and power to render any judgment and to make any order that ought to have been made upon the whole case rests solely with a panel of three justices who constitute a quorum to decide all matters required to be heard by the Appeals Court.
Matters before a single justice
Any matter which is within the jurisdiction of the Appeals Court, whether originally filed in that court or transferred to it, and which might otherwise be disposed of by a single justice of the Supreme Judicial Court, must be filed with the clerk of the Appeals Court and be heard and determined by a single justice of the Appeals Court in accordance with the same rules, practices and procedures which would govern if the same matters were heard and determined by a single justice of the Supreme Judicial Court.
In this regard, the statute which empowers a single justice of the Supreme Judicial Court to reserve and report questions of law for consideration of the full court does not permit a single justice of the Appeals Court to report to the full court matters which are not before him for decision but are before some other justice.
If the single justice grants injunctive relief, that order is appealable immediately to the full Appeals Court without the justice first reporting the matter to the full court. No appeal from a single justice of the Appeals Court can be taken to a single justice of the SJC.
The Chief Justice of the Appeals Court has, by statute, been relegated certain administrative responsibilities regarding the finances of the court including the annual preparation and submission to the Chief Justice of the Supreme Judicial Court of an estimate for the ordinary maintenance of the Appeals Court, and all revenue therefrom.
Places of holding court
The Appeals Court sits in the city of Boston and at such other locations within the Commonwealth as the Supreme Judicial Court shall determine by rule or order.
Sessions of the Court
The Chief Justice of the Appeals Court, with the approval of the Supreme Judicial Court, is required to arrange such sessions of the Appeals Court as may be required to discharge its business. Such sittings may be adjourned to such places and times as appear to the court to be most conducive to the dispatch of its business and to the interests of the public.
JUSTICES OF THE APPEALS COURT
Joseph P. Warner
Christopher J. Armstrong Frederick L. Brown Charlotte Anne Perretta Rudoplh Kass George Jacobs Elizabeth A. Porada Mel L. Greenberg Kenneth Laurence J. Harold Flannery Barbara A. Lenk Francis X. Spina Susan Beck Phillip Rivard-Rapoza
Benjamin Kaplan Raya S. Debren Kent B. Smith Gerald Gillerman
Alexander M. McNeil, Esq.
Ashley Brown Ahern
Court officers for attendance at sessions of the Supreme Judicial Court and the Appeals Court are appointed by the Chief Justice for Administration and Management. Court officers and persons designated to act as court officers perform police duties and possess police powers in and around the premises and immediate vicinity of the court which they have been designated to attend. The Supreme Judicial Court has the authority to appoint an administrative assistant, and jurisdiction to remove certain court and other officers.
he justices of the Appeals Court appoint a clerk and assistant clerks, who may not engage in the practice of law. The clerk of the Appeals Court serves as the administrative officer of the court. The clerk is required to attend all sessions of the court and maintain and preserve all papers, records and files of the court. The clerk must maintain a docket of all matters presented to the court and of all proceedings in the court and enter on the docket all orders, decrees, determinations or directions of the court in each case. The clerk is authorized to issue certified copies of the docket of the court and of all papers on file in the court.
The clerks of the appellate courts are required to maintain dockets, which must contain entries relating to all papers filed with the clerk and all process, orders and rescripts entered for each case filed with the court. The clerks are also required to maintain an index of cases contained in the docket.
The clerks of the appellate courts are required to establish and maintain as part of the public records of the courts appointment dockets indicating the appointment by the court of masters, commissioners, conservators, receivers, and other specified persons where the appointee is a person other than the person whose appointment was requested in a petition, pleading, or written motion or where the petition, pleading, or motion did not request the appointment of a specific person.
Calendars of cases scheduled for argument
The appellate court clerks are responsible for preparation, under the direction of the court, of a calendar of cases awaiting argument. In placing cases on the calendar for argument, the clerks must accord preference to appeals and other proceedings entitled to preference by law.
Massachusetts follows the general rule that a court of lower rank cannot deviate from a precedent made by a higher court, even if it considers the rule incorrect, but some decisions of other intermediate courts that did not follow a rule established in a decision of the court of last resort have been vindicated on appeal.84 .
The Appeals Court is an intermediate appellate court and it is not one of its functions to alter established rules of law governing principles of substantive liability. Thus, the Appeals Court is not at liberty to depart from principles announced in prior Supreme Judicial Court cases. Even though a precedent has been called into question by other cases and may have a patina of antiquity, the question whether such a precedent should be overruled is for the Supreme Judicial Court.
The Appeals Court is constrained to follow the interpretation of a statute made by the Supreme Judicial Court in a prior case, regardless of whatever conclusion it might itself have drawn from the statutory language.
Massachusetts follows the general view that since an advisory opinion is not a decision; it does not have stare decisis effect.85
Under the provision of the Constitution dealing with opinions of the Justices of the Supreme Judicial Court, advisory opinions upon constitutional questions have often been given, but such advisory opinions are given by the justices as individuals, not by the court. The justices act as individuals in their capacity as constitutional advisers of the other departments of government, and without the aid of argument, when they render an advisory opinion. Such opinions are not adjudications by the court and are not binding upon the court as precedents. If the same question arises later in the course of litigation, the duty of the court is to consider it anew, without being affected by the advisory opinion. Thus, there is no presumption that a statute enacted after an advisory opinion is given is valid. If litigation should follow the enactment of a bill, the facts may require that the court consider the question anew. This is the case, even though the current act of the legislature is not significantly different from the bill considered by the justices. And reconsideration of the issues is essential when proposals considered in an advisory capacity have been subsequently modified and clarified. However, on reexamination, the Supreme Judicial Court can adhere to the statements made in an advisory opinion where there is no contention that those statements do not represent the law, and can adopt a conclusion stated in an advisory opinion signed by the majority of the justices where nothing decided by the court since the advisory opinion was rendered is in conflict with those conclusions.
Citing Appeals Court decisions86
Appeals Court decisions may be cited as a source of Massachusetts law. An intermediate court is the maker of law in the same sense as the Supreme Judicial Court. Thus, one affected by an Appeals Court decision is governed by that decision until either that court or the Supreme Judicial Court declares otherwise.
Unpublished decisions of the Appeals Court are not to be cited as authority in unrelated cases. Decisions of the Appeals Court issued pursuant to the summary disposition rule, while binding on the parties, may not disclose fully the facts of the case or the rationale of the panel's decision. This is particularly true of the few cases where the panel affirms the judgment of the court below without writing any memorandum. While summary decisions are open to public examination, they are directed to the parties and to the tribunal which decided the case, who are the only persons who are cognizant of the entire record. In addition, the summary decisions of a panel are not considered by the entire court prior to release.
Denial of Further Appellate Review88
A precedent is binding on courts of equal or lesser rank, but not on a court of higher rank.89 An order by the Supreme Judicial Court denying further review of a decision by the Appeals Court should not be considered as an affirmation of the decision or reasoning of the Appeals Court. Such an order merely shows that, after consideration on the applicable statutory standard, the Supreme Judicial Court determined not to grant further review. Only a rescript or a rescript and opinion from the Supreme Judicial Court, after further review, can be considered a statement of the court's position on the legal issues concerned.
This does not mean that Appeals Court decisions may not be cited as sources of Massachusetts law. This statement of the rule does not derogate from the status and effect of Appeals Court decisions as legal precedent, but merely makes a distinction between the Supreme Judicial Court's order on an application for further review and its rescript after further review.
Summary Disposition of Appeals90
The Appeals Court disposes of countless cases in summary fashion under its Rule 1:28. The cases selected for such disposition (both civil and criminal) either involve no substantial question of law or they feature "some clear error of law-which has injuriously affected the substantial rights of an appellant and [the court] may by its order, affirm, modify or reverse the action of the court below."
Under the amended rule effective September 1, 1998, the panel is not required to provide an opportunity for oral argument in either civil or criminal cases. There is no constitutional infirmity in denial of oral argument. However, the court may require oral argument. The Appeals Court is not precluded from deciding a case under Rule 1:28 even after oral argument.
The grant or denial of a preliminary injunction, although an interlocutory order, may be appealed directly to the Appeals Court pursuant to statute. A timely appeal must be taken, otherwise the decision cannot be reviewed later unless there is a change of circumstances.91 This may also hold true for orders compelling or staying arbitration or confirming, modifying or vacating arbitration awards where there is a right of review under G.L. c.251, §18.
Appeals From Administrative Bodies92
There is no single rule of law applicable to the judicial review of decisions of every governmental agency. The most common rule of review of administrative decisions is called the substantial evidence test or standard. This name comes from the statutory provision which defines substantive evidence as "such evidence as a reasonable mind might accept as adequate to support a conclusion." In applying this standard, the reviewing court has held that it is not required to affirm the administrative decision simply because the record reflects evidence from which a reasonable mind might draw the desired inference. Whether there is substantial evidence must be determined on the entire record including whatever in the record detracts from its weight. The court has held that another way of casting the concept of substantial evidence is to conclude that the decision has reasonable support in the evidence.
The substantial evidence test requires a narrower review than the "clearly erroneous" test which is applied to a trial judge's findings when they are given appellate review. In applying the substantial evidence test, the court consistently defers to the expertise of the agency, whereas no such deference is paid to the "expertise" of the trial judge except the deference to the judge's findings of facts based on his opportunity to observe and evaluate a witness.
A less demanding standard of review seems to be whether the agency's decision was arbitrary or capricious or an abuse of discretion (they appear to be equivalents). This standard requires only a determination that there was a rational basis for the decisions
In still other cases, a Superior Court judge may be required to hear de novo an appeal from an agency. This de novo appeal does not restrict the Superior Court judge to the evidence introduced before the agency. The agency's decision carries no evidentiary weight." In reviewing the Superior Court decision, the appellate court is limited to an examination of the issues of law by the trial judge and the question of whether the judge's findings of fact pass the clearly erroneous test.
An appeal from an agency which is not a state agency within the meaning of G.L. c. 30A (State Administrative Procedure Act) may be accomplished by a civil action in the nature of certiorari. The standard of review in such a case may be the substantial evidence test, the arbitrary or capricious (abuse of discretion) test or the error of law test and the determination of which test is used is made "according to the nature of the action sought to be reviewed."
RULES OF APPELLATE COURTS 92a
The Massachusetts Rules of Appellate Procedure were modeled almost entirely upon the Federal Rules of Appellate Procedure. The Massachusetts Rules of Appellate Procedure were intended to simplify and expedite the procedure by which individuals take a case from the trial court to the appellate court by removing many of the traps for the unwary that previously prevented a litigant from having his appeal heard on the merits.
The Massachusetts Rules of Appellate Procedure drastically altered the procedure for judicial review in noncriminal cases in Massachusetts by making the concept of exception, and all authority and learning relating to bills of exception, obsolete. In addition, they eradicated pre-existing distinctions between bills of exceptions, appeals, claims of reports, and similar procedures.
Appeals to an appellate court are governed by the Massachusetts Rules of Appellate Procedure. Appellate court is defined as the full Supreme Judicial Court, the full Appeals Court, or a statutory quorum of either, whichever court is then exercising jurisdiction.
All proceedings relating to any appeal from a decision of a single Justice of the Supreme Judicial Court and a decision of any tribunal, appeal from which must by law be brought in the Supreme Judicial Court, must be before the full Supreme Judicial Court or a single justice of that court unless transferred to the Appeals Court by order of the Supreme Judicial Court. The Massachusetts Rules of Appellate Procedure govern such proceedings.
Other Rules May Apply
Numerous statutes provide that certain types of appeals are to be governed by the Massachusetts Rules of Appellate Procedure, with exceptions in some instances, such as:
FURTHER APPELLATE REVIEW
Further appellate review by the Supreme Judicial Court of an appeal decided by the Appeals Court may be obtained if
The grant of further appellate review is not a self-executing procedure; counsel must apply for it.
The certification authority granted to the Appeals Court justices under G.L. c. 211A, §11 is almost never exercised, Moreover, the Supreme Judicial Court has never transferred an appeal on its initiative to provide farther review. The Court may correct, revise or overrule any Appeals Court decision in the course of deciding an appeal before it. The prerequisites to the filing of an application, the contents of an application and an opposition, and their filing are specified in Mass.R.App.P. 27.1. The full Court acts an each application and any opposition without prior action by the Hearing List Committee. The SJC will not consider the arguments of a wholly unsuccessful party who did not seek further appellate review.
Issues on Further Appellate Review
If the Court allows the application, the issues then before the Supreme Judicial Court are not limited to those presented in the application unless the Court specifies limitations in the authorizing order.94 The Court has made supplementary comments in a variety of circumstances that counsel might consider.
For example, in Commonwealth v. Burno, 95 the Court concluded that it had the appeal before it "just as it was before the Appeals Court." The defendant had sought farther review of convictions affirmed by the Appeals Court, but not of certain charges remanded for a new trial.96 The Court's order granting the application did not contain any limitations.97 The Court noted that a defendant seeking review of one or more but not all charges "could request an order from [the] court granting further review only as to specific convictions (or issues)."98 The Court then stated that the Commonwealth would have the option of requesting consideration of other charges or issues by either including such a request in its opposition to the defendant's application or in an application of its own.99 In an instance in which the Commonwealth obtained further appellate review and the defendant did not request it, the Court observed that, as a result, "that put of the Appeals Court decision which affirmed the judgment of conviction is not before us." 100
More recently, the Court has repeated the basic premise, as follows:
In a civil case in which the Appeals Court had affirmed the dismissal of all claims except one for emotional distress, the Supreme Judicial Court allowed the employer's application and stated that the only issue before it was the correctness of the judge's dismissal of the action for emotional distress.104
The unusual situation originating from a denial of a request for further review, followed by remand and consideration in the superior court, and then by allowance of an application for direct review is discussed in Amherst Nursing Home, Inc. v. Commonwealth. 105 The Court stated that the denial of further review did not preclude Amherst from presenting anew arguments that were not successful before the Appeals Court in the first appeal.106
Denial by the SJC of further Appellate Review
If the SJC denies an application, the resulting order is not an affirmation of the Appeals Court's decision or reasoning.107 It indicates only that the Court did not grant further review.108 The Supreme Judicial Court may modify or revise an Appeals Court opinion in any of the Court's opinions.
Transfers and Reports to the SJC
These procedures for the transfer of appeals for direct and further review are supplemented by the rarely used dual authority granted in G.L. c. 211A, §12.109 That statute enables the Appeals Court to "report any case in whole or in part or any question of law arising therein" to the Supreme Judicial Court before or after rendering a decision. The statute also authorizes the Supreme Judicial Court to transfer certain pending appeals to the Appeals Court; and to transfer any matter, in whole or in part, or any issue therein from the Appeals Court to the Supreme Judicial Court.110
DIRECT APPELLATE REVIEW
On Order of the Appeals Court
Direct review by the Supreme Judicial Court is provided whenever the majority of the justices of the Appeals Court certify that direct appellate review is in the public interest.111 This determination may be made either at the request of one or more of the parties or at the Court's initiative.112 An order allowing the application or certification is transmitted by the clerk of the Appeals Court; upon receipt, direct appellate review is deemed granted. The clerk of the Appeals Court will then transmit all papers thus far filed in the case to the clerk of the full SJC and also notify the clerk of the lower court that the appeal has been transferred.
At Request of Party
The prerequisites to the filing of an application for direct appellate review, as well as specifications for the contents and filing of an application and an opposition, are set forth in Mass.R.App.P. 11(a)-(f). After the time for the filing of an opposition expires, the Court's three-justice Hearing List Committee acts on the application. If two members vote to allow the application, the appeal is transferred to the Supreme Judicial Court from the Appeals Court. If the application does not receive two votes from the committee, it is referred to the full Court for action where any two justices can vote to allow the application, Thus, any application that is ultimately denied will have been considered by the full Court.
When an application is allowed, issues open to consideration in the Supreme Judicial Court include those properly before the Appeals Court. If the court denies an application, that decision does not preclude the filing of an application for further appellate review.
At Initiative of Supreme Judicial Court
The Supreme Judicial Court may also order direct review on its own initiative.113 The Court, acting through its Hearing List Committee, reviews each appeal pending in the Appeals Court, as to which no application for direct appellate review has been filed, to determine whether the questions warrant transfer to and disposition of the appeal in the first instance by the Supreme Judicial Court. The statutory standards are specified in G.L. c. 211A, §10A.
In contrast to its procedure when acting on an application, the Court in selecting cases on its initiative reviews the briefs and the record appendix. The Supreme Judicial Court attempts to complete its review before the appeal appears on an Appeals Court argument calendar, in order to avoid inconveniencing the Appeals Court and counsel.
A second difference from the procedure initiated by application is that if the Hearing List Committee declines to transfer the appeal to the Supreme Judicial Court on it, initiative, consideration is ended. The matter is net referred to the full Court.
Review and Certification
If the appeal is transferred on the Supreme Judicial Court's initiative, all issues properly raised before the Appeals Court are open to review by the Supreme Judicial Court.
Statute G.L. c. 211A, §10(B), also provides for review directly by the Supreme Judicial Court if the Appeals Court, "as a body or a majority of the justices ... certifies that direct review. . . is in the public interest." This authority is rarely exercised.
In deciding whether to allow an application for direct appellate review or whether to transfer an appeal on its initiative, the Court applies the criteria specified in G.L. c. 211A, §10(A) to consider the following:
The Massachusetts appellate court system serves the dual functions of assuring litigants that justice is rendered and managing the development of the Commonwealth's jurisprudence. Rules, procedures and directives allocate between the Appeals Court and the Supreme Judicial Court those appeals over which they have concurrent jurisdiction.
By understanding the purposes of a two-tier appellate one can structure, appreciate the bases for the allocation of appeals between the Appeals Court and the Supreme Judicial Court and incorporate that insight into briefs and applications for direct and further review. Overlooking the requirements of the Rules of Appellate Procedure, ignoring the roles of the two courts or not considering the allocation process or the statutory and rule standards may well forfeit the opportunity for review.
APPELLATE DIVISION OF
Filing Notice of Appeal
Obtaining a Ruling
Requesting a Report
Time for Filing Draft Report
Further Appeal to the Superior Court
Further Appeal to the Appeals Court
The Appellate Division of the District Court serves as a forum in which rulings of law made in certain District Court civil actions may be reviewed. Such review is available only in civil actions which did not have to be brought in the District Court.
Thus tort and contract actions, which may be brought in either the Superior Court or the District Court (regardless of amount) may be appealed to the Appellate Division.
The Appellate Division consists of three geographical districts, each with five judges assigned to Appellate Division duty. Cases are heard by panels of three Appellate Division judges. The Boston Municipal Court has its own Appellate Division.
Filing Notice of Appeal
In order to appeal, the appellant must file a notice of appeal with the clerk of the trial court, together with a filing fee, within ten (10) days after the entry of judgment. Dist./Mun. Cts. R.A.D.A. 3(a), 4(a). In addition to filing the notice of appeal, the appellant must serve a copy of the notice upon all other parties.
The notice of appeal filed pursuant to the District/Municipal Courts Rules for Appellate Division Appeals must be more detailed than the notice filed pursuant to the Rules of Appellate Procedure followed in appeals from the superior and probate courts. In addition to identifying the party taking the appeal and the judgment, ruling, or decision the party is appealing from, the notice must set forth a concise statement of the issue of law being presented for review and must either include or have attached to it a copy of the motion, request for ruling, or proof of evidence giving rise to the ruling. Dist./Mun. Cts. R.A.D.A. 3(c)(1)-(4).
The procedure for appeal to the Appellate Division is governed by G.L. c.231, 108 and by Rule 64 of the Dist./Mun.Cts.R.Civ.P. The provisions of Rule 64 are extensive and detailed and are often strictly construed; failure to comply can be fatal to the right of appeal.
The process of appeal to the Appellate Division reflects the facts that (1) District Court proceedings usually are not stenographically recorded, and (2) the District Court judge is under no requirement to prepare, sua sponte, rulings of law in deciding a civil case. Thus a party, prior to claiming appeal, has the burden of taking action to obtain rulings and to preserve them in order to establish a record for appeal to the Appellate Division.Obtaining a Ruling General Laws c. 231, 108 provides that any party aggrieved by a ruling on a matter of law in a district court has the right to have that ruling "reported" (i.e., appealed) to the Appellate Division. See generally, Bushnell v. Bushnell, 393 Mass. 462,472 N.E.2d 240 (1984). The Appellate Division has no jurisdiction to review findings of fact. However, insofar as findings of fact involve reported ratings of law upon the evidence, they may be reviewed. Schon v. Odd Fellows' Bidg. Assn., 255 Mass. 465, 152 N.E. 55 (1926).
The first step in preserving this right to Appellate Division review is to
obtain a ruling of law from the trial judge. In tort and contract actions rulings of law
can be obtained as follows:
(a) During the course of the trial, by oral objections to the admission or
exclusion of evidence.
(b) During the course of the trial, by formal, written requests for rulings made prior to closing argument.
(c) In response to motions made before, during, or after trial (which must
be in writing unless made during the trial).
Each of these methods for obtaining a ruling is governed by particular procedural requirements.Requesting a Report
The first step in preserving this right to Appellate Division review is to obtain a ruling of law from the trial judge. In tort and contract actions rulings of law can be obtained as follows:
Each of these methods for obtaining a rating is governed by particular procedural requirements.Time for Filing Draft Report Once a ruling has been preserved for appeal by the filing of the request for report, the ruling must then be set forth by the party claiming the appeal in a draft report. The time period for filing the draft report is exactly the same as that for filing the request for report (i.e., ten days from the entry of judgment), including the provisions for extension based on "good cause." This extension prevision appears to be designed for cases in which a party needs more time due to the number or complexity of the issues to be set forth in the draft report. Rules
The District/Municipal Courts Rules of Civil Procedure govern civil appeals in the district and municipal courts and were completely revised effective July 1, 1994. A litigant must file requests for rulings in order to preserve his or her right to appeal. Dist./Mun. Cts. R. Civ. P. 64A(a). In addition to permitting requests relative to specific issues of law, the rules specifically permit a catch-all request relating to the sufficiency of the evidence. Dist./Mun. Cts. R. Civ. P. 64A(b)Procedure Appellate Division procedure for consideration of the merits of an appeal begins with notice to the parties from the trial court of the allowance by the trial judge, or the establishment by the Appellate Division, of the draft report. Appellate Division briefs must be filed by counsel with the clerk within fifteen days after such notice, unless the Appellate Division allows further time for good cause shown. It would appear that this fifteen-day period runs from the date notice is received by the parties.
Under the general provision of Rule 5(a) of the Dist./Mun.Cts.R.Civ.P., a copy of a brief must be served on all opposing parties. However, Rule 64(f) specifies that extra copies for counsel must be filed with the clerk and implies that the clerk, and not the filing party, will serve those copies.
Rule 64(f) specifies that five copies of the brief and five copies of the report also be filed within the same fifteen-day period.
Under Rule 64(f) the Appellate Division need not rule on any issues that are not argued in briefs; without special court permission, no oral argument will be heard from a party who has not properly filed a brief.
Technical requirements far the format, size, and contents of briefs are also set forth in Rule 64(f). Failure to comply substantially with the requirements of Rule 64(f) regarding briefs can result in their rejection by the Appellate Division, and the submission of "sub-standard" briefs can even be deemed to be equivalent to a waiver of appeal. Also, failure to file adequate briefs or to appear for oral argument can result in dismissal of the appeal for lack of prosecution, and double costs can be imposed under Rule 64(g) of the Dist./Mun.Cts.R.Civ.P.Motions All motions made to the Appellate Division are governed by the general provisions of Rule 6(c) of the Dist./Mun.Cts.R.Civ.P., specifying the time for serving motions generally.
Rule 64(h) requires that motions that must be heard by the Appellate Division be filed in the trial court not less than five days prior to the hearing.
If the Appellate Division reaches the merits of the appeal and decides that there has been no prejudicial error in the rulings complained of, it must dismiss the report. It may impose double costs if it finds that the appeal was frivolous or intended for delay.
If the Appellate Division finds prejudicial error in the rulings reported it may reverse, vacate or modify the judgment or order a new trial in whole or in part.
The Appellate Division may take testimony on any issue before it and decide issues of fact dependent on issues of law or direct a trial of such facts by a District Court judge. This power can be used in those cases where the Appellate Division reverses, vacates, or modifies a ruling, and such action requires the determination of factual issues unresolved at the original trial or whose resolution is not part of the record before the Appellate Division.
The decision made by the Appellate Division must be sent to the clerk's office at the court from which the appeal originated. There it must be filed and the clerk must send notice to the parties. There is no specific time requirement within which such notice must be sent.Further Appeal to the Superior Court A party who has the right to appeal or retransfer a case to the Superior Court following district Court judgment may first appeal to the Appellate Division. One reason to appeal to the Appellate Division rather than proceeding directly to the Superior Court is that the District Court losing party who appeals for a new trial in the Superior Court will have to contend with the District Court finding as prima facie evidence in the Superior Court. It may be preferable to seek to reverse the judgment in the Appellate Division on the basis of error of law. This is especially true where the opposing party does not have the right to appeal thereafter to the Superior Court, because in such case an Appellate Division reversal of the judgment will leave the opponent with only an Appeals Court remedy.
Where a party has the right to appeal or retransfer to the Superior Court, but decides to first appeal to the Appellate Division, the time for the former will be stayed and will start to ran again in full from the date of the notice of the decision of the Appellate Division.And if a party has a right to appeal or retransfer to Superior Court but does not so act, the right of appeal to the Appeals Court will be lost.
The time periods for claiming appeal to the Superior Court are as follows: (1) for removal after trial (appeal) under G.L. c. 231, §104 thirty days from notice of the District Court decision; (2) for retransfer of a cast remanded from Superior Court under G.L.c.231, §102C, ten days from notice of the District Court decision. When an appeal to the Appellate Division is seasonably claimed, these same periods for appeal or retransfer, as the case may be, will begin to ran again after notice of the decision of the Appellate Division. Under Rule 64(i) the decision of the Appellate Division must be sent to the clerk's office a the court where the action was tried, and notice sent by the clerk to the parties. It would seem that the ten-day and thirty-day periods ran from receipt by the party of the notice from the clerk of the trial court, just as in the case of removal or retransfer where there has been no Appellate Division review.Further Appeal to the Appeals Court A party is entitled to appeal to the Appeals Court from a "final decision of the appellate division of any district court." G.L. c.231 §109; G.L. c.231 §10 Thus an Appellate Division decision may be appealed if the party is not entitled to remove or retransfer the case to the Superior Court. The procedure for such appeal is governed by the Massachusetts Rules of Appellate Procedure. Rule 64(j), Dist./Mun.Cts.R.Civ.P.; Rule 1, Mass.R.App.P.
An aggrieved party who is entitled to remove or retransfer a District Court case to the Superior Court after District Court judgment (including any Appellate Division review) must do so before any appeal to the Appeals Court will be available.
In reviewing a decision from the Appellate Division, the Appeals Court "can make such order as the Appellate Division ought to have made. First Safety Fund National Bank v. Friel, 23 Mass. App. Ct. 583, 589, 504 N.E.2d 664 (1987), citing Elliott v. Warwich Stores, Inc., 329 Mass. 406, 410; 108 N.E.2d 681 (1952).JUSTICES OF
THE APPELLATE DIVISION
Boston Municipal Court
1 A research project first submitted by Ron Golini on October 31, 1998 in partial fulfillment of the requirements of the course Massachusetts Civil Practice, offered by Hon. George Jacobs at the Southern New England School of Law. 2 ABA, Standards Relating to Appellate Courts, Introduction and §3 (1994). 3 G.L. c. 211A, §10. 4 G.L. c. 211A, §10(A); Mass.R.App.P. 11. 5 Mass.R.App.P. 11. 6 J. Paxton Blair, Appellate Briefs and Advocacy, 18 Ford.L.Rev. 30, 46-47 (1949). 7 Mass.R.App.P. 8(a). 8 E.g., Nancy P. v. D'Amato, 401 Mass. 516, 524, 517 NE 2d 824, 829 (1989). But see Mulins v. Pine Manor College, 389 Mass. 47, 63, 449 N.E.2d 331, 341 (1983) (issue of some public importance reached despite appellant's failure to raise the point below, at least under circumstances where result was not changed by consideration of the argument). 9 Commonwealth v. Freeman, 352 Mass. 556, 563-64, 227 N.E.2d 3, 8-9 (1967) (standard applicable to cases other than first-degree murder convictions or "a substantial likelihood of a miscarriage of justice" more lenient standard applicable to first degree murder convictions). Commonwealth v. Lennon, 399 Mass. 443, 448-49 n.6, 504 N.E.2d 1051, 1055 n.6 (1987)
10 See Commonwealth v. Gelpi, 416 Mass. 729, 730-31, 625 N.E.2d 543, 544 (1994).
11 G.L. c. 231, §119; Mass.R.Civ.P. 61.
12 E.g., Doyle v. Dong, 412 Mass. 682, 687-89, 591 N.E.2d 1084, 1087-88 (1992).
13 Whitehall Co., Ltd. v. Barletta, 404 Mass. 497, 504, 536 N.E.2d 333, 338 (1989).
14 See Mass.R.App.P. 26.
15 Mass.R.App.P. 26(a).
16 See, e.g., Mass.R.Civ.P. 62, Mass.R.App.P. 6 (stay pending appeal of judgment granting, dissolving or denying injunction may be conditioned upon bond or other security); G.L. c. 239, §5 (bond required in summary process cases).
17 Mass.R.Civ.P. 62(d); MacLachlan v. Brotherhood Oil Corp., 10 Mass.App.Ct. 811, 812, 404 N.E.2d 127Z 1273 (1980).
18 G.L. c. 235, §8.
19 Mass.R.Civ.P. §58
20 Mass. R.A.P. 4.
21 See, Mass. R. Civ. P. 77; Locke v. Slater, 387 Mass. 682, 442 N.E.2d 732 (1982).
22 Boston Edison Co. V. Boston Redevelopment Auth.., 374 Mass. 37, 43, 371 N.E.2d 728, 735 (1977).
23 Aetna Casualty & Sur. Co. v. Continental Casualty Co., 413 Mass. 730, 734-35, 604 N.E.2d 30, 33 (1992) (prevailing party may argue on appeal that the judge was right for the wrong reasons, even relying on a principle not argued below, as long as the new argument does not depend on facts not established in the record)
24 See, Mass. R.A.P. 4(a)
25 Kropp v. Gulf Oil Corp., 29 Mass. App. Ct. 11 6,120,557 N.E.2d 769 (1990).
26 See, Cummings v. City Council of Gloucester, 28 Mass. App. Ct. 345, 347-49, 551 N.E.2d 46 (1990). See also, Filios v. Commissioner of Revenue, 415 Mass. 806, 615 N.E.2d 933 (1993).
27 Board of Appeals of Rockport v. DeCarolis, 32 Mass. App. Ct. 348, 588 N.E.2d 1378 (1992).
28 See , Siles v. Travenol Laboratories, Inc., 13 Mass. App. Ct. 354, n.1, 433 N.E.2d 103 (1982).
29 See , Blackburn v. Blackburn, 22 Mass. App. Ct. 633, 495 N.E.2d 900 (1986); Anthony v. Anthony, 21 Mass. App. Ct. 299, 486 N.E.2d 773 11985). See also, Finn v. McNeil, 23 Mass. App. Ct. 367, 502 N.E.2d 557 (1987).
30 Karen Construction Co. v. Lizotte, 396 Mass. 143, 145, 484 N.E.2d 101 1 (1985).
31 Allen v. Batchelder, 17 Mass.App.Ct. 453, 458, 459 N.E.2d 129, 133 (1984).
32 Mass.R.App.P. 25 and 26; G.L. c. 211, §10 (Supreme Judicial Court); G.L. c. 211A, §15 (Appeals Court).
33 Price v. Cole, 31 Mass.App.Ct. 1, 7, 574 N.F.2d 403, 407 (1991); Allen v. Batchelder, 17 Mass.App.Ct. 453, 457-60, 459 N.E.2d 129, 132-34 (1984). But see Commonwealth v. One 1987 Ford Econoline Van; 423 Mass. 407, 413 n.10, 597 N.E.2d 430, 435 n.10 (1992) (SJC declined to impose attorney fees where appeal was not frivolous and where appellee did not point to any authority permitting the imposition of attorney fees by that court).
34 Avery v. Steele, 414 Mass. 450, 455, 608 N.E.2d 1014, 1017 (1993); VMS Inv, Ltd. v. Keezer, 34 Mass.App.Ct. 119, 120, 606 N.E.2d 1352, 1352 (1993).
35 Avery v. Steele, 414 Mass. 450, 456-57, 608 N.E.2d 1014, 1017-18 (1993).
36 Koonce v. Aldo Realty Trust, 8 Mass.App.Ct. 199, 199, 392 N.E.2d 549, 550 (1979).
37 Application of O'Brien, 403 Mass. 1005, 1006, 529 N.E.2d 886 (1988) (rewdpt). Cronin v. Strayer, 392 Mass. 525, 528, 467 N.E.2d 143, 1445-46 (1984).
38 Bean v. 399 Boylston St., Inc., 335 Mass. 595, 5996, 141 N.E.2d 363, 364 (1957).
39 Mayflower Dev. Corp. v. Town of Dennis, 11 Mass.App.Ct. 630, 634 n.8, 418 N.E.2d 349, 353 n.8 (1981). However, orders denying intervention are final orders subject to immediate appeal. Id. at 635, 418 N.E.2d at 353; see also Massachusetts Fed'n of Teachers, AFT AFL-CIO v. School Comm of Chelsea, 409 Mass. 203, 204, 564 N.E.2d 1027, 1029 (1991).
40 LaLonde v. LaLonde, 28 Mass.App.Ct. 969, 969, 552 N.E.2d 124, 125 (1990) (rescript).
41 B.M.C. Durfee Trust Co. v. Turnee, 299 Mass. 276, 279, 12 N.E.2d 847, 849 (1938).
42 But see Commonwealth v. Beausoleil, 397 Mass. 206, 206-07, 490 N.E.2d 788, 790 (1986) (denial of Commonwealth's motion in limine requesting admission of paternity test results treated as an allowance of a motion to suppress under Mass.R.Crim.P. 15(b); interlocutory review permitted.)
43 In As Matter of a Grand Jury Subpoena, 411 Mass. 489, 490, 583 N.E.2d 241, 242 (1992). If the subpoenaed party wishes to appeal from the order, he or she must first disobey the subpoena and appeal from an adjudication of contempt. Id. at 490, 583 N.E.2d at 242.
44 Rollins Envtl Serv., Inc. v. Superior Court, 368 Mass. 174, 177, 330 N.E.2d 814, 818 (1975). Such orders also are not reviewable on appeal after trial on the merits. Deerskin Trading Post Inc v. Spencer Press, Inc., 398 Mass. 118, 126, 495 N.E.2d 303, 306 (1986).
45 Jason v. Jacobson, 387 Mass. 21, 23, 438 N.E.2d 817, 818 (1982).
46 Mass.R.App.P. 4(a).
47 See Okongwu v. Stephens, 396 Mass. 724, 727-28, 488 N.E.2d 765, 767-68 (1986).
48 Mass.R.Civ.P. 54(b). See New England Canteen Service, Inc. v. Ashley, 372 Mass. 671, 677-78, 363 N.E.2d 526, 530 (1977).
49 Acme Engg & Mfg. Corp. v. Airadyne Co., Inc., 9 Mass.App.Ct. 762, 764, 404 N.E.2d 693, 696 (1980).
50 Id; see also High-Tech Sales, Inc. v. Olektron Corp., 31 Mass.App.Ct 912, 913, 575 N.E.2d 1154, 1156 (1991) (rescript).
51 J.B.L. Constr. Co. v. Lincoln Homes Corp., 9 Mass.App.Ct. 250, 252-53, 400 N.E.2d 871, 872 (1980).
52 Maddocks v. Ricker, 403 Mass. 592, 598, 531 N.E.2d 583, 587 (1988).
53 Borman v. Borman, 378 Mass. 775, 779-80, 393 N.E.2d 847, 952 (1979).
54 Id. at 782 n. 12, 393 N.B.2d at 853 n. 12; see also Maddocks v. Ricker 403 Mass. 592, 600, 531 N.E.2d 583, 598 (1988).
55 G.L. c. 231, §111 (authorizing reports from the superior, land and housing courts) and G.L. c. 231 §112 (authorizing reports by a single justice of the Supreme Judicial Court); Mass.R.Civ.P. 64; Mass.R.Crim.P. 34.
56 Rhode v. Beacon Sales Co., 416 Mass. 14, 15 n.2, 616 N.E.2d 103, 104 n.2 (1993).
57 Transamerica Ins. Group v. Tumer Constr. Co., 33 Mass.App.Ct. 446, 447-48 n.2 601 N.E.2d 473, 474-75 n.2 (1992).
58 Dorfman v. Allen, 396 Mass. 136, 138, 434 N.E.2d 10 12, 1014 (1982).
59 See Shabshelowitz v. Fall River Gas Co., 412 Mass. 259, 261, 588 N.E.2d 630, 631 (1992); Peerless Ins. Co. v. Hartford Ins. Co., 34 Mass.App.Ct. 534, 535, 613 N.E.2d, 125, 126 (1993).
60 E.g., Cusic v. Commonwealth, 412 Mass. 291, 294, 588 N.E.2d 665, 666 (1992).
61 Mass.R.Civ.P. §53.
62 Mass.R.Civ.P. §55
63 See G.L. c. 231, §112 (party aggrieved may appeal from judgments of superior, land and housing courts); G.L. c. 215, §9 ("person aggrieved" may appeal from orders, judgments and decrees of probate court).
64 Boston Edison Co. v. Boston Redevelopment Auth. 374 Mass. 37, 45 371 N.F-2d 728, 736 (1977).
65 Lovejoy, Petitioner, 352 Mass. 660, 663, 227 N.E2d 497, 499 (1967), and cases cited.
66 Monize v. Frisolt, 6 Mass.App.0. 50, 51, 372 N.E.2d 539, 540 (1978).
67 Town Bank & Trust Co. v. Eaton, 358 Mass. 346, 350, 264 N.E.2d 686, 688-89 (1970); Barnett v. Riceman, 294 Mass. 148, 151, 1 N.E.2d 11, 12-13 (1936).
68 Lovejoy, Petitioner, 352 Mass. 660, 663, 227 N.E.2d 497, 499 (1967).
69 See, e.g., Currens v. Board of Assessors of Boston, 370 Mass. 249,254,346 N.E.2d 849 (1976). See also, Nantucket Land Council, Inc. v. Planning Board of Nantucket, S Mass. App. Ct. 206, 207, 361 N.E.2d 937 (1977).
70 Shawmut Community Bank, N.A. v. Zagami, 30 Mass. App. Ct. 371, 373-74, 568 N.E.2d 1163 (1991), affirmed on this issue, 411 Mass. 807, 586 N.E.2d 962 (1992).
71 Metros v. Secretary of the Commonwealth, 396 Mass. 156, 159, 484 N.E.2d 1015, 1018 (1985).
72 District Attorney for the Hampden District v. 355 Publications, 35 Mass.App.Ct. 66, 68, 616 N.E.2d 493, 495 (1993).
73 Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 298, 327 N.E.2d 885, 889(1975).
74 Murphy v. Commissioner of the Dept. of Indus. Accidents, 415 Mass. 218, 221 n.5, 612 N.E.2d 1149, 1151-52 n.5 (1993); Metros v. Secretary of the Commonwealth, 396 Mass. 156, 159, 494 N.E.2d 1015, 1018 (1985).
75 See Wolf v. Commissioner of Pub. Welfare, 367 Mass. 293, 299, 327 N.E.2d 885, 889 (1975).
76 G.L. c. 211A, §10.
84 20 Am Jur 2d, Courts §201
85 20 Am Jur 2d, Courts §189
90 Mass.R.Civ.P. §5691 Manousos v. Sarkis, 382 Mass. 317, 416 N.E.2d 179 (1981).
92 Mass.R.Civ.P. §54
93 G.L. c. 211A, §11.94 See Ford v. Flaherty, 364 Mass. 382, 387 N.E. 3, 305 N.E.2d 112, 116 n.3 (1973) (citing Ballantine v. Fabwulh, 363 Mass. 760, 762 n.2, 298 NE, 2d 695, 697-98 n.2 (1973)); see also Commonwealth v. Souza, 390 Mass. 813, 815 n.1, 461 N.E, 2d 166, 168 n.1 (1984), 95 396 Mass. 622, 623-24, 487 N.B.2d 1366, 1368 (1986), 96 Id. at 623, 487 N.E.2d at 1367. 97 Id. at 624, 487 N.E.2d at 1368, 98 Id. 99 Id. See also Commonwealth v. Shea, 398 Mass. 264, 265, 496 N.E.2d 631, 632 (1986) (advising that Burno "should not be understood as stating that ... our grant of ... review of one conviction operates as a grant of... review of a separate, albeit related, convictions).
100 Commonwealth v. Fidler, 377 Mass. 192, 193 n.1, 385N.E, 2d5l3, 515 n.1 (1979).
101 Bradford v. Baystate Medical Ctr, 415 Mass. 202, 204, 613 N.E.2d 82, 831 (1993).
102 418 Mass. 777, 778 n.2, 641 N.E.2d 1054, 1055 n.2 (1994),
103 see Karen Constr. Co. v. Lizotte, 396 Mass. 143, 149 n.7, 484 N.E.2d 1011, 1014 n.7](1985). Commonwealth v. Lombard, 419 Mass. 585, 594, 646 N.E.2d 400, 406 (1995). See also Commonwealth v. Trowbridge, 419 Mass. 750, 752, 647 N.E.2d 413, 416 (1995).
104 McLaughlin v. Stackpole Fibers Co., 403 Mass. 360, 361, 530 N.E.2d 157, 158 (1988).
105 398 Mass. 850, 852, 501 N.E.2d 1161, 1162 (1986).
106 Id. at 852, 501 N.E.2d at 1162-63.
107 Ford v. Flaherty, 364 Mass. 382, 387, 305 N.E.2d 112, 116 (1973). 364 Mass. 382, 387, 305 N.E.2d 112, 116 (1973).
108 Id. at 387-88, 305 N.E.2d at 116.
109 See Mass.R.App.P. §1.
110 See also G.L. c. 211, §4A.
111 Mass.R.App.P. 11(f) amended effective January 29, 1996.
112 G.L. c. 211 A, §11(A); Mass.R.App.P. 11 (a).
113 G.L. c. 211A, §10A; Mass.R.App.P. 11(a).