NOTE: The following is a general summary of the appellate process under the District / Municipal Courts Rules for Appellate Division Appeal, for appeal of a civil case from a Massachusetts District Court or Municipal Court to the Appellate Division of the District Court. It covers the process from the filing of a Notice of Appeal through the oral argument. While providing a general overview of the appellate process and of the obligations of appellant and appellee, this summary does not discuss every nuance of the rules, nor their application to every type of appeal. Therefore, this summary should not be relied upon as a substitute for reading the District/Municipal Courts Rules for Appellate Division Appeal or other applicable directives.
An appeal from a Massachusetts District Court or Municipal Court to the Appellate Division of the District Court is subject to rules which differ significantly from the more familiar Massachusetts Rules of Appellate Procedure. Counsel handling such an appeal must understand the District/Municipal Courts Rules for Appellate Division Appeal. An attorney who does not regularly handle Appellate Division appeals should consider enlisting the aid of an appellate attorney who knows the applicable rules and can draft a persuasive appellate brief.
The Notice of Appeal — Rules 3 and 4:
Three avenues of appeal. An appeal to the Appellate Division is initiated by the appellant filing with the trial court a Notice of Appeal (“NOA”) . The NOA must be served on all other parties. The appellant may initiate an appeal under one of three procedures described in Rules 8A, 8B or 8C, but need not designate the type of appeal in the NOA. See comments to Rule 3.
Content. The NOA must:
(1) designate of the party or parties taking the appeal,
(2) provide a concise statement of the issues of law presented for review,
(3) identify the judgment, ruling, finding, decision or part thereof being appealed, and,
(4) in the case of rulings, include a copy of the motion, request for ruling or proof of evidence giving rise to such ruling, if any.
Rule 3(c). Although the statement of issues required by Rule 3(c)(2) limits the issues which can be considered on appeals under Rules 8A and 8B, it does not prevent the appellant from stating additional issues for appeal under Rule 8C.
In addition, the NOA may include a request that the District Court clerk order a cassette copy of the electronic recording of the proceedings. If the NOA includes such a request, the clerk must order the cassette and notify the requesting party when it becomes available. The Comment to Rule 8A notes that the process for obtaining a cassette copy “consists of sending the order and the master tape to the District Court Administrative Office (or in some cases to the Trial Court Administrative Office) for duplication. The cassette and master is then sent back to the requesting court and the rule requires the clerk to immediately notify the requesting party of its availability. The ‘turn around’ time for actually making the cassette copy is usually very short, no more than one or two days.”
Unlike an appeal to the Appeals Court, the appellant must pay the docket fee when filing the NOA for an appeal to the Appellate Division. Rule 3(a).
Timing. The NOA for an appeal to the Appellate Division must be filed within 10 days after the date of entry of the District Court judgment (in contrast to the normal 30-day period for appeal to the Appeals Court). Rule 4(a). Unlike Mass. R. App. P. 4, Appellate Division Rule 4 does not provide an extended time for filing by the Commonwealth or an office or agency thereof. Any other party may file a NOA within 14 days after the date on which the first NOA was filed. A special rule applies when certain post-trial motions have been filed in the trial court. When a motion is filed: to amend or make additional findings of fact under Rule 52(b); to alter or amend judgment under Rule 59 or for relief from judgment under Rule 60(b), however titled, if either motion is filed within 10 days after entry of the judgment; or for new trial under Rule 59, the time for appeal begins to run only upon the entry of an order denying new trial or granting or denying any other such motion.
Expedited Appeal — Rule 8A.
An expedited appeal may be appropriate when the issues are limited in number and fairly clearly defined. Appellant, within 20 days after filing the NOA, can file an Expedited Appeal. If the appellant wishes to review the taped record before deciding whether to file a Rule 8A Expedited Appeal, the appellant should check to ensure that the request for a duplicate cassettes, included with the NOA, is being promptly processed. The Expedited Appeal must be filed with the “judge by whose action the appellant claims to be aggrieved,” and must be served on all parties not later than the date of filing. Rule 8A(b). Service on the judge must be addressed to the court where the judge is then sitting or is likely to be siting, which may not be the court where the trial occurred.
Rule 8A(a)(1-8) detail what must be included in the appellant’s Expedited Appeal filing.
(1) a copy of the notice of appeal referred to in Rule 3;
(2) the text of any rulings of law by which the appellant claims to be aggrieved and the related requests for ruling, if any;
(3) a description of the stage of the proceedings at which, and the manner in which, the issues presented for review in the notice of appeal arose;
(4) a summary of the undisputed facts and so much of the evidence, including copies of pleadings and other documents, as may be necessary to decide the questions of law presented;
(5) the text of any memorandum of decision and findings of fact issued by the trial court;
(6) official citations to the essential statutes, rules of court, administrative rules or regulations, municipal ordinances and town bylaws;
(7) proof of service upon the parties and the trial court of the expedited appeal, including all attachments, pursuant to Rule 13(d); and
(8) a certification that the expedited appeal contains all the evidence, facts and other material necessary for consideration of the appeal by the Appellate Division.
Under Rule 8A(b), if the appellee objects (within 10 days of the filing by appellant) to the contents of the Expedited Appeal, the Expedited Appeal automatically terminates. The appeal may then continue under 8B or 8C.
If no party objects to the Expedited Appeal, then the appellant must file in the trial court, within 25 days after filing the Expedited Appeal, six additional copies of the Expedited Appeal and six copies of appellant’s brief. Rule 8A(c). Appellant must serve one copy of the brief on each party. The appellant is not required to file an appendix to the brief in a Rule 8A Expedited Appeal. The appellee must file six and serve one copy of his or her brief within 15 days after service of appellant’s brief. The appellant may then file six and serve one copy of a reply brief within 10 days after service of appellee’s brief. Rule 8A(c).
The content and form of the briefs must comply with Rules 16 and 20, respectively (discussed more fully in the section on Rule 8C appeals, below). Rule 8A(c). No appendix is required for an Expedited Appeal. Rule 8A(c).
Sixty days after filing the Expedited Appeal, the District Court clerk transmits six copies each of the Expedited Appeal, the docket entries, and the briefs to the Appellate Division.
Appeal on Agreed Statement — Rule 8B.
The parties have 30 days after filing of the NOA, or after termination of a Rule 8A appeal, to file an Agreed Statement with the trial court. The Agreed Statement must include “a copy of the notice of appeal, shall show how the issues presented by the appeal arose and were decided in the trial court and shall set forth only so many of the facts proved or sought to be proved as are essential to a decision of the issues presented.” Rule 8B(b).
The judge may terminate this type of appeal by disapproving the Agreed Statement or may condition approval on changes in the Statement. The Agreed Statement is deemed approved if the judge fails to act on it within 15 days after its filing. If the Agreed Statement is disapproved or approved with conditions that either party finds unacceptable, the Rule 8B appeal is terminated and the appeal continues under Rule 8C. The trial court clerk will send the parties notice of the Court’s approval (including approval based on inaction), approval with conditions, or disapproval of the Agreed Statement.
If the Agreed Statement is approved, appellant must file in the trial court, within 25 days after receiving notice of the approval, six additional copies of the Statement and six copies of appellant’s brief. Rule 8B(d). The appellant must serve one copy of the brief on each party. No appendix is required for a Rule 8B appeal. The appellee then must file six and serve one copy of his or her brief within 15 days after service of appellant’s brief. The appellant may then file six and serve one copy of a reply brief within 10 days after service of appellee’s brief. Rule 8B(d).
Sixty days after final approval of the Agreed Statement, the District Court clerk transmits six copies each of the Agreed Statement, the docket entries, and the briefs to the Appellate Division.
Appeal on the Record of Proceedings – Rule 8C.
To invoke a Rule 8C appeal, the appellant, within 30 days of filing the NOA or 30 days after termination of a Rule 8A or 8B appeal, must file and serve on all parties a document entitled “Appeal on the Record of Proceedings.” This document states the appellant’s intent to proceed under Rule 8C and also requests a cassette copy of electronically recorded proceedings. Note, however, that “no transcript or statement of the evidence shall be required for appeal under this rule where the issue or issues presented is raised solely by the pleadings.” Rule 8C(a).
The record of proceedings consists of “a typewritten transcript of the electronic or stenographic recording of the proceedings or, where no such record is available, a statement of the evidence.” Upon request, the clerk of the trial court orders the cassette and must notify the requesting party upon its availability. Rule 8C(b). If the appellee deems it necessary to have a cassette in order to consider counter-designating (see below) or for other purposes, the appellee should order the cassette from the court clerk promptly after receiving the appellant’s Appeal on the Record of Proceedings.
Preparation of the transcript. Within 15 days after receipt of notice from the clerk of the availability of the cassette (or if the cassette was previously obtained within 15 days of filing the “Appeal on the Record of Proceedings”) the appellant must file and serve a “Designation for Transcription” which designates the parts of the cassette to be transcribed. Rule 8C(c)(1). The Designation also must include the date of receipt of the cassette and, if the appellant and appellee have previously agreed on a person to transcribe the cassette, the name address and phone number of that transcriber. If the parties have not agreed on the transcriber, the Designation must notify the clerk to select transcriber.
If the appellant has designated the entire cassette, then the appellant sends the cassette to the transcriber within the same 15 days for filing the Designation. If the appellant has not designated the entire cassette, then the appellant must wait until 20 days after serving the Designation of Transcription on the appellee before sending the cassette to the transcriber. This delay allows the appellee time to counter-designate as described below.
If the appellant has not designated the entire transcript, then the appellee may counter-designate. Within 15 days after receipt of the appellant’s “Designation for Transcription” the appellee may file and serve on the appellant a list of additional parts of the cassette to be transcribed. Rule 8C(c)(2).
If the appellee wants a copy of the designated portions of the transcript, the appellee must promptly communicate to the transcriber the number of copies wanted and make arrangements for payment.
Where a stenographic record exists. In the event that a court reporter was present at the proceedings and made a stenographic record (instead of the normal cassette), the appellant must, within 10 days after filing the Appeal on the Record of Proceedings, order from the reporter the parts of the proceedings relevant to the appeal. Unless the appellant has ordered the entire transcript, the appellant must, within the same 10 day period, file and serve a designation of the parts of the transcript he or she intends to include in the record. Within 10 days after receipt of this designation, the appellee can counter-designate. Rule 8C(d).
Statement of the Evidence where no transcript exists. If there is no transcript, or if it is unavailable, the appellant may, within 30 days after filing the Appeal on the Record of Proceedings, file a Statement of the Evidence “from the best available means, including his or her recollection.” Rule 8C(e). The appellee may object to the appellant’s Statement of the Evidence within 10 days after service. The trial court judge ultimately settles the content of the Statement of the Evidence, which is then included in the case file and, as necessary, in the appellant’s appendix to the brief.
Docketing the Rule 8C appeal. Under Rules 8C(g) and 9, within 30 days after notice from the trial court clerk of receipt of the transcript from the transcriber (or within 30 days after approval of a Statement of the Evidence), the appellant must file 6 additional copies of the Appeal on the Record of Proceedings. Upon receipt, the clerk sends them, with 6 copies of the docket entries, to the Appellate Division. Upon receipt of the 6 copies of the Appeal on the Record of Proceedings, the Appellate Division dockets the appeal and gives notice to the parties. Rule 10.
The Rule 8C briefing schedule. Unlike appeals under Rules 8A and 8B, briefs for a Rule 8C appeal are filed with the Appellate Division. Under Rule 8C, the appellant’s brief must be filed within 30 days after notice from the Appellate Division that the appeal has been received from the trial court. Rule 19(a). In contrast to appeals under Rules 8A and 8B, the appellant in a Rule 8C appeal must file an appendix (discussed below). The appellee’s brief is due 20 days after service of the appellant’s brief and the appellant may file a reply brief within 14 days after service of the appellee’s brief. Rule 19(a). Six copies of each brief must be filed with the Appellate Division, and one served on each party. Rule 19(b).
Briefs — Rules 16 and 20.
Rule 16(a) details the content of the appellant’s brief:
(1) In all briefs of twenty pages or more, a table of contents … and a table of cases … statutes and other authorities cited, with references to the pages of the brief where they are cited.
(2) A statement of the issues presented for review.
(3) A statement of the case, which shall first indicate briefly the nature of the case, the course of proceedings, and its dispositions in the trial court. There shall follow a statement of the facts relevant to the issues presented for review with appropriate references to the record…).
(4) The argument …. In a brief of more than twenty-four pages of argument, there shall be a short summary of argument….
(5) A short conclusion stating the precise relief sought.
(6) In cases where geographical facts are of importance, unless appropriate plans are reproduced in the printed record or record appendix, an outline plan or chalk (preferably based on exhibits in evidence) shall be included….
(7) The names, addresses, and telephone numbers of individual counsel to which firm names may be added.
Rule 16(b) requires essentially the same content in the appellee’s brief. Primary briefs are limited to 50 pages while a reply brief is limited to 20 pages. Rule 16(h).
Rule 20 concerns the form of the briefs. It states, in part:
… All printed matter must be printed upon opaque paper having a dull surface; the text shall be in clear type, not smaller than eleven-point, with three-point leads between lines; but indented quotations may be set without leads; and in footnotes ten-point type with one-point leads between lines may be used; the width of the type page shall not exceed five inches. All matter to be reproduced by Xerography or a similar process shall be typed in pica type, double-spaced. However produced, the page shall be eight and three-eighths or eight and one-half inches in width and ten and three-fourths or eleven inches in height. The width of the back margin, from the type page to the center fold, shall not be less than two inches. Pages shall be firmly bound at the left by saddle-wiring, side-wiring, stapling, or sewing. If side-wired or sewed, a strong paper cover shall be used. A transcript of testimony or a report of evidence may be printed as part of the appendix or may be reproduced by Xerography or a similar process….The front covers of the briefs and/or appendices, if separately produced, shall contain: (1) a designation of the Appellate Division district; (2) the title of the case; (3) the nature of the proceeding in the Appellate Division (e.g., Appeal; Report by Trial Judge) and the name of the trial court and case and the trial court docket number; (4) the title of the document (e.g., Brief for Appellant, Appendix); and (5) the names, addresses and telephone numbers of counsel representing the party on whose behalf the document is filed.
Although the commentary to R.A.D.A. 20 states that it is “essentially the same as Mass. R. App. P. 20, the requirements of the two rules differ in some significant ways. While R.A.D.A. 20 allows text to appear in 11 point type and footnotes in 10 point type, Mass. R. App. P. 20 requires 12 point type throughout. In addition, R.A.D.A. 20 limits the width of the printed area to 5 inches, while Mass. R. App. P. 20 allows 5.5 inches.
The appendix – Rule 18.
With the brief, the appellant in a Rule 8C appeal must file an appendix. It is the appellant’s responsibility to prepare the appendix. Rule 18(a) lists the required contents of the appendix:
(1) the notice of appeal;
(2) a copy of the docket entries in the trial court proceedings;
(3) the findings, if any, and relevant portions of the pleadings;
(4) the judgment, order, decision or rulings in question;
(5) the transcript or relevant portions thereof; and
(6) any other parts of the record for appeal which are necessary for the full understanding of the issues presented.
Rule 18(b) states that, unless the parties agree on the contents, the appellant, within 10 days of notice from the Appellate Division of receipt of the appeal from the trial court, must serve on the appellee a designation of the parts of the record he or she intends to include in the appendix. Unlike Mass. R. App. P. 18, the appellant is not required to include in the designation a statement of issues for appeal. Within 10 days thereafter, the appellee may counter-designate. The cost of the appendix is to be borne by the appellant, but a dispute can be brought to the court. Rule 18(b)
The arrangement of the appendix is discussed in Rule 18(d), including requirements that its pages be consecutively numbered and that the parts of the record be set out in chronological order.
Six copies of the appendix must be filed and one served on each party, with the appellant’s brief. While the rule indicates that subdivision (e) may limit the number of copies of certain exhibit and transcript volumes of the appendix to be served, it does not appear to do so. Compare Rules 18(a) and 18(e).
Prehearing conference – Rule 21.
The Appellate Division may direct the attorneys for the parties to appear before it for a prehearing conference to consider simplification of the issues. Rule 21.
Oral argument – Rule 22.
The Appellate Division shall advise the parties of the time and place or oral argument. Generally 15 minutes per side is allotted.