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Massachusetts District/Municipal Courts Appellate Division Appeals Rule 10: Docketing the Appeal; Notice to the Parties

[Disclaimer]

Upon receipt from the trial court of (1) the six copies of the Expedited Appeal, docket entries and briefs, if any, under Rule 8A; (2) the six copies of the Agreed Statement, docket entries and briefs under Rule 8B; or (3) the six copies of the Appeal on the Record of Proceedings and docket entries under Rule 8C, as the case may be, the Appellate Division shall make a record of said receipt and promptly serve notice of said receipt on the parties. In the case of appeal under Rule 8A or 8B, said notice may include notice of the date for oral argument.

Effective July 1, 1994.

Commentary: This rule specifies clerical duties in the Appellate Division regarding receipt of the appeal from the trial court. It differs from Mass.R.Civ.P. 10 in several respects. For example, provisions in the latter are based on the filing fee being paid to the appellate court. In appeals to the Appellate Division, the filing fee is paid to the trial court along with the filing of the notice of appeal. See Rule 3(a). An appeal will not get to the Appellate Division unless the appropriate filing fee has been paid in the trial court.

With regard to the basic function of the rule, i.e. to provide for docketing of the appeal and notice thereof to the parties, this rule provides a simplified version of Mass. R.A.P. 10. For appeals under Rule 8A or 8B, the notice can specify the date for oral argument because in those cases briefs will already have been filed.

Failure of the parties to receive notice from the Appellate Division within a reasonable time after completion of procedures in the trial court can prompt an inquiry by the appellant to determine if the trial court has transmitted the appeal.

Although the caption of Rule 10 is identical to the caption of Mass. R.A.P. 10 in reference to "docketing" the appeal, the text of this rule uses the language "make a record of its receipt." This is because the Appellate Division is not a separate court, but rather an extension of the trial court whose case is on appeal. Thus, at least in a technical sense, it does not have its own docket. The only official docket in the case is that kept by the clerk of the trial court. On the other hand, the Appellate Division, or more accurately, each of the three "districts" of the Appellate Division, is its own administrative entity, and as such must make a record of all of its actions. When appropriate, that record should be deemed a continuation of the trial court docket.