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Massachusetts District/Municipal Courts Appellate Division Appeals Rule 3: Appeal--How Taken

[Disclaimer]

(a) Filing the Notice of Appeal. An appeal permitted by law from a trial court to the Appellate Division shall be taken by filing a notice of appeal together with the filing fee required by law with the clerk of the trial court within the time allowed by Rule 4. Such filing shall be in accordance with Rule 13(a). A copy of said notice of appeal shall be served on all other parties in accordance with Rule 13(b). Failure by an appellant to take any step other than the timely filing of a notice of appeal and payment of the filing fee shall not affect the validity of the appeal, but shall be ground only for such action as the Appellate Division deems appropriate, which may include dismissal of the appeal.

A party need not claim an appeal from an interlocutory ruling or order to preserve his or her right to have such order reviewed upon appeal from the final judgment; but for all purposes for which appeal from an interlocutory ruling or order has heretofore been necessary, it is sufficient that the party comply with the requirements of Dist./Mun.Cts.R.Civ.P. 46.

(b) Joint or Consolidated Appeals. If two or more persons are entitled to appeal from a judgment, ruling, finding or decision of a trial court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal, and they may thereafter proceed on appeal as a single appellant. Appeals may be consolidated by order of the Appellate Division upon its own motion or upon motion of a party, or by stipulation of the parties to the several appeals.

(c) Content of the Notice of Appeal. The notice of appeal shall limit the scope of the appeal and shall contain:

(1) a designation of the party or parties taking the appeal,

(2) a concise statement of the issues of law presented for review,

(3) the judgment, ruling, finding, decision or part thereof being appealed, and,

(4) in the case of rulings, a copy of the motion, request for ruling or proof of evidence giving rise to such ruling, if any;

(5) the notice of appeal may also include a request that the clerk order a cassette copy of the electronic recording of the proceedings, set forth on the required form and accompanied by the required fee.

The statement of issues of law required in section (c)(2), above, shall not prevent the statement of additional or alternative issues for appeal as provided in Rule 8C, below.

(d) Initial Duties of the Clerk. Upon receipt of a timely filed notice of appeal that includes a request for a cassette copy of the electronic recording of the proceedings and the fee therefor, the clerk of the trial court shall forthwith order such cassette copy and shall notify the requesting party immediately upon its availability.

Effective July 1, 1994.

Commentary: This rule governs the first steps an appellant must take. An appellant may decide which of the three types of appeal to select under Rules 8A, 8B or 8C after the notice of appeal has been filed.

This rule follows Mass. R.A.P. 3 with appropriate changes to refer to the Appellate Division. Also, the filing of the appropriate filing fee is added as a requisite of claiming appeal. Express references are also made to the rules governing the method of filing and service.

A major difference between this rule and Mass. R.A.P. 3 is that this rule requires the filing party to serve a copy of the notice of appeal on the other party or parties. This duty is left to the clerk under Mass. R.A.P. 3(d).

The second paragraph of section (a) is identical to its counterpart in Mass. R.A.P. 3(a) except that reference is made to Dist./Mun.Cts.R.Civ.P. 46. Note that under the terms of the latter no objection is needed to preserve for appeal rulings made by the court in response to requests for rulings under Dist./Mun.Cts.R.Civ.P. 64A.

Section (c) of Rule 3 is significantly different from its Mass.R.A.P. counterpart. The major differences involve the requirement of specificity when a particular ruling is being appealed and the option of including a request for a cassette copy of the tape recording of the proceedings. If the method of appeal chosen by the appellant is the one provided by Rule 8C, the appellant will not be limited to the issues set forth in the notice of appeal under this rule. Rather the issues for appeal will be those specified in the appendix to the appellant's brief. See Rule 18(a).

Section (d) of the rule sets out the duty of the court clerk when a request for a tape cassette is included in the notice of appeal.