(a) Claim of Appeal. A defendant's claim of appeal for trial by a judge or before a jury of six persons shall be made in writing, shall comply with the requirements of G.L. c. 218, § 23 , and shall specify whether the defendant claims trial by a judge or before a jury. The defendant shall mail a copy of the claim of appeal to the plaintiff. Upon the defendant's filing of a claim of appeal, the clerk shall forthwith note on the docket of the case the receipt of the claim of appeal, the filing fee for the appeal required by section 23, and any appeal bond required by section 23 or an equivalent cash deposit in lieu thereof. If each of these items has been timely received, the clerk shall schedule the matter for trial. If a jury trial is to be held at another division, the clerk shall transmit the original docket entries and the original papers in the case, or an attested copy of the original docket entries and the original papers in the cases to the clerk of the appropriate jury session. The court may waive the filing fee if the applicant is indigent and may waive the bond requirement if it finds that the applicant has insufficient funds to furnish the bond and that the appeal is not frivolous. Prior to the case being tried in the division from which the case is appealed or transmitted to the jury session at another division, any judge of the division from which the case is appealed may hear and determine any question raised by a party concerning the defendant's compliance with the statutory requirements for appeal. The clerk of the division from which the case is appealed shall retain custody of any appeal bond posted pursuant to section 23 or any equivalent cash deposit in lieu thereof, and shall deposit with the State Treasurer the filing fee and surcharge for the appeal.
If any required item has not been timely received, the clerk shall so notify both parties, shall return any filing fee, surcharge, appeal bond or cash deposit in lieu thereof forwarded by the defendant, and shall note such action, and the reasons therefor, on the docket. The clerk's notice shall inform the defendant that he may have the issue of his compliance with the statutory prerequisites for appeal determined by a judge, upon motion filed within ten days of receiving the notice.
(b) Conduct of Trials. Trials by a judge or before a jury shall be conducted in accordance with the provisions of Rule 7, and, in the case of a trial before a jury, in accordance with the provisions of law applicable to jury trials in the Superior Court Department. In a trial before a jury, the judge may direct that any provisions of the Massachusetts Rules of Civil Procedure be utilized, if not inconsistent with Rule 7. A counterclaim or third-party claim may not be raised for the first time on appeal.
(c) Judgments and Orders to Pay. Judgment shall be entered forthwith upon the decision of the judge or the verdict of the jury. Subject to any continuance granted pursuant to Rule 7(b) , a judgment for the plaintiff shall be entered forthwith if the defendant fails to appear for trial or is not prepared to proceed to trial and the plaintiff does appear, or if the defendant withdraws the claim of appeal. Subject to any continuance granted pursuant to Rule 7(b) , a judgment for the defendant shall be entered forthwith if the plaintiff fails to appear for trial or is not prepared to proceed to trial and the defendant does appear. Subject to any continuance granted pursuant to Rule 7(b) , a judgment dismissing the claim shall be entered forthwith if both the plaintiff and the defendant fail to appear for trial. Except where justice will not be served thereby, the judge shall, after holding a payment hearing, forthwith order payment to the plaintiff, in accordance with Rule 7(i) . Otherwise the judge must schedule a payment hearing in accordance with Rule 7(i) in the division from which the case was appealed. Any order for payment shall grant the party no less than thirty days within which to pay. The clerk shall promptly furnish each party with written notice of the court's judgment, any order for payment, and any payment hearing. When judgment is entered in the jury session, such notice shall be given by the clerk of the jury session.
(d) Post-judgment Proceedings in Jury Session at Another Division. When a small claims action has been tried on appeal in the jury session at another division, any post-trial motions filed within ten days after the entry of judgment shall be filed with the clerk of the jury session and heard by the judge who presided over the trial. If justice will be served thereby, the judge may stay, modify, or supersede any order for payment already made.
Unless the judge orders otherwise, upon the expiration of ten days after judgment, the case shall be re-transferred to the division from which it was appealed, for any further enforcement proceedings pursuant to Rule 7 and Rule 9, except that a case shall not be re-transferred until any motion filed, or any appeal claimed, within ten days after entry of judgment has been decided. The clerk of the jury session shall transmit original or attested copies of the judgment, any order for payment, any order deciding a post-trial motion, and any rescript of an appellate court, to the clerk of the division to which the case is being re-transferred.
Any motions which are filed after the case has been re-transferred shall be filed with the clerk of the division to which the claim has been re-transferred. The clerk shall transmit any such motion that affects the judgment to the judge who presided over the trial in the jury session, who may determine such motion, with or without hearing, wherever the judge is then sitting. Other motions that affect only an order for payment or proceedings to enforce the judgment may be heard by any judge or magistrate sitting in the division to which the claim has been re-transferred.
(e) Appeal from the Housing Court Department to the Appeals Court. Any claim of appeal from the Housing Court Department to the Appeals Court from the judgment in a small claims action tried by a judge or before a jury shall be filed with the clerk of the division or the jury session where the case was tried within ten days after entry of judgment. If justice will be served thereby, the judge who presided over the trial may stay, modify, or supersede any order for payment already made. Further procedures on appeal shall be governed by the Massachusetts Rules of Appellate Procedure.
As amended February 10, 1987, effective April 1, 1987; November 22, 1989, effective November 30, 1989; effective January 1, 2002, and effective October 1, 2009.
2009 Amendments. Paragraph (c) is amended to provide that when either the plaintiff or defendant fails to appear for trial, or appears but is not prepared to proceed with trial and there is not a good cause basis for a continuance, judgment is to be entered in favor of the party appearing and ready to proceed.
2009 Note * On July 1, 2003 the Boston Municipal Court Department was expanded to include eight former divisions of the District Court located in Suffolk County.
2001 Amendments. Most of these amendments are necessary because an appealing party must now elect between trial by a judge and trial before a jury. Jury session procedures are amended to permit the increasingly frequent practice of sending original case papers to the jury session (while retaining copies at the primary court). The authority granted the Chief Justice of the District Court Department to designate where trials are to be heard in G.L. c. 218, § 23 , permits the retention of jury-waived cases in the court where the case originated regardless of whether that court has a jury session. The purpose is to take caseload pressure away from busy jury sessions.
Unlike the District Court and Housing Court Departments, the Boston Municipal Court Department of the Trial Court does not consist of separate geographical divisions. Accordingly, all appeals from a small claims session of the Boston Municipal Court are to a jury session of that same court and all papers related to such appeals are processed within the Office of the Clerk of the Boston Municipal Court for Civil Business.*
In paragraph (a), the reference to the surcharge required by G.L. c. 262, § 4C for new entries “to which a separate docket number is assigned” has been deleted since virtually all courts no longer assign a new docket number when a magistrate’s decision in a small claim is appealed to a judge or a jury.
The deletion in paragraph (b) of the reference to the District/Municipal Courts Rules of Civil Procedure reflects their July 1, 1996 consolidation with the Massachusetts Rules of Civil Procedure.
The limitation in paragraph (e) of appeals to the Appeals Court to those deriving from cases tried by a judge or before a jury in the Housing Court Department reflects the decision of the Supreme Judicial Court in Trust Ins. Co. v. Bruce at Park Chiropractic Clinic, 430 Mass. 607 , 610 n.9 (2000). There, in a case involving a motion heard initially by a District Court judge, the Supreme Judicial Court stated:
“To the extent that Rule 10(e) of the Uniform Small Claims Rules (1999) provides for an appeal to the Appeals Court from the jury session, it is in conflict with G.L. c. 218, § 23 , which provides for the report of questions of law to the appellate division in certain circumstances. General Laws Chapter 211A, § 10 provides for an appeal from the appellate division to the Appeals Court.”
However, there is no appellate division in the Housing Court Department, thereby necessitating, in order to provide for appellate review, an appeal to the Appeals Court from cases heard by a judge or before a jury in the Housing Court Department.