Rules of Appellate Procedure  Appellate Procedure Rule 26: Costs in civil cases

Except as otherwise provided by law or ordered by the court, (1) if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed to by the parties; (2) if a judgment is affirmed, costs shall be taxed against the appellant; (3) if a judgment is reversed, costs shall be taxed against the appellee; (4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as ordered by the appellate court. Costs shall not be taxed against a party determined indigent in the same proceeding.

In cases involving the Commonwealth or an agency or officer thereof, if an award of costs against the Commonwealth is authorized by law, costs shall be awarded in accordance with the provisions of Rule 26(a); otherwise, costs shall not be awarded for or against the Commonwealth.

The cost of printing or otherwise producing necessary copies of briefs and appendices shall be taxable in the lower court at rates not higher than those generally charged for such work in the Commonwealth. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which shall be filed with the clerk of the lower court, with proof of service, within 14 days after the entry of judgment.

The clerk of the lower court shall prepare and certify an itemized statement of costs on appeal for insertion in the lower court judgment. The following costs on appeal are taxable in the lower court for the benefit of the party entitled to costs under this rule:

(1) copies under Rule 26(c);
(2) costs incurred in the preparation and transmission of the record;
(3) the reporter’s transcript, if necessary to determine the appeal;
(4) the premiums paid for any bond to preserve rights pending appeal;
(5) the fee for docketing the appeal under Rule 10(a)(1); and
(6) the cost of any convenience fees and other administrative fees levied for the privilege of paying fees or costs by credit card or other means, including, but not limited to, fees for electronic filing of documents or pleadings with the court.

(2019)

The free-standing parenthetical subtitle “(Applicable to Civil Cases)” in prior Rule 26 was deleted and its substance moved to the title of Rule 26 and to the introductory sentence.

Rule 26(a) was revised to simplify the language of the sentence and add numbering to the various scenarios in which costs may be taxed. The list was also expanded to include judgments affirmed in part or modified in those situations where the costs are taxed only as ordered by the appellate court. New language was added to provide that costs are not to be taxed against a party determined indigent in the same proceeding.

Rule 26(c). Language including copies of records authorized by prior Rule 18(f) as taxable costs was deleted consistent with the deletion of that provision as described in the 2019 Reporter’s Notes to Rule 18(f).

Rule 26(d). Language indicating that a fee for filing a notice of appeal will be taxed as a cost was deleted. Though the prior language of this Rule tracked the Federal rule, a fee for filing the notice of appeal does not exist for appeals that will be heard in the Appeals Court or the Supreme Judicial Court. Rather, a fee, if required, is paid upon docketing. The language was updated to reflect this practice. In addition, language was added indicating that certain administrative and convenience fees are recoverable costs, such as credit card convenience fees, fees incurred when electronically filing, and other such costs. This change updates the rule to reflect current costs that may be incurred by a party in prosecuting an appeal.

Further organizational and stylistic revisions were made to this rule in 2019 in accordance with a global review and revision of all of the Appellate Rules. These revisions are described in the 2019 Reporter’s Notes to Rule 1.

With regard to the preparation of the 2019 Reporter’s Notes to this Rule, see the first paragraph of the 2019 Reporter’s Notes to Rule 1. For an overview of the 2019 amendments to the Rules and a summary of the global amendments to the Rules, see 2019 Reporter’s Notes to Rule 1, sections I. and II.

(1979)

Rule 26 is limited to civil cases.

(1973)

Appellate Rule 26, based on F.R.A.P. 39, governs the allowance of costs, and follows prior practice. See G.L. c. 261, § 22. Costs are taxable against the Commonwealth as against an individual. G.L. c. 261, §§ 14, 16. Appellate Rule 26(c), dealing with costs of briefs, enlarges existing practice somewhat, see former G.L. c. 261, § 25; previously a prevailing party could recover only $50 of the cost of printing his brief, unless the court allowed a larger discretionary sum; under Appellate Rule 26(c) the prevailing party recovers the necessary costs of producing the briefs at a rate not higher than such costs generally charged in the Commonwealth.