As explained in the draft Reporter’s Notes, the proposed amendments would revise and broaden Rule 25 to encompass any situation in which attorney’s fees and costs may be available in an appellate court (as defined in Rule 1(c), and thus not including single justice proceedings). The revision would reiterate the requirement of Rule 16(a)(10) that any request for appellate fees and costs must appear in the party’s brief on appeal. The revision also would codify the procedures currently followed in the appellate courts, thereby obviating the need to refer to Fabre v. Walton, 441 Mass. 9 (2004) in cases where fees or costs may be available. Currently, Rule 25 addresses only frivolous appeals in civil cases, but appellate fees and costs may be available in a variety of other situations in civil cases, including when authorized by statute or contract. Such fees and costs may also be available in some criminal cases, see, e.g., Mass. R. Crim. P. 15(d), 25(c)(2), and 30(c)(8)(B), yet the appellate rules do not currently address those situations. This revision of Rule 25 would change that and establish standard procedures applicable across all appellate court cases for seeking such fees and costs.
Comments should be directed to Timothy E. Maguire, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston, MA 02108 on or before August 6, 2025. Comments may also be emailed to timothy.maguire@jud.state.ma.us. Comments received will be made available to the public.
Proposed Amendments to Rule 25 of Massachusetts Rules of Appellate Procedure