Small Claims Standards: 8:00 Appealing from the judgment

The Administrative Office of the Trial Court issues these Standards to assist judges, clerk-magistrates and other personnel of the District Court, Boston Municipal Court, and Housing Court Departments in implementing recently amended Trial Court Rule III, Uniform Small Claims Rules (effective January 1, 2002).

A defendant against whom a judgment has been rendered (including the defendant in a counterclaim or third party claim), may appeal for a trial by a judge or before a jury of six persons, unless the defendant elected to have the case tried initially by a judge, in which instance there is no opportunity for another trial.

The defendant must first:

1. File an affidavit setting forth questions of law and fact in the case requiring a trial and stating that such trial is intended in good faith;
2. Pay an entry fee unless found indigent; and
3. Post a bond, unless waived or not required.

Commentary

Within ten days of receipt of the court's judgment after a trial, the defendant (including a defendant in a counterclaim or third party claim) may file a notice that he or she claims a trial by a judge or before a jury of six persons unless the defendant has waived the right to appeal by electing to have the case tried initially by a judge. There is no right to another trial if there has been such an election. See Standard 2:03. There is also no right to another trial if the judgment is due to the defendant's default. See Standards 6:02 and 7:06 regarding the defendant's course of action to remove a default. The statute limits an appeal to matters where there was a "finding" by the court "where the cause was determined". G.L. c.218, s. 23. Interpreting a similar statute, the Appeals Court has indicated that a dismissal or default is not an appealable "decision or finding." H. Sandbar & Son, Inc. v. Clerk of the Dist. Court of N. Norfolk, 12 Mass. App. Ct. 686 (1981).

The claim does not need to be on a Trial Court form but must be in writing and must comply with the requirements of G. L. c. 218, s. 23 and shall specify whether the defendant claims a trial by a judge or by a jury. The appeal must also be accompanied by:

• an affidavit that specifies the questions of law and fact in the case requiring a trial by judge or jury of six and that states that such trial is intended in good faith;
• a $25.00 entry fee that the court may waive if the applicant is indigent; and
• a bond in a penal sum of $100.00, with such sureties as may be approved by the plaintiff or the clerk-magistrate or an assistant clerk-magistrate, payable to the other party to satisfy any judgment and costs that may be entered against that party. The bond is not required for municipal and county bodies and officials, from defendants who have already posted bond to dissolve an attachment, or to appeal from a judgment secured by a motor vehicle insurance policy. A residential landlord’s appeal from an adverse small claim decision involving a security deposit requires a higher bond, details of which are set out in G.L. 218, s. 23. The court may waive the $100.00 bond requirement if it finds that the defendant has insufficient funds to furnish the bond and that the appeal is not frivolous.

Personnel in the clerk-magistrate's office should provide litigants who wish to appeal with information regarding the procedure consistent with Standards 2:00 and 3:00. Personnel shall ascertain whether the defendant elects a jury trial or claims a trial before a judge and shall note that decision on the papers if it is not set forth in the defendant's claim. After the appeal and appropriate bond are filed, if the defendant claims a jury trial, the clerk-magistrate's office must promptly transmit the papers to the jury session designated to hear small claims for that court.