Rules of Appellate Procedure  Appellate Procedure Rule 25: Appellate attorney’s fees and costs (Effective September 1, 2026)

Where (i) a party makes a request for appellate attorney’s fees and costs pursuant to Rule 16(a)(10), and (ii) the appellate court determines that such fees and costs are permitted or required by contract, statute, regulation, rule, or other law, or that an appeal in a civil case is frivolous, the appellate court may, or shall if required, award appellate attorney’s fees and costs. If the appellate court determines that an appeal in a civil case is frivolous, the appellate court may also award double costs, or such interest as may be allowed by law, or both.

Within 14 days of a decision or order granting a request pursuant to Rule 25(a), or such other time as the appellate court may order, the party seeking appellate attorney’s fees and costs shall file a written application, supported by affidavits and any appropriate supporting materials. Any other party may respond within 14 days of service of such application, or within such other time as the appellate court may order.

Any proceedings to enforce an amount awarded under this rule shall be commenced in the lower court.

(2026)

Rule 25 has been revised and broadened 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). This revision of Rule 25 reiterates the requirement of Rule 16(a)(10) that any request for appellate fees and costs must appear in the party’s brief on appeal—including for appeals (interlocutory or otherwise) where a party’s ultimate entitlement to appellate fees may not be resolved until after proceedings on remand. See Brown v. F.L. Roberts & Co., Inc., 452 Mass. 674, 688-689 (2008); T & D Video, Inc. v. City of Revere, 450 Mass. 107, 114-116 (2007). The revision also codifies 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. Previously, Rule 25 addressed 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), 30(c)(8)(B), and 30(c)(9) (providing in each case that fees and costs shall be “paid on the order of the trial court upon the entry of the rescript or the denial of the application”), yet until now the appellate rules have not addressed those situations. This revision of Rule 25 establishes standard procedures applicable across all appellate court cases for seeking such fees and costs.

(2019)

The title of Rule 25 was revised by replacing the word “Delay” with “Frivolous” to more accurately describe the topic addressed by the rule. Additionally, the substance of the free-standing parenthetical subtitle “(Applicable to Civil Cases)” indicating the rule applies only in civil cases was moved to the title of the rule and expressly referenced in the body of the rule to improve clarity. The final sentence was added to reflect existing practice of the appellate courts, and is similar to Fed. R. App. P. 38.

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 25 is limited to civil cases.

(1973)

Appellate Rule 25, taken from F.R.A.P. 38, allows the court to award damages and appropriate costs if it determines that an appeal was taken frivolously. See Oscar Gruss & Son v. Lumberman’s Mutual Casualty Co., 422 F.2d 1278, 1283-1284 (2d Cir.1970). This is new to Massachusetts practice.