Rules of Appellate Procedure Appellate Procedure Rule 29: Voluntary dismissal of appeal or other proceeding
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(a) Voluntary dismissal in the lower court.
Before an appeal has been docketed in the appellate court, the lower court may dismiss the appeal on the filing of a stipulation signed by all the parties or on the appellant’s motion with notice to all parties.
(b) Voluntary dismissal in the appellate court.
(1) Civil Cases.
If the parties to a civil appeal or other civil proceeding shall sign and file with the clerk of the appellate court a stipulation or motion that the proceeding be dismissed with prejudice, specifying the terms as to payment of costs and attorney’s fees, and shall pay whatever fees are due, the clerk shall enter the case as dismissed. An appeal may be dismissed on motion of the appellant on such terms as may be agreed upon by the parties or fixed by the court.
(2) Criminal Cases.
A criminal appeal or other criminal proceeding may be dismissed by the appellate court on motion of the appellant, and the clerk shall enter the case as dismissed. If the appellant is the defendant, the motion shall include an affidavit by the defendant, or an attestation by counsel, that the defendant assents to the court’s dismissal of the appeal with prejudice. If the motion states that the appeal is moot, an affidavit by the defendant is not required.
(c) Settlement; obligation of appellant.
In the event a case is settled or otherwise disposed of while an appeal is pending, it shall be the duty of the appellant to notify the clerk of the appellate court forthwith.
(d) Notice to lower court.
The clerk of the appellate court shall promptly notify the clerk of the lower court whenever an appeal is dismissed pursuant to this rule.
Rule 29(a) was revised to improve clarity. No substantive change was intended.
Rule 29(b). The title of this subdivision was amended to include the word “voluntary” to more accurately reflect the substance of the subdivision. Rule 29(b) was divided into two separate paragraphs, one addressing voluntary dismissal in civil cases and another addressing voluntary dismissal in criminal cases, because the processes differ. Rule 29(b)(2) provides that although a criminal appeal or other proceeding may be voluntarily dismissed, if the appellant is the defendant, an affidavit by the defendant or an attestation by counsel is required stating that the defendant assents to the dismissal of the appeal with prejudice. This language is consistent with existing practice.
Rule 29(d) is a new subdivision that requires the appellate court clerk to notify promptly the lower court when an appeal is dismissed pursuant to Rule 29. Under prior Rule 29(b), such a requirement was only applicable in a criminal case.
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.
Rule 29 is changed only in that paragraph (b) of Rule 29, governing dismissal of an appeal in the appellate court, now provides for notification of the clerk of the lower court by the clerk of the appellate court whenever an appeal in a criminal case is dismissed in the appellate court.
Appellate Rule 29, based on F.R.A.P. 42, is a housekeeping measure regulating voluntary dismissal of appeals and the settlement of cases. Appellate Rule 29(c) is designed to ensure that the court is kept informed of any out-of-court disposition.
Downloads for Appellate Procedure Rule 29: Voluntary dismissal of appeal or other proceeding
|Updates:||Amended May 15, 1979, effective July 1, 1979 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601|