Rules of Appellate Procedure

Rules of Appellate Procedure  Appellate Procedure Rule 3: Appeal - how taken

Effective Date: 03/02/2023
Updates: Amended May 15, 1979, effective July 1, 1979 Amended May 29, 1986, effective July 1, 1986

Table of Contents

(a) Filing the notice of appeal

(1) An appeal permitted by law from a lower court shall be taken by filing a notice of appeal with the clerk of the lower court within the time allowed by Rule 4, with service upon all parties. Failure of an appellant to take any step other than the timely filing of a notice of appeal shall not affect the validity of the appeal, but shall be ground only for such action as the appellate court deems appropriate, which may include dismissal of the appeal.

(2) A party need not claim an appeal from an interlocutory order to preserve the party’s right to have such order reviewed upon appeal from the final judgment; but for all purposes for which an appeal from an interlocutory order has heretofore been necessary, it is sufficient that the party comply with the requirement of Massachusetts Rule of Civil Procedure 46 or Massachusetts Rule of Criminal Procedure 22, whichever was applicable to the trial of the case in the lower court.

(b) Appeals by multiple parties

If 2 or more persons are entitled to appeal from a judgment, decree, adjudication, order, or part thereof of a lower court and their interests are such as to make joinder practicable, they may file a joint notice of appeal, or may join in appeal after filing separate timely notices of appeal.

(c) Content of the notice of appeal

(1) Generally.

(A) The notice of appeal shall designate:

(i) the party or parties taking the appeal; and

(ii) in civil cases, the judgment, decree, adjudication, or separately appealable order from which the appeal is taken.

(B) The notice of appeal need not designate prejudgment orders that are appealable as part of the judgment, decree, or adjudication designated in the notice of appeal.

(C) An appellant may designate only part of a judgment, decree, adjudication, or separately appealable order by expressly stating that the notice of appeal is so limited.

(D) In a civil case, the notice of appeal encompasses the final judgment, regardless of whether that judgment is set out in a separate document under Massachusetts Rule of Civil Procedure 58, if the notice designates:

(i) an order that adjudicates all remaining claims and the rights and liabilities of all remaining parties; or

(ii) an order described in Rule 4 (a) (2).

(2) Content of the Notice of Appeal in Child Welfare Cases. In child welfare cases, the notice of appeal and any request for a transcript, if required, shall be signed by the person or persons, or by counsel for the entity, taking the appeal; however, if the appellant is a minor, the notice and request shall be signed by the minor’s counsel. A notice of appeal that is not so signed shall not be accepted for filing by the clerk.

(3) Effect of Minor Defects in the Notice of Appeal. An appeal should not be dismissed for minor defects, such as

(A) informality of form or title of the notice of appeal;

(B) failure to name a party whose intent to appeal is otherwise clear from the notice; or

(C) a technical error in how the judgment, decree, adjudication, or separately appealable order is identified, if it is otherwise clear from the notice what is being appealed.

(d) Service of the notice of appeal

The clerk of the lower court shall serve notice of the filing of a notice of appeal by transmitting a copy thereof to counsel of record for each party other than the appellant, or, if a party is not represented by counsel, to the party. The clerk shall note on each copy served the date on which the notice of appeal was filed. Failure of the clerk to serve notice shall not affect the validity of the appeal. Service shall be sufficient notwithstanding the death of a party or counsel. The clerk shall note in the docket the names of the persons to whom copies are transmitted, and the date of transmission.

(e) Change of counsel on appeal in criminal and certain non-criminal cases

If the defendant in a criminal case, or any party in any other proceeding, excluding child welfare cases, in which counsel is required to be made available to such party pursuant to Supreme Judicial Court Rule 3:10, was represented by counsel at trial, the trial court counsel shall continue to represent that party on appeal until an appearance is filed by substitute counsel, if such assignment of counsel is made by the Committee for Public Counsel Services. In such proceedings, assigned trial court counsel shall, no later than the day on which the notice of appeal is filed, notify the Committee for Public Counsel Services that appellate counsel should be assigned. Assigned appellate counsel shall promptly file a notice of appearance in the trial court, following which trial court counsel may file a notice of withdrawal.

(f) Appointment of appellate counsel in child welfare cases

(1) Subject to the provisions of Rule 10(d), any party to a child welfare case in which counsel was appointed pursuant to Supreme Judicial Court Rule 3:10 and who was represented by counsel at trial shall continue to be represented by that counsel on appeal until either the lower court has appointed counsel for appellate purposes and an appearance has been filed by appellate counsel or the lower court has denied a motion to appoint counsel for appellate purposes.

(2) Lower court counsel shall, on the day upon which the signed notice of appeal is filed, file, and request a hearing on, a motion to allow reasonable costs associated with the appeal in the lower court. At the same time, if lower court counsel is not appellate certified by the Committee for Public Counsel Services, counsel shall also file, and request a hearing on, a motion to appoint counsel for appellate purposes in the lower court. Subject to the provisions of Supreme Judicial Court Rule 3:10, § 7, lower court counsel shall continue to represent the party at all lower court proceedings.

(3) If the motion to appoint counsel for appellate purposes is allowed, the Committee for Public Counsel Services shall be assigned to provide representation according to the procedures established in Supreme Judicial Court Rule 3:10.

(4) If counsel has not filed a motion to withdraw appearance in the lower court, or counsel has filed a motion to withdraw but the motion has not been allowed by the lower court prior to the date that the lower court transmits to the appellate court the notice of assembly of the record pursuant to Rule 9, lower court counsel will be designated as counsel in the appellate court. Any motion to withdraw filed thereafter shall comply with Rule 10(d).

Reporter's Notes

(2023)

Spurred by the 2021 amendments to Federal Rule of Appellate Procedure 3 (c), which clarified and liberalized the requirements for the contents of a notice of appeal, the committee examined, and proposed revisions to, Rule 3 (c). Those revisions are consistent with the goals of liberalization and clarification reflected in the federal rules, but the language employed is not in all cases identical to the Federal rule for reasons particular to State court procedure. The amendments merely clarify what needs (and does not need) to be included in the notice of appeal. The amendments do not expand what is appealable or alter how or when a judgment, decree, adjudication, or order must be appealed. Similarly, the amendments do not change the requirement that any issues a party would like considered on appeal must be briefed. It is the role of the briefs, not the notice of appeal, to raise the issues on appeal.

Former subparagraph (c) (1) has been broken into four new subparagraphs. Subparagraphs (c) (1) (A) – (c) (1) (C) apply to all cases (criminal and civil). Subparagraph (c) (1) (D) applies only to civil cases.

Subparagraphs (c) (1) (A) and (c) (1) (B). Subparagraph (c) (1) (A) reflects that the notice of appeal should be a simple document that provides notice a party is appealing and invokes the jurisdiction of the appellate court. It therefore must state who is appealing and what is being appealed.

To make clear it is not necessary to designate each and every order the appellant may wish to challenge on appeal, former Rule 3 (c) (1) is renumbered as Rule 3 (c) (1) (A) and amended to require the designation of ""the judgment, decree, adjudication, or separately appealable order from which the appeal is taken." The phrase "or part thereof" is deleted. Designation of the judgment, decree, or adjudication now encompasses prior interlocutory orders that become appealable only upon entry of such final judgment, decree, or adjudication. This principle, sometimes referred to as the merger principle, is a corollary of the final judgment rule: a party cannot appeal from most interlocutory orders, but must await final judgment, and only then obtain review of interlocutory orders. The reference to "separately appealable order," as opposed to merely "order," is intended to clarify that each order appealable upon final judgment need not be listed in the notice. Only those orders from which an immediate appeal is allowed separate and apart from final judgment need be listed—for example, a preliminary injunction order, see, e.g., G. L. c. 231, § 118; an appeal subject to the doctrine of present execution, see, e.g., Kent v. Commonwealth, 437 Mass. 312, 316 (2002) (interlocutory orders that fall within the doctrine of present execution are treated as final for purposes of appeal); or certain other interlocutory orders that are separately appealable, see, e.g., G. L. c. 184, § 15 (d).

Similarly, subparagraph (c) (1) (B) has been added to expressly state, "[t]he notice of appeal need not designate prejudgment orders that are appealable as part of the judgment, decree, or adjudication designated in the notice of appeal." This language differs slightly from the equivalent amendment to Fed. R. App. P. 3 (c) (4), which states the notice "encompasses all orders that, for purposes of appeal, merge into the designated judgment or appealable order. . .." Because the concept of merger may create confusion in Massachusetts practice, particularly in appeals from certain types of judgments and orders arising out of the Probate and Family Court and the Juvenile Court, Rule 3 (c) (1) (B) does not use the term "merge." Instead, it uses plain language to state that prejudgment orders that are appealable as part of the judgment need not be designated separately in a notice of appeal designating a properly appealable judgment, decree, or adjudication.

Subparagraph (c) (1) (C). There are circumstances in which an appellant may deliberately choose to limit the scope of the notice of appeal, and wish to convey this choice to the other parties. Thus, Rule 3 (c) (1) (C) has been added to allow an appellant to designate only part of a judgment, decree, adjudication, or separately appealable order, as long as the appellant does so expressly in the notice of appeal. This addition to Rule 3 (c) generally tracks the equivalent Federal rule, but omits the second sentence of the Federal rule, which simply restates the same concept in a different way. See Fed. R. App. P. 3 (c) (6) ("Without such an express statement, specific designations do not limit the scope of the notice of appeal."). This omission should not be interpreted as a variance from the substance of the Federal rule.

Subparagraph (c) (1) (D). Rule 3 (c) (1) (D), which tracks Fed. R. App. P. 3 (c) (5), has been added to address some potential traps for the unwary in civil cases that occur when a case is decided by a series of orders or when post-judgment motions are filed. The first issue may arise when, for example, some claims are dismissed for failure to state a claim under Mass. R. Civ. P.12 (b) (6) and then, much later in the case, the remaining claims are resolved on summary judgment. The order ruling on the motion for summary judgment, because it resolves all of the remaining claims, is a final judgment, an appeal from which confers appellate jurisdiction to review the earlier order on the motion to dismiss. But if a notice of appeal describes the second order not as a final judgment but as an order granting summary judgment, some courts might limit appellate review to the summary judgment and refuse to consider a challenge to the earlier motion to dismiss order. This new rule has been added to eliminate that trap for the unwary and clarify the notice of appeal encompasses the earlier order.

Similarly, if a trial court complies with the requirement under Mass. R. Civ. P. 58 that a separate document with a final judgment be entered following an order that resolves all remaining claims in a case, and the notice of appeal designates that order rather than the separate document, some courts might limit appellate review to that order and refuse to consider a challenge to an earlier interlocutory decision that would otherwise be reviewable as part of an appeal of the final judgment. This creates a trap for all but the wariest, because when the trial court issues the order disposing of all remaining claims, a litigant may not know whether the trial court will ever enter the separate document required by Mass. R. Civ. P. 58.

Rule 3 (c) (1) (D) (i) has therefore been added to clarify that a notice of appeal designating the order resolving all remaining claims and the rights and liabilities of all remaining parties will be treated as having designated a final judgment for purposes of the appeal, regardless of whether that judgment is set out in a separate document.

Second, Rule 3 (c) (1) (D) (ii) is intended to resolve another trap for the unwary that may occur when a party files a post-judgment motion that tolls the time to appeal the judgment under Rule 4 (a) (2) and then notices an appeal of the order on the post-judgment motion without noticing an appeal of the judgment. Some courts treat such a notice as limited to the postjudgment order, rather than as bringing the judgment itself before the appellate court for review.

To reduce the unintended loss of appellate rights in this situation, the amendment clarifies that a notice of appeal designating an order on a post-judgment motion listed in Rule 4 (a) (2) will also encompass the final judgment. This amendment does not alter Rule 4 (a) (3)'s requirement that a new notice of appeal be timely filed following entry of the order disposing of the last remaining post-judgment motion.

Rule 3 (c) (3) has been added to clarify that an appeal should not be dismissed for minor defects in the notice of appeal. The amended rule uses "should" rather than "must," which is used in Fed. R. App. P. 3 (c) (7), to allow the appellate court to rule otherwise in unusual circumstances. Rule 3 (c) (3) clarifies that an appeal should not be dismissed for minor defects such as informality of form or title, or omission of an appealing party's name, or a technical error in how the appealed judgment, decree, adjudication, or separately appealable order is identified, so long as it is clear who is appealing and what is being appealed. The amended rule does not provide an exhaustive list and there may be other minor defects in a notice of appeal that should not result in dismissal.

(2019)

Rule 3(a). The phrase “with service upon all parties” was added to the first sentence to clarify the appellant’s duty to serve all other parties when filing a notice of appeal. Although the clerk of the lower court is still required to serve notice on the parties pursuant to Rule 3(d), this amendment is consistent with Mass. R. Civ. P. 5(a) and Mass. R. Crim. P. 32(a), which require documents (other than those allowed to be filed ex parte) filed in court to be served on all other parties.

Rule 3(b). The title of this subdivision was revised from “Joint or Consolidated Appeals” to “Appeals by Multiple Parties.” The designation of parties proceeding on appeal as a single appellant is most often made by the appellate court when the appeal is docketed in the appellate court, and not by the lower court after the notice of appeal is filed there. Accordingly, language relating to consolidated appeals and authorizing parties to proceed on appeal as a single appellant was relocated to Rules 10(a)(5) and (6). The first sentence of Rule 3(b) was revised to clarify that in addition to a judgment or order, an appeal may be taken from a “decree, adjudication . . . or part thereof.” The addition of these terms makes this subdivision consistent with other parts of the Rules. See Rules 3(c), 4(a)(1), and 4(b)(1).

Rule 3(c) was reformatted to clarify the required content of a notice of appeal. Rule 3(c)(1) applies “generally” to civil and criminal cases and Rule 3(c)(2) applies to child welfare cases. Because the requirements related to a notice of appeal in a child welfare case are different, a separate paragraph addressing those particular requirements clarifies the rule. Regarding the signing of the notice of appeal in a child welfare case where the appellant is not a minor, the reference is amended from “party or parties taking the appeal,” to “person or persons, or by counsel for the entity, taking the appeal,” to be consistent with the new definition of “party” in Rule 1(c), and because the term “person” ordinarily does not apply to government entities, such as the Department of Children and Families, which may take appeals in child welfare cases and which can act only through counsel.

Rule 3(d) was updated to replace “mailing” with “transmitting,” to accommodate the fact that the lower court may have procedures by which the clerk transmits electronic notice. See Mass. R. Civ. P. 77(d)(2).

Rule 3(e), governing the change of counsel on appeal in criminal and certain non-criminal cases, was amended to change the procedure for counsel to withdraw an appearance upon the filing of a notice of appeal in the common situation that the Committee for Public Counsel Services (CPCS) assigns substitute counsel to handle a party’s appeal. The prior procedure required the defendant’s counsel to file a motion to withdraw that required action by the trial court before notice was made to CPCS to provide appellate representation. The new procedure requires the defendant’s counsel with an appearance in the trial court to notify CPCS no later than the day on which the notice of appeal is to be filed that appellate counsel should be assigned. CPCS will then assign appellate counsel, who is required to file a prompt notice of appearance in the trial court. After the appellate attorney has entered the appearance, the prior counsel of record in the trial court may file a notice of withdrawal.

Rule 3(f)(4) is an entirely new paragraph that explains the existing practices that occur when counsel who has been active in the lower court either has not filed a motion to withdraw appearance in the lower court or when such a motion has been filed and not acted upon prior to the lower court’s issuance of the notice of assembly of the record on appeal. In such instances, the lower court counsel’s appearance in the case will continue and that counsel will be designated as active counsel in the appellate court. Rule 3(f)(4) includes a reference to new Rule 10(d), which governs motions to withdraw appearance after the lower court’s issuance of the notice of assembly and docketing of an appeal in the appellate court.

The addition of Rule 3(f)(4) is intended to clarify that counsel listed as active on the lower court docket at the time the lower court issues the notice of assembly per Rule 9 will be listed as active counsel on the docket of the appellate court, and encourage such counsel to file a prompt notice of withdrawal in the lower court. This is consistent with Mass. R. Civ. P. 11(d) and Mass. R. Prof. C. 1.16(c). Rule 3(f)(4) also clarifies that, after an appeal is docketed in an appellate court, a motion to withdraw must be filed in the appellate court, not the lower court. The inclusion of this longstanding practice into the Rules will reduce confusion on the part of attorneys as to why their appearance was entered on the appellate court docket in circumstances where the attorney was retained or assigned as lower court counsel only, and clarifies that a motion to withdraw appearance should be filed in the appellate court once that court has jurisdiction of a case. See Rule 10(d).

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.

(1999) 

The 1999 amendments to Appellate Rule 3 were part of a comprehensive set of amendments to the Appellate Rules (Rules 1348, and 10) that had been proposed by the Supreme Judicial Court Committee on Appeals of Child Welfare Cases. The purpose of the 1999 amendments is described in the 1999 Reporter’s Notes to Appellate Rule 1(c).

Appellate Rule 3(c) has been amended to require that in child welfare cases, the notice of appeal must be signed by the party or parties taking the appeal unless the appellant is the minor who is the subject of the action. The clerk is directed not to accept an appeal that is not so signed. The purpose of this change is to eliminate the taking of an appeal on behalf of an absent and disinterested client.

The amendment to Appellate Rule 3(f) make it clear that until appellate counsel files an appearance, trial counsel is obligated to continue representation of the client. Even after appellate counsel has filed an appearance, trial counsel will continue to represent the party at all proceedings in the trial court.

(1979) 

The second paragraph of subdivision (a) is amended by the addition of a reference to Mass.R.Crim.P. 22, “Objections,” to clarify that a party need not claim an exception to an interlocutory order adverse to his position to preserve his right to have that order subsequently reviewed on appeal.

Subdivision (b) regulating joint or consolidated appeals, is consistent with prior criminal appellate practice.

Subdivision (c) is amended to reflect the fact that in a civil case, the notice of appeal must designate the judgment, order, or part thereof which is appealed from. It would also be appropriate in an interlocutory appeal in a criminal case for the notice of appeal to designate the order from which an appeal is being taken (e.g., denial of motion to suppress, grant of motion to dismiss), but this is not required by the rule because there is seldom any question about the matter being appealed.

General Laws, c. 278, § 33B (St.1955, c. 352, § 2) formerly provided that the clerk was to notify the District Attorney of a claim of appeal “forthwith.” Subdivision (d) is more explicit in setting out the manner of notice and will require notification of co-defendants, if any, when a notice of appeal is filed.

Subdivision (e) “Change of Counsel on Appeal in Criminal Cases,” is new and addresses the continuing responsibility of the trial attorney to provide assistance to a client beyond entry of final judgment in the trial court. See ABA Standards Relating to Criminal Appeals 21-2.2(a) (2d ed., Approved Draft, 1978). This subdivision seeks to avoid a hiatus in legal representation during a critical period when the defendant has questions as to the meaning and effect of conviction and the option of whether to appeal. ABA Standards, supra, commentary at 10.

In Pires v. Commonwealth, 373 Mass. 829 (1977), the Supreme Judicial Court held that a lawyer has a professional obligation to his client which goes beyond the trial of the case. The court adopted the provisions of the American Bar Association Project on Standards for Criminal Justice as the appropriate measure of the responsibility of counsel. Standard 8.2 of the Defense Function (Approved Draft 1971), provides:

8.2 Appeal. (a) After conviction, the lawyer should explain to the defendant the meaning and consequences of the court’s judgment and his right of appeal. The lawyer should give the defendant his professional judgment as to whether there are meritorious grounds for appeal and as to the probable results of an appeal. He should also explain to the defendant the advantages and disadvantages of an appeal. The decision whether to appeal must be the defendant’s own choice. (b) The lawyer should take whatever steps are necessary to protect the defendant’s right of appeal.

(1973) 

An appeal is initiated by filing in the lower court a notice of appeal, within 30 days following the order or judgment appealed from. If the Commonwealth or any office or agency thereof is a party, however, the appeal time is extended to 60 days. After the notice of appeal has been filed, the clerk of the lower court notifies all other parties by mail of the notice’s having been filed. It is the date of the filing, however, not the date of the notice, which controls the timeliness of the appeal.

Downloads for Appellate Procedure Rule 3: Appeal - how taken

Contact

Updates: Amended May 15, 1979, effective July 1, 1979 Amended May 29, 1986, effective July 1, 1986

Help Us Improve Mass.gov with your feedback

Feedback