Rules of Appellate Procedure

Rules of Appellate Procedure Appellate Procedure Rule 4: Appeal - when taken

Effective Date: 03/01/2019
Updates: Amended May 15, 1979, effective July 1, 1979 Amended July 20, 1984, effective January 1, 1985
Amended June 7, 1985, effective July 1, 1985 Amended July 28, 1999, effective September 1, 1999 Amended March 6, 2000, effective April 3, 2000 Amended March 22, 2013, effective May 1, 2013 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601

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Table of Contents

(a) Appeals in civil cases

(1)

In a civil case, unless otherwise provided by statute, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within 30 days of the date of the entry of the judgment, decree, appealable order, or adjudication appealed from; but if the Commonwealth or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days of such entry, except in child welfare cases, in which the notice of appeal shall be filed within 30 days from the date of the entry of the judgment, decree, appealable order, or adjudication. If a notice of appeal is mistakenly filed in an appellate court, the clerk of such appellate court shall note the date on which it was received and transmit it to the clerk of the lower court from which the appeal was taken and it shall be deemed filed in such lower court on the date so noted. If a timely notice of appeal is filed by a party, any other party may file a notice of appeal within 14 days of the date on which the first notice of appeal was filed, or within the time otherwise prescribed by this rule, whichever period last expires.

(2)

If a motion is made or served in a timely manner under the Massachusetts Rules of Civil Procedure and filed with the lower court by any party, the time to file an appeal runs for all parties from the entry of the order disposing of the last remaining motion:

(A) for judgment under Rule 50(b);

(B) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted;

(C) to alter or amend a judgment under Rule 59 or for relief from judgment under Rule 60(b), however titled, but only if either motion is served within 10 days after entry of judgment; or

(D) under Rule 59 for a new trial.

(3)

A notice of appeal filed before the disposition of any timely motion listed in Rule 4(a)(2) shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the last such remaining motion.

(b) Appeals in criminal cases

(1)

In a criminal case, unless otherwise provided by statute or court rule, the notice of appeal required by Rule 3 shall be filed with the clerk of the lower court within 30 days after entry of the judgment, appealable order, or adjudication appealed from, or entry of a notice of appeal by the Commonwealth, or the imposition of sentence, whichever comes last.

(2)

The running of the time for filing a notice of appeal shall be terminated as to the moving party by a motion for a new trial pursuant to Massachusetts Rules of Criminal Procedure 25(b)(2) and 30 filed in the lower court within 30 days after the verdict or finding of guilt or within 30 days after imposition of sentence, and the full time fixed by this rule shall commence to run and shall be computed from the date of entry of an order denying such motion.

(c) Extension of time for filing notice of appeal

Upon a showing of excusable neglect, the lower court may extend the time for filing the notice of appeal or notice of cross appeal by any party for a period not to exceed 30 days from the expiration of the time otherwise prescribed by this rule. Such an extension may be granted before or after the time otherwise prescribed by this rule has expired; but if a request for an extension is made after such time has expired, it shall be made by motion with service upon all other parties.

(d) Appeal by a self-represented party confined in an institution

If an institution has a system designed for legal mail, a self-represented party confined there must use that system to receive the benefit of this rule. If such party files a notice of appeal in either a civil or criminal case, the notice is timely if deposited in the institution’s internal mail system on or before the last day for filing and is accompanied by a signed certificate in compliance with Rule 13(a)(1)(B) setting out the date of deposit. If the notice of appeal is not received by the last day for filing, the certificate shall give rise to a presumption of timely filing provided it shows compliance with this rule. Failure to attach the certificate shall not of itself render the notice of appeal invalid or untimely, and the lower court may permit the later filing of a certificate. If such party files the first notice of appeal in a civil case under Rule 4(d), the 14-day period provided in Rule 4(a)(1) for another party to file a notice of appeal runs from the date when the lower court enters the first notice.

Reporter's notes

(2019)

Rule 4 continues to set forth the time period when a notice of appeal must be filed. While Rules 4(a) and 4(b) continue to govern, respectively, civil cases and criminal cases, the 2019 amendments divided these subdivisions to improve their clarity by distinguishing among their separate topics. Rules 4(a)(1) and 4(b)(1) govern the time period to file a notice of appeal, and Rules 4(a)(2), 4(a)(3), and 4(b)(2) govern the tolling of the time period.

Rules 4(a)(1) and 4(b)(1) continue to specify the types of lower court dispositions that may be appealed, but were amended to add language consistent with Rule 3(c). Rule 3(c), which governs the contents of a notice of appeal, specifies that the notice of appeal shall “designate the judgment, decree, adjudication, order, or part thereof appealed from,” while the prior Rule 4(a) referenced only “judgment.” Accordingly, Rule 4(a)(1) (governing civil cases) was amended to include “judgment, decree, appealable order, or adjudication.” Similarly, Rule 4(b)(1) (governing criminal cases) was amended to provide that a notice of appeal may be filed from a “judgment, appealable order, or adjudication” in addition to the other categories stated in Rule 4(b)(1). Importantly, in both Rules 4(a)(1) and 4(b)(1), the word “appealable” was added before the word “order” to clarify the lower court dispositions from which an appeal may be taken. Not every “order” may be appealed. An “appealable order” includes those orders authorized by statute, rule, or case law as immediately appealable. These 2019 amendments ensure consistency and completeness and were not intended to alter the types of lower court dispositions that are appealable.

As set forth in Rule 4(a)(2), certain motions toll the time period to claim an appeal. Prior to these amendments, the time period for filing a notice of appeal was tolled when a “timely motion under the Massachusetts Rules of Civil Procedure is filed in the lower court by any party.” However, the pertinent Massachusetts Rules of Civil Procedure use different terms, including “filed,” “served,” and “made,” to determine whether a post-judgment motion is timely. See Mass. R. Civ. P. 50(b) (“serve”), 52(b) (“made”), 59(b) (“served”), 59(e) (“served”), and 60(b)(“made”). Therefore, in 2019, Rule 4(a)(2) was amended to include the phrase “made or served in a timely manner” to clarify that the time period to file a notice of appeal is tolled when a party timely complies with the requirements established for bringing a post-judgment motion under the applicable Massachusetts Rules of Civil Procedure, including that the motion “is filed.”

The word “filed” is retained in Rule 4(a)(2) to clarify that, regardless of the language used in the applicable Massachusetts Rules of Civil Procedure, the post-judgment motion must actually be filed with the lower court to toll the time period to file a notice of appeal. This phrasing is intended to address the situation where a party serves a post-judgment motion in compliance with a lower court standing order or rule, such as Superior Court Rule 9A, but then never files the motion with the lower court. In that situation, the time period to file a notice of appeal is not tolled because the motion was only served and not filed. Finally, the last clause of the prior sentence was relocated and revised slightly to clarify that the time for filing a notice of appeal for all parties begins on the date when the lower court enters the order disposing of the last remaining motion enumerated in the rule.

Rule 4(a)(2)(C) was amended to clarify that only a motion “for relief from judgment under Rule 60(b)” tolls the time period to file a notice of appeal. The 2013 amendments’ inclusion of “relief from judgment under Rule 60, however titled” was intended to encompass only Mass. R. Civ. P. 60(b) motions since Mass. R. Civ. P. 60(a) does not reference or provide for “relief from judgment.” Instead, a Mass. R. Civ. P. 60(a) motion allows the court to correct certain clerical mistakes arising from oversight or omission. A Mass. R. Civ. P. 60(a) motion is intended to correct the record to reflect the original adjudication and may not be used to alter the substantive rights of the parties. See 1973 Reporter’s Note to Mass. R. Civ. P. 60. Moreover, the phrase “however titled,” added in 2013, was not intended to expand the scope of the rule to include Mass. R. Civ. P. 60(a) motions. See 2013 Reporter’s Note to Rule 4. Unlike Fed. R. App. P. 4(a)(4)(A)(vi), which tolls the time period to file a notice of appeal upon a timely motion “for relief under Rule 60[,]” which includes both a Fed. R. Civ. P. 60(a) and a 60(b) motion, the prior Massachusetts rule, as amended in 2013, more narrowly tolled the time period only where there was a timely motion for “relief from judgment under Rule 60, however titled.” However, the text of the rule after the 2013 amendment could inadvertently cause some litigants to believe, incorrectly, that a Mass. R. Civ. P. 60(a) motion would toll the time period to file a notice of appeal. Accordingly, in 2019, Rule 4(a)(2)(C) was amended to clarify that only a Mass. R. Civ. P. 60(b) motion, and not a Mass. R. Civ. P. 60(a) motion, will toll the time period to file a notice of appeal.

Rule 4(a)(3) includes the requirement of prior Rule 4(a) that a notice of appeal filed before the disposition of any post-judgment motion listed in Rule 4(a)(2) has no effect, and that a new notice of appeal must be filed. The provision is revised to clarify that the requirement applies to motions that are “timely.” It further clarifies that entry in the lower court of the order disposing of the last remaining post-judgment motion begins the time period for filing a new notice of appeal.

The final revision to Rule 4(a) is the deletion of the reference to fees for filing a notice of appeal. The only existing fees required for the filing of a notice of appeal are in the Appellate Divisions of the District Court and Boston Municipal Court, which are not governed by these Rules. Deleting reference to such fees removes potential for confusion.

The phrase “whichever comes last” was added at the end of Rule 4(b)(1) to clarify that the time for filing a notice of appeal runs from the happening of the last occurrence enumerated in the rule.

Rule 4(b)(2) was amended to clarify that a motion filed pursuant to Mass. R. Crim. P. 25(b)(2) terminates the time for filing a notice of appeal for the moving party. Like a motion filed pursuant to Mass. R. Crim. P. 30, a motion filed pursuant to Mass. R. Crim. P. 25(b)(2) calls the judgment of conviction into question. If a motion filed pursuant to either rule is allowed, the conviction is vacated and an appeal by the moving party is unnecessary. If the motion is denied, the full time period fixed by Rule 4(b)(1) commences to run from the date of entry of the order denying the motion.

Rule 4(c) was amended to specifically state that service upon all other parties is required when a party seeks by motion an extension of time for filing a notice of appeal.

Rule 4(d) is a new subdivision that incorporates the so-called “inmate mailbox rule” concerning the filing of a notice of appeal by self-represented parties confined in an institution. Rule 4(d) is intended to address the concerns highlighted by the Supreme Judicial Court in Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990), as to the limitations of a person confined in an institution to effectuate the “mailing” of a document on a certain day. The subdivision is modeled on Fed. R. App. P. 4(c), with slight changes.

In Commonwealth v. Hartsgrove, 407 Mass. 441, 445 (1990), the Supreme Judicial Court relied on the United States Supreme Court’s interpretation of Fed. R. App. P. 4 in Houston v. Lack, 487 U.S. 266, 270-272 (1988), to hold that a self-represented party confined in an institution would be deemed to have filed a notice of appeal with the trial court, in accordance with Mass. R. App. P. 4(b), upon the inmate having deposited the notice of appeal in the prison’s institutional mailbox. The Supreme Judicial Court observed that “[t]he Supreme Court’s reasoning bears quoting at length”:

"The situation of prisoners seeking to appeal without the aid of counsel is unique. Such prisoners cannot take the steps other litigants can take to monitor the processing of their notices of appeal and to ensure that the court clerk receives and stamps their notices of appeal before the 30-day deadline. Unlike other litigants, pro se prisoners cannot personally travel to the courthouse to see that the notice is stamped “filed” or to establish the date on which the court received the notice. Other litigants may choose to entrust their appeals to the vagaries of the mail and the clerk’s process for stamping incoming papers, but only the pro se prisoner is forced to do so by his situation.... [T]he pro se prisoner has no choice but to entrust the forwarding of his notice of appeal to prison authorities whom he cannot control or supervise and who may have every incentive to delay. No matter how far in advance the pro se prisoner delivers his notice to the prison authorities, he can never be sure that it will ultimately get stamped “filed” on time. And if there is a delay the prisoner suspects is attributable to the prison authorities, he is unlikely to have any means of proving it, for his confinement prevents him from monitoring the process sufficiently to distinguish delay on the part of prison authorities from slow mail service or the court clerk's failure to stamp the notice on the date received. Unskilled in law, unaided by counsel, and unable to leave the prison, his control over the processing of his notice necessarily ceases as soon as he hands it over to the only public officials to whom he has access-the prison authorities-and the only information he will likely have is the date he delivered the notice to those prison authorities and the date ultimately stamped on his notice." 

Id. at 445–446, quoting Houston v. Lack, 487 U.S. at 270-272. The Supreme Judicial Court held that the filing of the notice of appeal should be deemed to have occurred upon the inmate’s relinquishment of control of the notice of appeal to the prison authorities, and not on the date the clerk received it. Id. at 444.

Because Hartsgrove concerned a notice of appeal in a criminal matter, the court did not reach the question of its applicability to civil matters. Although the Supreme Judicial Court in Hartsgrove did not construe the word “inmate,” some Federal circuit courts of appeal have construed the word “inmate” to refer to civilly committed persons as well as prisoners. See Brown v. Taylor, 829 F.3d 365 (5th Cir. 2016); Parrish v. McCulloch, 481 Fed. Appx. 254, 254 (7th Cir. 2012); Jones v. Blanas, 393 F.3d 918, 926 (9th Cir. 2004). The committee agreed with this approach and concluded civilly committed persons were within the intended scope of the rule announced in Hartsgrove. Accordingly, the language of the 2019 amendment adding Rule 4(d) both incorporates the Supreme Judicial Court’s decision in Hartsgrove and extends its application to the filing of notices of appeal by all self-represented persons confined in an institution, including civilly committed persons. See G.L. c. 123, §§ 1, 7, 35; G.L. c. 123A, § 12. This is consistent with Fed. R. App. P. 4(c). Whether the case involves a criminal or civil appeal, the concerns as to the limitations placed on persons confined in an institution regarding access to mail are the same, and thus Rule 4(d) applies equally to both types of cases.

Rule 4(d) provides that the notice of appeal is to be deemed filed on the date the document is deposited for mailing in the institution’s internal mailing system. The subdivision requires a party to show timely filing by including a certificate in compliance with Rule 13(a)(1)(B). This certificate creates a presumption of timely filing. However, not including this certificate will not itself render the notice of appeal invalid or untimely because Rule 4(d) permits the lower court to allow later filing of the certificate. Unlike Fed. R. App. P. 4(c)(1)(A), this subdivision requires only that the party’s certificate set forth the date of deposit, and does not include the further requirement that the party also state that first-class postage has been prepaid because some Massachusetts institutions affix postage after the item leaves the inmate or civilly committed person’s hands.

Rule 4(d), consistent with Fed. R. App. P. 4(c)(2), establishes that in a civil case, the 14-day time period for another party to file a notice of appeal begins when the filing of the first notice of appeal is docketed in the lower court.

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.

(2013)

The 2013 amendment to Appellate Rule 4(a) changed item (3) to provide that, if served within ten days after entry of judgment, a motion under Mass. R. Civ. P. 59 to alter or amend a judgment or a motion under Mass. R. Civ. P. 60 for relief from judgment will toll the time period to claim an appeal from the underlying judgment.

The language “however titled” in the amended version is intended to make clear that the substance and not the title of the motion should control. See Pentucket Manor Chronic Hospital, Inc. v. Rate Setting Commission, 394 Mass. 233;, 235-236 (1985). Thus a post-judgment motion under either Mass. R. Civ. P. 59 or 60, whether titled as a motion to alter, amend, or vacate, for relief from judgment, or for reconsideration, if served within ten days, will toll the time period to file a notice of appeal.

The 2013 amendment to Mass. R. A. P. 4(a) was intended to address the confusion that sometimes arose when a post-judgment motion, denominated a motion for “reconsideration,” was served within ten days after entry of judgment. Since the text of the Massachusetts Rules of Civil Procedure does not refer to motions for reconsideration, a motion for reconsideration, if served within ten days of judgment, could have been treated as a motion under Rule 59 (for new trial or to alter or amend judgment) or as a motion under Rule 60(b) (for relief from judgment). If treated as a Rule 59 motion, the motion for reconsideration would have operated to toll the time period to claim an appeal. If treated as a Rule 60(b) motion, the motion for reconsideration would not have served to toll the time period to claim an appeal. Mass. R. A. P. 4(a), as it existed prior to the 2013 amendment. The 2013 amendment to Mass. R. A. P. 4(a) eliminates this potential for confusion by tolling the time period to claim an appeal where a motion for reconsideration is served within ten days after entry of judgment.

This amendment is not intended to provide a litigant with multiple opportunities to extend the time period to claim an appeal. Assume that the defendant serves a motion for relief from judgment within ten days of entry of judgment, thereby staying the time period to claim an appeal from the judgment. Two months later, the judge enters an order denying the motion for relief. Entry of that order starts the clock running to file a notice of appeal. If the defendant moves for reconsideration of the order denying relief from judgment, the motion for reconsideration should have no effect on the time period to claim appeal from the original judgment.

A 2009 amendment to Rule 4(a)(4)(a) of the Federal Rules of Appellate Procedure similarly recognized that a motion for relief from judgment under Rule 60 tolls the time period to file a notice of appeal.

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Updates: Amended May 15, 1979, effective July 1, 1979 Amended July 20, 1984, effective January 1, 1985
Amended June 7, 1985, effective July 1, 1985 Amended July 28, 1999, effective September 1, 1999 Amended March 6, 2000, effective April 3, 2000 Amended March 22, 2013, effective May 1, 2013 Amended October 31, 2018, effective March 1, 2019, 481 Mass. 1601
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