Mass. R. App. P. 4
Mass. R. App. P. 4
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.
Reporter's Notes (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.
Reporter's Notes (2000):
[Rule 4(b), first paragraph]
Appellate Rule 4(b) was amended in 2000 in light of the Supreme Judicial Court's opinion in Commonwealth v. White, 429 Mass. 258 (1999). In White, the Court ruled that in criminal cases, "a notice of appeal of any judgment or order appealed from must be filed within thirty days after the entry of the order," even though Appellate Rule 4 may not have been clear on the matter. Specific language has now been added to Rule 4(b) to eliminate any ambiguity. Prior to the 2000 amendment, Appellate Rule 4(b) also provided that the notice of appeal was to be filed within thirty days, unless otherwise provided by statute. The rule now states that the notice of appeal is to be filed within thirty days unless otherwise provided by statute or court rule.
Reporter's Notes (1999):
[Rule 4(a)]
The 1999 amendments to Appellate Rule 4(a) were part of a comprehensive set of amendments to the Appellate Rules (Rules 1, 3, 4, 8, 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 4(a) has been amended to provide for a uniform 30 -day period for filing a notice of appeal in all child welfare cases. See G.L. c. 119, § 27, as amended by St. 1999, c. 3, § 11.
Reporter's Notes (1985):
[Rule 4(a), second paragraph]
This amendment makes Mass. R.A.P. 4(a) conform, in part, to a 1979 federal amendment. See Fed. R.A.P. 4(a)(4). Its primary purpose is to clarify an ambiguity as to the effect of filing an appeal prior to a decision on specified timely motions under Mass. R. Civ. P. 50(b), 52(b) and 59.
Reporter's Notes (1985):
[Rule 4(a), first paragraph]
The added sentence conforms the Massachusetts Rule to the last sentence of Fed. R.A.P. 4(a)(1). The purpose is to protect appellants who mistakenly, but in otherwise timely fashion, file a notice of appeal in an appellate court rather than in the lower court.
The change from ten days to fourteen days for the filing of a cross-appeal conforms the time period to that found in Fed. R.A.P. 4(a)(3). Such conformity of time periods may aid practitioners.
Reporter's Notes (1979):
The first two paragraphs of former Rule 4 have been denominated subdivision (a) and are limited to civil cases.
Added to Rule 4 is the substance of subdivision (b), which enlarges the time for filing a claim of appeal in criminal cases from twenty days to thirty (see former G.L. c. 278, § 28 [St.1820, c. 79, § 4] ; Superior Court Rule 65 [1974]; G.L. c. 278, § 33B [St.1955, c. 352, § 2] ), and which provides that if a motion for a new trial (Mass. R. Crim. P. 30[b]) which is filed within thirty days after verdict or imposition of sentence is ultimately denied, a new thirty-day period for filing the claim of appeal from the conviction shall commence to run. While this latter provision may appear to foster delay, it actually formalizes prior practice.
This subdivision also recognizes the defendant's right to claim an appeal from a guilty verdict or finding as well as his right to appeal from the sentence. This was intended to avoid any ambiguity as to whether a claim of appeal prior to the final judgment was out of time and ineffective. See Commonwealth v. Dascalakis, 246 Mass. 12, 19 "Sentence is final judgment in a criminal case."
The third paragraph of former Rule 4 is now subdivision (c) and is applicable to both civil and criminal appeals. Under former G.L. c. 278, § 33B, the twenty-day limit was mandatory and could not be extended by consent of the parties or by the court; an untimely claim of appeal divested the appellate court of jurisdiction. Commonwealth v. Rodrigues, 333 Mass. 501 (1956); Commonwealth v. McKnight, 289 Mass. 530, 538, 540 (1935).
See also Commonwealth v. Dorius, 343 Mass. 533 (1962) where it was held that after the time for filing the claim of appeal had expired the trial court was without jurisdiction to extend the period by allowing a motion to make the case subject to then G.L. c. 278, § 33E as amended St.1979 c. 346, § 2 which would thereby trigger a new appeal period.
See Silvia v. Laurie, 549 F.2d 892 (1st Cir. 1978) where the Court of Appeals also held the time limit for filing the claim of appeal under the Federal Rules of Appellate Procedure was jurisdictional.
[T]he time limits of [Fed.R.App.P.] 4 are not merely procedural requirements that can be waived at the discretion of the court, but rather are limits on . . . [the appellate] court's power to review decisions of the . [lower] courts. . . . While the application of this rule may lead to apparently harsh results in some cases, it serves important interests of finality. 594 F.2d at 893. Subdivision (c) permits the lower court to extend the time for filing a notice of appeal by an additional thirty days upon "a showing of excusable neglect." Such an extension, whether granted before or after the expiration of the thirty days prescribed by subdivision (b), may not enlarge the time beyond sixty days after the verdict or finding of guilt or imposition of sentence. See Silvia v. Laurie, supra. Compare Mass. R. App. P. 14(b) (Appellate court or single justice may extend time for noticing appeal up to one year after verdict or sentence).
Reporter's Notes (1973):
Certain motions toll the running of the appeal time. These motions, enumerated in Appellate Rule 4, pertain to the allowance or denial of a judgment, the opening of the record, the altering or amending of a judgment, and the seeking of a new trial. The new, full appeal period begins to run from the day the court finally decides a motion in any of the foregoing classes. The time for filing an appeal may be enlarged by order of an appellate court or an appellate justice, but such extension can never exceed one year from the date of the judgment or order appealed from, see Appellate Rule 14(b).
Reporter's Notes--2022
Rule 4(b) was amended in 2022, by adding subdivision (b)(3), to reflect the common-law rule that the timely filing of a motion for reconsideration in a criminal case tolls the time period for a party to file a notice of appeal from a ruling on a motion filed under Rule 25(b)(2) or 30, or from another appealable order, judgment, or adjudication that is the subject of the motion for reconsideration. See Commonwealth v. Lewis, 57 Mass. App. Ct. 931, 931-932(2003) ("timely motion to reconsider, generally one that is filed within thirty days of the action the moving party wants reconsidered, extends the time for filing a notice of appeal to thirty days after the motion to reconsider has been acted upon"), citing Commonwealth v. Powers, 21 Mass. App. Ct. 570, 573-574(1986) and Commonwealth v. Montanez, 410 Mass. 290, 294 & n.4 (1991). See also Commonwealth v. Jordan, 469 Mass. 134, 147 n.24 (2014).
A timely-filed motion for reconsideration generally extends the time for filing a notice of appeal only for the appealable order, judgment, or adjudication for which reconsideration was sought. For example, if, five months after the verdict, the defendant moved for a new trial under Mass. R. Crim. P. 30, and the motion was denied, and then, within 30 days of that denial, moved for reconsideration, unsuccessfully, the defendant would have 30 days from the denial of the motion for reconsideration to appeal from the rulings on the Rule 30 motion and the motion for reconsideration, but not from the underlying verdict because more than 30 days had elapsed before the defendant filed the Rule 30 motion. On the other hand, if the defendant filed the Rule 30 motion within 30 days of the verdict, and filed a timely, but unsuccessful, motion for reconsideration, the defendant would have 30 days from entry of the order resolving the motion for reconsideration to appeal from: (1) the verdict; (2) the decision on the motion for a new trial; and (3) the ruling on the motion for reconsideration.
Consistent with the rule for civil cases, the addition of subdivision (b)(3) is not intended to provide a party with multiple opportunities to extend the time period to claim an appeal by filing repeated motions for reconsideration of the same appealable order, judgment, or adjudication. See Mass. R. A. P. 4(a)(2), Reporter's Notes (2013). The only circumstance when a motion for reconsideration extends the time for filing an appeal from an appealable order, judgment, or adjudication is when the motion is filed within 30 days of entry of the appealable order, judgment, or adjudication that was the subject of reconsideration. Any motion for reconsideration filed beyond that 30 day period has no tolling effect.