What is an appeal?

An appeal is a request to a higher court to look over and possibly change or reverse the decision of a lower court, in this case the Small Claims Court. When someone is unhappy with the judgment delivered in Small Claims Court, he/she should consider appealing that judgment, so the case can be heard before a judge or jury in District trial court. The judgment from the appeal trial will override the original judgment of the Small Claims Court.

Right to Appeal

Plaintiff

A plaintiff waives any right to appeal when he/she first files
a small claim. The plaintiff, however, does have the right to
appeal if the defendant has filed a counterclaim against the plaintiff,
in which case the plaintiff may appeal only the judgment on the counterclaim.
Since the plaintiff could not have predicted such a counterclaim at the
time of filing, this situation would make the plaintiff similar to a defendant
who has lost.

Exceptions:

Some courts allow a plaintiff to file a motion for a new trial.
Because this situation is not described in the law, the courts that do
allow such a practice allow it under different circumstances. Some courts
allow an unhappy plaintiff to file a motion for a new trial for any reason,
while other courts allow plaintiffs to do so only if there is new evidence
for the case.

In some courts, a plaintiff who lost case may file a motion to reconsider,
in which the original clerk magistrate would reconsider the judgment,
as the name suggests, or uphold and explain the original judgment.

Defendant

A defendant, whether an actual defendant who has lost or
a plaintiff who has lost to a counterclaim, has the right to appeal.
It should also be noted that a defendant who did not enter a counterclaim
in the original proceeding may not introduce one later in the appeal.

Filing for Appeal

When to File

A defendant may formally file for appeal in the court where the case
was originally heard within ten (10) days of receiving the Notice
of Judgment and Order to Pay. Saturdays, Sundays, and holidays
count in the 10-day period, but if the tenth day falls on a Saturday,
Sunday, or legal holiday, the defendant may file for appeal on the following
business day.

What to File

The appellant (the defendant who is appealing) must file an affidavit
(notarized statement) and pay a fee and surety bond totaling
$129.

The Affidavit

Many courts provide a form for the affidavit, but there is no set format
established in the uniform rules of small claims procedure that the courts
must follow. Some courts might require the appellant to file a statement
in a simple letter declaring the appellant’s desire to appeal, in addition
to a separate affidavit concerning more specific information about the
appeal. An appellant should contact the court at which the case was
decided for the specific filing procedures.

Filling Out the Affidavit

Overview: The appellant must state in
the affidavit:

• that there are questions of law and fact which serve as the
  grounds for the appeal,
• what these questions are,
• that `such trial is intended in good faith` (i.e.,
  the purpose of the appeal is for the law to be served and not for petty
  reasons), and
• whether the appellant wants the appeal to be heard in a trial by jury
  of six or by a single justice.

Method of Judgment: If the defendant,
plaintiff, or both want the appeal to be heard by a jury of six and
actively make such a request, the request will be granted. The case then
would be heard by a single justice only if both defendant and plaintiff
prefer this arrangement, or if it is the preference of the defendant,
and the plaintiff does not that the appeal be heard by a jury session.

Disputed Question of Facts: A defendant
may request a jury trial only when there are questions concerning facts
with which the two sides disagree. If the judge decides that the disputed
facts are not legally significant to the judgment of the case, he/she
may decide the appeal without a jury. This procedure is known as summary
judgment, in which the judge applies the law to the undisputed facts.
The appellant should be prepared to tell the jury-session judge which
issues of fact are disputed and which are not. In addition, there is
no right to a jury trial for claims filed under the Massachusetts
Consumer Protection Act (M.G.L. c. 93A).

Statement: The statement on the
affidavit can be very brief, such as, `I, John Doe, come forward
in good will to appeal the case of Smith vs. Doe, since there is a question
of fact concerning the testimony of the original hearing. This question
of fact is whether Smith, a storekeeper, actually did post his return
policy visibly. Smith says he did, but other witnesses can say that he
did not.` As mentioned earlier, however, individual courts may have
different appeal procedures, so that anyone who wishes to appeal a judgment
should contact a court official to find out how descriptive one
should be in this affidavit. Some courts might even ask for supporting
documents to the questions of law or fact, although this would be very
rare.

Fee and Bond Costs

The $129 cost of appeal can be broken down into a simple filing fee
of $29 and a surety bond of $100 (except in appeals of landlord/tenant
claims; see below). The bond is returned only if the appellant
wins the appeal. If the appellant loses, the bond goes to the plaintiff
(the appellee) to pay the court costs of the trial and to pay a portion
of any judgment against the appellant which the jury session might find.

Both the bond and the requirement can be waived if the appellant
proves both that:

• the appellant cannot afford the costs, and
• the appeal is not frivolous.

The court official would decide whether the questions of fact or law
stated on the affidavit are reasonable, not whether or not the questions
are likely to change the earlier judgment, since this would be decided
by the judge or jury.

Landlord/Tenant Claims

For appeals of landlord/tenant claims involving a security
deposit, the bond is higher. If a landlord loses a decision to a plaintiff
regarding a disputed security deposit and wants to appeal, he/she must
pay a bond equal to

• Three (3) times the amount that is owed the tenant (including
  security deposit),
• 5% interest from the date the payment is due, and
• court costs plus reasonable attorney fees.

Groups exempt from paying a bond include:

• County, town, and municipal corporations, as well as representatives
  of such entities
• Parties who have already given a bond according to law to dissolve
  an attachment
• Defendants in tort actions (cases involving civil accident
  liability) involving motor vehicles who would be covered, either
  in whole or in part, by a motor vehicle liability policy against any
  judgment
• Defendants who cannot afford the bond and whose appeal is
  not frivolous, who are also exempt from the filing fee, as
  mentioned above.

Failure to File Properly

If the affidavit with all required information, fee and bond are not
all received within ten days, the clerk magistrate will notify both parties,
return any part of the fee or bond that was received, and record this
action on the court docket. If the appellant feels that he/she met the
deadline for entering the appeal with all materials or that extenuating
circumstances prevented him/her from doing so, the appellant may appeal
the rejection of his/her appeal.

Conduct of Trials

Unlike the simple, flexible small claims procedure, procedures in the
district court sessions in which appeals are heard are much more formal.
Court costs and attorney fees are included in the description of the bond
payments because attorneys, although not necessary, are often used by
parties in appeal trials. To help guide parties through the formality
of the proceeding, a handout by the District Court Department outlines
the following steps:

1. When the case is called for trial, the plaintiff and defendant (`the
   litigants`) come up to the tables in front of the clerk’s
   box. Witnesses should come with the litigants to the front of the
   room and give to the clerk the names and addresses of those who will
   be testifying.
2. In jury trials, a group of possible jurors will be called into the
   courtroom. The litigants will help select six persons to serve as
   the jury.
3. The burden of proving the claim is on the plaintiff (the
   appellee), who must prove the validity of his/her claim by a fair
   performance of the evidence (`more probably than not`).
   Most of the plaintiff’s argument will rest on the fact that he/she
   won the claim the first time. The jury will be told that a judge ruled
   in the plaintiff’s favor in a prior trial and that based on that same
   evidence presented before, the jury must again find for the plaintiff.
   If the defendant (the appellant) presents believable evidence against
   the plaintiff, the jury will be told that they may either ignore the
   previous decision or give it as much importance as they feel it deserves.
4. The litigants will explain the claim and defense by questioning
   witnesses and/or by taking the witness stand and testifying under
   oath themselves. Only testimony relevant to the case and not
   repetitive should be presented. The litigants should not
   speak directly to each other or to the jury during the trial,
   because this is a trial and not a debate. If the litigants have questions
   about the proceeding, problems, or objections to questions, they should
   address them to the judge. At the end of the trial, each litigant
   will speak directly to the jury about why he/she thinks he/she should
   win.
5. The judge will tell the jury what law the jury should use to
   decide this case.
6. The jury will then give a verdict, a decision on who wins
   and who loses, and will set the amount to be awarded (the $2,000 limit
   applies except in motor vehicle property damage claims). The verdict
   must be passed by a majority of 5 to 1.
7. Only appeals on matters of law may be submitted to the Appeals
   Court. (This is the next step in appeals after the jury session;
   see below).

After the Appeal

Dissatisfied with
the Decision of the Appeal?

Both the plaintiff and the defendant have the right to appeal the decision
of the appeal to the Massachusetts Appeals Court. This appeal must
be filed within ten (10) days of the entry of the judgment in the
court in which the first appeal trial took place. The judge of the new
trial may keep the old decision, make any adjustments to the old one,
or make a new decision if the decision of the appeal court is appealed.
The rules governing appeals at this level are no longer part of small
claims and are controlled entirely by the Massachusetts Rules of Appellate
Procedure. People considering such an appeal should also consider
using a lawyer. Very few cases are appealed in the first place, and an
even smaller number succeed. A small claims case reaching the Massachusetts
Appeals Court is extremely rare.

Judicial Misconduct

Outside the regular Small Claims Appeals procedure is the option of filing
a complaint to the Committee on Professional Responsibility for
the Clerks of the Courts against clerk magistrates and to the Commission
on Judicial Misconduct against judges. A complaint is defined
as any oral or written statement alleging misconduct by, or physical or
mental disability of a clerk or clerk magistrate. `Mental or physical
disability` also includes `habitual intemperance.`

The Committee must investigate conviction of a crime, willful misconduct
in office, any willful misconduct bringing `disrepute` to the
office of Clerk Magistrate, or any violation of the Canons of Rule 3:12:
`Code of Professional Responsibility for Clerks of the Courts`
of the Supreme Judicial Court Rules. These Canons include compliance with
statutes and rules of court, not being swayed by partisan interests, faithfulness
to the law, maintaining order in court proceedings, allowing anyone who
is legally so entitled the right to be heard in a court proceeding, and
impartiality.

The Committee on Professional Responsibility for the Clerks of the Courts
has the power to issue formal charges and make recommendations to the
Supreme Judicial Court concerning allegations of misconduct or disability
of a clerk or clerk magistrate.

In addition, all judges (as opposed to clerk magistrates) of trial, appeals,
and supreme judicial courts may similarly be found guilty of judicial
misconduct by the Commission on Judicial Misconduct.

Getting a clerk magistrate or judge punished by the Committee on Professional
Responsibility for the Clerks of the Courts or the Commission on Judicial
Misconduct, however, is very rare. An offense must be very severe for
fellow justices to rule against one of their own. Also, there are questions
as to what a person gains from successfully complaining and obtaining
official censure against a justice or clerk magistrate. The law states
none, although the commission might be able to allow a retrial or vacation
of judgment, which would be unlikely. As a result, the process as a whole
is probably more of a waste of time than a reasonable alternative for
seeking a fair solution.

Additional Materials