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Massachusetts District/Municipal Courts Appellate Division Appeals Rule 26: Costs

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(a) To Whom Allowed. Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the Appellate Division; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered; if a judgment is reversed, costs shall be taxed against the appellee unless otherwise ordered; if a judgment is affirmed or reversed in part, or is vacated, costs shall be allowed only as ordered by the Appellate Division. In assessing costs pursuant to this rule, the Appellate Division may affirm, reverse, or modify an order, if any, for costs directed pursuant to Rule 8C(c)(2) or (d).

(b) Costs For and Against the Commonwealth. In cases involving the Commonwealth or an agency or officer thereof, if an award of costs against the Commonwealth is authorized by law, costs shall be awarded in accordance with the provisions of subdivision (a); otherwise, costs shall not be awarded for or against the Commonwealth.

(c) Costs of Briefs, Appendices, and Copies of Records. The costs of printing or otherwise producing necessary copies of briefs, appendices, or copies of records authorized by Rule 18(f) may be taxable in the trial court at rates not higher than those generally charged for such work in the Commonwealth. A party who desires such costs to be taxed shall state them in an itemized and verified bill of costs which he or she shall file with the clerk of the trial court, with proof of service, within fourteen days after the entry of judgment following the Appellate Division decision.

(d) Clerk to Insert Costs in Trial Court Judgment; Costs Taxable. The clerk of the trial court shall prepare and certify an itemized statement of costs for insertion in the trial court judgment following receipt of the Appellate Division decision. The statement shall include those costs taxable under subdivision (c) of this rule; costs incurred in the preparation and transmission of the record, the cost of the reporter's transcript, if necessary for the determination of the appeal, the premiums paid for cost of any bond to preserve rights pending appeal, and the fee for filing the notice of appeal shall be taxed as costs of the appeal in favor of the party entitled to costs under this rule.

Effective July 1, 1994.

Commentary: Section (a) of this rule is identical to section (a) of Mass. R.A.P. 26, except the last sentence has been added with reference to costs imposed by the trial court.

Section (b) through (d) differ from the Mass.R.A.P. versions in that references to "lower court" in the latter have been changed to "trial court," and in section (c) language is added at the end to clarify when such costs are to be sought in the trial court. Similarly, section (d) has been changed to indicate that costs relating to appeal, which under section (c) must be sought after disposition of the appeal, are to be added to the judgment by the clerk of the trial court after the Appellate Division decision is received, assuming they are timely sought.