Mass. Unif. Summary Process R. 11

(a) District and Boston Municipal Court Departments

In the District Court and Boston Municipal Court Departments, Rules 60 and 62(b) and (d) of the Massachusetts Rules of Civil Procedure, which deal with relief from judgment and stay of execution, respectively, shall apply to summary process actions; provided that relief under Rule 60(b) shall be available only in cases where the judgment has been entered on default or dismissal. In cases that have been heard on the merits, relief under Rule 60(b) shall not be available.

(b) Superior and Housing Court Departments

In the Superior Court and Housing Court Departments, Rules 60 and 62 of the Massachusetts Rules of Civil Procedure shall apply to summary process actions.

Commentary

Correction from: Adjartey v. Central Division of the Housing Court Dept., 481 Mass. 830 (2019), Appx. FN20

The commentary to Rule 11 of the Uniform Summary Process Rules (1980) incorrectly states that "the running of time for appeal in summary process actions is not affected by the filing of a motion under Rule 60." While this statement of law was accurate when rule 11 became effective in 1980, it fails to capture a 2013 amendment to Mass. R. A. P. 4 (a), which added motions for relief from judgment under Mass. R. Civ. P. 60, 365 Mass. 828 (1974), to the list of motions that reset the time for appeal. Compare Mass. R. A. P. 4 (a), as amended, 464 Mass. 1601 (2013) (including "relief from judgment under Rule 60" among motions resetting time for appeal) with Mass. R. A. P. 4 (a), as amended, 430 Mass. 1603 (1999) (excluding Mass. R. Civ. P. 60 from list of covered motions). Rule 4 (a) was amended again in 2019, and the amended version continues to include motions for relief from judgment under Mass. R. Civ. P. 60. See Mass. R. A. P. 4 (a) (2), as appearing in 481 Mass. 1606 (2019).

This error in the commentary to the Uniform Rules of Summary Process is problematic, particularly because under Mass. R. App. P. 4 (a) (3), as appearing in 481 Mass. 1606 (2019), a "notice of appeal filed before the disposition of any timely motion listed in Rule 4(a)(2) shall have no effect." This means that if a party files a notice of appeal before his or her motion under Mass. R. Civ. P. 60 (b) is decided, that party must refile the notice of appeal within ten days of the judge's decision on the rule 60 (b) motion. See Mass. R. A. P. 4 (a) (3). A tenant who reads the commentary to Rule 11 of the Uniform Summary Process Rules could incorrectly believe, however, that motions under Mass. R. Civ. P. 60 (b) do not affect the timeline for an appeal. And if, as a result, that tenant fails to refile a notice of appeal within ten days of the postjudgment motion decision, an eviction order could issue. See Rule 13 & commentary of the Uniform Summary Process Rules (1980).

Commentary

Section (a) of Rule 11 applies only to the District Court and Boston Municipal Court Departments. The right of an aggrieved party to a new trial on appeal provides the rationale for limiting the availability of relief under Rule 60 in those two Departments. See G.L. c. 231, § 97.

Section (b) applies to the Superior Court and Housing Court Departments. An aggrieved party in those departments does not have a right to a new trial; instead the appeal is heard in the Appeals Court. See G.L. c. 239, § 5.

It must be noted that the running of time for appeal in summary process actions is not affected by the filing of a motion under Rule 60.

Rule 62(b) allows the court to stay execution under certain conditions upon filing of a motion under Rule 60. Stay of execution pending appeal is governed by G.L. c. 239, § 5.