Massachusetts just turned its frivolous-appeal rule into a fee-and-costs rule.

Massachusetts replaced Rule 25, effective September 1, 2026

Massachusetts replaced its entire appellate Rule 25 on September 1, 2026. The old title, "Damages for Frivolous Appeal in Civil Cases," became "Appellate Attorney's Fees and Costs."

The Supreme Judicial Court entered the order in Boston on July 13, 2026. Chief Justice Kimberly S. Budd and Justices Frank M. Gaziano, Scott L. Kafker, Dalila Argaez Wendlandt, Serge Georges, Jr., Elizabeth N. Dewar, and Gabrielle R. Wolohojian were present and ordered the change.

The order deletes Mass. R. A. P. 25 and inserts a new rule in its place. The rule's published amendment history now lists changes effective January 15, 1979, July 1, 1979, March 1, 2019, and September 1, 2026.

The frivolous-appeal sanction is now one part of a broader rule

Before September 1, Rule 25 contained one short provision for frivolous civil appeals. If an appellate court found an appeal frivolous, it could award the appellee just damages, single or double costs, and interest on the judgment if allowed by law. A second sentence, added in 2019, required a separately filed motion or notice from the court and a reasonable opportunity to respond before the court calculated an award.

The old rule was a sanctions rule. It did not establish a procedure for the ordinary case in which a contract or statute provided for appellate fees. Rule 25 has been that kind of rule since 1973, when Massachusetts took it from Federal Rule of Appellate Procedure 38.

The new rule keeps the frivolous-appeal ground, but places it alongside fee requests based on other legal authority. The phrase "just damages" does not appear in the replacement rule. Double costs and interest remain available when the court determines that a civil appeal is frivolous.

Rule 25(a) now covers contract and statutory fee requests

Rule 25(a) applies when two conditions are met. A party must request appellate attorney's fees and costs under Rule 16(a)(10). The appellate court must then determine that the fees and costs are permitted or required by a contract, statute, regulation, rule, or other law, or that a civil appeal is frivolous. The court may award fees and costs, and shall do so when the governing authority makes the award mandatory.

The rule's frivolous-appeal ground remains limited to civil cases. The contract, statute, regulation, rule, and other-law grounds are not limited to civil cases on the face of subsection (a).

The 2026 Reporter's Notes say appellate fees and costs may be available in some criminal cases. They cite Mass. R. Crim. P. 15(d), 25(c)(2), 30(c)(8)(B), and 30(c)(9), each of which provides that fees and costs shall be paid on the order of the trial court after the rescript is entered or the application is denied. The notes state that the appellate rules had not previously addressed those situations.

The fee request still belongs in the appellate brief

Rule 25(a) turns on a request made under Rule 16(a)(10). That provision is titled "Request for Attorney's Fees and Costs" and states that any request for appellate fees and costs must be included in the brief, with a citation to the supporting authority. The September 1 change does not move that request to a later filing.

Rule 16(a)(10) was added in the 2019 amendments. Its Reporter's Notes cite Yorke Management v. Castro, 406 Mass. 17, 19 (1989), for the requirement derived from case law, and Beal Bank, SSB v. Eurich, 448 Mass. 9, 10 (2006), for the rule that a request be made even when it is not based on a fee-shifting statute.

The same notes state that an appellate court may excuse or modify the requirement if circumstances warrant, citing Lowell v. Massachusetts Comm'n Against Discrimination, 65 Mass. App. Ct. 356, 358 (2006). They also state that the request must identify the specific source authorizing the award.

Rule 25(b) sets two separate 14-day periods

After an appellate court grants a Rule 25(a) request, the party seeking fees and costs has 14 days to file a written application, supported by affidavits and any appropriate supporting materials. The 14-day period runs from the decision or order granting the request. The appellate court may order a different time.

The opposing party then has 14 days after service of the application to respond. That period also may be changed by the appellate court.

This differs from the procedure described in Fabre v. Walton, 441 Mass. 9 (2004). There, the Supreme Judicial Court said Walton could file her application within fourteen days of the rescript. The opposing party would receive a reasonable opportunity to respond, but the court did not set a stated response period.

Fabre arose from a single justice's order requiring Sean Fabre to pay Amalia Walton $56,510 in appellate fees and costs under G. L. c. 231, section 59H, the anti-SLAPP statute. The procedure the court announced there put the justices who heard the appeal, rather than a single justice, in charge of setting the amount.

Interlocutory appeals still require an early fee request

The 2026 Reporter's Notes reiterate that the Rule 16(a)(10) request belongs in the brief even when entitlement may not be resolved until after remand. The notes cite Brown v. F.L. Roberts & Co., Inc., 452 Mass. 674, 688-689 (2008), and T & D Video, Inc. v. City of Revere, 450 Mass. 107, 114-116 (2007).

In Brown, the plaintiff requested appellate fees and costs under Fabre's procedures but identified no statutory or other basis for a present entitlement. The court vacated summary judgment for the defendant and remanded. It denied the fee request without prejudice as premature.

T & D Video involved interlocutory appeals from a preliminary injunction that T & D defended successfully without requesting fees at the time. The Supreme Judicial Court held that the fees were not waived on those facts, and agreed that the appellate court was the proper forum for the request. It directed that a party seeking fees for an interlocutory appeal under 42 U.S.C. section 1988(b), or a similar federal fee-shifting statute, must note the request in the interlocutory brief, then file its application within thirty days of becoming a prevailing party, and should preserve the fee records, briefs and record appendices from that appeal.

Rule 25 excludes single justice proceedings and sends enforcement below

Rule 25 applies to an appellate court as defined by Mass. R. A. P. 1(c): the full Supreme Judicial Court, the full Appeals Court, or a statutory quorum of either court exercising jurisdiction over the case. The 2026 Reporter's Notes therefore place single justice proceedings outside Rule 25. The same subsection defines the lower court as the single justice, court, appellate division, board, commission, or other body whose decision is directly appealed to an appellate court.

Rule 25(c) addresses enforcement. Proceedings to enforce an amount awarded under the rule must be commenced in the lower court. The appellate court sets the award. Enforcement starts below.

The 2026 Reporter's Notes describe the revision as establishing standard procedures across appellate court cases where fees and costs may be available. They also state that the codified procedures remove the need to cite Fabre for procedure in cases covered by Rule 25. The Docket covered a related Florida rule change requiring initial briefs to state the basis of the court's jurisdiction on September 11, 2026.

Change the brief, application, response, and enforcement sequence

For a Massachusetts state appellate matter, put the fee request in the brief and name the authority supporting it. For an interlocutory appeal, do the same even if entitlement may depend on proceedings after remand, and preserve the related fee records and appellate materials.

After the court grants the request, calculate the 14-day application period from that decision or order, unless the court sets another deadline, and treat the opponent's response period as 14 days after service. When an award is entered, begin enforcement in the lower court identified by Rule 1(c). Do not assume Rule 25 governs a single justice proceeding.

What the new rule does not do

Rule 25 supplies procedure. It does not create an entitlement to fees. Entitlement still comes from a contract, a statute, a regulation, a rule, other law, or a finding that a civil appeal was frivolous, and a party that has one of those still has to ask for it in the brief. This is Massachusetts state appellate practice, and nothing here describes how any other state handles the same question.

Before publishing, this desk read the July 13, 2026 order against the rule text now published with its amendment history, then read Fabre at pages 9 through 11 to confirm the change in the application clock. One line in an early draft of this piece listed three dates in the amendment history. The published history has four, and the July 1, 1979 amendment was the one missing.

Archivar, which publishes The Docket, is an operating system for a law firm that answers every call around the clock in English and Spanish, runs intake, manages matters, and remembers what the firm has done. A 14-day clock that starts the day an order issues, rather than on a date anyone calendared at filing, is the kind of thing a matter record has to catch on its own. The Docket also reported on the 1796 decision that still governs which litigation costs a federal court may shift.

The rule that used to punish a bad appeal is now the rule that pays for a good one.

Everything in it runs off a paragraph in the brief, and that paragraph has been required since 2019.

The clock no longer starts at the rescript. It starts when the court says yes.