Noonan v. Thermo Consulting Engineers, Inc.

660 N.E.2d 699, 40 Mass. App. Ct. 904, 1996 Mass. App. LEXIS 24

• Court: Massachusetts Appeals Court
• Decided: February 6, 1996
• Docket: No. 94-P-1213
• Status: Published

Opinion

The defendant is entitled to retrial in the Superior Court. Just as the plaintiffs right to retrial in the Superior Court was revived by the filing of the counterclaim,¹ we think that the defendant’s once waived right to trial in the Superior Court (contrast Costa v. Cape Tip Invs., Inc., 35 Mass. App. Ct. 944 [1994]) was revived when the plaintiffs claim for damages was revised during trial to exceed $25,000. This would plainly be true if the defendant had filed no counterclaim, or filed one not in excess of $25,000; the second paragraph of G. L. c. 231, § 104, accords a posttrial right to remove to a “party who would have been entitled to remove the case for trial in the Superior Court but for the fact that the amount of the claim, counterclaim or cross-claim, as the case may be, does not exceed |$25,000J.” The defendant in such a case would have been unable to obtain removal because the plaintiffs claim was less than $25,000. After the trial had egun, the defendant could no longer remove as of right. See Kerr v. Palmieri, 325 Mass. 554, 558 (1950). Contrast, as to pretrial removal after amendment, Kolakowski v. Finney, 393 Mass. 336, 340 (1984). Is the defendant, therefore, to be treated differently because it did have a right to remove the case to Superior Court before trial (its claim being in excess of $25,000)? We answer this negatively, because it exercised its waiver without knowing of its exposure to a plaintiff’s claim in excess of $25,000. A defendant should not be in a worse position than a plaintiff who may have waived his right to a Superior Court retrial when he filed his complaint, before he knew of his own exposure under a counterclaim. See Haddad v. Pulaski, 36 Mass. App. Ct. 964 (1994).

Wendy Sibbison (Marc G. Perlin with her) for the defendant. Michael D. Parker for the plaintiff.

Order revoking transfer reversed.

1 The revived right was again waived when the plaintiff failed to remove the case to the Superior Court by filing a claim therefor within twenty-five days after service of the counterclaim. See Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court § 11.4 second par. (2d ed. 1990).