Section 23: Initial determination of cause; removal; claim for trial by jury; bond or deposit; finding as evidence; report to appellate division
Section 23. Every cause begun under the procedure shall be determined initially in the district court department. No such cause may be removed for trial in the superior court department. In any action for property damage caused by a motor vehicle where the action is transferred to the regular civil docket in the district court department by the insurer and the unpaid party recovers a judgment for any amount due and payable by the insurer, the court shall assess against the insurer in addition thereto, costs and reasonable attorney's fees.
A plaintiff beginning a cause under the procedure shall be deemed to have waived a trial by jury and any right of appeal to a jury of six session in the district court department. If, however, said cause shall be appealed to a jury of six session in the district court department by the defendant as hereinafter provided, the plaintiff shall have the same right to claim a trial by a jury of six.
The defendant may, within ten days after receipt of the magistrate's finding, file in the court where the cause was determined a claim of trial by jury, or in the alternative for a trial before a single justice and shall file his affidavit that there are questions of law and fact in the cause requiring a trial by jury or a single justice, with the specifications thereof, and that such trial is intended in good faith.
Trials by jury of six in the district court department shall proceed in accordance with the provisions of law applicable to trials by jury in the superior court department, except that each party shall be entitled to two preemptory challenges. Jurors shall be drawn from the pool of jurors available for the jury sessions in civil cases in the superior court department.
The chief justice of the district court department shall designate at least one court in each region for the purpose of hearing cases where a claim for trial by a jury of six or by a single justice is entered. Claims for trial by a jury of six or by a single justice from courts within Suffolk county shall be held in the Boston municipal court department or district courts in Suffolk county or, with the approval of the chief justice of the district court department, may be held in those district courts whose judicial districts adjoin Suffolk county as are designated by said chief justice. Notwithstanding the foregoing, the chief justice for administration and management may designate the facilities of any other department of the trial court for trial by jury of six or by a single justice in the district court department or the Boston municipal court department. The Boston municipal court department shall be authorized to hear such appeals for the district courts in Suffolk county.
A defendant's claim for trial by jury or by a single justice shall be accompanied by twenty-five dollars for the entry of the cause in the court of the department to which the case has been appealed, and a bond in the penal sum of one hundred dollars, with such surety or sureties as may be approved by the plaintiff or the clerk or an assistant clerk of the district court department, payable to the other party or parties to the cause, conditioned to satisfy any judgment and costs which may be entered against him in the jury of six proceeding or a proceeding before a single justice in said cause waiting thirty days after the entry thereof. Notwithstanding the foregoing, in any action brought by a tenant of residential premises pursuant to the provisions of section fifteen B of chapter one hundred and eighty-six, bond shall be given in an amount equal to three times the amount of the security deposit or balance thereof to which the tenant is entitled, plus interest at the rate of five percent from the date when such payment became due, together with court costs and an amount equal to a reasonable attorney's fee for service which had been performed by an attorney, if any, or which may be expected to be performed by an attorney during the pendency of the appeal.
The clerk shall forthwith transmit such original papers or attested copies thereof as the rules for the procedure may provide, and the court of the department to which the case has been appealed may require pleadings pursuant to the District/Municipal Courts Rules of Civil Procedure, but the cause may be marked for trial on the list of causes advanced for speedy trial by jury. A finding for the plaintiff in the district court department shall be prima facie evidence for the plaintiff in the trial by jury of six or before a single justice. At such trial the plaintiff may, but need not, introduce evidence.
No bond shall be required of a county, town or other municipal corporation, or of a board, officer or employee thereof represented by the city solicitor, town counsel or other officer having similar duties, or of a political subdivision, or of a party who has given bond according to law to dissolve an attachment or of a defendant in an action of tort arising out of the ownership, operation, maintenance, control or use of a motor vehicle or trailer as defined in section one of chapter ninety if the payment of any judgement for costs which may be entered against him is secured, in whole or in part, by a motor vehicle liability bond or policy or a deposit as provided in section thirty-four D of chapter ninety.
The court shall waive the requirement of a bond in the amount of one hundred dollars if it is satisfied that the defendant has insufficient funds available to him to furnish the necessary bond and that the defendant's appeal is not frivolous.
No party to a cause under the procedure shall be entitled to a report. If the court is of the opinion that a question of law requires review, it may submit the matter, in the form of a report of a case stated, to the appellate division.
A judgment in an action for property damage caused by a motor vehicle commenced under the procedure shall not have a res judicata, collateral estoppel or other preclusive effect on any other action arising out of the same cause of action.