CHARLES F. TYNAN, JR, & another [Note 1] vs. MARK D. NELSON.

JACOBS, J. The underlying action in this case involves claims by the plaintiffs of breach of contract and misrepresentation against the defendant, a developer, based upon his failure to construct water pipes to serve their property. After a 1991 bench trial in the District Court, a judge ordered judgment for the plaintiffs for $27,350 on their claims and also ruled in their favor on a counterclaim. [Note 2] The defendant timely filed a claim for jury trial in the Superior Court. He also filed a motion for a new trial in the District Court and, about a month later, filed a

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suggestion of bankruptcy. After an hiatus of about two and one-half years, the plaintiffs sought to resume the proceedings and were later successful in obtaining rulings in the District Court striking the defendant's attempted claim for trial in the Superior Court and denying his motion for a new trial. The defendant then appealed to the Appellate Division of the District Court pursuant to G. L. c. 231, s. 108, where substantive issues in the underlying case were presented and reviewed along with the procedural issue which is the subject of this appeal. In its decision, the Appellate Division rejected the defendant's claims of error but at the same time ordered the immediate removal of the case to the Superior Court. [Note 3] The plaintiffs appeal and argue that the Appellate Division erroneously decided that an amendment of their complaint at the beginning of the trial revived the defendant's right of removal to the Superior Court.

1. Trial on the complaint as amended. We conclude that the underlying case involves a claim in excess of the statutory threshold of $25,000 and that the defendant's failure initially to seek removal pursuant to G. L. c. 231, s. 104, [Note 4] prevented him from claiming a trial in the Superior Court after disposition of the case in the District Court. Accompanying the plaintiffs' complaint is a statement of damages "assert[ing] that the money damages sought by means of the complaint . . . amount to $35,000.00." At the beginning of the trial and before the taking of evidence, the judge allowed the plaintiffs' earlier filed motion

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to amend the complaint. [Note 5] The amendment alleges that because of the defendant's failures, the plaintiffs expended $17,350 to dig and construct a well on their property. The original complaint contains no quantification of damages. Both the complaint and the amendment demand "actual damages." Fairly read, the complaint seeks typical undefined damages, and the amendment merely quantifies one portion of those damages. The plaintiffs offered evidence that other components of their damages included a loss in property value as well as the cost of water line installation not completed. The judge's finding of damages of $27,350, an amount greater than the threshold amount for removal, is further indication that the case involves damage components beyond the cost of construction of the well alone.

2. The Appellate Division's decision. The Appellate Division decided that although the defendant initially forfeited his right to removal pursuant to G. L. c. 231, s. 104, the amendment of the complaint by the plaintiffs reduced their damages claim below the threshold for removal, thereby reviving the defendant's right to posttrial removal pursuant to the provision of s. 104 applicable to claims not exceeding $25,000. In so ruling, it relied on Kolakowski v. Finney, 393 Mass. 336 , 340 (1984), which held that a pretrial amendment of the complaint increasing its damages claim to over $25,000 authorized the defendant to claim trial in the Superior Court within twenty-five days after service of the amended complaint. That case is not authority for considering the effect of a decrease in a claim below the statutory threshold. Compare Noonan v. Thermo Consulting Engrs., Inc., 40 Mass. App. Ct. 904 (1996). In any event, it was error for the Appellate Division to rely on the amendment of the complaint or any of the pleading materials, contrast Kolakowski v. Finney, supra, for a determination of the dollar amount at issue. Supplemental Rule 102A of the District/ Municipal Courts Rules of Civil Procedure (1987) prohibits a clerk-magistrate from accepting a complaint, cross claim, or counterclaim unless it is accompanied by a statement of damages. [Note 6] The amount specified in the statement of damages is controlling as notice to

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an opposing party of pretrial removal rights or to a clerk-magistrate for filing of the pertinent pleadings. [Note 7]

The recipient of a complaint, cross claim, or counterclaim seeking money damages in a District or Municipal Court action should be able to rely on the originally filed or properly amended pretrial statement [Note 8] of damages to assess his rights to a jury trial. Any other approach exposes the process to the uncertainty attendant to a party evaluating damage exposure on the basis of unquantified or partially quantified averments of injury contained in pleadings. [Note 9] The defendant here waived his right to removal by not filing a timely claim of jury trial and by proceeding to trial in the District Court. He cannot subsequently claim trial in the Superior Court. See Addis v. Steele, 38 Mass. App. Ct. 433 , 434 n.6 (1995); Perlin & Connors, Handbook of Civil Procedure in the Massachusetts District Court s. 11.3 (2d ed. 1990 86 SUPP. 1997). Contrast Noonan v. Thermo Consult

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ing Engrs., Inc., supra (allowing a posttrial removal by defendant pursuant to G. L. c. 231, s. 104, where the plaintiff was permitted after the start of trial to amend his complaint to claim damages in excess of $25,000).

The Appellate Division also stated that "[t]he defendant has failed to sustain his burden on this appeal of establishing almost all of the errors he now alleges." The decision goes on to determine that the defendant effectively waived any appellate consideration of the sufficiency of the evidence, failed to seek timely postjudgment relief from the trial judge, and failed timely to pursue a motion for new trial. We treat the Appellate Division's decision in these circumstances as a final judgment on the claims of error related to the District Court judgment, none of which the defendant has appealed to this court. See G. L. c. 231, s. 109. We therefore affirm the District Court judgment. Compare Addis v. Steele, supra.

Accordingly, so much of the order of the Appellate Division as directed the immediate removal of this case to the Superior Court is vacated, and the District Court judgment is affirmed.

So ordered.