Noonan v. Thermo Consulting Engineers, Inc.

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…