Opinion
20-P-94
05-20-2021
Emer M. MCDONOUGH, trustee, & another v. Barbara LEONE & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 23. 0
The plaintiff landlords Emer M. and Kevin M. McDonough, trustees of the 30-32 Whitman Avenue Realty Trust (together, the landlords), appeal from a decision of the Housing Court, entered following a bench trial in which the judge awarded the defendants Barbara Leone and Ken Lunn (together, the tenants) $8,297.84 in combined damages on their counterclaims for violations of G. L. c. 186, §§ 15 and 15B, and $121,680.54 in damages on their counterclaim for negligence. The landlords argue, among other things, that the judge erred in denying their jury demand -- made after the tenants filed their answer and counterclaims, including a substantial counterclaim for personal injury -- and by requiring the landlords to proceed pro se at trial. We agree that, under the specific facts of this case, the denial of the landlords’ jury demand constituted an abuse of discretion and, accordingly, vacate the judgment and remand.
Factual and procedural background. We summarize the facts as found by the judge, supplemented by the undisputed facts in the record. The landlords, proceeding individually, initiated on March 31, 2015, this summary process action against the tenants for the nonpayment of rent for their residence located at 32 Whitman Avenue (property). The landlords did not request a trial by jury.
The summons and complaint form provided by the Housing Court and filed by the landlords contains neither the option for a jury demand nor any indication that a jury trial is a possibility in a summary process proceeding. Summary process plaintiffs are thus required to both know that they are entitled to a trial by jury and to know that they must write their jury demand on their initial complaint, despite the fact that the court-provided forms lack a place for this demand.
On April 6, 2015, the tenants, acting pro se, filed their initial answer. They used pages one and three of a summary process answer form provided by the Housing Court and included a handwritten page two stating that Leone had fallen at the property after a "rotted wood stair broke in half," that her "rotor cuff was massively torn," and her "medical bills [and other bills] are mounting." The handwritten statement did not demand damages. The tenants did not complete the preprinted section of the form entitled "COUNTERCLAIM." The Housing Court docket indicates that the tenants filed an answer; it does not indicate that the tenants filed a counterclaim. The tenants did not include a jury demand with their answer.
Like the summons and complaint form, the answer form provided by the Housing Court and filed by the tenants contains neither the option for a jury demand nor any indication that a jury trial is a possibility in a summary process proceeding. Summary process defendants are thus required to both know that they are entitled to a trial by jury and to know that they must write their jury demand on their answer, despite the fact that the court-provided forms lack a place for this demand.
The landlords agreed to a continuance for the tenants to obtain counsel. On April 29, 2015, with the assistance of counsel, the tenants filed a "motion to amend answer and counterclaim." The proposed amended response to the complaint contained three affirmative defenses and five counterclaims, including a noncompulsory counterclaim for negligence, seeking damages for injuries Leone alleged she sustained -- including a "severely torn rotator cuff" requiring multiple surgeries -- when she fell on an exterior staircase at the property. The tenants’ amended answer and counterclaim alleged that Leone suffered severe and permanent injuries and "was caused to be disabled and will be disabled in the future." On this count, in their pretrial memorandum, the defendants sought total damages of $95,139.56 -- $34,014.36 in medical expenses and $61,125.20 in lost wages. The tenants also asserted counterclaims for breach of warranty; violations of G. L. c. 186, § 14 ; failure to comply with security deposit law, G. L. c. 186, § 15B ; and last month's rent violation, also G. L. c. 186, § 15B.
On May 19, 2015, twenty days after the tenants filed their amended answer and counterclaims, the landlords filed an answer to the tenants’ counterclaims in which they, too, demanded a trial by jury.
On June 17, 2015, the motion judge granted the tenants’ motion to amend their answer and counterclaims but denied the tenants’ demand for a jury trial without explanation, even though at that point all parties had demanded a jury trial. The judge then sought additional briefing on the question of whether the landlords’ jury demand was timely filed. On April 20, 2016, over a year after the landlords filed their demand for a trial by jury, the same motion judge, who later was the trial judge, denied this demand with a margin notation stating "[a]fter hearing, jury demand denied as untimely." Ultimately, the case was tried August 23 and 24, 2017, more than a year after the judge denied the landlords’ jury demand and more than two years after the landlords filed the summary process complaint.
On February 26, 2018, judgment entered. The judge ruled for the tenants on their negligence claim and awarded Leone $121,680.54 in damages for her injuries and lost wages.
On the issues related to tenancy, judgment entered as follows: for the landlords on the issue of unpaid rent; for the tenants for possession; and for the tenants on their counterclaims for breach of the implied warranty of habitability and violations of G. L. c. 186, §§ 14 and 15B (last month's rent and security deposit), resulting in a net award to the tenants on these matters of $8,297.84. The judge also awarded the tenants attorney's fees.
Discussion. 1. Landlords’ jury demand. On the subject of the availability of trial by jury, Uniform Summary Process Rule 8 provides that "[t]he provisions of Mass. R. Civ. P. 38 shall apply ... provided that: (1) in cases commenced in a court where jury trial is available, a demand for jury trial shall be filed ... no later than the date on which the defendant's answer is due." Rule 8 of the Uniform Summary Process Rules (2020). As the late Chief Justice Gants noted in Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 857 (2019) :
Rule 38 of the Massachusetts Rules of Civil Procedure in turn states that the right to a trial by jury "as declared by Part 1, Article 15 of the Constitution of this Commonwealth ... shall be preserved to the parties inviolate. Parties in Housing Court are therefore entitled to a trial by jury for "all controversies concerning property, and in all suits between two or more persons." Article 15 of the Declaration of Rights of the Massachusetts Constitution.
"If a party wishes to have the matter heard by a jury, he or she must file a demand for a jury trial no later than the due date for the defendant's answer (the Monday following the entry date). See Rule 8 of the Uniform Summary Process Rules. This deadline, however, is not clearly stated on the summons and complaint form or on the summary process answer form. An unrepresented [landlord or] tenant may therefore unknowingly miss the deadline to timely notify the court of his or her decision to exercise the constitutional right to trial by jury. See Cort [v. Majors, 92 Mass. App. Ct. 151, 153 (2017) ] (right to trial by jury declared in art. 15 of Massachusetts Declaration of Rights and incorporated in Mass. R. Civ. P. 38, as amended, 423 Mass. 1406 [1996], and Rule 8 of the Uniform Summary Process Rules )."
In other words, the rules provide that a plaintiff landlord in a summary process action must demand a jury trial before knowing that a defendant tenant has asserted a counterclaim.
At the same time, the Uniform Summary Process Rules provide that "[n]o responsive pleading to a counterclaim is necessary." Rule 5 of the Uniform Summary Process Rules (2020). A landlord may file a written response to a tenant's counterclaim "prior to or at the time of the trial." Commentary to Rule 5 of the Uniform Summary Process Rules. Here, the landlords filed such a response within twenty days. In that response, they also included a jury demand.
The landlords agree that their jury demand was not timely under Rule 8 of the Uniform Summary Process Rules. Nonetheless, they argue that in these circumstances, the trial judge abused her discretion by denying their jury demand. We therefore analyze the judge's denial of the landlords’ jury demand for an abuse of discretion. See Mass. R. Civ. P. 39 (b), 365 Mass. 801 (1974) ("notwithstanding the failure of a party to demand a jury [in compliance with Rule 38 ], the court in its discretion upon motion may order a trial by jury of any or all issues"). In Massachusetts, "the trial judge's discretion to order a jury trial [is] largely unlimited" and does not "require a showing of highly exceptional circumstances." Reporters’ Notes to Rule 39 (b), Massachusetts Rules of Court, Rules of Civil Procedure, at 64 (Thomson Reuters 2018).
Given the landlords’ argument, we pass over whether a court rule that requires a summary process plaintiff to demand a jury trial for counterclaims not yet asserted comports with the constitutional right to a trial by jury.
We determine that a judge has committed an error of discretion only when, "the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citations omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014). We have also called "troubling" those instances in which "a judge ... does not even purport to exercise permitted discretion." Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 748 (2003).
"The proper exercise of judicial discretion involves making a circumstantially fair and reasonable choice within a range of permitted options ... [and] requires more than avoiding ‘arbitrary determination, capricious disposition, or whimsical thinking.’ Davis v. Boston Elev. Ry. Co., 235 Mass. 482, 496 ... (1920). It imports a willingness, upon proper request, to consider all of the lawfully available judicial options."
Id. at 748-749. See Carter v. Lynn Hous. Auth., 450 Mass. 626, 635 (2008) ("Failure to exercise discretion is itself an abuse of discretion" [citation omitted]).
"It is without question that judges have the inherent authority to do what is necessary to ‘achieve the orderly and expeditious disposition of cases.’ However, that authority is not without limit" (citation omitted). CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 285 (2017). The right to a trial by jury is guaranteed in both the state and federal constitutions. See Seventh Amendment to the United States Constitution ("In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved"); Article 15 of the Declaration of Rights of the Massachusetts Constitution ("In ... all suits between two or more persons, ... the parties have a right to a trial by jury; and this method of procedure shall be held sacred"). The rules of civil procedure also provide that "[t]he right of trial by jury as declared by Part 1, Article 15 of the Constitution of this Commonwealth or as given by a statute shall be preserved to the parties inviolate." Mass. R. Civ. P. 38 (a), 365 Mass. 800 (1974).
Here, while the tenants’ original answer indicated that Leone had been injured on the property, it neither stated a counterclaim nor demanded damages. Indeed, the Housing Court docket reflects that the tenants filed an answer and does not indicate that counterclaims were asserted. In addition, the landlords agreed to an extension of time for the tenants to engage counsel and amend their answer and counterclaim. It was only in the amended answer and counterclaims -- once the tenants were represented by an attorney -- that the tenants asserted a negligence claim and demanded significant damages from the landlords. Rule 5 of the Uniform Summary Process Rules provides that a landlord need not file a written response to a counterclaim. Nonetheless, here, the landlords responded promptly, within twenty days, and in their first response to the tenants’ counterclaims, demanded a jury trial.
In these circumstances, the judge abused her discretion in denying the landlords’ jury demand. The judge wrote no rationale other than "untimely" in denying the landlords’ jury demand. The landlords demanded a jury trial at the first opportunity after they understood that they faced a significant damages claim. Moreover, after the initial complaint, answer and counterclaims, and response to the counterclaims, both the landlords and the tenants demanded a jury trial. While timeliness is a legitimate concern, so are the constitutional right to a trial by jury, and the principles of fairness and justice. See Rule 1 of the Uniform Summary Process Rules (2020); Housing Court Standing Order 1-04(VI). As we recently stated, "Housing Court judges are required to ‘apply the rules in a fair, reasonable and practical manner consistent with the legitimate interests of all parties’ " (citation omitted). Morse v. Ortiz-Vazquez, 99 Mass. App. Ct. 474, 480 (2021). Striking a jury demand asserted at the first notice of a substantial counterclaim, in the circumstances of this case, is inconsistent both with fairness and, more importantly, with the constitutional right to a trial by jury. While the "right to trial by jury may be regulated," as it is in the rules of summary process and civil procedure, court rules cannot "touch[ ] or impair[ ] in any degree the substance of that right. The essence of that right is that controverted facts shall be decided by the jury." Farnham v. Lenox Motor Car Co., 229 Mass. 478, 481 (1918). Where the rules of civil procedure create discretion to grant even an untimely jury demand -- a second chance to exercise a cherished constitutional right -- the exercise of such discretion must be judicious indeed to survive appellate scrutiny.
We note that per the rules of civil procedure, the landlords’ jury demand would have been timely, as a jury demand must be filed no more than ten days "after the service of the last pleading directed to such issue," Mass. R. Civ. P. 38 (b), 365 Mass. 800 (1974), and the landlords’ response to the tenants’ counterclaims would be the operative last pleading.
While in Senior Housing, the Supreme Judicial Court ruled that a judge's discretion under rule 39 (b) had to yield to the mandatory terms of a statute, that statute does not control the Housing Court. See Senior Hous. Prop. Trust v. HealthSouth Corp., 447 Mass. 259, 271 (2006). In fact, as the right to a trial by jury is constitutional, the general proposition from that case that "the rule generally must yield to the statute" here is not only applicable but arguably even stronger. Id.
The notation "untimely" is also not sufficient to allow us to conclude that the judge weighed appropriate considerations or "even purport[ed] to exercise permitted discretion," particularly where the discretionary matter at issue is a constitutional right. Lonergan-Gillen, 57 Mass. App. Ct. at 748. In keeping with the fundamental constitutional nature of the right to a trial by jury, parties are not required to show "highly exceptional circumstances," for a judge to grant a late jury demand. Reporters’ Notes to Rule 39 (b). Nevertheless, the noncompulsory negligence counterclaim for substantial damages presented an exceptional circumstance. See Senior Hous. Prop. Trust v. HealthSouth Corp., 447 Mass. 259, 267-268 (2006). Thus, while the landlords may have been content to have a bench trial on the summary process action, the noncompulsory counterclaim here substantially changed the focus of the trial.
We therefore conclude that the trial judge abused her discretion by denying the landlords’ jury demand.
The landlords also alleged that the trial judge erred by allowing the landlords’ counsel to withdraw on the day of trial and in not granting the landlords’ request for a continuance to obtain new counsel. Given our disposition of the jury demand question, we need not address these claimed errors.
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2. Landlords as trustees proceeding pro se. We briefly address the landlords’ claim that the judge erred by requiring them to proceed pro se despite the fact that the property at issue is held in trust. Given our disposition of the previous issue and the fact that landlords raise this claim for the first time on appeal, we need not decide this issue. We address it only to point out that the landlords held title to the property individually until August 11, 2015, well after the initiation of these proceedings. The landlords also did not inform the Housing Court that they had transferred the property into trust until trial was underway: the first reference made to the fact that the property had been placed into trust was during cross-examination of Kevin McDonough. The record before us does not contain the trust instrument. We have previously stated that "a nonattorney trustee who is not a beneficiary may not represent a trust in legal proceedings." Braxton v. Boston, 96 Mass. App. Ct. 714, 717 (2019). Therefore, on remand, further evidence on this issue will be required, including but not limited to the nature of the trust, the trustees and named beneficiaries, and the reason for the transfer of the property into trust.
Conclusion. For the foregoing reasons, the judgment is vacated, and the matter is remanded for further proceedings consistent with this memorandum and order.
So ordered.
Vacated and remanded