McDonough v. Leone

99 Mass.App.Ct. 1125

170 N.E.3d 344 (Table)

Emer M. MCDONOUGH, trustee,¹ & another²

v.Barbara LEONE & another.³

20-P-94

Appeals Court of Massachusetts.

Entered: May 20, 2021.

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.⁵

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.⁶

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.⁷

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."⁸ 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) :

"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.⁹ 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).

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...