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16-P-694 Appeals Court
TCHAD CORT vs. ALVER MAJORS.
No. 16-P-694.
Suffolk. May 10, 2017. - August 31, 2017.
Present: Milkey, Sullivan, & Henry, JJ.
Summary Process. Practice, Civil, Summary process, Jury trial,
Waiver of trial by jury. Constitutional Law, Trial by
jury, Waiver of constitutional rights.
Summary Process. Complaint filed in the Boston Division of
the Housing Court Department on September 2, 2015.
The case was heard by MaryLou Muirhead, J.
Carson Denny (Patricia Whiting also present) for the
defendant.
Tchad Cort, pro se.
HENRY, J. The defendant tenant, Alver Majors (tenant),
appeals from a Housing Court judgment, entered following a bench
trial, that awarded to the plaintiff landlord, Tchad Cort
(landlord), possession of an apartment in which the tenant
resided. The trial judge also awarded damages to the landlord
for nonpayment of rent, reduced by the amount of relief granted
to the tenant on his counterclaims for breach of the covenant of
2
quiet enjoyment and breach of G. L. c. 93A. The tenant argues
that the judge erred by ruling that the tenant waived his right
to a jury trial by failing to object to the commencement of a
bench trial. We conclude that the tenant did not waive his
right to a jury, and therefore vacate the judgment.
Background. The tenant lived for four years in the
basement unit of the landlord's building at 96 Mount Pleasant
Avenue in the Roxbury section of Boston, paying $600 per month
in rent. In April of 2015, the tenant ceased paying his rent.
In September, 2015, the landlord filed a claim for
possession in the Housing Court due to the tenant's nonpayment
of rent. The tenant timely filed an answer and counterclaims
alleging violations of the implied warranty of habitability and
G. L. c. 93A, and breach of the covenant of quiet enjoyment.
The tenant's answer included a request for a jury trial in the
caption and in the body of the answer. The tenant's jury claim
was separately docketed.
The tenant and the landlord both appeared pro se on the
date scheduled for trial. When the case was called, the judge
asked the tenant if he was prepared to move forward with the
trial and he responded affirmatively. The judge then asked the
clerk to swear in the witnesses and called the landlord to the
witness stand. After the landlord had finished her testimony
and while the tenant was midway through his own testimony, the
3
tenant stated, "I'd like a jury." The judge replied that the
trial had begun and that the tenant had waived that right. The
tenant responded, "You didn't tell me that." After this
exchange, the judge asked, "What else would you like to tell me,
sir?" and the tenant continued with his testimony.
The judge awarded possession to the landlord, as well as
damages for rent owed in the amount of $3,600. The judge also
awarded $2,400 in damages to the tenant for the conditions in
the apartment, which partially offset the amount owed to the
landlord, resulting in a net award to the landlord of $1,200.
Discussion. The tenant argues that he was improperly
denied his right to a jury trial under art. 15 of the
Massachusetts Declaration of Rights1 and G. L. c. 185C, § 21,2
1
Article 15 of the Massachusetts Declaration of Rights
provides, in pertinent part:
"In all controversies concerning property, and in all suits
between two or more persons, except in cases in which it
has heretofore been otherways used and practiced, the
parties have a right to a trial by jury; and this method of
procedure shall be held sacred, unless . . . the
[L]egislature shall hereafter find it necessary to alter
it."
2
General Laws c. 185C, § 21, inserted by St. 1978, c. 478,
§ 92, provides, in pertinent part:
"All cases in the housing court department . . . shall be
heard and determined by a justice . . . sitting without a
jury, except . . . where a jury trial is required by the
[C]onstitution of the [C]ommonwealth or of the United
States and the defendant has not waived his rights to a
trial by jury . . . ."
4
when the judge proceeded to a bench trial without obtaining his
consent by written or oral stipulation to trial without a jury.
"The right of a trial by jury is declared by part 1, art.
15 of the Constitution of the Commonwealth of Massachusetts,
which provides that 'parties have a right to a trial by jury;
and this method of procedure shall be held sacred.'" Northeast
Line Constr. Corp. v. J.E. Guertin Co., 80 Mass. App. Ct. 646,
649 (2011) (citation omitted). Article 15 is incorporated in
Mass.R.Civ.P. 38(a), 365 Mass. 800 (1974) (rule 38),3 which is in
turn incorporated in rule 8 of the Uniform Summary Process Rules
(1980) ("The provisions of Mass.R.Civ.P. 38 shall apply insofar
as jury trial is available in the court where the action is
pending").
Once a party has properly demanded a trial by jury, the
case must proceed by jury trial unless there is a valid waiver
by the parties or a judicial determination that the right to a
jury trial is not applicable to some or all of the claims. Rule
39(a) of the Massachusetts Rules of Civil Procedure, as amended,
450 Mass. 1403 (2008) (rule 39), provides that such a jury trial
right may be waived only if the parties file a written
stipulation or make an oral stipulation in open court, or where
3
Rule 38(a) provides, "The 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."
5
the court finds that a right to a jury trial "does not exist
under the constitution or statutes of the Commonwealth." There
is no dispute that there is a right to a jury trial in the
Housing Court in an eviction case where, as here, the tenant
properly asserted his right to a jury trial by including his
request in his answer. See rule 8(1) of the Uniform Summary
Process Rules ("in cases commenced in a court where jury trial
is available, a demand for jury trial shall be filed with the
court no later than the date on which the defendant's answer is
due"). See also CMJ Mgmt. Co. v. Wilkerson, 91 Mass. App. Ct.
276, 281-282 (2017) (jury demand timely made in answer to
complaint). Because the parties in this case did not file a
written stipulation of their waiver of the right to a trial by
jury, the question at issue is whether the tenant made an oral
stipulation in open court.
On the day of trial, the judge asked the parties if they
were prepared to proceed to trial and the tenant replied
affirmatively. The tenant's statement that he was "prepared" to
begin trial was not a stipulation of waiver of his right to a
jury trial in open court. The judge's question did not notify
the tenant that the judge would proceed without a jury, and the
record contains no suggestion that the tenant authorized the
judge to decide any issue of fact or knowingly relinquished his
right to a jury trial. See Dole v. Wooldredge, 142 Mass. 161,
6
179-180 (1886) (waiver valid where "not done through any
misleading, or surprise, or misapprehension, or inadvertence").
The judge here nonetheless concluded that the tenant waived his
jury right by failing to object to the lack of a jury until
midway through his testimony. Rule 39 requires at least an oral
stipulation of waiver. We think the effect of rules 38 and 39
is to assign to the judge a responsibility in cases where a jury
trial has been demanded to affirmatively inquire of the parties,
before any witness is sworn, whether the case will proceed with
or without a jury. The rules are not satisfied by commencing a
bench trial and awaiting an objection by a party. In this case,
therefore, where the tenant objected promptly once he realized
that the matter was being tried without a jury, the tenant did
not waive his right to trial by jury by failing to object when
the judge started a bench trial.4
4
We note that in some circumstances, failure to object to a
bench trial may constitute waiver of a jury trial. See
Casperone v. Landmark Oil & Gas Corp., 819 F.2d 112, 116 (5th
Cir. 1987) (party's "failure to timely object at any time during
the course of a nonjury trial constitutes a waiver of that
right"); CoxCom, Inc. v. Chaffee, 536 F.3d 101, 110-111 (1st
Cir. 2008) (finding waiver where pro se party actively
participated in bench trial without objecting until after
trial). Compare Solis v. Los Angeles, 514 F.3d 946, 955-957
(9th Cir. 2008) (finding that local rule providing that party
forfeits jury trial right by failing to satisfy additional
procedural requirements such as filing jury instructions and
special verdict forms is inconsistent with rules 38 and 39 and
that participation in bench trial after objection does not waive
jury trial right).
7
We understand that "a significant number of litigants
appear without counsel in the Housing Court and may be
unfamiliar with the Uniform Rules of Summary Process." CMJ
Mgmt. Co., supra at 283. We also recognize the demanding
caseload of the Housing Court and "that presiding over cases
involving self-represented litigants can sometimes be difficult
and challenging." Ibid. Rule 39 nevertheless requires that
once a party asserts a right to trial by jury, that party must
affirmatively waive that right before a bench trial may proceed.5
Given our disposition on the issue of jury waiver and in
light of the recent ruling in South Boston Elderly Residences,
Inc. v. Moynahan, 91 Mass. App. Ct. 455, 462-467 (2017), we do
not reach the issues of possession and damages.6
Conclusion. For the foregoing reasons, the judgment is
vacated.
So ordered.
5
Of course, the trial judge may explain to the parties the
differences between a jury trial and a bench trial.
6
For example, the record appears to indicate that an
inspector from the Boston inspectional services department
determined that the remedy for the violation of the applicable
State building code is to "remove [the] illegal[ly] buil[t]
basement apartment." Nonetheless, the tenant urges that
possession was awarded to the landlord in error. One
consideration on retrial is whether, if the unit is illegal or
uninhabitable, the conditions can be rectified and, if so,
whether they can be rectified without the tenant vacating the
apartment. We express no opinion on this issue.