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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.
