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16-P-426                                                 Appeals Court

           CMJ MANAGEMENT COMPANY 1    vs.   PATRICIA WILKERSON.


                               No. 16-P-426.

           Suffolk.       December 1, 2016. - March 31, 2017.

               Present:    Cypher, Maldonado, & Blake, JJ.


Housing. Landlord and Tenant, Termination of lease. Summary
     Process. Practice, Civil, Summary process, Jury trial.



     Summary process. Complaint filed in the Boston Division of
the Housing Court Department on September 15, 2014.

     The case was heard by MaryLou Muirhead, J.


     Stephanie Schuyler (Hoang Nguyen also present) for the
tenant.
     John G. Hofmann for the landlord.


     CYPHER, J.       Patricia Wilkerson appeals from a Housing Court

judgment, entered following a bench trial, that awarded the

plaintiff possession of an apartment in which Wilkerson resided

with her three grandchildren.         Wilkerson argues that the judge


     1
         As agent for Harbor Point Apartments.
                                                                     2


erred in concluding that the conduct of her juvenile grandson

constituted criminal activity that materially breached her

lease.   In addition, Wilkerson argues that the judge erred by

striking her request for a jury trial after she failed to comply

with a Housing Court pretrial conference order requiring the

submission of a pretrial conference memorandum.

     Background.   We summarize the facts from the judge's

findings, reserving some facts for later discussion. 2   Wilkerson

is a resident at the Harbor Point Apartments in the Dorchester

section of Boston (Harbor Point).   CMJ Management Company (CMJ)

is Harbor Point's managing agent.   Harbor Point is a housing

development combining market-rate and subsidized units.    Of the

1,283 units, 400 are subsidized pursuant to the Section 8

Housing Assistance Program of the United States Housing Act, 42

U.S.C. §§ 1437 et seq. (Section 8 program).   Wilkerson had

custody of her fourteen year old grandson, who, along with his

two adult brothers, were authorized occupants of her apartment.

In July of 2014, while playing with other children in one of the

common areas of the apartment complex, the juvenile grandson

fired a BB gun multiple times, injuring two juvenile residents.

Later that day, a Harbor Point security guard went to

     2
       "In reviewing a matter where[] the trial judge was the
finder of fact, the findings of fact . . . are accepted unless
they are clearly erroneous and we review the judge's legal
conclusions de novo." Allen v. Allen, 86 Mass. App. Ct. 295,
298 (2014) (quotation omitted).
                                                                    3


Wilkerson's apartment, spoke with Wilkerson and the juvenile

about the incident, and confiscated the BB gun.    The parents of

the injured children apparently did not pursue criminal charges.

The following week Wilkerson received a notice to quit,

terminating her lease.

     Pursuant to the Section 8 program, Wilkerson's tenancy is

subsidized by the United States Department of Housing and Urban

Development (HUD).   As such, the lease she signed is a "model

lease" provided by HUD. 3   Paragraph 13(c) of Wilkerson's lease

provides that Wilkerson "agrees not to . . . engage in or permit

unlawful activities in the unit, in the common areas or on the

project grounds."    Subparagraphs (c) and (d) of paragraph 23 of

the lease provide in relevant part:

     "c. The Landlord may terminate [the lease] only for the
     following reasons:

          "1. the Tenant's material noncompliance with the
          terms of this Agreement;

          ". . .

          "6. criminal activity by a tenant, any member of the
          tenant's household, a guest or another person under
          the tenant's control;




     3
       The HUD model lease form is from December, 2007; it was
signed by the parties on June 1, 2010.
                                                                     4


          "(a) that threatens the health, safety, or right to
          peaceful enjoyment of the premises by other residents
          . . . ;[4]

     ". . .

     "d. . . . The term material noncompliance with the lease
     includes:

          "(1) one or more substantial violations of the
          lease[.]"


     Discussion.   1.   Criminal activity.   Wilkerson argues that

Congress did not intend for "criminal activity" as stated in

paragraph 23(c)(6) of her lease to apply to juvenile conduct but

that even if it did, the judge erred in concluding that the

juvenile's conduct was criminal in nature.    We conclude that the

clear and unambiguous language of the lease provision

demonstrates Congress's intent that "criminal activity," as used

in the Section 8 program statute and regulations (see note

4, supra), includes conduct by juveniles.    Furthermore, although

criminal charges do not appear to have been brought against the


     4
       The language in paragraph 23(c)(6) of Wilkerson's model
lease tracks 24 C.F.R. § 982.310(c)(2) (2007), which states in
relevant part:

     "(i) Threat to other residents. The lease must provide
     that the owner may terminate tenancy for any of the
     following types of criminal activity by a covered person:

     "(A) Any criminal activity that threatens the health,
     safety, or right to peaceful enjoyment of the premises by
     other residents."

See 42 U.S.C. § 1437f(d)(1)(B)(iii) (2012).
                                                                      5


juvenile, the conduct of firing a BB gun in a public space and

injuring two apartment complex residents was criminal activity

(see our discussion, infra) and was therefore a material breach

of Wilkerson's lease.

     The Federal statute and HUD regulations on which the lease

language is patterned (see note 4, supra) are clear and

unambiguous.    Paragraph 23(c)(6) of Wilkerson's lease states:

"The Landlord may terminate [the lease] . . . [if there is] . .

. criminal activity by a tenant, any member of the tenant's

household, a guest or another person under the tenant's

control."     The declared policy of the United States for assisted

housing is:

     "(1)(A) . . . to remedy the unsafe housing conditions and
     the acute shortage of decent and safe dwellings for low-
     income families;

     ". . .

     "(4) [to] promote the goal of providing decent and
     affordable housing for all citizens through the efforts and
     encouragement of Federal, State, and local governments, and
     by the independent and collective actions of private
     citizens, organizations, and the private sector."

42 U.S.C. § 1437(a) (2012).    See Barnes v. Metropolitan Hous.

Assistance Program, 425 Mass. 79, 80 (1997).     The inclusion of

the language "any member of the tenant's household" in the lease

provision coupled with the overarching goals stated in the

assisted housing policy demonstrates Congress's intent to
                                                                      6


encompass juvenile conduct in the lease provision concerning

criminal activity.

     The judge found that the juvenile's conduct was in

violation of G. L. c. 269, § 12B, a criminal statute. 5,6

Wilkerson contends that because violation of c. 269, § 12B, is

punishable only by a fine, such a violation should not be

considered criminal activity.   The lease refers only to

"criminal activity," which is not specifically defined.     We note

that numerous criminal acts are punishable only by a fine,

rather than a sentence of incarceration. 7   Moreover, c. 269 is


     5
       General Laws c. 269, § 12B, as amended through St. 1996,
c. 151, § 493, provides in pertinent part:

     "No minor under the age of eighteen shall have [a] . . .
     so-called BB gun in his possession while in any place to
     which the public has a right of access unless he is
     accompanied by an adult . . . . [N]o minor under the age
     of eighteen shall discharge a BB shot, pellet or other
     object from [a] . . . BB gun unless he is accompanied by an
     adult . . . . Whoever violates this section shall be
     punished by a fine of not more than one hundred dollars,
     and the . . . BB gun . . . shall be confiscated. Upon a
     conviction of a violation of this section the . . . BB gun
     . . . shall, by the written authority of the court, be
     forwarded to the colonel of the state police, who may
     dispose of said article . . . ." (Emphasis supplied.)
     6
       Although the judge did not specifically find that an
assault and battery occurred, the facts on the record would
support such a conclusion. The lack of formal charges against
the juvenile is of no consequence when determining if criminal
activity occurred in violation of Wilkerson's lease.
     7
       See, e.g., G. L. c. 269, § 15 (sale of stink bombs), § 16,
first or second offense (sale to minors of arrowheads used for
hunting), § 18 (failure to report hazing); G. L. c. 270, § 1A
                                                                     7


found under Part IV of the General Laws titled "Crimes,

Punishments and Proceedings in Criminal Cases."    And G. L.

c. 269 specifically is titled "Crimes against Public Peace."

See, e.g., First E. Bank, N.A. v. Jones, 413 Mass. 654, 661 n.9

(1992) (title of Act is "a useful indication of legislative

intent").    There is also nothing in the lease that requires that

the criminal activity at issue result in arrest, charge, or

conviction. 8   Thus, the argument that the violation of G. L.

c. 269, § 12B, is not criminal activity is contrary to the

legislative intent to enact a criminal statute to regulate this

precise activity.

     Although not all crimes would necessarily constitute a

material breach of the lease, the conduct of the juvenile here

directly threatened the health and safety of Harbor Point

residents, and was, therefore, such a breach.

     Where, as here, the regulations governing the tenancy

"permit the owner to take an action [to terminate the tenancy]


(eyeglass materials requirements), § 3A (negligent placement of
rodent poison), § 6 (tobacco sale or gift to minors).
     8
         See 24 C.F.R. § 982.310(c)(3) (2014):

     "Evidence of criminal activity. The owner may terminate
     tenancy and evict by judicial action a family for criminal
     activity by a covered person in accordance with this
     section if the owner determines that the covered person has
     engaged in the criminal activity, regardless of whether the
     covered person has been arrested or convicted for such
     activity and without satisfying the standard of proof used
     for a criminal conviction."
                                                                   8


but do not require action to be taken," the owner (here, the

management company) is directed to reach a decision "in

accordance with the owner's standards for eviction[, and] may

consider all of the circumstances relevant to a particular

eviction case."   24 C.F.R. § 982.310(h)(1) (2014).

Compare Department of Hous. & Urban Dev. v. Rucker, 535 U.S.

125, 136 (2002) (public housing authority's discretion to evict

for household member's drug-related activity); Boston Hous.

Authy. v. Garcia, 449 Mass. 727, 735 (2007) (same; "HUD policy

encourages local housing authorities to engage in the

individualized consideration of the circumstances of each case

to ensure 'humane results'").   CMJ's decision to evict on the

basis that the juvenile's criminal activity of firing a BB gun

and injuring other residents was a material breach of

Wilkerson's lease was a proper exercise of the discretion

afforded to it.   Compare Costa v. Fall River Hous. Authy., 453

Mass. 614, 616 (2009) (HUD regulations permit public housing

authority to terminate recipient's participation in Section 8

program for criminal activity "that threatens the health, safety

or right to peaceful enjoyment of other residents and persons

residing in the immediate vicinity of the premises" [quotation

omitted]).

     By its plain terms, the relevant provision of Wilkerson's

lease prohibits any criminal activity by a tenant or household
                                                                      9


member.     The lease makes no distinction between adult and

juvenile offenders.     The juvenile's conduct was criminal in

nature and threatened the health and safety of residents of

Harbor Point.     There was no error in the judge's conclusion that

the juvenile's conduct constituted a material breach of the

terms of the lease.

     2.     Jury demand.   Wilkerson argues that she was improperly

denied her right to a jury trial under art. 15 of the

Massachusetts Declaration of Rights 9 and G. L. c. 185C, § 21, 10,11


     9
          Article 15 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."
     10
       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 . . . ."
     11
       The form on which Wilkerson checked the box requesting a
jury trial referenced "Part I, Article XV of the Mass.
Constitution; USPR 8; and Mass. Gen. Laws c. 218, §19B." USPR 8
refers to Rule 8 of the Uniform Summary Process Rules. "Rule 8
provides for trial by jury 'insofar as jury trial is available
in the court where the action is pending.' Jury trials in
summary process actions are currently available in the Housing
Court (G. L. c. 185C, § 21) [and] in the Superior Court (Uniform
                                                                   10


when the judge struck her jury demand after she failed to comply

with a pretrial conference order.   Wilkerson had requested a

jury trial in her answer to the complaint.    Pursuant to

Mass.R.Civ.P. 16, as amended, 466 Mass. 1401 (2013), the parties

were ordered to discuss a potential settlement in advance of

trial and to file a pretrial conference memorandum.      CMJ filed a

pretrial conference memorandum, including proposed jury

instructions.   Wilkerson, who was not represented by counsel,

did not file a memorandum and the record does not indicate that

she responded to CMJ's settlement letter.    The pretrial

conference order identified potential sanctions that "may

result" in the event a litigant failed to comply; one of the

sanctions listed was striking the jury demand.

     When Wilkerson was asked at the pretrial conference about

the lack of a pretrial memorandum, she stated:    "Not




Sum. Proc. R. 2[c] -- original summary process entries ['shall
be added to the next non-jury list for assignment for trial'])."
New Bedford Hous. Authy. v. Olan, 435 Mass. 364, 372 n.10
(2001). General Laws c. 218, § 19B(b), as amended through St.
2011, c. 93, § 82, also provides for jury trials of summary
process actions in the District Courts and the Boston Municipal
Court.

     Rule 8 incorporates Mass.R.Civ.P. 38, 365 Mass. 800 (1974).
Pursuant to rule 38(b), "Any party may demand a trial by jury of
any issue triable of right by a jury by serving upon the other
parties a demand therefor in writing at any time after the
commencement of the action and not later than [ten] days after
the service of the last pleading directed to such issue."
                                                                    11


understanding all the papers that were sent, I called here,[12]

and even I came here and was told to show up here at this date,

and that's all I was told.    And I came out to the lawyer's --"

The judge then interrupted Wilkerson and said, "I can't let you

go forward to a jury trial without a pretrial memorandum."

     Generally, the right to a jury trial may be waived by

failure to make a timely demand, Mass.R.Civ.P. 38(d), 365 Mass.

800 (1974), or by contract.    See Chase Commercial Corp. v. Owen,

32 Mass. App. Ct. 248, 251-252 (1992), citing Cadillac Auto. Co.

of Boston v. Engeian, 339 Mass. 26, 30 (1959), and Spence

v. Reeder, 382 Mass. 398, 411 (1981).    Here, Wilkerson did make

a timely demand, in her answer to the complaint.    See Spence

v. Reeder, supra ("In civil cases, waiver of a fundamental

constitutional right is never presumed [Aetna Ins. Co.

v. Kennedy, 301 U.S. 389, 393 (1937) (jury trial)], and always

requires an intentional relinquishment of a known right or

privilege"); rule 38(d), supra ("A demand for trial by jury made

as herein provided may not be withdrawn without the consent of

the parties").

     At the same time, Housing Court judges retain broad

discretion in determining how to proceed with summary process


     12
       The notice of pretrial conference includes, among other
things, the court contact person and telephone number and
encourages parties to call the court contact person with any
questions.
                                                                   12


hearings involving self-represented litigants.   See Judicial

Guidelines for Civil Hearings Involving Self-Represented

Litigants § 2.1 (2006).   The Housing Court Department Standing

Orders acknowledge the difficulties of pro se litigants, and

provide for the allowance of late-filed motions and rescheduled

hearings.   Housing Court Department Standing Order No. 1-04, VI.

Scheduling Orders (2004), promulgated pursuant to G. L. c. 211B,

§ 10, and G. L. c. 185C, § 8A, provides:

     "Summary Process . . .

          "The Housing Court recognizes that a significant
     number of litigants appear in court pro se and are
     unfamiliar with the Uniform Rules of Summary Process.
     Housing Court judges shall apply the rules in a fair,
     reasonable and practical manner consistent with the
     legitimate interest of all parties. Housing Court judges
     may allow late-filed motions, answers and other pleadings
     in the exercise of their sound discretion. Housing Court
     judges may reschedule hearings in the exercise of their
     sound discretion."

     As the standing order acknowledges, a significant number of

litigants appear without counsel in the Housing Court and may be

unfamiliar with the Uniform Rules of Summary Process.   We

recognize that presiding over cases involving self-represented

litigants can sometimes be difficult and challenging,

particularly where one party is represented by counsel and the

other is not.   Nevertheless, "[w]hile judges must apply the law

without regard to a litigant's status as a self-represented

party, see Mmoe v. Commonwealth, 393 Mass. 617, 620 (1985)
                                                                   13


. . . , our courts have recognized that self-represented

litigants must be provided the opportunity to meaningfully

present claims and defenses.   See Carter v. Lynn Hous. Authy.,

450 Mass. 626, 637 n.17 (2008); Loebel v. Loebel, 77 Mass. App.

Ct. 740, 743 n.4 (2010)."   I.S.H. v. M.D.B., 83 Mass. App. Ct.

553, 560-561 (2013).   "[T]he judge's role [regardless whether a

party is represented by counsel or not] remains the same.    The

judge's function . . . is to be 'the directing and controlling

mind' [during the proceedings]," Commonwealth v. Sapoznik, 28

Mass. App. Ct. 236, 241 n.4 (1990), quoting from Commonwealth

v. Wilson, 381 Mass. 90, 118 (1980), and to provide a self-

represented party with a meaningful opportunity to present her

case by guiding the proceedings in a neutral but engaged way.

     Here, the summary process action commenced in September of

2014.   At the initial hearing, pursuant to Wilkerson's jury

demand, a trial was set for September, 2015.   In early July,

2015, Wilkerson was notified that a pretrial conference was

scheduled for September 11, 2015.   At the pretrial conference,

the judge struck the jury demand and scheduled a bench trial for

ten days hence because Wilkerson had not filed a pretrial

conference memorandum, as required by the pretrial order that

had been mailed to her two months ahead of the hearing.    The
                                                                    14


pretrial order's language included the potential sanctions for

failure to comply. 13

         At the pretrial conference, despite her original demand,

Wilkerson did not object when the judge stated that trial would

proceed without a jury.     See Northeast Line Constr. Corp.

v. J.E. Guertin Co., 80 Mass. App. Ct. 646, 653 (2011).

Wilkerson again represented herself at the bench trial and did

not object to the striking of the jury demand.     A party that

files a demand for a jury trial, but then, without objection by

the other parties, proceeds to a trial by the court without a

jury, generally is deemed to have waived her right to a jury

trial.      See Walcott v. O'Connor, 163 Mass. 21, 22

(1895); Henderson v. D'Annolfo, 15 Mass. App. Ct. 413, 425 n.16

(1983); Islami v. Needham, 38 Mass. App. Ct. 442, 446 (1995).

       "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. at

649.    See New Bedford Hous. Authy. v. Olan, 435 Mass. 364, 370

(2001) ("Article 15 has been construed as preserving the right


       13
       "Sanctions. Failure to comply with this order, or
failure to appear at the pretrial conference, may result in
sanctions including but not limited to assessment of costs,
entry of default or dismissal, and/or striking the jury demand."
                                                                  15


to trial by jury in actions for which a right to trial by jury

was recognized at the time the Constitution of the Commonwealth

was adopted in 1780. . . .   At that time, the common law

afforded a tenant the right to trial by jury on a landlord's

writ of entry, the procedure to evict a tenant after the

expiration or termination of a tenancy.   Thus, the right to

trial by jury in eviction cases has been preserved under art.

15").   Striking a jury demand, where a party has a right to a

jury and has claimed that right, must be approached with

caution.

     Sanctions were, of course, within the judge's discretion.

A judge's decision to impose sanctions, however, must be

examined under the principles of due process.   See, e.g.,

Mass.R.Civ.P. 37(b)(2), as amended, 390 Mass. 1208 (1984)

(sanction for violation of discovery orders must be "just"); Gos

v. Brownstein, 403 Mass. 252, 257 (1988) (sanction of

dismissal).   Relevant factors in a due process examination

include "the degree of culpability of the . . . party [to be

sanctioned]; the degree of actual prejudice to the other party;

whether less drastic sanctions could be imposed; . . . and the

deterrent effect of the sanction."   Keene v. Brigham & Women's

Hosp., Inc., 56 Mass. App. Ct. 10, 21 (2002), S.C., 439 Mass.

223 (2003).
                                                                       16


     In considering the culpability of the party, it is not

contested that Wilkerson called the court and came to the court

in an effort to understand what was required of her.    The notice

of pretrial conference includes, among other things, the name of

the court contact person and telephone number and, in fact,

encourages parties to call the court contact person with any

questions.   Wilkerson told the judge that she had been advised

by court staff to appear on the pretrial conference date.       With

regard to the other factors, there is nothing in the record

demonstrating that CMJ suffered any actual prejudice.    CMJ had

already filed proposed jury instructions.    The notice of

pretrial conference order did not require Wilkerson to propose

jury instructions. 14   There is no indication in the record that

the judge weighed any lesser sanctions.     There is also no

indication that the sanction of striking the jury demand in

these circumstances served any deterrent effect.

     It is without question that judges have the inherent

authority to do what is necessary to "achieve the orderly and

expeditious disposition of cases."    Bower v. Bournay-Bower, 469

Mass. 690, 699 (2014) (quotation omitted). 15   However, that


     14
       The notice instructed the parties to include in their
pretrial conference memoranda "the party's proposed jury
instructions and verdict form (if applicable)."
     15
       See, e.g., Higgins v. Boston Elev. Ry. Co., 214 Mass.
335, 336 (1913) ("[W]ithin reasonable limits . . . the courts by
                                                                   17


authority is not without limit, and when the considerations

relevant to a due process examination of the sanctions are

considered against the backdrop of this particular case, they

tip in favor of Wilkerson.   We conclude that, in these

circumstances, Wilkerson's jury demand should not have been

struck before considering lesser sanctions.

     Conclusion.   The judgment awarding possession and costs to

the plaintiff is vacated, and the matter is remanded for further

proceedings consistent with this opinion.

                                    So ordered.




rule may regulate the means by which the right to trial by jury
shall be exercised or obtained"). See also New Bedford Hous.
Authy. v. Olan, 435 Mass. at 370 ("The Legislature may impose
reasonable conditions on a tenant's right to trial by jury
before eviction, such as requiring payment of all rents due the
landlord").
