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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").