Hickey v. Grandine

1998 Mass. App. Div. 93, 1998 Mass. App. Div. LEXIS 40
CourtMassachusetts District Court, Appellate Division
DecidedMay 11, 1998
StatusPublished
Cited by1 cases

This text of 1998 Mass. App. Div. 93 (Hickey v. Grandine) is published on Counsel Stack Legal Research, covering Massachusetts District Court, Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hickey v. Grandine, 1998 Mass. App. Div. 93, 1998 Mass. App. Div. LEXIS 40 (Mass. Ct. App. 1998).

Opinion

Greco, J.

The sole issue raised on this Dist./Mun. Cts. R. A. D. A, Rule 8A appeal by the defendant is whether a District Court judge may allow a plaintiff to claim a jury trial in the Superior Court after the completion of her District Court trial and the entry of judgment against her. The relevant procedural chronology is as follows:

July 20,1995: Plaintiffs complaint seeking damages in the amount of $25,000.00 was filed in the Concord Division of the District Court Department. The complaint did not include a claim for trial by jury.

June 20,1997: After trial, judgment was entered for the defendant.

June 30,1997: The plaintiff filed a “Notice of Appeal” and request for the waiver of a filing fee and bond.

July 9,1997: The defendant’s motion to strike the plaintiffs appeal for failure to have clámed a jury trial was allowed, and the plaintiffs motions for fee and bond waiver were denied.

July 15,1997: The plaintiff filed a motion for the reconsideration of the court’s July 9,1997 order striking her appeal to the Superior Court.

July 22,1997: The plaintiff filed a motion “to claim jury trial late. “

July 23,1997: The court allowed the plaintiff’s motions for reconsideration and for the waiver of a filing fee and bond, and denied the defendant’s motion to strike the plaintiff’s appeal.

Aug. 20,1997: The court amended its order of July 23,1997 to include the allowance of the plaintiffs motion to claim jury trial late.

Aug. 27, 1997: The defendant filed a notice of appeal to this Division, and a request for a waiver of fee and bond.

1. Pursuant to G.L.C. 231, §103, the plaintiffs commencement of this personal injury action in the Concord Division of the District Court Department constituted a waiver of her right to a Superior Court jury trial as a matter of law. Thayer v. Clerk of the District Court of Barnstable, 421 Mass. 1001, 1001-1002 (1995); Hart v. Frost, 1993 Mass. App. Div. 185, 186. She could have regained that right only by complying with the requirements of §103. The statute states:

If a party elects to bring in any district court any action or other civil proceeding which he might have begun in the superior court, he shall be deemed to have waived a trial by jury and his right to appeal to the superior court, unless within thirty days of commencement of the action or service of a responsive pleading, or within such further time as the court may allow, a plaintiff files a claim to a jury trial in the superior court with the district court and within thirty days after notice of the decision or [94]*94finding files an entry fee of fifty dollars and bond in accordance with the second paragraph of section one hundred and four ... [emphasis supplied].

The plaintiff obviously failed to file a jury claim within thirty days of either the bringing of suit or service of the defendant’s answer, but was instead allowed to file a late claim for jury trial more than thirty days after the entry of judgment against her in the District Court. Thus the dispositive issue on this appeal is whether the authority granted to a District Court judge by §103 to allow “further time” for the submission of a Superior Court jury claim may be properly exercised after a trial has been held, judgment has been entered and even the thirty day time for filing an entry fee and bond to perfect a timely jury claim has expired. We conclude that whatever discretion may be statutorily afforded to permit a late jury claim after trial, or even after judgment, it was an abuse of such discretion to allow the plaintiffs motion in the circumstances of this case.

2. The time requirements of G.L.c. 231, §103 must be viewed in the context of the entire statutory scheme for the transfer and removal of cases between the District and Superior Courts. While that system has been “described as elaborate,” Beaulieu v. Bell, 41 Mass. App. Ct. 145, 147 (1996), citing Bender v. Automotive Specialties, Inc., 407 Mass. 31, 35-36 (1990), its dual purpose is to satisfy the constitutional right to a trial by jury while relieving congestion in the Superior Court. Godfrey v. Chief of Police of Wellesley, 35 Mass. App. Ct. 42, 45 (1993). With particular emphasis upon the latter Legislative goal of reducing Superior Court caseloads, appellate courts have been consistently reluctant to take a liberal view of the procedural requirements of the transfer/removal statutes, or to excuse non-compliance with such requirements. See, e.g., Beaulieu v. Bell, supra at 149; Norfolk & Dedham Mut. Fire Ins. Co. v. A & W Artesian Well Co., 25 Mass. App. Ct. 959, 960 (1988); H. Sandberg & Son, Inc. v. Clerk of Dist. Ct. of No. Norfolk, 12 Mass. App. Ct. 686, 688 (1981).

Any construction of §103 which would, as a practical matter, increase the flow of cases to the Superior Court, thereby frustrating the well established, contrary intent of the Legislature, is to be avoided. See generally, as to canons of construction, Felicetti v. Secretary of Communities & Develop., 386 Mass. 868, 872-873 (1982); Paquin v. Board of Appeals of Barnstable, 27 Mass. App. Ct. 577, 580 (1989). Thus the §103 provision for “further time” should not be read as creating a markedly lenient or extremely flexible mechanism which would almost automatically allow any plaintiff to claim a Superior Court jury trial at any stage of the district court proceedings.

Moreover, to permit a late jury claim after trial, much less after entry of judgment, would conflict with the express §103 mandate that a plaintiff make known his or her desire for a jury trial at a very early point in the District Court process. The statute requires a jury claim well prior to trial within thirty days of either complaint filing or service of a responsive pleading. “Further time” under the statute must be reasonably construed in the context of, and as commensurate with, this initial thirty day time. See generally, Morrison v. Lennett, 415 Mass. 857, 863 (1993); Nyhan v. Board of Retirement of Lawrence, 39 Mass. App. Ct. 914, 916 (1995). The subsequent §103 period of thirty days after district court decision or finding was obviously not designed as an optional jury demand filing period, but is instead the designated time frame in which a plaintiff must perfect his prior, seasonably filed jury claim.

Further, as the purpose of an early, pre-trial filing of a demand for jury trial is obviously to provide notice to the defendant, see Islami v. Needham, 38 Mass. App. Ct. 442, 445 (1995), permitting a §103 claim after trial would not only add to the Superior Court’s workload, but would also potentially prejudice a defendant. [95]*95Where a jury claim has not been filed at the beginning of the case, or where the plaintiff has not alerted the defendant to such possibility by seeking an enlargement of the time to do so, a defendant may forego the opportunity to assert a counterclaim out of fear that doing so would then enable the plaintiff to remove the case to the Superior Court pursuant to G.Lc. 231, §104. See Beaulieu v. Bell, supra at 148-149.

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Cite This Page — Counsel Stack

Bluebook (online)
1998 Mass. App. Div. 93, 1998 Mass. App. Div. LEXIS 40, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hickey-v-grandine-massdistctapp-1998.