SOUTH MIDDLESEX NON PROFIT HOUSING CORPORATION v. ERNST (2021)

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

After a bench trial, a judge of the Housing Court awarded to the plaintiff, South Middlesex Non-Profit Housing Corporation (landlord), possession of a room in which the defendant, Patricia Ernst (tenant), resided. The tenant appeals, arguing that she was subject to “unjust orders” by the judge and was improperly denied her request for a jury trial. We affirm.²

We summarize the relevant facts, reserving certain details for our discussion of the issues. The tenant rented a room in a building managed by the landlord. In 2018, the landlord delivered to the tenant a notice to quit alleging that the tenant had violated the lease agreement, and then brought an action to evict the tenant. The tenant timely filed an answer on October 29, 2018. After a bench trial on September 23, 2019, the judge granted possession of the room to the landlord, finding that the landlord had met its burden to show that the tenant had violated her lease. The “overwhelming” evidence included testimony of other residents, several called as witnesses by the tenant, who testified that she had disrupted the other tenants in the building by yelling threats and slamming doors late at night.

We begin by addressing the tenant's claim that she was subject to “unjust orders” by the judge. She appears to take issue with an order that entered August 27, 2019, one month before trial, in which the judge found that the tenant had “placed several harassing phone calls to [the] [c]ourt the latest of which contained a threat to murder the judges.”³ As a result, the order directed: “The [tenant] shall not place any phone calls to this [c]ourt. All communication must be in writing except for hearings in the courtroom.” Under the circumstances we would be inclined to think that the order was within the judge's discretion, cf. Brookline v. Goldstein, 388 Mass. 443, 448 (1983) (“Access to the courts should not be restricted unnecessarily”), but in any event, here the tenant has not shown prejudice. Our review of the trial docket shows that the tenant attended approximately seven court hearings in the eleven months that the case was pending, including one on August 30, 2019, three days after the order entered. She has made no showing that, had she been permitted to telephone the clerk's office during the month before trial, she would have presented her case differently.⁴ Contrast Rivas v. Chelsea Hous. Auth., 464 Mass. 329, 338 (2013) (deprivation of opportunity for settlement conference).

We now turn to the tenant's primary argument: that the judge improperly deprived her of her right to a jury trial. “If a party wishes to have the matter heard by a jury, he or she must file a demand for a jury trial no later than the due date for the defendant's answer (the Monday following the entry date).” Adjartey v. Central Div. of the Hous. Court Dep't, 481 Mass. 830, 857 (Appendix) (2019), citing Rule 8 of the Uniform Summary Process Rules (1980). See Brossard v. West Roxbury Div. of the Dist. Court Dep't, 417 Mass. 183, 184 (1994) (“The fact that [a party] represents himself does not excuse his noncompliance with procedural rules”). Where a party has failed to request a jury trial by the due date for the defendant's answer, but later makes an untimely demand, whether to allow a jury trial is within the judge's discretion. See Mass. R. Civ. P. 39 (b), 365 Mass. 801 (1974) (“notwithstanding the failure of a party to demand a jury [in compliance with Mass. R. Civ. P. 38], the court in its discretion upon motion may order a trial by jury of any or all issues”).

On October 29, 2018, the tenant filed her answer using a preprinted form, but did not check the boxes that would have signified that she requested a jury trial. At a court hearing on August 30, 2019, less than one month before the September 23 trial, she told the judge that “in June [apparently of 2019]” she had “asked for a trial by jury in December.” Contrast Cort v. Majors, 92 Mass. App. Ct. 151, 152 (2017) (tenant's answer included request for jury trial). Even if true, the tenant's jury request was untimely by many months. On the record before us, we discern no error or abuse of discretion in the judge's denial of the tenant's untimely request. See L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014) (abuse of discretion only when “the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives” [quotation and citations omitted]).⁵

Judgment affirmed.

FOOTNOTES

2.   We acknowledge the amicus brief submitted by the tenant's son.

3.   The alleged threats resulted in criminal charges that were pending at the time of the summary process trial.

4.   To the extent that the amicus argues that the August 27 order “blocked [the tenant] from quickly obtaining information about legal services such as the ‘Lawyer of the Day’ program and legal processes she was not aware of,” we conclude that such argument is based largely on speculation and unsupported by the factual record before us.

5.   To the extent that any arguments are not expressly addressed, they were not overlooked, but rather, we have reviewed them and “find nothing in them that requires discussion.” Commonwealth v. Brown, 479 Mass. 163, 168 n.3 (2018), quoting Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).