CMJ Mgmt. Co. v. Wilkerson
Decision Date | 31 March 2017 |
Docket Number | No. 16-P-426.,16-P-426. |
Citation | 75 N.E.3d 605 |
Parties | CMJ MANAGEMENT COMPANY v. Patricia WILKERSON. |
Court | Appeals Court of Massachusetts |
Stephanie Schuyler ( Hoang Nguyen also present) for the tenant.
John G. Hofmann for the landlord.
Present: Cypher, Maldonado, & Blake, JJ.
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 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 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:
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 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:
42 U.S.C. § 1437(a) (2012). See Barnes v. Metropolitan Hous. Assistance Program , 425 Mass. 79, 80, 679 N.E.2d 545 (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 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 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, 602 N.E.2d 211 (1992) ( ). 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] 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, 122 S.Ct. 1230, 152 L.Ed.2d 258 (2002) ( ); Boston Hous. Authy . v. Garcia , 449 Mass. 727, 735, 871 N.E.2d 1073 (2007) ( ). 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, 903 N.E.2d 1098 (2009) ( ).
By its plain terms, the relevant provision of Wilkerson's lease prohibits any criminal activity by a tenant or household 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 Rights9 and G.L.c. 185C, § 21,10 ,11 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: 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, 588 N.E.2d 705 (1992), citing Cadillac Auto. Co....
To continue reading
Request your trial-
Wilbur v. Tunnell
...a meaningful opportunity to present her case by guiding the proceedings in a neutral but engaged way," CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 283, 75 N.E.3d 605 (2017), and "some leniency is appropriate," the statutes and rules of procedure "bind a pro se litigant as they bind ot......
-
Davis v. Comerford
...A relevant factor is whether the "tenant has been allowed to proceed in forma pauperis." Id. at 482. See CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 284, 75 N.E.3d 605 (2017) ("Striking a jury demand [for failure to comply with pretrial conference order in summary process proceeding] ......
-
Morse v. Ortiz-Vazquez
...with no attorney and no familiarity with the rules.14 See Adjartey, supra at 838-839, 120 N.E.3d 297 ; CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 283, 75 N.E.3d 605 (2017).We recognize that presiding over cases involving pro se litigants can be challenging, not least because "[w]hile......
-
Glendale Assocs., LP v. Harris
...("due process requirements may limit the sanction of dismissal" for noncompliance with judge's orders); CMJ Mgt. Co. v. Wilkerson, 91 Mass. App. Ct. 276, 284, 75 N.E.3d 605 (2017) (judge's discretion in choice of sanctions is limited by due process principles, and sanction must be "just").F......