NORTH ATLANTIC NETWORKS, LLC v. PYRAMID ADVISORS GP, LLC [Note 1]

CURRAN, J. North Atlantic Networks, LLC ("NAN") filed this action naming Pyramid Advisors GP, LLC, a/k/a Pyramid Advisors LLC ("Pyramid"), as the defendant in a suit alleging breach of contract and quantum meruit on July 9, 2018. The contract between the parties called for internet services to be provided by NAN to Pyramid for a monthly subscription fee. The case came before a judge on March 3, 2020. This was a mere two weeks before the Supreme Judicial Court initiated a two-day court closure because there were concerns about a COVID-19 pandemic spreading across the world. Following the two-day closure, the courts reopened but not without challenges. This case represents one such challenge.

The docket entries on March 3, 2020, are conflicting. One notation details that the case was scheduled for a jury trial on March 3, 2020, which was "[h]eld-under advisement." A second entry indicates that the trial was under advisement by a judicial officer. Reviewing the transcript of March 3, 2020, does not clear up the confusion.

The trial judge commented that the jury trial session is like a lobster trap: "You're not getting out unless the case is tried, or you settle it." Neither occurred on March 3, 2020. As noted, the parties do not agree as to what happened in court on that date. However, both attorneys, at the direction of the court, provided trial briefs to the court. Defendant's counsel filed its trial brief on March 12, 2020. The focus of the trial brief was on the two contracts and the correct party named in this suit. Plaintiff's counsel filed its trial brief on March 17, 2020. Plaintiff's trial brief focused on the liquidated damages clause. On March 10, 2020, the docket reveals that the case was to be rescheduled due to the COVID-19 state of emergency declared by the Supreme Judicial Court.

Although courts across the Commonwealth were open, intervening trial court orders put the courts' dockets into a tumultuous sea where "lobster traps" were elusive and ineffective. On September 14, 2020, the trial judge entered a judgment for the plaintiff. There is a further docket notation of "after trial by a judge." The defendant filed a timely notice of appeal, but never filed any other motions or any request to compile the record. It was not until the plaintiff's attorney filed a motion for attachment by trustee process that defendant's counsel opposed the motion and

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perfected this appeal.

The issue to be addressed by this Appellate Division is whether there was a waiver of jury by the parties. On the record before us, we cannot find an unequivocal waiver. The discussion before the trial judge centered on which of the two contracts between the parties controlled. Some of the discussion revolved around whether the judge needed to make decisions of law regarding the contract. Ultimately, the case was continued. No jury trial commenced, and no settlement was reached.

According to the docket, the March 3, 2020, date was scheduled for a jury trial. Once demanded, a jury trial may be waived, but the parties must consent to the waiver. Mass. R. Civ. P. 38(d). See Vaught Constr. Corp. v. Bertonazzi Buick Co., 371 Mass. 553, 557-558 (1976). "In civil cases, waiver of a fundamental right is never presumed . . . ." Spence v. Reeder, 382 Mass. 398, 411 (1981), citing Aetna Ins. Co. v. Kennedy, 301 U.S. 389, 393 (1937). Rule 39(a) of the Mass. R. Civ. P. states, in pertinent part, that "the trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury." See Northeast Line Constr. Corp. v. J.E. Guertin Co. Inc., 80 Mass. App. Ct. 646, 649 (2011). Other than the judge asking for trial briefs, there is nothing in the record that makes clear that the parties were waiving a jury. The "lobster trap," intended to be used to get the case either to trial or settlement, was not effective. The impending pandemic caused the world, the parties to this action, and the "lobster trap" to become victims of larger forces beyond anyone's control. Amid trying to navigate the pandemic, the trial judge decided the case on September 14, 2020. With the trial briefs in hand, he may have believed that the lobster trap had been effective. However, the lobster trap was empty. No jury waiver on record, a conflicting docket, and no agreement by the parties as to what happened in court require that the case return to the trial court for a jury trial. May there be fair winds and following seas as the parties navigate this case postpandemic.