JOEL W. D'ERRICO V. NATIONAL LUMBER COMPANY and another [Note 1]

CUNIS, J. This matter comes before us as an interlocutory appeal of an order of the District Court. In that order, a judge denied a motion of the defendant, National Lumber Company ("National Lumber"), to "recharacterize" the case as a bench trial after the case was scheduled for a jury trial following a pretrial conference. National Lumber argues that none of the parties had claimed a jury trial in the initial pleadings, and so the judge was without authority to order a jury trial at that stage of the litigation. The plaintiff, Joel W. D'Errico ("D'Errico"), opposed the motion and requested a jury trial. We affirm the judge's order.

Background. This action began as a small claim for damages resulting from allegedly defective exterior French doors that National Lumber sold to D'Errico for installation at his home. According to D'Errico's small claims complaint, after the installation of the French doors, water seeped through the doors during rainfall, and wind blew through them. After National Lumber and the manufacturer of the doors, Pella Corporation ("Pella"), either failed or refused to remedy the situation, D'Errico replaced them with properly fitted and installed doors.

The case was transferred to the regular civil docket upon National Lumber's motion. Thereafter, National Lumber filed an answer and a cross claim against Pella. Pella filed an answer and cross claim against National Lumber.

The record before us discloses that no party requested a jury trial in their initial pleadings, in accord with G.L. c. 218, § 19B(a) or Mass. R. Civ. P. 38. A joint pretrial memorandum was filed on April 8, 2021; a pretrial conference was held the following day; and on April 12, 2021, the court scheduled a jury trial (set for February 8, 2022). Moreover, nothing in the record indicates precisely how the matter came to be scheduled for a jury trial when apparently no party had filed a written jury trial demand. On April 14, 2021, National Lumber filed a "Motion to Recharacterize as Bench Trial," citing the requirement under Mass. R. Civ. P. 38(b) that a demand for jury trial "of any issue" must be made in writing at any time after the filing of the action and "not later than 10 days after the service of the pleading directed to such issue." National Lumber argued that the last pleading in the case was filed on November 3, 2020 (National Lumber's answer to Pella's cross claim), and that no demand for a jury trial was made within 10 days of that date, as required by Rule

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38(b). On April 19, 2021, D'Errico filed a demand for a jury trial and an opposition to the National Lumber's "recharacterization" motion, arguing that the demand for jury trial was filed within 10 days of the last pleading, that pleading being National Lumber's "recharacterization" motion. The judge, citing Mass. R. Civ. P. 38(b), denied the motion after a hearing on May 5, 2021.

Discussion. As an initial matter, we must stress that we do not favor interlocutory appeals such as this one, which ultimately contribute to the delay in resolving cases and the inefficient use of judicial resources. A party in District Court generally does not have a right to an interlocutory appeal to the Appellate Division, absent "special authorization." Fortier v. Bay Colony Sys., Inc., 2003 Mass. App. Div. 103, 103 & n.1. "Special authorization" refers to the statutory authority of a District Court judge, in his or her discretion, to report "an interlocutory finding or order" to the Appellate Division for review. G.L. c. 231, § 108. [Note 2] National Lumber made no request to the trial judge for special authorization to appeal the interlocutory order for a jury trial. We are somewhat hard pressed to justify deciding the interlocutory issue in this case, where National Lumber could have followed proper procedures and sought special authorization for such an appeal under G.L. c. 231, § 108, but failed to do so. We also note that the case simply could have proceeded to jury trial, and if the outcome was not favorable to National Lumber, conceivably it could have appealed the issue to the Appellate Division in the normal course. We nonetheless exercise our discretion to decide this appeal because National Lumber fully briefed the issue and returning the matter without deciding it will only further contribute to the waste of judicial resources. We must caution District Court litigants that, in the future, review of interlocutory rulings must be sought only through proper procedural channels.

Turning to the issue at hand, we observe that National Lumber correctly notes that under Mass. R. Civ. P. 38(b), a party in the District Court may make a written demand for jury trial "at any time after the commencement of the action and not later than 10 days after the service of the last pleading." We reject D'Errico's contention that National Lumber's recharacterization motion was a pleading, and we agree with National Lumber that, on the record before us, the last pleading filed in this case was its answer to the cross claim by Pella, filed November 3, 2020. Thus, D'Errico's April 19, 2021, written demand for jury trial was not timely filed under Rule 38(b).

Our inquiry does not end there, however. Massachusetts Rule of Civil Procedure

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39(b) provides that "[i]ssues not demanded for trial by jury as provided in Rule 38 shall be tried by the court; but notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues" (emphasis added). Consequently, the judge had the authority to deny National Lumber's recharacterization motion and to allow the matter to proceed to trial by jury, as D'Errico requested in his April 19, 2021, written motion. See Reporter's Notes to Mass. R. Civ. P. 39(b) (1973) (stating that in Massachusetts, "the trial judge's discretion to order a jury trial [is] largely unlimited").

National Lumber's reliance on Senior Hous. Props. Trust v. HealthSouth Corp., 447 Mass. 259, 266-273 (2006) is misplaced. That case involved G.L. c. 185, § 15, a strict, two-step statutory scheme for transferring Land Court cases to the Superior Court for jury trial. The first step requires a written demand for jury trial in accordance with Mass. R. Civ. P. 38(b). The second step mandates the party requesting the jury trial to frame the issues for trial in the Land Court, and to file a statement of the framed issues in the Superior Court "within thirty days after the expiration of the time for claiming a trial by jury." G.L. c. 185, § 15. "The thirty-day period commences ten days after 'service of the last pleading directed to such issue.'" Senior Hous. Props. Trust, supra at 267, quoting Mass. R. Civ. P. 38(b).

In Senior Hous. Props. Trust, the Land Court judge found that the defendant had failed to comply with the second step, but ordered a jury trial anyway, citing Rule 39(b). Id. at 265-266. The Supreme Judicial Court ruled that a judge's largely unlimited discretion to order a jury trial pursuant to Rule 39(b) "must be considered in light of G.L. c. 185, § 15" and its language mandating strict compliance with the two-step process for transferring jurisdiction from the Land Court to the Superior Court for a jury trial. Id. at 271. "It requires little parsing of the mandatory language of G.L. c. 185, § 15, to recognize that it is irreconcilable with the discretionary language of rule 39(b). And where there is an irreconcilable conflict between a court rule and a statute, the rule must generally yield to the statute." Id. The Court vacated the order granting the defendant a jury trial.

The governing statute here is G.L. c. 218, § 19B(a), [Note 3] which contains no similar two-step scheme and does not even contain the 10-day requirement for filing a

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written jury demand, as found in Rule 38(b) and G.L. c. 185, § 15. Indeed, § 19B(a) only requires that a jury demand be served upon the opposing party "in writing after the commencement of the action," and that failure to do so constitutes a waiver of the right to a jury trial. In other words, unlike the situation in Senior Hous. Props. Trust, here there is no irreconcilable conflict between the statute and Rule 39(b). Although D'Errico's written jury trial demand was not timely filed under Rule 38(b), there is nothing that leads us to conclude that D'Errico's jury trial demand was not timely filed under the governing statute, § 19B(a), or that any language in the statute compels us to vacate the judge's order. Thus, we conclude that under Rule 39(b), the judge was entitled to exercise his discretion and order that this case proceed to a jury trial.

The interlocutory order denying National Lumber's motion to recharacterize is affirmed, the appeal is dismissed, and the case is returned to the trial court.