Arbitration & Mediation

4th DCA Finds Default is Not Waiver of Jury Trial

By Christopher B. Hopkins, Esq.

This is one of those cases where the legal holding is probably not nearly as interesting as the underlying facts of the dispute. But, it does answer some questions about the breadth of a prayer for jury trials in pleadings.

In Harry Shasho v. Euro Motor Sport, Inc. et al., the parties had signed a contract for the sale of a used Lamborghini. A dispute arose over the condition of the car. The defendant allegedly "set up a website which defamed Morales and Euro Motor Sport." [a site which apparently was taken down as a Google search came up empty-handed] The Complaint had four counts, none of which asked for a jury trial except the last count where the WHEREFORE clause was set apart by a few lines and, indeed, sought a jury trial. Noteably, that last count was for an injunction -- not an issue for a jury. Hmmm....

Defendant defaulted. Trial court sent the matter to a magistrate judge for a short non-jury trial on damages, which resulted in a $1.2 million judgment. This appeal followed with the Defendant (Shasho) claiming that the court's resolution violated his Constitutional rights to a jury trial since he never waived the right to a jury trial.

The panel (Shahood, Polen, and May) reversed, noting that Rule of Civil Procedure 1.430 holds that a trial by jury, once plead, cannot be waived absent consent of all parties. Default or failure to attend the "trial" was not construed to be an affirmative waiver of the right to jury trial. The Rule goes on to say that, unless specifically narrowed, a prayer for jury trial will be deemed to demand such a trial on all issues so triable. The Court so held, even though the jury request was attached to the WHEREFORE clause of a count which is not triable before a jury. In short, the conclusion was that the last WHEREFORE clause was intended, as it relates to the jury prayer, to demand a jury for all counts.

Of note, the Panel did note that there is caselaw suggesting that a single count seeking a jury trial is enough to apply to all counts, unless it was somehow specifically limited. Best practice is the demand in each county or at the end of the Complaint, noting that the jury request applies to the entire pleading.

Full post as published by Florida Arbitration Law on April 29, 2008 (boomark / email).