Daugherty v. Robinson Farms, Inc.
| Decision Date | 12 December 2006 |
| Docket Number | No. 42A04-0603-CV-159.,42A04-0603-CV-159. |
| Citation | 858 N.E.2d 192 |
| Parties | Bernard DAUGHERTY, Appellant-Defendant, Counter-Plaintiff, v. ROBINSON FARMS, INC. d/b/a Robinson Construction, Appellee-Plaintiff, Counter-Defendant. |
| Court | Indiana Appellate Court |
Jeffrey B. Kolb, Emison Doolittle Kolb & Roellgen, Vincennes, IN, Attorney for Appellant.
L. Edward Cummings, Vincennes, IN, Attorney for Appellee.
Bernard Daugherty appeals the trial court's judgment in favor of Robinson Farms, Inc., d/b/a Robinson Construction.
We affirm.
Whether the trial court abused its discretion in denying Daugherty's request for a jury trial.1
Daugherty, a farmer, purchased a tract of land in Knox County in 1998. Prior to Daugherty purchasing the land, it was forest reserve. In late February or early March of 1999, Daugherty and Robinson entered into a verbal agreement, whereby Robinson agreed to clear sixteen acres at a price of $2,000 per acre. As payment, Daugherty and Robinson agreed that Robinson "could haul [Daugherty's] corn and have the corn in payment . . . ." (Tr. 60).
Robinson loaded and hauled the corn from Daugherty's bins to a grain elevator operated by Robinson Grain. According to the grain ticket printed out by Robinson Grain, Robinson delivered 20,481.05 bushels of corn from June 15, 1999 through June 17, 1999. Robinson Grain paid a settlement amount of $38,119.44 for the corn. From the $38,119.44 due, Robinson Grain issued a check to Robinson in the amount of $31,228.00, which was payment for the leveling performed.
In February of 2000, Robinson sent Daugherty an invoice for the amounts due for clearing the original sixteen-acre tract as well as for additional work performed by Robinson. Robinson credited Daugherty $31,891.94, leaving a balance of $13,891.94.
In January of 2003, Daugherty tendered a check to Robinson in the amount of $1,172.48. This amount included $1,053.58 Daugherty owed Robinson for "lime and trucking" and "$119.90 to make $32,000." (Robinson's Ex. 5). Robinson did not accept the check.
On February 11, 2004, Robinson filed a complaint against Daugherty, seeking a judgment in the amount of $13,891.94 for work performed. Daugherty was served with a summons and a copy of the complaint on February 24, 2004.
Daugherty, by his counsel, Brian Dickerson, filed his answer on March 11, 2004. Daugherty did not assert any affirmative defenses or file a counterclaim. Daugherty also did not demand a trial by jury.
The trial court held a pre-trial conference on April 8, 2004. Jeffrey B. Kolb, who worked for the same law firm as Dickerson, appeared on behalf of Daugherty. On April 8, 2004, the trial court entered a pre-trial order, setting a final pre-trial conference for October 8, 2004 and a bench trial for October 26, 2004.
On April 23, 2004, Daugherty filed a motion for leave to file a counterclaim, affirmative defenses and demand for jury trial. In the motion, Daugherty asserted the following:
At the time of the answer to the complaint, counsel for the defendant, Brian C. Dickerson, was distracted by National Guard duty and a pending call to active services which pending call to active services is now a precent [sic] call resulting in this pleading being filed on behalf of the defendant by Jeffrey B. Kolb.2
(App.14). On April 23, 2004, the trial court entered an order granting Daugherty's motion and ordered that Daugherty file his counterclaim, affirmative defenses and request for jury trial on or before May 23, 2004.
On April 29, 2004, Robinson filed an objection to Daugherty's motion to file a counterclaim and demand for jury trial. Robinson did not object to the belated filing of affirmative defenses.
On May 3, 2004, Daugherty filed his counterclaim, asserting negligence and conversion. Daugherty also filed his affirmative defenses and a demand for jury trial. Robinson filed a reply to Daugherty's counterclaim on May 24, 2004.
On October 8, 2004, the trial court entered its final pre-trial order, setting a jury trial for October 26, 2004. On October 25, 2004, Robinson filed a motion renewing his objection to a jury trial. Finding that Daugherty's demand for a jury trial was untimely, the trial court entered an order on October 25, 2004, "direct[ing] that all issues in this matter be tried to the court . . . ." (App. 51).
On October 29, 2004, Daugherty filed a motion for change of venue from judge, to which Robinson did not object. The trial court granted Daugherty's motion and appointed a special judge.
The trial court held a bench trial on September 9, 2005 and January 4, 2006. "At the conclusion of the evidentiary portion of the trial," counsel for both parties were "allowed to present a written summary of their client's position," which the trial court took under advisement. (App. 4). On February 21, 2006, the trial court entered its order and judgment. The trial court made the following findings:
1. That [Robinson] should be entitled to receive the sum of [$12,050.00] for services provided to [Daugherty].
2. That [Daugherty] has failed to carry his burden concerning his counterclaim relating to conversion, but did carry his burden concerning his counterclaim relating to negligence.
3. That [Daugherty] should be entitled to a set-off in the amount of [$5,600.00] against amounts owed to [Robinson] due to [Robinson's] negligence.
(App. 4-5). Thus, the trial court entered a judgment against Daugherty in the amount of $6,450.00.
Daugherty asserts the trial court abused its discretion in denying his demand for a jury trial. Article I, section 20 of the Indiana Constitution guarantees that "[i]n all civil cases, the right of trial by jury shall remain inviolate." "That right is not absolute, however, and it can be waived." Scott v. Crussen, 741 N.E.2d 743, 746 (Ind.Ct.App.2000), trans. denied.
Regarding jury trials, Indiana Trial Rule 38(B) provides as follows:
Demand. Any party may demand a trial by jury of any issue triable of right by a jury by filing with the court and serving upon the other parties a demand therefor in writing at any time after the commencement of the action and not later than ten (10) days after the first responsive pleading to the complaint, or to a counterclaim, crossclaim or other claim if one properly is pleaded; and if no responsive pleading is filed or required within ten (10) days after the time such pleading otherwise would have been required.
Thus, "a demand for a jury trial must be made by the requesting party no later than ten days after the first responsive pleading is due." Scott, 741 N.E.2d at 746. A party who fails to serve and file a demand for jury trial within the time allotted by Trial Rule 38(B) waives trial by jury. Ind. T.R. 38(D); Scott, 741 N.E.2d at 746.
In this case, Daugherty filed his answer on March 11, 2004. Therefore, his demand for jury trial was due on or before Monday, March 22, 2004. Daugherty did not demand a jury trial within the prescribed time period. See T.R. 38(B) (). Thus, Daugherty waived his right to a jury trial by failing to make a timely demand.
Nevertheless, Daugherty argues that the time, by which he was required to demand a jury trial, was properly extended under Trial Rule 6(B). Trial Rule 6(B) provides in relevant part:
When an act is required or allowed to be done at or within a specific time by these rules, the court may at any time for cause shown:
* * *
(2) upon motion made after the expiration of the specific period, permit the act to be done where the failure to act was the result of excusable neglect[.]
Pursuant to Trial Rule 6(B)(2), a trial court may, in its discretion, grant a belated jury trial demand. Johnson v. Wabash County, 181 Ind.App. 281, 391 N.E.2d 1139, 1147 (1979).
Trial Rule 38(D), however, provides in relevant part:
The trial court shall not grant a demand for a trial by jury filed after the time fixed in T.R. 38(B) has elapsed except upon the written agreement of all the parties to the action, which agreement shall be filed with the court and made a part of the record. If such agreement is filed then the court may, in its discretion, grant a trial by jury in which event the grant of a trial by jury may not be withdrawn except by the agreement of all of the parties.
(Emphases added).
Thus, there appears to be a conflict between Trial Rule 6, which gives the trial court discretion to allow a belated demand for a jury trial, and Trial Rule 38(D), which provides that once a party has failed to file a timely jury demand, the trial court may grant a jury trial only if the parties agree to it.
When interpreting trial rules, we apply the rules of statutory construction. Carter-McMahon v. McMahon, 815 N.E.2d 170, 175 (Ind.Ct.App.2004). "[O]ur objective when construing the meaning of a rule is to ascertain and give effect to the intent underlying the rule." Id. Trial rules must be construed together and harmoniously if possible. Id. When two rules cover the same subject and one does so in general terms while the other does in specific terms, the more specific rule prevails and shall be applied. Ross v. State, 729 N.E.2d 113, 116 (Ind.2000) (). "If the language of a rule is clear and unambiguous, it is not subject to judicial interpretation." Carter-McMahon, 815 N.E.2d at 175.
We construe the word "shall" as mandatory rather than directory. See Shepherd v. Carlin, 813 N.E.2d 1200, 1203 (Ind.Ct.App.2004) ( "shall" in statutes). Thus, Trial Rule 38(D) allows the trial court to grant a belated demand for a trial by jury only if the parties agree to the action. See Smith v. Washington, 716 N.E.2d 607, 617 (Ind.Ct.App.1999) (...
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