Elkins v. Berry & Bolin
| Decision Date | 15 March 2002 |
| Docket Number | W2000-01143-COA-R3-CV |
| Parties | BRIAN ELKINS v. REX A. BERRY and WILLIAM A. BOLININ THE COURT OF APPEALS OF TENNESSEE AT JACKSON |
| Court | Tennessee Court of Appeals |
This case involves the right to a trial by jury. The plaintiff sued the defendants for injuries he sustained in an automobile collision that was allegedly caused by the defendants' negligence. In the plaintiff's complaint, he demanded a jury trial. The defendants also demanded a jury trial in their answers. On the eve of trial, unbeknownst to the defendants, the plaintiff withdrew his jury demand. On the morning of trial, the defendants appeared but were unrepresented by counsel. The trial court proceeded with a bench trial, and entered a judgment in favor of the plaintiff. The defendants now appeal, claiming, inter alia, that they were denied their right to a jury trial. We affirm, finding that the defendants' participation in the bench trial, without objection, constituted a waiver of their right to a jury trial under Rules 38.05 and 39.01 of the Tennessee Rules of Civil Procedure.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court is Affirmed
Benjamin S. Dempsey, Huntingdon, Tennessee, for the appellants, Rex. A Berry and William A. Bolin.
Charles L. Hicks, Camden, Tennessee, for the appellee, Brian W. Elkins.
OPINION
This case involves the right to a trial by jury. On December 20, 1997, at approximately 3 o'clock a.m., plaintiff/appellee Brian W. Elkins ("Elkins"), as an officer of the Tennessee Wildlife Resource Agency ("TWRA"), saw defendants/appellants Rex A. Berry ("Berry") and William A. Bolin ("Bolin") illegally spotlighting deer in Carroll County, Tennessee.1 Berry was driving a truck owned by Bolin in which Bolin was the passenger. Several TWRA officers began to pursue Berry and Bolin by helicoptor, and other officers erected a roadblock to prevent the defendants' flight from arrest. Berry and Bolin turned and drove away from the officers' roadblock. Elkins had been pursuing Berry and Bolin, and when they turned around to avoid the roadblock, they drove toward Elkins's truck. Elkins had brought his truck to a stop with his blue lights engaged in an attempt to block the defendants' escape. The truck driven by Berry collided with Elkins's truck, resulting in Elkins sustaining personal injuries. Berry and Bolin subsequently pled guilty to spotlighting deer, hunting deer from a motor vehicle, and hunting or killing big game during closed season. Additionally, Berry pled guilty to reckless endangerment and evading arrest.
On December 8, 1998, Elkins filed the instant lawsuit against Berry and Bolin, claiming compensatory and punitive damages resulting from the auto accident.2 In his complaint, Elkins demanded a jury. On January 18, 1999, C. Timothy Crocker, an attorney, entered an appearance and filed an answer on behalf of Berry, in which he did not demand a jury. Fred McLean, an attorney, entered an appearance and filed an answer on behalf of Elkins' uninsured motorist carrier, State Farm Mutual Automobile Insurance Company ("State Farm"), in which he demanded a jury. Bolin did not retain his own counsel and did not file an answer. Elkins then filed a motion for a default judgment against Bolin. On November 17, 1999, attorney McLean filed an answer on Bolin's behalf, in which he demanded a jury.
On November 17, 1999, the trial judge granted Crocker's motion to withdraw as counsel of record for Berry. At that time, the trial court advised Berry and Bolin that they were entitled to retain lawyers to represent them if they so chose. The trial court informed the parties that the trial date was set for January 11, 2000, and told Berry and Bolin that if they wanted their own counsel they would have to make arrangements prior to that date.
Prior to trial, Elkins reached a settlement with State Farm. Consequently, attorney McLean was no longer obligated to remain in the case. On January 10, 2000, the day before trial, Elkins filed a waiver of his original jury demand and moved to proceed with a bench trial on the following day. A copy of that waiver was sent to attorneys Crocker and McLean, but not to Berry and Bolin personally. Thus, Berry and Bolin had no notice of Elkins' jury waiver prior to the morning of trial.
The case was called to be heard as scheduled on the morning of January 11, 2000. McLean, of course, did not appear. Berry and Bolin personally appeared, but they apparently had counted on attorney McLean to represent their interests and had not retained their own attorneys.3 When questioned by the trial court regarding legal representation, the defendants responded that they had none. At that point, noting that the defendants had been given ample opportunity to retain counsel, the trial judge proceeded with the bench trial. According to the Statement of the Evidence in the appellate record, the defendants waived their right to testify, and failed to put on any proof. The Statement of the Evidence did not refer to any discussion of the defendants' demand for a jury trial, or any objection by the defendants to a bench trial.
At the conclusion of the bench trial, the trial court found "by clear and convincing proof beyond a reasonable doubt" that both defendants had engaged in illegal activities and that they intentionally drove their truck into Elkins' truck while evading arrest. The trial court found that Elkins had sustained permanent injuries as a result of the collision, and awarded Elkins $25,000 against both defendants and an additional $15,000 in punitive damages against Berry, the driver of the truck.
On February 18, 2000, Berry and Bolin, now represented by counsel, filed motions for a rehearing, reconsideration, or a new trial. Berry and Bolin asserted, among other things, that "[p]laintiff's unilateral waiver of a jury trial the day before trial, without notice and consent of defendant[s] impermissibly denied defendant right to a jury trial." The motions were denied. The defendants now appeal.
On appeal, the defendants raise a number of issues pertaining to the propriety of the trial court's findings and legal conclusions. Initially, the defendants argue that they were denied due process and denied assistance of counsel because they were not notified of the insurance company's pre-trial settlement. They reason that, had they been notified that the insurance company's attorney would not be present, they would have retained separate counsel.4 Further, they claim that they were denied their right to a jury trial because of the plaintiff's unilateral waiver of a jury. Finally, they argue that, had they been allowed to proceed before a jury, the proof would have been sufficient such that a jury could have found that the collision was the result of negligent and not intentional conduct, and that the evidence does not support a finding of punitive damages.
We review the findings of fact by the trial court de novo on the record, accompanied by a presumption of the correctness of the findings, unless the preponderance of the evidence is otherwise. Tenn. R. App. P. 13(d). Conclusions of law require a de novo review, with no presumption of correctness. See State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997); Ridings v. Ralph M. Parsons Co., 914 S.W.2d 79, 80 (Tenn. 1996).
We consider first the argument that Berry and Bolin were denied their right to a jury trial. Since the effective date of the Tennessee Rules of Civil Procedure, January 1, 1971, Rules 38.05 and 39.01 govern the requirements for a withdrawal, waiver, or abandonment of a previously filed jury demand. See Caudill v. Mrs. Grissom's Salads, Inc., 541 S.W.2d 101, 104 (Tenn. 1976). Rule 38.05 provides in pertinent part:
38.05. Waiver - A demand for trial by jury as herein provided may not be withdrawn without the consent of all parties as to whom issues have been joined.
Rule 39.01 provides in pertinent part:
39.01. By Jury - When a trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless . . . the parties or their attorneys of record, by written stipulation filed with the court or by oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury . . . .
(Emphasis added). The Advisory Commission Comments to this rule state that Rule 39.01 "is consistent with prior practice." Tenn. R. Civ. P. 39.01 advisory commission cmts. (citing Tenn. Code Ann. 20-1206, in which consent of all parties was required for waiver of jury demand). Rules 38.05 and 39.01 are identical to their federal counterparts.
Rule 38.05 restates the long-standing common law rule in Tennessee that once a jury trial has been properly demanded, such a demand cannot be withdrawn without the consent of all the parties. See Russell v. Hackett, 230 S.W.2d 191, 192 (Tenn. 1950). One authority has explained the reason for such a rule:
[W]here one party makes [a jury] demand, there is ordinarily no necessity for the other to do so. Accordingly, a party wishing to avoid a jury trial might, if permitted to do so, trap his opponent by initially demanding a jury, then, after the time has elapsed for his opponent to make a similar demand, withdrawing his request. In order to meet this possibility, statutes or rules have been enacted in a number of jurisdictions requiring that a party who had demanded a jury trial may not withdraw such a demand without the consent of the opposing party.
Tennessee courts have held that consent of the parties...
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