Ex parte Rush
| Decision Date | 01 October 1982 |
| Citation | 419 So.2d 1388 |
| Parties | , 6 Ed. Law Rep. 1215 Ex parte George S. RUSH, d/b/a Rush Engineers. (In re JACKSONVILLE STATE UNIVERSITY v. George S. RUSH, d/b/a Rush Engineers). 81-439. |
| Court | Alabama Supreme Court |
Thomas J. Knight, Anniston, for petitioner.
Walter J. Merrill of Merrill, Porch, Doster & Dillon, Anniston, for respondent.
This petition for a writ of mandamus involves the right to a jury trial in a declaratory judgment action. Defendant, George S. Rush, d/b/a Rush Engineers, seeks to compel the Honorable Robert M. Parker, Circuit Judge, to grant his request for a jury trial made in his answer and counterclaim to the complaint. Plaintiff, Jacksonville State University, did not request a jury trial, and moved to strike defendant's request. Judge Parker granted plaintiff's motion. Defendant then sought review of the trial judge's action by this petition.
The dispositive issue on this appeal is: Did Judge Parker err in granting plaintiff's motion to strike defendant's request for a jury trial? We hold that he did, and we award the writ conditionally.
Plaintiff brought a declaratory judgment action against defendant in the Circuit Court for Calhoun County. It alleged that the parties entered into a contract on August 16, 1977, for the construction of a military science building on plaintiff's property. According to the complaint, plaintiff was to withhold a 10 percent retainage from payments due defendant for materials furnished and work completed, until the value of the in-place construction reached 50 percent of the contract value. Thereafter, no additional retainage was to be withheld from the progress payments. Plaintiff alleges that it withheld $36,042.73, which it deposited in an escrow account. A certificate of deposit was issued jointly in that amount to plaintiff and defendant. A dispute over the contract arose, which apparently resulted in the entrance into the dispute of the insurance carrier which wrote defendant's performance bond. Plaintiff contends that a settlement was reached and that defendant is owed nothing more as a result of the agreement. Its complaint alleges that the certificate of deposit should have been issued only in its name, and that it rightfully owns the $36,042.73. The defendant disagrees, and by way of an amended answer and counterclaim, asserts that he is the rightful owner of the certificate of deposit or, in the alternative, at least $5,000.00 of it. Because the bank issuing the certificate would not pay the money to plaintiff without defendant's endorsement, plaintiff commenced a declaratory judgment action.
In addition to the parties' pleadings, the following transpired in the trial court. Defendant moved to dismiss the complaint under Rule 12(b)(6), Alabama Rules of Civil Procedure, contending it failed to state a claim upon which relief could be granted. Judge Parker denied that motion. Both parties requested the production of documents pursuant to Rule 34, A.R.C.P. Plaintiff moved to strike defendant's request for a jury trial and demanded a speedy hearing. After a hearing, Judge Parker granted plaintiff's motion and scheduled a hearing on the merits of the action. Defendant then petitioned this court for the requested writ of mandamus. After receiving the answer of Judge Parker and plaintiff, and the parties' briefs, we took this matter under submission and stayed all proceedings in the trial court.
At the outset, we note the well established rule regarding a party's right to a jury trial in a declaratory judgment action:
[A] party to a bill seeking a declaratory judgment is entitled to a jury trial as a matter of right if he would have had such a right in the cause of action for which the declaratory relief may be considered a substitute. Tuscaloosa County v. Shamblin, 233 Ala. 6, 169 So. 234; Annotation, 13 A.L.R.2d 777.
Reed v. Hill, 262 Ala. 662 at 663, 80 So.2d 728 at 729 (1955); quoted with approval in Sherer v. Burton, 393 So.2d 991 (Ala.1981), and Hanks v. Hanks, 281 Ala. 92, 199 So.2d 169 (1967). The same principle is recognized in Code 1975, § 6-6-228, part of Alabama's version of the Uniform Declaratory Judgment Act:
When a proceeding under this article involves the determination of an issue of fact, such issue may be tried and determined in the same manner as issues of fact are tried and determined in other civil actions in the court in which the proceeding is pending.
The cause underlying plaintiff's declaratory judgment action is a contract dispute with attendant issues which would be triable in a common law action. Porter v. Alabama Farm Bureau Mutual Casualty Insurance Company, 279 Ala. 499, 187 So.2d 254 (1966); Major v. Standard Accident Insurance Company, 272 Ala. 22, 128 So.2d 105 (1961). Indeed, it has been noted that a right to a jury trial exists as to "all issues of fact presented in declaratory judgment proceedings on the equity side if the same issues would be so triable when presented in common-law actions." Major v. Standard Accident Insurance Company, 272 Ala. at 24, 128 So.2d at 107. Thus, unquestionably, defendant is entitled to assert his right to a jury trial on the issues of fact involved in the instant proceeding.
In their response to defendant's petition, Judge Parker and plaintiff enumerate and explain various facts, apparently the result of the parties' efforts at pre-trial discovery, to justify their position that only legal, and not factual, issues remain for resolution. That may, or may not, be the situation. Under the present posture of this case we will not venture a conclusion on that matter. We agree with defendant that the trial court, in effect, allowed plaintiff's motion to strike to be used as a substitute for the summary judgment procedure provided in Rule 56, A.R.C.P.
The Uniform Declaratory Judgment Act is contained in Code 1975, § 6-6-220, et seq. Rule 57, A.R.C.P., provides, in pertinent part, that the rules of civil procedure apply to a declaratory judgment action. Discussing the similar federal rule of civil procedure, Rule 56, one commentator states: "There is no doubt as to the applicability of the summary procedure to a proceeding for declaratory relief." 6 J. Moore, Moore's Federal Practice p 56.17 (2d ed. 1982) (footnote omitted). Even before the present rules of civil procedure were adopted, this Court recognized the principle that the usual rules of procedure and pleading apply to declaratory judgment actions:
Though actions for declaratory judgment are statutory in nature there has been no special statutory procedure established for them and our conventional rules of procedure and pleadings have been applied in such cases.
Campbell v. Shell, 289 Ala. 115 at 119, 266 So.2d 272 at 275 (1972).
Applying the principles applicable to summary judgment, we opine that it was improper for the trial court to have denied defendant a jury trial on issues of fact unless they were not in dispute:
In determining whether a summary judgment is proper, the ultimate question is whether there remains a genuine issue of material fact, and if there is one, summary judgment is inappropriate. Rule 56(e) ARCP; 6 Moore's Fed.Prac., par. 56.15 (2nd ed. 1971). Put in another way, "[W]here the evidentiary matter in support of the motion does not establish the absence of a genuine issue, summary judgment must be denied even if no opposing evidentiary matter is presented."
First National Bank of Birmingham v. Culberson, 342 So.2d 347 at 351 (Ala.1977), quoted with approval in Harold Brown Builders, Inc. v. Jordan Company, 401 So.2d 36 at 37 (Ala.1981). This court has applied the scintilla evidence rule in determining the propriety of submitting a case to the jury in a declaratory judgment action. Stonewall Insurance Company v. Lowe, 291 Ala. 548, 284 So.2d 254 (1973). In the instant case, the trial court should not have removed the case from the jury absent a finding, arrived at through the procedure for summary judgment contained in Rule 56, that no issues of material fact existed. Thus far, no such finding has been made. Therefore, the trial court erred in striking defendant's request for a jury trial.
Judge Parker and plaintiff cite Alabama Electric Cooperative, Inc. v. City of Luverne, 282 Ala. 616, 213 So.2d 676 (1968), (Alabama Electric ), in support of their position that in the absence of an issue of fact, the trial court may strike a party's request for a jury trial. That case does support Judge Parker's action. Alabama Electric involved a...
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