Yolanda West v. George Scott, 01-LW-4591

• Decision Date: 06 December 2001
• Docket Number: 01 CA 24,01-LW-4591
• Citation: 2001 Ohio 3461
• Parties: YOLANDA WEST, et al., PLAINTIFFS-APPELLEES v. GEORGE SCOTT, DEFENDANT-APPELLANT CASE
• Court: Ohio Court of Appeals

2001-Ohio-3461

YOLANDA WEST, et al., PLAINTIFFS-APPELLEES v. GEORGE SCOTT, DEFENDANT-APPELLANT

No. 01 CA 24

01-LW-4591 (7th)

Court of Appeals of Ohio, Seventh District Mahoning

December 6, 2001

Civil Appeal from Common Pleas Court, Case No. 98CV2937.

Hon Joseph J. Vukovich, Hon. Cheryl L. Waite, Hon. Mary DeGenaro

For Plaintiffs-Appellees: Attorney Anthony Donofrio, 802 Mahoning Bank Building, P.O. Box 6045, Youngstown, Ohio 44501-6045

For Defendant-Appellant: Attorney Christopher Sammarone, 1100 Bank One Building, Youngstown, Ohio 44503-1576

OPINION

VUKOVICH P.J.

Defendant-appellant George Scott appeals the decision of the Mahoning County Common Pleas Court which permitted plaintiff-appellee Yolanda West to withdraw her demand for a trial by jury. In deciding this appeal, we are called upon to answer a single question: When a party in a civil lawsuit timely files a jury demand, can that demand be withdrawn without the consent of the remaining party who did not file a jury demand of their own? Since we find that Civ.R. 38(D) requires a negative response to that question, we reverse the contrary action of the trial court for the reasons set out below.

FACTS

West and Scott were involved in an automobile accident. West filed suit against Scott for injuries arising out of the accident. West's complaint included a jury demand. Neither Scott's answer nor any other pleading, except for a motion made on the day of trial, included a jury demand. Almost two years after filing the complaint and three days prior to trial, West, by written motion, withdrew her jury demand. The court accepted the withdrawal. On the day of trial, Scott, by written motion, demanded a jury trial. The court denied the motion.

On the day of trial, Scott objected to the unilateral withdrawal of the jury demand. The case proceeded to trial without empaneling a jury. At the close of evidence, Scott renewed his objection. Judgment was entered against him. Scott timely filed a motion for a new trial. The motion was denied. This timely appeal followed.

ASSIGNMENTS OF ERROR

Scott raises two assignments of error. These assignments will be discussed together. Said assignments contend:

"THE TRIAL COURT ERRED IN PERMITTING PLAINTIFF-APPELLEE YOLANDA WEST TO UNILATERALLY WITHDRAW HER JURY DEMAND WITHOUT THE CONSENT OF DEFENDANT-APPELLANT, GEORGE SCOTT AND IN THEREAFTER PROCEEDING TO TRIAL WITHOUT EMPANELING A JURY."

"THE TRIAL COURT FAILED TO CORRECT ITS ERROR OF LAW BY DENYING DEFENDANT-APPELLANT'S, GEORGE SCOTT'S, MOTION FOR NEW TRIAL."

STANDARD OF REVIEW

The appellate court reviews a denial of a motion for a new trial under an abuse of discretion standard. Sharp v. Norfolk &amp W. Ry. Co. (1995), 72 Ohio St.3d 307, 312; Pearson v. Wasell (1998), 131 Ohio App.3d 700, 710. A reviewing court will only reverse the trial court's ruling if it is found that the trial court abused its discretion by acting in an unreasonable, unconscionable, or arbitrary manner. Sharp, 72 Ohio St.3d at 312; Pearson, 131 Ohio App.3d at 710.

ANALYSIS

Scott argues that Civ.R. 38 and Civ.R. 39 requires both parties to consent to the withdrawal of the jury demand, regardless of whether both parties requested a trial by jury. He claims that since he did not consent to the withdrawal of the jury demand, the withdrawal was improper. West insists that Scott waived his right to a jury trial. West claims that Civ.R 38(B) requires a party to demand a jury trial and failure to do this in accordance with that section is a waiver of the right to a jury trial pursuant to Civ.R. 38(D). West further argues that Scott's jury demand, filed in response to West's filing a unilateral withdrawal of jury demand on the eve of trial, was untimely, and that the trial court had the discretion to deny same pursuant to Civ.R. 39(B).

We decline to interpret Civ.R. 38 and Civ.R. 39 as West suggests. Looking first at Civ.R. 38(B), we find that the rule does not require each party to demand a trial by jury. It merely states that:

"Any party may demand a trial by jury on any issue triable of right by a jury by serving upon the other parties a demand therefore at any time after the commencement of the action * * *."

Therefore, if one party demands a jury trial, all the other parties in the same action must also have the matter tried by a jury. Therefore, a trial by jury automatically attaches to all parties by virtue of a single party's demand.

We now may look at the procedure for the withdrawal of a jury demand. Civ.R. 38(D) states:

"The failure of a party to serve a demand as required by this rule and to file it as required by Rule 5(D) constitutes a waiver of trial by jury. A demand for trial by jury as herein provided may not be withdrawn without the consent of the parties." (Emphasis added).

Further, Civ.R. 39(A) provides that upon demand, the trial "shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered on the record, consent to trial by the court sitting without a jury * * *." Read in pari materia, the two rules clearly provide that once one of the parties make a jury demand in conformity with the Civil Rules, parties must consent on the record, to waive a jury trial.

The fallacy of the argument of West is exposed by the emphasized portion of the foregoing rules. West would have us read into the rules an additional qualifier, i.e., that a demand for trial by jury may not be withdrawn without the consent of the other parties who previously filed a jury demand. As we understand West's position, she is actually arguing that: (1) the other party failed to demand a jury trial on their own; (2) therefore, they waived their right pursuant to Civ.R. 38(D); (3) therefore, the "consent" required by Civ.R. 38(D) applies only to those who did not "waive" their right to demand a jury trial; and (4) therefore, the "consent" required in Civ.R. 38(D) only applies to those who did not waive their right to demand a jury trial (i.e., they had also demanded a jury trial).

Applying such an argument to the situation which we have before us (one plaintiff and one defendant), the "consent" mandated by Civ.R. 38(D) would have no application other than to require plaintiff-appellee to give her consent to her own request to withdraw her jury demand - clearly a nonsensical requirement.

The language of section (A) and (D) require a party to demand a jury trial, but it states that the parties must consent to the withdrawal. Civ.R. 38 specifically uses the singular and plural uses of the word party. The clear meaning of use of party and parties means that any one party can demand a jury, but all parties to the lawsuit must consent to the withdrawal of the demand. The language does not specify that consent is only needed from the parties who demanded a jury trial.

Recently our sister district has decided a case very similar to the case at bar. Holman v. Keegan (2000), 139 Ohio App.3d 911. We find the holding in that case to be persuasive. In Holman, the Sixth District...