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Delay won’t bar jury trial request on appeal

Peter Vieth//July 27, 2020

Delay won’t bar jury trial request on appeal

Peter Vieth//July 27, 2020

Even though the party appealing a loss in general district court did not request a jury trial earlier, his request at a scheduling conference was not too late, a Norfolk Circuit Court judge has ruled.

Court rules set a deadline for jury demands 10 days after the last substantive pleading, but that deadline is not a good fit for appeals from district courts, according to Judge Everett A. Martin Jr. He granted the jury trial request July 14 with a five-page order explaining his reasoning.

The decision is Fletcher v. Geyer (VLW 020-8-070).

Leased truck

The case is a dispute over a leased tractor-trailer, according to Gregory A. Giordano of Norfolk, who represents the lessor. The plaintiff, represented by Norfolk’s Charles L. Bashara, filed a warrant in debt in general district court alleging fraud, misrepresentation, loss of use of the truck and breach of contract, according to Martin’s summary. The demand was $25,000.

The plaintiff filed a bill of particulars; the defendant filed grounds of defense. The district judge ruled for the defendant and the plaintiff appealed.

Neither party filed a written demand for trial by jury, Martin said. The plaintiff filed a motion to increase his damages demand, but had not yet brought the motion to a hearing when Martin considered the jury issue.

Bashara requested trial by jury at a June 26 scheduling conference, four months after the appeal was filed. Giordano objected.

No pleadings required

Giordano pointed to Rule 3:21(b) which requires a jury demand be served and filed not later than 10 days after service of the last pleading directed to the issue.

Giordano contended that, since no further pleadings directed to the issue are required after an appeal from district court, the demand must come within 10 days of the appeal.

But Martin found the language of Rule 3:21(b) “does not quite fit” an appeal from district court. And a deadline 10 days from the filing of the appeal would rewrite the rule, the judge said.

“It would truncate the right to trial by jury,” Martin wrote. He said the plaintiff could have written “trial by jury demanded” on the notice of appeal, but “this judge has never seen that done,” Martin said.

Martin held that the “last pleading” language of Rule 3:21(b)(1) does not apply to appeals from general district court to circuit court.

“The court finds demanding trial by jury at a scheduling conference and in a scheduling order to be allowed by the fourth sentence of Rule 3:21(b): ‘The court may set a final date for service of jury demands,’” Martin wrote.

With no such “final date” order in place, Martin granted the plaintiff’s oral demand for trial by jury.

“Requiring Mr. Bashara now to also file a written motion seems superfluous,” the judge said.

“It’s the first time I’ve had the issue come up,” Giordano said in an interview July 20. He was not surprised by the result.

“I think most people take for granted if you ask for a jury at the scheduling conference, you get it,” Giordano said.

Bashara was not available for comment.

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