County Small Claims Court: APPELLATE PROCEDURE – record – Nonjury trial was held in which appellant participated and judgment on negligence and trespass claims was for appellee - Appellee had waived its demand for jury trial at pretrial conference that appellant did not attend – After trial, appellant claimed that it had not waived its constitutional right to trial by jury – Since appellant admitted in its brief that it participated in the trial and since it could not be ascertained whether it objected or acquiesced at trial to the waiver of jury trial because no transcript of the proceeding was provided, Final Judgment was affirmed. Steve’s Excavating and Paving, Inc, v. Verizon Florida, Inc., No. 02-3743-CI-88A (Fla. 6th Cir. App. Ct. May 8, 2003).

 

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA IN AND FOR PINELLAS COUNTY

APPELLATE DIVISION  UCN 522002**003743XXCI*P

 

STEVE’S EXCAVATING AND PAVING, INC,

                Appellant,

 

v.

                                                                                                                                Ref No. 02-03743-CI-88A

                                                                                                                                Small Claims 01-4717-SC

VERIZON FLORIDA, INC.,

                Appellee.

_______________________________________/

 

Opinion filed ________________________

Appeal from Final Judgment

County Court, Small Claims Division, Pinellas County

The Honorable Karl B. Grube

 

 

ORDER AND OPINION

 

                THIS CAUSE came before the Court on appeal from the County Court for Pinellas County, Small Claims Division, by STEVE’S EXCAVATING AND PAVING, INC., hereafter Appellant, from a Final Judgment entered January 3, 2002, as modified by the Order on Motion for Rehearing rendered February 8, 2002, in favor of VERIZON FLORIDA, INC, hereafter Appellee. Upon review of the record and the briefs and being otherwise fully advised in the premises, the Final Judgment entered by the lower court is affirmed.

                This matter arose when Appellee filed a two-count complaint for negligence and trespass. Appellee sought damages of $2,030.15 for cost of repair or replacement of damaged telephone cable and demanded a jury trial.

                The first pre-trial conference was continued at the request of Appellant and the second pre-trial conference was held on August 29, 2001, but “continued pending notice.” On September 4, 2002, upon the Appellee’s Demand for a Jury Trial and the Court’s own Motion for a Pre-Trial Conference, an Order Directing Pre-Trial Conference was entered that set the conference for November 5, 2001. On September 8, 2001, Appellant filed an answer denying liability and damages and filed a counterclaim alleging damages by delay, but did not demand a jury trial.

                At the November 5, 2001 Pre-Trial Conference, Appellee waived its demand for jury trial, which forms the basis for the appeal to this Court. The Pre-Trial Conference Order and Notice of Trial stated under “Stipulation or Other” that “jury trial is waived by Plaintiff/def did not object”. Trial was set for December 18, 2001. Appellant is marked “voluntarily absent” and the order/notice was mailed to it.

                On December 18, 2001, a nonjury trial was held in which Appellant participated and judgment was for Appellee. The Appellant’s counterclaim was denied as unproved.   Appellant moved for rehearing on the issue of interest on the judgment and the Final Judgment was corrected by Order entered on February 8, 2002.

                Appellant timely filed a Notice of Appeal in this Court on the ground that Appellee had requested a jury trial and that Appellant had not waived its constitutional right to trial by jury. Appellant’s argument centers around the fact that it was not present at the Pre-Trial Conference on November 5, and that it could not therefore have waived its right to a jury trial when the Appellee withdrew its demand for one. Appellant further argues that its absence at the pre-trial conference was due to faulty notice.

                The constitutional right to trial by jury in matters before the County Court is implemented procedurally by Rule 7.150, Florida Small Claims Rules, which provides:

                Jury trials may be had upon written demand of the plaintiff at the time of the commencement of the suit, or by the defendant within 5 days after service of notice of suit or at the pretrial conference, if any. Otherwise, jury trial shall be deemed waived.

 

Rule 1.430, Florida Rules of Civil Procedure, entitled “Demand for Jury Trial; Waiver” and which contains more detailed procedures, was not applicable to the proceeding before the County Judge.

                Nevertheless, Appellant bases its argument on caselaw interpreting Rule 1.430, which requires both parties’ consent in order to waive the right to a jury trial. This caselaw was summarized as follows in Baron Auctioneer, Inc. v. Ball, 674 So.2d 212 (Fla. 4th DCA 1996):

                In consideration of the right to jury trial guaranteed by Florida’s constitution, Florida courts have interpreted Rule 1.430(d) to require an affirmative act in order to waive a jury trial once it has been requested, regardless of who makes the demand. Curbelo v Ullman, 571 So.2d 443 (Fla. 1990); Barth v Florida State Constructors Service, Inc., 327 So.2d 13 (Fla. 1976); Barge v Simeton, 460 So.2d 939 (Fla. 4th DCA 1984). The fact that a party participates in a non-jury trial without raising an objection constitutes waiver of the right to jury trial, see Martin v Ullman, 555 So.2d 1232 (Fla. 3d DCA 1989), rev. denied, 564 So.2d 487 (Fla. 1990), but failure to answer or otherwise plead does not constitute waiver absent some affirmative act. Curbelo, 571 So.2d at 444. Even when a party fails to show up for trial or a default is entered against him, said party is entitled to a jury trial on damages absent a valid waiver. Barge, 460 So.2d at 940. [emphasis added].

                In the instant case, Ball initially requested a jury trial. There was no subsequent waiver by either party of the right to a jury trial. Since neither Baron nor Leventhal actively participated in the trial or otherwise affirmatively waived the right to a jury trial, Curbelo, Barth, and Barge mandate that this cause be reversed and the matter tried before a jury.

 

                Similarly, in Del-Rena, Inc. v. KFM, Inc., 789 So.2d 397 (Fla. 4th DCA 2001), it was held that the waiver of the right to a jury trial can be inferred from a party’s conduct or actions that show that party’s acquiescence to a non-jury trial. There, appellants did not file any responses in opposition to a motion to strike their demand for a jury trial. Because the hearing on the motion to strike was not transcribed, it could not be ascertained from the record whether appellants had opposed the motion or acquiesced in the decision to try the matter without a jury. The joint pre-trial stipulation stated that all issues remaining in dispute were to be determined by a nonjury trial. Appellants, then appeared for trial, actively participated in the trial and voiced no objections that the trial was nonjury. The motion for rehearing that was filed was also silent on the issue of a jury trial. Only after the adverse final judgment did the jury entitlement issue resurface.

                In this case, the Appellant did not try to vacate the Pre-Trial Order that showed Appellee had withdrawn its jury trial demand and the case was now set for a nonjury trial. Instead, the Appellant appeared for trial and admitted in its brief that it participated in the trial. Whether it objected or acquiesced at trial to the waiver of jury trial cannot be ascertained since no transcript of the proceeding was provided. Likewise, Appellant’s motion for rehearing did not raise the jury trial issue. It was only upon appeal that the jury trial entitlement issue surfaced. It is therefore

                ORDERED that the Judgment of the County Court is AFFIRMED.            DONE AND ORDERED in Chambers, at Clearwater, Pinellas County, Florida this ______ day of April, 2003.

 

                                                                                _________________________________________

                                                                                                                JOHN A. SCHAEFER

                                                                                CIRCUIT JUDGE, APPELLATE DIVISION

 

 

 

cc: Anita C. Brannon, Esq., Townsend & Brannon, 608 W. Horatio Street, Tampa, FL 33606-2228

Lorraine Valenti, Esq., 1211 N Westshore Blvd, Suite 414, Tampa, FL 33607