County Civil Court: JURY TRIAL – demand for jury trial untimely as
motion was filed beyond 10-day period for filing such a request after the
last pleading was served – appellants unable to demonstrate trial court abused
its discretion in not granting late demand for jury trial – it was the appellants’
burden to demonstrate that a jury trial would impose neither an injustice
upon the appellee nor an unreasonable inconvenience on the trial court – Order
affirmed. Pemberton v. St. Pete
Jeep, Inc., No. 03-5002AP-88A (
IN AND
APPELLATE DIVISION
PATRICIA PEMBERTTON and
ALEX PEMBERTON,
Appellants,
vs.
Appeal No. 03-5002AP-88A
UCN522003AP005002XXXXCV
ST. PETE JEEP, INC., d/b/a
Appellee.
________________________________________/
Opinion filed _______________________
Appeal from Final Judgment
Judge Karl B. Grube
Timothy W. Weber, Esquire
Attorney for Appellant
Gregory T. Elliot, Esquire
Attorney for Appellee
THIS CAUSE came before the Court on appeal, filed by Patricia Pemberton and Alex Pemberton (Pembertons), from the Final Judgment, entered April 17, 2003, in favor of St. Pete Jeep, Inc., d/b/a St. Pete Jeep (St. Pete Jeep). Upon review of the briefs, the record and being otherwise fully advised, the Court affirms the Order.
The sole issue on appeal is whether
the trial court abused its discretion in denying Pembertons’ belated Motion
to Amend Answer, Affirmative Defenses, and Counterclaim to Demand Jury Trial
(Motion). The Pembertons concede that
its demand for a jury trial was untimely as the Motion was filed on November
22, 2002, well beyond the 10-day period for filing such a request after the
last pleading was served, on June 14, 2001.
See
The Pembertons assert that the trial
court abused it discretion in not granting their demand as the pleadings were
not closed, the action was not at issue, and the case was not set for trial.
However, as set forth above, the last “pleading,” as defined by Florida
Rules of Civil Procedure, Rule 1.100(a), was served on June 14, 2001, and
no demand for a jury trial was made within ten days.
Additionally, the Court cannot conclude that the trial court abused
its discretion in denying the Motion on the basis that the Pembertons’ Motion
to Strike was still pending and the case had not yet been set for trial.
See e.g. Dr. Phillips, 790 So.2d at 545 (concluding
that the trial court did not abuse its discretion in denying a untimely demand
for a jury trial where the only reason advanced was that no trial date had
been set). This is particularly true since there is no
transcript of the Motion hearing in the appellate record. See Applegate v. Barnett Bank of Tallahassee,
377 So.2d 1150, 1152 (
Therefore, it is,
ORDERED AND ADJUDGED that the Final Judgment is affirmed.
It is further
ORDERED AND ADJUDGED that the Appellee’s Motion for Award of Attorney’s Fees on Appeal is granted. The trial court shall determine the reasonable amount of attorney’s fees to be awarded. The Appellant’s Conditional Motion for Attorneys’ Fees is denied.
DONE AND ORDERED in Chambers, at
___________________________________
JOHN A. SCHAEFER
Circuit Judge, Appellate Division
Copies furnished to:
Judge Karl B. Grube
Timothy W. Weber, Esquire
Post Office Box 41100
Gregory T. Elliot, Esquire
Post Office Box 20768