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 (Fla. 6th Cir. App. Ct. April 5, 2004).

 

 

IN THE CIRCUIT COURT FOR THE SIXTH JUDICIAL CIRCUIT

IN AND FOR PINELLAS COUNTY, FLORIDA

APPELLATE DIVISION

 

PATRICIA PEMBERTTON and

ALEX PEMBERTON,

                        Appellants,

vs.                                                                                            Appeal No. 03-5002AP-88A

                                                                                                UCN522003AP005002XXXXCV

ST. PETE JEEP, INC., d/b/a ST. PETE JEEP,

                        Appellee.

________________________________________/

 

Opinion filed _______________________

 

Appeal from Final Judgment

Pinellas County Court

Judge Karl B. Grube

 

Timothy W. Weber, Esquire

Attorney for Appellant

 

Gregory T. Elliot, Esquire

Attorney for Appellee

 

 

ORDER AND OPINION

 

            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 Fla. R. Civ. P. Rule 1.430(b).  Since the Pembertons failed to file a timely demand for a jury trial it was deemed waived.  See Fla. R. Civ. P. Rule 1.430(d).  Hence, it was the Pembertons’ burden  to demonstrate that a jury trial would impose neither an injustice upon St. Pete Jeep nor an unreasonable inconvenience on the trial court.  See Dr. Phillips, Inc. v. L & W Supply Corp., 790 So.2d 539, 545 (Fla. 5th DCA 2001)(citations omitted); see also Wertman v. Tipping, 166 So.2d 666, 667 (Fla. 1st DCA 1964).

            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 (Fla. 1979)(stating that the decision of the trial court has the presumption of correctness and the burden is on the appellant to demonstrate error). 

            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 Clearwater, Pinellas County, Florida this ________ day of March 2004.

 

 

 

 

                                                            ___________________________________                         

                                                            JOHN A. SCHAEFER

                                                            Circuit Judge, Appellate Division

 

 

 

 

 

Copies furnished to:

 

Judge Karl B. Grube

 

Timothy W. Weber, Esquire

Post Office Box 41100

St. Petersburg, FL  33743

 

Gregory T. Elliot, Esquire

Post Office Box 20768

St. Petersburg, FL  33742