CHRISTOPHER CATHCART ATTORNEY AT LAW REPORTED CASES
Case 3
615 So.2d 223
18 Fla. L. Weekly D642
(Cite as: 615 So.2d 223)
Monique Dalomba HERRERA, Appellant,
v.
WEE CARE OF FLAGLER COUNTY, INC., etc., Appellee.
No. 92-776.
District Court of Appeal of Florida, Fifth District.
March 5, 1993. |
|
*223 Christopher C. Cathcart, Orlando, for appellant.
Chobee Ebbets, Daytona Beach, for appellee.
PETERSON, Judge.
Monique Dalomba Herrera
appeals, inter alia, the denial by a predecessor judge
of her request for a jury trial. We affirm and address
only her contention that the court erred in ordering
a nonjury trial. Herrera did not request a jury
trial until two years after the litigation was initiated
and after the case had been docketed at least twice
for nonjury trial. The litigation began as a mortgage
foreclosure by Wee Care on Herrera's home which secured
part of the purchase price of a nursery school business.
Herrera counterclaimed, alleging fraudulent misrepresentation
and nondisclosure by Wee Care during the negotiations
for the purchase of the nursery. Herrera decided to
represent herself after her last attorney withdrew
on the ground that she had threatened him with a grievance
complaint or malpractice action.
At the hearing on
the motion for jury trial, the trial court repeatedly
expressed its concern about Herrera's legal competence
and ability to follow the rules and court orders. The
court stated at one point, "If we can comply with the
rules and we comply with my Orders as we go along with
it, we may be able to have a jury trial." The trial
court placed the case on *224 the jury trial docket,
as it stated later in a written order, "to accommodate
and facilitate [Herrera] on the condition that [she]
conduct herself in an appropriate manner...." The court
noted further that it had "reserved the right to proceed
without a jury should [she] not comply with [court]
directives."
On the day the jury
trial was to begin, a hearing was held on pending motions.
During the hearing, Herrera's mother became angry,
stormed out of the courtroom, and walked back and forth
in the hallway, screaming in front of prospective jurors.
Next, back in the courtroom, Herrera's father insulted
Wee Care's owner, after which Herrera jumped into the
fray, adding her own verbal attack. The trial court
then stated that a nonjury trial would be held as it
would not allow Herrera to appear before a jury and
cause an immediate mistrial.
On appeal, Herrera
seems to argue that, although she waived her right
to a jury trial by failure to demand one timely, once
the court ordered the case placed on the docket for
jury trial, she became "vested" with the right.
[1] When a motion
for jury trial is untimely, the trial court is called
upon to exercise sound discretion in determining whether
justice requires the granting of a motion. Wertman
v. Tipping, 166 So.2d 666 (Fla. 1st DCA 1964). Rule
1.430(d), Florida Rules of Civil Procedure, provides:
Waiver. A party who
fails to serve a demand as required by this rule waives
trial by jury. If waived, a jury trial may not be granted
without the consent of the parties but the court may
allow an amendment in the proceedings to demand a trial
by jury or order a trial by jury on its own motion.
A demand for trial by jury may not be withdrawn without
the consent of the parties.
[2] In Altamonte
Hitch & Trailer Service, Inc. v. U-Haul Company
of Eastern Florida, 468 So.2d 492 (Fla. 5th DCA 1985),
review denied, 476 So.2d 672 (Fla.1985), this court
noted that Rule 1.430(d) was not intended to overrule
the discretionary power of the trial court as described
in Wertman. See In re the Florida Bar, 265 So.2d 21,
40 (Fla.1972). When a party has a change of heart at
such a late date, it is incumbent on that party to
demonstrate not only the desire for a jury trial but
also that such procedure would impose neither an injustice
upon the adversary nor an unreasonable inconvenience
upon the court in the performance of its duties. Altamonte
Hitch & Trailer Service, 468 So.2d at 493. In Wertman,
166 So.2d at 667, the court stated that, when considering
an untimely motion for a jury trial, the court may
take into account any inconvenience to the court and
to the other party, the state of the trial calendar,
and prior commitments of the court's time. Id. On appeal,
the presumption is in favor of the correctness of the
order. Id.
[3][4] Whether to
grant a jury trial to a litigant who has waived that
right is a matter of the court's discretion and, as
the supreme court stated in Shores v. Murphy, 88 So.2d
294, 296 (Fla.1956), one that is "exceedingly broad." The
record reflects that, at Herrera's first opportunity
after the jury trial was docketed, Herrera demonstrated
that justice did not require a jury trial. She jumped
into the fray initiated by her parents, confirmed her
disruptive nature exhibited in earlier hearings, and
refused to listen to the trial court when it attempted
to remonstrate her. Subsequent denial of a jury trial
was within the trial court's discretion in order to
bring the matter to a conclusion in an orderly fashion.
The judgment is affirmed.
AFFIRMED.
GRIFFIN, J., and COWART, Judge, Retired, concur.
Back to Top
|
