Untimely demand for jury trial: LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT V. BISCHOFF (SC 12/20/2007)

LOUISVILLE AND JEFFERSON COUNTY METROPOLITAN SEWER DISTRICT V. BISCHOFF
CIVIL PROCEDURE: Demand for jury trial untimely and waived under CR 38.02
2006-SC-000058-DG.pdf
PUBLISHED: REVERSING
OPINION BY MINTON; SCHRODER DISSENTS AND WOULD BE INCLINED TO AFFIRM THE WELL-WRITTEN OPINION OF THE COA WITH ITS CONSTITUTIONAL BIAS IN FAVOR OF RIGHT TO JURY TRIAL AND NOT BELIEVE FAILURE TO COMPLY WITH CR 38.02 FIFTEEN MOS. BEFORE TRIAL WAS A WAIVER
DATE RENDERED: 12/20/2007

The issue in this case arose in the context of the compensation phase of an eminent domain proceeding. When MSD filed its petition for condemnation therein, it neither requested a jury trial nor paid a fee for same. In the course of the condemnation proceedings, the trial court issued an interlocutory judgment condemning certain permanent and temporary easements across Bischof’s property on January 30, 2003. On August 7, 2003, Bischof filed a written request for jury trial. The trial court denied the motio because the request was not timely under CR 38.0s, and the trial court concluded the basis for the late request was not excusable neglect. The trial court conducted a bench trial on October 25, 2004, eventually entering an award for $5,522 in compensation to Bischof. He appealed the trial court’s denial of his motion for jury trial, and the COA held that in eminent domain proceedings, Section 242 of the KY Constitution and KRS 416.620(1) require an affirmative waiver of the mandate for jury trial. It also noted that failure to make a demand under CR 38.02 did not amount to an affirmative waiver. It further relied on language from the case of Equitable Life Assurance Society of the United States v. Taylor, 637 S.W.2d 663, 665 (Ky. App., 1982). The COA reversed and remanded for a jury trial on the issue of compensation.

The SC noted there is no dispute that Bischof had a right to a jury trial on the amount of compensation owed him, but the issue was whether he had to exercise that right by demanding a jury trial as requried by CR 38.02 or waive that right affirmatively; it stated that the issue arises because KRS 416.550 to 416.670, the substantive provisiosn of the Eminent Domain Act of KY, do not specify the procedure by which a party is to exercise his rights to a jury trial as eminent domain statutes in other states do. The answer, it held, lies in KRS 416.650, which reads: "All proceedings under KRS 416.550 to 416.670 shall be governed by the provisiosn of the Rules of Civil Procedure except where the provisions of KRS 416.550 to 416.670 specifically or by necessary implication provide otherwise." The SC held that because there is no provision that specifically or by necessary implication pertains to a demand of jury trial, the provisions of CR 38 govern, and CR 38.02 required Bischof to obtain a jury trial by serving a timely demand. If he did not do so, then under CR 38.04, he waived his right to jury trial. It noted that he did not file his demand for jury trial until August 7, 2003, almost three months past the last pleading directed to the issue of compensation and eleven months after he filed his first pleading in the case; his failure to serve a timely demand under CR 38.02 thus constitutes a waiver of his right via CR 38.04.

The SC addressed Bischof’s argument that enforcing 38.04 deprived him of his right to jury trial under Section 242 of the KY Constitution or KRS 416.620; it noted that CR 38 merely specifies the procedure for obtaining a jury trial when the applicable statutes do not and touted the language in Brown v. Commonwealth, 551 S.W.2d 557, 559 (Ky., 1977), which likens the Civil Rules to "lights and buoys" which "mark the channels of safe passage and assure an expeditious voyage to the right destination" by providing procedural avenues for the enforcement and protection of substantive rights. It also addressed the language in Taylor, and stated that to the extent that language elevated the right to jury trial in eminent domain proceedings above the right to such guaranteed in Section 7 of the KY Constitution, it was overruled. On a side note, it held that Bischof, who had proceeded pro se throughout the case, did not preserve certain evidentiary arguments by way of a cross-motion for discretionary review, and it therefore declined to consider them.

Justice Cunningham dissented, noting that Bischof had asked for a jury trial in August, 2003, some fifteen months before the bench trial, and stated that in such a case, he did not believe the failure to comply with CR 38.02 was an affirmative waiver.

By Cherry Guarnieri

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