DENNIS VAN PROOYEN AND JEAN VAN PROOYEN, HIS WIFE, APPELLANTS,
v.
ROY S. MAPLES, D/B/A BETTER AIR & HEATING, AND HUBER CONSTRUCTION COMPANY, APPELLEES
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
A jury trial demand is timely even if no jury triable issues exist at the time of the demand, as long as issues later arise. Failure to provide a jury trial when demanded for such issues requires reversal.
A subcontractor sued for a mechanics' lien, and the general contractor cross-claimed against the homeowners. The homeowners demanded a jury trial, whi…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Waiver Of Jury Trial cases and more on FLexlaw
COWART, Judge.
A subcontractor who had furnished material and labor toward the construction of a house for the Van Prooyens brought an action to enforce a mechanics’ lien to recover for the work, against Huber, as general contractor, and the Van Prooyens. Huber cross-claimed against the Van Prooyens for the sums due under its contract with them. In their answer to this cross-claim, the Van Prooyens demanded trial by jury “on all issues triable by a jury.” The trial judge struck the demand upon Huber’s motion, because no issues were triable by jury at that time. Striking the demand was improper; issues triable by jury could, and in fact did, later arise. Subsequently, the Van Prooyens filed a cross-claim against Huber for negligent performance of the construction contract. All issues were tried without a jury.
Jury trial should have been held on the Van Prooyens’ cross-claim, even though, at the time the demand for jury trial was filed, no issues in the cause were triable by jury. The demand was timely as to this claim under Florida Rule of Civil Procedure 1.430(b), which provides that a demand may be served at any time after commencement of the action and ten days after service of the last pleading directed to the issue to be so tried.
Furthermore, the Van Prooyens did not waive their demand by their subsequent failure to request jury trial within the cross-claim itself or their acquiescence in non-jury trial of their cross-claim. Once jury trial has been demanded, it can be waived only by affirmative act, such as a specific waiver in writing or an announcement of the waiver in open court. Barth v. Florida State Constructors Service, Inc., 327 So. 2d 13 (Fla.1976).
Since the Van Prooyens’ cross-claim against Huber was improperly tried without a jury, the final judgment is reversed insofar as it adjudicates the claim and the cause is remanded for jury trial of that claim alone.
AFFIRMED IN PART; REVERSED IN PART.
DAUKSCH, C.J., and SHARP, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Lou Poller v. First Va. Mortg. & Real Est. Inv. Tr., 471 So. 2d 104 (Fla. 3d DCA 1985)…e a jury trial has been demanded, it can be waived only by affirmative act. Barth v. Florida State Constructors Service, Inc., 327 So. 2d 13 (Fla.1976); Cheek v. McGowan Electric Supply Co., 404 So. 2d 834 (Fla. 1st DCA 1981); Van Prooyen v. Maples, 403 So. 2d 509 (Fla. 5th DCA 1981). There is ample evidence in the record before us that Mrs. Poller affirmatively waived her jury trial right by the stipulation of her attorney on December 15, 1981. Since the time Mrs. Poller came into the litigation as an added…
-
Adkins v. Winkler, 592 So. 2d 357 (Fla. 1st DCA 1992)…e party’s right is preserved inviolate and can only be waived by affirmative act, such as specific waiver in writing or announcement in open court. Powell v. Southern Bell Tel. & Tel. Co., 448 So. 2d 72, 74 (Fla. 3d DCA 1984); Van Prooyen v. Maples, 403 So. 2d 509, 510 (Fla. 5th DCA 1981). To demand a jury trial, Florida Rule of Civil Procedure 1.430(b) provides: Any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefor in writing at any ti…
-
Harlow J. Kies and Doris Kies v. Fla. Ins. Guar. Ass'n, Inc., 435 So. 2d 410 (Fla. 5th DCA 1983)…nstitutional right. Their right was not waived by acquiescence to a non-jury trial on the coverage issues raised by the cross-claim and counterclaim. Barth v. Florida State Constructors Service, Inc., 327 So. 2d 13 (Fla.1976); Van Prooyen v. Maples, 403 So. 2d 509 (Fla. 5th DCA 1981). Those issues were identical to the issue of coverage raised in FIGA’s affirmative defenses to the complaint and were legal issues determinable in a jury trial. The resolution of the cross-claim and counterclaim turned on facts w…
Authorities Cited
- Barth v. Fla. State Constructors Serv., Inc., 327 So. 2d 13 (Fla. 1976)