Florida appellate rules should allow for interlocutory appeal of decisions to deny jury trial: The right of trial by jury shall be secure to all and remain inviolate.

• Author: Miller, Mark
• Position: APPELLATE PRACTICE

In [s]uits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any [c]ourt of the United States, than according to the rules of the common law. (2)

Until 1998, the majority of intermediate appellate courts in Florida protected the right to trial by jury in a civil case involving a claim at law by way of common law certiorari. (3) That is, if a lower court denied a proper demand for jury trial, the aggrieved party could petition the appellate court for certiorari relief before the case went to bench trial. (4) The Third District Court of Appeal explained the reasoning behind that protection in Spring v. Ronel Refining, Inc., 421 So. 2d 46, 47 (Fla. 3d DCA 1982), disapproved of by Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998) (emphasis added):

[T]he denial of the right to jury trial is more than the denial of a constitutional right; it is the denial of a fundamental right recognized prior to the adoption of a written constitution. The right to select the peers to which one's cause will be submitted is unique and indispensable to the adversary system. For this reason, we deem certiorari to be the appropriate remedy in this instance[.]

The Florida Supreme Court, however, removed that protection in Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998). Jaye held that a litigant in Florida's state courts must wait until after the wrongfully scheduled bench trial takes place and the court enters judgment before the litigant can appeal this issue. Respectfully, I suggest the Florida Supreme Court erred when it decided Jaye, and that the law of Florida should allow for interlocutory review of a trial court's decision to deny a right to jury trial. First, I will discuss why courts have previously protected the right, and how we reached a point where the Florida Supreme Court disallowed immediate certiorari petition as a remedy in this circumstance. Then, I will explain that the court should correct the error by amending the appellate rules to allow for interlocutory review of the decision to deny a right to jury trial. (5)

Denial of Right to Jury Trial a Departure from the Essential Requirements of the Law

The Florida Supreme Court has held that questions as to the right to a jury trial should be resolved, if at all possible, in favor of the party seeking the jury trial, for that right is fundamentally guaranteed by the U.S. and Florida constitutions. (6) The question of entitlement to jury trial arises in some cases where no right to jury trial had previously existed but an amended pleading injects new claims to which a party is entitled to a jury trial based on newly discovered facts in the case. In such a case, the time for filing a demand for a jury trial is revived although the party making the demand may have waived the right to a jury trial at the time of the initial pleading. (7) In this case, the civil rules allow for the party to amend the pleading so as to make a demand for that trial by jury. (8)

Until relatively recently, the Florida appellate courts held that denying the right to a jury trial in this circumstance was a departure from the essential requirements of the law. (9) For example, in Hobbs v. Florida First National Bank of Jacksonville, 480 So. 2d 153, 155 (Fla. 1st DCA 1985), the trial court granted the defendant leave to amend its affirmative defenses. In doing so, the defendant pled affirmative defenses sounding in law and demanded a jury trial. (10) The trial court struck the jury demand; the defendant took a petition for writ of certiorari to the First District Court of Appeal; and the First District quashed that order, holding that once a party is allowed to file new pleadings that inject new issues into a case, "the time for filing a demand for jury trial is revived." (11) Both the Second (12) and Third (13) district courts of appeal agreed with the First District that this type of lower-court error was remediable via petition for writ of certiorari, or even mandamus, (14) because a trial court that denied a properly due right to jury trial departed from the essential requirements of the law.

Supreme Court in Jaye Eliminates Certiorari Review

In Jaye, the Florida Supreme Court reviewed the Fourth District Court of Appeal's decision to refuse to entertain a petition for writ of certiorari--based on lack of jurisdiction--regarding the denial of a claimed right to jury trial. (15) The Supreme Court agreed with the Fourth District and rejected the considered opinions of the First, Second, and Third district courts. (16) The court held that a litigant who had been denied his or her right to trial by jury did not suffer irreparable harm; rather, he or she only suffered a harm that the appellate court could remedy later upon appeal of the final order following the bench trial. (17) Therefore, a petition for writ of certiorari did not allow for review of an order denying the constitutional right to trial by jury. (18)

The Jaye court did not support its holding in detail. Initially, the court reiterated the Appellate Committee notes to Florida Rule of Appellate Procedure 9.130 that state this extraordinary writ...