Chapter 39 Trial by Jury or the Court

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 39 Trial by Jury or the CourtRule 39¹

(a) By Jury. When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the calendar and the clerk's filebook as a jury action. The trial of all issues so demanded shall be by jury, unless (1) the parties or their attorneys of record, by written stipulation filed with the court or by an oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (2) the court upon motion or its own initiative finds that a right of trial by jury of some or all of those issues does not exist.

(b) By the Court. Issues of law and issues not demanded for trial by jury as provided in Rule 38 shall be tried by the Court or may be referred to a master as provided in Rule 53; but, notwithstanding the failure of a party to demand a jury in an action in which such a demand might have been made of right, the court in its discretion upon motion may order a trial by jury of any or all issues.

(c) Advisory Jury and Trial by Consent. In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury or the court, with the consent of both parties may order a trial by jury whose verdict has the same effect as if trial had been a matter of right.

Note:

This Rule 39 is substantially the Federal Rule. Paragraph 39(b) preserves the State practice of reference to masters of appropriate non-jury cases. The Rule preserves State practice with no real change. Present Circuit Rule 28, and the substance of Code §§ 15-23-70, 15-27-90, 15-23-60 and 15-33-20 are retained.

A. Trial by Jury or by the Court

Rule 39(a) defines the procedure following a jury demand. The case is so designated on the calendar and clerk's filebook, and issues are tried to a jury.² The jury demand can only be withdrawn by written stipulation or by an oral stipulation entered into the record. In addition, the court may rule that the right to a jury does not exist.

The right to a jury is a substantial right. Any order denying a jury must be appealed immediately.³ Waiting to raise the issue after the final verdict is a waiver.⁴An order denying a jury in an equitable action is not immediately appealable because the order does not deprive a party of a mode of trial to which the party is entitled as a matter of right.⁵

The right to a jury trial applies to issues and not the entire case. Rule 39(a) provides that the jury will try the issues on which a jury has been demanded. More important, in South Carolina, the judge tries the facts supporting equitable defenses to an action at law.⁶

Rule 39(b) gives the court the discretion to grant a jury trial even if the demand was untimely. The Rule contains no standard for the court to exercise its discretion. The Court of Appeals affirmed an order granting a new trial in the absence of proof that any party was prejudiced by the jury mode of trial. The court refused to decide what facts justify the exercise of discretion and noted that the federal courts rarely interfere with the trial court's decision.⁷ The non-moving party does not have any right to a non-jury trial, so the court's exercise of discretion under Rule 39(b) does not adversely affect the non-moving party's rights.

The trial judge's discretionary decision not to order a jury trial is not immediately appealable.⁸ In a later case, the trial court's decision to deny a jury trial under this subpart was reviewed under an abuse of discretion standard, and the court considered the potential prejudice, the timeliness of the request, and whether it would affect a speedy disposition of the case.⁹

Rule 39(c) permits the court to impanel an advisory jury in an equitable action. The procedure is similar to that under prior law when the advisory jury was for the enlightenment of the judge who was not bound to accept the jury's findings.¹⁰ In addition, the court, with the consent of all the parties, may try the case to a jury whose verdict has the same effect as if the jury had been demanded as a matter of right. The Court of Appeals has held that the parties may implicitly agree to a jury determination of a non-jury case.¹¹ However, it is improper in an action at law to submit issues to the jury in the form of non-binding advisory interrogatories. The decision of the jury on the facts binds the courts.¹²

B. The Constitutional Right to a Jury

"The right of trial by jury shall be preserved inviolate."¹³ The Constitution grants the right in general terms, and the legislature and the court may regulate the details of a jury trial.¹⁴ The difficult question is determining what cases or causes of action are tried to the jury. Our courts consistently hold that a jury trial is guaranteed only in those cases in which it was available at the time of the Constitution of 1868, so analysis of the right starts with the practice in 1868.¹⁵ The great divide is between actions at law and those in equity. Only actions at law receive a jury trial. Selecting either a legal or an equitable cause of action determines whether the judge or jury decides the facts.

The choice of an action at law or an action in equity also determines the standard of appellate review. In an appeal of an action at law tried to a jury, the appellate court is limited to correcting errors of law, and a factual finding will not be disturbed unless there is no evidence in the record that reasonably supports the jury's findings. The judge's findings in an action at law tried without a jury are entitled to the same weight as jury findings. In an action in equity, however, the appellate court may make its findings in accordance with its own view of the preponderance of the evidence.¹⁶ The standard is the same whether the appeal is from the circuit court or from a master directly to the Supreme Court.¹⁷ The broad scope of review in equitable actions, however, does not require the appellate court to disregard the findings below or ignore that the trial judge was in a better position to evaluate the credibility of witnesses and the comparative weight of the testimony.¹⁸And, the appellant must still show that error was committed by the trial court.¹⁹

1. Traditional Actions at Law

The law/equity distinction is the starting point for any analysis of when the right to a jury is accorded. The hallmark of an action at law is the remedy of damages only.²⁰ An action asserting a claim only for money damages for breach of contract²¹ or for personal injury²² is a traditional legal action tried to a jury. Actions on an account²³ or for claim and delivery are also jury actions.²⁴ However, the mere fact that the defendant might have to pay money does not necessarily make it an action at law.²⁵

The other quintessential action at law is one that determines title. If title is at issue either as a claim or defense, the issue is for the jury.²⁶ In some cases, the relief sought determines whether it is a legal or equitable claim, as when there are allegations of fraud.²⁷ Similarly, an action to forfeit property, which normally used for a legal purpose, merits a jury, but not an action to forfeit contraband.²⁸ More difficult problems arise when legal and equitable claims are joined, and these are discussed below. However, the settlement of the equitable causes of action, leaving only an action for money damages, entitles the plaintiff to a jury trial.²⁹ Other examples of jury actions are cited below.³⁰

2. Traditional Actions in Equity

The English equity court provided relief when money damages were inadequate. Equity acted in cases of mistake, accident and fraud, and to reform documents. Equity took jurisdiction of trusts and estates and protected widows and orphans. Moreover, equity acted directly on the parties through the injunction or other order.

Today's equitable actions reflect these historical roots. The family court, which has jurisdiction over spouses and children, is a court of equity. An action alleging mistake in conveyancing is equitable³¹ as is an action to avoid or reform a devise,³² or to remove a cloud on a land title.³³ Matters involving express or implied trusts are equitable.³⁴ The foreclosure of a mortgage is equitable³⁵ as is an action for partition, when title is not an issue.³⁶ An action for an accounting is an equitable action.³⁷ Equity also acted in some contract actions when a complex accounting was required and the jury would not comprehend the issues.³⁸ Also, an action for rescission and restitution is equitable.³⁹

Actions seeking orders directing a party to perform specific acts are equitable. Thus, actions for specific performance of a contract⁴⁰ and for injunctions⁴¹ are equitable. Many actions affecting the rights of shareholders in corporations are equitable because they arise out of actions for breach of duty by a fiduciary. Thus, stockholder's derivative actions⁴² and actions to determine the value of dissenting shareholders shares are equitable.⁴³ Actions for retaliatory discharge are equitable because the remedies of reinstatement and back pay are a form of restitution, an equitable remedy.⁴⁴ Finally, a suit to recover an attorney's fee is equitable, but only if the parties agree that it is secured by a lien.⁴⁵

3. Determination of Whether Action is Legal or Equitable

The characterization of an action as legal or equitable is determined by the plaintiff's "main purpose" in bringing the action. The main purpose may be determined from the body of the complaint, the prayer for relief, and other facts and circumstances that throw light on the main purpose of the action.⁴⁶ Likewise, the nature of the issues raised in the pleading and the relief sought are factors.⁴⁷ Some causes of action can be characterized as either legal or equitable depending upon the relief sought. For example, a breach of fiduciary duty may be equitable or legal depending upon the relief sought.⁴⁸

4. Procedure When Legal and Equitable Claims

Rule 18 permits the...