Court cannot deny jury trial for failure to pay jury fee.

• Author: Ziemer, David

Byline: David Ziemer

A court cannot deny a party a jury trial for failure to timely pay the jury fee, unless it finds inexcusable neglect, the Wisconsin Court of Appeals held on April 27.

Marlene L. Phelps was pregnant with Adam and Kyle when she was treated by Dr. Matthew Lindemann, who was then an unlicensed first-year resident at St. Joseph's Hospital.

The Phelpses filed a malpractice action, alleging that Dr. Lindemann negligently caused Adam's death. Lindemann and Physicians Insurance Company of Wisconsin filed an answer, and demanded a trial by jury.

A scheduling order was entered on July 10, 2001, providing that jury fees must be paid in accordance with Local Rule #371 on or before Sept. 1, 2001, or the jury shall be deemed waived.

The attorney for the defendants became ill in August, 2001, and the jury fee was not timely paid. Another member of the firm paid the fee on Sept. 13, 2001, but did not send notice to the plaintiffs indicating that it had been paid.

Two days prior to trial, in December 2002, the plaintiffs objected to trial by jury. Milwaukee County Circuit Court Judge Michael P. Sullivan granted the motion, citing the failure to pay the fee timely, and the highly-complicated nature of the case.

The defendants explained the reason for failing to pay the fee timely, but the court did not change its decision, again citing the complex nature of the case.

The court found the defendants negligent, and entered judgment against them. The defendants appealed, and the court of appeals reversed in a decision by Judge Ralph Adam Fine.

Statutes

Under Rule 805.01(2), parties must demand a trial by jury in civil cases "at or before the scheduling conference or pretrial conference, whichever is held first."

Section 814.61(4) provides, "For a jury in all civil actions, except a garnishment action under ch. 812, a nonrefundable fee of $6 per juror demanded to hear the case to be paid by the party demanding a jury within the time permitted to demand a jury trial. If the jury fee is not paid, no jury may be called in the action, and the action may be tried to the court without a jury."

The court thus found that, under the statutes, the defendants had to pay the jury fee by the July 10, 2001, scheduling conference. However, Milwaukee County Cir. Ct. Rule 371 gave them until thirty days following the scheduling conference within which to pay the jury fee. The scheduling order, in contrast, gave them until Sept. 1, 2001.

The court acknowledged...