Brian A. Hodges v. Chan Holcombe

Annotate this Case
ca04-845

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

BRIAN A. HODGES

APPELLANT

V.

CHAN HOLCOMBE

APPELLEE

CA04-845

June 15, 2005

APPEAL FROM THE SEBASTIAN COUNTY CIRCUIT COURT

[NO. CV 2003-1311]

HON. NORMAN WILKINSON,

JUDGE

REVERSED AND REMANDED

Robert J. Gladwin, Judge

On September 12, 2003, appellee Chan Holcombe filed a complaint in Sebastian County Circuit Court against appellant Brian Hodges, alleging breach of contract regarding a loan of $15,000 appellee made to appellant. The trial court granted judgment against appellant in the amount of $7220 plus court costs, an attorney's fee, and interest. Appellant raises four points on appeal: (1) the trial court erred in finding that a valid and enforceable contract existed; (2) the trial court erred in denying his inviolate right to a trial by jury; (3) he was denied fundamental fairness, due process of law, and his right to counsel under the Sixth and Fourteenth Amendments of the United States Constitution; (4) the interest rate of the alleged contract violated Article 19, Section 13 of the Arkansas Constitution. We reverse and remand on the jury-trial issue.

When appellant filed his answer to appellee's complaint on November 24, 2003, he requested a jury trial. Moreover, appellee requested a jury trial in a letter to the court filed on December 17, 2003. On that same date, the trial court set the case for jury trial to be held on March 29, 2004.

On March 24, 2004, appellant's counsel filed a motion to withdraw. The following day, the trial court granted the motion based on its finding that appellant had terminated the services of his attorney. In the order, the trial court advised that appellant's case would proceed to trial on March 29, 2004, and that, if appellant had not retained another attorney to represent him, he could proceed pro se.

On March 29, 2004, appellant appeared before the court and requested a continuance because he was without representation despite his efforts to retain an attorney. After some discussion, the trial court denied the request, and the following colloquy occurred:

MR. LANGSTON: I will just start with my first witness if it's all right with the Court.

THE COURT: That's okay.

MR. HODGES: Judge ----

THE COURT: What, Mr. Hodges?

MR. HODGES: I thought this was a jury trial.

THE COURT: Mr. Hodges, your actions last week forced me to not call in the jury because we simply couldn't reach you. You left us in a lurch of being unable to contact you. I'll bet the Court Administrator tried to contact you fifteen times, that would not be an exaggeration, perhaps twenty and we just simply couldn't bring fifty people up here not having heard from you or any way to contact you. The first witness.

On appeal to this court, appellant argues that he did not waive his right to a jury trial. Appellee, on the other hand, contends that appellant's action and inaction prior to the trial, his failure to raise any objection, and the fact that he proceeded with the bench trial knowing that a jury was not present effectively waived his right to a jury trial.

The right to a jury trial is a constitutional right that is so fundamental that the rule that cures error where counsel fails to object ought not to be readily applied to the denial of rights protected in the Constitution of Arkansas and described therein as "inviolate." Bussey v. Bank of Malvern, 270 Ark. 37, 603 S.W.2d 426 Ark. App. (1980); see also Ark. Const. Art. 2, ยง 7. Procedural rules governing jury trials are not intended to diminish the right to a jury trial. Id. These rules should be interpreted so as not to give effect to dubious waivers of rights. Id.

Pursuant to Ark. R. Civ. P. 38(a), any party may demand a trial by jury of any issue triable of right by a jury by filing with the clerk a demand therefor in writing at any time after the commencement of the action and not later than twenty days prior to the trial date. The failure of a party to file a demand as required by the rules constitutes a waiver by him of trial by jury. Ark. R. Civ. P. 38(c). Moreover, a demand for trial by jury may not be withdrawn without the consent of the parties. Ark. R. Civ. P. 38(c). Arkansas Rule of Civil Procedure 39(a) provides:

When trial by jury has been demanded as provided in rule 38, the action shall be designated upon the docket 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 of its own initiative, finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of this State.

On appeal, we review with strong deference to the trial court's determination of whether a party's demand for jury trial was untimely and whether that party previously waived his right to a jury trial. Duncan v. McGaugh, 19 Ark. App. 276, 719 S.W.2d 710 (1986). In the case at bar, both parties demanded a jury trial in writing well in advance of the scheduled trial date. The parties never sought to withdraw their demands, and they did not consent to a bench trial. Furthermore, the trial court did not suggest that appellant did not have a right to a trial by jury under our constitution or statutes. The trial court was understandably frustrated with appellant; however, under these circumstances, appellant was entitled to have his case heard by a jury.

Because we reverse on point 2, it is not necessary to address points 1, 3, and 4.

Reversed and remanded.

Hart and Roaf, JJ., agree.