Jury demand withdrawal

Under Civ.R. 38(B), a party seeking a jury trial must serve a jury demand on the other party or parties not later than 14 days after the service of the last pleading directed to such issue. It has long been held by the Ohio Supreme Court that trial court local rules requiring a jury deposit to accompany the jury demand are a reasonable and moderate regulation of the right of trial by jury, and not an impairment of that right. Where a local rule requires a jury deposit, the jury demand is perfected upon both timely serving the jury demand and paying the jury deposit. The Ohio Supreme Court recently confirmed in Estate of Tomlinson v. Mega Pool Warehouse that Civ.R. 38(D) controlled over a trial court’s local rule requiring each party seeking a jury trial to pay a jury deposit. Thus, once one of the parties perfects a jury demand, the right to a jury trial is secured for all parties and cannot be withdrawn without the consent of all parties. In this case, your author briefed and orally argued the case before the Ohio Supreme Court on behalf of the defendants.

Estate of Tomlinson v. Mega Pool Warehouse case overview

The plaintiff met both the requirements of Civ.R. 38 and the Delaware County Court of Common Pleas local rule by properly endorsing the caption of the complaint and timely submitting the required jury deposit. The defendants did not separately request a jury trial or pay a jury deposit. The case was set for a jury trial and continued multiple times. Following the last continuance, the trial court permitted the plaintiff to unilaterally withdraw her jury demand over the defendants’ objection, finding the defendants had waived their right to a jury trial by not separately paying a jury deposit under the local rule. The Fifth District Court of Appeals agreed and held the defendants were not permitted to “piggyback” on the plaintiff’s jury deposit and were required to pay their own deposit to invoke their right to a jury trial.

The Delaware County Court of Common Pleas local rule

“If a party is seeking a jury trial in a civil case, the party must submit a $500 jury deposit to the clerk of courts at least 60 days prior to the scheduled trial date. If the case is resolved after the jury has been assembled, the deposit will be retained by the court. Failure to make the jury deposit will be deemed as a waiver of the jury.”

Trial Court’s incorrect interpretation of its local rule conflicts with Civ.R. 38(D)

The trial court held, and the Fifth District agreed, the local rule required all parties to the action seeking a jury trial, regardless of whether they made a separate jury demand, to pay their own jury deposit to invoke their right to a jury trial. The Ohio Supreme Court disagreed. Rather, it found that, for this contention to be correct, the local rule would have to mean that each party to a case who wants to invoke its right to a jury trial must pay a jury deposit. But the local rule refers to a party and the party. The Supreme Court held that requiring all parties to pay the deposit would improperly add language to the rule that is not there.

The Ohio Supreme Court further held that the trial court not only wrongly read its own local rule to require each party seeking a jury trial to pay a jury deposit, but also that the trial court wrongly concluded that absent such, a perfected jury demand could be unilaterally withdrawn. The Supreme Court found that conclusion expressly conflicted with Civ.R. 38(D), which provides that a jury demand made under Civ.R. 38 may not be withdrawn without the consent of the parties.

What’s the takeaway?

Read the rules closely. Here, the Supreme Court’s decision hinged on a distinction between “a party” (singular) in the local rule as perfecting the jury demand and “the parties” (plural) in Civ.R. 38(D) regarding unanimous waiver. Here, the Supreme Court held that both the trial court and the Fifth District were not interpreting their applicable local rule correctly.