Opinion
No. CV-05-4012156S.
December 1, 2006.
RULING ON MOTION TO STRIKE FROM JURY DOCKET (#111)
This action was originally brought against the defendant Donna Mitsock and the defendant Mark Mitsock was subsequently added as a party in an amended complaint in six counts dated August 31, 2005. The defendants filed their answer on December 6, 2005. On December 21, 2005, the defendants filed a certificate of closed pleadings claiming the case as a non-jury matter. On December 23, 2005, the plaintiffs filed a certificate of closed pleadings and a claim for the jury trial list. On December 29, 2005, the defendants moved to strike the case from the jury docket maintaining that the jury claim was untimely filed (#111). In the absence of any objection by the plaintiffs, the court (Pittman, J.) granted the motion to strike and ordered the case placed on the court trial list on January 23, 2006. On February 2, 2006, the plaintiffs filed a motion to reargue and for reconsideration of the ruling on the motion to strike from the jury docket requesting an opportunity to file a memorandum in opposition. The court (Pittman, J.) granted that motion of February 9, 2006. On February 23, 2006, the plaintiffs filed an opposing memorandum. For unknown reasons, however, the matter was never reargued before Judge Pittman. At a pre-trial conference before the undersigned held on July 7, 2006, reargument was scheduled for August 7, 2006. A hearing was held on that date at which time this court vacated the earlier ruling striking the case from the jury docket. This memorandum will address the motion to strike from the jury docket anew.
General Statutes § 51-239b provides: "In civil actions a jury shall be deemed waived unless requested by either party in accordance with the provisions of section 52-215." General Statutes § 52-215 provides, in pertinent part, that when "an issue of fact is joined, the case may, within ten days after such issue of fact is joined, be entered in the docket as a jury case upon the request of either party made to the clerk." Since 1897, the applicable statute has required that an unclaimed civil action where an issue of fact has been joined be claimed to the jury docket within that ten-day period, 1897 Public Acts, chapter 83, while the waiver language contained in § 51-239 has appeared in predecessor statutes since at least 1959. 1959 P.A. No. 28, § 32.
The statute also provides that a case may be entered on the jury docket "upon the written request of either party made to the clerk within thirty days after the return date" but that portion of the statute is not applicable in this case.
Statutory language setting forth a limitation period for filing a jury docket claim after an issue of fact had been joined was first set forth in the 1879 Public Acts, chap. 83, § 22 in a statute entitled "An Act to Simplify Procedure in Civil Causes, and to Unite Legal and Equitable Remedies in the Same Action." Prior to 1897, the limitation period was three weeks from joinder. In 1897, the statute was amended to provide for a ten-day limitation period.
The defendants maintain that the plaintiffs' failure to claim this case to the jury docket within ten days from the date the answer was filed resulted in a waiver of the jury trial. The plaintiffs concede that they failed to claim the case to the jury docket within ten days of the filing of the defendants' answer, but argue that they did not intend to waive their right to a jury trial and that the court has discretion to keep this case on the jury docket.
It has, however, been the clear law in Connecticut since 1899 that a failure to claim a civil action to the jury within thirty days of the return date or within ten days after an issue of fact has been joined amounts to a voluntary and intentional relinquishment of the right to the jury trial provided by Art. I, § 21 of the Connecticut Constitution. Noren v. Wood, 72 Conn. 96, 98, 43 A. 649 (1879). Moreover, the legislature has adopted the court's view by explicitly stating that a party's failure to make a timely jury docket claim pursuant to statute amounts to a waiver of the jury trial. General Statutes § 51-239b.
The constitutionality of the legislature's ability to limit the time in which a case may be claimed to the jury docket has not been in doubt since 1903. McKay v. Fair Haven and Westville R.R. Co., 75 Conn. 608, 611, 54 A. 923 (1903). In that case, the court found that the statute neither deprived "parties of their right to a jury trial" nor imposed "any arbitrary or unreasonable requirements upon one who desires such a trial." All that is required of a party seeking a jury trial is that the proscriptions of the statute be followed. Indeed, the court noted that the statutory language is "singularly clear and certain . . . Words could scarcely be chosen which would express with greater precision the requirements to be observed by a litigant to claim his place as a matter of right upon the jury docket." Id., 610-11.
The plaintiffs rely on the additional language in the General Statutes § 52-215 which provides that eligible cases "may at any time be entered in the docket as a jury case by the clerk . . . by order of the court" and request the court to exercise its discretion to keep the case on the jury docket. In support of their request, the plaintiff's point to the underlying facts of the case which involves an alcohol-related motor vehicle accident. There is, however, no reason to believe that a judge of the Superior Court would take such facts any less seriously than a jury.
Connecticut law is clear not only that a party has "no absolute right to a jury trial," but also that the party who does not wish a jury trial and properly claims a case as a non-jury matter has a right to the court trial, "in the absence of a court order to the contrary," Bristol v. Pritchard, 81 Conn. 451, 453, 71 A. 558 (1908). which the court has declined to enter. Additionally, the joining of a new issue would trigger a new ten-day period under § 52-215 in which to claim this case to the jury. Home Oil Co. v. Todd, 195 Conn. 333, 343, 487 A.2d 1095 (1985); Fuller v. Johnson, 80 Conn. 493, 494, 68 A. 977 (1908).
Fair enforcement of the provisions of General Statutes § 52-215 is required for the benefit of all parties to a lawsuit. Accordingly, for the reasons stated above, the motion to strike this case from the jury docket is granted.